People v. Stayner

IN THE SUPREME COURT OF
               CALIFORNIA

                        THE PEOPLE,
                   Plaintiff and Respondent,
                            v.
                CARY ANTHONY STAYNER,
                 Defendant and Appellant.

                           S112146

              Santa Clara County Superior Court
                           210694



                        April 30, 2026

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

Justice Evans filed a concurring and dissenting opinion.




*
      Associate Justice of the Court of Appeal, Second Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                    PEOPLE v. STAYNER
                            S112146


            Opinion of the Court by Guerrero, C. J.


      This case is an automatic appeal from a judgment of death.
(Pen. Code,1 § 1239, subd. (b).) Defendant Cary Anthony
Stayner used a ruse to enter the motel room of Carole Sund, her
15-year-old daughter Juli Sund, and their 16-year-old family
friend Silvina Pelosso.2 Once inside the room, defendant
brandished a gun and used duct tape to bind Carole and the
girls. He murdered Carole by strangling her and murdered
Silvina by strangling and suffocating her. Then, over the course
of several hours, he repeatedly sexually assaulted Juli, after
which he kidnapped her, sexually assaulted her again, and then
murdered her by slitting her throat. About five months later,
defendant kidnapped, murdered, and decapitated Joie
Armstrong. Defendant confessed to his crimes in a detailed
recorded interview. The facts of the Armstrong murder, which
occurred inside Yosemite National Park (Yosemite) and was
prosecuted by federal authorities, were presented during the
penalty phase.
     After a jury trial, defendant was convicted of the murders
of Carole, Juli, and Silvina (§ 187, subd. (a)) and of kidnapping
Juli (§ 207). As to the three murder counts, the jury found true
allegations that defendant personally used a deadly and

1
    Unspecified statutory references are to the Penal Code.
2
    Because several victims and witnesses share the same last
names, we occasionally refer to them by their first names.


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dangerous weapon (former § 12022, subd. (b)(1)) and personally
used a firearm in the commission of the crimes (former
§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). The jury found
true five special circumstances: Multiple murders (§ 190.2,
subd. (a)(3)); kidnapping murder as to Juli (id., subd. (a)(17)(B));
attempted rape murder as to Juli (id., subd. (a)(17)(C)); forcible
oral copulation murder as to Juli (id., subd. (a)(17)(F)); and
burglary murder (id., subd. (a)(17)(G)). The jury found not true
an alleged robbery-murder special circumstance. (Id., subd.
(a)(17)(A).)
      In a separate sanity phase trial, the jury found defendant
to be sane at the time of the offenses, and in a separate penalty
phase trial, the jury set the penalty at death. The trial court
denied defendant’s motion for a new trial and his motion to
modify the sentence and imposed a sentence of death with a
consecutive prison term of 45 years.
      We affirm the judgment in its entirety.
                             I. FACTS
      A. Guilt Phase
         1. Prosecution case
            a. The disappearance of Carole, Juli, and Silvina
      In February 1999, Carole Sund lived in Eureka with her
husband Jens, their 15-year-old daughter Juli, and their three
younger children. Carole planned a vacation with Juli and
Silvina, a 16-year-old family friend from Argentina who was
staying with them.
     On February 12, 1999, Carole, Juli, and Silvina flew to
San Francisco, and Carole rented a red Pontiac Grand Prix from
Avis Car Rental. They planned to attend Juli’s cheerleading


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competition in Stockton, drive to Yosemite for a two-night stay
at the Cedar Lodge, and return to San Francisco to meet up with
Jens and the other children for a trip to Arizona.
      On February 14, 1999, Carole, Juli, and Silvina checked
into room 509 at the Cedar Lodge in El Portal. Juli and Silvina
rented a VCR and some VCR tapes. The clerk recalled
discussing the movie Jerry Maguire (Tristar Pictures 1996) with
them. Defendant was a maintenance worker at the Cedar Lodge
and lived in an apartment above the restaurant and bar.
      Tracy M. was also staying at the Cedar Lodge with family
and friends, including Tracy M.’s 15- and 12-year-old daughters
and their two friends. On February 14, the four girls went to
the motel’s indoor pool and spa and saw defendant hanging out
in the spa area.
       On the morning of February 16, a Cedar Lodge manager
called room 509 because the guests had not checked out. No one
answered. Later, a housekeeper looked inside the room and saw
wet towels on the bathroom floor and beds that looked “almost
like [they were] made up” but appeared to be “in a tiny bit of
disarray.” A pink blanket and a pillow were missing from the
closet.
     When Carole and the girls were not at the San Francisco
International Airport on February 16 for their planned meetup,
Jens was not surprised because his plane had arrived four hours
late. He caught the next plane to Phoenix, Arizona. When he
did not hear from Carole by February 17, he filed a missing
person report.




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            b. Investigation of Sund-Pelosso murders
               i. Initial investigation
      A Mariposa County Sheriff’s Deputy received the missing
person report and went to Cedar Lodge. She examined room 509
and did not see any damage to the door or windows. The
curtains were closed, and one bed sheet was missing. There
were some Danish pastry rolls, an apple, and tomato juice in the
room. Wet towels were heaped on the bathroom floor.
      On February 19, a middle school student discovered a
wallet while walking to school in Modesto. The wallet contained
Carole’s driver’s license and credit cards.
     On February 20, another Mariposa County Sheriff’s
Deputy processed room 509 for evidence and collected latent
fingerprints. One pillow was missing a pillowcase, and one bed
was missing its top sheet. On the floor, there were small pieces
of cloth and what appeared to be a garment label.
      On March 3, 1999, FBI Special Agent Anthony Alston
interviewed defendant at Cedar Lodge. Defendant said he
returned to Cedar Lodge on Valentine’s Day weekend after
going out of town to visit friends. He said he had not seen the
missing individuals or their car.
               ii. Discovery of Carole and Silvina’s bodies
      The afternoon of March 18, 1999, a witness saw a
thoroughly burnt car on a remote dirt road. He could not tell
the color of the car but saw that it was red near the front license
plate, which had fallen off. He took the license plate home and
called police.
      The next morning, FBI Special Agent Chris Hopkins went
to the scene and discovered the bodies of Carole and Silvina in


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the trunk of the car. A pathologist testified that the victims died
before the fire began. The victims’ bones were damaged by heat
and showed no damage from a bullet or a cutting tool.
Strangulation could not be ruled out as the possible cause of
death.
      Agents investigated the burnt car and surrounding areas
and found a rope, a black purse, a green fanny pack, a camera
case with a camera, an Avis Car Rental key, and Juli’s shoes.
Inside the purse was Carole’s credit card, a second camera, and
a receipt from Cedar Lodge. Photographs developed from the
cameras showed the victims at a cheerleading contest and in
Yosemite. Arson expert FBI Agent Timothy Huff determined
the fire was intentionally set weeks before its discovery on
March 18.
               iii. Discovery of Juli’s body
      On March 24, 1999, Special Agent Alston, who had
interviewed defendant at Cedar Lodge, received a letter at the
FBI’s Modesto field office. The letter included a map of the Vista
Point area on the Don Pedro Reservoir and included the words
“We had fun with this one,” “Vista Point,” and “Don Pedro.”
Defendant’s right thumbprint was found on the stamp. An FBI
document examiner discovered indentations on the letter that
depicted a heart and the words “Victor,” “Johnny,” “Forever,”
and several X’s.
      On March 25, 1999, FBI agents searched the area depicted
on the map and discovered Juli’s body. There was a piece of duct
tape attached to her left ankle. An autopsy revealed the cause
of death was a six-and-a-quarter-inch incision to her neck. The
pathologist testified that Juli’s vulva was shaved but that she



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could not determine whether Juli had been sexually assaulted
because her body was decomposed.
            c. Defendant’s statement
      On July 24, 1999, FBI agents, thinking defendant might
have some information about the murder of Joie Armstrong,
located him at a resort in Wilton. Defendant agreed to be
interviewed at the FBI office in Sacramento, waived his rights
under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and
was interviewed in Sacramento. Defendant’s interview was
audio recorded and relevant portions were played for the jury.
      Defendant said he had always had obsessive-compulsive
sexual feelings but that in late 1998, it “just got to the point”
where he decided to act on them. He began fantasizing about
killing his girlfriend, raping and killing her eight- and 11-year-
old daughters, and burning their house to avoid detection. He
had considered acting on this fantasy as recently as two days
before the interview, even going over to his girlfriend’s house but
discovering that her daughters were away.
      On the weekend of February 13 to 14, 1999, defendant put
together a crime “kit” including a roll of black duct tape, a knife,
and some rope. On February 14, he saw four girls at the Cedar
Lodge pool who would have been his victims, but a man was
staying with them. The next day, defendant visited his
girlfriend and her daughters but decided not to kill them in part
because there was a man staying on the property. At 9:00 p.m.,
he returned to Cedar Lodge and peered into a room next to
where a red Pontiac Grand Prix was parked. He saw a woman
(Carole) and two girls (Juli and Silvina). He “didn’t see a man
in the room, so they were vulnerable. Easy prey.” He got his
crime “kit,” gloves, and a gun from his room.

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      On the “[s]pur of the moment,” he thought of a plan — to
knock on the doors of several empty nearby rooms, loudly say
“[m]aintenance,” walk in, wait a few seconds, and slam the door,
“to just kinda desensitize them to the knock on their door.”
When he knocked on the victims’ door, Carole looked out the
window. Defendant told her he needed to check inside for a
possible water leak. Carole did not want to let him in. He said,
“[O]kay, no problem ma’am I’ll just . . . go get the manager,” and
told her they would have to move to another room. Carole asked
why they had to move, and defendant said they would not have
to if he could check inside. Carole let him in.
      Defendant went into the bathroom and pretended to check
for a leak. As he came out of the bathroom, he pulled out the
gun. The girls were watching the movie Jerry Maguire.
Defendant pointed the gun at Carole and said he needed money
and the keys to the car. Then he bound everyone, covered their
mouths with duct tape, and led Juli and Silvina into the
bathroom. Defendant wet some towels, “[t]ryin’ to make it look
like they had been there all night [¶] . . . [¶] [a]nd into the
morning.”
     Defendant then cut a piece of rope, sat on Carole’s back,
and “nonchalantly strangled her to death.” He “had no feeling”
as he “just performed the task.” He wrapped Carole’s body in a
sheet and put her in the trunk of the Pontiac.
       Defendant returned to the room and removed the girls’
clothes, cutting their shirts off with his knife, causing bits of
cloth to fall on the carpet. Defendant orally copulated Juli, made
her orally copulate him, and attempted to rape her. He took
Silvina into the bathroom and strangled and suffocated her.
Then he continued his sexual assault of Juli for several hours.

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      At one point, Juli asked to go to the bathroom. Defendant
did not want Juli to see Silvina and “freak out,” so he took her
next door to room 510. Defendant forced Juli to shave her pubic
area because he wanted to fulfill his fantasy of having sex with
a prepubescent girl. He then orally copulated her again. As it
got closer to morning, he knew he had to leave. He tied Juli up,
left her in room 510 with the phone disconnected, and returned
to room 509. Wearing gloves, he packed the victims’ belongings
in their suitcases and put the suitcases, Carole’s purse, and
Silvina’s body in the Pontiac. He left behind some Danish
pastries and tomato juice.
      Defendant returned to room 510 with a pink blanket from
room 509, put it around Juli’s shoulders, walked her out to the
Pontiac, and had her sit in the passenger seat. He drove to the
front office to drop off the motel keys and was “amaz[ed]” to find
Juli still sitting in the car when he returned.
       As defendant drove away from Cedar Lodge, he wished he
“had a place to take [Juli]” and “keep her” because he “liked her
a lot.” But he also “knew . . . all the time” that he was going to
kill her. He pulled into the Vista Point parking lot at the Don
Pedro Reservoir and carried Juli down a path “like a groom
carrying a bride over the threshold.” He kissed and hugged her,
told her he wished he could keep her, and made her orally
copulate him again. He also told her that back in the room, she
had a good chance to get away because there were no bullets in
his gun. Then, defendant told her he loved her and slit her
throat with a knife three times. He cut the duct tape off her
hands and covered her body with branches and loose brush.
      Defendant went back to the car, opened the trunk, cut the
bindings off Carole and Silvina, and took their clothes off to

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prevent authorities from learning they were killed in their
nightclothes. He put the bedsheet, clothing, and duct tape into
a pillowcase and closed the trunk. He threw the knife and the
roll of duct tape down the hill and drove away. He saw a vehicle
driving into the parking lot and tried to hide his face. He drove
around and threw the pillowcase containing the sheet, clothes,
and duct tape in a dumpster. He parked the car and wiped it
down to remove fingerprints. He threw away Carole’s purse, the
rope, a cosmetic bag, and some shoes in various places.
      Defendant walked toward Sierra Village but returned to
the car after realizing he forgot to wipe down one part of the car.
He missed the bus because of the delay, so he used $180 of the
$200 he had taken from Carole’s purse to take a taxi to
Yosemite. He then caught a bus to Cedar Lodge. That night, he
returned to room 509 and replaced a pillowcase that had some
blood on it, made up the beds with clean sheets (but forgot one
sheet), and cleaned some blood spots from the bathtub.
      On February 18, defendant returned to the Pontiac late at
night to burn it. He scratched the message “we have Sarah” into
the car (Juli had told defendant that her name was Sarah)
because he wanted authorities to think that more than one
person committed the crimes, and that “Sarah” was still alive.
Defendant also took Carole’s wallet from her purse. He poured
gasoline over the back seat, threw a match on it, ran up the hill,
and heard an explosion. He then drove to Modesto and threw
Carole’s wallet out the window as “another ploy to throw them
off.”
     At some point after he burned the Pontiac, defendant
returned to the Don Pedro Reservoir where he had left Juli’s
body and retrieved the pink blanket. He put the blanket in a

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plastic bag, drove to Coulterville, and threw the bag down a hill.
He wrote the letter with the map showing the location of Juli’s
body and left an imprint on the letter of the following words,
“just another ploy to throw you guys off,” because he wanted
Juli’s body to be found. Defendant said he was ready to speak
to the FBI agents because it was “time for the killing to stop.”
           d. Further investigation
      On July 25, the day after his confession, defendant
accompanied the agents to several locations and told them what
they would find. For example, he directed them to the white bag
containing the pink blanket and to Vista Point, where he had
thrown the duct tape and knife. No knife was found at Vista
Point at that time (it was found later), but the end of the duct
tape roll that was found matched a piece of tape that was
recovered from Juli’s ankle.
     About the same time, a taxi driver called the FBI to report
that she recognized defendant’s photograph on television
because she had driven him from Sierra Village to Yosemite on
February 16. According to the taxi driver, defendant refused to
give his name or workplace at the park entrance. He paid the
park entrance fee and cab fare with cash he took from a
backpack he was carrying.
        2. Defense case
           a. Forensic evidence
      FBI Agent Jacob Holmes testified that latent fingerprints
he found on items recovered from the site of Juli’s murder and
in room 509 did not belong to defendant. An FBI document
examiner testified there was not enough of a sample to
determine whether the handwriting on the letter and envelope
sent to the FBI belonged to defendant.

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           b. Character evidence
      Several Cedar Lodge employees testified they did not
believe defendant was a violent person or the kind of person who
would prey on women or children. The owners of a glass shop at
which defendant worked from 1993 to 1995, a glass shop
employee, and the employee’s fiancée all testified that defendant
was not violent or aggressive toward women.
           c. Evidence of defendant’s inability to form the
              requisite mental state for murder
      One morning in July 1995, one of the glass shop owners
took defendant to the county hospital after defendant was found
red-faced and teary-eyed, with bloody knuckles from punching
plywood. A few weeks before this incident, defendant was
agitated and shaking as he told a fellow employee’s fiancée that
he had always had dreams involving blood, women, and murder,
but had recently become incapable of controlling his feelings and
could not distinguish his dreams from reality. Shortly before
the murders, a guest at the Cedar Lodge saw defendant walking
around mumbling to himself.
     On March 3, 1999, when Special Agent Alston interviewed
defendant as part of the investigation, the conversation ended
with a brief discussion of defendant’s brother Steven. Defendant
was “solemn” as he talked about how Steven was abducted as a
child, subsequently reunited with his family, and later died in a
motor vehicle accident.
      On July 25, 1999, when defendant went with FBI agents
to the crime scenes, he was cooperative and did not try to
negotiate any benefit in exchange. At one point, Special Agent
Kenneth Hittmeier noticed defendant wipe tears or sweat from
the side of his face.

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      Dr. Jose Arturo Silva, a forensic psychiatrist, testified that
defendant’s father had a history of pedophilia and exhibitionism
and that his mother had a history of depression and mild
autism. His extended family had various psychotic illnesses and
disorders. There was evidence that defendant may have
suffered a perinatal injury to his brain. According to Dr. Silva,
defendant had low emotional intelligence and poor social
judgment, consistent with autism, as evidenced by his attempt
to negotiate with FBI agents for a monetary award and access
to child pornography in prison. Defendant lacked empathy,
tended to see others as inanimate objects, had recurrent dreams
of disembodied heads, a preoccupation with Bigfoot and the
prophecies of Nostradamus, and he had a feeling that his actions
were in fulfillment of a special personal destiny. These
symptoms supported a diagnosis of personality disorder not
otherwise specified with schizoid, schizotypal, antisocial, and
narcissistic features. Dr. Silva also diagnosed defendant with
pedophilia, voyeurism, hebephilia with features of sexual
sadism, and paraphilia not otherwise specified, and anxiety
disorder not otherwise specified, with obsessive-compulsive
features. He believed defendant was suffering from severe
mental disorders at the time of the crimes.
       Dr. Ruben Gur, a neuropsychologist who oversaw
defendant’s brain MRI, observed abnormalities that reflected
defendant’s poor emotional processing and difficulty
distinguishing between thoughts and reality. Dr. Joseph Wu,
who performed a PET scan of defendant’s brain, testified that
his findings suggested a traumatic brain injury, consistent with
schizophrenia, bipolar depression, or obsessive-compulsive
disorder, and psychotic symptoms.            Dr. Monte Buchsbaum
agreed with Dr. Wu’s findings.

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        3. Prosecution case in rebuttal
     Dr. Alan Waxman questioned the reliability of Dr. Wu’s
PET scan machine and criticized the various methodology used
by Drs. Wu and Buchsbaum. Based on his own evaluation,
Dr. Waxman opined that defendant’s scan showed no
abnormalities.
        4. Defense surrebuttal
       Dr. Frank Wood, an expert in PET scan technology,
disagreed with Dr. Waxman that there were no abnormalities in
defendant’s brain. He testified that Dr. Wu’s methodology was
reliable, and he questioned Dr. Waxman’s qualifications to
testify as an expert.
        5. Verdict
      Having heard the foregoing evidence, the jury returned a
verdict convicting defendant of three murders and one
kidnapping, with true findings on enhancement allegations and
five special circumstance allegations.
     B. Sanity Phase
        1. Defense case
           a. Evidence of hallucinations and headaches
     Cedar Lodge coworker Elvia D., who knew defendant since
1997, testified about defendant telling her he had visions.
Becky T., a former neighbor who saw defendant almost every
day between 1979 and 1986, testified that defendant told her
about his headaches. Both witnesses testified that they believed
defendant was not the type of person who would sexually or
violently assault someone.




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           b. Expert psychiatric evidence
     Dr. Lynn Alison McInnes, a psychiatry and human
genetics expert, testified that at the time of the crimes,
defendant was suffering from intrusive, uncontrollable thoughts
and psychosis, making him unable to unambiguously know the
nature and quality of his acts. She explained that various
disorders ran in defendant’s family and that his dysfunctional
family life and early childhood traumas — including the
abduction of his brother Steven, a threatened suicide by
defendant’s father, an uncle’s molestation of defendant, Steven’s
return to the family home and his untimely death caused by a
drunk driver, defendant’s father’s molestation of defendant’s
sisters — likely contributed to his mental disorders. In addition,
when defendant was 29 years old, an uncle with whom he was
living was murdered. Defendant attempted suicide on the first
anniversary of his uncle’s death. In the months leading up to
the crimes, defendant believed he was receiving messages about
an upcoming apocalypse. This, along with the fact that
defendant was walking around mumbling to himself at Cedar
Lodge the day before the murders, showed he was in a psychotic
state.
        2. Prosecution case
      Forensic psychiatrist Dr. Park Dietz opined that at the
time of his crimes, defendant understood the nature and quality
of his acts and knew his acts were wrong. Dr. Dietz based his
conclusion on defendant’s methodical and careful actions,
including preparing a crime kit, concealing his fingerprints,
choosing victims with no male companion, using a ruse to enter
the victims’ room, cleaning the crime scene, killing Juli in a
remote location, burning the Pontiac, and misleading
investigators. Dr. Dietz opined “[t]here [was] nothing about
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what [defendant] was doing that he didn’t understand.” Indeed,
defendant expressly admitted to Dr. Dietz that he knew at the
time of his crimes that his actions were both illegal and wrong.
      Having heard the foregoing evidence, the jury returned a
verdict finding that defendant was sane at the time of the
offenses.
      C. Penalty Phase
            1. Prosecution case
      The prosecution relied on two aggravating factors: (1) the
nature and circumstances of the crime, including evidence
regarding the impact the crime had on the victims and their
families; and (2) defendant’s other violent criminal activity,
including, most particularly, the murder of Joie Armstrong.
              a. Victim impact evidence
     Raquel, Silvina’s mother, testified that she met Carole
when Carole was an exchange student in Argentina in 1973.
They were like sisters and remained friends over the years. The
Sunds visited them in Argentina when Juli was one year old.
Silvina did well in school, loved the outdoors, was a competitive
roller-skater, and had a great relationship with her family.
Silvina went to visit the Sunds in December 1998 and planned
to return to Argentina in March 1999.
     When Raquel and her husband learned of Silvina’s
disappearance, they flew to the United States and remained
there until the FBI found Silvina’s remains. Raquel had
counseling, but the murder was hard on her marriage, and they
also lost their business because they were emotionally unable to
handle the work. Raquel missed playing, reading, and telling
jokes with Silvina.


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      Silvina’s father, Jose, testified that Silvina was tenacious
and adventurous. She earned good grades to convince him to
give his permission for her to go to the United States to visit the
Sunds. It was the first time he and Raquel had let Silvina go
anywhere by herself.        When he learned about Silvina’s
disappearance, he felt a heavy pain in his chest. When he
learned the FBI had discovered her body, he decided to throw
himself in front of a train, but his other daughter called,
interrupting his plan. He believed that Silvina, despite being
dead, had caused his other daughter to call him at that moment,
saving his life. Losing Silvina hurt him “down to [his] soul.”
      Carole C., Carole Sund’s mother, testified that Carole was
outgoing and was the family organizer for gatherings. They
lived near one another and were very close. Carole, who adopted
three children after she had Juli, taught parenting classes, was
active in adoption organizations, and was a court-appointed
special advocate for abused and neglected children. Juli, who
was Carol C.’s first grandchild, was outgoing, kind, and
thoughtful.
      After Carole and the girls disappeared, Carol C. waited by
the phone while her husband was in Yosemite. The discovery of
Carole and Silvina’s charred bodies was “devastating” — “[y]ou
don’t know how you’re going to survive.” For the next 10 days,
they were “desperately hoping” that Juli might still be alive, but
when they found Juli’s body, “You give up. This big hole is going
to be in your life forever.”
     Francis C., Carole Sund’s father, testified that he went to
Yosemite to help with the search after hearing about the
disappearance of Carole and the girls. He broke down after the
burned car was found, but they held out hope that Juli was alive,

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until Juli’s body was found. Carole was very special to him. She
was a daredevil who loved the outdoors, and Juli was a lot like
Carole. Juli had two wishes, to own and drive a car and to have
a boyfriend; she would never have either.
           b. Murder of Joie Armstrong
              i. Investigation of the Armstrong murder
      In July 1999, Joie Armstrong, who worked as an
instructor at the Yosemite Institute, was murdered in the
Foresta area of Yosemite.
      On July 21, at around 6:30 p.m., Armstrong called her
boss’s wife, Suzanna M., and said she was going to bring over
some equipment. Suzanna M. waited about an hour, but
Armstrong never arrived, so she went to Armstrong’s cabin in
Foresta to pick up the equipment. Armstrong’s white pickup
truck was there, and the two front doors to the cabin were open.
Suzanna M. knocked, then poked her head in and called for
Armstrong but got no answer. Suzanna M. thought this was
odd, but she did not think anything was wrong and went home.
The next day, Suzanna M.’s husband told her Armstrong did not
show up to work.
     On July 21, Armstrong was supposed to visit her friend in
Marin County at about 10:00 p.m. Armstrong never arrived,
and her friend called the police at about midnight.
      At 7:20 p.m. on July 21, a witness saw a blue-and-white
International Scout near Foresta. The next morning, he saw the
same vehicle parked nearby, this time with a man near it.
     Between 10:00 and 10:30 p.m. on July 21, Yosemite Park
Ranger Don Ramsey was driving toward El Portal when he saw
defendant standing next to a blue-and-white International


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                Opinion of the Court by Guerrero, C. J.


Scout with his thumb out. Ramsey stopped and defendant said
he was having car trouble. Ramsey drove defendant to his
Cedar Lodge home. Defendant seemed normal during the drive
and carried on a “lucid and cogent” conversation.
     The next morning, Yosemite Park Ranger Mark Harvey
received a missing person report concerning Armstrong. He
took two trips to Armstrong’s cabin and saw Armstrong’s truck
parked out front both times. On his first trip, he found both
front doors to the cabin open. He knocked on the doors and
called inside, but there was no answer. On his second trip, he
examined the truck and noticed luggage in the back. He checked
inside the house and saw signs that someone had been packing
a day pack. Harvey sought assistance from Yosemite National
Park’s search and rescue office. On the afternoon of July 22, the
search team discovered Armstrong’s body in a nearby creek.
     An FBI Special Agent who was called to the scene saw
Armstrong’s body near the bank of the creek, partially
submerged and headless. An hour or two after the body was
found, Armstrong’s head was found about 40 feet away. The
agent also found shoe prints and tire tracks in front of
Armstrong’s house and near Armstrong’s truck. He and his
team recorded the prints with plaster castings.
      A pathologist who conducted an autopsy testified that
there were abrasions and bruises all over Armstrong’s body,
incisions on her arm and hand that may have been defensive
wounds, and a large abrasion on the left side of her face. The
cause of death was exsanguination of most of the blood in the
body after suffering a deep cut across the throat. The wounds
to the neck were consistent with a person slitting Armstrong’s
throat and then decapitating her.

                                  18
                       PEOPLE v. STAYNER
               Opinion of the Court by Guerrero, C. J.


      On July 22, the same evening Armstrong’s body was
found, a National Park Service special agent saw defendant
driving a blue International Scout, hailed him, and told him he
was investigating a missing person report. Defendant agreed to
be interviewed at the station. During the interview, defendant
mentioned his International Scout was unique and he was the
only one in the Yosemite area who drove a vehicle like it. He
said he had car trouble the previous night and a park ranger
had given him a ride to Cedar Lodge where he worked. He
denied his vehicle was in the Foresta area the night before.
      A Cedar Lodge employee and resident testified that on the
evening of July 22, defendant sold him a VCR and television for
a very low price. He paid defendant only a portion of the price
for the items, and he never saw defendant at Cedar Lodge again.
     Defendant’s supervisor testified that defendant did not
usually miss work, but he did not show up on July 23 and never
returned to work. On July 23, defendant also closed his credit
union account.
              ii. Defendant’s confession to the Armstrong
                  murder
      As discussed above, FBI agents located defendant in
Wilton on July 24, 1999, and interviewed him in Sacramento.
The interview was audio recorded and transcribed, and the
prosecution played the relevant portion of the recording for the
jury. In defendant’s statement, he admitted that on the day of
the Armstrong murder, he went to Foresta carrying duct tape, a
large knife, and a .22 caliber handgun in his backpack. He was
walking near the creek because he had previously seen Bigfoot
there.



                                 19
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


      Defendant saw Armstrong and “it clicked” when he
discovered she was alone. He pointed his gun at her and forced
her into the house, duct-taped her hands behind her back, and
gagged her. He intended to take her to an isolated area and
sexually assault her. He walked her outside and put her in his
truck as she fought him. Defendant had driven only a few
hundred yards when Armstrong jumped out through the
window and ran. Defendant caught her and slit her throat
twice. She went limp.
        Defendant dragged Armstrong’s body, left it on the bank
of the creek, and returned to his truck but went back to
decapitate her and hide her body under some dry reeds. He
considered keeping the head as a trophy but, instead, placed it
in the creek. He said: “I don’t black out and do things, you know.
[¶] . . . [¶] I know what’s wrong, what’s right.” He said he
“[m]ost definitely” knew what he did was wrong, but “it’s kinda
like just a job, it’s something you have to do.”
              iii. Further investigation
      On July 25, 1999, the day after defendant gave the
foregoing recorded audio statement, he accompanied FBI agents
to the Armstrong crime scene and showed them where the knife
was located. On July 28, agents searched defendant’s vehicle
and found a roll of duct tape and a backpack. Inside the
backpack was a gun, a book about a serial killer, and a plastic
package of sunflower seeds with the corner torn off. The end of
the duct tape roll found in the car matched pieces of duct tape
found at the crime scene. The torn part of the sunflower seed
package matched a piece of plastic found at the crime scene.
     The shoe prints found at the scene of the murder matched
the sandals defendant was wearing at his July 24 interview.

                                  20
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


The tire tracks found were consistent with the mismatched tires
on defendant’s International Scout.
        2. Defense case
     Defendant argued that his mental disorders, exacerbated
by his difficult childhood, mitigated his crimes. He also
presented evidence of his good character, his remorse, and the
likelihood he would adjust to prison in a positive way.
           a. Evidence of defendant’s dysfunctional family
              background
       Defendant’s paternal aunt and cousin testified about the
stress in defendant’s family after Steven was abducted and how
upset defendant was after his uncle was murdered. The aunt
testified she loved defendant and wanted him to live.
     Sandra A., who used to interact daily with defendant’s
family, testified that defendant’s mother neglected her children.
Defendant’s close friend testified that defendant was visibly
emotional when he told her he had discovered his uncle’s body.
     Several witnesses testified about the effect Steven’s
abduction had on the family. One witness testified that
defendant prayed for Steven and cried when he talked about
him. After the abduction, defendant’s parents were so focused
on finding Steven that they neglected the other children.
     According to several witnesses, defendant was excited
when Steven came home, but the attention Steven received from
the media and their parents was hard on defendant. When
Steven died in a motor vehicle accident, defendant was
heartbroken, cried, and seemed “absolutely numb.”
     Defendant’s oldest sister testified she had mixed feelings
about defendant but that he was very important to her parents.


                                  21
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


Another sister testified that she loved defendant but they had a
difficult family life. Defendant’s youngest sister testified that
they were a happy family, and that defendant played with her
disabled son and made him happy. Defendant’s parents
testified that they loved defendant, visited him in jail
frequently, and wanted him to live.
            b. Evidence of defendant’s mental health problems
     Numerous witnesses testified about                   defendant’s
compulsive hair-pulling, troubling dreams,                headaches,
psychiatric problems, and obsession with Bigfoot.
      Dr. Silva evaluated defendant’s life history and testified in
detail about the various stressors he faced at different periods
in his life. He believed that, at the time of all four murders,
defendant was suffering from pervasive developmental disorder,
obsessive-compulsive disorder, various paraphilias, and a post-
traumatic-type stress disorder, which had a significant impact
on his ability to control himself. Dr. Silva did not think
defendant lost his ability to distinguish right from wrong.
      Dr. Fred Berlin, an expert on sexual disorders, believed
that defendant was in recent years “beginning to lose touch with
reality,” that he was under extreme mental or emotional
disturbance at the time of his crimes, and that he acted under
extreme duress “pushing on him towards engaging in [criminal]
activities.”
            c. Character evidence
      Numerous witnesses, including relatives, church friends,
school friends, teachers, and coworkers, described defendant,
using terms such as quiet, nice, kind, good, fun, introverted, a
loner, shy, respectful, a gentleman, honorable, well-mannered,
considerate, and polite. Some witnesses testified about the ways

                                  22
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


in which defendant was supportive and helpful. Others testified
that defendant was a loner in school but was a talented
cartoonist for the school newspaper and yearbook and was not
violent or aggressive toward anyone.
            d. Remorse
    During his interview in Sacramento on July 24, defendant
made some statements suggesting he felt remorse about his
crimes. The defense played the audio recording of these portions
of the interview for the jury. Defendant was also cooperative
and helpful during the walk-through of the crime scenes. He
wrote an apology letter to Juli and cried when talking about her.
      A federal public defender who met with defendant about
the Armstrong murder testified that defendant cried as he
discussed his crimes.      Defendant pleaded guilty to the
Armstrong murder and wrote a statement expressing remorse.
At sentencing, defendant apologized to Armstrong’s family
members. He wrote to the woman who had turned him in to the
authorities after recognizing his photograph on television,
telling her he held nothing against her.
            e. Positive prison adjustment
      Officers from the jails in Mariposa County, Fresno County,
and Santa Clara County testified that defendant was a polite,
respectful, and cooperative prisoner who caused no trouble when
being transported to and from court.
      Psychology professor Dr. Craig Haney testified as an
expert on prison adjustment. He believed defendant’s potential
for positive prison adjustment was excellent due to various
factors including his law-abiding behavior during much of his
life, his artistic ability, his willingness to accept responsibility
for his crimes, and his behavior while in jail.

                                  23
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


      Having heard the foregoing evidence, the jury returned a
verdict of death.
                        II. DISCUSSION
      A. Motion to Suppress Extrajudicial Statements
     Before trial, defendant moved to suppress his extrajudicial
statements, including the statements he made to the FBI on
July 24 and 25, 1999. He argued the statements were obtained
in violation of his Miranda rights and were coerced and
therefore not voluntary.
       At an evidentiary hearing, FBI Special Agent Rinek
testified that he and his colleagues located defendant at a resort
in Wilton on July 24, 1999. When they approached defendant,
he stood up and put his hands on his head. The agents
handcuffed defendant for safety reasons, told him he was not
under arrest, and said they wanted to interview him about a
recent, high-profile murder. Defendant agreed to be interviewed
at the FBI office in Sacramento. Defendant was then placed in
the front passenger seat of an FBI vehicle, with Rinek in the
driver’s seat. While Rinek was waiting for permission to depart,
he advised defendant of his Miranda rights. Rinek recorded
defendant’s answer, “I prefer not to talk now.”
      During the 90-minute drive to Sacramento, Rinek and
defendant engaged in casual conversation. They also talked
about some of Rinek’s past cases and about defendant’s brother’s
abduction. They did not discuss any of the crimes under
investigation. Once the group arrived in Sacramento, agents
again advised defendant of his Miranda rights, and defendant
waived those rights and gave a detailed confession. Defendant’s
confession was video recorded, and the recording was admitted
as evidence and played at the suppression hearing.

                                  24
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


        1. Miranda claim
           a. Trial court ruling
     The trial court denied defendant’s motion to suppress.
The court first found that because defendant was handcuffed
and seated in an FBI vehicle, he was in custody for Miranda
purposes when he spoke to Rinek in Wilton. Next, the court
considered whether Rinek’s conversation with defendant during
the ride to Sacramento violated defendant’s Miranda rights.
The court noted that Rinek gave a Miranda advisement in the
car and that defendant did not invoke his Miranda rights when
he responded, “I prefer not to talk now.” The court found that
Rinek read from an advice-of-rights form and wrote down
exactly what defendant said, including the word “now.”
“Consequently, because there is no evidence to the contrary, the
court finds that [defendant] did say, ‘I prefer not to talk now,’
simply meaning that [he] did not want to be interviewed [in
Wilton] but preferred to be interviewed at the FBI headquarters
in Sacramento.”
      The court further found that Rinek — who testified he had
no specific information about the Armstrong murder and did not
know the facts of the Sund-Pelosso case — did not ask about the
murders during the car ride. Instead, they talked about
backpacking, hiking, movies, and other generic things. Rinek
also spoke with defendant about the impact of his brother’s
abduction on the family. Because it appeared defendant had not
dealt well with the issues surrounding his brother, Rinek offered
him counseling services. The court ruled that this “simple give-
and-take conversation” did not constitute an interrogation in
violation of defendant’s Miranda rights.



                                  25
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


      The court next considered whether defendant’s Miranda
rights were violated during the interview in Sacramento. The
court summarized the circumstances, including the fact that
agents reread defendant his Miranda rights and had him sign a
waiver form, formally waiving those rights. After signing the
waiver form, defendant said he wished to be interviewed by
Rinek and proceeded to confess to his crimes.
       The court found: “There is no evidence that he did not
understand his Miranda rights. There is no evidence that Agent
Rinek employed any coercive tactic to obtain incriminating
statements. [¶] . . . [N]othing in the court’s view occurred in the
90-minute car ride which would have tainted the defendant’s
waiver in Sacramento. The facts tend to show that [defendant]
fully cooperated with the FBI agents from the outset and
expressed his willingness to speak to them. In short, defendant
waived his Miranda rights knowingly, voluntarily and
intelligently at the FBI headquarters in Sacramento.”
            b. Analysis
     Defendant contends the FBI violated his Miranda rights,
and therefore the trial court should have suppressed the
statements he made to the FBI.
               i. Defendant was in custody for purposes of
                  Miranda
     Defendant first argues that, irrespective of the agents’
assurances that he was not under arrest and was free to leave,
he was effectively in custody when he was first handcuffed at
the resort in Wilton. Notably, the trial court agreed with
defendant (and the People conceded below) that at least as of the
moment he was placed in handcuffs inside an FBI vehicle in
Wilton, he was in custody for Miranda purposes.

                                  26
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


      On appeal, the People contest the trial court’s in-custody
determination, arguing that defendant was handcuffed solely
for safety purposes and was told he could choose (1) whether he
would be interviewed at all and (2) the location of the interview.
We agree with the trial court that under the objective
circumstances — which included telling defendant the FBI
wanted to interview him about a high-profile murder, putting
defendant in handcuffs, and placing him inside an FBI vehicle
next to an FBI agent — a reasonable person would believe
defendant was “deprived of his freedom of action in [a]
significant way.” (Miranda, supra, 384 U.S. at p. 444; see
Stansbury v. California (1994) 511 U.S. 318, 323.) Thus,
defendant was in custody while sitting in the FBI vehicle, during
the ride to Sacramento, and while in Sacramento.
              ii. Asserted invocation of rights
     Defendant contends Rinek violated his Miranda rights by
talking with him during the car ride because he invoked his
Miranda rights and because the conversation tainted his
subsequent waiver of rights in Sacramento.
      In reviewing Miranda claims, we “accept the trial court’s
resolution of disputed facts and inferences, and its evaluations
of credibility, if they are substantially supported. [Citations.]
However, we must independently determine from the
undisputed facts, and those properly found by the trial court,
whether the challenged statement was illegally obtained.”
(People v. Boyer (1989) 48 Cal.3d 247, 263 (Boyer); accord, People
v. Hoyt (2020) 8 Cal.5th 892, 931.) We review Miranda claims
under federal constitutional standards (People v. Sims (1993)
5 Cal.4th 405, 440) and assess any errors under the beyond a



                                  27
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


reasonable doubt standard of Chapman v. California (1967)
386 U.S. 18 (Chapman).
      An invocation of Miranda rights must be unambiguous.
(See Berghuis v. Thompkins (2010) 560 U.S. 370, 382.) Here,
after first being read his Miranda rights, defendant responded,
“I prefer not to talk now” (italics added).3 This response, placed
in context, left the door open to speaking with police later, after
they arrived in Sacramento. (See People v. Riva (2003)
112 Cal.App.4th 981, 994 (Riva) [a defendant’s “statement he
did not want to talk anymore ‘right now’ clearly indicated he
might be willing to talk in the future”].) In other words, if
defendant invoked his Miranda rights at all, by its terms this
invocation barred interrogation for no longer than the duration
of the car ride to Sacramento.4
      Yet we need not decide whether defendant’s statement, “I
prefer not to talk now,” sufficed to foreclose any interrogation
during that limited time frame. Even assuming it did,


3
      Defendant argues that we should not rely on Rinek’s
“uncorroborated” testimony regarding his response to the
Miranda advisement. Defendant’s arguments essentially ask us
to reweigh the evidence, which we cannot do. (See People v.
Lindberg (2008) 45 Cal.4th 1, 27.) Further, the trial court’s
finding of what defendant said is supported by substantial
evidence, that is, by Rinek’s testimony and by a
contemporaneous notation Rinek made on the advice-of-rights
form.
4
      The People argue that “I prefer not to talk now”
constituted defendant’s waiver of his Miranda rights because
those words are best interpreted as a reaffirmation of
defendant’s expressed willingness to be interviewed in
Sacramento. We disagree. Defendant’s apparent willingness to
talk at a later time does not constitute a clear waiver of his
Miranda rights at the time he entered the car with Rinek.

                                  28
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


defendant made no incriminating statements to Rinek during
the car ride. Indeed, Rinek did not ask defendant anything
about the Sund-Pelosso murders. In short, the prosecution did
not use anything defendant told Rinek during the car ride to
Sacramento to establish defendant’s guilt, and, notably,
defendant does not point to any statement he made in the car to
Rinek that prejudiced him.
       Further, it does not appear that the conversation was part
of a strategy designed to wear defendant down emotionally, thus
making him more willing to confess. (See People v. Gurule
(2002) 28 Cal.4th 557, 602 (Gurule) [no evidence the officers’
“small talk overbore defendant’s free will”]; cf. Smith v. Illinois
(1984) 469 U.S. 91, 98 [noting the risk that authorities might
“wear down the accused and persuade him to incriminate
himself notwithstanding his earlier request for counsel’s
assistance”].)
      People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt), on
which defendant relies, is distinguishable. There, the police
detective had known the defendant for about 10 years. (Id. at
p. 158.) Without giving Miranda warnings, the detective talked
with the defendant about the homicide victim in the case the
detective was investigating. (Ibid.) The detective observed the
defendant “ ‘was softening up’ ” and continued the conversation
until the defendant indicated a willingness to discuss the
homicide. (Ibid.) Only at that point was the defendant advised
of his Miranda rights. (Id. at p. 159.) On this record, we
concluded (in dictum since we had already determined on
unrelated grounds that the judgment must be reversed) that the
officer  employed      a   “conversation-warning-interrogation
sequence . . . intended to elicit a confession” and that the


                                  29
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


statements should have been suppressed.             (Ibid.; see id. at
p. 161.)
     No analogous “clever softening-up of a defendant” was
employed here. (Honeycutt, supra, 20 Cal.3d at p. 160.) First,
unlike Honeycutt, defendant was read his Miranda rights before
the conversation took place. Second, here, unlike Honeycutt, the
casual conversation did not include a discussion of any of the
crime victims. Finally, although discussing Steven’s abduction
may have made defendant emotional, there is no indication that
Rinek was deliberately pursuing a “conversation-warning-
interrogation sequence . . . intended to elicit a confession.” (Id.
at p. 159.) As Rinek testified, he did not expect to be conducting
defendant’s interview once the group arrived in Sacramento,
and their conversation “was a friendly exchange between two
people that were kind of thrust together.”
      Moreover, the conversation about Steven’s abduction was
just one of many things discussed during the long drive, it was
unrelated to the four murders, and it was not likely to lead to an
incriminating response (see Rhode Island v. Innis (1980)
446 U.S. 291, 301).    Because of the widespread publicity
surrounding the abduction, it was also a natural subject of
discussion, as can be seen from the fact that the same subject
came up when Special Agent Alston interviewed defendant as a
potential witness, long before he was considered a suspect.
There is no indication that Rinek’s inquiry about the abduction
was different from Alston’s inquiry, or that it was part of a
softening up strategy analogous to the facts of Honeycutt.
Hence, the dictum in Honeycutt does not support defendant’s
argument.



                                  30
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


      Nor is this case like Brewer v. Williams (1977) 430 U.S.
387, where the defendant, who was a suspect in a child
abduction, was given Miranda warnings and his lawyer assured
him the police would not interrogate him while transporting him
to the police station where the lawyer was waiting for him. (Id.
at pp. 390–391.) While transporting the defendant, a detective
urged the defendant to disclose the location of the victim’s body
so that the victim could have a “ ‘Christian burial.’ ” (Id. at
p. 393.) The high court concluded the conversation was an
interrogation in violation of the defendant’s federal
constitutional right to counsel. (Id. at pp. 401, 406.) Here,
Rinek did not ask defendant about any of the victims, nor did he
ask defendant to lead him to evidence related to those crimes.
The comparison to Brewer is inapt.
     For the foregoing reasons, even assuming an effective
invocation, we find no prejudicial error. (Chapman, supra,
386 U.S. at p. 24.)
              iii. Waiver of Miranda rights preceding
                   questioning in Sacramento
      As noted, defendant’s initial response after being read his
Miranda rights was consistent with a preference to be
interviewed in Sacramento. Therefore, after defendant arrived
in Sacramento, the officers were permitted to ask again whether
he would be willing to waive his rights and give a statement.
(See Riva, supra, 112 Cal.App.4th at p. 994.) In Sacramento,
and prior to any questioning about the crimes, defendant was
again advised of his Miranda rights, and he voluntarily waived
them and signed the waiver form. He then asked to speak alone
with Rinek. Because the confession followed a voluntary waiver
by defendant of his Miranda rights (see People v. Combs (2004)


                                  31
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


34 Cal.4th 821, 845), we conclude the trial court did not err in
denying defendant’s Miranda claim.5
         2. Undue coercion
            a. Trial court ruling
     Concerning the question of voluntariness, the trial court
found no evidence that Rinek or any other agent “utilized any
form of coercion, promises of leniency, or deception in order to
obtain the statement from [defendant].” The court found that
the fact that defendant was “on the verge of crying” in the
interview room did not make his confession involuntary. The
court watched the confession video and reviewed the transcript
and found that although some interrogation techniques were
used, “nothing occurred to negate the finding that the
defendant’s statement was a product of his free will and choice.”
            b. Analysis
     Defendant argues his statement to the FBI was the
product of coercive interrogation techniques. We disagree.
     “It long has been held that the due process clause of the
Fourteenth Amendment to the United States Constitution
makes inadmissible any involuntary statement obtained by a
law enforcement officer from a criminal suspect by coercion.”
(People v. Neal (2003) 31 Cal.4th 63, 79.) “[T]he terms ‘coerced’
and ‘involuntary’ confessions . . . refer to confessions obtained by


5
      Defendant was also advised of his Miranda rights several
times the next day, when accompanying FBI agents to the
various crime scenes to locate evidence. Defendant does not
raise a distinct claim regarding those advisements and the
inculpatory extrajudicial statements that followed them.
Instead, he argues the July 25 waivers were tainted by the
events of July 24, 1999.

