People v. Demolle

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ALEX DEMOLLE,

Defendant and Appellant.

S159120

Alameda County Superior Court

140729

June 1, 2026

Chief Justice Guerrero authored the opinion of the Court, in

which Justices Corrigan, Kruger, Groban, and Jenkins*

concurred.

Justice Liu filed a concurring and dissenting opinion.

Justice Evans filed a concurring and dissenting opinion.

*

Retired Associate Justice of the Supreme Court, assigned

by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

PEOPLE v. DEMOLLE

S159120

Opinion of the Court by Guerrero, C. J.

On July 23, 1999, 11-year-old Jaquita Mack went

missing.1 Her body was discovered the next day on a hillside in

Oakland. Two weeks later, defendant Alex Demolle confessed

to raping and strangling Jaquita. After hearing this confession

and other evidence, a jury convicted defendant of first degree

murder. (Pen. Code, § 187.)2 The jury also found true two

special circumstance allegations: murder during the

commission of a rape (§ 190.2, subd. (a)(17)(C)) and murder

during the commission of a lewd and lascivious act on a person

under the age of 14 (id., subd. (a)(17)(E)). The jury returned a

sentence of death, which the trial court imposed. This automatic

appeal follows.

We affirm the judgment.

I. BACKGROUND

A. Evidence at the Guilt Phase

The evidence introduced by the prosecution established

that Jaquita lived with her aunt and court-appointed legal

guardian, Verna White. However, in July 1999, she was visiting

her biological parents, James Mack and Kenya White, staying

1

Both parties refer to the victim by her first name. We do

the same.

2

All further unspecified statutory references are to the

Penal Code.

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with them at their house on East 29th Street in Oakland. James

Mack and Kenya White were no longer in a romantic

relationship, and James Mack’s girlfriend, Chris Aubrey, was

also residing at the house on East 29th Street.

Around 5:00 p.m. on Friday, July 23, 1999, Jaquita left the

house to ride her bicycle to a nearby store. At some point,

Aubrey realized Jaquita had been gone for a long time. Aubrey

went to look for Jaquita. While doing so, she encountered

defendant, who lived around the corner from East 29th Street in

an apartment complex on Fruitvale Avenue. She asked if he had

seen Jaquita, giving a description of both Jaquita and the bicycle

she was riding. Defendant denied having seen Jaquita. Aubrey

subsequently called the police to report Jaquita missing.

The police discovered Jaquita’s body the next day on a

hillside about a mile from her parents’ house. Her body was

wrapped in a sheet, her midriff was exposed, and her pants were

low on her pelvis and irregularly laced.

Doctor Sharon Van Meter conducted an autopsy. She

determined that Jaquita had died from “[a]sphyxia due to

strangulation.” Van Meter collected vaginal and rectal swabs

from Jaquita’s body. Sperm was detected from both swabs, and

a DNA profile was created from the rectal swab.

On August 3, 1999, Oakland Police Sergeant Derwin

Longmire, the lead detective on Jaquita’s case, was conducting

a neighborhood canvass around the area of East 29th Street and

Fruitvale Avenue. Longmire explained that a canvass “is a door-

to-door search where [police] officers . . . go to each residence . . .

[¶] . . . knock on the door and talk to the residents.” As part of

this canvass, Longmire spoke to defendant briefly. Defendant

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told Longmire that he had seen Jaquita “earlier in the day”

before she was reported missing.

Three days later, on August 6, 1999, Longmire knocked on

defendant’s door to follow up on the conversation. Defendant

answered the door and invited Longmire in. Defendant told

Longmire that he “saw [Jaquita] late in the evening [of July 23],

that she had fallen off her bike and that he helped her up, that

just a few minutes after that . . . an aunt [Chris Aubrey], came

around the corner looking for her, and that ultimately he had

left the residence and went on to Lake Tahoe.” Longmire asked

defendant if he would be willing to accompany him to the police

station to memorialize defendant’s statement. Defendant

agreed and brought along his three-year-old daughter. While at

the police station, Longmire asked if defendant would consent

to give a blood sample. Defendant initially refused but

subsequently agreed. After audio taping defendant’s interview,

Longmire took defendant and his daughter to a hospital, where

defendant had his blood drawn. Defendant and his daughter

then returned home.

The DNA profile generated from defendant’s blood sample

matched that of the sperm recovered from Jaquita’s body. An

expert testified that “[t]he . . . profile of the semen of the rectal

swab [collected from Jaquita’s body] [wa]s indistinguishable

within the match criteria of the laboratory from the . . . profile

of Alex Demolle.”

Based on the DNA match, the police arrested defendant

on August 8, 1999. On the same day, defendant confessed to

raping, strangling, and disposing of Jaquita’s body. In two

statements, one taken by Longmire and the other by a deputy

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district attorney, defendant gave the following account of the

day of Jaquita’s death.

In July 1999, defendant was living in an apartment

complex on Fruitvale Avenue with his wife and three-year-old

daughter. He was home alone on the afternoon of July 23,

waiting to be picked up by two friends for a trip to Lake Tahoe.

At some point around 5:00 p.m. to 5:30 p.m., defendant was

outside his apartment and saw Jaquita, whom he claimed to

have never met before. Defendant was feeling nauseous because

of some food that he had consumed earlier and went back inside

to take a nap. Sometime between 6:30 p.m. and 8:00 p.m.,

defendant was outside again and saw Jaquita falling off her

bicycle. He helped pick up the bicycle, and Jaquita rode off.

Some minutes thereafter, a person defendant identified as

Jaquita’s aunt — but who was in fact Aubrey — came by and

asked if defendant had seen “a little girl riding a pink . . . bike.”

Defendant said yes and told Aubrey to look at a spot “around the

corner” where the local children are known to congregate.

Aubrey left. Defendant then sat down by his front door to play

video games. Shortly thereafter, Jaquita rode by on her bicycle.

Seeing defendant playing his video games, Jaquita stopped and

asked if she could play. Defendant said yes and invited her in.

She came into the apartment, bringing her bicycle with her.

Defendant closed the door behind her.

Once inside the apartment, Jaquita sat down on a

mattress in the living room and began playing a video game.

Defendant sat next to her. At some point, he touched her arm

and legs. She looked at him and went back to the video game.

He touched her again, this time either closer to her breasts or

between her legs. She got up to leave. He pushed her down and

pulled down her pants. Then with her legs held up in the air,

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defendant inserted his penis into Jaquita’s vagina, moving in

and out a few times. Jaquita was crying and making “little

whimpering noises,” with her hands up, “petrified” “[l]ike if a

dog was coming up [and] she was trying to keep her hands from

getting . . . bit.” After about 20 seconds, defendant pulled his

penis out of Jaquita’s vagina and ejaculated in the process.

Defendant was nervous and scared. He thought “about

[his] daughter and [his] life,” “[his] family and how

embarrassing this was,” and he did not “want to go to jail.” He

“wrapped [his] hands around [Jaquita’s] throat” and “squeez[ed]

her whole neck.” Jaquita was crying; she did not scream or fight

back. Defendant continued strangling Jaquita for about 15 to

20 minutes. When defendant let go of her neck, Jaquita’s eyes

were wide open and she was dead.

Defendant wrapped Jaquita’s body with a bedsheet. He

lowered her body about five feet out of a window and dropped it

onto the ground. He threw out her bicycle over his back fence.

Defendant then went to his next-door neighbor, Delores Hill,

and asked to borrow her car so he could visit an aunt. Hill lent

him her car. Demolle took Jaquita’s body to the car, placing it

on the floorboard of the front passenger seat. Just as he was

getting into the car, the two friends whom defendant had been

waiting for arrived. Defendant told them he would be back

shortly. Defendant drove away, stopping at a hillside that he

recognized, and there he “swung” Jaquita’s body “five feet to the

grass.”

After disposing of the body, defendant drove back to his

apartment and left with his friends. He spent the night at their

house with the intention of leaving for Lake Tahoe in the

morning. In the middle of the night, one of defendant’s two

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friends took defendant back home because he was sick with a

stomach flu. By the next morning, defendant was feeling better

and left for his trip to Lake Tahoe as planned. Defendant

returned to his Oakland apartment after the trip and was

arrested two weeks later.

Other evidence corroborated defendant’s account. Hill,

defendant’s next-door neighbor, testified that he had borrowed

her car the day of Jaquita’s disappearance. Hill also testified

that the day before he was arrested, defendant told Hill he could

not have killed Jaquita because choking somebody “takes a long

time” and “he didn’t have time to commit a crime like that.” One

of the friends who picked up defendant for the trip to Lake

Tahoe likewise testified to a time frame of events consistent

with defendant’s account. Jaquita’s bicycle was found in the

backyard of a property abutting defendant’s apartment complex,

a location consistent with where defendant said he had

discarded the bicycle.

The defense presented no evidence at the guilt phase.

B. Evidence at the Penalty Phase

1. Prosecution case

The prosecution introduced victim impact evidence and

testimony regarding two incidents of “criminal activity by the

defendant which involved the use or attempted use of force or

violence or which involved the express or implied threat to use

force or violence.” (§ 190.3.) These two incidents consisted of an

unadjudicated battery that defendant committed against Robert

Barnes when defendant was a minor and an unadjudicated

criminal threat defendant made against Jeff Samuel about a

year before Jaquita’s killing.

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Jaquita’s family members — Verna White, Jaquita’s aunt

and legal guardian; Jasmine White, Verna White’s daughter

and Jaquita’s cousin; and Khena White, Jaquita’s brother —

gave victim impact evidence. They described what Jaquita was

like, their close relationship with her, and the impact of her

death on their family.

Jaquita’s fifth-grade teacher — Christine Mohler — also

testified about her relationship with Jaquita and how Jaquita’s

death impacted her. Mohler testified that in her first year as a

teacher, she taught Jaquita’s fifth-grade class. Mohler

developed a “special bond” with Jaquita and “spent the most

time with [her], just working with her academically and trying

to find ways to motivate her.” Mohler testified regarding how

Jaquita’s murder continued to affect her, stating that she saw

the “effects of it in [her] parenting” and that Jaquita’s death was

“just something you don’t leave behind in your life.”

2. Defense case

A total of 29 witnesses testified on defendant’s behalf,

including his father, mother, paternal aunt, paternal uncle,

maternal aunt, uncle-in-law, cousin, nephew, junior high school

teacher, various clergy and church members, multiple friends,

four deputy sheriffs working in the jails where defendant was

housed, and a former prison warden.

Family members and friends painted the following picture

of defendant. He was born in 1975 in New Orleans to Adam

Marcell Encalade, Sr. and Mary Ann Demolle. When he was

born, defendant suffered a staph infection that required him to

stay in the hospital for a month. Encalade worked as a

fisherman and was gone from the home most of the time. When

defendant was two and a half years old, his mother left Encalade

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and moved with her children to Oakland, California, where her

family was. Defendant grew up in a big extended family. He

was friendly and helpful, often helping to watch the children of

family, friends, and fellow church members. Defendant was

devoted to his daughter and served as her primary caregiver.

Defendant loved fishing and frequently took his daughter

fishing with him.

Witnesses testified that based on what they knew of

defendant, they were shocked to learn that he had committed

the crimes charged. They loved defendant and would miss him

if he were executed.

The deputy sheriffs testified that during his time in

custody, defendant was well behaved and was “never a

disciplinary problem.” One of the witnesses, Daniel Vasquez,

testified to the conditions that a prisoner like defendant would

experience if he were sentenced to life without the possibility of

parole. Based on his experience, an interview with defendant,

and his study of defendant’s incarceration records, Vasquez

opined that he had “no concerns” about defendant “being the

type of prisoner who would typically lash out or do some harm

to others.”

The prosecution cross-examined some of the witnesses.

The prosecution confronted Vasquez with the fact that

defendant’s record showed two rule violations and elicited the

admission that “[f]uture human behavior of an individual can be

difficult to predict.” The prosecution also presented evidence

that defendant had been arrested in Oakland for attempting to

break into a minivan, and the incident occurred as he was

leaving a church youth group meeting. The prosecution used

the incident to impeach the testimony of a pastor who had

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offered a favorable opinion of defendant based on his

participation in the church youth group.

At the conclusion of the penalty phase, the jury returned

a verdict of death. The trial court denied defendant’s motion to

modify the verdict and sentenced defendant to death.

II. DISCUSSION

A. Guilt Phase Issues

1. Denial of motion to suppress

a. Background

Defendant contends that he was unlawfully detained by

law enforcement and his subsequent consent to a blood draw

was tainted by this illegal conduct. According to defendant, all

incriminating evidence obtained thereafter constituted “the

fruits of his unlawful detention and thus should have been

suppressed.”

Defendant raised this argument prior to trial by filing a

motion to suppress under section 1538.5. (See § 1538.5,

subd. (a)(1)–(A) [“A defendant may move . . . to suppress as

evidence any tangible or intangible thing obtained as a result of

a search or seizure [if]: [¶] . . . [t]he search or seizure without a

warrant was unreasonable”].) The magistrate held a

preliminary hearing at which Longmire and Bruce Brock, a

police sergeant who was present during defendant’s August 6

interview, testified to the circumstances surrounding

defendant’s consent to give blood.

According to Longmire, he first encountered defendant

during a neighborhood canvass on August 3, 1999. Defendant

told Longmire that he had seen Jaquita on the day of her

disappearance. Three days later, Longmire was back

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canvassing the area and knocked on defendant’s door. As he had

been on August 3, Longmire was wearing “dress shoes, slacks,

shirt, tie” and possibly “a jacket” but not a formal police uniform.

When defendant opened the door, Longmire asked if he could

speak with him “a little bit more” about Jaquita’s

disappearance. Defendant “said yes, opened the door wide, and

invited [Longmire] into his home.”

After defendant and Longmire sat down at defendant’s

kitchen table, defendant volunteered that he had seen Jaquita

“shortly before dark” on the day of her disappearance. Jaquita

had fallen off her bicycle; defendant went to help her, lifting the

bicycle and righting it, after which Jaquita rode off. Sometime

into the conversation, Longmire asked defendant if he would be

willing to come down to the police station because Longmire

“wanted to memorialize the statement that [defendant] had just

given” but did not “have a recording device” with him.

Defendant agreed to go with Longmire but said he had his three-

year-old daughter at home with him. Longmire said it was “all

right” if defendant brought his daughter with him. Longmire

informed defendant that “kids come down quite often when

[they] interview people” and defendant’s daughter “would either

sit in with [them] or sit with somebody watching her and she

would be okay.” Defendant agreed to accompany Longmire to

the police station.

Longmire, defendant, and defendant’s daughter then

walked to Longmire’s police car, which was unmarked and had

no “cage” or “locked area in the back.” Defendant opened the

right rear door to the vehicle, fastened his daughter into the seat

with the seat belt, and then got into the front passenger seat.

Longmire drove to the police station, which was about two miles

away from defendant’s residence. Upon arrival, defendant got

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out of the car, helped his daughter out, and followed Longmire

into the police station’s homicide section. Longmire “unlocked

the door to the homicide section,” and the three entered.

Longmire then guided defendant to one of the interview

rooms, Room 203. Room 203 was about eight feet wide by eight

feet long. It had windows along two of its walls and a door that

contains a “large glass plate.” Inside Room 203 was “office-type

furniture,” including file cabinets, a table, and chairs. The door

to Room 203 could be locked, and “if the door is locked from the

outside you need a key to unlock it from the interior to get

outside.”

While defendant remained in the room, Longmire exited

Room 203 and locked the door. Longmire explained that he did

so because homicide investigators store their weapons in the

unlocked drawers of their desks outside of Room 203. It was

therefore “very important to be sure that you control the

movement of all people coming into that office” and “you can’t do

that if you’ve got people walking in and out of rooms where

weapons are being stored and unattended.” Longmire further

explained that his concern was not based on anything that

defendant said or did, and he would have had this safety and

security concern regardless of who was inside Room 203.

