# People v. Grimes

> California Supreme Court · January 5, 2015

URL: https://www.frixlaw.com/law-library/cases/2766626

## Case

- **Court:** California Supreme Court
- **Decided:** January 5, 2015
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Filed 1/5/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S076339
v. )
)
GARY LEE GRIMES, )
) Shasta County
Defendant and Appellant. ) Super. Ct. No. 95F7785
____________________________________)

Defendant Gary Lee Grimes was convicted by a jury of one count of
murder with burglary and robbery special circumstances and one count each of
robbery, burglary, conspiracy to commit robbery, conspiracy to commit burglary,
and unlawful driving or taking of a vehicle. (Pen. Code, §§ 182, subd. (a), 187,
subd. (a), 190.2, subd. (a)(17), 211, 459; Veh. Code, § 10851, subd. (a).)1 In
connection with the murder, robbery, burglary, and conspiracy counts, the jury
found true allegations that defendant inflicted great bodily injury upon the victim,
an elderly person (§ 1203.09, subd. (a)), and that the offenses were committed
while defendant was on parole (§ 1203.085, subd. (b)). In a bifurcated proceeding,
the trial court found true allegations that defendant had served four prior prison
terms (§ 667.5, subd. (b)) and had been convicted of a serious or violent felony

1 All further statutory references are to the Penal Code, unless otherwise
indicated.
within the meaning of the Three Strikes law (§ 1170.12). The jury returned a
verdict of death. The trial court sentenced defendant to death for the murder and
imposed a term of six years for the driving or taking of a motor vehicle and four
one-year terms for the four prior prison term allegations; sentences on the
remaining counts were imposed and stayed.
The judgment is modified to vacate the true finding on one of the four prior
prison term allegations, and is otherwise affirmed.
I. FACTS

A. Guilt phase

1. The offenses
In October of 1995, defendant, then 33 years old, was staying with a friend,
Sheila Abbott (Sheila), in her trailer. Also staying in the trailer were Sheila‘s son,
Shane Fernalld, her daughter, Misty Abbott (Misty), and Misty‘s boyfriend,
Patrick James Wilson, then 19 years old. On the morning of October 18, John
Morris, a 20-year-old friend of the family, arrived at Sheila‘s trailer. At
approximately noon, Morris, Wilson, and defendant obtained some medical gloves
and bandanas from the trailer. They tried on the bandanas, placing them over their
mouths, before putting them in their pockets. The three left in Morris‘s red sports
car. They drove to the house shared by Betty Bone, who was then 98 years old,
and her daughter. They ransacked the house and took property, including a .38-
caliber handgun, a ―boom box,‖ some jewelry, a rifle, a telephone in a Styrofoam
box, and a brown truck.
Bone was killed. Her body showed evidence of blunt force trauma to the
head, ligature strangulation, and stab wounds. There was a telephone cord and a
bandana around her neck. There was bruising on her tongue and lip that was
likely caused by a gag. Her injuries were consistent with her having been knocked

2
unconscious, strangled, and then stabbed repeatedly. Bleeding due to the stabbing
was the cause of death, with strangulation as a contributory cause.
Defendant, Wilson, and Morris returned to Sheila‘s trailer, with Morris and
Wilson in Morris‘s car and defendant driving the brown truck that had been taken
from Bone‘s residence. They unloaded items from the truck. Defendant showed a
bag of jewelry to Sheila, and asked her whether it was real; she told him it was
costume jewelry. Defendant drove the truck to Shasta Lake, with Morris and
Misty following in Morris‘s car. Defendant drove the truck into the lake. The
three left the lake in Morris‘s car to go back to Sheila‘s trailer.
Later that afternoon defendant, Morris, and Misty were driving in
defendant‘s brown Camaro when they approached a roadblock that had been set
up by the sheriff‘s department. Before reaching the roadblock, defendant and
Morris threw their guns out of the car and into the bushes. The weapons, which
included the handgun taken from Bone‘s residence along with another handgun,
were later recovered by law enforcement. When they went through the roadblock,
defendant identified himself to an officer as ―Gary Woods‖ and gave the officer a
false Social Security number. He was wearing a pair of white fingerless gloves,
similar to the type of gloves that Bone‘s daughter kept in the brown truck.
They returned to Sheila‘s trailer and then left for Sacramento. Misty and
her baby went in Morris‘s car and defendant drove in his car with Misty‘s brother,
Shane Fernalld. They spent the night in Sacramento with Morris‘s aunt. In her
apartment, they left a bag of jewelry and the box containing a telephone that had
been taken from Bone‘s house. The next day, Fernalld left defendant at the
Sheraton apartment complex.

3
2. Defendant’s arrest and statements to police
Morris was arrested on October 21, 1995, three days after the crime, and
killed himself in his jail cell the next afternoon. Wilson was arrested the following
day. Also that day, a deputy sheriff recovered two knives that had been buried
near Sheila Abbott‘s property. One was a long kitchen knife and the other was a
pocket knife. DNA from both knives was consistent with a mixture of Bone‘s
DNA and Wilson‘s DNA; none of the DNA on the knives could have come from
defendant. Defendant was arrested on the following day, as he pulled his car into
the parking area of the Sheraton apartment complex. As he got out of the car, a
loaded .22-caliber handgun fell out of the driver‘s side door. Defendant called
Sheila Abbott from jail, and she told him that Morris had killed himself.
Defendant was interviewed by detectives, and a tape recording of the
interview was played for the jury. Defendant admitted that he was involved in the
burglary and robbery, but denied any involvement in the murder, claiming that
Morris had killed Bone while defendant was in the back of the house. Defendant
stated that it had been Morris‘s idea to break into a house because he needed
money to pay for his automobile insurance. Defendant said that he, Morris, and
Wilson each had a bandana that Sheila had given them, and they had latex gloves
that were obtained from her first-aid kit. Morris drove defendant and Wilson to
Bone‘s neighborhood, an area in which defendant had formerly lived. In the car,
defendant handed Morris a gun, which was wrapped in a bandana, and Morris put
it in his pants. According to defendant, they were watching a house in the
neighborhood and saw a woman outside; Morris said they could kill her and take
their time going through the house, but defendant told Morris that he was ―not into
killin‘ people.‖
Defendant told the detectives that when they arrived at the Bone house,
Morris and Wilson knocked on the door of the house and initially no one

4
answered; Morris commented that no one was there and defendant concluded they
would just be committing a burglary. Then Morris stated there was someone in
the house. Defendant walked back to the car and saw Bone answer the door.
Wilson asked for a girl named Debbie and Bone replied ―no, my daughter‘s name
is Barbara.‖ Wilson pushed the door open, hitting Bone and knocking her to the
ground. Defendant walked through the open door. At some point he saw Bone
lying on the floor with Morris on top of her; Bone pleaded with him to let her go.
Defendant told the detectives that he said to Morris, ―don‘t hurt no women, don‘t
hurt nobody.‖ He said he went into the back of the house because he ―couldn‘t
deal with it.‖ When he came back out of the bedroom he saw Morris strangling
Bone, who was tied up with a phone cord. According to defendant, Morris said, ―I
can‘t leave no witnesses.‖ Morris also said, ―that fucking bitch won‘t die.‖
Defendant saw Morris rummaging through the kitchen looking for a knife. He
saw or heard Morris stabbing Bone forcefully and repeatedly. Morris gave Wilson
a paper sack containing the knives that were later recovered, and told him to get
rid of them.
According to defendant, Morris ordered him to take Bone‘s truck. They
loaded the items from the house into the truck and took them back to Sheila‘s
trailer. Wilson and Morris siphoned the gas out of the truck. Defendant drove the
truck to Shasta Lake, following Morris and Misty. Morris instructed defendant to
break out the windows of the truck and drive it into the lake. Defendant told the
detectives that the gun he had when he was arrested in Sacramento did not come
from the house and that he had obtained it that same day. He stated that Wilson
had found a gun in the house and Morris had found a rifle. Defendant denied
knowing the location of the guns taken from the house and asserted that Morris
was supposed to dispose of them.

5
3. Testimony regarding out-of-court statements
At trial, Misty Abbott testified that during the ride to Shasta Lake, Morris
told her that he had killed a woman; specifically, he had tried to strangle her but
because she did not die he took a knife from the kitchen and stabbed her. She
testified that during the ride back to her mother‘s trailer, after they dumped the
truck into the lake, defendant and Morris fired their guns out the windows of the
car. When she was interviewed by Wilson‘s private investigator, she also said that
Morris and defendant were laughing about the murder and calling each other
―down white boys.‖ Misty‘s brother, Shane Fernalld, testified that while he and
defendant were driving to Sacramento, defendant told Fernalld either ―she
deserved it‖ or ―she didn‘t deserve it‖; he was not sure which. Before trial,
however, he told several law enforcement officers that defendant‘s statement was
―she deserved it‖ or ―the old bitch deserved it.‖ Morris‘s grandfather testified that
Morris called him from jail, sounding very upset, and told him that his friends had
turned against him and were going to testify that he had killed Bone, but that he
had not done it.2 This call occurred an hour or two before Morris committed
suicide by hanging himself in his jail cell.
Jonathan Howe, a prisoner who had been housed with defendant in the
county jail, testified that defendant told him defendant had ordered Wilson and
Morris to tie up Bone and kill her. According to Howe, defendant also told him
that he could not be linked to the murder with DNA evidence because he had
never touched the body. Defendant told him either that he had enjoyed watching

2 The trial court admonished the jury that it could not consider for its truth
Morris‘s statement to his grandfather that he did not kill Bone; the court explained
that testimony was relevant only in evaluating Misty‘s testimony regarding
Morris‘s confession to him.

6
Bone be killed or he enjoyed the fact that she died. Howe testified under an
agreement that permitted him to plead guilty to pending charges for a sentence of,
at most, 24 months, consecutive to a term he was already serving. Prior to coming
forward he had been offered a plea bargain with a 24-month consecutive sentence.
Under the new plea agreement, he could receive a sentence of less than 24 months;
his sentencing was postponed until after trial in the present case, at which time the
judge presiding over defendant‘s trial would decide his sentence.

4. Defense evidence
Defense counsel conceded that defendant was guilty of burglary, robbery,
and murder, but contested the special circumstance allegations on the grounds that
defendant was not the actual killer and did not act with an intent to kill or a
reckless indifference for life.
The defense put into evidence admissions made by Wilson to law
enforcement officers that were consistent with defendant‘s statements to the police
regarding Wilson‘s role: Wilson admitted that he was involved with the burglary
and that he had pushed Bone inside the house; when she fell back she was
knocked out and he watched her for several minutes; he found a .38-caliber
revolver in a toolbox in a closet in Bone‘s house; he cleaned the knives used to kill
Bone by spitting on them and wiping them off with a cloth; he siphoned gas out of
the truck before defendant drove it to the lake.
Evidence was also presented that the day after Morris was arrested, he
called Sheila Abbott‘s trailer and asked her daughter, Ginger Abbott, if she could
provide him with an alibi. Ginger refused.
The jury convicted defendant on all counts.

7
B. Penalty phase

1. Aggravation
The prosecution introduced evidence that after driving the truck into the
lake, defendant, Morris, and Misty Abbott bought some methamphetamine and
injected it. Defendant had 10 prior felony convictions. The prosecution presented
evidence regarding four incidents involving violent criminal conduct. In 1985,
defendant, along with accomplice Anna Cline, tied up victim James Leonard and
stole $300 from him. Defendant brandished a pipe that was wrapped in a towel to
simulate a gun. Afterward, defendant and Cline used the money to purchase
drugs. A day after that robbery, defendant was observed by a police officer
shooting a sawed-off shotgun in an orchard. In 1991, a police officer encountered
defendant in a restaurant with a loaded .25-caliber semiautomatic handgun in his
waistband. In 1993, during a fight with his girlfriend, defendant held her down in
his car by her throat, threatening to choke her if she left him. When he stopped the
car in a parking lot, she escaped, he ran after her, and they struggled until police
arrived.

