The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JAVANCE MICKEY WILSON,
Defendant and Appellant.
S118775
San Bernardino County Superior Court
FVA-012968
__________________________________________________________
August 5, 2024
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Groban, and
Jenkins concurred.
Justice Evans filed a dissenting opinion, in which Justice Liu
concurred.
__________________________________________________________
PEOPLE v. WILSON
S118775
Opinion of the Court by Kruger, J.
Defendant Javance Mickey Wilson was charged with
robbing and murdering or attempting to murder three cab
drivers on separate occasions over a four-week period. At
Wilson’s first trial, the jury deadlocked on guilt and the court
declared a mistrial. On retrial, Wilson was convicted of robbery,
carjacking, and attempted murder of James Richards; first
degree murder and robbery of Andres Dominguez; and first
degree murder and attempted robbery of Victor Henderson.
(Pen. Code, §§ 187, subd. (a), 211, 215, subd. (a), 664.) The jury
also found that Wilson personally used a firearm in committing
the crimes against Richards (id., § 12022.53, subd. (b)), and
personally and intentionally discharged a firearm causing the
deaths of Dominguez and Henderson (id., § 12022.53, subd. (d)).
The jury found true the special circumstances of robbery murder
and multiple murder. (Id., § 190.2, subd. (a)(3), (17).) At the
penalty phase, the jury returned a death verdict and the trial
court entered a judgment of death. This appeal is automatic.
(Cal. Const., art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).)
We affirm the judgment.
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I. FACTUAL BACKGROUND
A. Guilt Phase
1. Prosecution evidence
The prosecution presented evidence that in early 2000,
Wilson committed a series of crimes against cab drivers in the
San Bernardino and Los Angeles areas. On each occasion, the
perpetrator called for a cab, then robbed and murdered or
attempted to rob and murder the cab driver. The first victim,
James Richards, was robbed at gunpoint at the end of a rural
road in San Bernardino County. The perpetrator attempted to
kill Richards, but the gun jammed and Richards managed to
escape. The second victim, Andres Dominguez, was shot and
killed in the same location several weeks later. The perpetrator
then used Dominguez’s cell phone to request another taxicab
from a Pomona company. The driver of the cab that responded,
Victor Henderson, was the third victim; he was killed
approximately two hours after Dominguez, shot by the same gun
used to kill Dominguez.
James Richards picked up a passenger in front of a grocery
store in downtown San Bernardino on January 7, 2000. The
passenger was going to Bloomington, about 20 minutes away.
After reaching Bloomington, the passenger directed Richards to
stop on a rural, dimly lit road. There, the passenger drew a gun
and robbed Richards. Then, forcing Richards out of the cab and
onto his knees, the passenger put the gun into Richards’s mouth
and tried to shoot him. The gun jammed, however, and Richards
was able to escape to a nearby house. The owner of the house
heard Richards screaming and pounding on his door and saw a
figure in the street pointing a gun at Richards before getting into
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a cab and speeding off. The cab company later recovered
Richards’s stolen taxi from an apartment complex in Victorville.
When police arrived at the scene, Richards told them the
perpetrator was a Black male in his 30s, with short hair and
pock-marked skin, about six feet tall and 220 pounds, and
wearing a light-colored ski jacket. Although Wilson was 25 at
the time, Richards’s description generally matched Wilson’s
appearance. Richards later identified Wilson from a photo
lineup but was unable to pick Wilson out of a live lineup held
two weeks after the initial identification. Richards described
the weapon Wilson used as a smaller, chrome gun. Police later
recovered a .22 handgun fitting this description from a friend of
Wilson’s, as part of their investigation into the crime.
The prosecution presented additional evidence to connect
Wilson to the weapon used in the Richards robbery and to
related events and locations. Joe Diaz testified that on January
6, 2000, intruders broke into his house and took everything from
his gun case, including a hunting rifle and a .22 handgun that
jammed nearly every time it was shot. A childhood friend of
Wilson’s purchased that hunting rifle from Wilson in January or
February 2000. The same friend testified that Wilson’s
grandparents lived in Bloomington, not far from the road where
Richards had been robbed, and that Wilson had lived with his
grandparents periodically. In an interview with detectives,
Wilson admitted having access to a small .22 pistol. At the time
of the robbery, Wilson lived in an apartment in Victorville about
two miles from Diaz’s home and one street away from the
location where the cab company recovered Richards’s stolen
taxicab. It was about 40 miles from Victorville to San
Bernardino, but in January 2000, Wilson’s mother had been
staying in a motel right by the grocery store in San Bernardino
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where Richards picked up his assailant; the manager of the
motel testified that Wilson and his brother Sylvester Seeney
visited her there on January 6 or 7.
Andres Dominguez drove his cab to pick up a passenger at
a San Bernardino grocery store just before midnight on
February 20, 2000. Soon afterwards, Dominguez was shot and
killed on the same road where Richards had been robbed. A
resident who heard the gunfire saw a car leaving the scene,
while Dominguez’s taxicab remained on the street.
Later that night, a caller used Dominguez’s cell phone to
request a taxi from a Pomona cab company. Victor Henderson
picked up the passenger. At approximately 2:30 a.m.,
Henderson was shot and killed a distance from his cab.
Eyewitnesses saw a man in a white ski jacket running in the
street where Henderson had been shot. The man then got into
a car that drove away before he was fully inside, dragging him
briefly.
Sara Bancroft and Christina Murphy saw Wilson the day
before the murders and the morning after; each testified that
after the murders, Wilson had an injured leg and was
complaining about scuffs on his new sneakers that had not been
present the day before. A friend of Bancroft’s, Tiffany Hooper,
also saw Wilson the morning after the murders and noticed his
injury.
Bancroft was a neighbor of Wilson’s in Victorville who
knew Wilson and his younger brother Seeney. She rented a car
for Wilson to use on February 20 and 21. She saw Wilson on the
evening of February 20. He was with an 18- or 19-year-old man
she did not recognize. The next morning when Wilson came
back with the rental car, he was with a different man and there
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was something wrong with his knee. He was limping and could
not bend his leg well. Bancroft and Hooper gave Wilson and the
man a ride to San Bernardino before returning the rental car.
Hooper later identified the second man as Cory McKinney.
Hooper said that Wilson was limping badly and that there was
a white ski jacket and a cell phone in the back seat of the car.
Murphy met Wilson on February 19 and he stayed with
her in San Bernardino until about 3:00 a.m. on February 20.
She saw him later that day and again the next morning.
Although he had not been previously injured, on the morning of
February 21, Wilson was limping, his leg was wrapped and a
little bloody, and his pant leg was torn. Wilson came to her
house with Cory McKinney’s brother Brad McKinney, who
asked if she had seen the news. She had not. Wilson asked her
sometime after that what she would think if she found out he
shot someone.
Criminalists determined that Dominguez and Henderson
were killed by the same weapon. The investigation later
revealed the weapon was a .44 revolver stolen from Grant
Fargon on February 15, 2000. Fargon lived a half mile from
Wilson’s apartment in Victorville. His entire gun collection —
including the .44 revolver, guns that had been painted in
camouflage for hunting, and other specialized weapons — had
been taken in the February 15 burglary.
Phyllis Woodruff, the girlfriend of Wilson’s brother
Seeney, testified that shortly before the murders she saw Wilson
with a large collection of guns on his bed, including camouflaged
guns. Wilson had been showing off a long black gun that looked
like the .44 revolver later identified as the murder weapon.
Woodruff acknowledged that she participated in burglarizing
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some of the homes from which the weapons were taken, serving
as the driver while Wilson, Seeney, and Brad McKinney went
inside. She was given immunity from prosecution for those
crimes. Woodruff testified that she and Seeney were at her
family’s barbeque on February 20, and that Wilson stopped by
with Brad McKinney and borrowed Seeney’s white ski jacket.
Woodruff also knew about the Richards robbery. She
testified that on January 7, 2000, she was with Seeney and
Wilson when they visited their mother at her motel in San
Bernardino. Wilson stayed in San Bernardino after Woodruff
and Seeney left. Later, back at the apartment Wilson shared
with Seeney in Victorville, Wilson told them that he had robbed
a cab driver, described his gun jamming when he tried to shoot
the driver, and took them to see the taxicab he had stolen and
abandoned in a nearby apartment complex. Woodruff said that
Wilson gave the malfunctioning gun to Brad McKinney. Police
later recovered the .22 handgun stolen in the January 6 break-
in of Joe Diaz from the house where Brad and Cory McKinney
stayed in San Bernardino.
Woodruff’s father, Henry Woodruff, described the family
barbeque at his house on February 20. Wilson stopped by the
barbeque and while there, took the white ski jacket Seeney had
been wearing and began wearing it himself. Henry Woodruff
recalled that Seeney and Phyllis stayed at the Woodruff house
that night. Phyllis and Henry Woodruff’s wife also told
detectives that Seeney was at the Woodruff home that night,
which was the night of the murders.
In a statement to police, Wilson admitted using
Dominguez’s cell phone, but claimed that he borrowed it from a
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friend and had not known the phone belonged to a murder
victim.
Seeney invoked his Fifth Amendment privilege to avoid
testifying; his preliminary hearing testimony was instead read
to the jury at both the trial and retrial. During the preliminary
hearing, Seeney had testified under a grant of immunity and
acknowledged that he had been committing burglaries with
Wilson and Woodruff in the period shortly before the murders.
In his testimony, Seeney said that Wilson had talked about his
plan to rob cab drivers and that he later told Seeney that he hit
the first driver in the head with the gun after it jammed. Like
Phyllis Woodruff, Seeney said that Wilson showed him stolen
items and the abandoned cab from the January 7 robbery, and
that Wilson gave the malfunctioning gun to Brad McKinney.
Seeney testified that Wilson had been showing off a .44 revolver
before the murders and that Wilson borrowed Seeney’s white ski
jacket at the Woodruff barbeque on February 20. Seeney
acknowledged that Wilson told him about killing two cab
drivers; Wilson said he was dragged by the car during one of the
robberies and scraped his shoes. Seeney also described being
present when Wilson confessed the murders to his common law
wife. They were with Wilson’s wife in her big rig when she got
a call from her dispatcher connecting her to a police detective.
When she confronted Wilson and asked whether he killed the
cab drivers, Wilson admitted that he had.
2. Defense evidence
The defense presented evidence to suggest that Seeney,
Brad McKinney, Cory McKinney, or another third party, could
have been responsible for the crimes. One of the detectives who
interviewed Phyllis Woodruff testified that she said there were
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many nights when she had no idea where Seeney was, though
the detective clarified during cross-examination that Phyllis had
been very precise about where Seeney was the night of the
murders. The sergeant responsible for the investigation
testified that Cory McKinney gave three different false alibis for
the night and early morning of the murders, and that Cory and
Brad McKinney both remained suspects in the case. The
defense called law enforcement investigators to suggest that
some of the evidence that might have shown the involvement of
perpetrators other than Wilson had not been carefully examined
or tested. In particular, the defense emphasized a shoe found in
the street some distance from the Pomona crime scene, and hair,
fiber, and fingerprint evidence that might have been, but was
not, collected and examined.
Much of the defense case focused on undermining
Richards’s identification of Wilson as his attacker. An
eyewitness identification expert explained how eyewitness
memory can be influenced and testified about several factors
suggesting that Richards’s identification of Wilson might not be
accurate. These factors included the possibility that Richards
had seen a “wanted” poster with Wilson’s photograph on it
before making his identification; that Richards could not
identify Wilson in a live lineup; that the detective administering
the photo lineup may have prompted Richards to select Wilson’s
photo by asking about “number five,” Wilson’s position in the
lineup; that the detective might have improperly showed
Richards another lineup with Wilson’s photograph before
Richards made his identification; and that Richards at one point
thought that someone who did not look much like Wilson could
have been his attacker. The defense also presented evidence
that Richards robbed a cigarette store in November 2000. The
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defense tried to establish that Richards was getting preferential
treatment on his robbery case in exchange for his testimony
against Wilson. Presenting evidence that Richards’s
preliminary hearing had been repeatedly continued and the
prosecutor had not spoken to any witnesses, the defense
suggested that prosecutors were not actively pursuing the case
against Richards.
B. Penalty Phase
The prosecution presented aggravating evidence that
included Wilson’s admission of guilt for the voluntary
manslaughter of an individual with whom he had a drug sale
transaction, assault of an individual whom he had threatened to
kill, and threats to a courtroom deputy during the retrial.
Several witnesses related to Dominguez and Henderson
provided victim impact testimony.
In mitigation, Wilson presented evidence of his mother’s
mental illness and substance use, and the learning disabilities,
brain damage, and behavioral problems he experienced that
were related to or exacerbated by being physically abused and
neglected during his chaotic childhood.
II. DISCUSSION
A. Richards’s Identification
Wilson raises several challenges to the trial court’s
decision to admit evidence that Richards, the victim of the first
robbery and attempted murder, identified Wilson from a
photographic lineup and identified him in court during the
preliminary hearing. We reject each of his arguments.
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1. Background
As noted, the night of the robbery, Richards gave police a
description of the perpetrator that was roughly consistent with
Wilson’s appearance. After the robbery, however, Richards
began to suspect that a man he met in a drug rehabilitation
program, Ray Bradford, could be the man who robbed him.
Bradford’s appearance was notably different from Wilson’s; at
five feet nine inches, Bradford was shorter, darker skinned, and
had a thinner face. The police did not find reason to suspect
Bradford. Instead, they showed Richards a photo lineup (not
including Wilson) with the picture of a different suspect.
Richards did not identify anyone in the lineup. By late February
or March, police suspected Wilson. In early March, Detective
Scott Franks showed Richards a photo lineup that contained
Wilson’s photo. Franks provided a standard admonishment that
the lineup might not contain a picture of the suspect, that
hairstyles and facial hair might have changed, and that the
complexion of the person could be lighter or darker than
depicted in the photograph. Richards selected Wilson’s
photograph, drawing a circle around the photo and stating that
Wilson’s picture looked “exactly like the guy” and “jumped right
out at me.” Several days afterwards, however, when officers
held a live lineup including Wilson, Richards did not identify
him. In the photograph Richards had identified, Wilson wore a
mustache and soul patch; in the live lineup he wore a beard.
Shortly before the preliminary hearing, Richards met with
the prosecutor in the hallway outside the courtroom. The
prosecutor showed Richards a variety of photographs and
documents, including a copy of the photographic lineup on which
Richards had circled Wilson’s picture. At some point during the
hallway meeting, the prosecutor asked Richards whether he
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Opinion of the Court by Kruger, J.
thought he would be able to identify Wilson in the courtroom
and Richards was not sure. During the preliminary hearing,
Richards identified Wilson in court as he sat at the defense table
in a red jail jumpsuit.
The defense moved to exclude both the photo and in-court
identifications. Defense counsel argued that the requirements
of People v. Kelly (1976) 17 Cal.3d 24, governing the admission
of evidence based on a new scientific method, should apply in
deciding whether the photo lineup and in-court identification
procedures were sufficient to ensure the reliability of Richards’s
identification. Counsel argued the photo lineup from which
Richards identified Wilson did not comply with accepted
scientific methods for two reasons: (1) administration of the
lineup was not “blind” because the detective presenting the
lineup knew that Wilson was the suspect and might have
inadvertently provided Richards with subtle cues to select
Wilson’s photograph; and (2) allowing Richards to view all six
photos in the lineup simultaneously, rather than sequentially,
could lead him to make an identification based on the subject
who looked most like perpetrator relative to the other photos,
instead of by individually comparing each photo to his own
memory. Counsel further argued that by showing Richards the
photo lineup before his preliminary hearing testimony, the
prosecution used a suggestive process to obtain the in-court
identification. Counsel argued the identification should be
excluded under Evidence Code section 352 and the federal due
process clause.