Longmire went to his desk, secured his firearm, and asked

Sergeant Brock to assist in conducting the interview. The two

officers then returned to Room 203. An interview log indicates

that Longmire’s initial arrival to Room 203 occurred at

10:55 a.m., and Longmire testified that he was gone from the

room for “a minute” before returning with Brock.

Longmire and Brock began interviewing defendant.

Longmire could not recall whether defendant’s daughter was

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also present in Room 203. “Two or three minutes” into the

interview, around 10:59 a.m., Longmire read defendant his

rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

The form Longmire used informed defendant of “the right to

remain silent,” “the right to talk to a lawyer and have him

present,” and the right to an appointed attorney. Defendant

waived his rights and initialed a waiver form confirming that he

understood his rights and, “[h]aving these rights in mind,”

wished to talk to the investigators. Longmire testified that,

although defendant was not a suspect, he provided the Miranda

advisement “as a prophylactic measure in the event that

[defendant] gave incriminating information.”

Sometime between 11:15 a.m. and 11:35 a.m., Longmire

asked defendant whether he would agree to give a blood sample.

In the course of investigating Jaquita’s murder, Longmire had

previously obtained blood samples from other individuals. By

soliciting a sample from defendant, Longmire believed he could

“either secure a suspect” or “just as importantly . . . eliminate

those people that could have potentially been the donor or the

suspect” and thus “free [Longmire] to start . . . looking [in] other

places.” Defendant declined to provide blood, explaining that he

was afraid of needles.

At 11:45 a.m., the investigators decided to take a short

break. They left Room 203, and the door was locked while the

investigators were gone. At this time, Longmire and Brock also

decided to “put [defendant’s] statement on tape.”

Accordingly, at 11:54 a.m., the officers walked defendant

to a different interview room, Room 201. Room 201 was roughly

eight feet by six feet. It had no windows, and the door only had

a small eyehole. The door to Room 201 also locked automatically

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whenever it was closed. Despite the locking mechanism,

Longmire testified that “there would be no indication to the

person sitting in the room that the doors in fact locked” and “the

only way [a person] would know is if [he or she] tried to open the

door.”

“Somewhere between moving from [Room] 203 to 201,”

Longmire told defendant that “it would be better if [they] left

[defendant’s daughter] outside of the interview” room. The

police “were going to record [defendant’s] statement on tape, and

oftentimes children have a difficult time sitting through without

making noises.”

After placing defendant in Room 201, Longmire again left,

and the door locked automatically behind him. The interview in

Room 201 started at 12:10 p.m. However, “four or five minutes”

before the formal interview began, defendant knocked on the

door and Longmire answered.3 While the two were standing

3

More precisely, Longmire said, “There was a period

probably four or five minutes before I returned to the room

where Mr. Demolle knocked on the door and I came back to

answer.” Longmire’s statement was given in the context of the

following exchange:

“Q. And during that period of time [in between when

Longmire left and 12:10 p.m. when the interview began]

Mr. Demolle was locked in the room by himself?

“A. For the majority of that time, yes. [¶] . . . [¶]

“Q. During some period of that time he was not locked in

the room[?]

“A. You asked if he was alone for that entire time and I

said for the majority of the time, yes.

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with the door open, defendant asked Longmire “how long it

would be.” Longmire responded that “it would be just a short

while.” Defendant also asked about his daughter, “want[ing] to

know where she was, if she was okay.” Longmire said she “was

right there in the office with the secretary and she was fine.”

Defendant “seemed to be okay” with Longmire’s response.

Although Longmire could not recall the exact sequence of

events, he testified he thought that it was at this time — when

defendant knocked on the door and the two men spoke at the

doorway — that defendant “talked a little bit about having a

party the next day and wanting to prepare for the party.”

Afterward, Brock walked up and the men entered the room.

Longmire again approached defendant about giving a

blood sample. This time, defendant “said he would do it.” At

12:13 p.m., defendant signed a “consent to search” form. The

consent form reflects that defendant agreed to a search of his

residence and “my blood sample being taken.” The form also

states, “I have been told that I have a right to refuse to allow the

police to search my person or my property” and “I have given my

consent voluntarily without threats or promises.” Defendant

signed the form, and it was witnessed by Longmire and Brock.

Longmire stated that defendant did not appear to be under the

“Q. When during that period from 11:54 till 12:10 was he

not alone?

“A. There was a period probably four or five minutes

before I returned to the room where Mr. Demolle knocked on the

door and I came back to answer. [¶] . . . [¶]

“Q. So that conversation [at the doorway] occurred very

close to the end of that . . . 16-minute period between 11:54 and

12:10.

“A. Yes.”

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influence of alcohol, drugs, or any other substance when he

provided his consent.

At 12:22 p.m., the tape recorder was turned on and the

taped portion of the interview began. The prosecution played a

portion of the recording during the preliminary hearing and

entered a transcript of the recorded interview into evidence.

The interview began with the officers obtaining biographical

information from defendant. Longmire then stated, “Now, what

we’d like to do is . . . go on tape here as we are, and chronicle the

events leading um, up to the disappearance of . . . the young

Jaquita Mack on [¶] . . . [¶] the 23rd of ah, July, okay?” After

defendant responded, “Alright,” Longmire continued, “Now if

you will, I’m just gonna let you in your words um, tell us about

that evening in respects to Jaquita.” Defendant subsequently

volunteered detailed, lengthy answers about his interaction

with Jaquita and what he did in the hours thereafter. In

response to defendant’s answers, Longmire generally replied,

“Okay” and asked follow-up questions.

Brock also participated in the questioning. The officer

asked a series of questions that he directed defendant to answer

“yes” or “no.” Brock phrased his request as follows: “You know

I got some questions and kind of, I have a weird way of asking

questions if you don’t, if you can bare [sic] with me for a second.

[¶] . . . [¶] Can you, you do me a favor and if you could answer

them like yes and no. ’Cause I just kind of wanna see how you

respond to them? Fair enough?” Defendant responded, “Okay.”

Brock subsequently asked defendant some innocuous questions

(e.g., “Is your name Alex . . . Demolle?”) and requested that

defendant “purposely lie to [him] if [he] can” on some of the

queries (e.g., “is my shirt red?”). Brock also asked defendant

questions directly related to Jaquita’s death. Before the first of

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these questions, Brock said, “Now some of these . . . I, you know,

you have [to] understand the nature of this investigation.”

Brock then asked, “did you murder Jaquita Mack,” to which

defendant answered, “No.” Brock asked these “yes” or “no”

questions twice, the second time closer to the end of the

interview. Defendant denied any involvement in Jaquita’s

killing.

Toward the end of the interview, Longmire orally

confirmed that defendant was “willing to consent to giving

[them] a sample of [his] blood.” Defendant responded, “I don’t

have no problems. I mean if that’s going just, you know, help

out. . . . I have no problems.” Defendant reiterated he had

signed the consent form and had not “been forced to give” his

statement.

The taped portion of the interview ended at 12:55 p.m.

Following the interview, Longmire, Brock, defendant, and

defendant’s daughter drove to a hospital to have defendant’s

blood drawn. Defendant “appeared to be quite relaxed”; he “sat

in the back seat, sang along with songs that were on the radio”

and was “real lighthearted.” Defendant had his blood taken

shortly after arriving at the hospital. He and his daughter

returned home after this August 6 blood draw. Two days later,

when the DNA from defendant’s blood was found to match with

the DNA from the semen recovered from Jaquita’s body, police

officers arrested defendant at his residence.

Sergeant Brock gave a similar account of his interaction

with defendant on August 6. Brock confirmed that shortly

before the taped portion of the interview began, Longmire asked

defendant if he would mind giving a blood sample; when

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defendant agreed, Longmire filled out the consent form and

defendant signed it.

After hearing the evidence, the magistrate denied the

motion to suppress. In explaining its reasoning, the court noted

that it had reviewed “cases that were on point on the custody

issue.” The court stated that in those cases “we do not have the

benefit of a statement from the defendant” — presumably

because the defendant did not testify at the preliminary

hearing — “so we are left to surmise and speculate from the

circumstances what the state of mind of the defendant is, and it

seems to hinge upon whether or not the defendant thought he

was in custody.” The court next enumerated the bases it relied

upon in denying the motion. First, it observed that the defense

attempted to distinguish prior case law by relying on the fact

defendant was given Miranda warnings. However, the court

stated that it understood Longmire to have given such warnings

merely as a “precaution[].” “Secondly,” continued the court, “I

did review the transcript and I did not find the interrogation to

be particularly accusatory.” “Thirdly,” the court emphasized

that when defendant and Longmire stood talking at the door of

Room 201, “they talked about [defendant’s] return to his home,

the fact that he had a party to prepare for the next day. So to

me that tells me that [defendant] is aware that he is returning

to his home, he is not in a custody situation, and similarly,

shortly thereafter Detective Longmire informs him that they are

going to take him to the hospital and then take him home.”

Finally, “most important” to the magistrate was “the presence

of the child” because the magistrate did “not think that a

reasonable person, knowing the child was at the police

station . . . that a reasonable person would believe himself to be

in custody with no provision being made for the child.”

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Opinion of the Court by Guerrero, C. J.

Defendant contested the magistrate’s ruling by filing a

motion under section 995 before the superior court. (See § 995,

subd. (a) [“the indictment or information shall be set aside by

the court in which the defendant is arraigned, upon his or her

motion . . . [¶] . . . [¶] [if] the defendant had been committed

without reasonable or probable cause”].) After hearing

arguments from the parties and taking into consideration “the

totality of the circumstances,” the superior court denied the

motion.

b. Analysis

Defendant argues his “consent to provide a blood sample

was obtained during his unlawful seizure and detention in

violation of the Fourth Amendment,” and thus “the results of the

blood test and [his] subsequent incriminating statements”

should have been suppressed. We reject defendant’s claim.

“Police contacts with individuals may be placed into three

broad categories ranging from the least to the most intrusive:

consensual encounters that result in no restraint of liberty

whatsoever; detentions, which are seizures of an individual that

are strictly limited in duration, scope, and purpose; and formal

arrests or comparable restraints on an individual’s liberty.” (In

re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)

Defendant concedes that his initial decision to go to the police

station was consensual.4 The primary question we address here

is whether subsequent circumstances transformed the

4

“Consensual encounters do not trigger Fourth

Amendment scrutiny. [Citation.] Unlike detentions, they

require no articulable suspicion that the person has committed

or is about to commit a crime.” (Manuel G., supra, 16 Cal.4th at

p. 821.)

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Opinion of the Court by Guerrero, C. J.

consensual encounter into an unlawful seizure or detention

under the Fourth Amendment. (See People v. Zamudio (2008)

43 Cal.4th 327, 341 (Zamudio) [“Consent that is the product of

an illegal detention is not voluntary and is ineffective to justify

a search or seizure”].)

A person has been seized or detained when a reasonable

person would not feel free to leave or otherwise terminate the

encounter. (People v. Brown (2015) 61 Cal.4th 968, 974, 979–

980; accord, United States v. Mendenhall (1980) 446 U.S. 544,

554 (Mendenhall); People v. Boyer (1989) 48 Cal.3d 247, 267

(Boyer) [“[T]he test of detention under the Fourth Amendment

is whether a reasonable person in the suspect’s position would

have felt free to leave”].)5

5

We have previously described “the test for determining

whether a person was seized under the Fourth Amendment or

was in . . . custody [such that a Miranda advisement is required

as being] essentially the same: whether a reasonable person

would have felt he or she was at liberty to leave or to decline the

officers’ requests” for cooperation. (People v. Kopatz (2015)

61 Cal.4th 62, 80, italics added (Kopatz).) In light of this

overlap, although defendant does not premise his claim on any

alleged violation of Miranda, in addressing his argument we

consider decisions that have addressed similar claims premised

on the Fourth Amendment and alleged violations of a

defendant’s Miranda rights. We need not consider whether

different analyses would be required under other circumstances

not present here. (See People v. Holloway (1990) 50 Cal.3d 1098,

1114–1115 (Holloway) [applying the same analysis to reject a

defendant’s arguments that he was in custody both under the

Fourth Amendment and for purposes of Miranda]; but see

Howes v. Fields (2012) 565 U.S. 499, 509 [“Not all restraints on

freedom of movement amount to custody for purposes of

Miranda. . . . ‘[T]he freedom-of-movement test identifies only a

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PEOPLE v. DEMOLLE

Opinion of the Court by Guerrero, C. J.

Where, as here, a magistrate rules on a motion to suppress

under section 1538.5 raised at a preliminary hearing, the

magistrate “sits as the finder of fact with the power to judge

credibility, resolve conflicts, weigh evidence, and draw

inferences.” (People v. Shafrir (2010) 183 Cal.App.4th 1238,

1244.) The superior court ruling on a subsequent motion under

section 995 sits as a reviewing court, drawing every legitimate

inference in favor of the magistrate’s determination; the

superior court cannot substitute its judgment for that of the

magistrate on issues of credibility or reweigh the evidence. (See

People v. Laiwa (1983) 34 Cal.3d 711, 718.) On review of the

superior court’s ruling, we in effect disregard the ruling of the

superior court and directly review the determination of the

magistrate. (Ibid.; People v. Hawkins (2012) 211 Cal.App.4th

194, 200 [“When a motion to suppress evidence under section

1538.5 is denied at the preliminary hearing and reviewed by the

trial court in a section 995 proceeding, even though the appeal

is from the trial court, we, in effect, review the magistrate’s

decision directly, deferring to the magistrate’s factual

findings”].) We draw all presumptions in favor of the

magistrate’s express or implied factual determinations and

must uphold them if they are supported by substantial evidence

(Laiwa, at p. 718), but we exercise our independent judgment in

determining the ultimate constitutional question of whether a

necessary and not a sufficient condition for Miranda custody’ ”];

People v. Caro (2019) 7 Cal.5th 463, 491 [similar]; People v.

Pilster (2006) 138 Cal.App.4th 1395, 1405 [“Whether an

individual has been unreasonably seized for Fourth Amendment

purposes and whether that individual is in custody for Miranda

purposes are two different issues”].)

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Opinion of the Court by Guerrero, C. J.

seizure occurred within the meaning of the Fourth Amendment.

(Zamudio, supra, 43 Cal.4th at p. 342.)

Applying these standards, we conclude defendant was not

unlawfully detained when he consented to a blood draw.

Preliminarily, the fact that Longmire first encountered

defendant during a neighborhood canvass, while not specifically

looking for him, would have reasonably conveyed to defendant

that he was not a suspect at the time. Moreover, the informal

nature of this first meeting plausibly informed how defendant

perceived Longmire on the day of the interview three days later.

We further agree with defendant’s concession that his

decision to accompany Longmire to the police station for

questioning on August 6 was consensual. After defendant

described an innocuous encounter with the victim, Longmire

asked if defendant was willing to go to the station to

memorialize the statement. The police officer was wearing plain

clothes and displayed no overt sign of authority, e.g., flashing

his badge or firearm. Defendant agreed, and along with his

young daughter, walked freely to the officer’s unmarked vehicle.

Defendant rode in the front passenger seat of the vehicle and

freely walked into the police station behind the police officer

upon arrival. At no point was defendant patted down for

weapons, handcuffed, or subjected to bodily restraints. (See

Kopatz, supra, 61 Cal.4th at p. 80 [in determining whether a

defendant was seized, noting as relevant the fact that “officers

did not handcuff defendant or display any weapons,”

“[d]efendant walked unassisted to the patrol car,” “[t]he officers

did not frisk or search defendant before he entered the patrol

car,” and “[t]he drive to the station was only 10 minutes, and

defendant did not voice any complaints or opposition”].) As in

Zamudio, the evidence in the record here “supports the

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Opinion of the Court by Guerrero, C. J.

conclusion that there was no threat or application of force, no

intimidating movement, no brandishing of weapons, no blocking

of exits, and no command associated with the officers’ request

that defendant come to the police station.” (Zamudio, supra,

43 Cal.4th at p. 344; see ibid. [concluding a defendant was not

detained for Fourth Amendment purposes].)