                                  32
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


physical or psychological coercion, by promises of leniency or
benefit, or when the ‘totality of circumstances’ indicates the
confession was not a product of the defendant’s ‘free and rational
choice.’ ” (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.)
“Voluntariness does not turn on any one fact, no matter how
apparently significant, but rather on the ‘totality of [the]
circumstances.’ ” (Neal, at p. 79.) When a defendant challenges
the voluntariness of a confession, the reviewing court applies an
independent standard of review (id. at p. 80), but the trial
court’s factual findings regarding the circumstances
surrounding the confession will be upheld if supported by
substantial evidence (People v. Massie (1998) 19 Cal.4th 550,
576).
     Defendant argues that the FBI agents — particularly,
Rinek6 — used subtle psychological techniques to wear him
down and lure him into confessing, and that such techniques
were so overbearing that his confession cannot be considered
voluntary. Defendant notes that, even before they were in the
FBI vehicle, Rinek asked him about his brother’s abduction.
Rinek continued to ask about the abduction during the ride to
Sacramento and presented himself as being experienced in the
field of child abduction offenses. Ultimately, defendant’s eyes
teared up. Rinek then used defendant’s emotional reaction as
an excuse for discussing the importance of “closure” for crime
victims, and he offered counseling to defendant so he could have
that “closure.” Defendant argues that Rinek tried to present
himself as an ally and set up an argument that defendant’s



6
     Special Agent John Boles participated intermittently in
defendant’s interrogation.

                                  33
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


victims also needed closure which only defendant’s confession
could provide.
     When the FBI agents and defendant arrived in
Sacramento, and after the second Miranda advisement,
defendant told Rinek that he was the victim of sexual
molestation when he was 11 years old. Rinek reassured
defendant that he was fundamentally a good person whose
actions were explainable based on all the problems he had faced.
When defendant revealed that his internal mental world was
“like a tennis match,” constantly volleying between thoughts of
“world peace” and thoughts of “kill[ing] every person on the face
of the earth,” Rinek told defendant that he has “taken control”
and “[t]oday is the beginning of the rest of your life.” He assured
defendant that it was not his fault that he had been abused.
Rinek added: “[D]on’t you think it’s time that we dealt with it
now and get rid of these demons . . . ? Doesn’t mean you’re a bad
person, it just means you’re a troubled person. Now, if you’ve
done bad things and you feel that society will ask you to pay for
those bad things, maybe that’ll happen, but in the end, . . . we’ll
both know we did what we thought was right, and we took
control and that’s the bottom line.”
     Defendant asserts Rinek also exploited his emotional
vulnerability during the Sacramento interview by repeatedly
urging him to disclose the details of his crimes, assuring him
that doing so was the right thing to do and would make him feel
better. For example, Rinek told defendant: “Do you realize that
I don’t think you’re a bad person and that even after all that
stuff you told me, I don’t feel any differently about you.” He
added that defendant was “gonna feel a lot of relief” “when we’re
done.” When defendant conceded that his chest hurt, Rinek


                                  34
                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


assured him that he was going to feel “good” and “peaceful,
probably a feeling you haven’t had in a long time.”
       Then, after defendant predicted he would be sentenced to
death, Rinek reassured him, saying: “I’ll be there for you as long
as it goes, as far as it goes, because I believe in you. I’d like you
to stop for a moment, Cary, and think about the fact that you’re
giving life, you’re giving life back, and you appear to me to be a
person that cares about that. You’re going to restore life that’s
been taken.”        Defendant argues Rinek minimized the
wrongfulness of defendant’s actions, saying: “I don’t think
there’s a person out there that can listen to what you’ve been
through in your life and not have some feeling of sorrow and
understanding for you. I personally believed when I met you
and we were riding in the car that you were an explosive, pent-
up ball of emotion, or you were a psychopath. I’m quite relieved
to know you’re not a psychopath and that you’re a good person.”
Rinek said defendant was a “good person” who was made to do
bad things by “things happening in you that you can’t control,”
and that he was “doing the hardest, bravest thing in your life,
and I’m honored that you trusted me to do this with.”
      Rinek also said, “We’ll make sure that you’re not living
with Bubba,” which defendant interprets as a promise of safe
housing in prison in exchange for his confession. Rinek also
said: “I’m gonna try and look after your family for ya. . . . You
remember what I said about your family in the car? They were
victims, too, and they’re about to be victimized again, aren’t
they?”
      Finally, Rinek said: “So do you realize here that you’re
holding the welfare of a lot of people in your hands, and when I
told you you have a gift to give, that’s the gift. If you give the

                                   35
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


gift to me or me and [Special Agent Boles] and allow us to
distribute what you’ve given us to bring people the closure and
the peace that you’ve never had to experience, then you’re
doing — you’re being a hero.” Rinek explained that a coward is
someone who does the right thing out of fear or to gain a benefit,
whereas a hero is someone who does the right thing simply
because it is right.
      Defendant asserts these statements, by placing extreme
psychological pressure on him, led to an involuntary confession.
We disagree.        “The courts have prohibited only those
psychological ploys which, under all the circumstances, are so
coercive that they tend to produce a statement that is both
involuntary and unreliable.” (People v. Ray (1996) 13 Cal.4th
313, 340 (Ray).) Urging a witness to confess by winning the
witness’s trust and appealing to the witness’s sense of morality
are not practices likely to produce an involuntary and unreliable
confession. Nor are investigators prohibited from expressing
compassion for someone they are interrogating, and they are
permitted to remind the subject of an interrogation of the
emotional and psychological benefits of confessing. “ ‘In terms
of assessing inducements assertedly offered to a suspect,
“ ‘[w]hen the benefit pointed out by the police . . . is merely that
which flows naturally from a truthful and honest course of
conduct,’ the subsequent statement will not be considered
involuntarily made.” ’ ” (People v. Tully (2012) 54 Cal.4th 952,
993 (Tully).)
      Defendant argues the FBI agents used promises of various
rewards to coerce his confession. Defendant focuses on Rinek’s
offer to obtain counseling for him and his assurance that
defendant would not be housed with anyone who was hostile
toward him. These assurances do not establish the sort of
                                  36
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


coercion that would render the confession involuntary. The offer
to get counseling was not a promise made in exchange for a
confession. Indeed, at the time Rinek made the offer during the
car ride to Sacramento, defendant had not suggested he was
involved in the crimes. Although the FBI agents believed
defendant might be involved in the Armstrong murder and
might be dangerous, Rinek did not know whether defendant was
to be interviewed as a witness or as a suspect.
     Likewise, any offer to obtain safe housing for defendant
was not conditioned on defendant’s confession or offered as a
reward for his confession. Although an offer of benefits in
exchange for a confession can be implied in some circumstances,
nothing about the offers made here suggests that they induced
defendant to confess. The other interrogation techniques —
expressing interest in defendant’s personal struggles,
presenting themselves as an ally, appealing to defendant’s sense
of morality, and reminding defendant of the relief he would feel
after confessing — did not render the confession involuntary or
unreliable. Significantly, defendant said he was willing to be
interviewed, the interview was not unduly prolonged or
confrontational, he was assured he was not under arrest, he was
offered food, drink, and breaks, and he declined treatment for
his chest pain, implying the pain was emotional, not physical.
     Defendant compares this case to People v. Hogan (1982)
31 Cal.3d 815, where this court condemned police questioning
that “repeatedly suggested to [the defendant] that he was
unquestionably guilty and that he suffered from mental illness.”
(Id. at p. 843.) In addition, the defendant in Hogan was “sobbing
and crying” during the police interview, “vomiting at times,” and
police used “manufactured evidence of his guilt” to wear down
his “will to resist.” (Id. at p. 842.) Nothing like that occurred
                                  37
                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


here. Investigators in this case did not repeatedly accuse
defendant of being guilty; rather, defendant readily admitted
his guilt. The FBI agents merely encouraged defendant to tell
the details of his crimes and thus to unburden his conscience,
and defendant did so. In addition, Rinek never suggested to
defendant that he was mentally ill; instead, he expressed
understanding regarding defendant’s difficult past and offered
to obtain counseling for him.
      In sum, the trial court did not err in finding defendant’s
confession to be voluntary and in denying defendant’s
suppression motion on that ground. Accordingly, we find no
violation of defendant’s state or federal constitutional rights.
         3. Exclusion of expert testimony regarding
            interrogation techniques
      In a related argument, defendant contends the trial court
erred by refusing to hear the testimony of Dr. Richard A. Leo,
an expert in interrogation techniques. The defense sought to
offer Dr. Leo’s testimony in support of its motion to suppress
defendant’s confession. At the hearing on the admissibility of
this testimony, defendant argued the evidence rebutted Rinek’s
testimony that he did not employ any special interrogation
techniques when interviewing defendant. The trial court
determined the professor’s expert opinion was not relevant and
would not assist the court because the court had watched the
video and read the transcript, and “[i]f somebody is simply going
to tell me that this is an investigative technique [¶] . . . [¶] . . .
th[at] type of testimony would not assist the court.”
      Defendant contends the trial court’s ruling deprived him
of a fair trial and a fair appeal, in violation of multiple
constitutional provisions. We conclude the court acted within

                                   38
                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


its discretion in declining to hear defendant’s expert evidence.
(See People v. McDowell (2012) 54 Cal.4th 395, 425–426
(McDowell) [describing abuse of discretion standard of review].)
The determination whether a recorded confession is voluntary
or coerced is one that courts can, and often do, make without the
assistance of expert testimony.
      In condemning the trial court’s adoption of what he
characterizes as a “per se rule of exclusion,” defendant relies on
People v. Linton (2013) 56 Cal.4th 1146, but the case is not
helpful for defendant’s position. In Linton, the defendant sought
to present Dr. Leo’s testimony regarding interrogation
techniques to a jury to assist it in evaluating the truthfulness of
the defendant’s admissions. (Id. at pp. 1179–1181.) This court
held that the trial court did not abuse its discretion by excluding
the evidence under Evidence Code section 352. (Linton, at
pp. 1180–1182). In reaching this conclusion, we explained that
“the trial court . . . did not exclude the testimony of Dr. Leo
based on a conclusion that this type of expert testimony was
inadmissible per se” and instead had simply regarded it as
unhelpful in light of the specific facts before it. (Id. at p. 1183.)
      Here, defendant sought to admit the testimony of Dr. Leo
that he identified “a number of very well established
interrogation ploys” that were used during defendant’s
interrogation. However, like the trial court in Linton, the court
determined that Dr. Leo’s opinion would not be helpful
considering the evidence before it. Indeed, without the expert’s
testimony, the court found “that there were interrogation
techniques employed during the course of [defendant’s]
interview.” Thus, the trial court in the instant matter did not
exercise a per se rule of exclusion. It merely determined that
Dr. Leo’s testimony would not be useful. And the court had
                                   39
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


discretion to decide whether expert testimony would assist it in
resolving the voluntariness question, and we defer to its exercise
of that discretion. (See McDowell, supra, 54 Cal.4th at pp. 425–
426.)
     Moreover, despite the court’s finding that interrogation
techniques were used in interviewing defendant, it nevertheless
concluded those techniques did not render defendant’s
confession involuntary.
     Accordingly, the trial court did not abuse its discretion in
refusing to hear the testimony of Dr. Leo, and for the same
reason, the court did not violate defendant’s state or federal
constitutional rights.
     B. Arrest Without Probable Cause
     Defendant also moved to suppress his confessions
pursuant to section 1538.5, alleging that his arrest in Wilton
was unsupported by probable cause, and that his subsequent
confession was therefore the fruit of an unlawful arrest. The
trial court denied the motion without holding an evidentiary
hearing, relying on a stipulation by the parties to the facts
stated in the parties’ moving papers. These stipulated facts
generally correspond to the facts described in part I.C.1.b.i.,
ante, regarding the evidence gathered during the investigation
of the Armstrong murder. But the stipulated facts did not
include the fact that defendant closed his credit union account.
In addition, the stipulated facts noted that the tire treads on
defendant’s International Scout vehicle reflected two different
tire brands and were consistent with the mixed-brand tire
tracks found at Armstrong’s house. Finally, the stipulated facts
conceded that defendant was expressly told he was not under



                                  40
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


arrest, a status that changed only after defendant gave his
confession.
        1. Trial court ruling
     The trial court determined that defendant was not under
arrest when he was detained in Wilton, and that he voluntarily
agreed to travel to Sacramento with the FBI agents. The court
also said that even assuming defendant was under de facto
arrest, the stipulated facts constituted probable cause to arrest
him in connection with the Armstrong murder. The court
explained: “[T]he last contact that was had with Joie Armstrong
was on July 21st at approximately 6:30 [p.m.] when apparently
there was some contact with her in this area of Yosemite
National Park, Foresta. [¶] . . . Now, on the same evening,
July 21st, a park [employee] . . . told authorities that he had
seen a white over light blue International Scout in the area of
Armstrong’s home at approximately 7:30, which would be
approximately one hour after she was last heard from. [¶]
Another park employee . . . told authorities he had picked up a
hitchhiker on the same evening, July 21st, between
approximately ten and 10:30 on Highway 140 outside the park
and approximately three miles from the Foresta scene where
Ms. Armstrong was found. [¶] The ranger told the investigators
that the male hitchhiker was standing out by a white over light
blue International Scout which he said had broken down, and
that agent or ranger agreed to drive the unidentified hitchhiker
to Cedar Lodge, where he lived.
      “Now, the next evening was July 22nd. . . .        [T]he
defendant . . . then came to the Yosemite ranger station to be
interviewed. [¶] And during the interview, the defendant
denied that he was ever in the area of Foresta on July 21st, the


                                  41
                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


day before. But apparently he said he had had mechanical
difficulties with his International Scout while traveling on
Highway 140 several times that day, that he had owned that
particular vehicle for approximately ten years, that it was
somewhat unique. He was the only person who drove it. He
admitted that his Scout had broken down coming out of
Yosemite Valley on July 21st, and he admitted that he was given
a ride by the ranger to his residence at the Cedar Lodge. And
prior to leaving that interview on the 22nd, he told the
authorities, ‘If you have any further questions for me, you can
contact me at Cedar Lodge on the 23rd,’ which was the next day.
      “Now, during the time that [defendant] was being
interviewed on the 22nd at the ranger Yosemite station, agents
took photographs of tires of his vehicle. And the next day on the
23rd they were compared to the tire sketches that were made of
the four tire tracks located at the Foresta crime scene. The
agent found that the defendant’s tires, including the mixed set
of [tire] brands on the vehicle, were consistent with the tracks
found at Foresta. Based upon that, the agents from the FBI —
and this is a reasonable conclusion — wanted to relocate and
contact the defendant at Cedar Lodge to further interview him.
And they were advised that he was not there, that he had failed
to appear for work. [¶] The manager indicated that [defendant]
had never failed to appear for work for at least a year and a half.
Another employee they spoke to said he never failed to appear
for work for at least three years, and they were also told that the
night before, which is the night . . . of the interview at the ranger
station wherein he spoke with the agents, that night he had
been selling some of his personal property, to wit: a television
set and a VCR.


                                   42
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


       “Now, based upon those facts, the issue is are those facts
sufficient for a temporary detention, or are they sufficient for a
detention which might be prolonged over and above a temporary
detention by further investigation? And are they sufficient[,] in
fact probable cause[,] to issue an arrest warrant or to make an
on-view arrest based on probable cause? [¶] . . . [¶] In the
court’s view this custody is akin at the very minimum to a
detention for further investigation. And this happens all the
time in the field where people are detained for further
investigation as to a robbery, a burglary, a murder, a rape, and
they are brought from one location to another location for
purposes of an in-field identification for purposes of an
interview. [¶] . . . [¶] Now, it is true that a detention can
become a de facto arrest. I will say in this particular case that
if I were a magistrate or a judge and the FBI or police officials
had come to me with an affidavit in support of an arrest
warrant, and the affidavit in question recited the facts that I
recited for the record, in my view those facts would be sufficient
probable cause to issue a warrant for his arrest. [¶] . . . [¶] The
court finds that even if it would be held that this was more than
a temporary detention for investigation, that in the court’s view
there was sufficient probable cause to arrest the defendant. For
that reason the motion to suppress his statement as a product
of an illegal detention or arrest is ordered denied.”
         2. Analysis
            a. De facto arrest
      When defendant was first handcuffed in Wilton, and again
while he was being interviewed, FBI agents told him he was not
under arrest and was free to leave. Defendant sat in the front
seat of the FBI vehicle, not in the back seat where arrestees


                                  43
                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


would typically be placed. But defendant asserts that once he
was handcuffed, he was under de facto arrest because he was
not at liberty to go about his business. (See Kaupp v. Texas
(2003) 538 U.S. 626, 629 [“A seizure of the person . . . occurs
when, ‘taking into account all of the circumstances surrounding
the encounter, the police conduct would “have communicated to
a reasonable person that he was not at liberty to ignore the
police presence and go about his business” ’ ”]; see also Boyer,
supra, 48 Cal.3d at pp. 267–268.) Like the trial court, we need
not decide whether defendant was under de facto arrest, because
the stipulated facts provided probable cause for the FBI agents
to arrest defendant as soon as they contacted him.
            b. Probable cause
      “When the seizure of a person amounts to an arrest, it
must be supported by an arrest warrant or by probable cause.
[Citation.] Probable cause exists when the facts known to the
arresting officer would persuade someone of ‘reasonable caution’
that the person to be arrested has committed a crime. [Citation.]
‘[P]robable cause is a fluid concept — turning on the assessment
of probabilities in particular factual contexts. . . .’ [Citation.] It
is incapable of precise definition. [Citation.] ‘ “The substance of
all the definitions of probable cause is a reasonable ground for
belief of guilt,” ’ and that belief must be ‘particularized with
respect to the person to be . . . seized.’ ” (People v. Celis (2004)
33 Cal.4th 667, 673 (Celis).) The trial court’s application of the
law to the facts of the case is subject to independent review.
(People v. Woods (1999) 21 Cal.4th 668, 673–674; People v. Price
(1991) 1 Cal.4th 324, 409.)
      We conclude the probable cause standard is met here in
light of the following circumstances:              (1) Armstrong was


                                   44
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


murdered in a very remote location, in a small community of
rustic cabins accessible only by a windy one-lane service road;
(2) a witness saw a vehicle matching defendant’s unique blue
and white International Scout parked in the same area about an
hour after the murder occurred; (3) defendant admitted to
hitchhiking a few miles from where the murder occurred, about
four hours after the murder; (4) the tire treads on defendant’s
International Scout came from two different tire brands and
were consistent with the mixed-brand tire tracks found at the
murder scene; (5) on the same evening defendant was
interviewed by park rangers about Armstrong’s murder, he sold
valuable personal items at low prices; and (6) the day after this
same interview, defendant did not show up for work despite
reports that he had never before failed to do so.
      Those facts are enough to provide a reasonable ground for
believing that defendant was involved in the murder of
Armstrong and guilty of a crime. They suggest he was parked
at Armstrong’s remote house near the time she was murdered
and that he fled with no intent to return after being questioned
by park rangers. (See People v. Mims (1992) 9 Cal.App.4th 1244,
1249 [“An inference that an individual is engaging or has just
engaged in criminal conduct may be drawn where that
individual, knowing that police are approaching, flees or
engages in other activity indicative of an effort to avoid
apprehension or police contact”]; In re Rafael V. (1982)
132 Cal.App.3d 977, 983 [“flight can constitute evidence of
consciousness of guilt which can be coupled with other relevant
facts in determining probable cause”].) Here, the pieces of
circumstantial evidence implicating defendant are mutually
reinforcing, and taken together, they are sufficient to give the
FBI agents probable cause to arrest defendant as soon as they

                                  45
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


contacted him in Wilton.7 And because the agents had probable
cause to arrest defendant, doing so by way of a de facto arrest
did not violate his state or federal constitutional rights.
     All the cases defendant cites involved situations in which
the police possessed less inculpatory evidence than the police
possessed in this case. (See Hayes v. Florida (1985) 470 U.S.
811, 812 [the defendant and 30 to 40 other men “generally fit
the description of the assailant,” and the pattern on the soles of
his shoes matched shoe prints found near the victim’s porch];
Boyer, supra, 48 Cal.3d at p. 263, fn. 6 [“police suspicions rested
principally on the ‘long shot’ suggestion of [another suspect] that
[the] defendant might be the killer because he had done
gardening work for the [victims], owed them money, often
carried a sheath knife, was violent when drunk, and had
suddenly begun calling [the other suspect] after being out of
touch for several months”]; People v. Gonzalez (1998)
64 Cal.App.4th 432, 438–440 [two men, one Black and one
Hispanic, had robbed a liquor store; the defendant was


7
       Defendant suggests that the three FBI agents who first
contacted him in Wilton may not have been informed of the
evidence implicating him and that those agents had no basis for
making an arrest. (See Celis, supra, 33 Cal.4th at p. 673
[“Probable cause exists when the facts known to the arresting
officer would persuade” (italics added)].) The stipulated facts
suggest that at least Hittmeier, who was the supervisor, and
probably Boles, were informed about the Armstrong murder and
investigation. Indeed, Boles, who handcuffed defendant, had
requested assistance from the county sheriff’s department,
describing defendant as “a possible [section] 187 [murder]
suspect.” Rinek, who drove to Wilton in a separate vehicle with
defendant and testified he did not know whether defendant was
to be interviewed as a witness or a suspect, may not have had
the same information as the other agents.

                                  46
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


Hispanic, and nine days after the robbery, he was riding as a
passenger in a car linked to the robbery].)
     C. Jury Selection Issues
     Defendant     argues      the     court   improperly   granted
prosecution challenges for cause and improperly denied defense
challenges for cause. We disagree.
         1. Legal principles
      A criminal defendant has the right to an impartial jury.
(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.) But
in a capital case, a prospective juror’s abstract views about the
death penalty, whether in support or opposition, do not
necessarily indicate that the prospective juror is partial or
biased, for a person might disagree with a particular law but
still be able to put those views aside and apply the law in a
specific case in an impartial manner. “A [person] who opposes
the death penalty, no less than one who favors it, can make the
discretionary judgment entrusted to him by the State and can
thus obey the oath he takes as a juror.” (Witherspoon v. Illinois
(1968) 391 U.S. 510, 519.) Accordingly, “[a] trial court should
only dismiss a prospective juror for cause if the prospective
juror’s views on the death penalty would ‘ “prevent or
substantially impair” ’ that person from performing the duties
of a juror.” (People v. Silveria and Travis (2020) 10 Cal.5th 195,
246 (Silveria and Travis).) The prospective juror’s bias “need
not be demonstrated with unmistakable clarity”; rather, “the
trial court need only be left with a definite impression that the
prospective juror is unable or unwilling to faithfully and
impartially follow the law.”           (People v. Thompson (2016)
1 Cal.5th 1043, 1066.)



                                  47
                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


       “In reviewing the trial court’s determination, we apply a
‘rule of deference’ [citation] based on the trial court’s ability to
assess the demeanor and credibility of the prospective witness.”
(People v. Capistrano (2014) 59 Cal.4th 830, 859 (Capistrano).)
“During voir dire, jurors commonly supply conflicting or
equivocal responses to questions directed at their potential bias
or incapacity to serve. When such conflicting or equivocal
answers are given, the trial court, through its observation of the
juror’s demeanor as well as through its evaluation of the juror’s
verbal responses, is best suited to reach a conclusion regarding
the juror’s actual state of mind. [Citation.] ‘ “ ‘There is no
requirement that a prospective juror’s bias against the death
penalty be proven with unmistakable clarity. [Citations.]
Rather, it is sufficient that the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully
and impartially apply the law in the case before the juror.’ ” ’
[Citation.] . . . ‘Thus, when there is ambiguity in the prospective
juror’s statements, “the trial court, aided as it undoubtedly [is]
by its assessment of [the venireman’s] demeanor, [is] entitled to
resolve it in favor of the State.” ’ ” (People v. Jones (2012)
54 Cal.4th 1, 41; see People v. Mataele (2022) 13 Cal.5th 372,
395 (Mataele).)8 We affirm if substantial evidence supports the
trial judge’s determination. (People v. Baker (2021) 10 Cal.5th
1044, 1085–1086; People v. Amezcua and Flores (2019) 6 Cal.5th
886, 906; People v. Spencer (2018) 5 Cal.5th 642, 660–661.)




8
      We decline defendant’s request that we reconsider our
holdings regarding appellate court deference to the trial court’s
determination.

                                   48
                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


         2. Prosecution challenges for cause
            a. Prospective Juror Linda A.
      Prospective juror Linda A. indicated on her juror
questionnaire that she was “[a]lways against” the death penalty
and her religious beliefs might “[s]omewhat” impact her decision
as a juror in a death case. The court asked her: “[I]n all cases
where you might be asked to make that decision, death or life in
prison without the possibility of parole, because of your religious
beliefs [would you] automatically vote against the death penalty
and vote to impose life in prison without the possibility of
parole?” Linda A. answered: “I would vote that way.” The court
asked: “Would it be automatic?” Linda A. answered: “Yes.” The
court then asked: “[C]an you ever imagine yourself in a case of
this type where somebody is charged with three counts of
murder, with numerous special circumstances alleged to be true,
can you ever imagine yourself voting for death?” Linda A.
answered: “I don’t believe so.” The court continued: “Would
that again be automatic that you would vote for life in prison
without the possibility of parole?” Linda A. answered: “Yes.”
The court asked whether that was because of her religious belief,
and she answered: “Yes.”
      Defense counsel asked Linda A. whether her personal
beliefs were so strong that they would prevent her from
following the law. Linda A. said: “The law, no.” Defense counsel
then said: “All we need is to know whether or not you could go
into this case open to both penalties without committing yes,
you’d always do this, you’d always do that.” Linda A. answered:
“I can’t say absolutely that I would not or could not be
swayed. . . . [¶] . . . [¶] I wouldn’t want to. I’ll put it that way.”



                                   49
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


      During the prosecutor’s questioning, Linda A. reiterated
that she was against the death penalty and did “not have the
moral right to take another person’s life.” She stated that
“[t]aking a life is immoral and it’s barbaric.” When asked
whether she could fairly consider the death penalty rather than
life in prison without the possibility of parole, she said: “I can’t
honestly say I wouldn’t go with the majority [¶] . . . [¶] . . .
because I wouldn’t want to be the only one on the jury to say ‘no’
if it turned out that they were all staring at me in the end.” The
prosecutor reminded her that the parties are entitled to her
personal view without concern for the views of other jurors. She
then said: “[S]ay, for instance, the evidence showed that he was
totally guilty and that he did these crimes, having not been in
that situation, having not seen that type of evidence, if it
happened right this moment, I would probably say I don’t
believe in the death penalty. Having seen all the evidence later,
I don’t know.”
      The prosecutor challenged Linda A. for cause, and the
court excused her, stating that “her state of mind” was that she
would not consider the death penalty “based on biblical and
moral reasons” and that the court was “convinced” based on its
own questioning of Linda A. that “her views on capital
punishment would prevent or substantially impair the
performance of her duties as a juror in accordance with the
instructions and her oath.”
      We conclude the court did not err in dismissing Linda A.
for cause. Linda A. stated twice that she would automatically
vote against the death penalty, in favor of life in prison, due to
her religious beliefs. However, she also told defense counsel that
she could “follow[] the law” despite her personal beliefs.
Further, she told defense counsel that she “wouldn’t want to” be
                                  50
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


swayed by other jurors to vote for the death penalty. Later,
Linda A. reiterated she was against the death penalty because
“taking a life is immoral and it’s barbaric.” Considering the
ambiguous responses Linda A. provided, the trial court was in
the best situation to assess her credibility. (See Mataele, supra,
13 Cal.5th at p. 395; People v. Jones, supra, 54 Cal.4th at p. 41.)
In such situations, when the prospective juror’s comments are
equivocal or conflicting, the trial court’s determination of that
person’s state of mind is binding. (People v. Clark (2011)
52 Cal.4th 856, 895 (Clark).) Against this background, the
record supports the court’s decision to excuse Linda A. for cause.
            b. Prospective Juror Ellen R.
      Prospective   juror    Ellen R.    indicated        on   her   juror
questionnaire that she was opposed to the death penalty. In
response to defense counsel’s questioning, she stated she was
90 percent against the death penalty but would be open to it in
an “extreme case” such as “Hitler” or a person who “committed
continual murders.” She said she would “keep[] [her] mind open
to both death and life until after [she had] heard all the
evidence.”
       The court asked Ellen R. if she would automatically vote
for life in prison, and she responded: “That’s a hard one. I don’t
know. I would — I would say I would tend to go for life versus
death [¶] . . . [¶] as a general rule.” Ellen R. said she was
inclined not to vote for death for someone like defendant on the
ground that he was insane. The court asked if she could see
herself voting for death in a case like this, and she answered,
“No.” She added: “Given the information or the circumstances
of the deaths, I would, in my personal opinion, . . . feel that if
this person did these things, he would not be legally of sound


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mind. I don’t think anyone could commit those crimes and be
sane.” The court then asked: “[B]ased upon your state of mind,
your background, your philosophy, your feelings about the
penalty, in a case of this type . . . , [suppose] you found the
defendant is guilty, you found him to be legally sane at the time,
you’ve heard the evidence presented to you by the defense, by
the People as it bears upon this issue of penalty or punishment,
could you, as an individual, vote death?” Ellen R. answered:
“Yes.”
       Next, when questioned by the prosecution, Ellen R. agreed
that based on the crimes alleged in this case, she would not want
the case to reach the penalty phase, and she would “have a
tendency to want to find [defendant] insane in the sanity phase
of trial.” In addition, when asked whether, aside from extreme
cases like that of Hitler, she could envision the type of crime that
would warrant the death penalty, she said: “No. . . . [I]f
someone kills someone, I don’t think justice is to kill the person
in return.”
      The prosecution challenged Ellen R. for cause, and the
court excused her, stating “she’s been fairly unequivocal in the
sense that she strongly opposes the death penalty. . . . [¶] I
think she’s committed to a position almost to the point where
she doesn’t almost want to even face the prospect and where she
might in fact consider penalty or punishment in the sanity phase
just to preclude her from having to make that decision. . . . I
think she is substantially impaired as to this penalty issue.
So, . . . the challenge for cause will be granted.”
     We conclude the court did not err in excusing Ellen R. for
cause. Ellen R. was consistent in saying that she was 90 percent
opposed to the death penalty and would vote for it only in an

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“extreme case” such as “Hitler” or a person who “committed
continual murders.” She also said she would be inclined to find
defendant insane at the sanity phase in part to avoid voting in
favor of death. Although Ellen R. also said that if she “found the
defendant is guilty, [and if she] found him to be legally sane at
the time,” she “could” “vote death,” her answer must be placed
in the context of her statements that (1) she would find
defendant to be insane in order to avoid having to vote for death,
and (2) she would only vote for death in an “extreme case” such
as “Hitler” or a person who “committed continual murders.” At
best, Ellen R.’s responses were equivocal and conflicting, much
like Linda A.’s responses. In such circumstances, we defer to
the trial court’s determination of that potential juror’s state of
mind. (See Clark, supra, 52 Cal.4th at p. 895.) Thus, we
conclude the record supports the court’s decision to excuse
Ellen R. for cause.
            c. Prospective Juror Rebecca M.
      On her juror questionnaire, prospective juror Rebecca M.
said: “I believe I don’t have the right to take someone’s life.”
She also checked the box saying she was “[a]lways against” the
death penalty and “will advocate for life without possibility of
parole in the case of multiple murders.” During questioning by
the court, Rebecca M. said that “for personal reasons and for
religious reasons” she didn’t “believe in the death penalty.”
When asked if she “would . . . automatically vote against the
death penalty,” she said: “I would vote for [the] death penalty
as a last resort. I think I would automatically vote for life
without parole.” The court then reviewed the basic structure of
a capital trial and asked her whether she “would . . .
automatically vote against the death penalty and really not
listen to what the People might offer.” She responded: “I think
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I may be inclined to vote for life without parole.” When asked
the same question yet again, she said: “I would go by the
evidence and what the court and what the law says.” The court
then told her the penalty would be her decision, not the court’s,
to make, and she said: “I think that based on the evidence and
everything, I would vote for . . . life without parole.” She added:
“I do not think I have the right to take anybody’s life.”
       When questioned by defense counsel, Rebecca M.
confirmed she preferred life imprisonment and “would consider
[the] death penalty as a last resort.” When counsel asked if that
meant she could consider the death penalty, she said: “I could
consider it, yes.” When questioned by the prosecution, she said:
“If I vote [for] death, I will have to — it will take a toll on me
emotionally — [a] long-term effect on me.”
      The prosecution challenged Rebecca M. for cause, and the
court excused her, stating, “I don’t even think this is close.” The
court believed it was “clear . . . that she has an inability
emotionally, and perhaps religiously, to ever consider
realistically imposing the death penalty. And consequently, I
think she is impaired. The challenge for cause is granted.”
      We conclude the court did not err.            Rebecca M. could
“consider” imposing the death penalty and would be willing to
vote for it as a “last resort,” but she was (1) “[a]lways against”
it, (2) would suffer a long-term, emotional toll from casting a
vote for death, and (3) thought she “would automatically vote for
life without parole.” It is apparent from these responses that
Rebecca M. would not be able to put aside her personal views
and decide the penalty question based solely on the evidence
presented in court. The record supports the court’s decision to
excuse Rebecca M. for cause.

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            d. Prospective Juror Paul S.
      Prospective juror Paul S. indicated on his juror
questionnaire that he was “[a]lways against” the death penalty
and that the death penalty was imposed “[t]oo often,” but he also
wrote: “I’m completely capable of following the laws of the State
of California and render[ing] any verdict appropriate.” In
response to the court’s questioning, he said he was not in favor
of the death penalty “[a]s an abstract notion.” He added: “I
haven’t got to a point in my life yet where I could be party to
killing somebody for anything. I mean, punishment is one thing;
but in my mind, I look at it as vindictive, not so much as
punishment. You know, I understand there [are] bad people in
this world, and I want them kept away from me, but I don’t feel
it’s necessary to kill them.” Paul S. said he would not make a
decision “automatically,” but when asked whether he “could . . .
ever envision [himself] . . . saying, ‘I vote death,’ ” he answered:
“I don’t think I can envision myself saying that.” He reiterated
that he “could follow the law,” and when asked whether he could
“vote death” after hearing the evidence and concluding that “this
case merits the most serious penalty that can be imposed,” he
answered: “Yes.”
      In response to defense counsel’s questions, Paul S. said: “I
think I can . . . listen to evidence and testimony and make a
decision that is impartial.” In response to questioning by the
prosecution, Paul S. said: “The judge earlier said that if all
these scenarios take place, and [if] you get to the end and you
determine that the most stiffest penalty is determined, and the
death penalty is the most — that’s the legal determination.”
The prosecution asked, “[W]ouldn’t you always want to go L-
WOP [life without parole] if it’s merely your choice?” Paul S.
answered: “I guess to answer your question, I am not sure. I

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know that my beliefs are anti death penalty.” Asked whether
his beliefs would interfere with his “ability to realistically
consider [the] death penalty in a case like this,” Paul. S.
responded: “I would hope that they wouldn’t, but I cannot
answer that question, honestly.”
      The court described the case and asked: “In a case of this
type, would you always vote against the death penalty?” Paul S.
answered: “You know, my gut reaction is I would, yes.” After
the court again explained what it needed to know, Paul S. said:
“As I sit here today, knowing what I know about this case, that
the case proceeds to the penalty phase, I can’t envision myself
voting for the death penalty.”
      The prosecution challenged Paul S. for cause, and the
court excused him, stating, “Now, there is a classic example as
to the fact you don’t [make] any headway. We could be with him
all afternoon, and we wouldn’t make any headway. The last
answer he gave is good enough for me under the law that is a
disqualifying answer, and under the law he was substantially
impaired.” After further discussion, the court stated that it
believed, based on Paul S.’s responses as a whole, that he was
“impaired” in that he “would not in any circumstance impose the
death penalty.”
      The court did not err in dismissing Paul S. for cause.
Paul S. made a few statements that, taken in isolation,
suggested he could put his views in opposition to the death
penalty aside and evaluate defendant’s case based on the
evidence and the law. However, he also made clear that he
strongly favored a penalty of life in prison over death, and
although he “hope[d]” his beliefs would not interfere in his
ability to consider the death penalty, he said he could “honestly”

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not “answer that question.” He twice said he could not see
himself voting for death. Even defense counsel commented:
“[U]pon further questioning, I could probably get him to say he
didn’t really mean what he said to the court in the last answer.
We could go on and on.” In this sense, Paul S.’s responses
coincide with the high court’s observation that “many veniremen
simply cannot be asked enough questions to reach the point
where their bias has been made ‘unmistakably clear’; these
veniremen may not know how they will react when faced with
imposing the death sentence, or may be unable to articulate, or
may wish to hide their true feelings.” (Wainwright v. Witt (1985)
469 U.S. 412, 424–425.) “Even when the record contains
equivocal or ambiguous responses, ‘there will be situations
where the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially
apply the law.’ ” (People v. Erskine (2019) 7 Cal.5th 279, 299,
quoting Witt, at pp. 425–426.) Paul S. was just such a
prospective juror, and the record supports the court’s decision to
excuse him for cause.
         3. Defense challenges for cause
      Before we address defendant’s arguments that the trial
court erred in denying his challenges for cause to jurors and
prospective jurors, we note a recurring feature in these for-cause
challenges. Specifically, defense counsel asked prospective
jurors to assume they had found defendant guilty of the charges
at issue in this case, and — without knowledge of mitigating
facts or instruction on the law — to state whether they would
lean in favor of the death penalty. When asked to opine in the
abstract about the appropriateness of the death penalty for
someone who committed three murders — with two of the
victims being children, including one child who was repeatedly
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sexually assaulted and kidnapped — many prospective jurors
responded they would lean in favor of death. The defense
challenges for cause were all based, at least in part, on the
prospective juror’s response to this standard line of questioning,
with defense counsel arguing that defendant could not have a
fair penalty phase trial if the members of the jury leaned in favor
of death before the trial even began.
      If we were to accept defendant’s argument that jurors are
disqualified in such circumstances, it could have incongruous
consequences: the more shocking the facts the jurors are asked
to assume in a capital case, the more likely they would be to lean
toward the death penalty — particularly when they are
presented with no mitigating facts or instructions to guide them.
      As discussed below, rather than placing undue weight on
the prospective jurors’ initial responses to defense counsel’s
question alone, the trial court properly considered the entire
context of the voir dire process and each prospective juror’s
response to a variety of questions before deciding whether to
grant a request to strike someone for cause.
            a. Juror No. 2
      On his juror questionnaire, Juror No. 2 stated that he
moderately favored the death penalty and could vote for it in a
case like this one, but he would first have to consider the facts.
During questioning by the court, Juror No. 2 confirmed that he
“believe[d] in certain cases there is a valid reason for the death
penalty.” The court then summarized the specific charges
against defendant and asked whether Juror No. 2 would
“automatically” vote for death. Juror No. 2 responded that he
would want to hear the evidence before deciding. He would
consider evidence offered by the defense in mitigation and could

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“possibly” “vote either way.” He explained: “I would be [leaning]
towards a death penalty based upon what I’ve heard. But,
again, there could be evidence or something presented to me
that could possibly change my mind.”
     Juror No. 2 had checked the box for “Yes” in response to
the juror questionnaire question whether, in a case with general
facts like those present here, he would “always vote for or
against the death penalty without regard to the strength or
weakness of the aggravating and mitigating circumstances.”
When the court inquired about that response, Juror No. 2 said
that the response was incorrect. He did not agree with that
statement; he said, “I would not always vote for the death
penalty on this.”
      In response to defense counsel’s questioning, Juror No. 2
said he did not have a religious belief about the death penalty
and would make his penalty decision based on “whether I think
in my own heart whether he deserved it or whether he did not
deserve it.” Based solely on what he had heard so far about the
case, he was “leaning a lot” toward the death penalty, but he
noted he had not yet heard any evidence. He could not easily
erase from his mind his sense that the death penalty was
appropriate, but he added: “I think the main thing in my mind
is to take what’s given to us in the court and kind of try and
decide from what evidence is presented . . . .” He conceded that
if everything alleged about defendant turned out to be true, the
defense would “kind of have to convince [him] not to impose the
death penalty.” He added, however, that it was possible for him
to be convinced. If the charges against defendant were all true,
Juror No. 2 was leaning “pretty far” toward the death penalty,
but he “wouldn’t be able to say right now that [defendant] should
have the death penalty for sure.”
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      In response to questioning by the prosecution, Juror No. 2
said he would listen to the defense’s mitigating evidence and
would not “hesitate” to impose the penalty of life in prison if the
evidence persuaded him that the death penalty was not
appropriate. When asked by the court whether he would
respond so emotionally to victim impact evidence that he would
lose his objectivity, he said he “would take that into
consideration” but did not think his emotions would prevent him
from evaluating all the evidence.
        The court rejected the defense’s challenge for cause,
stating that although Juror No. 2 strongly favored the death
penalty in general and in this case, “he indicated that he could,
in fact, be receptive to the evidence, listen to both sides, listen
to the evidence as it pertains to both penalties, evaluate it, give
it due consideration. He indicated in the case of this type he
could vote for life in prison without the possibility of parole if he
felt it was appropriate” and would not automatically vote for the
death penalty.
      We conclude the court did not err. Given the charges in
this case, it not surprising, nor by itself disqualifying, that a
prospective juror who supported the use of the death penalty in
the abstract, who had been asked to assume that the charges in
the present case were all true, and who had not heard any
mitigating evidence or instructions regarding the law, would at
least preliminarily lean in favor of death. Importantly, the trial
court did not believe Juror No. 2’s preliminary leaning, which
many people might have had considering the nature of the
crimes at issue, disqualified Juror No. 2 in light of his
representation that he had the ability to remain open minded
and to decide the case based on the evidence and the law. When
pressed by the defense, Juror No. 2 confirmed that he could be
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convinced to vote in favor of life in prison if the mitigating
evidence presented by the defense persuaded him. Thus, the
record supports the court’s ruling.
     Defendant contends that Juror No. 2 should have been
excused based on People v. Boyette (2002) 29 Cal.4th 381, 418
(Boyette), where we held the court erred in denying a for-cause
challenge. The prospective juror in that case “admitted he
would not follow [the court’s] instruction to assume that a
sentence of life in prison with no possibility of parole meant the
prisoner would never be released.” (Ibid.) Nothing like that
occurred here. Therefore, defendant’s comparison of this case to
Boyette is unpersuasive.
           b. Juror No. 5
      In response to questioning by the court, Juror No. 5 said
that, depending on the evidence, he was capable of voting either
for death or for life in prison without the possibility of parole,
and that he could keep an open mind until he had heard all the
evidence. The court asked about his seemingly contradictory
answers on his juror questionnaire. There, he indicated he was
“[a]lways against” the death penalty in a case involving special
circumstances like those alleged here, but he also indicated that
the death penalty “should be allowed” and was imposed “[t]oo
seldom.” Juror No. 5 explained that he had misunderstood the
question and should instead have checked the box indicating he
“[s]trongly favor[ed]” the death penalty. However, he said he
would not automatically vote for the death penalty and would
consider all evidence relevant to the penalty decision.
     During questioning by defense counsel, Juror No. 5
conceded that in a case involving multiple murders, he would
have to be shown evidence that convinced him to vote for life in

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prison over death; however, he also said he would not make up
his mind until after hearing all the evidence.
       Juror No. 5’s responses in court also suggested that some
of his juror questionnaire responses were inaccurate because he
was confused about the questions; for example, he understood
the term “special circumstances” in the colloquial sense,
meaning he thought the insanity of a defendant was a “special
circumstance.” When he stated in the questionnaire that his
“mind would be made up” after the guilt and sanity phases, it
appears he was unaware that the defense would present
additional mitigating evidence after the guilt and sanity trials.
In response to questioning by the prosecution, Juror No. 5
reiterated that he would consider all the evidence before making
up his mind as to the appropriate penalty, and that he would
not automatically vote for either penalty.
       The court sought to clarify Juror No. 5’s answer to defense
counsel’s questioning. The court asked Juror No. 5 to imagine a
situation in which, after a trial, he had found defendant guilty
of all the charges and allegations, and, after another trial, he
had found defendant to be sane. The court then asked Juror
No. 5 whether, in that situation, he would say, “I’m voting for
death,” or whether he would consider the evidence offered at the
penalty phase trial before deciding the question of penalty.
Juror No. 5 responded that he would consider the evidence and
would consider voting for either penalty.
      The defense challenged Juror No. 5 for cause, and the
court rejected the challenge. The court noted that Juror No. 5,
who indicated that he was born overseas on his juror
questionnaire, had worked in highly technical jobs in the United
States for 18 years, and his English language skills were

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adequate to allow him to serve as a juror. The court then said:
“I think there was a question as to whether or not he fully
understood some of these questions when he answered the
questionnaire, which I find not to be unusual. It’s common with
a lot of our prospective jurors. I think that he does strongly favor
the death penalty. That, again, does not mean there is a valid
basis for a challenge for legal cause. It simply is telling you his
state of mind that he does strongly favor the death penalty in a
case of this type. But he reiterated more than once that he
would consider the evidence as it might pertain to life in prison
without the possibility of parole, will listen to it, consider it,
evaluate it; if he felt it was appropriate, he could vote for it, and
he would not make a decision in this case until he heard all the
evidence. [¶] For that reason, the challenge for cause is denied.”
      We conclude the court did not err. Juror No. 5 strongly
favored the death penalty in a case like the present one, but as
we have explained, it is neither surprising, nor is it, by itself,
disqualifying, for a prospective juror to preliminarily lean in
favor of the death penalty when asked, in the abstract, about the
appropriateness of the death penalty for a person who
committed three murders, two of the victims being children,
including one child he repeatedly sexually assaulted and
kidnapped. Importantly, Juror No. 5 made clear he would not
decide the question of penalty until he had heard all the
evidence.
      Juror No. 5 said he would have to be shown evidence that
convinced him to vote for life in prison over death, but he said
this in the context of a discussion of a case where there were
three murders, and without having heard any mitigating
evidence or instruction on the law. In fact, he apparently had
not understood that the defense would present additional
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mitigating evidence after the guilt and sanity trials. Although
Juror No. 5 gave some inconsistent answers on the
questionnaire and during voir dire, he clarified those
inconsistences when asked to do so, making clear he would
decide the penalty issue only after hearing the evidence, and
that he was willing to consider both penalties. As such, the
record supports the court’s decision to deny the defense’s
challenge.
           c. Defense challenge to Juror No. 12
      Before individual voir dire began, the court admonished
all the prospective jurors that they should not discuss the case
even with their immediate family. Juror No. 12, however,
acknowledged to her husband — a sergeant in the San Jose
Police Department, specializing in violent crimes — that she
was being considered for the jury in the present case. Her
husband reacted with concern about Juror No. 12’s health (she
had been diagnosed with lupus and suffered from occasional
migraine headaches). Juror No. 12 informed the court clerk that
her husband asked her what case she was on and expressed
concern that she was not healthy enough to be a juror in the
case.
      During voir dire, the court asked Juror No. 12 how she felt
about her husband’s concerns, and she said she wanted to
continue as a prospective juror. The court admonished her
again, saying: “Okay, that’s fine. I will caution you, however,
you did talk to your husband and tell him the case. And if you
are selected and you remain with us after today, you can’t talk
about anything we did here today, the questions I might ask or
counsel’s. You can’t talk to him about it, or [to] anybody else.”
Juror No. 12 responded: “That’s correct; I understand.” She


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also assured the court that she could set aside what she knew
about the case from news sources and personal conversations,
and reach a verdict based solely on the evidence presented in the
courtroom and the court’s instructions on the law.
     Defendant asked that Juror No. 12 be excused for cause,
asserting the conversation violated the court’s admonition not
to discuss the case with anyone, and further asserting that Juror
No. 12 would be tempted to discuss the case with her husband
because of his profession. The court denied defendant’s request,
stating Juror No. 12 was conscientious and objective. The court
said that Juror No. 12’s husband had most probably been the
one who raised the subject, knowing about this case from his
work and wondering whether she was being considered for the
case. His inquiry would have put her in the position of either
lying (by answering “no”) or remaining silent (which would have
been taken as a “yes”). Instead, she admitted she was being
considered for this case. The court added that Juror No. 12 did
not technically violate the court’s admonition because she did
not discuss the case; rather, she only confirmed the identity of
the case. The court concluded: “I think she can be objective,
fair, and impartial to both the People and the defendant.”
Therefore, the court denied defendant’s for-cause challenge, and
Juror No. 12 served on defendant’s jury.
     Defendant argues the court erred by not excusing Juror
No. 12, and he further argues he was unable to use a peremptory
challenge to remove the juror because he had exhausted his
peremptory challenges, and the court had denied his request for
more. He also asserts the error infringed upon several of his
state and federal constitutional rights.



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       We find no error. The fact that Juror No. 12 acknowledged
to her husband that she was being considered for the jury in this
case did not establish a violation of the court’s admonition, nor
did it establish that she was biased. Juror No. 12 did not consult
her husband regarding any details of the case. Rather, she
merely revealed to him what case she had been assigned to as a
potential juror. In addition, the court questioned her about the
conversation and about her knowledge of the case from other
sources and confirmed she would not discuss the case with
anyone. And the court expressly determined that Juror No. 12
could impartially perform her duties as a juror. Accordingly,
defendant’s claim of error is without merit, including his claim
that the court should have granted the defense more peremptory
challenges, thus enabling the defense to remove Juror No. 12.
For the same reason, the ruling did not violate his state or
federal constitutional rights.
            d. Jurors who ultimately did not sit on the jury
      Defendant argues the court erred in denying the defense’s
challenge for cause as to eight other prospective jurors,
including one alternate juror, but these jurors, unlike Jurors
Nos. 2, 5, and 12, ultimately did not sit on defendant’s jury.
Thus, with respect to these eight prospective jurors, even if the
court erred in denying the defense’s challenge for cause,
defendant still needs to establish prejudice. (Boyette, supra,
29 Cal.4th at p. 419.) Defendant attempts to do so by arguing
he was forced to use peremptory challenges to remove these
jurors, causing him to exhaust his peremptory challenges, and
he further argues the court denied his request for additional
peremptory challenges. But even if the court’s rulings forced
defendant to exhaust his peremptory challenges, he must still
show that any error resulted in a jury that was not impartial.
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Hence, he must show that one of the sitting jurors should have
been removed for cause. (See People v. Black (2014) 58 Cal.4th
912, 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)].)
      As we have explained, defendant’s for-cause challenges to
Jurors Nos. 2, 5, and 12 are without merit. Accordingly, as to
each of the eight prospective jurors who did not sit on the jury,
even assuming, without deciding, that the court erred in
denying the defense’s for-cause challenges, any error would be
harmless. However, in light of defendant’s claim that the trial
court was biased during voir dire, we address the merits of
defendant’s claims of error regarding defendant’s denied for-
cause challenges of the eight prospective jurors.
               i. Prospective Juror Mary N.
      Prospective juror      Mary N.     indicated on her   juror
questionnaire that she was in favor of the death penalty,
although not in a case in which there was lingering doubt about
the defendant’s guilt. She thought the death penalty was
appropriate for premeditated violent murders, especially with
child victims, and she “would probably consider the death
penalty to be appropriate” in a case involving multiple murders
with special circumstances. She checked the box saying she
“[s]trongly favor[ed]” the death penalty in a case involving the
specific special circumstances alleged here, but she also
indicated that in a case involving charges like those alleged
here, she would not “always” vote one way or the other. She
wrote: “It would depend on circumstances such as mental
health and pre-meditation.”


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      In response to questioning by the court, Mary N. agreed
that she strongly favored the death penalty in an appropriate
case but would “not automatically” vote for death. She would
listen to the evidence presented at the penalty phase and keep
an open mind. If defendant was found guilty and all the special
circumstances were found to be true, then going into the penalty
phase, her preliminary view would be that the death penalty
was appropriate. But the penalty trial would still be needed
because she would not vote for the death penalty until she had
heard all the evidence.
       The court asked Mary N. about her comment on the juror
questionnaire that she was “for” the death penalty “if there
[was] absolutely no question of guilt.” She confirmed she
believed this but also said she would still listen to and consider,
with an open mind, the evidence the defense had to offer in favor
of life in prison, perhaps being persuaded by it. She affirmed
she could vote for either death or life in prison, depending on
what the evidence showed and could give defendant a fair trial.
      Defense counsel asked Mary N. whether she truly felt she
could give defendant a “fair shot” assuming she had already
found him guilty. Mary N. said she thought she could but was
not sure until she heard the evidence. When asked whether a
sex crime committed against her mother would influence her,
Mary N. said she did not know but thought she could “keep it
separate . . . because they’re separate people.” Asked if she had
doubts whether she could keep them separate, she said “sitting
here” she did not doubt it, but she did not know how the evidence
would affect her.
     Defense counsel then asked about evidence of childhood
trauma, and Mary N. confirmed her juror questionnaire

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comment that she would not give such evidence any weight at
all. In her questionnaire answers, she explained: “Because I
know of people who had terribly abusive childhoods that grew
up to be wonderful, responsible people.” In response to counsel’s
questioning, she said: “To me, you are responsible for your
actions, and you are accountable for them, and your childhood
isn’t any excuse.” When asked if she would, at least, consider
childhood trauma evidence, she clarified that such evidence
“wouldn’t weigh heavily,” and she said: “I would consider
anything I heard, but I don’t think it would . . . sway me that
much one way or another.” Asked if she would “really” consider
it in the sense of “evaluating it,” she said: “I believe I would
honestly, you know, consider anything I heard. But I, in
general, I could not believe that a bad childhood absolves
somebody for their actions.”
     Mary N. next reaffirmed her questionnaire answer in
which she said that she strongly favored the death penalty in a
murder case involving the special circumstances alleged here,
and although she said that she would make her decision based
on the evidence presented at the penalty phase, the “burden of
proof” (her phrase) would fall on the defense to persuade her
that death was not the appropriate penalty.
     The prosecutor explained that neither party has the
burden of proof at the penalty phase and explained the weighing
of aggravating and mitigating factors. Mary N. said she
understood and could follow the law, that she had an open mind,
and she would give the defense a “fair shake.”
      The trial court rejected the defense’s challenge of Mary N.
for cause, stating: “[Th]e juror must evidence a willingness to
consider the evidence presented . . . , whatever it might be,

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factors in aggravation, the factors in mitigation, . . . and give it
whatever weight they find it to be entitled, keep an open mind.
The law is not such where the defense has a right to inquire if
we present this mitigation, would you consider it, if we present
that mitigation, would you consider it, et cetera, et cetera. All
the law requires is that the juror maintain an open mind and be
willing to listen to the evidence presented and give it whatever
weight they find it to be entitled.” “So I don’t believe under the
law that this gives rise to a challenge for legal cause. . . . [I]t’s
denied.”
      The court did not err. It is neither surprising nor, by itself,
disqualifying that a prospective juror who supports the death
penalty in the abstract would strongly favor the death penalty
in a case involving multiple murders, sex crimes against
children, kidnapping, and burglary — especially if the
prospective juror is asked to give an opinion without having
heard any specific evidence, including mitigating evidence, and
without any instruction on the law. Nor is it disqualifying for a
prospective juror to report, again without instruction on the law,
that certain categories of evidence would not weigh heavily in
the juror’s consideration. The parties to a criminal case are not
entitled as a matter of legal right to have only those jurors who
are likely to be impressed by their evidence. Here, the most
relevant points are that (1) Mary N. would not “automatically”
vote for death or for life without the possibility of parole, (2) she
was willing to keep an open mind until she had heard and
considered all the evidence, (3) she was willing to follow the law,
and (4) she was able to be fair and impartial. These answers,
taken together, adequately support the trial court’s
determination as to Mary N.’s state of mind. The court did not
err in denying the challenge for cause.