In support of the motion, the defense presented the
testimony of Detective Franks, who had conducted the March
photographic lineup with Richards. After Detective Franks
showed Richards the lineup, the following exchange occurred:
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“[Det. Franks]: What are you pointing to? Number five?
“Richards: Yeah.
“[Det. Franks]: What about number five?
“Richards: That looks — that looks exactly like the guy
right there.
“[Det. Franks]: Okay. Exactly like him?
“Richards: Yeah.
“[Det. Franks]: Okay. What I want you to do then is — I
want you to circle number five. Circle the whole thing, sign it.”
Dr. Kathy Pezdek, a memory expert and cognitive
psychologist, testified for the defense to describe the relevant
empirical research and explain why blind and sequential
lineups were considered more reliable. She agreed with counsel
that when an administrator gave a cue such as “ ‘what about
No. 5?,’ ” it might lead the witness to select that photograph, an
interference with the witness’s memory that blind
administration sought to prevent. The defense provided the
court a 1998 survey of scientific literature and wrongful
convictions from a subcommittee of the American
Psychology/Law Society. That group found “impressive”
evidence that sequential administration reduces false
identifications; its final recommendations included the use of
blind administration and a photographic lineup in which the
suspect does not stand out. The defense also submitted 1999
findings and guidelines prepared by the United States
Department of Justice that were based on 20 years of empirical
research and best practices identified by law enforcement
agencies across the country. The Department of Justice’s
recommendations did not include blind administration or a
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sequential showing of photographs, but the findings and
guidelines noted evidence indicating that those procedures
might enhance reliability.
The trial court admitted Richards’s identifications.
Although the court acknowledged Wilson’s evidence concerning
preferred methods of conducting a photo lineup, the court did
not “find any evidence to support” the conclusion that a lineup
without those features was so “impermissibly suggestive as to
violate due process.” The court also ruled that showing Richards
a copy of the lineup before his preliminary hearing testimony
and in-court identification was not unduly suggestive. After the
first trial ended in mistrial, the parties and trial court agreed to
abide by the trial court’s previous ruling on the admission of
Richards’s identification.
The admission of Richards’s identification had been based
on evidence that Richards saw two lineups, one with Wilson’s
photo and one without. Later in the trial, however, the defense
located a third photo lineup in the prosecution files that
included Wilson’s photo, and a dispute arose over whether
Richards had seen this third lineup. Whether Richards had seen
another lineup with Wilson’s photograph before making an
identification was significant because the defense expert
testified that Richards might have “recognize[d]” Wilson in the
final lineup only because he had already seen his photograph
(without recognizing him) in a previous one. To counter this
theory, the prosecution presented evidence that Detective
Franks had not shown Richards the third lineup: Richards
could not be sure whether he was shown two or three lineups;
the sergeant in charge of the investigation had prohibited use of
the third lineup; and Detective Franks denied showing the third
lineup to Richards.
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2. Discussion
a. Lineup procedures
Wilson argues that the photo lineup shown to Richards
was unduly suggestive and that Richards’s identification should
therefore have been excluded as unreliable. Based on the record
before us, we are not persuaded.
The “admission of evidence in state trials is ordinarily
governed by state law, and the reliability of relevant testimony
typically falls within the province of the jury to determine.”
(Perry v. New Hampshire (2012) 565 U.S. 228, 232 (Perry).)
There is, however, “a due process check on the admission of
eyewitness identification, applicable when the police have
arranged suggestive circumstances leading the witness to
identify a particular person as the perpetrator of a crime.”
(Ibid.; accord, e.g., Manson v. Brathwaite (1977) 432 U.S. 98,
114.) To determine whether the admission of identification
evidence violates a defendant’s due process rights, the court
asks two questions. First, the court asks whether the
identification procedure was unduly suggestive and
unnecessary. (People v. Sanchez (2019) 7 Cal.5th 14, 35.)
“Suggestive confrontations are disapproved because they
increase the likelihood of misidentification, and unnecessarily
suggestive ones are condemned for the further reason that the
increased chance of misidentification is gratuitous.” (Neil v.
Biggers (1972) 409 U.S. 188, 198.) Second, even if the lineup
was unnecessarily suggestive, the court asks whether the
identification was nonetheless reliable under the totality of the
circumstances. (Sanchez, at p. 35.) Exclusion is required if
there is “ ‘a very substantial likelihood of irreparable
misidentification.’ ” (Perry, at p. 232.) “But if the indicia of
reliability are strong enough to outweigh the corrupting effect of
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the police-arranged suggestive circumstances, the identification
evidence ordinarily will be admitted, and the jury will
ultimately determine its worth.” (Ibid.; see Brathwaite, at
p. 114.)
On appeal, we give deference to “ ‘the trial court’s findings
of historical fact, especially those that turn on credibility
determinations, but we independently review the trial court’s
ruling regarding whether, under those facts, a pretrial
identification procedure was unduly suggestive.’ [Citation.]
‘Only if the challenged identification procedure is unnecessarily
suggestive is it necessary to determine the reliability of the
resulting identification.’ ” (People v. Alexander (2010) 49
Cal.4th 846, 902.)
Wilson argues that the photo lineup at issue was unduly
suggestive because Detective Franks, aware that Wilson was a
suspect in the case, steered Richards toward selecting Wilson.
The trial court found no evidence of such steering. Although the
record reflects that Detective Franks directed Richards to circle
Wilson’s photograph, the trial court noted this occurred after —
not before — Richards had already selected that photograph.
The court was also evidently unpersuaded by Wilson’s argument
that the detective’s question, “What about number five?,”
prompted Richards’s selection. The record supports the trial
court’s apparent view. During the lineup, Detective Franks
asked Richards, “What are you pointing to? Number five?,”
suggesting that Richards was pointing to the photo before
Detective Franks said anything about it. The detective then
asked, “What about number five?,” apparently to prompt
Richards to explain why he had pointed at the photo — not to
prompt Richards to select the photo in the first place.
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Wilson argues that Detective Franks nonetheless
interfered with Richards’s identification by directing him to
circle the photograph in position number five without giving him
additional time to look at the other photos. After Richards said
number five looked “exactly like” the perpetrator and Detective
Franks told him to circle that photo, Richards stated: “I’m
trying to look at everybody else real quick but — he just jumped
right out at me.” Detective Franks replied, “Okay. Then circle
number five.” Wilson identifies nothing in the record to suggest
that by directing Richards to circle the photograph he had
identified, Detective Franks was attempting to lock Richards
into an overly hasty identification. And Richards expressed no
further need for time before he proceeded to circle the
photograph he had spontaneously identified as “jump[ing] right
out” and looking “exactly like” the perpetrator.
Wilson suggests that knowing number five was the
suspect may have affected Detective Franks’s administration of
the photo lineup in other ways, causing him to unconsciously
provide Richards with cues to select Wilson’s photo and affecting
the reliability of Richards’s identification. (See State v.
Henderson (N.J. 2011) 27 A.3d 872, 896 (Henderson) [describing
the “ ‘expectancy effect’ ” in which even an administrator’s
“seemingly innocuous words and subtle cues . . . can influence a
witness’ behavior”].)
To the extent Wilson argues that any nonblind lineup is
inherently suggestive, case law does not support the argument,
and we reject it. Wilson cites Henderson in support of the
argument. But the court in Henderson did not hold that a
nonblind lineup was unduly suggestive; it instead simply
explained that an “ideal” administrator would not know who the
suspect is. (Henderson, supra, 27 A.3d at p. 897.) This court,
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likewise, has “never required” that a photographic lineup “be
administered in a double blind procedure.”1 (People v. Lucas
(2014) 60 Cal.4th 153, 237; see also Com. v. Watson (Mass. 2009)
915 N.E.2d 1052, 1059 [the absence of a double-blind procedures
goes to the weight of identification evidence, not its
admissibility]; State v. Outing (Conn. 2010) 3 A.3d 1, 16 [failure
to use a double-blind procedure, without more, did not render
identification unnecessarily suggestive].) We recognize that our
Legislature has recently enacted requirements, including blind
administration, designed to enhance the reliability of
eyewitness identifications. (Pen. Code, § 859.7.) Our inquiry,
however, is not whether a practice might enhance reliability, but
whether its omission is indicative of a procedure that is unduly
suggestive. (Cf. Lucas, at p. 237 [declining to equate the absence
of “protective measures” such as a nonblind lineup with an
unduly suggestive procedure].) Recognizing that “[m]ost
eyewitness identifications involve some element of suggestion”
(Perry, supra, 565 U.S. at p. 244), we conclude that the
procedure in this case was not “unduly suggestive and
unnecessary” simply because the lineup was not blind (People v.
Alexander, supra, 49 Cal.4th at p. 902).
Wilson claims the identification procedure in his case was
also unduly suggestive because Richards viewed a group of six
photographs simultaneously, rather than sequentially. He
notes that other jurisdictions have found sequential lineups
1
A “double blind” procedure indicates that the
administrator does not know who the suspect is, whereas a
“blind” or “blinded” procedure is one in which the administrator
knows the identity of the suspect but is not able to see the
suspect’s position in the lineup. (See Henderson, supra, 27 A.3d
at p. 896; Pen. Code, § 859.7, subd. (c).)
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more reliable than simultaneous ones, citing Henderson, State
v. Lawson (Or. 2012) 291 P.3d 673, and the Department of
Justice guidelines presented at trial. The court in Lawson found
that a witness who views lineup photographs sequentially is
“less likely to misidentify innocent suspects” (Lawson, at p. 686);
the Department of Justice guidelines also noted that sequential
lineups produce more reliable evidence. But the Department of
Justice found there was not consensus for recommending
sequential lineups as a preferred procedure, the American
Psychology/Law Society guidelines Wilson presented to the trial
court declined to recommend the use of sequential lineups, and
the court in Henderson similarly concluded that, “[f]or now,
there is insufficient, authoritative evidence accepted by
scientific experts for a court to make a finding in favor of either
procedure.” (Henderson, supra, 27 A.3d at p. 902; see also U.S.
v. Johnson (7th Cir. 2014) 745 F.3d 227, 229 [noting some
research has called into question the superiority of sequential
presentation].) Our own Legislature, in enacting requirements
designed to enhance the reliability of eyewitness identifications,
has not included a preference for sequential procedures, either.
(Pen. Code, § 859.7.) In this case we conclude that “there was
no undue suggestiveness in the procedures actually employed.”
(People v. Lucas, supra, 60 Cal.4th at p. 237.)
Wilson also argues that it was unduly suggestive to show
Richards two different lineups containing Wilson’s picture. The
argument fails because it rests on a factual premise that was
never established at trial: that Detective Franks had, in fact,
shown Richards the third lineup later discovered in the
prosecution’s files, even though Detective Franks testified he
had not. (Cf. People v. Thomas (2012) 54 Cal.4th 908, 932 [when
the defendant “merely speculates that [the witness] could have
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seen [the suspects’] photographs,” he has not demonstrated the
identification procedure was unduly suggestive].) And because
it has not been established that Richards ever saw the third
lineup, we reject Wilson’s related claim that the third lineup was
unduly suggestive because its composition caused him to
“ ‘ “stand out” from the others in a way that would suggest the
witness should select him.’ ” (People v. Wilson (2021) 11 Cal.5th
259, 284.)
Wilson contends that the lineup Richards did see was also
unduly suggestive because Wilson was the lightest-skinned
subject in the lineup. The record does not support the
contention; Wilson’s complexion was not obviously lighter than
some of the others pictured. Moreover, Detective Franks
advised Richards that the photographs might not depict the true
complexion of the subject, which “may be lighter or darker than
shown in the photo.”
Finally, Wilson argues that the trial court did not make a
proper determination that the lineup was suggestive and did not
apply the correct constitutional standard when admitting that
evidence. Wilson emphasizes that in discussing the
admissibility of the lineup, the trial court commented that there
was not a sufficient showing that the identification was
“ ‘worthless.’ ” As we have indicated, however, the trial court
ruled that the lineup was not so “impermissibly suggestive as to
violate due process”; the court also explained its conclusion. At
any rate, we independently review the trial court’s ruling
(People v. Alexander, supra, 49 Cal.4th at p. 902), and have
made our own determination that the identification procedure
was not unduly suggestive.
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
Because the photo lineup used in this case did not involve
an unduly suggestive and unnecessary procedure, the resulting
identification was admissible into evidence. (People v.
Alexander, supra, 49 Cal.4th at p. 903.) “[T]he Due Process
Clause does not require a preliminary judicial inquiry into the
reliability of an eyewitness identification when the
identification was not procured under unnecessarily suggestive
circumstances arranged by law enforcement.” (Perry, supra, 565
U.S. at p. 248.) We instead rely on jurors and their ability to
“ ‘measure intelligently the weight of identification testimony.’ ”
(Alexander, at p. 903.)
b. In-court identification
Wilson also challenges the admission of Richards’s in-
court identification of him during the preliminary hearing.
At a hearing on whether to admit the preliminary hearing
identification at trial, the prosecutor testified that he met with
Richards before the preliminary hearing and showed him a copy
of the photo lineup on which Richards had circled Wilson’s
picture. The prosecutor explained that he wanted to confirm the
lineup was the one Richards had seen and bore his signature; it
was among other photos and reports the prosecutor reviewed
with Richards before his testimony. The prosecutor noted that
during their meeting Richards was not sure whether he would
be able to identify Wilson in court. In ruling that the
identification was admissible, the court observed that the
defense would be able to present evidence to demonstrate that
during the in-court identification, Wilson was the only person
seated at the defense table in jail clothing, and to raise other
factors bearing on the reliability of the identification, such as
Richards’s inability to identify Wilson in a live lineup and
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
Richards’s mistaken belief that another man with a different
appearance might have been his assailant.
Wilson contends the prosecutor tainted Richards’s
preliminary hearing identification by showing Richards a copy
of the photo lineup. Wilson argues that this was a suggestive
pretrial procedure, citing People v. Contreras (1993) 17
Cal.App.4th 813. In Contreras, the witness failed to identify the
defendant in a photographic lineup, was shown an individual
photo of the defendant two days before the preliminary hearing,
and then identified the defendant in court at the preliminary
hearing. (Id. at p. 820.) The appellate court found the
individual photo showup unduly suggestive. (Ibid.) Wilson
argues that showing Richards a copy of the photo lineup was
similarly suggestive. The court in Contreras, however, went on
to hold that the witness’s in-court identification was admissible
because it was based on the witness’s “independent recollection”
rather than the suggestive photo lineup. (Id. at p. 821; see
People v. Ratliff (1986) 41 Cal.3d 675, 689 [the taint of an unduly
suggestive lineup “may be dispelled if the People show by clear
and convincing evidence that the identification of the defendant
had an independent origin”].)
