Opinion

People v. Oyler

Court
California Supreme Court
Filed
May 5, 2025
Status
Published
Cited by
0 cases
Authority
More cited than 35.1%

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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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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PEOPLE v. OYLER

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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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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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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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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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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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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[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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(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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