2. Mitigation
The defense case in mitigation focused on two themes: defendant‘s
cognitive impairments and his positive contributions to his friends and family
members. A neuropsychologist, John Wick, testified about the results of
psychological testing. Defendant‘s mental functioning was tested in 12 areas; his
scores were in the mentally retarded range in seven areas, low dull-normal in two
areas, and normal in three areas. Defendant‘s overall IQ score was 73, which is
borderline retarded, and he generally tested in the range of third to fourth grade in
reading, spelling, and arithmetic. Wick concluded that defendant had organic
brain damage and that his low intellect could impair his judgment, cause

8
impulsivity, make decisionmaking difficult, and make it difficult to learn both
academic subjects and acceptable social behaviors.
Psychiatrist Albert Globus, who interviewed defendant and reviewed the
test results, agreed that defendant was mentally retarded. Dr. Globus thought that
defendant suffered from organic brain damage at birth (possibly due to beatings
his mother suffered while pregnant), based on the test results and on his low birth
weight, trouble breast feeding, loss of weight during his first week of life,
incontinence up to the age of eight, and a speech impediment. At age 12, he
suffered a serious head injury which may have exacerbated his brain disorder.
Although defendant could determine right from wrong, Dr. Globus concluded that
he would have difficulty applying that knowledge to his decisionmaking and
would likely rely on others to make decisions for him. People like defendant will
often function better in a structured setting like prison because most decisions are
made for them.
At age nine, defendant was referred to a psychiatrist, who prescribed Ritalin
and Librium. At age 11, he was placed in special education classes for
emotionally disturbed children. Defendant‘s special education teacher, a teacher‘s
aide, and a resource specialist for the special education program described
defendant, at that time, as nonaggressive, well behaved, a follower, and someone
in need of love and attention. At age 15, he began running away from home and
was placed in foster care and then juvenile hall. He was committed to Napa State
Hospital at age 17 for nine months. His records from the hospital indicate he was
mildly mentally retarded and had latent schizophrenia.
Defendant‘s sister, Darlene, testified that when defendant was a young boy
he was incontinent and their mother would make him wear a dress and stand out in
the yard as punishment. Defendant lacked self-esteem and confidence; she
described him as a follower who would do what others told him to do.

9
Defendant‘s mother, Patricia Grimes, testified that she loved her son.
Defendant‘s father beat her while she was pregnant and left her before defendant
was born. After the birth, she was in the hospital for more than three months with
postpartum depression and defendant lived with her parents. She recalled that at a
young age, he told her he heard voices and he would wake in the night screaming.
Defendant‘s mother also testified that the day before he was arrested, he was
crying and remorseful, and said he was very sorry that the victim had died.
Defendant‘s ex-wife, Cindy Grimes, who was married to defendant in 1990
for a brief period, testified that she loved him and he had treated her and her
teenage son well. Defendant also helped take care of her father, who was
disabled. Her son, Michael, testified that defendant treated both of them very
well, and had influenced him to get his GED and stay out of trouble with the law.
Cindy‘s mother and the manager of their apartment complex confirmed that
defendant was helpful and kind to Cindy‘s family and to others who lived in their
apartment complex. A fellow prison inmate, Michael Huntsman, testified that
defendant came to his aid when he was assaulted by a group of inmates.
In 1995, defendant attempted to assist the mother of his fiancée, Shannon
Yarnell, in a domestic violence incident involving Shannon‘s stepfather. The
incident ended in tragedy, however, when Shannon‘s stepfather rammed his truck
into the car in which Shannon was riding, killing Shannon.
II. DISCUSSION

A. Excusal for cause of Prospective Juror A.J.
Defendant contends that the death sentence must be reversed because the
trial court erred in excusing for cause Prospective Juror A.J. The trial court
concluded that A.J. would have difficulty following the law on felony murder in a
case in which the defendant did not actually kill or intend to kill. As explained in

10
more detail below, Prospective Juror A.J. indicated in his questionnaire that if his
conscience conflicted with the law, he would follow his conscience. Although he
stated during voir dire that if he were sworn as a juror he would follow the law, he
also made clear that the law making a defendant liable for felony murder and a
special circumstance would present an extreme conflict for him if the defendant
did not intend to kill, and that he would prefer not to be in that situation. We
conclude that the trial court did not err in granting the prosecution‘s challenge for
cause.
On his questionnaire, Prospective Juror A.J. responded to a query about
how he would deal with a situation in which the law differed from his beliefs or
opinions by stating, ―If it were a moral issue I would opt for my conscience.
Otherwise I would do my duty in accordance with the law.‖ In response to
another question, he affirmed that he could set aside his personal feelings
regarding what the law should be and follow the law as explained by the court.
The court began voir dire by noting these responses and explaining that, as
a juror, A.J. would have to agree to put aside his views and follow the law. Asked
if he could make that agreement, A.J. responded, ―I think so.‖ Asked if he had
some particular concern about a moral belief that might conflict with the law, he
responded that he did not know what might occur. The court noted that when
asked on the questionnaire whether, concerning the issue of penalty, he would
limit himself to considering only those factors enumerated by the court, he had
written, ―If I must, yes.‖ A.J. explained that when answering that question he had
been thinking that there might be a conflict between the law and his moral
judgment.
The court explained that no one knew exactly what the evidence at trial
might be, and that jurors are asked to take an oath that if a conflict arises between
their personal views and the law, they would set aside their views and follow the

11
law. The court stated it needed to know whether, if there was a conflict, A.J.
would follow his conscience and not follow the law. A.J. responded, ―At this
time, I don‘t know whether that situation would arise; therefore I would say,
having to answer your question, I would say that I would set aside in order to
follow my duty as a juror.‖ A.J. affirmed that he could ―be an impartial juror who
will faithfully apply the law in this case.‖
When defense counsel questioned him, counsel commented that A.J. had
hesitated every time that he answered a question about his ability to follow the
law. Counsel asked what personal feelings he might have that might interfere with
his ability to follow the law. A.J. responded that he had never been a juror before.
When defense counsel asked whether A.J.‘s hesitation had anything to do with this
being a capital case, A.J. responded, ―No doubt that has something to do with it,
also.‖ He added, ―I‘m a person who is directed by my conscience. Now, if I
promise, through an oath, to set that aside, I will certainly do my duty . . . I don‘t
know if the situation — the specific situation will . . . arise where I will be in
conflict. But as I said, . . . if I make an oath, say I will set that aside, that will be
my primary responsibility.‖
During a break, the court expressed its ―ongoing concern about this juror‘s
potential conflict . . . whether or not he can honestly make the commitment to
follow the law regardless of a possible conflict.‖ The court encouraged the
prosecutor to question the prospective juror on this issue. The prosecutor asked
A.J. about his views on the death penalty and A.J. stated that he ―could apply it as
a juror‖ and affirmed that he had no concerns about it in relation to his conscience
or his moral beliefs.
The prosecutor later explained the felony-murder rule and provided a
hypothetical in which two former employees of a grocery store burned the store
down at night, hoping that no one would be working at that time. One supplied

12
the gasoline and drove the two to the store, and the other lit the fire. The
prosecutor asked whether A.J. could follow the law that both would be liable for
murder. A.J. responded that he could not, because in the hypothetical there was
―no intention to kill.‖ A.J. promptly clarified, however, that if he had been sworn
in as a juror to follow the law, he would do so ―regardless of what my conscience
says.‖ He explained that he did not agree with the law in the hypothetical
described by the prosecutor, but if sworn in as a juror he would ―follow the law as
explained to me by the court.‖ When further pressed by the prosecutor about
whether he could follow the law that the man who drove the car in the scenario
would be liable for murder ―even though he had no intention to kill and he was not
the actual killer,‖ A.J. stated that he would follow the law but ―I prefer not to be in
that situation. . . . But if I place myself in that situation and I said to the court, yes,
you swear me in, I will follow the law.‖
The prosecutor then explained that the person in the hypothetical who
drove the car could be liable for a special circumstance ―if the jury finds that he
acted as a major participant and with a reckless indifference to human life.‖ The
prosecutor asked whether A.J. could follow the law making that person guilty of
the special circumstance. His initial answer was ―no.‖ The trial court interrupted
and explained that although the facts of the hypothetical were not those of the
present case, he should assume that they might equally put him in a situation in
which the law was in conflict with his conscience. The court asked whether he
could take the oath. A.J. responded, ―I am telling you that if I was sworn to
uphold the law as stated to me, I would do so.‖ In response to another question, he
reiterated that if he was a juror and ―I had taken an oath to uphold the law as stated
to me, I would do so.‖ He added, however, referring to the discussion about the
prosecutor‘s hypothetical, ―I would very much prefer not to be in that situation
because of the extreme conflict that would occur.‖

13
The prosecutor challenged A.J. for cause. Defense counsel disagreed, and
opined that the prosecutor‘s hypothetical was misleading. The trial court excused
Prospective Juror A.J. for cause. The court stated that it had ―more than a definite
impression‖ that the juror would be unable to apply the law if his views conflicted
with it. The court noted that although the prosecutor‘s hypothetical did not reflect
the circumstances of the present case, ―a key circumstance which could
conceivably be before this juror is somebody who is being considered for
punishment by the jury who did not preplan and did not intend to murder and who
was convicted under the felony-murder rule, and I think this juror has an extreme
conflict in that area, and I also have a definite impression that in spite of what he
said, this juror would have difficulty and probably be unable in any case of a
serious conflict between his personal views and the law to faithfully follow the
law.‖
A capital defendant‘s Sixth and Fourteenth Amendment right to an
impartial jury prohibits the exclusion of prospective jurors ―simply because they
voiced general objections to the death penalty or expressed conscientious or
religious scruples against its infliction.‖ (Witherspoon v. Illinois (1968) 391 U.S.
510, 522.) A prospective juror may be excused from serving in a capital case,
however, if his views on the death penalty would ― ‗prevent or substantially
impair‘ ‖ the performance of his duties as a juror. (Wainwright v. Witt (1985) 469
U.S. 412, 424 (Witt).) ―A prospective juror who would invariably vote either for
or against the death penalty because of one or more circumstances likely to be
present in the case being tried, without regard to the strength of aggravating and
mitigating circumstances, is . . . subject to challenge for cause, whether or not the
circumstance that would be determinative for that juror has been alleged in the
charging document.‖ (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005; see
People v. Livaditis (1992) 2 Cal.4th 759, 772 [juror who was unwilling to impose

14
the death penalty on a defendant who was young and had not previously killed was
properly excused]; People v. Pinholster (1992) 1 Cal.4th 865, 916-918 [trial court
properly excused prospective jurors who could not consider the death penalty in a
case involving an unplanned killing during a burglary but could consider it in
other situations, including if the murder were premeditated]; see People v. Fields
(1983) 35 Cal.3d 329, 357-358 [court may exclude jurors who would
automatically vote against the death penalty in the case before them, even if they
were willing to consider the death penalty in other cases].) ― ‗ ―[O]n appeal, we
will uphold the trial court‘s ruling if it is fairly supported by the record, accepting
as binding the trial court‘s determination as to the prospective juror‘s true state of
mind when the prospective juror has made statements that are conflicting or
ambiguous.‖ ‘ ‖ (People v. Jenkins (2000) 22 Cal.4th 900, 987.)3
We have held that a prospective juror‘s statements that he or she would
have a ― ‗hard time‘ ‖ voting for death or would find it ― ‗very difficult‘ ‖ to do so
―indicate a degree of equivocation on the juror‘s part which, taken into account
with the juror‘s hesitancy, vocal inflection, and demeanor, can justify a trial
court‘s‖ excusal of the juror under the Witt standard. (People v. Roldan (2005) 35
Cal.4th 646, 697.) Here, substantial evidence supports the trial court‘s conclusion
that A.J. would have difficulty following the law if faced with deciding the
punishment for a defendant convicted of felony murder who did not intend to kill.
Beginning with the questionnaire, A.J. consistently expressed concern about his
ability to follow the law if it conflicted with his moral views. Voir dire revealed

3 We have previously rejected defendant‘s argument, based on Greene v.
Georgia (1996) 519 U.S. 145, that we need not give deference to the trial court‘s
findings related to juror bias, concluding that California law on this point is
settled. (People v. Farnam (2002) 28 Cal.4th 107, 132.)

15
that his personal views were in ―extreme conflict‖ with the law making a felony
murderer guilty of first degree murder and eligible for the death penalty even if he
did not intend to kill. Although A.J. insisted that he would follow his oath as a
juror if sworn, he stated that he preferred not being placed in the position of
having to do so. The trial court noted that it had the ―definite impression‖ that
A.J. would be conflicted despite his promise to follow the law. Under these
circumstances, we defer to the trial court‘s conclusion that he would be unable to
follow the law if it seriously conflicted with his views.

