People v. Nelson

Filed 8/15/16

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S048763

v. )

)

SERGIO DUJUAN NELSON, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. KA019560

____________________________________)

Defendant Sergio Dujuan Nelson was convicted of the first degree murders

of Robin Shirley and Lee Thompson. (Pen. Code, § 187; all undesignated

statutory references are to this code.) The jury also found true the special

circumstance allegations that Nelson committed multiple murders and that the

murders were committed while lying in wait. (§ 190.2, subds. (a)(3), (a)(15).) It

also found true firearm-use allegations. (Former § 12022.5, subd. (a).) The first

jury was unable to reach a penalty verdict, and the trial court declared a mistrial.

At the second penalty phase, the jury returned a verdict of death. The trial court

denied Nelson‘s motions for a new trial (§ 1181) and for modification of the

penalty verdict (§ 190.4, subd. (e)), and entered a judgment of death. This appeal

is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We reverse the

judgment on the lying-in-wait special circumstance due to insufficiency of the

~ SEE CONCURRING AND DISSENTING OPINION ~

evidence. We also reverse the penalty phase judgment due to the trial court‘s

unwarranted intrusion into the jury‘s deliberative process and remand for retrial of

the penalty phase. We otherwise affirm the judgment.

I. FACTS

A. Guilt Phase

1. Overview

On September 11, 1993, Nelson resigned from his job at Target after failing

to receive a promotion. Shortly before 4:00 a.m. on October 2, 1993 he shot and

killed Robin Shirley, the woman who received the promotion Nelson believed he

had deserved, and Lee Thompson, a coworker who had defended Shirley when

Nelson harassed her about her promotion. Nelson knew Shirley typically waited

in the parking lot for the store to open. He rode to the Target parking lot on his

bicycle, armed with a loaded gun. Shirley and Thompson were in the front seat of

Thompson‘s car. Nelson parked his bicycle, approached the car on foot from

behind and fired several shots into the car through an open rear window, then

started to walk away before returning and firing additional shots into the car.

After shooting Shirley and Thompson, Nelson fled the scene on his bicycle, which

he then abandoned when police chased him. In his closing argument, Nelson‘s

attorney conceded Nelson had killed the victims but argued the shootings had not

been deliberate and premeditated.

2. Prosecution Case

On May, 2, 1992, Nelson, then 17, was hired at the La Verne Target store

on Foothill Boulevard near White Avenue as a member of the ―push team‖ that

unloaded trucks and stocked shelves. Alejandro Sandoval, the push team leader,

testified Nelson was an excellent worker who took on additional responsibilities

and occasionally filled in for Sandoval. Still, both Sandoval and his supervisor,

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Kristin Strickland, told Nelson he needed to improve his interpersonal skills,

because Nelson was demanding of coworkers and inappropriately acted like a

supervisor even when he was not in charge. Nelson seemed receptive to the

advice and continued to work hard.

In the spring of 1993, Nelson‘s ex-girlfriend, Karen Horner, was hired at

the Target store and joined the push team. (All undesignated calendar references

are to 1993.) Nelson and Horner, a woman in her late 30‘s, had become

romantically involved while Nelson was 16 and still in high school and had lived

together from November 1991 until late 1992. After their relationship ended,

Nelson and Horner remained friends. According to Horner, they continued to

socialize and occasionally were intimate.

In June 1993 Sandoval was promoted and his position as push team leader

became available. Both Nelson and Robin Shirley, a fellow push team member,

applied for the job. Shirley and Nelson were ―good friends at work,‖ and she

occasionally gave him rides to work. Horner, who was jealous of Shirley,

believed ―something was going on‖ between Nelson and Shirley because they

often socialized at work and Nelson had been to Shirley‘s home. Nelson told

Horner that he wanted the promotion. Sandoval told Nelson he believed Nelson

would be promoted. Nelson bragged to his coworkers that he was going to get the

job and told other team members not to bother applying.

The day before the official announcement, Strickland told Nelson he

would not be promoted. Nelson was upset that ―people might make fun of him‖

and wanted to quit. Strickland encouraged him to stay, suggesting that he could

be promoted in the future, but Nelson submitted a form indicating his intention to

resign effective that day. Later that day he told Strickland he had changed his

mind.

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The next morning, Strickland announced over the loudspeaker that Shirley

had received the promotion. Some members of the push team taunted Nelson over

Shirley‘s promotion. After Shirley was promoted, Nelson would have nothing to

do with her. His job performance declined; he kept to himself and was noticeably

depressed. Horner told Nelson he should have received the promotion because he

was ―quicker‖ than Shirley and because Sandoval ―pumped [him] up for it.‖ Soon

after Shirley was promoted, Nelson told Sandoval that he was ―mad‖ because he

felt he had deserved the promotion and burst into tears.

In late August, Lee Thompson and his friend, Robert Comeau, began

working at the Target store. Comeau testified that he, Thompson, and Shirley

often spent time together during lunch and breaks. According to many of her

coworkers, Shirley regularly arrived at work early and parked her truck in front of

the Target store. Those workers testified that employees often gathered in the

parking lot and sat together in their cars before work. They noted that it was not

uncommon for Shirley and Thompson to be seated in one or the other‘s car before

work. Comeau agreed that it was not uncommon for Thompson and Shirley to sit

in a car together before the store opened, talking or listening to music, but he

added that ―[s]ometimes it was me and Robin or me and Lee or some other

people.‖

Soon after he started working at Target, Comeau was in the stockroom

with Shirley and Thompson when Nelson joined them and angrily told Shirley

that he deserved the promotion, not her. Thompson accused Nelson of harassing

Shirley and told him to leave. Nelson left when Comeau approached him.

A few days later, Comeau heard a work radio ―flick on and off‖ and then

heard Thompson and someone else talking. Thompson sounded upset; it

seemed like there was going to be a fight. Comeau approached and saw

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Thompson and Nelson a couple of feet apart facing each other. Comeau told

Thompson not to fight and pushed him away from Nelson. Nelson told

Thompson, ―I will get you, I will get you back some day.‖

The next day, September 11, Nelson received a warning notice from

Strickland due to his disruptive comments about Shirley. Nelson signed the

warning, but then resigned effective that day.

At approximately 3:40 a.m. on October 2, witness Richard Hart and an

acquaintance were outside of a 7-Eleven store near the Target when Hart heard a

sound similar to repeated gunfire coming from the front of the Target store. He

looked toward Target and saw a ―muzzle flash‖ where a man was standing next

to a truck and a car; the truck belonged to Shirley and the car, a Plymouth, to

Thompson‘s mother. Hart later identified the man as Nelson in a lineup and at

trial. Nelson was clad in black clothing and wearing a black baseball cap. He

appeared to be firing a gun into the Plymouth, but then stopped, turned around,

and walked away. Hart heard a ―gurgling‖ or ―a rumbling‖ from the vicinity of

the two vehicles. Nelson walked back to the car and fired two or three more

rounds into it. Before Hart lost sight of him, Nelson appeared to adjust his pants

or put something in them. Hart called 911.

La Verne Police Officer Larry Ross, the first responder, saw two people,

Shirley and Thompson, in the Plymouth. He also observed the car‘s doors were

closed, its front windows were up, and its rear windows were rolled about

halfway down. The radio was on. The car keys were in the ignition, but the

engine was off. Ross checked Shirley and Thompson for vital signs and

concluded they were dead.

Shirley was seated in the front passenger seat with a bullet wound to her

forehead. Her head was tilted slightly to the left, and she was slumped towards the

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center of the seat. Before Ross could photograph her position, her body slumped

―down further and further.‖ She was fully clothed with her shoes and socks on.

Her arms were bent and facing inward and her hands were closed and on her lap.

Thompson was in the driver‘s seat, which was somewhat reclined, and he was

slumped over. His bloodied head rested on the right floorboard. Thompson was

also fully clothed except for his shoes, which were on the floor beneath the

steering wheel.

Sergeant Carlton Williams was in his patrol car when he heard over the

police radio that a thin black or Hispanic man wearing dark clothing who may

have been involved in the Target shooting was heading toward White Avenue. He

saw a male wearing dark clothing heading south on White Avenue on a bicycle

and illuminated him with a spotlight. The bicyclist‘s physique was consistent with

Nelson‘s. The bicyclist abruptly made a U–turn and quickly rode north. Williams

pursued him until he abandoned the bicycle, ran across a dirt field, and

disappeared into a commercial complex. Williams confiscated the bicycle.

Williams testified that there were trees and brush near the Target store where

someone could hide a bicycle.

When Horner arrived for work on October 2, she saw yellow tape

surrounding Shirley‘s truck and Thompson‘s mother‘s car and heard a rumor that

two people had been killed. Horner left work. She, Nelson‘s cousin, Alex Cosey,

and Nelson‘s friend, Johnny Lopez, drove around looking for Nelson. Lopez used

a pay telephone to call Nelson‘s pager. As they waited for Nelson to return the

page, he appeared across the street from them wearing a dark baseball cap and

black clothing. Horner asked where he had been, but Nelson did not answer.

When Horner said that there were two dead people at Target, Nelson responded,

―Who? Robin and Lee?‖

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Lopez drove Horner and Nelson toward the house in Pomona where Nelson

lived. Horner asked Nelson where his gun was. He pulled down his waistband

and showed it to her. Nelson had Lopez drop him off near the railroad tracks

behind his house. Nelson got out of the car wearing a black holster and carrying

the gun.

Police later searched the area by the railroad tracks near where Lopez

dropped Nelson off. They found a black holster concealed in bushes by the tracks

and a Taurus nine-millimeter semiautomatic handgun buried beneath a cinder

block. The gun had a live round in the chamber and six live rounds in the

magazine. In postarrest interviews, Nelson admitted he owned the holster and the

gun. During an October 5 interview, he claimed that he had thrown the empty gun

in a dumpster about a week earlier because Pomona police officers told him that

he could be charged with second degree murder if the gun ended up in the wrong

hands. When asked for details about that incident, Nelson declined to discuss it

further.

Seven expended casings and two bullets were recovered at the murder

scene. Five were on or under the Plymouth‘s back seat. Firearms examiner

Dwight Vanhorn testified that the expended cartridge cases from the scene and the

expended bullets recovered from the bodies came from Nelson‘s gun.

Senior medical examiner James Ribe testified that Shirley and Thompson

died from multiple gunshot wounds. The first two shots that struck Shirley were

concurrent causes of death. One bullet entered her middle forehead and the

second one the back left side of her neck. A third, nonfatal, bullet entered her left

shoulder. The first bullet had been fired from no more than 24 inches away.

Thompson suffered a wound to his left temple and four wounds to his left back

and side. The trajectory of the four bullets was consistent with Thompson having

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been leaning forward as the wounds were inflicted. Except for a gunshot to his

shoulder blade, all of Thompson‘s wounds were fatal. Senior criminalist Elizabeth

Devine testified that the first round fired caused the wounds to Shirley‘s neck and

that the second round fired caused the wound to Thompson‘s temple.

Lieutenant Carl Brubaker testified that his officers interviewed Target

employees and Nelson‘s family and friends in an attempt to discover if this case

involved jealousy or a lover‘s triangle. Those officers did not uncover evidence of

a romantic relationship between Nelson and Shirley or a lover‘s triangle between

Nelson, Shirley, and Thompson. His officers only learned that there was friction

between Nelson and Shirley and between Nelson and Thompson.

On October 2, officers executed a search warrant at Nelson‘s house in

Pomona. They recovered a pager from Nelson‘s room and then placed Nelson

under arrest for murder. At the police station, he waived his Miranda (Miranda v.

Arizona (1966) 384 U.S. 436) rights and was interviewed. Nelson said that when

Shirley received the promotion he was not angry but did not feel ―capable of

performing the way [he] used to.‖ He denied knowing Shirley had been murdered

but said he had heard from his aunt that two non-Target employees had been killed

and dumped at Target. When he realized that he was suspected of the murders,

Nelson said, ―I didn‘t do it. I wasn‘t there.‖ He claimed that on the morning of

the shooting he was at or near home, except for when he and his cousin Alex

Cosey went running, between 7:00 a.m. and 7:30 a.m. Nelson said that two days

earlier he had ridden Cosey‘s bicycle to a mall where it had been stolen. Nelson

added that he recently painted that bicycle black. He claimed he had not seen or

spoken to Horner the day of the shooting. In a second interview two days later,

Nelson repeated the claimed time sequence for the day of the murders. He said

that on the day of the shooting another cousin, Phillip Davis, gave him a ride home

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from football practice. He identified the confiscated bicycle as the one stolen from

him two days before the murders.

During this interview, Nelson said he did not know Lee Thompson because

he had just started working at Target when Nelson quit. Nelson said he ―couldn‘t

work there mentally‖ because Strickland accused him of ―bad mouthing the other

employees.‖ He claimed he stopped socializing with employees two weeks before

Shirley was promoted because the workers were ―saying a bunch of lies.‖ Nelson

denied having bragged he would get promoted, but admitted he knew that

Strickland had said his bragging was one reason he was not promoted. He said

that, before the promotion, he and Shirley were ―friends.‖ He said that it had been

―normal‖ for him, Sandoval, and Shirley to arrive at the Target store early and

wait for Strickland to open the store. Nelson knew that Shirley owned two trucks

and that she drove both to work. Nelson denied ever getting mad at or threatening

Shirley or telling anyone that he should have received the promotion. Nelson said

he did not know what kind of car Thompson drove.

Nelson said he had only used the repainted bicycle for two days before it

was stolen. He admitted having bought a black holster and a nine-millimeter gun

from Cosey but said he never bought bullets for the gun or shot it and had thrown

it in the trash the day after he quit Target.