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              ii. Prospective Juror G.O.
      On her juror questionnaire, prospective juror G.O.
indicated she “believe[d] in the death penalty when warranted”
and “[s]trongly favor[ed]” the death penalty in a case involving
special circumstances like those alleged here, but that “all
evidence must be weighed before coming to any conclusions,”
including evidence related to “the defendant’s background,
upbringing, and mental health issues.” The court asked G.O.
about her views on the death penalty, and she answered that
she strongly favored the death penalty “if it’s warranted.” She
explained: “It depends on the crime. It depends on the
circumstances. It depends on the person. It depends on their
state of mind.” The court asked her to clarify her comment on
the juror questionnaire in which she said: “I feel that a person
who is convicted of a capital crime should receive the death
penalty.” She stated those were her “general feelings” but that
she would not “automatically vote” for the death penalty, and
she would not decide the question of penalty until she had heard
all the evidence.
      Defense counsel questioned G.O. about a juror
questionnaire comment in which she indicated that for a
remorseful person, the penalty of life without the possibility of
parole was appropriate because such a person would be “alive in
prison thinking about the crime they committed for the rest of
their life.” In response to defense counsel’s questioning, she
explained that the death penalty was more appropriate for
“someone who will never ever change.” When asked how she felt
about the death penalty in a case like the one before the court,
assuming all the charges turned out to be true, G.O. said that
she could not answer because she would have to hear the penalty
phase evidence before deciding.      When asked about her

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questionnaire answer in which she stated that she strongly
favored the death penalty in a murder case involving special
circumstances like those alleged here, she said: “I would say
most of the time, yes, I do favor the death penalty. But there
always may be that one or two times, or few times, where maybe
it’s not warranted. And that’s why you have to listen to the
information that’s presented to you and then make that
judgment.” She said she would not enter the penalty phase with
a presumption in favor of the death penalty. Instead, she would
want to hear the evidence and would be able to vote for life in
prison without the possibility of parole “if warranted.”
       The defense challenged G.O. for cause, based on the fact
that she checked the box on her juror questionnaire saying she
“[s]trongly favor[ed]” the death penalty in a case like this one.
The court rejected the challenge, saying: “I believe based upon
the examination of Miss [O.] and her answers to the questions,
her explanation as to why she answered in the fashion she did,
indicates to the court, in the court’s discretion as to her state of
mind, that she could be . . . completely objective, fair and
impartial to the People and to the defendant; that she could
consider both penalties if the matter were ever to get into a
penalty phase trial; and that she would keep an open mind
about that, consider the evidence that is presented, and in that
fashion attempt to reach what she feels is an appropriate and
just verdict.”
     We conclude the court did not err. G.O. made clear she
would remain open minded until she had heard all the evidence
presented at the penalty phase. She rejected defense counsel’s
suggestion that she would enter the penalty phase with a
presumption in favor of the death penalty. She said: “No. I
know nothing about [defendant], so I would be making a
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judgment against him or about him where I have no information
to make that judgment on.” She did concede that, in a case like
this one, she favored the death penalty, but as already
explained, that is neither surprising nor, by itself, disqualifying.
In addition, she made equally clear that she might vote for life
in prison and that she would make that decision based on the
evidence. Here, the critical point is that the trial court
evaluated G.O.’s state of mind and determined “she could be . . .
completely objective, fair and impartial to the People and to the
defendant,” and that she could “consider the evidence that is
presented, and in that fashion attempt to reach what she feels
is an appropriate and just verdict” as to penalty. The record
supports that determination. Accordingly, the court did not err
in denying the defense’s challenge.
               iii. Prospective Juror Joseph R.
      Prospective juror Joseph R. strongly favored the death
penalty in a case involving multiple murders with the special
circumstances charged in this case. He would not automatically
vote for one penalty or the other, but he commented that “they
would have to be pretty convincing circumstances.” It appears
he meant that the mitigating circumstances would have to be
“pretty convincing” to warrant a vote for life in prison given the
facts of the case as revealed in voir dire.
      In response to questioning by the court, Joseph R. assured
the court that he would be able to listen to the evidence offered
by the defense and consider it, although he added: “It’s really
hard for me now, without hearing anything, to imagine
circumstances that I would consider extenuating; the nature of
the crime is pretty powerful.” The court asked about Joseph R.’s
answer to a question that asked whether he “would . . . be


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willing to consider the defendant’s background, upbringing, and
mental health issues.” In his answer, Joseph R. said he could
consider such evidence “up to a point,” adding: “I still believe in
free will though.” For example, if the defendant had “other
options or other outs, they have a choice as to which way they
want to go,” in which case he “would like to see a real strong
reason” why the defendant should be considered less
blameworthy. He added that although his leaning was in favor
of death, if he “heard a convincing argument,” he “could consider
it.” When asked whether his mind was set in favor of death, he
said: “I don’t know how firmly it’s set, but I’d say there is a bias
that way,” adding, “I don’t know if bias is the right word to use.”
      The court asked whether Joseph R. could keep an open
mind and decide the issues based on the evidence, the law, and
deliberations with other jurors, and Joseph R. replied: “I think
I could go either way. I think it’s fair to say that I favor the
death penalty based on the cases I’ve heard until now, but I
believe I could listen to the testimony, the evidence, and the
mitigating-aggravating factors, and make some decision on
that.”
      Defense    counsel   asked       Joseph R.    about   his   juror
questionnaire comment that in a case involving multiple
murders with special circumstances like those charged here, the
penalty of life in prison was “pointless without some attempt to
redeem the person.” He added: “I don’t think we are an
enlightened enough society to use this approach.” When asked
about those comments, Joseph R. said: “[A]t the time I
answered that, it may have been a little bit stronger than upon
further reflection.” He explained that in a case involving a
“really heinous” crime, the possibility of rehabilitation was one
of the few reasons to choose life in prison over death, but he did
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not think our prison system offered significant opportunities for
rehabilitation. He added that he favored the death penalty in a
case like the present one and there would need to be a
“convincing reason” to persuade him to vote for life in prison.
      When asked by the prosecutor where on a continuum he
stood in terms of favoring or disfavoring the death penalty,
Joseph R. said: “I think it’s a case-by-case sort of situation. But
I think, you know, if you think about horrible things done by
sane people, I think I’m more [of the view] that you have to show
me why something very severe shouldn’t be done. I’m more in
that climate.” Nonetheless, he said he would have an open mind
and consider mitigating evidence and could return a verdict of
life in prison if the evidence warranted that verdict. He did not
feel that his views were so strong that he was unable to fairly
consider the evidence and reach a decision.
      The court rejected the defense’s challenge of Joseph R. for
cause, stating: “I think one of the problems is basically this. . . .
And that is, if they make the findings required to get the matter
into a penalty phase trial, [then] they would feel that death
might very well be appropriate.            Well, it might be
appropriate. . . . That’s how you get to a penalty phase trial.
Otherwise, there is no penalty phase trial. So [if] a juror were
to say: ‘Yes, if I were to be a juror and make those findings and
find the defendant legally sane, and this gets into a penalty
phase trial, yes, I believe that death may be appropriate.’ Well,
that’s the point of the law. When you get into a penalty phase
trial, it only gets there if they make those findings. And in a
penalty phase trial, death may be appropriate. And life in
prison without the possibility of parole may be appropriate. [¶]
And he indicated, when he concluded, that he could consider
both and give them both due weight and make that
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consideration only and that decision. Clearly, he favors the
death penalty, but that does not mean under the law that there
is a legal challenge for cause. He certainly has given you
information you can use in your process by way of peremptory
challenges, even though this process isn’t deemed to be designed
to aid in that specific area. . . . [¶] But under the law, there is
no case that says if somebody believes that they are in favor of
the death penalty or strongly favors it, that they should be
excused as a juror. Because if that be the case in California, the
majority of people could not sit, because a majority of people in
California . . . are, in fact, in favor of the death penalty.”
      We conclude the court did not err. As we have already
explained, it is neither surprising nor, by itself, disqualifying
that a prospective juror who supports the death penalty in the
abstract would strongly favor the death penalty in a case like
this. In addition, we have noted that it is not disqualifying for
a prospective juror to report, again in the abstract, that certain
categories of evidence would not weigh heavily in the juror’s
penalty consideration. Thus, the fact that Joseph R., assuming
the charges to be true, strongly favored the death penalty, is not
a basis for granting a challenge for cause. Likewise, the fact
that Joseph R. thought that “defendant’s background,
upbringing, and mental health issues” were only relevant “up to
a point” is not a basis for granting a challenge for cause. The
record here shows that Joseph R. would not “automatically” vote
for death or for life without the possibility of parole, he was
willing to keep an open mind until he had heard and considered
all the evidence, he could return a verdict of life in prison if
appropriate, as his opinion about the penalties “may have been
a little bit stronger” than it was “upon further reflection,” and
he was able to be fair. These answers, together, adequately

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support the court’s determination as to Joseph R.’s state of
mind. Accordingly, the court did not err in denying the
challenge for cause.
               iv. Prospective Juror Wayne G.
      In his juror questionnaire, prospective juror Wayne G.
indicated he strongly favored the death penalty in a case like
the present one but said he would need to hear the facts before
deciding.    When asked by the court whether he would
“automatically vote” for one penalty or the other, Wayne G.
answered: “I thought I . . . was more pro death penalty. But . . .
it’s something that I’d really have to think about during the
trial.” He then explained he was “kind of leaning” in favor of the
death penalty but did not “know all the circumstances.” He said
he could vote for life in prison without the possibility of parole
if, after hearing the evidence, he thought that penalty was
appropriate. When asked if he could consider the evidence
offered by either side and vote one way or the other, he said: “I
could go either way. I’d have to hear the arguments and
everything.” He added: “I don’t favor one over the other
necessarily.”
      Defense counsel asked Wayne G. about his juror
questionnaire comment that he could consider evidence of
childhood trauma but would “have to be totally convinced.”
Wayne G. said that a person who faced childhood trauma and
who has a continuing problem in adulthood should seek help.
He agreed with defense counsel that he would want to see
evidence that the childhood trauma was disabling. Wayne G.
said that the experience of actually being considered for a jury
in a capital case and facing the possibility of having someone’s
life in his hands had changed his views. He had been a “strong


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believer” in the death penalty but now felt, “I’ve got to be
convinced that it’s really necessary.” Defense counsel asked him
about his comment on his juror questionnaire in which he said
the death penalty should be imposed “only if it’s proven without
a doubt that the suspect committed a ‘planned’ & cruel murder
and shows no remorse whatsoever.” He said he might consider
the death penalty in other situations so long as “it was proven
to [him] without a doubt.” Defense counsel next asked about a
case with charges like those in the present case, and the
following colloquy occurred:
      “[Defense counsel]: . . . The question is: Would you in that
situation . . . only vote to impose death because of your views on
the death penalty?
        “[Wayne G.]: I want to say in my mind I would, but I
know, you know, I don’t want to be so closed-minded. I’ve got
other jurors, and I haven’t heard any of the case or anything.
[¶] . . . [¶] . . . But, you know, just off the top of my head, I would
say yes.”
      During questioning by the prosecutor, Wayne G. stated
that he still believed in the death penalty, and although he had
come to question the strength of his conviction, he could “still do
it.” But he would not vote for death in all cases, because he
“would want to listen to everything,” and his desire to hear the
evidence applied even in a case like the present case, having
multiple murder counts and special circumstances. He said he
“would be very heavily leaning towards the death penalty” if the
defendant in such a case was “proven guilty,” but if appropriate,
he could return a verdict of life in prison, and his vote would
depend on the evidence.



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      The defense challenged Wayne G. for cause. The court
expressed doubts about the utility of asking prospective jurors
to imagine that defendant is guilty of the charges, with the
special circumstances true, and then asking for an abstract
opinion about whether they favored the death penalty. The
court called back Wayne G. and asked whether he was
committed to one penalty or the other based solely on the
charges and alleged special circumstances, without having
heard any evidence and without having found defendant guilty.
Wayne G. answered: “I’d want to hear the evidence.” The court
denied the challenge for cause, finding Wayne G.’s views would
not prevent or substantially impair his ability to be a juror.
      We determine that the court did not err. Wayne G.’s
answers were, at times, inconsistent, and he may not always
have understood what he was being asked, which is not
surprising considering the complexity of the legal issues
involved in selecting a capital jury. He favored the death
penalty for a case like the present one. But the reality that he
might become a juror in a capital case was a sobering experience
for him that led him to feel less strongly in favor of the death
penalty than he previously did. On the one hand, he stated
without ambiguity that he could vote for death if, after hearing
the evidence and deliberating with the other jurors, he felt death
was the appropriate penalty. On the other hand, he said he
could also vote for life in prison, and in choosing which penalty
to vote for, he would want to hear all the evidence.
       When defense counsel asked him whether “because of [his]
views on the death penalty,” he would “only vote to impose
death,” Wayne G. answered, “just off the top of my head, I would
say yes.” But he qualified that answer by saying: “I don’t want
to be so closed-minded. I’ve got other jurors, and I haven’t heard
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any of the case or anything.” He also said: “I’ve got to be
convinced that [the death penalty is] really necessary.” And he
repeatedly confirmed that he would base his decision on the
evidence, and that he could vote for either penalty depending on
what the evidence showed.
      Moreover, as the court noted, asking prospective jurors
who have heard no evidence — in particular, no mitigating
evidence — to assume the unusually serious charges and
allegations in this case are all true, and then asking them, based
on that assumption and with no instruction on the law, whether
they lean in favor of death is likely to evoke an affirmative
response. In effect, Wayne G. was asked to give an abstract
opinion about what he thought the law ought to be for a case like
the present one. That is not a line of inquiry that is particularly
informative regarding a prospective juror’s qualification to sit
on a jury, and we consider Wayne G.’s answers with that in
mind.
      For all these reasons, we conclude that Wayne G.’s voir
dire answers adequately support the court’s determination as to
his state of mind. Accordingly, the court did not err in denying
the challenge for cause.9
               v. Prospective Juror Jack. S.
      On his juror questionnaire, prospective juror Jack S.
indicated that he strongly favored the death penalty, but that in
a case like the present one, his vote would depend on the facts.
He confirmed this answer in voir dire. The court asked him


9
      Notably, despite the trial court’s denial of defense’s
request to strike him for cause, the prosecution ultimately
exercised a peremptory challenge on Wayne G.

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whether he would “automatically” vote for the death penalty
without considering the evidence that might be offered by the
defense at the penalty phase, and Jack S. said: “I would have to
weigh the evidence at the time.” He said he would also be able
to vote for life in prison without the possibility of parole. The
court asked Jack S. about the following comment he made on his
juror questionnaire: “If he is convicted of the three murders, he
should get the death penalty.” Jack S. said he meant only “if the
evidence weighed to that.” He added: “I would vote one or the
other [penalty] depending on . . . the testimony or — I don’t
know what you call it — the evidence.” He then confirmed that
he strongly favored the death penalty, assuming the charges in
the present case were true. When asked about his questionnaire
comment that a case like the present one “could be a good cause
for the death penalty” “[a]fter hearing the facts,” he assured the
court that he had no “predisposition . . . that [he] would
automatically vote for it.” He affirmed he would keep an open
mind, hear the evidence, deliberate with other jurors, and vote
for one or the other penalty, as appropriate.
       Defense counsel followed up on Jack S.’s questionnaire
comment, and Jack S. explained: “I was thinking, well, if a
person is convicted and all the evidence weighed that the person
did it, you know, . . . cold-bloodedly, you know, I guess you could
go for the death penalty.” Defense counsel asked: “[A]re you
meaning to say . . . that if you personally sat on the case and
listened to the evidence and were convinced beyond a reasonable
doubt that a guy committed three murders and that they were
done maliciously or they were done in the course of a felony like
rape . . . that you personally, because of your strong beliefs about
the death penalty in that situation, would have to impose the
death penalty just because of the way you feel?” When Jack S.

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answered in the affirmative, the court reminded Jack S. that at
a penalty phase trial, guilt would already be determined, and
there would be additional evidence offered, some of it in favor of
life in prison. Jack S. agreed he would listen to the evidence.
When defense counsel again asked the same question, Jack S.
said: “I would have to just weigh the facts.” The court
interrupted again, and Jack S. again confirmed that even if he
found defendant guilty, he would be willing to consider the
evidence offered in the penalty phase, and he would not always
vote for death. Defense counsel then resumed questioning, and
Jack S. answered “yes” to whether he would “be heavily leaning
towards a sentence of death if [he] found somebody beyond a
reasonable doubt had committed these three murders.”
       Next, the prosecutor confirmed that Jack S. would not vote
for death in every case but instead would be “open to the facts
and listen to both sides,” and he would not be reluctant to vote
for life in prison, if appropriate, after hearing all the evidence
and applying the law.
      The defense challenged Jack S. for cause, and the court
rejected the challenge, stating, “I believe his state of mind is
such where he prefers the death penalty in a case of this type.
That does not disqualify him as a juror. [¶] I believe . . . he will
listen to what’s presented to him as it bears upon the other
penalty, which is life in prison without the possibility of parole,
and he will keep an open mind and not make that decision until
he’s heard all the evidence that bears upon the issue.”
      We find that the court did not err. Jack S. strongly favored
the death penalty, assuming the charges in the present case
were true. But as we have already explained, that conclusion is
neither surprising nor, by itself, disqualifying in this case.

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Although Jack S. said at one point that he “would have to
impose the death penalty” if he found defendant guilty, when
the court reminded him that additional evidence would be
offered at the penalty phase, he stated he would listen to that
evidence. More generally, Jack S. repeatedly affirmed he would
not automatically vote in favor of one penalty or the other, that
he would keep an open mind and base his vote on the facts and
the evidence, and that he could, if appropriate, return a verdict
of life in prison. These answers adequately support the court’s
determination as to Jack S.’s state of mind. Thus, the court did
not err in denying the challenge for cause.
              vi. Prospective Juror Cynthia Y.
     On her juror questionnaire, prospective juror Cynthia Y.
indicated she strongly favored the death penalty in a case like
the present one, but she also said she would listen to the
evidence with an “open mind” and that childhood issues and
mental health issues also needed to be considered. She wrote:
“I have never been responsible for the fate of another human
being and would have to hear every possible fact before I could
make [the penalty] decision.” She also wrote that a murder had
to be “proven beyond any doubt” to warrant the death penalty.
      In response to questioning by the court, Cynthia Y. felt
that a person found guilty of murder should get the death
penalty. The court explained there would be no penalty phase
trial unless defendant had already been found guilty.
Cynthia Y. said: “I believe that if a person is mentally sane and
he is found guilty of the counts that he is accused of, that the
death penalty should be applied.” She also agreed it should be
applied “automatically.” After further explanation by the court,
she said she did not understand “what types of things” would be


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told to her at a penalty phase trial. After the court gave a
general description, she said, “I have to claim ignorance here,
since I’ve never gone through an entire case such as this and as
serious as this. And I would definitely be willing to listen to both
sides.” She said that although she strongly favored the death
penalty, she could listen to and evaluate the defense’s evidence
in favor of life in prison and could vote for that penalty, if
appropriate, based on the evidence. She affirmed that she could
give both the People and defendant a fair trial.
      When defense counsel asked about her juror questionnaire
comment in which she justified the death penalty based on
concern for the murder victim and the victim’s family,
Cynthia Y. explained: “It’s really hard, because you have to put
yourself in both places. I mean, I have children. If it were my
son on trial, I’d want somebody to be fair. On the other hand, if
it were my son who was dead, I’d want closure.” “So, you know,
I’m willing to listen to all of this with an open heart [¶] . . . [¶]
because both people have . . . a lot at stake.” She confirmed, as
she said in her questionnaire, that she believes life without the
possibility of parole is “torture” for the victims’ families, but
when asked whether she would find it hard to return a verdict
for life in prison, she said, “No, I don’t think so. Because like I
told you, on the other hand, if it were my son on trial, I’d want
somebody to go listening with an open heart.” She also said she
would follow the law, and if the law asked her to take into
consideration a particular point, she would do so even if it was
not a point that previously interested her. She confirmed her
belief that “what goes around comes around,” but she said she
would not apply the rule of “an eye for an eye” because “[t]hat’s
not something for me to judge. . . . That’s a God-given thing.”
Defense counsel tried to determine how heavily Cynthia Y.

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would weigh victim impact evidence, but the court cut counsel
off, stating, “That is a question asking for prejudgment of
evidence.”
      In response to questioning by the prosecution, Cynthia Y.
confirmed that she had an open mind, would listen to the
evidence on both sides before making a decision, would follow
the law, and was capable of returning either verdict, depending
on which was appropriate.
      The court rejected the defense’s challenge for cause,
finding Cynthia Y. would keep an open mind, listen to both
sides, and not automatically vote for one penalty or the other.
The court noted that Cynthia Y.’s sympathy toward a victim’s
family may be a reason to exercise a peremptory challenge
against her, but did not support a challenge for cause.
      We conclude the court did not err. Cynthia Y. said she was
open minded, would listen to the evidence on both sides before
making a decision, would follow the law, and was capable of
returning either verdict, depending on which was appropriate.
She affirmed she could give both the People and defendant a fair
trial. Although she stated in the abstract that she strongly
favored the death penalty in a case like the present one, that
fact is not disqualifying, especially considering the severity of
the charges. At one point, she told the court that she would
automatically vote for death if defendant was guilty of murder,
but it was also clear that she did not fully understand the
different phases of a capital trial; she immediately changed her
response when the court provided further explanation. She
rejected defense counsel’s suggestion that she would not
consider the penalty of life in prison, stating she would want
others to be fair if her son were on trial, and that she was willing

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to listen to the evidence “with an open heart” “because both
people have . . . a lot at stake.” These answers adequately
support the court’s determination as to Cynthia Y.’s state of
mind. Accordingly, the court did not err in denying the
challenge for cause.
     Defendant argues the court improperly prevented defense
counsel from conducting additional voir dire concerning how
Cynthia Y. would weigh victim impact evidence. As noted
above, the trial court allowed some questioning about victim
impact evidence, and it ruled that further questioning would be
asking Cynthia Y. to prejudge the evidence. (See People v. Cash
(2002) 28 Cal.4th 703, 721–722.) The court did not err in its
approach.
               vii. Prospective Juror Suzanne M.
      On her juror questionnaire, prospective juror Suzanne M.
said that based on what she had heard about the case, it was her
opinion that the death penalty was the right sentence, assuming
defendant was guilty and sane. She “[a]lways favor[ed]” the
death penalty in a case like the present one, but she noted “this
is a gut reaction — not an educated one,” and that she “would
need all the facts” and “would have to know [and] understand
the details.”
       In response to questioning by the court, Suzanne M. said
she would not automatically vote for the death penalty. She
explained that she strongly supported the death penalty in a
case like the present one, but she would not just “give lip service
to life in prison.” She affirmed she would consider both penalties
and would remain undecided until she had heard the evidence
and deliberated with the other jurors.



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      In response to questioning by defense counsel, Suzanne M.
said she “would take . . . very seriously” the penalty of life in
prison without the possibility of parole. Although she thought
that life in prison could sometimes be “a bigger punishment”
than the death penalty, she would follow the law, which deems
the death penalty to be the more severe punishment. And
although she thought the death penalty was warranted if
defendant did what he was charged with doing, she added, “But
again, I don’t have all the information.” After being reminded
that the penalty phase of the trial would only occur if defendant
had first been determined to be sane, Suzanne M. disavowed her
juror questionnaire comment in which she said that life in
prison without the possibility of parole might be appropriate “[i]f
[defendant] was insane.”         Although she wrote on her
questionnaire that her “snap call is to ‘return the favor’ to the
murderer,” she said she would not be guided by the principle of
“an eye for an eye.”
      In response to the prosecution’s questioning, Suzanne M.
confirmed that she leaned toward the death penalty when
considering the issue in the abstract, but in an actual case, she
would weigh and consider all the factors and evidence before
deciding and would follow the law regarding the weighing of
aggravating and mitigating circumstances, keeping an open
mind.
      The defense challenged Suzanne M. for cause, and the
court rejected the challenge. The court found that her responses
were inconsistent at times but that “overall, based upon the
answers she gave and the answers she gave to very pointed
questions,” “she can be objective, fair, and impartial.” The court
found she could consider both penalties and would not make
that decision until she heard the evidence. “And in an
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appropriate case she indicated she could impose the death
penalty, and in an appropriate case she could impose life in
prison without the possibility of parole. [¶] So, again this is not
unusual to have some conflicting or equivocal responses, but it’s
my judgment based upon her responses that she can be fair and
impartial to both the People and the defendant as it bears upon
that issue of penalty or punishment.”
      We conclude the court did not err. As the court noted,
Suzanne M. was inconsistent in some of her responses,
particularly when her questionnaire responses are compared to
her oral responses. In her juror questionnaire, she indicated
strong support for the death penalty for a case like the present
one, admitting that her “snap call” favored the death penalty,
but on the same questionnaire, she also said that she “would
need all the facts” and “would have to know [and] understand
the details.” Many of her questionnaire comments may have
reflected an incomplete understanding of the phases of a capital
trial. During voir dire, the court and the parties clarified the
law for her, and in her responses, she made clear she would
(1) keep an open mind, (2) listen to the evidence offered by both
sides, (3) deliberate with the other jurors, and (4) decide either
for or against the death penalty, as appropriate. These answers,
taken together, adequately support the court’s determination as
to Suzanne M.’s state of mind. Thus, the court did not err in
denying defendant’s challenge for cause.




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              viii. Prospective Juror Philipp W.10
      In his juror questionnaire, prospective juror Philipp W.
stated he strongly favored the death penalty in a case like the
present one, saying:       “I think it would be the proper
punishment.”     In response to questioning by the court,
Philipp W. said that “if the crime was big enough, I guess [the]
death penalty is justified.” He clarified that he would not favor
the death penalty for every case of murder with a special
circumstance, saying: “I think not in all circumstances, but in
some cases it should be.” He also confirmed that he strongly
favored the death penalty in a case like the present one but said
that his vote would not be automatic; he could listen to and
consider the defense evidence, and he could keep an open mind.
He also said he was capable of voting for either penalty.
      Upon questioning by defense counsel, Philipp W. clarified
that although he thought the death penalty was appropriate for
first degree murder, he did not extend that principle to all first
degree murders. In the case of robbery murder, for example, he
would not always vote for the death penalty: “I wouldn’t say
always. It depends on the circumstance.”
      When asked about a case like defendant’s, involving
multiple murders and sex crimes against a child, Philipp W.
said the death penalty was not “the only appropriate” penalty


10
      Prospective juror Philipp W. was called as an alternate
juror, and defendant exercised a peremptory challenge to
remove him. Because each party receives additional peremptory
challenges to use when the court is seating alternate jurors
(Code Civ. Proc., § 234), and because defendant did not express
dissatisfaction with the alternate jurors who ultimately served
in his case, he cannot establish prejudice as regards the court’s
denial of his for-cause challenge to Philipp W.

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“but it would be appropriate.” He confirmed his statements on
the questionnaire that death would be the “proper” punishment
for a case like defendant’s and he “strongly favor[ed]” the death
penalty for such a case. He gave as a reason that “we still have
the death penalty” and should use it for the worst cases.
Counsel asked whether Philipp W. would vote for death if all
allegations were true and defendant was found to be sane, and
Philipp W. answered that the defense “would have to come
forward with some sort of evidence not to.”
      The prosecutor then asked Philipp W. whether he could
impose one penalty or the other, as appropriate, depending on
the evidence, and Philipp W. said that he could. Next, in
response to a question from the court, Philipp W. said that his
feelings were not so strong that he would automatically vote for
death and not listen to the evidence the defense might present.
      The defense challenged prospective juror Philipp W. for
cause, and the court rejected the challenge. The court noted
Philipp W. was inconsistent, but stated: “I know by my
perception of him there might be a little bit of a language issue
here; not severe or disabling, but I sense that. [¶] I asked the
last question myself because, to be quite frank, it appeared to
me at one point in time that he was under the impression that
in a case of this type, with multiple murder, with these specials,
the law would require that he vote for death. I think that was
cleared up. And he strongly favors the death penalty. But I
asked him the bottom-line question, and all I can do is judge my
sense as to his credibility and his state of mind, and I believe he
was honest when he said he strongly favors it, but he’d be willing
to listen to what the defense had to offer. He wouldn’t make a
decision automatically. He would consider both penalties. For


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that reason, the challenge for cause under the law has to be
denied.”
      We conclude the court did not err. It was clear that
Philipp W. favored the death penalty in the abstract. It is also
clear that his answers to some extent reflected what he thought
the law was, not what he would do if properly instructed.
Philipp W.’s comment that he would want the defense to present
evidence to persuade him against death might suggest that he
was inclined to improperly place the burden of proof on
defendant, but it is not clear that Philipp W. understood the
legal implications of his answer. Significantly, he made clear
that his vote would depend on the circumstances and that he
would not automatically vote for the death penalty. And the
court based its ruling directly on its assessment of Philipp W.’s
credibility and state of mind. Philipp W.’s answers support the
court’s determination. Accordingly, the court did not err in
denying the defense’s for-cause challenge.
        4. Trial court bias
      Defendant argues that even if each of the trial court’s
individual rulings during voir dire is supported by the record
and falls within the scope of the court’s discretion, an overall
review of the voir dire rulings shows the court was biased in
favor of the prosecution.
      Defendant’s claim is, in substance, a claim of judicial
misconduct (see People v. Mills (2010) 48 Cal.4th 158, 189
(Mills)), a claim he did not raise in the trial court.
      Defendant asserts the court tended to grant the
prosecution’s for-cause challenges of prospective jurors who said
they were strongly opposed to the death penalty but could
consider both penalties; in contrast, it tended to deny the

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defense’s for-cause challenges of prospective jurors who said
they were strongly in favor of the death penalty but could
consider both penalties. He asserts the court’s bias in this
regard is “best exemplified” by its rejection of the defense’s for-
cause challenges of three prospective jurors. However, a simple
comparison like this regarding the responses of several
prospective jurors on one issue does not establish bias because
the court’s rulings are based not on specific individual answers,
but on the entirety of voir dire, including the court’s credibility
determinations to which we must defer. (See Capistrano, supra,
59 Cal.4th at p. 859; Mills, supra, 48 Cal.4th at p. 189 [court has
“ ‘broad discretion over the number and nature of questions
about the death penalty’ ” during voir dire]; People v. Martinez
(2009) 47 Cal.4th 399, 447 [examining a small number of
prospective jurors “constitutes an extremely limited sample of
the trial court’s overall performance, thereby diminishing [its]
probative value”].) Defendant fails to explain how the court’s
overall questioning of these various prospective jurors differed
in a way that reflected a bias against the defense.11
       For all these reasons, we conclude defendant’s claim of
trial court bias during jury selection lacks merit.
      D. Motions for a Change in Venue
     Defendant’s case was originally filed in Mariposa County,
where Cedar Lodge was located. By stipulation, the trial court
granted defendant’s motion to change venue. After consulting


11
      Indeed, defendant’s analysis of this point in his brief was
rather cursory. While broadly asserting that the trial “court
displayed its strong bias in favor of the prosecution,” defendant
did not provide any discussion supporting his view that bias can
be shown on the record before us.

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with the Administrative Office of the Courts (AOC) 12 and
holding an evidentiary hearing, the court transferred the case
to the Santa Clara County Superior Court. Later, during voir
dire in Santa Clara County, defendant filed a second motion for
a change in venue, which the court denied. Defendant argues
the court erred both procedurally and substantively when it
selected Santa Clara County as the venue, and he further argues
the court erred in denying his second motion for a change in
venue. He claims these errors violated his state and federal
constitutional rights. We reject his claims.
         1. Facts and procedural background
      On October 29, 2001, the court granted defendant’s motion
to change venue from Mariposa County. At that time, California
Rules of Court, rule 4.152 provided: “When the court in which
the action is pending determines that it should be
transferred . . . , it shall advise the Administrative Director of
the Courts of the pending transfer. Upon being advised the
Director shall, in order to expedite judicial business and
equalize the work of the judges, suggest a court or courts that
would not be unduly burdened by the trial of the case.
Thereafter, the court in which the case is pending shall transfer
the case to a proper court as it determines to be in the interest
of justice.” (Cal. Rules of Court, former rule 4.152.) In
accordance with this rule, the court proposed that “the first step
should be to suggest what counties you might request, and that
the [AOC] inquire of those counties whether they are in a


12
      The AOC is the staff of the Judicial Council and is now
referred to as the Judicial Council. (See Cal. Rules of Court,
rule 10.81.) In this opinion, we refer to AOC and Judicial
Council interchangeably.

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position to accept this particular case.” “[T]he next step, then,
is to set an [e]videntiary [h]earing as to those counties that
would be receptive,” after which the court would decide, “based
upon the interest of justice, as to which county should be
selected for the venue of this particular case.” Defense counsel
agreed that “the [c]ourt’s statement of the procedure that’s
required is correct.”
      The prosecution proposed that the case be transferred to
Sacramento, Santa Clara, or Colusa County, and the defense
proposed San Francisco or Los Angeles County. The court
conferred with AOC staff, and the AOC sent a memo to the court
summarizing the counties’ responses: “Santa Clara: The court
agreed to the change of venue request.          Security and
accommodation for the media are described as good.”
“Sacramento: The court gave a reserved yes to the request.
They have security concerns and a shortage of clerks to assist
with the case. However, they are willing to assist.” “Colusa:
The court gave two conditions under which it would accept the
change of venue. The court stated one of their active judges
would accept the case for trial, and the court stated that they
would schedule it for no more than two weeks.” “Los Angeles:
After having recently accepted a San Francisco change of venue
case with very high profile media and security concerns, the
court expressed their preference not to accept the case.
However, if ordered, they would accept the responsibility.” “San
Francisco: The court states that they are not able to accept the
case, citing security and staffing problems.” In a separate oral
communication with the court, AOC staff clarified that San
Francisco, Los Angeles, and Colusa Counties were not available
to accept the case.


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      Based on these communications, the court informed the
parties that in terms of administrative burden, only Santa Clara
and Sacramento were available. “So in my view, this hearing
should be limited to Sacramento and Santa Clara Counties. And
then, I will conduct the McGown hearing. I will conduct the
Cooper hearing.[13] And then, we will make a decision.”
      Defense counsel objected to the exclusion of the Los
Angeles County Superior Court, arguing, based on the AOC’s
written memorandum, that the court in Sacramento County was
“at least as tentative” about receiving the case as the court in
Los Angeles County. The court informed the parties that the
AOC staff had also communicated with the court orally and had
notified the court that Los Angeles County was willing to accept
the case only if ordered to do so. The court stated: “And I cannot
order them to do so, only the Chief Justice through the [AOC]
can make that order. . . . [¶] . . . [¶][14] Consequently, any


13
      In McGown v. Superior Court (1977) 75 Cal.App.3d 648
(McGown), the court held that the parties have a right to an
evidentiary hearing to address (1) the “presence or absence of
prejudicial publicity” in any new venue under consideration (id.
at p. 653) and (2) the “relative hardship involved in trying the
case in various locations” (id. at p. 652, fn. 5). We affirmed this
holding in People v. Cooper (1991) 53 Cal.3d 771 (Cooper),
clarifying that “the conservation of judicial resources and public
funds,” and the “convenien[ce of] witnesses, attorneys, and
others, including interested citizens of . . . the county of the
crime” are relevant factors. (Id. at p. 805.)
14
      Defendant argues that the trial court, not the Chief
Justice, could have issued this order, although the defense
argued the opposite in the trial court. Defendant’s argument on
appeal misses the mark, and his trial court argument was
correct. Under rule 4.152 of the California Rules of Court, the


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polling will be limited to Santa Clara County and Sacramento
County.”
      At an evidentiary hearing, on the issue of pretrial
publicity, the defense referred to various community surveys for
each county and renewed its request that the court consider the
Los Angeles County Superior Court. The court denied the
request, and later prohibited the defense from using the Los
Angeles survey results as context for evaluating the survey
results from other counties. The defense then presented the
expert testimony of a specialist in public opinion surveys and,
also, Dr. Craig Haney, an expert on the relationship between
pretrial publicity and prejudice in criminal cases. Among other
things, Dr. Haney summarized the survey results for Santa
Clara and Sacramento Counties. Although the defense was not
permitted to present the survey results for Los Angeles County,
defendant included those results in his brief in this court, and
we include them in the following chart for the sake of
comparison.




AOC advises the trial court as to which counties are available.
A trial court cannot overrule a decision of the AOC. Only an
adopted motion of the Judicial Council or an express instruction
from the Chief Justice can do so.

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                              Los              Santa      Sacramento
                              Angeles          Clara
Recognized the case:          79%              92%        96%
Thought that defendant        47%              69%        76%
was probably guilty:
Were aware defendant          35%              63%        71%
had been convicted of
killing Joie Armstrong:
Believed defendant            35%              44%        58%
should receive the death
penalty:


      The trial court acknowledged that “[t]he presence or
absence of prejudicial publicity” was one of the issues to be
considered when selecting a venue (McGown, supra,
75 Cal.App.3d at p. 653), but it also noted that “once the decision
is made as to the change of venue, that county, whatever it
happens to be, is going to be deluged, if that’s the proper word,
with additional and more detailed prejudicial pretrial publicity.”
Therefore, the court doubted “the continuing validity” of the
defense’s survey results. The court further noted that because
of the nature of the allegations in this case, most people have
heard about the case, and that the only way to assess the effect
of that pretrial publicity was through voir dire.
      The court then turned to the question of hardship, stating
it had “read the detailed statistical information . . . concerning
the comparison of the two counties” with respect to various
factors such as population, cost, transportation, among others,

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and had found that “all of those factors almost balance out.” The
court noted that Santa Clara County was the only county with
no reservations about accepting the case, and it concluded: “In
the interest of justice, comparing all of these different factors
under Cooper, the court now decides that this case is going to be
transferred to Santa Clara County for trial.”
      On February 14, 2002, defendant filed a petition for writ
of mandate challenging the trial court’s decision. The Fifth
District Court of Appeal summarily denied the petition in a
three-page opinion, and we denied defendant’s petition for
review.
      On July 11, 2002, while voir dire was proceeding in Santa
Clara County, the defense filed its second motion to change
venue, noting that after initial excusals, 215 prospective jurors
remained in the venire pool, all of whom had filled out a juror
questionnaire. Of this group, 96 percent had read or seen
something about the case, 77 percent had heard of defendant
and were able to state facts about the case, 46 percent believed
defendant was guilty, 74 percent knew about the murder of Joie
Armstrong, 56 percent believed defendant had killed
Armstrong, 38 percent believed that the death penalty was the
appropriate penalty in the case, and 27 percent knew defendant
had confessed to his crimes. The defense also submitted a 100-
page exhibit (compiling media articles about the case) and a
computer disk (containing digital photographs depicting the
extensive media presence outside the courthouse).
      In ruling on the second motion, the court pointed out that
during voir dire, the defense had made 45 challenges for cause,
of which 24 were denied, and 21 were granted. Of the challenges
the court denied, only four were based on concern about the

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impact of pretrial publicity. The court noted that everyone on
the panel was examined on the publicity issue and confirmed
they would not allow what they had read, seen, or heard to affect
their decision. The court stated it had made its independent
judgment as to each juror’s state of mind and found whether
they were credible, honest, and would give both sides a fair trial.
The court also cited People v. Harris (1981) 28 Cal.3d 935
(Harris), in which we said that in a high publicity case, no one
can expect that “ ‘the jurors [will] be totally ignorant of the facts
and issues’ ” (id. at p. 949, quoting Irvin v. Dowd (1961) 366 U.S.
717, 722), and “ ‘[i]t is sufficient if the juror can lay aside his
impression or opinion and render a verdict based on the
evidence presented in court’ ” (Harris, at p. 950, quoting Irvin,
at p. 723). Based on its reasoned conclusion that defendant
could have a fair trial in Santa Clara County, the court denied
defendant’s second motion for a change of venue.
         2. Defendant’s arguments on appeal
            a. Initial selection of Santa Clara County
       Defendant argues the trial court erred both procedurally
and substantively in choosing Santa Clara County as the venue
for trial.
      If the trial court finds “a reasonable likelihood that a fair
and impartial trial cannot be had in the county” (§ 1033,
subd. (a)), it must grant a change in venue, and then, in
selecting a new county, various procedural requirements come
into play. The court first must notify the Judicial Council, which
presents to the trial court a list of courts that — based on the
state’s interest in expediting judicial business and equalizing
the work of the judges — are available to take the case. (See
Cal. Rules of Court, rule 4.152.) Then, “absent an agreement as

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to the new venue, the parties have a right to an evidentiary
hearing to determine where the case should be transferred.”
(People v. Davis (2009) 46 Cal.4th 539, 574 (Davis).) At such a
hearing — which is sometimes called a “McGown hearing” —
the parties present evidence as to the suitability of the various
courts that the Judicial Council has put forward, after which,
the transferring court decides the question. (See McGown,
supra, 75 Cal.App.3d 648.)
      Substantively, the selection of a new venue is governed by
factual considerations, including pretrial publicity and
hardship. “The presence or absence of prejudicial publicity in [a
successor county] is one of many facts and circumstances which
should be considered by [the transferring] court in the exercise
of its discretion to decide where the cause should be
transferred.” (McGown, supra, 75 Cal.App.3d at p. 653.) “Even
if the magnitude of pretrial publicity in a successor county
[would] not . . . merit a change of venue from that county, it may
still be large enough to persuade a court not to transfer the case
to that county.” (Davis, supra, 46 Cal.4th at p. 574, italics
added, citing Cooper, supra, 53 Cal.3d at p. 804.)
“[C]onsiderations of relative hardship, and the conservation of
judicial resources and public funds, are important factors in
deciding between various possible venue sites.” (Cooper, at
p. 805; see McGown, at p. 652, fn. 5.) Hardship considerations
may, for example, support a choice of venue that is relatively
near the county where the crime occurred, since such a county
is “more convenient for witnesses, attorneys, and others,
including interested citizens of . . . the county of the crime.”
(Cooper, at p. 805.) “The decision of where to transfer the case
lies within the discretion of the [trial] court, which must
consider the ‘interest of justice.’ ” (Id. at p. 804.)

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              i. Procedural error
      As noted, defendant argues the court erred procedurally
in choosing Santa Clara County. Specifically, he argues the
court improperly eliminated Los Angeles County from
consideration, and that it improperly prohibited him from
presenting evidence regarding the scope and impact of pretrial
publicity in Los Angeles County. Defendant asserts the court’s
rulings violated the holding of McGown, supra, 75 Cal.App.3d
648.
      In McGown, the trial court granted a change of venue and
then continued the matter for a hearing to determine which
court would receive the transferred case. (McGown, supra,
75 Cal.App.3d at p. 650.) In preparation for the hearing, the
court conferred with Judicial Council staff and was told “that
Contra Costa, Sacramento and Stanislaus Counties were able to
accept transfer of the cause.” (Ibid.) Thereafter, the court
conferred with each party ex parte, informing them separately
that the case would probably be transferred to Stanislaus
County. (Ibid.) After those ex parte communications, the court
ordered that the case be transferred to Stanislaus County. The
defense requested a continuance “to investigate the nature and
extent of the pretrial publicity in Stanislaus County.” (Ibid.)
The court denied the continuance, expressing its “ ‘belief that
[Stanislaus C]ounty is a forum where there would be no adverse
feelings or prejudice because of any type of pre-trial statements
or publicity against this defendant.’ ” (Id. at p. 651.) On those
facts, the Court of Appeal held the court abused its discretion.
The Court of Appeal stated that the factual issue of the nature
and extent of pretrial publicity in Stanislaus County “should
have been resolved by evidence received in open court rather


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than by informal ex parte communications between respondent
court and the parties.” (Id. at p. 652.)
      The present case is not similar to McGown. Here, the
court did not confer ex parte with either party, and it permitted
the defense to present evidence about the suitability of the two
counties the AOC had determined to be available. Defendant
complains about “ex parte communications between the court
and [the staff] of the AOC,” but there is no obligation that the
parties be present when the court confers with AOC staff. (See
Cal. Rules of Court, rule 4.152.) The AOC is part of the judicial
branch of government, and its role, among other things, is to
ensure that the judicial workload is allocated among courts in
an appropriate manner.        (Ibid.)  That determination is
administrative in nature, and contrary to defendant’s argument
on appeal, it is not a determination that can be litigated at a
McGown hearing, nor can the parties call AOC staff as witnesses
and litigate over the specific content of the AOC’s
communications to the court. McGown held that the parties can
submit evidence regarding the suitability of the counties put
forward by the AOC. McGown did not hold that the parties can
object to the AOC’s decision or dispute whether the court
understood the AOC’s decision accurately.15




15
      Defendant argues that section 190.9, subdivision (a)(1)
obligated the trial court to conduct its consultation with the
AOC “on the record.” The court does not need to do so any more
than it would need to conduct an administrative consultation
with the court’s presiding judge “on the record.”           The
requirements of section 190.9 only extend to case “proceedings”;
they do not apply to administrative communications among staff
of the judicial branch.

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      Defendant next focuses on the specific wording of the
memorandum the AOC sent to the court — that Los Angeles
County was willing to accept the case if ordered to do so. But
defendant’s focus on the memorandum alone is too narrow. The
court was entitled to rely on all its communications with AOC
staff, not merely on the written memorandum. As the court
informed the parties, AOC staff made clear in oral
communications that Los Angeles County was not available.
The fact that Los Angeles County Superior Court would have
accepted defendant’s case if an appropriate authority had
ordered it to do so is beside the point. The law does not permit
the defense to choose a county where, according to its survey,
the case is least known, and then demand an order forcing that
county to accept the case. Such a procedure would negate the
AOC’s role in allocating the state’s judicial workload in an
efficient manner. (See Cal. Rules of Court, rule 4.152; People v.
Green (1980) 27 Cal.3d 1, 45, fn. 29 [“the courts that are
available for [transfer of a case] are determined not by the
parties but by the Administrative Director of the Courts”].)
Therefore, the AOC was entitled to make an administrative
determination that Los Angeles County was unavailable.
      Defendant argues that even if Los Angeles was not
available, the court should have considered the Los Angeles
County survey results as contextual evidence demonstrating
that Santa Clara County was unsuitable. But the only issue
before the court at the McGown hearing was which county
among the two available — Santa Clara and Sacramento — was
the most suitable. (See People v. Ng (2022) 13 Cal.5th 448, 521–
522 (Ng) [concluding a trial court cannot abuse its discretion by
declining to select a county that was not provided by the Judicial


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Council].)    Los Angeles County survey results thus were
irrelevant.
               ii. Substantive error
      Defendant also asserts the court erred substantively in
selecting Santa Clara over Sacramento County. In choosing
between these two counties, however, the court appropriately
considered both pretrial publicity and relative hardship. (See
McGown, supra, 75 Cal.App.3d at pp. 652, fn. 5, 653; see also
Cooper, supra, 53 Cal.3d at pp. 804–805.) Regarding pretrial
publicity, the two counties were similar, a point conceded by the
defense’s own expert witness. Regarding hardship factors, the
court noted that most such factors “balance[d] out.” Santa Clara
was slightly larger. It had the third largest city in California,
and it also had an international airport with convenient public
transportation to the courthouse and hotels. Sacramento
County, however, had a slightly lower cost of living. Based on
the evidence, the court chose Santa Clara County, and
defendant fails to persuade us that the selection of Santa Clara
County was an abuse of discretion. (See Cooper, at pp. 804–805
[abuse of discretion standard of review applies to selection of an
alternative venue].)
      Turning to defendant’s claim of substantive error
regarding the court’s selection of Santa Clara County, we note
that defendant frames the issue as if the court had denied a
defense motion for a change of venue from Santa Clara County.
Accordingly, defendant’s briefing on appeal discusses whether
“there [was] a reasonable likelihood that a fair and impartial
trial [could not] be had” in Santa Clara County (§ 1033,
subd. (a)), and he analyzes the factors that, according to settled
case law, inform such a determination. Consistent with this


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framing, defendant argues that this court should apply a de novo
standard of review. Defendant’s approach to this issue is
flawed. It is true that defendant eventually moved for a change
of venue from Santa Clara County (see pt. II.D.2.b., post), but at
the time the court made its initial selection of Santa Clara
County, no such motion was pending. Rather, the question
before the court was which county to select from the two counties
the AOC said were available, and, as noted, the court’s selection
is reviewed for abuse of discretion. (See Cooper, supra,
53 Cal.3d at pp. 804–805.)
       Finally, defendant argues the court should have asked the
AOC to suggest additional counties. The court declined to do so
on the ground that it would delay the proceeding. This was not
error. The defense had expressly agreed to a procedure in which
each party proposed various counties as possible venues for the
trial, so defendant cannot complain that more counties were not
considered. More importantly, our case law makes clear that a
defendant is entitled to venue in a county where he can receive
a fair and impartial trial; he is not entitled to venue in a county
of his own choosing. And, as discussed below, defendant does
not show he was unable to receive a fair and impartial trial in
Santa Clara County.
            b. Second motion for a change of venue
      During voir dire in Santa Clara County, defendant again
moved for a change of venue, asserting that voir dire had shown
he could not receive a fair trial in that county. Defendant argues
the court erred in denying his second motion.
     As noted, a defendant in a criminal case is entitled to a
change of venue “when it appears that there is a reasonable
likelihood that a fair and impartial trial cannot be had in the

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county.”      (§ 1033, subd. (a).)   Factors relevant to this
determination include: (1) the nature and gravity of the offense
or offenses charged; (2) the nature and extent of the publicity;
(3) the size of the relevant community; (4) the defendant’s status
within the community; and (5) the popularity and prominence of
the victim within the community. (See People v. Vieira (2005)
35 Cal.4th 264, 279.) “The same factors apply to a motion for a
second change of venue, except that ‘the fact that venue has
already been changed once affects the analysis.’ ” (Davis, supra,
46 Cal.4th at p. 578, quoting Cooper, supra, 53 Cal.3d at p. 805.)
      “ ‘A denial of a motion for change of venue will be upheld
on appeal unless the record shows both that it was “ ‘reasonably
likely [that] a fair trial could not be had at the time the motion
was made,’ ” and that it was “ ‘reasonably likely a fair trial was
not in fact had.’ ” ’ [Citation.] ‘Reasonably likely’ in this context
means something less than ‘ “ ‘more probable than not,’ ” ’ but
something more than ‘merely possible.’ ” (People v. Lewis (2008)
43 Cal.4th 415, 447.) The trial court’s factual determinations
are reviewed for substantial evidence, but its determination as
to the reasonable likelihood of a fair trial in the venue in
question is reviewed de novo. (See People v. Rountree (2013)
56 Cal.4th 823, 837 (Rountree).)
      Defendant argues it was reasonably likely he could not
receive a fair trial in Santa Clara County, and therefore the
court erred in denying his second motion, and he further argues
that it was reasonably likely he did not in fact receive a fair trial
in Santa Clara County, and therefore the error was prejudicial.
Defendant, however, does not demonstrate that any of the
relevant factors required the court to change venue from Santa
Clara County.