B. Excusal for cause of Prospective Juror J.W.
Defendant similarly argues that his death sentence must be reversed
because Prospective Juror J.W. was erroneously excused for cause. The trial court
excused J.W., over objection by defense counsel, because it concluded he would
not be able to fairly consider the death penalty in a case in which the defendant did
not intend to kill. Defendant contends the trial court erred because the juror‘s
answers indicated that his views were consistent with the law. We disagree.
In his questionnaire, J.W. responded to the question about what he would
do if the law differed from his beliefs or opinions by writing, ―The law has to be.‖
Although he indicated he did not always agree with the law, he wrote: ―The law is
not always right. But it is the law.‖ He did not have strong feelings about the
death penalty; he did not like it, ―[b]ut it has[] to be.‖ He wrote that he could
follow the court‘s instructions regarding the factors to be considered in deciding
between a sentence of death and life without the possibility of parole, and that he
could set aside his personal feelings about what the law should be and follow the
law as the court explained it.
The trial court began voir dire by questioning J.W. about his attitudes
regarding the death penalty and life without the possibility of parole. J.W.

16
affirmed that if the law and facts justified it, he would be capable of voting for
either punishment. He felt that life imprisonment was the more severe
punishment, but could accept that the law regarded death as the more severe
punishment. He affirmed that if his personal views conflicted with the law, he
could follow the law.
In response to questioning from the prosecutor, J.W. stated that he would
favor life in prison over death for most people but he would apply the law. He
was sure that he could ―make . . . a proper decision.‖ The prosecutor explained the
felony-murder rule, including the same hypothetical she had used previously with
Prospective Juror A.J. regarding two accomplices who commit arson of a store at
night (―thinking, hoping, praying nobody‘s there‖), resulting in the death of a clerk
who was working late. J.W. agreed that both people in the hypothetical — the one
who drove the car and the one who set the fire — were equally responsible for the
death even though they did not intend the person to die, but stated that in that
scenario, ―I would go for life in prison without parole.‖ He explained that had
they known the clerk was there, however, ―that would be a different circumstance
and that might be a death sentence.‖ He affirmed that he could follow the law that
makes a person guilty of murder ―even though they didn‘t have any intention to
kill and they were not the actual killer.‖
The prosecutor then explained that a person could be eligible for the death
penalty ―even though they‘re not the actual killer and they had no intention to
kill,‖ if they ―act as a major participant in an underlying felony and they act with a
reckless indifference to human life.‖ When asked whether his personal beliefs
would prevent him from being able to ―seriously consider the death penalty in that
situation,‖ J.W. responded ―I‘m sure I could follow the law.‖ The prosecutor then
asked whether J.W. would have a ―hard time giving serious consideration to the
death penalty in that situation.‖ J.W. stated that ―if a person accidentally killed

17
somebody, it would be hard to give them the death penalty. If a person
deliberately killed somebody, then it‘s a different scenario.‖ When the prosecutor
asked again whether J.W. could really set aside his moral principles, he responded,
―I would do it. . . . I know, that‘s a hard one. I would do it.‖
The prosecutor continued to pursue the point, asking, ―In the situation
where someone doesn‘t have any intention to kill, do you feel that you could
seriously consider the death penalty?‖ J.W. responded, ―If a person flat had no
intention to kill . . . it would be hard to give them the death penalty. I don‘t know
that I would, but I don‘t know that I wouldn‘t.‖ J.W. then attempted to explain his
position with a hypothetical. ―[I]f someone was robbing a bank and they had a
gun and a guard pulled his gun out and he shot the guard, that‘s intentionally
killing him. If somebody was robbing a bank and somebody had a heart attack —
and I believe under the law, he‘s in for murder there. No, that — that wasn‘t an
intentional killing. . . . That would be the life in prison instead of the death
penalty.‖ The prosecutor then asked whether J.W. felt it necessary to have an
intent to kill in order to receive the death penalty. J.W. responded, ―Yes, I do. I
may not have noticed that when I came in here, but now that we‘ve talked.‖ He
affirmed that it would be hard for him to personally vote for the death penalty if
there was no intention to kill, and then clarified, ―If there was no intention [to] kill,
then I don‘t think that a person should have the death penalty.‖
The prosecutor rephrased the question, asking whether J.W. could not
impose the death penalty unless the defendant intentionally killed the victim, even
if the defendant had been convicted of first degree murder and a special
circumstance. J.W. then questioned whether a person could be convicted of first
degree murder if the person had not intentionally killed, stating that he did not
know the law. The trial court interjected, explaining that ―somebody can be
convicted of first degree special circumstance murder even though that person did

18
not personally kill the victim and even though that person did not have an intent to
kill.‖ The court stated that it could not go into the specifics of this case, but
―[w]e‘re talking in a hypothetical case [the prosecutor] gave you.‖ ―But the law
says that persons can be convicted of a first degree special circumstance murder
such that the jury would be called upon to decide which of those two punishments,
death or life without parole, was appropriate in a case where the defendant did not
have the intent to kill anybody. If a person was killed, for example, in the course
of one of the special — specified felonies, it was a felony-murder rule, and all the
other criteria that the attorneys have mentioned. That‘s the law.‖ The court then
asked whether J.W. could follow the law and whether he could honestly consider
all the circumstances in aggravation and mitigation before he decided the penalty.
J.W. responded, ―no, my mind would not be made up that I would not vote for the
death penalty.‖
The court then rephrased the question, asking whether there was ―some
absolute requirement, factually, regarding an intent to kill before you would ever
vote for the death penalty, no matter what the other evidence was?‖ J.W.
responded, ―Let me put it this way? If I — I thought that a person never
intentionally killed somebody, I would have trouble voting for the death penalty,
yes.‖ The court again rephrased the question, asking whether he would ―have
trouble giving any serious consideration‖ to the penalty phase evidence, ―you kind
of have your mind made up already?‖ J.W. responded, ―If he didn‘t deliberately
kill somebody or she, then I would have trouble giving the death sentence. If they
killed somebody, breaking the law or whatever, you know, and it was an accident
or whatnot, no, then they go to jail for the rest of their life or whatever.‖
The prosecutor challenged J.W. for cause. Defense counsel responded that
the questioning did not explain the requirement of major participation in the felony
and an indifference to human life, and the juror did not really understand that law.

19
Defense counsel observed that the prospective juror‘s hypothetical demonstrated
that he was thinking about an accident, someone who had a heart attack during a
bank robbery. Accordingly, defense counsel argued, the juror was confused and
did not have the whole picture
The court stated it was ready to rule, and granted the challenge to exclude
for cause. The court stated that J.W. had ―a predisposition to favor life without
possibility of parole and to reject the death penalty such that . . . he would
basically be precluded or, at the very least, appreciably impeded from engaging in
the weighing process that the law requires in the second phase.‖ The court
thought that ―this juror, ultimately, after all examination, understood that under the
law, somebody could be convicted of first degree murder and eligible for
consideration for the death penalty without an intent to kill, felony-murder rule
was explained, both sides had the opportunity to do that. And I think this juror
made it as clear as he could that if there was not an intent to kill, or a deliberate
killing, he wouldn‘t be able to vote for the death penalty or there was no
reasonable possibility of that.‖
As noted above, even if a prospective juror could fairly consider imposing
the death penalty in some types of cases, one ―who would invariably vote either
for or against the death penalty because of one or more circumstances likely to be
present in the case being tried, without regard to the strength of aggravating and
mitigating circumstances, is . . . subject to challenge for cause.‖ (People v.
Kirkpatrick (1994) 7 Cal.4th 988, 1005.) ― ‗ ―[O]n appeal, we will uphold the trial
court‘s ruling if it is fairly supported by the record, accepting as binding the trial
court‘s determination as to the prospective juror‘s true state of mind when the
prospective juror has made statements that are conflicting or ambiguous.‖ ‘ ‖
(People v. Jenkins, supra, 22 Cal.4th at p. 987.) ―If there is no inconsistency . . .
we will not set aside the court‘s determination if it is supported by substantial

20
evidence and hence is not clearly erroneous.‖ (People v. Cooper (1991) 53 Cal.3d
771, 809.)
J.W.‘s statements regarding his ability to consider a death sentence for
someone who did not intend to kill were conflicting. J.W. stated that he would
have trouble voting for the death penalty if the person did not intend to kill. After
the prosecutor explained the law that makes a person eligible for the death penalty
―even though they‘re not the actual killer and they had no intention to kill,‖ so
long as the person acted ―as a major participant in an underlying felony and . . .
with a reckless indifference to human life,‖ J.W. stated clearly that he would be
able to follow the law. However, he then indicated that ―If a person flat had no
intention to kill . . . it would be hard to give them the death penalty.‖ J.W.
affirmed that he felt it was necessary to have an intent to kill in order to receive
the death penalty. When the judge rephrased the question, he stated that his mind
would not be made up against the death penalty. Yet when the judge asked him
whether there was ―some absolute requirement‖ of an intent to kill before he could
impose the death penalty, J.W. repeated, ―If he didn‘t deliberately kill somebody
or she, then I would have trouble giving the death sentence.‖ Because Prospective
Juror J.W.‘s statements were conflicting and ambiguous, we must accept the trial
court‘s determination regarding his true state of mind. (See People v. Jenkins,
supra, 22 Cal.4th at p. 987.)
Defendant contends that J.W.‘s answers were not conflicting and his views
were consistent with the law. Only one of the questions he was asked specifically
mentioned a defendant who did not intend to kill but who also exhibited a reckless
disregard for life. In response to that question, he stated that he could follow the
law. The other questions he was asked referred to a defendant who did not intend
to kill, but said nothing about a reckless disregard for life. Thus, defendant argues,
J.W.‘s statements that he would have difficulty imposing a death sentence on a

21
defendant who did not intend to kill do not indicate he would have the same
difficulty with a defendant who acted with reckless disregard for life. This
conclusion is further supported, defendant contends, by the circumstance that J.W.
consistently explained that his difficulty was with imposing the death penalty for
an ―accidental‖ killing, demonstrating that he did not understand the questions
concerning an unintentional killing to include a killing committed with ―reckless
disregard for life.‖
Defendant‘s interpretation of J.W.‘s remarks is one reasonable
interpretation of the record. It is not, however, the only reasonable interpretation
of the record, and ―the question is not whether a reviewing court might disagree
with the trial court‘s findings, but whether those findings are fairly supported by
the record.‖ (Witt, supra, 469 U.S. at p. 434.) The trial court could fairly
conclude, taking into account not only J.W.‘s words but also his demeanor, that
his references to accidental killings were just one example of the circumstances in
which he would have difficulty imposing the death penalty. And because J.W. had
been informed about the ―reckless indifference to life‖ requirement, the trial court
could fairly conclude that he understood the law and could interpret his continued
statements that he would have a problem imposing the death penalty for an
unintentional killing to encompass killings that were committed with a reckless
disregard for life.

C. Trial court’s refusal to impanel separate juries for the guilt and
penalty phases
Defendant contends the trial court erred in refusing to impanel separate
juries for the guilt and penalty phases. In support of his motion for separate juries,
defendant presented a transcript of the testimony of Professor Edward Bronson, of
Chico State University, in another case. Professor Bronson testified that the
process of death qualification is prejudicial to a defendant in two ways. First, the

22
remaining jurors who are not eliminated tend to be less supportive of due process
values than those who were eliminated. Second, the process of death
qualification, by focusing on the death penalty and asking jurors to put themselves
in the position of having found defendant to be guilty, suggests to jurors that the
defendant is guilty and that their duty is to find him guilty, and it may also
desensitize them to their task. According to Professor Bronson, sequestered voir
dire would ―to some extent, minimize or mitigate those effects,‖ but would not
eliminate them. The trial court denied defendant‘s motion, concluding that much
of the potential prejudice resulting from death qualification could be avoided if the
court used individual, sequestered voir dire and if the court and counsel were
careful to impress upon the potential jurors that defendant‘s guilt was not a
foregone conclusion.
Section 190.4, subdivision (c), requires the same jury to decide guilt and
penalty absent good cause. We review the trial court‘s decision for abuse of
discretion. (People v. Bivert (2011) 52 Cal.4th 96, 108.) Dr. Bronson‘s testimony
supported only the conclusion that death-qualified juries in general tend to be
more likely to convict. ―This court and the United States Supreme Court have
repeatedly rejected the claim that separate juries are required because jurors who
survive the jury selection process in death penalty cases are more likely to convict
a defendant.‖ (People v. Davis (2009) 46 Cal.4th 539, 626; see Lockhart v.
McCree (1986) 476 U.S. 162; Hovey v. Superior Court (1980) 28 Cal.3d 1, 68-
69.) Nothing in Dr. Bronson‘s testimony or the studies he cited provided any
information significantly different from that which was considered in our previous
decisions. Indeed, Dr. Bronson testified that studies undertaken after Lockhart and
Hovey reached conclusions similar to those of the studies addressed in those cases
and he was not able to cite any significant new developments in the research.
Thus, Dr. Bronson‘s testimony provided no basis for the trial court to depart from

23
the holdings in these prior cases. Defendant offered no evidence to establish good
cause for a separate penalty jury based on the particular circumstances of this case.
The trial court took steps to reduce any prejudice to defendant that might result
from the jury selection process, including conducting individual, sequestered voir
dire. We find no abuse of discretion.

