People v. Peoples

Filed 2/4/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) S090602

)

Plaintiff and Respondent, ) Alameda County

) Super. Ct. No. 135280

v. )

)

LOUIS JAMES PEOPLES, )

)

Defendant and Appellant. )

____________________________________)

On August 4, 2000, defendant Louis James Peoples was sentenced to death

for murdering James Loper, Stephen Chacko, Besun Yu, and Jun Gao. This

appeal is automatic. We affirm the judgment.

I. FACTS AND BACKGROUND

In an amended information filed on May 11, 1999, in San Joaquin County

Superior Court, the district attorney charged defendant with four counts of first

degree murder (Pen. Code, § 187; all further statutory references are to the Penal

Code unless otherwise indicated), one count of attempted murder (§§ 664, 187),

three counts of second degree robbery (§ 211), four counts of auto burglary

(§ 459), and one count of receiving stolen property (§ 496, subd. (a)). The

amended information alleged firearm use enhancements as to the murders, the

attempted murder, and three of the four burglary counts (former §§ 1203.06,

subd. (a)(1), 12022.5, subd. (a)(1)) and the infliction of great bodily injury with

respect to the attempted murder count (former § 12022.7, subd. (a)). Finally, the

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amended information alleged multiple-murder, lying in wait, and robbery special

circumstances. (§ 190.2, subd. (a)(3), (15), (17).)

The trial court dismissed two of the four counts of burglary. A jury

convicted defendant of four counts of first degree murder, three counts of second

degree robbery, two counts of burglary, and one count of receiving stolen

property. The jury also found true the firearm use enhancement with respect to

each of the murders and the multiple murder, lying in wait, and robbery special

circumstance allegations. The jury could not reach a verdict on the attempted

murder charge, and the trial court declared a mistrial as to that count and the

related allegations.

The same jury heard evidence in defendant‘s first penalty phase trial but

could not achieve unanimity on a penalty verdict. The trial court declared a

mistrial. The trial court empaneled a second penalty jury, which ultimately

returned a verdict of death. The trial court denied the automatic motion to modify

the verdict and imposed the death sentence.

A. Guilt Phase

Over the course of a five-month period from June to November 1997,

defendant received stolen property and committed two burglaries, three robberies,

and four murders.

1. Burglary of Michael King’s van

On the morning of June 21, 1997, defendant broke into the van of off-duty

Alameda County Deputy Sheriff Michael King while King and his family were

watching his son play baseball at Anderson Park in Stockton. Upon returning to

the van, King noticed the passenger side door was unlocked, and several items

were missing, including his wife‘s purse, two checkbooks, and King‘s fanny pack,

which in turn contained his fully loaded .40-caliber Glock service pistol, his

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sheriff‘s deputy badge, and identification card. The King family‘s telephone

number was on the stolen checkbooks. King filed a police report with Officer

Michael Scofield of the Stockton Police Department.

On June 22, King contacted Scofield to report two phone calls the Kings

received at home. In the second call, a male caller said, ―Thank you for the

fucking gun, you idiot,‖ and hung up.

On November 13, one day after his arrest, defendant discussed the burglary

of King‘s van in an interview with Dr. Kent Rogerson, a private practice

psychiatrist retained by the prosecution to conduct a general psychiatric exam and

assess defendant‘s competency. In addition, police found a ―slim jim,‖ which can

be used to access locked vehicles, in defendant‘s apartment.

2. Cal Spray shooting and burglary

During the summer of 1994, defendant worked as a ―miscellaneous man‖ at

California Spray Dry Company (Cal Spray), which processes animal remains for

dehydrated animal food and fertilizer products. He was later promoted to operator

— a position that required him to closely monitor valve switches on dryer tanks.

On several occasions, defendant failed to monitor the dryer valves, resulting in

significant product damage. Defendant‘s coworkers also noted that he

periodically displayed nervous and erratic behavior. Michael Liebelt, who trained

defendant at Cal Spray, explained that defendant‘s erratic behavior and repeated

mistakes resulted in his eventual dismissal. Defendant‘s supervisor at Cal Spray,

Gregory Beal, testified at trial that defendant disagreed with his termination from

Cal Spray and took it personally.

Three years later, around 3:30 a.m. on September 16, 1997, Cal Spray

employee Thomas Harrison pulled into the Cal Spray plant‘s secure parking lot on

the outskirts of Stockton for his morning shift. His coworker, Timothy Steele,

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entered the lot around the same time. When Steele entered the lot, he noticed

someone leaning into the open passenger side door of a blue pickup truck.

When Harrison and Steele exited their vehicles, they noticed that most of

the lot‘s vehicles were vandalized, including the pickup truck of employee David

Grimes. Harrison then approached the blue pickup truck to investigate. When

Harrison was halfway to the truck, the man who had been leaning into the open

door fired two gunshots at Harrison. Harrison later realized the man was

defendant, his former coworker at Cal Spray. Harrison fell to the ground as

defendant continued to shoot. Harrison felt pain in his right leg and pelvic bone,

and cried out that he had been shot.

As defendant began to flee, running toward a hole in a nearby fence, he

fired two shots at Steele. Steele heard one of the bullets sail by his head. Steele

called 911 using Harrison‘s cell phone, and medical personnel arrived and

transported Harrison to the hospital. Harrison sustained a bullet wound to his

upper right leg and was hospitalized for nine days.

Evidence technicians recovered seven .40-caliber shell casings from the

scene. Several vehicles in the parking lot had been vandalized. The police found

a large pair of bolt cutters in one of the vandalized vehicles and discovered a two-

foot-wide hole that appeared freshly cut in the fence surrounding the plant.

Additionally, police found shoe prints left in dried blood on the lot.

A few hours before the shooting, Beal had received a phone call. Although

Beal‘s home phone number was unlisted, employees had access to the number.

The male caller addressed Beal by his first name and reported a fire in one of the

plant‘s dryers. Beal did not recognize the voice but believed the caller knew the

plant‘s procedures. Beal rushed to the plant but found no fire.

The next day, between 2:30 and 3:30 a.m., Cal Spray shift supervisor

Michael Liebelt also received a phone call. The caller asked if ―anybody had been

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shot out there . . . , if anybody had died out there. . . .‖ When Liebelt demanded

that the caller identify himself, the caller asked whether ―anyone had gotten

wasted out there last night?‖ The caller then giggled and hung up.

3. Bank of the West robbery

Sometime between 3:30 and 4:30 p.m. on October 24, 1997, defendant

walked into a Bank of the West branch in Stockton and handed bank teller Jason

Tunquist a note that demanded money and threatened the use of a gun. Defendant

pulled out his gun, cocked it, and aimed it at Tunquist. Tunquist gave defendant a

stack of bills totaling $900, and defendant fled the bank.

Tunquist described the assailant to police as male, about five feet seven

inches in height and 150 pounds, 45 or 50 years old, with a ―weathered look.‖

Although he was unable to identify the robber from a police photo lineup,

Tunquist later identified defendant as the robber about a month later when he saw

defendant‘s photo in the newspaper.

4. Murder of James Loper

Defendant began working as a tow truck driver at Charter Way Tow in June

1997. He was suspended on October 6, 1997, for 30 days after testing positive for

methamphetamine during a routine drug test. One of the owners of Charter Way

Tow, Rodney Dove, reported that defendant was upset when he was suspended.

Around 2:50 a.m. on October 29, 1997, Charter Way Tow telephone

operator Mary Kuwabara received a call requesting a tow from a man who

identified himself as ―Jason Lee.‖ The caller said he was on Eight Mile Road,

west of Interstate 5. Kuwabara dispatched Loper to the call because he was

second on the list of three on-call drivers, and the first driver had been dispatched

to an earlier call. The earlier caller had identified himself as ―Doug Stone‖ and

requested a slide-back tow truck; Loper was the only driver on duty that did not

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have a slide-back truck. The caller‘s location was on the opposite end of Stockton

from the Eight Mile Road location.

Around 3:45 a.m. that same morning, San Joaquin County Deputy Sheriffs

Kenneth Bassett and Bill Gardner were on routine patrol traveling west on Eight

Mile Road in a rural area near Stockton. After stopping to investigate an

unoccupied tow truck parked on the side of the road with its lights on and engine

running, Gardner saw the body of James Loper lying underneath the truck. Loper

was unresponsive, and the deputies called for an ambulance.

On the driver‘s side of the truck, Bassett found nine spent gun cartridges,

which were later determined to be .40-caliber casings. Based on the position of

the cartridges, Basset believed the shooter fired multiple times at Loper after

Loper climbed under the truck. The deputies called for medical personnel and

backup from police detectives. Medical personnel arrived and removed Loper

from under the truck. San Joaquin County Sheriff‘s Detectives Antonio Cruz and

John Huber responded to the scene and took over the investigation. Investigators

recovered physical evidence from the scene, including boot prints later determined

to be from Ariat brand boots.

Loper‘s autopsy revealed 10 gunshot wounds, all of which were sustained

while he was alive. At trial, forensic pathologist Dr. Sally Fitterer testified that

gunshot wounds to Loper‘s abdomen caused his death.

The day after the murder, defendant called Charter Way Tow and spoke

with Sandi Dove. Defendant said Loper was a ―good guy‖ and told Dove he was

sorry about Loper‘s death. Defendant also asked if the company wanted him to

come back from suspension before the end of his 30-day suspension because they

were shorthanded. Dove declined and told defendant that he had to serve out his

suspension.

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5. Murder of Stephen Chacko and robbery of Mayfair Liquors

Shortly after 7:30 a.m. on November 4, 1997, Stockton police Officer

Ernest Alverson responded to a report of shots fired at the Mayfair Liquors store in

Stockton. Upon arrival, Alverson saw a man, later identified as Stephen Chacko,

bleeding and lying lifeless in the parking lot of the store. Alverson and his

partner, Officer Bowen, went inside the store and were later joined by Detective

Jeff Coon. Police found blood, broken items, and .40-caliber shell cartridges

inside the store. A trail of blood from one of the store aisles led out into the

parking lot, where additional spent .40-caliber cartridges were found.

At the scene, investigators recovered 19 bullet fragments, 14 shell casings,

and one live round. Investigators also recovered video footage from a security

camera inside the store, which was shown to the jury, that placed the time of the

robbery and murder at around 7:20 a.m. The footage, though not very clear,

shows Chacko standing in the main aisle of the store, between the cash register

and the other aisles, and defendant in one of the aisles with his arm extended.

Later, defendant is seen standing behind the open drawer of the register, then

moving to the left and slightly extending his right arm.

The autopsy of Chacko revealed five gunshot wounds. A gunshot wound

below Chacko‘s armpit was fatal.

Based on the shell casings and the weapon used in the shooting, Detective

Coon believed that the Mayfair Liquors murder and the Eight Mile Road murder

were connected. In addition, the subject in the security video resembled the

subject in the Bank of the West video.

6. Murders of Besun Yu and Jun Gao and robbery of Village Oaks

Market

Around 9:55 a.m. on November 11, 1997, San Joaquin County Deputy

Sheriff Charles Locke responded to a report of gunshots fired with two individuals

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injured at the Village Oaks Market in Stockton. Locke entered the store and found

Besun Yu in a crouched position behind the cash register. She was unresponsive

and had a weak pulse. Locke administered CPR. An autopsy later revealed that

Yu sustained three gunshot wounds, including the fatal shot that severed her spinal

cord.

Locke also saw the body of Jun Gao, lying facedown with a pool of blood

near his head. An autopsy later revealed that Gao sustained a single gunshot

wound that perforated his left jugular vein and carotid artery.

Locke observed .40-caliber shell casings near the cash register, and it

appeared that another register had been forcibly removed. The safe in the store‘s

office was unlocked, and inside were rolls of coins. Evidence technicians

recovered five shell casings, four bullets, and two bullet fragments from the scene.

Forensic firearms expert Michael Giusto opined that the shell casings recovered at

the scene were most likely fired from a Glock pistol. The missing cash register

was recovered hours later on Highway 99 in Stockton. The cash register drawer

was also found that evening on the outskirts of Stockton. Detective Coon received

information about a vehicle possibly associated with the crime — a 1990s, four-

door, dark-gray Nissan Stanza, with primer or oxidation marks.

7. Investigation and apprehension

Around 1:00 p.m. on November 12, 1997, Stockton police Officer Brian

Swanson saw a vehicle that matched the description of the suspect vehicle in the

Village Oak Market murders in the parking lot of an apartment complex near the

crime scene. The car was registered to Carol Peoples. Her husband, Louis James

Peoples, was listed as a possible owner. The apartment complex was one block

from Anderson Park and Mayfair Liquors, less than one mile from the Bank of the

West, two miles from the Village Oaks Market, and seven miles from the Eight

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Mile Road murder scene. Detective Coon recognized defendant‘s name as a

person who had been terminated from Charter Way Tow, and he told officers to

detain anyone that got in the car. Aided by a photo of defendant, officers saw a

white male matching his description leaving the complex and arrested him at 3:15

p.m.

At the time of his arrest, defendant was carrying a backpack that contained

a black nylon jacket, green knit gloves with silver duct tape on the fingers and

backs, a black baseball hat, a California license plate, an Oregon driver‘s license in

the name of Nathan Gelder, the checkbooks in Michael and Eva King‘s names, a

police scanner, and a radio call book containing radio frequencies for police and

fire personnel. Additionally, the backpack contained a blue folder with the

handwritten words ―Biography of a Crime Spree.‖ The folder contained

newspaper clippings about the crimes and a note that read, ―Some of the inserts in

this scrapbook were merely for the motive of revenge, some was to support my

family when I was unemployed. Some of them started out to be one thing and

turned into something a little more extreme. I have to admit I‘ve always wanted to

murder someone, and the idea of a crime spree has appealed to me for some time

now, hence, the crime spree. I guess we will see where it goes. (I never thought

the two people in the Village Oaks store would die, after all, I only shot them two

times each. Ha! Ha!)‖

Defendant was also wearing a fanny pack that contained a small pair of

binoculars, a Swiss Army-type knife, a mini MagLite flashlight, a buck-type knife

in a holster with defendant‘s initials, handcuffs, pepper spray, a Social Security

card in the name of Justin Werner, a nylon gun holster, and Michael King‘s

sheriff‘s deputy badge and identification. It appeared defendant had changed the

photo on King‘s identification to his own.

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Officer Swanson did not observe defendant to be intoxicated or exhibiting

obvious signs of drug use at the time of the arrest. Defendant did not exhibit any

unusual behavior during the 10-minute drive to the police station.

Police searched defendant‘s apartment that night after obtaining a search

warrant. Police found the following items: a pair of Ariat brand boots with a print

pattern similar to that found at the Eight Mile Road murder scene; a map of

Stockton with marked locations, including Mayfair Liquors and Village Oaks

Market; a ―slim jim‖; and a note that read, ―CWT Charter Way Tow. Can I help

you? Dude, yeah, check this out. You and the popos are all fucked up about

Jimbo. He was a punk. He was on dope like the rest of your Charter Way drivers.

Jimbo didn‘t want to pay. That‘s why he got capped. He wasn‘t the goodie

goodie everybody thought he was. So get it straight.‖

Beginning around 4:30 p.m. on the day of the arrest, Detective Huber and

Detective Coon advised defendant of his Miranda rights and interviewed him

without his lawyer present. (See Miranda v. Arizona (1966) 384 U.S. 436

(Miranda).) The interview lasted approximately 12 hours, ending around 4:30

a.m. on November 13, 1997. According to Huber, defendant did not appear under

the influence of drugs at the time of the interview; however, he appeared sleepy

and may have been experiencing symptoms of withdrawal.

Defendant denied involvement in the crimes during the first nine or 10

hours of the videotaped interview. During the last hour, he confessed to the

homicides and other crimes, and drew a diagram indicating the location of the

murder weapon. Officers were initially unable to locate the murder weapon.

Later that morning defendant accompanied two detectives to the location. Officers

recovered a gray plastic bag in a vacant lot about three blocks from defendant‘s

apartment that contained a black leather pouch and a box of .40-caliber hollow-

point bullets. The pouch contained a handgun that had been altered — the serial

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number was destroyed and the breech face sanded down — but was later identified

as the .40-caliber Glock pistol defendant stole from Deputy King‘s vehicle on June

21. The pouch also contained one rubber glove, an off-white piece of paper, and

six white envelopes, including one containing a note that read, ―Give me all the

100‘s, 50‘s, 20‘s and 10‘s. Make it fast, and nobody will get shot.‖

After recovering the .40-caliber handgun, the prosecution‘s firearms expert

Michael Guisto test-fired the pistol and determined that all cartridges collected in

the case investigation were fired from the same gun. Furthermore, Guisto noted

that the difference in breech marks on the cartridges recovered from the Eight

Mile Road murder scene and the Mayfair Liquors murder scene suggested a

possible alteration of the gun between the shootings. Such alteration could be

accomplished using sandpaper. In a videotaped interview on November 14,

defendant admitted to Detective Huber that he had sanded the gun down.

