# People v. Peoples

> California Supreme Court · February 4, 2016 · 62 Cal. 4th 718

URL: https://www.frixlaw.com/law-library/cases/3174771

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. LOUIS JAMES PEOPLES, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** February 4, 2016
- **Citations:** 62 Cal. 4th 718; 198 Cal. Rptr. 3d 365; 365 P.3d 230; 2016 Cal. LEXIS 627
- **Precedential status:** Published
- **Opinion:** Opinion by Liu
- **Judges:** Liu, Cantil-Sakauye, Werdegar, Chin, Corrigan, Cuéllar, Kruger
- **Cited by:** 257 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

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

1
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

2
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,

3
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

4
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

5
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.

6
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

7
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

8
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.

9
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

10
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

11
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

12
―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.

13
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

14
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.

15
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

16
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‖

17
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.)

18
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.

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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‖).

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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 Pr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3174771. Public record. Not legal advice.