Here, unlike in Contreras, Richards made an in-court
identification after viewing a lineup that was not unduly
suggestive. Furthermore, the prosecutor showed Richards the
lineup, along with other photographs and documents, as part of
the general preparation for Richards’s testimony; there is no
indication in the record that the prosecutor showed Richards the
lineup in response to Richards’s uncertainty about his ability to
identify Wilson in court. But even assuming that seeing the
marked-up copy of the lineup could have affected Richards’s in-
court identification, we conclude that, as in Contreras, the in-
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Opinion of the Court by Kruger, J.
court identification was nonetheless admissible because the
record indicates the identification was based on Richards’s
independent recollection. Richards explained during his trial
testimony that he recognized Wilson in the preliminary hearing
when Wilson looked up at him with a distinctive smirk, the
“same exact expression that he had when the gun didn’t go off
in my mouth.” The prosecutor also asked Richards about being
shown Wilson’s photo lineup just before the preliminary
hearing, and although Richards did not think it affected him,
the jurors were free to conclude otherwise. And as the trial court
noted, the defense was able to present evidence to challenge the
reliability of the in-court identification. As in Ratliff, where we
ruled the “defendant could raise and argue the issue of
suggestiveness despite [the witness’s] independent recollection,”
the “procedure did not deprive [Wilson] of due process or a fair
trial.” (People v. Ratliff, supra, 41 Cal.3d at p. 689.)
Wilson argues that before allowing Richards’s in-court
identification, the trial court should have placed the burden on
the prosecution to show that Richards had personal knowledge
of Wilson’s appearance and that Richards’s opinion that Wilson
was his attacker was rationally based on his perception.
In urging us to adopt this approach and hold that the trial
court should have undertaken this inquiry, Wilson now relies
heavily on the Oregon Supreme Court’s decision in State v.
Lawson, supra, 291 P.3d 673, which sets out foundational
requirements for admission of identification testimony under
Oregon statutory law. We have no occasion to address the
argument because Wilson did not raise it in the trial court. It
has therefore been forfeited.
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
What Wilson did request was for the trial court to exclude
Richards’s identification under Evidence Code section 352,
arguing that it had limited probative value. The trial court did
not abuse its discretion in denying this request. Richards’s
testimony was clearly relevant and probative, reflecting his
personal observations made over the course of the crime, and
there was no showing of undue prejudice. (See People v.
Nadey (2024) 16 Cal.5th 102, 152 [“The fact that evidence, or an
inference drawn therefrom, is harmful to the defendant’s case
does not mean the evidence is unfairly prejudicial” under section
352].) As previously noted, Richards testified that he was
looking directly at Wilson’s face when the gun Wilson tried to
shoot him with jammed: he said that Wilson was “kind of
smiling,” with a “ ‘Damn, you got lucky’ type” of look. Richards
said he later identified Wilson in the photo lineup and in court
by the same expression, a “very distinctive” smirk. Wilson has
not, in short, established a basis for overturning the trial court’s
decision to admit the identification.
c. Eyewitness identification instructions
Wilson claims that the trial court erred in instructing the
jury with CALJIC No. 2.92, which directs jurors to “consider the
believability of the eyewitness as well as other factors which
bear upon the accuracy of the witness’ identification,” including
“[t]he extent to which the witness is either certain or uncertain
of the identification.” Wilson argues the instruction violated his
federal and state due process rights. 2
2
The Attorney General contends that Wilson has forfeited
any argument that the instruction should have been modified,
citing People v. Sanchez (2016) 63 Cal.4th 411, 461, in which we
23
PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
During his testimony for the prosecution at trial, Richards
again identified Wilson in the courtroom, stated that he was
“[v]ery certain” of his identification, and explained that Wilson
had a distinctive “smirk smile” that he recognized. The defense
presented several case-specific reasons to distrust Richards’s
identification; the defense eyewitness identification expert
reiterated these case-specific points, and described other, more
general circumstances that rendered Richards’s identification
unreliable. Regarding Richards’s profession of certainty, the
expert explained why eyewitness confidence, in general, “is very
easy to manipulate.” Witnesses who may have been uncertain
about an identification will become more confident with positive
feedback that they have selected the right person, even though
nothing has changed to affect the accuracy of the identification.
The jury instructions included CALJIC No. 2.92, which
listed 12 factors to consider when assessing the accuracy of an
eyewitness identification, including the “extent to which the
witness is either certain or uncertain of the identification.”3 The
concluded the defendant forfeited a challenge to CALJIC
No. 2.92 by failing to request that the instruction be modified.
Here, Wilson’s claim is that the instruction was an incorrect
statement of law and deprived him of due process. In such
circumstances, the “failure to request clarification or
amplification of the instruction at issue does not result in a
forfeiture of his challenge.” (People v. Hudson (2006) 38 Cal.4th
1002, 1011; see also People v. Mitchell (2019) 7 Cal.5th 561, 579–
580 [failure to object does not result in forfeiture of a claim that
an instruction violated due process or other substantial rights];
Pen. Code, § 1259.)
3
The trial court introduced the factors by stating:
“Eyewitness testimony has been received in this trial for the
purpose of identifying the defendant as the perpetrator of the
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
trial court also instructed the jury on factors to consider in
determining the believability of witnesses generally and in
weighing expert testimony. In closing, the defense noted that
Richards expressed certainty in his identification in court, but
emphasized reasons the defense had offered to question whether
Richards was correct “even though he really believes it.” In
response, the prosecutor acknowledged that if “we had nothing
but the Richards I.D.” then “absolutely I would concede that it
is a very precarious identification.” The prosecutor referred to
Richards as a “weak or a susceptible witness” but argued that
evidence independently linking Wilson to the crime
corroborated and therefore strengthened Richards’s
identification testimony.
To evaluate Wilson’s claim that the jury instruction
resulted in the deprivation of federal due process, we consider
the instruction in the context of the trial record and the
instructions as a whole to determine whether the instruction
“ ‘ “so infuse[d] the trial with unfairness as to deny due process
of law.” ’ ” (People v. Lemcke (2021) 11 Cal.5th 644, 655
(Lemcke).) In Lemcke, we explained that a similar reference to
eyewitness certainty in CALCRIM No. 315 was “ ‘superficially
neutral,’ ” in that it does not direct jurors to presume an
identification is accurate if the eyewitness has expressed
certainty, but we recognized that the certainty language had the
potential to mislead jurors because it reinforced the common
misconception that certainty is related to greater accuracy.
crimes charged. In determining the weight to be given
eyewitness identification testimony, you should consider the
believability of the eyewitness as well as other factors which
bear upon the accuracy of the witness’ identification of the
defendant, including, but not limited to, any of the following.”
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
(Lemcke, at p. 657.) We held, however, that the instruction did
not violate the defendant’s due process rights, either by lowering
the prosecutor’s burden of proof or by denying a meaningful
opportunity to present a complete defense on the issue of
identity. Although the defendant’s conviction “was based almost
entirely on the testimony of a single witness who expressed
certainty in her identification and had no prior relationship with
the defendant” (id. at p. 666), the defendant was able to put on
a “vigorous defense on the issue of identity” (id. at p. 660). He
had an eyewitness identification expert testify about the weak
correlation between certainty and accuracy, he cross-examined
the eyewitness about inconsistencies in her identification and
account of the crime and cross-examined investigating officers
about potentially suggestive procedures used during initial
identifications. (Ibid.) Given that, and the other instructions
the jury received about evaluating the evidence, we concluded
that “listing the witness’s level of certainty as one of 15 factors
the jury should consider when evaluating an eyewitness
identification did not render [the defendant’s] trial
fundamentally unfair or otherwise amount to a due process
violation.” (Id. at p. 661.)
Wilson argues that Lemcke is not controlling here because
he is raising a different claim: Rather than arguing that the
instruction lowered the prosecution’s burden of proof or
interfered with the ability to present a defense on identity, he is
arguing that the instruction “materially impair[ed] the jury’s
ability to accurately find facts regarding an identification’s
reliability.” Another reason is that this case, in Wilson’s view,
involves a different set of circumstances from Lemcke. Wilson
contends that because Richards testified that he was “[v]ery
certain” when he identified Wilson in court, there was a risk the
26
PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
jury would infer accuracy from Richards’s certainty; that the
eyewitness identification was a critical component of the
prosecution case; and that Richards’s certainty was tainted by
suggestive identification procedures.
We are not convinced that this case calls for a different
analysis or result from Lemcke. The claim Wilson now raises,
about the interference with the jury’s consideration of the issue
of identity, arises from substantially similar circumstances as
Lemcke, which likewise involved an eyewitness who testified as
to the certainty of her identification despite circumstances
giving rise to reasonable questions, and it rests on the same core
argument as the claims we considered in Lemcke: that the
certainty language in the eyewitness instruction created a risk
that jurors would “infer that certainty is generally correlative of
accuracy.” (Lemcke, supra, 11 Cal.5th at p. 657.) And, as in
Lemcke, Wilson “was permitted to present” a substantial case
“to combat that inference.” (Id. at p. 658.) The defense in
Wilson’s case vigorously challenged Richards’s identification,
directly challenged the discrepancy between Richards’s
expressed certainty and evidence that he had difficulty making
an identification, and presented expert testimony explaining
why eyewitness confidence is not the same as accuracy. As a
result, the prosecutor acknowledged that Richards’s
identification standing alone was weak but gained strength
from corroborating evidence. Contrary to Wilson’s suggestion,
this corroborating evidence was substantial and was not limited
to testimony from Seeney and his girlfriend, whose motives the
defense questioned. The evidence included, for instance,
Wilson’s connection to the firearm used in the robbery and
attempted murder of Richards. Further, as in Lemcke, the jury
received standard instructions on how to evaluate and weigh the
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
evidence. (See id. at p. 658.) We therefore are not persuaded
that CALJIC No. 2.92 interfered with the jury’s ability to assess
the reliability of Richards’s identification, much less infused the
trial with such unfairness that it violated Wilson’s federal due
process rights.
Wilson argues in the alternative that the instruction
violated his state due process rights. As we have repeatedly
recognized, the state Constitution affords independent
protection from the federal Constitution. (See People v. Ramos
(1984) 37 Cal.3d 136, 153 [invalidating the so-called Briggs
Instruction in capital cases as “seriously misleading” and
inconsistent with the fundamental fairness guaranteed by the
state due process clause; disagreeing with the contrary holding
of the United States Supreme Court under the federal due
process clause].) Here, however, “listing the witness’s level of
certainty as one of [12] factors the jury should consider when
evaluating an eyewitness identification” did not render Wilson’s
trial “fundamentally unfair” under either the state or the federal
Constitution. (Lemcke, supra, 11 Cal.5th at p. 661.) To the
extent that Wilson also asserts that the instruction was a
violation of state law that did not rise to the level of
constitutional error, he has not established it was “reasonably
probable that the jury here was misled to [his] detriment.”
(People v. Beltran (2013) 56 Cal.4th 935, 956.) As indicated, the
prosecutor acknowledged that the defense succeeded in
significantly undermining Richards’s identification and urged
the jury to convict Wilson on the basis of other evidence of his
guilt that corroborated Richards’s identification. It is not
reasonably probable that the instruction caused jurors to rely
instead on Richards’s expression of certainty in reaching their
verdict.
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
B. Identification Impeachment
As we have discussed, the defense questioned the
reliability of Richards’s identification by presenting evidence
that Richards may have viewed three photo lineups: one that
did not contain Wilson’s photo; a second from which Richards
selected Wilson’s photo; and a third, later found in the
prosecution files, that also contained Wilson’s photo. The
defense theorized that the third photo lineup could have been
shown to Richards before he saw the lineup from which he
identified Wilson. As noted, however, Detective Franks testified
that he never showed Richards the third photo lineup found in
the prosecution’s files. During the first trial, the defense
attempted to impeach Detective Franks by presenting evidence
of two work-related incidents involving dishonesty. At the
retrial, however, the trial court excluded that impeachment
evidence under Evidence Code section 352. Wilson claims the
ruling excluding the impeachment evidence was an abuse of
discretion and a violation of his constitutional rights.
Ultimately, we do not need to resolve this issue because any
error was harmless beyond a reasonable doubt.
1. Background
In an interview with a defense investigator less than two
weeks after he identified Wilson in a photo lineup, Richards
explained that detectives showed him one lineup and, a couple
of days later, came back and showed him a second set of pictures;
he confirmed that he identified Wilson’s photograph in the
second lineup. During the preliminary hearing several months
later and again in the first trial, Richards testified that he
believed he viewed three photo lineups and did not identify
anyone during the first two, though he also expressed some
uncertainty about whether there were two or three lineups. In
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
its opposition to the motion to exclude Richards’s identifications,
the prosecution stated that Richards identified Wilson “at the
third of three photo lineups that law enforcement showed to
him” and the defense later found a third photo lineup in the
prosecution files. The third lineup included Wilson’s
photograph but was not the same as the lineup from which
Richards had made his identification. The defense introduced
the third, late-discovered lineup into evidence as Exhibit 147.
In the first trial, the defense called Detective Franks to
describe administering the photo lineup to Richards. Detective
Franks did not take part in the first photo lineup, from which no
identification was made. Detective Franks went alone to
Richards’s home to show him the second photo lineup, from
which Richards identified Wilson. Detective Franks testified
that he never showed Exhibit 147, the third photo lineup, to
Richards because the supervising sergeant did not think it was
a fair lineup.
During his testimony, the defense confronted Detective
Franks with statements he made about administering the
lineup that were later shown to be inaccurate. For example, in
a prior proceeding Detective Franks said that he told Richards
to take his time making his identification and denied
commenting on position number five (Wilson’s position). In a
tape recording of the lineup, however, Detective Franks did not
tell Richards to take his time and mentioned position number
five multiple times, asking Richards if he was pointing to
number five, for example, and telling him to circle number five
after selecting it. The defense also asked Detective Franks
about two instances of misconduct that had occurred in the
previous year. Regarding the first incident, Detective Franks
admitted that he had falsely claimed to be a detective from a
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
different police department to gain access to a private home and,
once found out, lied to detectives from the other jurisdiction
about his reasons for doing so. Detective Franks also admitted
to a second incident in which he violated department rules by
moonlighting as a security guard and failing to be available
within 30 minutes while on call; he acknowledged that when
confronted with the violations, he lied to his department
supervisors about his actions.
Before the retrial, the prosecution moved to exclude the
evidence of Detective Franks’s misconduct. The prosecutor
argued the evidence of misconduct was unrelated to Detective
Franks’s work on Wilson’s case; that it was “incendiary” and
would distract the jury, “particularly jurors that have a
resentment toward law enforcement or an inclination to believe
that law enforcement does stuff like this all the time”; and that
it would improperly discredit the entire law enforcement
investigation. Defense counsel argued that the impeachment
evidence was critical to the defense theory that Richards had
been shown the third photo lineup and failed to select Wilson,
undermining the value of his later photo identification. Without
the impeachment evidence, Detective Franks would refute the
defense theory by saying there were only two lineups “and the
jury will then sit there without knowing that Detective Franks
has done other things that are dishonest” and “will tend to
believe him.” The trial court acknowledged the impeachment
evidence had “some probative value” but nonetheless excluded
the evidence out of concern that “if we dirty Detective Franks
enough, maybe some of that dirt is going to rub off on other
investigators or other officers that participated in this
investigation when there’s really no evidence that that was the
case.”
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
During the retrial, Richards testified that he
“chitchatt[ed]” with the perpetrator the entire ride and had
“ample opportunity” to see his face. Richards repeated the
description he had given to police at the scene — of a Black male
in his 30s, with short hair and pock-marked skin, about six feet
tall and 220 pounds, wearing a light-colored ski jacket — and
described the weapon the perpetrator had used. In describing
his later identification of Wilson, Richards testified that he
could not remember whether he had seen two photo lineups or
three. Sergeant Robert Dean, who supervised the preparation
and conduct of the photo lineups, testified that three photo
lineups were prepared but that he instructed Detective Franks
not to use one of them, which had been marked as Exhibit 147,
because the other subjects in the lineup did not look enough like
Wilson. Sergeant Dean explained that officers ordinarily made
a notation on lineups after showing them to a witness; the fact
that Exhibit 147 did not contain such a notation suggested it
had not been shown to Richards. Detective Franks also testified
that he did not show the unauthorized lineup to Richards. As in
the first trial, the defense attempted to impeach Detective
Franks with his prior description of admonishments to Richards
that, upon review of the tape-recorded lineup, was shown to be
inaccurate. The prosecutor in response suggested the
inconsistency was the result of a common, good-faith tendency
of witnesses to provide their best recollection rather than
confess they did not recall events perfectly.