3. Defense Case

At trial, the defense conceded that Nelson shot and killed the victims but

attempted to establish it was a spontaneous act committed without premeditation

or deliberation. To that end, the defense presented testimony that Nelson suffered

from various mental health problems, including depression so severe he had made

at least one suicide attempt and had repeatedly made suicide threats. The defense

also presented evidence to show Nelson‘s fragile mental state was worsened by his

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mother‘s rejection of him in favor of her boyfriend and a complicated relationship

with Karen Horner and her daughter, Valerie — Nelson was in love with Valerie,

but sexually involved with Karen. The defense also presented evidence that Robin

Shirley had flirted with male employees at Target, but presented no evidence of a

romantic relationship between her and Nelson. Essentially, the defense attempted

to show that Nelson‘s mental health problems, family dysfunction, and sexual and

relationship issues combined with his failure to win a coveted promotion led him

to snap and kill the victims impulsively.

Valerie Horner (Valerie) testified she first met Nelson in 1991 through her

brother Allen with whom Nelson was friends. (Here and elsewhere, individuals

with the same surname are referred to by their first names to avoid confusion.)

Nelson was often at the Horners‘ house that summer because he was not getting

along with his mother‘s boyfriend and his mother did not pay attention to him.

Nelson told Valerie he loved her but she told him that she wanted to ―just remain

friends.‖ Sometime in August 1991, Karen became angry because Valerie,

Nelson, and Valerie‘s cousins were in Valerie‘s bedroom with the door closed.

Karen sent Valerie to stay with relatives until school started. That fall, Nelson

began skipping classes and then dropped out of school. He told Valerie that he

was seeing an older woman who, Valerie learned, was her mother. Nelson told

Valerie if he could not have her, he ―went for second best.‖

Nelson called Valerie in February 1992, sounding very depressed. He

picked her up the next day and drove to the trailer park in San Bernardino where

he lived with Karen, who was not at home. Nelson appeared very thin and said he

saw no reason to live. Valerie testified that Nelson often spoke that way. While

they were in the trailer, Valerie had sex with Nelson because she ―cared‖ for him

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and because she wanted to ―get back‖ at her mother. In April 1992, Nelson and

Valerie stopped speaking.

Yvonne Cosey, Nelson‘s aunt, testified that Nelson was depressed and

became anorexic after his mother kicked him out of her home in 1991. Nelson had

been living with Karen, but moved into Yvonne‘s house in Pomona in June of

1993. Karen frequently visited and called Nelson at Cosey‘s house. Alex Cosey,

Yvonne‘s son, testified he was aware of Nelson‘s problems at the Target store, but

felt Nelson had appeared ―normal‖ in the months before the shooting. Yvonne

testified that in September, Nelson became quiet and withdrawn. She was

unaware he had quit his job. She thought that his personality had changed because

she had been laid off in September and had asked him to contribute financially to

the household.

Alex also testified that he gave Nelson the nine-millimeter gun in June

1993, after his family was threatened by a gang that controlled their neighborhood.

Another cousin, Phillip Davis, testified that he and Nelson had armed themselves

after a gang member pointed a gun at Davis that June. Alex testified Nelson kept

the gun beneath his pillow and that he had last seen Nelson with it a couple of

weeks before the murders during an altercation with the gang. Cosey also testified

that Nelson almost always wore dark clothing, a detail confirmed by Johnny

Lopez.

Johnny Lopez testified that he visited Nelson and Karen in San Bernardino

while they lived together and described them as constantly arguing. In February

1992, Nelson started giving away his belongings as part of his decision to kill

himself. Lopez believed Nelson‘s problems were caused in part by his

relationship with Karen. Once Karen was ―out of the scene,‖ Lopez and Nelson

spent more time together and Lopez felt that Nelson seemed ―back to normal.‖

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Michelle Horner was married to Allen Horner, Karen Horner‘s son.

Michelle testified that Karen and Nelson lived with her and her husband in the fall

of 1992. Nelson ―constantly‖ talked about committing suicide, often while

holding a knife. Michelle and Allen spent hours telling Nelson not to kill himself;

afterwards, Nelson would go to bed ―like it was nothing.‖ Michelle did not

consider the threats to be serious. She thought Nelson simply wanted attention.

After Nelson and Karen moved to a trailer in San Bernardino, Nelson prevented

Michelle and Allen from talking to or seeing Karen. Michelle felt that Nelson

controlled Karen through most of the relationship. She had also seen bruises on

Karen‘s hands. Karen moved back in with Michelle and Allen in March 1993.

Between the time Nelson quit his job at Target and the shooting, Karen called him

daily. During the conversations, Karen accused Nelson of flirting with his

coworkers, called Shirley a ―whore‖ and a ―bitch,‖ and told Nelson that he should

have received the promotion.

Michelle testified that that she, Allen, Karen, her sister and Nelson spent 12

hours together at the Los Angeles County Fair two days before the shooting.

Nelson had seemed to her ―to be the same person‖ he had always been.

On March 29, 1992, Nelson was treated at a Kaiser Permanente hospital

emergency room for an overdose of Robaxin, a muscle relaxant. Dr. Robert Frost,

the treating physician, testified that Nelson reported having consumed about 10

tablets when the usual dosage was one tablet. Dr. Frost could not determine if

Nelson actually had taken Robaxin because blood work did not reveal drugs in

Nelson‘s system. Nelson‘s stomach was pumped and he was referred for a

psychological consultation.

Psychologist Herb Glazeroff conducted that consultation. Nelson told Dr.

Glazeroff he tried to commit suicide because he felt he was a burden to others but

12

did not mention any prior suicide attempts. Dr. Glazeroff diagnosed Nelson with

an ―adjustment disorder with depressed mood‖ and referred him to a local clinic.

Dr. Glazeroff concluded Nelson‘s action was not ―a serious suicide attempt‖

because it appeared that Nelson had acted impulsively, had reported his conduct,

and had come to the hospital voluntarily. Dr. Glazeroff concluded that Nelson

presented ―no psychotic indicators‖ and that his cognitive function was intact. He

discharged Nelson after determining that he was not ―at risk to harm himself.‖

Several witnesses who had worked at Target at the same time as Nelson,

Shirley, and Thompson also testified. Two of them — Tracy Robinson and

Elizabeth Rylander — testified that, while Shirley and Nelson were friends at

work, and Nelson had made physical advances to Shirley, she had no romantic

interest in him. They stopped associating at work after Shirley was promoted.

Robinson also testified that Shirley, who was married but had been separated, was

―flirty‖ with other male employees, including Thompson whom she thought was

―very cute.‖ Raymond Nieto and Charles McGruder, father of Justin McGurder,

also a Target employee, testified that Shirley had pursued Nieto and Justin when

the two men worked at Target, but neither was interested. However, Frances

Voss, another Target employee, testified she had never seen evidence Shirley was

intimate with any of her coworkers.

Robinson also testified that Nelson had irked Thompson by telling him how

to do his job. Robinson, Voss, and Nieto testified that Nelson was devastated

when he was not promoted and fell into a depression.

Dr. Stephen Wells, a forensic psychologist, met with Nelson five times in

the summer of 1994 for a total of 10.5 hours. Besides interviewing Nelson, Dr.

Wells also interviewed his mother, reviewed police reports, and read Nelson‘s

medical and high school records. Additionally, Dr. Wells administered three

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standardized tests to Nelson: (1) the Million Clinical Multi–Axial (MCMI);

(2) the Minnesota Multi-Phasic Personality Inventory (MMPI); and (3) the

California Psychological Inventory. Dr. Wells testified that the test results

supported a diagnosis of paranoid schizophrenia and dysthymia, a type of long-

standing depression. He explained that these disorders can cause a person to

experience disordered thinking, act on delusional ideas, misinterpret social

situations, and have difficulty handling anxiety and recognizing alternatives during

a conflict.

Dr. Wells characterized Nelson‘s relationships with Karen Horner and her

daughter Valerie as ―pathological,‖ in part because Nelson loved Valerie and not

her mother, yet he was intimate with Karen. Regarding Nelson‘s relationship with

Shirley, Nelson told Dr. Wells it had been friendly, but ―not . . . intimate or

romantic.‖

Regarding the shooting, Nelson told Dr. Wells he remembered having

trouble sleeping before riding his bicycle to Target carrying his gun. He did not

know what he was going to do, but contemplated shooting himself. When he

approached the Plymouth, he thought he saw Thompson bending toward the floor.

He fired at Thompson because he believed he was reaching for a gun. The next

thing he recalled was fleeing the scene on his bicycle. When a police officer

chased him, he ―dumped the bike and took off running.‖

Dr. Wells opined that Nelson‘s failure to get promoted was a ―major

occurrence‖ that changed the way Nelson felt about his life, Target, his coworkers,

and Shirley in particular. After Shirley was promoted, Nelson became paranoid,

angry, and resentful towards those who played an important role in his life and

entered the ―early stages of the schizophrenic process.‖ Wells concluded that

Nelson was suffering from paranoid schizophrenia on the morning he killed

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Shirley and Thompson. He felt Nelson was also suffering from anxiety,

dysthymia, and personality disorders due to his dysfunctional family life.

Although Wells believed that Nelson suffered from schizophrenia when he shot

Shirley and Thompson, he testified that Nelson ―was sane at the time‖ of the

murders and was able to think, make decisions, and ―come up with his own ideas‖

and ―carry [them] out.‖ Wells concluded that Nelson ―doubted himself as a man‖

and ―doubted himself sexually.‖ He concluded that Nelson had tried to function

like an adult but he was ―just a child‖ who ―had gotten himself involved in a

situation . . . far beyond his level of maturity.‖

Dr. Wells also concluded that Nelson was not malingering. But Wells

conceded he had not detected any sign of schizophrenia during their initial

meetings and had not reached that diagnosis until he received the psychological

test results. Wells acknowledged that he was ―surprised‖ by those test results. He

admitted that he had not included in his report that the MCMI interpretation of

Nelson‘s results indicated that Nelson‘s responses might have indicated a ―broad

tendency to magnify the level of experienced illness or a categorical inclination to

complain and be self-pitying.‖ Wells additionally acknowledged that the results of

―validity scales‖ on Nelson‘s MMPI test would cause most psychologists to be

concerned that Nelson had been lying in his responses. Wells conceded that it was

―possible‖ that Nelson had lied.

4. Prosecution’s Rebuttal Case

Allen Horner testified that he had been close friends with Nelson since

1988 and they had spent time together on a daily basis until 1991. Their

friendship became strained when Nelson became involved with Allen‘s mother. In

1992, Nelson and Karen stayed with Allen and his family and Allen resumed his

friendship with Nelson. Two days before the Target shooting, Nelson spent the

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day with Allen‘s family at the Los Angeles County Fair, until 1:00 a.m. Allen

testified that Nelson had seemed ―normal‖ and ―happy‖ throughout the day.

Monica Vergara, Thompson‘s fiancée, testified that they had become

engaged to be married nine days before he was killed. During the time that

Thompson worked at Target, Vergara saw him every day. Thompson had told her

that he and Shirley were friends, and he often had talked to Vergara about Shirley.

Vergara never knew Thompson to own a gun.

Forensic Psychiatrist Ronald Markman reviewed the history of the case, Dr.

Wells‘s report on Nelson and the results of the psychological tests Wells

administered to Nelson. Dr. Markman testified he could not draw any conclusion

about Nelson‘s mental condition because he had not met with him. But Markman

testified that the results of the tests administered to Nelson suggested that Nelson

pervasively lied during the testing in an attempt ―to look bad‖ and ―exaggerate his

condition.‖ Markman believed that Dr. Wells‘s clinical diagnosis was ―simply

taken from the test results,‖ which Markman opined were invalid. Markman did

not disagree with Wells‘s diagnosis that Nelson suffered from depression. As to

Wells‘s diagnosis of paranoid schizophrenia, however, Markman testified that if

he were to interview a person with paranoid schizophrenia, he could detect

symptoms of the illness during their first meeting. He explained that

schizophrenia develops over time and that paranoid schizophrenics ―may not be

significantly impaired in [their] day to day behavior or function.‖ He added that

paranoid schizophrenics can have a high ―sensitivity to reality‖ and are able to

―think in very exact terms,‖ make plans and decisions in their daily lives, and

―weigh and consider pros and cons‖ of those daily decisions.

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Detective Dale Nancarrow searched the Plymouth‘s interior after the bodies

were removed. He found no weapons or objects that would have appeared to be

weapons. There were no bullet holes anywhere on the outside of the car.

Shirley‘s mother, Ellis Verdugo, testified that Shirley‘s children lived with

her for two weeks before Easter in 1993 because there had been ―some strain‖

between Shirley and her husband. Shirley saw her husband daily during those two

weeks. Afterwards, Shirley and her children moved back in with Shirley‘s

husband and they all lived together until Shirley was killed.

Deputy Sheriff Robert Fowler testified that he had had repeated contact

with Nelson since November 1993 when Nelson first appeared in superior court on

the murder charges. Deputy Fowler testified that Nelson always was cooperative

and never had been classified as requiring ―special handling‖ as a suicide risk or

for any other mental or medical problem.

B. Penalty Phase

As noted, there were two penalty phase trials in this case. The first ended

in a mistrial after the jury deadlocked. The second will be discussed below.