D. Exclusion of Morris’s alleged statements against interest
As noted above, witness Misty Abbott testified that Morris told her he
killed the victim, first attempting to strangle her and then, because she did not die,
taking a knife from the kitchen and stabbing her. This statement was admitted as a
declaration against Morris‘s penal interest. (Evid. Code, § 1230.) The defense
also sought to admit additional statements by Morris as declarations against
interest: (1) testimony by Misty Abbott that Morris told her defendant did not take
part in the killing and that after he ―did the lady‖ defendant and Wilson ―looked at
[Morris] as if they were saying, what in the hell are you doing, dude‖; and (2)
testimony by Albert Lawson that while he was incarcerated in the county jail,
Morris told him that defendant and Wilson were ―in the house but took no part in
the actual killing.‖ The trial court ruled that these statements were inadmissible
hearsay because they did not qualify as declarations against interest under
Evidence Code section 1230. Defendant contends that the trial court erred in
excluding these statements and that the trial court‘s ruling violated his Fifth
Amendment right to a fair trial, his Sixth Amendment right to present a defense,
and the Eighth Amendment‘s requirement of reliable procedures in death penalty
cases. (Crane v. Kentucky (1986) 476 U.S. 683; Chambers v. Mississippi (1973)
410 U.S. 284, 302.)

24
1. Applicable legal principles
There is an exception to the rule excluding hearsay for a statement against
interest — that is, one that ―when made, was so far contrary to the declarant‘s
pecuniary or proprietary interest, or so far subjected him to the risk of civil or
criminal liability, or so far tended to render invalid a claim by him against another,
or created such a risk of making him an object of hatred, ridicule, or social
disgrace in the community, that a reasonable man in his position would not have
made the statement unless he believed it to be true.‖ (Evid. Code, § 1230.) This
exception to the hearsay rule is ―founded on the assumption that a person is
unlikely to fabricate a statement against his own interest at the time it is made.‖
(Chambers v. Mississippi, supra, 410 U.S. at p. 299.) ―The proponent of such
evidence must show that the declarant is unavailable, that the declaration was
against the declarant‘s penal interest when made and that the declaration was
sufficiently reliable to warrant admission despite its hearsay character.‖ (People v.
Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).)
We review a trial court‘s ruling as to whether a statement is admissible as
against a declarant‘s penal interest for abuse of discretion. (People v. Lawley
(2002) 27 Cal.4th 102, 153 (Lawley).) ―In determining whether a statement is
truly against interest within the meaning of Evidence Code section 1230, and
hence is sufficiently trustworthy to be admissible, the court may take into account
not just the words but the circumstances under which they were uttered, the
possible motivation of the declarant, and the declarant‘s relationship to the
defendant.‖ (People v. Frierson (1991) 53 Cal.3d 730, 745 [trial court did not
abuse its discretion in excluding statement of third party that he had killed the
victim, where the statement was made 14 years after the murder and before
defendant‘s retrial on special circumstances and penalty, the declarant knew there
had been a prior verdict finding that defendant was the killer, and the trial ―court

25
could reasonably find [the declarant] wanted to aid his friend at little risk to
himself‖].)
Evidence Code section 1230‘s exception to the hearsay rule is ―inapplicable
to evidence of any statement or portion of a statement not itself specifically
disserving to the interests of the declarant.‖ (People v. Leach (1975) 15 Cal.3d
419, 441.) Even when the declarant admits culpability for a crime, those portions
of the declarant‘s statements that do not incriminate the declarant are inadmissible.
For example, in Lawley, supra, 27 Cal.4th at page 154, we concluded that portions
of a declarant‘s hearsay statement that did not specifically incriminate the
declarant were inadmissible. In that case, the defendant was convicted of murder
based on evidence that he hired one Seaborn to kill the victim. We held that the
trial court did not err in admitting Seaborn‘s hearsay statement that he was hired to
and did kill the victim, while excluding his hearsay statements that he had been
hired by the Aryan Brotherhood and that an innocent man was in jail for the crime.
The latter two statements, we observed, did not specifically disserve Seaborn‘s
interests.
Whether or not a statement is against penal interest can be determined only
by considering the statement in context. (Lawley, supra, 27 Cal.4th at p. 153.)
There are some circumstances in which a declarant‘s statement that fully or
partially exculpates the defendant while placing the greater part of the blame on
the declarant have been held to be sufficiently against the declarant‘s interests to
be admissible. In United States v. Paguio (9th Cir. 1997) 114 F.3d 928 (Paguio),
the defendants were a husband and wife who were charged with making false
statements on a loan application. (Id. at p. 929.) The defendants‘ lawyer and his
paralegal offered to testify concerning statements made by the husband‘s father,
who was a fugitive at the time of trial. (Id. at p. 931.) They would have testified
that the husband‘s father stated that ― ‗he was the one who was involved with

26
creating the false W-2‘s. He said his son had nothing to do with that.‘ ‖ (Id. at
p. 931, fn. 1.) The appellate court held that the trial court erred in excluding the
evidence as not sufficiently against interest: ―In context, the father‘s statement
that his son had nothing to do with it was inculpatory of the father as well as
exculpatory of the son. The father admitted not only participation but leadership,
leading his son and daughter-in-law into the abyss. Because leading others into
wrongdoing has always been seen as especially bad, there is a sentencing
enhancement for it. [Citation.] Also, in context, the inculpating and exculpating
statements were not practically separable.‖ (Id. at pp. 933-934; see United States
v. Lopez (10th Cir. 1985) 777 F.2d 543, 554 [trial court erred in excluding hearsay
statements of a passenger in a vehicle that he alone had placed cocaine into the
vehicle and that the defendant was not aware of the drugs prior to transporting
them].)
In Lawley, we distinguished Paguio in a footnote, noting that in Lawley,
―the reference to some unidentified ‗innocent man‘ being in jail for the murder did
not further incriminate [the declarant].‖ (Lawley, supra, 27 Cal.4th at p. 155, fn.
21.) The question, then, is whether portions of a declarant‘s statements
exonerating the defendant further incriminate the declarant; that is, whether they
are ―specifically disserving to the interests of the declarant.‖ (People v. Leach,
supra, 15 Cal.3d at p. 441.)
In excluding the proffered hearsay, the trial court reasoned that ―if
somebody is confessing to a murder and to personally being the one who stabbed
someone, that it does not in any way significantly enhance the personal detriment
to the confessor if he says nobody else had any part in it. . . . [T]he fact that the
others did or did not assist him isn‘t going to diminish his exposure, his public
ridicule, et cetera.‖ The trial court found People v. Gatlin (1989) 209 Cal.App.3d
31 (Gatlin) to be controlling.

27
The trial court may have been incorrect in its categorical statement that a
declarant who has admitted to murder does not enhance his personal culpability by
claiming that he acted alone. It is plausible that under some circumstances, as
defendant contends, such statements may subject the declarant to a risk of
increased criminal liability by establishing aggravating circumstances of the crime
under section 190.3, factor (a), which would make the declarant more deserving of
the death penalty. (See People v. Carpenter (1997) 15 Cal.4th 312, 414-415 [that
defendant acted alone could be considered by jury as a circumstance of the crime
in determining penalty]; People v. Howard (1992) 1 Cal.4th 1132, 1195
[defendant‘s role as the actual killer and motivating force behind the crime was a
factor aggravating his culpability].)
Although the trial court relied on Gatlin, supra, 209 Cal.App.3d 31, that
case is not on point. In Gatlin, the defendant was charged with burglary and
sought to offer recordings of statements made by three codefendants. The
codefendants claimed the defendant ―had nothing to do with [it].‖ (Id. at p. 44.)
However, the codefendants made these statements while disclaiming their own
involvement. (Ibid.) The Court of Appeal held that the exculpation of the
defendant was ―not specifically disserving‖ (ibid.) and that the defendant‘s
argument ignored the declarants‘ ―self-serving‖ (id. at p. 43) denials of culpability.
Thus, in Gatlin, the declarants‘ exoneration of the defendant clearly did not
suggest that the declarants were more culpable. Here, in contrast, Morris‘s
statements were made during a conversation in which he admitted that he
personally murdered the victim by choking and stabbing her.
Nevertheless, ―we review the ruling, not the court‘s reasoning and, if the
ruling was correct on any ground, we affirm.‖ (People v. Geier (2007) 41 Cal.4th
555, 582.) Below, we apply these principles separately to the portion of the

28
proffered statements by Morris describing defendant‘s reaction to the killing and
those portions asserting that defendant did not take part in the killing.
2. Statement regarding defendant’s reaction to the killing
We conclude that the trial court did not abuse its discretion in excluding the
portion of Misty Abbott‘s proposed testimony that Morris told her that after he
killed Bone, defendant and Wilson looked at him ―as if they were saying, what in
the hell are you doing, dude.‖ It was defendant‘s burden to establish that Morris‘s
statement describing defendant‘s reaction to the killing ―when made, . . . so far
subjected [Morris] to the risk of civil or criminal liability . . . that a reasonable
man in his position would not have made the statement unless he believed it to be
true.‖ (Evid. Code, § 1230; see Duarte, supra, 24 Cal.4th at pp. 610-611.)
Defendant contends this portion of Morris‘s statement qualifies as a
statement against interest because it meant that defendant was surprised that
Morris killed the victim and thus that Morris alone made the decision to kill, a
circumstance of the crime that could have aggravated Morris‘s potential sentence.
The statement, however, was not necessarily against Morris‘s interest when made
because its significance was unclear. Morris‘s description of defendant‘s look as
signifying ―what in the hell are you doing‖ suggests that Morris thought defendant
was surprised or alarmed, but not why he was surprised or alarmed. Defendant
might have reacted as described by Morris for any number of reasons — for
example, because of the manner in which Morris killed the victim or because of
the extreme efforts (both strangling and stabbing) he had taken to kill the victim.
If defendant‘s reaction was due to the circumstances, and not the fact, of the
killing, the statement did not imply that defendant was unaware that Morris was
going to kill the victim or that defendant was not involved in the decision to kill.
If so, it did not further incriminate Morris, who had described the circumstances of

29
the crime to Misty, telling her that he had personally choked and stabbed the
victim.
In light of defendant‘s own statements to police, defendant‘s theory that the
reaction described by Morris meant that defendant was surprised at the fact that
Morris had killed the victim is an unlikely interpretation. Defendant told the
police that he had observed Morris strangling Bone and heard Morris say that she
―won‘t die.‖ Later he saw Morris looking for a knife in the kitchen and then saw
or heard him stabbing Bone. Under these circumstances, he could not have been
surprised at the fact that Morris had killed Bone. Because Morris‘s proffered
statement was vague and subject to reasonable interpretations that did not further
incriminate Morris, the trial court did not abuse its discretion in concluding that
defendant failed to establish that the statement was one that ―a reasonable man in
[Morris‘s] position would not have made . . . unless he believed it to be true.‖
(Evid. Code, § 1230.)
3. Statements that defendant did not participate in the killing
Whether the proffered testimony that defendant did not participate in the
actual killing should have been admitted presents a closer question. On the one
hand, as defendant contends, we have recognized that a defendant‘s role as the
actual killer and motivating force behind a murder can be an aggravating factor.
(People v. Howard, supra, 1 Cal.4th at p. 1195.) Statements indicating that the
declarant was the sole killer could subject the declarant to a risk of increased
criminal liability by establishing aggravating circumstances of the crime. On the
other hand, given that Morris had admitted that he was the actual killer, and had
personally choked and stabbed the victim to death, it is not clear that his
statements that defendant was in another part of the house and ―took no part in the
actual killing‖ further incriminated Morris to such an extent that a reasonable
person in his position would not have made the statements unless they were true.

