The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RAYMOND LEE OYLER,
Defendant and Appellant.
S173784
Riverside County Superior Court
RIF133032
May 5, 2025
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Kruger, Groban, and Jenkins
concurred.
Justice Evans filed a concurring and dissenting opinion, in
which Justice Liu concurred.
PEOPLE v. OYLER
S173784
Opinion of the Court by Guerrero, C. J.
A jury convicted defendant Raymond Lee Oyler of five
counts of first degree murder (Pen. Code, § 187, subd. (a); counts
1–5)1 after five firefighters died while fighting a wildland fire
that defendant started. The jury also convicted defendant of
20 counts of arson (§ 451, subd. (c); counts 6–8 and 12–28) and
17 counts of possession of an incendiary device (§ 453, subd. (a);
counts 29–45), and made true findings on arson-murder
(§ 190.2, subd. (a)(17)(H)) and multiple-murder (§ 190.2,
subd. (a)(3)) special-circumstance allegations. In the penalty
phase, the jury returned a verdict of death. The trial court
denied defendant’s motion to reduce the death verdict (§ 190.4,
subd. (e)) and sentenced him to death on the murder convictions
and to 28 years on the remaining convictions. Defendant’s
appeal is automatic. (§ 1239, subd. (b).) We affirm the
judgment.
1
Undesignated statutory references are to the Penal Code.
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PEOPLE v. OYLER
Opinion of the Court by Guerrero, C. J.
I. FACTUAL AND PROCEDURAL BACKGROUND2
A. Guilt Phase
Between May 16 and October 26, 2006,3 more than two
dozen wildland fires were reported in the Banning Pass area of
Southern California. The series culminated with a fire known
as the Esperanza Fire, which killed five firefighters assigned to
Engine 57 of the United States Department of Agriculture
Forest Service (Forest Service).
1. Prosecution case-in-chief
a. The fires
i. May 16 “remote device” fires (counts 6–8 and
29–31)4
On May 16, three vegetation fires were set in Banning
within about 16 minutes and two to three miles of each other.
The first fire started around 2:05 p.m. at Sunset Avenue and
Wilson Street, and burned an area approximately 10 feet by
20 feet. The second fire started around 2:11 p.m. at Sunset
Avenue and Mesa Street (about one mile up Sunset Avenue from
2
Because defendant challenges the sufficiency of the
evidence supporting nearly every conviction and special-
circumstance finding, “we review in detail the evidence in
support of the prosecution’s case” (People v. Dalton (2019)
7 Cal.5th 166, 177) and “view the evidence in the light most
favorable to the judgment below” (People v. Hill (2000)
23 Cal.4th 853, 855).
3
Unless otherwise indicated, all relevant events occurred in
2006.
4
For each fire started with an incendiary device, an arson
count was paired with a corresponding incendiary-device count.
Thus, for example, count 6 and count 29 are the arson and
incendiary device-counts, respectively, that correspond to the
first fire on May 16.
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Opinion of the Court by Guerrero, C. J.
the first fire), and burned an area about 10 or 20 feet by 10 or
20 feet. The third fire started around 2:21 p.m. at Gilman Road
and Pump House Road (about one mile up Sunset Avenue from
the second fire), and burned an area of about one-half to one
acre. All three fires started within about 10 feet of the roadside.
An arson investigator who investigated all three fires
determined they were caused by arson. At the point of origin of
each fire, the investigator found a time-delayed incendiary
device consisting of a Marlboro Light cigarette with wooden
matchsticks attached lengthwise by a rubber band. The devices
at the Sunset/Wilson and Sunset/Mesa fires had 31 matches
attached and the device at the Gilman/Pump House fire had
30 matches attached. The matches pointed in both directions,
such that some heads were at opposite ends of the cigarette.
Prosecution witnesses referred to this type of incendiary
device as a “remote device” because it can be constructed ahead
of time and later be lit and deployed by, for example, being
thrown or shot by a slingshot from a car. An arson investigator
testified that a remote device offers the advantage of reducing
the arsonist’s chances of being detected because the arsonist
need not leave his or her car. The disadvantage, however, is
that the arsonist is unable to select an ideal fuel bed, thus
reducing the likelihood of a significant fire.
This type of remote device also functions as a time-delayed
incendiary device. As the investigator explained, the lit
cigarette burns like a fuse to the point at which it touches and
ignites a match head, between about four and eight minutes
after the cigarette is lit. This delay affords the arsonist
additional time to leave the scene undetected after deploying the
device. Investigators surmised that the matches pointed both
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Opinion of the Court by Guerrero, C. J.
directions so that some match heads would abut the cigarette
filter and destroy the device or any DNA the arsonist had
deposited on it while puffing on the cigarette to light it.
ii. May 28, 29, and 31 loose matchstick fires
(counts 9–11)5
On May 28, firefighters responded to a grass fire at
Brookside Avenue and Jonathan Avenue in Cherry Valley. The
fire ultimately burned about one acre. At the fire’s point of
origin, an arson investigator found three loose wooden matches.
On May 29, firefighters spotted a grass fire at Hathaway
Street and Nicolet Street in Banning. The fire covered a small
area, estimated at trial to be no more than around 200 square
feet. At the fire’s point of origin, an arson investigator found two
to three wooden matches.
On May 31, firefighters responded to a grass fire at San
Timoteo and Redlands Boulevard near CaliMesa. The fire
burned about one acre. At or near the fire’s point of origin, an
arson investigator found four wooden matches or match heads.
iii. June and July “layover device” fires (counts
12–22 and 32–41) and uncharged June 11
and June 18 fires
On June 3, firefighters responded to a grass fire burning
near Sixth Street and Xenia Avenue in Banning. The fire had
already burned about two acres, was spreading quickly due to
significant winds, and was threatening nearby residences. The
fire burned an additional acre before the 15 to 20 responding
firefighters were able to extinguish it. At the fire’s point of
origin, an arson investigator found a time-delayed incendiary
5
The jury was unable to reach a verdict on these counts.
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PEOPLE v. OYLER
Opinion of the Court by Guerrero, C. J.
device consisting of a Marlboro Light cigarette with three
wooden matches laid across it. The investigator also found a
blue paper towel, like those used in auto shops, twisted up near
the device.
Investigators working the numerous arson cases had
never encountered such a device, so they referred to it
descriptively as a “layover device.” An investigator explained
that a layover device functions as a time-delayed incendiary
device because the cigarette burns like a fuse until it touches
and ignites the matches laid across it. The farther down the
cigarette the matches are placed, the longer the delay. A layover
device must be constructed onsite, which has the advantage of
allowing the arsonist to place the device in an optimal fuel bed,
thereby increasing both the likelihood of a significant fire but
also of the arsonist being detected.
On June 7, firefighters responded to a vegetation fire at
Jack Rabbit Trail and Highway 60 on the outskirts of Beaumont.
By the time the firefighters arrived, a passerby had already
extinguished the 50-foot by 20-foot fire with a fire extinguisher.
An arson investigator found at the point of origin a layover
device constructed from a Marlboro Red cigarette and six
wooden matches. One of the match heads was laid across the
cigarette’s filter.
On June 9, firefighters responded to a grass fire at Millard
Canyon in Banning. Firefighters determined the fire had
started about five feet from the road and spread about 200 feet
up a gradual slope. At the fire’s point of origin, an arson
investigator found a layover device constructed from a Marlboro
Red cigarette and six wooden matches.
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Opinion of the Court by Guerrero, C. J.
On June 10, firefighters responded to a 20-foot by 20-foot
vegetation fire at Ramon Road and Chino Road in Banning. An
arson investigator found at the fire’s point of origin a layover
device constructed from a Marlboro Red cigarette and seven
wooden matches.
On June 11, firefighters responded to two vegetation fires
in the Banning area. At 12:01 p.m., firefighters were dispatched
to a 20-foot by 30-foot roadside fire at Highland Springs and
Circle C in Banning. An arson investigator found at the fire’s
point of origin a layover device constructed from a cigarette of
undetermined brand and six wooden matches.
Then at 7:30 p.m., firefighters were dispatched to a 50-foot
by 50-foot fire at Highway 243 and Mt. Edna Road.6 Bystanders
had unsuccessfully attempted to extinguish the fire, but
firefighters quickly finished the job. An arson investigator
determined the fire was caused by arson but he was unable to
locate an incendiary device because bystanders had disturbed
the point of origin.
On June 14, three arson fires were set, each using a
layover device constructed from a Marlboro Red cigarette and
five wooden matches. June 14 was a “high dispatch day” on
which weather and fuel conditions increased the risk for fires.
All three fires were started on or near slopes, which accelerate
the rate of burn.
6
Defendant was not charged in connection with this fire,
but evidence regarding the fire was admitted under Evidence
Code section 1101, subdivision (b), and the trial court instructed
the jury regarding the limited uses it could make of the evidence.
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The first June 14 fire occurred in the morning at Ramon
Road and Chino Road in Banning — the same location as the
June 10 layover device fire.
The second fire occurred midday at Broadway and
Esperanza Avenue in Cabazon. When firefighters arrived, the
wind-driven fire was about three to four acres in size and
spreading rapidly. It took 15 fire engines, two air tankers, a
bulldozer, and a helicopter to suppress the fire, which eventually
burned a total of about 10 acres.
The third June 14 fire occurred in the evening along Old
Banning Idyllwild Road in San Gorgonio. When firefighters
arrived, the fire was burning uphill at a moderate rate of speed.
It took seven fire engines, one bulldozer, and one helicopter to
extinguish this fire, which burned a total of about three acres.
On June 16, firefighters responded to a half-acre fire
slowly burning up a steep hillside at Highway 243 and San
Gorgonio. This fire burned about one acre before it was
extinguished. An arson investigator determined the fire was
caused by arson and found a single wooden match at the point
of origin. He did not find a cigarette or layover device but
surmised that wind conditions and suppression activity had
disturbed the point of origin.
On June 18, firefighters responded to a fire at 6th Avenue
and Xenia Avenue in Beaumont, within about 50 yards of the
site of the first layover device fire on June 3.7 By the time
7
As with the uncharged June 11 fire at Highway 243 and
Mt. Edna Road, defendant was not charged in connection with
this fire, but evidence regarding the fire was admitted under
Evidence Code section 1101, subdivision (b), and the trial court
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Opinion of the Court by Guerrero, C. J.
firefighters arrived, residents had largely extinguished the fire
by kicking or shoveling dirt onto it. An arson investigator
determined the fire’s general point of origin and eliminated all
natural and accidental causes for the fire, but was unable to
locate any incendiary device due to the disturbed condition of
the point of origin.
On June 28, firefighters responded to a fire at Winesap
Avenue and Orchard Avenue in Cherry Valley. The fire burned
about two acres before firefighters extinguished it. An arson
investigator found at the fire’s point of origin a layover device
constructed from a Marlboro Red or Marlboro Light cigarette
and five wooden matches.
On July 2, firefighters responded to a vegetation fire on a
very steep slope at Highway 243 and Mt. Edna Road (the same
general location as the uncharged June 11 fire). Firefighters
extinguished the fire after it burned about a 10-foot by 25-foot
area. An arson investigator found at the fire’s point of origin a
layover device constructed from a cigarette of undetermined
brand and five wooden matches.
iv. July 9 remote device fire (counts 23 and 42)
On July 9, firefighters responded to a fire at Meadowlark
Street and Durward Street in Banning. The small fire was
mostly extinguished when firefighters arrived. An arson
investigator found at the fire’s point of origin a remote device
constructed from an undetermined type of Marlboro cigarette
and six wooden matches attached with duct tape (as opposed to
a rubber band like the previous remote devices). One of the
instructed the jury regarding the limited uses it could make of
the evidence.
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Opinion of the Court by Guerrero, C. J.
matches was oriented the opposite direction as the others, with
its head at the cigarette’s filter.
v. September 16 fires (counts 24–25, and 43)
On the afternoon of September 16, firefighters responded
to two fires about one mile apart that were reported within
about five minutes of each other. The weather conditions that
day — which included temperatures of 90 degrees Fahrenheit,
12 percent relative humidity, and hot and dry “Santa Ana”
winds of 15 to 20 miles per hour — led authorities to issue a
“Red Flag Warning.”
The first fire burned about an 8-foot by 8-foot area at
Cherry Valley Boulevard and Roberts Road in CaliMesa. An
arson investigator determined the fire was caused by a remote
device constructed from a cigarette of undetermined brand and
six paper matches wrapped around it and attached with an
undetermined rubbery substance.
The second fire, which would become known as the
“Orchard Fire,” was located at Taylor Street and Orchard Street
in Cherry Valley. The fire began in a drainage wash but escaped
and quickly burned out of control. After 16 hours, about 1,000
firefighters with support from six air tankers eventually
extinguished the fire. The Orchard Fire burned over 1,500
acres, destroyed historic structures and vehicles, and damaged
other structures.
An arson investigator determined the Orchard Fire was
caused by arson, but he was unable to locate an incendiary
device because of extensive disturbance of the point of origin by
firefighting crews and equipment.
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vi. September 17 fire (counts 26 and 44)
On the morning of September 17, firefighters responded to
a fire on Gilman Street in Banning. When firefighters arrived,
the fire was between one and two acres in size and was burning
in a drainage wash. The fire escaped the wash and spread uphill
at a critical rate, threatening nearby residences and spawning
evacuations. Six air tankers, 50 fire engines, and about 350
firefighters were dispatched to the fire, which eventually burned
over 1,600 acres and destroyed a barn and two outbuildings. An
arson investigator found at the fire’s point of origin a remote
device constructed from an undetermined type of Marlboro
cigarette and six paper matches attached with an undetermined
type of adhesive. The cigarette’s filter had been cleanly cut off,
which the investigator opined could have been done to “remove
the end of the filter where any DNA might be.” One of the
matches was oriented with its head against the filter remnant.
vii. October 22 “Mias Canyon Fire” (count 27)
On October 22, firefighters responded to a vegetation fire
at Mias Canyon and Bluff Street, just outside Banning. When
firefighters arrived, the fire was about five acres in size and
burning rapidly at the base of a hill. Additional resources were
deployed, including 30 additional engines, bulldozers, 16 hand
crews, two helicopters, and two air tankers. Firefighters
extinguished the fire after it had burned about 40 acres; without
the air tankers, investigators estimated that it would have
burned around 1,000 acres. An arson investigator determined
the fire was caused by arson but was unable to locate an
incendiary device.
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viii. October 26 “Esperanza Fire” (counts 1–5, 28,
and 45)
On October 25, authorities issued a red flag warning for
the Banning Pass area, which was experiencing Santa Ana wind
conditions.
Around 1:10 a.m. on October 26, firefighters were
dispatched to a wildland fire at Esperanza Road and Almond
Street in Cabazon (about one mile from the origin of the June 14
layover device fire at Esperanza Road and Broadway). This fire
would become known as the Esperanza Fire. A responding
Department of Forestry and Fire Protection (CalFire) battalion
chief ordered substantial resources, which included five Forest
Service fire engines — including Engine 57 — but no air tankers
because they were not permitted to operate in the dark.
When crews arrived at the scene, the fire was about five
acres in size and located at the bottom of a very steep slope.
When the fire hit the slope, it began burning at a critical rate of
speed — about four times faster than on flat land — and quickly
spread to 50 acres, threatening nearby structures. CalFire
ordered a nearby community be evacuated.