1. Prosecution Case

The prosecution presented evidence regarding the murders in the Target

parking lot similar to that admitted at the guilt phase. In addition, it presented

victim impact testimony from victim Robin Shirley‘s husband Robert, Shirley‘s

mother, victim Lee Thompson‘s fiancée, and Thompson‘s mother. Robert Shirley

testified that he and Robin Shirley had been married for 11 years and had two

young children. Shirley was his best friend, and his life would never be the same

without her. Their children were devastated by their mother‘s death. Ellis

Verdugo, Shirley‘s mother, tested that she and Shirley visited daily and were

close. She missed Shirley terribly. Monica Vergara, Lee‘s fiancée testified they

17

were to have been married in the fall of 1993. She testified he was always trying

to help people and was the only person in her life on whom she could truly depend

for support. Thompson‘s mother Clara testified he was a wonderful son and that

his family loved and missed him tremendously. The prosecution also presented

testimony from Alex Cosey that, on the day of the shooting, Nelson told him that

he had shot two people at Target and that, when the woman made a ―grunt noise,‖

he went ―back to her and shot her again.‖

2. Defense Evidence

Nelson presented evidence from Target employees similar to that admitted

at the guilt phase. In addition, some employees testified that they never had seen

Nelson exhibit anger towards Shirley or threaten her. Charles McGruder,

employee Justin McGruder‘s father, testified that Nelson visited Justin in the

hospital and that Nelson appeared to be a hard-working, career-oriented,

gregarious young man. Nelson presented evidence about his childhood from many

family members, including evidence of parental neglect, his legal emancipation in

March 1992 at the age of 17, his depression, and how he helped his grandmother

pay her mortgage.

Family members and friends testified it was completely out of character for

Nelson to have committed the murders. Raymond Nieto testified that Nelson told

him that he was depressed because he had ―been put down‖ at work and that he

had been‖ in charge‖ but ―they just went over him and didn‘t give him a

promotion.‖ The director of the National Safe Workplace Institute proffered

expert testimony regarding perpetrators of workplace violence. Their self-esteem

often is heavily dependent on their jobs. When their work situation is threatened,

they engage in aggression toward the work environment. They often lack coping

skills, have poor impulse control, become isolated, and blame others for a work

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disappointment. They may seem superficially fine, but are tortured inside. They

may engage in behavior uncharacteristic with their past. As they become isolated,

they often become irrational and unstable.

II. GUILT PHASE ISSUES

A. Expert Opinion

Nelson contends the trial court erred by permitting criminalist Elizabeth

Devine to testify it was her expert opinion that Shirley was shot first. He argues

that Devine‘s qualifications for making a shot sequence determination failed to

meet the foundational requirements of Evidence Code section 720, subdivision (a)

because she lacked crime reconstruction expertise. He argues further that the shot

sequence testimony was speculative and therefore unreliable for purposes of

Evidence Code section 801, subdivision (b), and the Eighth and Fourteenth

Amendments‘ ―heightened reliability‖ requirement in capital cases.

Where, as here, Nelson raises federal constitutional claims he failed to

make at trial, we apply the following analysis: ―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

19

constitutional discussion is required in such cases, and we therefore provide

none.‖ (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17; see also People v.

Hartsch (2010) 49 Cal.4th 472, 493, fn. 19.)

We conclude that the trial court properly admitted Devine‘s testimony on

shot sequence.

1. Background

The prosecutor called Elizabeth Devine to testify that, in her expert

opinion, the first bullet Nelson fired through the Plymouth‘s left rear window hit

Shirley and the second round hit Thompson in the head. Nelson objected that her

proffered testimony on shot sequence lacked the proper foundation and expertise

because Devine‘s area of expertise was serology, not ballistics or crime

reconstruction. The court ordered the prosecutor to lay a foundation for Devine‘s

testimony before she could render an opinion on the shot sequence.

Before the jury, Devine testified that she was a senior criminalist with the

Los Angeles County Sheriff‘s Department. Devine explained that a criminalist

―analyzes, collects, and uses scientific means to come to some determination about

evidence.‖ At the time of trial, she had been employed as a criminalist for nine

years. She had a master‘s degree in forensic science and criminalistics from

California State University at Los Angeles, and her course work included death

investigations. She had also been trained in bloodstain pattern interpretation.

After graduate school, she took advanced courses in crime scene reconstruction

and bullet trajectories at the California Criminalistics Institute in Sacramento. She

testified that the primary means of learning crime scene reconstruction is field

experience. To that end, she had examined at least 300 crime scenes, and her field

experience included at least three years of instruction from Ron Lenhart, a

renowned expert in bloodstain patterns and crime scene reconstruction. During

20

that period, Devine evaluated evidence and photographs from crime scenes to

answer questions related to reconstruction. At the time of trial, she was working

in the serology section of the Los Angeles County crime lab. She explained that,

besides collecting blood and other bodily fluids from crime scenes, serologists

interpret bloodstain patterns to determine a suspect‘s position during a shooting

and where the victims were located at the time they were shot.

To determine what had happened the morning of the Target shooting,

Devine examined the crime scene, interviewed the detectives handling the case,

examined photographs of the victims inside the Plymouth, inspected and

photographed the car, reviewed the autopsy photographs, reports, and protocol,

and talked to the medical examiner who had performed the autopsies. Based on

her investigation, Devine concluded that all of the bullets were fired through or

into the Plymouth‘s open left rear window. She testified that she had also

developed an opinion regarding which shot had been fired first.

Before she was allowed to give that opinion, defense counsel conducted

voir dire on her qualifications. Under defense questioning, she testified she had

previously qualified to testify as an expert regarding bullet trajectories, although

trajectories were not specifically her area of expertise.

Defense counsel renewed his objection to Devine‘s expertise to testify

about shot sequence. The trial court overruled the objection. It determined that,

―based on her education, training and experience,‖ Devine could provide the jury

with a ―scenario . . . from known facts and opinions with reference to the

sequence‖ of the first shots.

Devine then testified that Shirley was shot before Thompson. She opined

that the first bullet fired caused an entrance and exit wound to Shirley‘s neck and

then lodged in the front passenger door, while the second bullet passed through

21

Thompson‘s temple as his head was turned to the left and then grazed Shirley‘s

upper left shoulder before landing on the front passenger seat behind Shirley. She

based her opinion about the sequence of the first two shots on the fact that the

driver‘s seat had been slightly reclined when Thompson was shot in the temple,

and in that position the bullet that killed Thompson would have been unable to

graze Shirley‘s left shoulder. Her shoulder would have been accessible to the

bullet only if, when it was fired, she was slightly slumped forward. Devine opined

that Shirley slumped forward when she was shot in the neck before Thompson was

shot.

Regarding expert testimony, the jury was instructed that ―[a] person is

qualified to testify as an expert if he or she has special knowledge, skill,

experience, training or education sufficient to qualify him or her as an expert on

the subject to which his or her testimony relates. [¶] A duly qualified expert may

give an opinion on questions in controversy at a trial. [¶] To assist you in deciding

such questions, you may consider the opinion with the reasons given for, if any, by

the expert who gives the opinion. You may also consider the qualifications and

credibility of the expert. [¶] You are not bound to accept an expert opinion as

conclusive, but should give to it the weight to which you find it to be entitled.

You may disregard any such opinion if you find it to be unreasonable.‖

2. Analysis

―A person is qualified to testify as an expert if he has special knowledge,

skill, experience, training, or education sufficient to qualify him as an expert on

the subject to which his testimony relates.‖ (Evid. Code, § 720, subd. (a).)

―Against the objection of a party, such special knowledge must be shown before

the witness may testify as an expert.‖ (Ibid.) The witness‘s ―expertise may be

shown by any otherwise admissible evidence, including his [or her] own

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testimony.‖ (Id., subd. (b).) Evidence Code section 801 provides that ―[i]f a

witness is testifying as an expert, his testimony in the form of an opinion is limited

to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond

common experience that the opinion of an expert would assist the trier or fact; and

[¶] (b) Based on matter (including his special knowledge, skill, experience,

training, and education) perceived by or personally known to the witness or made

known to him at or before the hearing, whether or not admissible, that is of a type

that reasonably may be relied upon by an expert in forming an opinion upon the

subject to which his testimony relates, unless an expert is precluded by law from

using such matter as a basis for his opinion.‖

―The trial court‘s determination of whether a witness qualifies as an expert

is a matter of discretion and will not be disturbed absent a showing of manifest

abuse. [Citation.] ‗ ―Where a witness has disclosed sufficient knowledge of the

subject to entitle his opinion to go to the jury, the question of the degree of his

knowledge goes more to the weight of the evidence than to its admissibility.‖ ‘

[Citation.]‖ (People v. Bolin (1998) 18 Cal.4th 297, 321-322.)

Devine‘s training in the examination of crime scenes, crime scene

reconstruction, bullet trajectories, and bloodstain pattern analysis was sufficient to

permit her to render an opinion on shot sequence. It was not necessary for the

scope of Devine‘s employment to be specifically focused on that subject matter.

(People v. Robinson (2005) 37 Cal.4th 592, 632. [―the opinion evidence here at

issue did not require that the witness have expertise beyond that which was

shown‖].) Accordingly, we conclude that the trial court did not abuse its

discretion in deciding that Devine was qualified to render an opinion on shot

sequence (Evid. Code, § 720, subd. (a); People v. Fuiava (2012) 53 Cal.4th 622,

672), that Devine‘s challenged opinion was the proper subject of expert testimony

23

(Evid. Code, § 801; People v. McDonald (1984) 37 Cal.3d 351, 367), and that the

evidence Devine relied on in reaching her opinion that Shirley was shot first was

not speculative, but was of a ―type that reasonably may be relied upon by an

expert in forming an opinion.‖ (Evid. Code, § 801, subd. (b); see People v. Jones

(2012) 54 Cal.4th 1, 59-61.)

Defense counsel was entitled to present his own expert as a defense witness

on the issue of shot sequence but did not do so. Defense counsel also was entitled

to challenge the persuasive value of Devine‘s opinion on shot sequence through

cross examination, which he did. As noted, questions regarding the validity or the

credibility of an expert‘s knowledge are matters for the jury to decide (People v.

Bolin, supra, 18 Cal.4th at p. 322) but do not provide a basis for excluding the

expert‘s testimony in the first instance and did not do so in this case.

Having concluded that the court did not abuse its discretion in admitting

Devine‘s opinion testimony that Shirley was shot first, we find no merit in

Nelson‘s claim that Devine‘s ―unsupported‖ opinion on shot sequence violated

any federal constitutional right. (See People v. Prince (2007) 40 Cal.4th 1179,

1229 [― ‗[a]pplication of the ordinary rules of evidence generally does not

impermissibly infringe upon a capital defendant‘s constitutional rights‘ ‖].)

B. Heat of Passion Instruction

Nelson contends the trial court prejudicially erred by refusing to instruct the

jury on voluntary manslaughter based on heat of passion. We conclude the claim

is without merit because there was insufficient evidence in the record to warrant

such instructions.

At trial, defense counsel argued that the jury should be instructed on

voluntary manslaughter based on heat of passion as to both victims. He asked the

trial court to instruct the jury with CALJIC No. 8.42, which explains the doctrine

24

of heat of passion, and with CALJIC No. 8.44, which explains that no specific

emotion constitutes heat of passion. Counsel also proposed four pinpoint

instructions on heat of passion. Defense counsel argued that the evidence showed

that Nelson killed the victims in a fit of jealous rage when he discovered Shirley,

with whom he was in love, with his rival, Thompson.

The trial court denied the requested heat of passion instructions on the

ground that the evidence did not support them. It ultimately instructed the jury on

first degree murder based on premeditation and deliberation as well as lying in

wait, unpremeditated second degree murder, second degree malice murder,

voluntary manslaughter committed with the honest but unreasonable belief in the

need to defend oneself as to Thompson, and involuntary manslaughter.

―Murder is the unlawful killing of a human being . . . with malice

aforethought.‖ (§ 187, subd. (a).) ―Manslaughter is the unlawful killing of a

human being without malice.‖ Manslaughter is a lesser included offense of

murder, and a defendant who commits an intentional and unlawful killing but who

lacks malice is guilty of voluntary manslaughter. Heat of passion is one of the

mental states that precludes the formation of malice and reduces an unlawful

killing from murder to manslaughter. (§ 192, subd. (a); People v. Breverman

(1998) 19 Cal.4th 142, 154 (Breverman).)

―An instruction on a lesser included offense must be given only if there is

substantial evidence from which a jury could reasonably conclude that the

defendant committed the lesser, uncharged offense, but not the greater, charged

offense.‖ (People v. Thomas (2012) 53 Cal.4th 771, 813.) The ―substantial

evidence requirement is not satisfied by ‗ ―any evidence . . . no matter how

weak,‖ ‘ but rather by evidence from which a jury could conclude ‗that the lesser

offense, but not the greater, was committed.‘ ‖ (People v. Avila (2009) 46 Cal.4th

25

680, 705.) ―On appeal, we review independently the question whether the trial

court improperly failed to instruct on a lesser included offense.‖ (People v. Souza

(2012) 54 Cal.4th 90, 113.)

The fundamental inquiry when examining heat of passion in the context of

manslaughter ― ‗is whether or not the defendant‘s reason was, at the time of his

act, so disturbed or obscured by some passion . . . to such an extent as would

render ordinary men of average disposition liable to act rashly or without due

deliberation and reflection, and from this passion rather than from judgment.‘ ‖

(People v. Beltran (2013) 56 Cal.4th 935, 948 (Beltran).) Heat of passion is ―a

state of mind caused by legally sufficient provocation that causes a person to act,

not out of rational thought but out of unconsidered reaction to the provocation.‖

(Id. at p. 942.) Further, the ―proper standard focuses upon whether the person of

average disposition would be induced to react from passion and not from

judgment.‖ (Id. at p. 938.)

This, however, ―does not mean that a defendant does not form malice

unless he thinks rationally or exercises sound judgment.‖ (Beltran, supra, 56

Cal.4th at p. 950, italics omitted.) For purposes of the heat of passion doctrine,

―provocation is sufficient not because it affects the quality of one‘s thought

processes, but because it eclipses reflection. A person in this state simply reacts

from emotion due to the provocation, without deliberation or judgment.‖ (Ibid.)