The defense also presented evidence that Richards could
have seen Wilson’s image in the news before making his
identification. Detectives on the case had prepared a “wanted”
bulletin with Wilson’s photo on it. The sergeant in charge of the
investigation could not be sure whether it had been
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
disseminated to the public and did not recall whether Wilson’s
picture had been shown on television or printed in the
newspapers. Just after Wilson was arrested in Ohio, he said he
had been told his picture was “all over” the television and in the
newspapers and Detective Franks told Wilson that investigating
officers had asked the news to cover the fact that Wilson was
wanted for murder. Richards had testified that he saw
information about the murders in the news that prompted him
to contact the police, and the defense observed that Richards
identified Wilson in the photo lineup sometime after seeing the
news reports.
2. Discussion
A witness may be impeached with evidence of a prior
conviction or other conduct involving dishonesty or otherwise
demonstrating moral turpitude, subject to the trial court’s
exercise of discretion under Evidence Code section 352. (People
v. Wheeler (1992) 4 Cal.4th 284, 290–296; see People v. Clark
(2011) 52 Cal.4th 856, 931.) Section 352 permits courts to limit
such evidence if its probative value is substantially outweighed
by the probability that it will consume undue time or create a
substantial danger of undue prejudice, confusing the issues, or
misleading the jury. (Evid. Code, § 352.)
Here, Wilson claims that excluding the evidence of
Detective Franks’s dishonesty constituted both an abuse of
discretion under Evidence Code section 352 and a violation of
his Sixth Amendment right to confront witnesses against him.
(See People v. Quartermain (1997) 16 Cal.4th 600, 623 [“[T]he
right of confrontation includes the right to cross-examine
adverse witnesses on matters reflecting on their credibility,”
although “ ‘trial judges retain wide latitude insofar as the
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
Confrontation Clause is concerned to impose reasonable limits
on such cross-examination’ ” consistent with Evid. Code, § 352].)
Wilson asserts that the exclusion also violated his constitutional
rights to present a defense, to due process, and to reliable guilt
and penalty determinations. 4
Although the trial court has considerable discretion to
decide whether to admit or exclude impeachment evidence
(People v. Clark, supra, 52 Cal.4th at p. 932), it is questionable
whether the trial court appropriately exercised its discretion to
forbid the introduction of prior instances of Detective Franks’s
dishonesty. As an initial matter, the trial judge remarked that
when he listened to the evidence in the first trial it did not seem
particularly relevant. But the relevance of the evidence was not
difficult to discern: To explain Richards’s recollection of having
seen three photo lineups and the existence of Exhibit 147, the
defense theorized that Detective Franks could have shown
Richards an unauthorized lineup and then lied about it to his
supervisors and to the jury. Proof that the detective had
recently flouted the constraints of his position and then lied
4
The Attorney General argues that Wilson forfeited his
constitutional claims by failing to raise them below. At trial,
Wilson argued that the jury would tend to believe Detective
Franks when he denied showing Richards an unauthorized
lineup, and Wilson would be unable to offer a significant reason
to doubt the detective’s credibility. Although counsel did not
specifically invoke the Sixth Amendment, due process, or
constitutional reliability concerns, his argument emphasized
the probative value of the impeachment evidence and its
relation to the defense and “ ‘called upon the trial court to
consider the same facts and to apply a legal standard similar to
that which would also determine the claim raised on appeal.’ ”
(People v. Partida (2005) 37 Cal.4th 428, 436.) The claim is
therefore preserved.
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Opinion of the Court by Kruger, J.
about it to his superiors and other law enforcement officials
would have been relevant to the jury in evaluating the defense
theory. Without disputing the relevance of the evidence, the
prosecutor sought to exclude it on the ground that it would be
“incendiary” and would distract jurors. The trial judge agreed
on this point, citing a risk that evidence of the misconduct would
cast all law enforcement in a bad light: The court observed that
if the defense were to “dirty Detective Franks enough” it could
color the jury’s view of other aspects of the police investigation.
This concern, however, could broadly apply to any evidence
presented to impeach the conduct of investigating officers.
Here, there was nothing incendiary or unduly distracting in the
evidence; nor is there a clear basis for concern that the jury
would be unable to differentiate between evidence bearing on
Detective Franks’s instances of dishonesty to his superiors and
the competence and integrity of other law enforcement officers
not involved in those instances.
Ultimately, however, we conclude that any error in the
trial court’s decision to exclude the impeachment evidence is not
grounds for reversal. Even assuming for the sake of argument
that the trial court violated Wilson’s constitutional rights as
well as committing an error of state evidentiary law, the error
was harmless beyond a reasonable doubt. (Chapman v.
California (1967) 386 U.S. 18, 24.)
Despite the exclusion of evidence to impeach Detective
Franks’s testimony about the third photo lineup, the defense
vigorously attacked the reliability of Richards’s photo
identification and continued to pursue the theory that Richards
saw a photo of Wilson before identifying him. The defense
presented evidence of a third lineup containing Wilson’s photo,
and although Detective Franks stated that he did not show it to
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Opinion of the Court by Kruger, J.
Richards, Richards remained uncertain whether he had seen it.
There was also evidence that Wilson’s photo may have been
broadcast to the public when he was being sought in connection
with the Dominguez and Henderson murders; the fact that
Richards had been following news of the murders raised the
possibility he could have been exposed to Wilson’s photo in that
context as well. In addition to evidence that Richards may have
seen another photo of Wilson, the defense presented lengthy
expert testimony on the fallibility of eyewitness memory and
emphasized evidence that Richards was not able to pick Wilson
out of a live lineup. Commenting on the fact that Richards at
one point suspected someone who did not look much like Wilson,
the defense expert suggested that Richards might not have
actually remembered what the perpetrator looked like when he
identified Wilson in the photo lineup. Thus, even without
additional impeachment, the defense was able to significantly
undermine the reliability of Richards’s photo identification. The
prosecution so acknowledged to the jury: At the conclusion of
the case, the prosecutor said of Richards’s photo identification
that “absolutely I would concede that it is a very precarious
identification scenario.” The prosecutor nonetheless went on to
argue that the evidence corroborating the photo identification
was strong.
Given the other evidence of Wilson’s responsibility for the
crimes against Richards, any error in excluding the
impeachment evidence was harmless beyond a reasonable
doubt. On the night of the crimes — long before the photo
lineups — Richards had described his assailant as a Black man
in his 30s, about six feet tall and 220 pounds, with short hair
and pock-marked skin. Wilson, who is Black, was 25 at the time,
was just over six feet tall, weighed 225 pounds, and had short
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PEOPLE v. WILSON
Opinion of the Court by Kruger, J.
hair and pock-marked skin. Richards also claimed that when he
saw a picture of Wilson, it was Wilson’s distinctive smirk that
caught his attention, because he remembered seeing the same
smirk on the night of the crimes. These aspects of Richards’s
description suggested that immediately following the incident
he had some recollection of the perpetrator and his
distinguishing features; that recollection was independent of the
photo lineup that occurred nearly two months later. (Cf. United
States v. Crews (1980) 445 U.S. 463, 473 [finding witness’s in-
court identification was based on an independent recollection of
her assailant from their initial encounter and not on subsequent
identification procedures].) Although the description was a
general one, the other potential suspects, Seeney and Brad
McKinney, were both just 18, and smaller, with no suggestion
they had blemishes similar to Wilson’s. Given the limited
number of suspects, it was significant that Richards’s
description resembled Wilson and not Seeney or McKinney.
Furthermore, although the defense had vigorously challenged
the photo identification, it did not counter the significance of
Richards describing his assailant immediately after the robbery
and attempted murder.
In addition, there was considerable additional evidence to
demonstrate Wilson’s connection to the robbery and attempted
murder of Richards. Evidence showed that the .22 pistol used
against Richards was one of several guns taken in a home
burglary and that Wilson later sold a rifle from the same stolen
collection; in an interview with detectives after his arrest,
Wilson admitted using a .22 pistol; Richards picked up his
assailant across the street from the motel where Wilson’s
mother was living and Wilson had visited her just before that;
authorities recovered Richards’s abandoned taxicab one street
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Opinion of the Court by Kruger, J.
away from Wilson’s apartment; the rural area in Bloomington
where the crime occurred was familiar to Wilson because his
grandparents lived nearby; and evidence connected Wilson to
the commission of a murder in exactly the same location a month
and a half later. The jury also heard from both Seeney and his
girlfriend that Wilson had admitted robbing Richards and
trying to kill him. The defense argued that both had an
incentive to implicate Wilson and protect Seeney, who had been
stealing guns with Wilson, lived in the same apartment with
him, had the same mother, and might also have been related to
the family in Bloomington. But the jury did not have to rely on
Seeney and Woodruff’s testimony to conclude that Richards’s
contemporaneous description of his assailant matched Wilson
(and not Seeney) and that other evidence linking Wilson to the
crimes against Richards was substantial. Notably, the
prosecution did not present Detective Franks as a witness for
any element of the case against Wilson; his testimony for the
defense, and his credibility as to whether Richards ever viewed
a third lineup, were ultimately not central to the case. In sum,
any error in preventing the jury from hearing evidence tending
to impeach Detective Franks’s testimony about the third photo
lineup was harmless beyond a reasonable doubt.
C. Seeney’s Preliminary Hearing Testimony
Wilson raises a series of objections to the presentation of
Seeney’s preliminary hearing testimony at the retrial. Although
the trial court did err in one respect, by excluding later out-of-
court statements casting doubt on aspects of Seeney’s
preliminary hearing testimony, there was no reversible error.
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1. Background
Seeney was arrested and interrogated in Ohio before being
transported to California and questioned further. During the
Ohio interrogation, officers accused Seeney of lying when he
claimed no knowledge of the murders under investigation; they
stressed that he was facing decades of incarceration for the
crimes and said that telling them what he knew was “the only
thing that’s going to save your butt.” Seeney made no
inculpatory statements during the questioning.
Later, after Seeney was transported to California,
detectives emphasized the potential of leniency, suggesting that
Seeney might avoid punishment for violating his probation if he
told them what he knew about the robbery murders. Detective
Chris Elvert testified that he confronted Seeney with details
about the murder weapon, a .44 revolver, and told Seeney about
information Seeney’s girlfriend, Phyllis Woodruff, had already
provided.5 Specifically, Woodruff had said that Seeney was
present when she saw Wilson with a large gun like a .44
revolver. During the interrogation, Detective Elvert told Seeney
that if he were telling the truth, “ ‘[y]ou’re going to see your
brother with a gun.’ ” When Seeney responded, “ ‘what am I
going to get out of this?’ ” Detective Elvert observed that Seeney
was only being held on a probation violation and said the
detectives were “ ‘still investigating to determine what
happened.’ ” Detective Elvert stated that he had confronted
Seeney with his girlfriend’s statements because Seeney was
“ ‘very cautious’ ” about providing information about his brother.
The detective also acknowledged telling Seeney that he planned
5
The interview in which this transpired is not part of the
record.
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Opinion of the Court by Kruger, J.
to tell Seeney’s probation officer whether Seeney had been
truthful.
Seeney eventually said that he had seen Wilson with a .44
revolver before the murders. He told the California detectives
that he had been committing burglaries with Wilson and later
pointed out the houses they had targeted; detectives were then
able to verify burglaries and stolen property from those
addresses. Seeney also claimed that Wilson told him that he
planned to rob some cab drivers, that Wilson described his gun
jamming when he tried to shoot one victim before taking his
taxi, and that Wilson later admitted killing two other cab
drivers.
Seeney testified for the prosecution at the preliminary
hearing. At the hearing, Seeney appeared to be a reluctant
witness. Much of the direct examination involved leading
questions by the prosecution, which Seeney answered with brief
affirmative responses. Seeney denied that Wilson made some of
the incriminating statements the prosecutor sought to elicit,
even though Seeney had previously repeated some of those
statements when speaking to detectives. On cross-examination,
Seeney stated that he felt the detectives had tried to scare him
into cooperating. Detective Elvert testified that during Seeney’s
interrogation, detectives provided Seeney “small pieces of
evidence” from the investigation to “encourage him to tell us the
truth.”
Seeney testified that when first questioned, he lied to
detectives when he denied knowing anything about the crimes;
he was later willing to say that “maybe” he saw his brother with
a .44 revolver after detectives told him they already learned that
fact from Seeney’s girlfriend. Seeney denied that Wilson
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Opinion of the Court by Kruger, J.
admitted using Dominguez’s cell phone, stating “[t]hat is what
the detectives told me.” Seeney also denied that Wilson showed
him a wallet stolen from Richards, said that Wilson did not tell
him what he had done to Richards, and claimed not to know
what Wilson did with the gun he used in the Richards robbery;
in each of these instances, the prosecutor corrected Seeney’s
testimony by referencing incriminating details from Seeney’s
interrogation.
Ultimately, although Seeney backtracked on some of the
information, Seeney testified that Wilson described several
details from robbing and attempting to kill Richards and
confessed the murders to Seeney on two occasions.
After the preliminary hearing but before the first trial,
Wilson’s investigator interviewed Seeney. The interview
focused on Seeney’s interactions with detectives during his
interrogations in Ohio and California. When asked whether the
detectives had pressured him to say things that were not true,
Seeney answered, “Some of it. . . . [¶] . . . [¶] . . . I’m not
saying — he really didn’t tell me a lot of — he didn’t really tell
me all them things. He didn’t really tell me all of them.” The
defense investigator then asked Seeney, “How did you know
what to say?” and Seeney claimed that he had only repeated
facts the detectives had given him about the investigation.
When asked whether he gave truthful information about the
guns and Wilson’s statements, Seeney said that his girlfriend
had already told detectives that she and Seeney had seen Wilson
with a gun and had described it; Seeney told the defense, “So I’m
like — and, see, that’s what really had me screwed right
there. . . . I mean, she’s saying I did, I mean, and we was all
right there so, I mean, but — but, I mean, that’s it.” The
remainder of the interview focused on whether Seeney had seen
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Wilson with a .44 revolver. Seeney first said he did not know
guns, could not say whether the gun he saw was a .44, “[i]t could
have been a shotgun,” but then said he had not seen anything
like the investigator’s rough drawing and description of a .44
revolver. Seeney said that the only gun he had seen was a
“deuce five,” a small pistol he saw in the possession of either
Brad or Cory McKinney.
2. Asserted coercion
Because he invoked his Fifth Amendment privilege,
Seeney was unavailable to testify for the trial or retrial.6 Before
trial, Wilson moved to exclude Seeney’s statements and
preliminary hearing testimony. In particular, he argued that
Seeney’s statements to law enforcement officers were coerced.
This coercion, he argued, tainted Seeney’s preliminary hearing
testimony because Seeney had entered an immunity agreement
with the People based on his “anticipated” testimony. The trial
court denied the motion and Seeney’s preliminary hearing
testimony was read during the trial and retrial. Wilson now
contends the trial court erred in denying the motion.
“Defendants have limited standing to challenge the trial
testimony of a witness on the ground that an earlier out-of-court
statement made by the witness was the product of police
coercion. Indeed, defendants generally lack standing to
complain that a police interrogation violated a third party
6
Although Seeney was given immunity to testify, he may
have been advised to invoke his Fifth Amendment privilege for
the later proceedings to avoid questioning that might expose
him to accusations of having committed perjury during the
preliminary hearing (conduct that would not have been covered
by the immunity agreement).
