The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CARY ANTHONY STAYNER,
Defendant and Appellant.
S112146
Santa Clara County Superior Court
210694
April 30, 2026
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, and Adams*
concurred.
Justice Evans filed a concurring and dissenting opinion.
*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Three, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. STAYNER
S112146
Opinion of the Court by Guerrero, C. J.
This case is an automatic appeal from a judgment of death.
(Pen. Code,1 § 1239, subd. (b).) Defendant Cary Anthony
Stayner used a ruse to enter the motel room of Carole Sund, her
15-year-old daughter Juli Sund, and their 16-year-old family
friend Silvina Pelosso.2 Once inside the room, defendant
brandished a gun and used duct tape to bind Carole and the
girls. He murdered Carole by strangling her and murdered
Silvina by strangling and suffocating her. Then, over the course
of several hours, he repeatedly sexually assaulted Juli, after
which he kidnapped her, sexually assaulted her again, and then
murdered her by slitting her throat. About five months later,
defendant kidnapped, murdered, and decapitated Joie
Armstrong. Defendant confessed to his crimes in a detailed
recorded interview. The facts of the Armstrong murder, which
occurred inside Yosemite National Park (Yosemite) and was
prosecuted by federal authorities, were presented during the
penalty phase.
After a jury trial, defendant was convicted of the murders
of Carole, Juli, and Silvina (§ 187, subd. (a)) and of kidnapping
Juli (§ 207). As to the three murder counts, the jury found true
allegations that defendant personally used a deadly and
1
Unspecified statutory references are to the Penal Code.
2
Because several victims and witnesses share the same last
names, we occasionally refer to them by their first names.
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dangerous weapon (former § 12022, subd. (b)(1)) and personally
used a firearm in the commission of the crimes (former
§§ 12022.5, subd. (a)(1), 12022.53, subd. (b)). The jury found
true five special circumstances: Multiple murders (§ 190.2,
subd. (a)(3)); kidnapping murder as to Juli (id., subd. (a)(17)(B));
attempted rape murder as to Juli (id., subd. (a)(17)(C)); forcible
oral copulation murder as to Juli (id., subd. (a)(17)(F)); and
burglary murder (id., subd. (a)(17)(G)). The jury found not true
an alleged robbery-murder special circumstance. (Id., subd.
(a)(17)(A).)
In a separate sanity phase trial, the jury found defendant
to be sane at the time of the offenses, and in a separate penalty
phase trial, the jury set the penalty at death. The trial court
denied defendant’s motion for a new trial and his motion to
modify the sentence and imposed a sentence of death with a
consecutive prison term of 45 years.
We affirm the judgment in its entirety.
I. FACTS
A. Guilt Phase
1. Prosecution case
a. The disappearance of Carole, Juli, and Silvina
In February 1999, Carole Sund lived in Eureka with her
husband Jens, their 15-year-old daughter Juli, and their three
younger children. Carole planned a vacation with Juli and
Silvina, a 16-year-old family friend from Argentina who was
staying with them.
On February 12, 1999, Carole, Juli, and Silvina flew to
San Francisco, and Carole rented a red Pontiac Grand Prix from
Avis Car Rental. They planned to attend Juli’s cheerleading
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competition in Stockton, drive to Yosemite for a two-night stay
at the Cedar Lodge, and return to San Francisco to meet up with
Jens and the other children for a trip to Arizona.
On February 14, 1999, Carole, Juli, and Silvina checked
into room 509 at the Cedar Lodge in El Portal. Juli and Silvina
rented a VCR and some VCR tapes. The clerk recalled
discussing the movie Jerry Maguire (Tristar Pictures 1996) with
them. Defendant was a maintenance worker at the Cedar Lodge
and lived in an apartment above the restaurant and bar.
Tracy M. was also staying at the Cedar Lodge with family
and friends, including Tracy M.’s 15- and 12-year-old daughters
and their two friends. On February 14, the four girls went to
the motel’s indoor pool and spa and saw defendant hanging out
in the spa area.
On the morning of February 16, a Cedar Lodge manager
called room 509 because the guests had not checked out. No one
answered. Later, a housekeeper looked inside the room and saw
wet towels on the bathroom floor and beds that looked “almost
like [they were] made up” but appeared to be “in a tiny bit of
disarray.” A pink blanket and a pillow were missing from the
closet.
When Carole and the girls were not at the San Francisco
International Airport on February 16 for their planned meetup,
Jens was not surprised because his plane had arrived four hours
late. He caught the next plane to Phoenix, Arizona. When he
did not hear from Carole by February 17, he filed a missing
person report.
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b. Investigation of Sund-Pelosso murders
i. Initial investigation
A Mariposa County Sheriff’s Deputy received the missing
person report and went to Cedar Lodge. She examined room 509
and did not see any damage to the door or windows. The
curtains were closed, and one bed sheet was missing. There
were some Danish pastry rolls, an apple, and tomato juice in the
room. Wet towels were heaped on the bathroom floor.
On February 19, a middle school student discovered a
wallet while walking to school in Modesto. The wallet contained
Carole’s driver’s license and credit cards.
On February 20, another Mariposa County Sheriff’s
Deputy processed room 509 for evidence and collected latent
fingerprints. One pillow was missing a pillowcase, and one bed
was missing its top sheet. On the floor, there were small pieces
of cloth and what appeared to be a garment label.
On March 3, 1999, FBI Special Agent Anthony Alston
interviewed defendant at Cedar Lodge. Defendant said he
returned to Cedar Lodge on Valentine’s Day weekend after
going out of town to visit friends. He said he had not seen the
missing individuals or their car.
ii. Discovery of Carole and Silvina’s bodies
The afternoon of March 18, 1999, a witness saw a
thoroughly burnt car on a remote dirt road. He could not tell
the color of the car but saw that it was red near the front license
plate, which had fallen off. He took the license plate home and
called police.
The next morning, FBI Special Agent Chris Hopkins went
to the scene and discovered the bodies of Carole and Silvina in
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the trunk of the car. A pathologist testified that the victims died
before the fire began. The victims’ bones were damaged by heat
and showed no damage from a bullet or a cutting tool.
Strangulation could not be ruled out as the possible cause of
death.
Agents investigated the burnt car and surrounding areas
and found a rope, a black purse, a green fanny pack, a camera
case with a camera, an Avis Car Rental key, and Juli’s shoes.
Inside the purse was Carole’s credit card, a second camera, and
a receipt from Cedar Lodge. Photographs developed from the
cameras showed the victims at a cheerleading contest and in
Yosemite. Arson expert FBI Agent Timothy Huff determined
the fire was intentionally set weeks before its discovery on
March 18.
iii. Discovery of Juli’s body
On March 24, 1999, Special Agent Alston, who had
interviewed defendant at Cedar Lodge, received a letter at the
FBI’s Modesto field office. The letter included a map of the Vista
Point area on the Don Pedro Reservoir and included the words
“We had fun with this one,” “Vista Point,” and “Don Pedro.”
Defendant’s right thumbprint was found on the stamp. An FBI
document examiner discovered indentations on the letter that
depicted a heart and the words “Victor,” “Johnny,” “Forever,”
and several X’s.
On March 25, 1999, FBI agents searched the area depicted
on the map and discovered Juli’s body. There was a piece of duct
tape attached to her left ankle. An autopsy revealed the cause
of death was a six-and-a-quarter-inch incision to her neck. The
pathologist testified that Juli’s vulva was shaved but that she
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could not determine whether Juli had been sexually assaulted
because her body was decomposed.
c. Defendant’s statement
On July 24, 1999, FBI agents, thinking defendant might
have some information about the murder of Joie Armstrong,
located him at a resort in Wilton. Defendant agreed to be
interviewed at the FBI office in Sacramento, waived his rights
under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and
was interviewed in Sacramento. Defendant’s interview was
audio recorded and relevant portions were played for the jury.
Defendant said he had always had obsessive-compulsive
sexual feelings but that in late 1998, it “just got to the point”
where he decided to act on them. He began fantasizing about
killing his girlfriend, raping and killing her eight- and 11-year-
old daughters, and burning their house to avoid detection. He
had considered acting on this fantasy as recently as two days
before the interview, even going over to his girlfriend’s house but
discovering that her daughters were away.
On the weekend of February 13 to 14, 1999, defendant put
together a crime “kit” including a roll of black duct tape, a knife,
and some rope. On February 14, he saw four girls at the Cedar
Lodge pool who would have been his victims, but a man was
staying with them. The next day, defendant visited his
girlfriend and her daughters but decided not to kill them in part
because there was a man staying on the property. At 9:00 p.m.,
he returned to Cedar Lodge and peered into a room next to
where a red Pontiac Grand Prix was parked. He saw a woman
(Carole) and two girls (Juli and Silvina). He “didn’t see a man
in the room, so they were vulnerable. Easy prey.” He got his
crime “kit,” gloves, and a gun from his room.
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On the “[s]pur of the moment,” he thought of a plan — to
knock on the doors of several empty nearby rooms, loudly say
“[m]aintenance,” walk in, wait a few seconds, and slam the door,
“to just kinda desensitize them to the knock on their door.”
When he knocked on the victims’ door, Carole looked out the
window. Defendant told her he needed to check inside for a
possible water leak. Carole did not want to let him in. He said,
“[O]kay, no problem ma’am I’ll just . . . go get the manager,” and
told her they would have to move to another room. Carole asked
why they had to move, and defendant said they would not have
to if he could check inside. Carole let him in.
Defendant went into the bathroom and pretended to check
for a leak. As he came out of the bathroom, he pulled out the
gun. The girls were watching the movie Jerry Maguire.
Defendant pointed the gun at Carole and said he needed money
and the keys to the car. Then he bound everyone, covered their
mouths with duct tape, and led Juli and Silvina into the
bathroom. Defendant wet some towels, “[t]ryin’ to make it look
like they had been there all night [¶] . . . [¶] [a]nd into the
morning.”
Defendant then cut a piece of rope, sat on Carole’s back,
and “nonchalantly strangled her to death.” He “had no feeling”
as he “just performed the task.” He wrapped Carole’s body in a
sheet and put her in the trunk of the Pontiac.
Defendant returned to the room and removed the girls’
clothes, cutting their shirts off with his knife, causing bits of
cloth to fall on the carpet. Defendant orally copulated Juli, made
her orally copulate him, and attempted to rape her. He took
Silvina into the bathroom and strangled and suffocated her.
Then he continued his sexual assault of Juli for several hours.
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At one point, Juli asked to go to the bathroom. Defendant
did not want Juli to see Silvina and “freak out,” so he took her
next door to room 510. Defendant forced Juli to shave her pubic
area because he wanted to fulfill his fantasy of having sex with
a prepubescent girl. He then orally copulated her again. As it
got closer to morning, he knew he had to leave. He tied Juli up,
left her in room 510 with the phone disconnected, and returned
to room 509. Wearing gloves, he packed the victims’ belongings
in their suitcases and put the suitcases, Carole’s purse, and
Silvina’s body in the Pontiac. He left behind some Danish
pastries and tomato juice.
Defendant returned to room 510 with a pink blanket from
room 509, put it around Juli’s shoulders, walked her out to the
Pontiac, and had her sit in the passenger seat. He drove to the
front office to drop off the motel keys and was “amaz[ed]” to find
Juli still sitting in the car when he returned.
As defendant drove away from Cedar Lodge, he wished he
“had a place to take [Juli]” and “keep her” because he “liked her
a lot.” But he also “knew . . . all the time” that he was going to
kill her. He pulled into the Vista Point parking lot at the Don
Pedro Reservoir and carried Juli down a path “like a groom
carrying a bride over the threshold.” He kissed and hugged her,
told her he wished he could keep her, and made her orally
copulate him again. He also told her that back in the room, she
had a good chance to get away because there were no bullets in
his gun. Then, defendant told her he loved her and slit her
throat with a knife three times. He cut the duct tape off her
hands and covered her body with branches and loose brush.
Defendant went back to the car, opened the trunk, cut the
bindings off Carole and Silvina, and took their clothes off to
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prevent authorities from learning they were killed in their
nightclothes. He put the bedsheet, clothing, and duct tape into
a pillowcase and closed the trunk. He threw the knife and the
roll of duct tape down the hill and drove away. He saw a vehicle
driving into the parking lot and tried to hide his face. He drove
around and threw the pillowcase containing the sheet, clothes,
and duct tape in a dumpster. He parked the car and wiped it
down to remove fingerprints. He threw away Carole’s purse, the
rope, a cosmetic bag, and some shoes in various places.
Defendant walked toward Sierra Village but returned to
the car after realizing he forgot to wipe down one part of the car.
He missed the bus because of the delay, so he used $180 of the
$200 he had taken from Carole’s purse to take a taxi to
Yosemite. He then caught a bus to Cedar Lodge. That night, he
returned to room 509 and replaced a pillowcase that had some
blood on it, made up the beds with clean sheets (but forgot one
sheet), and cleaned some blood spots from the bathtub.
On February 18, defendant returned to the Pontiac late at
night to burn it. He scratched the message “we have Sarah” into
the car (Juli had told defendant that her name was Sarah)
because he wanted authorities to think that more than one
person committed the crimes, and that “Sarah” was still alive.
Defendant also took Carole’s wallet from her purse. He poured
gasoline over the back seat, threw a match on it, ran up the hill,
and heard an explosion. He then drove to Modesto and threw
Carole’s wallet out the window as “another ploy to throw them
off.”
At some point after he burned the Pontiac, defendant
returned to the Don Pedro Reservoir where he had left Juli’s
body and retrieved the pink blanket. He put the blanket in a
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plastic bag, drove to Coulterville, and threw the bag down a hill.
He wrote the letter with the map showing the location of Juli’s
body and left an imprint on the letter of the following words,
“just another ploy to throw you guys off,” because he wanted
Juli’s body to be found. Defendant said he was ready to speak
to the FBI agents because it was “time for the killing to stop.”
d. Further investigation
On July 25, the day after his confession, defendant
accompanied the agents to several locations and told them what
they would find. For example, he directed them to the white bag
containing the pink blanket and to Vista Point, where he had
thrown the duct tape and knife. No knife was found at Vista
Point at that time (it was found later), but the end of the duct
tape roll that was found matched a piece of tape that was
recovered from Juli’s ankle.
About the same time, a taxi driver called the FBI to report
that she recognized defendant’s photograph on television
because she had driven him from Sierra Village to Yosemite on
February 16. According to the taxi driver, defendant refused to
give his name or workplace at the park entrance. He paid the
park entrance fee and cab fare with cash he took from a
backpack he was carrying.
2. Defense case
a. Forensic evidence
FBI Agent Jacob Holmes testified that latent fingerprints
he found on items recovered from the site of Juli’s murder and
in room 509 did not belong to defendant. An FBI document
examiner testified there was not enough of a sample to
determine whether the handwriting on the letter and envelope
sent to the FBI belonged to defendant.
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b. Character evidence
Several Cedar Lodge employees testified they did not
believe defendant was a violent person or the kind of person who
would prey on women or children. The owners of a glass shop at
which defendant worked from 1993 to 1995, a glass shop
employee, and the employee’s fiancée all testified that defendant
was not violent or aggressive toward women.
c. Evidence of defendant’s inability to form the
requisite mental state for murder
One morning in July 1995, one of the glass shop owners
took defendant to the county hospital after defendant was found
red-faced and teary-eyed, with bloody knuckles from punching
plywood. A few weeks before this incident, defendant was
agitated and shaking as he told a fellow employee’s fiancée that
he had always had dreams involving blood, women, and murder,
but had recently become incapable of controlling his feelings and
could not distinguish his dreams from reality. Shortly before
the murders, a guest at the Cedar Lodge saw defendant walking
around mumbling to himself.