The standard requires more than evidence that a defendant‘s passions were

aroused. The facts and circumstances must be ― ‗sufficient to arouse the passions

of the ordinarily reasonable man.‘ ‖ (Ibid.) Moreover, the defendant must

―actually be motivated by passion in committing the killing;‖ that is, he or she

must be acting ― ‗ ―under the smart of that sudden quarrel or heat of passion.‖ ‘ ‖

26

(Id. at p. 951.) Accordingly, it is not sufficient that a person ―is provoked and

[then] later kills.‖ (Ibid.)

Defendant advances the following scenario in support of his claim that heat

of passion instructions were warranted in this case: ―An adolescent boy fell in

love with his coworker, a relentless flirt who egged on the boy as she did others.

He went to see her early one morning before she started work. He approached her

truck, only to find it empty. Nearby was a brown car that the teenager did not

recognize. He looked in the car and was shocked to see the object of his desire

cuddling with a man. He was further shocked to see that the man was another

coworker who was the youth‘s rival. Enraged and out of control, the teen used the

gun he carried for protection to shoot and kill the couple.‖ Defendant fails to

provide any citation to the record that would provide an evidentiary basis for this

scenario.

Defendant presented no evidence he was in love with Shirley or that she

―egged‖ him on. While Nelson‘s witnesses testified Shirley was flirtatious toward

other male employees, they also testified she did not like Nelson in a romantic

way. Nelson himself told Dr. Wells that although he and Shirley were friendly,

they did not have ―an intimate or romantic‖ relationship. Nor did Nelson present

any evidence that his alleged romantic feelings for Shirley drove him to look for

her at the Target parking lot on the morning of the murders. The only evidence he

presented regarding his motivation for being in the parking lot were his statements

to Dr. Wells that he was suffering from insomnia and ―went to the Target Center

without any clear idea of what he was going to do,‖ but that he thought he might

shoot himself. Furthermore, Nelson told Wells that he shot Thompson, not

because he found Thompson with Shirley, but because he thought Thompson was

reaching for a gun. Moreover, regarding the victims‘ relationship, although there

27

was evidence Shirley thought Thompson was ―very cute,‖ there was no evidence

they were romantically involved. In short, Nelson failed to present substantial

evidence that he killed the victims in a moment of jealous rage.

The improbability of this jealous rage scenario would also have been

underscored for the trial court by the prosecution‘s strong evidence that the

murders were motivated by Nelson‘s anger at having been passed over for a

promotion in favor of Shirley, his work conflicts with Thompson, and the strong

evidence of premeditation and deliberation.

Nelson‘s further claim that Karen Horner‘s disparaging comments about

Shirley aroused his passions and provoked him fails because ― ‗[t]he provocation

which incites the defendant to homicidal conduct in the heat of passion must be

caused by the victim [citation], or be conduct reasonably believed by the

defendant to have been engaged in by the victim.‘ ‖ (People v. Moye (2009) 47

Ca1.4th 537, 549–550.) Moreover, even if we assumed Horner‘s comments

incited Nelson, that incitement must be objectively sufficient ― ‗to arouse the

passions of the ordinarily reasonable man.‘ ‖ (Beltran, supra, 56 Cal.4th at p.

950.) Horner‘s statements fail that test.

Because no jury composed of reasonable persons could have concluded that

when Nelson shot and killed Shirley and Thompson, he ―simply react[ed] from

emotion due to . . . provocation, without deliberation or judgment‖ (Beltran,

supra, 56 Cal.4th at p. 950), the trial court properly refused his heat of passion

instructions. In light of this conclusion, the trial court‘s supposedly erroneous

statements regarding heat of passion Nelson mentions are of no moment.

Nelson contends that the trial court‘s failure to instruct on heat of passion

deprived him of his rights to due process, a fair trial, trial by jury, confrontation

and cross-examination, presentation of a defense, effective assistance of counsel,

28

equal protection, and reliable guilt and penalty phase verdicts in a capital case,

guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal

Constitution. Citing Beck v. Alabama (1980) 447 U.S. 625 (Beck), he contends the

federal Constitution requires instruction on lesser included offenses in capital

cases.

In Beck, the United States Supreme Court held that a sentence of death

violates the Fourteenth Amendment when the jury was not permitted to consider a

verdict of guilt for a lesser included noncapital offense and ― ‗the evidence would

[have] permit[ted] a jury rationally to find [the defendant] guilty of the lesser

included offense and acquit him of the greater.‘ ‖ (Beck, supra, 447 U.S. at

p. 635.) As demonstrated, however, the evidence would not have supported a

conviction for voluntary manslaughter based on a heat of passion theory.

Accordingly, Beck is not implicated. In any event, Beck’s principles are satisfied

if the jury was provided some noncapital third option between the capital charge

and acquittal. (Schad v. Arizona (1991) 501 U.S. 624, 647; see People v. Sakarias

(2000) 22 Cal.4th 596, 621 fn. 3; Breverman, supra, 19 Cal.4th at p. 167.) Here,

where the jury was provided with the option of first degree murder without special

circumstances, or of second degree murder on two separate theories, or

manslaughter, we find no due process or other federal constitutional error.

C. Provocation Instructions

Nelson contends that the trial court committed prejudicial error by refusing

to give the jury two instructions regarding provocation. He contends that the trial

court‘s failure to give these instructions deprived him of his federal constitutional

right to adequate instructions on the defense theory of the case and of his rights

under the Eighth and Fourteenth Amendments to the United States Constitution.

29

We conclude the trial court properly denied the requested instructions because

there was insufficient evidence to warrant them.

Defense counsel asked the trial court to instruct the jury pursuant to

CALJIC No. 8.73 as follows: ―If evidence established that there was provocation

which played a part in inducing an unlawful killing of a human being, but the

provocation was not sufficient to reduce the homicide to manslaughter, you should

consider the provocation for the bearing [it] may have on whether the defendant

killed with or without deliberation and premeditation.‖ Counsel also requested a

defense instruction that stated: ―In deciding whether or not you are convinced

beyond a reasonable doubt that the defendant deliberated and premeditated, you

should consider the effects of provocation on the defendant at the time of the

killings. This provocation may come from any person, including persons other

than the victims.‖ The trial court rejected both instructions.

―The evidentiary premise of a provocation defense is the defendant‘s

emotional reaction to the conduct of another, which emotion may negate a

requisite mental state.‖ (People v. Ward (2005) 36 Cal.4th 186, 215.) ―[U]nder

the principles expressed in CALJIC No. 8.73, provocation is relevant only to the

extent it ‗bears on the question‘ whether defendant premeditated and deliberated.

[Citation.] Because CALJIC No. 8.73 relates the evidence of provocation to the

specific legal issue of premeditation and deliberation, it is a ‗pinpoint instruction‘

. . . , and need not be given on the court‘s own motion. [Citations.]‖ (People v.

Rogers (2006) 39 Cal.4th 826, 878-879.) However, on request, a criminal

defendant is entitled to pinpoint instructions that relate particular facts to an

element of the charged offense and highlight or explain a theory of the defense if

the instructions are supported by substantial evidence. (People v. Mayfield (1997)

14 Cal.4th 668, 778.)

30

According to Nelson, the question ―is whether there was substantial

evidence that [Nelson] was subjectively provoked into the shootings by

unexpectedly seeing [the victims] together in an intimate setting.‖ As

demonstrated in the previous part, there was no evidence to support Nelson‘s

assertion either that he was in love with Shirley or that Shirley and Thompson

were intimately involved. Thus, there was no evidentiary basis for the instructions

based on a theory Nelson was provoked by a jealous rage upon seeing the victims

together. Nelson also suggests he could have been provoked by his residual anger

at having been passed over for the promotion in favor of Shirley. But this theory

relies on the fortuity of Nelson having been in the Target parking lot, when there

was strong evidence of deliberation and premeditation: he painted his bicycle

black, he armed himself, he went to where he knew Shirley would be, and he

sneaked up on the victims. Even if we were to credit Nelson‘s statement to Dr.

Wells that he did not know why he went to the Target parking lot, his explanation

of why he killed the victims does not support his provocation theory. He told Dr.

Wells he shot the victims because he thought Thompson was reaching for a gun,

not because his anger at having been passed up for the promotion flared up when

he saw the two victims together. Accordingly, there was an insufficient

evidentiary basis for the instructions, and the trial court did not err in declining to

give them.

Finally, Nelson contends the trial court erred in refusing to instruct that

provocation may come from a person other than a victim. Because there was

insufficient evidence of any provocation, the trial court did not err by declining to

give the third-party provocation instruction.

31

D. Mental States for First Degree Murder

Nelson contends that the trial court committed prejudicial error by

modifying CALJIC No. 2.02 (Sufficiency of Evidence to Prove Specific Intent or

Mental State) and giving an instruction that combined CALJIC No. 3.31

(Concurrence of Act and Specific Intent) and CALJIC No. 3.31.5 (Mental State).

(All cites to CALJIC are to the fifth edition, 1998 unless otherwise noted.) He

argues that the modified instructions ―relieved the jury from finding both specific

intent and the mental states of first degree murder‖ and thus ―permitted the jury to

find first degree murder without finding deliberation so long as the jury found a

specific intent to kill.‖

The Attorney General argues the claim is not preserved for review because

Nelson did not object at trial. The claim, however, is that the instruction misstated

the elements of the crime, an assertion that may be considered on appeal despite

the absence of an objection below. (§ 1259; People v. Hillhouse (2002) 27 Cal.4th

469, 503.)

The trial court instructed the jury with the following version of CALJIC

No. 2.02 (1992 rev.) (5th ed. 1988): ―The specific intent or mental state with

which an act is done may be shown by the circumstances surrounding the

commission of the act. However, you may not find the defendant guilty of the

crimes charged unless the proved circumstances are not only consistent with the

theory that the defendant had the required specific intent or mental state, but

cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence

as to any such specific intent or mental state is susceptible of two reasonable

interpretations, one of which points to the existence of the specific intent or mental

state, and the other to the absence of the specific intent or mental state, you must

adopt that interpretation which points to the absence of the specific intent or

32

mental state. [¶] If, on the other hand, one interpretation of the evidence as to such

specific intent or mental state appears to you to be reasonable and the other

interpretation to be unreasonable, you must accept the reasonable interpretation

and reject the unreasonable.‖ The court modified CALJIC No. 2.02 by adding the

following language to the instruction: ―The specific intent or mental state as to

each crime or lesser crime is defined elsewhere in these instructions.‖

The trial court also read the jury an instruction that combined CALJIC Nos.

3.31 and 3.31.5 (1992 rev.) (5th ed. 1988): ―In the crimes charged in the

information and the lesser crimes there must exist a union or joint operation of act

or conduct, and a certain mental state or specific intent in the mind of the

perpetrator. Unless such mental state or specific intent exists, the crime to which

it relates is not committed. [¶] The mental state or specific intent required are

included in the definitions of the crimes set forth elsewhere in these instructions.

Nelson argues that the disjunctive language ―specific intent or mental state‖

misled the jury as to the requirements for first degree murder because it

improperly ―permitted the jury to find first degree murder without finding

deliberation so long as the jury found a specific intent to kill.‖ (See CALJIC No.

8.20 (Deliberate and Premeditated Murder) [―All murder which is perpetrated by

any kind of willful, deliberate and premeditated killing with express malice

aforethought is murder of the first degree‖]; People v. Swain (1996) 12 Cal.4th

593, 601 [―proof of an unlawful ‗intent to kill‘ is the functional equivalent of

express malice ―].) He argues further the instructional error was compounded by

weak evidence of deliberation.

―When we review challenges to a jury instruction as being incorrect or

incomplete, we evaluate the instructions as a whole, not in isolation. [Citation.]

‗For ambiguous instructions, the test is whether there is a reasonable likelihood

33

that the jury misunderstood and misapplied the instruction.‘ ‖ (People v. Rundle

(2008) 43 Cal.4th 76, 149.)

Even if we assume the language cited by Nelson in the instructions given

pursuant to CALJIC Nos. 2.02 and 3.31/3.31.5 was potentially misleading, we

cannot agree that this ambiguity posed a substantial risk of misleading the jury

into believing it need not find deliberation — the claimed absence of which was

the centerpiece of defendant‘s defense — to convict him of first degree murder.

Both the instruction based on CALJIC No. 2.02 and the instruction based

on combined CALJIC Nos. 3.31/3.31.5 directed the jurors to other instructions for

the definitions of the specific intent or mental state for the crimes and lesser

crimes. Thus, the jurors would have known they had to look beyond these

instructions for the specific requirements of first degree murder. Those

requirements were set forth in CALJIC No. 8.20, which informed the jury that

―[a]ll murder which is perpetrated by any kind of willful, deliberate and

premeditated killing with express malice aforethought is murder of the first

degree. [¶] The word ‗willfull,‘ as used in these instructions, means intentional.

[¶] The word ‗deliberate‘ means formed or arrived at or determined upon as a

result of the careful thought and weighing of considerations for and against the

proposed course of action. The word ‗premeditated‘ means considered

beforehand. [¶] If you find that the killing was preceded and accompanied by a

clear, deliberate intent on the part of the defendant to kill, which was the result of

deliberation and premeditation, so that it must have been formed upon pre-

existing reflection and not under a sudden heat of passion or other condition

precluding the idea of deliberation, it is murder in the first degree.‖ The

instruction goes on to state that ―[t]o constitute a deliberate and premeditated

killing, the slayer must weigh and consider the question for killing and the reasons

34

for and against such a choice and, having in mind the consequences, he decides to

and does kill.‖ (Ibid.) The portions of CALJIC No. 8.20 set forth above explicitly

informed the jury that it must find both the required specific intent and the

required mental states of first degree murder. Accordingly, contrary to Nelson‘s

assertion, CALJIC 8.20 was a more specific instruction than CALJIC Nos. 2.02

and combined CALJIC Nos. 3.11/3.11.5 on the issue of the requirements for first

degree murder.