30
However, we need not decide whether the trial court erred, or whether any such
error violated defendant‘s constitutional rights, because, as explained below, we
conclude that the exclusion of Morris‘s statements regarding defendant‘s lack of
participation in the killing was harmless beyond a reasonable doubt.
4. Attorney General’s failure to timely brief the harmless error issue
The Attorney General did not argue, in her answer brief, that any error in
the exclusion of Morris‘s hearsay statements was harmless. The issue was
discussed at oral argument, after which we gave both parties the opportunity to
brief the issue of harmless error. In addition, although defendant did not argue in
his reply brief that the Attorney General had forfeited the harmless error issue by
failing to brief it, we also gave both parties the opportunity to address the question
of forfeiture. We conclude that the Attorney General‘s failure to respond to
defendant‘s harmless error argument does not relieve this court of its
responsibility to determine whether any error was harmless.
A forfeiture is the loss of a right by the failure to make a timely assertion of
it. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) When an appellant
fails to raise an issue in the opening brief, raising it for the first time in a reply
brief or at oral argument, we generally decline to address the issue or address it in
a summary manner. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claim
of ineffective assistance of counsel raised by defendant for the first time in reply
brief is forfeited]; People v. Harris (2008) 43 Cal.4th 1269, 1290 [defendant‘s
claim of ineffective assistance of counsel for failure to object to prosecutor‘s
argument, made for the first time in his reply brief in response to the Attorney
General‘s waiver argument, ―is as meritless as it is belated‖]; People v. Alvarez
(1996) 14 Cal.4th 155, 241, fn. 38 [― ‗perfunctorily‘ ‖ rejecting defendant‘s claim
of ineffective assistance of counsel, made for the first time in his reply brief and in
a single paragraph]; People v. Crow (1993) 6 Cal.4th 952, 960, fn. 7 [declining to

31
address issue raised by defendant for the first time at oral argument]; Varjabedian
v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [for reasons of fairness, court
would not consider issue raised by defendant for the first time in its reply brief];
see also People v. Barragan (2004) 32 Cal.4th 236, 254, fn. 5 [declining to
address an argument that the People, as petitioners in this court, raised for the first
time in their reply brief].) To allow an appellant to raise a new issue in its reply
brief or at oral argument, ―would be unfair to the respondent, and would increase
the labors of the court.‖ (Webber v. Clarke (1887) 74 Cal. 11, 13.)
A respondent‘s failure to address an argument raised by an appellant may,
under some circumstances, be interpreted as a concession. (See People v. Bouzas
(1991) 53 Cal.3d 467, 480, [stating that the People ―apparently concede‖ a point
made by the defendant to which they did not respond, either in briefing or in oral
argument].) We do not, however, invariably interpret the failure to respond to an
argument as a concession or a forfeiture. In People v. Hill (1992) 3 Cal.4th 959,
―[w]e decline[d] to find a [forfeiture] based on nothing more than respondent‘s
failure to respond to defendant‘s . . . argument, which was itself raised for the first
time on appeal. Such a rule would require a party to respond to his opponent‘s
every argument, subargument, and allegation, no matter how meritless or briefly
made.‖ (Id. at p. 995, fn. 3; see Canaan v. Abdelnour (1985) 40 Cal.3d 703, 722,
fn. 17 [court exercised discretion to address point that respondent raised for the
first time at oral argument, because ―the point is but one aspect of the larger
constitutional question‖], overruled on other grounds in Edelstein v. City and
County of San Francisco (2002) 29 Cal.4th 164, 168.)
Regardless, we have long recognized that, provided the parties have had a
fair opportunity to address the issues, ―[t]his court . . . is undoubtedly at liberty to
decide a case upon any points that its proper disposition may seem to require,
whether taken by counsel or not . . . .‖ (Hibernia Sav. and Loan Soc. v. Farnham

32
(1908) 153 Cal. 578, 584.) A reviewing court‘s authority to decide issues not
initially raised or briefed by the parties is recognized in Government Code section
68081, which requires that, before doing so, ―the court shall afford the parties an
opportunity to present their views on the matter through supplemental briefing.‖
(Gov. Code, § 68081.) ―An appellate court is generally not prohibited from
reaching a question that has not been preserved for review by a party.‖ (People v.
Williams (1998) 17 Cal.4th 148, 161, fn. 6.) In most instances, ―[w]hether or not
it should do so is entrusted to its discretion.‖ (Ibid.)
In this instance, however, we do not have discretion to decline to address
whether any error was harmless based on the Attorney General‘s failure to brief
the issue in a timely manner. We are prohibited by the state Constitution from
reversing a judgment unless, ―after an examination of the entire cause, including
the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.‖ (Cal. Const., art. VI, § 13.) The Attorney
General‘s failure does not relieve this court of its constitutional responsibility to
determine whether any error resulted in a miscarriage of justice.
Defendant agrees that, regarding state law error, the state Constitution
requires us to conduct harmless error analysis, and argues in this respect only that
he should be given adequate notice of the Attorney General‘s position and an
opportunity to respond to it. Ample notice and opportunity to respond were
provided in the present case, through both supplemental briefing and oral
argument.
Regarding errors of federal constitutional dimension, however, defendant
argues that because the beneficiary of federal constitutional error has the burden of
showing that the error was harmless beyond a reasonable doubt (Chapman v.
California, supra, 386 U.S. at p. 24), we should adopt the approach that federal
courts use when the government fails to argue that an error is harmless: the issue

33
is generally considered forfeited, but the court may exercise its discretion to
overlook the forfeiture, considering (1) the length and complexity of the record,
(2) whether harmlessness is certain or debatable, and (3) the futility and costliness
of further proceedings in the trial court. (United States v. Giovanetti (1991) 928
F.2d 225, 226-227.)
Although we must apply the federal standard of harmless error in
determining whether such a miscarriage has occurred (Chapman v. California,
supra, 386 U.S. at p. 21), the forfeiture rules employed in the federal courts are not
binding on this court. None of the federal cases cited by defendant suggest that
the forfeiture rules they apply are mandated by the federal Constitution. (See
United States v. Gonzalez-Flores (9th Cir. 2005) 418 F.3d 1093, 1100
[government‘s failure to argue nonconstitutional error was harmless usually
waives the issue, unless harmlessness is clear beyond any serious debate]; United
States v. Davis (3d Cir. 2013) 726 F.3d 434, 445, fn. 8 [applying same rule];
United States v. Cacho-Bonilla (1st Cir. 2005) 404 F.3d 84, 90 [noting that
because the government made no harmless error argument, defendants had no
chance to respond to any harmless error claim]; Hargrave v. McKee (6th Cir.
2007) 248 Fed.Appx. 718, 729 [concluding that even if the state did not forfeit the
harmless error argument by failing to raise it until oral argument, the court would
find the constitutional error not harmless]; United States v. Montgomery (8th Cir.
1996) 100 F.3d 1404, 1407 [stating the government‘s failure to raise harmless
error in its brief waived the argument on appeal but, exercising its discretion to
overlook the waiver and review the record on its own motion, court concluded the
error was not harmless]; United States v. Varela-Rivera (9th Cir. 2002) 279 F.3d
1174, 1180 [stating the government did not argue that the error was harmless and
this failure waived the argument]; United States v. Vallejo (9th Cir. 2001) 237
F.3d 1008, 1026 [same, adding that nevertheless, under the circumstances of the

34
case the error was not harmless].) Furthermore, most of these courts explicitly
recognize that they retain discretion to review the record and decide whether any
error was harmless even when the government fails to make the argument. This
recognition undermines any contention that the forfeiture rule applied by federal
courts is constitutionally mandated.
The state cases cited by defendant in support of his position are similarly
based on those states‘ own procedural rules and policies, not on federal
constitutional principles. (See State v. Almaraz (Idaho 2013) 301 P.3d 242, 256-
257 [relying on state case law holding that issues raised for the first time on appeal
at oral argument are not properly before the court]; Polk v. State (Nev. 2010) 233
P.3d 357, 359-361 [citing state rule of appellate procedure providing that if a
respondent fails to adequately respond to an appeal, the court may consider the
failure to respond as a confession of error].) These cases do not specifically
discuss a failure to address harmless error. In any event, they are not persuasive
because, as noted above, under the California Constitution, this court may not
reverse a judgment unless it is convinced that a miscarriage of justice has
occurred, and we clearly have the authority to address matters not initially raised
by the parties. (Cal. Const., art. VI, § 13; Gov. Code, § 68081.)
Justice Liu‘s concurring and dissenting opinion argues that we should adopt
the forfeiture rule used by the federal appellate courts, regardless of whether the
error is one of state law only or is of federal constitutional dimension. Even if
such a rule could be reconciled with our constitutional obligation to address
harmless error ―after an examination of the entire cause, including the evidence‖
(Cal. Const., art. VI, § 13), we are not persuaded that we should adopt it. If the
harmless error issue is a debatable one or the record is complex, we may exercise
our discretion to seek supplemental briefing and decide the issue with the benefit
of full briefing from the parties. This approach is fair to the parties and gives the

35
court the benefit of the parties‘ perspectives on an issue that we are obliged to
address. The federal approach might avoid delay and save some effort on a
reviewing court‘s part, but at the potential cost of an incorrect decision, resulting
in unnecessary relitigation.
Defendant suggests that if we do not attach some negative consequence to
the Attorney General‘s failure to brief harmless error, we are unfairly treating the
state, as a party, more leniently than we treat criminal defendants. We disagree.
We have occasionally exercised our discretion to permit defendants to file
supplemental briefs raising new issues in capital appeals. (See, e.g., People v.
Howard (2010) 51 Cal.4th 15, 26, 30, fn. 6, 33 [addressing on the merits three
different contentions raised for the first time in a supplemental brief]; People v.
Carrington (2009) 47 Cal.4th 145, 187, and docket entries, case No. S043628
[reversing two burglary convictions based on an argument made in defendant‘s
supplemental brief, which was filed after her reply brief].) Furthermore, because
our Constitution prohibits reversal of a judgment absent a finding that a
miscarriage of justice has occurred, a respondent and an appellant are not similarly
situated. Our obligation to address harmless error despite a respondent‘s default is
a result of the constitutional mandate and is not based on the party‘s status as
criminal defendant or the state.
5. Harmless error analysis
Turning to the merits of the harmless error argument, we conclude that the
exclusion of Morris‘s statements to Lawson and to Misty Abbott that defendant
did not participate in the killing does not require reversal of the special
circumstance finding and the death sentence. The most reasonable interpretation
of the proffered evidence that defendant did not participate in the killing, and that
he was in another part of the house and did not participate in the actual killing,
was that he did not participate in the act of killing. The prosecutor, however,

36
never argued that defendant participated in the act of killing. In order to find the
special circumstance to be true, the jury needed to find that defendant acted either
with reckless disregard for life or with the intent to kill. The prosecutor reminded
the jury, ―There‘s no requirement that he be the actual killer,‖ and she did not
suggest that he was. As the prosecutor argued, ―The fact the defendant may not
have killed Betty Bone himself is not of any significance in this case.‖
Indeed, the prosecution presented no evidence that defendant had actually
participated in the homicidal act. Defendant‘s statement to the police indicated
that he was present in the house while Morris killed Bone but that he did not
participate in the killing. Misty Abbott‘s testimony concerning Morris‘s
description of how he killed the victim did not include the involvement of any
other person. Likewise, defendant‘s out-of-court statement to jailhouse informant
Howe was that he never personally touched the victim and his DNA would not be
found on the body. No DNA or other evidence linked defendant to the actual
killing. Although Morris‘s grandfather testified that Morris had told him that
others were wrongly blaming him for the murder, that statement was admitted
only for purposes of impeachment and, in any event, nothing in it suggested that
defendant assisted Morris in killing Bone.
The prosecution did present testimony from jailhouse informant Howe that
defendant admitted he had ordered Morris and Wilson to kill the victim, and
argued that Howe‘s testimony supported a true finding on the special circumstance
allegation on the theory that defendant acted with the intent to kill. Defendant
argues that the excluded evidence would have caused the jury to doubt Howe‘s
otherwise uncontradicted testimony that defendant ordered the killing. We find no
reasonable possibility that the excluded evidence would have caused the jury to
doubt Howe‘s testimony. Statements that defendant did not participate in the
actual killing were not inconsistent with Howe‘s testimony that defendant

37
admitted he ordered Morris to kill Bone, and they were consistent with Howe‘s
testimony that defendant said he had never touched Bone.
Likewise, at the penalty phase, the prosecution did not suggest that
defendant participated in the actual killing; it instead suggested only that he
ordered Morris and Wilson to do it and stood by while it was done. As observed
above, there is no reasonable possibility that the jury would have interpreted
Morris‘s statements as inconsistent with Howe‘s testimony that defendant
admitted he ordered the killing.
Defendant argues that Morris‘s statement to Lawson that defendant was ―in
another part of the house‖ during the killing would have contradicted Howe‘s prior
statement to Detective O‘Connor that defendant told him he watched the killing
and enjoyed watching it, thereby negating these potential aggravating
circumstances of the crime as well as tending to impeach Howe‘s testimony
generally. We find no reasonable possibility that the admission of Morris‘s
statements would have changed the jury‘s view of Howe‘s testimony, for several
reasons. First, defendant in his own statement to the police admitted that he had
observed at least some of Morris‘s actions. He conceded that he saw Morris
strangling the victim and he specifically described Morris‘s action in stabbing the
victim as well as the sounds of the stabbing. Second, there is no real conflict
between Howe‘s statement to the detective that defendant told him he watched the
murder and Morris‘s statement that defendant was in another part of the house
during the killing. Morris‘s killing of Bone was a protracted effort. As defendant
himself described it, he was moving about the house looking for items to steal; he
was in another part of the house some of the time but he also returned to Morris‘s
location, or at least close enough to observe his actions, at other times. Third,
Howe himself, in his testimony, disavowed his statement to the detective that
defendant told him he had watched the killing. Howe testified that he did not

38
know where defendant was during the killing; he may have assumed defendant
watched the killing but could not be certain that defendant admitted to doing so.
He was uncertain whether defendant told him he enjoyed watching the killing or
that he enjoyed the fact that the victim died. Under these circumstances, it is
highly improbable that the jury would have viewed Morris‘s statement that
defendant was in another part of the house during the killing as grounds for
disbelieving any part of Howe‘s testimony. We find no reasonable possibility that
the exclusion of Morris‘s statements that defendant did not participate in the
killing and was in another part of the house made a difference in the outcome at
either the guilt or penalty phase.