On March 3, 1999, when Special Agent Alston interviewed
defendant as part of the investigation, the conversation ended
with a brief discussion of defendant’s brother Steven. Defendant
was “solemn” as he talked about how Steven was abducted as a
child, subsequently reunited with his family, and later died in a
motor vehicle accident.
On July 25, 1999, when defendant went with FBI agents
to the crime scenes, he was cooperative and did not try to
negotiate any benefit in exchange. At one point, Special Agent
Kenneth Hittmeier noticed defendant wipe tears or sweat from
the side of his face.
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Dr. Jose Arturo Silva, a forensic psychiatrist, testified that
defendant’s father had a history of pedophilia and exhibitionism
and that his mother had a history of depression and mild
autism. His extended family had various psychotic illnesses and
disorders. There was evidence that defendant may have
suffered a perinatal injury to his brain. According to Dr. Silva,
defendant had low emotional intelligence and poor social
judgment, consistent with autism, as evidenced by his attempt
to negotiate with FBI agents for a monetary award and access
to child pornography in prison. Defendant lacked empathy,
tended to see others as inanimate objects, had recurrent dreams
of disembodied heads, a preoccupation with Bigfoot and the
prophecies of Nostradamus, and he had a feeling that his actions
were in fulfillment of a special personal destiny. These
symptoms supported a diagnosis of personality disorder not
otherwise specified with schizoid, schizotypal, antisocial, and
narcissistic features. Dr. Silva also diagnosed defendant with
pedophilia, voyeurism, hebephilia with features of sexual
sadism, and paraphilia not otherwise specified, and anxiety
disorder not otherwise specified, with obsessive-compulsive
features. He believed defendant was suffering from severe
mental disorders at the time of the crimes.
Dr. Ruben Gur, a neuropsychologist who oversaw
defendant’s brain MRI, observed abnormalities that reflected
defendant’s poor emotional processing and difficulty
distinguishing between thoughts and reality. Dr. Joseph Wu,
who performed a PET scan of defendant’s brain, testified that
his findings suggested a traumatic brain injury, consistent with
schizophrenia, bipolar depression, or obsessive-compulsive
disorder, and psychotic symptoms. Dr. Monte Buchsbaum
agreed with Dr. Wu’s findings.
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3. Prosecution case in rebuttal
Dr. Alan Waxman questioned the reliability of Dr. Wu’s
PET scan machine and criticized the various methodology used
by Drs. Wu and Buchsbaum. Based on his own evaluation,
Dr. Waxman opined that defendant’s scan showed no
abnormalities.
4. Defense surrebuttal
Dr. Frank Wood, an expert in PET scan technology,
disagreed with Dr. Waxman that there were no abnormalities in
defendant’s brain. He testified that Dr. Wu’s methodology was
reliable, and he questioned Dr. Waxman’s qualifications to
testify as an expert.
5. Verdict
Having heard the foregoing evidence, the jury returned a
verdict convicting defendant of three murders and one
kidnapping, with true findings on enhancement allegations and
five special circumstance allegations.
B. Sanity Phase
1. Defense case
a. Evidence of hallucinations and headaches
Cedar Lodge coworker Elvia D., who knew defendant since
1997, testified about defendant telling her he had visions.
Becky T., a former neighbor who saw defendant almost every
day between 1979 and 1986, testified that defendant told her
about his headaches. Both witnesses testified that they believed
defendant was not the type of person who would sexually or
violently assault someone.
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b. Expert psychiatric evidence
Dr. Lynn Alison McInnes, a psychiatry and human
genetics expert, testified that at the time of the crimes,
defendant was suffering from intrusive, uncontrollable thoughts
and psychosis, making him unable to unambiguously know the
nature and quality of his acts. She explained that various
disorders ran in defendant’s family and that his dysfunctional
family life and early childhood traumas — including the
abduction of his brother Steven, a threatened suicide by
defendant’s father, an uncle’s molestation of defendant, Steven’s
return to the family home and his untimely death caused by a
drunk driver, defendant’s father’s molestation of defendant’s
sisters — likely contributed to his mental disorders. In addition,
when defendant was 29 years old, an uncle with whom he was
living was murdered. Defendant attempted suicide on the first
anniversary of his uncle’s death. In the months leading up to
the crimes, defendant believed he was receiving messages about
an upcoming apocalypse. This, along with the fact that
defendant was walking around mumbling to himself at Cedar
Lodge the day before the murders, showed he was in a psychotic
state.
2. Prosecution case
Forensic psychiatrist Dr. Park Dietz opined that at the
time of his crimes, defendant understood the nature and quality
of his acts and knew his acts were wrong. Dr. Dietz based his
conclusion on defendant’s methodical and careful actions,
including preparing a crime kit, concealing his fingerprints,
choosing victims with no male companion, using a ruse to enter
the victims’ room, cleaning the crime scene, killing Juli in a
remote location, burning the Pontiac, and misleading
investigators. Dr. Dietz opined “[t]here [was] nothing about
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what [defendant] was doing that he didn’t understand.” Indeed,
defendant expressly admitted to Dr. Dietz that he knew at the
time of his crimes that his actions were both illegal and wrong.
Having heard the foregoing evidence, the jury returned a
verdict finding that defendant was sane at the time of the
offenses.
C. Penalty Phase
1. Prosecution case
The prosecution relied on two aggravating factors: (1) the
nature and circumstances of the crime, including evidence
regarding the impact the crime had on the victims and their
families; and (2) defendant’s other violent criminal activity,
including, most particularly, the murder of Joie Armstrong.
a. Victim impact evidence
Raquel, Silvina’s mother, testified that she met Carole
when Carole was an exchange student in Argentina in 1973.
They were like sisters and remained friends over the years. The
Sunds visited them in Argentina when Juli was one year old.
Silvina did well in school, loved the outdoors, was a competitive
roller-skater, and had a great relationship with her family.
Silvina went to visit the Sunds in December 1998 and planned
to return to Argentina in March 1999.
When Raquel and her husband learned of Silvina’s
disappearance, they flew to the United States and remained
there until the FBI found Silvina’s remains. Raquel had
counseling, but the murder was hard on her marriage, and they
also lost their business because they were emotionally unable to
handle the work. Raquel missed playing, reading, and telling
jokes with Silvina.
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Silvina’s father, Jose, testified that Silvina was tenacious
and adventurous. She earned good grades to convince him to
give his permission for her to go to the United States to visit the
Sunds. It was the first time he and Raquel had let Silvina go
anywhere by herself. When he learned about Silvina’s
disappearance, he felt a heavy pain in his chest. When he
learned the FBI had discovered her body, he decided to throw
himself in front of a train, but his other daughter called,
interrupting his plan. He believed that Silvina, despite being
dead, had caused his other daughter to call him at that moment,
saving his life. Losing Silvina hurt him “down to [his] soul.”
Carole C., Carole Sund’s mother, testified that Carole was
outgoing and was the family organizer for gatherings. They
lived near one another and were very close. Carole, who adopted
three children after she had Juli, taught parenting classes, was
active in adoption organizations, and was a court-appointed
special advocate for abused and neglected children. Juli, who
was Carol C.’s first grandchild, was outgoing, kind, and
thoughtful.
After Carole and the girls disappeared, Carol C. waited by
the phone while her husband was in Yosemite. The discovery of
Carole and Silvina’s charred bodies was “devastating” — “[y]ou
don’t know how you’re going to survive.” For the next 10 days,
they were “desperately hoping” that Juli might still be alive, but
when they found Juli’s body, “You give up. This big hole is going
to be in your life forever.”
Francis C., Carole Sund’s father, testified that he went to
Yosemite to help with the search after hearing about the
disappearance of Carole and the girls. He broke down after the
burned car was found, but they held out hope that Juli was alive,
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until Juli’s body was found. Carole was very special to him. She
was a daredevil who loved the outdoors, and Juli was a lot like
Carole. Juli had two wishes, to own and drive a car and to have
a boyfriend; she would never have either.
b. Murder of Joie Armstrong
i. Investigation of the Armstrong murder
In July 1999, Joie Armstrong, who worked as an
instructor at the Yosemite Institute, was murdered in the
Foresta area of Yosemite.
On July 21, at around 6:30 p.m., Armstrong called her
boss’s wife, Suzanna M., and said she was going to bring over
some equipment. Suzanna M. waited about an hour, but
Armstrong never arrived, so she went to Armstrong’s cabin in
Foresta to pick up the equipment. Armstrong’s white pickup
truck was there, and the two front doors to the cabin were open.
Suzanna M. knocked, then poked her head in and called for
Armstrong but got no answer. Suzanna M. thought this was
odd, but she did not think anything was wrong and went home.
The next day, Suzanna M.’s husband told her Armstrong did not
show up to work.
On July 21, Armstrong was supposed to visit her friend in
Marin County at about 10:00 p.m. Armstrong never arrived,
and her friend called the police at about midnight.
At 7:20 p.m. on July 21, a witness saw a blue-and-white
International Scout near Foresta. The next morning, he saw the
same vehicle parked nearby, this time with a man near it.
Between 10:00 and 10:30 p.m. on July 21, Yosemite Park
Ranger Don Ramsey was driving toward El Portal when he saw
defendant standing next to a blue-and-white International
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Scout with his thumb out. Ramsey stopped and defendant said
he was having car trouble. Ramsey drove defendant to his
Cedar Lodge home. Defendant seemed normal during the drive
and carried on a “lucid and cogent” conversation.
The next morning, Yosemite Park Ranger Mark Harvey
received a missing person report concerning Armstrong. He
took two trips to Armstrong’s cabin and saw Armstrong’s truck
parked out front both times. On his first trip, he found both
front doors to the cabin open. He knocked on the doors and
called inside, but there was no answer. On his second trip, he
examined the truck and noticed luggage in the back. He checked
inside the house and saw signs that someone had been packing
a day pack. Harvey sought assistance from Yosemite National
Park’s search and rescue office. On the afternoon of July 22, the
search team discovered Armstrong’s body in a nearby creek.
An FBI Special Agent who was called to the scene saw
Armstrong’s body near the bank of the creek, partially
submerged and headless. An hour or two after the body was
found, Armstrong’s head was found about 40 feet away. The
agent also found shoe prints and tire tracks in front of
Armstrong’s house and near Armstrong’s truck. He and his
team recorded the prints with plaster castings.
A pathologist who conducted an autopsy testified that
there were abrasions and bruises all over Armstrong’s body,
incisions on her arm and hand that may have been defensive
wounds, and a large abrasion on the left side of her face. The
cause of death was exsanguination of most of the blood in the
body after suffering a deep cut across the throat. The wounds
to the neck were consistent with a person slitting Armstrong’s
throat and then decapitating her.
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Opinion of the Court by Guerrero, C. J.
On July 22, the same evening Armstrong’s body was
found, a National Park Service special agent saw defendant
driving a blue International Scout, hailed him, and told him he
was investigating a missing person report. Defendant agreed to
be interviewed at the station. During the interview, defendant
mentioned his International Scout was unique and he was the
only one in the Yosemite area who drove a vehicle like it. He
said he had car trouble the previous night and a park ranger
had given him a ride to Cedar Lodge where he worked. He
denied his vehicle was in the Foresta area the night before.
A Cedar Lodge employee and resident testified that on the
evening of July 22, defendant sold him a VCR and television for
a very low price. He paid defendant only a portion of the price
for the items, and he never saw defendant at Cedar Lodge again.
Defendant’s supervisor testified that defendant did not
usually miss work, but he did not show up on July 23 and never
returned to work. On July 23, defendant also closed his credit
union account.
ii. Defendant’s confession to the Armstrong
murder
As discussed above, FBI agents located defendant in
Wilton on July 24, 1999, and interviewed him in Sacramento.
The interview was audio recorded and transcribed, and the
prosecution played the relevant portion of the recording for the
jury. In defendant’s statement, he admitted that on the day of
the Armstrong murder, he went to Foresta carrying duct tape, a
large knife, and a .22 caliber handgun in his backpack. He was
walking near the creek because he had previously seen Bigfoot
there.
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Defendant saw Armstrong and “it clicked” when he
discovered she was alone. He pointed his gun at her and forced
her into the house, duct-taped her hands behind her back, and
gagged her. He intended to take her to an isolated area and
sexually assault her. He walked her outside and put her in his
truck as she fought him. Defendant had driven only a few
hundred yards when Armstrong jumped out through the
window and ran. Defendant caught her and slit her throat
twice. She went limp.
Defendant dragged Armstrong’s body, left it on the bank
of the creek, and returned to his truck but went back to
decapitate her and hide her body under some dry reeds. He
considered keeping the head as a trophy but, instead, placed it
in the creek. He said: “I don’t black out and do things, you know.
[¶] . . . [¶] I know what’s wrong, what’s right.” He said he
“[m]ost definitely” knew what he did was wrong, but “it’s kinda
like just a job, it’s something you have to do.”
iii. Further investigation
On July 25, 1999, the day after defendant gave the
foregoing recorded audio statement, he accompanied FBI agents
to the Armstrong crime scene and showed them where the knife
was located. On July 28, agents searched defendant’s vehicle
and found a roll of duct tape and a backpack. Inside the
backpack was a gun, a book about a serial killer, and a plastic
package of sunflower seeds with the corner torn off. The end of
the duct tape roll found in the car matched pieces of duct tape
found at the crime scene. The torn part of the sunflower seed
package matched a piece of plastic found at the crime scene.
The shoe prints found at the scene of the murder matched
the sandals defendant was wearing at his July 24 interview.
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The tire tracks found were consistent with the mismatched tires
on defendant’s International Scout.
2. Defense case
Defendant argued that his mental disorders, exacerbated
by his difficult childhood, mitigated his crimes. He also
presented evidence of his good character, his remorse, and the
likelihood he would adjust to prison in a positive way.
a. Evidence of defendant’s dysfunctional family
background
Defendant’s paternal aunt and cousin testified about the
stress in defendant’s family after Steven was abducted and how
upset defendant was after his uncle was murdered. The aunt
testified she loved defendant and wanted him to live.
Sandra A., who used to interact daily with defendant’s
family, testified that defendant’s mother neglected her children.
Defendant’s close friend testified that defendant was visibly
emotional when he told her he had discovered his uncle’s body.
Several witnesses testified about the effect Steven’s
abduction had on the family. One witness testified that
defendant prayed for Steven and cried when he talked about
him. After the abduction, defendant’s parents were so focused
on finding Steven that they neglected the other children.
According to several witnesses, defendant was excited
when Steven came home, but the attention Steven received from
the media and their parents was hard on defendant. When
Steven died in a motor vehicle accident, defendant was
heartbroken, cried, and seemed “absolutely numb.”
Defendant’s oldest sister testified she had mixed feelings
about defendant but that he was very important to her parents.
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Opinion of the Court by Guerrero, C. J.
Another sister testified that she loved defendant but they had a
difficult family life. Defendant’s youngest sister testified that
they were a happy family, and that defendant played with her
disabled son and made him happy. Defendant’s parents
testified that they loved defendant, visited him in jail
frequently, and wanted him to live.
b. Evidence of defendant’s mental health problems
Numerous witnesses testified about defendant’s
compulsive hair-pulling, troubling dreams, headaches,
psychiatric problems, and obsession with Bigfoot.