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      Regarding the nature and gravity of the offenses, there is
no question that defendant’s crimes were brutal, factually
shocking, and unusually grave. But the trial court considered
defendant’s “renewed motion” for a change of venue after having
already once granted a change of venue, and after a new venue
had been selected based on a McGown hearing. Initially, those
considerations weigh against a second change of venue. (See
Davis, supra, 46 Cal.4th at p. 578.) In addition, this case was
not being tried in the county where the crimes occurred or where
any of the victims resided or worked; thus, in all other counties,
the jurors’ reaction to the nature and gravity of defendant’s
crimes would likely be similar.          (See Davis, at p. 578
[“ ‘Prospective jurors would sympathize with the girls’ fate’ no
matter where the trial was held, and this sympathy stems from
the nature of the crime, ‘not the locale of trial’ ”].) Thus, this
first factor did not support a change of venue from Santa Clara
County.
       As for the nature and extent of publicity regarding
defendant’s crimes, such publicity was likely to be significant in
every county, and once a particular county was selected for the
trial, publicity in that county would only increase. Thus, “a
change of venue ‘offered no solution to the publicity problem.’ ”
(Davis, supra, 46 Cal.4th at p. 579.) In a case like the present
one, the defendant cannot expect that “ ‘the jurors be totally
ignorant of the facts and issues.’ ” (Harris, supra, 28 Cal.3d at
p. 949.) Therefore, the focus must be placed instead on selecting
jurors who can put aside whatever they may have heard about
the case, keep an open mind, and decide the issues based on the
evidence presented in the courtroom (id. at p. 950), which is how
the court proceeded in this case. Because Santa Clara County
was not the county where the crimes occurred or where any of

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the victims had resided or worked, pretrial publicity, regardless
of how pervasive it was in Santa Clara County, was less likely
to have a prejudicial impact on jurors in that location.
Therefore, this factor did not tip in favor of a change of venue
away from Santa Clara County.
       The next factor focuses on the size of the community where
the trial is held. In a county like Santa Clara County that has
a large and diverse population, “the suggestion that 12 impartial
individuals [can]not be empaneled is hard to sustain.” (Skilling
v. United States (2010) 561 U.S. 358, 382; see Davis, supra,
46 Cal.4th at p. 579.) Moreover, that observation is certainly
borne out by the trial court’s experience in this case. After
initial excusals, 215 prospective jurors remained in the venire
pool. The court then questioned the individual members of that
group, evaluated their demeanor, and excused prospective
jurors who, in the court’s assessment, had been prejudicially
impacted by pretrial publicity or were disqualified to serve for
other reasons. That process reduced the pool of prospective
jurors to 67, all of whom had been determined, after a careful
examination, to be impartial. Although there are a handful of
counties in California that are more populous than Santa Clara
County, it cannot be seriously argued that Santa Clara County
was too small to permit the selection of an impartial jury, and
the record suggests that the court was able to select such a jury.
      The last two factors are defendant’s status within the
community and the popularity and prominence of the victim in
that community. These factors focus on whether there is a
connection between the location and the individuals involved in
a defendant’s crimes that might inflame the passion of jurors
drawn from that location. Defendant does not assert that he or
the victims had ever been residents of Santa Clara County or
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had any special connection to that county. Hence, he does not
explain how his status in Santa Clara County made that county
an especially poor choice of venue, nor does he show that the
victims were popular or prominent in the county. Of course,
disclosure of the details of defendant’s crimes was likely to
undermine defendant’s status in Santa Clara County and was
likely to increase the popularity and prominence of the victims
in that county, but the same would be true of any county that
might be selected as a venue for the trial. Santa Clara County
was not specially situated in that regard. (See People v. Harris
(2013) 57 Cal.4th 804, 829 [“any features of the case that gave
the victim prominence in the wake of the crimes would
inevitably have become apparent no matter in which venue
defendant was tried”].) Accordingly, the last two factors did not
favor a change of venue away from Santa Clara County.
     Because the relevant factors did not support a change of
venue, the trial court did not err in denying defendant’s motion.
         3. Conclusion
      After granting defendant’s first change of venue motion,
the trial court did not err either procedurally or substantively in
selecting Santa Clara County as the venue for defendant’s trial.
Further, the court did not err in denying defendant’s second
motion for a change in venue. Because defendant was able to
receive a fair and impartial trial in Santa Clara County, we also
conclude the trial court’s rulings did not violate defendant’s
state or federal constitutional rights.
      E. Guilt Phase Issues
         1. Requests for Kelly hearings
     Before trial, defendant sought and was denied a Kelly
hearing regarding the prosecution’s fingerprint evidence. (See

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People v. Kelly (1976) 17 Cal.3d 24 (Kelly).)16 On appeal,
defendant claims the court violated the Kelly rule by allowing
the guilt phase testimony of the prosecution’s fingerprint expert
and its arson expert. He also claims these errors violated his
state and federal constitutional rights. We conclude that with
respect to each expert, the expert’s testimony was not subject to
the Kelly rule, and for the same reason, we also find the trial
court did not violate defendant’s state or federal constitutional
rights.
       “Under the Kelly rule, ‘ “when faced with a novel method
of [scientific] proof, [we] have required a preliminary showing of
general acceptance of the new technique in the relevant
scientific community” before the scientific evidence may be
admitted at trial.’ (People v. Daveggio and Michaud (2018)
4 Cal.5th 790, 831, quoting Kelly, supra, 17 Cal.3d at p. 30.)
Kelly ‘renders inadmissible evidence derived from a “new
scientific technique” unless the proponent shows that (1) “the
technique is generally accepted as reliable in the relevant
scientific community”; (2) “the witness testifying about the
technique and its application is a properly qualified expert on
the subject”; and (3) “the person performing the test in the
particular case used correct scientific procedures.” ’ (People v.
Jackson (2016) 1 Cal.5th 269, 315–316.)[17] The party offering

16
     The Kelly hearing was referred to as a “Kelly-Frye
hearing” until revisions to the Federal Rules of Evidence
superseded the holding of Frye v. U.S. (D.C. Cir. 1923) 293 F.
1013. (See People v. Bolden (2002) 29 Cal.4th 515, 545
(Bolden).)
17
     The Kelly holding is sometimes described as a “three-
pronged test.” (Bolden, supra, 29 Cal.4th at p. 544.) Most of


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the evidence has the burden of proving its admissibility by a
preponderance of the evidence. (People v. Ashmus (1991)
54 Cal.3d 932, 970.) We review de novo the trial court’s
evaluation regarding whether a new scientific technique is
generally accepted as reliable in the relevant scientific
community. (Id. at p. 971.)” (People v. Nieves (2021) 11 Cal.5th
404, 444 (Nieves).)
            a. Fingerprint evidence
      Before trial, defendant moved to exclude evidence that a
latent fingerprint found on the stamp of the envelope that was
sent to Special Agent Alston matched his right thumbprint,
unless the prosecution first proved the reliability of the evidence
at a Kelly hearing.
     FBI Agent Holmes was the fingerprint examiner who
matched the latent fingerprint on the stamp to defendant’s right
thumbprint. At the preliminary examination, Holmes described
his methodology as follows: “Whenever any latent examiner
looks at a print, they study that print for all the information that
is there. So, whether it’s conscious or unconscious, you’re using
all the information in that print when you’re doing a
comparison.” “Whenever I make an identification, I study the
detail of the prints in question. And at some point, I become


defendant’s brief on appeal focuses on the first prong (general
acceptance of the new scientific technique in the relevant
scientific community). Defendant, however, also makes a one-
sentence argument that the trial court should have held a third-
prong Kelly hearing (a case-specific inquiry into whether correct
scientific procedures were used here). In the context of a Kelly
motion, however, both prongs depend on a threshold finding
that a new scientific technique was employed. The discussion
below focuses on the latter question.

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confident that they are a match. In this particular case, I was
asked to go back and count the number of characteristics that
matched. I did so. And it’s approximately 12 characteristics
that match.” Holmes conceded he did not generally apply a
strict counting technique: “I don’t separate . . . how many
ending ridges, how many dividing ridges, and what other
characteristics are. I don’t divide them up into ‘how many.’ ”
Although he counted matching characteristics in this case, he
claimed that many examiners do not do so.
      Based upon this preliminary examination testimony,
defendant asserted that Agent Holmes used a “holistic”
“ridgeology” method for matching prints.18 Building on his
characterization of Agent Holmes’ methodology, defendant’s
motion to exclude the thumbprint evidence argued that
ridgeology was a new scientific technique that was not generally
accepted in the scientific community. Specifically, defendant
distinguished the so-called ridgeology method from the “point-
counting” method, which entails counting Galton “ridge
characteristics”19 within a fingerprint and looking for at least
eight to ten common characteristics before declaring that two
prints match. By contrast, the ridgeology method examines
three levels of detail in a fingerprint:         “Level I (class
characteristics such as loops[,] whorls, and arches), Level II
(traditional ‘Galton’ ridge characteristics such as bifurcations,
ridge endings, enclosures, etc.), and Level III (pores and ridge
shapes).” Based on this three-level examination, the examiner
reaches a subjective conclusion as to whether there is a match,

18
     Neither the term “holistic” nor the term “ridgeology”
appears anywhere in the preliminary examination transcript.
19
     Named for Sir Francis Galton (1822–1911).

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but the examiner does not count a minimum number of Level II
details.
      The court denied defendant’s motion for a Kelly hearing,
stating, “I have had it happen on hundreds of occasions where a
latent fingerprint examiner has testified and they have used
various different approaches. And in some cases the defense, in
fact, has called an expert on their behalf to contest the
testimony. And ultimately, it’s a question of fact for the trier of
fact . . . .” The court said there was “no authority for the
proposition that a Kelly hearing is required for the admissibility
of a latent fingerprint examiner’s testimony.”
      In accordance with this ruling, during the guilt phase of
defendant’s trial, Agent Holmes testified as a prosecution expert
in fingerprint lifting and comparison. He testified that, using a
chemical process, he raised a latent fingerprint on the stamp
that was attached to the envelope that had been mailed to the
FBI and compared defendant’s fingerprints to that latent
fingerprint. He thus concluded the latent fingerprint matched
defendant’s right thumbprint.         Agent Holmes was not
questioned by either the prosecution or the defense about the
process he used to determine the match.
      Defendant argues the court erred when it did not require
a Kelly hearing prior to the admission of Agent Holmes’s
testimony. He reiterates his theory that the “ridgeology”
method employed by Holmes was a new scientific technique that
was not generally accepted in the scientific community, and he
also argues that it was an unreliable method. We reject
defendant’s argument.
      First, it is far from clear that ridgeology qualifies as a new
scientific technique. The scientific principles that underlie

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fingerprint evidence are that each individual’s fingerprints are
unique and that the unique pattern does not change over time;
those principles are hardly new. (See U.S. v. Baines (10th Cir.
2009) 573 F.3d 979, 982.) The method by which a fingerprint
examiner, presented with two readily visible fingerprint images,
might compare the images and declare them to be a match is
not, itself, a scientific technique. (See In re O.D. (2013)
221 Cal.App.4th 1001, 1005–1010 [fingerprint examiner’s use of
analysis, comparison, evaluation, and verification (ACE-V)
method of comparing fingerprints not subject to Kelly]; see also
People v. Cowan (2010) 50 Cal.4th 401, 470 (Cowan) [ballistics
and tool mark comparisons not subject to Kelly]; People v. Pride
(1992) 3 Cal.4th 195, 238–239 [hair sample comparison not
subject to Kelly]; People v. Farmer (1989) 47 Cal.3d 888, 912–
913 [shoe print comparison not subject to Kelly]; but see People
v. Venegas (1998) 18 Cal.4th 47, 81 (Venegas) [“DNA evidence is
different. Unlike fingerprint, shoe track, bite mark, or ballistic
comparisons, which jurors essentially can see for themselves,
questions concerning whether a laboratory has adopted correct,
scientifically accepted procedures for generating autorads or
determining a match depend almost entirely on the technical
interpretations of experts”].)
      Second, it does not appear that Agent Holmes relied
exclusively, if at all, on the ridgeology method. Rather, Holmes
was asked to count the number of ridge characteristics that
matched, and he found approximately 12, a number that exceeds
the minimum number that defendant claimed was necessary.
       Third, “Kelly was designed to insulate the jury from expert
testimony premised on methods that ‘carry [a] misleading aura
of scientific infallibility’ ” (People v. Eubanks (2011) 53 Cal.4th
110, 141, quoting People v. Stoll (1989) 49 Cal.3d 1136, 1157; see
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                Opinion of the Court by Guerrero, C. J.


People v. Lucas (2014) 60 Cal.4th 153, 223), but no such concern
was present here. In his testimony, Agent Holmes merely
described his training and experience as a fingerprint examiner,
then stated he found a match between the latent fingerprint on
the stamp and defendant’s thumbprint. Holmes did not mention
his method of comparing the two prints, he did not discuss
ridgeology or any other specific method of comparison, and he
did not suggest that he had used a new fingerprint matching
technique that was infallible or superior to traditional methods.
Therefore, the concern that animated our holding in Kelly does
not come into play here.
      Fourth, even without a Kelly hearing addressing the
validity of Agent Holmes’s method, the defense was free to cross-
examine Holmes about his method and to undermine Holmes’s
credibility by showing that Holmes’s method was unreliable.
(See Cooper, supra, 53 Cal.3d at p. 814 [“ ‘Careless testing
affects the weight of the evidence and not its admissibility, and
must be attacked on cross-examination or by other expert
testimony’ ”].) Significantly, the defense used Agent Holmes as
a witness in its own case-in-chief to testify that certain
fingerprints found at the crime scene did not belong to
defendant. Defendant does not suggest that Holmes’s alleged
use of the ridgeology method was a problem when Holmes was
testifying in the defense’s favor. Having chosen not to cross-
examine Holmes regarding his method of comparison, defendant
cannot credibly argue here that he suffered any prejudice from
the failure of the trial court to hold a Kelly hearing.
      Finally, defendant readily admitted in his detailed
confession that he was the one who mailed the letter with the
map to the FBI. It is true the fingerprint evidence helped to
corroborate defendant’s confession, but the confession was
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                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


corroborated on so many other points that this additional
corroboration, through the testimony of Agent Holmes, could not
possibly have made a significant difference.
    Defendant also argues that the weakness of Agent
Holmes’s testimony rendered the evidence unreliable and
lacking in relevance under Evidence Code section 801, which
requires that expert testimony be of assistance to the jury, and
under Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 753, which held that “the trial
court has the duty to act as a ‘gatekeeper’ to exclude speculative
expert testimony.” We reject this argument, too. Agent Holmes
testified regarding his significant expertise as a fingerprint
examiner, and he further testified that it was his expert view
that the latent fingerprint found on the stamp corresponded to
defendant’s thumbprint. Facially, Holmes’s testimony was not
weak, and if the defense believed that Holmes’s methodology
was somehow improper, making his testimony weak, then the
defense was entitled to cross-examine Holmes regarding that
methodology to expose any weakness. It did not do so.20
           b. Arson evidence
      During the guilt phase, FBI Agent Timothy Huff was
qualified as an expert in arson investigations and testified for
the prosecution. Prior to Agent Huff’s testimony, the defense
objected to its admissibility. In support of that objection,
defense counsel quoted from the conclusion of a report Agent


20
      Defendant briefly argues the court abused its discretion by
allowing Agent Holmes’s testimony despite an objection under
Evidence Code section 352 (probative value substantially
outweighed by undue prejudice, etc.). However, defendant does
not develop this argument, and we summarily reject it.

                                 116
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


Huff had authored, as follows: “The fire to the Sund rental
vehicle was deliberately set, not accidental, and occurred many
days or several weeks before being examined by Mr. Huff. It
was not a recent fire.” Defense counsel argued that any
testimony by Agent Huff along the lines of that report’s
conclusion was inadmissible “absent some sort of a Kelly-Frye
admissibility showing that whatever techniques he is using to
reach that conclusion is generally accepted by a relevant
scientific community.” Defendant also asserted that Agent Huff
should not be allowed to testify because his testimony would not
assist the jury (see Evid. Code, § 801), and that the comment
that the fire was “not accidental” improperly addressed whether
defendant had the mental state required for commission of the
crimes charged, thus violating section 29.
    The court overruled defendant’s objections. Regarding the
demand for a Kelly hearing, the court stated that testimony from
an arson investigator as to whether the fire was set
intentionally, “based upon his experience, his training, his
background, his examination of the vehicle, the property, trees,
whatever that might have been also burned . . . is not subject to
a Kelly test. You can certainly put on competing evidence if you
feel that the opinion has no value . . . . But I don’t believe that
this type of testimony is subject to a Kelly test.”
      Regarding    Evidence      Code      section 801,   the   court
commented that Agent Huff’s testimony would be generally
consistent with the theory that defendant burned the Pontiac to
destroy evidence, and “in that context, it’s certainly relevant.”
Regarding section 29, the court said: “I don’t think we are
talking about [a] Penal Code section 29 [problem] because he is
not giving an opinion in this courtroom as to the defendant . . .
and the examination he conducted of [defendant] and whether
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                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


or not he felt [defendant] had the intent or the capacity or
whatever when he did what he did. He is simply saying, . . .
whoever did this, in his opinion, did it deliberately and
intentionally. And you can . . . cross-examine on it. . . . You
[can] call your own competing expert. You can argue the opinion
as to the weight to the trier of fact, the jury. But that does not
mean it’s not legally admissible.”
      Agent Huff testified that he examined the burned Pontiac
in which the bodies of Carole and Silvina were found. Based on
the extent of the damage to the car and the gasoline odor, he
thought it was unlikely the fire was accidental. Because the soot
on nearby tree branches did not rub off easily, and because
scorched pine needles were no longer clinging to the saplings, he
believed the fire had been started “some weeks prior to” his
investigation, possibly on February 18, 1999.
      Defendant argues that the court erred in failing to hold a
Kelly hearing. We disagree. “The Kelly test is intended to
forestall the jury’s uncritical acceptance of scientific evidence or
technology that is so foreign to everyday experience as to be
unusually difficult for laypersons to evaluate. [Citation.] In
most other instances, the jurors are permitted to rely on their
own common sense and good judgment in evaluating the weight
of the evidence presented to them.” (Venegas, supra, 18 Cal.4th
at p. 80.) “Where . . . a procedure isolates physical evidence
whose existence, appearance, nature, and meaning are obvious
to the senses of a layperson, the reliability of the process in
producing that result is equally apparent and need not be
debated under the standards of Kelly, supra, 17 Cal.3d 24.”
(People v. Webb (1993) 6 Cal.4th 494, 524.)



                                 118
                        PEOPLE v. STAYNER
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      Agent Huff did not use any new scientific technique and,
instead, based his conclusions on logical deductions that were
within the ordinary knowledge of a layperson. He believed that
the extent of the damage to the Pontiac and the smell of gasoline
suggested the fire was not accidental. The fact that soot did not
rub off tree branches and that scorched pine needles were no
longer clinging to saplings suggested the fire had occurred long
enough before his investigation that any loose soot and pine
needles had already been washed away. He also noted that the
car’s paint was gone and that the exposed metal had rusted,
which reflected the intense heat of the fire. These deductions
did not require application of any scientific technique that had
a misleading aura of infallibility. Rather, they were deductions
that a reasonable person could readily evaluate.
      Defendant also argues that Agent Huff’s testimony
improperly addressed whether defendant had the mental state
required for the crimes charged, thus violating section 29.
Section 29 provides: “In the guilt phase of a criminal action, any
expert testifying about a defendant’s mental illness, mental
disorder, or mental defect shall not testify as to whether the
defendant had or did not have the required mental states, which
include, but are not limited to, purpose, intent, knowledge, or
malice aforethought, for the crimes charged. The question as to
whether the defendant had or did not have the required mental
states shall be decided by the trier of fact.” (Italics added.)
Agent Huff, however, was not an “expert testifying about a
defendant’s mental illness, mental disorder, or mental defect.”
(Ibid.) He never testified about defendant’s mental state.




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Instead, he testified that the fire that burned the car appeared
to have been intentionally set. Thus, section 29 did not apply.21
         2. Motions for a continuance
            a. Factual background
     On May 22, 2002, 19 days before jury selection began,
defendant entered an additional plea of not guilty by reason of
insanity. (§ 1026, subd. (a).) The court appointed Dr. Silva and
Dr. Douglas Harper to examine defendant and testify at a
possible sanity phase trial (§ 1027, subd. (a)). On June 24,
during jury selection, defendant moved to continue the trial,
stating he intended to use Dr. Silva as a witness at a possible
penalty phase trial          and needed more            time for
neuropsychological testing that Dr. Silva had recommended.
The prosecution objected to the continuance, stating defendant
did not enter his insanity plea until just 19 days before trial, and
that the prosecution had already lined up its witnesses, who
would be greatly inconvenienced by the delay. The prosecutor
also asserted the defense had time to act on Dr. Silva’s
recommendations without a continuance because the parties
were still selecting a jury.
      The court expressed perplexity over the fact that the
content of Dr. Silva’s report and the additional testing he was
recommending went “far beyond any [section] 1026
considerations.” Nonetheless, the court recognized the tests


21
      Defendant also briefly argues that the court abused its
discretion by allowing Agent Huff’s testimony despite an
objection under Evidence Code section 352 (probative value
substantially outweighed by undue prejudice, etc.). Because
defendant does not sufficiently develop this argument, we reject
it without further discussion.

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might lead to relevant penalty phase evidence. The court noted,
however, that any penalty phase would not commence until
September, and thus, there was “more than sufficient time” to
do what needed to be done. The court added: “I’m willing to
work with the defense with reference to the schedule to get this
test done, whatever it might be. [¶] But . . . I think these things
can still be done. I think there’s time to do them. And if there’s
not, somebody has to come to the court by way of a showing as
to why it can’t be done.” The court therefore denied the motion
to continue.
     About a month later, after trial had commenced,
defendant filed a new motion to continue the trial, asserting that
the prosecution’s guilt phase case-in-chief was ending earlier
than anticipated, that the defense’s guilt phase expert was
unavailable to testify within the existing time frame, and that
more time was needed to complete Dr. Silva’s follow-up tests.
      The court conducted a hearing on the motion on July 25,
2002. Dr. George Woods who, according to defense counsel, was
the defense’s primary guilt phase expert, testified that he had a
family emergency that was going to consume at least six weeks
of his time and would preclude his participation in the case.
Counsel added that the defense had expected the prosecution to
complete its guilt phase case-in-chief in mid-August, but the
prosecution had unexpectedly rested on July 24. The defense
therefore sought a three-week continuance to allow it to hire a
different expert witness and to allow Dr. Silva to complete his
testing. Defense counsel conceded that one alternative was for




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the defense to use Dr. Silva as a guilt phase witness, but “that
is not our preference.”22
     The court noted that in previous communications, the
defense had suggested that Dr. Woods had been retained only to
oversee testing, and that Dr. McInnes would be the testifying
witness for the defense at trial. The court then said: “To tell the
court now after the jury has been sworn; we are in trial; we have
a change of venue case with counsels from Santa Monica, San
Francisco, Oakhurst, Mariposa County, Sacramento, Solano; we
have witnesses who have actually moved to Santa Clara County
from other portions of California; we have witnesses who have
actually relocated from South America to Santa Clara County,
to now stop the trial, which might mean we would have to
declare a mistrial because of the trial schedule we gave to the
jury, I think is asking too much.” After commenting that the
defense’s mental health experts had been retained for a variety
of reasons other than providing guilt phase testimony, the court
continued: “Now, that being said, if you feel that you need a
guilt phase witness, you have Dr. McInnes.”
      The court also denied the defendant’s request for a
continuance to allow Dr. Silva to complete his testing, noting
Drs. Silva and Harper “were appointed pursuant to [section]
1026 by the court,” not retained by the prosecution or defense.23
“If you want to use them over and above what they were

22
      As related in part I.A.2.c., ante, Dr. Silva ended up being
the defense’s principal expert witness at the guilt phase.
23
      As noted, section 1026 governs insanity pleas.
Technically, Dr. Silva and Dr. Harper were appointed under
section 1027, subdivision (a), which instructs the court, in the
case of an insanity plea, to appoint two experts to examine the
defendant.

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appointed for pursuant to [section] 1026, I certainly can’t stop
you from doing that. But that certainly is outside the scope of
the court appointment. [¶] And if you want to retain
Dr. Silva . . . as a guilt phase expert, you can certainly do
that. . . . [¶] [But] again, it was never represented . . . that you
needed time for these experts to testify in the guilt phase. . . .
[¶] So if you need a guilt phase expert here, you have one in
Dr. McInnes because she is your trial expert.” The court also
noted that obtaining a substitute for Dr. McInnes on short
notice was unrealistic. The court denied the motion, finding no
good cause had been shown.
      A few weeks later, on August 13, 2002, the defense again
sought a continuance based on the prosecution’s asserted failure
to timely provide Dr. Waxman’s report. Dr. Waxman was
scheduled to testify as a prosecution rebuttal witness on
August 14, and the defense indicated it did not receive his report
until August 12. Thus, the defense asked the court to exclude
Dr. Waxman’s testimony or, in the alternative, to continue the
trial until August 19. The prosecutor explained Dr. Waxman’s
report was not completed until the night of August 11 because
of the defense’s delay in providing the “control” PET scans that
Dr. Wu had used as his baseline for purposes of comparison.
     The court commented that there is no requirement that an
expert witness write a report, and regardless of whether
Dr. Waxman wrote a report, defense counsel still needed to
prepare for his cross-examination. The prosecutor said he asked
Dr. Waxman to write a report only after defense counsel asked
him for one, and that the prosecutor gave the report to the
defense as soon as it was available.



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      The court found no discovery violation and denied the
motion to continue, stating: “[T]his is not a surprise as far as
Dr. Waxman testifying as a rebuttal witness. And the report
that he did prepare at the request of the People, which wasn’t
required by law, they didn’t have to do that. They could have
called Dr. Waxman as [a] rebuttal witness and simply said: He’s
going to be a rebuttal witness, and we have no discovery to give
to you; we have no report. He could have done that. They didn’t.
They got the report. They gave it to the defense, albeit you got
it as soon as they did, which is a day or two ago, but that isn’t a
discovery violation.”
      The defense then reiterated its request for a continuance
to allow time to prepare for cross-examination of Dr. Waxman
and to retain a surrebuttal witness. The court denied that
request, too, saying: “I can tell you that from what I’ve heard
up to this point . . . if anybody is well versed to cross-examine on
PET scan [testimony], . . . you are. [¶] . . . [¶] [As to obtaining
a surrebuttal witness, t]hat’s so speculative, it means nothing.
You are telling me that you don’t have one; you might find one.
What are you going to do, go through the yellow pages? What’s
happening here? You either have one or you don’t. You just
don’t get an expert witness in the PET-scan field overnight. . . .
[T]o tell me you are looking to find an expert means nothing to
me as far as a time frame. [¶] So, anyway, the request is
denied.”
            b. Applicable law
     “A trial court’s exercise of its broad discretion when ruling
on a continuance motion is accorded substantial deference on
appeal.” (People v. Brown (2023) 14 Cal.5th 530, 538.) “[T]he
decision whether or not to grant a continuance of a matter rests


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within the sound discretion of the trial court. [Citations.] The
party challenging a ruling on a continuance bears the burden of
establishing an abuse of discretion, and an order denying a
continuance is seldom successfully attacked.” (People v. Beames
(2007) 40 Cal.4th 907, 920; Cal. Rules of Court, rule 4.113
[“Motions to continue the trial of a criminal case are
disfavored”].) Moreover, “[a] midtrial continuance may be
granted only for good cause,” which “ ‘requires a demonstration
that counsel and the defendant have prepared for trial with due
diligence.’ ” (People v. Winbush (2017) 2 Cal.5th 402, 469–470.)
“In determining whether a continuance was properly denied, the
reviewing court examines the specific circumstances, including
the benefits and burdens of postponing a trial that is already
underway. [Citation.] In reality, such challenges rarely have
merit or cause reversal of the judgment on appeal.” (People v.
Garcia (2011) 52 Cal.4th 706, 758 (Garcia).)
           c. Analysis
      Here, the defense sought three separate continuances. In
each instance, the trial court acted within the scope of its
discretion in denying the continuance.
       First, the defense sought a continuance to allow it to act
on Dr. Silva’s recommendation for additional testing. Dr. Silva
had been brought into the case only a few weeks before the guilt
trial began, when defendant entered an insanity plea and the
court appointed Dr. Silva under section 1027, subdivision (a).
Therefore, by the time Dr. Silva was appointed, the defense
should already have lined up any guilt phase expert witnesses
it intended to use. Significantly, the motion for a continuance
did not suggest that the defense intended to use Dr. Silva as a
witness at the guilt phase. Rather, it indicated an intent to use


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him at a possible penalty phase trial. Given these facts, a
continuance would have been disruptive, particularly for the
guilt phase witnesses, and there was no apparent reason why
Dr. Silva’s recommended testing could not be done while the
guilt and sanity phases were proceeding. Indeed, the court said
it was willing to work with the defense to accommodate such
tests by adjusting the trial schedule as needed. Therefore, the
trial court did not abuse its discretion by denying the
continuance.
      Defendant argues the defense hoped to use the results of
Dr. Silva’s additional testing at the guilt phase to show
defendant lacked the mental state to commit the charged
offenses. That may be so, but the defense had ample time to
prepare for the guilt trial. On the eve of trial, defendant added
a plea of insanity, and Dr. Silva was retained by the court to
address sanity phase issues. The fact that Dr. Silva proposed
certain additional tests does not excuse the defense for its
failure to pursue those tests on its own initiative at an earlier
time. Against this background, it is clear that the trial court
acted within its discretion.
     Second,    on   July 23,    2002,     the   defense   sought   a
continuance when it became clear that the prosecution’s case-in-
chief would finish earlier than expected and Dr. Woods
announced he had to withdraw from the case. Defendant argues
that these issues compounded the problem of completing
Dr. Silva’s testing, warranting a continuance. But neither the
People nor the court ever made assurances to the defense
regarding the length of the People’s case-in-chief, nor did the
defense show that Dr. Woods’s unavailability prevented it from
proceeding with Dr. McInnes who, as the designated expert
witness, was already familiar with the case. Accordingly, the
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court did not abuse its discretion in rejecting this second motion
for a continuance. (See People v. Jenkins (2000) 22 Cal.4th 900,
1037 (Jenkins) [when seeking a continuance to secure the
attendance of a witness, the defendant must show, among other
things, that the facts to which the witness would testify could
not otherwise be proven].)
      Defendant argues he was deprived of the testimony of
Dr. Woods and was forced instead to rely on the testimony of
Dr. Silva, who “did not have the [same] experience, credentials,
or familiarity with the case.” Again, defendant does not explain
why the defense could not use Dr. McInnes as a witness.
Defendant also fails to explain how a few weeks’ continuance
would have allowed the defense to use Dr. Woods, who stated he
could no longer participate in the case at all.
      Third, the defense requested another continuance on
August 13, 2002, shortly after receiving Dr. Waxman’s report.
As the court explained, the prosecution was under no obligation
to obtain a written report from this expert witness to share with
the defense. Thus, regardless of whether Dr. Waxman issued a
report, the defense still needed to prepare for his cross-
examination. The report changed nothing in that regard, and in
fact, it helped the defense because it alerted the defense, two
days in advance, as to the substance of Dr. Waxman’s likely
testimony. Consequently, we conclude the court did not abuse
its discretion in denying this third request for a continuance.24


24
      For the same reasons (i.e., that the prosecution had no
obligation to obtain a written report from Dr. Waxman, and that
regardless of whether Dr. Waxman issued a report, the defense
still needed to prepare a response to his testimony), the


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     Defendant argues that the court should have at least
granted the “slight” “inconvenience” of a 24-hour delay “allowing
defense counsel a better opportunity . . . to more thoroughly
review Dr. Waxman’s report.” But Dr. Waxman was testifying
in rebuttal to the defense’s own evidence.               Because
Dr. Waxman’s testimony concerned a subject that the defense
had introduced into evidence, the defense should have been well
prepared to cross-examine him or to make an offer of proof
concerning the aspects of his proposed testimony that required
additional preparation. Defendant failed to make a showing on
either ground. Defendant does not adequately explain why the
receipt of Dr. Waxman’s report, which gave the defense a
preview of the likely content of Dr. Waxman’s testimony,
entitled him to a continuance.
      Defendant also argues that the court’s denial of his three
motions for a continuance violated his state and federal
constitutional rights. Because we conclude that the trial court
acted within its discretion in denying the continuances, we also
find that the court did not violate his constitutional rights.
        3. Rulings admitting people’s evidence
      Defendant argues that the court erroneously admitted
certain prosecution evidence during the guilt phase. We
conclude the court acted within its discretion in admitting the
evidence. For the same reasons, we find the court did not violate
defendant’s state or federal constitutional rights.




defense’s desire to retain a surrebuttal witness to respond to
Dr. Waxman’s testimony did not justify a continuance.
Likewise, the court did not abuse its discretion in denying the
defense’s motion to exclude Dr. Waxman’s testimony.

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                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


      “Only relevant evidence is admissible. (Evid. Code, § 350.)
Evidence is relevant if it has a ‘tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action.’ (Id., § 210.) ‘The trial court has
broad discretion to determine the relevance of evidence
[citation], and we will not disturb the court’s exercise of that
discretion unless it acted in an arbitrary, capricious or patently
absurd manner.’ (People v. Jones (2013) 57 Cal.4th 899, 947.)
Evidence Code section 352 provides for the exclusion of evidence
‘if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.’ We
review a trial court’s admission of evidence under the abuse of
discretion standard. (People v. Navarro (2021) 12 Cal.5th 285,
339.) The ‘undue prejudice’ contemplated by Evidence Code
section 352 ‘ “is that which ‘ “ ‘uniquely tends to evoke an
emotional bias against the defendant as an individual and which
has very little effect on the issues.’ ” ’ ” ’ (People v. Chhoun
(2021) 11 Cal.5th 1, 29, italics omitted.)” (People v. Helzer (2024)
15 Cal.5th 622, 667 (Helzer).)
            a. Photographs depicting victims alive
      Defendant contends the court erred in admitting
testimony and photographs depicting the victims alive and at
Cedar Lodge on the date of the murders. We disagree. The
subject testimony and photographs were relevant and not
unduly prejudicial.
      Before Carole’s husband, Jens, testified, the defense
objected to his anticipated testimony regarding the activities
and plans of Carole and the girls prior to their disappearance.


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                Opinion of the Court by Guerrero, C. J.


The defense also objected to the admission of any photographs
depicting the victims while they were still alive, on the basis
that the photographs had no probative value because defendant
was willing to stipulate to the victims’ identity, and because the
photographs would be unduly prejudicial, outweighing any
probative value they may have had. (Evid. Code, § 352.)
      The court denied the motion, first stating that it could not
imagine “what the prejudicial impact might be” of Jens’s
testimony. The court ruled “he will be allowed to testify,”
stating, “[H]e is a witness who would testify as to where his
spouse and child and [Silvina] went,” thus placing the victims at
the location where the offenses occurred. As to the photographs,
the court said: “Obviously, the witness who is the spouse and
father of one of the victims has a right to identify by way of
photographs who they were. Obviously, the fact that the
photographs were taken at about the time of the events in
question at Cedar Lodge and Yosemite is very relevant. The fact
that one of the victims is wearing a pajama bottom which
apparently was taken from her person and was torn or cut and
portions were still found in the room is certainly relevant.
[¶] . . . The People are not willing to accept the stipulation. The
court finds it’s not binding on the court to order the People to
accept it. The court finds there is probative value. And the
probative value far outweighs any possible perceived prejudicial
impact it would have by having a witness identify his spouse
and child as victims of a homicide.”
      Jens then testified about his relationship with Carole and
Juli, how Carole, Juli, and Silvina left for San Francisco,
Stockton, and Yosemite on February 12, 1999, how he and the
younger children were scheduled to meet up with Carole, Juli,
and Silvina in San Francisco on February 16, and how Carole
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and the girls never arrived in San Francisco. Jens also testified
about the photographic exhibits — exhibit No. 25, which
depicted Carole and Silvina on a bed in a room that matched the
décor of the rooms at Cedar Lodge; exhibit Nos. 26, 27, 30, 31,
32, and 33, which depicted the victims at various locations in the
Yosemite area; exhibit Nos. 28 and 29, which depicted Silvina in
the Cedar Lodge restaurant; exhibit Nos. 34 and 35, which
depicted Juli doing a handstand and a backbend; and exhibit
No. 35, which showed Juli’s shoes in the foreground.
      Defendant contends the testimony and the photographs
were irrelevant because of his willingness to stipulate to the
victims’ identity. However, Jens’s testimony was relevant to
establish the victims’ location at the Cedar Lodge at the time of
the crimes and to explain what the victims were doing there.
His testimony regarding his relationship with the victims
established his credibility as a witness who could testify as to
their intended journey, and the photographs, was relevant to
corroborate his testimony, demonstrating that the victims
arrived in Yosemite as planned and were staying at the Cedar
Lodge. Because the photographs were developed from film
found in the vicinity of the burned Pontiac, they corroborated
other evidence that the burned bodies in the trunk of the Pontiac
belonged to the victims.
     Jens’s testimony and the photographs also corroborated
defendant’s confession that he saw Carole and the girls at Cedar
Lodge. One photograph showed Juli wearing a pajama bottom
that matched cloth found at the crime scene, and thus
corroborated defendant’s statement that he had cut the victims’
nightclothes off their bodies. The same photograph depicted
Juli’s shoes that were found near the burned Pontiac.


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                        PEOPLE v. STAYNER
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      Defendant argues that his willingness to stipulate to the
victims’ identity made this evidence irrelevant, but “the
prosecutor is not required ‘to present its case in the manner
preferred by the defense.’ ” (Clark, supra, 52 Cal.4th at p. 894.)
“A trial court cannot compel a prosecutor to accept a stipulation
that would deprive the state’s case of its evidentiary
persuasiveness or forcefulness.” (People v. Rogers (2013)
57 Cal.4th 296, 329.) Further, a defendant “ ‘cannot prevent the
admission of relevant evidence by claiming not to dispute a fact
the prosecution is required to prove beyond a reasonable doubt.
The jury was entitled to learn that the physical evidence . . .
supports the prosecution’s theory of the case.’ ” (People v.
Steskal (2021) 11 Cal.5th 332, 356, quoting Rountree, supra,
56 Cal.4th at p. 852.) And a “defendant’s not guilty plea put[s]
in issue all of the elements of the charged offenses, including the
elements he conceded.” (Cowan, supra, 50 Cal.4th at p. 476.)
Thus, by pleading not guilty and not guilty by reason of insanity,
defendant put all elements of his charges at issue.
      Defendant also argues that even if the testimony and the
photographs were relevant, their relevance was outweighed by
the danger of undue prejudice. (Evid. Code, § 352.) We disagree.
Jens’s testimony regarding his wife, daughter, and friend, and
his description of their planned journey, were not likely to evoke
an emotional bias against defendant that outweighed the
probative value of the testimony. As for the photographs, we
have “recognized that ‘[c]ourts should be cautious in the guilt
phase about admitting photographs of murder victims while
alive, given the risk that the photograph will merely generate
sympathy for the victims. [Citation.] But the possibility that a
photograph will generate sympathy does not compel its
exclusion if it is otherwise relevant.’ ” (People v. Rogers (2009)

                                 132
                       PEOPLE v. STAYNER
               Opinion of the Court by Guerrero, C. J.


46 Cal.4th 1136, 1163.) Here, the photographs were the sort one
would expect to be taken on a family vacation, and although they
may have evoked some sympathy for the victims, they were also
highly relevant to establish the general context of defendant’s
crimes. Even without the photographs, the jury was likely to
feel significant sympathy for the victims. Further, the court
properly instructed the jury not to be influenced by passion,
sympathy, or prejudice, and to conscientiously consider and
weigh the evidence in reaching its verdict.
     For these reasons, we conclude that the trial court did not
abuse its discretion in admitting the challenged evidence.
           b. Testimony of Jennifer S.
      Jennifer S. testified that she worked at Cedar Lodge and
registered Carole Sund on February 14, 1999, for a two-night
stay in room 509. During redirect examination, the court
allowed the prosecutor to show Jennifer S. exhibit Nos. 25 and
32 — photographs of Carole and the girls that had been
admitted into evidence during Jens’s testimony — to confirm
they were the ones who checked into room 509 that day.
     Defendant argues the court erred in permitting the
prosecutor to show Jennifer S. the photographs, asserting it was
“a deliberate manipulation to ke[ep] alive and perpetuate the
jury’s passions that were already inflamed by the introduction
of [Jens’s] testimony.” Significantly, the defense forfeited the
issue by not objecting to Jennifer S.’s testimony about the
photographs. (Evid. Code, § 353.) In addition, the testimony
was relevant to show Jennifer S. registered the victims into
room 509, and, as explained above (see pt. II.E.3.a., ante), the
admission of the photographs was not unduly prejudicial.



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                Opinion of the Court by Guerrero, C. J.


            c. Testimony of Tracy M. and her daughter
      The defense sought to exclude the testimony of Cedar
Lodge guest Tracy M. and her daughter, basing its motion on
the content of their testimony at the preliminary examination.
The defense asserted that their anticipated testimony regarding
defendant’s presence at the pool with four teenage girls was
improper character evidence under Evidence Code section 1101
and unduly prejudicial under Evidence Code section 352. The
court allowed the testimony. Tracy M. testified that she and her
family were staying at Cedar Lodge with some friends, and that,
on the evening of February 14, 1999, her daughters (ages 15 and
12) and their two friends went to the indoor pool and spa. One
of Tracy M.’s daughters testified that she was at the motel pool
with her sister and two friends that evening when she saw
defendant in the hot tub. She did not see him do anything
unusual.
      Evidence Code section 1101 states that “evidence of a
person’s character or a trait of his or her character . . . is
inadmissible when offered to prove his or her conduct on a
specified occasion,” but such evidence is admissible “when
relevant to prove some fact . . . other than his or her disposition
to commit such an act.” (Evid. Code, § 1101, subds. (a), (b); see
People v. Jones (2013) 57 Cal.4th 899, 930 (Jones).) The
testimony of Tracy M. and her daughter was not proof of
defendant’s disposition to commit the charged offenses. These
witnesses did not suggest that defendant leered at the teenage
girls, or that he even watched them. Instead, Tracy M.’s
daughter testified that defendant did not do anything unusual.
Thus, the testimony did not suggest anything about defendant’s
character or disposition.     Moreover, the testimony had
substantial probative value because it corroborated defendant’s

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confession in which he discussed the same incident at the pool.
Therefore, admission of the testimony did not violate Evidence
Code section 1101.
      For the same reason, the court did not abuse its discretion
in ruling that the testimony was not unduly prejudicial under
Evidence Code section 352. Sitting in a hot tub at a motel pool
is not inherently suspicious behavior that might evoke an
emotional bias against defendant.        The testimony had
significant probative value, and the court acted within its
discretion in allowing it.25
           d. Photographs of the burned Pontiac
      In anticipation of the testimony of FBI Agent Chris
Hopkins, the defense objected to the admission of exhibit
Nos. 63, 64, and 65 into evidence, photographs that depicted the
contents of the trunk of the burned Pontiac. The defense argued
the photographs were unduly prejudicial under Evidence Code
section 352, but the court ruled the photographs were
admissible. Hopkins later testified that he searched the trunk


25
       Defendant also argues the trial court erred by allowing
Tracy M.’s daughter to testify about some photographs that had
earlier been admitted into evidence, depicting Juli and Silvina
at the Cedar Lodge. Defendant argues that this compounded
the error the court had made in originally admitting the
photographs. The defense raised no objection to Tracy M.’s
daughter’s testimony about the photographs and therefore
forfeited the issue. (Evid. Code, § 353.) In addition, the
testimony was relevant because it confirmed that Tracy M.’s
daughter was at the Cedar Lodge at the same time as Juli and
Silvina, and for the reasons stated above regarding the original
admission of the photographs into evidence (see II.E.3.a., ante).
The admission of the photographs through Tracy M.’s
daughter’s testimony was not unduly prejudicial.

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                Opinion of the Court by Guerrero, C. J.


area of the burned Pontiac and saw what appeared to be the
charred skeletal remains of two people. He also identified
exhibit Nos. 63, 64, and 65 as accurate depictions of the contents
of the trunk, and he described those contents, identifying what
appeared to him to be a skull and ribs.
       Defendant argues that the court erred in allowing this
photographic evidence, asserting that the prejudicial impact of
the photographs outweighed their probative value. (Evid. Code,
§ 352.) The photographs, however, were relevant to prove the
steps defendant took to conceal his crimes, including the effort
to thoroughly destroy two of his victims’ bodies. They also
corroborated defendant’s confession in which he described
burning the Pontiac with the bodies in the trunk. The
photographs, which depicted an incinerated mass that was
difficult to identify, were not particularly gruesome, and
Evidence Code section 352 does not override the prosecution’s
basic right to inform the jury of the details of a defendant’s
offense. The prosecution was entitled to present evidence
showing the extent of defendant’s effort to conceal his crimes
even if such evidence was likely to place defendant in a negative
light. (See People v. Cortez (2016) 63 Cal.4th 101, 128 [“For
purposes of [Evidence Code section 352], ‘prejudice’ does not
mean damage to a party’s case that flows from relevant,
probative evidence”]; People v. Ramirez (2006) 39 Cal.4th 398,
454 [“The photographs . . . did no more than accurately portray
the shocking nature of the crimes”].) The court did not abuse its
discretion in allowing this photographic evidence.
           e. Photograph of Juli’s decomposed body
     Defendant objected under Evidence Code section 352 to
the admission of exhibit no. 67, a photograph of Juli’s


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decomposed body, taken when the body was found about five
weeks after her murder. Having viewed the photograph, the
court overruled the objection, saying: “[P]hotograph 67 is the
photograph of the victim[’s body] when discovered before it was
moved or altered. This is the position of the body when found.
The People have made a contention that it has some evidentiary
value as it might go to one of the special circumstances, or
perhaps more because of the configuration of the body. [¶] And
I can also tell you that, ordinarily, unless something is so
gruesome that it completely desensitize[d] somebody where they
could no longer be dispassionate and objective, again with that
exception perhaps in mind, . . . a homicide victim, ordinarily, or
a photo of the same, ordinarily, is routinely admitted in evidence
for the trier of fact; especially one taken at the scene where the
body was found.” “This case involves a picture which, in my
judgment, is not inflammatory. It is apparently a fair and
accurate representation of a very unpleasant situation which
happened to be brought on by the murderer’s actions. This is
how the crime was found.” The trial court thus overruled the
Evidence Code section 352 objection.
      Defendant argues the court erred in admitting the
photograph. The photograph was relevant to corroborate
testimony from law enforcement officials and the medical
examiner about the condition of Juli’s body. In addition, the fact
that the body was unclothed corroborated defendant’s
confession, in which he described sexually abusing Juli and then
taking her, naked except for a blanket, to Vista Point, where he
killed her. Although the photograph was disturbing due in part
to the nature of the crime, a trial court has broad discretion over
the admission of such evidence, and we routinely uphold the
admission of such photographs. (See People v. Parker (2022)

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13 Cal.5th 1, 42 (Parker).) Also, the prosecution is not limited
to proving its case through live witnesses. (See People v. Caro
(2019) 7 Cal.5th 463, 502; see also People v. Michaels (2002)
28 Cal.4th 486, 532 [“Although photographic evidence is often
cumulative of testimonial evidence, that fact does not require its
exclusion, ‘[b]ecause the photographic evidence could assist the
jury in understanding and evaluating the testimony’ ”].) And
the upsetting nature of the photograph is not materially
different than the testimony and other evidence offered at trial
regarding defendant’s actions in this case. In short, we conclude
that the probative value of the photograph was not clearly
outweighed by its prejudicial effect. (People v. Crittenden (1994)
9 Cal.4th 83, 133–134.)26 As such, the trial court did not abuse
its discretion in admitting exhibit no. 67.
         4. Rulings excluding defense evidence
      Defendant argues the trial court erroneously excluded
certain defense evidence during the guilt phase. We conclude
the court acted within its discretion in excluding the evidence.




26
      The fact that the photograph was taken about five weeks
after the victim was murdered was properly taken into
consideration by the trial court. The trial court did not abuse its
discretion in recognizing that the passage of time, and any
prejudicial impact resulting therefrom, was due to defendant’s
own actions in concealing the body. Under the circumstances,
the passage of time and resulting decomposed condition of the
body does not establish that the trial court erred in admitting
the photograph at issue.        (See People v. Thomas (2023)
14 Cal.5th 327, 371–373 (Thomas) [rejecting the defendant’s
argument that various photographs, including ones depicting a
victim’s decomposed body in a field, were erroneously
admitted].)

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For the same reasons, we also find that the court did not violate
defendant’s state or federal constitutional rights.
            a. Defendant’s state of mind at the time of his
               confession
      Before defendant confessed to FBI agents on July 24,
1999, he attempted to negotiate for a monetary reward and
housing advantages and access to child pornography during his
anticipated incarceration. One FBI agent responded that it was
“out of our hands” but that they would do what they could do.
In its case-in-chief, the prosecution did not play the portion of
the FBI interview in which this discussion took place. However,
during Agent Rinek’s cross-examination, the defense notified
the court that it intended to ask Rinek about “certain portions
of the tape in the very beginning where the agents are . . .
offering inducements to [defendant].” The defense expressed
concern that if it questioned Rinek about those inducements, the
prosecution would then be permitted to present evidence of
defendant’s request for child pornography. Therefore, the
defense wished the court to allow the defense to inform the jury
of the inducements without informing the jury of the requests
that led to those inducements. As the prosecutor explained:
“They only want to tell half the story.”
     The court ruled the defense has the right to argue that
defendant’s statement is not credible because it was not
voluntary, “[b]ut if you do that, you open the door to allowing
the other concessions the defendant wanted to be admissible.”
      During the same cross-examination of Rinek, the defense
also sought to admit excerpts from the video-recorded FBI
interview (1) in which, during the crime scene walk-through,
defendant described the locations where he hid certain items of

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evidence, and (2) in which defendant agreed to write an apology
letter to Juli. The defense argued this evidence was relevant to
reveal defendant’s state of mind at the time of his confession,
but the court ruled the evidence went beyond the scope of the
prosecution’s direct examination, and that the defense therefore
needed to offer it, if at all, as part of its case-in-chief.
      Later, during the presentation of the defense case-in-chief,
the defense called FBI Special Agent Hittmeier and asked him
whether defendant cried or sobbed during the crime scene walk-
through on July 25, 1999. Hittmeier recalled that defendant
had wiped something from the side of his face, but it may have
been sweat. He did not recall defendant sobbing. Defense
counsel attempted to impeach Hittmeier with his preliminary
hearing testimony. The prosecution objected, arguing that
whether defendant was sobbing was irrelevant. The defense
responded that the evidence was relevant to rebut the
prosecution’s evidence that defendant was sleepy and
unemotional during the taxi ride from Sierra Village to
Yosemite after he burned the Pontiac. The defense also noted
that the evidence would rebut defendant’s statement to the FBI
that he was unemotional while committing the murders.
     The court ruled that testimony regarding whether
defendant was sobbing during the crime scene walk-through
shed no light on his emotional state at the time of the crimes
and was therefore inadmissible.
     In its case-in-chief, the defense also sought to recall Rinek
and present the video recording of the crime scene walk-through
and of the portion of the FBI interview in which defendant
agreed to write an apology letter to Juli. The defense argued
this evidence contradicted the prosecution’s evidence that

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defendant was cold-blooded and unfeeling. The court ruled the
evidence was irrelevant, again explaining that defendant’s
emotional state at the time of his confession had no relevance to
his emotional state at the time of his crimes.
      Defendant argues the court erred because, in his view,
“Evidence that [his] confession was improperly induced on
July 24th and that [he] was emotionally distraught and sobbing
with remorse on July 24th and 25th would have countered the
prosecution picture of [him] by showing his mental illness and
tortured mental state, and his moral, mental and emotional
conflict he was experiencing.”
      Contrary to defendant’s argument, the court did not
prohibit the defense from introducing evidence of inducements
offered in exchange for his confession. Rather, the court ruled
that if defendant offered evidence of inducements, the
prosecution could offer evidence of the specific requests from
defendant that gave rise to the asserted inducements. If the
agents’ assurances were presented outside their factual context,
the jury would have had no basis for evaluating their meaning
or evidentiary value. Thus, it was not error for the court to
prohibit the defense from presenting a one-sided and piecemeal
presentation of the facts. Defense counsel’s strategic choice,
following the court’s ruling, not to present the evidence does not
render the court’s ruling erroneous.
     As for the state of mind evidence the defense wished to
present, the court reasonably determined that defendant’s
remorse at the time of his confession was irrelevant to any guilt
phase issue. Evidence is relevant when it has a “tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code,

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§ 210.) Moreover, “The trial court has broad discretion to
determine the relevance of evidence [citation], and we will not
disturb the court’s exercise of that discretion unless it acted in
an arbitrary, capricious or patently absurd manner.” (Jones,
supra, 57 Cal.4th at p. 947.) Evidence of defendant’s remorse in
July, when he confessed to his crimes, does not “tend[] in reason
to prove or disprove” (Evid. Code, § 210) his emotional state five
months earlier, when he committed his crimes. The court
therefore acted within the scope of its discretion in ruling that
the evidence was inadmissible. (Evid. Code, § 350.)
            b. Eugene D.’s confession
      About a month after the Sund-Pelosso murders,
investigators interviewed Eugene D., who was incarcerated at a
state prison facility near Tracy, and may, at one point, have been
a suspect in the murders.27 In these interviews, Eugene D.
provided information about the murders but his story changed
multiple times, and he was unable to provide details that
corroborated his claims, even asking at one point whether Juli
had been shot. In the first five or six interviews, Eugene D.
claimed he was not personally involved in the murders and
instead implicated his half brother, Michael L., and an associate
named Johnny N. In an interview on April 21, 1999, Eugene D.
added that Michael L. may have been completing a contract
“hit” for the Hells Angels motorcycle club.