Moreover, both the prosecutor and defense counsel emphasized in

argument the correct interpretation of the instructions on this point. The

prosecutor discussed deliberation and specific intent during argument as two

distinct elements of proof both of which were required to convict for first degree

murder. Thereafter, defense counsel stressed that first degree murder requires

proof of an intent to kill and premeditation and deliberation. Defense counsel

argued that the instruction that defines what constitutes ―a deliberate and

premeditated‖ first degree killing ―is the whole crux of the case.‖ Thus, nothing in

the parties‘ arguments suggested that the jury need not find all the elements of the

crimes to have been proven beyond a reasonable doubt. (Cf. People v. Hughes

(2002) 27 Cal.4th 287, 341(Hughes) [any ambiguity in voluntary manslaughter

instruction not prejudicial in light of instructions as a whole, ―evidence presented

to jury,‖ and ―counsels‘ legally correct arguments‖].)

Finally, we disagree with Nelson‘s assertion that the evidence of

deliberation was weak. To summarize, the evidence of Nelson‘s careful planning

included painting his bicycle black, arming himself, going to a location when he

expected to find his victims, concealing his bicycle, approaching his victims on

foot and in dark clothes to gain the element of surprise, and when his initial shots

35

evidently failed to immediately kill them, retracing his steps and firing additional

shots into the vehicle.

Thus, in light of the instructions as a whole, the argument of counsel and

the evidence presented to the jury regarding Nelson‘s deliberation, we do not

believe it is either reasonably likely the jury was misled to defendant‘s prejudice

regarding the requirements for first degree murder or that the instructions

―operate[d] in the manner asserted by defendant, essentially precluding

consideration of his primary defense.‖ (Hughes, supra, 27 Cal.4th at p. 341.)

Therefore, we also need not reach his claims that the alleged instructional error

violated his federal constitutional rights.

E. CALJIC No. 2.70

Nelson contends that the trial court committed prejudicial error by

instructing the jury with CALJIC No. 2.70 (Confession and Admission —

Defined) because there was no evidence of a confession. He argues that the

inclusion of a confession instruction suggested to the jury he had acknowledged

that he was guilty of first degree murder, thereby admitting deliberation.

Moreover, he asserts the instruction suggested that the jury should ―disbelieve that

[he] killed in self-defense‖ based on his statement to Dr. Wells that, as Nelson

approached the car, he thought Thompson was reaching for a gun and shot him.

Nelson additionally contends that the instruction on confessions ―impliedly

directed a verdict,‖ thus violating his rights under various federal constitutional

provisions. (U.S. Const., 6th, 8th & 14th Amends.) We reject the claim.

At trial, defense counsel objected to CALJIC No. 2.70 on the ground that

Nelson had made admissions but not a confession. The trial court acknowledged

there was no confession but chose to instruct on both confessions and admissions.

The court reasoned that instructions on both would clarify the distinction between

36

them so that the jurors would not ―talk[] about confessions [when] really all they

are talking about is admissions.‖

Accordingly, the trial court instructed the jury, pursuant to CALJIC

No. 2.70, as follows: ―A confession is a statement made by a defendant, other

than at his trial, in which he has acknowledged his guilt of the crimes for which he

is on trial. [¶] In order to constitute a confession, such a statement must

acknowledge participation in the crimes as well as the required criminal intent

state of mind. An admission is a statement made by the defendant other than at his

trial, which does not by itself acknowledge his guilt of the crimes for which such

defendant is on trial, but which statement tends to prove his guilt when considered

with the rest of the evidence. [¶] You are the exclusive judges as to whether the

defendant made a confession [or an admission] and if so, whether such statement

is true in whole or in part. [¶] You should find — [if] you should find that the

defendant did not make the statement, you must reject it. If you find that it is true

in whole or in part, you may consider that part which you find to be true. [¶]

Evidence of an oral confession [or an oral admission] of the defendant should be

viewed with caution.‖

The trial court then instructed the jury with CALJIC No. 2.71

(Admission — Defined) as follows: ―An admission is a statement made by the

defendant other than at his trial which does not by itself acknowledge his guilt of

the crimes for which the defendant is on trial, but which statement tends to prove

his guilt when considered with the rest of the evidence. [¶] You are the exclusive

judges as to whether the defendant made an admission, and if so, whether such

statement is true in whole or in part. [¶] If you should find that the defendant did

not make the statement, you must reject it. If you find that it is true in whole or in

37

part, you may consider that part which you find to be true. [¶] Evidence of an oral

admission of the defendant should be viewed with caution.‖

― ‗On review even if an erroneous instruction is included reversal is

required only when it appears the error was likely to have misled the jury.‘ ‖

(People v. Malone (1988) 47 Cal.3d 1, 52.) Assuming the instruction should not

have been given, we conclude there was no reasonable likelihood the jury would

be misled by this instruction. (People v. Sattiewhite (2014) 59 Cal.4th 446, 475.)

In giving CALJIC No. 2.70, the trial court did not express an opinion on the issue

of guilt and impliedly direct a verdict. To the contrary, CALJIC No. 2.70

specifically informed the jurors that they were ―the exclusive judges‖ as to

whether a confession or admission was made and whether it was true, in whole or

part. The court also gave CALJIC No. 17.31, which informed the jury that

―[w]hether some instructions apply will depend upon what you find to be the facts.

You are to disregard any instruction which applies to facts determined by you not

to exist. Do not conclude that because an instruction has been given I am

expressing an opinion as to the facts.‖ These interrelated instructions ensured that

the jury understood that the court was not expressing an opinion regarding whether

Nelson had made either a confession or admissions.

On a related note, Nelson argues a reasonable juror could have construed

the language in the instruction to view with caution evidence of a confession to

mean the juror should discount statements he made to Dr. Wells that he shot

Thompson in self-defense. But other than Nelson‘s statement to Dr. Wells, there

was no evidence he acted in self-defense when he shot Thompson, and defense

counsel did not argue to the jury that he killed Thompson in self-defense. Thus,

even if the instruction was misleading in this case, Nelson fails to show prejudice.

38

Citing Beck and related cases, Nelson contends this instructional error

deprived him of his right to reliable fact finding in a capital case under the Eighth

and Fourteenth Amendments to the federal Constitution. We find no due process

or other federal constitutional error.

F. CALJIC No. 3.32

Nelson contends that the trial court prejudicially erred by instructing the

jury with the 1992 revised version of CALJIC No. 3.32 (Evidence of Mental

Disease — Received for Limited Purpose). Nelson contends the instruction

violated his rights under various provisions of the federal Constitution. (U.S.

Const., 5th, 6th, 8th & 14th Amends.)

The trial court instructed the jury pursuant to CALJIC No. 3.32: ―Evidence

has been received regarding a mental disease, mental defect or mental disorders of

the defendant Sergio Nelson [at] the time of the commission of the crimes

charged, namely first degree murder in count 1 and 2, and the lesser crimes

thereto, namely second degree murder, voluntary manslaughter and involuntary

manslaughter. You may consider such evidence solely for the purpose of

determining whether . . . defendant . . . actually premeditated, deliberated,

harbored malice aforethought, and/or intent to kill, which is — which are elements

of the crimes charged in counts 1 and 2, and one of which namely malice

aforethought is an element of the lesser crime of second degree murder.‖

The trial court rejected Nelson‘s alternative proposed instruction, which

would have informed the jurors that ―[i]n the crime of murder, which the

defendant is accused, in count 1 and 2 of the information, express malice

aforethought, premeditation, and deliberation are necessary mental state [sic] to a

finding of first-degree murder. [¶] If you find that the defendant had a mental

defect, disease, or disorder, at the time of the alleged crime, you should consider

39

that fact in determining whether the defendant had such mental state. [¶] If from

all the evidence you have a reasonable doubt whether the defendant formed any

such mental state, you must find that he did not have such mental state.‖ In

rejecting Nelson‘s proposed language, the trial court noted that CALJIC No. 3.32

included the phrase ―You may consider such evidence.‖ In 1996, after Nelson‘s

1994-1995 trial, CALJIC No. 3.32 was modified to state, ―You should consider

evidence. . . .‖ (CALJIC No. 3.32 (6th ed. 1996).)

―Evidence of mental disease, mental defect, or mental disorder is

admissible solely on the issue of whether or not the accused actually formed a

required specific intent, premeditated, deliberated, or harbored malice

aforethought, when a specific intent crime is charged.‖ (§ 28, subd. (a).) As the

trial court noted, at the time of Nelson‘s trial in December 1994, CALJIC No. 3.32

contained the phrase ―You may consider.‖

Even assuming error, there is no reasonable likelihood the jury would have

construed the instruction in the manner that Nelson asserts. Nelson focuses on a

single phrase in the instruction but the correctness of a given instruction is

determined by consideration of the entire instruction, not from a consideration of

its parts. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) CALJIC No. 3.32 is

a limiting instruction. Such instructions confine the application of certain

evidence to particular issues to which the jury is directed. In this case, CALJIC

No. 3.32 limited the jury‘s consideration of evidence of mental disease, defect, or

disorder to Nelson‘s actual ability to form the requisite criminal intent or other

mental states for the charged offenses. Viewed as a whole, we conclude it is not

reasonably likely the jury would have seized upon the use of ―may‖ in the

instruction as license to disregard evidence of the effect his mental condition on

the charged offenses.

40

Nelson next contends the ―and/or‖ language in the instruction was

ambiguous and confusing for two reasons. He claims it may have permitted the

jury to convict him of first degree murder even though it found only intent to kill

and not premeditation and deliberation. Alternatively, he argues the ―and/or‖

language may have misled the jury to believe it could consider evidence of his

mental condition on all elements or just one of them. To the extent his claim is a

reiteration of his criticism of the use of the disjunctive language in CALJIC

No. 2.02, it is not more persuasive in this context than in that one. As to his

second point, we are not persuaded there was a reasonable likelihood the jury

would have parsed the instruction in the manner defendant urges. Moreover,

because other instructions required the jury to find both specific intent (and

therefore express malice) and premeditation and deliberation to convict Nelson of

first degree murder (ante, at pp. 32-36), had the jury concluded his mental

condition precluded him from actually forming one of the elements, it would

necessarily have found him not guilty of the greater charge. It did not.

G. Lying-in-Wait Instruction

Nelson contends that the trial court erred by instructing the jury on the first

degree murder theory of lying in wait (§ 189) and the lying-in-wait special-

circumstances allegations (§ 190.2, subd. (a)(15)) because there was insufficient

evidence to support the instructions. We agree.

―At the time of defendant‘s crime[s], the special circumstance required that

the murder be committed ‗while lying in wait.‘ [Fn. omitted.] [Citations.] Also,

at that time, ‗the requirements of the lying-in-wait special circumstance were

slightly different from, and more stringent than, the requirements for lying-in-wait

first degree murder. [Citation.] Whereas lying-in-wait first degree murder

required only that the murder be perpetrated ‗ ―by means of‖ ‘ lying in wait

41

(§ 189), the lying-in-wait special circumstance applied to murder committed

‗ ―while lying in wait. (§ 190.2, former subd. (a)(15), italics added.)‖ ‘ [Citation.]

Further, the lying-in-wait special circumstance requires intent to kill, while lying-

in-wait murder requires only a wanton and reckless intent to inflict injury likely to

cause death. [Citation.]‖ (People v. Streeter (2012) 54 Cal.4th 205, 246.) The

―language of the lying-in-wait special circumstance was [revised in March 2006]

to delete the word ‗while‘ and substitute the phrase ‗by means of.‘ ‖ (Id., at

p. 246, fn.7.)

The lying-in-wait special circumstance requires proof of ―an intentional

murder, committed under circumstances which include (1) a concealment of

purpose, (2) a substantial period of watching and waiting for an opportune time to

act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim

from a position of advantage.‖ (People v. Morales (1989) 48 Cal.3d 527, 557.)

―The element of concealment is satisfied by a showing ‗ ―that a defendant‘s true

intent and purpose were concealed by his actions or conduct. It is not required that

he be literally concealed from view before he attacks the victim.‖ ‘ ‖ (People v.

Sims (1993) 5 Cal.4th 405, 432-433; see People v. Combs (2004) 34 Cal.4th 821,

853.) ―[T]he issue we must determine is whether there was substantial evidence to

support a jury verdict based on that theory.‖ (People v. Ceja (1993) 4 Cal.4th

1134, 1139, fn. 1.) If we find that ―the evidence supports the special

circumstance, it necessarily supports the theory of first degree murder.‖ (People v.

Carpenter (1997) 15 Cal.4th 312, 388.)

Whether we review Nelson‘s claim as asserted instructional error in giving

the lying-in-wait instruction, erroneous denial of his motion for an acquittal based

on a claim of insufficient evidence for lying in wait, or insufficiency of the

evidence supporting the jury‘s verdict, we apply essentially the same standard.

42

(See People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182.) We ―review the

whole record in the light most favorable to the judgment below to determine

whether it discloses substantial evidence — that is, evidence which is reasonable,

credible, and of solid value — such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.‖ (People v. Johnson (1980) 26

Cal.3d 557, 578.) In determining whether a reasonable trier of fact could have

found Nelson guilty beyond a reasonable doubt, we presume in support of the

judgment ― ‗the existence of every fact the trier could reasonably deduce from the

evidence.‘ ‖ (People v. Catlin (2001) 26 Cal.4th 81, 139.)