Dr. Silva evaluated defendant’s life history and testified in
detail about the various stressors he faced at different periods
in his life. He believed that, at the time of all four murders,
defendant was suffering from pervasive developmental disorder,
obsessive-compulsive disorder, various paraphilias, and a post-
traumatic-type stress disorder, which had a significant impact
on his ability to control himself. Dr. Silva did not think
defendant lost his ability to distinguish right from wrong.
Dr. Fred Berlin, an expert on sexual disorders, believed
that defendant was in recent years “beginning to lose touch with
reality,” that he was under extreme mental or emotional
disturbance at the time of his crimes, and that he acted under
extreme duress “pushing on him towards engaging in [criminal]
activities.”
c. Character evidence
Numerous witnesses, including relatives, church friends,
school friends, teachers, and coworkers, described defendant,
using terms such as quiet, nice, kind, good, fun, introverted, a
loner, shy, respectful, a gentleman, honorable, well-mannered,
considerate, and polite. Some witnesses testified about the ways
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Opinion of the Court by Guerrero, C. J.
in which defendant was supportive and helpful. Others testified
that defendant was a loner in school but was a talented
cartoonist for the school newspaper and yearbook and was not
violent or aggressive toward anyone.
d. Remorse
During his interview in Sacramento on July 24, defendant
made some statements suggesting he felt remorse about his
crimes. The defense played the audio recording of these portions
of the interview for the jury. Defendant was also cooperative
and helpful during the walk-through of the crime scenes. He
wrote an apology letter to Juli and cried when talking about her.
A federal public defender who met with defendant about
the Armstrong murder testified that defendant cried as he
discussed his crimes. Defendant pleaded guilty to the
Armstrong murder and wrote a statement expressing remorse.
At sentencing, defendant apologized to Armstrong’s family
members. He wrote to the woman who had turned him in to the
authorities after recognizing his photograph on television,
telling her he held nothing against her.
e. Positive prison adjustment
Officers from the jails in Mariposa County, Fresno County,
and Santa Clara County testified that defendant was a polite,
respectful, and cooperative prisoner who caused no trouble when
being transported to and from court.
Psychology professor Dr. Craig Haney testified as an
expert on prison adjustment. He believed defendant’s potential
for positive prison adjustment was excellent due to various
factors including his law-abiding behavior during much of his
life, his artistic ability, his willingness to accept responsibility
for his crimes, and his behavior while in jail.
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Opinion of the Court by Guerrero, C. J.
Having heard the foregoing evidence, the jury returned a
verdict of death.
II. DISCUSSION
A. Motion to Suppress Extrajudicial Statements
Before trial, defendant moved to suppress his extrajudicial
statements, including the statements he made to the FBI on
July 24 and 25, 1999. He argued the statements were obtained
in violation of his Miranda rights and were coerced and
therefore not voluntary.
At an evidentiary hearing, FBI Special Agent Rinek
testified that he and his colleagues located defendant at a resort
in Wilton on July 24, 1999. When they approached defendant,
he stood up and put his hands on his head. The agents
handcuffed defendant for safety reasons, told him he was not
under arrest, and said they wanted to interview him about a
recent, high-profile murder. Defendant agreed to be interviewed
at the FBI office in Sacramento. Defendant was then placed in
the front passenger seat of an FBI vehicle, with Rinek in the
driver’s seat. While Rinek was waiting for permission to depart,
he advised defendant of his Miranda rights. Rinek recorded
defendant’s answer, “I prefer not to talk now.”
During the 90-minute drive to Sacramento, Rinek and
defendant engaged in casual conversation. They also talked
about some of Rinek’s past cases and about defendant’s brother’s
abduction. They did not discuss any of the crimes under
investigation. Once the group arrived in Sacramento, agents
again advised defendant of his Miranda rights, and defendant
waived those rights and gave a detailed confession. Defendant’s
confession was video recorded, and the recording was admitted
as evidence and played at the suppression hearing.
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Opinion of the Court by Guerrero, C. J.
1. Miranda claim
a. Trial court ruling
The trial court denied defendant’s motion to suppress.
The court first found that because defendant was handcuffed
and seated in an FBI vehicle, he was in custody for Miranda
purposes when he spoke to Rinek in Wilton. Next, the court
considered whether Rinek’s conversation with defendant during
the ride to Sacramento violated defendant’s Miranda rights.
The court noted that Rinek gave a Miranda advisement in the
car and that defendant did not invoke his Miranda rights when
he responded, “I prefer not to talk now.” The court found that
Rinek read from an advice-of-rights form and wrote down
exactly what defendant said, including the word “now.”
“Consequently, because there is no evidence to the contrary, the
court finds that [defendant] did say, ‘I prefer not to talk now,’
simply meaning that [he] did not want to be interviewed [in
Wilton] but preferred to be interviewed at the FBI headquarters
in Sacramento.”
The court further found that Rinek — who testified he had
no specific information about the Armstrong murder and did not
know the facts of the Sund-Pelosso case — did not ask about the
murders during the car ride. Instead, they talked about
backpacking, hiking, movies, and other generic things. Rinek
also spoke with defendant about the impact of his brother’s
abduction on the family. Because it appeared defendant had not
dealt well with the issues surrounding his brother, Rinek offered
him counseling services. The court ruled that this “simple give-
and-take conversation” did not constitute an interrogation in
violation of defendant’s Miranda rights.
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Opinion of the Court by Guerrero, C. J.
The court next considered whether defendant’s Miranda
rights were violated during the interview in Sacramento. The
court summarized the circumstances, including the fact that
agents reread defendant his Miranda rights and had him sign a
waiver form, formally waiving those rights. After signing the
waiver form, defendant said he wished to be interviewed by
Rinek and proceeded to confess to his crimes.
The court found: “There is no evidence that he did not
understand his Miranda rights. There is no evidence that Agent
Rinek employed any coercive tactic to obtain incriminating
statements. [¶] . . . [N]othing in the court’s view occurred in the
90-minute car ride which would have tainted the defendant’s
waiver in Sacramento. The facts tend to show that [defendant]
fully cooperated with the FBI agents from the outset and
expressed his willingness to speak to them. In short, defendant
waived his Miranda rights knowingly, voluntarily and
intelligently at the FBI headquarters in Sacramento.”
b. Analysis
Defendant contends the FBI violated his Miranda rights,
and therefore the trial court should have suppressed the
statements he made to the FBI.
i. Defendant was in custody for purposes of
Miranda
Defendant first argues that, irrespective of the agents’
assurances that he was not under arrest and was free to leave,
he was effectively in custody when he was first handcuffed at
the resort in Wilton. Notably, the trial court agreed with
defendant (and the People conceded below) that at least as of the
moment he was placed in handcuffs inside an FBI vehicle in
Wilton, he was in custody for Miranda purposes.
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On appeal, the People contest the trial court’s in-custody
determination, arguing that defendant was handcuffed solely
for safety purposes and was told he could choose (1) whether he
would be interviewed at all and (2) the location of the interview.
We agree with the trial court that under the objective
circumstances — which included telling defendant the FBI
wanted to interview him about a high-profile murder, putting
defendant in handcuffs, and placing him inside an FBI vehicle
next to an FBI agent — a reasonable person would believe
defendant was “deprived of his freedom of action in [a]
significant way.” (Miranda, supra, 384 U.S. at p. 444; see
Stansbury v. California (1994) 511 U.S. 318, 323.) Thus,
defendant was in custody while sitting in the FBI vehicle, during
the ride to Sacramento, and while in Sacramento.
ii. Asserted invocation of rights
Defendant contends Rinek violated his Miranda rights by
talking with him during the car ride because he invoked his
Miranda rights and because the conversation tainted his
subsequent waiver of rights in Sacramento.
In reviewing Miranda claims, we “accept the trial court’s
resolution of disputed facts and inferences, and its evaluations
of credibility, if they are substantially supported. [Citations.]
However, we must independently determine from the
undisputed facts, and those properly found by the trial court,
whether the challenged statement was illegally obtained.”
(People v. Boyer (1989) 48 Cal.3d 247, 263 (Boyer); accord, People
v. Hoyt (2020) 8 Cal.5th 892, 931.) We review Miranda claims
under federal constitutional standards (People v. Sims (1993)
5 Cal.4th 405, 440) and assess any errors under the beyond a
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Opinion of the Court by Guerrero, C. J.
reasonable doubt standard of Chapman v. California (1967)
386 U.S. 18 (Chapman).
An invocation of Miranda rights must be unambiguous.
(See Berghuis v. Thompkins (2010) 560 U.S. 370, 382.) Here,
after first being read his Miranda rights, defendant responded,
“I prefer not to talk now” (italics added).3 This response, placed
in context, left the door open to speaking with police later, after
they arrived in Sacramento. (See People v. Riva (2003)
112 Cal.App.4th 981, 994 (Riva) [a defendant’s “statement he
did not want to talk anymore ‘right now’ clearly indicated he
might be willing to talk in the future”].) In other words, if
defendant invoked his Miranda rights at all, by its terms this
invocation barred interrogation for no longer than the duration
of the car ride to Sacramento.4
Yet we need not decide whether defendant’s statement, “I
prefer not to talk now,” sufficed to foreclose any interrogation
during that limited time frame. Even assuming it did,
3
Defendant argues that we should not rely on Rinek’s
“uncorroborated” testimony regarding his response to the
Miranda advisement. Defendant’s arguments essentially ask us
to reweigh the evidence, which we cannot do. (See People v.
Lindberg (2008) 45 Cal.4th 1, 27.) Further, the trial court’s
finding of what defendant said is supported by substantial
evidence, that is, by Rinek’s testimony and by a
contemporaneous notation Rinek made on the advice-of-rights
form.
4
The People argue that “I prefer not to talk now”
constituted defendant’s waiver of his Miranda rights because
those words are best interpreted as a reaffirmation of
defendant’s expressed willingness to be interviewed in
Sacramento. We disagree. Defendant’s apparent willingness to
talk at a later time does not constitute a clear waiver of his
Miranda rights at the time he entered the car with Rinek.
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Opinion of the Court by Guerrero, C. J.
defendant made no incriminating statements to Rinek during
the car ride. Indeed, Rinek did not ask defendant anything
about the Sund-Pelosso murders. In short, the prosecution did
not use anything defendant told Rinek during the car ride to
Sacramento to establish defendant’s guilt, and, notably,
defendant does not point to any statement he made in the car to
Rinek that prejudiced him.
Further, it does not appear that the conversation was part
of a strategy designed to wear defendant down emotionally, thus
making him more willing to confess. (See People v. Gurule
(2002) 28 Cal.4th 557, 602 (Gurule) [no evidence the officers’
“small talk overbore defendant’s free will”]; cf. Smith v. Illinois
(1984) 469 U.S. 91, 98 [noting the risk that authorities might
“wear down the accused and persuade him to incriminate
himself notwithstanding his earlier request for counsel’s
assistance”].)
People v. Honeycutt (1977) 20 Cal.3d 150 (Honeycutt), on
which defendant relies, is distinguishable. There, the police
detective had known the defendant for about 10 years. (Id. at
p. 158.) Without giving Miranda warnings, the detective talked
with the defendant about the homicide victim in the case the
detective was investigating. (Ibid.) The detective observed the
defendant “ ‘was softening up’ ” and continued the conversation
until the defendant indicated a willingness to discuss the
homicide. (Ibid.) Only at that point was the defendant advised
of his Miranda rights. (Id. at p. 159.) On this record, we
concluded (in dictum since we had already determined on
unrelated grounds that the judgment must be reversed) that the
officer employed a “conversation-warning-interrogation
sequence . . . intended to elicit a confession” and that the
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Opinion of the Court by Guerrero, C. J.
statements should have been suppressed. (Ibid.; see id. at
p. 161.)
No analogous “clever softening-up of a defendant” was
employed here. (Honeycutt, supra, 20 Cal.3d at p. 160.) First,
unlike Honeycutt, defendant was read his Miranda rights before
the conversation took place. Second, here, unlike Honeycutt, the
casual conversation did not include a discussion of any of the
crime victims. Finally, although discussing Steven’s abduction
may have made defendant emotional, there is no indication that
Rinek was deliberately pursuing a “conversation-warning-
interrogation sequence . . . intended to elicit a confession.” (Id.
at p. 159.) As Rinek testified, he did not expect to be conducting
defendant’s interview once the group arrived in Sacramento,
and their conversation “was a friendly exchange between two
people that were kind of thrust together.”
Moreover, the conversation about Steven’s abduction was
just one of many things discussed during the long drive, it was
unrelated to the four murders, and it was not likely to lead to an
incriminating response (see Rhode Island v. Innis (1980)
446 U.S. 291, 301). Because of the widespread publicity
surrounding the abduction, it was also a natural subject of
discussion, as can be seen from the fact that the same subject
came up when Special Agent Alston interviewed defendant as a
potential witness, long before he was considered a suspect.
There is no indication that Rinek’s inquiry about the abduction
was different from Alston’s inquiry, or that it was part of a
softening up strategy analogous to the facts of Honeycutt.
Hence, the dictum in Honeycutt does not support defendant’s
argument.
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Opinion of the Court by Guerrero, C. J.
Nor is this case like Brewer v. Williams (1977) 430 U.S.
387, where the defendant, who was a suspect in a child
abduction, was given Miranda warnings and his lawyer assured
him the police would not interrogate him while transporting him
to the police station where the lawyer was waiting for him. (Id.
at pp. 390–391.) While transporting the defendant, a detective
urged the defendant to disclose the location of the victim’s body
so that the victim could have a “ ‘Christian burial.’ ” (Id. at
p. 393.) The high court concluded the conversation was an
interrogation in violation of the defendant’s federal
constitutional right to counsel. (Id. at pp. 401, 406.) Here,
Rinek did not ask defendant about any of the victims, nor did he
ask defendant to lead him to evidence related to those crimes.
The comparison to Brewer is inapt.
For the foregoing reasons, even assuming an effective
invocation, we find no prejudicial error. (Chapman, supra,
386 U.S. at p. 24.)
iii. Waiver of Miranda rights preceding
questioning in Sacramento
As noted, defendant’s initial response after being read his
Miranda rights was consistent with a preference to be
interviewed in Sacramento. Therefore, after defendant arrived
in Sacramento, the officers were permitted to ask again whether
he would be willing to waive his rights and give a statement.
(See Riva, supra, 112 Cal.App.4th at p. 994.) In Sacramento,
and prior to any questioning about the crimes, defendant was
again advised of his Miranda rights, and he voluntarily waived
them and signed the waiver form. He then asked to speak alone
with Rinek. Because the confession followed a voluntary waiver
by defendant of his Miranda rights (see People v. Combs (2004)
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Opinion of the Court by Guerrero, C. J.
34 Cal.4th 821, 845), we conclude the trial court did not err in
denying defendant’s Miranda claim.5
2. Undue coercion
a. Trial court ruling
Concerning the question of voluntariness, the trial court
found no evidence that Rinek or any other agent “utilized any
form of coercion, promises of leniency, or deception in order to
obtain the statement from [defendant].” The court found that
the fact that defendant was “on the verge of crying” in the
interview room did not make his confession involuntary. The
court watched the confession video and reviewed the transcript
and found that although some interrogation techniques were
used, “nothing occurred to negate the finding that the
defendant’s statement was a product of his free will and choice.”
b. Analysis
Defendant argues his statement to the FBI was the
product of coercive interrogation techniques. We disagree.