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witness’s Fifth Amendment privilege against self-incrimination
or Sixth Amendment right to counsel . . . . [Citation.] A
defendant may assert a violation of his or her own right to due
process of the law and a fair trial based upon third party witness
coercion, however, if the defendant can establish that trial
evidence was coerced or rendered unreliable by prior coercion
and that the admission of this evidence would deprive the
defendant of a fair trial.” (People v. Williams (2010) 49 Cal.4th
405, 452–453.) “The burden rests upon the defendant to
demonstrate how the earlier coercion ‘directly impaired the free
and voluntary nature of the anticipated testimony in the trial
itself’ [citation] and impaired the reliability of the trial
testimony.” (Id. at p. 453.) On appeal, “we independently
review the entire record to determine whether a witness’s
testimony was coerced, so as to render the defendant’s trial
unfair. [Citation.] In doing so, however, we defer to the trial
court’s credibility determinations, and to its findings of physical
and chronological fact, insofar as they are supported by
substantial evidence.” (People v. Boyer (2006) 38 Cal.4th 412,
444.)
When “assessing allegedly coercive police tactics, ‘[t]he
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,’ ”
and have explained that “[w]hether a statement is voluntary
depends upon the totality of the circumstances surrounding the
interrogation.” (People v. Smith (2007) 40 Cal.4th 483, 501.)
Here, drawing on People v. Brommel (1961) 56 Cal.2d 629,
Wilson claims the interrogations were coercive because some
officers threatened Seeney with a lengthy prison term and
others offered him leniency. In Brommel, the defendant had
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Opinion of the Court by Kruger, J.
“persistently and consistently insisted” that he was not guilty
throughout a lengthy interrogation. (Brommel, at p. 633.)
Officers then threatened to inform the sentencing judge the
defendant was a liar, suggesting it would ensure a harsh
sentence and foreclose any leniency. (Id. at pp. 633–634.) The
defendant finally confessed. We concluded the confession was
coerced under the circumstances, based on, among other things,
the implied promise of leniency if he “told the officers the story
that they were insisting that he tell them.” (Id. at p. 634.)
This case does not involve circumstances comparable to
those in Brommel. Ohio officers accused Seeney of lying,
emphasized the punishment Seeney could face for the crimes
under investigation, and suggested he could avoid that fate by
telling them what he knew. California officers similarly implied
that Seeney could avoid some of his legal troubles by providing
them with information about the crimes. Wilson adds that
Seeney was 18 when he was interrogated, suggesting his youth
made him more vulnerable to coercion. Under our precedent,
however, none of the circumstances Wilson has identified
amounts to unlawful coercion. We have said that officers may
“exhort a suspect to tell the truth and repeatedly express that
they believe a suspect is lying.” (People v. Battle (2021) 11
Cal.5th 749, 791.) Accusing Seeney of lying or withholding
information, without more, did not “rise to the threshold
necessary to taint the interrogation as unlawful.” (People v.
Spencer (2018) 5 Cal.5th 642, 674.) Furthermore, there “ ‘is
nothing improper in confronting a suspect with the predicament
he is in, or with an offer to refrain from prosecuting the suspect
if he will cooperate with the police investigation.’ ” (People v.
Badgett (1995) 10 Cal.4th 330, 355.) “ ‘We have never held . . .
that an offer of leniency in return for cooperation with the police
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renders a third party statement involuntary or eventual trial
testimony coerced.’ ” (People v. Smith (2018) 4 Cal.5th 1134,
1170.) Finally, although Seeney was young at the time of the
interrogations, he did have prior experience in the criminal
justice system and Wilson does not claim that interrogating
officers attempted to exploit his youth in any way. (See People
v. Dykes (2009) 46 Cal.4th 731, 754; People v. Winbush (2017) 2
Cal.5th 402, 453.)
Wilson also asserts that Seeney’s statements were coerced
because the detectives told him what to say about seeing his
brother with a gun. Wilson’s argument refers to the exchange
during which detectives recounted what Woodruff had already
told them — including that Seeney was present when she saw
Wilson with a large gun like a .44 revolver — and told Seeney
that if he were telling the truth, “[y]ou’re going to see your
brother with a gun.” Wilson contends the detectives coerced his
statement about seeing Wilson with a gun by using threats and
promises “ ‘to establish a predetermined set of facts.’ ” “Threats
of punishment for failure to conform a statement to the police
theory . . . may constitute coercion and, under some
circumstances, produce an unreliable statement.” (People v.
Smith, supra, 4 Cal.5th at p. 1169.) Here, when Seeney
hesitated to say he saw the gun and asked what he was going
“ ‘to get out of this,’ ” Detective Elvert responded that Seeney
was only being held on a probation violation and the detectives
were “ ‘still investigating to determine what happened.’ ” But
this response, and the detective’s comment that he would tell
Seeney’s probation officer whether Seeney was telling the truth,
was neither a threat nor a promise of leniency. Further,
understood in context, it appears the detective’s statement that
“[y]ou’re going to see your brother with a gun” was meant to
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Opinion of the Court by Kruger, J.
confront Seeney with information gleaned from another source;
in particular, detectives were asking Seeney to address
information the detectives had already obtained from Woodruff.
Although the statement was phrased provocatively, the record
does not establish that the statement rises to the level of
impermissible coercion. As we have previously explained, “an
interrogation may include ‘ “exchanges of information,
summaries of evidence, outline of theories of events,
confrontation with contradictory facts, even debate between
police and suspect.” ’ ” (People v. Spencer, supra, 5 Cal.5th at
p. 674.) To the extent Wilson argues that Seeney’s statements
to the detectives should have been excluded, we conclude that
they were not coerced and that any reference to them during
Seeney’s testimony did not render Wilson’s trial unfair.
Wilson’s primary argument concerns the admissibility in
Wilson’s retrial of the testimony Seeney ultimately gave at the
preliminary hearing. Even if Seeney’s interrogation were
coercive, Wilson would have to show that any coercion carried
over to Seeney’s preliminary hearing testimony. (People v.
Williams, supra, 49 Cal.4th at p. 453; People v. Smith, supra, 4
Cal.5th at p. 1170.) He has not made that showing.
Wilson relies on Seeney’s immunity agreement, which he
argues improperly pressured Seeney to repeat his assertedly
coerced statements. (See In re Masters (2019) 7 Cal.5th 1054,
1085 [it is coercive “for an agreement to require that the witness
testify consistently with a previous statement to the
authorities”].) Certainly, the agreement contained no such
express requirement. In the petition for an order granting
Seeney immunity, the prosecutor did generally outline Seeney’s
anticipated testimony, which was based on the statements he
had given detectives. But the immunity agreement itself merely
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Opinion of the Court by Kruger, J.
stated that Seeney would “ ‘answer such questions and produce
such evidence in the case as may be material, competent, and
relevant to the case.’ ”
Wilson contends that Seeney nonetheless faced implicit
pressure to conform his testimony to prior statements. To
support the argument, Wilson points out that during the
hearing on the motion to exclude his testimony, Seeney invoked
his Fifth Amendment privilege against self-incrimination when
asked whether his preliminary hearing testimony was true.
Wilson suggests this episode shows that Seeney may not have
given truthful testimony at the preliminary hearing. But even
if we were to assume that to be the case, Wilson has not shown
that the cause was implicit pressure to repeat what he had
previously told detectives. Again, the immunity agreement
required only that Seeney provide material, competent, and
relevant testimony. “[A]lthough there is a certain degree of
compulsion inherent in any plea agreement or grant of
immunity” (People v. Allen (1986) 42 Cal.3d 1222, 1252), there
is no indication Seeney was “ ‘under a strong compulsion to
testify in a particular fashion’ ” (id. at p. 1251). For that reason,
and because there was no evidence of prior coercion that could
have rendered his testimony unreliable in any event (People v.
Williams, supra, 49 Cal.4th at p. 453), admission of the
testimony did not violate Wilson’s rights to due process and a
fair trial.
3. Admissibility of statements to the defense
During the retrial, Wilson sought to introduce a portion of
Seeney’s interview with a defense investigator in which Seeney
claimed he had not seen Wilson with a gun as he testified in the
preliminary hearing. The defense argued the statements were
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Opinion of the Court by Kruger, J.
admissible as a declaration against interest under Evidence
Code section 1230, inasmuch as they suggested that Seeney
committed perjury during the preliminary hearing, and as an
inconsistent statement under Evidence Code sections 1235 and
770. The defense also argued that if not offered for their truth,
the statements were at least admissible to impeach Seeney’s
prior testimony.
The trial court rejected each of the defense arguments.
Regarding whether the statements were against Seeney’s
interest, the trial court observed that members of the defense
had not asked Seeney about his testimony; the focus of the
interview was Seeney’s interaction with the police and any fear
and coercion he might have experienced. In that context,
viewing the circumstances both objectively and from Seeney’s
perspective, the court reasoned that a person in Seeney’s
position would not have realized that his statements might
subject him to charges of perjury. The trial court rejected
Wilson’s claim that the statements could come in for their truth
as inconsistent statements because Evidence Code section 1235
allowed for the admission of prior inconsistent statements and
Evidence Code section 770 made that admission dependent on
the witness’s opportunity to respond to the inconsistencies;
Seeney’s statements, made after his testimony and when he was
unavailable as a witness, did not fit within that exception. The
trial court also reasoned that Evidence Code section 770
prevented the admission of Seeney’s statements for the limited
purpose of impeachment because the prosecution would not
have an opportunity to examine Seeney about them. Wilson
asserts that the trial court erred in excluding the statements.
Hearsay statements are generally inadmissible under
state law (Evid. Code, § 1200, subd. (b)), but there is an
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exception allowing admission of a statement that when made “so
far subjected [the declarant] to the risk of civil or criminal
liability, or so far tended to render invalid a claim by him
against another, or created such a risk of making him an object
of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the
statement unless he believed it to be true.” (Id., § 1230.) “As
applied to statements against the declarant’s penal interest, in
particular, the rationale underlying the exception is that ‘a
person’s interest against being criminally implicated gives
reasonable assurance of the veracity of his statement made
against that interest,’ thereby mitigating the dangers usually
associated with the admission of out-of-court statements.”
(People v. Grimes (2016) 1 Cal.5th 698, 711.)
“To demonstrate that an out-of-court declaration is
admissible as a declaration against interest, ‘[t]he proponent of
such evidence must show that the declarant is unavailable, that
the declaration was against the declarant’s penal interest when
made and that the declaration was sufficiently reliable to
warrant admission despite its hearsay character.’ [Citation.] ‘In
determining whether a statement is truly against interest
within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take
into account not just the words but the circumstances under
which they were uttered, the possible motivation of the
declarant, and the declarant’s relationship to the defendant.’ ”
(People v. Grimes, supra, 1 Cal.5th at p. 711.)
Another exception to the general hearsay rule applies to
statements that are inconsistent with a witness’s trial
testimony. (Evid. Code, § 1235.) Such statements are
admissible for their truth only when the witness has been given
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“an opportunity to explain or to deny the statement” or is still
subject to providing further testimony, unless “the interests of
justice otherwise require.” (Id., § 770, subd. (a); id., § 1235 [a
statement inconsistent with trial testimony must be offered in
compliance with Evid. Code, § 770].) When an inconsistent
statement is not offered for its truth, but to impeach the
credibility of a hearsay declarant, different rules apply. In that
circumstance, “[e]vidence of a statement or other conduct by a
declarant that is inconsistent with a statement by such
declarant received in evidence as hearsay evidence is not
inadmissible for the purpose of attacking the credibility of the
declarant though he is not given and has not had an opportunity
to explain or to deny such inconsistent statement or other
conduct.” (Id., § 1202.) Specifically, inconsistent statements
may be used to impeach the former testimony of a witness who
is no longer available to testify if the statements were made
after the testimony occurred. (Cal. Law Revision Com. com.,
29B West’s Ann. Evid. Code (2015 ed.) foll. § 1202, p. 59; People
v. Blacksher (2011) 52 Cal.4th 769, 806.)
On appeal, Wilson renews his argument that Seeney’s
statements were admissible as a declaration against interest.7
Wilson reasons that Seeney’s statements amounted to an
admission that he had lied at the preliminary hearing under
oath. Setting aside the merits of the characterization for the
moment, the pertinent question for purposes of Evidence Code
section 1230 is whether “a reasonable person in [Seeney’s]
position would have believed” that his statements to the defense
investigator could expose him to prosecution for perjury. (People
7
He does not renew his claim that the statement should
have been admitted as a prior inconsistent statement.
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Opinion of the Court by Kruger, J.
v. Grimes, supra, 1 Cal.5th at p. 712.) Seeney had testified
against his brother, implicating him in two murders and an
attempted murder; he spent much of the subsequent interview
with the defense investigator discussing his interaction with the
police and explaining that he had given them information about
Wilson because he was scared, felt pressured by the detectives,
and only provided information they already had. Contrary to
Wilson’s assertion, Seeney did not recant all, or even a
significant portion of, his preliminary hearing testimony. It is
not surprising then, that Seeney exhibited neither awareness
nor concern that his statements to the defense investigator
might expose him to potential perjury charges. And without this
awareness, the rationale for the exception — that a person’s
interest in avoiding criminal liability provides assurance of the
veracity of a statement against that interest (id. at p. 711) — is
lacking. The trial court did not abuse its discretion when it
concluded that Seeney’s efforts to disavow his damaging
statements to the police in this context were not likely made
with the possibility of perjury charges in mind, and therefore
were not admissible as statements against the declarant’s
interest.
In the alternative, Wilson argues that Seeney’s
statements to the defense should have been admitted for
impeachment purposes under Evidence Code section 1202. The
Attorney General argues this issue is forfeited because counsel
did not expressly invoke Evidence Code section 1202. We are
not persuaded: An issue is preserved for appeal if “[t]he
substance, purpose, and relevance of the excluded evidence was
made known to the court by the questions asked, an offer of
proof, or by any other means.” (Evid. Code, § 354, subd. (a).)
Construing this provision “reasonably, not formalistically”
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(People v. Partida, supra, 37 Cal.4th at p. 434), Wilson did not
forfeit the issue; although Wilson may not have expressly
invoked section 1202, he did ask the court to admit the evidence
for impeachment purposes. That suffices to preserve the claim.
On the merits, we conclude that Seeney’s statements to
the defense were admissible impeachment under Evidence Code
section 1202. In ruling otherwise, the trial court reasoned that
Evidence Code section 770 prohibited introduction of the
statements for impeachment absent an opportunity for the
witness to explain or deny the statement. That prohibition,
however, applies only to the statements of a witness who
actually testifies at trial. (People v. Blacksher, supra, 52 Cal.4th
at p. 806.) Seeney was not available for the retrial and so did
not testify; instead, his testimony from the preliminary hearing
was read to the jury. (See Evid. Code, § 1291 [providing a
hearsay exception for the introduction of former testimony by an
unavailable declarant].) The rule for nontestifying declarants is
different: Evidence Code section 1202 allows a party to
challenge the credibility of hearsay evidence — including,
specifically, “hearsay evidence in the form of former
testimony” — “with evidence of an inconsistent statement made
by the hearsay declarant after the former testimony was given,
even though the declarant was never given an opportunity to
explain or deny the inconsistency.” (Cal. Law Revision Com.
com., reprinted at 29B pt. 4 West’s Ann. Evid. Code, supra, foll.