Engine 57 was deployed upslope, between the advancing
fire and nearby communities in its path. The engine staged on
a plateau near an octagon-shaped house that firefighters
referred to as the “octagon house.” The approaching fire entered
a drainage wash that acted like a chimney and increased the
fire’s spread and intensity. Around 7:00 a.m., the fire rapidly
advanced on Engine 57, burned through the crew’s location, and
continued on. The crewmembers did not have time to deploy
their emergency protective gear. Three of the firefighters —
Daniel Hoover-Najera, Jess McLean, and Jason McKay — died
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Opinion of the Court by Guerrero, C. J.
at the scene. The other two crew members — Captain Mark
Loutzenhiser and Pablo Cerda — were badly burned and were
evacuated by helicopter. Loutzenhiser died at the hospital
about three hours later; Cerda died at the hospital five days
later.
It took firefighters about five days to contain the
Esperanza Fire. In addition to the five firefighters’ deaths, the
Esperanza Fire eventually burned more than 40,000 acres,
destroyed 39 homes, and caused $100 million in financial losses.
An arson investigator found at the Esperanza Fire’s point
of origin a remote device constructed from an undetermined type
of Marlboro cigarette, six wooden matches, and a rubber band.
One of the matches was oriented the opposite direction from the
rest.
b. Expert testimony
The prosecution presented expert testimony regarding fire
and firefighter behavior: fires burn faster on slopes than on flat
land; drainage washes exacerbate this effect; spot fires create
safety risks for firefighters because spot fires can spread rapidly
ahead of the main fire, trapping firefighters between two fires;
and air tankers and helicopters are critical to fighting wildland
fires. CalFire’s firefighting priorities are, in descending order,
life safety, property preservation, and resource preservation.
The prosecution also presented expert testimony to
support the theory that a single arsonist started all the charged
fires. CalFire Battalion Chief James Engel testified as an expert
regarding arson investigation and incendiary devices. His
training in arson investigation included examining
commonalities between incendiary devices to determine
whether they were built by the same person. Engel concluded
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Opinion of the Court by Guerrero, C. J.
that all the fires charged in this case were started by the same
person and that the variation in incendiary devices reflected the
arsonist’s experimentation and evolution.
Beginning with the three May 16 fires, Engel opined that
the “clumsy” remote devices appeared to be the work of a
relatively inexperienced arsonist because the number of
matches (30 or 31) was “overkill” and made the devices harder
to light. The devices stood out to Engel for several reasons.
First, it is unusual for an arsonist to use wooden matches to
start a wildland fire; it is more common to use paper matches,
which are more readily available. Second, regardless of the type
of matches used, it “is not common” or “typical” for wildland
arsonists to use “a cigarette/match device” or other “time-
delayed device”; they “typically use[] just an open-flame device”
to “[l]ight[] the fire and leave[].” Engel testified he had never
seen an incendiary device that combined a cigarette with
wooden matches. Another arson investigator similarly testified
that while incendiary devices are commonly constructed from
cigarettes and paper matches, he had never seen — in his 350
investigations — one that used wooden matches.
Turning to the May 28, 29, and 31 fires, Engle found the
fact that these fires were all started with loose wooden
matches — unusual in and of itself — to be consistent with an
arsonist experimenting with ignition methods. Engel explained
that these fires allowed the arsonist to select an ideal fuel bed,
increasing the likelihood of a significant fire.
Engel found the use of layover devices at 10 fires in June
and July consistent with an arsonist “experimenting with . . . a
configuration for the incendiary device.” This was particularly
true of the first layover device fire on June 3 because it included
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Opinion of the Court by Guerrero, C. J.
a blue paper towel that Engel believed was intended to act as an
accelerant. Engel explained that the layover devices gave the
arsonist “the best of both worlds” by combining the time-delayed
benefit of the initial remote devices with the ideal placement
benefit of loose matchsticks. Although he acknowledged the
layover devices increased the arsonist’s chances of being
detected while placing the device, Engel observed that the
layover device fires tended to be in locations that “didn’t have a
lot of exposure.” Engel opined that the similarities among the
layover devices, including meticulous placement of five to seven
matches on a cigarette, indicated they were all constructed by
the same person. Engel also found it significant that the layover
devices and the May 16 remote devices all involved the
uncommon combination of cigarettes and wooden matches, some
of which were placed on the cigarette filter in an apparent
attempt to destroy evidence.
Engel acknowledged that the series of layover device fires
was interrupted by the June 16 loose matchstick fire, but he
noted that the uncommon use of a wooden matchstick was
consistent with the larger series of fires. Engel theorized that
the deviation resulted from the lack of a good place for the
arsonist to stop his or her vehicle to access a suitable origin
point.
Engel offered several explanations for the arsonist’s
return from layover devices to remote devices. The arsonist may
have become aware of the ongoing investigation or that he or she
had been seen placing the layover devices. Returning to remote
devices allowed the arsonist to reduce the chances of detection
and to minimize the physical evidence that investigators might
find.
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Regardless of the arsonist’s motive for returning to the
remote devices, Engel found it significant that these devices also
used approximately the same number of matches as the layover
devices, indicating that the arsonist had learned from that
experience that he or she did not need to use as many matches
as with the first three remote device fires. Like the earlier
remote devices, the more recent ones also had matches oriented
so that one match head abutted the cigarette filter. And even
though two of the remote devices used paper matches rather
than wood matches, Engel noted that they used the same
number of matches as the wooden match remote devices.
Another arson investigator testified that while incendiary
devices constructed with cigarettes and paper matches are
“typically” constructed by “taking [a] matchbook and just sliding
the cigarette into the matchbook itself and closing the cover,”
the paper match remote devices here were constructed similarly
to the wooden match remote devices in that the paper matches
were wrapped around the cigarette.
Engel also found it significant that the arsonist
experimented with incendiary devices in phases — three remote
devices, three loose wooden matches, 10 layover devices, four
remote devices — rather than alternating devices from fire to
fire.
Engel testified that his observations about the
consistencies across the various incendiary devices likewise
applied to the remote device recovered from the Esperanza Fire.
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c. Evidence implicating defendant as the single
arsonist
i. Surveillance footage
Investigators identified defendant as a suspect after
seeing his vehicle on surveillance footage near one of the
charged fires. In response to the series of arson fires, CalFire
investigators placed hidden surveillance cameras on utility
poles around the Banning Pass area. Shortly after the
October 22 Mias Canyon Fire, investigators reviewed footage
from a camera they had placed in that area. Footage from
around the time that fire was reported showed a Ford Taurus
driving toward the direction of the fire and returning about
10 minutes later. Investigators traced the Taurus’s license
plate to defendant. The prosecution introduced evidence
showing that defendant bought a used blue-grey Taurus in early
2006 and spraypainted it flat black a few months later.
ii. Eyewitnesses
On June 11, as John L. was stopped at a turnout on
Highway 243, he saw a flat black Taurus drive by. The driver
raised his arm to cover his face as he passed, revealing a red,
yellow, and blue and/or black tattoo on his arm. When John
resumed driving in the direction from which the Taurus had just
come, he saw a fire next to the road about 400 feet from the
turnout. This fire occurred at the time and location of one of the
uncharged fires. (See fn. 6, ante.) At trial, John identified
defendant as the driver of the Taurus. The prosecution also
introduced a photograph of defendant showing a tattoo of red
and yellow flames on his left forearm.
On June 14, Ronald M. was working outdoors at a property
on Old Banning Idyllwild Road when he saw a “severely
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oxidized” brown Taurus drive by. About 30 minutes later, he
saw the Taurus return, shortly after which he saw smoke
coming from a fire in the direction the car had just come. This
fire occurred at the time and location of one of the June 14
layover device fires. At trial, Ronald testified that a photograph
of defendant’s Taurus looked similar to the car he saw on
June 14.
On June 28, D.N. was feeding her horses on her property
near Winesap and Orchard Avenues in Cherry Valley when she
saw an older model sedan with “very oxidized” dark black or blue
flat paint enter her property. The car did not slow down until
the driver noticed D.N., at which point the driver abruptly
stopped the vehicle, waved at D.N., and then backed up and left.
About 15 to 20 minutes later, D.N. smelled smoke and
discovered a fire just down the road. This fire occurred at the
time and location of the June 28 layover device fire. At trial,
D.N. testified that a photograph of defendant’s Taurus “look[ed]
like it could be” the car she saw on June 28.
iii. DNA
Investigators submitted the cigarettes recovered from the
June 9 and 10 layover devices to the Department of Justice
(DOJ) for DNA testing. An analyst obtained a complete DNA
profile from the June 9 cigarette that matched defendant. The
analyst obtained a partial DNA profile from the June 10
cigarette that, to the extent of the partial profile, also matched
defendant.
iv. Tire treads
After the June 28 incident at D.N.’s property,
investigators created molds of tire impressions left by the car
that had entered the property. Four months later, on
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October 28, investigators created molds from the tire treads on
defendant’s Taurus. A DOJ criminalist compared four
characteristics of the molds: tread design, tire dimensions,
wear, and individualizing marks. The analyst determined that
the treads had similar designs and dimensions.
The analyst also compared defendant’s Taurus tire treads
with photographs of tire treads left at other fire scenes. She
determined that the tread design left at the scene of one of the
June 14 fires was similar to defendant’s tire tread.
v. Match analysis
Another DOJ criminalist testified about analyses she
performed on matches recovered from many of the crime scenes.
For the wooden match sticks, she examined their morphological
appearances (length, stick shape, and head size and shape),
stick diameters, match head colors, and elemental or chemical
composition. Based on these analyses, she identified many
common features among the recovered matches.
The loose matchstick recovered from the June 16 fire and
the matches recovered from layover devices at the June 3,
June 14, and July 2 fires “were similar in the morphological
features as well as elemental composition.” The matches
recovered from the remote devices at two of the May 16 fires and
the July 9 fire “were similar in length range,” stick shape,
diameter, and elemental composition. The matches recovered
from the June 9 and 10 layover devices were morphologically
and elementally similar to each other and to matches from a box
of Diamond brand strike-on-box matches that investigators
discovered at the home of defendant’s fiancée’s mother. The
matches recovered from the uncharged June 11 fire and the
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June 28 layover device were similar in length, stick shape,
diameter, and elemental composition.
vi. Motive and opportunity, generally
Prosecution witnesses testified to defendant’s motive and
opportunity in setting the series of arson fires.
In 2000, defendant applied to become a volunteer
firefighter and began the training process. He was assigned
training regarding emergency safety gear for wildland fires but
discontinued the training after a few months. Later, in July
2006 — in the midst of the charged fires — defendant
approached CalFire personnel about how to become a volunteer
firefighter.
Defendant owned two retail police scanners that receive
communications between firefighting agencies. Investigators
found one scanner in defendant’s bedroom at his parents’ house
and another one connected to external speakers in his
apartment that was on “pretty much 24/7.”
During the year-and-a-half period leading up to the
Esperanza Fire, defendant lived with his fiancée, Crystal B.,
and their infant daughter in an apartment on Xenia Avenue in
Beaumont. Their apartment was near the site of the June 3
layover device fire and the uncharged June 18 fire. During this
period, defendant admitted to Crystal that he was an arsonist.
Crystal had found in their hallway closet a plastic baggie
containing five to seven newspaper articles about local fires.
When she confronted defendant about the articles, he admitted
he started the subject fires by wrapping something around
matches and a cigarette. Defendant told Crystal he had not told
anyone else about the fires and that he had acted alone.
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Defendant also admitted to Crystal that he started some
fires with a cigarette and matches to frame and gain leverage
over his cousins. Defendant was engaged in a custody dispute
with the cousins over his two-year-old daughter from a previous
relationship. The first May 16 fire was less than one mile from
the cousins’ home and occurred around the time of a custody
hearing.
After defendant admitted to Crystal in July 2006 that he
started another fire in Moreno Valley (unrelated to this case),8
Crystal issued an ultimatum that defendant stop setting fires or
she would leave him. Shortly after the ultimatum, there was a
pause in the arson series from July 9 to September 16.
On September 16 — the day the arson series resumed with
the Orchard Fire — defendant and Crystal were visiting her
mother a few blocks from that fire’s point of origin. Defendant
was doing yardwork at the mother’s home and left for about
30 minutes. Shortly after he returned, “all of a sudden there
was a fire.” Defendant’s second-cousin, Jill F., who was also
friends with Crystal, testified that Crystal was so suspicious of
defendant that she broke into the trunk of his car to look for
evidence that he started the Orchard Fire. When Crystal
confronted defendant about starting the fire, he admitted he did
it.
8
Crystal testified this admission occurred in January or
February 2006 after she and defendant saw news coverage
about a fire in Moreno Valley. However, a public information
officer for CalFire testified that the only fire in Moreno Valley
that received media attention between November 2005 and
October 2006 occurred on July 5, 2006.
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Jill testified she also witnessed defendant engage in
suspicious behavior. A day or two after the Orchard Fire
started, Jill was driving with defendant in her car while he
watched the fire in the distance through his binoculars. And on
the evening of October 22 — the day of the Mias Canyon fire —
while Jill was at defendant’s apartment, he asked whether she
had heard anything over the scanner about fires because he had
been trying to start one. Later that night, Jill observed
defendant and Crystal arguing about the fact defendant had not
come home the night before because he had fallen asleep in his
car in the parking lot at Banning High School while “casing the
area” for a location to start a fire.
All the fires in Banning Pass between May and October
were set within 15 miles of defendant’s apartment, and were
often close to his apartment, his workplace, or Crystal’s mother’s
home. Seventeen of the charged fires occurred through early
June while defendant worked only part-time as an auto
mechanic. The remaining charged fires were set after defendant
began a full-time mechanic’s position, but all occurred outside of
his working hours.
vii. Motive and opportunity as to the Esperanza
Fire
On October 21, about five days before the Esperanza Fire,
animal control seized a dog belonging to defendant’s sister,
Joanna. Defendant was very angry about this and had a
conversation with Joanna the next day. Defendant suggested
setting a fire to create a diversion so they could free the dog from
the shelter. Defendant made similar statements to Jill on
October 22 and 24. Because defendant’s Taurus had a flat tire,
he asked Jill for a ride so he could “set the mountain on fire,”
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but she declined. Joanna’s dog was redeemed from the shelter
on October 25.
Around 11:00 p.m. on October 25, defendant drove Crystal
home from work in a Chevy Malibu he had purchased from his
employer about a week earlier.
Around 11:30 p.m., Joanna and her friend Colete N. were
at defendant’s parents’ house, where Joanna lived. Colete
testified that she loaned her Saturn vehicle to Joanna so she
could go to defendant’s apartment to talk to him. Wearing
slippers, Joanna drove off in the Saturn with Colete’s cell phone
still inside. Cell phone records indicated Colete’s phone was
active between 12:00 a.m. and 12:36 a.m. on October 26, and
again after 1:49 a.m. The Esperanza Fire was started around
the middle of the inactive period.
Sometime before 1:00 a.m. that early morning, Crystal left
her apartment in the Malibu to go shopping at Walmart. She
arrived at 1:10 a.m. and left at 2:27 a.m. After stopping for fast
food, she arrived home around 2:50 a.m. Only defendant and
their daughter were there. Defendant and Crystal got into an
argument, and defendant left the residence, taking the keys to
the Malibu, around or sometime after 3:30 a.m. Crystal would
later lie to Jill, claiming to have been home with defendant the
entire night of October 25 and morning of October 26.
Around 2:30 a.m. on October 26, defendant was seen
watching the Esperanza Fire from a Shell gas station in
Cabazon about one-half to three-quarters of a mile from the
fire’s point of origin. A fuel truck delivery driver testified that
he saw a man — whom he identified at trial as defendant —
standing on a fuel pump island, with no vehicles around,
watching the fire. The delivery driver commented to defendant
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that the fire was burning in an unusual manner, but defendant
responded that “it looked normal to him for the conditions,”
which gave the driver the impression that defendant had “some
type of knowledge or training of what he was looking at.”