“It long has been held that the due process clause of the
Fourteenth Amendment to the United States Constitution
makes inadmissible any involuntary statement obtained by a
law enforcement officer from a criminal suspect by coercion.”
(People v. Neal (2003) 31 Cal.4th 63, 79.) “[T]he terms ‘coerced’
and ‘involuntary’ confessions . . . refer to confessions obtained by
5
Defendant was also advised of his Miranda rights several
times the next day, when accompanying FBI agents to the
various crime scenes to locate evidence. Defendant does not
raise a distinct claim regarding those advisements and the
inculpatory extrajudicial statements that followed them.
Instead, he argues the July 25 waivers were tainted by the
events of July 24, 1999.
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Opinion of the Court by Guerrero, C. J.
physical or psychological coercion, by promises of leniency or
benefit, or when the ‘totality of circumstances’ indicates the
confession was not a product of the defendant’s ‘free and rational
choice.’ ” (People v. Cahill (1993) 5 Cal.4th 478, 482, fn. 1.)
“Voluntariness does not turn on any one fact, no matter how
apparently significant, but rather on the ‘totality of [the]
circumstances.’ ” (Neal, at p. 79.) When a defendant challenges
the voluntariness of a confession, the reviewing court applies an
independent standard of review (id. at p. 80), but the trial
court’s factual findings regarding the circumstances
surrounding the confession will be upheld if supported by
substantial evidence (People v. Massie (1998) 19 Cal.4th 550,
576).
Defendant argues that the FBI agents — particularly,
Rinek6 — used subtle psychological techniques to wear him
down and lure him into confessing, and that such techniques
were so overbearing that his confession cannot be considered
voluntary. Defendant notes that, even before they were in the
FBI vehicle, Rinek asked him about his brother’s abduction.
Rinek continued to ask about the abduction during the ride to
Sacramento and presented himself as being experienced in the
field of child abduction offenses. Ultimately, defendant’s eyes
teared up. Rinek then used defendant’s emotional reaction as
an excuse for discussing the importance of “closure” for crime
victims, and he offered counseling to defendant so he could have
that “closure.” Defendant argues that Rinek tried to present
himself as an ally and set up an argument that defendant’s
6
Special Agent John Boles participated intermittently in
defendant’s interrogation.
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Opinion of the Court by Guerrero, C. J.
victims also needed closure which only defendant’s confession
could provide.
When the FBI agents and defendant arrived in
Sacramento, and after the second Miranda advisement,
defendant told Rinek that he was the victim of sexual
molestation when he was 11 years old. Rinek reassured
defendant that he was fundamentally a good person whose
actions were explainable based on all the problems he had faced.
When defendant revealed that his internal mental world was
“like a tennis match,” constantly volleying between thoughts of
“world peace” and thoughts of “kill[ing] every person on the face
of the earth,” Rinek told defendant that he has “taken control”
and “[t]oday is the beginning of the rest of your life.” He assured
defendant that it was not his fault that he had been abused.
Rinek added: “[D]on’t you think it’s time that we dealt with it
now and get rid of these demons . . . ? Doesn’t mean you’re a bad
person, it just means you’re a troubled person. Now, if you’ve
done bad things and you feel that society will ask you to pay for
those bad things, maybe that’ll happen, but in the end, . . . we’ll
both know we did what we thought was right, and we took
control and that’s the bottom line.”
Defendant asserts Rinek also exploited his emotional
vulnerability during the Sacramento interview by repeatedly
urging him to disclose the details of his crimes, assuring him
that doing so was the right thing to do and would make him feel
better. For example, Rinek told defendant: “Do you realize that
I don’t think you’re a bad person and that even after all that
stuff you told me, I don’t feel any differently about you.” He
added that defendant was “gonna feel a lot of relief” “when we’re
done.” When defendant conceded that his chest hurt, Rinek
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Opinion of the Court by Guerrero, C. J.
assured him that he was going to feel “good” and “peaceful,
probably a feeling you haven’t had in a long time.”
Then, after defendant predicted he would be sentenced to
death, Rinek reassured him, saying: “I’ll be there for you as long
as it goes, as far as it goes, because I believe in you. I’d like you
to stop for a moment, Cary, and think about the fact that you’re
giving life, you’re giving life back, and you appear to me to be a
person that cares about that. You’re going to restore life that’s
been taken.” Defendant argues Rinek minimized the
wrongfulness of defendant’s actions, saying: “I don’t think
there’s a person out there that can listen to what you’ve been
through in your life and not have some feeling of sorrow and
understanding for you. I personally believed when I met you
and we were riding in the car that you were an explosive, pent-
up ball of emotion, or you were a psychopath. I’m quite relieved
to know you’re not a psychopath and that you’re a good person.”
Rinek said defendant was a “good person” who was made to do
bad things by “things happening in you that you can’t control,”
and that he was “doing the hardest, bravest thing in your life,
and I’m honored that you trusted me to do this with.”
Rinek also said, “We’ll make sure that you’re not living
with Bubba,” which defendant interprets as a promise of safe
housing in prison in exchange for his confession. Rinek also
said: “I’m gonna try and look after your family for ya. . . . You
remember what I said about your family in the car? They were
victims, too, and they’re about to be victimized again, aren’t
they?”
Finally, Rinek said: “So do you realize here that you’re
holding the welfare of a lot of people in your hands, and when I
told you you have a gift to give, that’s the gift. If you give the
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Opinion of the Court by Guerrero, C. J.
gift to me or me and [Special Agent Boles] and allow us to
distribute what you’ve given us to bring people the closure and
the peace that you’ve never had to experience, then you’re
doing — you’re being a hero.” Rinek explained that a coward is
someone who does the right thing out of fear or to gain a benefit,
whereas a hero is someone who does the right thing simply
because it is right.
Defendant asserts these statements, by placing extreme
psychological pressure on him, led to an involuntary confession.
We disagree. “The courts have prohibited only those
psychological ploys which, under all the circumstances, are so
coercive that they tend to produce a statement that is both
involuntary and unreliable.” (People v. Ray (1996) 13 Cal.4th
313, 340 (Ray).) Urging a witness to confess by winning the
witness’s trust and appealing to the witness’s sense of morality
are not practices likely to produce an involuntary and unreliable
confession. Nor are investigators prohibited from expressing
compassion for someone they are interrogating, and they are
permitted to remind the subject of an interrogation of the
emotional and psychological benefits of confessing. “ ‘In terms
of assessing inducements assertedly offered to a suspect,
“ ‘[w]hen the benefit pointed out by the police . . . is merely that
which flows naturally from a truthful and honest course of
conduct,’ the subsequent statement will not be considered
involuntarily made.” ’ ” (People v. Tully (2012) 54 Cal.4th 952,
993 (Tully).)
Defendant argues the FBI agents used promises of various
rewards to coerce his confession. Defendant focuses on Rinek’s
offer to obtain counseling for him and his assurance that
defendant would not be housed with anyone who was hostile
toward him. These assurances do not establish the sort of
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coercion that would render the confession involuntary. The offer
to get counseling was not a promise made in exchange for a
confession. Indeed, at the time Rinek made the offer during the
car ride to Sacramento, defendant had not suggested he was
involved in the crimes. Although the FBI agents believed
defendant might be involved in the Armstrong murder and
might be dangerous, Rinek did not know whether defendant was
to be interviewed as a witness or as a suspect.
Likewise, any offer to obtain safe housing for defendant
was not conditioned on defendant’s confession or offered as a
reward for his confession. Although an offer of benefits in
exchange for a confession can be implied in some circumstances,
nothing about the offers made here suggests that they induced
defendant to confess. The other interrogation techniques —
expressing interest in defendant’s personal struggles,
presenting themselves as an ally, appealing to defendant’s sense
of morality, and reminding defendant of the relief he would feel
after confessing — did not render the confession involuntary or
unreliable. Significantly, defendant said he was willing to be
interviewed, the interview was not unduly prolonged or
confrontational, he was assured he was not under arrest, he was
offered food, drink, and breaks, and he declined treatment for
his chest pain, implying the pain was emotional, not physical.
Defendant compares this case to People v. Hogan (1982)
31 Cal.3d 815, where this court condemned police questioning
that “repeatedly suggested to [the defendant] that he was
unquestionably guilty and that he suffered from mental illness.”
(Id. at p. 843.) In addition, the defendant in Hogan was “sobbing
and crying” during the police interview, “vomiting at times,” and
police used “manufactured evidence of his guilt” to wear down
his “will to resist.” (Id. at p. 842.) Nothing like that occurred
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here. Investigators in this case did not repeatedly accuse
defendant of being guilty; rather, defendant readily admitted
his guilt. The FBI agents merely encouraged defendant to tell
the details of his crimes and thus to unburden his conscience,
and defendant did so. In addition, Rinek never suggested to
defendant that he was mentally ill; instead, he expressed
understanding regarding defendant’s difficult past and offered
to obtain counseling for him.
In sum, the trial court did not err in finding defendant’s
confession to be voluntary and in denying defendant’s
suppression motion on that ground. Accordingly, we find no
violation of defendant’s state or federal constitutional rights.
3. Exclusion of expert testimony regarding
interrogation techniques
In a related argument, defendant contends the trial court
erred by refusing to hear the testimony of Dr. Richard A. Leo,
an expert in interrogation techniques. The defense sought to
offer Dr. Leo’s testimony in support of its motion to suppress
defendant’s confession. At the hearing on the admissibility of
this testimony, defendant argued the evidence rebutted Rinek’s
testimony that he did not employ any special interrogation
techniques when interviewing defendant. The trial court
determined the professor’s expert opinion was not relevant and
would not assist the court because the court had watched the
video and read the transcript, and “[i]f somebody is simply going
to tell me that this is an investigative technique [¶] . . . [¶] . . .
th[at] type of testimony would not assist the court.”
Defendant contends the trial court’s ruling deprived him
of a fair trial and a fair appeal, in violation of multiple
constitutional provisions. We conclude the court acted within
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its discretion in declining to hear defendant’s expert evidence.
(See People v. McDowell (2012) 54 Cal.4th 395, 425–426
(McDowell) [describing abuse of discretion standard of review].)
The determination whether a recorded confession is voluntary
or coerced is one that courts can, and often do, make without the
assistance of expert testimony.
In condemning the trial court’s adoption of what he
characterizes as a “per se rule of exclusion,” defendant relies on
People v. Linton (2013) 56 Cal.4th 1146, but the case is not
helpful for defendant’s position. In Linton, the defendant sought
to present Dr. Leo’s testimony regarding interrogation
techniques to a jury to assist it in evaluating the truthfulness of
the defendant’s admissions. (Id. at pp. 1179–1181.) This court
held that the trial court did not abuse its discretion by excluding
the evidence under Evidence Code section 352. (Linton, at
pp. 1180–1182). In reaching this conclusion, we explained that
“the trial court . . . did not exclude the testimony of Dr. Leo
based on a conclusion that this type of expert testimony was
inadmissible per se” and instead had simply regarded it as
unhelpful in light of the specific facts before it. (Id. at p. 1183.)
Here, defendant sought to admit the testimony of Dr. Leo
that he identified “a number of very well established
interrogation ploys” that were used during defendant’s
interrogation. However, like the trial court in Linton, the court
determined that Dr. Leo’s opinion would not be helpful
considering the evidence before it. Indeed, without the expert’s
testimony, the court found “that there were interrogation
techniques employed during the course of [defendant’s]
interview.” Thus, the trial court in the instant matter did not
exercise a per se rule of exclusion. It merely determined that
Dr. Leo’s testimony would not be useful. And the court had
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discretion to decide whether expert testimony would assist it in
resolving the voluntariness question, and we defer to its exercise
of that discretion. (See McDowell, supra, 54 Cal.4th at pp. 425–
426.)
Moreover, despite the court’s finding that interrogation
techniques were used in interviewing defendant, it nevertheless
concluded those techniques did not render defendant’s
confession involuntary.
Accordingly, the trial court did not abuse its discretion in
refusing to hear the testimony of Dr. Leo, and for the same
reason, the court did not violate defendant’s state or federal
constitutional rights.
B. Arrest Without Probable Cause
Defendant also moved to suppress his confessions
pursuant to section 1538.5, alleging that his arrest in Wilton
was unsupported by probable cause, and that his subsequent
confession was therefore the fruit of an unlawful arrest. The
trial court denied the motion without holding an evidentiary
hearing, relying on a stipulation by the parties to the facts
stated in the parties’ moving papers. These stipulated facts
generally correspond to the facts described in part I.C.1.b.i.,
ante, regarding the evidence gathered during the investigation
of the Armstrong murder. But the stipulated facts did not
include the fact that defendant closed his credit union account.
In addition, the stipulated facts noted that the tire treads on
defendant’s International Scout vehicle reflected two different
tire brands and were consistent with the mixed-brand tire
tracks found at Armstrong’s house. Finally, the stipulated facts
conceded that defendant was expressly told he was not under
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Opinion of the Court by Guerrero, C. J.
arrest, a status that changed only after defendant gave his
confession.
1. Trial court ruling
The trial court determined that defendant was not under
arrest when he was detained in Wilton, and that he voluntarily
agreed to travel to Sacramento with the FBI agents. The court
also said that even assuming defendant was under de facto
arrest, the stipulated facts constituted probable cause to arrest
him in connection with the Armstrong murder. The court
explained: “[T]he last contact that was had with Joie Armstrong
was on July 21st at approximately 6:30 [p.m.] when apparently
there was some contact with her in this area of Yosemite
National Park, Foresta. [¶] . . . Now, on the same evening,
July 21st, a park [employee] . . . told authorities that he had
seen a white over light blue International Scout in the area of
Armstrong’s home at approximately 7:30, which would be
approximately one hour after she was last heard from. [¶]
Another park employee . . . told authorities he had picked up a
hitchhiker on the same evening, July 21st, between
approximately ten and 10:30 on Highway 140 outside the park
and approximately three miles from the Foresta scene where
Ms. Armstrong was found. [¶] The ranger told the investigators
that the male hitchhiker was standing out by a white over light
blue International Scout which he said had broken down, and
that agent or ranger agreed to drive the unidentified hitchhiker
to Cedar Lodge, where he lived.
“Now, the next evening was July 22nd. . . . [T]he
defendant . . . then came to the Yosemite ranger station to be
interviewed. [¶] And during the interview, the defendant
denied that he was ever in the area of Foresta on July 21st, the
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Opinion of the Court by Guerrero, C. J.
day before. But apparently he said he had had mechanical
difficulties with his International Scout while traveling on
Highway 140 several times that day, that he had owned that
particular vehicle for approximately ten years, that it was
somewhat unique. He was the only person who drove it. He
admitted that his Scout had broken down coming out of
Yosemite Valley on July 21st, and he admitted that he was given
a ride by the ranger to his residence at the Cedar Lodge. And
prior to leaving that interview on the 22nd, he told the
authorities, ‘If you have any further questions for me, you can
contact me at Cedar Lodge on the 23rd,’ which was the next day.
“Now, during the time that [defendant] was being
interviewed on the 22nd at the ranger Yosemite station, agents
took photographs of tires of his vehicle. And the next day on the
23rd they were compared to the tire sketches that were made of
the four tire tracks located at the Foresta crime scene. The
agent found that the defendant’s tires, including the mixed set
of [tire] brands on the vehicle, were consistent with the tracks
found at Foresta. Based upon that, the agents from the FBI —
and this is a reasonable conclusion — wanted to relocate and
contact the defendant at Cedar Lodge to further interview him.