27
     Investigators tried to find physical evidence to corroborate
Eugene D.’s confession, focusing on fiber evidence and a ring
Eugene D. had given to someone, and administering polygraph
examinations that inconclusively suggested he may have had a
connection to the murders.

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      On May 20, 1999, investigators transported Eugene D. to
a command post that had been staged to make it appear he was
the leading suspect. In that setting, Eugene D. radically
changed his story, claiming that after using methamphetamine,
he killed Carole and Johnny N. killed Silvina. He said that a
man named Jeff K. sexually assaulted Juli and that Michael L.
and a man named Larry U. killed her. This interview was not
recorded, but a recording was made of an FBI agent
summarizing the confession as Eugene D. agreed with the
agent’s statements.
      The next day, May 21, Eugene D. recanted his confession.
He denied involvement in the murders and said he had received
all his information from news stories. Later the same day,
however, Eugene D. offered two new versions of how the crimes
occurred, again implicating Michael L., Johnny N., Larry U.,
and himself.
      On June 15 and July 22, 1999, Eugene D. gave more
versions of events surrounding the murders, again claiming to
have been involved. Significantly, he changed his story when
told there was physical evidence disproving his June 15
statement. Finally, in an interview on July 25, the day after
defendant gave his detailed confession, Eugene D. conceded he
had lied in his previous interviews.
       At defendant’s trial, the defense called Eugene D. to
testify, and he invoked his Fifth Amendment right against self-
incrimination. The defense sought to admit Eugene D.’s May 20
recorded confession into evidence, arguing that although it was
hearsay, it was admissible as a declaration against the penal
interest of the declarant (i.e., Eugene D.). (See Evid. Code,
§ 1230.)    In the alternative, defendant sought to admit

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Eugene D.’s confession for the nonhearsay purpose of
impeaching the reliability of defendant’s confession. First,
Eugene D.’s confession would show defendant did not act alone
despite his confession that he did. Second, the fact that both he
and defendant used the word “nonchalantly” — Eugene D. said
he “nonchalantly cut the victim’s throat” and defendant said he
“nonchalantly strangled the victim” — tended to show that
neither confession was genuine and that both confessions were
instead the product of suggestion.
      The court rejected that theory, noting that defense counsel
had already told the jury that defendant committed all three
homicides and that the defense had, until that point, focused on
defendant’s mental state, not the overt circumstances of the
crimes. The court did not see a connection between Eugene D.’s
confession and the mental state defense.
      The court then addressed the defense’s theory regarding
the use of the word “nonchalantly,” finding that under Evidence
Code section 352, “any relevancy is certainly outweighed by the
impact it would have on the trier of fact, to wit: it would be
confusing. It would be time consuming, and it would serve no
legitimate purpose.”
      Defense counsel clarified that the defense would only
introduce a few sentences of Eugene D.’s confession and the
investigator’s testimony regarding the circumstances of the
confession. The court said it was “highly speculative” to “draw
a connection of untoward investigative tactics or undue
persuasion” based on both defendant’s and Eugene D.’s use of
the word “nonchalantly.” The court also noted the evidence
“would serve no purpose but to confuse the jury . . . and it would
take an undue consumption of court economy and time.” The

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court ruled that Eugene D.’s confession was inadmissible,
whether in whole or in part.
      Defendant argues the court erred in excluding Eugene D.’s
confession. We disagree. Eugene D.’s confession, which was not
corroborated by physical evidence and which contradicted his
many other statements, lacked credibility, particularly
compared to defendant’s confession, which was extremely
detailed and thoroughly corroborated by physical evidence. In
addition, the admission of Eugene D.’s confession into evidence
would have led to considerable delay while the prosecution
impeached Eugene D.’s character and demonstrated the
improbability of his story. As the People argue: “There would
[have been] a mini-trial on the [Eugene D.] investigation.”
Moreover, the defense’s theories for why Eugene D.’s confession
was relevant would likely have confused and misled the jury.
      Defendant argues that Eugene D.’s confession was
relevant as third party culpability evidence. “[T]hird party
culpability evidence is admissible if it is ‘capable of raising a
reasonable doubt of [the] defendant’s guilt.’ ”        (People v.
Robinson (2005) 37 Cal.4th 592, 625, quoting People v. Hall
(1986) 41 Cal.3d 826, 833.) “[I]n making these assessments
‘courts should simply treat third-party culpability evidence like
any other evidence: if relevant it is admissible ([Evid. Code,]
§ 350) unless its probative value is substantially outweighed by
the risk of undue delay, prejudice, or confusion ([Evid. Code,]
§ 352).’ ” (Robinson, at p. 625.) We disagree with defendant that
Eugene D.’s confession was admissible as third party culpability
evidence.     Nothing in Eugene D.’s confession referenced
defendant’s involvement in the murders. Instead, Eugene D.
implicated Michael L., Johnny N., Larry U., and himself. The
defense did not offer Eugene D.’s confession on a theory that
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someone other than defendant had committed the murders.
Rather, as defendant concedes, the defense wanted to show that
the confession indirectly supported defendant’s mental state
defense by undermining his statement that he acted alone. This
theory conceded defendant’s culpability, and therefore for it to
have any merit, Eugene D.’s version of the facts had to be
evaluated and compared to defendant’s version of the facts.
Nothing in Eugene D.’s confession tracked the facts described by
defendant and corroborated by physical evidence. Therefore, as
the court concluded, there was no foundational credibility to the
defense theory for why Eugene D.’s confession was admissible.28
            c. Video recording of lecture by Dr. Alan Waxman
      As stated in part I.A.3., ante, the People called
Dr. Waxman in rebuttal to the defense case. Dr. Waxman
criticized the “activation” method used by Dr. Wu and
Dr. Buchsbaum, whereby the brain was in an active state when
a PET scan was being administered. Dr. Waxman testified that
a comparison of two brains in an active state might not reveal
physiological differences between the brains. Dr. Waxman also
said that the reliability of the activation method as a diagnostic
tool was “investigational,” and that the method was typically
used only for research and not for diagnostic purposes.

28
      In support of its theory that defendant did not act alone,
the defense also sought to admit evidence showing that a
fingerprint of someone named Donald K. was on a beer can
located near the burned Pontiac. The defense vaguely asserted
that this individual had an association with “other people who
confessed.” The court did not allow the fingerprint evidence, and
we conclude the court did not abuse its discretion in so ruling.
The defense failed to lay a foundation for the admissibility of the
evidence by, for example, demonstrating a connection between
Donald K. and the people named in Eugene D.’s confession.

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Dr. Waxman noted that he had once used the activation method
when performing a study of a schizophrenic patient’s brain
function, but he considered it to be “research.”
     On cross-examination, defense counsel asked Dr. Waxman
about the study he had performed of the schizophrenic
patient — in particular, whether he had ever presented a lecture
regarding that study. Dr. Waxman responded that he had
presented on the study at least five times.
     Defense counsel then sought to play for the jury a portion
of a video of Dr. Waxman’s lecture, to impeach his assertion that
the use of the activation method was experimental. Outside the
presence of the jury, the court listened to the three-minute
recording in which Dr. Waxman described testing a
schizophrenic patient using the activation method and finding
that the patient did not activate his frontal lobe when asked to
perform a complicated sorting test, which, in Dr. Waxman’s
opinion, was consistent with schizophrenia. But in the same
lecture, Dr. Waxman qualified his conclusion, stating that “a lot
of research has to be done to see the effect of any medication, a
variety of other conditions in which this may happen from the
personality disorders and so forth.”
      Defense counsel argued that Dr. Waxman’s lecture was
inconsistent with his trial testimony because he did not say in
the lecture that the reliability of the activation method, as a
diagnostic tool, was investigational, whereas in his trial
testimony he repeatedly described it in those terms.
      The court ruled the video recording was inadmissible,
finding it was not inconsistent with Dr. Waxman’s trial
testimony. “The fact that there is now a claim that he gave a
talk after the fact to one of five groups, apparently, and he did

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not use the exact words that you claim that he used here in court
as to the characterization of that PET scan, in my view is not
inconsistent to the overall in-court testimony.              And
consequently, it’s not admissible.”
     Defendant argues the court erred in excluding this
impeachment evidence. A prior inconsistent statement is
admissible for impeachment purposes under Evidence Code
section 1235 if it is offered in compliance with Evidence Code
section 770. But “[t]he ‘fundamental requirement’ of [Evidence
Code] section 1235 is that the statement in fact be inconsistent
with the witness’s trial testimony.” (People v. Johnson (1992)
3 Cal.4th 1183, 1219.)
      Here, the court reasonably determined that the video
recording of Dr. Waxman’s lecture was not inconsistent with his
trial testimony. The recording did not suggest that the
activation method was anything other than experimental, and
Dr. Waxman made clear during the lecture that the technique
was innovative and that “a lot of research has to be done.” A fair
interpretation of his lecture is that he believed the activation
method to be worthy of further research and investigation, not
that he believed it to be diagnostically reliable. Therefore, the
recorded lecture was not inconsistent with his trial testimony,
and the court did not err in excluding it.
      Defendant argues that “the trial court permitted the
prosecution to . . . hid[e] from the jury the fact that its own
expert had employed the technology that Dr. Wu used.” The
record does not support defendant’s contention. Defense counsel
questioned Dr. Waxman extensively about his use of the
activation method in his study of the schizophrenia patient. The
only thing the jury did not hear was Dr. Waxman’s recorded

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lecture in which he made the same point he made during his
testimony, i.e., that the technique was experimental and
required more research. Therefore, we conclude the court did
not abuse its discretion in excluding the video recording of
Dr. Waxman’s lecture.
         5. Guilt phase prosecutorial misconduct
      Defendant    argues     that     the   prosecutor   committed
misconduct at the guilt phase by improperly introducing victim
impact evidence during his opening statement and disparaging
a defense witness in front of the jury. We conclude that the
prosecutor’s statements did not constitute misconduct, and for
the same reason, we also find the statements did not violate
defendant’s state or federal constitutional rights.
      “Prosecutorial   misbehavior     ‘violates the federal
Constitution when it comprises a pattern of conduct “so
egregious that it infects the trial with such unfairness as to
make the conviction a denial of due process.” [Citation.] But
conduct by a prosecutor that does not render a criminal trial
fundamentally unfair is prosecutorial misconduct under state
law only if it involves “ ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ ” ’ ”
(People v. Rhoades (2019) 8 Cal.5th 393, 418 (Rhoades).) The
prosecutor’s actions in the present case did not contravene these
standards.
            a. Improper victim impact evidence
      During his opening statement, the prosecutor said: “You
see, back in January of 1999, Carole Sund, she’s 42. She lived
with her husband, Jens Sund, up in Northern California near
the coast in Eureka, California. I don’t know how many of you
people are familiar with that Eureka-Arcata area. It’s just

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gorgeous. And life was great for them. Carole Sund was happy.
She was active. She was active in her kids’ lives. Wonderful
kids. She had their own — her husband was Jens Sund. They
lived together. They had a daughter Juli. She’s 15 years old.
She’s a biological daughter. And they had three adopted kids,
too. And you can imagine with four kids, mom was busy. Carole
was active in the community, active with her kids. Life was
great. [¶] Same thing for Juli. Healthy, happy, active 15-year-
old girl. School cheerleading activities. Just a wonderful world.
And this is back in January-February 1999. [¶] Silvina Pelosso,
it’s just an amazing story, she’s from Argentina. The Sund
family had known the Pelosso family for years. Literally,
Silvina Pelosso, whose parents live in Argentina, she was one of
Juli’s lifetime best friends. Well, she is living her dream too,
back in this time. She’s over in the United States, staying at her
best friend’s house, and she’s going to have the opportunity to
even go to school in the United States of America. Life was just
wonderful. [¶] And you know, as you sit there now, knowing
what you know about the charges, that changed, and that
changed dramatically at one point in time. And there is only
one person that changed it, and that’s this defendant.” 29
     Defendant asserts the prosecutor committed misconduct
by improperly introducing victim impact evidence. We reject his
argument.
     First, the defense never objected to the prosecutor’s
statement and therefore forfeited the issue. (See People v. Dykes
(2009) 46 Cal.4th 731, 761 (Dykes).)          Furthermore, the

29
      Defendant also cites the prosecutor’s later comment that
shortly before the murders, Juli and Silvina were happy, having
fun, and feeling good.

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prosecutor’s statement was a summary of relevant evidence the
People later introduced through the testimony of Jens and other
witnesses. “[R]emarks made in an opening statement cannot be
charged as misconduct unless the evidence referred to by the
prosecutor ‘was “so patently inadmissible as to charge the
prosecutor with knowledge that it could never be admitted.” ’ ”
(People v. Wrest (1992) 3 Cal.4th 1088, 1108; see Dykes, at
p. 762.) It is true that the prosecutor’s brief statement cast the
lives of the victims in a charming light, but a prosecutor may
make fair inferences from the evidence (see Rhoades, supra,
8 Cal.5th at p. 420), and the evidence supported the prosecutor’s
comments. Moreover, statements to the effect that the victims
had done nothing to bring on defendant’s attack was relevant to
corroborate defendant’s description of the victims in his
confession. Additionally, the challenged comments were brief
and not prejudicial in any event.
      Defendant    also    argues      the   prosecutor   committed
misconduct by introducing, during the guilt phase, Jens’s
testimony and photographs of the victims while alive. We have
already concluded above that the trial court acted within its
discretion in ruling that such testimony was relevant and
therefore admissible, and because it was admissible, the
prosecutor did not commit misconduct by introducing it. (See
People v. Hawthorne (2009) 46 Cal.4th 67, 94 (Hawthorne)
[“because the trial court overruled defendant’s objection, the
prosecutor’s questions, in accord with the ruling, were not
misconduct”].)
            b. Disparaging a defense witness
      During direct examination of Dr. Silva during the defense
case-in-chief, the following discussion took place:


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      “[The prosecutor]: Can we take a break now, your honor,
at this point?
      “The Court: You want to take a break? All right.
      “[The prosecutor]: I am going brain dead listening to this.
      “[Defense counsel]: I am going to move for a mistrial based
on that. That’s improper comment of counsel. I would ask the
court to admonish counsel not to make derogatory remarks
about the defense. That’s totally improper.
      “The Court: No. I agree. The comment was not proper.
The motion for mistrial is denied. [¶] Ladies and gentlemen of
the jury, just disregard that comment. It wasn’t a proper
comment, and disregard it. But it certainly doesn’t form the
basis for a mistrial.”
     Outside the presence of the jury, the defense asked for a
stronger admonition, quoting from this court’s decision in
Bolton, a case in which the prosecutor insinuated to the jury that
the defendant had a record of prior wrongful acts. (People v.
Bolton (1979) 23 Cal.3d 208, 215–216, fn. 5 (Bolton).) The court
declined to give a stronger admonition, noting that the
prosecutor was not “insinuating anything about the defendant
or about defense counsel,” “wasn’t describing the defendant or
the witness or a defense counsel,” and was instead commenting
that he “needed a break.”          The court stated it was
“unfortunate[]” that the prosecutor said, “ ‘I am brain dead,’ ”
but stated that the admonishment it gave “was the appropriate
remedy.”
      Defendant argues that the prosecutor’s comment was
disparaging of Dr. Silva, and that the court erred by declining to
give a stronger admonition or not declaring a mistrial. But this
case is nothing like Bolton, supra, 23 Cal.3d 208, a point the
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court emphasized in making its ruling. Here, the prosecutor
made the comment at the end of a long and technical direct
examination, and the court immediately admonished the jury.
The prosecutor’s comment was not proper, but it did not suggest
that Dr. Silva was wrong, unqualified, or lacked credibility.
Instead, it suggested that the content of Dr. Silva’s testimony
was difficult to understand and perhaps overly long, and that
listening to it was taxing the prosecutor’s powers of
concentration — something others in the courtroom also
appeared to have been experiencing. For instance, shortly after
the prosecutor made his comment, the court admonished
defense counsel, saying: “I did indicate on several occasions that
we should tighten this up. And I am saying this out of the
presence of the jury. But I can observe from the jury’s
expressions and what is going on, that I think some of this is not
assisting . . . [¶] . . . [I]t’s very . . . technical. It’s very difficult
to listen to from the layperson’s perspective. So, this has to be
tightened up.”      Under these circumstances, a greater
admonition than the one the court gave was not required. (See
People v. Tate (2010) 49 Cal.4th 635, 688–689.)
      As for the court’s denial of the defense’s request for a
mistrial, “a motion for mistrial should be granted only when ‘ “a
party’s chances of receiving a fair trial have been irreparably
damaged.” ’ ” (People v. Ayala (2000) 23 Cal.4th 225, 282.) The
prosecutor’s brief comment did not irreparably damage
defendant’s chances of receiving a fair trial, and it was cured by
the court’s admonition, which we presume the jury followed.
(See People v. Guerra (2006) 37 Cal.4th 1067, 1115 (Guerra).)
Accordingly, the court did not abuse its discretion in denying the
defense’s request for a mistrial.


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         6. Motion for judgment of acquittal
      The information alleged six special circumstances — one
multiple-murder special circumstance (§ 190.2, subd. (a)(3)) and
five different felony-murder special circumstances (id.,
subd. (a)(17)(A) [robbery murder], (a)(17)(B) [kidnapping
murder], (a)(17)(C) [rape murder], (a)(17)(F) [oral copulation
murder], (a)(17)(G) [burglary murder]). At the close of the
prosecution’s case-in-chief, the defense moved, pursuant to
section 1118.1, for a judgment of acquittal on the five felony-
murder special-circumstance allegations, arguing that
defendant intended murder and only incidentally committed the
specified felonies. The defense asserted that defendant did not
independently intend the felonies and commit murder in the
course of committing the felonies. (See, e.g., People v. Dement
(2011) 53 Cal.4th 1, 46 [“Generally, to prove a felony-murder
special circumstance like murder in the commission of
attempted oral copulation, ‘ “the prosecution must show that the
defendant had an independent purpose for the commission of
the felony, that is, the commission of the felony was not merely
incidental to an intended murder” ’ ”].) The court denied the
motion without comment. Defendant argues the court erred and
emphasizes that murder was his primary motivation.
      “In considering whether the trial court erred in failing to
grant the motion for judgment of acquittal under
section 1118.1 . . . , we ask whether ‘there is any substantial
evidence, including all reasonable inferences to be drawn from
the evidence, of the existence of each element of the offense
charged.’ ” (People v. Watkins (2012) 55 Cal.4th 999, 1019.)
“When, as here, the motion under section 1118.1 was made ‘at
the close of the prosecution’s case-in-chief, the sufficiency of the
evidence is tested as it stood at that point’ in the trial

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[citation] — in other words, based on the prosecution’s case
alone, and without considering the evidence subsequently
adduced during the presentation of the defense case or evidence
produced by the prosecution on rebuttal.” (Ibid.)
      The jury found the robbery-murder special-circumstance
allegation not true. Hence, any claim of error related to the
court’s refusal to dismiss that special circumstance is moot. As
to the other felony-murder special circumstance allegations, the
prosecution’s case-in-chief presented substantial evidence to
support a true finding on each of the allegations.
      “ ‘ “[A] jury deciding the truth of the special circumstance
allegation is not required to assign a hierarchy to the
defendant’s motives in order to determine which of multiple
concurrent intents was ‘primary . . .’ . . . .” ’ [Citation.] Instead,
to find true a felony-murder special circumstance, the jury need
only determine that ‘ “the defendant had an independent
purpose for the commission of the felony, that is, the commission
of the felony was not merely incidental to an intended murder.” ’
[Citation.]     ‘Concurrent intent to kill and to commit an
independent felony will support a felony-murder special
circumstance.’ ” (People v. Jackson (2016) 1 Cal.5th 269, 345.)
      Here, putting aside the robbery-murder special
circumstance (§ 190.2, subd. (a)(17)(A)), the information alleged
special circumstances based on kidnapping murder (id.,
subd. (a)(17)(B)), rape murder (id., subd. (a)(17)(C)), oral
copulation murder (id., subd. (a)(17)(F)), and burglary murder
(id., subd. (a)(17)(G)). We conclude defendant’s confession
provided substantial evidence that he had an independent
felonious purpose to commit the offenses of kidnapping, rape,
oral copulation, and burglary, and therefore that these felonies

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were not merely incidental to his intended murders.
Specifically, defendant admitted that when he entered the
victims’ room, he was motivated by a desire to have sex with
young girls, and he quickly proceeded to force Juli to orally
copulate him and attempted to rape her. Thus, the record
provides substantial evidence from which the jury could infer
that he entered an occupied room with intent to commit both
oral copulation (former § 288a) and rape (§ 261), and
derivatively that he intended first degree burglary (see §§ 459,
460). Although he also intended murder, the jury could
reasonably infer from the evidence that defendant intended first
to commit the sex crimes against at least the child victims, and
therefore he had concurrent intents to commit the sex crimes
and to commit murder.
      As for the kidnapping-murder special circumstance, the
jury could reasonably infer that when, shortly before dawn,
defendant took Juli from the Cedar Lodge, he wanted to move to
a private location so he could continue to sexually assault her,
and therefore the jury could infer that the kidnapping (§§ 207,
208) was motivated by a purpose independent from the murder.
In fact, when they arrived at Vista Point, defendant forced Juli
to orally copulate him before he murdered her. Therefore, the
jury could infer that he had concurrent intents to kidnap Juli for
the purpose of sexual assault and for the purpose of murder.
     Therefore, we determine that the trial court properly
denied defendant’s section 1118.1 motion. For the same reason,




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we conclude the court did not violate defendant’s state or federal
constitutional rights.30
         7. Motion to discharge Juror No. 5
      On August 6, 2002, out of the presence of the jury, defense
counsel moved for the discharge of Juror No. 5, asking for his
replacement by an alternate juror. The defense argued that
Juror No. 5 had been untruthful with the court during voir dire.
Six days later, the defense filed a written motion to discharge
Juror No. 5.
      Question 47 of the voir dire questionnaire asked whether
the prospective jurors had “ever been . . . accused . . . of a crime.”
Question 49 asked whether the prospective jurors had “ever
sought the assistance of a . . . drug or alcohol counselor[] or other
mental health professional.” Juror No. 5 answered “[n]o” to both
questions, but sometime in the summer of 2002, it came to the
attention of defense counsel that in 1996, six years before
defendant’s trial, Juror No. 5 had been detained and cited for
public intoxication and had refused an officer’s instruction to
reenter his home. Juror No. 5 had then attended Alcoholics
Anonymous (AA) meetings, after which the public intoxication


30
       In a section heading of his brief, defendant asserts the
court violated his rights by denying his motion under
section 995 to dismiss the robbery-murder, kidnapping-murder,
and burglary-murder special-circumstance allegations. His
brief, however, does not develop this argument. The section 995
motion to dismiss, which was filed several months after the
preliminary examination, was based on the same theory as the
later section 1118.1 motion, seeking a judgment of acquittal,
and for the same reasons, we conclude the trial court’s ruling as
to the robbery-murder special-circumstance allegation is moot,
and its ruling as to the kidnapping-murder and burglary-
murder special-circumstance allegations was not error.

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citation was dismissed. Defendant argues this detention and
citation constituted a criminal accusation, and that the AA
meetings constituted the assistance of an alcohol counselor, and
that Juror No. 5 should have therefore disclosed these events in
response to questions 47 and 49.
      On August 6, 2002, defendant orally moved for discharge
of Juror No. 5, asserting juror misconduct and bias, then filed a
written motion to the same effect. (Code Civ. Proc., § 233.) The
court conducted an in camera hearing to protect the juror’s
privacy. Juror No. 5 told the court that he did not think he
needed to disclose the citation because it had been dismissed.
He also conceded he was “going a little too fast” and was “a little
negligent” in filling out the questionnaire. He did not interpret
his participation in AA to be the sort of counseling referred to in
question 49. Instead, he thought the question referred to a
residential or managed drug and alcohol rehabilitation
program. He also stated that these events, which took place in
1996, had not biased him as to either party in the present case,
and that he could be completely fair and impartial.
     Defense counsel argued that Juror No. 5 either lacked
candor or was unable to adequately comprehend English (Juror
No. 5 was born overseas). Defense counsel also stated that Juror
No. 5 had violated his oath and that his claim that he could be
impartial was “predictable.”
       After considering the arguments of defense counsel in
light of Juror No. 5’s responses, the court stated it did not think
that AA was the sort of counseling to which question 49 referred.
The court further ruled that Juror No. 5’s failure to disclose his
citation was “unintentional and inadvertent” and would not
affect his ability to be a fair and unbiased juror in this case.

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Accordingly, the court denied the motion to discharge Juror
No. 5.
      Defendant asserts that the court erred and that the
judgment must be reversed. He points to the following language
in In re Hitchings (1993) 6 Cal.4th 97 (Hitchings) to support his
argument: “ ‘The prosecution, the defense and the trial court
rely on the voir dire responses in making their respective
decisions, and if potential jurors do not respond candidly the
jury selection process is rendered meaningless. Falsehood, or
deliberate concealment or nondisclosure of facts and attitudes
deprives both sides of the right to select an unbiased jury and
erodes the basic integrity of the jury trial process.’ ” (Id. at
p. 112, quoting People v. Blackwell (1987) 191 Cal.App.3d 925,
929.)
       On the record before us, the trial court did not err.
“Although intentional concealment of material information by a
potential juror may constitute implied bias justifying his or her
disqualification or removal [citations], mere inadvertent or
unintentional failures to disclose are not accorded the same
effect.”   (People v. McPeters (1992) 2 Cal.4th 1148, 1175
(McPeters).) Moreover, “Whether a failure to disclose is
intentional or unintentional and whether a juror is biased in
this regard are matters within the discretion of the trial court.
Except where bias is clearly apparent from the record, the trial
judge is in the best position to assess the state of mind of a juror
or potential juror on voir dire examination.” (Ibid.; see People v.
San Nicolas (2004) 34 Cal.4th 614, 644; In re Boyette (2013)
56 Cal.4th 866, 890 [“ ‘an honest mistake on voir dire cannot
disturb a judgment in the absence of proof that the juror’s wrong
or incomplete answer hid the juror’s actual bias’ ”].)


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      Here, the court held a hearing and ruled that the juror’s
omission of the citation he received was unintentional and that
his attendance at AA meetings did not, “strictly speaking,”
constitute alcohol counseling. Last, the court found that Juror
No. 5’s ability to remain impartial was not affected. The record
of the hearing supports the court’s determination. Thus, there
was no abuse of discretion. (McPeters, supra, 2 Cal.4th at
p. 1175.) Moreover, the asserted inaccuracies at issue in this
case — failure to disclose a misdemeanor citation and
participation in AA meetings — were relatively minor and bore
no material relationship to the facts of this case. (Cf. Hitchings,
supra, 6 Cal.4th at p. 119 [“juror misconduct involving the
concealment of material information on voir dire raises the
presumption of prejudice” (italics added)].) Nothing suggests
that Juror No. 5 hid the matters to conceal a bias against
defendant, making the cases on which defendant relies — all of
which involved deliberate concealment about material
information — inapt. The court’s decision to allow Juror No. 5
to remain on the jury was not error, and for the same reason the
decision did not violate defendant’s state or federal
constitutional rights.
      F. Sanity Phase Issues
         1. Motion to exclude Dr. Park Dietz’s testimony
      As noted, Dr. Dietz, a forensic psychiatrist, interviewed
and evaluated defendant for the prosecution. He testified at the
sanity phase that, in committing the charged crimes, defendant
knew and understood the nature and quality of his actions and
knew his actions were wrong. Before the sanity phase began,
the defense moved to exclude Dr. Dietz’s testimony, arguing
Dr. Dietz was not licensed to practice medicine in California,


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and his testimony would therefore violate Business and
Professions Code section 2052.31 The court denied the motion,
saying: “There’s no law in California that says you have to be
licensed to testify as an expert witness. [¶] . . . [¶] The issue as
to whether or not a person is qualified to testify as an expert
witness is an issue for the court to decide, and that’s based upon
Evidence Code section 720.” The court also explained, “I don’t
agree with the position that an expert witness in the context of
this sanity phase trial, who is going to testify as to the issue as
to legal sanity, is giving a legal diagnosis or a medical diagnosis.
A diagnosis, in the court’s view, that is prescribed by that
Business and Professions Code section is a person who is
actually acting as a medical practitioner . . . . You can’t do that
unless you’re licensed. You can’t give that kind of a diagnosis.
That’s against the law. [¶] This is not the same when an expert
witness testifies as a psychiatrist or psychologist in a . . . sanity
phase trial. . . . So, whether he has a license or not is not
relevant to the admissibility of his testimony. [¶] . . . So, that
request to disallow his testimony because he is not licensed is
ordered denied.”


31
      Business      and      Professions  Code      section 2052,
subdivision (a) states in relevant part:       “Notwithstanding
Section 146, any person who practices or attempts to practice,
or who advertises or holds himself or herself out as practicing,
any system or mode of treating the sick or afflicted in this state,
or who diagnoses, treats, operates for, or prescribes for any
ailment, blemish, deformity, disease, disfigurement, disorder,
injury, or other physical or mental condition of any person,
without having at the time of so doing a valid, unrevoked, or
unsuspended certificate as provided in this chapter or without
being authorized to perform the act pursuant to a certificate
obtained in accordance with some other provision of law is guilty
of a public offense . . . .”

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      Defendant argues the trial court erred in concluding that
licensure was not a precondition to being allowed to testify as an
expert.    We disagree.      Business and Professions Code
section 2052 regulates the practice of medicine. Expert witness
testimony, by contrast, is governed by Evidence Code
section 720, which sets forth a broader range of considerations
in determining the circumstances under which a witness is
allowed to give an expert opinion. Evidence Code section 720,
subdivision (a) states that “[a] person is qualified to testify as an
expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to
which his testimony relates.” Defendant does not contend that
Dr. Dietz did not qualify as an expert under Evidence Code
section 720. As noted by the court, Dr. Dietz was not treating
defendant or giving a clinical diagnosis when he gave his opinion
about defendant’s mental state.           Accordingly, we reject
defendant’s argument that Business and Professions Code
section 2052 precluded Dr. Dietz from providing relevant expert
testimony. The court did not err. (See People v. Catlin (2001)
26 Cal.4th 81, 132 (Catlin); People v. Villarreal (1985)
173 Cal.App.3d 1136, 1142.)
      Defendant cites In re Catherine S. (1991) 230 Cal.App.3d
1253 in support of his view that Dr. Dietz’s testimony should
have been excluded. That case held that the expert opinion of
one licensed psychologist and one unlicensed psychologist was
insufficient to support a denial of parental reunification services
under Welfare and Institutions Code section 361.5. But, as the
Catherine S. court noted, the definition of “ ‘mental disability’ ”
in Welfare and Institutions Code section 361.5 expressly
incorporated the requirement of Civil Code former section 232
that the evidence of such disability come from “either a

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physician, a surgeon, or a ‘licensed psychologist.’ ”
(Catherine S., at p. 1255.) Thus, the holding in Catherine S. was
based on an express statutory requirement. No such statutory
requirement is present here, as defendant concedes.
      Defendant argues, however, that allowing Dr. Dietz to
testify despite being unlicensed in this state violated the Eighth
Amendment guarantee of heightened reliability in death
penalty cases. (See, e.g., Simmons v. South Carolina (1994)
512 U.S. 154, 172 (Simmons) (conc. opn. of Souter, J.); People v.
Bloom (1989) 48 Cal.3d 1194, 1228.) We reject this argument.
For purposes of protecting the reliability of defendant’s trial, the
critical question was whether Dr. Dietz was properly qualified
as an expert under Evidence Code section 720, not whether he
was licensed in the state of California to practice medicine. (See
Jenkins, supra, 22 Cal.4th at p. 1044.) For the same reason, we
find it does not violate the Eighth Amendment to execute a
person whose sanity determination is based, in part, on the
testimony of an unlicensed, but fully qualified, psychiatric
expert.
         2. Exclusion of extrajudicial statements
       Defendant argues that the trial court erred in excluding
certain testimony during the sanity phase. We disagree. The
trial court correctly excluded the testimony and exclusion of the
testimony did not violate defendant’s state or federal
constitutional rights.
            a. Factual background
     Cedar Lodge coworker Elvia D. testified at the sanity
phase as part of the defense’s case-in-chief that defendant told
her twice that he had visions, nightmares, and headaches.
Defense counsel asked Elvia D. about the content of the visions

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and nightmares, and the prosecution objected on hearsay
grounds. The defense argued that defendant’s statement to
Elvia D. was admissible under Evidence Code section 1250 as “a
statement of the declarant’s then existing state of mind,
emotion, or physical sensation.” Outside the presence of the
jury, defendant made an offer of proof that Elvia D. would testify
that defendant thought he was “somehow responsible” for his
uncle’s death because he “dreamt something” and had a
“premonition.”    Counsel explained this was relevant to
defendant’s state of mind because “Dr. Dietz and Dr. McInnes
will testify that one of the symptoms of . . . schizotypal
personality disorder is a preoccupation with thoughts or
connections between what someone dreams about and what
actually happens,” and the testimony would support their
opinion that defendant suffers from that disorder. Counsel also
argued the statement was not hearsay because, “whether in fact
the substance of what he said is true or not, he is expressing to
her a symptom that again is being relied upon by the experts.”
       The court ruled the testimony was not admissible, stating:
“I don’t believe it comes within [Evidence Code] 1250 because it
isn’t a declaration at that time as to the present existing state
of mind when he’s recounting something that happened
previously with respect to a dream he had about his uncle. And
the terminology you use, to wit: that this is an obsession is a
conclusion. [¶] Apparently, it’s just a conversation he had at
least up to this point in time. . . . And the nonhearsay offer of
proof, that it’s being offered for a nonhearsay purpose I think, to
be quite frank, is just too confusing for the jury to understand.”
      Becky T. testified as part of the defense’s sanity phase that
she saw defendant almost every day between 1979 and 1986 and
that defendant told her many times that he heard voices.
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Defense counsel asked Becky T. if she had advised defendant to
seek mental health treatment. The court sustained a relevance
objection.   Defense counsel also asked Becky T. whether
defendant had ever expressed a wish that the voices in his head
would stop, or whether he suggested that the voices were driving
him crazy.    The court sustained hearsay objections to both
questions.
      Outside the presence of the jury, defendant made an offer
of proof regarding the proffered testimony of Amber B., who
would testify that defendant told her he had dreams involving a
man whose face he could not see. Once, when defendant told
Amber B. that a voice in his head told him “to do that job now,
right now,” Amber B. suggested to him that it was the voice of
the man in his dreams. Amber B. would also testify that
defendant sometimes argued with the voice, saying: “Shut up.”
      The prosecutor objected to Amber B.’s testimony on
hearsay grounds, and defense counsel again argued the
statements were admissible as statements of defendant’s “then
existing state of mind, emotion, or physical sensation.” (Evid.
Code, § 1250, subd. (a).) The court sustained the prosecutor’s
objection. It did not think defendant’s statements to Amber B.
were statements of his then existing state of mind because he
was telling her about things that had happened to him in the
past. The court also ruled defendant’s statements were not
admissible as nonhearsay because it would confuse the jury if
admitted for such a limited purpose. (Evid. Code, § 352.)
             b. Analysis
     Defendant argues that his statements to Elvia D.,
Becky T., and Amber B. were admissible under Evidence Code
section 1250. That section creates an exception to the hearsay

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rule allowing an extrajudicial statement to be admitted for its
truth if the statement expresses the declarant’s “then existing
state of mind.” (Evid. Code, § 1250, subd. (a).)32 But here, the
testimony concerned defendant’s extrajudicial description of his
prior dreams, hallucinations, and reactions to dreams and
hallucinations. According to the defense’s offer of proof, the
witnesses would testify that defendant spoke to them about his
recollection of these experiences. The offer of proof did not
suggest that at the time defendant spoke to Elvia D., Becky T.,
or Amber B., he was then dreaming, hallucinating, or having an
active mental reaction to such an experience. Therefore,
defendant’s statements were not descriptive of his “then existing
state of mind,” and they did not fall within the hearsay exception
described in Evidence Code section 1250. (See People v. Whitt
(1990) 51 Cal.3d 620, 642–643.)
      Defendant argues that his extrajudicial statements to
Elvia D., Becky T., and Amber B. were also admissible for the
fact that they were uttered, not for their truth. The court ruled,
however, that admission of the statements on that nonhearsay
theory would be confusing to the jury, and therefore it excluded


32
      Evidence Code section 1250 provides in full: “(a) Subject
to Section 1252, evidence of a statement of the declarant’s then
existing state of mind, emotion, or physical sensation (including
a statement of intent, plan, motive, design, mental feeling, pain,
or bodily health) is not made inadmissible by the hearsay rule
when: [¶] (1) The evidence is offered to prove the declarant’s
state of mind, emotion, or physical sensation at that time or at
any other time when it is itself an issue in the action; or [¶]
(2) The evidence is offered to prove or explain acts or conduct of
the declarant. [¶] (b) This section does not make admissible
evidence of a statement of memory or belief to prove the fact
remembered or believed.”

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the statements under Evidence Code section 352. We review the
court’s application of Evidence Code section 352 for abuse of
discretion. (Helzer, supra, 15 Cal.5th at p. 667.) The defense’s
nonhearsay theory supporting admission asked the jury to
conclude that even if defendant had never had the dreams and
hallucinations he described to Elvia D., Becky T., and Amber B.,
his extrajudicial statements to them showed a mental
preoccupation that tended to prove he was suffering from
psychiatric disorders prior to the murders, thus corroborating
the conclusions of the defense’s psychiatric evaluators.
      We conclude that the probative value of such a limited use
of defendant’s extrajudicial statements was negligible, and, as
the trial court determined, the jury was very likely to be
confused and to misunderstand the limited use to which the
evidence could be put. (See People v. Sanchez (2016) 63 Cal.4th
665, 684.) Accordingly, the court did not abuse its discretion in
excluding the evidence under Evidence Code section 352.
Further, for the same reason, we find the court did not violate
defendant’s state or federal constitutional rights.           The
application here of standard state rules of evidence did not
unduly constrain defendant’s constitutional right to present a
defense. (Cf. Rock v. Arkansas (1987) 483 U.S. 44, 56–57 (Rock);
Chambers v. Mississippi (1973) 410 U.S. 284, 302 (Chambers);
see People v. Lightsey (2012) 54 Cal.4th 668, 717 (Lightsey)
[“[T]he high court’s decision in Chambers [citation] did not
obligate the trial court to allow defendant to present evidence of
his own hearsay statements as a means to, in effect, testify
without subjecting himself to cross-examination”].)




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         3. Sanity phase prosecutorial misconduct
      Defendant argues the trial court erred by allowing the
prosecutor to cross-examine the defense’s sanity phase expert
witness regarding her view of the ultimate issue of defendant’s
legal sanity or insanity. Defendant further argues that the
cross-examination constituted prosecutorial misconduct. We
conclude defendant suffered no prejudice from the court’s
decision to allow the cross-examination, and since the cross-
examination was permitted by the court, it was not
prosecutorial misconduct.
            a. Factual background
     Before the sanity phase trial began, the defense brought a
motion arguing that “no expert should be permitted to express
an opinion that [defendant] was sane or insane or that he was
capable or incapable of knowing [and] understanding the nature
and quality of his act, or of distinguishing right from wrong at
the time of the commission of the crimes.” The reasoning of the
motion was that in a sanity phase trial, the ultimate issue of
whether the defendant is legally sane or insane at the time of
his or her criminal actions is for the trier of fact to decide, and
therefore a psychiatric expert should not be allowed to testify to
his or her view of that ultimate issue. The defense also took the
position that the statutory elements of legal insanity were legal
concepts, not medical concepts, and therefore a mental health
expert should not give an opinion regarding the presence or
absence of those statutory elements.
     At the hearing on the motion, the People argued the law
did not preclude psychiatric experts from testifying regarding
the ultimate issue, but the prosecutor commented that the
People’s psychiatric expert, Dr. Dietz, would not do so, although

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he would testify about the presence or absence of the statutory
elements of the insanity defense. The prosecutor said that
Dr. Dietz “has placed his own limitation based on ethical
restrictions in his own industry, and he will not be addressing
sanity.” Thus, the limitation placed upon Dr. Dietz’s testimony
was due to his own ethical determination, not to any constraint
imposed by the Evidence Code.
      The court ruled that the expert witnesses were permitted
to address the ultimate issue of legal sanity or insanity: “[I]n a
sanity phase trial . . . , the fact that somebody has a mental
illness in the abstract means nothing. It doesn’t mean anything.
It doesn’t mean somebody’s legally sane or legally insane. And
the trier of fact has to have some assistance to make that
determination, and that’s where the expert witness,
psychiatrist, psychologist comes into play. [¶] And . . . it comes
into play to the point in the court’s view wherein . . . an expert
can actually say in his or her opinion . . . whether somebody is
legally sane or insane at the time of the commission of the
offense for which he or she was convicted. [¶] That being said,
apparently if you feel that there’s a conflict in Dr. Dietz and
what he’s doing and his interpretation of his code of ethics, so be
it, but that’s not something that goes to the legal admissibility
of his testimony.”
      Based on the court’s ruling, the defense called its
psychiatric expert, Dr. McInnes, to testify about the statutory
elements of the insanity defense set forth in section 25,
subdivision (b).   During cross-examination, the prosecutor
clarified Dr. McInnes’s testimony, also asking her about the
ethical guidelines of the American Psychiatric Association
(APA), the same guidelines that had apparently informed


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Dr. Dietz’s ethical conclusion. The cross-examination proceeded
as follows:
      “Q. . . . In your direct testimony, did you offer a bottom-
line opinion on whether or not you thought the defendant was
sane or insane?
      “A. Absolutely.
      “Q. Pardon me?
      “A. Yes, I did.
      “Q. Okay. I don’t want to misstate this, because if you
didn’t say in your opinion on direct examination [that] he was
insane, and [if instead] you only testified on the prongs, that’s a
distinction. [¶] So, do you recall whether or not you offered a
bottom-line opinion on direct examination that you thought this
defendant was insane at the time of the crime?”
      After an overruled objection, the cross-examination
continued:
     “Q. . . . Well, are you of the opinion that he’s insane at the
time he committed this?
      “A. Yes, I am.
     “Q. Okay. Now, obviously you are familiar with the
[APA]’s ethical guidelines on the insanity defense, right?
      “A. Yes, I have them right here.
      “Q. I take it [that] counsel has provided them to you,
right?
      “A. They did.
      “Q. Would you agree with me, at least as to the APA, that
forensic — ”


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      Defense counsel then interrupted and asked to approach
the bench. Outside the presence of the jury, defense counsel
argued: “We came in [before the sanity phase trial] with this
objection to the court that these ethical guidelines prevented her
from expressing an opinion on the ultimate issue.             Our
understanding of the court ruling was that those guidelines did
not prevent . . . Dr. Dietz from rendering that opinion. We then
advised her of the court’s ruling. And I indicated on the record
at the time the court ruled that, in light of the court’s ruling, we
would, in anticipation of Dr. Dietz giving his ultimate opinion,
instruct this witness that, despite these guidelines, she was to
express an opinion. [¶] So, . . . in order to address this fairly,
we then have to bring out through her that the court had made
a ruling, and [that] we had instructed her on this ethical issue.
And I don’t think that’s really germane to the sanity issue,
because it does get us sidetracked into legal issues and advice
she was given by the attorneys in light of the court’s ruling.”
Defense counsel later added: “[W]hatever the court’s ruling,
[we] understood it to mean that this expert was required by the
court’s ruling to give an opinion, and we informed her of that.”
       In response, the court noted that it had permitted expert
witnesses to testify to the ultimate issue, but it had not required
them to do so. After more discussion, that court said: “[Let’s]
handle it in this fashion. On redirect you can ask her directly
what you said to her and why she has given this opinion, and
that will clear it up. You can do that just by asking her. And
I’ll let you ask a leading question in that respect.” Defense
counsel agreed to that solution.
     When the prosecutor’s cross-examination of Dr. McInnes
resumed, the prosecutor, as anticipated, asked whether the
APA’s guidelines advised forensic psychiatrists not to testify to
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the ultimate issue of whether a defendant is legally sane or
insane. Dr. McInnes agreed that the APA’s guidelines advised
against such testimony because legal insanity is a legal concept,
not a medical concept. The prosecutor then asked whether
Dr. McInnes saw any ethical problem with testifying to the
ultimate issue, and she said: “I agree with the statement in the
APA.”
      During redirect examination, defense counsel followed the
suggestion of the trial court and brought out the legal
background that underlay Dr. McInnes’s testimony.          The
following exchange took place:
       “Q. [Dr.] McInnes, before we broke we were talking about
the APA guidelines. I want to ask you a question. Was it your
understanding based on the court’s ruling that you were going
to be permitted to testify, to state an opinion as to whether
[defendant] in fact met the three prongs that are a part of the
test for legal insanity?
     “A. For whatever reason, I thought that I had to.
     “Q. All right. And that’s what you did, correct?
     “A. Yes.
      “Q. And you address the three prongs in your direct
testimony?
     “A. Yes.
     “Q. Rather than the ultimate issue, correct?
     “A. Yes.”
           b. Analysis
     Evidence Code section 870 provides that “[a] witness may
state his opinion as to the sanity of a person when: [¶] . . . [¶]


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(c) [t]he witness is qualified under Section 800 [lay opinion
testimony] or 801 [expert testimony] to testify in the form of an
opinion.” Further, Evidence Code section 805 clarifies that
“[t]estimony in the form of an opinion that is otherwise
admissible is not objectionable because it embraces the ultimate
issue to be decided by the trier of fact.” Thus, it is clear that, in
a sanity phase trial, a psychiatric expert may, as an evidentiary
matter, give an opinion on the ultimate issue of whether the
defendant was legally sane or insane at the time of their
criminal actions. (See Pen. Code, § 29 [prohibiting expert
testimony on the ultimate issue but limiting that rule to the
guilt phase of a criminal trial]; People v. Kelly (1992) 1 Cal.4th
495, 539, fn. 10.) Thus, we see no error in the trial court’s denial
of defendant’s motion to limit the testimony of the expert
witnesses on the ultimate issue of sanity. That said, whether
the impeachment of Dr. McInnes was proper is a different
matter.
       Here, Dr. McInnes testified that defendant was legally
insane. She did so, it appears, because of two reasons. First,
defense counsel believed that in denying defendant’s motion to
limit the testimony of the expert witnesses on the ultimate issue
of sanity, the court was requiring the experts to opine on the
ultimate issue. Second, defense counsel told her to opine on the
ultimate issue. Indeed, on redirect examination, Dr. McInnes
confirmed that she only offered her opinion of defendant’s sanity
because she believed she had to do so. Of course, once
Dr. McInnes testified as to the ultimate issue, the prosecution
could, for impeachment purposes, show she did so despite the
prosecution’s belief that the APA’s guidelines advised her not to
offer such an opinion.


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      Yet, we need not determine whether the trial court erred
in allowing such impeachment during the cross-examination of
Dr. McInnes. Significantly, the court allowed the defense to
inform the jury, through leading questions during redirect
examination, that it had expressly advised Dr. McInnes to
testify to the ultimate issue, thus negating any suggestion that
Dr. McInnes did not take the APA’s ethical guidelines seriously.
Thus, any prejudice from the misunderstanding about the
court’s ruling was abated by this clarification. We further note
the prosecutor did not suggest during closing argument that
Dr. McInnes’s purported failure to follow the APA’s guidelines
called her opinions into question. Accordingly, it is not
“reasonably probable” that without Dr. McInnes’s brief
testimony on the ultimate issue, and without her suggestion on
cross-examination that such testimony violated the APA’s
guidelines, the jury would have returned a verdict of insanity.
(People v. Watson (1956) 46 Cal.2d 818, 836.)33
      Next, quoting People v. Bell (1989) 49 Cal.3d 502, 532,
defendant argues that “ ‘[t]he deliberate asking of questions
calling for inadmissible and prejudicial answers,’ ” as he alleges
occurred here, “is [prosecutorial misconduct.’ ” We disagree.


33
      Defendant points out that the jury requested a readback
of the portion of Dr. McInnes’s testimony in which she discussed
“her position on sanity as compared to Dr. Silva, Dr. Dietz, [and]
Dr. Harper.” In response to the jury’s request, the court selected
certain sections of the reporter’s transcript and asked the court
reporter to read those sections to the jury. But these sections
that were read back to the jury did not include the prosecutor’s
use of the APA’s guidelines to cross-examine Dr. McInnes.
Thus, the readback request does not support defendant’s
argument that the prosecutor’s use of the APA’s guidelines was
prejudicial.