Nelson asserts that the prosecution failed to prove he engaged in ―a

substantial period of watching and waiting for a favorable or opportune time to

act.‖ (People v. Gurule (2002) 28 Cal.4th 557, 630.) The standard CALJIC

instructions for lying in wait as a theory of first degree murder and for the lying-

in-wait special-circumstance allegation that were given in this case explained that

―[t]he lying in wait need not continue for any particular period of time provided

that its duration is such as to show a state of mind equivalent to premeditation or

deliberation.‖ (CALJIC No. 8.81.15 (1989 rev.) (5th ed. 1988) (Special

Circumstances — Murder While Lying in Wait); see also CALJIC No. 8.25)

Although the period of time must be substantial, we have ―never placed a fixed

time limit on this requirement.‖ (People v. Moon (2005) 37 Cal.4th 1, 23

[defendant‘s testimony that he waited 90 seconds after the victim returned home

before killing her was sufficient evidence of lying in wait under the special

circumstance allegation].)

The evidence showed, directly or by reasonable inference, that Nelson rode

his bicycle to the area near the Target parking lot, where he had reason to believe

the victims would be waiting to go to work. He concealed his bicycle and came

43

up behind his victims on foot to take them by surprise. He shot the two victims in

quick succession. After ensuring his victims were dead by shooting them a second

time, he retrieved his bicycle and left.

There is no evidence, however, that Nelson arrived before the victims or

waited in ambush for their arrival. In the absence of such evidence, there is no

factual basis for an inference that before approaching the victims, he had

concealed his bicycle and waited for a time when they would be vulnerable to

surprise attack. The jury was presented with no evidence from which it could

have chosen, beyond a reasonable doubt, that scenario over one in which

defendant arrived after the victims, dismounted from his bicycle, and attacked

them from behind without any distinct period of watchful waiting.

In People v. Carter (2005) 36 Cal.4th 1215, there was evidence that the

defendant entered the victim‘s apartment intending to rob her. Evidence of wood

chips near the front door indicated that the entry was forcible. There was also the

testimony of a percipient witness who heard a car with its engine running near the

apartment. In support of the jury‘s true finding on the lying-in-wait special

circumstance, the Attorney General argued that the evidence tended to show that

the defendant broke into the victim‘s apartment before she arrived and waited for

her. We rejected that theory: ―The evidence in support of the lying-in-wait

special circumstance—essentially, the wood chips and the car with its engine

running—appears unduly reliant upon the inference suggested by the prosecution

that defendant arrived prior to Cullins‘s return home in order to attack her by

surprise. The wood chip evidence tended to show forced entry, not that the entry

occurred prior to Cullins‘s arrival. Cullins may have arrived at her apartment

before defendant did, and he may have forced his way in while she was undressing

elsewhere in the apartment. Under the latter scenario, the lying-in-wait special

44

circumstance would rely upon the neighbor who heard the car engine running, and

the time of that event cannot be pinpointed. Moreover, the car idling, besides

occurring at an uncertain time, does not strongly imply that defendant was waiting

in the car to attack Cullins; if defendant had planned a home invasion when

Cullins arrived home, he likely would have turned off the engine so as not to

attract attention. We therefore set aside the special circumstance of lying in wait.‖

(Id. at pp. 1261-1262.)

Similarly here, there is no substantial evidence to support the inference that

Nelson arrived at the murder scene before the victims arrived. Nor was it suggested

in Carter that the time the defendant took to carry out the murder plan — in

particular, to gain forced entry and approach the victim — itself constituted a period

of watching and waiting that could give rise to the lying-in-wait special circumstance,

even though such forced entry and approach no doubt took a substantial period of

time. Although a brief period of watching and waiting may suffice to support the

lying-in-wait special circumstance (see People v. Moon, supra, 37 Cal.4th at p. 23),

the evidence here does not support any such period. Contrary to the concurring and

dissenting opinion, the fact that there was substantial evidence of premeditation and

deliberation does not necessarily mean there was substantial evidence of watching

and waiting for an opportune time to act. (See People v. Sandoval (2015) 62 Cal.4th

394, 424.)

Nelson contends that because the jury was instructed on lying in wait as a

basis of first degree murder, the first degree murder verdict must also be reversed.

But there was sufficient evidence of the primary prosecution theory of first degree

murder based on premeditation and deliberation. A first degree murder verdict

will be upheld if there is sufficient evidence as to at least one of the theories on

which the jury is instructed, ―absent an affirmative indication in the record that the

45

verdict actually did rest on the inadequate ground.‖ (People v. Guiton (1993) 4

Cal.4th 1116, 1129.) There is no such affirmative indication here, and the first

degree murder verdict must therefore be upheld. Moreover, Nelson remains

eligible for the death penalty based on the multiple-murder special circumstance.

H. Consciousness of Guilt Instruction

Nelson contends the trial court committed federal and state

constitutional error by instructing the jury with CALJIC Nos. 2.03

(Consciousness of Guilt — Falsehood), 2.06 (Efforts to Suppress Evidence),

and 2.52 (Flight After Crime). Nelson first argues that these consciousness of

guilt instructions are unnecessary as well as unfairly argumentative and

partisan. We have rejected this argument. (See People v. Lopez (2013) 56

Cal.4th 1028, 1075.)

Nelson next argues that the instructions allow the jury to draw irrational

permissive inferences of consciousness of guilt. We have rejected this claim

in many cases, including People v. Boyette (2002) 29 Cal.4th 398, 438, and do

so again here.

I. Motive Instruction

As relevant here, the trial court instructed the jury with CALJIC

No. 2.51 (Motive) as follows: ―Motive is not an element of the crime charged

and need not be shown. However, you may consider motive or lack of motive

as a circumstance in this case. Presence of motive may tend to establish guilt.

Absence of motive may tend to establish innocence.‖ Nelson contends that

this instruction allowed the jury to determine guilt based on the presence of an

alleged motive only and thereby lessened the prosecution‘s burden of proof.

We previously have rejected this claim and do so again here. (People v.

46

Capistrano (2014) 59 Cal.4th 830, 876-877 (Capistrano); People v. Jones (2013)

57 Cal.4th 899, 971.)

J. CALJIC No. 2.90

Nelson contends that the standard instruction defining the presumption of

innocence and reasonable doubt that was given in this case, CALJIC No. 2.90,

was constitutionally defective and violated his federal due process rights. Because

CALJIC No. 2.90 tracks the language of section 1096, a ―court satisfies its

statutory obligation to instruct on these principles by giving CALJIC No.

2.90 . . . .‖ (People v. Aranda (2012) 55 Cal.4th 342, 353.) The ―constitutionality

of CALJIC No. 2.90 has been ‗ ―conclusively settled‖ ‘ ‖ (Capistrano, supra, 59

Cal.4th at p. 879), and Nelson does not persuade us to reconsider our prior

decisions upholding its constitutionality.

In two related claims, Nelson contends that CALJIC No. 2.90 failed to

inform the jury that the presumption of innocence continues throughout the entire

trial, including through deliberations. We rejected a similar claim in People v.

Lewis (2001) 25 Cal.4th 610, 651–652. We are not persuaded to reach a different

result in the present case.

K. Dilution of Reasonable Doubt Standard

1. Circumstantial Evidence Instructions

Nelson contends that, in combination with CALJIC No. 2.90, four standard

instructions given at his trial that discuss the relationship between circumstantial

evidence and reasonable doubt individually and collectively undermined the

requirement of proof beyond a reasonable doubt: CALJIC Nos. 2.01 (Sufficiency

of Circumstantial Evidence — Generally), 2.02 (Sufficiency of Circumstantial

Evidence to Prove Specific Intent or Mental State), 8.83 (Special

Circumstances — Sufficiency of Circumstantial Evidence — Generally), and

47

8.83.1 (Special Circumstances — Sufficiency of Circumstantial Evidence to Prove

Required Mental State). He also claims that the instructions denied him his rights

to due process, to a trial by jury, and to a reliable capital trial.

Each of the challenged instructions advises the jury that if one

interpretation of the evidence ―appears to you to be reasonable and the other

interpretation appears to be unreasonable, you must accept the reasonable

interpretation and reject the unreasonable.‖ Nelson argues that this language

compelled the jury find him guilty on all counts and to find the special

circumstance to be true using a standard of proof lower than the constitutionally

mandated proof beyond a reasonable doubt because the jury was told it ―must‖

accept an incriminatory interpretation of the evidence if it ―appeared‖ to them to

be ―reasonable.‖ He also argues that the instructions created ―an impermissible

presumption that required the jury to accept any incriminatory interpretation of

circumstantial evidence unless [Nelson] rebutted the presumption by producing a

reasonable exculpatory interpretation.‖

We previously have rejected both of these claims, and we decline to

reconsider our holdings in those prior decisions. (See Capistrano, supra, 59

Cal.4th at p. 875; People v. Jurado (2006) 38 Cal.4th 72, 126–127; People v.

Nakahara (2003) 30 Cal.4th 705, 714.)

2. “Dilution” of Reasonable Doubt Standard

Nelson contends five additional standard instructions individually and

collectively diluted the requirement of proof beyond a reasonable doubt: CALJIC

Nos. 1.00 (Respective Duties of Judge and Jury), 2.22 (Weighing Conflicting

Testimony), 2.27 (Sufficiency of Testimony of One Witness), 2.51 (Motive), and

8.20 (Deliberate and Premeditated Murder). Nelson argues that each of these

instructions urged the jury to decide material issues by determining which side had

48

presented relatively stronger evidence and therefore implicitly replaced the

reasonable doubt standard with a preponderance of the evidence standard. He also

claims that some of these instructions erroneously told the jury that it should

decide between guilt or innocence ―instead of determining if guilt [has] been

proven beyond a reasonable doubt.‖

We previously have rejected both of these claims as to a variety of

instructions, including CALJIC Nos. 1.00, 2.01, 2.21.2, 2.22, 2.27, 2.51, 2.52,

8.20, and 8.83. (See People v. Casares (2016) 62 Cal.4th 808, 831; Capistrano,

supra, 59 Cal.4th at p. 876; People v. Jones, supra, 57 Cal.4th at pp. 972-973;

People v. Vines (2011) 51 Cal.4th 830, 885; People v. Kelly (2007) 42 Cal.4th 763,

792; People v. Crew (2003) 31 Cal.4th 822, 848.) Nelson advances no persuasive

arguments to warrant reconsideration of our holdings regarding these instructions,

and we decline to reconsider our prior decisions.

L. Instructions on “Uncharged” First Degree Murder

Nelson contends that the trial court erred by instructing the jury on first

degree murder because the information only charged him with a violation of

section 187, subdivision (a), which he characterizes as a statute defining ―second

degree malice murder.‖ Relying on his reading of our decision in People v. Dillon

(1983) 34 Cal.3d 441, 475, Nelson argues that because the information charged

only second degree murder, the trial court lacked jurisdiction to try him for first

degree murder. We have held to the contrary in Hughes, supra, 27 Cal.4th at

pages 368-370, and in several other cases. (See, e.g., People v. DeHoyos (2013)

57 Cal.4th 79, 143-144; People v. Howard (2010) 51 Cal.4th 15, 35; People v.

Morgan (2007) 42 Cal.4th 593, 616.) We decline to reconsider our precedent.

Nelson next contends that regardless of how we construe our state statutes

defining murder, the federal Constitution requires more specific pleading in this

49

context. He premises this argument on his reading of Apprendi v. New Jersey

(2000) 530 U.S. 466, 476. We previously have concluded that this ― ‗Apprendi

claim is illusory‘ ‖ because the information included special circumstance

allegations. (People v. DeHoyos, supra, 57 Cal.4th at p. 144; see also Capistrano,

supra, 59 Cal.4th at pp. 878-879.) We reject this claim here as well. In turn, we

conclude that permitting the jury to convict Nelson of first degree murder and to

find the special circumstance allegations to be true did not violate Nelson‘s right

to due process or his right to a fair and reliable capital guilt trial.

M. Voluntary Manslaughter Instruction

Nelson contends that the trial court erred by refusing to instruct the jury on

the defense theory of voluntary manslaughter based on the mitigating evidence of

his mental disorder, and instead instructing only on involuntary manslaughter

based on a mental illness theory. He argues further that he ―presented substantial

mitigating evidence that, due to his severe mental disorder, he did not actually

harbor malice aforethought.‖

Defense counsel asked the trial court to instruct the jury on voluntary

manslaughter as to both Shirley and Thompson based on the theory that Nelson‘s

mental illness negated malice. The trial court denied Nelson‘s request. Instead,

the court instructed the jury that ―[i]f you find that the defendant was suffering

from a mental illness at the time of the acts alleged and because of that mental

illness did not actually have the mental state of malice and did not intend to kill,

then the defendant is not guilty of murder but is guilty of involuntary

manslaughter.‖ It also properly instructed, pursuant to CALJIC No. 3.32 (1992

rev.) (5th ed. 1988) (Evidence of Mental Disease — Received for Limited

Purpose), that the jury could consider evidence of a mental disease, defect, or

50

disorder solely for the purpose of determining whether Nelson ―actually

premeditated, deliberated, harbored malice aforethought and/or intent to kill.‖

Nelson argues that based on Dr. Wells‘s testimony, he was ―suffering from

paranoid schizophrenia on the morning of the shootings‖ and that his ―severe

mental disorder‖ caused him to have ―tendencies to misinterpret social

situation[s]‖ and be ―delusional.‖ To the extent Nelson is asserting a diminished

capacity defense, that defense had been abolished before the crimes. (People v.

Saille (1991) 54 Cal.3d 1103, 1114 [recognizing abolition of diminished capacity

defense in California].) To the extent he is arguing a diminished actuality defense,

the instructions quoted above constituted a full and correct statement of that

doctrine. (Id. at pp. 1116-1117.) Nelson contends that abolition of the diminished

capacity defense did not ―foreclose[] a voluntary manslaughter instruction based

on mental illness.‖ But ―the elimination of the diminished capacity defense

effectively eliminated the middle option of voluntary manslaughter in a

diminished actuality case.‖ (People v. Wright (2005) 35 Cal.4th 964, 979, italics

omitted.)