Defendant’s “primary focus” while at the gas station “was on the
fire.” At trial, the driver identified himself and defendant in
security camera footage from the gas station.
Meanwhile, between 1:55 a.m. and 3:00 a.m. that early
morning, Colete called her own cell phone from defendant’s
parents’ house several times trying to get her car back. Joanna
eventually returned the car around 4:00 a.m. Colete, who
smoked cigarettes but never in her car, found cigarettes and
ashes in the car’s ashtray. Joanna had never smoked in Colete’s
car on the previous occasions she had borrowed it.
On October 27, Riverside County Sheriff’s Detective Scott
Michaels interviewed defendant. Defendant denied any
involvement in the fires and initially told Michaels he was home
all night on October 25. Defendant later corrected himself,
saying he “forgot [he] went to the casino” around 1:00 a.m. in the
Malibu. Defendant said he parked and entered from his usual
lucky location on the fifth floor, gambled and lost $30 in about
five minutes, and then left, noticing the Esperanza Fire as he
exited the casino. On the way home, defendant stopped for
cigarettes at the Shell station in Cabazon. Defendant said he
smokes cigarettes, but “not too much,” and that his favorite
cigarettes are “Kools” brand menthols. Employing a ruse,
Michaels falsely told defendant that investigators had found tire
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treads matching his Taurus at the scene of the Esperanza Fire,
but defendant insisted that was a mistake.9
To verify defendant’s alibi, a detective reviewed security
camera footage from the fifth floor of the casino and its parking
structure from 9:00 p.m. on October 25 to 4:00 a.m. on
October 26. The detective saw neither defendant nor his
Malibu.
viii. Additional evidence implicating defendant
Crystal testified that defendant is a smoker and that he
“smoked Marlboro Reds and Kools occasionally.” Sheriff’s
detectives searched defendant’s apartment and found a large
ashtray outside the front door containing 149 cigarette butts of
varying brands, nearly half of which were Marlboro Reds. Nine
of the recovered butts were examined for DNA, and eight
matched defendant’s profile; the only sample that did not match
him was from a Kool. In defendant’s toolbox at work, detectives
found three cigarette filters that had been clipped off.
Defendant’s manager testified that defendant normally smoked
Marlboro Red cigarettes, but whenever the manager saw
defendant borrow a different brand of cigarette, he “clipped the
filter off” with wire cutters.
The manager of the auto shop where defendant worked at
the time of the June 3 layover device fire — at which
investigators found a blue paper towel — testified that his shop
used blue paper towels.
9
Michaels testified that at the time of the interview
investigators were aware that defendant also drove a Malibu
but were unaware that defendant may have been driving
Colete’s borrowed Saturn on the night of the Esperanza Fire.
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Investigators searched defendant’s Taurus and found
Marlboro cigarette butts in the ashtray; empty Marlboro
cigarette packs in the car; one wooden matchstick and two paper
matches; a wig, a knit cap, latex gloves, and women’s clothing;
a grocery list with burn marks on it; and a slingshot on which
the rubber tubing had apparent burn marks. The car was filled
with dirt, dust, weeds, and twigs.
At defendant’s apartment, investigators found binoculars
and a duffel bag containing rubber bands. Investigators also
searched defendant’s parents’ home. There, investigators found
in a toolshed a bag of defendant’s belongings near a box of
wooden matches. In the parents’ living room, investigators
found a bag belonging to defendant that contained duplicated
copies of two chapters of the book The Anarchist Cookbook
pertaining to explosive devices and booby traps. At Crystal’s
mother’s home, investigators found Diamond strike-on-box
matches, some of which were wrapped in cellophane.
d. An inhabited structure burned in the Esperanza
Fire
A Twin Pines resident testified that she evacuated her
home on the morning of October 26 because of the approaching
Esperanza Fire. When she returned after the fire, her home
“was completely gone.”
2. Defense case-in-chief
To rebut the fuel truck delivery driver’s testimony that he
saw defendant watching the Esperanza Fire at the Shell station
in Cabazon, the defense called the station’s cashier, who
testified he was the individual in security camera footage
talking with the delivery driver (although the cashier had no
independent memory of it). The cashier acknowledged on cross-
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examination that the person he identified as himself in one of
the photos could not, in fact, have been him.
Defendant’s sister Joanna testified at length for the
defense. She testified that she, defendant, and Jill used
methamphetamine daily in October 2006. On October 24, after
the three smoked methamphetamine together, they drove to the
animal shelter, where defendant cut the lock on the fence before
hurrying back to the car and leaving without the dog.
On October 25, according to Joanna, she borrowed Colete’s
Saturn around 11:30 p.m. or 12:00 a.m. but did not go to
defendant’s apartment until around 3:00 a.m. In the meantime,
she crisscrossed Banning borrowing money from friends and
buying drugs. She claimed to have made all the phone calls from
Colete’s cell phone to defendant’s apartment during the relevant
period.
On cross-examination, Joanna admitted that although she
had spoken to detectives four times after the fires and testified
at defendant’s preliminary hearing, her trial testimony was the
first time she mentioned looking for drugs in the early morning
hours of October 26. In her prior interviews, Joanna stated she
had driven directly to defendant’s apartment after borrowing
the Saturn. She also acknowledged that although she testified
that she spoke by phone with her daughter when her daughter
called defendant’s apartment at 3:00 a.m., she had previously
told detectives this call took place at 2:00 a.m. Phone records
showed such a call occurred at 2:03 a.m. Providing defendant
an alibi, Joanna also told detectives that he called their parents’
house between 12:00 and 1:00 a.m., but no such call is reflected
in phone records, and by the time Joanna made this claim she
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had become aware that the Esperanza Fire had started around
1:00 a.m.
Joanna denied the prosecutor’s suggestion that she went
to defendant’s apartment to babysit defendant’s daughter (thus
explaining why she left home wearing slippers) and that
defendant left in the Saturn after Joanna arrived. She
maintained that Crystal — who was not home at the time — did
not allow Joanna to babysit. Joanna also testified that she
smoked the cigarettes that were left in Colete’s car and that
Colete was upset with her about it.
Joanna admitted at trial that she had a prior felony
conviction for aggravated assault and had forged a neighbor’s
checks numerous times; that she lies when she is afraid of
something and was “afraid here that something bad [was] going
to happen to [her] brother”; and that defendant said he wanted
to start a fire to create a diversion to free her dog from the
shelter.
Gary Eidsmoe, a then-retired CalFire arson investigator
who had been involved in the Esperanza Fire investigation,
testified that in the more than 100 wildland fires he
investigated, about one-third involved an incendiary device. Of
those, however, only six “including this one” involved incendiary
devices “that were constructed using wood kitchen matches and
a cigarette in some fashion.” (Italics added.) He acknowledged
that “none of those six were a device such as the Esperanza
device” and that the others involved “[d]ifferent
configuration[s].”
The defense recalled many of the DOJ criminalists who
had testified in the prosecution’s case-in-chief. They confirmed
that they found no DNA on the cigarettes from the incendiary
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devices that started the May 16 fires; the rubber bands used in
the May 16 incendiary devices did not match the rubber bands
recovered from defendant’s apartment; the brand of cigarettes
used in many of the incendiary devices could not be definitively
determined; and tire tread impressions from the Esperanza Fire
scene did not match defendant’s Taurus or Malibu (the Saturn
was not tested).
A forensic scientist hired by the defense testified that a
partial DNA profile obtained from the rubber band in the device
used in the second May 16 fire did not match defendant.
Additionally, a defense investigator testified about her
research regarding the availability of wooden matches in the
Banning Pass area. Out of 47 stores she visited in the area, only
14 — a “relatively small number of places” — sold wooden
matches. The investigator also testified that she had timed the
drive from defendant’s apartment to the point of origin of the
Esperanza Fire, but acknowledged she conducted her
experiment at 8:25 a.m. instead of 1:00 a.m., when traffic
conditions would have been different, and that her conclusions
did not match her recorded travel speeds.
Regarding the prosecution’s theory that Joanna babysat
while defendant started the Esperanza Fire, Crystal testified
that she does not allow Joanna to babysit because of her drug
use (though she acknowledged she lets defendant watch their
child despite his drug use). She also testified that she, and not
defendant, owned certain items glamorizing violence and
“burning things” that investigators found in the apartment.
Regarding the Orchard Fire, Crystal denied having told Jill that
defendant left for about a half-hour before the fire, or that she
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suspected defendant had started the fire and broke into the
trunk of the Taurus to look for evidence.
Crystal’s mother testified that defendant never left her
house before the Orchard Fire, but she acknowledged she and
Crystal were busy inside while defendant was working outside.
David Smith, a “fire and explosion consultant and
investigator” who had investigated “several hundred” wildland
fires, testified as an expert for the defense. He explained that,
in his experience, serial arsonists used a single signature
incendiary device and did not deviate from it. A counterexample
was “possible,” but not “reasonable.” Based on the different
types of incendiary devices used in the series of fires at issue,
Smith believed that “[t]wo and possibly three” arsonists were
responsible for the series of fires. First, based on the similarities
between the remote devices found at the May 16 fires and the
Esperanza Fire, Smith opined “conclusively” that the same
single arsonist was responsible for these fires — but none of the
others in the series. Although he had never seen the “exact”
type of remote device used in these fires, he had seen similar
match/cigarette/rubber band devices in training and literature,
and in about two or three past investigations. However, none of
those investigations involved wildland fires, and Smith
admitted more generally that he had never seen a time-delayed
incendiary device used in connection with a wildland fire.
Second, based on his characterization of the layover
devices as “very, very unique” — he had “never seen this either
in training or literature or in the field” — Smith opined they
were all “the work of one person.” Because defendant’s DNA had
been found on two of the layover devices, Smith concluded that
defendant “would also be responsible for all ten of . . . the
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layover devices.” But Smith found that the layover devices and
the remote devices were “not similar” to each other and, thus,
he found it “reasonable” to conclude that “different arsonists”
were responsible for the fires started with the different types of
devices.
Third, Smith found it “reasonable that [there] certainly
may be a third individual” responsible for the fires started by
the paper match remote devices and the remote device
constructed with duct tape.
Based on these differences, Smith posited that “copycat[s]”
may have accounted for fires started with different incendiary
devices. But he acknowledged that although news coverage of
the fires may have referenced incendiary devices, the coverage
did not describe the devices in detail or mention that they used
cigarettes and matches.
Smith further acknowledged that the series of fires
“happened within a relatively short time frame,” in “a relatively
small geographic area,” with “a pretty small population base.”
He agreed “that paper matches are much more common than
wooden matches,” and acknowledged he had not considered the
defense investigator’s report regarding the scarcity of wooden
matches in the area.
During cross-examination, the prosecutor questioned
Smith about a device investigators discovered in defendant’s
kitchen pantry. The device consisted of a plastic cylinder with
two switches on top — a two-way toggle switch and a four-way
toggle switch —connected by wire leads. Smith considered the
device to be a “contraption” rather than a “device” because “a
device” can “do[] something” whereas this contraption can “do[]
nothing.” Smith acknowledged seeing some type of “toggle
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switch” device in The Anarchist Cookbook, but not one with a
secondary “directional switch” like defendant’s device, which
Smith deemed suitable for use with remote-controlled vehicles.
Smith conceded, however, that the device could start a fire if
connected to a power source.
3. Prosecution’s rebuttal evidence
In rebuttal, the prosecution recalled a DOJ DNA analyst
who explained that rubber bands are “probably one of the last
things” he would test for DNA because they are “passed around”
and can become confounded by innocent prior users’ DNA or by
the suspect’s use of gloves while assembling the device. He
chose to test cigarettes instead because they are more likely to
have more concentrated DNA from the suspect’s saliva.
A Riverside Sheriff’s deputy assigned to the department’s
Hazardous Device Team testified that, based on his training and
experience, the toggle switch device recovered from defendant’s
pantry was “an improvised initiating system or incendiary
device” that could start a structure fire. He concluded from the
presence of two toggle switches that one was a “safety,” which
supported his conclusion that the device was an incendiary
device because “there’s no need to have . . . a safety switch” on a
device used for “normal things, like powering a car.”
In rebuttal to defense expert Smith’s signature-device
theory, the prosecution called retired CalFire Arson
Investigator Douglas Allen, who had been the primary
investigator or supervisor in over 100 serial arson investigations
and had spoken to dozens of serial arsonists. Based on his
training and experience, Allen opined that serial arsonists do
not adhere to a single signature incendiary device, but rather,
“use a multiplicity of different devices” for a variety of reasons
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such as overcoming failures, avoiding detection, or confusing
investigators.
Looking at the evidence “in totality,” Allen testified it was
his “opinion that an individual made all of the incendiary
devices from the beginning of May 16th through the Esperanza
Fire.” Allen noted many “similarities or commonalities” among
the incendiary devices. First, most involved wooden matches,
which “in and of itself is out of the norm. The norm is a paper
matchbook.” Second, many of the devices included “placement
of a single match facing the opposite direction” toward the filter,
making the incendiary device “sort of a self-destructing device.”
Third, once the arsonist began consistently constructing layover
devices with five to seven matches, Allen found it significant
that the later remote devices were also constructed with a
similar number of matches because it reflected an evolution
from the much larger remote devices used at the May 16 fires.10
Allen also testified about many significant factors beyond
the similarities among the incendiary devices. First, the fact
that similar types of devices were used in strings of fires
indicated a single arsonist because Allen would have expected
to see “totally different device[s] show up” in the same time
frame if multiple arsonists were active. Second, multiple fires
were set on a single day. Third, Allen noted an evolution toward
more sophisticated vegetation fuel beds, progressing from
grassfires to heavier fuels, and “from flat ground grass to slope
10
Allen believed the May 16 devices were “overkill” because
“[f]our [to] six matches work just as well” as 30 or 31 and do not
carry the logistical or safety hazards involved with lighting a
cigarette surrounded by “30-some matches . . . at your mouth,”
which Allen deemed “very dangerous.”
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fires” that “burn[] faster uphill.” Fourth, Allen considered the
roadside location of the points of origin, the visibility and
exposure of the locations, and the sparse population of the areas.
Finally, Allen found the geographic pattern of the fires
significant. He explained that the fire locations fell within “a
shotgun pattern” that, at first, appeared to have “no rhyme or
reason to it,” but upon “close[r] analysis” reflected “clusters of
fire activity” showing that the arsonist had “come at least twice
to a particular area to set a fire.” For example, the June 14
layover device fire and the Esperanza Fire both occurred in the
area of Broadway and Esperanza.
Allen acknowledged there were slight deviations in the
pattern of incendiary devices, like the loose matchstick fire on
June 16 in the midst of a series of layover device fires. But Allen
reasoned the arsonist may have impulsively started “a fire of
opportunity.”
Allen explained that, because arsonists tend to progress
toward increasingly destructive fires, it is more common for
wildland arsonists to progress to setting structure fires than
vice versa.
Lastly, in response to the gas station cashier’s conflicting
testimony, the fuel truck delivery driver testified in rebuttal
that he “know[s] the difference between” defendant and the gas
station cashier and “wouldn’t confuse them.” The driver
acknowledged, however, that when he picked defendant’s
photograph out of a lineup, he had recently seen defendant’s
photograph on the news or had seen him in person while having
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his vehicle serviced at the shop where defendant worked.11
Nevertheless, he maintained his in-court identification of
defendant was based on his personal observation of defendant
during the Esperanza Fire.
4. Jury verdicts and findings
The jury found defendant guilty on all five murder counts,
20 out of 23 arson counts,12 and all 17 counts of possession of an
incendiary device. The jury also made true findings on arson-
murder and multiple-murder special-circumstance allegations.