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The prosecutor’s line of questioning was consistent with the
court’s ruling, and therefore it could not have been misconduct.
(See Hawthorne, supra, 46 Cal.4th at p. 94.)
     Defendant also argues that “[k]nowing that there was a
dispute in the profession about the scope of the ‘ethical’ rules,
the skilled prosecutor exploited that conflict by seeking to
expand on Dr. McInnes’s testimony on direct examination.” The
trial transcript suggests otherwise. The prosecutor merely
asked Dr. McInnes to clarify whether she had earlier testified to
the ultimate issue, and when she responded that she had done
so, he asked her whether she was “of the opinion that he’s insane
at the time he committed” his crimes, to which she responded in
the affirmative. She could have declined, on ethical grounds, to
give an opinion, but she did not. It is true, as defendant argues,
that defense counsel had previously advised Dr. McInnes to
testify to the ultimate issue, but there is no evidence that the
prosecutor, when questioning Dr. McInnes, knew of that fact
and was intending to lay a trap for her or otherwise exploit the
situation.
      For all these reasons, we conclude that any error in the
court’s decision to permit the prosecutor’s line of questioning
was harmless, and that the prosecutor did not commit
misconduct. Additionally, we find that the court did not violate
defendant’s state or federal constitutional rights.
        4. Cross-examination of Dr. Park Dietz
      Defendant argues that the court imposed improper limits
on the scope of defense counsel’s cross-examination of Dr. Dietz
on two topics. We conclude that the limitations the court placed
on the cross-examination of Dr. Dietz were appropriate, and



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therefore that the court did not violate defendant’s state or
federal constitutional rights.
            a. Hawaii case
      During    cross-examination,        defense     counsel   asked
Dr. Dietz whether it was possible for a person to engage in
methodical, goal-directed behavior and still be incapable of
distinguishing right from wrong. Dr. Dietz stated he had seen
two cases that matched that description, including the case of
State v. Uyesugi (Hawaii 2002) 60 P.3d 843 (Uyesugi). Dr. Dietz
described that case as one in which the defendant, who had a
10-year history of paranoid delusional symptoms known to his
employer, went to his workplace and methodically shot and
killed eight coworkers, contemplated a shootout with the police
or suicide, and was eventually captured after a manhunt. Under
Hawaii law, which “differs quite a bit from the California test,”
“it was the case that this man, because of his illness, could not
emotionally appreciate how wrong his actions were.”
      Dr. Dietz said he examined the defendant in that case on
behalf of the defense. Defense counsel asked: “And he told you
that in reference to these people he killed at his job, that he
previously considered beating up his co-workers; didn’t he tell
you that?” Dr. Dietz responded, “Yes.” The prosecutor objected
to “the details of that case” as irrelevant. The court said, “Well,
we had a previous hearing about this as far as not getting into
details of previous cases. Now we are getting into a lot of detail
here about a previous case which is not relevant to this
particular case. Did you intend to go further into the details of
that case?” Counsel said he wished to explore Dr. Dietz’s
definition of “ ‘appreciate the nature and quality of the acts.’ ”



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The court ruled that was irrelevant because Hawaii law is
different from California law.
      Defense counsel then sought to elicit from Dr. Dietz that
in the Hawaii case, he had concluded the defendant could not
“appreciate the wrongfulness of his conduct” despite having
“goal-directed behavior.” The prosecutor responded with a
relevance objection, arguing that the term “appreciate” is not
included in California’s insanity standard. Defense counsel
then attempted several times to question Dr. Dietz about the
opinion he gave in the Hawaii case, and each time the court
sustained objections based on the difference between the Hawaii
and California insanity standards. Finally, the court told
defense counsel: “[T]o ask if he’s testified previously in another
jurisdiction with a different standard and testified in a certain
way is not relevant.”
      A few days later, defense counsel returned to the subject
of Dr. Dietz’ testimony by filing an offer of proof and a motion to
strike Dr. Dietz’s testimony. The offer of proof was a transcript
from a Texas death penalty case in which Dr. Dietz was cross-
examined concerning his testimony in the Hawaii case. The
defense sought permission to pursue a similar line of
questioning in the present case, thus showing the jury that
Dr. Dietz’s opinions varied depending upon which party hired
him. The court explained that it did not permit the prior
testimony because of the difference in Hawaii law and California
law. The court then stated: “Now, with respect to the general
subject matter of impeaching a witness by prior recorded
testimony, if it’s inconsistent with his in-court testimony,
anybody certainly has the right to do that. [¶] . . . [¶] But, on
the other hand, if the testimony which is alleged to be a prior
inconsistent statement is a statement predicated upon a
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different standard, if you will, of insanity, then in the court’s
view, it’s not relevant. So . . . that’s where I was coming from
when I made the ruling I made.” Defense counsel argued that
the insanity standard was the same in California and Hawaii,
asserting that the term “appreciate” is an implied component of
the insanity standard set forth in section 25, subdivision (b).
The court responded: “I’m not going to instruct the jury that
‘appreciate’ is included in CALJIC 4.00.”
      Defendant argues the court abused its discretion by
precluding defense counsel from cross-examining Dr. Dietz
regarding his prior testimony in the Hawaii case.
      A party has broad latitude when cross-examining an
expert witness, but the cross-examination must be aimed at
producing relevant evidence (see People v. DeHoyos (2013)
57 Cal.4th 79, 123), and to be relevant, evidence must have a
tendency in reason to prove or disprove a disputed fact (see Evid.
Code, § 210). Defendant argues that Dr. Dietz’s testimony in
the Hawaii case “was critical evidence” “to impeach Dr. Dietz’s
contrary conclusion” in the present case. But as the court noted,
Dr. Dietz’s conclusion in the Hawaii case was irrelevant because
a different legal standard governed the insanity issue in the
Hawaii case, and Dr. Dietz’s testimony in that case related
specifically to an element of the Hawaii standard — the word
“appreciate” — that is not included in the California standard.
(See Uyesugi, supra, 60 P.3d at p. 853 [noting that Hawaii’s
insanity standard uses the phrase “appreciate the
wrongfulness,” a phrase that does not appear in § 25, subd. (b)];
Uyesugi, at p. 852 [describing Dr. Dietz’s testimony that the
phrase “appreciate [the] wrongfulness” requires something
greater than a bare knowledge of the difference between right
and wrong].)
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      The trial court correctly noted that the legal tests in
California and Hawaii regarding insanity are different. In
California, a defendant claiming insanity must prove “that he or
she was incapable of knowing or understanding the nature and
quality of his or her act and of distinguishing right from wrong
at the time of the commission of the offense.” (§ 25, subd. (b).)
In Hawaii, a defendant must demonstrate that “at the time of
the conduct as a result of physical or mental disease, disorder,
or defect the person lacks substantial capacity either to
appreciate the wrongfulness of the person’s conduct or to
conform the person’s conduct to the requirements of law.”
(Uyesugi, supra, 60 P.3d at p. 851, fn. 8, quoting Hawaii Rev.
Stat. § 704-400(1).)       There is a difference between
understanding the nature of the act, as is required in California,
and appreciating the wrongfulness of the act, as is required in
Hawaii. The standards also differ in whether they require that
the defendant be “incapable” (§ 25, subd. (b)) or merely “lack[]
substantial capacity” (Hawaii Rev. Stat. § 704-400(1)).
      A trial court enjoys broad discretion to limit irrelevant
evidence. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124–
1125.) Here, the court determined that Dr. Dietz’s opinion in
the Hawaii case was not relevant. (See People v. Buffington
(2007) 152 Cal.App.4th 446, 455–456 [psychologist’s testimony
in prior Sexually Violent Predator Act (Welf. & Inst. Code,
§ 6600, et seq.) cases regarding other individuals not relevant as
impeachment evidence].) Moreover, even assuming Dr. Dietz’s
opinion in the Hawaii case had some relevance to the instant
matter, under Evidence Code section 352, a trial court has
discretion to exclude evidence of marginal relevance when its
probative value is outweighed by concerns about the
consumption of time and confusing the jury. A prior opinion in

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a previous case under a different state’s law could consume an
inordinate amount of trial time as well as cause confusion for
the jury. Accordingly, we conclude the trial court did not abuse
its discretion in limiting the cross-examination of Dr. Dietz.
            b. Earnings
     During cross-examination of Dr. Dietz, defense counsel
asked: “[I]s it true, Dr. Dietz, that you might be the highest paid
forensic psychiatrist in the country?” The court sustained the
prosecution’s objection, saying: “You can ask him his fee in this
case. You can ask him [the] percentage of his income, where it
comes from. But whether he is the highest or lowest or medium
is irrelevant, sustained.” Dr. Dietz testified that he would be
paid roughly $37,000 for the work he did in the present case.
      Defense counsel then asked Dr. Dietz if the government
had paid him $50,000 in “the Broderick case.” The court
sustained the prosecutor’s objection, stating counsel could ask
what percentage of his income comes from the government or
the defense, “[b]ut as to other cases, [if] you interject an amount,
that opens up the examination and testimony [about] what he
did in those cases. And we’re not going to go there. It’s
collateral. They’re [Evidence Code section] 352. It’s time
consuming, and it doesn’t serve any purpose.” Dr. Dietz testified
that in the prior year about 12.5 percent of his income came from
work he did for the government in criminal cases. Counsel
asked for the dollar amount, and the court sustained the
prosecution’s objection.
      Defendant argues he should have been “permitted to
cross-examine Dr. Dietz to show the thousands of dollars he
received from the government in a number of cases, including
several high-profile cases.” We disagree. The court allowed

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defense counsel to cross-examine Dr. Dietz on his $500 hourly
rate for consulting, his $5,000 daily rate for testifying, the
$37,000 he would be paid for his work in this case, and the
percentage of his annual income derived from work he did for
the government. The trial court properly determined that
Dr. Dietz’s annual income and what he charged in other cases
were of little relevance to possible financial bias in the present
case. Such an inquiry would necessitate, for purposes of context,
testimony regarding whether his other cases were like the
present case as to their factual and legal complexity, and the
duration of expert trial testimony. The court did not abuse its
discretion in ruling under Evidence Code section 352 that
additional testimony on the amount and sources of Dr. Dietz’s
income would entail an undue consumption of time that
outweighed any very slight relevance of such evidence.
         5. Motion to strike Dr. Dietz’s testimony
      During Dr. Dietz’s testimony regarding his prior
testimony in the Hawaii case (see pt. II.F.4.a., ante), the
following colloquy occurred:
      “Q. . . . [A]t the last page of your hundred-and-five-page
report, did you write that it was your opinion that [defendant]
knew and appreciated the nature and quality of his actions?
     “A. Yes.
     “Q. And were you using the word ‘appreciated’ there to be
synonymous with understanding the —
     “A. No.
     “Q. — the nature and quality of his actions?
     “A. No, I wasn’t. I should have written ‘knew, understood,
and appreciated.’

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                 Opinion of the Court by Guerrero, C. J.


      “Q. Knew, understood, and appreciated?
      “A. Yes. I believe he knew, understood, and appreciated
the wrongfulness of his actions. But ‘appreciated’ is irrelevant
in California, of course.
      “Q. And what is that based on?
      “A. Which part?
      “Q. That ‘appreciated’ is irrelevant in California?
      “A. Based on the standard jury instructions, People v.
Stress, and People v. Coddington.
      “Q. People [v.] Coddington?
      “A. Yes.
      “The Court: Let’s not get involved in that.
      “The Witness: The judge will instruct the jury on the law.
      “The Court: Let’s not get involved in the legal issues here.
That’s kind of the part I play in this thing.
      “The Witness: Yes, your honor.”
      A few days later, outside the presence of the jury, the
defense moved to strike Dr. Dietz’s testimony, arguing it was a
legal opinion, not a medical opinion. The court recalled that it
stopped the proceedings when Dr. Dietz referenced two
California cases and said that was a question of law for the court
to decide. The court thought it “made that clear” but offered to
“admonish them again.” Defense counsel did not request any
further admonition of the jury or otherwise pursue the matter.
      Defendant argues “it was improper for Dr. Dietz to provide
his own version of the law to the jury,” and that the court should
have granted the defense’s motion to strike the testimony. We
reject the claim. Although Dr. Dietz briefly discussed the

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California sanity standard in response to defense questioning,
the court almost immediately interrupted the testimony and
stated, both to Dr. Dietz and to the jury, that it was the court’s
role to instruct on the law. Dr. Dietz acknowledged the court’s
admonition, stating, “The judge will instruct the jury on the
law.” Thus, Dr. Dietz in effect, withdrew his comment about
California law. The court’s remarks made clear to the jury that
Dr. Dietz’s statements regarding California law was not
appropriate and should be disregarded. Accordingly, the court
was not required to strike the testimony.
       To the extent defendant is arguing the court should have
clarified its admonition a few days later when the defense filed
a written motion, the claim is forfeited. The court explicitly
offered to give a further admonition, and the defense chose not
to pursue the matter. (E.g., People v. Clark (2016) 63 Cal.4th
522, 574 [“defense counsel did not seek any ruling from the court
on the matter, and the failure to do so deprived the court of the
opportunity to remedy the asserted problem”].) Moreover, at the
close of the trial, when instructing the jury on the law, the court
said: “You must accept and follow the law as I state it to you.”
(Italics added.) Jurors are presumed to follow the court’s
instructions. (People v. Johnson (2015) 61 Cal.4th 734, 770
(Johnson).)
      Based on the foregoing, we conclude that the trial court
did not err in its handling of Dr. Dietz’s brief comment about
California law and that the comment did not result in a violation
of defendant’s state or federal constitutional rights.
         6. Sanity phase special instructions
      The court instructed the jury based on CALJIC No. 4.00
as follows: “The defendant in this action has been found guilty

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of three counts of first-degree murder and one count of
kidnapping. You must now determine whether he was legally
sane or legally insane at the time of the commission of these
crimes. This is the only issue for you to determine in this
proceeding. [¶] You may consider evidence of his mental
condition before, during, and after the time of the commission of
the crimes as tending to show the defendant’s mental condition
at the time the crimes were committed. [¶] Mental illness and
mental abnormality, in whatever form either may appear, are
not necessarily the same as legal insanity. A person may be
mentally ill or mentally abnormal and yet not be legally insane.
[¶] A person is legally insane when, by reasons of mental
disease or mental defect, he was incapable of either: one,
knowing the nature and quality of his act; or two, understanding
the nature and quality of his act; or three, distinguishing right
from wrong at the time of the commission of the crimes. [¶] The
defendant has the burden of proving legal insanity at the time
of the commission of the crimes by a preponderance of the
evidence.”
      The defense proposed six additional instructions, which
the court denied. Defendant argues that the court erred by not
giving the additional instructions. We find no error.
      “[T]he general rule is that a trial court may refuse a
proffered instruction if it is an incorrect statement of law, is
argumentative, or is duplicative. [Citation.] Instructions
should also be refused if they might confuse the jury.” (Gurule,
supra, 28 Cal.4th at p. 659.) The instructions the defense
proposed were either incorrect statements of the law or
argumentative.



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                Opinion of the Court by Guerrero, C. J.


            a. Special instructions Nos. 2, 3, and 4
     Three of the tendered instructions proposed to modify or
add to the CALJIC No. 4.00 instruction. First, the defense
asked for the following addition to CALJIC No. 4.00: “The word
‘knowing’ as used in this instruction means realization or
appreciation of the wrongfulness of seriously harming a human
being. Thus, ‘knowledge’ of the nature or wrongfulness of an act
means more than merely a capacity to verbalize the ‘right’ (that
is socially expected) answers to questions put to a person
relating to that act.” (Italics added.) Second, the defense
proposed to replace the phrase “knowing the nature and quality
of his act” with the phrase “knowing and appreciating the
nature and quality of his act.” (Italics added.) Third, the
defense proposed to replace the phrase “understanding the
nature and quality of his act,” with the phrase “understanding
the nature and character of his action and its consequences, and
that it was a violation of the rights of another.” (Italics added.)
The court rejected these proposed instructions, stating that the
standard CALJIC No. 4.00 instruction “does express the correct
law.”
      We conclude the court did not err. The language of
CALJIC No. 4.00 is drawn directly from the text of section 25,
subdivision (b), which states that to establish the insanity
defense, “the accused person [must] prove[] by a preponderance
of the evidence that he or she was incapable of knowing or
understanding the nature and quality of his or her act and of
distinguishing right from wrong at the time of the commission
of the offense.” Defendant points out that the language he
proposed to add to CALJIC No. 4.00 — that knowledge is more
than the “capacity to verbalize the ‘right’ . . . answers” — was
taken directly from this court’s opinion in People v. Wolff (1964)

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61 Cal.2d 795 (Wolff). But the fact that the defense’s proposed
instruction included within it a correct legal principle does not
mean the court was obligated to instruct the jury with that
additional language. In fact, the instruction the trial court gave
in Wolff was similar to CALJIC No. 4.00; it provided that
“ ‘[i]nsanity . . . means a diseased and deranged condition of
mind which renders a person incapable of knowing or
understanding the nature and quality of his act, or to
distinguish right from wrong in relation to that act.’ ” (Wolff, at
p. 801.) We did not find that any further embellishment of that
instruction was necessary. (Id. at p. 803.) The defense’s
modifications and additions were unnecessary because CALJIC
No. 4.00 — using words that have commonly understood
meanings — fully informed the jury of the applicable standard.
      Defendant argues that “the refusal to make the requested
modifications meant that defense counsel was prevented from
informing the jury that the law of insanity permits jurors to find
a defendant not guilty by reason of insanity, even if the
defendant could state that he knew about the illegality of his
acts but did not understand it.” Stated another way, the defense
wanted to inform the jury that an insanity verdict can be
premised on knowledge that falls short of understanding. But
the proposed modifications of the instruction were not necessary
to allow the defense to make this point. The court instructed the
jury that “[a] person is legally insane when, by reasons of mental
disease or mental defect, he was incapable of either: one,
knowing the nature and quality of his act; or two, understanding
the nature and quality of his act; or three, distinguishing right
from wrong at the time of the commission of the crimes.” (Italics
added.) As a matter of logic, if insanity entails being incapable
of either mental state one, mental state two, or mental state

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three, proof of any of the three mental incapacities would be
sufficient to prove insanity. Thus, the rejection of the defense’s
proposed instructions did not prevent counsel from informing
the jury that he could be found insane based solely on an
incapacity to understand the nature and quality of his actions.
       In fact, defense counsel made this very point during
closing argument when he emphasized to the jury the difference
between superficial knowledge and a deep and full
understanding: “Know, understand means to comprehend and
to appreciate. For example, I know [E = mc2], okay. . . . I can
verbalize it, I can understand the principle. I accept it as a fact.
I believe it to be true. However, I do not understand it. I cannot
tell you what it means. It has no effective meaning for me. It’s
there. I can parrot the formula, but I can’t explain it, and I don’t
appreciate what it is, and I don’t know it, and I don’t understand
it. And that’s the kind of knowing and understanding that we
have here. It connotes a quality of reason, and that’s not just
intellectual components, but it’s emotional components as well.”
“The words know and understand require a cognition, require
an understanding, and an assimilation into the actor. You have
to have something more than my telling you [E = mc2]. That is
not knowing and understanding within the meaning of the
instructions that you are going to receive. You have to
comprehend and you have to appreciate it.”
       Defendant also complains that the court did not allow
defense counsel to read to the jury from a dictionary definition
of the word “know” and from Wolff, supra, 61 Cal.2d at page 800,
in which we said that mere verbalization of right answers is not
the same as knowing and understanding. As discussed above,
these embellishments to CALJIC No. 4.00 were unnecessary
because they subtly changed CALJIC No. 4.00, which fully
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informed the jury of the applicable standard. The words of
CALJIC No. 4.00 have common meanings that do not require
further definition, and if the jury sought assistance regarding
the meaning of the instruction, the court was prepared to give
such assistance. Furthermore, the court had already rejected a
proposed instruction that quoted directly from this court’s
opinion in Wolff. Thus, defense counsel’s effort to read the same
quotation to the jury, identifying the Supreme Court of
California as the source of the quotation, was clearly an attempt
to circumvent the trial court’s earlier ruling. Accordingly, the
court acted within its discretion in disallowing this argument.
(See People v. Simon (2016) 1 Cal.5th 98, 147 [“We review a trial
court’s decision to limit defense counsel closing argument for
abuse of discretion”].)
           b. Special instructions Nos. 5 and 6
     In addition to the instructions discussed above, the
defense also proposed to add the following language to CALJIC
No. 4.00:    “The defendant must know that the act was
inherently, or morally wrong. A person who is incapable of
understanding that his act is morally wrong is not criminally
liable merely because he knows the act is unlawful.” The
defense also proposed the following independent instruction: “If
a mental illness is manifested in delusions which render the
individual incapable of understanding that his act is wrong, he
is legally insane. The defendant must know that the act was
inherently, or morally wrong. As applied when a defendant
suffers from a delusional mental illness, a person who because
of mental illness believed that some force commanded and
expected him to kill another human being and that therefore the
killing was morally justified and was not wrong would be
insane.” The court rejected both instructions based on this
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court’s decision in People v. Coddington (2000) 23 Cal.4th 529,
609 (Coddington), which concluded that a defendant’s
idiosyncratic subjective moral beliefs do not compel a finding of
legal insanity.
     Defendant argues the court erred in rejecting the above
two instructions. We disagree. “ ‘[M]oral obligation in the
context of the insanity defense means generally accepted moral
standards and not those standards peculiar to the accused.’ ”
(Coddington, supra, 23 Cal.4th at p. 608, quoting People v.
Stress (1988) 205 Cal.App.3d 1259, 1274.) Accordingly, “ ‘[t]he
fact that a defendant claims and believes that his acts are
justifiable according to his own distorted standards does not
compel a finding of legal insanity.’ ” (Coddington, at p. 609,
italics added, quoting People v. Rittger (1960) 54 Cal.2d 720,
734.) Here, both of the defense’s proposed instructions implied
that defendant’s subjective belief that his actions were morally
justified would, by itself, be enough to establish his insanity
under section 25, subdivision (b). But that is not the law. Many
people who commit crimes believe their actions are morally
justified, and their belief does not absolve them of criminal
liability. The proposed instructions — both of which said that
to be held criminally liable, “[t]he defendant must know that the
act was . . . morally wrong” — were an improper statement of
the law, and therefore the court did not err in denying defense
counsel’s request to provide these instructions to the jury.
           c. Special instruction No. 9
      Finally, defendant proposed the following instruction: “In
any criminal proceeding in which a plea of not guilty by reason
of insanity is entered, the defense shall not be found solely on
the basis of [a] personality or adjustment disorder, a seizure


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disorder, or an addiction to, or abuse of, intoxicating
substances.”     The instruction tracked the language of
section 29.8 (former § 25.5) nearly verbatim, which places a
limitation on the insanity defense. (See People v. Robinson
(1999) 72 Cal.App.4th 421, 425.)34 In ruling on defendant’s
proposed instruction, the court noted that ordinarily the request
for such an instruction “would not come from the defense; it
would come from the People.” The defense’s response focused on
the word “solely” in section 29.8. According to the defense,
section 29.8 affirms that “a personality disorder can constitute
a mental disease or defect for purposes of insanity if it is coupled
with another disorder.” The court rejected the proposed
instruction as ambiguous and confusing.
      We conclude that while the proposed instruction was not
wrong, the court did not err in rejecting it. Section 29.8, on
which the instruction was based, was not applicable to the facts
of this case. (See People v. Sanchez (1947) 30 Cal.2d 560, 572
[“a trial judge should be diligent in refraining from burdening
the jury and the record with inapplicable instructions”].) The
prosecution did not dispute defendant’s insanity claim on the
grounds listed in section 29.8. Instead, under the prosecution’s
theory of the case, defendant did not meet the definition of
criminal insanity set forth in section 25. Moreover, the defense
remained free to argue, and it did, that defendant’s purported
insanity was rooted, at least in part, in causes not listed in
section 29.8. Defense counsel fails to advance any persuasive
argument that, absent the proposed instruction, the jury might


34
      The defense’s proposed instruction is now substantially
included in CALCRIM No. 3450, which is CALCRIM’s insanity
instruction.

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wrongly reject the insanity defense because it was barred from
returning an insanity verdict in a case in which the defendant
happened to have a personality disorder of some kind — in
addition to other more serious mental infirmities. The proposed
instruction was not itself wrong, but because it would not have
assisted the jury, the court did not err in rejecting it.
      In sum, we find no error in the court’s rejection of the
defense’s proposed instructions, and for the same reasons, we
conclude the court did not violate defendant’s state or federal
constitutional rights.
      G. Penalty Phase Issues
         1. Separate penalty phase jury
      Before the guilt phase trial, defendant brought a motion
to have separate juries for the guilt and penalty phases. The
court denied the motion. After the sanity verdict, defendant
moved to discharge the jury and empanel a new jury for the
penalty phase. The court denied that motion, too. Defendant
asserts the court erred, arguing that the process of selecting a
jury for a death penalty case leads to a jury panel that is more
likely to return a verdict unfavorable to the defense, and that
the problem could be cured by having two juries. We conclude,
based on settled law, that the court did not abuse its discretion
in denying defendant’s motions. (See, e.g., People v. Mendoza
(2016) 62 Cal.4th 856, 915 [noting the United States Supreme
Court has repeatedly rejected the claim that separate guilty and
penalty phase juries are required because jurors who are
selected to serve in a death penalty case are more likely to
convict a defendant]; Davis, supra, 46 Cal.4th at pp. 625–626
[same]; Catlin, supra, 26 Cal.4th at p. 114 [observing the
prevailing legislative preference for a single jury to determine

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both guilt and penalty].) For the same reason, we determine
that the court’s rulings did not violate defendant’s state or
federal constitutional rights.
        2. Admonition on proper use of victim impact evidence
     Prior to the penalty phase, defendant moved for a jury
admonition on the appropriate use of victim impact evidence.
Defendant requested that the court give the following
admonition: “The prosecution will now introduce what is known
as victim impact evidence. Victim impact evidence cannot be a
reason by itself to impose the death penalty. Victim impact
evidence is simply another method of informing you about the
nature and circumstances of the crime in question. You may
consider this evidence in determining an appropriate
punishment. However, the law does not deem the life of one
victim more valuable than another; rather, victim impact
evidence shows that the victim, like the defendant, is a unique
individual. Your consideration must be limited to a rational
inquiry into the culpability of the defendant, not an emotional
response to the evidence. The sentence you impose must be in
accordance with the law as I instruct you and not based on
sympathy, prejudice, emotion or public opinion and not based
solely on victim impact.” The court denied the motion.
     We have upheld the rejection of proposed instructions
nearly identical to the admonition requested here, and we see
no reason to reconsider our decisions. (See People v. Zamudio
(2008) 43 Cal.4th 327, 369–370; see also Johnson, supra,
61 Cal.4th at p. 780; Garcia, supra, 52 Cal.4th at pp. 762–763;
People v. Famalaro (2011) 52 Cal.4th 1, 38–39.) Only one
sentence from the defense’s proposed admonition has not been
addressed by this court in past cases, and that is the sentence


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stating that “[v]ictim impact evidence cannot be a reason by
itself to impose the death penalty.” That sentence is an incorrect
statement of the law. Jurors are required to consider all
evidence presented at trial, but they are “free to assign whatever
moral or sympathetic value [they] deem appropriate to each and
all of the various factors [they] are permitted to consider.”
(CALJIC No. 8.88.) Although it is highly unlikely the jurors in
this case voted for death solely because of the victim impact
evidence, doing so would not have been a violation of the law.
Because defendant’s proposed admonition was duplicative and
erroneous, the court properly refused it. For the same reason,
the court’s refusal to give the admonition did not violate
defendant’s state or federal constitutional rights.
         3. Judicial bias during defense opening statement
    Defense counsel’s opening statement began with this
comment: “I’ll tell you it is difficult, really, for me to get back up
in front of you at this point in time. And I am not going to
pretend that it is not difficult. That would not be something that
I couldn’t hide if I wanted to. And since the verdict was read on
Monday, I have spent a lot of time thinking about, agonizing
about what I might say to you, because you’ve rejected
everything else that we’ve had to say at the guilt phase and the
sanity phase. And the issue that I confront when I think about
it is: What do I say now? What do I say to you now? And I have
to explain that it is difficult for us, because Mr. Burt and I have
worked on this case for many months. I’ve represented
[defendant] since August of 1999. So, he is not just the
defendant to us. And after so much time and so much effort, a
case like this becomes part of the lawyers. We can’t help it. So,
I hope that you will understand our disappointment.”


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      The prosecutor objected, asserting that defense counsel
was making arguments, not summarizing the evidence to be
presented at the upcoming penalty phase of the trial. The court
stated it agreed that defense counsel was making arguments,
but it allowed counsel to proceed “with that thought in mind.”
Defense counsel later said: “Victim impact evidence is another
method of presenting [to] you, the jury, evidence of the nature
and circumstances of these crimes. And it’s appropriate for you
to consider the nature and circumstances of the crimes in
deciding punishment. It is not the law, however, that the life of
one victim is somehow more important than that of any other
victim.” The prosecutor again objected, saying: “This is just
pure argument.” The court then said to defense counsel: “Again,
it is comment [and] argument as opposed to what evidence
testimony you expect to offer in your case. So kindly give the
jury, if you would, your overview of what you expect the
testimony to be.”
      Defense counsel continued: “And I expect that based on
the victim impact evidence that you hear, you will get an
instruction that this is what you are to consider as
circumstances, part of the circumstances of the crime. And just
as sympathy for the family of [defendant] or the family — the
members of his family is not a matter you can consider in
mitigation, the same is true of sympathy for the families of the
victims, you cannot consider that — ” The prosecutor again
interrupted, saying: “She’s still arguing.” This time, the court
stated: “I’m going to give you ample time to make an opening
statement, but I would ask you to limit your opening statement
as to what you expect the evidence to be, and not draw your
inferences from it and not make your argument now. Just what


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you expect the testimony to be in the penalty phase trial. With
that thought in mind, you may proceed.”
     A short time later, defense counsel said: “You’ll hear what
Agent Rinek was told about Miss Armstrong. You will hear
what [defendant] said about that. And I expect that you will,
after hearing that, disagree with the clinical and I think unfair
description — ” The prosecutor again objected, and the court
agreed, stating: “[Y]ou are arguing your case. And you certainly
will have the right to do that at the appropriate time after all
the evidence has concluded. I would again ask you to confine
this comment now by way of opening statement to what you
expect the evidence to be as opposed to your argument and your
inferences.”
      Later, defense counsel said: “Obviously, we will rely on
the evidence you heard about [defendant’s] brain damage; that
he is someone who is born with brain damage. And that his
brain damage, that brain damage contributed to where he is
today. [¶] We are going to ask you to consider that [defendant]
also suffers from mental disorders that you’ve heard about, and
that these mental disorders are genetically based. Again,
something that he was born with, something about which he had
no choice, something he did not choose, a physical condition as
far as brain damage, as far as the mental disorders, a genetic
predisposition.” The following colloquy then ensued:
       “[The prosecutor]: Your honor, at this time — I don’t like
to object, but she’s basically arguing her evidence. If she wants
to tell us what new evidence she’s going to put on, that would be
wonderful.




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      “[Defense counsel]: Well, your honor, I think I can talk
about the evidence that I expect to present, and that’s what I’m
trying to do.
      “The Court: You certainly can. But you can’t argue the
case now. The opening statement really is just a brief overview,
if you will, as to what you expect your evidence to be. It’s not
evidence — and the jury knows that what counsels say is not the
evidence. What you hear from the witness stand, and whatever,
that’s the evidence. So, this is your opportunity to tell them
what you expect the evidence to be that you intend to present as
opposed to arguing your case. [¶] So, again, I don’t like to
continue these comments, and I don’t like these interruptions,
but there apparently is a legal basis because you are arguing as
opposed to making an opening statement.
      “[Defense counsel]: I disagree with the court. I think I’m
making an opening statement. I’m sorry if the court disagrees.
And [the prosecutor], obviously, if he objects, he objects. And we
will proceed that way.
     “The Court: Well, we will until we get to the point in time
where there are repetitive instances of not complying with the
order of the court, and then, of course, the court has an
alternative to impose. That is to just stop the opening statement
and start the evidence. So you may continue.”
      A few pages later in the reporter’s transcript, the court
again sustained an objection based on the argumentative nature
of defense counsel’s statement. Following that ruling, defense
counsel continued the opening statement, but after some time,
she said: “So . . . this is not a counting process. There is no
formula at all to what you consider in this part of the trial. You
consider all the evidence that you hear, and you weigh it, and

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you decide individually what is the most important for you. And
nobody can tell you, nobody can tell you that what you think is
most important isn’t most important. That is your right, and
nobody can take that away from you.” The prosecutor again
objected, saying: “She’s arguing again.” The court then said: “I
think what I’m going to do is set a time frame. Five more
minutes for opening statement. Then we will start with the
evidence.” Defense counsel then quickly completed her opening
statement.
      Defendant argues that the court’s statements to defense
counsel establish judicial bias and thus violated his due process
right to a fair trial. The argument is without merit.
      “ ‘Although the trial court has both the duty and the
discretion to control the conduct of the trial [citation], the court
“commits misconduct if it persistently makes discourteous and
disparaging remarks to defense counsel so as to discredit the
defense or create the impression it is allying itself with the
prosecution” [citation]. Nevertheless, “[i]t is well within [a trial
court’s] discretion to rebuke an attorney, sometimes harshly,
when that attorney asks inappropriate questions, ignores the
court’s instructions, or otherwise engages in improper or
delaying behavior.” [Citation.] Indeed, “[o]ur role . . . is not to
determine whether the trial judge’s conduct left something to be
desired, or even whether some comments would have been
better left unsaid. Rather, we must determine whether the
judge’s behavior was so prejudicial that it denied [the defendant]
a fair, as opposed to a perfect, trial.” ’ ” (People v. McWhorter
(2009) 47 Cal.4th 318, 373, italics added (McWhorter).)
      Here, the court made clear the opening statement should
describe the evidence the defense planned to present and should

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not be argumentative. That ruling was consistent with our case
law (see People v. Seumanu (2015) 61 Cal.4th 1293, 1342), but
defense counsel repeatedly ignored it. The court did not, so far
as the transcript reveals, respond emotionally or angrily.
Instead, the court patiently admonished defense counsel at least
six times. Finally, after counsel repeatedly disregarded the
court’s admonitions, the court exercised its discretion to put a
time limit on the opening statement. The court handled the
situation appropriately, and defendant’s claim of judicial bias is
unavailing.
      Defendant asserts the court “lectured defense counsel in
front of the jury and these mini-lectures became increasingly
lengthy and disdainful of defense counsel.” We reject that
characterization of the court’s rulings, which were, for the most
part, restrained. That said, if the court became marginally more
impatient with each of its rulings, it did so only because counsel
continued to disregard those rulings. “[T]o the extent the court’s
comments to [counsel] were a reflection of frustration and
irritation at counsel’s repeated [refusal to follow the court’s
rulings], they were not improper. ‘[S]uch manifestations of
friction between court and counsel, while not desirable, are
virtually inevitable in a long trial.’ ” (People v. Blacksher (2011)
52 Cal.4th 769, 825 (Blacksher), citing People v. Snow (2003)
30 Cal.4th 43, 78–79 (Snow).) The court’s statements and
rulings do not suggest judicial bias, and they did not deprive
defendant of a fair trial or violate his state or federal
constitutional rights.
         4. Evidence of defendant’s remorse
      The defense proffered the testimony of defendant’s cousin,
Larry H., who would have testified that defendant telephoned


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him from the county jail two or three days after his arrest, and
that defendant said he felt sorry about what had happened,
although he did not go into any detail about the murders. The
court excluded the testimony on hearsay grounds. Defendant
argues that the court erred.
      Although defendant had a constitutional right to present
mitigating evidence to the jury, “ ‘a capital defendant has no
federal constitutional right to the admission of evidence lacking
trustworthiness, particularly when the defendant seeks to put
his own self-serving statements before the jury without
subjecting himself to cross-examination.’ [Citation.] Under
Evidence Code section 352, a trial court has broad discretion to
exclude evidence . . . . In addition, statements by a defendant to
a third party regarding the defendant’s state of mind can be
admissible, but not when made under circumstances that
indicate a lack of trustworthiness. (Evid. Code, §§ 1250, 1252.)”
(People v. Peoples (2016) 62 Cal.4th 718, 757 (Peoples).) Here,
the proffered evidence was that defendant “told [Larry H.] that
he was sorry about what happened,” but this statement did not
necessarily mean that defendant was sorry for having killed the
victims. Defendant might have meant that he was sorry for
having caused grief and embarrassment to his family. Because
of the ambiguity of the alleged statement, cross-examination of
the declarant (i.e., defendant) was particularly important. (See
People v. Smith (2003) 30 Cal.4th 581, 629 (Smith).) Moreover,
the alleged statement was made by defendant at a time when he
had a strong motive to feign remorse, again making cross-
examination regarding the statement particularly important.
(See People v. Livaditis (1992) 2 Cal.4th 759, 780 [the
defendant’s “sincerity in telling potential defense witnesses
[while in jail awaiting trial] he was sorry was suspect” and “[t]he

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need for cross-examination was thus compelling”].) “Under
these circumstances, the trial court could reasonably conclude
that the hearsay statements could be excluded as unreliable
under Evidence Code section 1252.” (Peoples, at p. 758.)
     Defendant contends that even if the evidence was
inadmissible on hearsay grounds (see Evid. Code, § 1250), the
exclusion of the testimony violated his federal constitutional
rights. However, “[w]here evidence of remorse is so unreliable
as to be inadmissible under California law, the exclusion of such
evidence does not violate the general federal constitutional rule
that evidence that is reliable but otherwise inadmissible under
state law must be admitted if highly relevant to a critical issue
in the punishment phase. [Citations.] ‘The court did not
prevent defendant from presenting evidence of remorse, but only
evidence in the form of inadmissible hearsay not subject to cross-
examination.’ ” (Peoples, supra, 62 Cal.4th at p. 758; see People
v. McCurdy (2014) 59 Cal.4th 1063, 1110 [“The federal
Constitution, however, does not generally create a code of
evidence that supersedes a state’s evidentiary rules in capital
sentencing proceedings”].)
     At the penalty phase, defendant was permitted to present
evidence that during his July 24, 1999 FBI interview, he cried
when discussing Juli, and that he wrote Juli an apology letter.
He also presented a witness who read the transcript of the
remorseful statement defendant made during sentencing for the
Armstrong murder, and witnesses were allowed to describe
defendant’s emotional demeanor while giving that statement.
And defense counsel argued defendant’s remorse during closing
argument. Because defendant’s statement to Larry H. was not
subject to cross-examination and its meaning was ambiguous,
the court did not abuse its discretion in excluding the statement,
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and the ruling did not violate defendant’s state or federal
constitutional rights.
         5. Limits on the defense’s presentation of mitigating
            evidence
      Defendant argues the court improperly limited the
testimony of several defense witnesses, thereby depriving him
of his constitutional right to present a full range of mitigating
evidence. The proffered evidence related to the severe levels of
dysfunction in defendant’s immediate and extended family.
           a. The defense’s offers of proof and the trial court’s
              rulings
              i. Anna J.
      Defendant’s paternal aunt, Anna J., testified about
defendant’s family and, specifically, about the family at the time
of Steven’s abduction. Defense counsel asked Anna J. whether
she “recall[ed] how the children were reacting to the brother
being abducted.” The prosecutor successfully objected to that
question on relevance grounds, and defense counsel then asked
Anna J., without objection, what reaction defendant had to
Steven being abducted. Defense counsel next asked about the
effect of Steven’s abduction on defendant’s father.            The
prosecution objected, and the defense made an offer of proof that
a few years after Steven’s abduction, Anna J. “was called to a
motel room” where she encountered defendant’s father
threatening suicide, and she talked him out of it.
      The court ruled the evidence was irrelevant unless the
witness had “conveyed this to the defendant and he had
knowledge of it.” The court added that father’s character was
not at issue in the case.



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              ii. Nancy T. and Sandra A.
     According to defense counsel’s offer of proof, defendant’s
maternal aunt Nancy T. would testify that she was repeatedly
molested by her father and later learned that defendant’s
mother Kay was also molested by him. Nancy T. would also
testify that her father would criticize Kay and her if they showed
emotion; that Kay told her that defendant’s father was
molesting defendant’s sister C.S.; and that Kay knew that
defendant’s father had also molested defendant’s sisters Cy.S.
and J.S.
     According to defense counsel’s offer of proof, family friend
Sandra A. would describe the Stayner household when Steven
returned home. She would testify that she heard defendant’s
mother was molested, that defendant’s sister Cy.S. ran away
because defendant’s father molested her, and that defendant’s
father molested defendant’s sisters.
       The court excluded the proffered testimony of Nancy T.
and Sandra A. under Evidence Code section 352, stating, “This
is all cumulative. It’s repetitive. It has little or no probative
value on the background, character, [or] record of the defendant.
[¶] What happened interfamilia with respect to the Stayner
family, with respect to the grandparents, with respect to the
parents, with respect to molest[ations], some of which weren’t
even reported, wherein the siblings wouldn’t even have
knowledge of it is all totally irrelevant. [¶] What’s relevant is
what, if anything, occurred with respect to this defendant when
he was raised in this family, what did he see, what impacted
him, what did he have knowledge of, how was he treated . . . .”




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              iii. Jane W.
       Jane W., a friend of defendant’s maternal grandparents,
testified that defendant’s mother, Kay, came to live with her
when Kay was about 14 years old. The court sustained
relevance objections to questions asking Jane W. to describe
defendant’s grandparents and granduncle and asking whether
Kay had come to live with her because she had been molested
by her father (defendant’s grandfather).35
              iv. Frank Hubbell
      Frank Hubbell testified that he was a therapist with
Merced County Mental Health from 1976 through 1988, and at
that time, he ran a group therapy program for sex offenders.
Defense counsel asked Hubbell whether defendant’s father,
Delbert, had been one of his patients, and the prosecution
objected based on relevance. Defense counsel made an offer of
proof that after it was disclosed that Delbert molested C.S.
(defendant’s sister), Hubbell had contact with Delbert in group
therapy sessions, in sessions with Delbert and defendant’s
mother, Kay, and on an individual basis. Hubbell would also
testify about his diagnosis of Delbert, which included
exhibitionism, post-traumatic stress disorder, and passive-




35
      Defendant argues the court erroneously prohibited
defense counsel from making an offer of proof as to Jane W.’s
testimony. Defendant’s argument lacks a factual basis in the
record. Defense counsel stated, in passing, that she intended to
make an offer of proof regarding Jane W., and the court gave no
response one way or another. After a short break, counsel did
not request to make the offer of proof, nor did she make any offer
of proof later, when the court sustained objections to the
questions the defense posed to Jane W.

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aggressive personality disorder. The court disallowed the
proffered testimony on relevance grounds.
               v. Defendant’s sisters
      Cy.S., defendant’s oldest sister, testified about the
interaction among the family members after Steven’s abduction.
Defense counsel asked Cy.S. about a visit to see her grandfather
after Steven was abducted. The prosecution interposed a
relevance objection, and in a sidebar conference, defense counsel
made an offer of proof, saying that Cy.S. would testify that her
father suspected her and defendant’s maternal grandfather of
having abducted Steven.
     The court ruled that under Evidence Code section 352, it
was not going to permit a “replay” of “the entire family scenario.”
“We are now almost one week beyond our outside schedule. The
evidence will be completed in this trial in the penalty phase by
tomorrow, Friday. I’ve indicated that on several occasions. [¶]
Consequently, the court is going to sustain objections to the
family dynamics because we’ve heard it numerous times.”
     Later, defense counsel made a more detailed offer of proof
regarding the proposed testimony of Cy.S., stating she would
testify, among other things, that she ran away from home in the
ninth grade; that her father had been molesting her; that he
gave her the name of a person at Child Protective Services to
call; that her mother learned that her father had been molesting
his daughters; about what it was like after Steven was abducted;
about an incident that occurred when the family was coming
home from a trip; that Steven was physically punished two
nights before he disappeared; about Steven’s behavioral
problems after his return; about her religious conviction; and
about their uncle’s death. Counsel also made an offer of proof

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that defendant’s other sister, C.S., would testify that she was
molested by her father, that she reported it, that her mother
took her to Oregon, and about the chaotic nature of the home.
      Lastly, the defense made an offer of proof that defendant’s
sister J.S. would testify that after Steven left, the family kept
Christmas presents in a closet in Steven’s room and would add
presents every Christmas; that her parents would go out on
rainy days, chasing ambulances and would come home and
describe the bodies they had seen; that the family did not talk
to one another; and that on one occasion, her father used force
against her brother because of something she had complained
about, and she felt bad about it. She would also testify about
her father’s suicide attempt.
      In response to these offers of proof, the court stated that
in the penalty phase trial, 53 witnesses had already testified on
behalf of defendant about his “life story from start to finish” and
about how Steven’s abduction, the uncle’s death, and Delbert’s
molestation of his daughters affected the family. “So, in the
court’s view, . . . it doesn’t serve any meaningful purpose to offer
repetitive, cumulative evidence.          Under [Evidence Code
section] 352, the court can still [(i.e., even at a penalty phase
trial)] consider judicial economy and time. I stressed the fact
that we are one week now, approximately, beyond our outside
schedule, and we have a prospect of perhaps losing a juror or
jurors. And I indicated that in no uncertain terms we would
finish tomorrow as far as the evidence. [¶] . . . [T]hese
witnesses were . . . being called . . . to testify as members of the
defendant’s family, how they feel about him, what they would
want the jury to do perhaps, based upon a character trait of the
defendant, that they loved the defendant. [¶] And you had
unbridled, open license to do all of that, ask as many questions
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as you desire along those lines.” The court excluded defendant’s
sisters’ proffered testimony on the ground that it would be
cumulative.
            b. Analysis
      Defendant asserts the court erred in excluding the
testimony of the witnesses described above. He argues that
“interrelationships within a family and how they all reacted to
Steven’s disappearance is relevant mitigation as it provides the
jury of a [sic] full picture of the circumstances of defendant’s
childhood.” It is well settled, however, that the right of a capital
defendant to present mitigating evidence at the penalty phase
does not categorically preclude application of the ordinary rules
of evidence. (See McDowell, supra, 54 Cal.4th at p. 434.)
Furthermore, “the background of the defendant’s family is
material if, and to the extent that, it relates to the background
of defendant himself”; it “is of no consequence in and of itself.”
(People v. Rowland (1992) 4 Cal.4th 238, 279.)
      Here, the defense wanted to present evidence of sexual
molestations by defendant’s maternal grandfather of his
daughters and by defendant’s father of defendant’s sisters, as
well as evidence of how Steven’s abduction negatively affected
defendant’s siblings and his father. This evidence, however, was
cumulative of other evidence that had already been presented to
the jury.
      The jury was already aware that defendant’s mother had
been molested by her father, that defendant’s father had
molested defendant’s sisters, and that defendant’s mother and
sister had moved to Oregon because of the molestation of one of
defendant’s sisters. The jury also heard from numerous
witnesses the other details of defendant’s dysfunctional home

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life, including the dysfunction that followed in the aftermath of
Steven’s abduction. Duplicating this evidence would have had
little probative value and would have necessitated an undue
consumption of time. (See Evid. Code, § 352.) Thus, the trial
court acted within its broad discretion in excluding the evidence.
      Even if we were to find the court abused its discretion in
excluding the testimony of these witnesses, we would conclude
defendant was not prejudiced. The excluded evidence would
merely have corroborated the testimony from other witnesses
that defendant’s father molested defendant’s sisters as well as
provided further description of defendant’s family dynamic. The
corroboration value of the excluded evidence was slight because
the prosecutor did not challenge the evidence that defendant’s
father molested defendant’s sisters or evidence regarding
defendant’s dysfunctional family situation. Accordingly, any
error in excluding the testimony was harmless beyond a
reasonable doubt as there is no reasonable probability the error
would have affected the jury’s penalty                    determination.
(Chapman, supra, 386 U.S. at p. 24.)
        6. Evidence of prison conditions
      Dr. Craig Haney testified for the defense concerning
defendant’s ability to adjust to prison life. Before Dr. Haney’s
testimony began, however, the court ruled that his testimony
could not address the specific conditions of prison confinement
that would likely apply to defendant.          (See Ray, supra,
13 Cal.4th at pp. 352–353 [“Evidence concerning the rigors of
confinement has no bearing on the character or background of
the individual offender or the circumstances of the capital
offense”]; People v. Thompson (1988) 45 Cal.3d 86, 138
(Thompson) [the defendant “sought to introduce evidence as to


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how he would be housed to dispel any notion . . . that a sentence
of life without possibility of parole was somehow a ‘lenient’
sentence”]; id. at p. 139 [Such evidence “went neither to
defendant and his background nor to the nature and
circumstances of his crime”].)
      On cross-examination, the prosecutor asked Dr. Haney,
without objection, whether the Department of Corrections and
Rehabilitation “employ[ed] young female staffers . . . as guards
or counselors.”     Dr. Haney agreed that there were some
correctional officers who were women but “[t]hey have to be a
certain age.”
      Then, on redirect examination, defense counsel asked
Dr. Haney whether “[a]nything about the nature” of defendant’s
offense “would prevent him from coming into contact with young
female correction officers?”        The court overruled the
prosecution’s speculation objection, specifically noting “a
question was asked on cross-examination, and certainly
inferences could be drawn from that question.” Dr. Haney then
explained that defendant “would be restricted to having contact
only with correctional officers and not with any other employees
in the department of corrections who were female as a result of
a designated [sic] in his classification based on the nature of the
crime. So he would be placed in special restrictions. And his
movement within the prison would be especially restricted for
the term of his confinement as a result of the nature of this
conviction, and it would restrict his contact with anyone other
than a correctional officer.” The court then excused Dr. Haney.
     The next day, the defense expressed its intent to recall
Dr. Haney to testify about the specific conditions of confinement
that would likely apply to defendant, including the security

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measures the prison would likely impose. Defense counsel
argued that the defense could inquire about that issue on
redirect examination because the prosecutor, on cross-
examination, had asked about the extent of contact defendant
would have with female guards, thus opening the door to the
introduction of prison conditions evidence. The court denied the
motion, stating: “The court does not feel the prison conditions
were opened up on cross-examination on that question.”
      Defendant argues, based on People v. Smith (2015)
61 Cal.4th 18, that the evidence of prison conditions was
admissible to rebut the prosecution’s evidence regarding future
dangerousness (i.e., the risk that defendant posed to female
prison staff). We find People v. Smith distinguishable.
      In People v. Smith, the prosecution presented, as part of
its penalty phase case-in-chief, evidence of the defendant’s
numerous acts of in-custody violence and his effort to escape
from custody. (People v. Smith, supra, 61 Cal.4th at pp. 28–31.)
In response, the defendant proffered the testimony of an expert
on the security conditions imposed on prisoners sentenced to life
without parole “to rebut the prosecution’s evidence of
defendant’s violent jail conduct and escape attempts, which
raised the issue of his future dangerousness in prison.” (Id. at
p. 54.) The trial court excluded the proffered evidence (id. at
p. 55), but this court held the trial court had erred. We said that
although prison conditions evidence is generally inadmissible at
a penalty trial (id. at p. 57), “[w]hen . . . the prosecution raises
an inference of future dangerous conduct in prison as part of its
case in aggravation, the defendant is entitled to respond with
evidence that his chances to inflict harm in prison will be
limited.” (Id. at p. 58.) Significantly, the defense’s right to rebut


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the prosecution’s evidence of future dangerousness was central
to our analysis. (See id. at pp. 57–59.)
     Here, in contrast, the prosecution did not present any
evidence of in-custody violence by defendant or of any effort by
defendant to escape from custody. The prosecution also did not
argue future dangerousness as an aggravating factor. Instead,
the prosecutor asked a single question on cross-examination:
whether the Department of Corrections and Rehabilitation
“employ[ed] young female staffers . . . as guards or counselors.”
This limited question differs from the copious evidence offered
in People v. Smith.
     Although we find People v. Smith distinguishable, the
prosecutor’s manner of questioning about the presence of young
female staffers working in the prison, and the prosecutor’s
suggestion during closing argument that defendant might be a
danger to female prison staff,36 raise some concerns.
      Even if we were to find the trial court erred in declining to
allow the defense to recall Dr. Haney, on the record before us,
we would find defendant suffered no prejudice. (See Chapman,
supra, 386 U.S. at p. 24.)        The evidence offered about
defendant’s future dangerousness was minimal, consisting of a
single question on cross-examination about the possible
presence of female prison staff. Also, immediately following
Dr. Haney’s testimony on cross-examination, the defense was


36
       The prosecutor argued, “Knowing what this guy’s all
about, knowing that he will repeat his crime if he gets a chance,
do you 12 people really want to take a chance and mortgage the
futures, mortgage the lives of perhaps women correctional
officers in the joint, just take a chance and give him the gift of
leniency?”