And they were advised that he was not there, that he had failed
to appear for work. [¶] The manager indicated that [defendant]
had never failed to appear for work for at least a year and a half.
Another employee they spoke to said he never failed to appear
for work for at least three years, and they were also told that the
night before, which is the night . . . of the interview at the ranger
station wherein he spoke with the agents, that night he had
been selling some of his personal property, to wit: a television
set and a VCR.
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“Now, based upon those facts, the issue is are those facts
sufficient for a temporary detention, or are they sufficient for a
detention which might be prolonged over and above a temporary
detention by further investigation? And are they sufficient[,] in
fact probable cause[,] to issue an arrest warrant or to make an
on-view arrest based on probable cause? [¶] . . . [¶] In the
court’s view this custody is akin at the very minimum to a
detention for further investigation. And this happens all the
time in the field where people are detained for further
investigation as to a robbery, a burglary, a murder, a rape, and
they are brought from one location to another location for
purposes of an in-field identification for purposes of an
interview. [¶] . . . [¶] Now, it is true that a detention can
become a de facto arrest. I will say in this particular case that
if I were a magistrate or a judge and the FBI or police officials
had come to me with an affidavit in support of an arrest
warrant, and the affidavit in question recited the facts that I
recited for the record, in my view those facts would be sufficient
probable cause to issue a warrant for his arrest. [¶] . . . [¶] The
court finds that even if it would be held that this was more than
a temporary detention for investigation, that in the court’s view
there was sufficient probable cause to arrest the defendant. For
that reason the motion to suppress his statement as a product
of an illegal detention or arrest is ordered denied.”
2. Analysis
a. De facto arrest
When defendant was first handcuffed in Wilton, and again
while he was being interviewed, FBI agents told him he was not
under arrest and was free to leave. Defendant sat in the front
seat of the FBI vehicle, not in the back seat where arrestees
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would typically be placed. But defendant asserts that once he
was handcuffed, he was under de facto arrest because he was
not at liberty to go about his business. (See Kaupp v. Texas
(2003) 538 U.S. 626, 629 [“A seizure of the person . . . occurs
when, ‘taking into account all of the circumstances surrounding
the encounter, the police conduct would “have communicated to
a reasonable person that he was not at liberty to ignore the
police presence and go about his business” ’ ”]; see also Boyer,
supra, 48 Cal.3d at pp. 267–268.) Like the trial court, we need
not decide whether defendant was under de facto arrest, because
the stipulated facts provided probable cause for the FBI agents
to arrest defendant as soon as they contacted him.
b. Probable cause
“When the seizure of a person amounts to an arrest, it
must be supported by an arrest warrant or by probable cause.
[Citation.] Probable cause exists when the facts known to the
arresting officer would persuade someone of ‘reasonable caution’
that the person to be arrested has committed a crime. [Citation.]
‘[P]robable cause is a fluid concept — turning on the assessment
of probabilities in particular factual contexts. . . .’ [Citation.] It
is incapable of precise definition. [Citation.] ‘ “The substance of
all the definitions of probable cause is a reasonable ground for
belief of guilt,” ’ and that belief must be ‘particularized with
respect to the person to be . . . seized.’ ” (People v. Celis (2004)
33 Cal.4th 667, 673 (Celis).) The trial court’s application of the
law to the facts of the case is subject to independent review.
(People v. Woods (1999) 21 Cal.4th 668, 673–674; People v. Price
(1991) 1 Cal.4th 324, 409.)
We conclude the probable cause standard is met here in
light of the following circumstances: (1) Armstrong was
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murdered in a very remote location, in a small community of
rustic cabins accessible only by a windy one-lane service road;
(2) a witness saw a vehicle matching defendant’s unique blue
and white International Scout parked in the same area about an
hour after the murder occurred; (3) defendant admitted to
hitchhiking a few miles from where the murder occurred, about
four hours after the murder; (4) the tire treads on defendant’s
International Scout came from two different tire brands and
were consistent with the mixed-brand tire tracks found at the
murder scene; (5) on the same evening defendant was
interviewed by park rangers about Armstrong’s murder, he sold
valuable personal items at low prices; and (6) the day after this
same interview, defendant did not show up for work despite
reports that he had never before failed to do so.
Those facts are enough to provide a reasonable ground for
believing that defendant was involved in the murder of
Armstrong and guilty of a crime. They suggest he was parked
at Armstrong’s remote house near the time she was murdered
and that he fled with no intent to return after being questioned
by park rangers. (See People v. Mims (1992) 9 Cal.App.4th 1244,
1249 [“An inference that an individual is engaging or has just
engaged in criminal conduct may be drawn where that
individual, knowing that police are approaching, flees or
engages in other activity indicative of an effort to avoid
apprehension or police contact”]; In re Rafael V. (1982)
132 Cal.App.3d 977, 983 [“flight can constitute evidence of
consciousness of guilt which can be coupled with other relevant
facts in determining probable cause”].) Here, the pieces of
circumstantial evidence implicating defendant are mutually
reinforcing, and taken together, they are sufficient to give the
FBI agents probable cause to arrest defendant as soon as they
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contacted him in Wilton.7 And because the agents had probable
cause to arrest defendant, doing so by way of a de facto arrest
did not violate his state or federal constitutional rights.
All the cases defendant cites involved situations in which
the police possessed less inculpatory evidence than the police
possessed in this case. (See Hayes v. Florida (1985) 470 U.S.
811, 812 [the defendant and 30 to 40 other men “generally fit
the description of the assailant,” and the pattern on the soles of
his shoes matched shoe prints found near the victim’s porch];
Boyer, supra, 48 Cal.3d at p. 263, fn. 6 [“police suspicions rested
principally on the ‘long shot’ suggestion of [another suspect] that
[the] defendant might be the killer because he had done
gardening work for the [victims], owed them money, often
carried a sheath knife, was violent when drunk, and had
suddenly begun calling [the other suspect] after being out of
touch for several months”]; People v. Gonzalez (1998)
64 Cal.App.4th 432, 438–440 [two men, one Black and one
Hispanic, had robbed a liquor store; the defendant was
7
Defendant suggests that the three FBI agents who first
contacted him in Wilton may not have been informed of the
evidence implicating him and that those agents had no basis for
making an arrest. (See Celis, supra, 33 Cal.4th at p. 673
[“Probable cause exists when the facts known to the arresting
officer would persuade” (italics added)].) The stipulated facts
suggest that at least Hittmeier, who was the supervisor, and
probably Boles, were informed about the Armstrong murder and
investigation. Indeed, Boles, who handcuffed defendant, had
requested assistance from the county sheriff’s department,
describing defendant as “a possible [section] 187 [murder]
suspect.” Rinek, who drove to Wilton in a separate vehicle with
defendant and testified he did not know whether defendant was
to be interviewed as a witness or a suspect, may not have had
the same information as the other agents.
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Hispanic, and nine days after the robbery, he was riding as a
passenger in a car linked to the robbery].)
C. Jury Selection Issues
Defendant argues the court improperly granted
prosecution challenges for cause and improperly denied defense
challenges for cause. We disagree.
1. Legal principles
A criminal defendant has the right to an impartial jury.
(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.) But
in a capital case, a prospective juror’s abstract views about the
death penalty, whether in support or opposition, do not
necessarily indicate that the prospective juror is partial or
biased, for a person might disagree with a particular law but
still be able to put those views aside and apply the law in a
specific case in an impartial manner. “A [person] who opposes
the death penalty, no less than one who favors it, can make the
discretionary judgment entrusted to him by the State and can
thus obey the oath he takes as a juror.” (Witherspoon v. Illinois
(1968) 391 U.S. 510, 519.) Accordingly, “[a] trial court should
only dismiss a prospective juror for cause if the prospective
juror’s views on the death penalty would ‘ “prevent or
substantially impair” ’ that person from performing the duties
of a juror.” (People v. Silveria and Travis (2020) 10 Cal.5th 195,
246 (Silveria and Travis).) The prospective juror’s bias “need
not be demonstrated with unmistakable clarity”; rather, “the
trial court need only be left with a definite impression that the
prospective juror is unable or unwilling to faithfully and
impartially follow the law.” (People v. Thompson (2016)
1 Cal.5th 1043, 1066.)
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Opinion of the Court by Guerrero, C. J.
“In reviewing the trial court’s determination, we apply a
‘rule of deference’ [citation] based on the trial court’s ability to
assess the demeanor and credibility of the prospective witness.”
(People v. Capistrano (2014) 59 Cal.4th 830, 859 (Capistrano).)
“During voir dire, jurors commonly supply conflicting or
equivocal responses to questions directed at their potential bias
or incapacity to serve. When such conflicting or equivocal
answers are given, the trial court, through its observation of the
juror’s demeanor as well as through its evaluation of the juror’s
verbal responses, is best suited to reach a conclusion regarding
the juror’s actual state of mind. [Citation.] ‘ “ ‘There is no
requirement that a prospective juror’s bias against the death
penalty be proven with unmistakable clarity. [Citations.]
Rather, it is sufficient that the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully
and impartially apply the law in the case before the juror.’ ” ’
[Citation.] . . . ‘Thus, when there is ambiguity in the prospective
juror’s statements, “the trial court, aided as it undoubtedly [is]
by its assessment of [the venireman’s] demeanor, [is] entitled to
resolve it in favor of the State.” ’ ” (People v. Jones (2012)
54 Cal.4th 1, 41; see People v. Mataele (2022) 13 Cal.5th 372,
395 (Mataele).)8 We affirm if substantial evidence supports the
trial judge’s determination. (People v. Baker (2021) 10 Cal.5th
1044, 1085–1086; People v. Amezcua and Flores (2019) 6 Cal.5th
886, 906; People v. Spencer (2018) 5 Cal.5th 642, 660–661.)
8
We decline defendant’s request that we reconsider our
holdings regarding appellate court deference to the trial court’s
determination.
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2. Prosecution challenges for cause
a. Prospective Juror Linda A.
Prospective juror Linda A. indicated on her juror
questionnaire that she was “[a]lways against” the death penalty
and her religious beliefs might “[s]omewhat” impact her decision
as a juror in a death case. The court asked her: “[I]n all cases
where you might be asked to make that decision, death or life in
prison without the possibility of parole, because of your religious
beliefs [would you] automatically vote against the death penalty
and vote to impose life in prison without the possibility of
parole?” Linda A. answered: “I would vote that way.” The court
asked: “Would it be automatic?” Linda A. answered: “Yes.” The
court then asked: “[C]an you ever imagine yourself in a case of
this type where somebody is charged with three counts of
murder, with numerous special circumstances alleged to be true,
can you ever imagine yourself voting for death?” Linda A.
answered: “I don’t believe so.” The court continued: “Would
that again be automatic that you would vote for life in prison
without the possibility of parole?” Linda A. answered: “Yes.”
The court asked whether that was because of her religious belief,
and she answered: “Yes.”
Defense counsel asked Linda A. whether her personal
beliefs were so strong that they would prevent her from
following the law. Linda A. said: “The law, no.” Defense counsel
then said: “All we need is to know whether or not you could go
into this case open to both penalties without committing yes,
you’d always do this, you’d always do that.” Linda A. answered:
“I can’t say absolutely that I would not or could not be
swayed. . . . [¶] . . . [¶] I wouldn’t want to. I’ll put it that way.”
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During the prosecutor’s questioning, Linda A. reiterated
that she was against the death penalty and did “not have the
moral right to take another person’s life.” She stated that
“[t]aking a life is immoral and it’s barbaric.” When asked
whether she could fairly consider the death penalty rather than
life in prison without the possibility of parole, she said: “I can’t
honestly say I wouldn’t go with the majority [¶] . . . [¶] . . .
because I wouldn’t want to be the only one on the jury to say ‘no’
if it turned out that they were all staring at me in the end.” The
prosecutor reminded her that the parties are entitled to her
personal view without concern for the views of other jurors. She
then said: “[S]ay, for instance, the evidence showed that he was
totally guilty and that he did these crimes, having not been in
that situation, having not seen that type of evidence, if it
happened right this moment, I would probably say I don’t
believe in the death penalty. Having seen all the evidence later,
I don’t know.”
The prosecutor challenged Linda A. for cause, and the
court excused her, stating that “her state of mind” was that she
would not consider the death penalty “based on biblical and
moral reasons” and that the court was “convinced” based on its
own questioning of Linda A. that “her views on capital
punishment would prevent or substantially impair the
performance of her duties as a juror in accordance with the
instructions and her oath.”
We conclude the court did not err in dismissing Linda A.
for cause. Linda A. stated twice that she would automatically
vote against the death penalty, in favor of life in prison, due to
her religious beliefs. However, she also told defense counsel that
she could “follow[] the law” despite her personal beliefs.
Further, she told defense counsel that she “wouldn’t want to” be
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Opinion of the Court by Guerrero, C. J.
swayed by other jurors to vote for the death penalty. Later,
Linda A. reiterated she was against the death penalty because
“taking a life is immoral and it’s barbaric.” Considering the
ambiguous responses Linda A. provided, the trial court was in
the best situation to assess her credibility. (See Mataele, supra,
13 Cal.5th at p. 395; People v. Jones, supra, 54 Cal.4th at p. 41.)
In such situations, when the prospective juror’s comments are
equivocal or conflicting, the trial court’s determination of that
person’s state of mind is binding. (People v. Clark (2011)
52 Cal.4th 856, 895 (Clark).) Against this background, the
record supports the court’s decision to excuse Linda A. for cause.
b. Prospective Juror Ellen R.
Prospective juror Ellen R. indicated on her juror
questionnaire that she was opposed to the death penalty. In
response to defense counsel’s questioning, she stated she was
90 percent against the death penalty but would be open to it in
an “extreme case” such as “Hitler” or a person who “committed
continual murders.” She said she would “keep[] [her] mind open
to both death and life until after [she had] heard all the
evidence.”
The court asked Ellen R. if she would automatically vote
for life in prison, and she responded: “That’s a hard one. I don’t
know. I would — I would say I would tend to go for life versus
death [¶] . . . [¶] as a general rule.” Ellen R. said she was
inclined not to vote for death for someone like defendant on the
ground that he was insane. The court asked if she could see
herself voting for death in a case like this, and she answered,
“No.” She added: “Given the information or the circumstances
of the deaths, I would, in my personal opinion, . . . feel that if
this person did these things, he would not be legally of sound
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mind. I don’t think anyone could commit those crimes and be
sane.” The court then asked: “[B]ased upon your state of mind,
your background, your philosophy, your feelings about the
penalty, in a case of this type . . . , [suppose] you found the
defendant is guilty, you found him to be legally sane at the time,
you’ve heard the evidence presented to you by the defense, by
the People as it bears upon this issue of penalty or punishment,
could you, as an individual, vote death?” Ellen R. answered:
“Yes.”
Next, when questioned by the prosecution, Ellen R. agreed
that based on the crimes alleged in this case, she would not want
the case to reach the penalty phase, and she would “have a
tendency to want to find [defendant] insane in the sanity phase
of trial.” In addition, when asked whether, aside from extreme
cases like that of Hitler, she could envision the type of crime that
would warrant the death penalty, she said: “No. . . . [I]f
someone kills someone, I don’t think justice is to kill the person
in return.”