B. Penalty Phase
1. Prosecution evidence in aggravation
a. Circumstances of the Esperanza Fire
The prosecution called several Forest Service firefighting
personnel to testify about the circumstances under which they
found their colleagues during the Esperanza Fire. Battalion
Chief Christopher Fogle, a close friend of Captain Loutzenhiser,
watched from a nearby position as the fire burned over
Engine 57’s location. Fogle and his crew traveled to the
burnover scene, where they discovered the injured and dead
crewmembers.
11
The detective who administered the lineup confirmed in
the defense surrebuttal case that the driver mentioned this
during the lineup, but the driver “didn’t describe it as a problem”
and positively identified defendant with certainty in the lineup.
The driver also told the detective about his conversation with
defendant about the fire’s behavior.
12
The jury was unable to reach verdicts on counts 9 through
11 — the loose matchstick fires on May 28, 29, and 31 — and the
trial court declared a mistrial on those counts.
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Captains Richard Gearhart and Freddie Espinosa also
responded to Engine 57’s location. They first encountered the
badly burned body of Pablo Cerda, and believed he was dead.
When the crew radioed that Engine 57’s crew had been found
dead, Cerda moved his arm and Gearhart radioed for medical
assistance. Captain Anna Dinkel later assisted with Cerda’s
evacuation and saw that his eyes were closed, he was not
speaking, and he appeared to be in pain.
Gearhart found Loutzenhiser next. His body was badly
burned and he was rolling back and forth, repeating, “Air, air,
air.” Fogle rushed to Loutzenhiser’s location to comfort him.
Loutzenhiser tried to speak but Fogel could not understand him.
The fire crews found Daniel Hoover-Najera’s dead body
next. His body was on fire, so firefighters extinguished the
flames.
A fire crew tried to approach Engine 57 but was unable to
because it was heavily engulfed in flames and its oxygen tanks
were exploding. When crewmembers moved around the engine,
they found the body of Jess McLean on fire. Firefighters
extinguished the flames with their canteens.
Firefighters found Jason McKay’s body last. His body was
so badly burned that Fogle “probably walked past him a half a
dozen times and didn’t notice that it was a body.” McKay’s body
was still on fire, so firefighters extinguished the flames with
their canteens.
Helicopters responded to airlift Loutzenhiser and Cerda.
At great risk to themselves, the pilots landed in 57-miles-per-
hour winds, well beyond CalFire’s 40-miles-per-hour “maximum
safe zone.”
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A leader of CalFire’s safety accident review team, Bradley
Harris, testified about his six-month investigation of the
Esperanza Fire burnover. Harris determined that McLean and
McKay had moved a short distance trying to escape the fire and
assumed a prone position to protect their airways. Hoover-
Najera’s footprints and scattered gear indicated he was running
around on fire for “well over 30 seconds.” Harris determined
that the Esperanza Fire burned over the site at about 30 miles
per hour, which is “beyond extreme.” The shape of the octagon
house accelerated the rate of the fire.
CalFire determined that the Esperanza Fire burned 39
homes, caused $100 million in financial losses, and inflicted
non-life-threatening burns to a civilian’s hands and face.
b. Uncharged fires on October 26
The prosecution introduced evidence to show that
defendant started two additional fires on October 26 and that he
was aware before the second of those fires that firefighters had
died in the Esperanza Fire. We discuss this evidence in more
detail in part II.C.1., post.
c. Victim impact testimony
The prosecution presented victim impact testimony from
each victim’s survivors: Loutzenhiser’s wife, brother, and
daughter; McKay’s mother, sister, and fiancée; McLean’s
mother, brother, and sister; Najera-Hoover’s mother, aunt,
sister, and girlfriend; and Cerda’s father. Each witness testified
generally about the kind of person the victim was, how the
witness learned of the victim’s death, and what the witness
missed about the victim.
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d. Forensic pathologist
The forensic pathologist who conducted or reviewed the
victims’ autopsies testified about the medical circumstances of
their deaths and introduced photographs taken during the
autopsies. We discuss this evidence in more detail in part
II.C.2.c., post.
2. Defense mitigation evidence
a. Fire expert
The defense called the CalFire investigator who conducted
an after-action review of the Esperanza Fire burnover to
“determine what happened . . . and provide lessons learned.”
The octagon house was identified as “nondefendable” on a map
that firefighters use as a guide to assess the defensibility of
structures under average fire conditions, but the map had its
limitations (e.g., conditions might have changed since it was
prepared in 2002), and this information was not communicated
to Engine 57’s crew. The investigator further testified that
under prevailing conditions, “about every house out there could
have been a red dot,” i.e., a nondefendable structure, and that
even with such a rapidly moving fire, it was appropriate to
deploy resources and personnel to protect structures that were
deemed defensible. The investigator testified that with “any
wildland fire, we can’t predict exactly what’s going to happen,”
and that the Esperanza Fire involved “extreme conditions.”
With the benefit of hindsight, the investigator did not know that
firefighters should have been positioned at the octagon house.
Yet he could not rule out the possibility that he might have “at
least utilized it as a lookout initially.”
On cross-examination, the investigator testified that
regardless of whether a house was a “red dot” on a map,
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firefighters still had to undertake a personal assessment of
whether there were people in the vicinity potentially in need of
evacuation or rescue. He also testified that there were two green
dots, indicating defensible structures, close to the octagon
house’s red dot on the map. Looking back, the investigator
thought that Captain Loutzenhiser’s actions were reasonable.
“Anybody would have died at that location,” he testified; the
circumstances involved with the area ignition were “very rare.”
The investigator agreed with the prosecutor’s characterization
of fire as being “unpredictable” “by its very nature.” He also
agreed with the prosecutor that among the hundreds of fires
that had been fought that previous summer, “every single one of
the fires could have become this big.”
b. Defendant’s fiancée, mother, and sister
Crystal maintained defendant was innocent. She testified
she had personal knowledge of his whereabouts during the
Orchard Fire and the Esperanza Fire and that he did not start
either. On cross-examination, Crystal acknowledged that she
had lied to Jill about defendant’s whereabouts the night of the
fire; she and defendant joked that they were going to sue the
county for “a bunch of money” if the jury acquitted him; and she
had recently admitted previously accusing defendant of starting
the Orchard Fire.
Defendant’s mother testified that defendant was the
eldest of her four children; she raised him with a religious
upbringing and tried to instill good values; defendant’s father
had recently died; she visited defendant while he was in custody
and would continue to do so; and defendant did kind things for
her and was a good father to his children. She also identified
photos of defendant with his family members.
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Defendant’s adult daughter testified that she moved to
Minnesota when she was eight years old but stayed in contact
with defendant and visited him every summer, and that he was
a good father to her and a good grandfather to her daughter.
c. Mitigation expert testimony
A licensed private investigator with a background in law
enforcement testified as a mitigation expert about defendant’s
“potential for adaptability as an inmate should he receive a
sentence of life without parole versus the death penalty.” She
testified that defendant had not been subject to any discipline
during the two and a half years he had been in custody and “that
he would adjust to institutional life very well.”
3. Prosecution rebuttal evidence
CalFire Captain Fogel testified that the Engine 57 crew
did nothing wrong in responding to the Esperanza Fire and that
there were defensible aspects to the octagon house.
4. Jury verdict and sentence
After deliberating for about one day, the jury returned a
verdict of death. The trial court denied defendant’s motion to
reduce the death verdict and sentenced him to death on the
murder convictions and to 28 years on the remaining
convictions.
II. DISCUSSION
A. Pretrial Issues
1. Attorney representation issues
Defendant raises two challenges regarding his
representation at trial. First, he contends the trial court
violated his constitutional right to be present at a critical
proceeding by discussing outside his presence a request by the
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prosecution that the trial court inquire into defendant’s retained
counsel’s qualifications to try a capital case. Second, defendant
contends the trial court erred by appointing associate defense
counsel to assist his retained lead counsel without first
determining whether either of them met the requirements for
appointed lead counsel in a capital case. We conclude that
neither challenge has any merit.
a. Background
Defendant appeared for his November 2, 2006
arraignment with retained counsel, Mark McDonald.
In June 2007, McDonald requested that the court declare
defendant indigent so the court could appoint and pay for expert
and investigative services. McDonald did not, himself, seek
appointment and remained as defendant’s retained counsel at
all relevant times. The trial court declared defendant indigent
on June 26, 2007.
A few months later, McDonald requested that the trial
court’s “Pay Judge Panel” appoint associate Keenan13 counsel to
assist McDonald. This request remained unresolved for several
months.
In October 2007 — about one year into the case and over
one year before trial would begin — the prosecution filed a
“Request for Inquiry and Waiver Regarding Attorney’s
13
Keenan v. Superior Court (1982) 31 Cal.3d 424. “Keenan
is shorthand” for the trial court’s discretionary, statutory
authority to grant appointed counsel’s request to appoint
additional counsel in a capital case. (People v. Morelos (2022)
13 Cal.5th 722, 737, citing § 987, subd. (d) [“In a capital case,
the court may appoint an additional attorney as a cocounsel
upon a written request of the first attorney appointed”].)
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Qualifications as Capital Litigator.” The request clarified that
“the People [were] not asking the court to decide whether
Mr. McDonald is or is not qualified to try this particular case.”
Rather, to forestall a potential reversal based on the ineffective
assistance of counsel, the prosecution “merely request[ed] that
the court inquire as to whether the defendant is fully informed
about Mr. McDonald’s legal experience and the relevant
qualifications for appointed counsel on capital cases.” While the
submission expressed “the People’s belief that attorney . . .
McDonald [did] not have extensive experience in the area of
capital litigation,” as evidenced by the lack of discovery requests
and motion practice typically encountered in a capital case, the
prosecution repeatedly explained it was “not . . . attempt[ing] to
interfere with the attorney/client privilege or to deprive the
defendant of his right to counsel of his own choosing.” The
hearing would simply ensure that “the record . . . be clear that
the defendant is making an informed and intelligent decision in
the selection of his attorney.”
On December 11, 2007, McDonald received a letter from
the Pay Judge Panel advising that it could not provide funds for
Keenan counsel until the trial court approved a request for
associate counsel.
On December 14, 2007, the trial court held a hearing to
address defendant’s request for Keenan counsel and the
prosecution’s request for an inquiry regarding defense counsel’s
qualifications. The hearing began in chambers without
defendant present. The “main thing” McDonald addressed with
the court was the letter he received a few days earlier from the
Pay Judge Panel. The trial court stated it would review the
request for Keenan counsel again and “be prepared to . . . make
an order concerning that.”
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When the court asked if there was “[a]nything else of
substance” to address, McDonald reminded the court of the
prosecution’s request for a qualification inquiry, adding, “I’m
prepared to address that at any time, and [defendant] is.” The
trial court acknowledged that although there was some
authority to support the prosecution’s request (see People v.
Ramirez (2006) 39 Cal.4th 398 (Ramirez)), the court was
“extraordinarily wary of interfering with the attorney/client
relationship.” The court surmised that if it were to appoint
Keenan counsel, that would “go[] some way towards addressing
the [prosecution’s] concern.” The court added that it “would
appreciate both counsel’s input in advance of any hearing . . .
with respect to the appropriate manner in which to proceed,
mostly to avoid any suggestion that there’s an interference with
the attorney/client relationship.” After discussing trial
scheduling, the court set a hearing on the qualification inquiry
for January 25, 2008. The court and counsel agreed that the
appointment of Keenan counsel in the meantime might obviate
the need for the inquiry.
In open court, with defendant present, the court recited for
the record that the chambers conference involved a discussion
of “certain procedural and logistical matters” and that the court
had set a hearing for January 25, 2008.
On December 26, 2007, the trial court issued an ex parte
order vacating the January 25, 2008 qualification inquiry
hearing. The order itself did not explain why the court vacated
the hearing, but the record suggests it was because the court
had appointed the Riverside Public Defender’s office as Keenan
counsel. When the Riverside Public Defender’s office later
declined the appointment, the trial court appointed the
Criminal Defense Lawyers Panel “as second counsel, . . . with
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actual counsel to be determined in the ordinary course of
business.”
In April 2008, McDonald filed a motion specifically
requesting that the court appoint Thomas Eckhardt as Keenan
counsel. The motion was supported by a declaration from
Eckhardt setting forth his qualifications substantially in
compliance with the rules that specify the qualifications
required of appointed counsel in capital cases. (See Cal. Rules
of Court, rule 4.117.)14 At a later hearing on this request, the
trial court observed that Eckhardt’s declaration did not address
all the applicable criteria, so the court swore in Eckhardt as a
witness and confirmed that he satisfied the specific remaining
requirements. The trial court then appointed Eckhardt as
associate counsel. (See rule 4.117(e).)
b. Absence from chambers conference
Defendant contends the trial court violated his federal and
state constitutional rights to due process and counsel by
conducting the December 14, 2007 chambers conference in his
absence. We reject this claim.
“A criminal defendant accused of a felony has the
constitutional right to be present at every critical stage of the
trial . . . .” (People v. Bell (2019) 7 Cal.5th 70, 114 (Bell); see
People v. Rundle (2008) 43 Cal.4th 76, 177 (Rundle) [“ ‘The right
derives from the confrontation clause of the Sixth Amendment
to the federal Constitution and the due process clauses of the
Fifth and Fourteenth Amendments, and article I, section 15 of
the California Constitution’ ”]; People v. Delgado (2017)
14
Further undesignated rule references are to the California
Rules of Court.
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2 Cal.5th 544, 568–569 [“ ‘ “ ‘The state constitutional right to be
present at trial is generally coextensive with the federal due
process right’ ” ’ ”].) “A critical stage of the trial is one in which
a defendant’s ‘ “absence might frustrate the fairness of the
proceedings” [citation], or “whenever his presence has a relation,
reasonably substantial, to the fullness of his opportunity to
defend against the charge” [citation].’ ” (Rundle, at p. 133.) A
defendant “has no right to be present [at] routine procedural
discussions that could not affect the outcome of the trial.”
(People v. Perry (2006) 38 Cal.4th 302, 314 (Perry).) “Thus a
defendant may ordinarily be excluded from conferences on
questions of law, even if those questions are critical to the
outcome of the case, because the defendant’s presence would not
contribute to the fairness of the proceeding.” (Id. at p. 312.) We
review de novo a defendant’s claim that he was entitled to be
present during a chambers conference. (People v. Waidla (2000)
22 Cal.4th 690, 741.)
We have previously expressed serious “doubt[] as a matter
of sound public policy that a criminal defendant’s presence
should be required at in-chambers inquiries regarding his
counsel’s competence, unless the defendant himself has initiated
the inquiry,” because “[a]ttendance at such hearings could well
undermine the confidence and cooperation so necessary to
insure an effective representation.” (People v. Hovey (1988)
44 Cal.3d 543, 573.) More recently, however, we have also
“acknowledged that a criminal defendant ‘may be entitled to be
present at a conference called to consider whether to remove his
counsel for conflict of interest or any other reason.’ ” (People v.
Perez (2018) 4 Cal.5th 421, 438 (Perez).) We need not resolve
here any possible tension in these precedents because, even
assuming that a hearing on the merits of the prosecution’s
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motion would have been a critical stage of the trial at which
defendant was entitled to be present, the chambers conference
in this case was not such a proceeding.
The record shows that the chambers conference was brief
and addressed only preliminary procedural issues related to the
motion. When McDonald reminded the court that the issue was
still pending and stated that he and defendant were prepared to
address the merits at any time, the trial court limited discussion
to selecting a hearing date and advising that the court would
seek counsel’s prior input if any hearing were to proceed. In
open court, the trial court characterized the chambers
conference as having addressed “certain procedural and
logistical matters.” Indeed, defendant accurately refers to the
chambers conference in his briefing on appeal as one “in which
the court decided how to handle a motion by [the] prosecutor.”