Nothing occurred at the police station to transform

defendant’s voluntary encounter into a coercive one in which a

reasonable person in defendant’s situation would not feel free to

leave or otherwise terminate the interview.6 Once at the

station, defendant — as the magistrate found — was not

subjected to “hostile, menacing, or accusatory” questioning.

(Zamudio, supra, 43 Cal.4th at p. 345.) Substantial evidence

supports the magistrate’s finding that the questioning was not

accusatory. The transcript of the recorded interview, which the

magistrate reviewed, reveals that after obtaining some

background information from defendant, Longmire began the

questioning by asking defendant to “tell us” “in your words”

“about that evening” that Jaquita disappeared. Defendant

provided lengthy responses, in which he volunteered various

6

We assume for present purposes that activity occurring

after defendant’s consent was first obtained is relevant to our

analysis. (Compare Kopatz, supra, 61 Cal.4th at p. 79 [“the test

for determining if a seizure occurred is whether, ‘ “in view of all

of the circumstances surrounding the incident, a reasonable

person would have believed that he was not free to leave” ’ ”

(italics added)] with People v. 48,715 United States

Currency (1997) 58 Cal.App.4th 1507, 1514 [concluding that a

subsequent detention “did not terminate” a prior consent

because “[e]ven if we were to find the detention here illegal, it

did not produce or lead to the search”].) We conclude that there

was no detention at any juncture here.

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Opinion of the Court by Guerrero, C. J.

details, many of which were not directly elicited by the

questions. Although the officers asked for clarification at times,

they never contradicted defendant’s statements or implied that

they did not believe his account. The officers simply responded

“Okay” or asked another question after defendant gave a

response.

Although defendant claims “the magistrate overlooked the

series of questions Brock asked” defendant, the record does not

support this contention. The magistrate expressly noted having

reviewed the transcript of the recorded interview, and we

decline to speculate that the magistrate overlooked portions of

that interview. And even considering these questions, we are

convinced the magistrate was correct in concluding that the

interview was not “particularly accusatory.”7 Brock prefaced his

questions by asking defendant to “bare [sic] with” his “weird . . .

way of asking questions,” to “do [him] a favor and . . . answer

them like yes and no.” When Brock asked defendant about

Jaquita’s killing directly, he first asked defendant to

“understand the nature of this investigation.” In response to

being asked if he killed Jaquita, defendant answered, “No,” and

Brock simply said, “Okay,” before continuing with the next

question. Defendant exhibited no difference in tone of voice or

the speed at which he responded when answering questions

about Jaquita’s homicide than he did when responding to other

questions. The bulk of the conversation consists of defendant’s

7

To the extent defendant asserts that the police “had

requested to tape-record only” Brock’s “accusatory” or

“adversarial” questioning of him, the record refutes his

assertion. (Italics added.) Longmire’s queries to defendant were

also recorded, and Brock’s questioning did not occur until

14 pages into the 19-page transcript of the recorded interview.

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PEOPLE v. DEMOLLE

Opinion of the Court by Guerrero, C. J.

narrative of his interaction with the victim. Brock briefly asked

defendant twice if he murdered Jaquita; he was never subjected

to extensive questioning, accusations, threats, or intimidation.

(See Zamudio, supra, 43 Cal.4th at p. 345 [“Although the

officers told defendant about the discrepancies between his

statements and his wife’s, they did not make accusations

against him”]; People v. Spears (1991) 228 Cal.App.3d 1, 25–26

[“The tone of the officers throughout the interview was

courteous and polite. At no time did the officers attempt to

threaten or intimidate appellant [citation], nor did they lead

him to believe that he was a suspect in the murder, that they

considered him to be guilty, or that they had the evidence to

prove his guilt in court. [Citation.] In sum, although the

questions were detailed, they were not accusatory in nature”];

People v. Moore (2011) 51 Cal.4th 386, 402 [similar].)

All told, the officers simply accepted defendant’s answers,

made no indication that they disbelieved him, and adopted a

measured, polite tone, at one point phrasing their request for

defendant’s cooperation as “do[ing] [the officer] a favor” by

answering yes-or-no questions. Under these circumstances, a

reasonable person in defendant’s position would have felt free to

leave or otherwise terminate the encounter. (See, e.g., Kopatz,

supra, 61 Cal.4th at p. 81; Holloway, supra, 50 Cal.3d at

p. 1115; Zamudio, supra, 43 Cal.4th at p. 345; see also People v.

Stansbury (1995) 9 Cal.4th 824, 832 (Stansbury) [a Miranda

custody case in which we stated “the nature of the interview in

this case, which was brief and not accusatory, would not convey

to the reasonable person the impression that he or she was in

custody”]; compare Boyer, supra, 48 Cal.3d at p. 268 [concluding

that “the situation quickly ripened into a full-blown arrest

inside the station house” when, among other things, the

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PEOPLE v. DEMOLLE

Opinion of the Court by Guerrero, C. J.

defendant “was subjected to more than an hour of directly

accusatory questioning, in which [the interrogating officer]

repeatedly told him — falsely — that the police knew he was the

killer, had all the necessary evidence, intended to charge him

with the crimes, and would prove his guilt in court”]; People v.

Aguilera (1996) 51 Cal.App.4th 1151, 1163 [“Given the officers’

repeated rejection of defendant’s story, a reasonable person

eventually would have realized that telling the ‘truth’ meant

admitting the officers’ information was correct and explaining

how and why one was involved and that until this ‘truth’ came

out, he or she could not leave”].)8

In addition, the record establishes that defendant

understood he would be going home after his interaction with

the police, as would a reasonable person in his situation. As the

magistrate noted, during a conversation with Longmire at the

doorway of Room 201, defendant asked how long the interview

would take and said he was “having a party the next day and

want[ed] to prepare for the party.” The conversation indicates

defendant expected to go home shortly after the interview, with

time to prepare for a party that would take place the next day.

(See People v. Leonard (2007) 40 Cal.4th 1370, 1401 (Leonard)

[“defendant’s comments [indicating that he felt ‘ “free to go” ’]

8

Defendant also contends the magistrate’s findings should

be rejected because the magistrate erroneously applied a

subjective standard rather than an objective test examining

whether a reasonable person would feel free to leave or end the

questioning. In denying defendant’s motion to suppress,

however, the magistrate specifically stated that it did not think

“a reasonable person would believe himself to be in custody”

under the circumstances — indicating it was applying the

correct, objective test.

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Opinion of the Court by Guerrero, C. J.

reinforce our view that a reasonable person in his position would

have felt free to leave”].)

A reasonable person in the same situation would have

shared defendant’s understanding that he was going home

shortly. As the magistrate observed, the record supports a

finding that “Detective Longmire inform[ed] [defendant] that

they [were] going to take him to the hospital and then take him

home.” During his testimony at the preliminary hearing,

Longmire stated he told defendant that “we were going to tape

the statement and we’d step out and then we would take him

home — to the hospital.”

The parties dispute whether Longmire’s testimony that

they “would take him home” was a misstatement, i.e., whether

Longmire had intended only to say that they “would take

him . . . to the hospital” and immediately corrected himself after

saying they “would take him home.” The Attorney General

argues that, regardless of any ambiguity in Longmire’s

statement, “everyone who was present in court during

Longmire’s preliminary examination testimony, including

defense counsel, understood Longmire to have testified that he

told [defendant] he would take him to the hospital and then

home.” In support, the Attorney General cites numerous

references in defendant’s own trial court briefing reflecting this

understanding. Defendant responds that even if Longmire did

tell defendant that he would take him home, the statement was

made only after defendant’s consent to give blood was obtained

and “Longmire’s statement that he would take him home . . .

[was] conditioned on [defendant’s] consent to make a taped

statement and give a blood sample.”

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Opinion of the Court by Guerrero, C. J.

The record does not support the contention that Longmire

suggested to defendant he would not take defendant home

unless defendant agreed “to make a taped statement and give a

blood sample.” In fact, defendant orally confirmed toward the

end of the recorded interview that he voluntarily consented and

was not coerced. Defendant’s contentions at most amount to an

argument that Longmire gave ambiguous testimony regarding

what he told defendant. But we defer to the magistrate’s

resolution of such facts when, as here, the record supports the

magistrate’s finding. (See Zamudio, supra, 43 Cal.4th at p. 342;

see also People v. Tully (2012) 54 Cal.4th 952, 979 (Tully) [on

review of the denial of a motion to suppress evidence, “ ‘[w]e

view the evidence in a light most favorable to the order denying

the motion to suppress’ ”].) Furthermore, defendant did, in fact,

return home after his trip to the police station and the hospital

for a blood draw. The fact that the officers allowed defendant to

go home after the interview, and remain at large for two days,

tends to corroborate their account of the tenor of their

interactions with defendant as being inconsistent with any

detention. (See Kopatz, supra, 61 Cal.4th at pp. 81–82;

Leonard, supra, 40 Cal.4th at p. 1401; Oregon v. Mathiason

(1977) 429 U.S. 492, 495.)

The magistrate also found it significant that defendant

voluntarily brought his young child to the police station with

him. As the magistrate explained, a reasonable person,

“knowing [a] child . . . had accompanied him to the police

station,” would not “believe himself to be in custody with no

provision being made for the child.” We agree. A reasonable

person would understand that a police station is generally ill

equipped to take care of a young child over an extended period

of time, and the fact that a child was present while the sole

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Opinion of the Court by Guerrero, C. J.

person responsible for her care was being questioned supports

an inference that the questioning would not be prolonged and

the person was free to leave and continue caring for the child.

Defendant disagrees, instead contending that “a person

could reasonably have concluded the police were actually

detaining him and planned to call a relative or even Child

Protective Services to care for his daughter once they were at

the station.” But there was no discussion of any plan to call

Child Protective Services or make any alternative arrangements

for the care of defendant’s child, and the magistrate was not

required to draw the unsupported inference defendant

advances.

Defendant also contends that a “confluence” of additional

factors supports his argument that a reasonable person in his

situation would not have felt free to leave. We disagree with

defendant’s assessment.

First, defendant focuses on his separation from his

daughter during his interview. Defendant asserts “[h]e was not

told he could join his daughter and she was not brought to him,

but instead he was told she was being looked after until the

police put his statement on tape.” “Under those circumstances,”

defendant contends, a reasonable person would feel that “[i]f he

refused to consent or to answer questions, the taping might

never be over, the police would keep him separated from his

daughter, and he would not be free to leave.” But there is no

evidence that the police ever implied defendant would only be

reunited with his daughter if he consented to the blood draw.

When defendant agreed to go to the police station with his

daughter, he was told that she “would either sit in with [him and

Longmire] or sit with somebody watching her.” The fact that his

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Opinion of the Court by Guerrero, C. J.

daughter ended up “sit[ting] with somebody watching her” at

the police station could not have reasonably surprised defendant

or caused a reasonable person in his situation to conclude the

encounter was no longer voluntary and they were no longer free

to leave or cease cooperating. In addition, when defendant

asked about his daughter’s whereabouts and was told that “she

was right there in the office with the secretary and she was fine,”

defendant “seemed to be okay with that” and was not “upset” or

“frustrated.” And the police had previously provided a

reasonable explanation why a three-year-old child would not be

present during the recorded interview, i.e., the police “were

going to record [defendant’s] statement on tape, and oftentimes

children have a difficult time sitting through without making

noises.” This record does not support defendant’s assertion that

a reasonable person in this situation would conclude they would

only be reunited with their child if they consented to a blood

draw.

Second, defendant contends that the provision of Miranda

warnings shortly after he was brought to the station “would

have sent a strong signal that he was being detained.” Whether

a subject was provided with Miranda advisements is one factor

that we consider in analyzing whether the subject was in

custody. (See Boyer, supra, 48 Cal.3d at p. 268 [treating the fact

that the defendant “was informed of his Miranda rights” as a

factor supporting the conclusion that he was under arrest];

Zamudio, supra, 43 Cal.4th at p. 344 [that the “[d]efendant was

not given his Miranda rights” is a circumstance indicating that

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Opinion of the Court by Guerrero, C. J.

he “was not detained within [the] meaning of the Fourth

Amendment”].)9 But it is not dispositive.

We consider on a case-by-case basis whether the giving of

a Miranda warning that is not legally required contributes to a

seizure finding under the Fourth Amendment. (Caldwell v.

State (Fla. 2010) 41 So.3d 188, 202 (Caldwell).) Although “the

reading of Miranda warnings during a consensual police

encounter might add to the coercive nature of that encounter

under at least some circumstances” (ibid.), in this case,

Longmire’s advisement did not transform defendant’s

interaction with law enforcement into a Fourth Amendment

detention.

As discussed, defendant went to the police station

voluntarily and was not detained during the car ride or the walk

to the police station’s homicide section. Defendant arrived at

9

In Stansbury, we disapproved of Boyer to the extent its

language — stating that a defendant “was informed of his

Miranda rights, an indication that the officers themselves

believed the situation might be tantamount to custody” (Boyer,

supra, 48 Cal.3d at p. 268) — “may be read to suggest that an

officer’s subjective focus of suspicion is an independently

relevant factor in establishing custody for the purposes of

Miranda.” (Stansbury, supra, 9 Cal.4th at p. 830, fn. 1.) We

reiterated, however, that “evidence of the officer’s subjective

suspicions or beliefs is relevant . . . ‘if the officer’s views or

beliefs were somehow manifested to the individual under

interrogation and would have affected how a reasonable person

in that position would perceive his or her freedom to leave.’ ”

(Id. at p. 830.) In other words, advising a defendant of his or her

Miranda rights can be relevant in this context not because it

goes to the police officer’s subjective state of mind, but because

it can have the effect of conveying to a reasonable listener, under

a given set of circumstances, that he or she is not free to leave

or otherwise end the encounter with law enforcement.

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Opinion of the Court by Guerrero, C. J.

the police station around 10:55 a.m. and was read his Miranda

rights approximately five minutes thereafter. Accordingly, a

very short period of time elapsed between defendant’s arrival at

the police station and when he was given Miranda warnings.

No substantive questioning took place in the interim.

A reasonable person would have felt free to leave or

terminate the encounter after being Mirandized under the

circumstances presented here. Longmire testified he advised

defendant of his Miranda rights simply as a “prophylactic

measure in the event that [defendant] gave incriminating

information.” Because Longmire did not inform defendant of his

intention, we do not consider Longmire’s “ ‘uncommunicated

state of mind.’ ” (Zamudio, supra, 43 Cal.4th at p. 341; ibid. [“an

‘officer’s uncommunicated state of mind . . . [is] irrelevant’ ”].)

However, Longmire’s other actions — his polite requests, the

tone of the interview he conducted, the nonconfrontational

nature of the questioning, and the fact that he ultimately

allowed defendant to return home — are consistent with his

statement that defendant was not being detained. (See

Stansbury, supra, 9 Cal.4th at p. 830 [“evidence of the officer’s

subjective suspicions or beliefs is relevant . . . ‘if the officer’s

views or beliefs were somehow manifested to the individual

under interrogation and would have affected how a reasonable

person in that position would perceive his or her freedom to

leave’ ”]; Michigan v. Chesternut (1988) 486 U.S. 567, 575, fn. 7;

Caldwell, supra, 41 So.3d at p. 203 [“the circumstances of the

encounter after the warnings indicate that the tenor of the

conversation remained consensual. . . . [The defendant] was

also aware, due to the Miranda warnings, that he had the right

to remain silent”].)

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Third, defendant contends he was “secured in locked

rooms and his movement was thereby restrained.” As

previously noted, defendant was placed in two different

interview rooms. One room was bigger, with a window and

“office-type furniture.” The other was smaller and had no

window. Both rooms were capable of being locked.

The parties center their dispute on whether defendant

knew the rooms were locked. (See Green v. Superior Court

(1985) 40 Cal.3d 126, 134, 135 (Green) [in determining whether

interviews were “ ‘custodial’ ” for Miranda purposes we noted

that a factor favoring the conclusion that the defendant was in

custody is “the interviews took place in a locked room,” but we

then observed that “[t]he record . . . does not reveal whether

defendant realized the room was locked”].) The Attorney

General maintains that the record does not demonstrate

“whether [defendant] knew the interview room doors were

locked.” Defendant, on the other hand, states that his actions —

including his knocking on the door of Room 201 — showed he

did realize he was locked inside the interview rooms.