8. Defense Expert Testimony

During the guilt phase, defendant presented the testimony of three expert

witnesses: Drs. Joseph Chong-Sang Wu, Daniel Amen, and Monte Buchsbaum.

Dr. Wu testified that he had performed a positron emission tomography (PET)

brain scan on defendant, from which he had concluded that defendant‘s brain was

―clearly abnormal‖ with respect to the degree of activity in his frontal lobe,

evincing brain damage related to the impairment of high-level functioning and the

regulation of aggressive impulses. Dr. Wu could not say with certainty the cause

of these abnormalities, but that they were consistent with methamphetamine abuse.

Dr. Amen testified that he had performed multiple single-photon-emission

computed tomography (SPECT) brain scans on defendant, from which he had

concluded that defendant‘s brain was abnormal in a manner consistent with

methamphetamine abuse or head trauma, and that the scans showed reduced brain

activity in executive functioning areas and high activity in the cingulate gyrus, the

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latter of which is consistent with the presence of compulsive, repetitive thoughts.

Finally, Dr. Buchsbaum testified on the basis of Drs. Wu‘s and Amen‘s scans that

defendant had a defect in his frontal lobe consistent with methamphetamine abuse,

head trauma, or a combination of the two, that could cause a lack of impulse

control. In his closing argument, defense counsel argued that these brain

abnormalities called into question defendant‘s ability to ―control his thoughts,

feelings, or behavior,‖ and therefore to form the specific intent necessary for a

conviction of first degree murder and robbery.

B. Penalty Phase

The first penalty phase jury was unable to reach a unanimous verdict. After

the first penalty-phase trial ended in a mistrial, a second jury was empaneled and

ultimately sentenced defendant to death. The following evidence was presented to

the second penalty phase jury.

1. Prosecution evidence

a. Circumstances of the crime

The prosecution presented many of the same witnesses and evidence during

the penalty retrial that were presented during the guilt phase and first penalty trial.

b. Victim impact evidence

The victims‘ family members testified about the lives of the victims and the

effect of their murders.

James Loper was married to his high school sweetheart and was the father

of two boys, ages six and eight. His wife testified that Loper‘s murder had ―torn

[the family] apart,‖ and subsequently, their older son began experiencing

problems in school. His mother Hazel testified that Loper loved his family and

worked very hard to provide for them. Hazel also testified that Loper‘s father was

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―not doing well‖ since the murder and could not testify for fear that he could not

control himself in defendant‘s presence.

Stephen Chacko‘s wife, Anice, testified that Chacko had moved to the

United States from India to be with Anice and together they owned Mayfair

Liquors. The couple had two children, and Anice was pregnant with their third

child at the time of Chacko‘s murder. Anice testified that Chacko was a loving

family man who worked hard to support the family. After Chacko‘s murder,

Anice had to move to India to live with Chacko‘s family because she and the

children were homeless. Anice testified that the children missed their father and

did not understand why he was gone.

The prosecution was unable to present victim impact evidence regarding

the murder of Jun Gao because he did not have family in the United States. He

had recently emigrated from China to help his friend Besun Yu run the Village

Oaks Market.

Besun Yu was a married mother of three, who was described by her

children as sweet, kind, loving, and hard-working. Yu‘s son Jack testified that

since her murder, the family had drifted apart because Yu was the ―pillar that

[held] everything together.‖ Yu‘s husband was unable to testify and was ―not

himself‖ since her murder. Yu‘s son David testified that the aftermath of her

murder was ―very hard‖ on the family. Yu‘s daughter Karen testified that

defendant had ―ruined [her] whole family.‖

c. Prior convictions

The prosecution introduced into evidence defendant‘s certified prior

convictions for felony burglary in Florida from 1982.

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2. Defense evidence

a. Testimony of defendant’s family and friends

The defense presented testimony from defendant‘s mother, Loretta Peoples,

who described defendant as a loving father and husband. She detailed defendant‘s

rough upbringing and described his father Luther as a verbally abusive alcoholic.

Defendant had a history of bedwetting that continued into his teenage years. On

one occasion, he soiled his pants and was publicly humiliated and degraded by his

mother. When defendant was a teenager, his mother relinquished parental control

to the sheriff, and defendant became a ward of the court. He was assigned a

juvenile court counselor who was later convicted of molesting children.

According to Dr. Gretchen White, defendant confided in her that he had been

molested by the counselor on at least two occasions.

Defendant‘s father Luther testified that Loretta was worried about

defendant during his teen years because of his drug use and problems with the law,

including a stint in a juvenile correctional facility for 18 months during high

school. Defendant‘s older brother Larry described defendant as sensitive, quiet,

and passive. Larry could not recall a history of violence but did note defendant‘s

history of drug use.

Defendant‘s 15-year-old stepson and nine-year-old daughter testified that

defendant was a loving father. Defendant‘s wife Carol testified that the couple

started using drugs, including methamphetamine, from the beginning of their

relationship in 1988. Carol described defendant as a loving family man and good

father. Carol also reported that defendant was never violent toward her during the

nine years they lived together.

Defendant‘s neighbors testified that he was a good father and had never

been violent. In addition, a minister who conducted prisoner outreach testified on

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defendant‘s behalf. It was only the third time since he started his prison ministry

in 1953 that the minister had testified on an inmate‘s behalf.

b. Expert testimony

The defense offered expert testimony from Dr. Wu and Dr. Amen

regarding the results of PET and SPECT brain scans they had performed on

defendant. Dr. Amen opined that the SPECT scans showed a functionally

damaged brain that affected defendant‘s thought process. Defendant‘s

methamphetamine use exacerbated his condition. Dr. Wu testified that he was 95

percent certain that defendant‘s brain was abnormal based on his PET scan.

Additionally, there was a greater than 95 percent probability that a

methamphetamine user would have an abnormal brain scan.

Dr. George Woods, a psychiatrist, opined that defendant‘s violent acts were

attributable to methamphetamine impairment, which caused him to misperceive

reality and led to paranoid ideations and aggressions. Since being in jail and off

drugs, defendant had gained an appreciation of the harm of his actions. Dr.

Woods believed defendant was truly remorseful.

Dr. David Lisak, a clinical psychologist, testified about the psychological

and emotional effects that a traumatic sexual experience can have on an adolescent

boy.

c. Correctional officers’ testimony

San Joaquin County Sheriff‘s Deputies who had contact with defendant in

their capacity as correctional officers testified that defendant was calm, quiet, and

respectful while in their custody. None of the officers reported instances where

defendant resisted their commands or failed to obey orders. By all accounts, he

was a model prisoner.

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3. Prosecution rebuttal evidence

Dr. Helen Mayberg, a clinical neurologist, criticized the defense experts‘

opinions that defendant‘s brain scans revealed serious abnormalities. Instead, Dr.

Mayberg opined that if the scans demonstrated any neurobiological condition, it

was possibly depression. Because defendant‘s crimes required ―tremendous

deliberation, planning, forethought, decision-making, execution, [and] follow-

through,‖ Mayberg said, his conduct was not attributable to brain damage,

intoxication, or other drug-related issues.

Dr. Kent Rogerson, a psychiatrist for the prosecution, diagnosed defendant

with methamphetamine dependency and an antisocial personality disorder with

schizoid traits. Dr. Rogerson opined that defendant‘s crimes were not impulsive;

they were goal-directed conduct. Although defendant‘s methamphetamine abuse

seriously affected his life, his writings and reaction to his crimes indicated that he

was capable of making conscious decisions to harm people.

II. DISCUSSION

A. Guilt Phase Issues

1. Admission of involuntary statement to the police

Defendant claims that the trial court erroneously admitted his involuntary

statement to the police in violation of his state and federal constitutional rights

against self-incrimination, against cruel and unusual punishment, to a fair trial, to

due process, and to a reliable determination of guilt and punishment.

a. Background

Following defendant‘s arrest on November 12, 1997, Detectives Huber and

Coon interrogated him in videotaped sessions from approximately 4:00 p.m. on

November 12 to approximately 4:45 a.m. on November 13. The detectives

advised defendant of his Miranda rights. Over the course of the interrogation,

defendant showed signs of physical and mental exhaustion: sweating, pulling out

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his hair, rubbing his skin, twitching his facial muscles, grinding his teeth, and at

times appearing to fall asleep. He was provided with bathroom breaks, coffee,

waters, sodas, and pizza. Detectives also asked defendant if he wanted to speak

with a lawyer.

The detectives questioned defendant constantly for the first 10 hours of the

interview, during which he denied any knowledge of the crimes. Detectives

suggested to defendant that aspects of his story were contradicted by information

they already knew, and they attempted to secure his trust by offering various

charitable reconstructions of his crimes, such as ―you didn‘t mean to [shoot

anyone].‖ Toward the end of the interrogation, the police confronted him with his

wife‘s statements made to police after his arrest and threatened to ―drag‖ her into

the case and ―lean on‖ his stepson. They also showed pictures of his family to

defendant and pleaded with him not to make his family‘s life any more difficult

than he already had. Defendant eventually agreed to show police where he had

left the murder weapon.

On October 13, 1998, defendant filed a motion to suppress his statements to

police given on November 12 and 13, 1997. The prosecutor filed an opposition on

October 26, 1998. Defendant filed a reply that included a motion to redact any

inadmissible portions of the statements under Evidence Code section 352 if the

trial court denied the motion to suppress.

Dr. Richard Leo, a professor in the Department of Criminology at

University of California, Irvine, testified about the tactics used by police in

securing defendant‘s confession. He opined that the detectives used coercive

techniques to undermine defendant‘s free will over 50 times during the 12-hour

interrogation. Specifically, Dr. Leo characterized the police‘s threats to involve

defendant‘s wife and stepson in the interrogation as ―classic‖ and ―high-end‖

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coercive techniques. Dr. Leo acknowledged that as a social scientist, he may

define ―coercion‖ differently than the law does.

The trial court noted that the 12-hour interview was ―a very lengthy

interrogation.‖ However, the trial court determined, based on the totality of

circumstances, that defendant‘s statements were not elicited by ―undue coercion.‖

The trial court denied both of defendant‘s motions and admitted the videotaped

confession into evidence. The tapes were played during the guilt phase of the trial.

b. Analysis

―The Fourteenth Amendment of the federal Constitution and article I,

section 7 of the California Constitution make ‗inadmissible any involuntary

statement obtained by a law enforcement officer from a criminal suspect by

coercion.‘ ‖ (People v. Sapp (2003) 31 Cal.4th 240, 267.) The prosecution must

prove by a preponderance of the evidence that a defendant freely and voluntarily

gave police statements before the statements can be admitted. (Ibid.)

― ‗Voluntariness does not turn on any one fact, no matter how apparently

significant, but rather on the ―totality of [the] circumstances.‖ ‘ ‖ (Ibid.) The test

considers several factors, including any element of police coercion, the length of

the interrogation and its location and continuity, and the defendant‘s maturity,

education, and physical and mental health. (People v. Massie (1998) 19 Cal.4th

550, 576.) The determinative question ― ‗is whether defendant‘s choice to confess

was not ―essentially free‖ because his will was overborne.‘ ‖ (Ibid.) ― ‗When, as

here, the interview was tape-recorded, the facts surrounding the giving of the

statement are undisputed, and the appellate court may independently review the

trial court‘s determination of voluntariness.‘ ‖ (People v. Maury (2003) 30 Cal.4th

342, 404.)

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Defendant argues that his statement to police after his arrest was the

product of coercion and thus the trial court should have excluded it and any fruits

of the allegedly tainted statement. But defendant‘s contentions that police

detectives negotiated with him by offering ―inducements‖ for his confession and

that they threated to accuse his wife of the crimes are belied by the record. The

detectives asked defendant questions designed to build rapport but never offered

him leniency for his confession and never threatened a harsher penalty if he

remained silent. Further, the detectives made clear to defendant they had no

influence over how he would be treated in prison or in court. In addition, police

detectives told defendant that his wife had implicated him in the crimes and that

they would have to ―drag‖ her further into the case if he did not confess. The

detectives did not suggest that they would charge his wife with a crime.

It is true that the duration of the interrogation was substantial, and at points

defendant showed some signs of fatigue. These factors weigh against the

admission of the statement. However, other factors weigh against a finding that

the statement was involuntary. Defendant was given numerous breaks, drinks, and

food, and he was offered the chance to speak with a lawyer numerous times. He

was also given the opportunity to speak with his wife, which he declined. We

have previously found that a similarly lengthy interrogation did not amount to

coercion under the ―totality of the circumstances‖ where, as here, the defendant

was provided with food, drinks, and breaks upon request. (People v. Hill (1992) 3

Cal.4th 959, 981, disapproved on other grounds in Price v. Superior Court (2001)

25 Cal.4th 1046.) On the whole, and on our independent review of the videotape

recording of the confession, we conclude that the prosecution met its burden of

establishing by a preponderance of the evidence that defendant‘s statement was

not coerced.

19

2. Testimony of defense forensic expert

Defendant contends that the trial court erroneously limited his forensic

expert‘s testimony regarding crime scene reconstruction in violation of his state

and federal constitutional rights to present a defense, to confront and cross-

examine witnesses, to due process, to a fair trial, to a reliable and individualized

determination of death eligibility and sentence, and to freedom against cruel and

unusual punishment.

Here, and in most other claims, defendant argues that the asserted error

violated both his state and federal constitutional rights. ―In most instances, insofar

as defendant raised the issue at all in the trial court, he failed explicitly to make

some or all of the constitutional arguments he now advances. In each instance,

unless otherwise indicated, it appears that either (1) the appellate claim is of a kind

(e.g., failure to instruct sua sponte; erroneous instruction affecting defendant's

substantial rights) that required no trial court action by the defendant to preserve it,

or (2) the new arguments do not invoke facts or legal standards different from

those the trial court itself was asked to apply, but merely assert that the trial court's

act or omission, insofar as wrong for the reasons actually presented to that court,

had the additional legal consequence of violating the Constitution. To that extent,

defendant's new constitutional arguments are not forfeited on appeal. [Citations.]

[¶] In the latter instance, of course, rejection, on the merits, of a claim that the trial

court erred on the issue actually before that court necessarily leads to rejection of

the newly applied constitutional ‗gloss‘ as well. No separate constitutional

discussion is required in such cases, and we therefore provide none.‖ (People v.

Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)

a. Background

Toward the end of the prosecution‘s case-in-chief in the guilt trial, the

defense proffered the testimony of Brent Turvey, a forensic expert on crime scene

20

reconstruction. Defendant proffered Turvey‘s testimony in part to rebut the

testimony of criminalist Kathleen Ciula, who, based on the scene at Mayfair

Liquors, had reconstructed the likely sequence of events during the robbery.

Defense counsel explained that in addition to his reconstruction of events during

the robberies, Turvey would testify that the Cal Spray crime scene showed signs

that defendant was experiencing accumulated rage and that the other crime scenes

suggested less planning than the Cal Spray robbery. In the expert‘s opinion,

defendant‘s crimes demonstrated that his ability to plan and deliberate was

deteriorating over time.

The trial court expressed concern that Turvey‘s testimony regarding

defendant‘s state of mind during the commission of the crimes was unreliable.

Turvey testified during an evidentiary hearing on July 1, 1999. On July 6, the

hearing resumed, and Turvey provided a report to the court and the parties.

During the July 6 hearing, defense counsel argued that Turvey‘s testimony not

only was admissible for its own sake but also would provide foundation for the

expert testimony of Dr. Woods, the previously mentioned forensic psychologist.

The trial court ruled that Turvey would be allowed to testify regarding

crime scene reconstruction and would be allowed to explain which crime scene

evidence suggested planning or precautionary behavior. However, invoking its

discretion under Evidence Code section 352, the trial court prohibited Turvey from

testifying about defendant‘s mental state during the commission of the crimes.

Ultimately, the defense did not call Turvey to testify at the guilt trial or the penalty

retrial.

b. Analysis

― ‗Exclusion of evidence as more prejudicial, confusing or distracting than

probative, under Evidence Code section 352, is reviewed for abuse of discretion.‘

21

[Citation.] But ‗exclusion of evidence that produces only speculative inferences is

not an abuse of discretion.‘ ‖ (People v. Cornwell (2005) 37 Cal.4th 50, 81,

disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421,

fn. 22.)