Therefore, the conference was not a critical stage of the trial that
entitled defendant to be present. (See Rundle, supra, 43 Cal.4th
at p. 178 [holding that “ex parte meetings between the trial
court and defense counsel concerning [a juror]’s alleged
statement, at which defendant was not present, were not critical
stages of the trial for constitutional purposes, because they were
merely exploratory discussions concerning the potential
problem of juror misconduct and possible courses of action that
might be taken to resolve that issue”].)
Defendant argues that even if the chambers conference
was not a critical proceeding when it occurred, it became critical
when the “hearing date was . . . cancelled without explanation,”
thus leaving defendant “in the dark about the questions raised
as to whether his attorney lacked the qualifications to try a
capital case.” However, McDonald advised the court in the
chambers conference that he and defendant were prepared to
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address the merits of the prosecutor’s motion “at any time,”
indicating that defendant was aware of the motion. (See Perry,
supra, 38 Cal.4th at p. 312 [bench conference “to determine who
will be allowed to sit as spectators at the trial” was not
“transformed . . . into one at which defendant was entitled to be
present” merely because defense counsel warned that
“defendant might become violent and unmanageable if [his] wife
were barred from attending the trial”].) And, in any event, we
will not presume from a silent record that McDonald failed to
inform defendant of the prosecutor’s request. (See Perez, supra,
4 Cal.5th at pp. 439–440 [“just because the limited record on a
direct appeal was devoid of such information does not mean that
[the defendant] lacked knowledge of the [issue]”]; see id. at
p. 439 [noting counsel’s ethical obligation to inform the
defendant of ex parte discussions with the court], citing Rules
Prof. Conduct, former rule 3-500 [“A member shall keep a client
reasonably informed about significant developments relating to
the employment or representation”]; ABA Model Rules Prof.
Conduct, rule 1.4(b) [“A lawyer shall explain a matter to the
extent reasonably necessary to permit the client to make
informed decisions regarding the representation”].)15
Defendant also faults the court for not reaching the merits
of the prosecutor’s motion or otherwise advising defendant that
he was entitled to qualified appointed lead counsel. Defendant
fails to persuade. The only direct authority cited by either party
pertaining to a trial court’s obligation to inform a defendant of
15
Although defendant at times implies in his briefing that it
would have been against McDonald’s interest to disclose that
the prosecutor had requested an inquiry into McDonald’s
qualifications, defendant expressly asserts he is not raising any
conflict of interest claims in this appeal.
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his or her right to appointed counsel is section 987, subdivision
(b), which requires a trial court presiding over a capital case to
advise the defendant of his or her right to appointed counsel “if
the defendant appears for arraignment without counsel.”16
Here, however, defendant appeared for arraignment with
counsel, so this provision does not apply.
Defendant further maintains that People v. Marsden
(1970) 2 Ca1.3d 118 (Marsden) and its progeny are “relevant
and instructive.” We disagree. First, as defendant
acknowledges, Marsden applies only to requests to replace
appointed counsel, and McDonald was retained counsel.
Second, a trial court is required to hold a Marsden hearing only
when the defendant requests one — “the trial court is not
required to conduct a Marsden hearing on its own motion”
(People v. Martinez (2009) 47 Cal.4th 399, 421 (Martinez)) or in
response to “criticism of appointed counsel that has been levied
by a nonparty” (id. at p. 420). Here, defendant never expressed
any concern about McDonald’s qualifications.
Relatedly, this court has held that case law standing “for
the proposition that the trial court has a ‘duty to ensure that
any counsel appointed to represent the accused is competent and
16
Section 987, subdivision (b) provides in relevant part: “In
a capital case, if the defendant appears for arraignment without
counsel, the court shall inform the defendant that they shall be
represented by counsel at all stages of the preliminary and trial
proceedings and that the representation is at their expense if
they are able to employ counsel or at public expense if they are
unable to employ counsel, inquire of them whether they are able
to employ counsel and, if so, whether they desire to employ
counsel of their choice or to have counsel assigned, and allow
them a reasonable time to send for their chosen or assigned
counsel.”
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qualified to conduct the defense’ . . . has no application” in the
context of retained counsel. (Ramirez, supra, 39 Cal.4th at
p. 424.) This is due, in part, to the greater protection afforded
to a defendant’s right to retained counsel of his or her choice.
(See People v. Woodruff (2018) 5 Cal.5th 697, 728 (Woodruff)
[“The Sixth Amendment right to counsel guarantees a criminal
defendant the right to choose his or her own counsel when the
defendant does not need appointed counsel. [Citation.] While a
defendant has a constitutional right to competent
representation, he also has the right to counsel of his choice so
that he may defend himself in ‘ “whatever manner he deems
best” ’ ”]; People v. Verdugo (2010) 50 Cal.4th 263, 310 [“The
right to retained counsel of choice is — subject to certain
limitations — guaranteed under the Sixth Amendment to the
federal Constitution”].)
It is true that we have recognized that trial courts have
limited discretion to inform a defendant that his or her retained
counsel does “not meet the standards required of attorneys
appointed by the court to represent capital defendants.”
(Ramirez, supra, 39 Cal.4th at p. 424; see Woodruff, supra,
5 Cal.5th at pp. 732–733 [finding no error in the trial court’s
failure to obtain a waiver of effective assistance where the
prosecutor expressed concern about retained defense counsel’s
qualifications, the trial court inquired of defense counsel’s
qualifications and informed the defendant of his right to
competent appointed counsel, and the court ultimately found
that defense counsel had not rendered ineffective assistance].)17
17
Defendant acknowledges he “explicitly does not raise a
claim that he received constitutionally inadequate
representation.”
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But the fact that we found no error in the trial courts’ having
inquired in those cases does not mean it was error for the trial
court not to inquire here. The trial court might have provided
some advisement to defendant, if it concluded that the
circumstances counseled in favor of one. But the trial court was
in no way obligated to provide such an advisement.
Accordingly, we find no error arising from defendant’s
absence from the chambers conference or from the trial court’s
handling of the prosecution’s motion.
c. Lead counsel qualifications
As noted, although defendant was represented by retained
lead counsel (McDonald), the trial court appointed associate
counsel (Eckhardt) to assist with the defense. Defendant
contends the trial court erred by appointing associate counsel
without first ensuring that either McDonald or Eckhardt met
the qualifications to serve as appointed lead counsel. We reject
this claim.
Defendant bases this claim on rule 4.117, which “defines
minimum qualifications for attorneys appointed to represent
persons charged with capital offenses in the superior courts.”
(Rule 4.117(a), italics added.) Beyond certain “[g]eneral
qualifications” (rule 4.117(b)), the rule specifies different
qualifications for “lead counsel” (rule 4.117(d)) and “associate
counsel” (rule 4.117(e)).18 It further provides that “[i]f the court
18
The rule also provides “[a]lternative qualifications” that
authorize the trial court to appoint lead or associate counsel
“even if he or she does not meet all of the qualifications” of lead
or associate counsel. (Rule 4.117(f).) If the trial court relies on
these alternative qualifications, it must state on the record its
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appoints only one attorney, that attorney must meet the
qualifications” of lead counsel. (Rule 4.117(c)(2).) Alternatively,
“[i]f the court appoints more than one attorney, one must be
designated lead counsel” and meet the corresponding
qualifications, “and at least one other must be designated
associate counsel” and meet the corresponding qualifications.
(Rule 4.117(c)(1).)
Defendant argues that when the trial court appointed
Eckhardt as additional counsel, rule 4.117(c) required that the
trial court determine that either McDonald or Eckhardt met the
rule’s requirements to serve as lead counsel. That is, because
the trial court “appoint[ed] only one attorney” — Eckhardt —
“that attorney must [have met] the qualifications” of lead
counsel. (Rule 4.117(c)(2), italics added.) Viewed in isolation,
the language of rule 4.117(c)(2) might be read as supporting
defendant’s interpretation. Defendant concedes, however, that
“[w]hen read as a whole, the plain language of Rule 4.117
strongly suggests that it did not contemplate a circumstance in
which” — as here — “a defendant was represented by one
retained counsel and one appointed counsel.”
We agree. Every provision of rule 4.117 refers to
appointed counsel and none refers to retained counsel. (See rule
4.117(a)–(i).) More specifically, rule 4.117(c)(1), which
contemplates a scenario in which a defendant is represented by
lead and associate counsel, applies only when both counsel are
appointed. And rule 4.117(c)(2), which applies when “the court
reasons for doing so. (Ibid.) The trial court appointed Eckhardt
under rule 4.117(e) and did not rely on rule 4.4117(f)’s
alternative qualifications. Therefore, we do not discuss the
alternative qualifications any further.
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appoints only one attorney,” appears to contemplate a scenario
in which the defendant is represented by only one appointed
attorney. In that context, the rule logically requires that the
lone appointed attorney qualify as lead counsel.
Rule 4.117, read as a whole, therefore establishes that in
the scenario presented here, where defendant is represented by
retained lead counsel and appointed associate counsel, the rule’s
lead counsel qualifications simply do not apply. Thus, defendant
has not shown error.
2. Replacement of trial judge
Defendant contends “the sudden and unexplained
replacement” of the trial judge to whom the case had been
assigned for all purposes was improper because it was done with
“no findings” or “any legal basis” during an “unnoticed hearing”
at which defendant was not present. We conclude that
defendant forfeited this challenge by failing to object to the
reassignment in the trial court and by failing to properly
support his challenge on appeal. Even if we were to reach the
merits of his claim, we would find them lacking.
a. Background
At defendant’s arraignment on November 2, 2006, the case
was assigned “for all further proceedings” to Judge Jeffrey
Prevost in Department 31 of the Riverside courthouse. Judge
Prevost presided over the case for about the next year and a half
and, as of June 2008, it appears he expected to preside over the
trial he had set for November 3, 2008.
On August 29, 2008, however, the prosecutor and defense
counsel appeared before Judge Helios Hernandez in
Department 63. It is unclear from the record how they knew to
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appear before Judge Hernandez on that date. Defendant did not
appear, but defense counsel purported to “waive his presence.”
Judge Hernandez addressed counsel, “This case has
previously been assigned to Judge Prevost, but as you know he
has a new assignment. So I’m going to reassign it.” Judge
Hernandez then reassigned the case for all purposes to Judge
W. Charles Morgan in Department 32 of the Riverside
courthouse. Judge Hernandez advised counsel to appear before
Judge Morgan “in the next two or three minutes.” Defense
counsel did not object to the reassignment.
About 45 minutes later, counsel appeared before Judge
Morgan, who surmised that defendant was not present because
the court had not previously ordered him transported to this
proceeding. Judge Morgan set a trial readiness conference for
two weeks later (September 12, 2008) and ordered that
defendant be transported to that proceeding. The defense did
not object to Judge Morgan about the reassignment.
On September 12, 2008, counsel and defendant appeared
before Judge Morgan. After conferring with counsel, Judge
Morgan vacated the November 3, 2008 trial date and reset trial
for January 5, 2009. Neither defense counsel nor defendant
objected to Judge Morgan continuing to preside over the case.
In December 2008, counsel and defendant appeared before
Judge Morgan for further proceedings. Judge Morgan trailed
the trial date and ordered that the parties appear before Judge
Prevost in Department 31 to correct any errors in the
preliminary hearing transcript because “[h]e is going out to
Banning, and it would be far more convenient” to do it in
Riverside. Defense counsel responded, “That’s fine.” Counsel
and defendant appeared before Judge Prevost the following
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month and corrected the preliminary hearing record. Neither
counsel nor defendant raised the reassignment issue with Judge
Prevost.
b. Analysis
The People maintain that by failing to object to the judicial
reassignment in the trial court defendant forfeited any
challenge to the reassignment on appeal. We agree. (See People
v. Rogers (2009) 46 Cal.4th 1136, 1172 (Rogers); People v. Cowan
(2010) 50 Cal.4th 401, 460 (Cowan); People v. Halvorsen (2007)
42 Cal.4th 379, 429.) Halvorsen explains that this situation
“perfectly exemplifies the basis for the forfeiture doctrine, for,
had defendant objected, either the record would reflect why [the
original judge] was unable to preside or [the original judge]
would in fact have presided. Were the rule otherwise,
defendants ‘would be discouraged from making timely objections
since, if the ultimate judgment were unfavorable, the defendant
“would receive a second ‘bite at the apple.’ ” ’ ” (Halvorsen, at
p. 429; accord, Rogers, at p. 1172.) Likewise, here, had
defendant objected to the judicial reassignment, Judge
Hernandez likely would either have kept the case with Judge
Prevost or explained in greater detail why the reassignment was
necessary. By failing to object, defendant received the benefit of
seeing how Judge Morgan would rule before seeking a second
bite at the apple on appeal. Defendant has thus failed to
preserve this challenge for appeal.
Even if we were to reach the merits of defendant’s
challenge, we would find it unpersuasive. First, trial courts are
authorized to replace a judge — even midtrial — if the judge
“shall die, become ill, or for any other reason be unable to
proceed with the trial.” (§ 1053; see rule 10.603(b)(1)(B)
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[authorizing the presiding judge to “[a]pportion the business of
the court, including assigning and reassigning cases to
departments” (italics added)].) We have held that such
substitutions “do[] not require the consent of the defendant or
his counsel” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1211)
and do not violate a defendant’s due process or jury trial rights
(Cowan, supra, 50 Cal.4th at pp. 458–459; Rogers, supra,
46 Cal.4th at p. 1172). Defendant offers no persuasive rationale
as to why a midtrial reassignment would withstand
constitutional scrutiny but a pretrial reassignment such as the
one that occurred here would not.19
Second, Judge Hernandez stated on the record his reason
for reassigning the case — that, “as [counsel] know,” Judge
Prevost “ha[d] a new assignment.” Defense counsel presumably
“kn[e]w” about the “new assignment” because he neither
objected nor requested additional information.
Third, defendant fails to persuade that the hearing was a
critical proceeding that he was entitled to attend. He maintains
the hearing was “unquestionably” critical because, had he been
present, he would have learned that the case had been
reassigned and “he could have done something — make an oral
[Code of Civil Procedure section] 170.6 motion in court, or direct
[defense counsel] to make a timely written motion, to disqualify
19
As we previously have found no due process right to object
to a midtrial judicial reassignment without a criminal
defendant’s consent (Cowan, supra, 50 Cal.4th at pp. 458–459),
we decline defendant’s invitation to “recognize a limited due
process right to object to the [pretrial] removal of judges who
have been assigned to a case for all purposes without the consent
of the parties.”
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Judge Morgan.”20 But we will not presume from the silent
record that defense counsel failed to timely notify defendant of
the reassignment. (See Perez, supra, 4 Cal.5th at pp. 439–440.)
Nor will we speculate about whether defendant would, in fact,
have sought to disqualify Judge Morgan. (See id. at p. 440
[“even if [the defendant] had been present, we do not know
whether he would have filed a [Code of Civil Procedure] section
170.6 motion. [¶] Indeed, even now [the defendant] only states
it is ‘reasonably possible that he would have insisted that [the
judge] be recused’ — and does not state that he would have filed
a Code of Civil Procedure section 170.6 motion”].)21
20
When its procedural requirements are met, Code of Civil
Procedure section 170.6 entitles a litigant to disqualify a judge
upon the mere assertion in an affidavit or declaration that the
judge “is prejudiced against a party or attorney . . . so that the
party or attorney cannot, or believes that he or she cannot, have
a fair and impartial trial or hearing before the judge.” (Code
Civ. Proc., § 170.6, subd. (a)(2); see Perez, supra, 4 Cal.5th at
p. 439.) “When a litigant has met the requirements of [Code of
Civil Procedure] section 170.6, disqualification of the judge is
mandatory, without any requirement of proof of facts showing
that the judge is actually prejudiced.” (Maas v. Superior Court
(2016) 1 Cal.5th 962, 972; accord, Perez, at p. 439.) “When a
criminal case has been assigned to a judge for all purposes, any
[Code of Civil Procedure] section 170.6 challenge must be filed
‘within 10 days after notice of the all purpose assignment, or if
the party has not yet appeared in the action, then within 10 days
after the appearance.’ ([Code Civ. Proc.,] § 170.6, subd. (a)(2).)”