Even if defendant was aware that the rooms were locked,

however, the fact that he was in a locked room is not enough in

itself to establish that he was detained. (See People v.

Ochoa (1998) 19 Cal.4th 353, 403 [a Miranda custody case in

which we stated “the fact that [the defendant] was questioned

in the police station’s polygraph examination room does not

necessarily require a finding of custody, even if the room was in

a secure area”]; Stansbury, supra, 9 Cal.4th at p. 834 [“although

defendant had been admitted to the jail section of the police

station through locked doors and would have needed assistance

to leave the facility, these facts alone do not establish that he

was in custody”]; In re Kenneth S. (2005) 133 Cal.App.4th 54, 65

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[“While the interview was conducted in a section of the police

station to which the public was not given free access, and

respondent would have required the accompaniment of an

officer to leave, this was insufficient to have led a reasonable

person in respondent’s position to understand that he was in

custody [for Miranda purposes]”].) Here, as in Stansbury,

although defendant was in locked spaces and “would have

needed assistance to leave the facility,” “[t]here is no evidence to

indicate that a reasonable person in his position would feel that

[such] assistance . . . would not be forthcoming.” (Stansbury, at

p. 834.)

Furthermore, the fact that defendant was left alone in the

rooms for brief periods does not mean he was unlawfully

detained. Although Longmire left the interview rooms more

than once, he returned within minutes each time. Even when

he was not present in the room, Longmire was in close proximity

and attentive to defendant, as indicated by the fact that he came

back when defendant knocked. Although defendant argues that

he “could have been knocking for as long as five minutes before

Longmire returned,” the record does not support his argument.

Defendant bases his contention on Longmire’s statement that

“[t]here was a period probably four or five minutes before I

returned to the room where Mr. Demolle knocked on the door

and I came back to answer.” However, Longmire’s statement

was given in response to a question asking, “When during that

period from 11:54 [a.m.] till 12:10 [p.m.] was he not alone?”

After Longmire answered as described above, counsel then

followed up, “So that conversation [at the doorway] occurred

very close to the end of that . . . 16-minute period between 11:54

[a.m.] and 12:10 [p.m.],” and Longmire replied, “Yes.” The

statement defendant relies upon therefore referred to Longmire

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Opinion of the Court by Guerrero, C. J.

returning to the room four or five minutes before 12:10 p.m., in

response to defendant’s knocking. We do not understand

Longmire’s statement to mean that defendant was knocking for

four or five minutes before Longmire responded.

Moreover, there is no indication that Longmire “would not

have let defendant leave during that period [that he was in a

locked room alone] — even to go to the bathroom — without

having first” obtained authorization from someone else. (Green,

supra, 40 Cal.3d at p. 136.) Given the other circumstances

associated with defendant’s presence at the police station, a

reasonable person would not have felt that “assistance in

leaving the facility would not be forthcoming” simply because

Longmire (and Brock) had momentarily left the interview

rooms. (Stansbury, supra, 9 Cal.4th at p. 834.)

Fourth, defendant contends that he was never told “he

could leave at any time, or that he had a right to refuse his

consent.” This argument does little to advance defendant’s case.

We do not understand defendant as arguing that his consent

was actually involuntary. Instead, his claim remains that his

consent was the product of an illegal detention. Insofar as the

failure to inform defendant that he could leave or refuse the

officers’ requests is relevant to the Fourth Amendment inquiry,

we conclude that in light of the other surrounding

circumstances, the absence of such an advisement does not

compel the conclusion that he was detained. (See Zamudio,

supra, 43 Cal.4th at p. 346 [explaining that while the

“defendant also notes that the officers never told him he did not

have to talk or go with them, or that he was free to leave” the

United States Supreme Court “has ‘rejected . . . the suggestion

that police officers must always inform citizens of their right to

refuse’ police requests” and “[n]o ‘presumption of invalidity

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attaches if a citizen consented without explicit notification that

he or she was free to refuse to cooperate’ ”] see also Mendenhall,

supra, 446 U.S. at p. 555 [“Our conclusion that no seizure

occurred is not affected by the fact that the respondent was not

expressly told by the agents that she was free to decline to

cooperate with their inquiry, for the voluntariness of her

responses does not depend upon her having been so

informed”].)10

In sum, we conclude that defendant’s encounter with the

police on August 6 was consensual and he was not illegally

detained when he consented to have his blood drawn.

Accordingly, his motion to suppress was properly denied.

2. Alleged juror bias

a. Background

Defendant raises several claims relating to the alleged

bias of Juror No. 7. During voir dire, the trial court impressed

10

Furthermore, the record supports the conclusion that

defendant did, in fact, know that “he had a right to refuse his

consent,” as he exercised that right earlier in the interview. (See

United States v. Drayton (2002) 536 U.S. 194, 206 [“ ‘knowledge

of the right to refuse consent is one factor to be taken into

account’ ” when assessing whether a suspicionless search was

voluntary]; People v. Ledesma (2006) 39 Cal.4th 641, 704.)

When Longmire first asked for defendant’s consent to do a blood

draw, defendant declined, and the interview proceeded in the

same manner as before. When defendant subsequently agreed

to a blood draw, he stated that although he did not like needles,

he had “no problems [giving blood] if that’s going [to] . . . help

out.” These circumstances support the conclusion that

defendant knew he could refuse to give his consent without

consequence, and that when he consented, he did so to “help out”

rather than because he reasonably thought he would be

detained until he agreed to the blood draw.

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upon prospective jurors the need to be fair, and as part of its

effort, gave an example of a case where the court recused itself

after concluding it could not be fair in a particular case. The

court told panels of the venire some version of the following:

“I’m starting my 24th year now as a judge and I’ve tried

hundreds of cases, all in the criminal area, and I’ve seen the

worst of the worst. However, I’m also an animal lover. One of

the first cases I was given had to do with a case that dealt with

cruelty to animals. While we were putting on this hearing and

I’m sitting there and I’m already figuring what I’m going to

sentence this person to before anybody ever found him guilty. I

realized that and so I called the lawyers together and I said, you

know what? You need to try this before somebody else because

I’m not going to be able to be fair. I recused myself and the case

went somewhere. To this day, I will not take a case that deals

with that. Now, I can handle a lot of other different types of

cases, but that’s just one based on the way I perceive things and

how I feel about things that I know I can’t be fair.”

In her oral examination, Juror No. 7 confirmed her ability

to be fair in the present case although it involved the rape and

killing of an 11-year-old girl, and the juror taught kindergarten

through eighth grade students. The juror said, “I feel that every

human life is important. So to me, kid, child, adult, doesn’t

really matter.” However, she continued, “If this was an animal

case, I absolutely would have a problem with an animal. I

volunteer at an animal shelter and I [don’t] know whether it’s

right or wrong, it just would really bother me if it was . . . I don’t

think I could be impartial if it came to an animal.” Defense

counsel subsequently discussed this topic with Juror No. 7,

asking, “You indicated . . . that you could be impartial in this

case. But if it were an animal involved, you might not be

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impartial.” Juror No. 7 confirmed, “I just love animals. And

they just have a different place in my heart than, I guess, people

do. They don’t always get . . . . I think it’s hard for me because

I work at a shelter that I feel bad for them.” Juror No. 7 also

stated that “growing up,” she “always had several dogs,”

“[s]ometimes hamsters,” and “[o]ne time chickens.”

During the guilt phase, one of the witnesses, Delores Hill,

testified to defendant’s activities around the time Jaquita went

missing. Hill stated defendant was “hanging out in front,

playing with his BB gun or playing music.” When the prosecutor

followed up by inquiring, “You say playing with a BB gun, what

do you mean about that,” Hill responded that defendant “had a

BB gun that he would play with. He would shoot at the fence or

in the air, shoot at birds, things like that.” (Italics added.) With

the jury still present, defense counsel moved to strike the

testimony about shooting at birds and stated defendant never

“hit a bird.” The trial court granted the motion. Upon cross-

examination of Hill, defense counsel elicited from her that

“during the entire time [Hill] knew [defendant]” she had not

known him “to do physical harm to any living creature, animal,

fish, person, anybody, anything,” “[n]ot even an ant.”

Out of the presence of the jury, defense counsel moved for

a mistrial or “alternatively . . . taking Juror Number Seven off

the panel [and] replacing her with an alternate.” In support of

his motion, counsel asserted that when the prosecutor “asked

the question about shooting at the birds, [Juror No. 7] was

crying after she heard that.” The trial court disputed defense

counsel’s observation, stating “I’ve been observing this juror

pretty closely and . . . I didn’t see her crying and I didn’t see

her . . . stop taking notes [or] . . . do anything other than [what]

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she’s been doing. She sits closest to me and I did not observe

any unusual behavior on her part.”

The prosecutor, too, stated he did not see Juror No. 7

display any unusual behavior. The prosecutor also explained

his purpose for eliciting Hill’s testimony. First, the prosecutor

wanted to “establish that in the . . . hours leading up to the

offense, that the defendant was his normal, happy self,”

engaging in “normal activities,” “to counter any kind of claim

later that something was wrong with him medically or

physically that day because he was vomiting.” Second, the

prosecutor intended to lay a foundation to rebut, as necessary,

defendant’s statement that he had never seen Jaquita before the

day he raped and killed her. According to the prosecutor,

Jaquita had told one of her classmates about “this weird

neighbor [who] would shoot at birds with his BB gun” and “that

weird neighbor had tried to talk to her . . . and she . . . rebuffed

him.” The prosecutor was uncertain that he would pursue the

issue with the classmate but wanted to have the information

“out there, depending upon what develops.” Ultimately, the

prosecution did not introduce any further testimony involving

defendant shooting at birds.

The trial court denied the motion for a mistrial and,

implicitly, the motion to replace Juror No. 7. In its ruling, the

court emphasized that it had stricken the testimony, that jurors

would be instructed “to treat [the stricken testimony] as [if] they

haven’t heard it,” that defense counsel “got the same witness to

testify she never saw [defendant] hurt anything,” and the court

did not observe any signs of emotional distress on the part of the

juror. Nonetheless, the court stated it “will consider any

[special] instruction” on the issue that counsel wished to

propose. The court, however, cautioned the defense to “keep[] in

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mind that counsel” acted “at their own risk draw[ing] attention

to something that’s not that big a deal probably in light of the

crime that’s been charged and the circumstances of the crime.”

The subject of defendant shooting at birds was not

mentioned again in front of the jury, and defense counsel did not

propose any special instruction concerning the issue. At the end

of both the guilt and penalty phases, the court included in its

instructions CALJIC No. 1.02, which in relevant part states, “Do

not consider for any purpose any offer of evidence that was

rejected, or any evidence that was stricken by the court; treat it

as though you had never heard of it.” The court also instructed

the jury with the standard instructions that directed jurors to

“accept and follow the law,” not to be influenced by prejudice,

and to base their deliberations “solely upon the evidence

properly admitted during the trial.”

b. Analysis

Defendant argues the trial court committed reversible

error in (1) denying his motion for a mistrial, (2) refusing to

discharge Juror No. 7, and (3) failing to conduct an adequate

inquiry to determine whether Juror No. 7 should have been

discharged.

i. Mistrial

“[A] mistrial should be granted ‘only when “ ‘a party’s

chances of receiving a fair trial have been irreparably

damaged.’ ” ’ ” (People v. Burgener (2003) 29 Cal.4th 833, 873

(Burgener).) In addition, “ ‘ “A mistrial should be granted if the

court is apprised of prejudice that it judges incurable by

admonition or instruction. [Citation.] Whether a particular

incident is incurably prejudicial is by its nature a speculative

matter, and the trial court is vested with considerable discretion

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in ruling on mistrial motions.” ’ ” (People v. Lucero (2000)

23 Cal.4th 692, 713–714 (Lucero); accord, People v. Jablonski

(2006) 37 Cal.4th 774, 828 (Jablonski) [“Denial of a motion for a

mistrial is reviewed for abuse of discretion”].)

We agree with the Attorney General that the trial court

acted within its discretion in concluding that the challenged

testimony here — that defendant used his BB gun to “shoot at

birds” — did not irreparably damage defendant’s ability to

receive a fair trial (see Burgener, supra, 29 Cal.4th at p. 873) or

result in incurable prejudice to defendant (see Lucero, supra,

23 Cal.4th at p. 714). The testimony was brief, and it was

immediately stricken by the trial court. The court later

instructed the jury to consider only evidence that was properly

admitted, and not to let prejudice affect its decision. We

presume the jury followed these instructions. (People v. Beck

and Cruz (2019) 8 Cal.5th 548, 634.) Under these

circumstances, the trial court did not abuse its considerable

discretion in denying defendant’s mistrial motion. (See People

v. Johnson (2015) 61 Cal.4th 734, 764–765 [defendant failed to

show that testimony describing someone as his “ ‘henchman’ ”

caused him incurable prejudice, where testimony was fleeting

and stricken by the trial court]; Burgener, at p. 874 [“We do not

agree the isolated references to an escape, immediately followed

by an admonition to disregard them, mandated a mistrial”]; id.

at pp. 875–876 [same, regarding evidence of an uncharged

shooting]; People v. Marshall (1996) 13 Cal.4th 799, 839

[upholding the trial court’s denial of a mistrial motion when the

court inadvertently failed to strike a statement because “at no

time during the subsequent progress of the trial was the jury’s

attention recalled to the statement, whether by an (undesired)

admonishment, argument of counsel, or otherwise”; the

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statement was “amply rebutted”; and “the jury was not told a

damaging falsehood”]; People v. Cooper (1991) 53 Cal.3d 771,

838 [when the challenged evidence “was withdrawn, and the

jury admonished to disregard it,” the “danger of prejudice” is

“reduc[ed]”].)

Defendant nonetheless contends that the testimony here

had a prejudicial impact because of Juror No. 7’s particular love

of animals. He reasons that the testimony that was elicited

“would trigger [this] specific juror’s previously-declared bias and

thus impede her ability to be impartial.” We reject defendant’s

claim that Juror No. 7 was unable to be impartial in this case.

After the trial court discussed a case involving animal cruelty,

Juror No. 7 indicated that she “would have a problem” with an

“animal case.” But defendant’s capital trial did not require the

jury to determine any issues involving defendant’s treatment of

animals, and the court could have readily deemed this capital

matter as not amounting to an “animal case.” Far from

evidencing bias, as the trial court and the prosecutor observed,

Juror No. 7 appeared unaffected by the testimony that

defendant shot at birds. (Cf. People v. Ramirez (2006) 39 Cal.4th

398, 461; People v. Beeler (1995) 9 Cal.4th 953, 989 (Beeler)

[stating that “the trial court was in the best position to observe

the juror’s demeanor” in determining whether to discharge the

juror].)

Contrary to defendant’s assertion, the trial court did not

abuse its discretion by considering Juror No. 7’s reaction and

noting that it did not observe Juror No. 7 crying or acting

abnormally when Hill testified that defendant shot at birds.

Defendant claims the trial court abused its discretion by “simply

rel[ying] on its own observations of Juror [No.] 7’s demeanor”

and failing to consider “the state of mind of the juror and not the

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judge” in ruling on the mistrial motion. But not only is it

appropriate for the court to make such an observation (People v.

Ramirez, supra, 39 Cal.4th at p. 461; Beeler, supra, 9 Cal.4th at

p. 989), the court also made clear the information was relevant

because defense counsel had made a contrary assertion. It was

defense counsel who first contended that Juror No. 7 “was

crying after she heard” Hill’s testimony. The court disputed the

accuracy of counsel’s statement, remarking, “[Juror No. 7] sits

closest to me and I did not observe any unusual behavior on her

part.” Although the court later “reiterat[ed]” its observation, it

did not deny defendant’s mistrial motion on that basis alone.