To the extent that defendant claims he was denied an opportunity to rebut

the testimony of the prosecution‘s crime scene expert, that claim is unsupported by

the record. The trial court permitted Turvey to testify regarding Dr. Ciula‘s crime

scene reconstruction and to offer his own reconstruction.

As to Turvey‘s potential testimony about defendant‘s mental state during

the commission of the crimes, the trial court did not abuse its discretion in

excluding such testimony as unreliable. The defense explained that Turvey would

testify that the fact that defendant‘s series of crimes began with murders of people

he knew and transitioned to murders of people he did not know was evidence that

defendant‘s proficiency in committing the crimes deteriorated over time.

However, during voir dire, Turvey could not explain to the trial court‘s satisfaction

why this evidence could not more easily be explained by a difference in motives

for the two sets of murders. The trial court also found the testimony to require

considerable speculation.

Finally, defendant‘s reliance on our decision in People v. Davis (2009) 46

Cal.4th 539 is misplaced. In Davis, an expert in psychiatry was allowed to testify

about a sexual disorder called ―paraphilia‖ and to describe the characteristics

typical of those who have this disorder. (Id. at pp. 562, 605.) We deemed it a

―close[] question‖ whether the trial court erred in allowing the expert to testify

about whether the defendant‘s behavior showed signs of paraphilia. But we

declined to reach the issue, finding that the testimony was harmless. (Id. at

p. 605.) Davis does not support defendant‘s argument that the trial court abused

its discretion.

22

B. Issues Recurring in Penalty and Guilt Phases

Because defendant‘s first penalty phase ended in a mistrial and a new jury

was seated for the penalty retrial where a verdict of death was eventually reached,

much of the evidence introduced in the guilt phase was re-introduced at this

penalty phase retrial. Defendant challenges a number of evidentiary rulings that

were initially made during the guilt phase that also applied during the penalty

retrial as the prosecutor and defendant sought to admit or exclude the same

evidence for the new jury. Defendant also contends that the trial court erred in

denying various defense motions for continuances in both phases.

1. Exclusion of lay testimony on the effects of methamphetamine

Defendant claims that the trial court erroneously excluded lay witness

testimony on the effects of methamphetamine use during the guilt trial and the

penalty retrial.

Before defendant presented his case in the guilt phase, the trial court was

informed that defendant intended to present lay testimony on the effects of

methamphetamine based on the witnesses‘ personal experiences with the drug.

The prosecutor objected on relevance grounds. The court prohibited lay witnesses

from testifying about the effects of drugs but allowed them to testify about their

drug-related interactions with defendant and their observations of him, including

while he was using drugs. Before calling witnesses, defense counsel indicated that

he understood the ruling, had instructed the relevant witnesses not to testify to the

effects of drugs on themselves, and knew a violation would lead to sanctions. The

court prohibited similar testimony during the penalty retrial.

The Attorney General asserts that defendant failed to preserve this claim

under Evidence Code section 353, subdivision (a), because he failed to object to

the trial court‘s ruling on the matter. This is incorrect. Evidence Code section 353

requires ―an objection to or a motion to exclude or to strike the evidence‖ as a

23

condition precedent to setting aside an ―erroneous admission of evidence.‖ (Italics

added.) Defendant claims an erroneous exclusion of evidence. Our review of

allegedly erroneous exclusions of evidence is governed by Evidence Code section

354. ― ‗As a condition precedent to challenging the exclusion of proffered

testimony, Evidence Code section 354, subdivision (a), requires the proponent

make known to the court the ―substance, purpose, and relevance of the excluded

evidence. . . . ‖ ‘ ‖ (People v. Morrison (2004) 34 Cal.4th 698, 711.) The record

shows that defendant did so.

In response to the prosecutor‘s objections at both the guilt trial and the

penalty retrial, the trial court asked defendant to provide an offer of proof for lay

testimony on the effects of methamphetamine. Defense counsel argued that

defendant‘s relationship with the witnesses and the witnesses‘ experiences with

methamphetamine were relevant to understanding defendant‘s mental state. For

example, Quigel sold defendant methamphetamine on several occasions, including

the night before the Village Oaks Market incident. Defense counsel explained:

―[Mr. Quigel] will testify that the drugs are strong, that he used the drugs, himself,

he knows the quality of the drugs, he‘s been an addict for — since he was 17 years

old, for roughly six or seven years. And the drugs that he used and that he sold

were very, very good quality.‖ Defendant intended to introduce this lay testimony

as a foundation for expert testimony on the effects of the methamphetamine

defendant used. Defendant thus preserved the claim.

We review a trial court‘s decision to exclude evidence for abuse of

discretion. (People v. Linton (2013) 56 Cal.4th 1146, 1181.) The decision to

exclude evidence ―will not be disturbed except on a showing [that] the trial court

exercised its discretion in an arbitrary, capricious, or patently absurd manner that

resulted in a manifest miscarriage of justice [citation].‖ (People v. Rodriguez

(1999) 20 Cal.4th 1, 9–10.) The trial court determined that a lay witness‘s

24

testimony about his own experience with drugs would be of limited probative

value and speculative as to defendant‘s own response to drugs. Furthermore, the

court indicated that defendant could introduce evidence of the physical effects of

methamphetamine through expert testimony if he so desired, and defendant did.

Three experts testified about the effects of methamphetamine on defendant‘s brain

functions, and one expert testified about his capacity to form the requisite mental

state for the crimes. The trial court did not abuse its discretion in excluding the

lay testimony.

2. Introduction of crime details during cross-examination

Defendant contends that the trial court erred in allowing the prosecutor to

present details of the crimes during his cross-examination of certain defense

witnesses during the guilt trial and the penalty retrial in violation of his state and

federal constitutional rights to due process and to a reliable and individualized

sentencing determination.

a. Background

During both phases of the trial, Dr. Wu and Dr. Amen testified for the

defense and opined that defendant suffers from mental disease or brain defects that

impair his ability to use proper judgment, to plan, and to inhibit aggressive

impulses, especially when using methamphetamine. Dr. Buchsbaum corroborated

this testimony during the guilt trial but did not testify during the penalty retrial.

The prosecutor cross-examined each of these witnesses about their

knowledge of the details of each crime. Over many defense objections, the trial

court allowed this line of inquiry because the experts testified as to the condition

of defendant‘s brain and how that condition affected his ability to maintain

organized thinking, including during the commission of the crimes.

25

During the penalty retrial, the defense called Dr. Lisak, a psychiatrist, who

opined that a person with low self-esteem, who was molested in adolescence,

could feel anger and resentment as an adult. Dr. Lisak also testified that 25

percent of men who had been sexually abused as a child went on to commit acts of

violence. Again over many defense objections, the trial court permitted the

prosecutor to cross-examine Dr. Lisak about the details of defendant‘s crimes.

Dr. Woods testified that defendant‘s heavy use of methamphetamine

induced paranoia and caused misperception of reality, including during the

commission of the crimes. The trial court allowed the prosecutor to show Dr.

Woods numerous photographs of the crime scenes as well as mannequins of

Stephen Chacko, Jun Gao, and Besun Yu, and the prosecutor questioned Dr.

Woods about his knowledge of the details of the crimes.

Finally, defense witness Guy Lazarro, defendant‘s former coworker from

Florida, testified that he had never observed defendant act violently, that defendant

was a good worker, and that he would rehire defendant any time. The trial court

permitted the prosecutor to question Lazarro about his knowledge of the victims of

each of defendant‘s crimes.

b. Analysis

―An expert witness may be cross-examined about ‗the matter upon which

his or her opinion is based and the reasons for his or her opinion.‘ [Citation.] The

scope of this inquiry is broad and includes questions about whether the expert

sufficiently considered matters inconsistent with the opinion. [Citation.] Thus, an

adverse party may bring to the attention of the jury that an expert did not know or

consider information relevant to the issue on which the expert has offered an

opinion.‖ (People v. Doolin, supra, 45 Cal.4th at p. 434.) ―[I]t is well settled that

the scope of cross-examination of an expert witness is especially broad; a

26

prosecutor may bring in facts beyond those introduced on direct examination in

order to explore the grounds and reliability of the expert‘s opinion.‖ (People v.

Lancaster (2007) 41 Cal.4th 50, 105.)

As an initial matter, during the penalty retrial, defendant did not object to

the cross-examination of Lazarro on the same ground that he now raises as error.

He has thus forfeited this claim. (People v. Davenport (1995) 11 Cal.4th 1171,

1214, disapproved on another ground in People v. Griffin (2004) 33 Cal.4th 536.)

Although the defense experts had expertise in various scientific and social

scientific disciplines, the ultimate point of their testimony was to establish either

that defendant did not have the requisite mental state to commit the charged

offenses or that his mental, psychological, and emotional profile should be used as

a mitigating factor in the penalty phase. Given the nature of this testimony, the

prosecutor was permitted in the guilt phase to discredit the witnesses by asking

how defendant could have carried out his crimes without the mental faculties that

Dr. Amen, Dr. Wu, and Dr. Buchsbaum said were impaired. (See People v.

Smithey (1999) 20 Cal.4th 936, 961; see also People v. Doolin, supra, 45 Cal.4th

at p. 434 [cross-examination permitted on whether ―expert sufficiently considered

matters inconsistent with the opinion‖].) Similarly, the prosecutor was permitted

to ask the sorts of questions to which defense counsel objected in the penalty

retrial, as one of the factors for the jury to consider is the ―circumstances of the

crime.‖ (§ 190.3, factor (a).) Accordingly, the trial court did not abuse its

discretion in ruling that the prosecutor was permitted to cross-examine the

witnesses about the details of defendant‘s crimes.

3. Admission of autopsy photographs

Defendant claims that the trial court prejudicially erred in admitting various

autopsy photographs at the guilt trial and the penalty retrial in violation of his state

27

and federal rights to present a defense, to confrontation, to due process, to a fair

trial, to a reliable and individualized determination of death eligibility and

sentence, and to freedom from cruel and unusual punishment.

At trial, defense counsel objected to the admission of autopsy photographs

on constitutional grounds and on the grounds that they were cumulative and

inflammatory. The prosecution argued that the photographs were relevant to show

defendant‘s premeditation and intent to kill based on the angles and positions of

the wounds on the victims‘ bodies. Additionally, the prosecution argued that the

photographs were necessary to rebut the defense argument that he was under the

influence of methamphetamine because they suggested defendant had good aim.

The trial court ruled admissible and the prosecutor submitted into evidence

the following photographs, identified by their prosecution exhibit numbers:

(1) No. 101, depicting Loper‘s fully clothed body on an autopsy table, with mud

and dirt on his face and clothes; (2) No. 102, showing the entry and exit wounds

on Loper‘s right arm; (3) No. 103, depicting Loper‘s body, with blood, and

showing various gunshot wounds; (4) No. 104, showing the right side of Loper‘s

body with scrape marks and gunshot wounds on the right arm; (5) No. 105,

depicting the left side of Loper‘s body, showing gunshot wounds and the medical

examiner‘s hand holding Loper‘s left hand in an unusual position due to his

fractured humerus; (6) No. 108, showing Loper‘s left hand after it had been

cleaned, and showing abrasions and scrapes on the hand; (7) No. 110, depicting

the right side of Loper‘s head and showing scrapes on the face; (8) No. 180,

showing Chacko‘s body with injuries on his head; (9) Nos. 181 and 182, depicting

the gunshot wounds around Chacko‘s belt and trousers; (10) No. 185, showing

Chacko‘s body with additional gunshot wounds; (11) No. 187, depicting gunshot

wounds on Chacko‘s chest; (12) No. 189, showing Chacko‘s bruised head;

(13) No. 228, depicting injuries to the left side of Gao‘s head; (14) No. 229,

28

showing gunshot wounds to Gao‘s body; (15) No. 230, showing injuries to the

right side of Gao‘s head; and (16) No. 232, showing two gunshot entry wounds on

Yu‘s back.

We review the trial court‘s decision to admit photographs under Evidence

Code section 352 for abuse of discretion. (People v. McKinzie (2012) 54 Cal.4th

1302, 1351, disapproved on another ground in People v. Scott (2015) 61 Cal.4th

363, 391, fn. 3.) ― ‗ ―The court‘s exercise of that discretion will not be disturbed

on appeal unless the probative value of the photographs clearly is outweighed by

their prejudicial effect.‖ ‘ ‖ (McKinzie, at p. 1351.) ― ‗To determine whether there

was an abuse of discretion, we address two factors: (1) whether the photographs

were relevant, and (2) whether the trial court abused its discretion in finding that

the probative value of each photograph outweighed its prejudicial effect.‘ ‖

(People v. Lewis (2009) 46 Cal.4th 1255, 1282.)

The trial court did not abuse its discretion. The photographs demonstrate

various characteristics of the bullet wounds and other injuries that the victims

sustained. At the guilt trial, the photographs were relevant to the issue of

defendant‘s state of mind during the commission of the crimes. They can

reasonably be seen as supporting the prosecution‘s assertion that defendant

committed the crimes with the requisite intent to kill and with premeditation.

They also could be viewed as rebutting the defense‘s contention that defendant

was impaired by methamphetamine at the time of the crimes. Similarly, in the

penalty retrial, the photographs were admissible because they demonstrated the

circumstances of the crimes. (§ 190.3, factor (a).)

The photos are ―not of such a nature as to overcome the jury‘s rationality.‖

(People v. Whisenhunt (2008) 44 Cal.4th 174, 212.) The photos, though depicting

homicide victims, are relatively austere and clinical. They are not clearly more

prejudicial than probative. The defendant‘s claim is therefore without merit

29

4. Denials of motions for continuance

Defendant contends that the trial court erred in denying various defense

motions for continuances.

a. Guilt trial

Defendant filed two motions to continue the start of the guilt trial. The

court heard argument on February 25, 1999. In the hearing, the court observed

that the motion requested a five-month continuance but did not request the

appointment of second counsel. Only on February 22, 1999, three days before the

hearing on the second motion, had defendant requested the appointment of second

counsel. The court attributed the delay to the public defender‘s office‘s

―improvident‖ decision not to request second counsel until after the change of

venue motion was granted. The court was also doubtful of the necessity of a

continuance because the motion was based in part on defense counsel‘s difficulty

in building rapport with defendant. The court observed that at the time of the

hearing the case had been pending for 14 months and that defense counsel, who

was known to be a talented trial lawyer, had been working exclusively on this case

for nine months. The trial court found that the defense had not established good

cause for a continuance but said it would appoint a third attorney to defendant‘s

case if needed. On March 3, 1999, the court denied defendant‘s motion for

reconsideration.

b. Penalty retrial

On December 28, 1999, defendant filed a motion for a continuance of the

penalty retrial on the grounds that the defense needed more time to prepare for the

possibility that the prosecution might call additional rebuttal experts and to

prepare its own mental health evidence. The prosecution had not filed notice of

intent to call new rebuttal witnesses, and the trial court denied the motion for lack

of good cause. However, the trial court indicated it would address the possibility

30

of a continuance if it became clear that the prosecution would call additional

witnesses and that the defense needed more time to prepare.

On March 7, 2000, after two months of jury selection, defendant filed a

second motion to continue the penalty retrial. Defense counsel explained that the

motion was similar to the first motion to continue the penalty retrial. The motion

included a declaration under seal. The court conducted an in camera hearing on

the motion. The court denied the motion but slightly altered the court‘s schedule.

c. Analysis

―[T]he decision whether or not to grant a continuance of a matter rests

within the sound discretion of the trial court. [Citations.] The party challenging a

ruling on a continuance bears the burden of establishing an abuse of discretion,

and an order denying a continuance is seldom successfully attacked.‖ (People v.

Beames (2007) 40 Cal.4th 907, 920.)

In denying the motions for a continuance of the start of the guilt-phase trial,

the trial court explained that the case had been pending for 14 months and that

defense counsel had been working exclusively on the case for nine months. The

court readily assigned a second investigator and a second counsel, and even

expressed willingness to grant a third counsel. Regarding the motions brought

during the penalty retrial, the trial court determined that the defense did not need

more time to develop mental health evidence in order to adequately present its

case in mitigation and that it would only grant a continuance based on the

possibility that the prosecution would call witnesses not called during the first

penalty trial if such events actually transpired. On these facts, we cannot conclude

that the trial court abused its discretion in denying the motions. To the extent

defendant raises a constitutional claim on the basis of this supposed error, it is

without merit.