(Garcia v. Superior Court (2023) 92 Cal.App.5th 47, 54; accord,
People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, 1179.)
21
Although defendant suggests in his appellate briefing that
Judge Morgan may have been biased against him and that the
prosecutor may have played some role in causing the court to
reassign the case, defendant expressly confirms that he is not
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Opinion of the Court by Guerrero, C. J.
Finally, defendant asserts that the hearing at which
Judge Hernandez reassigned the case was “unnoticed.” But the
parties evidently had some notice of the proceeding because both
the prosecution and counsel for the defense were present at the
hearing, and defendant offers no persuasive authority
supporting his suggestion that the procedures followed here
were improper. More importantly, to the extent defendant
contends the purported lack of notice contributed to his absence
from the hearing, for the reasons just explained, the hearing was
not a critical proceeding that required his attendance.
Accordingly, defendant has not met his burden to show
that the trial court erred in reassigning the case.
3. Denial of motion to change venue
Defendant contends the trial court violated his “federal
and state constitutional rights to due process, a fair trial and a
reliable determination of guilt and penalty” by denying without
prejudice his motion for a change of venue and by failing “to
conduct a searching voir dire.” (See U.S. Const., 5th, 6th, 8th &
14th Amends.; Cal. Const., art. I, §§ 1, 15, 16 & 17.) We conclude
defendant forfeited these contentions by failing to renew his
motion after voir dire and by failing to object to the trial court’s
manner of conducting voir dire. Were we to reach the merits of
his motion, we would find them unpersuasive.
a. Background
i. Defendant’s motion
In August 2008, defendant filed a motion for a change of
venue. He argued he could not receive a fair trial in Riverside
raising claims of judicial bias or prosecutorial misconduct in this
appeal. We express no view on these claims.
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County because “extensive” and “widespread” publicity
surrounding his case lobbed a “constant barrage of
predetermined allegations of guilt towards [him]” and portrayed
him as “a man with prior criminal charges, a history of drug
addiction, and a killer of beloved firefighters.” Defendant
supported his motion with a transcript of a press conference
conducted by public officials on November 2, 2006; copies of 62
“representative” newspaper articles; and a media analyst’s
expert report analyzing the newspaper articles and a survey of
potential jurors.
(a) Press conference
Nine federal and county public officials spoke at a
November 2, 2006 press conference addressing the Esperanza
Fire and defendant’s arrest. For the most part, the officials
expressed their condolences for the loss of the firefighters and
thanked the public safety personnel involved in fighting and
investigating the Esperanza Fire. Several officials identified
defendant as the arsonist who started the Esperanza Fire,
announced that he would be charged with five counts of special-
circumstance murder with a possible death penalty, and
expressed confidence in his guilt. Two officials referred to the
Esperanza Fire as a “heinous crime.” And one county supervisor
invoked biblical retribution and reassured area residents that
they “can breathe a sigh of relief today that this sick individual
is behind bars and is expected never to see the light of day.”
(b) Newspaper articles
Defendant submitted with his motion a “representative
collection” of 62 local newspaper articles about the Esperanza
Fire and his case. The articles covered the fire, the firefighters’
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deaths, the identification of defendant as a person of interest,
the filing of charges against him, the prosecution’s decision to
seek the death penalty, and other procedural aspects of the case.
Some articles mentioned that defendant has tattoos and a
criminal record. Many of the articles that discussed the facts of
the case included statements from defendant or his counsel
denying guilt and challenging the prosecution’s evidence and
theory of the case.
Defendant acknowledged in his motion that “local media
has not fueled public consciousness of [him] in any significant
way since the middle of 2007,” but he expected coverage would
increase as his trial approached.
(c) Expert’s report
To assess whether he could receive a fair jury trial in
Riverside County, defendant retained media analyst Martin
Buncher to conduct polling within the county and to analyze the
62 local newspaper articles described above. Buncher concluded
that “the local juror pool ha[d] been significantly influenced by
what they have heard and seen in the media, and [would] be
unfavorably predisposed towards considering [defendant]’s
role . . . in the Esperanza fire, making it very difficult for him to
receive a ‘fair trial.’ ” Buncher’s findings showed that about
90 percent of the 198 survey respondents recalled how the fire
started; about 74 percent “had detailed recollections of
[defendant] and the Esperanza fire”; about 40 percent “felt that
[defendant] was responsible for starting the Esperanza fire”;
and about 36 percent “made specific negative references about
[defendant].”
Buncher also opined that the tone and sequence of news
coverage established “a strong negative link in memory between
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Opinion of the Court by Guerrero, C. J.
[defendant] and the cause of the fire, not only by loaded articles
(news material having a bias towards suggesting the guilt of this
individual), but by its visual representation of [defendant]” in
photographs that displayed facial characteristics typical of
“contempt and disgust.”
ii. The People’s opposition
The People opposed defendant’s motion, asserting “that
the pretrial publicity in this case has not been inherently
prejudicial, that the asserted impact of publicity on potential
jurors is, at best, speculative, and that it is necessary to review
the responses of prospective jurors in voir dire in order to
accurately assess the propriety of a change of venue.” The
People argued that, in light of case law holding that the nature
of press coverage and the size of the relevant community are
related factors, defendant had “fail[ed] to establish the requisite
reasonable probability that [he] cannot receive a fair trial in
Riverside County.”
iii. Motion hearing
The trial court heard the change of venue motion on
November 7, 2008, about one month before trial was scheduled
to begin. The court stated at the outset that it had read the
parties’ submissions.
The defense called Buncher as an expert in the field of
polling. Regarding his review “primarily” of the newspaper
articles’ “headlines and immediate sub-headings and text most
likely to be attended to and perceived” by readers, Buncher
observed “an overall pattern” that began with a factual
explanation of the Esperanza Fire and its associated tragedy,
“and ended up with . . . very strong allegations concerning the
responsibility of [defendant] for setting the fires.” Buncher
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opined that “prominent photographs” of defendant in some of
the articles portrayed him “photographically as a villain,” which
“would lend towards a negative bias with respect to all other
information which might be gathered by either a casual or more
involved reader.”
Buncher then testified about the results of his survey of
198 potential Riverside County jurors. About one-third
(36 percent) of respondents spontaneously associated the
Esperanza Fire with arson. Nearly half (48 percent) of all
respondents considered themselves “extremely” or “somewhat”
familiar with the fire.22 Buncher found these responses
significant because they indicated that “one out of two people . . .
still feel familiar with the issues surrounding th[e] fire after
20 months,” even though “there wasn’t much publicity . . . over
the last 12-month period.” Buncher testified that 65 percent of
respondents indicated they “paid ‘a lot’ or ‘some’ attention to
media coverage” about the fire.23 When asked about their
22
Survey data attached to Buncher’s report shows that the
48 percent was comprised of 5 percent who considered
themselves “Extremely Familiar” and 43 percent who
considered themselves “Somewhat Familiar” with the fire. On
the other hand, the survey data also shows that 30 percent of
respondents considered themselves “Not Too Familiar” and
21 percent considered themselves “Not At All Familiar” with the
fire.
23
Survey data attached to Buncher’s report shows that the
65 percent was comprised of 27 percent who stated they “Paid a
lot of attention to what was said and shown in the media” and
38 percent who stated they “Paid some attention.” (Italics
added.) On the other hand, the survey data also shows that
18 percent of respondents stated they “Did not really pay much
attention” and 15 percent stated they “Did not really pay any
attention.” (Italics added.)
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awareness of a suspect setting the fire, 16 percent of all
respondents associated defendant, either spontaneously or
when prompted, with starting the Esperanza Fire. Buncher
admitted he “wouldn’t use the term ‘overwhelming’ ” to describe
this subset of respondents.
The trial court then heard argument from counsel.
Defense counsel found “troubling and disturbing the degree” to
which officials at the November 2006 press conference
“vilif[ied]” defendant, and although counsel acknowledged he
did not “have a substantial basis for saying it,” he believed it
“would have had [a] substantial impact on people who saw [it].”
The prosecutor responded, briefly, asserting the motion “isn’t
even close” because defendant’s own “statistics support the idea
that we, in fact, will get a fair jury in this county, in this
courtroom.”
The trial court denied defendant’s motion without
prejudice. Specifically, the court found that, based on the
statistics and testimony presented, the county’s population was
large enough to provide a pool of jurors who were not familiar
with the Esperanza Fire or the allegations against defendant.
While the court found it “troubling” that defendant was “vilified
in the . . . news conference,” the court posited that “a great
percentage [of prospective jurors] have not seen it” and that the
slow “grind[]” of the legal process had rendered it “a distant
memory.” The court specified that it was denying defendant’s
motion without prejudice to renewing it if voir dire showed that
the court could not empanel an impartial jury.
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iv. Voir dire
The trial court screened 95 prospective jurors with a
questionnaire prepared by the court with input from counsel.24
The court then questioned prospective jurors over the course of
several days, allowing counsel to ask questions after the court
completed its preliminary questioning. Defense counsel neither
objected to the manner in which the trial court conducted voir
dire nor renewed his motion to change venue after jury selection.
After defense counsel used eight of his 20 allotted
peremptory challenges, the trial court seated 12 jurors and four
alternates.
b. Discussion
i. Forfeiture
“[W]hen a trial court initially denies a change of venue
motion without prejudice, a defendant must renew the motion
after voir dire of the jury to preserve the issue for appeal. Here,
although expressly invited by the court to renew the motion
after jury selection, defendant failed to do so.” (People v.
Williams (1997) 16 Cal.4th 635, 654–655.) “Because he did not
renew his motion after voir dire, the claim is forfeited.” (People
v. Hensley (2014) 59 Cal.4th 788, 796 (Hensley); People v.
Johnson (2015) 60 Cal.4th 966, 982 [same]; People v. Hart (1999)
20 Cal.4th 546, 598 [same].) Indeed, defendant implicitly
acknowledges that he forfeited this challenge on direct appeal
and must bring it, if at all, by way of a petition for writ of habeas
corpus based on ineffective assistance of counsel.
24
Defense counsel requested a correction to the
questionnaire regarding the number of charged fires but
otherwise made no suggestions aimed at discovering bias.
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Additionally, to the extent defendant raises specific
challenges to the trial court’s juror questionnaire or manner of
conducting voir dire, defendant has likewise forfeited those
challenges by failing to raise them with the trial court when the
court could have addressed them. (People v. Foster (2010)
50 Cal.4th 1301, 1324 [by failing to “object to the manner in
which voir dire was conducted, . . . [d]efendant . . . has forfeited
his claim that the voir dire was inadequate”]; Rogers, supra,
46 Cal.4th at p. 1149 [by “neither object[ing] to the
questionnaire used, nor propos[ing] any modifications or
additional questionnaire inquiries,” the defendant “forfeited any
claim that the questionnaire and its contents were
inadequate”].)
ii. Merits
Even if we were to reach the merits of defendant’s claim,
we would find them lacking. “On a defendant’s motion, the court
shall order a change of venue ‘when it appears that there is a
reasonable likelihood that a fair and impartial trial cannot be
had in the county.’ [Citations.] In deciding whether to change
venue, a court must consider ‘the nature and gravity of the
offense, the nature and extent of the media coverage, the size of
the community, the defendant’s status within the community,
and the victim’s prominence.’ ” (People v. Scully (2021)
11 Cal.5th 542, 566–567 (Scully); see § 1033, subd. (a); People v.
Johnsen (2021) 10 Cal.5th 1116, 1145–1146 (Johnsen).)
“On appeal, a defendant ‘must show both error and
prejudice, that is, that it was not reasonably likely the defendant
could receive a fair trial at the time of the motion, and that it is
reasonably likely he did not in fact receive a fair trial.’
[Citation.] ‘[I]n rare and “exceptional cases,” a defendant may
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show circumstances so “ ‘extraordinary’ ” that a court may
assume no fair trial could be had.’ [Citations.] The United
States Supreme Court has occasionally found such a showing
adequate in cases where media coverage ‘manifestly tainted a
criminal prosecution’ and resulted in ‘ “kangaroo court
proceedings.” ’ (Skilling v. United States (2010) 561 U.S. 358,
379.) But the high court has made clear that the assumption
‘attends only the extreme case.’ ” (People v. Ramirez (2022)
13 Cal.5th 997, 1032–1033; see Scully, supra, 11 Cal.5th at
p. 567.) “ ‘On appeal, the defense bears the burden of showing
both error and prejudice. It must establish a reasonable
likelihood both that a fair trial could not be had at the time of
the motion, and that the defendant did not actually receive a fair
trial.’ ” (Scully, at p. 567.)
(a) No error
Considering all the relevant factors, we conclude the trial
court did not err in denying defendant’s motion to change venue.
(i) Nature and gravity of the offense
“The ‘nature’ of an offense refers to the ‘ “peculiar facts or
aspects of a crime which make it sensational, or otherwise bring
it to the consciousness of the community.” ’ [Citation.] The
‘gravity’ of an offense refers to ‘ “its seriousness in the law and
to the possible consequences to an accused in the event of a
guilty verdict.” ’ ” (Scully, supra, 11 Cal.5th at p. 567.)
Here, “the gravity of the offense, capital murder, weighs
in favor of a venue change. Yet we have repeatedly held that
this factor is not dispositive [citation], and have rejected calls to
establish a presumption of a venue change in all capital cases
[citation]. Indeed, ‘ “every capital case involves a serious charge.
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While this factor adds weight to a motion to change venue, it
does not in itself require a change.” ’ ” (Scully, supra, 11 Cal.5th
at p. 567; see People v. Suff (2014) 58 Cal.4th 1013, 1045 (Suff)
[denying change of venue in case involving 13 counts of
murder].)
Other aspects of the nature and gravity of the offense
weigh only modestly in favor of a change of venue. The
underlying offenses — a series of wildland arson fires — “were
not particularly aggravated in comparison with other capital
murders. There were certainly gruesome details, but nothing
approaching the sensational overtones of other cases in which
we have upheld the denial of venue motions.” (Scully, supra,
11 Cal.5th at p. 567; see, e.g., Ramirez, supra, 39 Cal.4th at
p. 434 [serial rapes and murders].) Defendant argues that many
people within the community were witnesses to, or directly or
indirectly affected by, the fires involved in this case. To the
extent the record may support this assertion, such impacts did
not on their own compel a change of venue, especially given that
substantial time had elapsed since the fires. (See, e.g., Ramirez,
at p. 433 [finding no error in the denial of a change of venue
motion notwithstanding a poll, undertaken in support of the
motion, indicating that 46 percent of surveyed individuals “said
their concern for their safety had increased when the murders
were occurring”].) Nor does the fact that the victims were
firefighters weigh heavily in favor of a change of venue. (Cf.
Scully, at p. 568 [“The fact that the victim was a police officer . . .
does not require a venue change”].)
(ii) Nature and extent of the media coverage
“Heavy media coverage may weigh in favor of a change of
venue, but does not necessarily compel it.” (People v. Harris
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Opinion of the Court by Guerrero, C. J.