N. Request for a Competency Hearing

Nelson contends that the trial court‘s failure to conduct a hearing under

section 1368 to determine his competence to stand trial deprived him of his rights

to ―due process of law, a fair trial, trial by jury, confrontation and cross-

examination, effective assistance of counsel, equal protection and a reliable

penalty verdict as guaranteed under the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution.‖ We conclude the trial court

correctly determined there was insufficient evidence to require a section 1368

competency hearing.

51

1. Background

On May 10, 1995, approximately six weeks before the scheduled penalty

phase retrial, Nelson‘s trial counsel requested a section 1368 competency hearing,

indicating his belief that Nelson ―is mentally incompetent.‖ A declaration

attached to the motion claimed that Nelson had ―exhibited physical signs of

emotional trauma,‖ was ―suspicious‖ of counsel, showed ―signs of gross

paranoia,‖ and ―refus[ed] to cooperate with the entire defense team.‖ Counsel

added that the court-appointed psychiatrist, Dr. Michael B. Coburn, believed

Nelson was ―exhibiting signs of psychiatric disorder and [was] unable to cooperate

with counsel in trying to save his life.‖

The trial court held a preliminary hearing to determine whether a

competency proceeding was required. Dr. Coburn testified that Nelson was

refusing to cooperate with him and opined that his refusal was based on ―a suicidal

motive or a depressive related motive.‖ Dr. Coburn expressed ―doubt‖ that Nelson

was competent ―to make decisions‖ as to whether he would cooperate in any

testing or evaluation Dr. Coburn wanted to initiate. Dr. Coburn never saw

evidence of psychosis but stated that Nelson‘s severe ―depression or anxiety‖

caused him to be unable to cooperate with any investigation into his mental state at

the time of the offenses and the factors that may have influenced his commission

of them. Dr. Coburn was uncertain whether some recent event had caused this

inability.

Noting that it was relatively rare for someone to stop cooperating before the

penalty phase, Dr. Coburn testified he had seen it happen when someone decided

to accept the death process without argument ―because they [were] aware of their

own behavioral problems and emptiness.‖ He admitted Nelson may have made

52

that decision, although he doubted that was so because Nelson did not have a long

criminal history or a diagnosis of being a psychopath.

On cross-examination, Dr. Coburn testified that the first time he met with

Nelson at the county jail on February 24, 1995, Nelson told him he hated doctors

but would not discuss why and that he ―want[ed] the death penalty.‖ Dr. Coburn

explained what could happen if Nelson were found not to be competent and

brought up other cases he had worked on. Nelson did not communicate further,

and Dr. Coburn ended the interview.

At their second interview, Dr. Coburn and Nelson talked about Nelson‘s

lack of recent contact with his family. Dr. Coburn felt that some ―rapport‖ was

developing with Nelson, but Nelson still refused to engage in any discussion that

―approached emotions,‖ or involved details of either the offenses or his personal

history. Nelson mentioned ―not wanting to feel anything, not wanting to

experience anything, not caring.‖ Nelson was ―respectful, quiet and polite‖ and

―certainly‖ understood what was being said. Dr. Coburn saw no indication Nelson

was disoriented or could not ―speak about things if he chose‖ to. Dr. Coburn

ended the interview when Nelson became silent.

Dr. Coburn had a third meeting with Nelson and Martha Contreras, a

paralegal working for defense counsel. In speaking to Contreras, Nelson provided

―limited‖ responses with a ―paucity of feelings.‖ But he did seem to understand

what was being asked and his responses generally were appropriate. Dr. Coburn

did not question Nelson or try to obtain data from him and instead tried to explore

with Nelson the practicalities of ―volunteer[ing] for the death penalty.‖

Nelson declined further meetings with Dr. Coburn. Dr. Coburn never

gathered a history from Nelson or administered any tests. Nonetheless, it was Dr.

Coburn‘s opinion that Nelson‘s noncooperation was ―more a function of terrible

53

psychological discomfort‖ than a rational decision to die, although he

acknowledged he was unable to reach a definitive conclusion on that question.

Nelson‘s recent refusal to communicate with the defense team also contributed to

Dr. Coburn‘s doubt about Nelson‘s competence.

The trial court denied the request for a section 1368 hearing, stating, ―I

have at this point in time no doubt as to Nelson‘s competency.‖ The court noted

that Nelson ―apparently has made a decision that he prefers the death penalty.‖

The court found Nelson‘s refusal to discuss his reasons for that decision did not

establish he was incompetent to stand trial.

On June 28, 1995, defense counsel renewed the motion based on his

―serious doubt‖ that Nelson was able to cooperate in his defense and his belief that

Nelson was incompetent. He added that Nelson had told the defense team he

could not speak because ―it hurts.‖

The court conducted a further hearing at which Dr. Coburn again testified.

Dr. Coburn met with Nelson the morning before he testified. He had a ―one-way

conversation‖ with Nelson, who remained silent. A female psychologist had had

minimal communication with Nelson but was unsuccessful in her attempt to

administer any tests. Nelson was talking with paralegal Contreras, but he was not

engaging in ―substantive conversations‖ with defense counsel. Coburn had a

―suspicion‖ that did not rise ―to a level of reasonable medical certainty‖ that

Nelson was ―paranoid‖ and ―volitionally choosing not to speak.‖ Dr. Coburn

could not answer whether Nelson‘s choice not to speak was rational because he

did not have the data to reach such a conclusion. Dr Coburn still had ―significant

doubt‖ that Nelson‘s decision to choose death was rational. Dr. Coburn urged the

trial court to declare a doubt as to Nelson‘s competency ―given the fact that it‘s a

life versus death situation,‖ conceding that in significantly less serious matters he

54

would often ―allow totally uncooperative [defendants] to proceed and let the chips

fall where they may.‖ Dr. Coburn conceded that Nelson was making a choice not

to speak. Dr. Coburn also conceded that he could not predict whether Nelson

would ever begin talking with his defense team in order to assist in gathering

evidence for the penalty retrial.

The trial court again denied the request for a section 1368 hearing, finding

that the defense had failed to present substantial evidence suggesting

incompetency. The court also expressed its belief that Nelson‘s refusal to speak to

his lawyers reflected an attempt by him to delay the proceedings rather than

incompetency.

On July 5, 1995, the date scheduled for the penalty retrial to proceed,

defense counsel made one final request for a section 1368 hearing. He stated

Nelson continued to refuse to communicate with him and it was his ‗good faith

belief‖ Nelson‘s refusal was ―a mental disorder as opposed to a voluntary will.‖

The trial court stated the ―issue has been resolved,‖ impliedly denying the request.

2. Analysis

―Trial of an incompetent defendant violates the due process clause of the

Fourteenth Amendment to the United States Constitution (Godinez v. Moran

(1993) 509 U.S. 389, 396) and article I, section 15 of the California Constitution.‖

(People v. Hayes (1999) 21 Cal.4th 1211, 1281.) ―California law reflects those

constitutional requirements. Section 1368, in subdivision (a), requires a trial judge

to suspend criminal proceedings at any time ‗prior to judgment‘ if the court

reasonably doubts ‗the mental competence of the defendant.‘ A defendant can

create reasonable doubt through substantial evidence of mental incompetence, or

the trial court can raise the issue on its own.‖ (People v. Ary (2011) 51 Cal.4th

510, 517; see § 1368, subds. (a) & (b).)

55

―Evidence is not substantial enough to mandate a mental competence

hearing unless it raises a reasonable doubt on the issue. [Citation.] We have said

that this standard is satisfied if at least one expert who is competent to render such

an opinion, and who has had a sufficient opportunity to conduct an examination,

testifies under oath with particularity that, because of mental illness, the accused is

incapable of understanding the proceedings or assisting in his defense.‖ (People v.

Lewis and Oliver (2006) 39 Cal.4th 970, 1047.) However, ― ‗[m]ore is required to

raise a doubt [as to a defendant‘s competence] than mere bizarre actions [citation]

or bizarre statements [citation] or statements of defense counsel that defendant is

incapable of cooperating in his defense [citation] or psychiatric testimony that

defendant is immature, dangerous, psychopathic, or homicidal or such diagnosis

with little reference to defendant‘s ability to assist in his own defense [citation].‘ ‖

(People v. Ramirez (2006) 39 Cal.4th 398, 431.) Moreover, ―a defendant‘s

preference for the death penalty and overall death wish does not alone amount to

substantial evidence of incompetence or evidence requiring the court to order an

independent psychiatric evaluation.‖ (People v. Ramos (2004) 34 Cal.4th 494,

509.) ―[A]bsent a showing of ‗incompetence‘ that is ‗substantial‘ as a matter of

law, the trial judge‘s decision not to order a competency hearing is entitled to great

deference, because the trial court is in the best position to observe the defendant

during trial. [Citation.]‖ (People v. Mai (2013) 57 Cal.4th 986, 1033.)

The only evidence presented by the defense was the testimony of Dr.

Coburn and comments from defense counsel that Nelson was not cooperating with

counsel. Dr. Coburn testified regarding Nelson‘s ability to understand the nature

of the trial proceedings and to assist his attorney. Dr. Coburn did not see any

evidence of psychosis, active delusions, or hallucinations in Nelson. Rather, Dr.

Coburn acknowledged that Nelson seemed to understand him during the two hours

56

that they had spent together and merely reported his ―suspicion‖ that Nelson was

―volitionally choosing not to speak.‖ Dr. Coburn testified Nelson told him he did

not want to speak to him because he did not like doctors and he wanted the death

penalty. Dr. Coburn also testified that Nelson had less trouble speaking to Martha

Contreras, a paralegal in defense counsel‘s office. Nelson responded to her

questions, he seemed to understand what was being asked, and his responses

generally were appropriate. Dr. Coburn was not able to state with any medical

certainty that any psychological disorder was causing Nelson not to speak to him.

The record does not persuasively show that because of mental illness,

Nelson was incapable of understanding the nature of the proceedings or unable (as

opposed to unwilling) to assist counsel. The crux of Dr. Coburn‘s testimony as

well as defense counsel‘s concern was that defendant was not communicating with

the defense team, an act that appeared to be volitional, potentially reflecting

defendant‘s decision not to contest the death penalty. Dr. Coburn opined those

decisions might have been the product of a mental disorder, but he ultimately

acknowledged he could not determine whether they were rational. On this record,

we are unable to conclude, applying a deferential standard of review, that the trial

court erred by denying Nelson‘s motions to conduct a section 1368 hearing.

III. PENALTY PHASE ISSUES

Nelson contends that the trial court‘s investigation into the penalty phase

retrial jury‘s announced deadlock was so intrusive that it prejudicially invaded the

sanctity of deliberations and created a coercive effect on those deliberations. As

set forth below, the manner in which the trial court invaded the deliberative

process after the retrial jury announced its deadlock is unique and egregious. We

reverse the penalty phase judgment.

57

A. Background

The first penalty phase trial ended in a mistrial after the jury hung 11 to 1.

The record does not reveal which of the two penalty options the majority favored.

The penalty phase was retried before a new jury. The retrial jury began its

deliberations on the afternoon of Tuesday, August 1, 1995 (all dates regarding the

retrial deliberations are in 1995). On August 10, after six court days of

deliberation, the jury sent word that it appeared to be deadlocked. The jury

reported it had taken four votes during deliberations which it tallied as follows: ―

1) 7–3–2 [¶] 2) 9–2–1 [¶] 3) 9–3 [¶] 4) 10–2.‖

Out of the presence of the jurors, the trial court opined that the jurors

appeared to be making progress but that it was unclear when during the

deliberations the votes had been taken. Defense counsel asked the court to limit

its inquiry to the dates of when the votes had been taken and whether further

deliberation would accomplish anything. The prosecutor asked the court to order

the jurors to take the evening off to think about whether anything might help them

reach a verdict. Defense counsel again asked the court to be ―restrictive‖ in its

inquiry and to avoid an ―exchange between the jurors and the court.‖ The court

commented it did not know if the jurors‘ ―problem is with the facts or . . . a

philosophical difference‖ or if they had ―gone off on [a] tangent.‖

The foreperson was then summoned and reported that the four ballots had

been taken during the prior week. He agreed with the court‘s observation that

some progress had been made but also said further deliberations would not serve

any useful purpose because some jurors had indicated ―there is no more changing

their mind[s].‖ Although the trial court acknowledged ―[h]aving been out as long

as you have, I‘m certain you have discussed it at great length,‖ it nonetheless

ordered the jurors to return the next morning.

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The next day, while the jurors were deliberating, the prosecutor proposed

giving them a questionnaire he had drafted that asked the following questions:

―1. Do you believe that there is any reasonable likelihood that further

deliberations will result in a unanimous verdict? [¶] 2. Do you feel that there is

any clarification of the jury instructions or your duties as jurors [that] would assist

you in arriving at a unanimous verdict? [¶] 3. Do you feel that the read back of

the testimony of any witness or witnesses or portion thereof would assist you in

arriving at a unanimous verdict? [¶] 4. Have any of the jurors refused to

deliberate? That includes a refusal to be involved in the discussion and reasoning

process. [¶] 5. Has any juror based their present position on cases, information, or

influence from any outside sources? That is, anything other than the evidence

received in this courtroom or the jury instructions which I have given you. If so,

in what manner has this occurred? [¶] 6. Has any juror expressed the view that

the death penalty is inappropriate in this case and based that view on anything

other than the evidence and the law presented in this case? If so, what?