§ 1202, p. 59; see Blacksher, at p. 806 [statements were
admissible under Evid. Code, § 1202 to impeach the former
testimony of a witness who did not testify at trial].)
Here, Wilson sought to impeach Seeney’s former
testimony with statements made to a defense investigator after
the former testimony was given. Seeney indicated that he was
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not entirely truthful when speaking to detectives about Wilson’s
involvement in the crimes; for example, although he told
detectives that he saw Wilson with a .44 revolver and later
testified to that fact, Seeney told the defense investigator that
he had never seen Wilson with that, or any other, type of gun.
Evidence Code section 1202 authorized the introduction of
Seeney’s inconsistent statements for impeachment purposes,
and the trial court erred in concluding otherwise. (See People v.
Grimes, supra, 1 Cal.5th at p. 712 [a trial court abuses its
discretion when it issues an evidentiary ruling based on a
misunderstanding of the governing law].)8
Although we hold the trial court abused its discretion in
excluding the impeachment evidence, the error was one of state
law and not a violation of Wilson’s constitutional rights. Wilson
claims that the exclusion violated his right to present a defense,
which in turn infringed on his rights to a fair trial and reliable
guilt and penalty determinations. “Under federal law, a denial
of the right to present a defense occurs when . . . ‘[t]he exclusions
of evidence . . . significantly undermined fundamental elements
of the accused’s defense.’ ” (People v. Capers (2019) 7 Cal.5th
989, 1008.) A court’s application of ordinary rules of evidence
generally does not impermissibly infringe on a defendant’s right
to present a defense. (People v. Fuiava (2012) 53 Cal.4th 622,
8
Wilson asserts in the alternative that the ruling violated
his right to present relevant evidence under article I, section 28,
subdivision (f)(2) of the California Constitution, the Truth-in-
Evidence provision. That provision eliminates state law
restrictions on the admissibility of evidence that are more
stringent than those under federal law. (People v. Cahill (1993)
5 Cal.4th 478, 500.) Because we conclude that the evidence was,
in fact, admissible under state law, we need not consider this
contention.
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665–666.) Here, although the court erred in its application of
the rules of evidence, its mistake — judging the admissibility of
impeachment evidence according to the statutory standard
applicable to testifying witnesses, as opposed to nontestifying
hearsay declarants — is not the sort of mistake that
significantly undermined fundamental elements of Wilson’s
defense. The error is unlike the cases on which Wilson relies, in
which the exclusion of reliable hearsay entirely prevented the
defendant from offering substantial evidence of another person’s
confession to the charged crime. (E.g., Chambers v. Mississippi
(1973) 410 U.S. 284, 295; Green v. Georgia (1979) 442 U.S. 95,
96; see also Cudjo v. Ayers (9th Cir. 2012) 698 F.3d 752, 762.)
We conclude that no federal constitutional violation occurred.
Wilson also claims that the exclusion of Seeney’s
statements violated his right to confrontation under the Sixth
Amendment. The Attorney General contends that Wilson
forfeited this argument by failing to raise his constitutional
claim below. Even assuming the claim is preserved, Wilson has
not established a Sixth Amendment violation. Restrictions on
the impeachment of witnesses do not violate the confrontation
clause when the jury would not have had a “significantly
different impression” of the witness’s credibility had the
proffered evidence been allowed. (People v. Quartermain, supra,
16 Cal.4th at p. 624; see Delaware v. Van Arsdall (1986) 475
U.S. 673, 680.) Here, Seeney’s statements to defense
investigators did not paint a significantly different picture of his
credibility than his preliminary hearing testimony. During his
direct examination, Seeney denied that Wilson made some of the
incriminating statements the prosecutor suggested, admitted
lying to detectives, said that the detectives were trying to scare
him into cooperating, and claimed that he only admitted seeing
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Wilson with a .44 revolver after learning the detectives already
had that information. In his statements to the defense
investigator, Seeney more clearly denied seeing Wilson with
guns, and made other comments about his fear of the detectives
and adopting some of the information they provided. Seeney’s
statements to the defense raised issues about his credibility that
were not dissimilar from those already apparent in his
testimony, and thus did not offer such a significantly different
impression of his credibility as to establish a potential violation
of Wilson’s confrontation rights. (Quartermain, at pp. 623–624.)
Having concluded that the trial court committed state-law
error in excluding the evidence of Seeney’s interview with the
defense investigator, we must next ask whether the error was
prejudicial and therefore requires reversal. We conclude the
answer is no; there is no reasonable probability the jury would
have reached a different verdict had it been made aware of what
Seeney told the defense investigator. (People v. Watson (1956)
46 Cal.2d 818, 836.)
Seeney’s statements had limited impeachment value. The
most significant statement was that Seeney had not seen Wilson
with guns. But significant evidence in the record cast doubt on
that assertion. Phyllis Woodruff testified that she helped
Seeney and Wilson burglarize homes shortly before the murders
and that among the items they stole were a number of guns.
Seeney similarly admitted that he, Woodruff, and Wilson were
committing burglaries together shortly before the murders. The
.44 revolver used to commit the murders was part of collection
of distinctive firearms that had been stolen in a burglary.
Woodruff testified that she had seen Wilson with a .44 revolver
and other guns that matched the description of the stolen cache,
that Wilson said he had gotten the guns from burglaries, and
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that Seeney was present when Wilson was showing off the .44.
Given the considerable evidence that Seeney was involved in
stealing guns with Wilson, and evidence that he was present
when Wilson showed off the .44 revolver, the jury would not
likely have lent much credence to Seeney’s statement.
Furthermore, some of Seeney’s statements contradicted his
claimed ignorance of the guns. Seeney stated, for example, that
upon hearing investigating officers describe the gun used in the
murders, he thought, “dang, you know? How they know that?”
The remainder of Seeney’s statement to the defense
investigator was nonspecific, and thus of even less impeachment
value. Seeney said that Wilson “didn’t really tell me all them
things,” and claimed that when speaking to detectives, he just
endorsed some of the information they shared from their
investigation. The implication of these statements — that
Seeney may not have witnessed some of the facts he adopted
when speaking to the detectives — reflected a credibility issue
that was already apparent in Seeney’s preliminary hearing
testimony. Detective Elvert acknowledged providing Seeney
with some information about the investigation to prompt
Seeney’s cooperation and Seeney testified that he only said he
saw his brother with a gun once he knew detectives already had
that information. Seeney denied knowing that Wilson admitted
using Dominguez’s cell phone; he also denied having knowledge
of several facts related to the Richards robbery until confronted
with prior statements inconsistent with those denials. In other
words, Seeney’s testimony about receiving some information
from the detectives, and his denials and conflicting statements,
already created uncertainty about whether Seeney personally
witnessed some of Wilson’s alleged statements and actions. An
additional, vague remark that Wilson “didn’t really tell me all
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them things,” would not have meaningfully altered the
impression Seeney’s testimony left with the jury.
It is true, as Wilson says, that Seeney’s testimony — that
Wilson confessed to robbing and attempting to shoot Richards,
confessed to shooting Dominguez and Henderson, and showed
off a gun like the murder weapon — provided some of the only
direct evidence of Wilson’s guilt. But for each of the charges
Wilson faced, there was also evidence of his guilt that did not
depend on Seeney’s testimony.
We have earlier described the evidence linking Wilson to
the robbery and attempted murder of Richards. That evidence
included Richards’s description of his assailant immediately
after the crimes, a description that resembled Wilson and not
the other potential suspects. The weapon used against Richards
was a .22 pistol that jammed. Evidence connected Wilson to a
burglary in which that pistol was stolen; during his
interrogation, Wilson also admitted having a .22. Richards
picked up the perpetrator at a grocery store across the street
from the motel where Wilson’s mother lived, and Wilson visited
his mother just before the robbery. The perpetrator drove away
in Richards’s taxicab, which was later recovered right near
Wilson’s apartment. And the rural location of the Richards
robbery was familiar to Wilson because his grandparents lived
nearby. Dominguez, the second victim, was killed in the same
location a month and a half later and Wilson used Dominguez’s
cell phone just hours after he was murdered. Witnesses testified
that Wilson wore a jacket and had injuries consistent with being
the shooter eyewitnesses to the Henderson murder described.
Evidence that Wilson shot Henderson and attempted to shoot
Richards lent support to the theory that he shot Dominguez as
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well, as did Phyllis Woodruff’s testimony that she had seen
Wilson with a revolver like the murder weapon.
In sum, there is no reasonable probability that Seeney’s
statements to the defense would have meaningfully altered the
reliance, if any, the jury placed on Seeney’s testimony, as
opposed to the other evidence pointing to Wilson’s guilt.
D. Henry Woodruff’s Testimony
At trial, Wilson unsuccessfully moved to exclude
testimony from Phyllis Woodruff’s father, Henry Woodruff, that
Seeney told him that he did not want to leave the Woodruff home
with Wilson because Wilson was “doing wrong” and Seeney did
not want to violate his probation. Wilson contends the
admission of the testimony violated both state evidence law and
his constitutional right to a fair trial. We reject the argument.
Before Henry Woodruff’s testimony, the defense objected
to the prosecution eliciting any description of statements from
Seeney to Woodruff, arguing that they were inadmissible
hearsay. The prosecutor responded that the statements were
not being offered for their truth but were relevant to show
Seeney’s state of mind and conduct. The trial court overruled
the defense objection, observing that even if the statements were
hearsay, they would be admissible to show Seeney’s conduct in
conformance with his then-existing state of mind. Woodruff
then testified that at the time of the charged murders, Seeney
had been staying on the couch in the Woodruff home where his
girlfriend, Phyllis Woodruff, also lived. During a Woodruff
family barbeque the day before the murders, Wilson arrived at
the Woodruff home to pick up Seeney, but Seeney told Henry
Woodruff that he did not want to leave with Wilson because
Wilson was “doing wrong” and Seeney did not want to violate
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his probation. Henry Woodruff allowed Seeney to stay at the
Woodruff home rather than go to San Bernardino with his
brother.
As relevant here, Evidence Code section 1250 provides
that an out-of-court statement of the declarant’s then existing
state of mind is not made inadmissible by the hearsay rule when
it is offered “to prove or explain acts or conduct of the declarant.”
(Id., subd. (a)(2).) “ ‘[A] prerequisite to this exception to the
hearsay rule is that the declarant’s mental state or conduct be
factually relevant.’ ” (People v. Geier (2007) 41 Cal.4th 555, 586.)
Such evidence is inadmissible “if the statement was made under
circumstances such as to indicate its lack of trustworthiness.”
(Evid. Code § 1252; see id., § 1250, subd. (a).) The hearsay rule
does not apply at all, however, “if the declarant’s statements are
not being used to prove the truth of their contents.” (Assem.
Com. on Judiciary com., reprinted at 29B pt. 4 West’s Ann. Evid.
Code (2015 ed.) foll. § 1250, p. 420; see also Evid. Code, § 1200;
People v. Harris (2013) 57 Cal.4th 804, 843.)
Wilson argues that Seeney’s state of mind was not
relevant to any issue in dispute. As the trial court noted,
however, Seeney’s stated concerns about Wilson’s activities
tended to “prove or explain acts or conduct” (Evid. Code, § 1250,
subd. (a)(2)) relevant to the action — that is, staying at the
Woodruff household rather than accompany Wilson to San
Bernardino. Specifically, evidence that Seeney remained at
Henry Woodruff’s house that evening was relevant to counter
the defense theory that Seeney could have been responsible for
the murders that occurred hours later in the San Bernardino
vicinity. As the prosecutor noted in arguing to admit Seeney’s
statements, defense counsel suggested in his opening statement
that Seeney committed the murders or was an accomplice to
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them and later presented evidence to suggest that Seeney’s
whereabouts on the night of the murders were unknown.
Acknowledging that Seeney’s conduct was relevant as “an
alleged alternative perpetrator[],” Wilson argues Seeney’s
statements were nonetheless inadmissible to explain his state
of mind and related conduct because their relevance depended
on his statements being true, that Wilson actually was engaged
in wrongdoing. If Seeney’s statement was admissible hearsay
under a then-existing state of mind exception (Evid. Code,
§ 1250, subd. (a)(2)), then it could be used for its truth. (People
v. Harris, supra, 57 Cal.4th at p. 843.) If the statement was not
being used for its truth, then it was not hearsay at all. (Ibid.)
Wilson appears to challenge the latter, nonhearsay use, relying
on People v. Lopez (2013) 56 Cal.4th 1028. In that case, we
concluded the admission of statements for the nonhearsay
purpose of showing a codefendant’s state of mind was error
when the theory of relevance depended on the truth of the
statements. (Id. at pp. 1060–1061.) Here, by contrast, Seeney’s
state of mind — that he did not want to go to San Bernardino
with Wilson — was relevant to his apparently successful efforts
to stay with the Woodruffs, an alibi for the murders. That
showing did not depend on the truth of Seeney’s statements that
Wilson was engaged in wrongdoing or that Seeney was
concerned with violating his probation, establishing a
nonhearsay purpose for them.
Wilson argues that even if Seeney’s statements had a
relevant, nonhearsay purpose, they were inadmissible under
Evidence Code section 1252 because they were not trustworthy.
But that trustworthiness inquiry is a limitation on hearsay
evidence admitted under a state of mind exception (Evid. Code,
§ 1252; People v. Dworak (2021) 11 Cal.5th 881, 907); it does not
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apply to evidence that is not hearsay. As we have said, the
prosecutor offered the statements for a nonhearsay purpose and
there was no theory proposed under which the statements would
be relevant for their truth.9 But even if Evidence Code section
1252 applied, we would not find the statements inadmissible. In
determining whether statements are trustworthy within the
meaning of Evidence Code section 1252, we consider whether
they “were made under coercion or ‘with an intent to deceive.’ ”
(Dworak, at p. 907.) Wilson contends Seeney’s statements to
Henry Woodruff were not trustworthy because Seeney had
reason to “create a false impression that he was staying out of
trouble.” Wilson does not, however, explain how Seeney would
curry favor with his girlfriend’s father by commenting on his
brother’s criminal behavior.
E. Wilson’s Interview with California Detectives
Wilson argues the trial court erred in admitting a
videotaped interview with California detectives, which he
claims was conducted after he invoked his Fifth Amendment
right to remain silent. We conclude there was no error.
9
Wilson emphasizes a portion of the prosecutor’s closing
argument in which he referred to Seeney’s statement to Henry
Woodruff and knowledge of Wilson’s plan to rob cab drivers;
Wilson argues that this demonstrates that the prosecutor “was
able to conceal his true purpose” of using Seeney’s statements
for their truth. The prosecutor’s remarks, that Seeney would be
an accomplice if he knew of the robberies and did something to
help Wilson, were offered as “illustrations of the concept of
aiding and abetting.” Whatever the motive for repeating
Seeney’s statement, Seeney’s knowledge of Wilson’s activities
was not an element of the charges against Wilson and was not
relevant to any theory of the prosecution case.
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1. Background
After his arrest, Wilson twice spoke to officers about his
involvement in the robberies and murders under investigation:
once in Ohio, shortly after the arrest, and then in California a
day later. In Ohio, detectives advised Wilson of his rights under
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). Wilson
initially agreed to speak to the detectives. One of the detectives
testified that he believed Wilson later invoked his right to
remain silent but continued questioning him anyway.
A day later, Wilson flew with detectives to California.
Detective Jay Hagen, one of the detectives who flew with Wilson,
testified that during a refueling stop Wilson said that he might
want to talk about the case and asked whether his statement
could remain confidential if he decided to say something.