The prosecution challenged Ellen R. for cause, and the
court excused her, stating “she’s been fairly unequivocal in the
sense that she strongly opposes the death penalty. . . . [¶] I
think she’s committed to a position almost to the point where
she doesn’t almost want to even face the prospect and where she
might in fact consider penalty or punishment in the sanity phase
just to preclude her from having to make that decision. . . . I
think she is substantially impaired as to this penalty issue.
So, . . . the challenge for cause will be granted.”
We conclude the court did not err in excusing Ellen R. for
cause. Ellen R. was consistent in saying that she was 90 percent
opposed to the death penalty and would vote for it only in an
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“extreme case” such as “Hitler” or a person who “committed
continual murders.” She also said she would be inclined to find
defendant insane at the sanity phase in part to avoid voting in
favor of death. Although Ellen R. also said that if she “found the
defendant is guilty, [and if she] found him to be legally sane at
the time,” she “could” “vote death,” her answer must be placed
in the context of her statements that (1) she would find
defendant to be insane in order to avoid having to vote for death,
and (2) she would only vote for death in an “extreme case” such
as “Hitler” or a person who “committed continual murders.” At
best, Ellen R.’s responses were equivocal and conflicting, much
like Linda A.’s responses. In such circumstances, we defer to
the trial court’s determination of that potential juror’s state of
mind. (See Clark, supra, 52 Cal.4th at p. 895.) Thus, we
conclude the record supports the court’s decision to excuse
Ellen R. for cause.
c. Prospective Juror Rebecca M.
On her juror questionnaire, prospective juror Rebecca M.
said: “I believe I don’t have the right to take someone’s life.”
She also checked the box saying she was “[a]lways against” the
death penalty and “will advocate for life without possibility of
parole in the case of multiple murders.” During questioning by
the court, Rebecca M. said that “for personal reasons and for
religious reasons” she didn’t “believe in the death penalty.”
When asked if she “would . . . automatically vote against the
death penalty,” she said: “I would vote for [the] death penalty
as a last resort. I think I would automatically vote for life
without parole.” The court then reviewed the basic structure of
a capital trial and asked her whether she “would . . .
automatically vote against the death penalty and really not
listen to what the People might offer.” She responded: “I think
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I may be inclined to vote for life without parole.” When asked
the same question yet again, she said: “I would go by the
evidence and what the court and what the law says.” The court
then told her the penalty would be her decision, not the court’s,
to make, and she said: “I think that based on the evidence and
everything, I would vote for . . . life without parole.” She added:
“I do not think I have the right to take anybody’s life.”
When questioned by defense counsel, Rebecca M.
confirmed she preferred life imprisonment and “would consider
[the] death penalty as a last resort.” When counsel asked if that
meant she could consider the death penalty, she said: “I could
consider it, yes.” When questioned by the prosecution, she said:
“If I vote [for] death, I will have to — it will take a toll on me
emotionally — [a] long-term effect on me.”
The prosecution challenged Rebecca M. for cause, and the
court excused her, stating, “I don’t even think this is close.” The
court believed it was “clear . . . that she has an inability
emotionally, and perhaps religiously, to ever consider
realistically imposing the death penalty. And consequently, I
think she is impaired. The challenge for cause is granted.”
We conclude the court did not err. Rebecca M. could
“consider” imposing the death penalty and would be willing to
vote for it as a “last resort,” but she was (1) “[a]lways against”
it, (2) would suffer a long-term, emotional toll from casting a
vote for death, and (3) thought she “would automatically vote for
life without parole.” It is apparent from these responses that
Rebecca M. would not be able to put aside her personal views
and decide the penalty question based solely on the evidence
presented in court. The record supports the court’s decision to
excuse Rebecca M. for cause.
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d. Prospective Juror Paul S.
Prospective juror Paul S. indicated on his juror
questionnaire that he was “[a]lways against” the death penalty
and that the death penalty was imposed “[t]oo often,” but he also
wrote: “I’m completely capable of following the laws of the State
of California and render[ing] any verdict appropriate.” In
response to the court’s questioning, he said he was not in favor
of the death penalty “[a]s an abstract notion.” He added: “I
haven’t got to a point in my life yet where I could be party to
killing somebody for anything. I mean, punishment is one thing;
but in my mind, I look at it as vindictive, not so much as
punishment. You know, I understand there [are] bad people in
this world, and I want them kept away from me, but I don’t feel
it’s necessary to kill them.” Paul S. said he would not make a
decision “automatically,” but when asked whether he “could . . .
ever envision [himself] . . . saying, ‘I vote death,’ ” he answered:
“I don’t think I can envision myself saying that.” He reiterated
that he “could follow the law,” and when asked whether he could
“vote death” after hearing the evidence and concluding that “this
case merits the most serious penalty that can be imposed,” he
answered: “Yes.”
In response to defense counsel’s questions, Paul S. said: “I
think I can . . . listen to evidence and testimony and make a
decision that is impartial.” In response to questioning by the
prosecution, Paul S. said: “The judge earlier said that if all
these scenarios take place, and [if] you get to the end and you
determine that the most stiffest penalty is determined, and the
death penalty is the most — that’s the legal determination.”
The prosecution asked, “[W]ouldn’t you always want to go L-
WOP [life without parole] if it’s merely your choice?” Paul S.
answered: “I guess to answer your question, I am not sure. I
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know that my beliefs are anti death penalty.” Asked whether
his beliefs would interfere with his “ability to realistically
consider [the] death penalty in a case like this,” Paul. S.
responded: “I would hope that they wouldn’t, but I cannot
answer that question, honestly.”
The court described the case and asked: “In a case of this
type, would you always vote against the death penalty?” Paul S.
answered: “You know, my gut reaction is I would, yes.” After
the court again explained what it needed to know, Paul S. said:
“As I sit here today, knowing what I know about this case, that
the case proceeds to the penalty phase, I can’t envision myself
voting for the death penalty.”
The prosecution challenged Paul S. for cause, and the
court excused him, stating, “Now, there is a classic example as
to the fact you don’t [make] any headway. We could be with him
all afternoon, and we wouldn’t make any headway. The last
answer he gave is good enough for me under the law that is a
disqualifying answer, and under the law he was substantially
impaired.” After further discussion, the court stated that it
believed, based on Paul S.’s responses as a whole, that he was
“impaired” in that he “would not in any circumstance impose the
death penalty.”
The court did not err in dismissing Paul S. for cause.
Paul S. made a few statements that, taken in isolation,
suggested he could put his views in opposition to the death
penalty aside and evaluate defendant’s case based on the
evidence and the law. However, he also made clear that he
strongly favored a penalty of life in prison over death, and
although he “hope[d]” his beliefs would not interfere in his
ability to consider the death penalty, he said he could “honestly”
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not “answer that question.” He twice said he could not see
himself voting for death. Even defense counsel commented:
“[U]pon further questioning, I could probably get him to say he
didn’t really mean what he said to the court in the last answer.
We could go on and on.” In this sense, Paul S.’s responses
coincide with the high court’s observation that “many veniremen
simply cannot be asked enough questions to reach the point
where their bias has been made ‘unmistakably clear’; these
veniremen may not know how they will react when faced with
imposing the death sentence, or may be unable to articulate, or
may wish to hide their true feelings.” (Wainwright v. Witt (1985)
469 U.S. 412, 424–425.) “Even when the record contains
equivocal or ambiguous responses, ‘there will be situations
where the trial judge is left with the definite impression that a
prospective juror would be unable to faithfully and impartially
apply the law.’ ” (People v. Erskine (2019) 7 Cal.5th 279, 299,
quoting Witt, at pp. 425–426.) Paul S. was just such a
prospective juror, and the record supports the court’s decision to
excuse him for cause.
3. Defense challenges for cause
Before we address defendant’s arguments that the trial
court erred in denying his challenges for cause to jurors and
prospective jurors, we note a recurring feature in these for-cause
challenges. Specifically, defense counsel asked prospective
jurors to assume they had found defendant guilty of the charges
at issue in this case, and — without knowledge of mitigating
facts or instruction on the law — to state whether they would
lean in favor of the death penalty. When asked to opine in the
abstract about the appropriateness of the death penalty for
someone who committed three murders — with two of the
victims being children, including one child who was repeatedly
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sexually assaulted and kidnapped — many prospective jurors
responded they would lean in favor of death. The defense
challenges for cause were all based, at least in part, on the
prospective juror’s response to this standard line of questioning,
with defense counsel arguing that defendant could not have a
fair penalty phase trial if the members of the jury leaned in favor
of death before the trial even began.
If we were to accept defendant’s argument that jurors are
disqualified in such circumstances, it could have incongruous
consequences: the more shocking the facts the jurors are asked
to assume in a capital case, the more likely they would be to lean
toward the death penalty — particularly when they are
presented with no mitigating facts or instructions to guide them.
As discussed below, rather than placing undue weight on
the prospective jurors’ initial responses to defense counsel’s
question alone, the trial court properly considered the entire
context of the voir dire process and each prospective juror’s
response to a variety of questions before deciding whether to
grant a request to strike someone for cause.
a. Juror No. 2
On his juror questionnaire, Juror No. 2 stated that he
moderately favored the death penalty and could vote for it in a
case like this one, but he would first have to consider the facts.
During questioning by the court, Juror No. 2 confirmed that he
“believe[d] in certain cases there is a valid reason for the death
penalty.” The court then summarized the specific charges
against defendant and asked whether Juror No. 2 would
“automatically” vote for death. Juror No. 2 responded that he
would want to hear the evidence before deciding. He would
consider evidence offered by the defense in mitigation and could
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“possibly” “vote either way.” He explained: “I would be [leaning]
towards a death penalty based upon what I’ve heard. But,
again, there could be evidence or something presented to me
that could possibly change my mind.”
Juror No. 2 had checked the box for “Yes” in response to
the juror questionnaire question whether, in a case with general
facts like those present here, he would “always vote for or
against the death penalty without regard to the strength or
weakness of the aggravating and mitigating circumstances.”
When the court inquired about that response, Juror No. 2 said
that the response was incorrect. He did not agree with that
statement; he said, “I would not always vote for the death
penalty on this.”
In response to defense counsel’s questioning, Juror No. 2
said he did not have a religious belief about the death penalty
and would make his penalty decision based on “whether I think
in my own heart whether he deserved it or whether he did not
deserve it.” Based solely on what he had heard so far about the
case, he was “leaning a lot” toward the death penalty, but he
noted he had not yet heard any evidence. He could not easily
erase from his mind his sense that the death penalty was
appropriate, but he added: “I think the main thing in my mind
is to take what’s given to us in the court and kind of try and
decide from what evidence is presented . . . .” He conceded that
if everything alleged about defendant turned out to be true, the
defense would “kind of have to convince [him] not to impose the
death penalty.” He added, however, that it was possible for him
to be convinced. If the charges against defendant were all true,
Juror No. 2 was leaning “pretty far” toward the death penalty,
but he “wouldn’t be able to say right now that [defendant] should
have the death penalty for sure.”
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In response to questioning by the prosecution, Juror No. 2
said he would listen to the defense’s mitigating evidence and
would not “hesitate” to impose the penalty of life in prison if the
evidence persuaded him that the death penalty was not
appropriate. When asked by the court whether he would
respond so emotionally to victim impact evidence that he would
lose his objectivity, he said he “would take that into
consideration” but did not think his emotions would prevent him
from evaluating all the evidence.
The court rejected the defense’s challenge for cause,
stating that although Juror No. 2 strongly favored the death
penalty in general and in this case, “he indicated that he could,
in fact, be receptive to the evidence, listen to both sides, listen
to the evidence as it pertains to both penalties, evaluate it, give
it due consideration. He indicated in the case of this type he
could vote for life in prison without the possibility of parole if he
felt it was appropriate” and would not automatically vote for the
death penalty.
We conclude the court did not err. Given the charges in
this case, it not surprising, nor by itself disqualifying, that a
prospective juror who supported the use of the death penalty in
the abstract, who had been asked to assume that the charges in
the present case were all true, and who had not heard any
mitigating evidence or instructions regarding the law, would at
least preliminarily lean in favor of death. Importantly, the trial
court did not believe Juror No. 2’s preliminary leaning, which
many people might have had considering the nature of the
crimes at issue, disqualified Juror No. 2 in light of his
representation that he had the ability to remain open minded
and to decide the case based on the evidence and the law. When
pressed by the defense, Juror No. 2 confirmed that he could be
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convinced to vote in favor of life in prison if the mitigating
evidence presented by the defense persuaded him. Thus, the
record supports the court’s ruling.
Defendant contends that Juror No. 2 should have been
excused based on People v. Boyette (2002) 29 Cal.4th 381, 418
(Boyette), where we held the court erred in denying a for-cause
challenge. The prospective juror in that case “admitted he
would not follow [the court’s] instruction to assume that a
sentence of life in prison with no possibility of parole meant the
prisoner would never be released.” (Ibid.) Nothing like that
occurred here. Therefore, defendant’s comparison of this case to
Boyette is unpersuasive.
b. Juror No. 5
In response to questioning by the court, Juror No. 5 said
that, depending on the evidence, he was capable of voting either
for death or for life in prison without the possibility of parole,
and that he could keep an open mind until he had heard all the
evidence. The court asked about his seemingly contradictory
answers on his juror questionnaire. There, he indicated he was
“[a]lways against” the death penalty in a case involving special
circumstances like those alleged here, but he also indicated that
the death penalty “should be allowed” and was imposed “[t]oo
seldom.” Juror No. 5 explained that he had misunderstood the
question and should instead have checked the box indicating he
“[s]trongly favor[ed]” the death penalty. However, he said he
would not automatically vote for the death penalty and would
consider all evidence relevant to the penalty decision.
During questioning by defense counsel, Juror No. 5
conceded that in a case involving multiple murders, he would
have to be shown evidence that convinced him to vote for life in
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prison over death; however, he also said he would not make up
his mind until after hearing all the evidence.
Juror No. 5’s responses in court also suggested that some
of his juror questionnaire responses were inaccurate because he
was confused about the questions; for example, he understood
the term “special circumstances” in the colloquial sense,
meaning he thought the insanity of a defendant was a “special
circumstance.” When he stated in the questionnaire that his
“mind would be made up” after the guilt and sanity phases, it
appears he was unaware that the defense would present
additional mitigating evidence after the guilt and sanity trials.
In response to questioning by the prosecution, Juror No. 5
reiterated that he would consider all the evidence before making
up his mind as to the appropriate penalty, and that he would
not automatically vote for either penalty.
The court sought to clarify Juror No. 5’s answer to defense
counsel’s questioning. The court asked Juror No. 5 to imagine a
situation in which, after a trial, he had found defendant guilty
of all the charges and allegations, and, after another trial, he
had found defendant to be sane. The court then asked Juror
No. 5 whether, in that situation, he would say, “I’m voting for
death,” or whether he would consider the evidence offered at the
penalty phase trial before deciding the question of penalty.
Juror No. 5 responded that he would consider the evidence and
would consider voting for either penalty.