E. Instructions on circumstantial evidence
The trial court read to the jury a standard instruction regarding
circumstantial evidence, CALJIC No. 8.83, which informed the jury that (1) each
fact that is essential to complete a set of circumstances necessary to establish the
truth of a special circumstance must be proved beyond a reasonable doubt, and (2)
if there are two reasonable interpretations of the circumstantial evidence, the jury
must accept the one that favors defendant. Defendant argues that instructing the
jury regarding these principles only in connection with circumstantial evidence
could cause the jury to believe that the principles did not apply when direct
evidence is used. (See People v. Vann (1974) 12 Cal.3d 220, 226-227 [instruction
on circumstantial evidence, in the absence of a general instruction requiring proof
of guilt beyond a reasonable doubt, might have been interpreted by jurors as
requiring a lesser degree of proof if the evidence is direct].) He contends the
instruction undermined the requirement of proof beyond a reasonable doubt as
applied to direct evidence. He further argues that this instructional error requires
reversal of the special circumstance finding because it could have affected the

39
jury‘s consideration of Howe‘s testimony, which was direct evidence that
defendant intended to kill.
The Attorney General contends that defendant forfeited this claim by
failing to request that the trial court modify the standard instruction. We agree.
―A party may not complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.‖ (People v. Lang (1989)
49 Cal.3d 991, 1024; see People v. Livingston (2012) 53 Cal.4th 1145, 1165
[defendant forfeited claim that instruction discussing proof by direct evidence
should have included additional principles related to the burden of proof beyond a
reasonable doubt that were contained in the instruction on circumstantial
evidence]; People v. Bolin (1998) 18 Cal.4th 297, 328 [defendant forfeited claim
that instruction directing jury to find special circumstance not true if it had a
reasonable doubt as to its truth was incomplete because it did not define
reasonable doubt or direct the jury to find the special circumstance ―beyond a
reasonable doubt‖].) The instructions regarding circumstantial evidence were not
incorrect or inapplicable and defendant did not request any modification of the
instructions to address the concerns he now presents.
Were we to address the merits, we would have to reject the claim. An
instruction ―[d]ifferentiating between direct and circumstantial evidence does not
undermine the reasonable doubt standard or presumption of innocence.‖ (People
v. Livingston, supra, 53 Cal.4th at p. 1166.) We addressed and rejected claims
nearly identical to defendant‘s in People v. Livingston and in People v. Soloman
(2010) 49 Cal.4th 792, 825- 827. In People v. Soloman, the defendant argued that
because the instruction on circumstantial evidence did not refer to direct evidence,
―jurors would have believed that a fact essential to guilt that was based on direct,
rather than circumstantial, evidence need not be proved beyond a reasonable

40
doubt.‖ (Id. at p. 826.) We noted that the trial court had instructed the jury that
both direct and circumstantial evidence were acceptable means of proof, that the
defendant was to be presumed innocent, and that ― ‗in case of a reasonable doubt
whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.‘ ‖
(Ibid., quoting CALJIC No. 2.90.) ―These instructions, coupled with the directive
to ‗consider the instructions as a whole and each in light of the others,‘ fully
apprised the jury that the reasonable doubt standard applied to both forms of
proof.‖ (People v. Soloman, supra, at p. 826.)
As in People v. Soloman, the trial court in the present case fully instructed
the jury on the presumption of innocence, the requirement of proof beyond a
reasonable doubt, and to consider the instructions as a whole. We see no
reasonable likelihood that because the jury was given some additional, more
detailed, direction about how to apply the reasonable doubt standard to
circumstantial evidence, but was not given such direction regarding direct
evidence, the jury would have concluded that the reasonable doubt standard did
not fully apply to proof by direct evidence.
Furthermore, the jury received additional relevant instructions applicable to
the direct evidence with which defendant is here concerned — Howe‘s testimony
that defendant told him he ordered the killing, which was evidence of defendant‘s
intent. The jury was instructed that ―if the evidence as to any specific intent or
mental state is susceptible of two reasonable interpretations, one of which points
to the existence of the specific intent or mental state and the other to the absence
of the specific intent or mental state, you must adopt that interpretation which
points to the absence of the specific intent or mental state.‖

41
F. Failure to instruct that the jury must unanimously agree on any
overt acts required for conspiracy to commit robbery
Defendant was convicted of conspiracy to commit robbery. Conspiracy to
commit a crime requires proof of an overt act committed in pursuance of the
conspiracy. (§ 184.) The information alleged five different overt acts in
furtherance of the conspiracy. Defendant contends the trial court erred in failing
to instruct the jury that it could not convict defendant of conspiracy unless the
jurors unanimously agreed regarding the required overt act. Defendant concedes
that this court has previously rejected the argument that jury unanimity regarding
the overt act is required under state law. (People v. Russo (2001) 25 Cal.4th 1124,
1135 (Russo).) He contends, however, that Russo did not consider whether the
federal Constitution requires the agreement of at least a majority of jurors on the
overt act. Defendant cites cases holding that the Fifth, Sixth, and Fourteenth
Amendments of the federal Constitution require a jury trial and proof beyond a
reasonable doubt on all elements of the offense (Sandstrom v. Montana (1979) 442
U.S. 510, 512-514; Mullaney v. Wilbur (1975) 421 U.S. 684, 697-698; In re
Winship (1970) 397 U.S. 358, 363-364; Morissette v. United States (1952) 342
U.S. 246, 274-275) and the agreement of some minimum number of jurors (Burch
v. Louisiana (1979) 441 U.S. 130 [conviction by a nonunanimous six-person jury
violated defendant‘s right to a jury trial]; Johnson v. Louisiana (1972) 406 U.S.
356 [agreement of nine out of 12 jurors is sufficient]).
None of the cases cited by defendant calls into question our prior
conclusion that the jurors need not agree unanimously on which ―overt act‖ of a
conspiracy was proved. Russo reasoned that the jury must agree on what crime
was committed, not how that crime was committed. ―Although the jury had to
find at least one overt act, whether it was one or another of several possible acts
only concerns the way in which the crime was committed, i.e., the theory of the

42
case, not whether discrete crimes were committed. Thus, if the jurors disagreed as
to what overt act was committed, and agreed only that an overt act was committed,
they would still have unanimously found defendant guilty of a particular
conspiracy.‖ (Russo, supra, 25 Cal.4th at p. 1135.) Consistently with our
reasoning in Russo, the United States Supreme Court has recognized that when the
defendant‘s alleged conduct constitutes a single offense that may be committed in
different ways, the federal Constitution does not require unanimity regarding how
the crime was committed. (Schad v. Arizona (1991) 501 U.S. 624, 629-645 [due
process clause does not require a jury to agree unanimously whether a charge of
first degree murder was committed by an intentional, premeditated killing or by
felony murder]; id. at p. 649 (conc. opn. of Scalia, J.) [―it has long been the
general rule that when a single crime can be committed in various ways, jurors
need not agree upon the mode of commission‖]; see also United States v. Kozeny
(2d Cir. 2011) 667 F.3d 122, 132 [jury need not agree on a single overt act to
sustain a conspiracy conviction]; United States v. Griggs (7th Cir. 2009) 569 F.3d
341, 343 [same]; United States v. Sutherland (5th Cir. 1981) 656 F.2d 1181
[same].)

G. Discovery order
Defendant contends that discovery ordered against the defense under
section 1054.5 is unconstitutional and violates the federal and state privileges
against self-incrimination and rights to effective assistance of counsel. Defendant
recognizes that we rejected the same arguments in Izazaga v. Superior Court
(1991) 54 Cal.3d 356, but, in order to preserve the issue for federal review,
contends that case was wrongly decided and should be reconsidered. We decline
to do so.

43
H. Refusal of request to instruct that the jury must unanimously agree
on the theory supporting the special circumstance verdict
The robbery and burglary special circumstance allegations required that
defendant either intended to kill or was a major participant in the felony and
exhibited a reckless disregard for life. (§ 190.2, subds. (c) & (d).) The trial court
refused to instruct the jury that it must agree unanimously on the theory that
supported the special circumstance allegation. Defendant acknowledges that when
a charge is prosecuted under different legal theories, the jury need not agree
unanimously on which legal theory applies. (See, e.g., People v. Jenkins, supra,
22 Cal.4th at p. 1024 [jury need not agree whether defendant is guilty of murder
based on a theory of direct culpability or a theory of accomplice liability]; People
v. Edwards (1991) 54 Cal.3d 787, 824 [jury need not agree unanimously which
acts constitute lying in wait]; People v. Failla (1966) 64 Cal.2d 560, 567 [in
burglary case, jurors need not agree unanimously regarding which felony the
defendant intended at the time of entry].) Defendant contends this is a case in
which he was prosecuted under a single legal theory, with alternative factual
theories that (1) defendant ordered Morris to kill the victim, in which case he acted
with intent to kill, or (2) he did not order the killing but was a major participant in
the robbery and his conduct evidenced a conscious disregard for life. Under these
circumstances, defendant contends, the jury must agree unanimously on the acts
constituting the offense. He contends that the omission of the unanimity
instruction violated his Sixth Amendment right to a jury trial and his Eighth
Amendment right to heightened reliability in a capital case.
A unanimity instruction is required if there is evidence that more than one
crime occurred, either of which could provide the basis for conviction under a
single count. (See People v. Diedrich (1982) 31 Cal.3d 263, 281 [when evidence
suggested more than one act of bribery, jury must agree unanimously which act

44
was the basis for conviction]; see People v. Beardslee (1991) 53 Cal.3d 68, 92 [―A
requirement of jury unanimity typically applies to acts that could have been
charged as separate offenses‖].) On the other hand, the unanimity instruction is
not required ― ‗where multiple theories or acts may form the basis of a guilty
verdict on one discrete criminal event.‘ ‖ (Russo, supra, 25 Cal.4th at p. 1135,
italics added.) ―[W]here the evidence shows only a single discrete crime but
leaves room for disagreement as to exactly how that crime was committed or what
the defendant‘s precise role was, the jury need not unanimously agree on the basis
or, as the cases often put it, the ‗theory‘ whereby the defendant is guilty.‖ (Id. at
p. 1132.) This is true even if the two theories are based on different facts. (People
v. Jenkins, supra, 22 Cal.4th at p. 1025 [unanimity instruction not required even
where ―different facts would support aiding and abetting liability and liability as a
direct perpetrator‖].)
In the present case, there was no evidence that more than one crime of
murder was committed. Rather, the evidence left ―room for disagreement as to
exactly how that crime was committed or what the defendant‘s precise role was.‖
(Russo, supra, 25 Cal.4th at p. 1132.) When the defendant‘s alleged conduct
constitutes a single offense that may be committed in different ways, the federal
Constitution does not require unanimity on how the crime was committed. (Schad
v. Arizona, supra, 501 U.S. 624 [due process clause of U.S. Const. does not
require jury to agree unanimously whether charge of first degree murder was
committed by an intentional, premeditated killing or by felony murder].)
Defendant analogizes this case to People v. Dellinger (1985) 163
Cal.App.3d 284, 300-302, in which the Court of Appeal held that the defendant
was entitled to a unanimity instruction because evidence suggested that the
defendant could have killed the victim either by blunt force trauma or by cocaine
poisoning. Dellinger recognized that in most of the cases that have addressed the

45
need for a unanimity instruction, there were not only multiple criminal acts that
could have constituted the charged offense but also potentially multiple offenses.
(Id. at p. 301.) In contrast, in Dellinger, ―there was only one offense and one
victim but there were several hypotheses as to which act or acts caused [the
victim‘s] death.‖ Nevertheless, the appellate court concluded that a unanimity
instruction was required. ―As long as there are multiple acts presented to the jury
which could constitute the charged offense, a defendant is entitled to an instruction
on unanimity.‖ (Ibid.)
Even assuming that Dellinger was correctly decided, it is factually
distinguishable from the present case. Here, there was no dispute as to what acts
caused the victim‘s death. We have previously concluded the holding of Dellinger
does not extend to the situation in which the defendant could have been convicted
as an aider and abettor to a murder or as the actual killer based on a single course
of conduct. (People v. Beardslee, supra, 53 Cal.3d at p. 93.) Much less should it
apply in the present case, in which there was no dispute that defendant was guilty
of murder even though he was not the actual killer, and the only issue was whether
he acted with the intent to kill or as a major participant in the felony with a
reckless disregard for life. No unanimity instruction was required.