Detective Hagen advised Wilson to wait until they arrived in
California. Once in California, Detective Hagen and another
detective met with Wilson. Detective Hagen made it clear that
Wilson’s statements would not be confidential and there was
some additional discussion regarding Wilson’s concern about
providing information. Upon learning that he was being held on
a prior hit-and-run charge, Wilson stated, “Let’s put that to the
side, man. I mean, what’s going on with these other things?” —
apparently referring to the recent robberies and killings.
Detective Hagen said there was information tying Wilson to
those crimes and told Wilson he wanted to find out if Wilson had
an explanation for his involvement.10
10
Detective Hagen conducted much of the interview and
testified about the interrogation. The second detective also
participated in the interview, and there were times when
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When Wilson began to speak to the detective, he repeated
several times that he did not want to jeopardize his family by
giving information that would cause others to retaliate against
him. The detective said that Wilson would not have to worry
about his brother because Seeney would be in prison as an
accessory to murder. The conversation then focused for a time
on whether there was evidence to send Seeney to prison; Wilson
said there was nothing connecting Seeney to the crimes and the
detective said that Seeney would at least do time for protecting
Wilson. Wilson accused the detective of playing games with him
and said he would have to request his right to remain silent.
But Wilson immediately went on to challenge the detectives,
stating that they did not have a murder weapon, fingerprints, or
eyewitnesses to connect him to the murders. When the detective
asked how Wilson knew whether they had a murder weapon,
Wilson said he learned it from the deputies in the county jail.
The detective noted that was days ago, suggesting there was
evidence against Wilson. When pressed, Wilson first said he
learned from the news that there were no fingerprints and then
said he learned it from the jail deputies, but the detective
dismissed the explanations and accused Wilson of playing a
game. Discussing Seeney’s role, the detective again stated that
Seeney would be charged as an accessory to murder for
protecting Wilson and Wilson asked if Seeney’s girlfriend would
be charged for protecting him as well. The detective said, “[T]he
girl gave it all up” and Wilson remarked that her parents
probably did too. Wilson asked whether the detectives had the
Detective Hagen left the interview room. To avoid parsing each
detective’s role, we use the shorthand “the detective” in our
discussion of the interview.
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Woodruffs on tape, which the detective declined to answer. The
detective said he would not respond because Wilson was just
trying to get information about the case.
Wilson then told the detective, “I’m not discussing it any
no further until I talk to the DA, man.” When informed the
prosecutor was not interested in speaking with him, Wilson
reiterated that he was not “going to discuss it further. I mean,
I’m was [sic] trying to be cooperative with you.” The detective
encouraged Wilson to take the opportunity to say what he knew
“right now,” before his “partner” got a deal with the prosecutor.
The detective also told Wilson that he had “[n]o doubt [Wilson]
did it.” Wilson responded that, if there was no doubt, “we don’t
need to talk no more” and he asked the detectives to take him
back to his holding cell. Just before they left the interview room,
the detective stated, “You say you wanted to cooperate. I know
there’s somebody else involved.” As they exited the room,
Wilson asked for a cigarette.
Without explanation the interview resumed, with Wilson
again talking about his concern for his family. The detective
eventually suggested that Wilson could name the person
responsible for the murders and “we’ll open the door, you’re out
of here.” Wilson said, “they know who the fuck he is” and
indicated there were other government actors trying to catch
him. Wilson then referred to his brother again, stating he did
not think the detectives had any evidence against Seeney.
Wilson guessed that he was the only suspect; he said,
“True enough I told you I rented the car, I used the phone,” “I
allowed this particular person to use that vehicle more than
once,” and “if he has some buddies or something like that and
they went on a killing spree, . . . I don’t know.” The detective
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asked who Wilson went to Pomona with, but Wilson denied
being there. Suggesting that someone saw Wilson with a gun,
the detective asked if that would be a lie. Wilson said that
maybe “they seen me with a pistol.” The detective said he knew
Wilson’s “homeboy” had a gun, the “[s]ame homeboy that I know
that you know.” Wilson wanted the detectives to say the name
of the person they had in mind, adding “the same person who
rented the vehicle” and “the same person that seen me with a
gun” a “little chrome gun.” Wilson admitted having “a little .22.”
The detective tried to engage Wilson in whether he or his
“homeboy” pulled the trigger during the murders. The detective
suggested a scenario in which Wilson was with a buddy who
robbed and killed someone out of the blue and then insisted on
doing another one, to make sure Wilson would not rat. Wilson
said, “In other words, drop a dime, snitch.” Wilson would not
snitch but said there was a witness on the street. The detective
and Wilson talked about how much Seeney might have said
about the events, but the detective would not mention specific
information about the case. Wilson said the detectives would
eventually have to give the information to his lawyer and the
conversation turned to when Wilson would get a lawyer and
what his bail was.
Wilson made it clear he understood that his statements
could be used against him, stating, “You know damn well as
much as I know everything I say in this room is going to be held
against me in that damn courtroom.” The detective reminded
Wilson that he could have an attorney, and Wilson said that he
wanted one “right now.” The detective said they did not have an
attorney for Wilson but would stop talking about the case.
Wilson responded, “Is that what you want?” Wilson said he was
hungry and suggested getting something to eat, “so we can
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continue this interrogation.” While one detective went to see
about getting food, Wilson said to the other one, “this man can
continue to interrogate me. You ain’t got nothing to do.” After
learning the detectives had the cell phone, Wilson asked to see
it. Asking for coffee, Wilson said, “We all going to sit down and
fucking talk.” Later, referring to his coffee Wilson said, “We
going to be up all fucking night.”
In the remaining interview, Wilson told the detective that
he always carried a gun when he went to San Bernardino but
denied ever carrying a large caliber weapon. Wilson would not
give the name of the person he knew was involved in the
murders but said that Detective Franks had mentioned the
name and “hit that thing on the nose.” The detective asked
where the person lived, prompting, “where Sarah and Tiffany
dropped you off?” Wilson said that “Sarah knows the dude” and
“[y]ou got your man.”
Wilson filed a motion to suppress all of the statements
made to detectives in Ohio and in California. The trial court
granted Wilson’s motion to suppress statements he made during
the Ohio interrogation after the detective disregarded his
expressed desire to stop answering questions. But the court
admitted the interview with detectives in California. The trial
court found that Wilson had been advised of, understood, and
waived his Miranda rights in Ohio, and further noted that
during the California interview Wilson recited his rights back to
the detectives. The court concluded that Wilson initiated the
California interview during the refueling stop by telling
Detective Hagen he wanted to talk and that it was clear Wilson
understood that by talking to the detectives he was waiving his
right to remain silent. The court further held, contrary to
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Wilson’s contentions, that Wilson did not seriously invoke his
right to terminate the conversation.
The trial court characterized the California interrogation
as a “chess game, where each side was trying to obtain damaging
information from the other” and observed that “[f]or the most
part, neither side budged, although the defendant did admit to
using one of the murder victim’s cellular phones . . . , and did
admit to having a small caliber handgun within two to three
weeks prior to the murders.” The trial court noted several places
in the interview where the defense claimed Wilson had invoked
his right to remain silent. The court observed, however, that
Wilson’s willingness to talk contradicted his claim that he
invoked his Fifth Amendment privilege.
During the retrial, defense counsel brought another
motion to suppress Wilson’s statements because he had
overlooked the significance of the cigarette break and the
unexplained resumption of the interview; he sought to exclude
the statements Wilson made after the break.
The trial court held a hearing focused on the unrecorded
break. Detective Hagen testified that after he and Wilson left
the interview room, they stopped to smoke and Wilson initiated
further discussions about the case. Wilson again stated that he
was concerned for his family’s safety if he told the detectives
what he knew about the murders and continued to ask questions
in an effort to learn what the investigation had uncovered.
Detective Hagen said that he answered Wilson’s questions as
best he could without giving him details about the investigation;
it was the same type of exchange that characterized the
interview before the break. When they finished smoking,
Detective Hagen asked Wilson if there was anything else to
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discuss and Wilson indicated that he wanted to continue the
interview.
Defense counsel argued that suppression was warranted
because, “[p]utting aside all the other loquacious behavior of
Mr. Wilson,” the detectives were not able to describe in detail
how Wilson initiated conversation about the case during the
break; acknowledged that they had been trained to continue
questioning after a defendant’s invocation for impeachment
purposes; and failed to document any reinitiation by Wilson in
their reports. Counsel asserted that the proper inference to
draw was that the detectives felt they were questioning outside
of Miranda.
The trial court denied the motion, crediting Detective
Hagen’s testimony that Wilson initiated the conversation during
the break and concluding that “nothing really changed from all
of the other times that [Wilson] had seemingly not wanted to
talk, but then kept on with the interview.” At the retrial, the
prosecution played the video recording of Wilson’s California
interrogation for the jury.
2. Discussion
“The Fifth Amendment provides, ‘No person . . . shall be
compelled in any criminal case to be a witness against himself
. . . .’ (U.S. Const., 5th Amend.) ‘To safeguard a suspect’s Fifth
Amendment privilege against self-incrimination from the
“inherently compelling pressures” of custodial interrogation
(Miranda, supra, 384 U.S. at p. 467), the high court adopted a
set of prophylactic measures requiring law enforcement officers
to advise an accused of his right to remain silent and to have
counsel present prior to any custodial interrogation.’ ” (People
v. Hoyt (2020) 8 Cal.5th 892, 930–931.) Interrogation “ ‘under
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Miranda refers not only to express questioning, but also to any
words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should
know are reasonably likely to elicit an incriminating response
. . . .’ ” (People v. Young (2019) 7 Cal.5th 905, 923.)
After “ ‘a defendant has waived his Miranda rights and
agreed to talk with police, any subsequent invocation of the right
to counsel or the right to remain silent must be unequivocal and
unambiguous.’ ” (People v. Hoyt, supra, 8 Cal.5th at p. 931.) If
a defendant has unambiguously invoked the right to remain
silent, the interrogation must stop. (People v. Krebs (2019) 8
Cal.5th 265, 313.) We have never held, however, “that an initial
failure to honor a defendant’s invocation — whether of the
[right] to remain silent or the right to have counsel present —
poses a categorical bar to the admission of any subsequent
statement regardless of the circumstances.” (Id. at p. 314.)
Even when law enforcement initially fails to honor a Miranda
invocation, we have held that “a voluntary confession obtained
during a subsequent interrogation is admissible.” (Ibid.)
When reviewing the trial court’s denial of a suppression
motion alleging a Miranda violation, “ ‘it is well established that
we accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if supported by
substantial evidence. We independently determine from the
undisputed facts and the facts properly found by the trial court
whether the challenged statement was illegally obtained.’ ”
(People v. Gamache (2010) 48 Cal.4th 347, 385.) The question
whether the defendant or the police reinitiated communications
after a defendant’s invocation of rights “is predominantly
factual. [Citation.] Accordingly, we review it for substantial
evidence.” (Ibid.)
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There is no dispute that the Ohio detectives did not honor
Wilson’s invocation of Miranda rights, and that statements
Wilson made to the Ohio detectives after that point should have
been excluded. The question that concerns us here is the
admissibility of statements Wilson made to California detectives
the following day. Wilson first argues that all of his statements
to the California detectives should have been suppressed
because detectives improperly reinitiated the interrogation on
the flight from Ohio to California. Wilson claims the flight
conditions created “inherent pressure” for Wilson to speak to
them. Wilson invokes the circumstances described in People v.
Boyer (1989) 48 Cal.3d 247, in which an investigator unlawfully
reinitiated the interrogation when he called the defendant back
into the interrogation room and “launched into a monologue on
the status of the investigation,” telling the defendant a new
witness had contradicted the defendant’s claims about when he
last visited the victim. (Id. at p. 274.) Nothing remotely similar
occurred here. In fact, it was undisputed that when Wilson
broached the case during the trip back to California, Detective
Hagen put him off. Once in California, Wilson acknowledged
that he had approached Detective Hagen to talk about the case,
repeated his interest in discussing the case, and readily engaged
in the subsequent interview with the detectives. Substantial
evidence supports the trial court’s conclusion that Wilson
reinitiated communication with the detectives after the Ohio
interrogation, and not the other way around.
Wilson next argues that the trial court erred in admitting
statements he made to detectives after the break when he was
outside smoking with Detective Hagen. As Wilson notes,
Detective Hagen agreed to end the interview in response to
Wilson’s statement that he was not going to discuss the case
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further and request to be taken back to the holding cell. These
circumstances reflect Wilson’s unambiguous invocation of his
right to remain silent. (People v. Krebs, supra, 8 Cal.5th at
p. 313 [defendant’s invocation was unambiguous when he asked
to be returned to his cell and told officers he had nothing to say].)
Despite recognizing that Wilson no longer wished to speak,
Detective Hagen made additional comments that were
reasonably likely to prompt Wilson to continue speaking: He
encouraged Wilson to cooperate “right now” to get beneficial
treatment by the prosecutor; he said he had no doubt Wilson
committed the crimes; he repeated Wilson’s claimed interest in
cooperating; and he told Wilson that he knew someone else was
involved. The comments did not elicit any response and
Detective Hagen ended the interview and began taking Wilson
to a holding cell as he requested.
What followed, however, was a short break in which the
trial court concluded that Wilson reinitiated discussion about
the case. When a suspect freely decides to reinitiate
communication, the law does not foreclose the admission of
subsequent statements, notwithstanding an earlier failure to
honor an invocation of the Miranda rights to silence or to
counsel. (People v. Krebs, supra, 8 Cal.5th at p. 315.)11
11
Wilson frames his claim as a violation of his right to
silence under Michigan v. Mosley (1975) 423 U.S. 96 but
contends that Edwards v. Arizona (1981) 451 U.S. 477, which
set out a more stringent standard for resuming interrogation
following the invocation of a right to counsel, governs the
inquiry here. It is unnecessary to address any potential
distinction between the two standards, however, because we
conclude that there is substantial evidence that Wilson
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Here, although the conversation during the break was not
recorded, the court credited the detective’s testimony that
Wilson brought up the case again, noting that Wilson’s apparent
invocation, followed almost immediately by an expression of
continued interest in discussing the case, followed a pattern that
was apparent throughout the interview. (See People v. McCurdy
(2014) 59 Cal.4th 1063, 1089 [finding valid reinitiation of
communication when the defendant initiated discussion of the
case 20 seconds after invoking Miranda rights].) After the
break, Wilson repeatedly demonstrated his desire to continue
the interrogation, asking for food and coffee in anticipation of
talking at length and periodically goading the detectives to
continue discussing the case with him. The record contains no
suggestion Wilson was pressured into continuing the interview.
“Apart from his failure to immediately cease questioning, [the
detective’s] interrogation techniques were not coercive,” and
there is no other evidence Wilson was unable to exercise his free
will when he decided to continue speaking to the detectives.
(People v. Krebs, supra, 8 Cal.5th at p. 315.) We see no error in
the trial court’s decision to admit the statements Wilson made
after the cigarette break.
F. Motion for New Trial
After the jury returned its penalty verdict, Wilson filed a
new trial motion in which he argued that his lawyer prevented
him from testifying in violation of his Sixth Amendment rights.
The trial court denied the motion. Wilson argues this was error.
We find no merit to the claim.
voluntarily reinitiated his interview after the break, which
would render his subsequent statements admissible under
either Mosley or Edwards.