The defense challenged Juror No. 5 for cause, and the
court rejected the challenge. The court noted that Juror No. 5,
who indicated that he was born overseas on his juror
questionnaire, had worked in highly technical jobs in the United
States for 18 years, and his English language skills were
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adequate to allow him to serve as a juror. The court then said:
“I think there was a question as to whether or not he fully
understood some of these questions when he answered the
questionnaire, which I find not to be unusual. It’s common with
a lot of our prospective jurors. I think that he does strongly favor
the death penalty. That, again, does not mean there is a valid
basis for a challenge for legal cause. It simply is telling you his
state of mind that he does strongly favor the death penalty in a
case of this type. But he reiterated more than once that he
would consider the evidence as it might pertain to life in prison
without the possibility of parole, will listen to it, consider it,
evaluate it; if he felt it was appropriate, he could vote for it, and
he would not make a decision in this case until he heard all the
evidence. [¶] For that reason, the challenge for cause is denied.”
We conclude the court did not err. Juror No. 5 strongly
favored the death penalty in a case like the present one, but as
we have explained, it is neither surprising, nor is it, by itself,
disqualifying, for a prospective juror to preliminarily lean in
favor of the death penalty when asked, in the abstract, about the
appropriateness of the death penalty for a person who
committed three murders, two of the victims being children,
including one child he repeatedly sexually assaulted and
kidnapped. Importantly, Juror No. 5 made clear he would not
decide the question of penalty until he had heard all the
evidence.
Juror No. 5 said he would have to be shown evidence that
convinced him to vote for life in prison over death, but he said
this in the context of a discussion of a case where there were
three murders, and without having heard any mitigating
evidence or instruction on the law. In fact, he apparently had
not understood that the defense would present additional
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mitigating evidence after the guilt and sanity trials. Although
Juror No. 5 gave some inconsistent answers on the
questionnaire and during voir dire, he clarified those
inconsistences when asked to do so, making clear he would
decide the penalty issue only after hearing the evidence, and
that he was willing to consider both penalties. As such, the
record supports the court’s decision to deny the defense’s
challenge.
c. Defense challenge to Juror No. 12
Before individual voir dire began, the court admonished
all the prospective jurors that they should not discuss the case
even with their immediate family. Juror No. 12, however,
acknowledged to her husband — a sergeant in the San Jose
Police Department, specializing in violent crimes — that she
was being considered for the jury in the present case. Her
husband reacted with concern about Juror No. 12’s health (she
had been diagnosed with lupus and suffered from occasional
migraine headaches). Juror No. 12 informed the court clerk that
her husband asked her what case she was on and expressed
concern that she was not healthy enough to be a juror in the
case.
During voir dire, the court asked Juror No. 12 how she felt
about her husband’s concerns, and she said she wanted to
continue as a prospective juror. The court admonished her
again, saying: “Okay, that’s fine. I will caution you, however,
you did talk to your husband and tell him the case. And if you
are selected and you remain with us after today, you can’t talk
about anything we did here today, the questions I might ask or
counsel’s. You can’t talk to him about it, or [to] anybody else.”
Juror No. 12 responded: “That’s correct; I understand.” She
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also assured the court that she could set aside what she knew
about the case from news sources and personal conversations,
and reach a verdict based solely on the evidence presented in the
courtroom and the court’s instructions on the law.
Defendant asked that Juror No. 12 be excused for cause,
asserting the conversation violated the court’s admonition not
to discuss the case with anyone, and further asserting that Juror
No. 12 would be tempted to discuss the case with her husband
because of his profession. The court denied defendant’s request,
stating Juror No. 12 was conscientious and objective. The court
said that Juror No. 12’s husband had most probably been the
one who raised the subject, knowing about this case from his
work and wondering whether she was being considered for the
case. His inquiry would have put her in the position of either
lying (by answering “no”) or remaining silent (which would have
been taken as a “yes”). Instead, she admitted she was being
considered for this case. The court added that Juror No. 12 did
not technically violate the court’s admonition because she did
not discuss the case; rather, she only confirmed the identity of
the case. The court concluded: “I think she can be objective,
fair, and impartial to both the People and the defendant.”
Therefore, the court denied defendant’s for-cause challenge, and
Juror No. 12 served on defendant’s jury.
Defendant argues the court erred by not excusing Juror
No. 12, and he further argues he was unable to use a peremptory
challenge to remove the juror because he had exhausted his
peremptory challenges, and the court had denied his request for
more. He also asserts the error infringed upon several of his
state and federal constitutional rights.
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We find no error. The fact that Juror No. 12 acknowledged
to her husband that she was being considered for the jury in this
case did not establish a violation of the court’s admonition, nor
did it establish that she was biased. Juror No. 12 did not consult
her husband regarding any details of the case. Rather, she
merely revealed to him what case she had been assigned to as a
potential juror. In addition, the court questioned her about the
conversation and about her knowledge of the case from other
sources and confirmed she would not discuss the case with
anyone. And the court expressly determined that Juror No. 12
could impartially perform her duties as a juror. Accordingly,
defendant’s claim of error is without merit, including his claim
that the court should have granted the defense more peremptory
challenges, thus enabling the defense to remove Juror No. 12.
For the same reason, the ruling did not violate his state or
federal constitutional rights.
d. Jurors who ultimately did not sit on the jury
Defendant argues the court erred in denying the defense’s
challenge for cause as to eight other prospective jurors,
including one alternate juror, but these jurors, unlike Jurors
Nos. 2, 5, and 12, ultimately did not sit on defendant’s jury.
Thus, with respect to these eight prospective jurors, even if the
court erred in denying the defense’s challenge for cause,
defendant still needs to establish prejudice. (Boyette, supra,
29 Cal.4th at p. 419.) Defendant attempts to do so by arguing
he was forced to use peremptory challenges to remove these
jurors, causing him to exhaust his peremptory challenges, and
he further argues the court denied his request for additional
peremptory challenges. But even if the court’s rulings forced
defendant to exhaust his peremptory challenges, he must still
show that any error resulted in a jury that was not impartial.
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Hence, he must show that one of the sitting jurors should have
been removed for cause. (See People v. Black (2014) 58 Cal.4th
912, 921 [“the fact that defendant requested additional
peremptory challenges that the court did not grant him does not
support his claim, because he has failed to show that an
incompetent juror sat on his case” (italics omitted)].)
As we have explained, defendant’s for-cause challenges to
Jurors Nos. 2, 5, and 12 are without merit. Accordingly, as to
each of the eight prospective jurors who did not sit on the jury,
even assuming, without deciding, that the court erred in
denying the defense’s for-cause challenges, any error would be
harmless. However, in light of defendant’s claim that the trial
court was biased during voir dire, we address the merits of
defendant’s claims of error regarding defendant’s denied for-
cause challenges of the eight prospective jurors.
i. Prospective Juror Mary N.
Prospective juror Mary N. indicated on her juror
questionnaire that she was in favor of the death penalty,
although not in a case in which there was lingering doubt about
the defendant’s guilt. She thought the death penalty was
appropriate for premeditated violent murders, especially with
child victims, and she “would probably consider the death
penalty to be appropriate” in a case involving multiple murders
with special circumstances. She checked the box saying she
“[s]trongly favor[ed]” the death penalty in a case involving the
specific special circumstances alleged here, but she also
indicated that in a case involving charges like those alleged
here, she would not “always” vote one way or the other. She
wrote: “It would depend on circumstances such as mental
health and pre-meditation.”
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In response to questioning by the court, Mary N. agreed
that she strongly favored the death penalty in an appropriate
case but would “not automatically” vote for death. She would
listen to the evidence presented at the penalty phase and keep
an open mind. If defendant was found guilty and all the special
circumstances were found to be true, then going into the penalty
phase, her preliminary view would be that the death penalty
was appropriate. But the penalty trial would still be needed
because she would not vote for the death penalty until she had
heard all the evidence.
The court asked Mary N. about her comment on the juror
questionnaire that she was “for” the death penalty “if there
[was] absolutely no question of guilt.” She confirmed she
believed this but also said she would still listen to and consider,
with an open mind, the evidence the defense had to offer in favor
of life in prison, perhaps being persuaded by it. She affirmed
she could vote for either death or life in prison, depending on
what the evidence showed and could give defendant a fair trial.
Defense counsel asked Mary N. whether she truly felt she
could give defendant a “fair shot” assuming she had already
found him guilty. Mary N. said she thought she could but was
not sure until she heard the evidence. When asked whether a
sex crime committed against her mother would influence her,
Mary N. said she did not know but thought she could “keep it
separate . . . because they’re separate people.” Asked if she had
doubts whether she could keep them separate, she said “sitting
here” she did not doubt it, but she did not know how the evidence
would affect her.
Defense counsel then asked about evidence of childhood
trauma, and Mary N. confirmed her juror questionnaire
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comment that she would not give such evidence any weight at
all. In her questionnaire answers, she explained: “Because I
know of people who had terribly abusive childhoods that grew
up to be wonderful, responsible people.” In response to counsel’s
questioning, she said: “To me, you are responsible for your
actions, and you are accountable for them, and your childhood
isn’t any excuse.” When asked if she would, at least, consider
childhood trauma evidence, she clarified that such evidence
“wouldn’t weigh heavily,” and she said: “I would consider
anything I heard, but I don’t think it would . . . sway me that
much one way or another.” Asked if she would “really” consider
it in the sense of “evaluating it,” she said: “I believe I would
honestly, you know, consider anything I heard. But I, in
general, I could not believe that a bad childhood absolves
somebody for their actions.”
Mary N. next reaffirmed her questionnaire answer in
which she said that she strongly favored the death penalty in a
murder case involving the special circumstances alleged here,
and although she said that she would make her decision based
on the evidence presented at the penalty phase, the “burden of
proof” (her phrase) would fall on the defense to persuade her
that death was not the appropriate penalty.
The prosecutor explained that neither party has the
burden of proof at the penalty phase and explained the weighing
of aggravating and mitigating factors. Mary N. said she
understood and could follow the law, that she had an open mind,
and she would give the defense a “fair shake.”
The trial court rejected the defense’s challenge of Mary N.
for cause, stating: “[Th]e juror must evidence a willingness to
consider the evidence presented . . . , whatever it might be,
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factors in aggravation, the factors in mitigation, . . . and give it
whatever weight they find it to be entitled, keep an open mind.
The law is not such where the defense has a right to inquire if
we present this mitigation, would you consider it, if we present
that mitigation, would you consider it, et cetera, et cetera. All
the law requires is that the juror maintain an open mind and be
willing to listen to the evidence presented and give it whatever
weight they find it to be entitled.” “So I don’t believe under the
law that this gives rise to a challenge for legal cause. . . . [I]t’s
denied.”
The court did not err. It is neither surprising nor, by itself,
disqualifying that a prospective juror who supports the death
penalty in the abstract would strongly favor the death penalty
in a case involving multiple murders, sex crimes against
children, kidnapping, and burglary — especially if the
prospective juror is asked to give an opinion without having
heard any specific evidence, including mitigating evidence, and
without any instruction on the law. Nor is it disqualifying for a
prospective juror to report, again without instruction on the law,
that certain categories of evidence would not weigh heavily in
the juror’s consideration. The parties to a criminal case are not
entitled as a matter of legal right to have only those jurors who
are likely to be impressed by their evidence. Here, the most
relevant points are that (1) Mary N. would not “automatically”
vote for death or for life without the possibility of parole, (2) she
was willing to keep an open mind until she had heard and
considered all the evidence, (3) she was willing to follow the law,
and (4) she was able to be fair and impartial. These answers,
taken together, adequately support the trial court’s
determination as to Mary N.’s state of mind. The court did not
err in denying the challenge for cause.
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ii. Prospective Juror G.O.
On her juror questionnaire, prospective juror G.O.
indicated she “believe[d] in the death penalty when warranted”
and “[s]trongly favor[ed]” the death penalty in a case involving
special circumstances like those alleged here, but that “all
evidence must be weighed before coming to any conclusions,”
including evidence related to “the defendant’s background,
upbringing, and mental health issues.” The court asked G.O.
about her views on the death penalty, and she answered that
she strongly favored the death penalty “if it’s warranted.” She
explained: “It depends on the crime. It depends on the
circumstances. It depends on the person. It depends on their
state of mind.” The court asked her to clarify her comment on
the juror questionnaire in which she said: “I feel that a person
who is convicted of a capital crime should receive the death
penalty.” She stated those were her “general feelings” but that
she would not “automatically vote” for the death penalty, and
she would not decide the question of penalty until she had heard
all the evidence.
Defense counsel questioned G.O. about a juror
questionnaire comment in which she indicated that for a
remorseful person, the penalty of life without the possibility of
parole was appropriate because such a person would be “alive in
prison thinking about the crime they committed for the rest of
their life.” In response to defense counsel’s questioning, she
explained that the death penalty was more appropriate for
“someone who will never ever change.” When asked how she felt
about the death penalty in a case like the one before the court,
assuming all the charges turned out to be true, G.O. said that
she could not answer because she would have to hear the penalty
phase evidence before deciding. When asked about her
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questionnaire answer in which she stated that she strongly
favored the death penalty in a murder case involving special
circumstances like those alleged here, she said: “I would say
most of the time, yes, I do favor the death penalty. But there
always may be that one or two times, or few times, where maybe
it’s not warranted. And that’s why you have to listen to the
information that’s presented to you and then make that
judgment.” She said she would not enter the penalty phase with
a presumption in favor of the death penalty. Instead, she would
want to hear the evidence and would be able to vote for life in
prison without the possibility of parole “if warranted.”
The defense challenged G.O. for cause, based on the fact
that she checked the box on her juror questionnaire saying she
“[s]trongly favor[ed]” the death penalty in a case like this one.
The court rejected the challenge, saying: “I believe based upon
the examination of Miss [O.] and her answers to the questions,
her explanation as to why she answered in the fashion she did,
indicates to the court, in the court’s discretion as to her state of
mind, that she could be . . . completely objective, fair and
impartial to the People and to the defendant; that she could
consider both penalties if the matter were ever to get into a
penalty phase trial; and that she would keep an open mind
about that, consider the evidence that is presented, and in that
fashion attempt to reach what she feels is an appropriate and
just verdict.”
We conclude the court did not err. G.O. made clear she
would remain open minded until she had heard all the evidence
presented at the penalty phase. She rejected defense counsel’s
suggestion that she would enter the penalty phase with a
presumption in favor of the death penalty. She said: “No. I
know nothing about [defendant], so I would be making a
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judgment against him or about him where I have no information
to make that judgment on.” She did concede that, in a case like
this one, she favored the death penalty, but as already
explained, that is neither surprising nor, by itself, disqualifying.
In addition, she made equally clear that she might vote for life
in prison and that she would make that decision based on the
evidence. Here, the critical point is that the trial court
evaluated G.O.’s state of mind and determined “she could be . . .
completely objective, fair and impartial to the People and to the
defendant,” and that she could “consider the evidence that is
presented, and in that fashion attempt to reach what she feels
is an appropriate and just verdict” as to penalty. The record
supports that determination. Accordingly, the court did not err
in denying the defense’s challenge.
iii. Prospective Juror Joseph R.
Prospective juror Joseph R. strongly favored the death
penalty in a case involving multiple murders with the special
circumstances charged in this case. He would not automatically
vote for one penalty or the other, but he commented that “they
would have to be pretty convincing circumstances.” It appears
he meant that the mitigating circumstances would have to be
“pretty convincing” to warrant a vote for life in prison given the
facts of the case as revealed in voir dire.