31

C. Penalty Phase Issues

1. Penalty phase retrial

Defendant claims that section 190.4, subdivision (b), which authorizes the

court to empanel a second penalty jury after the first penalty jury fails to reach a

unanimous verdict, is unconstitutional as applied to him. In particular, he argues:

(1) due to alleged prosecutorial misconduct throughout the first penalty trial, the

penalty retrial violated his state and federal constitutional rights against double

jeopardy and to due process and to fundamental fairness; (2) the penalty retrial,

after eight jurors in the first penalty trial voted against the death penalty, violated

the Eighth Amendment‘s guarantee of ―heightened reliability‖ in capital cases;

(3) the penalty retrial violated his right to a fair trial; (4) the penalty retrial violated

his Eighth Amendment right against cruel and unusual punishment.

The penalty retrial did not violate defendant‘s state and federal rights

against double jeopardy. The federal Constitution prohibits a retrial when the

prosecution commits misconduct with the intent to provoke a mistrial. (Oregon v.

Kennedy (1982) 456 U.S. 667, 675–679.) Similarly, the double jeopardy clause of

the California Constitution bars retrial when misconduct ―results in a defendant‘s

successful motion for mistrial‖ and either (1) the prosecution intentionally

committed misconduct to trigger a mistrial or (2) the prosecution believed an

acquittal was likely, committed misconduct to thwart the acquittal, and the

misconduct deprived the defendant of the reasonable prospect of an acquittal.

(People v. Batts (2003) 30 Cal.4th 660, 665–666.) Double jeopardy principles do

not bar retrial if ―the mistrial was justified by ‗manifest necessity‘ — for example,

a hung jury.‖ (Id. at p. 679.) Here, the trial court did not grant defendant‘s motion

for a mistrial; rather, it declared a mistrial on its own initiative because the jury

was deadlocked. Further, the record does not show that the prosecutor committed

misconduct at the first penalty trial with the intent of triggering a mistrial.

32

Accordingly, the double jeopardy protections of the state and federal constitutions

do not bar the penalty phase retrial.

Relying on State v. Baker (N.J.Super.Ct.App.Div. 1998) 310 N.J.Super.

128 [708 A.2d 429], defendant further claims that the prosecutorial misconduct in

the first penalty phase was so extreme that fundamental fairness prohibits the

prosecution from seeking the death penalty in a retrial. In Baker, after a verdict of

guilt but before the commencement of the penalty trial, the prosecution

surreptitiously viewed notes left in the jury room containing a list of reasons to

convict or acquit. (Baker, at p. 131.) The reviewing court affirmed the trial

court‘s grant of a motion to preclude the prosecution from seeking the death

penalty on fundamental fairness grounds. (Id. at pp. 136–140.) Even if we were

inclined to adopt the principles articulated in Baker, those principles do not apply

to this case. Defendant has not shown that the prosecutor did anything similar to

the prosecutor‘s actions in Baker.

Defendant additionally claims that the penalty phase retrial violated his

Sixth Amendment right to a fair trial and his Eighth Amendment rights to

―heightened reliability‖ in a capital case and to be free from cruel and unusual

punishment. But as defendant concedes, this court has repeatedly rejected these

claims. (People v. Davenport, supra, 11 Cal.4th at pp. 1192–1194, abrogated on

other grounds in People v. Griffin, supra, 33 Cal.4th at p. 555, fn. 5 [penalty retrial

does not violate a defendant‘s rights to due process, equal protection of the law, a

fair trial, or a reliable and proportional sentence under either state or federal

Const.]; People v. Gonzales (2011) 52 Cal.4th 254, 311 [penalty retrial does not

violate the 8th Amend. or ―evolving standards of decency‖]; People v. Taylor

(2010) 48 Cal.4th 574, 634 [―a penalty retrial following jury deadlock on penalty

does not, in and of itself, establish a violation of the Eighth Amendment or

‗evolving standards of decency that mark the progress of a maturing society.‘ ‖];

33

People v. Thompson (1990) 50 Cal.3d 134, 178 [―The fact that a first jury

deadlocked, or the numerical vote of the first jury, is irrelevant to the issues before

the jury on a penalty retrial.‖]; People v. McDowell (2012) 54 Cal.4th 395, 411–

412 [second penalty retrial after lengthy delays did not constitute cruel and

unusual punishment].) We see no reason to revisit these precedents.

2. Admission of non-statutory evidence in aggravation and rebuttal

evidence

During the penalty retrial, the prosecution was permitted to introduce much

of the physical evidence admitted in the guilt trial, including defendant‘s taped

statement to police detectives and a journal that defendant maintained entitled

―Biography of a Crime Spree.‖ Defendant contends that the admission of the

evidence amounted to the admission of aggravating evidence not approved by

statute. We disagree. The evidence presented during the guilt trial, including

defendant‘s statement to police and his journal, was relevant to his state of mind

during the commission of the capital crimes. Accordingly, the trial court did not

abuse its discretion in admitting the evidence on the ground that it demonstrated

the circumstances of the crime under section 190.3, factor (a). (People v. Guerra

(2006) 37 Cal.4th 1067, 1154, overruled in part on other grounds in People v.

Rundle (2008) 43 Cal.4th 76, 151.)

3. Admission of victim impact evidence

Defendant claims that the trial court erred in admitting irrelevant victim

impact evidence during the penalty retrial in violation of his state and federal

constitutional rights to due process, to a fair trial, to confront witnesses, to a

reliable and individualized sentencing determination, and to freedom from cruel

and unusual punishment.

Before the penalty retrial, defendant filed a motion to exclude certain

aggravating evidence, including (1) evidence concerning the effect of the Cal

34

Spray shooting on victim Thomas Harrison, (2) photographs of James Loper while

he was alive and of his family members, (3) photographs of Stephen Chacko‘s

funeral in India, (4) photographs of Besun Yu‘s family and her early life, and

(5) mannequins that the prosecutor used to demonstrate the wounds that

defendant‘s victims suffered.

The trial court allowed Harrison to testify that he was shot, injured, and

hospitalized, and that he underwent rehabilitation. The court excluded two

photographs pertaining to James Loper but admitted the remaining photographs.

Finally, during direct and cross-examination, the trial court permitted the

prosecution to use wooden mannequins depicting the victims as an aid to

questioning witnesses about the gunshot wounds that the various victims

sustained.

Victim impact evidence is admissible during the penalty phase of a capital

trial. (People v. Brown (2004) 33 Cal.4th 382, 396.) Section 190.3, factor (a)

permits the prosecution to establish aggravation by offering evidence of the

circumstances of the crime, including the impact of the crime on surviving victims

and on a victim‘s family. (People v. Brown, supra, 33 Cal.4th at p. 396.)

We review the admission of photographs for an abuse of discretion.

(People v. Moon (2005) 37 Cal.4th 1, 34.) Photographs of the victim while alive

and photographs of a victim‘s family are admissible as ―circumstance[s] of the

offense‖ under section 190.3, factor (a). (People v. Boyette (2003) 29 Cal.4th 381,

444; People v. Anderson (2001) 25 Cal.4th 543, 594; People v. Lucero (2000) 23

Cal.4th 692, 714.) The trial court did not abuse its discretion in concluding that

the photographs of James Loper and his family, of Besun Yu and her family, and

of Stephen Chacko‘s funeral were admissible under this provision. Nor do we

conclude, after reviewing the photographs, that the admission of the evidence was

―so unduly prejudicial that it render[ed] the trial fundamentally unfair.‖ (Payne v.

35

Tennessee (1991) 501 U.S. 808, 825.) Likewise, the trial court did not abuse its

discretion in concluding that the photographs of Stephen Chacko‘s funeral were

not inflammatory and were not likely to be unduly prejudicial.

We have also previously rejected challenges to the prosecution‘s use of

mannequins to represent victims during the presentation of aggravating evidence.

(People v. Medina (1995) 11 Cal.4th 694, 753–754 [life-sized mannequin

representing murder victim admitted into evidence and allowed to remain in the

jury room during guilt and penalty phase deliberations]; People v. Cummings

(1993) 4 Cal.4th 1233, 1291 [―Mannequins may be used as illustrative evidence to

assist the jury in understanding the testimony of witnesses or to clarify the

circumstances of a crime.‖].) And we do not find that the trial court abused its

discretion in allowing the prosecutor to use the mannequins as a demonstrative aid

during direct and cross-examination of witnesses during the penalty retrial.

Finally, defendant argues that the trial court erred in permitting Thomas

Harrison to testify concerning his period of rehabilitation because the guilt phase

jury did not convict defendant of attempted murder. Prior to the initial penalty

trial, defendant submitted a comprehensive motion seeking exclusion of certain

victim impact testimony, including from Harrison. Although this written objection

argued it would be error for the court to admit ―any evidence pertinent to the

attempted murder involving the victim Thomas Harrison,‖ defendant narrowed the

scope of his objection at a subsequent hearing. At that hearing, Judge Platt and

both the prosecutor and defense counsel agreed that the fact of Harrison‘s shooting

was admissible as evidence of ―criminal activity by the defendant which involved

the use or attempted use of force or violence or the express or implied threat to use

force or violence‖ under section 190.3, factor (b). This was also the conclusion

reached at a hearing prior to Harrison‘s testimony during the second penalty trial.

At this latter hearing, defendant sought an instruction that the prosecution was not

36

to ask Harrison questions about the long-term medical, emotional, and financial

consequences of his injuries so that defendant would not have to object to a

sympathetic witness describing his injuries. Defendant, however, agreed that

Harrison could testify to the fact ―he was shot, the circumstances in which he was

shot, the fact that he was hurt, went to the hospital and had rehabilitation.‖

Defense counsel‘s statements at this first hearing preserved an objection to

any testimony by Harrison that went to the impact of his injuries, but defendant

conceded the admissibility of the fact and extent of those injuries under section

190.3, factor (b), as violent criminal activity of which the defendant has not been

convicted at the second hearing. (See People v. Cowan (2010) 50 Cal.4th 401,

489 [―Section 190.3, factor (b), permits the jury to consider in aggravation violent

criminal activity by the defendant other than the crimes of which he or she has

been convicted in the capital trial, regardless of whether such activity led to a

conviction, but precludes consideration of crimes for which the defendant has been

prosecuted and acquitted‖].) Judge Platt ruled in defendant‘s favor with respect to

this limited objection and admonished the prosecutor accordingly. Harrison‘s

actual testimony did not address the lingering impact of his injuries other than to

say, ―I have a numbness that runs down inside of my leg. I suffer pain . . . . I‘m

suffering back pains and, you know, I‘m just — my body‘s not what it used to

be.‖ To the extent defendant now argues that Harrison‘s testimony in its entirety

ought to have been excluded as irrelevant under section 190.3, that claim is

forfeited.

4. Exclusion of evidence of remorse

Defendant contends that the trial court abused its discretion in excluding

evidence of his remorse, that the prosecutor committed misconduct by arguing in

closing argument that defendant lacked remorse, and that these supposed errors

37

violated his state and federal constitutional rights to due process, to a fair trial, to

effective assistance of counsel, to confront witnesses, to present a defense, and to a

reliable and individualized sentencing determination. The prosecutorial

misconduct claim is addressed below. (Post, at pp. 104, 107–108.)

a. Background

During the first penalty trial, defendant sought to introduce evidence to

establish remorse for his crimes. Defendant proffered, inter alia, the testimony of

Pastors Steve Kilthau and Troy Skaggs. Skaggs, who ran a prison ministry,

initiated contact with defendant shortly after his arrest. Skaggs met with

defendant about nine times and corresponded with him for about two years. He

reported that defendant expressed remorse for his actions and often wept during

their meetings. Skaggs planned to testify he believed defendant was sincerely

remorseful.

Kilthau led a congregation at the Stockton Baptist Church, where victim

James Loper had been a member. Kilthau initiated contact with defendant six

months after his arrest. After corresponding with defendant, Kilthau eventually

met with him. During the meeting, and in his letters to Kilthau, defendant

expressed remorse. Kilthau would have testified that he believed defendant‘s

remorse was genuine. Defendant also sought to introduce his correspondence with

Skaggs and Kilthau as well as his postarrest letters to his family. Finally,

defendant sought to introduce the testimony of Dr. George Woods, a psychiatrist,

whose direct testimony would include his belief that defendant was truly

remorseful.

The trial court excluded the testimony of Kilthau and Skaggs and

defendant‘s correspondence with them. The trial court also redacted nine

expressions of remorse in letters from defendant to his family that were otherwise

38

admitted into evidence. The court ruled that this evidence was unreliable because

defendant‘s various expressions of remorse occurred after his arrest, incarceration,

and the formulation of his defense strategy, suggesting that the statements were

untrustworthy and self-serving and thus amounted to inadmissible hearsay.

Further, the expressions of remorse in the letters ―directly circumvent[ed] the issue

of cross-examination.‖ Similarly, with regard to the letters from Kilthau and

Skaggs, the court determined that they were unreliable and could only be admitted

if defendant chose to testify.

At first, the trial court did not exclude the testimony of Kilthau and Skaggs

on the topic of defendant‘s remorse. Instead, the trial court ordered defendant to

provide a written proffer detailing the content of the conversations between the

pastors and defendant and the topics of direct examination. The court sought to

fashion a limiting instruction to guide the testimony but noted: ―[The testimony]

is relevant, and it is admissible under a state of mind issue.‖

However, on August 20, 1999, three days after the court‘s initial ruling, and

after the prosecution filed a motion to reconsider the introduction of the testimony,

the court reversed course. Citing dicta in People v. Livaditis (1992) 2 Cal.4th 759

(Livaditis), the trial court determined that it had discretion to exclude the

testimony if the court found it untrustworthy. The trial court said the timing of the

contact between defendant and the pastors rendered the testimony unreliable,

explaining: ―[W]hen you look at the date of the contact, December of 1998, three

months before the first scheduled trial date, over a year after the defendant had

been in custody, after there had been considerable examination by the experts in

terms of state of mind issues as it related to the guilt phase, after all of that had

been explored, after a defense had been explored and prepared in terms of those

issues, after all of that and with considerable motive for indicating a remorse and a

state of mind that is absolutely, absolutely self-serving under the circumstances,

39

the court would not have given second thought at all to following the line of

analysis in Livaditis.‖

On March 7, 2000, during pretrial hearings in the penalty retrial, defendant

moved to admit the evidence of remorse that he tried to introduce in the first

penalty trial, asking the trial court to change its ruling. The trial court denied the

motion, again citing the ―logic and dicta in Livaditis‖ and explaining: ―I am still

in the same position that I was [during the first penalty trial] . . . when I

reconsidered and held that Pastor Kilthau and Reverend Skaggs would not be

allowed to testify because in my opinion neither reaches, based upon the

circumstances that occurred, reaches the level of sufficient reliability to testify as

witnesses.‖

Also during the penalty retrial, defendant filed a motion to admit the

testimony of four jurors from the first penalty trial. According to defendant, the

jurors would have testified to their observations of defendant‘s demeanor during

the guilt trial and the first penalty trial and that this testimony would help establish

defendant‘s remorse.

The trial court heard argument on the issue and denied the motion for four

reasons. First, allowing the testimony of only four out of 12 jurors, all four of

whom voted for life without parole during the first penalty trial, would be more

prejudicial than probative. Second, if the court allowed the four jurors to testify,

fairness would require the trial court to allow the prosecution to call any of the

other eight jurors, as well as the courtroom staff and bailiffs, to rebut the testimony

of the jurors that defendant called. Third, calling former jurors as witnesses could

potentially violate the sanctity of jury deliberations. Fourth, the trial court noted

that it could exclude the testimony under Evidence Code section 352 because

allowing the testimony would potentially give rise to a ―monumental retrial,‖

40

especially if the prosecution chose to call members of the first jury who had voted

for death.

b. Analysis

A capital sentencing decision must be individualized, and the sentencing

authority must be permitted to consider the defendant‘s character. (Lockett v.

Ohio (1978) 438 U.S. 586, 604 [―[in] all but the rarest kind of capital case, [the

sentencer must] not be precluded from considering, as a mitigating factor, any

aspect of a defendant‘s character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less than death‖ (fn.

omitted)]; Eddings v. Oklahoma (1982) 455 U.S. 104, 114 [holding that a

sentencer may not be precluded from considering ―any relevant mitigating

evidence‖].) Section 190.3 requires the jury to impose a sentence of life

imprisonment without the possibility of parole if the mitigating factors outweigh

the aggravating factors, and, as the high court has observed, factor (k) of section

190.3 directs the jury to consider any ―circumstance that might excuse the crime,

and it is not unreasonable to believe that a post-crime character transformation

could do so. . . . [R]emorse, which by definition can only be experienced after a

crime‘s commission, is something commonly thought to lessen or excuse

defendant‘s culpability.‖ (Brown v. Payton (2005) 544 U.S. 133, 142–143.)