I. Misreading of the instruction on the mental state element of the
felony-murder special circumstance
To prove the felony-murder special circumstance, the prosecution was
required to prove either that defendant aided the murder with the intent to kill, or
acted as a major participant in the felony and exhibited a reckless indifference to
human life. (§ 190.2, subds. (c) & (d).) The written instructions, which were
provided to the jury, correctly explained that ―[a] defendant acts with reckless
indifference to life when that defendant knows or is aware that his acts involve a
grave risk of death to an innocent human being.‖ (Italics added.) However, when

46
reading the instruction, the trial court told the jury that ―[a] defendant acts with
reckless indifference to life whether [he] knows or is aware that his acts involve a
grave risk of death to an innocent human being.‖ (Italics added.) Defendant
contends this instruction was erroneous, because the trial court apparently
substituted the word ―whether‖ for ―when,‖ thereby indicating that reckless
indifference could exist whether or not defendant knew or was aware that his acts
caused a grave risk of death. He contends this instruction misstated the law and
violated his rights under the Fifth and Sixth Amendments of the federal
Constitution.
―The risk of a discrepancy between the orally delivered and the written
instructions exists in every trial, and verdicts are not undermined by the mere fact
the trial court misspoke.‖ (People v. Mills (2010) 48 Cal.4th 158, 200.) ―[W]e
often have held that when erroneous oral instructions are supplemented by correct
written ones, we assume the jury followed the written instructions, particularly
when, as here, the jury is instructed that the written version is controlling.‖
(People v. Mungia (2008) 44 Cal.4th 1101, 1132; see People v. Osband (1996) 13
Cal.4th 622, 687 [noting that the jury was instructed to be ― ‗governed only by
[each] instruction in its final wording, whether printed, typed or handwritten‘ ‖].)
Here, the jury was instructed just before the beginning of deliberations that it
would be provided with the instruction in written form and that ―the instructions
may be typed, printed or handwritten. Portions may have been added or
deleted. . . . Every part of the text of an instruction, whether typed, printed, or
handwritten is of equal importance. You are to be governed only by the
instruction in its final wording.‖
Even if we do not assume that the jury understood that the written
instructions were controlling, there is no reasonable likelihood that the jury
misunderstood the requirements for proof of the felony-murder special

47
circumstance. ―When an appellate court addresses a claim of jury misinstruction,
it must assess the instructions as a whole, viewing the challenged instruction in
context with other instructions, in order to determine if there was a reasonable
likelihood the jury applied the challenged instruction in an impermissible
manner.‖ (People v. Wilson (2008) 44 Cal.4th 758, 803.) Here, the instruction as
read to the jury was, at most, ambiguous. Both the prosecution and the defense
focused on the ―reckless indifference‖ element of the special circumstance in their
arguments, and correctly stated that it required that defendant knew his act created
a grave risk of death. The prosecutor stated, ―The definition of a reckless
indifference to human life as taken from the jury instruction itself is that the
defendant knows or is aware that his acts involve a grave risk of death to an
innocent human being.‖ ―Mr. Grimes knew there was a grave risk by going into
this house with these people that Betty Bone was gonna be killed . . . . So when
we talk about reckless indifference, knowing or being aware that your acts involve
a grave risk . . . it‘s his knowledge and his awareness at the time that he goes into
this residence as to what could potentially happen to this woman.‖ Defense
counsel correctly read the instruction to the jury: ―I know I have read it, but I‘ll
read it to you again. . . . A defendant acts with reckless indifference to human life
when that defendant knows or is aware that his acts involve a grave risk of death
to an innocent human being.‖ ―The law on the special circumstance above and
beyond the first degree murder, is that Mr. Grimes must know or be aware that his
acts, his conduct, what he does, involves a grave risk of death to an innocent
human being.‖ ―That‘s how reckless indifference is defined, when that defendant
knows or is aware that his acts involve a grave risk of death to an innocent human
being.‖ In light of counsel‘s repeated statements and the correct written
instructions, there is no reasonable likelihood that the jury was misled by the trial
court‘s misstatement.

48
J. Instructions on the robbery element of the felony-murder special
circumstance
The jury was instructed that the felony-murder special circumstance could
not be found true unless, among other things, the prosecution proved ―the murder
was committed in order to carry out or advance the commission of the crime of
robbery or to facilitate the escape therefrom or to avoid detection.‖ The jury was
correctly instructed on the elements of robbery. Defendant nevertheless contends
the robbery special-circumstance finding must be reversed because the trial court
erred in instructing the jury with CALJIC No. 2.15, which told the jurors that if
they found defendant had been in possession of stolen property, that was not
enough to support a conviction of robbery and that corroborating evidence tending
to prove defendant‘s guilt also is required, but ―this corroborating evidence need
only be slight, and need not by itself be sufficient to warrant an inference of guilt.‖
Defendant contends that CALJIC No. 2.15 provided the jury an option of
convicting defendant of robbery based on his possession of stolen goods plus some
corroborating evidence, without finding all the elements of robbery. He also
contends that it unconstitutionally lightened the state‘s burden of persuasion by
permitting a conviction based on ―slight evidence.‖
We have previously rejected the same arguments, concluding that CALJIC
No. 2.15 appropriately permits — but does not require — jurors to infer guilt of
burglary, robbery, or theft from the possession of stolen property plus some
corroborating evidence, and that it does not violate due process or reduce the
burden of proof. (See People v. Gamache (2010) 48 Cal.4th 347, 375; People v.
Parson (2008) 44 Cal.4th 332, 355-356; People v. Smithey (1999) 20 Cal.4th 936,
975-977.)
Defendant relies upon federal conspiracy cases that have found a violation
of due process because the jury was instructed, over the defendant‘s objection, that

49
― ‗[o]nce the existence of the agreement or common scheme of conspiracy is
shown, . . . slight evidence is all that is required to connect a particular defendant
to the conspiracy.‘ ‖ (United States v. Partin (5th Cir. 1977) 552 F.2d 621, 628;
see United States v. Durrive (7th Cir. 1990) 902 F.2d 1221, 1228 [concluding that
on appellate review, reviewing court must find ―substantial evidence,‖ rather than
―slight evidence,‖ connecting defendant to the conspiracy]; United States v. Dunn
(9th Cir. 1977) 564 F.2d 348, 356-357 [clarifying that defendant‘s connection to
the conspiracy need only be slight, but the connection must be proved beyond a
reasonable doubt].) According to these cases, the ―slight evidence‖ instruction
― ‗reduced the level of proof necessary for the government to carry its burden by
possibly confusing the jury about the proper standard or even convincing jury
members that a defendant‘s participation in the conspiracy need not be proved
beyond a reasonable doubt.‘ ‖ (United States v. Partin, supra, at p. 629, quoting
United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1256.)
The problem with the instruction addressed in these federal cases is that it
permitted the jury to conclude that defendant was a participant in the conspiracy
based only on ―slight evidence.‖ By contrast, the CALJIC No. 2.15 permits
conviction of theft-related offenses based upon evidence that the defendant was
recently found in possession of stolen property plus additional, ―slight,‖
corroborating evidence. We have recognized that ―[p]ossession of recently stolen
property is so incriminating that to warrant conviction there need only be, in
addition to possession, slight corroboration in the form of statements or conduct of
the defendant tending to show his guilt.‖ (People v. McFarland (1962) 58 Cal.2d
748, 754.) Defendant‘s reliance on the federal conspiracy cases is, therefore,
inapt.

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K. Admission of testimony from a jailhouse informant
Jonathan Howe, an inmate in the county jail where defendant was
incarcerated before trial, testified at trial regarding admissions that defendant
made to him. Before trial, defense counsel unsuccessfully moved to exclude
Howe‘s testimony on several grounds, but he did not contend that the testimony
should be excluded on the ground that Howe‘s plea agreement with the
prosecution placed him under a strong compulsion to testify in accordance with his
pretrial statements. Defendant contends his counsel rendered constitutionally
deficient assistance in failing to move to exclude or strike Howe‘s testimony on
this latter ground.
It is proper for the prosecution to present the testimony of a witness
pursuant to a plea bargain if the witness believes that the agreement merely
requires him to testify truthfully. (People v. Garrison (1989) 47 Cal.3d 746, 768;
People v. Johnson (1989) 47 Cal.3d 1194, 1229.) A defendant is denied a fair
trial, however, if a plea agreement places the witness under ―a strong compulsion
to testify in a particular fashion.‖ (Garrison, supra, at p. 768.) Here, there is no
evidence that Howe was under any compulsion to testify in accordance with his
previous statements. Howe pleaded guilty to certain pending charges and agreed
to a sentence of up to 24 months in exchange for the dismissal of other charges.
He had been offered this same agreement before he came forward with
information regarding defendant, except that the sentence would have been an
agreed-upon term of 24 months. The actual length of his sentence would be
decided by the same judge who was presiding in the present case, depending upon
his determination as to whether Howe testified truthfully. The written plea
agreement stated that Howe had ―an obligation to do nothing other than to tell the
truth, fully and accurately.‖

51
Defendant argues that because the prosecution put Howe through a voice
stress test and two polygraphs before his testimony, it was clear to Howe that the
prosecution believed his pretrial statements were truthful and he therefore would
have understood the agreement to testify truthfully to mean he was required to
testify in accordance with his pretrial statements. The record demonstrates that
any such notion was dispelled by the trial court‘s very clear direction that Howe
was to tell the truth in court regardless of what he may have said previously. At
his plea hearing, Howe told the judge that it was his understanding that he would
have to testify truthfully and ―consistent with any report I‘ve — I‘ve made so far
in this case.‖ The judge clearly explained to him that he was to ―testify truthfully
whether or not it‘s consistent with any other statement. . . . [I]f telling the truth
here, the actual truth, would be inconsistent with something you‘ve previously
said, that fact that it‘s inconsistent will not cause me to conclude that you‘re not
being truthful. . . . In other words, I don‘t want you to think in any way,
Mr. Howe, that for me to believe you‘re telling the truth that what you say here in
this courtroom has to be consistent with something you‘ve said before. . . . In
other words, do not say something that isn‘t true because it‘s consistent with what
you said previously to law enforcement, in hopes that I will therefore conclude
you‘re telling the truth here.‖ Howe repeatedly affirmed that he understood.
Given these facts, any challenge to Howe‘s testimony on the grounds that he was
under pressure to testify consistently with his former statements would have been
unsuccessful. There being nothing in the record to demonstrate defense counsel
performed deficiently by failing to challenge Howe‘s testimony on these grounds,
relief on direct appeal is unwarranted. (See People v. Mendoza Tello (1997) 15
Cal.4th 264, 266-267; People v. Pope (1979) 23 Cal.3d 412, 426.)