(2013) 57 Cal.4th 804, 825 (Harris); see Ramirez, supra,
39 Cal.4th at p. 434 [finding no error in the denial of a change
of venue motion notwithstanding media coverage described as
being at a “ ‘saturation, as much as they possibly can give’ ”
level].) Neither the nature nor extent of media coverage weighs
in favor of changing venue in this case. Regarding the nature,
while defense expert Buncher based his opinion that coverage
was negative “primarily” on the “headlines and immediate sub-
headings” of the 62 selected news articles, a thorough review of
the articles in their entirety shows that coverage was more fairly
balanced and routinely included the defense perspective of the
case. (See People v. McCurdy (2014) 59 Cal.4th 1063, 1077
(McCurdy) [emphasizing, in finding no error in the denial of a
change of venue motion, that “the tone of most of the articles”
relied upon by the defendant “was relatively neutral, and none
was especially prejudicial or inflammatory”].) Buncher also
opined that several newspaper articles were accompanied by
unflattering photographs of defendant, but less than one-third
of the articles included defendant’s photograph, and about one-
third of those showed him wearing a suit in court.25 As for the
negative comments by public officials at the press conference,
those comments were only a fraction of the overall content of the
event and it is unclear whether any prospective jurors watched
the event. On balance, the nature of the news coverage does not
warrant a change of venue.
Nor does the extent of coverage warrant a change in
venue. The 62 articles that defendant cites reflect less coverage
25
One article was devoted to “Defendant Makeovers” and
commented on defendant’s professional appearance at his
preliminary hearing.
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than what we have previously found insufficient to disturb a
trial court’s venue ruling. (See, e.g., Scully, supra, 11 Cal.5th at
p. 564 [involving nearly 140 articles and collecting cases
involving about twice as much media coverage]; Suff, supra,
58 Cal.4th at pp. 1045–1046 [more than 70 articles].) In
addition, a substantial majority of the articles produced by
defendant in his motion for change of venue had been published
more than a year earlier. “Even in cases with saturated media
coverage, we have concluded that ‘the passage of more than a
year from the time of the extensive media coverage served to
attenuate any possible prejudice . . . .’ ” (Scully, at p. 570,
quoting Ramirez, supra, 39 Cal.4th at p. 434.) Indeed, with
respect to the November 2006 press conference, the trial court
expressly found the passage of time would render the event “a
distant memory.” (Scully, at p. 568 [“ ‘ “When pretrial publicity
is at issue, ‘primary reliance on the judgment of the trial court
makes [especially] good sense’ because the judge ‘sits in the
locale where the publicity is said to have had its effect’ and may
base her evaluation on her ‘own perception of the depth and
extent of news stories that might influence a juror’ ” ’ ”].)
This factor does not weigh in favor of changing venue.
(iii) Size of the community
“ ‘The size of the community is important because in a
small rural community, a major crime is likely to be embedded
in the public consciousness more deeply and for a longer time
than in a populous urban area.’ ” (Johnsen, supra, 10 Cal.5th at
p. 1148.) “[T]he critical factor is whether the size of the
population was sufficient to dilute adverse publicity.”
(McCurdy, supra, 59 Cal.4th at p. 1078; see also People v. Lewis
(2008) 43 Cal.4th 415, 448; cf. Lucero v. Superior Court (1981)
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122 Cal.App.3d 484, 492 [considering both a county’s population
and the geographic dispersal of its population].) “When . . .
there is a ‘large, diverse pool of potential jurors, the suggestion
that 12 impartial individuals could not be empanelled is hard to
sustain.’ ” (People v. Famalaro (2011) 52 Cal.4th 1, 23.)
Defendant submitted with his motion United States
census data showing that Riverside County had a population of
2,073,571, making it the fourth most populous county in the
state (behind only Los Angeles, Orange, and San Diego
Counties). Although we previously found Riverside County’s
population of 1,357,000 in January 1994 to be “a neutral factor”
on the question of a venue change (Suff, supra, 58 Cal.4th at
p. 1045), we now find the “size of this community militates
against a venue change” (People v. Ramirez, supra, 13 Cal.5th
at p. 1039 [addressing Kern County’s population of 648,400 in
2000]; see Scully, supra, 11 Cal.5th at pp. 564, 575 [holding that
Sonoma County’s population of 421,500 in 1996, ranking it 16th
in the state, did not weigh in favor of changing venue]; Johnsen,
supra, 10 Cal.5th at p. 1148 [holding that Stanislaus County’s
population of approximately 405,000 did not weigh in favor of
changing venue]).
(iv) Defendant’s status within the
community
“In evaluating [a] defendant’s status within the
community, courts consider ‘whether [he or she] was viewed by
the press as an outsider, unknown in the community or
associated with a group to which the community is likely to be
hostile.’ ” (Scully, supra, 11 Cal.5th at p. 575.) Defendant has
cited no evidence indicating he was “prominent or notorious
apart from [his] connection with the present proceedings.”
(People v. Prince (2007) 40 Cal.4th 1179, 1214 (Prince); see
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Johnsen, supra, 10 Cal.5th at p. 1148 [“The absence of any
reputation in Modesto renders [defendant]’s social status a
‘ “neutral factor[]” ’ ”].)
Defendant argues this factor supports a change of venue
because of his publicized “history of arrests, drug use, poverty
and appearance.” However, defendant cites “ ‘ “no evidence of
unusual local hostility to such persons, such that a change of
venue would likely produce a less biased panel.” ’ ” (Scully,
supra, 11 Cal.5th at p. 575 [holding that references to the
defendant “as a ‘career criminal,’ ‘recent parolee,’ or alleged
member of the Aryan Brotherhood” did not weigh in favor of
changing venue].) This factor does not weigh in favor of
changing venue.
(v) Victims’ prominence
“The community status of the victim generally focuses on
‘whether the victim had any prominence in the community
before the crimes.’ ” (Scully, supra, 11 Cal.5th at p. 576.)
Although it does not appear that the fallen firefighters had any
prominence in the community before their deaths, “We have . . .
considered the posthumous status of a [first responder] when
the events and media coverage following the crimes made the
[first responder] a celebrity after he was killed.” (Ibid.) While
it appears the media posthumously portrayed the fallen
firefighters as heroes, as already noted the media coverage of
this case tapered off after the initial flurry of coverage and the
one-year anniversary of the Esperanza Fire. (See ibid. [finding
posthumous celebrity status mitigated where media coverage
“substantially predated defendant’s trial”].) Additionally, it was
the victims’ status as first responders who were “killed in the
line of duty” that “propelled [them] to prominence.” (Odle v.
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Superior Court (1982) 32 Cal.3d 932, 942.) Thus, this factor
weighs only “somewhat” in favor of changing venue. (Scully,
supra, 11 Cal.5th at p. 576.)
(vi) Summary
We find no error. Only two of the factors reviewed above
weigh in favor of a change of venue, and they do so only to a
limited degree. Meanwhile, the substantial size of the
community provides significant assurance that impartial jurors
could be identified. On the whole, upon “[r]eviewing the legal
question de novo based on the factors above, we conclude
defendant has not shown a reasonable likelihood that a fair trial
could not be had in [Riverside] County at the time of his venue
change motion[].” (Scully, supra, 11 Cal.5th at p. 576; see id. at
p. 567.)
(b) No prejudice
“Defendant also fails to demonstrate a reasonable
likelihood he was prejudiced, that is, that he did not in fact
receive a fair and impartial trial.” (McCurdy, supra, 59 Cal.4th
at p. 1080.) Preliminarily, we would find that this is not one of
those “exceptional” or “extraordinary” cases in which we
presume prejudice from extensive adverse pretrial publicity.
(Prince, supra, 40 Cal.4th at p. 1216, italics omitted; see People
v. Ramirez, supra, 13 Cal.5th at p. 1042.) As noted, news
coverage was fairly balanced and was not tantamount to the
type of “media circus” (People v. Ramirez, at p. 1042) or
“ ‘ “kangaroo court” ’ ” (ibid.) giving rise to a presumption of
prejudice.
Nor does further examination of the appellate record
reveal any prejudice. Although 10 of the 12 seated jurors
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reported that they had seen news coverage about the case, none
had detailed knowledge of the case and four expressly stated
they had only heard about it around the time of the fire, years
before trial. The fact that jurors “had been exposed to some
pretrial publicity . . . , standing alone, ‘does not necessarily
require a change of venue. [Citation.] “ ‘It is sufficient if the
juror can lay aside his [or her] impression or opinion and render
a verdict based on the evidence presented in court.’ ” ’ ” (People
v. Ramirez, supra, 13 Cal.5th at p. 1040.) All the seated jurors
at defendant’s trial stated that they had no preconceived opinion
about defendant’s guilt and represented that they could and
would decide the case based on the evidence. We have
previously concluded that similar circumstances did not
establish prejudice. (See, e.g., id. at pp. 1040–1041 [finding no
prejudice where “11 of the 12 [seated jurors] had been exposed
to some pretrial publicity” but stated it “would not affect their
ability to be fair and impartial”]; Prince, supra, 40 Cal.4th at
p. 1215 [finding no prejudice where “a high percentage of the
prospective jurors and 12 of the 13 jurors who actually served at
trial (one juror was excused after the guilt phase and an
alternate was substituted) had been exposed to the publicity”];
Ramirez, supra, 39 Cal.4th at pp. 434–435 [“Although only one
member of the jury indicated during voir dire that he never had
heard of the case, they all stated they had not ‘formed any
opinion as to the guilt or innocence of [the defendant] regarding
this case’ and could be fair”]; Harris, supra, 57 Cal.4th at p. 830
[finding no prejudice where, “[a]mong the 12 seated jurors at
defendant’s trial, two knew nothing about his case and the
remaining 10 recognized the case but remembered few
specifics”].)
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In addition, the fact that defendant did not use all his
allotted peremptory challenges “suggests defendant at trial
believed the jury was fair and impartial.” (McCurdy, supra,
59 Cal.4th at p. 1080; see Hensley, supra, 59 Cal.4th at p. 796
[“Defendant’s failure to exhaust his peremptory challenges . . .
supports ‘a reasonable inference that the defense did not believe
that pretrial publicity had prejudiced the seated jurors’ ”].)
Finally, the fact that the jury deadlocked on three counts
“tends to show that it was not prejudiced against [the
defendant], but rather was able to fairly evaluate the evidence
before it.” (Harris, supra, 57 Cal.4th at p. 831.)
4. Exclusion of juror
Defendant contends the trial court’s exclusion of an
allegedly death-qualified juror violated his constitutional rights
to due process, a fair trial, and a reliable death sentence. (See
U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 16.) We
reject this contention.
a. Background
Several questions within the jury questionnaire probed
prospective jurors’ views regarding the death penalty and how
those views might affect their ability to serve. Question 42 of
the trial court’s juror questionnaire asked jurors for their
“GENERAL FEELINGS regarding the death penalty.”
Prospective juror E.W. responded, “I feel that it is a necessary
penalty to have. I feel that it should be reserved for those who
are cruel [and] unusal [sic] with their crimes, especially serial
killers, rapists [and] criminals against children.” In response to
question 43(a), which asked whether the death penalty is used
the right amount, E.W. responded, “No. Most people who get it
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sit for long periods of time and don’t actually get executed. I feel
in most cases it is a waste of time.”
Question 44 began by providing an overview of trial
proceedings, including the penalty phase, explaining that if the
case reached that stage, the jury would determine the penalty
“by weighing and considering certain enumerated aggravating
factors and mitigating factors (bad and good things) that relate
to the facts of the crime and the background and character of
the defendant, including a consideration of mercy. The weighing
of these factors is not quantitative, but qualitative, in which the
jury, in order to fix the penalty of death, must be persuaded that
the aggravating factors are so substantial in comparison with
the mitigating factors, that death is warranted instead of life
imprisonment without parole.” Subparts to this question asked
how prospective jurors would approach these penalty
deliberations. Question 44(c) inquired whether a prospective
juror would, “because of any views that [they] may have
concerning capital punishment, automatically refuse to vote in
favor of the penalty of death and automatically vote for a penalty
of life imprisonment without the possibility of parole, without
considering any of the evidence of any of the aggravating and
mitigating factors . . . regarding the facts of the crime and the
background and character of the defendant.” (Underlining
omitted.) E.W. answered, “no.” She gave the same answer to
question 44(d), which asked prospective jurors if they would,
“because of any views that [they] may have concerning capital
punishment, automatically refuse to vote in favor of the penalty
of life imprisonment without the possibility of parole and
automatically vote for a penalty of death, without considering
any of the evidence, or any of the aggravating and mitigating
factors . . . regarding the facts of the crime and the background
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and character of the defendant.” (Underlining omitted.) E.W.
wrote her initials next to question 44(e), which asked, “If your
answer to either question (c) or question (d) was ‘yes,’ would you
change your answer, if you are instructed and ordered by the
court that you must consider and weigh the evidence and the
above mentioned aggravating and mitigating factors regarding
the facts of the crime and the background and character of the
defendant, before voting on the issue of penalty.” In response to
question 44(f)’s inquiry whether she “[c]ould . . . set aside [her]
own personal feelings regarding what the law ought to be and
follow the law as the court explains it,” E.W. responded, “Yes.”
Voir dire of E.W. occurred one week after she completed
her jury questionnaire. After questioning E.W. about her
written responses disclosing connections to the legal profession,
law enforcement, and firefighting, the trial court asked, “Are
you, by virtue of your answer . . . on [question] 42, locked into a
certain punishment for crimes, and in this case, would you be
locked into a certain position?” E.W. responded, “I don’t know.”
After the trial court responded, “Okay,” E.W. elaborated: “I’ve
been struggling with, you know, while we were gone, thinking
about that in particular. And not knowing what the special
circumstances are, I think also . . . .” The trial court interjected,
“Well you’ve heard the special circumstance. It was read to you.”
When E.W. asked what the special circumstances were, the trial
court clarified that “[o]ne of the special circumstances is arson
that caused a death” — to which E.W. responded, “Okay” —
“[a]nd the other special circumstance is multiple murders” — to
which E.W. also responded, “Okay.” The trial court explained,
“If someone is convicted of multiple murders, first degree, one of
them has to be first degree, and if someone’s convicted of an
arson that causes the death, then those special circumstances
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could be found true. Now, we don’t know if that’s going to
happen. [¶] . . . [¶] Please keep that in mind.” E.W. responded,
“Right.”
The trial court focused its questioning: “We have to know
your attitude, and everyone else’s that sits on this jury, if we do
get to that point. And my question to you is, are both options
open to you, and real particularly, open to you if we were to get
there?” E.W. responded, “No.” The trial court followed up,
“Okay. You believe that you would favor one position over the
other?” E.W. answered, “I honestly do, yes.” The trial court
responded, “And that’s all we need [¶] . . . [¶] your honest
evaluation. Well, I want to thank you very much. You stop by
the second floor. Let them know that you’ve been excused.”
Defense counsel did not object or ask to question E.W.
b. Analysis
“ ‘ “Under state and federal constitutional principles, a
criminal defendant has the right to be tried by an impartial jury.
(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.)” ’ ”
(People v. Frazier (2024) 16 Cal.5th 814, 830 (Frazier).) “ ‘A
prospective juror may be excluded for cause without
compromising a defendant’s right to trial by an impartial jury if
the juror’s views on capital punishment “would ‘prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.’ ” ’ ” (People v.
Winbush (2017) 2 Cal.5th 402, 428 (Winbush), quoting
Wainwright v. Witt (1985) 469 U.S. 412, 424.) “A prospective
juror is properly excluded if he or she is unable to
conscientiously consider all of the sentencing alternatives,
including the death penalty where appropriate.” (People v.