Although defendant had a constitutional right to have the jury hear all

mitigating evidence counseling against the death penalty, ―a capital defendant has

no federal constitutional right to the admission of evidence lacking

trustworthiness, particularly when the defendant seeks to put his own self-serving

statements before the jury without subjecting himself to cross-examination.‖

(People v. Jurado (2006) 38 Cal.4th 72, 130.) Under Evidence Code section 352,

a trial court has broad discretion to exclude evidence ―if its probative value is

41

substantially outweighed by the probability that its admission will (a) necessitate

undue consumption of time or (b) create substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury.‖ In addition, statements from a

defendant to a third party regarding the defendant‘s state of mind can be

admissible, but not when made under circumstances that indicate a lack of

trustworthiness. (Evid. Code, §§ 1250, 1252.)

We review a trial court‘s decision to exclude evidence for abuse of

discretion. (People v. Linton, supra, 56 Cal.4th at p. 1181.) The decision to

exclude evidence ―will not be disturbed except on a showing [that] the trial court

exercised its discretion in an arbitrary, capricious, or patently absurd manner that

resulted in a manifest miscarriage of justice [citation].‖ (People v. Rodriguez,

supra, 20 Cal.4th at pp. 9–10.) Here, we cannot conclude that the trial court

abused its discretion in excluding defendant‘s statements of remorse to Kilthau

and Skaggs and to his family members or in excluding the testimony of the four

jurors from the first penalty trial.

Defendant‘s statements to Kilthau and Skaggs and to his family were

hearsay and were made after defendant‘s attorneys had begun to work on his

defense. Under these circumstances, the trial court could reasonably conclude that

the hearsay statements could be excluded as unreliable under Evidence Code

section 1252. On the same basis, the trial court could also reasonably conclude

that defendant‘s statements of remorse in his letters to his family were also

unreliable under section 1252. We have previously held that a trial court acted

within the bounds of its discretion in excluding similar evidence of remorse as

unreliable hearsay evidence. (People v. Smith (2003) 30 Cal.4th 581, 629.)

Nor did the exclusion of Kilthau‘s and Skaggs‘s testimony violate

defendant‘s federal constitutional right to present mitigating evidence under Payne

v. Tennesse, supra, 501 U.S. 808, 822, or his federal constitutional right to due

42

process. The trial court, in ruling on the admissibility of this testimony, relied on

Livaditis, supra, 2 Cal.4th 759, 780, to conclude that he was not required to admit

remorse evidence in a form inadmissible under state law. Where evidence of

remorse is so unreliable as to be inadmissible under California law, the exclusion

of such evidence does not violate the general federal constitutional rule that

evidence that is reliable but otherwise inadmissible under state law must be

admitted if highly relevant to a critical issue in the punishment phase. (Id. at

p. 780; see also People v. Edwards (1991) 54 Cal.3d 787, 837–838, citing Green v.

Georgia (1979) 442 U.S. 95, 97.) ―The court did not prevent defendant from

presenting evidence of remorse, but only evidence in the form of inadmissible

hearsay not subject to cross-examination.‖ (People v. Livaditis, supra, 2 Cal.4th at

p. 780.) Specifically, defendant was allowed to introduce Dr. Woods‘s testimony

that defendant was ―truly remorseful,‖ had ―accept[ed] responsibility‖ for his

crimes, and that he had cried multiple times during interviews and felt ―terrible‖

for what he had done. Defendant was not denied his federal right of due process

by the exclusion of unreliable hearsay evidence as to his remorsefulness.

Further, the trial court did not abuse its discretion in excluding the

testimony of the four jurors. Even in the penalty phase the trial court

― ‗ ―determines relevancy in the first instance and retains jurisdiction to exclude

evidence whose probative value is substantially outweighed by the probability that

its admission will create substantial danger of confusing the issues or misleading

the jury.‖ ‘ ‖ (People v. Williams (2006) 40 Cal.4th 287, 320; see People v.

Salcido (2008) 44 Cal.4th 93, 162.) The trial court could have reasonably

concluded that the admission of their testimony would be more prejudicial than

probative and would confuse jurors for the penalty retrial about the ultimate task.

The trial court also could have reasonably concluded that their testimony would

43

have opened the door for the prosecution to call other individuals who attended the

first penalty trial, thus expending an undue amount of the court‘s time.

5. Exclusion of mitigating evidence of molestation

Defendant contends that the trial court erroneously excluded evidence

proffered to corroborate Dr. White‘s testimony that defendant had been molested

as a teenager. He maintains that the erroneous exclusion of this evidence violated

his state and federal constitutional rights to present a defense, to confrontation, to

due process, to a fair trial, to a reliable, individualized determination of death

eligibility and sentence, and to freedom from cruel and unusual punishment.

a. Background

Defendant was interviewed by defense expert Dr. Gretchen White, a

psychologist and social historian. According to Dr. White, defendant confided in

her that on two occasions he had been sexually molested by John Fry, his youth

intake counselor when he was a ward of the State of Florida as a teenager. Dr.

White also spoke with two other men, Michael Portbury and David Lamson, who

claimed to have been sexually molested by John Fry under similar circumstances.

She also spoke with two Florida police officers who investigated John Fry.

During the first penalty trial, the defense proffered Dr. White‘s testimony

that defendant had told her that he had been molested and that she believed him.

The defense also proffered the testimony of Lamson and Portbury in order to

corroborate defendant‘s statement that Fry had molested him and to establish the

effects of Fry‘s molestation on Lamson‘s and Portbury‘s development and, by

extension, defendant‘s development. Defendant also sought to introduce the

testimony of the police investigators into the molestation allegations.

The trial court ruled that the testimony of Lamson, Portbury, and the two

police investigators was inadmissible because it was irrelevant and was more

44

prejudicial than probative. The court allowed Dr. White to testify that defendant

had told her he had been molested by Fry and allowed the defense to introduce

court documents from Florida showing that Fry had been convicted of procuring a

child under the age of 16 for prostitution. The court also allowed Dr. Lisak, the

previously mentioned clinical psychologist, to testify about the psychological and

emotional effects that a traumatic sexual experience can have on an adolescent

boy.

During the prosecutor‘s cross-examination of the defense experts and

during his closing argument in the first penalty trial, he attempted to cast doubt on

the fact that defendant was ever molested and the credibility of the experts‘

opinions.

During the penalty retrial, the defense sought to question Dr. White about

the details of her interviews with Lamson and Portbury rather than introduce the

testimony of Lamson and Portbury directly. Defense counsel argued that the

statements were necessary to corroborate defendant‘s allegations of molestation

and to bolster the credibility of Dr. White‘s opinion, especially in light of the

prosecutor‘s argument in the first penalty trial that there was no evidence that

defendant had been molested. During the hearing on the motion to admit the

testimony, the court asked the prosecutor whether he would stipulate that

defendant was molested by Fry, and the prosecutor declined. The court then

agreed to allow Dr. White to testify that her interviews with Lamson and Portbury

supported her opinion that defendant had in fact been molested. However, the

court refused to allow Dr. White to testify about the details of her interviews with

Lamson and Portbury. The court explained: ―The manner in which [defendant]

was molested carries far less probative value than the fact that he was on [sic] or

wasn‘t molested. [¶] So when I do a 352 analysis, as I did before, as I‘ve done

again, that‘s what to have look at. I‘ve got to look not just at the prejudicial effect,

45

but I‘ve got to look at the potential probative value. [¶] That issue is available to

be established by other means, which the court has allowed. So the probative

value of the manner of the molest, or the manner of the other person‘s molest is

extremely little, in my opinion. And the probative — or the prejudicial effect is

great. Because it does open significant doors and collateral issues. [¶] And that‘s

the basis for the opinion. I don‘t have a problem with, as I think you are entitled

to say, my expert did contact other persons; and in her opinion, then confirms and

corroborates the issue. [¶] That I think is fair game.‖ Thus, the court ruled that

the details of the molestations that Portbury and Lamson reported to Dr. White

were more prejudicial than probative under Evidence Code section 352, as they

would introduce new issues and consume significant time without offering much

insight into defendant‘s own experiences. The court also noted that the admitted

record of Fry‘s conviction contained Portbury‘s name, which additionally served

to corroborate defendant‘s claim.

During the prosecutor‘s closing argument during the penalty retrial, he

made the following two remarks in passing: (1) ―Number one, we have no proof

of a molest. . . . Absolutely no relevance to this case‖ and (2) ―[Dr. Lisak] was

here to testify about generalities based on the hypothetical male. It‘s in your

notes. I mean, I actually — I just put it in the simplest terms I can think of.

You‘re here to testify about the hypothetical male, correct? Yes. What

conclusions do you draw about this case. No. Zero. Zip. [¶] Mitigation value?

Nothing. I mean, how does that compare. I don‘t even — I don‘t even

understand. [¶] Dr. Lisak is a professor who teaches, who seems like a nice guy.

He‘s a professor. He‘s telling you about possibilities, maybe‘s, could have‘s,

should have‘s, would have‘s. Value, zero.‖ Following the prosecution‘s closing

argument, defense counsel filed a motion for mistrial based on these two

statements. The trial court denied the motion.

46

b. Limitation on the testimony of Portbury, Lamson, and Dr.

White

Defendant contends that the trial court erred in excluding the testimony of

Portbury and Lamson and in prohibiting Dr. White from the testifying about the

details of the molestations Portbury and Lamson recounted to her.

To the extent that defendant claims the trial court erred in excluding the

testimony of Portbury and Lamson during the first penalty trial, the Attorney

General argues that claim is moot. We agree. To the extent that defendant claims

the trial court erred in excluding the testimony of Portbury and Lamson during the

penalty retrial, the Attorney General argues that the claim is forfeited because the

defense did not proffer their testimony during the penalty retrial. Defendant

responds that proffering the testimony of Lamson and Portbury would have been

futile in light of the fact that Judge Platt had incorporated his previous rulings into

the penalty retrial proceedings.

The record indicates that at the start of the penalty retrial, defense counsel

asked the trial court whether its prior rulings remained in effect such that defense

motions already made need not be filed again in order to make a record:

―MR. LAUB: . . . . [W]e are anticipating that the prosecution in the penalty

phase retrial is going to introduce a lot of evidence that was part of their guilt

phase trial under the umbrella of circumstances of the crime. And in order for us

to know that we are making a record, I guess what we are concerned about is if we

are not now presenting these issues again, do we have, anything that‘s been

litigated remains, our position remains as it was.

―THE COURT: Correct.

―MR. LAUB: We haven‘t waived anything by not reintroducing anything.

―THE COURT: No. You do not need to refile each and every motion that

was previously had. Those rulings are equally binding at this phase of the trial,

47

even if this were and there had not been an intervening phase of the trial for which

there was a hung jury.‖

Because the record indicates that the trial court informed defense counsel

that its prior rulings remained binding at the penalty retrial, defendant has

preserved his claim that the trial court erred in excluding the testimony of Portbury

and Lamson by proffering their testimony at the first penalty trial. In light of the

court‘s statements above, defendant would have understood the court‘s ruling

excluding the testimony of Portbury and Lamson to be equally applicable to the

penalty retrial. Nonetheless, the trial court did not err in excluding the testimony

of Portbury and Lamson or in limiting the testimony of Dr. White.

The trial court determines the ―relevancy of mitigating evidence and retains

discretion to exclude evidence whose probative value is substantially outweighed

by the probability that its admission will create substantial danger of confusing the

issues or misleading the jury.‖ (People v. Guerra, supra, 37 Cal.4th at p. 1145,

overruled in part on other grounds in People v. Rundle, supra, 43 Cal.4th at p. 151;

see Evid. Code, § 352.) Here the trial court reasonably determined that admitting

detailed testimony from two individuals regarding their own molestation, or

hearsay testimony by Dr. White as to those two individuals‘ experiences, would

open the door to a ―mini-trial‖ regarding the accuracy of any particular detail

Portbury and Lamson recounted. Accordingly, the trial court allowed Dr. White to

testify that she had been told by Portbury and Lamson that they had been

molested, without allowing Portbury and Lamson to testify themselves. Because

Portbury and Lamson would not have testified about whether defendant himself

was molested, the trial court‘s ruling was a reasonable way of allowing defendant

to bolster the credibility of his expert witness without creating a distracting dispute

over the credibility of Lamson and Portbury themselves.

48

c. Denial of motion for mistrial

Defendant claims that the court erred in denying the motion for mistrial

based on the prosecutor‘s misconduct in arguing there was ―no proof of molest.‖

We consider and reject this claim below. (Post, at p. 104)

6. Cross-examination of prosecution expert witness and related

jury admonition

Defendant contends that the trial court improperly limited cross-

examination of prosecution expert Dr. Helen Mayberg and improperly admonished

the jury regarding two questions that defense counsel posed to Dr. Mayberg. He

maintains that these alleged errors violated his state and federal constitutional

rights to confrontation, to due process, to a fair trial, to present a defense, to a

reliable and individualized sentencing determination, and to freedom against cruel

and unusual punishment.

a. Background

Before trial, defendant was examined by Dr. Wu and Dr. Amen. Dr. Wu, a

psychiatrist, was qualified as an expert in positron emission tomography. Dr. Wu

performed a PET scan on defendant and he testified that the PET scan showed

defendant‘s brain was abnormal. Dr. Amen, also a psychiatrist, was qualified as

an expert in clinical psychiatry with a specialty in brain imaging. He performed

SPECT scans on defendant and testified that the scans showed a functionally

damaged brain that affected defendant‘s thought process and that defendant‘s

methamphetamine use exacerbated his condition. The defense also called a third

psychiatrist, Dr. Buchsbaum, who qualified as an expert in nuclear imaging

science. Dr. Buchsbaum reviewed the scans performed by Dr. Wu and Dr. Amen

and corroborated their conclusions. The defense presented the testimony of the

three psychiatrists during the guilt phase to provide the jury with a basis for

49

concluding that defendant did not form the specific intent required for murder or

robbery.

In rebuttal, the prosecution called Dr. Mayberg, a board-certified

neurologist. Dr. Mayberg reviewed the tests performed by Dr. Wu and Dr. Amen

and criticized their conclusions and the conclusions of Dr. Buchsbaum. In

preparation for her testimony, Dr. Mayberg wanted to see the ―raw data‖

underlying the tests of Dr. Wu and Dr. Amen, and the prosecution filed a

discovery request. Neither the prosecutor nor defense counsel knew exactly what

Dr. Mayberg meant when she requested the ―raw data.‖ But during the second day

of Dr. Mayberg‘s testimony, it became apparent that she had not received all the

information that she had requested. Eventually the defense provided the data, and

the court recessed to allow her time to review the data.

When Dr. Mayberg‘s testimony resumed, she criticized the defense experts‘

opinions on the ground that the PET scan was ―normal-appearing‖ and more

consistent with depression than trauma or long-term use of methamphetamine.

She opined that the defense experts‘ conclusions were unsupported by the

statistics upon which they claimed to rely. And she referred to the raw data from

the SPECT scans as ―garbage,‖ a term that was stricken after defense counsel

objected.

During the penalty retrial, the defense called Dr. Amen and Dr. Wu, who

provided the same testimony that they provided in the guilt phase, this time as

mitigation evidence. The defense did not call Dr. Buchsbaum during the penalty

retrial. The prosecution called Dr. Mayberg, whose rebuttal testimony was similar

to her testimony during the guilt phase. On direct examination, she testified about

the information she reviewed to prepare for the penalty retrial. In particular, she

noted she had reviewed the transcripts of the previous phases of the trial. On

cross-examination, defense counsel attempted to question Dr. Mayberg about the

50

testimony of Dr. Buchsbaum, which Dr. Mayberg said she had read before

testifying as a rebuttal witness in the first penalty trial. The prosecutor objected to

this line of inquiry, and the defense was given the opportunity to lay appropriate

foundation outside the presence of the jury.

Defense counsel argued that because Dr. Mayberg had testified she had

reviewed Dr. Buchsbaum‘s opinions and compared them with those of the other

two defense experts, Dr. Buchsbaum‘s testimony was foundational to her

conclusions during the guilt phase. Further, because Dr. Mayberg would offer the

same conclusions during the penalty retrial that she had offered during the guilt

phase, she must have relied on Dr. Buchsbaum‘s testimony in forming the

opinions she would provide during the penalty retrial.

