Opinion

People v. Wilson

Court
California Supreme Court
Filed
Aug 5, 2024
Status
Published
Cited by
0 cases
Authority
More cited than 30.4%

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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Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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Opinion of the Court by Kruger, J.

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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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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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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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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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

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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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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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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

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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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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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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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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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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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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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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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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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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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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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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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“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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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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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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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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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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