Instead, the court emphasized that it had stricken the testimony

and would inform jurors “that a motion to strike means to treat

[the testimony] as [though] they haven’t heard it.”

Further, although stopping short of accusing the

prosecutor of misconduct, defendant contends the prosecutor

“intentionally elicited the prejudicial testimony.” Defendant

does not explain how this framing materially alters the analysis.

We have found that even when “the prosecutor’s questions

elicited [the] defendant’s [inappropriate] testimony” and “the

prosecutor’s questions were improper,” that circumstance is not

a ground in itself to find that a court “abuse[d] its discretion in

denying [a] mistrial motion.” (People v. O’Malley (2016)

62 Cal.4th 944, 998–999 (O’Malley).) Ultimately, defendant’s

contention that the prosecutor acted deliberately does not

persuade us that the trial court erred in denying defendant’s

motion for mistrial.

Defendant further argues that the instruction to disregard

the stricken testimony could not have cured the prejudice

caused by Hill’s testimony. (See Lucero, supra, 23 Cal.4th at

p. 713 [“ ‘ “A mistrial should be granted if the court is apprised

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of prejudice that it judges incurable by admonition or

instruction” ’ ”].) “There is a difference,” defendant contends,

“between instructing the jury generally that improperly

admitted evidence should be ignored and attempting to cure an

individual juror’s personal biases with such an instruction.”

Defendant’s argument presupposes that Juror No. 7 was

personally biased against defendant because of Hill’s testimony.

As discussed, the trial court acted well within its discretion in

rejecting defendant’s argument. (See People v. Chatman (2006)

38 Cal.4th 344, 369–370 [“Whether a particular incident is

incurably prejudicial requires a nuanced, fact-based analysis”

that “is entrusted [to the trial court’s] broad discretion”].)

Defendant also observes that the trial court “cautioned

[defense] counsel multiple times that . . . an instruction”

directing the jury to disregard Hill’s testimony “would only

highlight [the] prejudicial testimony.” According to defendant,

the court’s statement demonstrates that “the trial court itself

had grave doubts as to whether the prejudice was curable by

instruction.” Defendant misreads the record. While the court

told defense counsel that a special instruction would be “at

[counsel’s] own risk,” the court reasoned the “risk” was that

counsel may “draw[] attention to something that’s not that big a

deal.” The court did not imply that the stricken testimony was

prejudicial, or that the jury would be unable to comply with an

instruction to disregard the testimony. (See People v.

Panah (2005) 35 Cal.4th 395, 454 [presuming that the jury

followed the trial court’s admonition even when the admonition

was “not to watch television” and “[d]efense counsel

characterized [the idea that jurors followed the instruction] as

‘wishful thinking’ and moved for a mistrial”]; O’Malley, supra,

62 Cal.4th at p. 999 [the challenged testimony “was not so

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necessarily prejudicial that we should set aside the normal

presumption that the jury followed the court’s admonition”].)

We conclude the isolated comment regarding defendant

using his BB gun to shoot at birds did not mandate a mistrial.

The challenged testimony was brief (consisting of three words in

total); isolated (no other mention of defendant shooting at birds

was made during the remainder of the trial); explained away (by

the witness’s statement she had never seen defendant hurt any

animals); and stricken from the record (immediately after the

testimony was offered and the defense objected); also, jurors

were twice instructed to treat the testimony “as though [they]

had never heard of it.” (CALJIC No. 1.02.)

Because we conclude the trial court could reasonably find

that defendant’s chances of receiving a fair trial were not

irreparably damaged by the testimony regarding his shooting at

birds, we also conclude the court’s denial of the mistrial motion

did not violate defendant’s right to due process and to a fair and

reliable penalty determination. (See People v. Bolden (2002)

29 Cal.4th 515, 555 [finding no due process violation in a trial

court’s denial of a mistrial motion based on a brief reference to

a defendant’s parole status; the challenged testimony “was not

significant in the context of the entire guilt trial, and the trial

court did not abuse its discretion in ruling that defendant’s

chances of receiving a fair trial had not been irreparably

damaged”].)

ii. Discharge of juror

Defendant argues that the trial court erred in failing to

discharge Juror No. 7 pursuant to section 1089, which provides

in relevant part, “If at any time, whether before or after the final

submission of the case to the jury, a juror . . . upon other good

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cause shown to the court is found to be unable to perform his or

her duty, . . . the court may order the juror to be

discharged . . . .”

“ ‘Before an appellate court will find error in failing to

excuse a seated juror, the juror’s inability to perform a juror’s

functions must be shown by the record to be a “demonstrable

reality.” The court will not presume bias, and will uphold the

trial court’s exercise of discretion on whether a seated juror

should be discharged for good cause under section 1089 if

supported by substantial evidence.’ ” (Jablonski, supra,

37 Cal.4th at p. 807.)

We conclude the trial court’s decision to retain Juror No. 7

is supported by substantial evidence that the juror did not

display actual bias against defendant and was able to be

impartial in this case. As discussed, the testimony regarding

defendant’s shooting at birds did not turn this capital matter

into an animal-related case. Juror No. 7 stated, “If this was an

animal case, I absolutely would have a problem with an animal,”

after hearing the court discuss a case involving animal cruelty.

Against that backdrop, the trial court could have reasonably

understood the juror’s inability to be impartial as triggered only

when the matter at hand involved charges of animal

mistreatment — not when, as here, there was a single remark

about defendant shooting at birds with a BB gun. Moreover, in

the context of a capital trial for the murder of an 11-year-old girl,

it is hard to imagine that even a staunch animal lover would

have been distracted by a brief, immediately struck, and

promptly rebutted statement that defendant would “shoot at

birds.”

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Because the trial court could have reasonably determined

that Juror No. 7’s inability to perform the functions of a juror

was not shown to be a demonstrable reality, there was no error

in failing to discharge her. (See People v. Martinez (2010)

47 Cal.4th 911, 943 [upholding the trial court’s decision not to

discharge a juror when “[t]he record before us does not show that

[the juror’s] interaction with [an investigator working for the

District Attorney] caused her to learn more about defendant’s

juvenile record” and “[t]herefore, defendant fails to show that

she was unable to fulfill her functions as a juror”]; Jablonski,

supra, 37 Cal.4th at p. 807; Beeler, supra, 9 Cal.4th at p. 989.)

In maintaining that the trial court abused its discretion in

failing to discharge Juror No. 7, defendant again argues that the

court should have declared a mistrial and contends that

“Juror 7’s statements unequivocally demonstrate that she

would have been subject to a challenge for cause [during jury

selection] had the defense known that the prosecutor intended

to present evidence showing [defendant] spent his days shooting

at birds . . . and based on the record, such challenge would have

been granted.” But whether defense counsel would have

challenged Juror No. 7 for cause is not dispositive of whether

Juror No. 7 harbored bias. It does not affect our substantial

evidence analysis nor alter our conclusion that the evidence

supports the trial court’s decision to retain the juror.

iii. Failure to conduct further inquiry

While maintaining that the record “clearly indicates”

Juror No. 7 was subject to dismissal, defendant argues in the

alternative that if we find “the record is insufficient to establish

that Juror 7 was actually biased,” then we should conclude “the

trial court committed reversible error” “in failing to conduct any

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inquiry into the juror’s state of mind before denying the motion

for her discharge.” Because “no trial court action by the defense

[is] required to preserve [a] claim” that “the trial court erred by

failing, sua sponte, to conduct an adequate inquiry” in this

respect, we review defendant’s contention despite his failure to

request an inquiry at trial. (People v. Cowan (2010) 50 Cal.4th

401, 506–507 (Cowan).)

“The decision whether to investigate the possibility of

juror bias, incompetence, or misconduct . . . rests within the

sound discretion of the trial court. [Citation.] The court does

not abuse its discretion simply because it fails to investigate any

and all new information obtained about a juror during trial. [¶]

As our cases make clear, a hearing is required only where the

court possesses information which, if proven to be true, would

constitute ‘good cause’ to doubt a juror’s ability to perform his

duties and would justify his removal from the case.” (People v.

Ray (1996) 13 Cal.4th 313, 343 (Ray).)

We conclude that defendant has not pointed to any

information possessed by the trial court that, “if proven to be

true,” would establish that Juror No. 7 was biased against him.

(Ray, supra, 13 Cal.4th at p. 343.) Defendant simply relies on

the juror’s voir dire answers and Hill’s testimony that defendant

shot at birds to assert “the trial court was aware that Juror 7

might not be able to remain fair and impartial.” The court heard

Juror No. 7’s voir dire responses and Hill’s challenged

statement, and it observed Juror No. 7’s demeanor after hearing

Hill’s testimony. Based on this evidence, the court struck Hill’s

statement but declined to declare a mistrial or discharge Juror

No. 7.

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This record fails to establish the trial court abused its

discretion by not inquiring further into Juror No. 7’s ability to

deliberate fairly. This case is analogous to others in which we

have upheld a trial court’s decision not to conduct such inquiries.

In Cowan, for example, the court had information that a juror

was sitting “ ‘right next’ ” to two of the defendant’s family

members who were also witnesses and who were talking with

one another. (Cowan, supra, 50 Cal.4th at p. 504; see id. at

p. 507.) The defendant there argued the trial court should have

“conduct[ed] an investigation adequate to determine if Juror

No. 045829 had been speaking with defendant’s family members

or had overheard anything connected with the trial.” (Id. at

p. 505.) We found no merit to the claim, reasoning that “[a]t

best, the trial court possessed ambiguous information

suggesting that Juror No. 045829 may or may not have been

talking to defendant’s relatives who also were witnesses at the

penalty phase.” (Id. at p. 507.) Given such “ambiguous

information,” “the court reasonably could have concluded that

there were no grounds for believing good cause to excuse Juror

No. 045829 might exist.” (Id. at pp. 507, 508.)

Similarly, in People v. Osband (1996) 13 Cal.4th 622, 675,

jurors may have been exposed to statements extraneous to the

record, as “two police officers were discussing material

contained in their police reports . . . in the hallway where jurors

could overhear them.” The defendant complained, and the court

admonished the jury “ ‘not to consider anything that’s said

outside the courtroom.’ ” (Ibid.) On appeal, the defendant

contended the court should have gone further and investigated

because jurors “might have heard a discussion so prejudicial

that no admonition could cure it.” (Ibid.) We rejected the claim.

We found the court did not have any information that would

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obligate it to inquire further, and “any prejudice that may have

arisen [from the jurors overhearing the officers] was cured by

events immediately following defendant’s complaint to the

court, which strictly admonished the jurors not to consider

anything they might hear beyond the witness stand.” (Id. at

p. 676; see also People v. Bradford (1997) 15 Cal.4th 1229, 1349

(Bradford) [concluding it was “apparent the trial court

reasonably determined that a further interruption in the

proceedings to address the matter [of a juror sleeping during two

days of trial] was not justified by the conduct thus far exhibited

by the juror” and that “the trial court did not abuse its discretion

by not conducting an inquiry”]; Ray, supra, 13 Cal.4th at p. 344

[affirming a trial court’s decision not to conduct a further

inquiry when the court learned that one of the jurors worked at

the same high school attended by a victim’s daughter].)

We thus conclude the court did not err by failing to conduct

a sua sponte inquiry regarding Juror No. 7’s ability to remain

impartial after Hill’s brief and isolated testimony.

3. Admission of testimony regarding extramarital

affair

a. Background

Defendant argues the trial court prejudicially erred by

allowing Hill, defendant’s neighbor, to testify that she had an

extramarital relationship with him. As previously explained,

Hill testified that she had lent defendant her car, which he then

used to transport and dump Jaquita’s body. After providing his

recorded statement to the police, defendant told Hill he could

not have killed Jaquita because “he didn’t have time to commit

a crime like that.” According to Hill, defendant explained that

strangling someone “takes a long time,” “30, 45 minutes,

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sometimes up to an hour.” Hill did not report this statement to

law enforcement until September 2006, shortly before

defendant’s trial began, even though she reported defendant’s

borrowing of her car as soon as the police arrested him in August

1999.11

The prosecution filed a pretrial motion seeking permission

to introduce at trial the fact that Hill and defendant, who was

married, had sexual relations. The prosecution argued the

sexual relationship was relevant to explain (1) why defendant

told Hill he could not have killed Jaquita, and (2) why Hill did

not immediately report the information to the police. The

defense objected, stating that the evidence was irrelevant and

unduly prejudicial. The defense characterized the “affair” as

“very minor,” noting Hill and defendant “two times . . . had some

intimacy, but . . . they were very quick and not very

meaningful.” According to the defense, because the jury was

going to learn that Hill was “a neighbor” and “a good friend,” it

did not need to know other details of her relationship with

defendant.

After considering the parties’ respective arguments, the

court ruled it would not permit the prosecution to introduce the

fact that defendant had extramarital affairs with multiple

women. However, the court stated it would allow Hill to testify

about her affair with defendant. The court found defendant’s

“relationship with Ms. Hill [to be] probative as to her motive for

11

Defendant states that Hill disclosed the information eight

years after his arrest. The record shows that a period of about

seven years and one month had elapsed in between defendant’s

arrest and when Hill related to law enforcement the substance

of her conversation with defendant.

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why she said what she said and when she said it.” Regarding

prejudice, the court referenced former president Bill Clinton and

stated that in its view, “in this day and time a short-term

extramarital affair is not going to cast somebody in such a

negative light that it’s going to inflame or impassion the jury

against the defendant.” The court thus found that “the

probative value [of Hill’s relationship with defendant] outweighs

the prejudicial effect insofar as it goes to her interest, bias or

motive for telling the police [officer] what she told him and when

she told him.” The court indicated that it “would be open to a

limiting instruction to be given to the jury” concerning the

proper purposes for which jurors could consider Hill’s testimony.

At trial, the prosecution elicited from Hill details

concerning defendant’s activities on the day that Jaquita went

missing and shortly thereafter. Hill testified that she was

defendant’s next-door neighbor, that she was home on the day

of Jaquita’s disappearance, and that as it got dark that day, she

heard music from defendant’s apartment being turned up in

volume and put on repeat play. Around this time, Hill also

heard a “very loud” noise from defendant’s apartment “that

woke [her] up,” but when she went to check, defendant told her

he did not hear any noise and she should “go back to sleep.” A

short time later, defendant came to Hill’s apartment, “hyper,”

“in a rush,” and asked to borrow her car so that he could visit a

sick aunt. Hill lent defendant her car, and he left and came back

in about 20 minutes, at which point “[h]e was calm like

everything was okay.” Hill further testified that she talked to

the police the day that defendant was arrested and told officers

about lending defendant her car and hearing the loud noise.

Hill also provided an account of events that occurred after

Jaquita was killed. Hill testified that the day before he was

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arrested, defendant told her about his trip to the police station

to give a memorialized statement. During this conversation,

defendant denied his involvement in Jaquita’s killing, stating,

“[I]t couldn’t have been him, because he didn’t have time to

commit a crime like that.” Defendant asked Hill if she knew

“how long it takes to actually choke somebody.” When Hill said

she did not, defendant explained “that it’s a lot longer than what

they think it is on T.V. It’s not just a couple minutes.” As

defendant related to Hill, “you have to choke them and then they

pass out first. And then after that, their heart is still beating so

you have to keep choking them until their heart stop[s]. . . . [I]t

takes a long time . . . 30, 45 minutes, sometimes up to an hour

to do it.” Hill testified she told a friend what defendant said to

her.

The prosecutor elicited from Hill that when she talked to

the police after defendant’s arrest, she did not disclose what

defendant said about the time that it takes to choke someone,

and in fact, withheld the information for seven years. When

asked why she did not come forward with the information

earlier, Hill responded, “I didn’t want to really be tied into it like

that. I didn’t want to be, you know, like — like I had something

to do with it or [was] involved or knew something more . . .

because I had contacts, sexual contact, with [defendant], I didn’t

want that out there. So I just didn’t say anything at that time.”

The prosecutor clarified that Hill was “worried” that, because of

her sexual relationship with defendant, “somebody might think

[¶] . . . [¶] that [she] had involvement in this [crime].”