Jones (2003) 29 Cal.4th 1229, 1246 (Jones); accord, Winbush, at
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p. 429.) “ ‘ “There is no requirement that a prospective juror’s
bias against the death penalty be proven with unmistakable
clarity. [Citations.] Rather, it is sufficient that the trial judge
is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law in
the case before the juror.” ’ ” (Winbush, at p. 429; accord,
Frazier, at p. 831.)
We review a trial court’s excusal of a prospective juror for
cause for substantial evidence. (Frazier, supra, 16 Cal.5th at
p. 831.) Generally, a trial court’s rulings excusing a juror for
cause “ ‘ “ ‘ “are afforded deference on appeal, for ‘appellate
courts recognize that a trial judge who observes and speaks with
a prospective juror and hears that person’s responses (noting,
among other things, the person’s tone of voice, apparent level of
confidence, and demeanor), gleans valuable information that
simply does not appear on the record.’ ” ’ ” ’ [Citation.]
Deference is also accorded to a trial court’s rulings in the death
penalty qualification context ‘[b]ecause prospective jurors “may
not know how they will react when faced with imposing the
death sentence, or may be unable to articulate, or may wish to
hide their true feelings.” ’ [Citation.] ‘ “ ‘When the prospective
juror’s answers on voir dire are conflicting or equivocal, the trial
court’s findings as to the prospective juror’s state of mind are
binding on appellate courts if supported by substantial
evidence.’ ” ’ ” (Ibid.)
Substantial evidence supports the trial court’s excusal of
E.W. To review, in her questionnaire, E.W. stated that the
death penalty “should be reserved for those who are cruel [and]
unusal [sic] with their crimes, especially serial killers, rapists
[and] criminals against children,” but she also indicated that she
would not automatically refuse to vote for the death penalty
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without considering the evidence. These written responses,
standing alone, were not disqualifying. (See Lockhart v. McCree
(1986) 476 U.S. 162, 176.) However, on voir dire one week later,
E.W.’s questionnaire response that the death penalty “should be
reserved for those who are cruel [and] unusal [sic] with their
crimes, especially serial killers, rapists [and] criminals against
children,” prompted the court to inquire whether E.W. would “be
locked into a certain position” in this case. E.W. said that since
she completed the questionnaire she had been “struggling with”
and “thinking about” whether she could consider both penalty
options. In response to the trial court’s questioning, and after
confirming the special circumstances alleged in this case, E.W.
responded with a flat “[n]o” when asked if she would be “open”
to both sentencing options, and said she “honestly” would favor
one position over the other. The trial court — which had the
benefit of witnessing E.W.’s demeanor, which we do not — could
have reasonably determined from this development that E.W.
“[was] unable to conscientiously consider all of the sentencing
alternatives, including the death penalty where appropriate.”
(Jones, supra, 29 Cal.4th at p. 1246; see Frazier, supra,
16 Cal.5th at p. 831; People v. Fuiava (2012) 53 Cal.4th 622,
660–661 (Fuiava); Martinez, supra, 47 Cal.4th at pp. 427–432;
cf. People v. Beck and Cruz (2019) 8 Cal.5th 548, 607–608 (Beck
and Cruz) [“ ‘the mere theoretical possibility that a prospective
juror might be able to reach a verdict of death in some case does
not necessarily render the dismissal of the juror’ erroneous”].)26
26
Defendant argues the trial court erred by excluding E.W.
without affording defense counsel the opportunity to question or
rehabilitate her. Although the trial court did not expressly
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Defendant argues that our decision in People v. Leon
(2015) 61 Cal.4th 569 (Leon) establishes that the trial court
erred in excusing E.W. without additional inquiry. The
concurring and dissenting opinion agrees with defendant on this
point. (Conc. & dis. opn. of Evans, J., post, at pp. 6–12.) The
circumstances in Leon, however, are distinguishable. In Leon,
three prospective jurors indicated in their respective
questionnaire responses that they would automatically vote in
favor of a life without the possibility of parole sentence if the
case reached the penalty phase (Leon, at pp. 590–591), but they
also “answered ‘yes’ to questions asking if they would change
their answers on automatic voting if instructed to set aside
personal feelings and weigh aggravating and mitigating
evidence before voting on penalty” (id. at p. 591). The trial court
began voir dire “by telling prospective jurors it was going to
repeat questions about the death penalty they had already
answered,” and “then asked each panelist the first
four Witherspoon/Witt questions from the questionnaire, with
very little variation or elaboration.” (Ibid.) “The three
dismissed jurors repeated their previous answers, again stating
they would automatically vote for life imprisonment without
invite defense counsel to examine E.W. after questioning but
before dismissing her, the court had previously made clear at
the outset of voir dire that counsel would have the opportunity
to examine prospective jurors. Yet defense counsel did not ask
to question E.W. Thus, we see no error in the trial court’s
dismissal of E.W. without explicitly inviting questioning by the
defense at that time. Moreover, “Although defense counsel’s
failure to object to [E.W.’s] removal did not forfeit this claim on
appeal . . . , [it] suggests that ‘counsel concurred in the
assessment that the juror was excusable.’ ” (People v. Souza
(2012) 54 Cal.4th 90, 127.)
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parole over death.” (Ibid.) We found error in the excusal of these
candidates, explaining that “[t]he cursory voir dire of the
dismissed jurors here was simply not sufficient to permit an
informed determination about their ability to serve.” (Id. at
p. 593.) We elaborated, “When the prospective jurors repeated
their answers about automatically voting for life imprisonment
without parole, the court excused them without exploring
whether they were capable of setting aside this bias and
imposing a verdict of death if the evidence of aggravating and
mitigating factors required it. This was error. An adequate
Witherspoon/Witt voir dire cannot simply reaffirm prospective
jurors’ biases without also asking whether they are capable of
setting them aside and determining penalty in accordance with
the law.” (Ibid.)
The inquiries in Leon were deemed inadequate because
the trial court’s voir dire simply restated questions that
appeared on the jury questionnaire and elicited responses
similar to those that had already been provided, without further
questioning that would draw from related questionnaire
responses indicating an ability to serve. In this case, voir dire
did not “simply reaffirm” a subset of questionnaire responses
(Leon, supra, 61 Cal.4th at p. 593); it revealed instead that
E.W.’s views regarding her ability to vote for the death penalty
had evolved — evidently due to considerable thought on her
part — since she completed the jury questionnaire. Again, in
response to the trial court’s questioning, E.W. stated that in the
week since she had completed the juror questionnaire, she had
“been struggling with” and “thinking about . . . in particular”
whether she would be, in the trial court’s words, “locked into a
certain position” when it came to punishment. Then, after being
reminded of the special circumstances that had been alleged
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against defendant, E.W. said she was not open to both
sentencing options that might be considered at a penalty phase,
and, in response to another question, that she “honestly”
believed she would favor one position over the other. This
conversation conveyed that after substantial consideration of
the relationship between her death penalty views and how they
would affect her deliberations, E.W. would not consider both
sentencing alternatives in defendant’s case, as the law
requires.27 Even without additional follow-up questions, the
27
The concurring and dissenting opinion offers a different
interpretation of E.W.’s statements, opining that they could
have merely communicated “her personal opposition to the
death penalty without consideration of what the law requires.”
(Conc. & dis. opn. of Evans, J., post, at p. 18.) The record reflects
that the trial court had a different interpretation of these
statements. Indeed, the concurring and dissenting opinion’s
downplaying of these statements is simply not reasonable in
light of the record as a whole. In evaluating the relationship
between these responses and E.W.’s ability to follow the law as
instructed, the trial court properly could have taken into
consideration the detailed explanation within the jury
questionnaire of jurors’ responsibilities at any penalty phase,
including the weighing process that jurors would have to
undertake. Although E.W. indicated in her questionnaire
responses that she would not vote automatically for either
penalty and would be able to set aside her feelings and apply the
law, her answers to questions posed at voir dire communicated
that upon continued reflection triggered by the questionnaire,
and in light of the special circumstances alleged in this case, she
considered herself unable to “conscientiously consider” the
death penalty as an option at any penalty phase, as the law
requires. (Jones, supra, 29 Cal.4th at p. 1246; see People v.
Poore (2022) 13 Cal.5th 266, 295; People v. Baker (2021)
10 Cal.5th 1044, 1086; Winbush, supra, 2 Cal.5th at p. 429
[“ ‘ “The real question is ‘ “ ‘whether the juror’s views about
capital punishment would prevent or impair the juror’s ability
to return a verdict of death in the case before the juror’ ” ’ ” ’ ”].)
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trial court could have ascertained from this development, as
articulated in unequivocal terms by E.W., a “ ‘ “definite
impression” ’ ” (Winbush, supra, 2 Cal.5th at p. 429) that E.W.
would not be able to put aside her personal views and
“ ‘ “faithfully and impartially apply the law in the case before” ’ ”
her (ibid.). The excusal of E.W. was therefore supported by
substantial evidence.28
On these facts, People v. Schultz (2020) 10 Cal.5th 623
(Schultz), which involved a comparable evolution in a
prospective juror’s views, is more closely on point. There, we
rejected a defendant’s attempted analogy to Leon and found no
error in the excusal of a prospective juror for cause when her
statements during voir dire to the effect that she could not apply
the death penalty, regardless of the evidence and the weighing
of aggravating and mitigating circumstances at the penalty
phase, “effectively repudiated her questionnaire responses.” (Id.
at p. 653.) Our decision in Schultz determined that the
prospective juror’s voir dire “responses were clear and
unambiguous statements from which the trial court could
properly conclude that [she] would not be able to set aside her
beliefs and follow the court’s instructions.” (Ibid.) We reached
this conclusion even though the prospective juror “indicated on
her questionnaire that she did not have strong views regarding
the death penalty and that she could follow the court’s
instructions” (ibid.), and the trial “court never asked [the
prospective juror] directly whether her opposition to the death
28
Defendant also relies on People v. Stewart (2004)
33 Cal.4th 425, but that case is plainly distinguishable as
involving the exclusion of prospective jurors based solely on
their questionnaire responses, with no follow-up voir dire by
anyone. (See id. at p. 448.)
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penalty meant she was not willing or able to set aside her views
and to follow the court’s instructions to determine the
appropriate punishment” (id. at p. 652). This case involves an
evolution in a prospective juror’s views similar to what occurred
in Schultz, and as in that case, we find no error in the excusal of
the prospective juror. (See Winbush, supra, 2 Cal.5th at p. 432
[upholding the dismissal of a prospective juror for cause where
the candidate’s views “had apparently ‘crystalized’ over the
course of her questioning and perhaps during [a] break”].)29
The concurring and dissenting opinion faults the trial
court for not specifically asking E.W. “whether she could set
aside her personal views and follow the law as instructed,”
whether she “would vote in favor of life without parole
regardless of the evidence in aggravation and mitigation,” or
other questions that the concurring and dissenting opinion
regards as necessary “to demonstrate that E.W. was incapable
of following the law.” (Conc. & dis. opn. of Evans, J., post, at
p. 16; see id. at p. 19.) While responses to questions such as
those set out in the concurring and dissenting opinion may
support a finding that someone cannot fairly and impartially
29
We explained in Winbush, “A refinement of views often
occurs during voir dire. When panel members are sent to a
courtroom, they learn for the first time that they have been
called for a capital case. Then, appropriately, their opinions are
probed in depth. These questions touch on matters of
conscience, morality, social policy, and individual ability that
panelists may never have considered in practical detail. The
process encourages panelists to think deeply and seriously about
their views. It falls to the discerning trial judge to carefully
evaluate each panelist’s state of mind on these weighty issues.
The able trial court did so here.” (Winbush, supra, 2 Cal.5th at
p. 432.)
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serve as a juror (see, e.g., Schultz, supra, 10 Cal.5th at p. 652),
such an inability may be established in various ways (see, e.g.,
Fuiava, supra, 53 Cal.4th at pp. 660–661; Martinez, supra,
47 Cal.4th at pp. 427–432), and there is no required script that
must be followed during voir dire (see Beck and Cruz, supra,
8 Cal.5th at p. 608). Although questions such as those proposed
by the concurring and dissenting opinion may be helpful in
certain circumstances, here the trial court undertook an
adequate inquiry in light of E.W.’s responses; no further
questioning was required.
For these reasons, we reject defendant’s claim of error in
jury selection.
B. Guilt Phase Issues
1. Substantial evidence
Defendant challenges the sufficiency of the evidence
supporting all but four of his convictions — those arising from
the June 9 and June 10 fires from which his DNA was recovered
from the layover devices (counts 14, 15, 34, and 35)30 — and the
special circumstance findings. “ ‘ “In reviewing a challenge to
the sufficiency of the evidence, we do not determine the facts
ourselves. Rather, we ‘examine the whole record in the light
30
In his opening brief, defendant also concedes that
sufficient evidence supports his convictions arising from the
June 3 layover device fire (counts 12 and 32) because it “was
near [his] apartment” and, thus, “it is indisputable that [he]
could have been in the vicinity of the fire.” In his reply brief,
however, defendant purports to “no longer concede[] there was
sufficient evidence to convict him” on these counts. Despite
defendant’s concession in his opening brief, we exercise our
discretion to evaluate the sufficiency of the evidence supporting
defendant’s convictions on these counts.
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most favorable to the judgment to determine whether it
discloses substantial evidence — evidence that is reasonable,
credible and of solid value — such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.’
[Citations.] We presume in support of the judgment the
existence of every fact the trier could reasonably deduce from
the evidence. [Citation.] [¶] The same standard of review
applies to cases in which the prosecution relies primarily on
circumstantial evidence and to special circumstance allegations.
[Citation.] ‘[I]f the circumstances reasonably justify the jury’s
findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a
contrary finding.’ [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility.” ’ ” (People v. Ramirez, supra,
13 Cal.5th at pp. 1117–1118.)
Applying these principles, we find the evidence sufficient
to support all of defendant’s convictions and the special
circumstance findings.
a. Background
Defendant was charged in counts 1 through 5 with first
degree murder on a felony-murder theory premised on the
firefighters’ deaths during the Esperanza Fire. (See § 189,
subd. (a) [“All murder . . . that is committed in the perpetration
of . . . arson . . . is murder of the first degree”].) The trial court
instructed the jury that to find defendant guilty on these counts,
the People had to prove that defendant committed arson, that
he intended to commit arson, and that while committing arson
he did an act that caused the death of another person. (See
CALCRIM No. 540A.) The court instructed the jury that “[t]o
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decide whether the defendant committed arson,” the jury should
“refer to the separate instruction . . . on that crime.”
Defendant was charged in counts 6 through 8 and 12
through 28 with arson of forest land in violation of section 451,
subdivision (c). Under section 451, “A person is guilty of arson
when he or she willfully and maliciously sets fire to or burns or
causes to be burned . . . any structure, forest land, or property.”
The punishment for arson depends on the type of damage caused
by the fire. Under subdivision (c) of section 451, “Arson of a
structure or forest land is a felony punishable by imprisonment
in the state prison for two, four, or six years.”31 The trial court
instructed the jury that to find defendant guilty on these counts,
the People had to prove that he “set fire to or burned a forest
land” and “acted willfully and maliciously” when he did so.32
(See CALCRIM No. 1515.)
Defendant was charged in counts 29 through 45 with
possession of an incendiary device in violation of section 453,
subdivision (a). The trial court instructed the jury that to find
defendant guilty on these counts, the People had to prove that
31
In comparison, “Arson that causes great bodily injury is a
felony punishable by imprisonment . . . for five, seven, or nine
years” (§ 451, subd. (a)); “Arson that causes an inhabited
structure or inhabited property to burn is a felony punishable
by imprisonment . . . for three, fiv
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