The trial court rejected this argument: ―There has been an inappropriate

foundation laid, insufficient to justify questioning this witness or this expert about

Dr. Buchsbaum‘s opinion. There is nothing I‘ve heard that said that her opinion

here is based upon Dr. Buchsbaum‘s testimony. . . . [¶] . . . [¶] You cannot simply

argue that anything that she has ever read can be questioned and examined. If it

was not relied upon to express her opinion, it is not admissible within the expert

opinion.‖ When the defense was allowed to reopen examination, Dr. Mayberg

claimed that she ―did not rely on Dr. Buchsbaum at all,‖ as Dr. Buchsbaum had

not performed any scans of his own. The next day, defense counsel reargued his

position from the prior day. The trial court ruled that defense counsel could not

question Dr. Mayberg about Dr. Buchsbaum‘s testimony because parties are

generally ―not allowed to use prior testimony of an individual for cross-

examination purposes without presenting that witness first and/or having it

considered.‖

During subsequent cross-examination, defense counsel attempted to

question Dr. Mayberg about her characterization of the SPECT scans as ―garbage‖

51

before she received the raw data on which her opinion was ultimately based.

Defense counsel then asked Dr. Mayberg why she ―came to court‖ when she

―didn‘t have all the materials necessary to render an opinion.‖ The prosecutor

objected, and the trial court held a hearing outside the jury‘s presence. During the

hearing, the court ruled that it would admonish the jury that defense counsel‘s

question about Dr. Mayberg‘s characterization of the scans as ―garbage‖ was

improper because that testimony had been stricken in the guilt phase. The trial

court would also inform the jury that the defense did not provide Dr. Mayberg

with the raw data she requested until the day Dr. Mayberg testified.

The trial court admonished the jury as follows: ―Ladies and gentlemen,

before we proceed, I need to advise you of a couple of things. [¶] First involved

the question about the prior testimony, that of the doctor referenced Dr. Amen‘s

materials as garbage was stricken from the record. [¶] That means it is [n]on

testimony. That means it should not have been referenced in any fashion for any

reason. And it was extremely improper for [defense counsel] to do so before you.

[¶] It is again stricken. Period. It was improper questioning. Should not have

been done. [¶] More importantly, the issue of the information provided the day

Dr. Mayberg testified. [¶] What occurs in any criminal matter, [] civil cases for

that matter as well — what occurs is what is called discovery compliance. Where

information in one side‘s possession is ordered to be turned over to the opposition

or other side. Either the defense to the prosecution or the prosecution to the

defense. [¶] [The prosecutor] has made numerous discovery requests as to this

specific information, which was not provided. It was untimely when it was finally

provided after Dr. Mayberg had arrived and was to testify. So it was information

that should have been provided earlier and was not.‖

52

b. Limitation of cross-examination of Dr. Mayberg

Defendant contends that by limiting cross-examination on the subject of Dr.

Buchsbaum‘s testimony, the trial court inhibited defense counsel‘s ability to

challenge Dr. Mayberg‘s credibility in violation of his constitutional right ―to be

confronted with the witnesses against him.‖ (U.S. Const., Amend. VI.) We

review this claim for abuse of discretion. (People v. Linton, supra, 56 Cal.4th at

p. 1188; see Delaware v. Van Arsdall (1986) 475 U.S. 673, 679.) Evidence Code

section 721, subdivision (a) provides that ―a witness testifying as an expert may be

cross-examined to the same extent as any other witness and, in addition, may be

fully cross-examined as to (1) his or her qualifications, (2) the subject to which his

or her expert testimony relates, and (3) the matter upon which his or her opinion is

based and the reasons for his or her opinion.‖

Defendant‘s brief may be construed to offer two potential grounds for

concluding that cross-examination regarding Dr. Buchsbaum‘s testimony was

proper. First, defendant contends that Dr. Mayberg relied on this testimony in

forming her opinion. But, as the Attorney General observes, Dr. Mayberg testified

that she had reviewed Dr. Buchsbaum‘s testimony before the beginning of the

penalty retrial, but she maintained that her opinion was not based on that

testimony. This characterization of her opinion appears correct. Dr. Wu and Dr.

Amen conducted PET and SPECT brain scans on defendant and testified about the

results of those scans. Dr. Buchsbaum reviewed the scans of Dr. Wu and Dr.

Amen and testified that he agreed with their conclusions. Dr. Buchsbaum did not

produce scans of his own. In rebuttal, Dr. Mayberg reviewed the scans conducted

by Dr. Wu and Dr. Amen and testified that she disagreed with the conclusions of

the defense experts. Thus, although her opinion about the results of the PET and

SPECT scans allowed her to criticize the testimony of Dr. Buchsbaum in the guilt

phase, her opinion was not based on Dr. Buchsbaum‘s testimony. Thus, the trial

53

court did not abuse its discretion in sustaining the prosecution‘s objection to this

line of questioning.

Second, by citing our decision in People v. Clark (1995) 5 Cal.4th 950,

defendant‘s brief may be construed to assert that questioning Dr. Mayberg about

Dr. Buchsbaum‘s testimony was proper because Dr. Mayberg was familiar with

Dr. Buchsbaum‘s professional publications. (Cf. Clark, at p. 1013 [finding cross-

examination about the ―scholarly work‖ of another expert to be proper],

disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn

22.) But Clark is inapposite. In Clark, we held that a psychiatrist could be asked

about another psychiatrist‘s scholarly work with which the witness was familiar.

(Ibid.) Here, defense counsel did not attempt to question Dr. Mayberg about one

of Dr. Buchsbaum‘s scholarly publications. Instead, defense counsel attempted to

question Dr. Mayberg about Dr. Buchsbaum‘s testimony during a prior phase of

trial. In these circumstances, the trial court could justifiably be concerned that

defense counsel was attempting to elicit Dr. Buchsbaum‘s hearsay opinion through

cross-examination of Dr. Mayberg without calling Dr. Buchsbaum to the stand.

Accordingly, the trial court did not abuse its discretion in limiting this line of

examination.

c. Jury admonitions

Defendant contends that the trial court‘s admonition to the jury was

improper. Specifically, defendant complains that the admonition ―singled out‖

defense counsel and wrongly suggested that defense counsel had committed a

discovery violation. Defendant also argues that the trial court erred in failing to

instruct the jury not to impute any discovery violation to him.

To be sure, the trial court did single out defense counsel for referring to

stricken testimony in one of his questions to Dr. Mayberg. But that admonition

54

was appropriate under the circumstances as the question referred to facts not in the

record. Moreover, the trial court‘s admonition to the jury regarding defense

counsel‘s cross-examination of Dr. Mayberg regarding her supposed willingness

to testify in the absence of data was appropriate under the circumstances.

Defendant relies on People v. Bell (2004) 118 Cal.App.4th 249 (Bell),

which found prejudicial error in the trial court‘s use of CALJIC No. 2.28 to inform

the jury about the untimely provision of evidence by defense counsel. That court

emphasized two aspects of the instruction: First, the instructions stated that ― ‗[i]n

this case, the Defendant failed to timely disclose the following evidence. . . . ‘ ‖

(Bell, at p. 254.) Second, ―jurors were told ‗[t]he weight and significance of any

delayed disclosure are matters for your consideration,‘ ‖ but not told how or

whether the prosecution was prejudiced by the late disclosure and instead ―simply

left to speculate . . . that the People were put at an actual disadvantage because of

the late discovery.‖ (Id. at p. 255.)

The facts in this case are distinguishable. Here, defense counsel attempted

to demonstrate that Dr. Mayberg was willing to testify in the absence of sufficient

evidence or information to support that testimony. The court permitted defense

counsel to ask that question, but sought — upon the prosecutor‘s objection — to

clarify for the jury that the reason Dr. Mayberg lacked evidence was that defense

counsel had failed to comply with a discovery order. Although the trial court

could have been clearer in attributing the noncompliance to counsel, his use of the

phrase ―the defense to the prosecution‖ did not assign blame to defendant, as did

the trial court‘s instruction in Bell. Nor did the trial court instruct or even imply to

the jury that the weight or significance they assigned Dr. Mayberg‘s testimony

ought to be affected by the late disclosure. The force of the trial court‘s

admonition was to correct a possible misperception on the part of the jury that Dr.

Mayberg had engaged in an impropriety in her prior testimony, and to prevent

55

defense counsel from taking advantage of a situation he had created during the

earlier proceedings. Such an admonition was in the discretion of the trial court

and did not implicate the concerns of Bell, as it could not be reasonably interpreted

to cast aspersions on defendant himself and did not instruct the jury to alter the

weight assigned the evidence presented.

7. Failure to restrict cross-examination of defendant

Before the penalty retrial, defendant filed a motion to restrict the

prosecution‘s cross-examination of him should he decide to testify. In the motion,

defendant sought to limit the prosecution‘s cross-examination to his general

personal history, which was the topic about which he planned to testify. The trial

court declined to rule on the motion because it had not heard the scope of the

testimony on direct examination. In so ruling, the trial court did not err. The trial

court indicated its willingness to limit the scope of cross-examination to those

addressed during direct examination. In explaining its decision to defer a ruling

on the motion, the trial court acknowledged the general law that cross-examination

is limited by the scope of direct examination. But the trial court reasonably

refused to rule of the scope of cross-examination without first hearing the scope of

the direct examination. (See People v. Panah (2005) 35 Cal.4th 395, 437 [―the

trial court properly declined to provide a ruling in advance of defendant‘s

testimony‖]; People v. Keenan (1988) 46 Cal.3d 478, 513 [―[l]acking complete

information‖ as to the defendant‘s testimony, ―the court was well within its

discretion to defer its decision ―on the scope of cross-examination].) We therefore

deny defendant‘s claim that this ruling violated his federal constitutional right to

present mitigation evidence as well.

56

8. Rejection of proposed jury instructions

Defendant contends that the trial court erred in refusing to modify the jury

instructions during the penalty retrial in violation of his state and federal

constitutional rights to due process, to a fair trial, to a reliable individualized

sentence determination, and to freedom from cruel and unusual punishment.

―In assessing whether the jury was adequately guided under the Eighth or

Fourteenth Amendment, we ask ‗whether there is a reasonable likelihood the jury

understood the charge as defendant asserts. [Citations.] We determine how it is

reasonably likely the jury understood the instruction, and whether the instruction,

so understood, accurately reflects applicable law. [Citations.]‘ ‖ (People v.

Barnett (1998) 17 Cal.4th 1044, 1161.) ―[T]he standard CALJIC penalty phase

instructions ‗are adequate to inform the jurors of their sentencing responsibilities

in compliance with federal and state constitutional standards.‘ [Citation.]

Moreover, the general rule is that a trial court may refuse a proffered instruction if

it is an incorrect statement of law, is argumentative, or is duplicative. [Citation.]

Instructions should also be refused if they might confuse the jury.‖ (People v.

Gurule (2002) 28 Cal.4th 557, 659.)

Defendant claims that the trial court erred in refusing the following sets of

instructions:

First, defendant maintains that the trial court should have modified the

standard instructions to further guide jurors in understanding their responsibilities

as penalty phase jurors. In particular, defendant asked that the jurors be instructed

as follows: ―Your responsibility in the penalty phase is not merely to find facts,

but also — and most important — to render an individualized, moral

determination about the penalty appropriate for the particular defendant — that is,

whether he should live or die.‖ The trial court correctly ruled that this instruction

was duplicative of CALJIC 8.88, which ―properly instructs the jury on its

57

sentencing discretion and the nature of its deliberative process.‖ (People v.

Valencia (2008) 43 Cal.4th 268, 310.)

Second, defendant contends that the trial court erred in rejecting proposed

instructions on the limitations of factors in aggravation. Proposed instructions

Nos. 7 and 8 would have instructed the jury that the guilt phase verdicts and

special circumstance findings were not aggravating factors. There is no

reasonable likelihood that the jurors misunderstood this aspect of their

responsibilities. CALJIC No. 1.00 explained that the fact of being arrested,

charged, and brought to trial was not evidence in aggravation. Further, CALJIC

No. 8.85 enumerated the applicable factors to consider, including aggravating

factors, and emphasized that these were the only factors that could be considered

in aggravation.

Third, defendant maintains that the trial court should have provided

proposed instructions Nos. 11–18, and 21, which would have further guided the

jury on factors in mitigation. As a threshold matter, defendant has forfeited his

challenge to the trial court‘s refusal to give proposed instruction No. 11. During

the second conference on jury instructions, the trial court indicated that the

proposed instruction was more appropriate for argument than for jury instructions.

Defense counsel replied, ―I‘ll argue it.‖ Even were defendant‘s challenge not

forfeited, we have previously rejected the claim that the trial court is required to

instruct the jury ―that one mitigating factor could outweigh multiple aggravating

factors.‖ (People v. Jones (2012) 54 Cal.4th 1, 79–80.)

Regarding proposed instructions Nos. 12–18, defendant argued that they

were necessary to clarify the nature of mitigation evidence. But the trial court

concluded that the proposed instructions Nos. 12–15 were duplicative of CALJIC

Nos. 8.85 and 8.88 and that Nos. 16–18 were argumentative. We have previously

held identical language to defendant‘s proposed instructions Nos. 12–14, which

58

address the ―unlimited‖ breadth of mitigating evidence to be duplicative of

CALJIC Nos. 8.88 and 8.85, subdivision (k), which, respectively, define

mitigating circumstances broadly and allow the jury to consider ― ‗any other

circumstance which extenuates the gravity of the crime . . . and any sympathetic or

other aspect of the defendant‘s character or record . . . whether or not related to the

offense for which he is on trial‘ ‖ as a mitigating factor. (People v. Jones, supra,

54 Cal.4th at pp. 82–83.)

Proposed instruction No. 15 would have added to CALJIC No. 885 the

following: ―Since you, as jurors, decide what weight to be given the evidence in

aggravating and the evidence in mitigation, you are instructed that any mitigating

evidence standing alone may be the basis for deciding that life without possibility

of parole is the appropriate punishment.‖ We have previously rejected the claim

that CALJIC No. 8.88 must explicitly instruct jurors that a single mitigating factor

is sufficient to return a verdict of life without possibility of parole, instead holding

that this substance is conveyed by CALJIC No. 8.88‘s charge that, ―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 the possibility of parole.‖ (Id. at

pp. 78–80 [listing citations]; see also People v. Valencia, supra, 43 Cal.4th at

p. 310 [―CALJIC No. 8.88 properly instructs the jury on its sentencing discretion

and the nature of its deliberative process.‖])

We have found that a trial court did not err in rejecting the language of

proposed instruction No. 16 (―You may spare the defendant's life for any reason

you deem appropriate and satisfactory‖) in favor of CALJIC No. 8.88, which

informs jurors they may weigh mitigating and aggravating circumstances however

they deem appropriate. (People v. Lenart (2004) 32 Cal.4th 1107, 1135.)

59

We have declined to find error where the trial court refused to give an

instruction identical to proposed instruction No. 17 (―You need not find any

mitigating circumstances in order to return a sentence of life imprisonment

without possibility of parole. A life sentence may be returned regardless of the

evidence‖) for two reasons: The first sentence was duplicative of CALJIC No.

8.85, which instructs jurors that they may consider ―any other circumstance which

extenuates the gravity of the crime‖ and CALJIC No. 8.88, which instructs jurors

to assign, to any mitigating factors found as a result, ―whatever moral and

sympathetic value‖ to the factors that they wish (People v. Hughes (2002) 27

Cal.4th 287, 403). The second sentence ―is wrong to the extent that it invites the

jury to act without regard to the evidence‖ (People v. Lenart, supra, 32 Cal.4th at

p. 1135).

As to proposed instruction No. 18, which would have made explicit that

jurors were not required to reach unanimity as to the existence or weight of any

factors in mitigation, we have held the trial court is ―not required to instruct [the

jury] that unanimity is not required before a juror may consider evidence to be

mitigating,‖ (People v. Coddington (2000) 23 Cal.4th 529, 641), and that,

accordingly, the trial court did not err in refusing to instruct the jury with language

nearly identical to that proposed here. (People v. Chism (2014) 58 Cal.4th 1266,

1329, cert. den. sub nom. Chism v. California (2014) __ U.S. __, 135 S.Ct. 403.)

Proposed instruction No. 21 stated that jurors must resolve reasonable

doubt as to penalty in favor of life in prison without parole. The trial court

correctly determined that this was an incorrect statement of law, citing our

decisions in People v. Musselwhite (1998) 17 Cal.4th 1216, 1270, and People v.

Hines (1997) 15 Cal.4th 997, 1069.