Regarding the “sexual contact” between Hill and

defendant, Hill had earlier testified that she had two sexual

encounters with defendant “a few months prior” to Jaquita’s

disappearance. The sexual nature of the relationship evidently

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ceased after the second incident, and Hill was “okay . . . talking

with [defendant] and interacting with him” afterward.

After Hill’s testimony concluded, the defense explained it

did not want a limiting instruction because it “felt [an

instruction] would unduly emphasize the fact that [defendant]

cheated on his wife and therefore, it would be better just to let

it go.” Accordingly, no instruction was given on this subject.

b. Analysis

Defendant contends the trial court erred in not finding

evidence of his extramarital relationship inadmissible either

because it was irrelevant or because it should have been

excluded under Evidence Code section 352. We review the trial

court’s decision to admit Hill’s testimony for abuse of discretion.

(See, e.g., People v. Scott (2011) 52 Cal.4th 452, 491.)

As the trial court noted, the fact that defendant and Hill

had a sexual relationship was relevant to Hill’s credibility on the

stand, including her testimony that defendant told her it takes

“30, 45 minutes, sometimes up to an hour” to fatally choke

someone.12 In particular, defendant’s and Hill’s intimate

relationship could have bolstered Hill’s credibility by explaining

12

The time it takes to manually strangle someone is, in turn,

relevant to establish the elements of premeditation and intent

to kill. (See, e.g., People v. Lucero (1988) 44 Cal.3d 1006, 1020

[“While ligature strangulation may not always evidence a

premeditated murder [citation], the jury could have viewed the

strangulation as a deliberate manner of killing sufficient to

indicate a ‘preconceived design’ ”].) Because defendant pleaded

not guilty at trial, the People were “obliged to present during the

guilt phase competent, admissible evidence establishing the

essential elements of the crimes with which [he] was charged.”

(Florida v. Nixon (2004) 543 U.S. 175, 188.)

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why defendant “would say these things” to her and why she did

not disclose the information to the police for seven years.

Although defendant maintains he and Hill were friends, thus

explaining why he would have this conversation with her, one

could reasonably conclude that friends who had a sexual

relationship were more likely to confide in each other. Their

relationship was also relevant to explain why Hill refrained

from telling the police about defendant’s statements. Hill

testified she was concerned that if people knew what defendant

had told her and knew that she and defendant had a sexual

relationship, they would think she was involved in the crime.

The trial court therefore did not err in concluding that

Hill’s sexual contact with defendant was relevant. (See Evid.

Code, §§ 210 [“ ‘Relevant evidence’ means evidence, including

evidence relevant to the credibility of a witness or hearsay

declarant, having any tendency in reason to prove or disprove

any disputed fact that is of consequence to the determination of

the action” (italics added)]; 780 [identifying a nonexhaustive list

of factors “the court or jury may consider in determining the

credibility of a witness,” including “[t]he existence or

nonexistence of a bias, interest, or other motive”]; People v.

Harris (2005) 37 Cal.4th 310, 337 [“In determining the

credibility of a witness, the jury may consider any matter that

has a tendency in reason to prove or disprove the truthfulness

of his testimony at the hearing, including but not limited to: . . .

the existence or nonexistence of a bias, interest, or other

motive; . . . and his admission of untruthfulness”]; People v.

Sweeney (1960) 55 Cal.2d 27, 41 (Sweeney) [“The challenged

evidence was properly admissible as bearing on the interest and

bias of [a witness] and was not rendered improper because it

disclosed defendant’s extramarital relationship. The state of

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mind of a witness as to bias, prejudice, interest involved,

friendship or hostility toward a party are all proper subjects for

investigation in the trial of a case”].)

Moreover, the trial court did not abuse its discretion in

finding that the probative value of the evidence was not

substantially outweighed by the possibility of undue prejudice.

(See Evid. Code, § 352.) Section 352 of the Evidence Code

“authorizes the exclusion of evidence by the trial court when its

probative value is ‘substantially outweighed by the probability

that its admission will (a) necessitate undue consumption of

time or (b) create substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury.’ The ‘undue

prejudice’ that Evidence Code section 352 is concerned with ‘ “is

that which ‘ “ ‘uniquely tends to evoke an emotional bias against

the defendant as an individual and which has very little effect

on the issues.’ ” ’ ” ’ ” (People v. Pineda (2022) 13 Cal.5th 186,

222 (Pineda).) Hill’s testimony on the subject of the sexual

relationship was brief, amounting to about two pages of

transcript in testimony that spanned over 30 pages. The affair

itself was of limited duration. In concluding that evidence of

such “a short-term extramarital affair” was not so unduly

prejudicial as to require its exclusion, the court expressly stated

it had weighed the probative value of the evidence against any

prejudicial effect, indicated it would consider a limiting

instruction, and excluded evidence of defendant’s other

extramarital affairs. In sum, the court conscientiously

considered the issue and acted within its discretion in admitting

Hill’s testimony. (See Sweeney, supra, 55 Cal.2d at pp. 41–42

[“ ‘[The] admission of . . . evidence [bearing on the interest and

bias of a witness] is error only where it bears no materiality to

the issues involved in the case’ ”].)

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Defendant fails to advance a persuasive basis to conclude

the trial court erred in admitting the challenged testimony.

Defendant asserts that People v. Houston (2005)

130 Cal.App.4th 279, a case the prosecution cited to the trial

court, is distinguishable from the circumstances of his case. In

Houston, we affirmed the trial court’s decision to permit two

witnesses to each testify “at trial that she had had an affair with

[the defendant] during [the defendant’s] marriage to [his wife],”

whom he was charged with having murdered. (Id. at p. 285; see

id. at p. 283.) We concluded that the trial court did not abuse

its discretion “pursuant to [Evidence Code] section 352 in

admitting any of the extramarital affairs evidence.” (Id. at

p. 308.) We do not need to resolve whether Houston is

instructive in the matter before us. Regardless of whether

Houston is on all fours with this case, the trial court did not rely

on Houston in making its ruling, and neither do we.

Defendant also contends that the reliability of Hill’s

testimony could have been corroborated in other ways, including

by calling to the stand Hill’s friend with whom she shared the

conversation she had with defendant. But the possibility that

other testimony might have served a similar purpose does not

establish that the trial court abused its discretion in admitting

evidence of Hill’s and defendant’s relationship. (See People v.

Zambrano (2007) 41 Cal.4th 1082, 1138 [“where, as here, the

prosecution must convince the fact finder, beyond reasonable

doubt, of charges and allegations the defendant has not

conceded, it need not sanitize its case by presenting only enough

evidence to meet bare legal sufficiency”].)

Finally, defendant asserts the trial court misjudged the

potential for prejudice. To support his assertion, defendant cites

a Gallup poll purportedly demonstrating that “adultery was

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morally unacceptable for an overwhelming majority of the

American public.” But even if we were to assume that adultery

is commonly regarded as morally unacceptable, that would not

be determinative of whether under the particular facts

presented here, the probative value of Hill’s testimony on this

subject was substantially outweighed by the threat of undue

prejudice occasioned by its introduction. (See, e.g., People v.

Jones (2017) 3 Cal.5th 583, 609 (Jones).)

Defendant also stresses that because he was “defending

against capital charges” and “sex crimes,” evidence concerning

any “sexual misbehavior . . . has an enormous potential for

prejudice.” The trial court, however, could have reasonably

concluded that evidence of a consensual sexual relationship with

an adult is distinct from the rape of an 11-year-old girl, such

that any potential of undue prejudice was not so great as to

require exclusion of the former simply because defendant was

accused of the latter. Within the context of this case, evidence

of Hill’s and defendant’s relationship was not the sort of

evidence that “ ‘ “ ‘ “ ‘uniquely tends to evoke an emotional bias

against the defendant as an individual and which has very little

effect on the issues.’ ” ’ ” ’ ” (Pineda, supra, 13 Cal.5th at p. 222.)

B. Penalty Phase Issues

1. Admission of victim impact evidence

a. Background

The prosecution offered victim impact evidence at the

penalty phase by introducing testimony from three of Jaquita’s

family members and her fifth-grade teacher, Christine Mohler.

Because whether and how Mohler would testify was a

contested issue below, the prosecution made an extensive offer

of proof. According to the prosecution, Mohler would testify that

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she had “a very special relationship with Jaquita” and “Jaquita

was her favorite student.” To illustrate the “importance of

Jaquita in [Mohler’s] life,” Mohler would relate that she talked

to her husband about Jaquita. As another example of the impact

Jaquita had on Mohler’s life, Mohler would testify that in an

end-of-year presentation to colleagues, she used journal entries

written by Jaquita “to talk about the importance of not giving

up and labeling kids.” The prosecution made a similar

argument regarding a report card that Mohler had prepared for

Jaquita. More generally, the prosecution argued that Mohler’s

testimony would demonstrate for the jury the impact that

Jaquita’s death had on the communities that were most

important to her: “her family and . . . her school.”

The defense sought to exclude Mohler’s testimony on the

ground that Mohler was “not really family or close enough.”

Alternatively, the defense argued Mohler’s testimony should be

kept “narrow” and neither the journal entries nor the report

card should be introduced.

After considering the parties’ arguments, the court ruled

it would allow Mohler to testify along the lines of the proffer.

The court explained that the subjects covered by Mohler’s

testimony were “directly related to [defendant’s] moral

culpability.” Given that “elementary school is [one] area of [a

child’s] community” and teachers develop “a close affinity” with

their students, the court discerned “nothing inflammatory or

outrageous about having a [fifth] grader’s elementary school

teacher come and talk about what she meant to her as a teacher,

what she meant to the class and allow her to comment on the

impact of having her taken from her classmates and from her

teacher, particularly in light of the fact [that] if you look at the

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victim’s writings it’s apparent that there was a closeness

between [Jaquita and Mohler].”

Mohler testified consistently with the offer of proof. At the

beginning of her testimony, Mohler provided some biographical

details, telling the jury where she lived and that she was

married and had children. Mohler volunteered that she was a

teacher, at which point the prosecution asked for her

educational background “for her to be able to be a teacher.” The

defense objected; the trial court overruled the objection, and

Mohler informed the jury she “went to college and got a college

degree . . . [and] had to take teaching classes and do student

teaching.”

Regarding her relationship with Jaquita, Mohler testified

that during her first year as a teacher, she taught Jaquita’s fifth

grade class. Mohler told the jury that Jaquita “was living with

her aunt . . . [because] her parents weren’t able to take care of

her,” that she “struggled” academically as “[s]chool did not come

easy for her,” but that she was “bubbly and just really

personable” and “she really was motivated and worked hard and

tried to get through some of the things she struggled with.”

Mohler also described her relationship with Jaquita,

stating she “spent the most time with Jaquita” during the school

year, “working with her . . . and trying to find ways to motivate

her.” Mohler admitted she was “a very idealistic first-year

teacher” and she “saw so much potential in [Jaquita].” Mohler

“invested . . . time” “discussing [Jaquita] with other

teachers, . . . [and] trying to come up with strategies to help her

succeed.” Mohler’s mother, who was also a teacher, came to

Mohler’s classroom and “worked one on one” with the students,

including Jaquita. Mohler’s interest in Jaquita carried “beyond

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the classroom,” as she would discuss Jaquita with her husband,

both when Jaquita was “funny” and “bubbly” but also when she

was “really sad and down” and Mohler “felt like [she] couldn’t

get through to her.” Mohler explained she felt “a special bond”

with Jaquita.

At the end of her first year of teaching, Mohler made a

presentation to her fellow teachers; Jaquita was Mohler’s “main

motivation” for the presentation because Mohler “learned so

much through the year through working with her.” As part of

this presentation, Mohler used two journal entries Jaquita had

written in class. Over unsuccessful objections by the defense,

Mohler read the journal entries to the jury. In the first entry,

Jaquita wrote that her “secret dream is to be a president for the

United States.” She wrote that although “people call [her]

stupid,” she thought she was “smart enough to be a president . . .

if [she] do[es] [her] hardest and . . . keep[s] on trying.” The

second journal entry Jaquita wrote was directly addressed to

Mohler and expressed her appreciation for Mohler’s efforts to

“make [her] learn more and let [her] write neater, plus help [her]

know how to read.” With permission from the court and over a

defense objection, the prosecution also showed an image of a

report card that Mohler had prepared for Jaquita. Mohler read

a comment she had written on the report card noting Jaquita

had made “noticeable improvements.”

Turning to the events surrounding Jaquita’s death,

Mohler testified that it was “devastating” to hear Jaquita had

been killed. Mohler was teaching summer school when she got

the news, and she talked to students who knew Jaquita. Mohler

told the jury that she remembered the students “holding back

their tears” and “consoling them during that time.” Mohler

explained that she was “grateful” to move away from the

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community after Jaquita’s death because she “couldn’t handle

the pain and it was hard to see the kids” who were Jaquita’s

friends. When asked how Jaquita’s death has affected her,

Mohler revealed that it affected both her teaching and her

parenting. Mohler concluded her testimony by stating that

Jaquita’s killing was “something you never forget” and

“something you don’t leave behind in your life.”

b. Analysis

Defendant makes two broad claims concerning the

admission of Mohler’s testimony as victim impact evidence.

First, defendant contends that the standard California

courts apply in evaluating the admissibility of victim impact

evidence falls short of what is demanded under the federal

Constitution. He asserts that to correct this misalignment, we

should repudiate our precedents and “limit victim impact

testimony to surviving victims of the crime itself, family

members or to those who have a strictly familial-type

relationship with the victim.”

These contentions lack merit. The United States Supreme

Court has held that “a State may properly conclude that for the

jury to assess meaningfully the defendant’s moral culpability

and blameworthiness, it should have before it at the sentencing

phase evidence of the specific harm caused by the defendant.”

(Payne v. Tennessee (1991) 501 U.S. 808, 825 (Payne).)

Accordingly, unless “evidence is introduced that is so unduly

prejudicial that it renders the trial fundamentally unfair”

(ibid.), a state may “choose[] to permit the admission of victim

impact evidence” (id. at p. 827). In other words, “victim impact

evidence is only barred by the federal Constitution if it is so

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unduly prejudicial that it renders the trial fundamentally

unfair.” (People v. Simon (2016) 1 Cal.5th 98, 138 (Simon).)

In addition to this federal constitutional requirement,

“California law provides . . . that victim impact evidence is

admissible under section 190.3, factor (a) as a ‘circumstance of

the crime.’ [Citation.] Pursuant to factor (a), trial courts may

allow emotional though relevant evidence, but not irrelevant

information or inflammatory rhetoric that elicits purely

emotional or irrational responses from the jury.” (Simon, supra,

1 Cal.5th at p. 138.) We have said the federal constitutional and

state statutory standards under which victim impact evidence

may be admitted are “consistent” with one another. (E.g., People

v. Dykes (2009) 46 Cal.4th 731, 781 (Dykes); People v. Lewis and

Oliver (2006) 39 Cal.4th 970, 1056 (Lewis and Oliver) [“The

federal Constitution bars victim impact evidence only if it is ‘so

unduly prejudicial’ as to render the trial ‘fundamentally unfair.’

[Citation.] State law is consistent with these principles”].)

While acknowledging our precedent on this point,

defendant nonetheless claims that the two standards materially

differ. According to defendant, “There is a distinction between

evidence so minimal in probative value that it is not worth the

risk of prejudice that its introduction might engender and thus

is ‘unduly’ prejudicial, and evidence that is both so unrelated to

the defendant’s culpability and so enormously prejudicial that a

juror’s reaction to it in the context of a given case would be

‘purely irrational.’ ” He further contends that “this Court, in

practice,” has applied only the purportedly lower “purely

irrational” requirement imposed by state law in considering

challenges to the introduction of victim impact evidence.

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Contrary to defendant’s assertion, we have expressly

stated that we assess the admission of victim impact evidence

under both the federal and state standards. (See, e.g., People v.