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Wilson did not testify in either of his trials. In a report
prepared for purposes of sentencing, a probation officer
documented Wilson’s complaint that he wanted to testify in the
retrial but his attorney “ ‘refused to allow it.’ ” At defense
counsel’s request, the trial court appointed alternate counsel to
explore the issue, and alternate counsel later filed a motion for
a new trial alleging that Wilson had been deprived of his right
to testify. In a sworn declaration accompanying the motion,
Wilson said he asked to testify several times, but that trial
counsel informed him that “[his] side of the story could be told
by other witnesses” and that testifying would expose him to
impeachment regarding his past criminal history. Wilson
claimed that after the prosecution rested, he again expressed his
desire to testify and counsel “told me that I couldn’t testify and
walked away, not allowing any further discussion.” Wilson
stated that he was not aware that he could have asserted a right
to testify over counsel’s objection until after trial.
In a hearing on alternate counsel’s new trial motion,
defense counsel testified that he had been practicing criminal
law for over 35 years, that he understood Wilson’s constitutional
right to testify, and that he had never denied Wilson his right to
testify. Counsel denied telling Wilson “in emphatic, conclusive
terms that he was not going to testify in the case”; instead,
counsel stated that he had conversations in which he
recommended that Wilson not testify.
As an initial matter, the trial court questioned whether
Wilson’s request to testify was timely, coming as it did after the
jury had returned its verdicts. The court noted that Wilson “has
never been shy about speaking or letting his requests be known”
and that neither Wilson nor his counsel alerted the court to any
conflict they had about Wilson wanting to testify. In any event,
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crediting defense counsel’s testimony, the court found that
counsel had not denied Wilson his right to testify, although
counsel may have strongly advised Wilson not to testify “for good
reason.” When alternate counsel raised Wilson’s claim that he
did not know he had a right to testify against counsel’s advice,
the trial court reiterated that “[e]ven assuming that’s true,”
counsel did not prevent Wilson from testifying.
“A criminal defendant has the right to testify at trial, ‘a
right that is the mirror image of the privilege against compelled
self-incrimination and accordingly is of equal dignity.’
[Citations.] ‘The defendant may exercise the right to testify over
the objection of, and contrary to the advice of, defense counsel.
[Citations.] “When the decision is whether to testify . . . at the
guilt phase of a capital trial [citation] it is only in case of an
express conflict arising between the defendant and counsel that
the defendant’s desires must prevail. . . . [T]here is no duty to
admonish and secure an on the record waiver unless the conflict
comes to the court’s attention.” ’ ” (People v. Duong (2020) 10
Cal.5th 36, 55.)
Here, Wilson does not claim that he had an express
conflict with his trial attorney over whether he would testify.
Instead, he contends the trial court had an obligation, before
ruling on his motion for a new trial, to determine whether
Wilson made a knowing and intelligent waiver of his right to
testify during the retrial. Wilson did not raise this issue in the
trial court, and it appears to be forfeited. The claim also lacks
merit.
It has long been the rule that, absent an express conflict,
“ ‘ “[a] trial judge may safely assume that a defendant, who is
ably represented and who does not testify is merely exercising
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his Fifth Amendment privilege against self-incrimination and is
abiding by his counsel’s trial strategy. . . .” [Citation.] If that
assumption is incorrect, defendant’s remedy is not a personal
waiver in open court, but a claim of ineffective assistance of
counsel.’ ” (People v. Duong, supra, 10 Cal.5th at p. 56; People
v. Bradford (1997) 14 Cal.4th 1005, 1053.) The trial court did
not abuse its discretion when it found that defense counsel did
not infringe on Wilson’s right to testify and that no conflict arose
during the retrial that required the court to advise Wilson of his
right to testify and ensure his knowing and intelligent waiver of
that right. Like the defendant in Duong, Wilson “does not urge
his counsel was ineffective, nor does he allege there was a
conflict with counsel. Any claim of ineffective assistance based
on evidence not in the trial record must be made in a habeas
corpus petition.” (Duong, at p. 56.)
G. Speedy Trial Rights
Wilson contends the trial court abused its discretion, and
violated his state and federal constitutional rights to a speedy
trial, when it found good cause to continue the trial over his
objection. We find no error.
Wilson was arrested on March 3, 2000, and his trial
attorney was appointed the same month. After accepting
several continuances, in October 2001 Wilson refused to agree
to a 90-day continuance his attorney had sought; instead,
invoking his speedy trial rights, he waived time for just 30 days.
In keeping with Wilson’s 30-day waiver, the court set trial for
December 3, 2001. Then, in a written motion for continuance,
defense counsel sought a trial date of March 4, 2002. Counsel
explained that he was preparing the defense of another client
facing capital charges and needed additional time to
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competently prepare Wilson’s case. The prosecutor did not
object to the March 2002 trial date.
At a hearing on the continuance motion, Wilson again
refused to waive time and asserted that his constitutional rights
were being violated. Wilson stated that the 18 months that had
elapsed since his case began was adequate time to prepare his
defense. The trial court granted the continuance over Wilson’s
objection. The court noted that since Wilson did not want to
waive further time, counsel was going to have to “devote his full
efforts preparing for this case. But I think I have to give him a
reasonable time to prepare, and again I think it would be in your
best interests to allow him to do that.” Trial began on March 4,
2002.
“A criminal defendant’s right to a speedy trial is
guaranteed by the Sixth Amendment to the federal Constitution
and article I, section 15 of the California Constitution. ‘The
California Legislature has “re-expressed and amplified” these
fundamental guarantees by various statutory enactments,
including Penal Code section 1382.’ ” (People v. Lomax (2010)
49 Cal.4th 530, 552–553.) Penal Code section 1382 provides that
in a felony case, absent a showing of good cause, the court shall
dismiss the action if a defendant is not brought to trial within
60 days of arraignment. (Id., subd. (a)(2).) Factors relevant to
a determination of good cause include: “(1) the nature and
strength of the justification for the delay, (2) the duration of the
delay, and (3) the prejudice to either the defendant or the
prosecution that is likely to result from the delay.” (People v.
Sutton (2010) 48 Cal.4th 533, 546.) In general, delay for the
defendant’s benefit constitutes good cause to continue trial over
his or her objection. (Lomax, at p. 554.) A trial court has
“ ‘broad discretion to determine whether good cause exists to
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grant a continuance of the trial’ ”; we review that determination
for abuse of discretion. (Sutton, at p. 546.)
Wilson argues that “[a]n attorney’s work for other clients
cannot form a valid basis for overriding appellant’s speedy trial
rights.” (Italics omitted.) Likening his case to People v. Johnson
(1980) 26 Cal.3d 557, Wilson claims he was entitled to dismissal
of the charges because systemic flaws, including lack of
personnel in the Public Defender’s office, prevented his attorney
from preparing for his trial within the statutory time period. In
Johnson, postponements over the defendant’s objection “were
not sought nor granted to serve the best interest of the
defendant; they stem[med] from calendar conflicts of the public
defender, and the decision of the public defender and the court
to resolve these conflicts by trying other cases in advance of that
of defendant.” (Id. at p. 566.) We held that the record did not
demonstrate good cause for a continuance because the trial
court “accepted the public defender’s recital of conflicting
obligations without inquiring whether the conflict arose from
exceptional circumstances or resulted from a failure of the state
to provide defendant with counsel able to protect his right.” (Id.
at p. 573.)
Unlike Johnson, this case does not involve delay stemming
from calendar conflicts unrelated to Wilson’s best interests.
Although counsel assumed the trial of another client would
precede Wilson’s, the trial court conditioned the continuance on
counsel devoting his “full efforts” to preparing Wilson’s case and
found that preparation was in Wilson’s best interest. Although
Wilson blames a systemic breakdown for counsel’s delay in
completing his preparation, the record does not contain facts
about the public defender system that would allow us to
evaluate this assertion. (People v. Williams (2013) 58 Cal.4th
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197, 249.) Instead, Wilson’s circumstances appear more like
those we have found to present “a classic confrontation between
defendant’s statutory and constitutional rights to a speedy trial
and his Sixth Amendment right to competent and adequately
prepared counsel.” (People v. Lomax, supra, 49 Cal.4th at
p. 556.) As in Lomax, the balance here favored a reasonable
time for counsel to prepare for a capital trial (ibid.), and the
duration of the delay was limited; after Wilson invoked his right
to a speedy trial, counsel sought, and the trial court granted,
only one continuance. There was no abuse of discretion in
finding good cause for the continuance under Penal Code section
1382, and no violation of the state constitutional protections
those procedures implement (Sykes v. Superior Court (1973) 9
Cal.3d 83, 88).12
Wilson also claims that delay in bringing his case to trial
violated his federal speedy trial right. To determine whether
there has been a federal violation, we consider the four-part
balancing test established in Barker v. Wingo (1972) 407 U.S.
514: “ ‘whether delay before trial was uncommonly long,
whether the government or the criminal defendant is more to
blame for that delay, whether, in due course, the defendant
asserted his right to a speedy trial, and whether he suffered
prejudice as the delay’s result.’ ” (People v. Williams, supra, 58
Cal.4th at p. 233.) Wilson has not carried his burden of
demonstrating a speedy trial violation under this test.
12
We have explained that “a defendant may claim a
violation of the state Constitution’s speedy trial right based on
delay not covered by any statutory speedy trial provision.”
(People v. Martinez (2000) 22 Cal.4th 750, 766.) Wilson’s state
constitutional claim, however, rests on the statutorily
established delay.
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“In a complex case, delay will weigh less heavily against
the state because the significance of the delay ‘is necessarily
dependent upon the peculiar circumstances of the case.’ ”
(People v. Williams, supra, 58 Cal.4th at p. 234.) In a death
penalty case, a two-year delay in proceeding to trial “is not
inordinately long.” (People v. Lomax, supra, 49 Cal.4th at
p. 558.) Furthermore, Wilson acknowledges that the
continuances were at his attorney’s behest, “and because we
cannot conclude on this record that the delays caused by
defendant’s counsel resulted from a systemic breakdown in the
public defender system,” that delay “must be charged to
defendant.” (Williams, at p. 252.)
“Whether defendant suffered prejudice as a result of the
delay must be assessed in light of the interests the speedy trial
right was designed to protect: ‘(i) to prevent oppressive pretrial
incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be
impaired.’ ” (People v. Williams, supra, 58 Cal.4th at p. 235.)
“Of these, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of
the entire system.” (Barker v. Wingo, supra, 407 U.S. at p. 532.)
Here, Wilson claims that “awaiting trial while his life hung in
the balance inevitably produced great anxiety.” “[D]espite the
oppressive nature of pretrial incarceration and the anxiety it
produces,” Wilson does not “demonstrate specific prejudice
resulting from the delay” and “he cannot benefit from a
presumption of prejudice because the record does not show that
the state was responsible for the delay.” (Williams, at p. 252.)
Considering “the totality of the Barker factors” (People v.
Williams, supra, 58 Cal.4th at p. 252), we conclude that Wilson’s
federal right to a speedy trial was not violated.
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H. Other Instructional Issues
Wilson claims that several guilt phase jury instructions
violated his right not to be convicted “ ‘except upon proof beyond
a reasonable doubt,’ ” thus violating his constitutional rights to
due process and trial by jury. Wilson acknowledges that we
have rejected similar claims, holding that CALJIC No. 2.01 does
not undermine the reasonable doubt requirement (People v.
Wright (2021) 12 Cal.5th 419, 455) and that CALJIC Nos. 2.21.2,
2.22, 2.27, and 8.20 do not urge the jury to decide material issues
by determining which side had presented relatively stronger
evidence (People v. Bloom (2022) 12 Cal.5th 1008, 1056). We
decline his request to reconsider our prior rulings.
I. Cumulative Error
We have assumed or found three errors. We have assumed
that an instruction listing eyewitness certainty as a factor in
assessing the accuracy of Richards’s identification was a
potential error under state law and that the trial court erred
when it excluded evidence to impeach testimony about
Richards’s photo identification. We concluded, however, that it
was not reasonably probable that the instruction misled the jury
to Wilson’s detriment and that exclusion of additional evidence
to challenge the reliability of the photo identification was
harmless, in part because of defense counsel’s already successful
efforts in that regard. We also found that the trial court erred
when it excluded certain statements Seeney made to the defense
that were purportedly inconsistent with his former testimony
read into the record at the retrial. But we found it was not
reasonably probable that evidence of Seeney’s statements would
have significantly altered the jury’s view of Seeney’s former
testimony, or, ultimately, its conclusion that Wilson was guilty
of the charged crimes. Having found these assumed or found
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errors individually harmless, we reach the same conclusion
when considering the errors together: “ ‘their cumulative effect
does not warrant reversal of the judgment.’ ” (People v.
Henriquez (2017) 4 Cal.5th 1, 48.)
J. Challenges to California’s Death Penalty Statute
Wilson raises a number of challenges to California’s death
penalty statute, all of which we have previously considered and
rejected. We decline to reconsider the following holdings.
Penal Code section 190.2 is not impermissibly broad and
adequately narrows the class of murders for which the death
penalty may be imposed. (People v. Jackson (2014) 58 Cal.4th
724, 773.) Penal Code section 190.3, factor (a), which permits
the jury to consider the circumstances of the crime in sentencing
“does not result in arbitrary or capricious imposition of the
death penalty in violation of the Fifth, Sixth, Eighth, or
Fourteenth Amendments to the United States Constitution.”
(People v. Flinner (2020) 10 Cal.5th 686, 761.) In instructions to
the jury, the trial court is not required to “ ‘delete inapplicable
factors’ ” from CALJIC No. 8.85, and the language “ ‘ “so
substantial” ’ ” and “ ‘warrants’ ” in CALJIC No. 8.88 is not
unconstitutionally vague. (People v. Romero and Self (2015) 62
Cal.4th 1, 57, 56.)
“Nothing in the federal Constitution requires the jury, at
the penalty phase, to make written findings; to unanimously
agree that particular aggravating circumstances exist; or to find
beyond a reasonable doubt that aggravating factors exist, that
aggravating factors outweigh mitigating factors, or that death
is the appropriate sentence.” (People v. Jones (2017) 3 Cal.5th
583, 618–619.) The high court’s decisions in Apprendi v. New
Jersey (2000) 530 U.S. 446, Ring v. Arizona (2002) 536 U.S. 584,
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Blakely v. Washington (2004) 542 U.S. 296, Cunningham v.
California (2007) 549 U.S. 270, and Hurst v. Florida (2016) 577
U.S. 92 do not require otherwise. (Jones, at p. 619.) Nor does
the federal Constitution require the trial court to instruct the
jury “that the prosecution has the burden of persuasion
regarding the existence of aggravating factors, the weight of
aggravating versus mitigating factors, and the appropriateness
of a death judgment. [Citations.] In addition, the trial court
need not instruct the jury that life without parole was presumed
the appropriate sentence.” (People v. Garton (2018) 4 Cal.5th
485, 522–523.)
The state death penalty scheme does not violate the
federal Constitution by forgoing intercase proportionality
review, does not violate equal protection by treating capital and
noncapital defendants differently, and does not violate
international law and norms. (People v. Salazar (2016) 63
Cal.4th 214, 257.) The exercise of prosecutorial discretion in
different counties does not violate equal protection; Bush v. Gore
(2000) 531 U.S. 98 does not require otherwise. (People v. Brady
(2010) 50 Cal.4th 547, 589.)
III. MOTION FOR A STAY AND LIMITED REMAND
While Wilson’s appeal was pending, the Legislature
passed the California Racial Justice Act of 2020 (Stats. 2020, ch.
317, § 1) (RJA or the Act), which provides statutory authority
for defendants to challenge criminal proceedings on the basis of
racial, ethnic, or national origin discrimination. As later
amended, the RJA applies to cases involving a death sentence,
as well as to all cases in which the judgment is not yet final.
(Pen. Code, § 745, subd. (j); Stats. 2022, ch. 739, § 2.)
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