Fourth, defendant contends that the trial court erred in rejecting instructions

providing guidance on weighing factors in aggravation and mitigation. Proposed

60

instruction No. 22 would have instructed the jury to find beyond a reasonable

doubt that factors in aggravation outweighed factors in mitigation. The trial court

correctly denied this instruction on the ground that it was contrary to state law.

(People v. Jones (1998) 17 Cal.4th 279, 314.) Proposed instruction No. 23 stated

that each juror must determine the appropriate penalty for himself or herself and

not decide issues by chance. The trial court reasonably rejected this instruction

because CALJIC No. 17.40 adequately instructed the jurors on these points.

Proposed instruction Nos. 24 and 24A instructed the jurors on the

possibility and consequences of a hung jury. The trial court correctly concluded

that these instructions were unnecessary. (People v. Castaneda (2011) 51 Cal.4th

1292, 1352 [―a trial court is not required to educate a jury concerning the

consequences of a deadlock‖].)

Proposed instruction No. 24B would have replaced the word ―warranted‖ in

CALJIC No. 8.88 with the word ―justified.‖ The trial court properly concluded

that CALJIC No. 8.88 was adequate as written. (People v. Page (2008) 44 Cal.4th

1, 56–57.) Similarly, the trial court correctly refused to give proposed instruction

No. 24C because it was ―just an alternative definition to ‗mitigating

circumstances.‘ ‖

Proposed instruction No. 26 was a modified version of the concluding

instruction governing the conduct of jurors during deliberations. The trial court

correctly ruled that the standard instructions were already adequate and correct.

Proposed instruction No. 27 was a modified version of CALJIC No. 17.49.

The trial court rejected the instruction because it appeared to require a special

finding or statement of reasons supporting the verdict. (See People v. Sanchez

(1995) 12 Cal.4th 1, 82, disapproved on another ground in People v. Doolin,

supra, 45 Cal.4th 390.)

61

Proposed instruction No. 28 would have instructed the jury that sympathy

for the defendant‘s family is not a factor in mitigation but that the jury may

consider the testimony of family members to the extent that it illuminates some

positive quality about the defendant. Although the trial court allowed defendant‘s

brother to testify regarding the potential impact of defendant‘s death on his family,

the trial court properly ruled that the instruction was argumentative. The trial

court also could have rejected the proposed instruction on the ground that it was

duplicative of CALJIC No. 8.85. (See People v. Romero (2008) 44 Cal.4th 386,

425–426.)

Proposed instruction No. 29 was a modified version of CALJIC No. 8.85,

which proposed striking factors that were not relevant to the case and including 33

mitigating factors not ordinarily contained in CALJIC No. 8.85. The trial court

properly rejected this instruction, as CALJIC No. 8.85 is an adequate and correct

instruction. The court is not required to remove inapplicable factors from CALJIC

No. 8.85 (People v. Rogers (2009) 46 Cal.4th 1136, 1179) and is not required to

enumerate potential factors in mitigation (People v. Noguera (1992) 4 Cal.4th 599,

648).

9. Denial of motions for mistrial and to recuse Judge Platt

a. Background

During the first penalty phase trial, Judge Platt suffered a mild heart attack

and disclosed his condition to the jury to explain irregularities in the court‘s

schedule. Defendant moved for a mistrial and to recuse the judge pursuant to

Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(i) (―The judge

believes his or her recusal would further the interests of justice‖) and (a)(7) (―By

reason of permanent or temporary physical impairment, the judge is unable to

properly perceive the evidence or is unable to properly conduct the proceeding‖).

62

In his motions, defendant argued that Judge Platt‘s disclosure aroused the

jury‘s sympathy and, as a result, put defense counsel between a rock and a hard

place. With each decision at trial, defense counsel was forced to choose between

abstaining from legitimate objections and zealously advocating for defendant‘s

defense, potentially alienating the jury and jeopardizing Judge Platt‘s health.

Putting defense counsel to these impossible decisions, defendant argued,

prejudiced his case during the penalty phase.

Judge Platt struck the motion to recuse from the record for failure to state

sufficient legal grounds. He explained that he did not believe his recusal would

further the interests of justice and ―there is no indication nor information nor facts

presented in the affidavit that indicate that the judge is unable to properly perceive

the evidence or is unable to properly conduct the proceedings.‖ Judge Platt

nonetheless forwarded the motion to recuse to Presiding Judge Sarkisian of

Alameda County Superior Court.

Shortly thereafter, Judge Platt suffered a second heart attack, and Judge

Delucchi was assigned to the case. Defendant again moved for a mistrial, and the

court denied the motion. Despite Judge Delucchi‘s assignment to the case,

defendant proceeded with the hearing on the motion to recuse Judge Platt. At the

hearing, defense counsel conceded that the motion to recuse Judge Platt was moot

because Judge Delucchi had been assigned to the case, but defense counsel noted

that he would ―object if [Judge Platt] comes back to preside over the trial and

replaces Judge Delucchi.‖ Presiding Judge Sarkisian denied the motion.

Judge Delucchi eventually declared a mistrial because the first penalty

phase jury could not reach a verdict. In better health, Judge Platt returned to

preside over the penalty retrial. Defendant did not renew his motion to recuse

Judge Platt.

63

b. Analysis

Defendant claims that the trial court prejudicially erred by denying his

motions to declare a mistrial and to recuse Judge Platt. Defendant brought those

motions during the first penalty phase trial, alleging that Judge Platt‘s health

condition, the jury‘s knowledge of it, and defense counsel‘s sensitivity to it

violated his constitutional rights to a fair trial and effective assistance of counsel.

He now maintains that Judge Platt‘s presence prejudiced him during both the

penalty phase trials. We separately address his claims as to each trial.

With respect to the first penalty trial, defendant‘s claims are moot. A claim

is moot when the grounds for the claim no longer exist. (3 Witkin, Cal. Procedure

(5th ed. 2008) Actions, § 21, p. 86; see Eye Dog Foundation v. State Bd. of Guide

Dogs for Blind (1967) 67 Cal.2d 536, 541.) As defendant conceded at the hearing,

Presiding Judge Sarkisian correctly denied his motion to recuse Judge Platt

because, at the time that it was before the court, Judge Platt was no longer

supervising the trial. Similarly, even if defendant would have been entitled to a

mistrial had the first penalty trial resulted in a sentence of death, that trial was

ultimately inconclusive, and a mistrial was declared. In essence, defendant had

already obtained the relief to which he would have been entitled if his motion for a

mistrial had been successful. His challenge to the trial court‘s ruling on his

motion for a mistrial is therefore moot.

With respect to the penalty retrial, defendant has failed to preserve his

claim that Judge Platt should have been recused. ―If a judge refuses or fails to

disqualify herself, a party may seek the judge‘s disqualification. The party must

do so, however, ‗at the earliest practicable opportunity after discovery of the facts

constituting the ground for disqualification.‘ ‖ (People v. Scott (1997) 15 Cal.4th

1188, 1207; see § 1180.) At a hearing with Judge Van Oss on October 12, 1999,

counsel for defendant was notified that Judge Platt would be reassigned to the

64

second penalty trial following his recovery. At that hearing the trial court set a

deadline of October 22, 1999, for any motions for Judge Platt‘s recusal pursuant to

Code of Civil Procedure section 170.6. This hearing and the announced deadline

put defendant on notice that Judge Platt would be reassigned and that he should

raise any objections to that reappointment promptly. Defendant failed to bring a

motion to recuse Judge Platt from supervising the penalty retrial. Accordingly, he

has forfeited this claim on appeal.

10. Juror misconduct

Defendant contends that there was juror misconduct in his penalty retrial

and that the trial court erred in denying his motion for a new trial without an

evidentiary hearing on the alleged juror misconduct. According to defendant, the

alleged misconduct and the trial court‘s deficient means of addressing it deprived

him of the constitutional right to an impartial and unbiased jury, to due process of

law, to a fair trial, to a reliable and individualized determination of punishment

based on material facts and evidence adduced at trial, and to freedom from cruel

and unusual punishment.

a. Background

As explained more fully below (post, at pp. 107–109), Juror No. 7‘s wife

overheard certain conversations between the prosecutor and the family of victim

Besun Yu during trial proceedings, and Juror No. 7 admitted that he and his wife

had had a brief conversation about the trial. Juror No. 7‘s wife also conversed

with a juror in the first penalty trial who had come to watch the proceedings in the

penalty retrial. During that brief conversation, the juror from the first penalty trial

explained to Juror No. 7‘s wife that the questioning of Quigel was lengthy because

the defense had to lay a foundation for his testimony. Defense investigator

Michael Kale recalled the conversation differently. He said he overheard the juror

65

from the first penalty trial say to Juror No. 7‘s wife that ―someone couldn‘t be

swayed.‖ When the trial court interviewed Juror No. 7‘s wife, she testified that

the juror from the first penalty trial had ―made a comment that there were a couple

of women on the trial or on the jury, the first trial, that she thought had discussed

their take of it with Mr. Fox [defense counsel]. [¶] . . . . [¶] . . . and how he might

use that information to change this trial. I don‘t know where she was going with

it, but that was my interpretation of it.‖ Speaking to the defense counsel, Juror

No. 7‘s wife said that she could surmise that defense counsel was not one of the

previous juror‘s ―favorite people.‖ Defense counsel moved for a mistrial on the

basis of these facts.

After the trial court denied the defense‘s motion for a mistrial, defense

counsel moved to have Juror No. 7 removed from the jury. Defense counsel

argued that there was a substantial likelihood that Juror No. 7‘s wife, who had

extraneous information from conversations she overheard in the courtroom, would

taint Juror No. 7‘s deliberations. The trial court denied the motion, finding that

―nothing has been communicated to [Juror No. 7].‖

After the jury returned a verdict, defense moved for a new trial on the

grounds that Juror No. 7 had refused to deliberate and several other jurors had

discussed extraneous matters during deliberations, including the jurors‘ personal

experiences with drugs and whether defendant would actually be executed if he

received the death penalty. Six jurors‘ statements taken by a defense investigator

supported the motion. Three statements were sworn and signed by the jurors. The

prosecution filed a written opposition.

According to a signed statement from Juror No. 1, Juror No. 7 ―was angry

from the beginning,‖ ―discussed that his wife had been questioned in court and

that it would not be a good idea to bring family members to view the

proceedings,‖ and ―said that he would never vote for life.‖ Juror No. 1 reported

66

that another juror ―discussed his own drug use and drug use of his family members

and strongly maintained that drugs were not a mitigating factor in this case.‖

Further, ―[t]here [was] some discussion about what actually would happen to

Louis Peoples if he were sentenced to death. [Another juror] explained to the

jurors that Louis would actually be much safer if he were on death row than if he

were in the general prison population, since he would get his own cell and he

would be protected. [That same juror] also believed the death penalty would be

abolished in years to come and Louis would never be executed.‖

According to a signed statement from Juror No. 3, the jurors ―talked about

drugs a lot,‖ including several of the jurors‘ personal experiences with drugs.

Juror No. 3 also mentioned that Juror No. 7 was very angry on account of his

wife‘s interactions with the trial court. According to Juror No. 5‘s signed

statement, the jurors believed that defendant would never be executed, and they

discussed other states that were abolishing the death penalty and the fact that

California was likely not far behind.

Defense investigator Karen Fleming‘s report of her interviews with three

other jurors corroborated the assertions in the three signed statements that the

jurors had spoken about their personal experiences with drug use and the future of

the death penalty in California.

The trial court denied the defense motion for a new trial. The court noted

that three of the statements supporting the motion were unsworn but nonetheless

considered all six statements. The court concluded that it could not find that Juror

No. 7 had refused to deliberate. Instead, Juror No. 7 ―had a position about the

penalty based upon the evidence, as far as the court can see.‖ Regarding the

jurors‘ discussions about the future of the death penalty and their personal

experiences with drugs, the trial court found ―an insufficient basis [to conclude]

. . . that it impacted or affected their decisionmaking process.‖

67

b. Refusal to remove Juror No. 7 and denial of motion for new

trial

Defendant contends that the trial court erred in refusing to remove Juror

No. 7 and in denying his motion for a new trial on the ground that Juror No. 7

refused to deliberate. ―[W]here a verdict is attacked for juror taint, the focus is on

whether there is any overt event or circumstance . . . which suggests a likelihood

that one or more members of the jury were influenced by improper bias.‖ (In re

Hamilton (1999) 20 Cal.4th 273, 294.) ―On appeal, the determination whether

jury misconduct was prejudicial presents a mixed question of law and fact

‗ ―subject to an appellate court‘s independent determination.‖ ‘ [Citation.] We

accept the trial court‘s factual findings and credibility determinations if supported

by substantial evidence.‖ (People v. Tafoya (2007) 42 Cal.4th 147, 192.)

After receiving information indicating that Juror No. 7‘s wife may have

been exposed to the prosecutor‘s conversations with the Yu family, the trial court

interviewed several witnesses. On the basis of these interviews, the trial court

found that Juror No. 7 had not been exposed to the information. This finding was

supported by substantial evidence. Accordingly, defendant‘s claim concerning the

trial court‘s decision not to remove Juror No. 7 must be rejected.

Nor did the trial court abuse its discretion in denying defendant‘s

postverdict motion for a new trial on the basis of juror misconduct. Although the

postverdict interviews with several jurors suggest that Juror No. 7 was unhappy

that his wife was interrogated by the trial court, they do not show that Juror No. 7

had failed to deliberate. One of the other jurors interviewed explained that Juror

No. 7‘s opinion on the appropriate penalty was formed on the basis of the

―planning and execution style of the killings.‖ The trial court reasonably

concluded that the interview statements were consistent with the possibility that

68

Juror No. 7 simply had a strong opinion about the appropriate penalty based on the

evidence.

c. Extraneous material

The trial court did not abuse its discretion in declining to order an

evidentiary hearing concerning the jurors‘ alleged discussions about their personal

experiences with drugs and the future of the death penalty. ―The trial court has the

discretion to conduct an evidentiary hearing to determine the truth or falsity of

allegations of jury misconduct, and to permit the parties to call jurors to testify at

such a hearing. [Citation.] Defendant is not, however, entitled to an evidentiary

hearing as a matter of right. Such a hearing should be held only when the court

concludes an evidentiary hearing is ‗necessary to resolve material, disputed issues

of fact.‘ [Citation.] ‗The hearing should not be used as a ―fishing expedition‖ to

search for possible misconduct, but should be held only when the defense has

come forward with evidence demonstrating a strong possibility that prejudicial

misconduct has occurred. Even upon such a showing, an evidentiary hearing will

generally be unnecessary unless the parties‘ evidence presents a material conflict

that can only be resolved at such a hearing.‘ ‖ (People v. Avila (2006) 38 Cal.4th

491, 604.) ―The trial court‘s decision whether to conduct an evidentiary hearing

on the issue of juror misconduct will be reversed only if the defendant can

demonstrate an abuse of discretion.‖ (People v. Dykes (2009) 46 Cal.4th 731,

810.)

To the extent that the jurors‘ statements concerned how they were affected

by what other jurors said about their personal experiences with drugs or the future

of the death penalty, they are inadmissible under Evidence Code section 1150,

subdivision (a), as indications of juror mental processes. To the extent that

defendant alleges juror misconduct on the grounds that both topics were

69

mentioned, we have previously held that discussion of this sort, grounded in the

common knowledge or experience of laypersons, is ―an inevitable feature of the

jury system‖ (People v. Dykes, supra, 46 Cal.4th at p. 812). Specifically, we have

held that statements of jurors regarding their estimation of the probability of an

execution ―come within the ambit of ‗knowledge and beliefs about general matters

of law and fact that find their source in everyday life and experience,‘ which jurors

necessarily bring to their deliberations.‖ (People v. Cox (1991) 53 Cal.3d 618,

696, quoting People v. Marshall (1990) 50 Cal.3d 907, 950.) As to juror

discussion of their personal experiences with drugs, we held in People v. Yeoman

(2003) 31 Cal.4th 93, 162 that, ―while certainly a proper subject of expert

testimony, [this subject] has become a subject of common knowledge among

laypersons‖ and ―‗ [j]urors cannot be expected to shed their backgrounds and

experiences at the door of the deliberation room.‘ [Citation.]‖

11. Supervision of jury deliberations

Defendant contends that, in several respects, the trial court‘s supervision of

jury deliberations in the penalty retrial coerced a death verdict in violation of his

state and federal constitutional rights to due process, to a fair trial, to present a

defense, to confrontation, to a reliable and individualized sentencing

determination, and to freedom from cruel and unusual punishment.

a. Background

The jury for the penalty retrial began deliberating on May 17, 2000. On

May 30, 2000, after approximately 20 hours of deliberation, the jury foreperson

informed Judge Platt that the jury had reached an impasse and requested ―further

instructions.‖ Rather than poll the jury to determine whether there was a

reasonable probability of reaching a verdict, the trial court inquired as to the

number of ballots the jury had taken and the allocation of votes at each ballot. The

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foreperson reported that the jury had taken six ballots. The first ballot was six and

two, with four undecided. The second ballot was eight and two, with two

undecided. The third ballot was seven and three, with two undecided. The fourth

ballot was eight and two, with two undecided. The fifth ballot was nine and two,

with one undecided. The last ballot was nine and three.