Romero and Self (2015) 62 Cal.4th 1, 45 (Romero and Self) [“We

conclude neither the federal nor the state standard was violated

here”]; People v. Verdugo (2010) 50 Cal.4th 263, 298 (Verdugo)

[same]; People v. Ervine (2009) 47 Cal.4th 745, 792 [same];

Lewis and Oliver, supra, 39 Cal.4th at p. 1057 [“The victim

impact evidence presented here satisfied Payne and did not

surpass constitutional limits. Nor was such evidence excessive,

inflammatory, or otherwise prejudicial under state law”]; see

also Simon, supra, 1 Cal.5th at p. 141 [“The victim impact

evidence was not unduly prejudicial because the testimony did

not invite the jury to form an ‘ “irrational, purely subjective

response” ’ ”]; People v. Taylor (2010) 48 Cal.4th 574, 646

(Taylor) [“Here, the victim impact evidence was neither unduly

prejudicial nor so inflammatory that it invited the jury to make

its penalty determination on a purely irrational basis”].) And

despite his contentions, defendant has identified no case in

which the admitted victim impact evidence should have been

excluded in accordance with federal constitutional demands

even though it passed muster under the state standard.

Because defendant fails to show that our jurisprudence on

victim impact testimony is constitutionally infirm, we decline

“to reconsider and/or limit [our] reading of Payne to hold that

victim impact evidence by individuals other than surviving

victims or family members is inadmissible.” “At core, the

holding in Payne rests on the premise that victim impact

evidence is permissible because the evidence is ‘designed to

show . . . each victim’s “uniqueness as an individual human

being” ’ and, in so doing, demonstrate ‘the specific harm caused

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by the crime in question.’ [Citation.] Given this rationale, it is

difficult to discern why, under Payne, a victim’s ‘ “uniqueness as

an individual human being” ’ may be attested to only by family

members, and not . . . by a victim’s colleagues and close friends,”

or here, a teacher with a close connection to the victim. (People

v. Ramirez (2021) 10 Cal.5th 983, 1025 (Ramirez); see also

Dykes, supra, 46 Cal.4th at p. 783 [rejecting the defendant’s

claim that we must “limit[] victim-impact evidence to

evidence . . . given by a family member who was at the scene of

the crime or immediately thereafter” and finding no error in the

admission of the testimony of a victim’s teacher]; see id. at

p. 782.)

In short, we have “ ‘repeatedly rejected’ ” invitations to

limit victim impact evidence to testimony by a victim’s family

members or those who were present at the crime scene

(Ramirez, supra, 10 Cal.5th at p. 1024; see ibid. [collecting

cases]), and we reach the same conclusion here. (See also People

v. Trinh (2014) 59 Cal.4th 216, 246 (Trinh) [“Neither the United

States Supreme Court nor this court has ever identified a

constitutional or statutory basis for so constraining the

permissible scope of victim impact testimony”].)

Defendant contends that by refusing to impose such

limits, we are “so widely open[ing] the door” that “any and all

forms of evidence purporting to show any and all ‘devastating

effects of a capital crime’ on anyone considered to be a part of

the victim’s ‘community,’ or on the general community as a

whole, is admissible.” We disagree. As discussed, the trial court

here carefully considered the scope of Mohler’s proposed

testimony. It permitted her to testify upon finding (1) that the

testimony was not “inflammatory or outrageous,” and (2) that

Mohler and the victim shared a special “closeness.” In short,

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Mohler was not just “anyone” in Jaquita’s community, and her

testimony does not amount to “any and all forms of evidence.”

Nor is it evidence so “unduly prejudicial that it renders the trial

fundamentally unfair” (Payne, supra, 501 U.S. at p. 825).

Second, in the alternative, defendant asks us to find that

Mohler’s testimony “was inadmissible in whole or in part”

because it “went far beyond the reasonably foreseeable and

immediate impact of Jaquita’s murder.” The argument that

victim impact evidence must be limited to facts known or

reasonably foreseeable to a defendant “has not been accepted by

this court and is not now the law.” (People v. Thomas (2012)

54 Cal.4th 908, 941; see also Simon, supra, 1 Cal.5th at p. 141

[“we have rejected these arguments — and we have done so

repeatedly”]; Romero and Self, supra, 62 Cal.4th at p. 48; Trinh,

supra, 59 Cal.4th at p. 246 [“[The defendant] contends victim

impact testimony should have been confined to effects that were

known or reasonably should have been known by [the

defendant] at the time of the crimes or were part of the proof of

the underlying charges. We have repeatedly rejected this limit

as neither constitutionally nor statutorily warranted”]; People v.

Myles (2012) 53 Cal.4th 1181, 1219; Verdugo, supra, 50 Cal.4th

at p. 299; Taylor, supra, 48 Cal.4th at p. 647; Lewis and Oliver,

supra, 39 Cal.4th at p. 1057.) Our position on this issue is

consonant with that of the United States Supreme Court, which

has rejected the argument that “[t]o the extent that victim

impact evidence presents ‘factors about which the defendant

was unaware, and that were irrelevant to the decision to

kill,’ . . . it has nothing to do with the ‘blameworthiness of a

particular defendant.’ ” (Payne, supra, 501 U.S. at p. 818; see

ibid. [overruling Booth v. Maryland (1987) 482 U.S. 496].)

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In any event, although the precise contours of Mohler’s

testimony reflected her personal relationship with Jaquita and

Jaquita’s “ ‘uniqueness as an individual human being’ ” (Payne,

supra, 501 U.S. at p. 823), at heart this testimony was

“ ‘traditional victim impact evidence.’ ” (Ramirez, supra,

10 Cal.5th at p. 1027.) Overall, Mohler “ ‘extoll[ed]’ ” Jaquita’s

virtues and demonstrated Mohler “ ‘missed [her].’ ” (Ibid.) “ ‘As

in other cases, the witness[] here described the “immediate

effects” of the murder[], as well as [its] “residual and lasting

impact.” ’ ” (Ibid.) We conclude that although defendant “may

not have known the exact details of the harm he was causing,”

the fact “that the harm would be of the type [Mohler] described

was quite foreseeable.” (People v. Weaver (2012) 53 Cal.4th

1056, 1085; see also Payne, at p. 838 (conc. opn. of Souter, J.)

[“The fact that the defendant may not know the details of a

victim’s life and characteristics, or the exact identities and needs

of those who may survive, should not in any way obscure the

further facts that death is always to a ‘unique’ individual, and

harm to some group of survivors is a consequence of a successful

homicidal act so foreseeable as to be virtually inevitable”].)

Finally, defendant focuses on a number of details in

Mohler’s testimony and contends that “much” of it should have

been excluded because these details “had nothing to do with the

impact of the crime on the community . . . and went far beyond

the immediate harm caused by [defendant’s] actions.”

Defendant specifically identifies the following as evidence that,

in his view, constitutes improper victim impact evidence:

“Mohler’s testimony regarding her educational history, her own

goals and frustrations as an idealistic young teacher, her

mother’s role in the classroom, her conversations with her

husband, her presentation at the end of the school year, her

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decision to move, and Jaquita’s written expressions about

Mohler as a teacher . . . .”

We review the admission of victim impact evidence for

abuse of discretion. (Simon, supra, 1 Cal.5th at p. 138.) We find

no abuse of discretion in allowing these details to be introduced.

Some of this information involved passing references or

explanations that served to place Mohler’s other testimony in

context. For instance, “Mohler’s testimony regarding her own

educational history” consisted of a single sentence informing the

jury Mohler had completed college and undertaken other

teaching-specific training to become a teacher. Given that

Mohler gave victim impact testimony as the victim’s teacher and

a part of her school community, the evidence was not irrelevant

or otherwise improperly admitted.

Other parts of Mohler’s testimony that defendant

challenges involve evidence of Jaquita’s “ ‘uniqueness as an

individual human being.’ ” (Payne, supra, 501 U.S. at p. 823.)

For example, although Mohler testified that she was “a very

idealistic first-year teacher,” it was things about Jaquita

herself — her “bubbly” personality, her difficult home

environment, the fact that she “really was motivated and

worked hard,” that she had “so much potential,” et cetera — that

“drew [Mohler] in” and led Mohler to spend more time with her

than any other student. Likewise, that Mohler’s mother was

involved with Jaquita and Mohler had conversations with her

husband about Jaquita helped to establish the “special bond”

that Jaquita and Mohler shared. Similarly, Mohler’s year-end

presentation was motivated by Jaquita because “Jaquita was so

much a part of” Mohler’s year of teaching. The fact that Mohler

moved away was also tied to the impact of Jaquita’s death, as

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Mohler was “grateful” for the move due to the emotional

difficulties she faced after Jaquita was killed.

Regarding the journal entries that Jaquita wrote, we have

permitted creative expressions by the victims themselves to be

admitted as victim impact evidence. (See, e.g., Ramirez, supra,

10 Cal.5th at pp. 1027–1029 [finding no error in a witness

reading for the jury a short story written by her murdered

husband]; People v. Mendez (2019) 7 Cal.5th 680, 713–714

(Mendez) [upholding a mother’s reading of her slain daughter’s

poem]; Verdugo, supra, 50 Cal.4th at pp. 298–299 [cassette tape

of the victim’s singing played for jurors].) We reasoned that “it

was through” the expression the victim created “that the jury

heard directly from the victim” as opposed to “hearing about” the

victim. (Ramirez, at p. 1028.) That reasoning applies here:

Jaquita’s journal entries allowed the jury to hear directly from

the victim herself. Through the journal entry in which Jaquita

thanked Mohler, a jury could reasonably learn that Jaquita was

a person who showed gratitude and someone who made others

feel appreciated for having been in her life.

In sum, these details were “evidence about the victim” or

evidence “about the impact” of the victim’s murder on her

community that is “relevant to the jury’s decision as to whether

or not the death penalty should be imposed.” (Payne, supra,

501 U.S. at p. 827.) Nothing about these specific facets of

Mohler’s testimony or her testimony as a whole exceeded “what

we have allowed in the past” where “the witnesses testified

‘about their relationship with’ the victim[], ‘how they learned

about’ the victim[’s] death[], and how the murder[] ‘affected

their lives.’ ” (Mendez, supra, 7 Cal.5th at p. 712.) As we have

done in the past, “[w]e conclude neither the federal nor the state

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standard was violated” by the admission of the victim impact

evidence here. (Romero and Self, supra, 62 Cal.4th at p. 45.)

2. Admission of unadjudicated other crimes

Under section 190.3, factor (b), the jury “[i]n determining

the penalty . . . shall take into account” “[t]he presence or

absence of criminal activity by the defendant which involved the

use or attempted use of force or violence or the express or

implied threat to use force or violence.” Pursuant to this factor,

the prosecution introduced evidence of two unadjudicated

crimes that defendant allegedly committed: a battery against

Robert Barnes and a criminal threat made against Jeff Samuel.

Defendant challenges the admission of evidence concerning both

offenses.

a. Evidence of battery of Robert Barnes

i. Background

As part of its penalty phase presentation, the prosecution

introduced evidence that in 1990, defendant, then 15 years old,

assaulted and fractured the arm of a 13-year-old, Robert Barnes.

Evidence concerning the battery was presented through the

testimony of Barnes; Russ Kunzler, an individual who broke up

the fight; and Dale Burnell, a police officer who investigated the

incident and took statements from Barnes and Kunzler.

Before the prosecution introduced the evidence, the court

had a discussion with the parties regarding the anticipated

testimony. The defense informed the court that Barnes’s

attorney had indicated that Barnes “will not be able to identify”

defendant in court and that “any identification made with the

police [in 1990] . . . was just tentative” and suspect. The defense

therefore requested a hearing “before the jury hears about any

identification made by Barnes to a police officer.” The

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prosecutor acknowledged that Barnes was not “going to be

identifying anybody in court because of the time that has

passed.” The prosecutor explained that identification of

defendant as Barnes’s assailant would be established through

Burnell’s testimony “by past recollection recorded.” The

prosecutor elaborated that Barnes “remembers being shown

photographs” as part of the investigation in 1990 but “he d[oes]

not recall now 17 years later the specifics of . . . who he pointed

out and what role they played, but what he . . . will testify to is

that when he was meeting with the investigator he was truthful

in whatever identification he made and that it was fresh in his

mind then, and that lays the foundation for the past recollection

recorded for Officer Burnell coming in and be able to establish

the photo that was identified” as defendant. After hearing

further argument, the court denied defendant’s motion for a

“preliminary-type hearing” under Evidence Code section 402.

When Barnes took the stand, he testified as follows. In

1990, Barnes was 13 years old and attended school in Oakland.

While riding the school bus on May 7 of that year, Barnes “had

some words” with a fellow student he knew from school, Myisha

Green. When Barnes and Green got off the bus, they got into a

“[s]cuffle” in which they were “[p]ulling” and “[s]winging” at

each other. After the physical altercation with Green ended,

“like . . . five or six guys” approached Barnes. One of them hit

Barnes, who fought back but at some point fell. While Barnes

was on the ground in a “[f]etal position” to protect himself, the

assailants kicked him “[h]ard.” They only stopped when “[s]ome

tall white dude r[an] over” and intervened. Afterward, Barnes’s

mother took him to the emergency room where he was treated

for bruises and a fractured arm.

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To lay the foundation for Burnell’s testimony, the

prosecution elicited the following information from Barnes.

Shortly after the fight happened, a police investigator came to

talk to Barnes about the incident. Barnes recalled that he gave

the investigator a general description of the individuals involved

in the fight. The investigator later returned with a set of

photographs, which he showed Barnes, and Barnes made an

identification.

Kunzler, the witness who broke up the fight, testified next.

At the relevant time, Kunzler was working as an automobile

technician across the street from where the altercation with

Barnes took place. On the day of the incident, Kunzler heard a

commotion, looked across the street, and saw three people

“beating up” one person. He saw the victim fall to the ground.

The other people in the fight then kicked him. Seeing that the

victim was on the ground and not “fighting back,” Kunzler “felt

enough was enough” and decided to intervene. He ran across

the street and physically pushed a couple of individuals away.

However, “there was still one guy on top of the victim,” “still

kicking him and beating the kid up.” Kunzler stopped the

person by “grabb[ing] the upper torso and basically just pulled

him off.” After he did so, the person whom he pulled off “turned

around and faced [Kunzler] and just [said], I’m going to come

back, white boy, come and shoot you. You’re dead.”

The police contacted Kunzler after the incident. An

investigator came to Kunzler’s place of work, showed him

photographs, and Kunzler made an identification. Kunzler

testified he believed the person he identified was “the last guy

that [Kunzler] pulled off” the victim.

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Burnell then took the stand. Burnell had no independent

recollection of the Barnes investigation and testified based on a

police report that he had prepared in 1990. Burnell testified

that he “develop[ed] the names of some suspects that may have

been involved in the assault on Robert Barnes” after speaking

with Green and Barnes. The suspects included defendant

(whom Green knew). Burnell then spoke to defendant and took

a photograph of him. Using this photograph, Burnell conducted

a photo lineup with Barnes and Kunzler.

Burnell testified that when he showed Barnes three photo

lineups consisting of 18 photographs, including a photograph of

defendant, Barnes “selected the photograph with [defendant’s]

picture on it.” Barnes stated the photograph he selected was of

“the person who had kicked him in the arm when he was on the

ground.”

Likewise, when Burnell showed Kunzler the photo

lineups, Kunzler “selected the photo that had [defendant’s]

photo in it.” Kunzler identified the photograph “[a]s the person

[he] pulled off of Barnes,” (i.e., the one Kunzler testified was

“still kicking . . . and beating the kid up”).

The defense cross-examined Barnes, Kunzler, and

Burnell. The defense elicited from Barnes that when Barnes

“pick[ed] out [defendant’s] picture,” he was indicating that

defendant “was just there” and not saying “that’s the guy who

broke [his] arm.” Barnes stated that “even back at the time” of

the incident, he did not know who broke his arm. Similarly,

Burnell stated during cross-examination that he does not recall

Kunzler saying he “was threatened with being shot.” If Burnell

had been told of a threat, that would be “the kind of thing [he]

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would have written in [his] report,” but the report contained no

such information.