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given some opportunity to address the issue, over the
prosecution’s objection, by asking Dr. Haney about restrictions
in the prison that would reduce his contact with female
correctional officers.
     The    concurring     and    dissenting      opinion,   however,
discounts this opportunity, concluding defendant “was wrongly
prevented at the penalty phase trial from offering evidence to
rebut the inference that he would pose a danger to female
correctional officers.” (Conc. & dis. opn. of Evans, J., post, at
p. 3.) Yet, the concurring and dissenting opinion overlooks that
it was not the trial court that limited the defense on this issue
on redirect, but the defense itself.
     As discussed above, over the prosecutor’s objection,
defense counsel specifically asked the expert to address
defendant’s potential contact with female correctional officers:
“Anything about the nature of [defendant’s] commitment offense
which would prevent him from coming into contact with young
female correctional officers?” Thus, counsel explicitly requested
that Dr. Haney qualify his previous testimony on cross-
examination that “[t]here are correctional officers who are
women,” but in doing so, focused on young, female correctional
officers. However, Dr. Haney did not directly answer that
question. Rather, he indicated that defendant would have
contact with correctional officers but “not with any other
employees . . . who were female[.]” Therefore, it was not the
trial court that limited Dr. Haney’s testimony on redirect.
Rather, Dr. Haney did not answer the precise question asked
and defense counsel did not follow up to ensure he actually
answered the question. In other words, at the very least, the
trial court allowed defense the chance, on redirect, to offer some
evidence to rebut the inference defendant would be a danger to
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female correctional officers, thus blunting the impact, if any, of
the trial court denying defendant’s request to recall Dr. Haney
as a witness the next day.
     Our analysis does not change when we consider the
prosecutor’s closing argument in which the prosecutor made
only a single, brief reference to the danger defendant would pose
to female correctional officers. The concurring and dissenting
opinion claims that the trial court’s failure to sustain defense
counsel’s objection to this comment, under Gardner v. Florida
(1977) 430 U.S. 349 and Simmons, supra, 512 U.S. 154,
constituted additional error because defendant was sentenced to
death, at least in part, on the basis of information which he had
no opportunity to deny or explain. (Conc. & dis. opn. of Evans,
J., post, at p. 3, quoting Gardner, at p. 362.) But the concurring
and dissenting opinion overlooks that the trial court permitted
defense counsel to explore that very issue during the redirect
examination of Dr. Haney. Again, it was not the trial court that
prevented Dr. Haney from explaining what contact, if any,
defendant would have with female correctional officers.
     Furthermore, the evidence in aggravation was
overwhelming. The crimes were particularly atrocious, with
three people murdered — two of whom were children — and
defendant repeatedly sexually assaulted Juli before kidnapping
and killing her. Defendant had also killed another victim in a
particularly cruel and callous manner.      In addition, the
prosecution presented extensive evidence regarding the
devastating impact that defendant’s crimes had on the victims’
families.
      Accordingly, considering the record before us, we conclude
there is no reasonable doubt as to whether the jury would have

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returned a verdict of death had the defense been allowed to
present more of Dr. Haney’s testimony.
         7. Instruction that defendant was sentenced to life
            without the possibility of release for the Armstrong
            murder
      The court excluded, on relevance grounds, testimony that
defendant had been sentenced to “life without the possibility of
release” for the Armstrong murder. The defense requested the
following special instruction: “You are instructed that in this
particular case the defendant has already been sentenced in
federal court for the Armstrong killing to a sentence of life
imprisonment without possibility of release.” The trial court
denied the request, stating: “The jury knows this. We have
talked about it on the jury voir dire. I mean, this is not an issue.
This is not something the People are going to argue didn’t
happen; it did happen, and the jury is aware of it. So, it’s
cumulative and doesn’t serve any purpose.”
      Defendant concedes the Armstrong murder sentence was
mentioned in voir dire, but he argues the trial court should have
given the proposed special instruction because no evidence of it
was presented at trial.
       We disagree. The instruction was an attempt by the
defense to place before the jury a fact that had been excluded as
irrelevant at trial. If the evidence was properly excluded at
trial, then an instruction that would have highlighted the
excluded evidence was also properly rejected. At trial, evidence
is admissible if it has “any tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) At the penalty
phase, the facts of consequence are the existence, or not, of the


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aggravating and mitigating factors. (§ 190.3.) Defendant’s
sentence in the Armstrong murder case was therefore not
relevant. It did not attenuate the gravity of the murders at issue
in the present case, and it did not tend to disprove any
aggravating circumstances in the present case. Nor did it
suggest any sympathetic or mitigating aspect of defendant’s
character. Because the evidence regarding defendant’s sentence
in the Armstrong murder case was irrelevant, the court properly
excluded such evidence, and it properly rejected the special
instruction that would have stood in the place of such evidence.
      Defendant argues that “[t]he jury was entitled to consider
the fact that [he] was already serving a life without parole
sentence and that any concerns for his future dangerousness in
the community would be unfounded.” But the jury had no option
of imposing a sentence less severe than life without the
possibility of parole, so “future dangerousness in the [general]
community” was not at issue, and “future dangerousness in the
[incarceration] community” would exist regardless of whether
defendant was serving a life sentence for the Armstrong murder.
Accordingly, the court’s ruling was not erroneous, and it did not
violate defendant’s state or federal constitutional rights.
         8. Prosecutorial misconduct at closing argument
      Defendant asserts the prosecutor committed prejudicial
misconduct during penalty phase closing arguments. He focuses
on four different points in the prosecutor’s argument.
      First, the prosecutor said: “Now, what do we mean by
justice? Well, here, in this particular case, we’re talking about
justice in a number of different ways. We’re talking about doing
what’s right and doing justice for Carole Sund. We’re talking
about doing justice for even a person that’s not a citizen of our

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country but who was over here under our protection, Silvina
Pelosso, and we’re talking about Juli Sund.” At that point,
defense counsel objected, stating the prosecutor’s argument was
improper because it referenced the victim’s national origin. The
court overruled the objection.
       Second, the prosecutor argued: “Does this defendant,
what he’s done, what we know he’s done, does he truly deserve
a punishment that is lesser or different from that which he
inflicted upon the victims, Carole Sund, Silvina Pelosso, and
Juli Sund? We know what he did to these people was done
without any concept of due process, none.” The court overruled
defense counsel’s objection, and then the prosecutor continued:
“There was no due process involved. He didn’t have arrest
protections, lawyer protections, jurors, law guiding jurors, none
of that. That’s not what he did. And that’s something you have
to think to yourself, did he even accord them a modicum of due
process? No.”
      Third, the prosecutor discussed the possibility that the
jurors might feel sympathy for defendant’s parents, and in that
context pointed out that it was defendant’s own conduct that
caused his parents “this grief.” The prosecutor continued: “Why
are all you guys sitting here and being captives of this system
for about three months? . . . [¶] . . . [¶] . . . For us it’s four
because we had to pick this jury. But who brought us here? Did
you guys come here by choice? No. Was it your decision? No.
My decision? No. The judge — No. It’s the defendant’s decision
to bring us here.” The court overruled defense counsel’s
objection.
     Finally, after discussing each of the victims, the
prosecutor said: “[T]hat doesn’t even begin to express the

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impact of what he’s done. Look at the impact he even had on his
own family. Look at the impact that it has on your lives. [Are
you] gonna think about these types of things always the same in
the future? Are you going to feel comfortable traveling by
yourself, taking your daughters over to Yosemite or [a] remote
place like that? Are you literally going to live your life the
same?” The court overruled defense counsel’s objection.
      “[A] prosecutor enjoys wide latitude during closing
argument to comment on the evidence or draw reasonable
inferences from it; misconduct arises when the prosecution uses
deceptive or reprehensible methods to persuade the trier of fact
or infects the trial with unfairness sufficient to render the
subsequent conviction a denial of due process.” (Parker, supra,
13 Cal.5th at p. 79.) Forceful argument is not misconduct. “ ‘A
prosecutor may vigorously argue his case, marshalling the facts
and arguing inferences to be drawn therefrom.’ ” (People v.
Sandoval (1992) 4 Cal.4th 155, 183.) “[T]he question is whether
there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable
fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
     Defendant argues the prosecutor’s reference to Silvina’s
status as a visitor to this country constituted misconduct
because it was “inflammatory” and implied that “ ‘we’ failed to
protect her” from defendant. But the prosecutor’s comment
merely pointed out that a noncitizen in this country is entitled
to the same protections against criminal behavior as a citizen.
The comment was true, and nothing about it was deceptive or
reprehensible, or infected the trial with such unfairness that
defendant was denied due process.



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      Defendant asserts the prosecutor should not have
commented that defendant did not afford “due process” to his
victims. The comment, of course, implicitly invoked, by way of
contrast, the significant due process protections that defendant
enjoyed in the California justice system. Thus, the comment
made the point that defendant did not act with justice and
fairness, but rather with brutality and cruelty. Such argument
is not misconduct so long as the prosecutor is not suggesting that
the jury deny the defendant due process. (See People v. Ervine
(2009) 47 Cal.4th 745, 809 [not misconduct when prosecutor
commented that the victim “received ‘no due process’ ”].) The
argument merely pointed out to the jury that defendant’s
actions were not mitigated by reason or compassion.
     Additionally, defendant argues the prosecutor committed
misconduct by asking the jury:         “Are you going to feel
comfortable traveling by yourself, taking your daughters over to
Yosemite or [a] remote place like that?” Defendant argues the
prosecutor was urging the jurors “to make their decision on
emotional and irrational grounds and on the impact the case has
had on their own lives.” However, the prosecutor’s comment,
asking jurors to consider the impact defendant’s crimes had on
them, was not deceptive, reprehensible, or unfair, and it was not
misconduct. (See People v. Riggs (2008) 44 Cal.4th 248, 323
[“the randomness of the crime was a relevant consideration, and
the prosecutor’s comments, even to the extent that they referred
to generalized fears aroused by random violence, were not
unduly inflammatory”].)
      Although the portions of the prosecutor’s closing argument
discussed above do not rise to the level of prosecutorial
misconduct, the prosecutor’s comment regarding defendant
being the cause of the jurors “sitting here” as “captives of this
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system for about three months” is problematic. Right after
telling the jurors they were captives, the prosecutor continued:
“But who brought us here? Did you guys come here by choice?
No. Was it your decision? No. My decision? No. The judge —
No. It’s the defendant’s decision to bring us here.” Every
defendant has a fundamental right to be tried by a jury. The
jury should not be led to believe that defendant was somehow at
fault for exercising that right and making the jurors “captives of
this system.”
      Even if we were to find that these last comments
constituted prosecutorial misconduct, we would nonetheless
conclude any error was harmless. The prosecutor’s statements
were brief considering the closing argument spanned 65 pages
in the record. Further, as we discussed above, the evidence in
aggravation was staggering. Considering the entire record
before us, we find no reasonable possibility that the prosecutor’s
comments impacted the outcome, i.e., the jury would have
imposed life without the possibility of parole absent the
challenged statements.   (See People v. Williams (2010)
49 Cal.4th 405, 467.)
         9. Penalty phase special instructions
      Defendant argues that the court erred in rejecting five of
his proposed special instructions. We disagree.
            a. Special instruction No. 3
      Defendant requested the following instruction: “You are
instructed that life imprisonment without possibility of parole
means exactly what it says: That the defendant will be
imprisoned for the rest of his life. [¶] You are instructed that
the death penalty means exactly what it says: That the
defendant will be executed. [¶] For you to conclude otherwise

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would be to rely on conjecture and speculation and would be a
violation of your oath as trial jurors.” The court rejected the
instruction as unnecessary.
      Defendant concedes that this court has repeatedly upheld
the rejection of the proposed instruction. (See, e.g., People v.
Marlow (2004) 34 Cal.4th 131, 153–154; People v. Gutierrez
(2002) 28 Cal.4th 1083, 1159–1160 (Gutierrez); People v. Padilla
(1995) 11 Cal.4th 891, 971–972; People v. Sanders (1995)
11 Cal.4th 475, 561–562; Thompson, supra, 45 Cal.3d at
pp. 130–131.) We decline defendant’s invitation to reconsider
these decisions.
            b. Special instruction No. 4
      Defendant requested an instruction “that death is
qualitatively different from all other punishments and is the
ultimate penalty in the sense of the most severe penalty the law
can impose.” The court rejected the instruction as “redundant.”
      This court has “repeatedly . . . held . . . that there is no
legal requirement that penalty phase jurors be instructed that
death is the greater punishment, because the penalty trial itself
and the jury instructions given, particularly CALJIC No. 8.88,
make clear that the state views death as the most extreme
penalty.” (Cowan, supra, 50 Cal.4th at p. 501; see People v. Lee
(2011) 51 Cal.4th 620, 655; People v. Cook (2007) 40 Cal.4th
1334, 1363; People v. Ochoa (1998) 19 Cal.4th 353, 478–479.)
We decline defendant’s invitation to reconsider these decisions
and reject his assertion of error.
            c. Special instruction No. 5
      Defendant requested the following instruction:           “In
arriving at a proper penalty in this case, you shall not consider
the race, color, religious beliefs, national origin, sex, or sexual

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orientation of the defendant or any victims, and you may not
impose a sentence of death unless you agree unanimously that
you would impose a sentence of death for the crimes in question
no matter what the race, color, religious beliefs, national origin,
sex, or sexual orientation of the defendant, or any victims, may
be. [¶] The jury shall return to the court a certificate, signed by
each juror and to be provided to you, that consideration of the
race, color, religious beliefs, national origin, sex, or sexual
orientation of the defendant or any victims was not involved in
reaching his or her individual decision and that the individual
juror would have made the same recommendation regarding a
sentence for the crime in question no matter what the race,
color, religious beliefs, national origin, sex, or sexual orientation
of the defendant, or any victim, may be.”
      The court rejected the proposed instruction as
unnecessary “because CALJIC 8.84.1 specifically instructs the
jury that it must not be influenced by bias, prejudice against the
defendant.” The court later instructed the jury in accordance
with CALJIC No. 8.84.1.
      The instruction defendant proposed is derived from the
federal death penalty statute (see 18 U.S.C. § 3593(f)). We have
held that this instruction is not required, particularly when, as
here, the jury has been instructed in accordance with CALJIC
No. 8.84.1. (See People v. Williams (2016) 1 Cal.5th 1166, 1202–
1203; Smith, supra, 30 Cal.4th at p. 639.) What we stated in
Smith likewise disposes of defendant’s claim of instructional
error here: “[T]he jury may not consider the defendant’s or
victim’s race in deciding whether to impose the death
penalty. . . . But the court need not interject the issue of race
itself and then tell the jury to disregard it, at least absent some


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indication the jury might improperly consider race.” (Smith, at
p. 639.)
     Defendant argues that the special instruction was
necessary in this case because Silvina was from Argentina. But
the mere fact that a victim is from a foreign country does not
require the proposed special instruction. First, as noted, the
jury instructed the jury with CALJIC No. 8.84.1 that it must
neither be influenced by bias nor prejudice against the
defendant. Second, nothing about the evidence suggested that
Silvina’s national origin had any bearing on defendant’s crimes.
The prosecutor mentioned during closing that Silvina was not a
United States citizen, but he did so only to urge the jury not to
treat Silvina differently based on that fact. The court did not
err in rejecting the defense’s proposed instruction.
            d. Special instruction No. 12
      Defendant requested the following instruction: “You must
not consider as an aggravating factor the existence of any special
circumstance if you have already considered the facts of the
special circumstance as a circumstance of the crimes for which
the defendant has been convicted. In other words, do not
consider the same factors more than once in determining the
presence of aggravating factors.” The trial court rejected the
instruction as unnecessary because the jury was not likely to
misinterpret the standard instruction as permitting double
counting. The court later instructed the jury in accordance with
CALJIC No. 8.88 (formerly CALJIC No. 8.84.2), which discusses
the weighing of aggravating and mitigating circumstances.
     In People v. Melton (1988) 44 Cal.3d 713, 768, this court
noted that “[t]he literal language of [section 190.3, factor] (a)
presents a theoretical problem . . . , since it tells the penalty jury

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to consider the ‘circumstances’ of the capital crime and any
attendant statutory ‘special circumstances.’ Since the latter are
a subset of the former, a jury given no clarifying instructions
might conceivably double-count any ‘circumstances’ which were
also ‘special circumstances.’ On defendant’s request, the trial
court should admonish the jury not to do so.” Nonetheless, “we
have . . . concluded that the standard instructions do not
inherently encourage the double counting of aggravating
factors,” and “that the absence of an instruction cautioning
against double counting does not warrant reversal in the
absence of any misleading argument by the prosecutor.” (People
v. Barnett (1998) 17 Cal.4th 1044, 1180.) Defendant fails to
identify any misleading argument by the prosecutor that would
have caused the jury to improperly double count. Thus, as we
concluded in Barnett, the court did not err in rejecting the
proposed instruction.
            e. Special instruction No. 15
     Defendant requested an instruction listing the specific
mitigating factors applicable to his case. The court denied the
request, stating it was “covered by [CALJIC No.] 8.85.”
      “[A] defendant is not entitled to instructions that simply
highlight facts favorable to him.” (People v. Jackson (2014)
58 Cal.4th 724, 768.) We have stated that instructions that list
only mitigating facts or evidence are “patently argumentative
and, among other things . . . usurp[] the jury’s proper role as fact
finder at the penalty phase. A capital defendant is not entitled
to unduly argumentative instructions in the penalty phase.”
(Gutierrez, supra, 28 Cal.4th at p. 1159, fn. omitted; People v.
Jones, supra, 54 Cal.4th at p. 82; People v. Benson (1990)



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52 Cal.3d 754, 805–806.) We decline defendant’s invitation to
reconsider these decisions.
      Because the court did not err in rejecting the defense’s
proposed instructions, it also did not violate defendant’s state or
federal constitutional rights.
         10. Time limit on defendant’s right to present a defense
      The jury returned its sanity verdict on Monday,
September 16, 2002. The defense then sought to delay the start
of the penalty phase trial until Monday, September 23, 2002, or
possibly later, noting, among other things, that one of the
defense attorneys had recently suffered an ankle injury. The
court denied the request, but, at defense counsel’s request,
instructed the bailiff to ask the jurors the following: “Did any of
the jurors plan on a break or a postponement of the penalty
phase to start on Monday, 9/23, or is the jury ready to proceed
tomorrow on the penalty phase?” The jurors reported back that
they preferred to proceed the next day. Further discussion
ensued and the prosecution expressed concern that two of its
penalty phase witnesses were leaving for Argentina on Friday,
September 20, 2002. The penalty phase trial started on
Thursday, September 19.
      The following Monday, September 23, a juror sent a note
to the court expressing concern with the time frame of the trial.
The juror said that, relying on assurances made during voir dire,
several jurors had nonrefundable vacation plans scheduled for
the middle of October.
     The guilt phase of the trial continued, and on Wednesday,
September 25, the People rested, and the defense began
presenting its penalty phase evidence. At the close of the next
court session (September 26), the court asked the parties

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whether it should “advise the jury something about our
scheduling . . . . [¶] So can we get an idea as to where we are by
way of the evidence in the case?” Defense counsel estimated
that the defense case would be complete, or close to complete, on
Monday, October 7, and the court communicated this time
estimate to the jury.
      The following Monday, September 30, the court informed
the parties that, despite its past practice of not holding formal
court sessions on Fridays, the court would hear evidence on the
coming Friday “because my intent is to finish the evidence this
week,” thus giving counsel “the weekend to prepare your closing
arguments, instructions and whatever.” Defense counsel said:
“We will do our best. It’s just we have experts who are going to
be testifying and other witnesses as well.”
      The next day, before resuming the presentation of
evidence, defense counsel informed the court that Dr. James
Park, its expert on adjustment to prison life, had been denied
permission to meet with defendant “in a normal interview
room.” The court responded that it had no authority over jail
security, adding that Dr. Park might have to conduct the
interview through a glass barrier, using a telephonic voice
connection. In addition, the court stated: “I just want everybody
to understand one thing. If we have to go overtime, if we have
to work late, if we have to start early, we are going to finish the
evidence in this case this week.” Defense counsel did not raise
any scheduling concern regarding Dr. Park’s testimony.
      On Thursday, October 3, the court stated: “We have a very
serious time issue in this case. We are now almost one week
beyond our outside schedule. The evidence will be completed in
this trial in the penalty phase by tomorrow, Friday.” Again,

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defense counsel did not raise any scheduling concern regarding
Dr. Park’s testimony.
      On Friday October 4, defense counsel, out of the presence
of the jury, took up the issue of scheduling. Counsel noted the
court had “limit[ed] this day to being the last day” for the
presentation of evidence, but stated that the defense had yet to
call several witnesses and “we could not possibly get them in.”
The court responded that if the defense had more witnesses, it
should “put them on” because it was only 11:20 a.m. and the rest
of the day was still available. Defense counsel explained that
Dr. Park was not available until Monday, October 7, and the
court responded: “I’m sorry that he’s not available. I’m not
going to be captive to a witness that’s not available the entire
afternoon. Get on the phone; get him here. Tell him we’re going
to finish the evidence. You get him ready this afternoon; put
him on. But we’re not going to be held captive if he’s not ready
to go because it’s not convenient for him. That’s not convenient
for the court. Today’s the last day for the evidence.” Defense
counsel explained that Dr. Park was testifying in a different
county. The court then asked counsel whether Dr. Park had
been unavailable on every day of the past week. The court
stated: “Everybody was under the impression and knew and
made it definitive we would finish this trial on Friday. And if
[Dr. Park] wasn’t available because it didn’t fit his schedule, he
wanted to be elsewhere or you wanted to put other witnesses on,
so be it. The case is going to finish today by way of the evidence,
and the arguments are going to start Monday morning. So,
that’s the court’s ruling.”
      Based on the foregoing colloquy between the court and
counsel, defendant argues the court erred by imposing an
“arbitrary cut-off date for the conclusion of the defense case,”
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resulting in the inability of the defense to call Dr. Park as a
witness.37 We reject defendant’s claim.
      “It shall be the duty of the judge to control all proceedings
during the trial, and to limit the introduction of evidence and
the argument of counsel to relevant and material matters, with
a view to the expeditious and effective ascertainment of the
truth regarding the matters involved.” (§ 1044.) “In exercising
its discretion under section 1044, a trial court must be impartial
and must assure that a defendant is afforded a fair trial.
[Citation.] When there is no patent abuse of discretion, a trial
court’s determinations under section 1044 must be upheld on
appeal.” (People v. Cline (1998) 60 Cal.App.4th 1327, 1334
(Cline).)
      Initially, we observe that based on this record, we reject
defendant’s assertion that the court imposed an “arbitrary”
deadline for the completion of evidence because the record shows
the court adopted defense counsel’s own estimate that the
defense would conclude its evidentiary presentation on Monday,
October 7. Moreover, the parties were aware that trial was
exceeding the original time estimate and that jurors had other
commitments which necessitated that the trial proceed
expeditiously.
     The only change the court thereafter made in scheduling
was that the parties would present evidence on a Friday —
October 4 — instead of the following Monday, October 7, even
though Fridays were normally off days for trial. Significantly,
this change was announced four days in advance, on


37
      Notably, the defense did present evidence of defendant’s
ability to adjust to prison life through Dr. Haney.

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September 30, and the defense did not object. The next day, on
October 1, after a discussion between the court and parties
regarding Dr. Park’s efforts to interview defendant, the court
reaffirmed the Friday completion date, but the defense again did
not object. The defense also did not object when the court
reaffirmed the Friday completion date two days later, on
October 3. The defense did not inform the court of a scheduling
problem involving Dr. Park until midday on Friday, October 4,
the very day the court had set as the last day for the
presentation of evidence.
      On this record, we conclude that the time limit the court
imposed was reasonable, “impartial,” and “fair.” (Cline, supra,
60 Cal.App.4th at p. 1334.) It was certainly not arbitrary or a
“patent abuse of discretion.” (Ibid.) The court worked closely
with the parties to meet their needs while considering the jurors’
schedules and moving the trial forward as expeditiously as
possible.   The defense’s request to extend the trial to
accommodate Dr. Park’s schedule             was     belated and
unreasonable.     Accordingly, the court did not abuse its
discretion in denying the request, and its ruling did not violate
defendant’s state or federal constitutional rights. 38

38
      Defendant relies on People v. Blackburn (1982)
139 Cal.App.3d 761, to support his argument, but the case is
easily distinguished. In Blackburn, the trial court told the
defendant, who was representing himself, to have his witnesses
present the next morning. The defendant had one witness
present the next morning, but he had arranged for his other
witnesses to arrive in the afternoon. When the morning witness
refused to testify, the trial court insisted the defendant should
immediately bring his other witnesses into court.             The
defendant was not able to do so, and the trial court then


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      In addition, we agree with the People that Dr. Park’s
proffered testimony about defendant’s future prison adjustment
was cumulative to Dr. Haney’s testimony. Dr. Haney testified
that defendant had excellent potential for positive prison
adjustment and believed that defendant would make a positive
contribution to the prison environment. Defendant counters
that Dr. Park’s testimony would not be cumulative of
Dr. Haney’s because Dr. Haney did not have daily access to
prison conditions like Dr. Park did. Yet, defendant does not
explain, besides his knowledge of the San Quentin prison, how
Dr. Park’s testimony would not be cumulative of Dr. Haney’s
largely unchallenged testimony. In other words, defendant has
not adequately established what specifically Dr. Park would
have added other than to echo Dr. Haney’s testimony with
perhaps some more explicit references to prison.
     Thus, even if the trial court abused its discretion in ending
the presentation of evidence on October 4, the exclusion of
Dr. Park’s testimony was harmless under People v. Brown
(1988) 46 Cal.3d 432, 448 and Chapman, supra, 386 U.S. at
p. 24.
      H. Motion for a New Trial
      In November 2002, about a month after the jury returned
its verdict of death and was discharged, defense investigators
interviewed several jurors, and based on those interviews,



announced that the trial had concluded. (Id. at pp. 763–764.)
Nothing similar occurred here. As the record reflects, the court
provided advance notice that Friday, October 4, was the last day
for the presentation of evidence, and defense counsel first lodged
his objection midday on the date the trial was scheduled for
completion.

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defendant moved for a new trial, alleging juror misconduct,
among other things. Defendant’s motion, which was filed on
December 10, 2002, attached three declarations from
investigator Sheila J. Klopper and one declaration from Juror
No. 3. Klopper’s declarations, which described what various
jurors had told her, were largely inadmissible hearsay, but the
court treated them as an offer of proof regarding what the jurors
might say if called to testify.
        1. Facts and procedural background
      Klopper’s first declaration reported her interview of Juror
No. 1, who told her that during deliberations, three jurors spoke
about having been molested as children. One of the three jurors
said the molestation incidents continued over a couple of years.
The other two jurors described isolated incidents of molestation.
Juror No. 1 also informed Klopper that two of the jurors
mentioned that being the victim of a molestation had not
prevented them from functioning in society.
      Klopper’s second declaration reported her interview of
Juror No. 11, who said he was once arrested for misdemeanor
embezzlement, although no charges were filed. Juror No. 11
also said he had a son who was “borderline autistic,” and he
wondered if defendant, too, was “borderline autistic.” In
addition, Juror No. 11 told Klopper that his coworkers told him
he should not bother coming back to work unless the jury
returned a verdict of death, a comment that caused Juror No. 11
to call in sick and thus avoid such conversations. And Juror
No. 11 told Klopper that two jurors had mentioned during
deliberations that they had been molested as children, and they
had commented that being a victim of molestation had not
caused them to kill people.


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                        PEOPLE v. STAYNER
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      Klopper’s third declaration reported the statement of
Juror No. 10, who told her he had been the victim of molestation
as a child. The molestation was an isolated incident that he did
not report. He informed Klopper that after another juror
described being the victim of child molestation, he related his
own experience to the other jurors.
      Last, defense counsel submitted a declaration provided by
Juror No. 3, who said that during deliberations, Juror No. 7 and
Juror No. 10 told the other jurors that they had been molested
as children, and that they had also commented that they had
not, as a result, gone out and committed murders. In addition,
according to Juror No. 3, a few jurors had told the other jurors
that defendant might somehow get a parole hearing and could
possibly get back on the streets.39
      Defendant moved for a new trial, asserting that the jurors’
“intentional concealment of material information” constituted
misconduct. He stated that the three jurors who had personal
molestation experiences had been untruthful when they
answered “no” to juror questionnaire question 45, which asked
whether they had “been a witness to or victim of a crime,” and
question 46, which asked whether they had “ever been the
victim of a violent crime (i.e., assault, murder, rape, molestation,
domestic violence, etc.).” Defendant further claimed that Juror
No. 11, who was arrested for misdemeanor embezzlement, had
a son who was “borderline autistic,” and had coworkers who let
their feelings about the case known to him, had disregarded the


39
     Because Juror No. 3 was a direct witness to these
statements made by other jurors, the statements were
admissible to impeach the verdict as evidence of statements
made in the jury room.

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court’s admonition not to talk to anyone about the case, and had
been untruthful in response to question 49, which asked
whether he or any relative had “sought the assistance of a
psychologist, psychiatrist, sociologist . . . or other mental health
professional,” and question 47, which asked whether he had
“ever been arrested, accused, or convicted of a crime, or, to your
knowledge been a suspect in a crime or crimes.”
      The trial court denied defendant’s motion for a new trial,
finding the questions were “ambiguous in lay person’s terms.”
“Many people can take the position that if they had been
inappropriately fondled or touched by a stranger or a relative,
but it has not given rise to an arrest . . . [or] a prosecution . . . it
might very well mean in the mind of the person that it’s not
really a criminal offense. And the same is true of a question
which asks whether or not you’ve ever been the victim of a
violent crime, in the minds of many people, if they have been . . .
sexually fondled, and it isn’t violent in nature, the response to
that question, which would be ambiguous, would be no. [¶] The
court also finds that based upon the totality of the circumstances
in this case, the time in which the questions were asked, the
manner in which they are framed, and the answers given, the
fact that the questions would call for and do call for ambiguous
responses — that that conduct is not jury misconduct. The fact
that a juror was approached at work by co-employees and
resisted those persons . . . to the point where he took steps not
to go in to work, is not jury misconduct. . . . [T]he person was
conscientious enough to actually call in sick on those occasions
when co-employees did in fact pester him. [¶] Further, the court
finds that the fact that a juror had opined that his son was
borderline autistic is not in the court’s view misconduct. It
doesn’t indicate in the court’s mind that there was any type of

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professional psychiatric or psychological therapy, or diagnosis,
or treatment, or whatever. It just was an opinion that the juror
recited. [¶] So based upon this offer of proof, the court does not
find based upon the totality of the circumstances in this case
that that constituted misconduct.”
      Defendant argues the court erred in denying his motion
for mistrial based on juror misconduct. We disagree.
         2. Legal principles
      “ ‘When a party seeks a new trial based upon jury
misconduct, a court must undertake a three-step inquiry. The
court must first determine whether the affidavits supporting the
motion are admissible. [Citation.] If the evidence is admissible,
the court must then consider whether the facts establish
misconduct. [Citation.] Finally, assuming misconduct, the
court must determine whether the misconduct was prejudicial.
[Citations.] A trial court has broad discretion in ruling on each
of these questions and its rulings will not be disturbed absent a
clear abuse of discretion.’ ”     (People v. Bryant (2011)
191 Cal.App.4th 1457, 1467, quoting People v. Perez (1992)
4 Cal.App.4th 893, 905–906.) “When the motion [for new trial]
is based upon juror misconduct, the reviewing court should
accept the trial court’s factual findings and credibility
determinations if they are supported by substantial evidence,
but [the reviewing court] must exercise its independent
judgment to determine whether any misconduct was
prejudicial.” (Dykes, supra, 46 Cal.4th at p. 809.) “Juror
misconduct gives rise to a presumption of prejudice [citation][,
which] the prosecution must rebut . . . by demonstrating ‘there
is no substantial likelihood that any juror was improperly



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                Opinion of the Court by Guerrero, C. J.


influenced to the defendant’s detriment.’ ” (People v. Gamache
(2010) 48 Cal.4th 347, 397.)
        3. Defendant’s evidence of juror misconduct is largely
           inadmissible hearsay
      Klopper’s declarations contain hearsay. In addition, to the
extent that defendant offered Juror No. 3’s declaration to
establish that Jurors Nos. 7 and 10 had been molested as
children based on statements that Juror No. 3 heard, then those
statements would be hearsay as well. “Hearsay evidence offered
in support of a new trial motion that is based on alleged jury
misconduct ordinarily is insufficient to establish an abuse of
discretion in either denying the motion or declining to conduct
an evidentiary hearing.”         (People v. Manibusan (2013)
58 Cal.4th 40, 55 (Manibusan); see Dykes, supra, 46 Cal.4th at
p. 810.)    And “[d]efendant offers no persuasive basis for
deviating from this general rule.” (Manibusan, at p. 55; see
Dykes, at p. 811.) Thus, the trial court would not have erred if
it had denied defendant’s motion on the grounds that the
declarations consisted predominantly of inadmissible hearsay.
Yet, the trial court did not do so and treated the declarations as
offers of proof. We take the same approach here and agree with
the court that a new trial was not warranted as we discuss
below.
        4. Juror comments about personal molestation
           experiences
     Defendant argues, as he did below, that the jurors’
personal molestation experiences show they were untruthful in
response to questions 45 and 46 of the juror questionnaire.
Assuming, without deciding, the truth of the jurors’ statements,
we conclude the court reasonably determined the jurors might
not have thought of their molestation experience as involving a
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“crime” that the questionnaire was concerned with.
Questions 45 and 46 asked the jurors whether they had ever
been the victim of a crime, and as the court explained, the jurors
might have thought the questions did not encompass unwanted
sexual contact that never resulted in an arrest or a prosecution.
Moreover, question 46 asked whether the juror had ever been a
victim of a violent crime. We agree with the trial court that a
victim may have been confused by this question, and
understandably answered “no” despite the fact that this
question listed molestation as an example of a violent crime.
Indeed, the way the question was worded might have given the
impression that it was not inquiring about any act of
molestation, just one that was accompanied by an additional act
of violence.     Therefore, the jurors’ statements were not
necessarily inconsistent with a “no” answer to questions 45 and
46 on the juror questionnaire and were insufficient to show juror
misconduct.
      The record also supports the court’s ruling that the jurors’
failure to disclose their childhood molestation experiences was
unintentional. Indeed, it seems unlikely these jurors concealed
their experiences because they hoped to be chosen as a juror
despite harboring a bias against defendant. It is much more
likely that they did not believe that questions 45 and 46 applied
to them. Thus, we agree with the trial court that the jurors did
not act with any purpose of concealment. What we stated above
in connection with Juror No. 5’s failure to disclose his citation
for public intoxication is relevant here. (See pt. II.E.7., ante.)
“Although intentional concealment of material information by a
potential juror may constitute implied bias justifying his or her
disqualification or removal [citations], mere inadvertent or
unintentional failures to disclose are not accorded the same

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effect.” (McPeters, supra, 2 Cal.4th at p. 1175.) Accordingly,
even if some jurors were the victims of childhood molestation,
we agree with the trial court that the jurors’ respective answers
to questions 45 and 46 were not juror misconduct and do not
establish bias.
      Defendant also argues that the jurors improperly relied on
their personal experiences of childhood molestation to draw
conclusions about how childhood molestation affected
defendant. Our prior decisions do not support this argument.
“Jurors bring to their deliberations knowledge and beliefs about
general matters of law and fact that find their source in
everyday life and experience. That they do so is one of the
strengths of the jury system. It is also one of its weaknesses: it
has the potential to undermine determinations that should be
made exclusively on the evidence introduced by the parties and
the instructions given by the court. Such a weakness, however,
must be tolerated.” (People v. Marshall (1990) 50 Cal.3d 907,
950; see Peoples, supra, 62 Cal.4th at p. 777 [“ ‘ “[J]urors cannot
be expected to shed their backgrounds and experiences at the
door of the deliberation room” ’ ”].)
      Here, if it is true that some jurors briefly referred, during
deliberations, to their personal experiences with childhood
molestation, that merely shows they were undertaking a
commonsense evaluation of the evidence. The exercise of
common sense, grounded in one’s personal experience, is
fundamental to the jury system. (See, e.g., People v. Keenan
(1988) 46 Cal.3d 478, 510 [jury expected to “apply[] its common
sense and life experience”].) Anecdotal references to personal
experience are also an integral part of how human beings
communicate with one another when discussing an important
question. And these jurors’ comments appear to be a reflection
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                Opinion of the Court by Guerrero, C. J.


of their “subjective reasoning processes” (Manibusan, supra,
58 Cal.4th at p. 59), which is not admissible “to show the effect
of such statement[s] . . . upon a juror either in influencing him
to assent to or dissent from the verdict or concerning the mental
processes by which it was determined” (Evid. Code, § 1150,
subd. (a)). In sum, there is no indication that the jurors were
biased because of their childhood molestation experiences, and
therefore the jurors did not commit misconduct, and the court
did not abuse its discretion in so concluding.
         5. Juror No. 11’s comments about being arrested, his
            son being autistic, and his coworkers’ harassment
      Defendant argues that Juror No. 11 committed
misconduct by failing to disclose his arrest, failing to disclose
that his son is autistic, and by discussing the case with his
coworkers. Regarding the arrest and the son, defendant asserts,
as he did below, that Juror No. 11’s admissions conflicted with
his questionnaire responses to question 49, which asked
whether he or any relative had “sought the assistance of a
psychologist, psychiatrist, sociologist . . . or other mental health
professional,” and to question 47, which asked whether he had
“ever been arrested, accused, or convicted of a crime, or, to your
knowledge been a suspect in a crime or crimes.”
      Juror No. 11 told his fellow jurors that his son’s autism
was “borderline”; there was no indication the son ever received
professional treatment. Thus, defendant has not presented
evidence showing that Juror No. 11 was inaccurate in his
answer to question 49. As for his arrest, his statement during
deliberations is technically inconsistent with a “no” answer to
question 47, but the arrest was minor (relating to a
misdemeanor that was never charged) and he may have simply
forgotten about it when answering the question. In all events,
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there is no indication that Juror No. 11 intentionally concealed
the arrest, or that the arrest, which bore no relation to the facts
of this case, biased him against defendant. We thus conclude
that the court did not err in its determination that no
misconduct occurred.
      As for the assertion that Juror No. 11 discussed this case
with his coworkers, it is unfortunate, but not surprising — given
that the trial was widely covered in the news — that the
coworkers let their views be known. But there is no indication
that Juror No. 11 discussed the case with his coworkers or
otherwise violated the court’s admonition regarding speaking
about the case with others. On the contrary, Klopper’s
declaration suggests that Juror No. 11 tried to avoid hearing his
coworkers’ views by calling in sick. Thus, there is no evidence
that Juror No. 11 committed misconduct. Moreover, there is no
indication that he was biased by the comments of his coworkers
or that the comments led him to decide the case based on
anything other than the evidence presented in the courtroom
and the court’s instructions on the law. We therefore conclude
the court did not err in determining no misconduct occurred.
         6. Juror comments about the possibility that
            defendant might be released
      Defendant draws our attention to comments some jurors
allegedly made during deliberations concerning whether
defendant might eventually be released from prison. Defendant
argues these comments establish juror misconduct.          In
addressing this claim, we first note that Juror No. 3’s
declaration, which is the basis of defendant’s claim of error,
offers no detail about the comments, and no other declaration
mentions the comments. In Mendoza, we addressed similar
juror comments and said: “[T]he challenged discussion on the
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                Opinion of the Court by Guerrero, C. J.


possibility of release on parole is similar to jurors’ comments
during the penalty phase deliberations about the absence of
executions in California.      Such comments are not jury
misconduct.” (People v. Mendoza (2000) 24 Cal.4th 130, 195,
italics added; see also People v. Yeoman (2003) 31 Cal.4th 93,
163 [“We have recognized that jurors cannot always be
effectively precluded from discussing such topics of general
awareness and concern as the possibility of parole [citation],
escape [citation], and the infrequent nature of executions”].)
Absent any submission that provides further detail concerning
the comments at issue here, we find that the court did not err in
rejecting defendant’s juror misconduct claim. Likewise, none of
the juror misconduct claims establishes a violation of his state
or federal constitutional rights.
         7. Failure to hold an evidentiary hearing on the
            alleged juror misconduct
       Defense counsel requested an evidentiary hearing on all of
the allegations of juror misconduct, but the court denied the
request, stating, “[B]ased upon the totality of the facts in this
case, . . . there is no possibility that a hearing would reveal any
type of prejudicial misconduct.” And the court only made this
determination after it concluded and explained in great detail
why it found that no juror committed misconduct. Nevertheless,
defendant contends the court erred by denying his juror
misconduct claim without first holding an evidentiary hearing.
We reject this contention.
       An evidentiary hearing on the issue of juror misconduct
“ ‘ “should be held only when the defense has come forward with
evidence demonstrating a strong possibility that prejudicial
misconduct has occurred. . . .” ’ [Citation.] The trial court’s
decision whether to conduct an evidentiary hearing . . . will be
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reversed only if the defendant can demonstrate an abuse of
discretion.”   (Dykes, supra, 46 Cal.4th at pp. 809–810,
fn. omitted.)
     There was no abuse of discretion here, and no violation of
defendant’s state or federal constitutional rights.        The
circumstances before the trial court, as described above, did not
give rise to a strong possibility of prejudicial misconduct. The
trial court reasonably concluded that any failure by jurors to
disclose previous molestation owed to ambiguity in the relevant
questions within the questionnaire, not to deception on their
part, and that the facts were not sufficiently suggestive of
misconduct as to call for an evidentiary hearing. Nor do we
perceive error in the trial court’s failure to order an evidentiary
hearing to probe the allegations involving Juror No. 11, none of
which demonstrated a strong possibility of prejudicial
misconduct.
      Moreover, when pressed by the court, defense counsel did
not assert any specific examples of other juror misconduct that
would have been shown at an evidentiary hearing. It is true
that counsel argued that an evidentiary hearing would allow
further inquiry into matters raised in the declarations, but the
same clarifications of the matters raised in the declarations
could have been pursued by defendant’s investigator. This was
not done. The court was not required to summon the jurors for
a hearing so that defense counsel could probe the details of their
deliberations, searching for misconduct the defense investigator
failed to uncover.
      The concurring and dissenting opinion, however, believes
the trial court should have further investigated the allegations
that at least two seated jurors failed to disclose their prior

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molestation. (Conc. & dis. opn. of Evans, J., post, at p. 7.) The
concurring and dissenting opinion emphasizes that question 45
asked not only whether the prospective juror or anyone they
knew had “been a witness to or victim of a crime,” but also, if the
answer to that question was yes, whether they were interviewed
by the police. The concurring and dissenting opinion then posits
that this follow-up question should have made clear to jurors
that the questionnaire was “contemplating scenarios in which
the prospective juror was the victim of a crime yet may not have
reported it and no arrest or prosecution resulted.” (Conc. & dis.
opn. of Evans, J., post, at p. 9.) The concurring and dissenting
opinion’s analysis rests on a faulty premise. Contrary to the
concurring and dissenting opinion’s position, the reference to
police interviews could serve to reinforce the belief that
question 45 (and question 46) was not related to unwanted
touching that had never resulted in any type of police
involvement or arrest.40 Thus, instead of clarifying the call of
questions 45 and 46, the reference to police involvement only
further added to the questions’ ambiguity.
      Similarly, the concurring and dissenting opinion relies on
the fact that 12 prospective jurors “disclosed in their
questionnaires the molestation they had suffered, despite the
fact that seven of them had never reported the crimes to the
police.” (Conc. & dis. opn. of Evans, J., post, at p. 9.) Yet the
fact that some prospective jurors apparently construed
questions 45 and 46 as concerned with unreported molestation
does not render the questions unambiguous as they pertain to
this conduct. The very nature of an ambiguous question is that


40
     The same is true of another inquiry within question 45,
which asked whether the prospective juror had testified in court.

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it could be reasonably interpreted in different ways. That some
prospective jurors answered questions 45 and 46 by identifying
incidents in which they were molested does not establish that
every juror understood those questions similarly and
intentionally provided a false answer by failing to disclose prior
molestation. On the contrary, as we have explained, the trial
court reasonably determined that the framing of the questions
was sufficiently ambiguous that a prospective juror could have
regarded the questions as unconcerned with uncharged conduct.
     For these reasons, we conclude the trial court did not
abuse its discretion by declining defendant’s request to hold an
evidentiary hearing.
      I. Judicial Bias
     Defendant asserts that judicial bias infected all three
phases of his trial, in violation of his due process rights. Because
only one of the alleged instances of judicial bias was raised
below, most of defendant’s bias claims have been forfeited. (See
McWhorter, supra, 47 Cal.4th at p. 373; Snow, supra, 30 Cal.4th
at p. 78.)41    In any event, having examined defendant’s
contentions, we conclude they lack merit.              Defendant’s
allegations fall into two categories:        (1) assertedly unfair
application of the rules of evidence; and (2) allegedly demeaning
or derogatory comments made by the court.
         1. Unfair application of the rules of evidence
     Defendant claims “the trial court . . . applied state
evidentiary rules in a manner which prevented [him] from fully


41
     As we discuss below, the defense moved for a mistrial
based on one of the instances of alleged judicial bias. That
motion was denied.

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presenting his case at each phase of the trial.” He raises three
arguments in this respect. First, defendant argues that the
court sustained the prosecutor’s many hearsay objections to the
testimony of defense witness Dr. McInnes. By contrast, the
court overruled defense counsel’s hearsay objections to the
testimony of prosecution witnesses Dr. Waxman and Dr. Dietz.
Second, defendant notes the court admitted into evidence four
letters defendant wrote from jail to a woman in Illinois,
describing fantasies involving sexual sadism, mob rape, and the
rape of virgin princesses. Defendant complains that the court
excluded numerous other letters he wrote to the same woman,
despite the letters being offered as context evidence under
Evidence Code section 356.42 Finally, defendant contends that
the court unfairly denied his request, during the guilt phase, to
permit Dr. Wu to be present in the courtroom during the
testimony of Dr. Gur, and to permit Dr. Buchsbaum to be
present during the testimony of Dr. Wu. By contrast, defendant
argues, the court denied a defense motion to exclude witnesses
at the penalty phase, thus allowing the victim impact witnesses
to be together in the courtroom, hearing one another’s
testimony.



42
      Evidence Code section 356 allows a party to offer evidence
regarding the context of certain types of evidence offered by an
adverse party. It provides: “Where part of an act, declaration,
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 detached act, declaration, conversation, or writing is given in
evidence, any other act, declaration, conversation, or writing
which is necessary to make it understood may also be given in
evidence.”

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       We disagree with defendant that the above rulings are
sufficient to establish judicial bias. “[A] trial court’s numerous
rulings against a party — even when erroneous — do not
establish a charge of judicial bias, especially when they are
subject to review.” (Guerra, supra, 37 Cal.4th at p. 1112; see
People v. Pearson (2013) 56 Cal.4th 393, 447 [same].) Here,
defendant does not claim that any of these rulings were, in
themselves, erroneous. Moreover, while defendant identifies
several evidentiary rulings that favored the prosecution, he does
not account for the numerous evidentiary rulings that were
favorable to the defense. (See Pearson, at p. 447 [“the fact that
on appeal we discuss only rulings against defendant does not
mean the court’s rulings were other than evenhanded”].) We
conclude that defendant has failed to show that the court’s
rulings were so biased against him that they “deprived [him] of
‘ “a fair, as opposed to a perfect, trial.” ’ ” (Guerra, at p. 1112.)43



43
      Defendant also claims the court engaged in misconduct by
permitting its “law clerk” to assist the prosecutor in preparing
the jury instructions. The sole support for this assertion is the
prosecutor’s comment that he added certain language to the
standard CALJIC instruction “over the lunch hour, with your
clerk’s help.” The day before, when speaking about the
preparation of the jury instructions, the court offered the
administrative assistance of the “clerk of the court,” stating,
“somebody has to work together to pattern these instructions for
the court. If you want the assistance of the clerk of the court to
call upon our staff downtown to get some of these through our
computer, we can maybe accommodate you.” Thus, the “clerk”
likely refers to the staff of the “clerk of the court,” whose
assistance appears to have been purely administrative in
nature, using the cut-and-paste functions of a word processing
program to add certain language to the text of the CALJIC
instruction.

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      Defendant relies on Washington v. Texas (1967) 388 U.S.
14, Chambers, supra, 410 U.S. 284, and Rock, supra, 483 U.S.
44 to support his claim that the trial court’s evidentiary rulings
violated his federal due process rights. But in those cases, the
high court addressed the application of state evidentiary rules
that, on their face, treated criminal defendants unfairly. (See
Washington v. Texas, at pp. 16–17 [“Two Texas statutes
provided at the time of the trial in this case that persons charged
or convicted as coparticipants in the same crime could not testify
for one another, although there was no bar to their testifying for
the State” (fn. omitted)]; Chambers, at pp. 295, 296 [“In this
case, petitioner’s request to cross-examine [a witness] was
denied on the basis of a Mississippi common-law rule that a
party may not impeach his own witness.” “But in modern
criminal trials, defendants are rarely able to select their
witnesses: they must take them where they find them”]; Rock,
at p. 53 [“The question now before the Court is whether a
criminal defendant’s right to testify may be restricted by a state
rule that excludes her posthypnosis testimony”].) Defendant
does not identify the evidentiary rules the court applied that
were facially unfair to criminal defendants. Accordingly, the
high court cases he cites are inapposite. (See, e.g., Lightsey,
supra, 54 Cal.4th at p. 717; McDowell, supra, 54 Cal.4th at
p. 434; People v. Prince (2007) 40 Cal.4th 1179, 1243.)44


44
      Defendant also relies on Webb v. Texas (1972) 409 U.S. 95,
98. Webb is easily distinguished since it involved a trial court
that admonished a defense witness at length. (See ibid. [“the
judge’s threatening remarks, directed only at the single witness
for the defense, effectively drove that witness off the stand, and
thus deprived the petitioner of due process of law under the
Fourteenth Amendment”].) Nothing similar occurred here.