After learning this information, the trial court advised the jury: ―I‘ve

calculated up the amount of time that you‘ve actually been in discussions, whether

it‘s been voting, or whether — the time you‘ve actually been in the deliberation

room going about your discussions. And it totaled about 20 hours of time that

you‘ve actually been in there during discussions. [¶] So over the days since the

17th of May, it has been about 20 hours of actual discussion time. Okay? [¶]

Now, when one is in the room and doing the discussions, I‘m sure that that

appears to be a considerable amount of time. [¶] We have come a very long way.

And the issues that you are talking about are literally life and death issues. And

the only instruction I can give you at this point in time is 20 hours of discussion

does not amount to an impasse that we cannot justify going further and having

further discussion. [¶] At what point in time that is or is not the case, I don‘t

know. But I think you owe it to yourselves to continue to talk about the matter

and see if there is further discussion. See if there is any change in any fashion.

Before we decide whether or not we are truly at an impasse. [¶] So my instruction

to you at this point in time is, as I said this morning — I didn‘t choose those words

lightly — it‘s time again to roll up your sleeves and go back to work.‖

At the end of the day, the court further advised the jury: ―I‘m going to

reread four of the instructions that have previously been read to you. There is no

greater or less significance to those instructions. They merely are applicable to the

issue of how you go about or continue about your deliberations. Other than that,

they have no greater or less importance. [¶] And because the law says that I have

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to be very careful about what position the court takes, I want to start off with the

instruction that says I have not intended by anything that I have said or done, or by

any question that I may have asked, or by any ruling that I may have made, to

intimate or suggest what you should find the facts to be, or that I believe or

disbelieve any witness. [¶] If anything I have done or said has seemed to so

indicate, you will disregard it and form your own conclusions. [¶] The reason I

wanted to start with that is by telling you that there is a lot of deliberation left to be

had doesn‘t mean that you need to or should move or change your positions. That

is entirely up to you as individuals. [¶] But my job and my function is to keep

things moving as long as I think they can still move. So I have to be very delicate

in the way I go about doing that. [¶] I want you to continue deliberating. I want

you to continue discussing until I have to decide that there is or is not the ability to

reach a verdict. Okay? So it‘s a very touchy issue. [¶] And I don‘t want you to

misperceive what the court‘s position is. I have no position other than to move

you along until and if you can reach a verdict. [¶] . . . [¶] The People and the

defendant are entitled to the individual opinion of each juror. Each of you must

consider the evidence for the purpose of reaching a verdict, if you can do so. Each

of you must decide the case for yourself, but should do so only after discussing the

evidence and instructions with the other jurors. [¶] Do not hesitate to change an

opinion if you are convinced it is wrong. However, do not decide any question in

a particular way because a majority of jurors or any of them favor that decision.

[¶] . . . [¶] The attitude and conduct of jurors at all times are very important. It is

rarely helpful for a juror at the beginning of deliberation to express an emphatic

opinion on the case, or to announce a determination to stand for a certain verdict.

[¶] When one does that at the outset, a sense of pride may be aroused; and one

may hesitate to change a position, even if shown it is wrong. [¶] Remember that

you are not partisans nor advocates in this matter. You are the impartial judges of

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the facts. [¶] That‘s the extent of the instructions that I wanted to reread to you at

this point in time. [¶] And I think I made a comment to counsel at one point after

you folks had left that the 20 hours or so — now 21 hours, 21 and a half hours —

that you‘ve spent at this point in time with the issues that you are dealing with is a

drop in the bucket. [¶] And until I decide that further deliberations are of no avail,

then I‘ll have you continue to roll up your sleeves and go to work as best you can.

[¶] One of the ways that I would suggest you do it — and it is merely a suggestion.

Because obviously now there have been some positions taken. During the

discussions that you have in the next few days, if you take the other side‘s

position, advocate it as if it were yours, see whether or not that changes your own

thoughts about your position. [¶] Discuss it again with the other jurors. Do that

talking, do that deliberating. And then we‘ll see where we are.‖

At the end of the next day, May 31, 2000, the jury sent the trial court a note

indicating that the jury planned to adjourn at 12:30 p.m. on June 1 and not to

deliberate on June 2. Juror No. 5 also communicated to the court that he or she

had planned to drive his or her daughter‘s eighth grade class on a trip to Yosemite

from June 7 to June 9. The trial court brought the jury back and said, ―I don‘t

have a problem with the [proposed deliberation schedule].‖ The court then

discussed the class trip with Juror No. 5:

―THE COURT: . . . . The more difficult issue, [Juror No. 5], is June 7th,

8th and 9th. It‘s for your daughter‘s school trip? Going to where?

―[Juror No. 5]: Yosemite.

―THE COURT: And without you going along, what does that do? Your

note says that another parent has already backed out. That puts them in difficult

straits.

―[Juror No.5]: Well, I‘m a driver. I‘ll drive kids and chaperone.

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―THE COURT: What I need you to try to do is see if they can rustle

somebody else up to do that driving. Okay? ‘Cause if you can do that today when

you get home, then we‘ll know tomorrow. Try and give them enough lead time.

[¶] If not, then I‘ll have to take a look tomorrow and see what discussions are

being had, where you folks are. If there‘s momentum going in the discussion, I

don‘t want to take the time off. If perhaps it‘s better to take the time off and take a

breather, we can do that. [¶] So I can‘t tell you yes or no right now. Obviously,

we‘re getting to some very critical stages. And I‘ve got to try and balance

everybody‘s interest. Yours as well as the rest of the folks. [¶] So I will try to do

what I can do. But if you can find whether or not they can take care of that with

somebody else — [¶] Friday obviously isn‘t a problem, ‘cause we‘re not going on

Friday. Just the 7th and 8th that I‘ve got problems with. [¶] But see whether or

not it can be addressed first. And if not, then I‘ll see what can be done. All

right?‖

On the morning of June 1, 2000, the jury requested access to certain

demonstratives that the prosecutor used during closing argument but that were not

in evidence. Together, the demonstratives formed a timeline of the events

underlying the crimes for which defendant was convicted.

Defense counsel objected to allowing the jury to access the demonstratives

because they were not in evidence. Nonetheless, the trial court allowed the jury

access. The court admonished the jury that the exhibits were not in evidence and

that they could only be used to aid in discussions of and deliberations on the

evidence. The court also indicated that the jury could view other exhibits if they

so requested. Before sending the demonstratives to the jury, the court marked

them as court‘s exhibits OOOO, PPPP, and QQQQ.

A short time later, the jury requested access to certain demonstratives that

defense counsel used during his closing argument. After some discussion between

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trial counsel and the court to determine which demonstratives the jury wished to

see, the court eventually allowed the jury to access four demonstratives. The first

demonstrative, which was marked RRRR, provided defense counsel‘s definition

of a ―mitigating circumstance.‖ The other three demonstratives, marked court‘s

exhibits SSSS, TTTT, and UUUU, together formed a list of 22 examples of

mitigating circumstances. The court complied with the jury‘s request but

admonished the jury that the exhibits contained defense counsel‘s interpretation of

the law.

Shortly thereafter, the jury requested access to another demonstrative used

during defense counsel‘s closing argument. This demonstrative was a poster

board offering the defense‘s interpretation of a capital jury‘s task during the

penalty phase. The demonstrative stated: ―MUST VOTE LIFE IF MITIGATION

OUTWEIGHS AGGRAVATION [¶] MUST VOTE LIFE IS [sic] MITIGATION

AND AGGRAVATION ARE EQUAL [¶] MUST VOTE LIFE IF

AGGRAVATION OUTWEIGHS MITIGATION, BUT NOT SUBSTANTIALLY

[¶] MUST VOTE LIFE IF AGGRAVATION SUBSTANTIALLY OUTWEIGHS

MITIGATION, BUT YOU BELIEVE DEATH IS NOT APPROPRIATE [¶]

MAY VOTE DEATH IF AGGRAVATION SUBSTANTIALLY OUTWEIGHS

MITIGATION AND YOU BELIEVE DEATH IS APPROPRIATE.‖ This

demonstrative was marked as court‘s exhibit VVVV.

The court refused to allow the jury access to this demonstrative during

deliberations. The court explained that exhibit VVVV was different from exhibits

OOOO–UUUU because it was a ―comment about the ultimate issue [the jurors]

are to do. That is their ultimate responsibility in casting a vote.‖

In the middle of the day on June 1, 2000, the trial court returned to Juror

No. 5‘s request to take time off from June 7 to June 9:

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―THE COURT: Before I send you home for the weekend, we need to,

[Juror No. 5], did you get an answer to —

―[Juror No. 5]: Well, my daughter‘s teacher told me that he really needs

me.

―THE COURT: With emphasis added, I take it.

―[Juror No. 5]: Right. And that he wants me to call him ASAP as soon as I

have some indication from you.

―THE COURT: All right. Has it been discussed with the rest of the jurors

about what that does?

―[Juror No. 5]: Well, they know about it.

―THE COURT: Okay. I want to ask you one more time to exercise. Go

back, discuss whether to take those three days off. So we‘ll have Monday next

week at one, and then Tuesday and Wednesday. [¶] Is it Wednesday, Thursday,

and Friday? So we‘d go Monday, Tuesday of next week. We take the 7th, 8th and

9th off. Then we‘d come back the 12th. [¶] Why don‘t you go back, talk about

that, see if that really sets anybody‘s plans askew. [¶] I know we talked about the

end of June. That still gives us a lot of time for you to be able to deliberate or talk

about it. [¶] Go back and think about that for a moment and come back and let me

know, [Juror No. 5], if you would, what the consensus or the agreement is. Then

I‘ll make a decision. [¶] We‘ve got to let the folks know for their purpose. It‘s an

important trip to the kids. If we can work around it, I said I‘ll try to work around

it. [¶] So why don‘t you folks talk about it for a moment.‖ After a short break, the

foreperson informed the trial court what the jury had decided: ―We discussed it.

We are going to take those days off, and we are going to have a — we have

committed ourselves to a concentrated effort thereafter.‖

On June 6, 2000, the jury returned a verdict of death.

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b. Failure to poll the jury

According to defendant, the court had ―a duty to determine whether there

[was] a ‗reasonable probability‘ further deliberations would prove useful in

resolving differences, and the means to do so is by inquiry of the jurors

themselves.‖ We review a trial court‘s ―determination whether there is a

reasonable probability of agreement‖ for an abuse of discretion. (People v. Harris

(2005) 37 Cal.4th 310, 363; see § 1140.) ―While the trial court has a duty to avoid

coercing the jury to reach a verdict, . . . inquiry as to the possibility of agreement

is ‗not a prerequisite to denial of a motion for mistrial.‘ ‖ (People v. Bell (2007)

40 Cal.4th 582, 616–617.) Thus, a trial court does not abuse its discretion merely

by declining to poll the jury as to the likelihood of reaching a unanimous verdict.

Further, the trial court‘s inquiry was reasonable under the circumstances.

In People v. Proctor (1992) 4 Cal.4th 499, 538, the jury informed the trial court

that they had reached an impasse in their deliberations and asked for further

instructions. The trial court asked the foreperson for the allocation of the jurors‘

votes. We approved that procedure, determining that it was conducted for the

purpose of determining whether further deliberations would be fruitful. (Id. at

p. 539.) Here, each successive ballot showed changes in the jurors‘ individual

determinations, suggesting that the jury had not reached an insurmountable

impasse. Under these circumstances, the trial court conducted a reasonable

inquiry into whether it was reasonably probable that further deliberations would be

productive. Thus, the trial court did not abuse its discretion in declining to poll the

jury as to the probability of reaching a verdict.

c. Statements to the jury during deliberations

Defendant contends that the trial court‘s statements to the jury during

deliberations coerced the jury to reach a death verdict. In particular, defendant

maintains that the trial court‘s statement that 21.5 hours of deliberation was a

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―drop in the bucket‖ and the observation that deliberations could potentially

continue until the end of the month of June led the jury to believe that they had to

render a verdict. Defendant also objects to the court‘s suggestion to the jury that

they ―take the other side‘s position, advocate it as if it were yours, see whether or

not that changes your own thoughts about your position.‖

Coercion occurs where ―the trial court, by insisting on further deliberations,

expresse[s] an opinion that a verdict should be reached.‖ (People v. Rodriguez

(1986) 42 Cal.3d 730, 775.) ― ‗Although the court must take care to exercise its

power without coercing the jury into abdicating its independent judgment in favor

of considerations of compromise and expediency [citation], the court may direct

further deliberations upon its reasonable conclusion that such direction would be

perceived ― ‗as a means of enabling the jurors to enhance their understanding of

the case rather than as mere pressure to reach a verdict on the basis of matters

already discussed and considered.‘ ‖ ‘ ‖ (People v. Debose (2014) 59 Cal.4th 177,

209.)

The trial court‘s statements to the jury, given the totality of the

circumstances, were not coercive. Although the trial court‘s statement that 21.5

hours of deliberation was a ―drop in the bucket,‖ when read in isolation, could be

construed as an inducement to reach a verdict, the trial court‘s complete remarks

do not suggest that the court crossed the line from encouragement to coercion.

Similarly, the trial court‘s passing remark that deliberations could continue until

the end of the month was not unreasonable given that the court had previously

informed jurors that their service could be required until the end of June. Further,

the trial court permitted the jury flexibility over the schedule of their deliberations.

The record shows that the trial court was willing to accommodate a wide range of

personal commitments on the part of the jury. For example, after learning that

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Juror No. 5 could not find a replacement driver for his or her child‘s three-day

class trip, the court planned to allow the jury to recess for three days.

Finally, defendant contends that the trial court‘s suggestion to the jury that

they reverse role-play violates our decision in People v. Gainer (1977) 19 Cal.3d

835, disapproved on another ground in People v. Valdez (2012) 55 Cal.4th 82,

163. In Gainer, we held that ―it is error for a trial court to give an instruction

which either (1) encourages jurors to consider the numerical division or

preponderance of opinion of the jury in forming or reexamining their views on the

issues before them; or (2) states or implies that if the jury fails to agree the case

will necessarily be retried.‖ (Id. at p. 852.) The lower courts that have addressed

the kind of instruction that the trial court gave here have determined that it does

not violate Gainer. (People v. Whaley (2007) 152 Cal.App.4th 968, 983.) As the

court in Whaley concluded, several features distinguish a case like this one from

Gainer. First, the trial court‘s suggestion that the jurors reverse role-play did not

require the jurors to consider their minority status on the jury. Second, the court

instructed the jury with CALJIC No. 17.40, emphasizing that the jurors were to

use their independent judgment and come to their own individualized

determinations. Third, the court suggested, but did not order, the jurors to engage

in the reverse role-playing exercise. Under the circumstances, the instruction did

not ―direct[] the jury that it was required to reach a verdict, place[] any constraints

on an individual juror‘s responsibility to weigh and consider the evidence, or

coerce[] the jurors into abdicating their independent judgment in favor of

compromise and expediency.‖ (Whaley, at p. 982.)

d. Jury’s access to certain prosecution and defense exhibits

Defendant contends that the trial court improperly permitted the jury to

review certain demonstratives used during the prosecutor‘s closing argument and

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improperly prohibited the jury from reviewing certain demonstratives used during

defense counsel‘s closing argument. ―[A] trial court‘s inherent authority regarding

the performance of its functions includes the power to order argument by counsel

to be reread to the jury or to be furnished to that body in written form. The

exercise of such power must be entrusted to the court‘s sound discretion.‖ (People

v. Gordon (1990) 50 Cal.3d 1223, 1260, overruled on another ground in People v.

Edwards, supra, 54 Cal.3d at p. 835.)

The trial court allowed the jury, at the jury‘s request, to view three posters

used during the prosecutor‘s closing argument, which provided the timeline of

defendant‘s crimes, and four posters used during defense counsel‘s closing

argument, which offered defense counsel‘s definition and exa

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