The defense also called Green, the individual involved in

the initial confrontation with Barnes. Green generally testified

that Barnes was the aggressor, both in her scuffle with him and

in the interaction with her friends who came to her rescue.

Green, however, “didn’t stay [until] the end” of the fight and did

not witness anyone kick Barnes.

ii. Constitutionality of use of juvenile criminal

behavior

Defendant broadly challenges the admission of evidence

concerning his alleged battery on Barnes, arguing that because

he was a juvenile when the incident occurred, admission of

evidence regarding the incident pursuant to section 190.3, factor

(b), violated his federal constitutional rights under the Sixth,

Eighth, and Fourteenth Amendments.

Defendant asks us to address his claim despite the fact

that he did not raise it at trial. According to defendant, the

argument he now makes is “based on legal developments in the

courts that occurred years after [his] trial” and thus “any

objection on this specific ground at the time of trial would have

been futile.” Yet, the main authority defendant relies on is

Roper v. Simmons (2005) 543 U.S. 551 (Roper), a case decided in

2005. Defendant’s penalty phase trial took place in 2007. It

therefore cannot be said that because of this timing, “any

objection [in reliance on Roper] at the time of trial would have

been futile.” Defendant thus forfeited this challenge.

Defendant’s claim also fails on the merits. We have

“repeatedly rejected” the claim that the death penalty statute is

unconstitutional “because it allows the consideration of juvenile

criminal conduct in aggravation.” (People v. Powell (2018)

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6 Cal.5th 136, 193.) As we have “long held,” “prior violent

conduct committed while a defendant was a juvenile may be

admitted as evidence of criminal activity that involved the use

or attempted use of force or violence.” (People v. Bivert (2011)

52 Cal.4th 96, 122 (Bivert).) “[T]he admission of such evidence

passes constitutional muster.” (People v. Lee (2011) 51 Cal.4th

620, 649; see also People v. Tran (2022) 13 Cal.5th 1169, 1223–

1224 [reaffirming these principles].)

Defendant asks us to reconsider these holdings,

contending that evidence of violent juvenile criminal activity

should not be considered at the penalty phase because “juvenile

acts are not reliable evidence of either character or future

dangerousness.” In so arguing, defendant relies on Roper,

supra, 543 U.S. 551. As we have explained, however, reliance

on Roper in this context is “badly misplaced.” (People v.

Bramit (2009) 46 Cal.4th 1221, 1239.) Roper “holds that the

execution of individuals who were under 18 years of age at the

time of their capital crimes is prohibited by the Eighth and

Fourteenth Amendments. It says nothing about the propriety

of permitting a capital jury, trying an adult, to consider evidence

of violent offenses committed when the defendant was a

juvenile.” (Ibid.; see also Bivert, supra, 52 Cal.4th at p. 122

[“Roper . . . spoke only to the question of punishment for juvenile

offenses, while defendant’s challenge ‘is to the admissibility of

evidence, not the imposition of punishment’ ”].) Roper thus

“ ‘does not compel exclusion of . . . evidence’ ” of violent juvenile

conduct. (People v. Rivera (2019) 7 Cal.5th 306, 342.)

“The same reasoning applies to” Miller v. Alabama (2012)

567 U.S. 460 and Graham v. Florida (2010) 560 U.S. 48, two

cases defendant cites in passing. (People v. Rices (2017)

4 Cal.5th 49, 87 (Rices).) These cases “do not address the

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question of whether evidence of juvenile misconduct can be

considered on the question of what punishment a defendant may

receive for crimes committed as an adult.” (Ibid.) Thus, “[e]ven

if defendant is correct that Roper and Miller treat juvenile

misconduct as less blameworthy than adult misconduct,

evidence of forceful or violent conduct is nevertheless relevant

to penalty phase questions about character and future

dangerousness. [Citation.] Arguments about the offender’s

youth and immaturity go to the weight of the evidence, not its

admissibility.” (People v. Winbush (2017) 2 Cal.5th 402, 473

(Winbush).) As the Attorney General explains, “While a

juvenile’s character may not be as well formed as that of an

adult, and their personality traits may be more ‘transitory’

[Roper, supra, 543 U.S. at p. 570], this general difference

between juveniles and adults does not support [defendant’s]

suggestion that juvenile acts of violence by a defendant who has

gone on to commit a death eligible offense as an adult are not

reliable evidence of that defendant’s character or future

dangerousness.”

In short, “[t]he high court has never suggested that

evidence of juvenile misconduct may not be admitted in deciding

the proper punishment for crimes an adult commits” (Rices,

supra, 4 Cal.5th at p. 87), and defendant’s arguments provide no

basis for us to revisit our precedents allowing for the

introduction of such evidence.

iii. Sufficiency of the evidence

Defendant contends the trial court abused its discretion by

refusing to hold an adequate hearing before permitting Barnes,

Kunzler, and Burnell to testify about the alleged battery. In

making this argument, defendant relies on People v.

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Phillips (1985) 41 Cal.3d 29 (Phillips), where the plurality

opinion “suggest[ed]” that “in many cases it may be advisable

for the trial court to conduct a preliminary inquiry before the

penalty phase to determine whether there is substantial

evidence to prove each element of the other criminal activity.”

(Id. at p. 72, fn. 25 (plur. opn. of Reynoso, J.).) Defendant faults

the trial court for purportedly failing to comply with Phillips by

not making a sufficient “inquiry and ruling as to the sufficiency

of the evidence . . . before allowing the evidence to be

introduced.”

We have made clear that a preliminary inquiry of the sort

discussed in Phillips is not required as a condition of admission

of other crimes evidence pursuant to section 190.3, factor (b).

(See, e.g., People v. Boyer (2006) 38 Cal.4th 412, 477, fn. 51;

People v. Young (2005) 34 Cal.4th 1149, 1209 (Young); People v.

Clair (1992) 2 Cal.4th 629, 677–678 (Clair) [stating that

“Phillips did not impose . . . a requirement” to conduct a

preliminary inquiry to ascertain whether evidence of an

uncharged crime was substantial and, indeed, “Phillips could

not impose any such requirement” because “[t]he pertinent

language did not command the support of a majority of the court,

and was clearly dictum”]; People v. Jennings (1991) 53 Cal.3d

334, 389 [“We did not [in Phillips] require such a hearing nor

predicate admission of . . . evidence [of other criminal activity]

on the holding of a hearing”].) We have also said a preliminary

inquiry “if held, need not be an evidentiary hearing. If the court

does elect, in its discretion, to conduct such an inquiry it may be

based on an offer of proof.” (People v. Jones (2011) 51 Cal.4th

346, 380; accord, Boyer, at p. 477, fn. 51.)

Here, the court “read the moving papers and the

prosecutor’s summary of the evidence, which was in effect an

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offer of proof, and heard arguments from both sides regarding

the strength of the evidence.” (People v. Rodriguez (2014)

58 Cal.4th 587, 636 (Rodriguez).) “[T]he trial court [thus] did

conduct a preliminary inquiry.” (Ibid.; see also Clair, supra,

2 Cal.4th at pp. 673–675, 677.)

Insofar as defendant contends that the evidence was

insufficient to establish that he battered Barnes, that argument

also fails. “ ‘ “[A] trial court’s decision to admit ‘other crimes’

evidence at the penalty phase is reviewed for abuse of discretion,

and no abuse of discretion will be found where, in fact, the

evidence in question was legally sufficient.” ’ ” (Tully, supra,

54 Cal.4th at p. 1027; see also Rodriguez, supra, 58 Cal.4th at

p. 636 [“no abuse of discretion in admitting evidence of other

crimes will be found if, in fact, the evidence was legally

sufficient”].)

Review of the sufficiency of the evidence “does not require

a court to ‘ask itself whether it believes that the evidence at the

trial established guilt beyond a reasonable doubt.’ [Citation.]

Instead, the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” (Jackson v.

Virginia (1979) 443 U.S. 307, 318–319.) “In deciding the

sufficiency of the evidence, a reviewing court resolves neither

credibility issues nor evidentiary conflicts. [Citation.]

Resolution of conflicts and inconsistencies in the testimony is

the exclusive province of the trier of fact. [Citation.] Moreover,

unless the testimony is physically impossible or inherently

improbable, testimony of a single witness is sufficient to support

a conviction.” (Young, supra, 34 Cal.4th at p. 1181.)

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The evidence here was sufficient. Burnell testified, based

on his police report, that Barnes identified defendant as “the

person who had kicked him in the arm when he was on the

ground.”13 Burnell also testified that Kunzler identified

defendant “[a]s the person [he] pulled off of Barnes,” the same

person Kunzler said was “kicking [Barnes] and beating [him]

up” when Barnes had fallen. A rational jury crediting this

testimony could readily conclude beyond a reasonable doubt

that defendant committed a battery against Barnes.

In arguing otherwise, defendant points to Barnes’s and

Kunzler’s testimony as elicited through cross-examination.

Defendant emphasizes that upon cross-examination, “Barnes

stated he was only asked if he recognized any of the people in

the pictures, and that he had only identified [defendant] as

someone who was there.” A reasonable jury, however, was free

to credit Barnes’s statement to Burnell over testimony at trial.

(See People v. Boyer, supra, 38 Cal.4th at p. 480 [“a testifying

witness’s out-of-court identification is probative for that purpose

and can, by itself, be sufficient evidence of the defendant’s guilt

even if the witness does not confirm it in court. [Citations.]

Indeed, ‘an out-of-court identification generally has greater

probative value than an in-court identification, even when the

13

Defendant also challenges the admission of Burnell’s

testimony in a subsequent claim. Because “ ‘[e]vidence

erroneously admitted is properly considered in weighing the

sufficiency of evidence to support a conviction, notwithstanding

its erroneous admission’ ” (People v. Ramirez (2022) 13 Cal.5th

997, 1120), we may consider Burnell’s testimony in assessing

the sufficiency of the evidence presented to the jury regardless

of the merits of defendant’s latter claim. (See also People v.

Navarro (2021) 12 Cal.5th 285, 311; People v. Story (2009)

45 Cal.4th 1282, 1296.)

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identifying witness does not confirm the out-of-court

identification’ ”].)

Defendant’s attack on Kunzler’s testimony fares no

better.14 Defendant contends that Kunzler “admitted on cross-

examination that [defendant] was standing over Barnes when

he arrived on the scene and did not testify that [defendant] was

striking or kicking Barnes.” Contrary to defendant’s contention,

however, Kunzler did testify that the person he pulled off

Barnes was “kicking [Barnes] and beating the kid up.” Although

Kunzler stated during cross-examination that when he got to

the scene of the fight, defendant was “[s]tanding” “over

[Barnes],” Kunzler did not retract his testimony that he saw

defendant kicking Barnes while Barnes was on the ground. In

fact, defense counsel’s questions to Kunzler demonstrate

counsel’s own similar understanding of this testimony. For

example, counsel asked, “And then this one [individual] that

was standing over [Barnes], hitting him or kicking him,

whatever he was doing, you pulled him away?” Moreover, as the

Attorney General points out, whatever conflicts appeared in

Kunzler’s testimony “were for the jury to resolve,” and the mere

fact that there were conflicts or inconsistent statements “do[es]

not support a conclusion that the evidence of the battery was

legally insufficient.” (See Young, supra, 34 Cal.4th at p. 1181

14

Because “testimony of a single witness is sufficient to

support a conviction” (Young, supra, 34 Cal.4th at p. 1181), a

reasonable jury need not have relied on both Barnes’s and

Kunzler’s identifications to find that defendant committed the

alleged offense against Barnes. We nonetheless address

defendant’s contentions regarding both of these witnesses’

testimony for the sake of completeness.

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[“Resolution of conflicts and inconsistencies in the testimony is

the exclusive province of the trier of fact”].)

iv. Issues relating to Evidence Code section 1237

Defendant also argues that neither Barnes’s nor Kunzler’s

testimony established the necessary foundation for Burnell to

testify to the contents of his police report as a past recollection

recorded under Evidence Code section 1237. 15

Evidence Code section 1237 provides an exception to the

hearsay rule, specifying that “[e]vidence of a statement

previously made by a witness is not made inadmissible by the

hearsay rule if the statement would have been admissible if

made by him while testifying,” provided certain conditions are

15

At trial, the parties discussed admissibility of the prior

statements as coming within the hearsay exception for past

recollections recorded without specifically referring to the

applicable Evidence Code section. The section of the Evidence

Code that pertains to past recollections recorded is section 1237,

and the prosecutor cited for the court’s consideration People v.

Cummings (1993) 4 Cal.4th 1233, which discussed the

admissibility of a statement as a past recollection recorded

under that section. (See Cummings, at pp. 1292–1294.) Neither

the parties nor the trial court specifically referred to Evidence

Code section 1238, which recognizes an exception for a prior

statement of a witness identifying a party or another as a person

who participated in a crime. (See Evid. Code, § 1238 [“Evidence

of a statement previously made by a witness is not made

inadmissible by the hearsay rule if the statement would have

been admissible if made by him while testifying and: [¶] (a) The

statement is an identification of a party or another as a person

who participated in a crime or other occurrence”].)

Consistent with the record below, the parties before us

confine their arguments to whether the statements at issue here

were admissible under Evidence Code section 1237. We do the

same.

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met. (Evid. Code, § 1237, subd. (a).) The conditions include:

(1) “the statement concerns a matter as to which the witness has

insufficient present recollection to enable him to testify fully and

accurately,” and (2) “the statement is contained in a writing

which,” among other requirements, “[i]s offered after the

witness testifies that the statement he made was a true

statement of such fact.” (Ibid.) We review a trial court’s decision

to admit testimony pursuant to Evidence Code section 1237 for

an abuse of discretion. (See, e.g., People v. Sanchez (2019)

7 Cal.5th 14, 39 (Sanchez).)

Defendant claims the trial court “abused its discretion in

allowing Burnell to testify about . . . Kunzler’s identification”

because “the prosecutor failed to establish that Kunzler did not

have sufficient memory of his statement to Burnell.” According

to defendant, Kunzler’s testimony failed to satisfy the statutory

requirement that a past recorded recollection concerns “a matter

as to which the witness has insufficient present recollection to

enable him to testify fully and accurately” (Evid. Code, § 1237,

subd. (a)) because Kunzler never testified he did not recall

“selecting [defendant’s] photograph from the photograph display

as the one who he pulled off of Barnes.”

On the subject of his recollection, Kunzler testified that he

remembered identifying a photograph for Burnell. Kunzler

explained, however, that he had only a “vague” memory of the

“specifics” of the identification. In particular, the prosecutor

asked, “Your memory, if you will, about the specifics of these

photographs, what you saw, how many photographs you saw,

the role that the guy played [that] you may have selected, how

is that memory of all those specifics as you sit here today?”

Kunzler answered, “Very vague.” Kunzler also confirmed that

“[t]oo much time” had passed since he made his identification

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and, at the time of his testimony, he was not “in any kind of

position now to be making [an] identification [of defendant as]

one of the guys who was there fighting.”

During cross-examination, Kunzler reiterated that he did

not have “any recollection” of any physical characteristics of the

participants in the fight. Kunzler could say that all three of the

individuals who were involved in the fight with Barnes were

Black teenagers, but he did not recall any detail regarding their

“height or weight” or “build or nothing.” Defense counsel then

asked Kunzler what the person that Kunzler identified “was

doing.” Kunzler replied, “I believe he was the gentleman that I

pulled, the last guy that I pulled off.” Upon further probing by

defense counsel, Kunzler elaborated that he was “80 percent

sure that’s the guy. The only guy I actually looked in the face.”

As noted, Evidence Code section 1237 requires that for a

statement to be admitted as past recollection recorded, the

statement must “concern[] a matter as to which the witness has

insufficient present recollection to enable him to testify fully

and accurately.” (Evid. Code, § 1237, subd. (a), italics added.)

Here, it is clear that Kunzler had “insufficient present

recollection to enable him to testify fully and accurately”

c

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