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                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


      In summary, the fact that the court enforced ordinary
rules of evidence and trial procedure — prohibiting the defense
from introducing hearsay evidence and preventing certain
defense witnesses from hearing the testimony of other
witnesses — does not demonstrate judicial bias. Nor has
defendant demonstrated that the application of these ordinary
rules of evidence and trial procedure improperly infringed upon
his state or federal constitutional rights.
         2. Demeaning or derogatory comments
      Defendant identifies several instances in which, from his
perspective, the court made demeaning or derogatory comments
directed at defense counsel. These comments must be evaluated
in accordance with the standard we set forth in McWhorter and
Snow (see pt. II.G.3., ante): “ ‘Although the trial court has both
the duty and the discretion to control the conduct of the trial
[citation], the court “commits misconduct if it persistently
makes discourteous and disparaging remarks to defense counsel
so as to discredit the defense or create the impression it is
allying itself with the prosecution” [citation]. Nevertheless, “[i]t
is well within [a trial court’s] discretion to rebuke an attorney,
sometimes harshly, when that attorney asks inappropriate
questions, ignores the court’s instructions, or otherwise engages
in improper or delaying behavior.” [Citation.] Indeed, “[o]ur
role . . . is not to determine whether the trial judge’s conduct left
something to be desired, or even whether some comments would
have been better left unsaid. Rather, we must determine
whether the judge’s behavior was so prejudicial that it denied
[the defendant] a fair, as opposed to a perfect, trial.” ’ ”
(McWhorter, supra, 47 Cal.4th at p. 373; see also Snow, supra,
30 Cal.4th at p. 78.) When read in context, the court’s comments
as discussed more fully below, were in response to counsel’s
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undue persistence in the face of an adverse ruling from the
court.
            a. Dr. Waxman’s testimony
     Dr. Waxman testified for the People at the guilt phase.
During cross-examination, defense counsel asked Dr. Waxman
a question to which counsel wanted a yes or no answer.
Nonetheless, Dr. Waxman explained his answer at some length.
The following colloquy then occurred:
     “[Defense counsel (to Dr. Waxman):] You made that point.
Are you ready now to answer the question I asked you?
     “[The prosecutor]: I object.
     “The witness: I thought I answered it.
      “The Court: That question is not proper. Ask your next
question.
      “[Defense Counsel]: I move to strike his comment about
rocket scientists. It’s nonresponsive. It’s argumentative. It’s
advocacy.
      “The Court:    Your request is denied.              Ask your next
question.
      “[Defense counsel (to Dr. Waxman):] Now, doctor, let me
ask the question again, if I can —
     “The Court: Don’t ask it again. He just answered it. Ask
another question. He just answered your question. There is no
reason to repeat a question. It’s cumulative.”
     The next day, the following colloquy occurred:
     “[Defense counsel (to Dr. Waxman):] And, doctor, let me
ask you this: Is the main thrust of that statement, ‘uses an old



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                         PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


scanner,’ to indicate that the resolution on his scanner is not as
good as the state-of-the-art PET scanners?
       “A. We went over that very carefully yesterday. I’ll repeat
it if you’d like. And —
      “Q. Would you just answer the question, sir?
      “The Court: You see the problem is you’ve asked that
question; he answered it. And now you said — Do you want the
answer — do you want it again?
      “[Defense counsel]: Well, he can give me the answer
without a lecture, your honor. It’s nonresponsive. I move to
strike.
      “The Court: Counsel, he’s not giving a lecture. He was
responsive to your question. It was asked and answered
yesterday. The objection is sustained. You don’t want to hear
his answer. You won’t hear it. Ask your next question.
      “[Defense counsel]: Could you answer the question.
     “The Court: No. Ask your next question. That question
is — The objection is sustained.”
      Shortly thereafter, Dr. Waxman clarified his earlier
testimony, and defense counsel asked: “Are you finished,
doctor?” The prosecutor objected, and the court told defense
counsel to ask his next question. Counsel asked again: “Are you
finished?” The court then said: “Well, he’s not saying anything,
counsel. He’s responded to your question. I’m not sure what
you’re getting at. [¶] . . . [¶] . . . If you have another question,
ask it. If not, then sit down.”
      Later,   defense    counsel      told   Dr. Waxman   that   he
(Dr. Waxman) had been “ordered last night to hand over”
certain exhibits. The prosecution objected, and the court noted

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it had not ordered the doctor to do anything. Rather, the
prosecution had indicated it had received certain exhibits and
had offered to make copies for the defense. Defense counsel then
asked Dr. Waxman:          “In any event, you released those
exhibits . . . to the defense last night, correct?” The prosecutor
again objected, saying: “That’s not true either.” The court
agreed, saying: “It’s not. [The prosecutor] last night indicated
how he obtained [the exhibits] . . . and he indicated he would
make copies for you, and I assume he did. And that has nothing
to do with this witness, so ask your next question.”
      Sometime later, the following colloquy occurred
(concerning the use of a diagnostic tool called “statistical
parametric mapping”):
     “[Defense counsel (to Dr. Waxman):] Okay. Now, you
recommend that you — Your preference, or you advocate that
Dr. Wu should have used this S.P.M. program, right?
      “A. Well, I think S.P.M. is the standard. It’s still being
looked upon as experimental with regard to diagnosing an
individual. S.P.M. — and I said this yesterday; I will repeat it
if you’d like. Is best for —
     “Q. I wouldn’t, but if you feel you have to, go ahead.
     “The Court: Well, you asked for —
     “[Defense counsel]:      I know what S.P.M. is, but that’s
wasting time. He’s already explained that.
     “The Court: No. I can tell you what’s wasting time. Go
ahead and answer the question.”
     Later, Dr. Waxman answered defense counsel’s questions
about whether he would change his opinion if he knew that
Dr. Wu’s methodology “had been rigorously peer-reviewed.”

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                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


When Dr. Waxman finished his answer, defense counsel asked:
“Is there any other hearsay you’d like to add to your — ” At that
point, the court interrupted, saying: “Oh, no, no, no. That
wasn’t proper, [counsel].”
     Near the conclusion of Dr. Waxman’s cross-examination,
the following colloquy occurred:
     “[Defense counsel (to Dr. Waxman):] You mentioned this
morning that in terms of peer review, if Dr. Wood came in here
and said he had peer reviewed Dr. Wu’s method, that you would
want some Ph.D. sitting in the room, right?
     “[The prosecutor]: I’m going to object. That’s been asked
and answered many times.
     “[Defense counsel]: It’s limited to the next question.
      “The Court: It has been asked and answered. Ask your
question. Sustained.
      “[Defense counsel (to Dr. Waxman):] Would it be your
preference that that person be Dr. O’Brien, someone of your
choosing, or could it be anybody?
     “[The prosecutor]: I’m going to object. He’s asked and
answered this several times.
     “The Court: Sustained.
      “[Defense counsel (to Dr. Waxman):] Now, doctor, you
mentioned in your direct testimony, . . . in reference to Dr. Wu
using what’s called activation; do you recall?[45]



45
     As discussed, the “activation” method used by Dr. Wu and
Dr. Buchsbaum involved the brain being in an active state when
administering a PET scan.

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                Opinion of the Court by Guerrero, C. J.


      “A. I don’t recall the exact words, but I know we did
discuss activation at least three or four times.
      “Q. And you were asked the question: [¶] ‘Do you activate
your patients?’ [¶] And you said: [¶] ‘We don’t activate our
patients.’
     “[The prosecutor]:     I’m going to object.          His testimony
speaks for itself.
       “[Defense counsel]: It’s, again, preliminary to a question
I’d like to ask.
      “The Court:    Just ask the question.          The objection is
sustained.
      “[Defense counsel (to Dr. Waxman):] And do you recall
that after you testified that you don’t activate your patients,
that you immediately thereafter went on to describe a case
where in fact you had activated a patient?
     “[The prosecutor]:     I’m going to object.          His testimony
speaks for itself.
      “The Court: It does. The phraseology of the question tends
to be somewhat argumentative. But again, his testimony does
speak for itself. We have his testimony. The jury has heard it.
Ask your next question.”
     Defense counsel then brought a motion for a mistrial,
which the court deferred until the recess. Defense counsel
resumed his examination and, a short time later, he asked
Dr. Waxman why he had said, in response to a question, that he
was being careful about his phrasing. Dr. Waxman answered:
“One is, is that worst of all, I don’t want to incur your ire.”
      During the recess, outside the presence of the jury, counsel
explained the basis for his motion for mistrial: “The motion for

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                        PEOPLE v. STAYNER
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mistrial is premised on the court’s response to the interchange
with myself and Dr. Waxman, . . . in the sense that the court is
making derogatory comments, in my view, and raising its voice
and generally, I believe, conveying to the jury that the court has
some displeasure with the cross-examination. And, specifically,
this morning the court stated that — in an interchange between
the doctor and myself, when I indicated that allowing the doctor
to ramble on was going to waste time — and the court
interjected with a comment that: I’ll tell you what’s wasting
time. And I can tell the court, from the reaction from the
members of my staff and others in the audience, that the clear
impression conveyed by a comment such as that is that the court
is somehow commenting on the credibility of the cross-
examination and with the interchange between yourself and
myself during the examination of this witness has become
heated.”
     The court denied the motion, stating:                “With all due
respect, I’m not going to respond, except to say it’s totally
lacking of merit. My comments speak for themselves. [¶] . . . [¶]
I can say that you were becoming a little combative with the
witness. I think that caused the witness to say on one occasion
he didn’t want to incur your ire because of the manner in which
you were cross-examining him. That was said in the presence
of the jury by the witness based upon what I perceive to be, I
assume, your combative conduct. [¶] But as far as my
comments, they speak for themselves. They are on the record.
Your motion is totally frivolous. It lacks merit. The motion is
denied.”
     Defendant contends that the court’s treatment of defense
counsel was “disparaging,” evidencing judicial bias. The record
shows, however, that defense counsel engaged in further
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                Opinion of the Court by Guerrero, C. J.


colloquy with the court regarding the court’s explicit rulings,
made flippant remarks during his examination of Dr. Waxman,
and occasionally lost his temper. Counsel’s questions included,
“You made that point. Are you ready now to answer the
question I asked you?” “Are you finished, doctor?” and “Is there
any other hearsay you’d like to add . . . .” In fact, Dr. Waxman
commented that he wished to avoid defense counsel’s ire. The
court responded to these incidents in a restrained, albeit firm,
manner. It is true that several of the court’s statements
evidenced some frustration with defense counsel. However,
having considered the court’s comments, in the context of
defense counsel’s examination — including the repetitious
nature of questions previously asked and answered — we
conclude that the court’s comments did not rise to the level of
judicial bias.
      Defense counsel also asserted in his motion that the court
“rais[ed] its voice” and conveyed “displeasure” during the
exchanges, and defendant makes the same point on appeal. “It
can be difficult to ascertain the emotional content of such
exchanges from a cold record. However, to the extent the court’s
comments to [defense counsel] were a reflection of frustration
and irritation at counsel’s repeated [refusal to follow the court’s
rulings], they were not improper. ‘[S]uch manifestations of
friction between court and counsel, while not desirable, are
virtually inevitable in a long trial.’ ”      (Blacksher, supra,
52 Cal.4th at p. 825; see also Snow, supra, 30 Cal.4th at p. 79.)
      We conclude the court did not exhibit judicial bias in any
of the rulings and comments the court made during the cross-
examination of Dr. Waxman. (See Snow, supra, 30 Cal.4th at
p. 78.)


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                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


            b. Dr. Lynn Alison McInnes’s testimony
     Dr. McInnes testified for the defense at the sanity phase.
During redirect examination of Dr. McInnes, she said she had
read and considered defense expert Dr. Woods’s report in
forming her opinion.46 Defense counsel then asked whether
Dr. McInnes based her opinion that defendant was psychotic at
the time of his crimes on the report of Dr. Woods, but the court
sustained a hearsay objection. Defense counsel next asked
whether Dr. McInnes knew Dr. Woods “to be an experienced
forensic psychiatrist?” The prosecutor again objected, arguing
that the answer was irrelevant “unless [Dr.] Woods is going to
testify.” The court again sustained the prosecutor’s objection.
Defense counsel then said:        “As [the prosecutor] knows,
Dr. Woods can’t testify.” The court responded: “What’s the
point of making a comment like that, [counsel]? If you have a
question, [counsel], ask a question of the witness. If you finish
asking questions, you can sit down. But don’t make comments
in front of the jury.”
      The court’s admonition (“What’s the point of making a
comment like that, [counsel]?”) does not, contrary to defendant’s
claim, demonstrate judicial bias.            Rather, the court
appropriately criticized counsel for implying that the prosecutor
was somehow trying to obtain an unfair advantage. (See Snow,
supra, 30 Cal.4th at p. 78 [“ ‘[i]t is well within [a trial court’s]
discretion to rebuke an attorney, sometimes harshly, when that
attorney asks inappropriate questions, ignores the court’s




46
     As discussed, Dr. Woods did not testify because of a family
emergency.

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                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


instructions, or otherwise engages in improper or delaying
behavior’ ”].)
            c. Sandra A.’s testimony
      Sandra A. testified for the defense at the penalty phase.
During direct examination, defense counsel asked Sandra A. if
she knew defendant’s maternal grandfather, and he also asked
Sandra A. to describe him.     The following colloquy then
occurred:
      “[The prosecutor]: Objection, relevance.
      “[Defense counsel]: Well, I’ll —
      “[The prosecutor]: It’s cumulative at this point in time.
      “[Defense counsel]: If there’s a stipulation as to the nature
of [defendant’s] father — [47]
      “[The prosecutor]: Your honor, it’s improper to ask for
stipulations.
      “The Court: There’s no — There’s no stipulation, and it’s
not proper to make an offer of a stipulation in the presence of
the jury. If you have one, that’s fine. You can recite it, but don’t
make the offer in the presence of the jury. Now, there is an
objection that it’s not relevant.
      “[The prosecutor]: And cumulative.
    “The Court:     And I’m inclined to agree that it is
cumulative, and it’s not relevant.  We’ve had extensive
testimony about the family, the makeup, the family tree, the —




47
      It appears that defense counsel misspoke. Counsel seems
to have been referring to defendant’s maternal grandfather.

                                  254
                        PEOPLE v. STAYNER
                Opinion of the Court by Guerrero, C. J.


Et cetera, et cetera. So, there comes a point where it simply is
cumulative testimony as opposed to new testimony.”
     Defendant asserts that the court’s rebuke of defense
counsel (“it’s not proper to make an offer of a stipulation in the
presence of the jury”) constitutes judicial bias. We conclude the
court was justified in admonishing counsel regarding his
improper request, in front of the jury, for a stipulation by the
prosecution. (See Snow, supra, 30 Cal.4th at p. 78.)
            d. Wendy R.
      Wendy R., defendant’s grade school classmate, testified
for the defense at the penalty phase that defendant was never
aggressive or obnoxious. The following colloquy occurred during
her direct examination:
     “[Defense counsel (to Wendy R.):] Okay. Now, you at some
point have learned of the charges for which [defendant] has been
convicted?
     “A. Yes.
     “Q. And based on your knowledge of those charges, . . .
would it be consistent or inconsistent with the person that you
knew for [defendant] to have committed those offenses?
     “[The prosecutor]: Objection, it’s irrelevant.
     “The Court: Sustained.
     “[Defense counsel (to Wendy R.):] Do you have an opinion
as to whether or not [defendant], based on your knowledge of
him, is the type of person to engage in aggressive acts against
women?
     “[The prosecutor]: Same objection.



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      “The Court: Same ruling. She can testify as to her
impressions of the defendant during that time frame where she
had contact with him, from first grade through high school. But
as to her opinion now, the jury’s already found him guilty of
these offenses, so her opinion now as to whether he would do or
not do something is irrelevant.
      “[Defense counsel]: Her opinion as to — Any opinion as
to character evidence?
     “The Court: I didn’t say that, counsel. My comments
speak for themselves. My comments speak for themselves.
You’ve heard them; they’re on the record. Ask your next
question.”
      Defendant asserts that the court’s comment (“I didn’t say
that, counsel”) demonstrates judicial bias. We disagree. The
court’s comment was a corrective one, made in response to
counsel’s apparent unwillingness to accept the court’s earlier
ruling limiting Wendy R.’s testimony. (See Snow, supra,
30 Cal.4th at p. 78.) The trial court did not err.
           e. Wendy H.’s testimony
      Wendy H. testified for the defense at the penalty phase.
Wendy H. stated that she and defendant were friends and that
their friendship included using a hot tub at Cedar Lodge nude.
Defense counsel asked whether Wendy H. flirted with
defendant, and the trial court sustained a relevance objection.
Defense counsel asked: “Did you encourage [defendant] to be
interested in you in any way, without telling us what you did?”
The prosecutor again objected on relevance grounds, and
counsel stated: “It goes to aggressiveness towards women.” The
court responded: “Well, apparently if [any]body is being
aggressive, it’s the witness as opposed to the defendant,

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[according to] the way you are framing the question. So, on that
basis, the objection is sustained.” Defense counsel then said:
“Your honor, I think it’s unfair to characterize this witness as
aggressive.” The court responded: “I’m sorry you think it’s
unfair, [counsel]. That’s unfortunate for you. Ask your next
question.” Wendy H. then testified that defendant never
responded to her sexually, and that she was not sexually
aggressive toward him.
      Next, Wendy H. testified that she and defendant talked
about his hair-pulling habit. When defense counsel asked
whether defendant cut his hair short because of this habit, and
whether Wendy H. teased him about his short hair, the court
sustained objections that the evidence was cumulative. Defense
counsel then asked whether Wendy H. had ever seen defendant
pulling hair from his body (not his head), and the prosecutor
again objected. The court responded: “That’s a new one. I
haven’t heard that before. [¶] Go ahead. You may answer that.”
     The court’s rulings and comments do not, contrary to
defendant’s claim, demonstrate judicial bias. The court’s
comment — “I’m sorry you think it’s unfair, [counsel]. That’s
unfortunate for you. Ask your next question” — reflects the
court’s continued frustration with counsel. We acknowledge the
trial court could have been more judicious in its comments,
especially in front of the jury. But we also recognize that the
comment came after defense counsel repeatedly asked whether
Wendy H. tried to get defendant to be interested in her, and
after counsel suggested the court was saying Wendy H. was
aggressive. Under these circumstances, and in the context of
the overall exchanges between the court and counsel, the way
the court expressed its frustration was not ideal, but it fails to
establish judicial bias. (See Snow, supra, 30 Cal.4th at p. 78.)
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      The court’s comment in response to defense counsel’s
question about whether defendant pulled his body hair (“That’s
a new one. I haven’t heard that before”), when viewed in
context, was proper. The court was explaining why it overruled
the prosecution’s objection, i.e., that defense counsel’s questions
about defendant’s habit of pulling his head hair were
cumulative, but his question about pulling body hair was new.
The comment does not indicate judicial bias. (See Snow, supra,
30 Cal.4th at p. 78.)
            f. Howard Davies’s testimony
     Howard Davies, an assistant sheriff assigned to Mariposa
County jail, testified for the defense at the penalty phase.
Defense counsel asked Davies to describe the “Mariposa County
Jail for us in terms of what kind of facility it is, say, in
comparison to a maximum security prison.” The court sustained
a relevance objection by the prosecutor, to which defense counsel
replied: “Well, this goes to the conditions under which he is
housed and the issue of adjustment under — .” The court
responded: “The jail has nothing to do with the character and
background of the defendant. It’s irrelevant. Every jail is
different; every prison is different. Conditions have nothing to
do with the defendant’s background or his character. It’s
irrelevant.” Defense counsel then asked to make an offer of
proof outside the presence of the jury, and the court agreed. Out
of the presence of the jury, counsel argued that the question
related to defendant’s future adjustment to prison, and the court
responded that the conditions at the jail were irrelevant to
defendant’s future adjustment to prison.
      Defendant’s assertion of error focuses on the court’s
statement, “The jail has nothing to do with the character and


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background of the defendant.” We conclude, contrary to
defendant’s claim, that the statement does not demonstrate
judicial bias. Rather, the court merely made the point that every
jail and prison is different, and therefore defendant’s
adjustment to conditions at the jail was not relevant to the
question of his adjustment to the conditions at the prison. (See
Snow, supra, 30 Cal.4th at p. 78.)
            g. Dr. Silva’s testimony
      During cross-examination of Dr. Silva, who testified for
the defense at the penalty phase, the prosecutor asked Dr. Silva
whether defendant “had enough sense at the time he’s doing
these acts to know that society, civilized normal folks, would
say, ‘That’s wrong.’ ” The prosecutor added: “He knew that,
didn’t he?” The following colloquy then occurred:
      “[Defense counsel]: I’m going to object; excuse me. I’m
going to object to these questions. They’re getting into sanity,
and the court prevented me from getting —
     “[The prosecutor]:       Goes to his appreciation of the
criminality of his act.
      “The Court: I’m not sure what you’re talking about where
the court prevented anything.
      “[Defense counsel]: I asked Dr. Silva —
      “The Court: [Counsel], I rule when an objection is made.
We don’t revisit past rulings. If you want to revisit a past ruling
and bring up something where you claimed that you were
precluded from doing something, do it at the sidebar and not in
the presence of the jury. It’s not appropriate.”
      Defendant argues these comments establish judicial bias.
Here again, we disagree. Counsel’s comments, made before the

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jury, implied that the court’s ruling was inconsistent with a
prior ruling, thus calling into question the validity of the prior
ruling and the court’s impartiality. The court therefore briefly
rebuked counsel. Doing so does not demonstrate judicial bias.
(See Snow, supra, 30 Cal.4th at p. 78.)
            h. Cy.S.’s testimony
      Defendant’s oldest sister Cy.S. testified for the defense at
the penalty phase. The court ruled at a sidebar conference that
she could testify about her love for defendant and his character,
but further evidence about family dynamics would be excluded
under Evidence Code section 352.
      Defense counsel asked Cy.S. about Steven’s return to the
family after his abduction, and the court sustained objections on
the ground that the elicited evidence was irrelevant or
cumulative. Counsel then asked whether Cy.S. recalled seeing
an ambulance outside her uncle’s home. The court sustained an
objection, stating the testimony was cumulative. The court then
added, “And, [counsel], if you want to continue along that line,
contrary to the court’s ruling, which I thought was fairly clear,
we will stop the examination of the witness. [¶] You certainly
can use the witness in the fashion I’ve described, which is —
which was the reason as to why I thought she was called. . . .
But you can’t continually ask questions which are violative of
the court order, which I thought was fairly clear.” Counsel
continued to ask about the family dynamics, and the court
sustained another objection and reiterated its ruling.
      Defendant asserts that the court’s rebuke of defense
counsel demonstrates judicial bias. We disagree. The record
reflects that counsel ignored the court’s clear ruling limiting the
testimony of this witness in the manner described above. As

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such, the court attempted to express its ruling in more forceful
terms which, in turn, reflects a degree of frustration. Even after
the court did so, counsel continued to ignore the court’s ruling
and push the same prohibited line of questioning. The court’s
rebuke was understandable in light of counsel’s unwillingness
to accept the court’s ruling and did not rise to the level of judicial
bias. (See Snow, supra, 30 Cal.4th at p. 78.)
         3. Defendant’s supplemental opening brief
     Defendant filed a supplemental opening brief in which he
claimed that new authority (Nieves, supra, 11 Cal.5th 404)
supports his claim of judicial bias. To this end, defendant argues
Nieves (1) established that a pattern of disparaging a defense
counsel and conveying favoritism toward the prosecutor
constitutes misconduct and (2) directs appellate courts to
consider the cumulative effect of a trial court’s misconduct.
Defendant’s supplemental opening brief groups what he
describes as instances of judicial bias and misconduct in this
case into four categories: (1) misconduct discrediting and
minimizing the defense mitigation case; (2) comments
demeaning defense counsel; (3) misconduct demonstrating the
court’s bias in favor of the prosecution and against the defense;
and (4) bias exhibited by the trial court’s legal errors and
misstatements of the record when denying defense arguments.
Although defendant reiterates some of the same allegations he
presented in his original brief on the merits, he also offers a few
new instances that, he asserts, likewise evince judicial bias.
     As a threshold matter, we agree with the Attorney
General that defendant’s reliance on Nieves as new law is
misplaced. Indeed, the two points on which defendant claims
Nieves established new law (that a pattern of disparaging a


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defense counsel and conveying favoritism toward the prosecutor
constitutes misconduct and that appellate courts should
consider the cumulative effect of a trial court’s misconduct) are
not new. We made these same points more than 10 years before
defendant filed his original opening brief. (See People v. Sturm
(2006) 37 Cal.4th 1218, 1238, 1243; see also Nieves, supra,
11 Cal.5th at pp. 478–479, 499 [citing Sturm].) Moreover, as the
Attorney General points out, in Nieves, this court merely applied
well-settled principles of judicial misconduct and concluded on
the facts before us that the trial judge “made inappropriately
disparaging and sarcastic remarks to defense counsel,
impugning his performance, chastising him for improper
behavior, and sanctioning and citing him for contempt in front
of the jury.” (Nieves, at p. 477.) At most Nieves, and Sturm,
another case involving judicial misconduct on which defendant
relies, offer examples of instances in which we concluded that
judicial bias or misconduct existed on the specific records before
us and was prejudicial, at least at the penalty phase. To the
extent that defendant is offering “new” allegations of judicial
bias that he did not raise in his original opening briefs on the
merits, we find defendant’s argument based on those allegations
forfeited. (See Tully, supra, 54 Cal.4th at p. 1075; cf. Cal. Rules
of Court, rule 8.520(d)(1) [“A party may file a supplemental brief
limited to new authorities, new legislation, or other matters that
were not available in time to be included in the party’s brief on
the merits”].)
      Even if we were to address these new arguments on the
merits, they would fail. All of defendant’s claims of judicial bias
are similar to instances that we considered above and concluded
did not constitute judicial bias.


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      For example, defendant claims the trial court exhibited
bias during cross-examination of the arson expert. After the
arson expert opined that the vehicle fire was intentionally set,
defense counsel asked whether he had any expertise in
determining someone’s mental state. The court sustained an
objection, stating: “He is an arson investigator. He is not a
psychiatrist, not a psychologist, not a medical doctor. He is an
arson investigator. His opinion was this fire was intentionally
started.” Defense counsel responded, “That’s the point, your
honor. Since he is none of those things, his opinion lacks merit.”
The court responded, “We have gone over this ground numerous
times. We went over it initially yesterday. We have done it
again today. It’s consistent with my rulings. The way you are
posturing this and asking questions is irrelevant. He can give
an opinion as to the origin of the fire and you can cross-examine
him at length about [it].” Defense counsel continued to question
the witness about whether he had expertise in determining an
individual’s mental state. The prosecution objected, and the
court explained, “The way you are framing the question, you are
framing the questions in the context of his giving an opinion as
to a specific person. He is not doing that. He is giving an opinion
based upon an evaluation of the situs, the fire, the vehicle in
question; that this fire was not accidental; this fire was set
intentionally. And please limit your cross-examination to that
area.”
      Defense counsel asked three more questions, and the court
sustained relevance objections to each of them. At that point,
the court stated: “I have discretion to curtail the scope of the
cross-examination if you persist in asking questions which are
repetitive and irrelevant.” Defense counsel asked another
question, to which the court sustained the objection and stated,

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“I am going to curtail the examination if this continues.”
Defense counsel requested a sidebar conference, which the court
denied, stating, “No. I think my position is clear as to the scope
of the examination, and sidebar couldn’t serve any purpose.”
Defense counsel then moved on to a different subject.
      Later during the cross-examination, the arson expert
affirmed that he had co-authored an article about the
“psychiatric aspects of arsonists.” Defense counsel started to
ask about the content of the article, and the following colloquy
occurred:
     “[The prosecutor]: I am going to object to any further
examination. I think we have been pretty lenient here.
      “[Defense counsel]: That’s outrageous, that statement.
The court has not allowed any cross-examination of this witness,
and I ask the court to instruct counsel not to give his opinions
about what the court — whether the court is being lenient or
not.
      “The Court: Can I instruct counsels, every counsel, that
we are not going to put up with what’s just happened. We are
not going to get personal. We are not going to react the way you
reacted. It’s not proper, it’s not professional, and it’s below your
dignity.
      “Now, I am going to rule when there is an objection. I don’t
want colloquy back and forth. I don’t want comment on what
the court has done or not done. If there is an objection, I will
rule on it. That question, there was an objection to it. It’s
sustained.
      “Ask your next question.
      “[Defense counsel]: Thank you very much, your Honor.”

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                 Opinion of the Court by Guerrero, C. J.


      Defendant asserts that the court’s rulings on the
objections were examples of judicial misconduct. However, none
of the court’s statements was disparaging or sarcastic, and its
warning that it would stop defense counsel’s cross-examination
was reasonable considering defense counsel’s repeated attempts
to elicit irrelevant evidence. Notably, defendant does not argue
that the court’s rulings on the numerous objections were
erroneous.
      Also, as defendant recognizes in his supplemental opening
brief, during the final colloquy, the court “reprimanded both
counsel for getting personal.” We view this exchange as a
reflection of the “ ‘ “friction” ’ ” between the court and both
counsel that is “ ‘ “virtually inevitable in a long trial.” ’ ” (Nieves,
supra, 11 Cal.5th at p. 482.) Therefore, the court’s response to
the conflict between the prosecutor and defense counsel
evidenced its commitment to “the high standards of fairness”
demanded of trial courts. (Id. at p. 477; accord, People v.
Ramirez (2022) 13 Cal.5th 997, 1083 [“A complete review of this
record shows that the court’s intervention was directed at both
counsel   and    appropriately     focused    on    maintaining
professionalism and courtesy”].) In short, the interaction
between the defense counsel and the trial court during the cross-
examination of the arson expert does not establish judicial basis.
      For all these reasons, we conclude defendant has not
established judicial bias. Similarly, he has not shown that the
court violated his state or federal constitutional rights.
      J. Constitutionality of California’s Death Penalty
         Law
     Defendant acknowledges that we have previously rejected
his federal constitutional challenges to California’s death

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               Opinion of the Court by Guerrero, C. J.


penalty law, and he presents his challenges to urge
reconsideration of our decisions and to preserve the issues for
federal review. (See People v. Schmeck (2005) 37 Cal.4th 240,
303–304.) We decline to depart from our settled precedents.
     “Because the jury’s penalty choice is a normative decision,
not a factual one (People v. Beck and Cruz (2019) 8 Cal.5th 548,
670), California’s death penalty scheme does not violate the
federal Constitution for failing to require written findings
(People v. Camacho (2022) 14 Cal.5th 77, 150 (Camacho)) or
unanimous findings as to the existence of aggravating factors,
prior convictions, or unadjudicated criminal activity (People v.
Tran (2022) 13 Cal.5th 1169, 1235 (Tran); People v. McDaniel
(2021) 12 Cal.5th 97, 142–145, 156 (McDaniel)). Nor is the
scheme deficient because it does not require findings be made
beyond a reasonable doubt as to the existence of aggravating
factors (other than § 190.3, factor (b) or (c) evidence), that
aggravating factors outweigh mitigating factors, or that death
is the appropriate penalty ([Thomas, supra,] 14 Cal.5th [at
p.] 408; Mataele, supra, 13 Cal.5th at p. 435). The high court’s
decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, Ring v.
Arizona (2002) 536 U.S. 584, and Hurst v. Florida (2016)
577 U.S. 92 do not alter these conclusions. (Thomas, at p. 408;
[Ng, supra,] 13 Cal.5th [at p.] 572.)
     “The class of death-eligible offenders is not impermissibly
broad, and special circumstances are not so numerous or
expansive as to defeat their constitutionally required narrowing
function. (People v. Parker[, supra,] 13 Cal.5th [at pp.] 89–90;
People v. Pineda (2022) 13 Cal.5th 186, 257 (Pineda).) [¶]
Section 190.3, factor (a), which permits aggravation based on
the circumstances of the crime, does not result in arbitrary and
capricious imposition of the death penalty. (Mataele, supra,
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                 Opinion of the Court by Guerrero, C. J.


13 Cal.5th at pp. 434–435; Pineda, supra, 13 Cal.5th at
p. 257.) . . . The trial court is not constitutionally required to
instruct on whether a sentencing factor, including consideration
of the defendant’s age under section 190.3, factor (i), is
aggravating or mitigating. (Camacho, supra, 14 Cal.5th at
p. 149; Tran, [supra, 13 Cal.5th] at p. 1235.)
      “The sentencing factors listed in CALJIC No. 8.85 are not
unconstitutionally vague, and the trial court is not required to
delete inapplicable factors. (Mataele, supra, 13 Cal.5th at
p. 435; Pineda, supra, 13 Cal.5th at p. 258.) The instruction’s
use of the words ‘extreme’ and ‘substantial’ does not unduly
constrain the jury’s consideration of mitigating circumstances.
(Parker, supra, 13 Cal.5th at p. 91.)        CALJIC No. 8.88’s
instruction that death may be imposed only if the jury finds
aggravating factors ‘so substantial’ compared to mitigating
factors that death is warranted is not unconstitutionally vague.
(Mataele, at p. 435; Pineda, at pp. 257–258.) The court was not
required to instruct the jury to return a sentence of life
imprisonment without parole if it found mitigation outweighed
aggravation. ([Thomas], supra, 14 Cal.5th at p. 409; Camacho,
supra, 14 Cal.5th at p. 149.)
     “The federal Constitution does not require intercase
proportionality review. (Mataele, supra, 13 Cal.5th at p. 436;
McDaniel, supra, 12 Cal.5th at p. 157.) . . . [And] California’s
capital sentencing scheme does not violate international law or
the Eighth Amendment. (Camacho, supra, 14 Cal.5th at p. 150;
McDaniel, at p. 157.)” (People v. Nadey (2024) 16 Cal.5th 102,
191–192.) “There was also no requirement to instruct the jury
regarding the lack of a burden of proof. [¶] . . . [¶] . . . There is
no presumption in favor of a life term. ([People v.] Wilson
[(2021)] 11 Cal.5th [259,] 317–318; [People v.] Chhoun [(2021)]
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                         PEOPLE v. STAYNER
                 Opinion of the Court by Guerrero, C. J.


11 Cal.5th [1,] 54; People v. Ramirez (2021) 10 Cal.5th 983,
1039 . . . .) [¶] . . . [¶] . . . The death penalty scheme does not
violate equal protection principles ‘by providing significantly
fewer procedural protections for persons facing a death sentence
than are afforded persons charged with noncapital crimes.’ (See
Wilson, supra, 11 Cal.5th at p. 318; Chhoun, supra, 11 Cal.5th
at p. 55; [People v.] Bell [(2019)] 7 Cal.5th [70,] 131.)” (People v.
Bracamontes (2022) 12 Cal.5th 977, 1005–1007.)
      “The federal Constitution [also] does not require an
instruction that life is the presumptive penalty.” (People v.
Chhoun (2021) 11 Cal.5th 1, 54.) And “ ‘[t]he trial court was not
required to instruct the jury that . . . the beyond-a-reasonable-
doubt standard and requirement of jury unanimity do not apply
to mitigating factors.’ ” (People v. Delgado (2017) 2 Cal.5th 544,
591.)
      “Finally, ‘considering the arguments in combination, and
viewing the death penalty law as a whole, it is not
constitutionally defective.        Defendant’s challenges to
California’s death penalty scheme “are no more persuasive when
considered together,” than when considered separately.
[Citation.] “California’s capital sentencing scheme as a whole
provides adequate safeguards against the imposition of
arbitrary or unreliable death judgments.” ’ (People v. Anderson
(2018) 5 Cal.5th 372, 426; see Mataele, supra, 13 Cal.5th at
p. 436.)” (Nadey, supra, 16 Cal.5th at pp. 192–193.)
      K. Cumulative Error
      Defendant asserts the cumulative effect of the trial court’s
errors requires reversal. We have assumed error, but found no
prejudice, regarding: defendant’s claim that he invoked his
Miranda rights before he was transported to Sacramento; the

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                Opinion of the Court by Guerrero, C. J.


impeachment of Dr. McInnes; the trial court’s refusal to allow
the defense to recall Dr. Haney; prosecutorial misconduct
regarding a single portion of the prosecutor’s closing argument;
and the trial’s court’s decision to end the presentation of defense
evidence. We conclude that the cumulative effect of these
assumed errors does not warrant reversal. (Silveria and Travis,
supra, 10 Cal.5th at p. 328.)
                      III. DISPOSITION
      The judgment is affirmed in its entirety.
                                              GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
ADAMS, J.*




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

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                    PEOPLE v. STAYNER
                           S112146


     Concurring and Dissenting Opinion by Justice Evans


      Defendant Cary Anthony Stayner was found to have
committed three murders with five special circumstances after
a fair trial. I therefore concur in the judgment affirming the
jury’s guilt verdicts as well as the jury’s finding that Stayner
was sane at the time he committed these crimes. Unfortunately,
his sentence of death was the product of a penalty phase trial
that was not, under our precedents, fair. I therefore dissent as
to the penalty verdict.
                               I.
     When the prosecution “raises an inference of future
dangerous conduct in prison” as an aggravating factor
supporting a judgment of death, “the defendant is entitled to
respond with evidence that his chances to inflict harm in prison
will be limited.” (People v. Smith (2015) 61 Cal.4th 18, 58
(Smith).) If the trial court instead prevents the defendant from
“informing the jury about security measures imposed on life
prisoners” — thus providing the prosecution with “an unfair
advantage on the critical question of penalty” — the court
“offends the fundamental principles of due process.” (Ibid.)
      That violation of fundamental due process happened in
this case. It relates to the testimony of Dr. Craig Haney, a
psychology professor called by the defense as an expert on
adjustment to prison life. Dr. Haney testified that Stayner had
an “excellent” potential for making a positive adjustment to

                               1
                        PEOPLE v. STAYNER
                  Evans, J., concurring and dissenting


prison life, pointing to his limited criminal history, his deference
to authority figures, his respectful manner, his experience and
adaptability in a structured environment and in confinement,
his work ethic, and his acceptance of responsibility and insight
into his mental problems. The expert believed Stayner could
and would make a positive contribution to the prison system.
      Dr. Haney’s testimony, as the majority concedes, went
“largely unchallenged” by the prosecution (maj. opn., ante, at p.
228), who merely elicited the fact of the expert’s general
opposition to the death penalty and the number of capital
inmates for whom he had previously testified. But then the
prosecutor posed a question designed to trigger a particular
scenario in the jurors’ minds:        Did the Department of
Corrections and Rehabilitation “employ young female staffers
either as guards or counselors?” Dr. Haney replied, “Yes. There
are correctional officers who are women.”
      Outside the presence of the jury, the defense argued that
the prosecutor’s question about Stayner’s contact with female
guards “opened up the conditions of confinement because he
suggested by that question that there is a danger in prison” to
those guards. Accordingly, the defense asked the court for the
opportunity to inquire of Dr. Haney about “the kinds of security
measures that Mr. Stayner would be housed in.” The court
denied the request because it did “not feel the prison conditions
were opened up on cross-examination on that question.”
       This was error. The fact that women work as correctional
officers had relevance at the penalty phase only to the extent
they might be at risk by being in proximity to Stayner, who had
committed violent crimes against four women or girls. Indeed,
future dangerousness was precisely the inference the


                                   2
                        PEOPLE v. STAYNER
                  Evans, J., concurring and dissenting


prosecutor, near the end of his closing argument, asked the jury
to draw: “Beware of any alternative — any insinuation or
argument that you should give him a gift of life without parole
verdict because that all by itself is enough to protect society, and
he won’t be a danger in the future. Sure, they could put on
evidence that he may perform well if he’s in the prison, like this
jail stuff. Or he may classify out as some type of a model
prisoner. But think about this. Knowing what this guy’s all
about, knowing that he will repeat his crime if he gets a chance,
do you 12 people really want to take a chance and mortgage the
futures, mortgage the lives of perhaps women correctional
officers in the joint, just take a chance and give him the gift of
leniency?”
     And here’s where the trial court again erred. Defense
counsel objected, citing Gardner v. Florida (1977) 430 U.S. 349
and Simmons v. South Carolina (1994) 512 U.S. 154 for the
proposition that a defendant is “denied due process of law when
the death sentence was imposed, at least in part, on the basis of
information which he had no opportunity to deny or explain.”
(Gardner, at p. 362; accord, Smith, supra, 61 Cal.4th at pp. 57–
58.) Yet the trial court, having already precluded Stayner from
offering responsive evidence about the security measures to
which he would be subject in prison, overruled the objection.
      In short, Stayner was wrongly prevented at the penalty
phase trial from offering evidence to rebut the inference that he
would pose a danger to female correctional officers, and then he
was wrongly left defenseless when the prosecutor relied on that
inference near the end of his closing argument to urge a verdict
of death. These circumstances, fairly read, should do more than
“raise some concerns.” (Maj. opn., ante, at p. 210.) Under Smith



                                   3
                       PEOPLE v. STAYNER
                 Evans, J., concurring and dissenting


and binding precedent from the United States Supreme Court,
these circumstances constitute a violation of due process.
                                 II.
     Under our precedent, “[t]he error is reversible unless it is
harmless beyond a reasonable doubt.” (Smith, supra, 61 Cal.4th
at p. 60.) The majority opinion deems the error harmless on the
ground the evidence of future dangerousness consisted “of a
single question” and the prosecutor’s argument included “only a
single, brief reference to the danger defendant would pose to
female correctional officers.” (Maj. opn., ante, at pp. 210, 212.)
But the prejudicial effect of the due process violation here turns
not on whether it could be characterized as brief but on whether
there was a reasonable possibility the violation, however brief,
might have been effective in swaying the jury. I fear this one-
sided presentation might’ve been effective.
      What the majority’s abbreviated analysis of prejudice
overlooks is that a defendant’s future dangerousness is one of
the most significant (if not the most significant) of the factors
juries consider in deciding whether to sentence a defendant to
death. (See, e.g., Blume et al., Future Dangerousness in Capital
Cases: Always “At Issue” (2001) 86 Cornell L.Rev. 397, 404
[“future dangerousness plays a highly prominent role in the
jury’s discussions during the penalty phase”]; Garvey,
Aggravation and Mitigation in Capital Cases: What Do Jurors
Think? (1998) 98 Colum. L.Rev. 1538, 1560 [“These results
comport with prior studies that emphasize the pervasive role
future dangerousness plays in and on the minds of capital
sentencing jurors”]; ibid. [“Of white jurors, 61.7% responded
that the fact that the ‘defendant might be a danger to society in
the future’ would make them more likely to impose a death



                                  4
                       PEOPLE v. STAYNER
                 Evans, J., concurring and dissenting


sentence, while only 36.5% said it would make them just as
likely”]; Eisenberg & Wells, Deadly Confusion:        Juror
Instructions in Capital Cases (1993) 79 Cornell L.Rev. 1, 4
[“Expectations about future dangerousness play a substantial
role in juror deliberations”].)
       The prosecutor’s presentation was designed to play on that
fear by inviting the jurors to imagine the risk to “women
correctional officers” if Stayner were sentenced to prison and to
acknowledge the responsibility they would bear if anything
went wrong: “Knowing what this guy’s all about, knowing that
he will repeat his crime if he gets a chance, do you 12 people
really want to take a chance and mortgage the futures, mortgage
the lives of perhaps women correctional officers in the joint, just
take a chance and give him the gift of leniency?” This is not a
scenario that needs elaboration or repetition to be effective. It
vividly calls to mind a potential risk of a life sentence. And it
may well have been a legitimate argument if Stayner had been
afforded his “elemental due process” right to offer evidence in
rebuttal and describe the kinds of security measures that would
constrain him in prison. (Skipper v. South Carolina (1986) 476
U.S. 1, 5, fn. 1.) But that did not happen here. 1 Notably, neither

1
      The majority opinion discounts the effect of the trial
court’s error in barring Stayner from presenting evidence of
prison security measures on the ground that counsel had “some
opportunity” (maj. opn., ante, at pp. 210–211) to ask Dr. Haney
a different question — i.e., whether Stayner’s commitment
offense “would prevent him from coming into contact with young
female correctional officers.” But Dr. Haney did not offer
assurances on that particular point, perhaps because he could
not or because he was unaware of potential options, which only
exacerbated the court’s error in barring testimony about “the



                                  5
                        PEOPLE v. STAYNER
                  Evans, J., concurring and dissenting


the majority opinion nor the Attorney General argues that the
exclusion of this evidence would have had no effect on the jury’s
assessment of his future dangerousness.
      Moreover, there was at least a reasonable possibility that
the   prosecutor’s argument about future dangerousness
overwhelmed what even the majority opinion concedes was
otherwise “largely unchallenged testimony” (maj. opn., ante, at
p. 228) about Stayner’s prospects for a successful adaptation to
prison.   Certainly that was the prosecutor’s intent; his
invocation of the risk to female correctional officers immediately
followed his acknowledgement of the defense “evidence that he
may perform well if he’s in the prison” or may be “some type of
model prisoner.” Had the defense been allowed to rebut the
prosecutor’s claim of future dangerousness, there is at least a
reasonable possibility Dr. Haney’s “largely unchallenged
testimony” — in conjunction with a substantial case in
mitigation consisting of the evidence of Stayner’s mental health
problems, his difficult childhood and experience of molestation,
his good character, and remorse for his crimes — could have
persuaded at least one juror to spare Stayner’s life.
                                 III.
       The effect of the due process violation was exacerbated by
the trial court’s failure to investigate credible allegations that at
least two seated jurors failed to disclose, in response to questions



security measures under which [Stayner] would be housed.”
What’s worse, the trial court likewise did not allow the defense
to call James Park, a former associate warden at San Quentin
State Prison, to “address[] the issue of [Stayner]’s access to
female guards” or even to present an offer of proof of his
testimony.


                                   6
                        PEOPLE v. STAYNER
                  Evans, J., concurring and dissenting


on the jury questionnaire as to whether they had ever been the
“victim of a crime” such as “molestation,” that they had been
molested. During penalty phase deliberations, these jurors
relied on their previously undisclosed experiences to discount
evidence in the mitigation case that Stayner had been molested
as a child.
       Many of these allegations were presented in declarations
by a defense investigator, who recounted statements several
jurors made during interviews. The trial court treated these
declarations as an offer of proof regarding what the jurors would
say if called to testify. In addition, Juror No. 3’s own declaration
stated that Juror No. 7 and Juror No. 10 told the other jurors
that they had been molested as children but had not, as a result,
murdered anyone. The defense asked the court to order an
evidentiary hearing, which would “allow the presentation of
testimony,” “the cross-examination of witnesses,” and “a chance
to evaluate the[ir] credibility.” The court denied the request on
the ground Stayner could not have been prejudiced by any
misconduct: “[I]f there was a substantial showing, to be quite
frank, that it could have been prejudicial, the court would hold
an evidentiary hearing. The court is not holding an evidentiary
hearing for that reason, because the court finds that based upon
the totality of the facts in this case, that there is no possibility
that a hearing would reveal any type of prejudicial misconduct,”
given the “overwhelming proof to support the verdicts of the
jury, and in the court’s view there is no substantial likelihood of
any prejudice that inured to the defendant from the jurors’
activities.”
      The majority opinion wisely does not rely on the trial
court’s erroneous theory that Stayner could not have suffered
prejudice from any juror misconduct because the “proof” at trial

                                   7
                       PEOPLE v. STAYNER
                 Evans, J., concurring and dissenting


was so “overwhelming.” As we have previously explained, the
test for prejudice in the context of juror misconduct “is different
from, and indeed less tolerant than, ‘harmless-error analysis’ for
ordinary error at trial. . . . Any deficiency that undermines the
integrity of a trial — which requires a proceeding at which the
defendant, represented by counsel, may present evidence and
argument before an impartial judge and jury — introduces the
taint of fundamental unfairness and calls for reversal without
consideration of actual prejudice. [Citation.] Such a deficiency
is threatened by jury misconduct. When the misconduct in
question supports a finding that there is a substantial
likelihood that at least one juror was impermissibly influenced
to the defendant’s detriment, we are compelled to conclude that
the integrity of the trial was undermined:         under such
circumstances, we cannot conclude that the jury was impartial.”
(People v. Marshall (1990) 50 Cal.3d 907, 951.)
      The   majority   opinion     nonetheless      goes   astray   by
speculating that “the jurors might not have thought of their
molestation experience as involving a ‘crime’ that the
questionnaire was concerned with,” in that the jury
questionnaire “asked the jurors whether they had ever been the
victim of a crime, and as the court explained, the jurors might
have thought the questions did not encompass unwanted sexual
contact that never resulted in an arrest or a prosecution. . . .
Therefore, the jurors’ statements were not necessarily
inconsistent with a ‘no’ answer to questions 45 and 46 on the
juror questionnaire and were insufficient to show juror
misconduct.” (Maj. opn., ante, at pp. 233–234.)
      The scenario hypothesized by the majority seems difficult
to reconcile with the actual questions the prospective jurors
were asked. Question 45, for example, inquired not only “Have

                                  8
                       PEOPLE v. STAYNER
                 Evans, J., concurring and dissenting


you or anyone you know been a witness to or a victim of a crime,”
but also whether the prospective juror had been “interviewed by
the police” — thus contemplating scenarios in which the
prospective juror was the victim of a crime yet may not have
reported it to police and no arrest or prosecution resulted.
Question 46 asked whether the prospective juror had “ever been
the victim of a violent crime (i.e., assault, murder, rape,
molestation, domestic violence, etc.)” — thus making it
unmistakably clear that molestation was included in the
question. (Italics added.) Only a strained reading could lead
one to hypothesize that the seated jurors might have thought
being “ ‘inappropriately fondled or touched by a stranger or a
relative’ ” that “ ‘has not given rise to an arrest . . . [or] a
prosecution . . . might very well mean in the mind of the person
that it’s not really a criminal offense.’ ” (Maj. opn., ante, at p.
231.)
      Indeed, the majority’s speculation is refuted by the simple
fact that 12 prospective jurors gave questions 45 and 46 a
natural reading and disclosed in their questionnaires the
molestation they had suffered, despite the fact that seven of
them had never reported the crimes to the police. Although it’s
possible there may have been other reasons for excusal or
disqualification, not a single prospective juror who disclosed
molestation was selected to serve on the jury. To assume
without further investigation that the seated jurors must have
had a distinctly different reading, in defiance of the actual text
of the questions themselves and the responses of many other
prospective jurors, blinks reality.
     In addition, the trial court’s failure to order an evidentiary
hearing undercuts the majority opinion’s characterization of the
seated jurors’ nondisclosure as “unintentional.” (Maj. opn., ante,

                                  9
                        PEOPLE v. STAYNER
                  Evans, J., concurring and dissenting


at p. 234.) The majority opinion deems “Juror No. 5’s failure to
disclose his citation for public intoxication” to be “relevant here”
(ibid.), but the trial court actually questioned Juror No. 5 about
his nondisclosure before concluding it was unintentional and
inadvertent. (Id. at p. 158.) No such questioning occurred here.
      The majority opinion also uses faulty reasoning to support
its conjecture that the seated jurors’ nondisclosure was
unintentional. Their reasoning goes like this: “it seems unlikely
these jurors concealed their experiences because they hoped to
be chosen as a juror despite harboring a bias against defendant,”
therefore “[i]t is much more likely that they did not believe that
questions 45 and 46 applied to them.” (Maj. opn., ante, at p.
234.) This is a false choice. Stayner’s claim of misconduct does
not depend on a theory that these individuals connived to serve
on the jury. What’s “much more likely” is that the jurors were
reluctant to write down that they had been molested and
disclose it to the court because of their feelings of shame and
embarrassment. (See Commonwealth v. Reavis (Mass. 2013)
992 N.E.2d 304, 316.) Unfortunately, it was precisely those
feelings of shame and embarrassment about their molestation
that created a “strong possibility” they would be biased against
Stayner, who had likewise been molested — and should have led
the trial court to conduct an inquiry into the nondisclosure. (See
People v. Hedgecock (1990) 51 Cal.3d 395, 419.)
      The majority opinion’s conclusion that “none of the juror
misconduct claims establishes a violation of his state or federal
constitutional rights” (maj. opn., ante, at p. 238) thus rests
entirely on the trial court’s failure to investigate the very real




                                  10
                       PEOPLE v. STAYNER
                 Evans, J., concurring and dissenting


possibility of juror misconduct and bias. That omission further
undermines confidence in the penalty judgment. 2
                                 IV.
      For the foregoing reasons, I would affirm the guilt and
sanity verdicts but reverse the death judgment and remand for
further proceedings. To the extent the majority opinion fails to
recognize the prejudicial error that occurred at the penalty
phase trial, however, I respectfully dissent.
                                             EVANS, J.




2
      The majority opinion contends that certain declarations
offered in support of the new trial motion constituted hearsay
but correctly declines to rely on that ground because “the trial
court did not do so and treated the declarations as offers of
proof.” (Maj. opn., ante, at p. 233.) A reviewing court “may not
affirm a discretionary ruling on a ground the trial court did not
rely on and had discretion to reject.” (In re L.C. (D.C. 2014) 92
A.3d 290, 297; see generally Cutter v. Wilkinson (2005) 544 U.S.
709, 718, fn. 7 [“we are a court of review, not of first view”].)


                                 11
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion People v. Stayner
__________________________________________________________

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

__________________________________________________________

Opinion No. S112146
Date Filed: April 30, 2026
__________________________________________________________

Court: Superior
County: Santa Clara
Judge: Thomas C. Hastings
__________________________________________________________

Counsel:

Andrew Parnes, under appointment by the Supreme Court, for
Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Gerald A. Engler
and Charles C. Ragland, Chief Assistant Attorneys General, Ronald S.
Matthias and James William Bilderback II, Assistant Attorneys
General, Glenn R. Pruden, Sarah J. Farhat and Bridget Billeter,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Andrew Parnes
Attorney at Law
671 First Avenue North
P.O. Box 5988
Ketchum, ID 83340
(208) 726-1010

Bridget Billeter
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3763