52
L. Alleged deficient performance by counsel in advising defendant to
reject plea bargain
Defendant contends that his trial counsel performed deficiently in advising
him to reject a plea bargain that would have avoided the death penalty before
counsel was sufficiently familiar with the case to render such advice. Because the
record does not establish what counsel knew about the case at the time the plea
bargain was refused or what advice counsel gave to defendant, defendant has not
shown that his counsel‘s actions fell below an objective standard of
reasonableness.
Defendant was charged with murder and special circumstances in October
of 1995 and pled not guilty. Fifteen months later, in January of 1997, the District
Attorney of Shasta County, Dennis Sheehy, notified defendant‘s counsel that he
had decided not to seek the death penalty. Because defendant was not the actual
killer, District Attorney Sheehy did not believe that a jury would impose the death
penalty. Shortly thereafter, Mr. Sheehy resigned as the district attorney and
McGregor Scott replaced him. On May 23, 1997, in response to defendant‘s
Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), the court appointed
new counsel, Richard Maxion, for defendant. Two weeks after Maxion was
appointed, on June 6, District Attorney Scott informed the court that he would be
seeking the death penalty as of June 27 unless, prior to that date, defendant
decided to plead guilty to special circumstances murder. In court on June 27,
defense counsel stated that his client would not be pleading guilty and the
prosecutor announced that he would be seeking the death penalty.
Prior to trial, defendant moved to prohibit the prosecution from seeking the
death penalty on a number of grounds, including claims that the decision to seek
the death penalty constituted vindictive prosecution and that defendant was denied
effective assistance of counsel because counsel Richard Maxion had not been

53
given enough time to attempt to persuade the district attorney not to seek death.
At the hearing on defendant‘s motion the trial court rejected the claim that the
prosecution‘s offer to allow the defendant a three-week period to decide whether
to plead guilty in exchange for a life sentence denied defendant effective
assistance of counsel because it was made only two weeks after new counsel was
appointed. Testimony established that defense counsel had agreed to the deadline,
and that the prosecutor would have given him more time if he had asked for it.
Here, defendant contends that his counsel rendered constitutionally
deficient assistance in advising him not to accept the plea before he had
adequately familiarized himself with the case. A defendant has the right to
effective assistance of counsel in deciding whether to accept or reject a proposed
plea agreement. (See In re Alvernaz (1992) 2 Cal.4th 924, 937.) In order to
establish a claim of constitutionally deficient performance by counsel, defendant
must establish that (1) counsel‘s representation fell below an objective standard of
reasonableness under prevailing professional norms; and (2) there is a reasonable
probability that, but for counsel‘s failings, the result would have been more
favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-696.)
―[A] defense attorney‘s simple misjudgment as to the strength of the prosecution‘s
case, the chances of acquittal, or the sentence a defendant is likely to receive upon
conviction, among other matters involving the exercise of counsel‘s judgment, will
not, without more, give rise to a claim of ineffective assistance of counsel.‖ (In re
Alvernaz, supra, at p. 937.) ―When a claim of ineffective assistance is made on
direct appeal, and the record does not show the reason for counsel‘s challenged
actions or omissions, the conviction must be affirmed unless there could be no
satisfactory explanation.‖ (People v. Anderson (2001) 25 Cal.4th 543, 569; see
People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.).)

54
The record does not show how much counsel knew about the case, how
counsel advised defendant, or what defendant‘s response was. There is no
evidence that he did not advise defendant to accept the offer. Defendant contends
that the record demonstrates that counsel could not have had a sufficient
understanding of the case to adequately advise defendant at the time that defendant
declined the plea offer and that, if properly advised, defendant would have
accepted the plea. He bases this conclusion on the fact that during jury selection
(was more than a year after defendant declined the offer), when counsel was fully
prepared for trial, counsel told the court that defendant was willing to plead guilty
and accept a sentence of life without the possibility of parole. But the record does
not establish that defendant‘s decision to plead guilty was based on counsel‘s
additional knowledge about the case. Any number of circumstances, unrelated to
counsel‘s representation, may have occurred during the time between defendant‘s
rejection of the plea offer and the start of trial, that could have led defendant to
change his mind.4 Consequently, defendant has failed to show that counsel‘s
conduct fell below professional norms or that defendant would have pled guilty if
properly advised.

M. Prosecution’s decision to seek death unless defendant pled guilty to
murder and the special circumstance
Defendant contends he was denied due process when the district attorney
decided to reverse the decision of the prior district attorney and to seek the death
penalty unless defendant pleaded guilty to the charge of murder with special
circumstances. As explained above, after the district attorney‘s office notified

4 For example, during this time period witness Howe came forward to offer
evidence that defendant admitted he directed Morris to kill Bone, and trial counsel
became aware that Howe might be called as a witness.

55
defendant that it would not seek the death penalty, a new district attorney was
appointed. He reconsidered that decision and decided to seek the death penalty,
but gave defendant the opportunity to plead guilty to the charges of murder with
special circumstances and serve a sentence of life without possibility of parole.
Defendant argues his right to due process was violated because the district
attorney sought the death penalty after defendant refused to plead guilty, thereby
punishing him for exercising his right to a jury trial.
Under the due process clause, prosecutors may not ―tak[e] certain actions
against a criminal defendant, such as increasing the charges, in retaliation for the
defendant‘s exercise of constitutional rights. [Citations.] It is not a constitutional
violation, however, for a prosecutor to offer benefits, in the form of reduced
charges, in exchange for a defendant‘s guilty pleas, or to threaten to increase the
charges if the defendant does not plead guilty. [Citations.] In the pretrial setting,
there is no presumption of vindictiveness when the prosecution increases the
charges or, as here, the potential penalty. [Citations.] Rather, the defendant must
‗prove objectively that the prosecutor‘s charging decision was motivated by a
desire to punish him for doing something the law plainly allowed him to do.‘ ‖
(People v. Jurado (2006) 38 Cal.4th 72, 98.)
Absent proof of vindictiveness or other improper motive, increasing the
charges or punishment when a plea bargain is refused does not constitute
unconstitutional punishment or retaliation for the exercise of a defendant‘s legal
rights. ―[I]n the ‗give-and-take‘ of plea bargaining, there is no such element of
punishment or retaliation so long as the accused is free to accept or reject the
prosecution‘s offer.‖ (Bordenkircher v. Hayes (1978) 434 U.S. 357, 363.) The
district attorney was free to change the decision made by his predecessor not to
seek the death penalty, and that decision does not raise a presumption of
vindictiveness. (See United States v. Goodwin (1982) 457 U.S. 368, 381-385.)

56
―A prosecutor should remain free before trial to exercise the broad discretion
entrusted to him to determine the extent of the societal interest in prosecution. An
initial decision should not freeze future conduct.‖ (Id. at p. 382.)
In the present case, the record establishes nothing more than that a plea
bargain was offered and refused. The trial court conducted a hearing at which the
district attorney explained why he disagreed with the decision of his predecessor,
who had considered the decision a close call but believed that a jury was not likely
to return a death verdict. The new district attorney reconsidered that decision after
a thorough review of the case. Following a hearing at which both the former and
current district attorneys testified, the trial court concluded that the decision was
not arbitrary or capricious and that there was no element of retaliation in the
decision. Nothing in the record supports defendant‘s argument to the contrary.

N. Trial court’s refusal to instruct that the jury could return a life
sentence even in the absence of any mitigating circumstances
The trial court refused to instruct the jury, as defense counsel requested,
that it could impose a life sentence ―even in the absence of mitigating evidence,‖ if
it concluded that ―the aggravating evidence is not comparatively substantial
enough to warrant death.‖ Instead, the court instructed the jury as follows: ―In
weighing the various circumstances you determine under the relevant evidence
which penalty is justified and appropriate by considering the totality of the
aggravating circumstances with the totality of the mitigating circumstances. To
return a judgment of death each of you must be persuaded that the aggravating
circumstances are so substantial in comparison with the mitigating circumstances
that it warrants death instead of life without parole.‖ (See CALJIC No. 8.88.)
Defendant contends that the court‘s failure to instruct the jury that it could return a
life sentence even in the absence of mitigating factors violated both the due
process clause and the Eighth Amendment of the federal Constitution.

57
We have rejected similar claims, concluding that, under instructions like
those given here, ―[t]he jury may decide, even in the absence of mitigating
evidence, that the aggravating evidence is not comparatively substantial enough to
warrant death.‖ (People v. Duncan (1991) 53 Cal.3d 955, 979.) ―By stating that
death can be imposed in only one circumstance — where aggravation substantially
outweighs mitigation — the instruction clearly implies that a sentence less than
death may be imposed in all other circumstances. ‗No reasonable juror would
assume he or she was required to impose death despite insubstantial aggravating
circumstances, merely because no mitigating circumstances were found to exist.‘ ‖
(People v. Ray (1996) 13 Cal.4th 313, 356.)
Even assuming that the proposed instruction would have clarified how the
instructions given would apply if there were no mitigating evidence at all, such
clarification was not required in the present case. Defendant did present
mitigating evidence, including evidence of his mental impairments, his positive
relationships with friends and family, and the circumstance of the crime that
defendant was not the actual killer. Although the jurors may have given little
weight to this evidence, there is no reasonable possibility that they viewed this as a
case in which there was no mitigating evidence at all.

O. Failure to instruct that accomplice Cline’s statements to police
should not be relied upon unless corroborated, or that they should
be viewed with caution
Anna Cline, defendant‘s accomplice in a prior robbery to which he pleaded
guilty, testified at the penalty phase regarding the circumstances of that robbery.
She testified that the robbery was her idea and that she and defendant had agreed
that no one would be hurt. The prosecution also introduced testimony regarding
her statements to police officers about this crime. She told one officer that

58
defendant had forced her to help him with the robbery. She told another that
defendant had wanted to hurt the victim, but she stopped him.
The jury was instructed that Cline was an accomplice as a matter of law,
and that an accomplice‘s testimony incriminating the defendant should be viewed
with caution. Defendant contends the instructions were insufficient in two ways.
First, they did not require that Cline‘s testimony be corroborated. Second, they
did not inform the jury that the accomplice‘s testimony included her out-of-court
statements. (See CALJIC No. 3.11.)

1. Corroboration
Defendant contends the trial court erred in refusing his request to instruct
the jury that the testimony of an accomplice must be corroborated. Section 1111
provides that a conviction cannot be based upon the testimony of an accomplice
unless that testimony is corroborated by other evidence tending to connect the
defendant with the commission of the crime. This corroboration requirement
applies not only to the accomplice‘s testimony but also to an accomplice‘s out-of-
court statements when they are used as substantive evidence. (People v. Andrews
(1989) 49 Cal.3d 200, 214.) Corroboration is also required at the penalty phase
when the prosecution introduces accomplice testimony as evidence of
unadjudicated prior criminal conduct. (People v. Mincey (1992) 2 Cal.4th 408,
461; People v. Varnum (1967) 66 Cal.2d 808.) The jury need not be instructed,
however, that an accomplice‘s testimony about the defendant‘s prior criminal
conduct requires corroboration if the crime was previously adjudicated. (People v.
Moore (2011) 51 Cal.4th 1104, 1143; see People v. Williams (1997) 16 Cal.4th
153, 276 [jury need not be instructed that accomplice‘s testimony regarding the
circumstances of a crime of which defendant had previously been convicted must
be viewed with caution].)

59
Defendant contends that corroboration was nonetheless required here
because Cline‘s prior statements were not admitted to prove that defendant
committed the prior robbery — facts that had previously been adjudicated — but
to establish the extent and nature of defendant‘s involvement in that crime — facts
that had not previously been adjudicated. The same was true, however, in People
v. Williams, supra, 16 Cal.4th at pages 184, 276, in which we rejected the
argument that corroboration of an accomplice‘s testimony was required. The
corroboration requirement applies only when accomplice testimony is used to
prove that defendant committed a crime. (See § 1111 [―A conviction cannot be
had upon the testimony of an accomplice unless it be corroborated by such other
evidence as shall tend to connect the defendant with the commission of the
offense . . . .‖].)

2. Cautionary instruction on accomplice’s out-of-court statements
Defendant contends trial counsel rendered constitutionally deficient
assistance in failing to prepare and submit to the trial court an instruction
clarifying that not only must an accomplice‘s in-court testimony be viewed with
caution, but also that the accomplice‘s out-of-court statements should be viewed
with caution. Defendant states that the trial court agreed to instruct the jury on this
concept, but that counsel inexplicably failed to prepare an appropriate instruction.
The record is not so clear. The trial court refused counsel‘s request to give the
standard instruction on corroboration, CALJIC No. 3.11, which included a
statement that ―testimony‖ includes an out-of-court statement by the accomplice.
It agreed to give the instruction requiring that the testimony of an accomplice that
incriminates the defendant be viewed with caution, CALJIC No. 3.18. The
standard cautionary instruction, however, did not refer to an accomplice‘s out-of-
court statement. (CALJIC No. 3.18.) Although the trial court‘s comments suggest

60
that it believed the accomplice‘s out-of-court statements should be viewed with
caution, it never explicitly ruled that the jury should be so instructed or directed
defense counsel to modify the cautionary instruction to include this concept. It
simply directed counsel to replace the version of CALJIC No. 3.18 that had
previously been submitted with the more recent version.
In any event, we may treat defendant‘s claim as one that his counsel
rendered constitutionally deficient assistance in failing to request that the trial
court give a modified ver

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2766626. Public record. Not legal advice.