In response to questioning by the court, Joseph R. assured
the court that he would be able to listen to the evidence offered
by the defense and consider it, although he added: “It’s really
hard for me now, without hearing anything, to imagine
circumstances that I would consider extenuating; the nature of
the crime is pretty powerful.” The court asked about Joseph R.’s
answer to a question that asked whether he “would . . . be
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willing to consider the defendant’s background, upbringing, and
mental health issues.” In his answer, Joseph R. said he could
consider such evidence “up to a point,” adding: “I still believe in
free will though.” For example, if the defendant had “other
options or other outs, they have a choice as to which way they
want to go,” in which case he “would like to see a real strong
reason” why the defendant should be considered less
blameworthy. He added that although his leaning was in favor
of death, if he “heard a convincing argument,” he “could consider
it.” When asked whether his mind was set in favor of death, he
said: “I don’t know how firmly it’s set, but I’d say there is a bias
that way,” adding, “I don’t know if bias is the right word to use.”
The court asked whether Joseph R. could keep an open
mind and decide the issues based on the evidence, the law, and
deliberations with other jurors, and Joseph R. replied: “I think
I could go either way. I think it’s fair to say that I favor the
death penalty based on the cases I’ve heard until now, but I
believe I could listen to the testimony, the evidence, and the
mitigating-aggravating factors, and make some decision on
that.”
Defense counsel asked Joseph R. about his juror
questionnaire comment that in a case involving multiple
murders with special circumstances like those charged here, the
penalty of life in prison was “pointless without some attempt to
redeem the person.” He added: “I don’t think we are an
enlightened enough society to use this approach.” When asked
about those comments, Joseph R. said: “[A]t the time I
answered that, it may have been a little bit stronger than upon
further reflection.” He explained that in a case involving a
“really heinous” crime, the possibility of rehabilitation was one
of the few reasons to choose life in prison over death, but he did
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not think our prison system offered significant opportunities for
rehabilitation. He added that he favored the death penalty in a
case like the present one and there would need to be a
“convincing reason” to persuade him to vote for life in prison.
When asked by the prosecutor where on a continuum he
stood in terms of favoring or disfavoring the death penalty,
Joseph R. said: “I think it’s a case-by-case sort of situation. But
I think, you know, if you think about horrible things done by
sane people, I think I’m more [of the view] that you have to show
me why something very severe shouldn’t be done. I’m more in
that climate.” Nonetheless, he said he would have an open mind
and consider mitigating evidence and could return a verdict of
life in prison if the evidence warranted that verdict. He did not
feel that his views were so strong that he was unable to fairly
consider the evidence and reach a decision.
The court rejected the defense’s challenge of Joseph R. for
cause, stating: “I think one of the problems is basically this. . . .
And that is, if they make the findings required to get the matter
into a penalty phase trial, [then] they would feel that death
might very well be appropriate. Well, it might be
appropriate. . . . That’s how you get to a penalty phase trial.
Otherwise, there is no penalty phase trial. So [if] a juror were
to say: ‘Yes, if I were to be a juror and make those findings and
find the defendant legally sane, and this gets into a penalty
phase trial, yes, I believe that death may be appropriate.’ Well,
that’s the point of the law. When you get into a penalty phase
trial, it only gets there if they make those findings. And in a
penalty phase trial, death may be appropriate. And life in
prison without the possibility of parole may be appropriate. [¶]
And he indicated, when he concluded, that he could consider
both and give them both due weight and make that
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consideration only and that decision. Clearly, he favors the
death penalty, but that does not mean under the law that there
is a legal challenge for cause. He certainly has given you
information you can use in your process by way of peremptory
challenges, even though this process isn’t deemed to be designed
to aid in that specific area. . . . [¶] But under the law, there is
no case that says if somebody believes that they are in favor of
the death penalty or strongly favors it, that they should be
excused as a juror. Because if that be the case in California, the
majority of people could not sit, because a majority of people in
California . . . are, in fact, in favor of the death penalty.”
We conclude the court did not err. As we have already
explained, it is neither surprising nor, by itself, disqualifying
that a prospective juror who supports the death penalty in the
abstract would strongly favor the death penalty in a case like
this. In addition, we have noted that it is not disqualifying for
a prospective juror to report, again in the abstract, that certain
categories of evidence would not weigh heavily in the juror’s
penalty consideration. Thus, the fact that Joseph R., assuming
the charges to be true, strongly favored the death penalty, is not
a basis for granting a challenge for cause. Likewise, the fact
that Joseph R. thought that “defendant’s background,
upbringing, and mental health issues” were only relevant “up to
a point” is not a basis for granting a challenge for cause. The
record here shows that Joseph R. would not “automatically” vote
for death or for life without the possibility of parole, he was
willing to keep an open mind until he had heard and considered
all the evidence, he could return a verdict of life in prison if
appropriate, as his opinion about the penalties “may have been
a little bit stronger” than it was “upon further reflection,” and
he was able to be fair. These answers, together, adequately
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support the court’s determination as to Joseph R.’s state of
mind. Accordingly, the court did not err in denying the
challenge for cause.
iv. Prospective Juror Wayne G.
In his juror questionnaire, prospective juror Wayne G.
indicated he strongly favored the death penalty in a case like
the present one but said he would need to hear the facts before
deciding. When asked by the court whether he would
“automatically vote” for one penalty or the other, Wayne G.
answered: “I thought I . . . was more pro death penalty. But . . .
it’s something that I’d really have to think about during the
trial.” He then explained he was “kind of leaning” in favor of the
death penalty but did not “know all the circumstances.” He said
he could vote for life in prison without the possibility of parole
if, after hearing the evidence, he thought that penalty was
appropriate. When asked if he could consider the evidence
offered by either side and vote one way or the other, he said: “I
could go either way. I’d have to hear the arguments and
everything.” He added: “I don’t favor one over the other
necessarily.”
Defense counsel asked Wayne G. about his juror
questionnaire comment that he could consider evidence of
childhood trauma but would “have to be totally convinced.”
Wayne G. said that a person who faced childhood trauma and
who has a continuing problem in adulthood should seek help.
He agreed with defense counsel that he would want to see
evidence that the childhood trauma was disabling. Wayne G.
said that the experience of actually being considered for a jury
in a capital case and facing the possibility of having someone’s
life in his hands had changed his views. He had been a “strong
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believer” in the death penalty but now felt, “I’ve got to be
convinced that it’s really necessary.” Defense counsel asked him
about his comment on his juror questionnaire in which he said
the death penalty should be imposed “only if it’s proven without
a doubt that the suspect committed a ‘planned’ & cruel murder
and shows no remorse whatsoever.” He said he might consider
the death penalty in other situations so long as “it was proven
to [him] without a doubt.” Defense counsel next asked about a
case with charges like those in the present case, and the
following colloquy occurred:
“[Defense counsel]: . . . The question is: Would you in that
situation . . . only vote to impose death because of your views on
the death penalty?
“[Wayne G.]: I want to say in my mind I would, but I
know, you know, I don’t want to be so closed-minded. I’ve got
other jurors, and I haven’t heard any of the case or anything.
[¶] . . . [¶] . . . But, you know, just off the top of my head, I would
say yes.”
During questioning by the prosecutor, Wayne G. stated
that he still believed in the death penalty, and although he had
come to question the strength of his conviction, he could “still do
it.” But he would not vote for death in all cases, because he
“would want to listen to everything,” and his desire to hear the
evidence applied even in a case like the present case, having
multiple murder counts and special circumstances. He said he
“would be very heavily leaning towards the death penalty” if the
defendant in such a case was “proven guilty,” but if appropriate,
he could return a verdict of life in prison, and his vote would
depend on the evidence.
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The defense challenged Wayne G. for cause. The court
expressed doubts about the utility of asking prospective jurors
to imagine that defendant is guilty of the charges, with the
special circumstances true, and then asking for an abstract
opinion about whether they favored the death penalty. The
court called back Wayne G. and asked whether he was
committed to one penalty or the other based solely on the
charges and alleged special circumstances, without having
heard any evidence and without having found defendant guilty.
Wayne G. answered: “I’d want to hear the evidence.” The court
denied the challenge for cause, finding Wayne G.’s views would
not prevent or substantially impair his ability to be a juror.
We determine that the court did not err. Wayne G.’s
answers were, at times, inconsistent, and he may not always
have understood what he was being asked, which is not
surprising considering the complexity of the legal issues
involved in selecting a capital jury. He favored the death
penalty for a case like the present one. But the reality that he
might become a juror in a capital case was a sobering experience
for him that led him to feel less strongly in favor of the death
penalty than he previously did. On the one hand, he stated
without ambiguity that he could vote for death if, after hearing
the evidence and deliberating with the other jurors, he felt death
was the appropriate penalty. On the other hand, he said he
could also vote for life in prison, and in choosing which penalty
to vote for, he would want to hear all the evidence.
When defense counsel asked him whether “because of [his]
views on the death penalty,” he would “only vote to impose
death,” Wayne G. answered, “just off the top of my head, I would
say yes.” But he qualified that answer by saying: “I don’t want
to be so closed-minded. I’ve got other jurors, and I haven’t heard
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any of the case or anything.” He also said: “I’ve got to be
convinced that [the death penalty is] really necessary.” And he
repeatedly confirmed that he would base his decision on the
evidence, and that he could vote for either penalty depending on
what the evidence showed.
Moreover, as the court noted, asking prospective jurors
who have heard no evidence — in particular, no mitigating
evidence — to assume the unusually serious charges and
allegations in this case are all true, and then asking them, based
on that assumption and with no instruction on the law, whether
they lean in favor of death is likely to evoke an affirmative
response. In effect, Wayne G. was asked to give an abstract
opinion about what he thought the law ought to be for a case like
the present one. That is not a line of inquiry that is particularly
informative regarding a prospective juror’s qualification to sit
on a jury, and we consider Wayne G.’s answers with that in
mind.
For all these reasons, we conclude that Wayne G.’s voir
dire answers adequately support the court’s determination as to
his state of mind. Accordingly, the court did not err in denying
the challenge for cause.9
v. Prospective Juror Jack. S.
On his juror questionnaire, prospective juror Jack S.
indicated that he strongly favored the death penalty, but that in
a case like the present one, his vote would depend on the facts.
He confirmed this answer in voir dire. The court asked him
9
Notably, despite the trial court’s denial of defense’s
request to strike him for cause, the prosecution ultimately
exercised a peremptory challenge on Wayne G.
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whether he would “automatically” vote for the death penalty
without considering the evidence that might be offered by the
defense at the penalty phase, and Jack S. said: “I would have to
weigh the evidence at the time.” He said he would also be able
to vote for life in prison without the possibility of parole. The
court asked Jack S. about the following comment he made on his
juror questionnaire: “If he is convicted of the three murders, he
should get the death penalty.” Jack S. said he meant only “if the
evidence weighed to that.” He added: “I would vote one or the
other [penalty] depending on . . . the testimony or — I don’t
know what you call it — the evidence.” He then confirmed that
he strongly favored the death penalty, assuming the charges in
the present case were true. When asked about his questionnaire
comment that a case like the present one “could be a good cause
for the death penalty” “[a]fter hearing the facts,” he assured the
court that he had no “predisposition . . . that [he] would
automatically vote for it.” He affirmed he would keep an open
mind, hear the evidence, deliberate with other jurors, and vote
for one or the other penalty, as appropriate.
Defense counsel followed up on Jack S.’s questionnaire
comment, and Jack S. explained: “I was thinking, well, if a
person is convicted and all the evidence weighed that the person
did it, you know, . . . cold-bloodedly, you know, I guess you could
go for the death penalty.” Defense counsel asked: “[A]re you
meaning to say . . . that if you personally sat on the case and
listened to the evidence and were convinced beyond a reasonable
doubt that a guy committed three murders and that they were
done maliciously or they were done in the course of a felony like
rape . . . that you personally, because of your strong beliefs about
the death penalty in that situation, would have to impose the
death penalty just because of the way you feel?” When Jack S.
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answered in the affirmative, the court reminded Jack S. that at
a penalty phase trial, guilt would already be determined, and
there would be additional evidence offered, some of it in favor of
life in prison. Jack S. agreed he would listen to the evidence.
When defense counsel again asked the same question, Jack S.
said: “I would have to just weigh the facts.” The court
interrupted again, and Jack S. again confirmed that even if he
found defendant guilty, he would be willing to consider the
evidence offered in the penalty phase, and he would not always
vote for death. Defense counsel then resumed questioning, and
Jack S. answered “yes” to whether he would “be heavily leaning
towards a sentence of death if [he] found somebody beyond a
reasonable doubt had committed these three murders.”
Next, the prosecutor confirmed that Jack S. would not vote
for death in every case but instead would be “open to the facts
and listen to both sides,” and he would not be reluctant to vote
for life in prison, if appropriate, after hearing all the evidence
and applying the law.
The defense challenged Jack S. for cause, and the court
rejected the challenge, stating, “I believe his state of mind is
such where he prefers the death penalty in a case of this type.
That does not disqualify him as a juror. [¶] I believe . . . he will
listen to what’s presented to him as it bears upon the other
penalty, which is life in prison without the possibility of parole,
and he will keep an open mind and not make that decision until
he’s heard all the evidence that bears upon the issue.”
We find that the court did not err. Jack S. strongly favored
the death penalty, assuming the charges in the present case
were true. But as we have already explained, that conclusion is
neither surprising nor, by itself, disqualifying in this case.
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Although Jack S. said at one point that he “would have to
impose the death penalty” if he found defendant guilty, when
the court reminded him that additional evidence would be
offered at the penalty phase, he stated he would listen to that
evidence. More generally, Jack S. repeatedly affirmed he would
not automatically vote in favor of one penalty or the other, that
he would keep an open mind and base his vote on the facts and
the evidence, and that he could, if appropriate, return a verdict
of life in prison. These answers adequately support the court’s
determination as to Jack S.’s state of mind. Thus, the court did
not err in denying the challenge for cause.
vi. Prospective Juror Cynthia Y.
On her juror questionnaire, prospective juror Cynthia Y.
indicated she strongly favored the death penalty in a case like
the present one, but she also said she would listen to the
evidence with an “open mind” and that childhood issues and
mental health issues also needed to be considered. She wrote:
“I have never been responsible for the fate of another human
being and would have to hear every possible fact before I could
make [the penalty] decision.” She also wrote that a murder had
to be “proven beyond any doubt” to warrant the death penalty.
In response to questioning by the court, Cynthia Y. felt
that a person found guilty of murder should get the death
penalty. The court explained there would be no penalty phase
trial unless defendant had already been found guilty.
Cynthia Y. said: “I believe that if a person is mentally sane and
he is found guilty of the counts that he is accused of, that the
death penalty should be applied.” She also agreed it should be
applied “automatically.” After further explanation by the court,
she said she did not understand “what types of things” would be
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told to her at a penalty phase trial. After the court gave a
general description, she said, “I have to claim ignorance here,
since I’ve never gone through an entire case such as this and as
serious as this. And I would definitely be willing to listen to both
sides.” She said that although she strongly favored the death
penalty, she could listen to and evaluate the defense’s evidence
in favor of life in prison and could vote for that penalty, if
appropriate, based on the evidence. She affirmed that she could
give both the People and defendant a fair trial.
When defense counsel asked about her juror questionnaire
comment in which she justified the death penalty based on
concern for the murder victim and the victim’s family,
Cynthia Y. explained: “It’s really hard, because you have to put
yourself in both places. I mean, I have children. If it were my
son on trial, I’d want somebody to be fair. On the other hand, if
it were my son who was dead, I’d want closure.” “So, you know,
I’m willing t
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