[¶] 7. Has any juror expressed a view that life without parole is inappropriate in

this case and based that view on anything other than the evidence and the law

presented in this case? And if so, what? [¶] 8. Is there anything you might

suggest that could possibly be done to assist you in achieving a unanimous

verdict? If so, what?‖

Defense counsel objected to the questionnaire. He argued that the only

appropriate question was the first one and that the remaining questions improperly

asked the jury ―how‖ it had been deliberating, invading the province of the jury

and constituting ―intimidation.‖ He specifically objected to the questionnaire‘s

repeated attempts to pressure the jury to reach a ―unanimous‖ verdict. He also

challenged those questions geared toward uncovering juror misconduct in the

59

absence of any evidence of such misconduct. Nonetheless, the trial court agreed

to give the questionnaire to the jury. Before doing so, the court learned that a fifth

vote had been taken that morning and the jury remained deadlocked 10 to 2.

The questionnaires were distributed. The jurors were instructed to put their

names on their questionnaires and told they could add any explanations to their

yes or no answers.

After the questionnaires were completed and read by counsel, the

prosecutor requested follow-up questioning of each juror. He argued that the

responses showed one or more of the jurors was not deliberating and that ―false or

misleading‖ information ―may‖ have been provided in some jurors‘ pretrial

questionnaires or in voir dire. Defense counsel objected. He argued that the

process the prosecutor suggested ―is far beyond the scope of this court‘s authority

and should not invade the province of the jury. And I think at this point we have,

in essence, done that by soliciting these responses from these jurors.‖

The trial court stated that the questionnaires indicated all but two jurors

believed that further deliberations would not result in a unanimous verdict. The

court observed that the two holdout jurors ―obviously‖ are ―completely out of

touch with the other ten,‖ and ―I don‘t know that anything that we can say or do is

going to remedy that. So I think, basically, we have answered our fundamentally

underlying question . . . whether or not further deliberations will result in a verdict.

And I think the answer to that is probably clearly no.‖

Nonetheless, the prosecutor asserted that the questionnaires showed that

two holdout jurors were not deliberating and ―they are shutting everybody else

out.‖ He cited one response that said of one of the holdout jurors, ― ‗The juror

gets very defensive, just shuts you out if she doesn‘t like what she hears, she just

stated she can‘t argue her decision of life because the rest of us don‘t understand

60

her decision is final—‘ ‖ The court interrupted the prosecutor, stating, ―Well, I

take that to mean that she doesn‘t intend to change.‖ The prosecutor replied there

was some indication a juror might be ―afraid‖ to impose the death penalty and that

this was a legitimate area for further inquiry by the court. The prosecutor argued it

was appropriate for a court to remove a juror during deliberations based on a

demonstrable reality the juror was either not deliberating or was bringing

extraneous material into the jury room. The trial court replied that its impression

from reading the questionnaires was that ―the possibility of the holdouts, so to

speak, being persuaded otherwise is zero.‖ Defense counsel argued that the jurors

―are consistent that they have made up their minds and this jury has reached a

deadlock.‖

Switching gears, the prosecutor cited the questionnaire from Juror J.J. that

indicated another juror was on multiple medications, including psychotropic

drugs, and carried a weapon. He suggested that the latter juror had concealed this

information in her pretrial questionnaire. The trial court recessed the proceedings

to give the prosecution an opportunity to provide authority on what to do with the

juror allegedly ―on drugs‖ and ―how far do you go with inquiry of a jury that

appears to be hung.‖

The following Monday, the defense requested a mistrial based on the jury

deadlock. In response, the prosecutor requested an investigation into whether

Juror A.H. had misrepresented her health and gun ownership in her pretrial

questionnaire, and had refused to deliberate. The court stated that the

questionnaire drafted by the prosecutor had ―created more problems‖ than it had

solved and that it did not ―really see‖ a refusal to deliberate. The defense renewed

its request for a mistrial and objected to additional investigation. The court

decided to question each juror individually in camera to determine whether any of

61

the comments in the questionnaires ―have any foundation in fact to the point at

least to where it would show good cause to excuse a juror.‖ Defense counsel

objected to the proposed procedure. Alternatively, defense counsel argued that the

process should take place in open court and that questioning should be limited to

whether there was evidence of use of medication and a discussion about a weapon.

The court noted the objection.

In open court, the court told the jurors and the alternates that the recent

questionnaire, ―rather than resolving issues,‖ had raised new issues that would

need to be resolved. The court explained, ―What I intend to do is to discuss some

of the issues one at a time with each one of the jurors. [¶] Let me indicate to you

that I am not inferring by this that anybody has done anything wrong.‖

The court began its questioning of the jurors with the foreperson, but rather

than asking him about his responses to the questionnaire, the court read and asked

him about other jurors‘ responses and their thought processes. For example, after

the foreperson indicated there never had been a time during deliberations when a

juror ―refused to deliberate,‖ the court read portions of Juror L.A.‘s questionnaire

on that topic. Juror L.A. had asserted that another juror‘s ― ‗[l]ogic process seems

to be very faulty.‘ ‖ Juror L.A. also reported that ― ‗[t]his particular juror . . .

refuses to continue talking and restates her position.‘ ‖ The court read another

response in which Juror L.A. indicated one or more jurors had based their present

position on ―their life experience‖ rather than solely on the evidence and jury

instructions. The foreperson clarified that one juror once related something that

happened in his or her life, but ―[j]ust as an example, not as a reason‖ for his or

her position.

The trial court told the foreperson another juror had answered ―Yes‖ to the

question whether any juror had based his or her view that the death penalty was

62

inappropriate on anything other than the evidence and the law. The foreperson

said that ―early on‖ one person had been confused on ―what [evidence] was

presented‖ but was no longer confused.

The court read the following response from Juror M.B. to the foreperson:

―It says, ‗After the first vote, one juror had made up their mind. She would

continue to deliberate but would not change her mind.‘ ‖ The court commented, ―I

don‘t know whether that‘s necessarily refusing to deliberate.‖ In response, the

foreperson stated that there were ―a couple of jurors who said that they had —

after the first balloting, that their opinions and decisions were strong but not in

stone.‖ In response to more probing by the court, the foreperson said those jurors

continued to deliberate and argue their positions.

The court continued in this vein — reading responses from other jurors and

asking the foreperson about them and interjecting its own opinions about the

responses. For example, it read a response in which a juror expressed the view

that the death penalty was not appropriate because ―Sergio Nelson doesn‘t have a

history of murders, so he must not be a murderer. He had a bad day and

committed a crime.‖ The court opined, ―That‘s putting it, you know, rather

simply,‖ and asked, ―Is that the position of some of the jurors or a juror?‖ The

foreperson responded that the quoted response was ―making light of a position of a

juror to try to explain their reasoning and their position,‖ and that the response

―was not a fair statement as to what exactly they were trying to bring across.‖ The

court then told the foreperson, ―Well, it infers the two murders were insufficient.‖

The foreperson answered, ―Yeah. And I don‘t believe that was the case.‖ The

court then asked, ―So that was not a strongly held position by anyone?‖ The

foreperson answered, ―No.‖

63

The court then discussed the question whether anything might assist the

jury in achieving a unanimous verdict. It read the same juror‘s response to the

foreperson: ―And the answer is, ‗You can dismiss two jurors who are not fair to

both sides and are unreasonable in thinking. They lack common sense and are

more responsive to their feelings instead of the law.‘ ‖ When the trial court

commented, ―I assume that that‘s also kind of a tongue-in-cheek answer,‖ the

foreperson agreed.

Based on a comment in one of the questionnaires that a juror was ―on

multiple medications and psychotropic drugs,‖ and ―carries a weapon,‖ the court

asked the foreperson if any juror ―has problems with medications of some sort that

might affect their decision-making process?‖ The foreman answered, ―That would

affect their decision-making process, no. There is a juror who has related that they

had to take medication, but nothing has indicated that it‘s affected their decision-

making process.‖ In response to further questions from the court, the foreperson

said that he had not seen any ―medications or psychotropic drugs,‖ he had no

indication what the drugs were for, and he had seen no outward influence or

appearance from them.

The court next asked, ―How about carrying a weapon?‖ The foreman said

the juror did not have a weapon in the jury room nor did the juror carry a weapon

because the juror ―enjoy[s] weapons‖ but because the juror‘s place of employment

encouraged the carrying of a weapon ―for protection.‖

The court asked the foreperson about criticisms of the holdout jurors by

other jurors. For example, the court asked the foreperson whether ―two of our

jurors are of the opinion that even though the aggravating circumstances or

aggravating factors are overwhelming, even under those conditions, they could not

vote for death?‖ The foreperson responded, ―No, that‘s not the case.‖ He

64

explained that, in the opinion of the holdouts, ―the aggravating factors were not

compelling. They found the mitigating factors to be compelling.‖ The court then

asked, ―The aggravating factors were not sufficiently compelling?‖ The

foreperson replied, ―Not sufficiently compelling.‖ After reading a comment by a

juror that one of the holdouts ― gets very defensive‖ and has stated ―her decision is

final,‘ ‖ the court asked, ―Does that indicate to you that they would not deliberate

or that they would deliberate but were rock solid in their position?‖ The

foreperson replied the juror ―would deliberate.‖

The court then read a juror‘s response regarding what might assist the jury

in achieving a unanimous verdict. ―And it says, ‗Anything short of getting the two

people opposing to validate — I guess they mean invalidate — their position or

give reasoning with the law. I don‘t think anything will help.‘ ‖ The court asked

the foreperson, ―Would you say that‘s probably a good analysis of your position?‖

The foreperson answered, ―Crude, but, yes.‖

Defense counsel declined to question the foreperson. The prosecutor,

however, asked about a juror having a weapon. The foreperson said the juror had

been encouraged by law enforcement to carry a small weapon that fit in her purse

for security at her work. He added that the issue was briefly discussed apparently

in connection with why defendant would have carried a weapon but ―never

brought up again.‖ The prosecutor asked about that juror‘s use of medications.

The foreperson said the juror had volunteered that she saw a therapist and that the

medication helped her to deal with work and life issues. Under further

questioning, the foreperson identified this juror as Juror A.H. and acknowledged

that she was one of the holdout jurors.

In response to questioning from defense counsel, the foreperson clarified

that the juror‘s carrying a weapon was ―past tense.‖ He said the juror had

65

volunteered that she currently was taking medication. He added, ―if she had not

said anything, there was no way for us to know.‖

The foreperson was excused and told not to speak to the other jurors about

what he had been asked.

Over a defense objection, the court next questioned Juror J.J. about her

comments regarding Juror A.H., including the latter‘s use of medication and her

ownership of a gun. The court first asked J.J. about her answer to the question

regarding whether anyone had refused to be involved in the discussion and

reasoning process. J.J. said no one had refused to deliberate, but that one juror,

after initially discussing the case, soon indicated her position was unchangeable.

Asked both by the court and by defense counsel if that juror had explained her

reasoning process, J.J. said the juror stated that something was wrong with

Nelson‘s mind and that he ―really didn‘t mean this‖ and was not a murderer. J.J.

said this was the same juror who was taking several medications, including

lithium. Juror J.J. added that she is a nurse and it was her professional opinion

that the juror‘s behavior indicated she was taking lithium. She described the juror

as withdrawn and unable to speak in complete sentences. J.J. identified the juror

as A.H., who, she said, was the same juror who carried a weapon.

Juror A.H. was summoned into chambers for questioning. Before she

arrived, defense counsel renewed his objection that ―the province of the jury‖ was

being invaded. The court overruled the objection, stating that, based in part on

what it had learned from its questioning of the foreperson and Juror J.J., it

intended to explore whether Juror A.H. had misstated information on the

questionnaire she originally had completed in anticipation of voir dire. Defense

counsel then argued that the court should question all the other jurors who had not

reported a refusal to deliberate.

66

When Juror A.H. arrived, she was questioned about whether the jury had

discussed carrying a gun for protection and what that discussion entailed. A.H.

said the jury had discussed that some individuals who carry weapons are not

―going to commit murder,‖ and she mentioned the jurors ―would be surprised‖

about who was told to carry a gun or ―why people carry guns.‖ She acknowledged

she owned a revolver but said she had not mentioned it in her original

questionnaire because she did not think about it. She added, ―I did not

intentionally answer it wrong.‖ She said the revolver was ―stored away‖ and

could not recall the last time she had looked at it but that it had probably been five

or six years earlier.

Regarding her use of medications, Juror A.H. said that besides taking

medicine for stomach problems — something she had disclosed on her originally

questionnaire — she had been diagnosed as ―bipolar‖ and took Wellbutrin and

lithium for that condition. She said she had taken this medication for a long time

and it neither clouded her thinking nor hampered her analytical skills. She added

she functioned at a ―very high, high level,‖ had received her ―BS and Masters at

the same time,‖ and had worked in managerial positions at the Department of

Motor Vehicles for 17 years. On another subject, A.H. acknowledged she knew

three individuals who had been in custody.

After Juror A.H. was excused, the prosecutor argued that she should be

dismissed from the jury because of her misstatements on the original

questionnaire. The court agreed and said it would remove Juror A.H. because of

the intentional ―misrepresentation‖ on her original questionnaire.

Defense counsel moved for a mistrial, arguing that the trial court had

invaded the province of the jury and that the jurors who had been questioned

―cannot deliberate independent of the process that we have begun this morning‖

67

because they ―have been contaminated.‖ The trial court denied the motion for

mistrial and relieved Juror A.H. based on its finding that ―there was an intentional

misrepresentation‖ on her original questionnaire regarding her revolver, her health

problems, and her acquaintance with individuals who had been in custody.

Thereafter, the remaining jurors and the alternate jurors were brought into

court and told that A.H. had been excused. An alternate juror was seated. The

court instructed the reconstituted jury that it was required to start deliberations

anew, but ―because you only have one additional juror . . . , perhaps, you

collectively can bring him up to speed and in the process cover what it is that you

have covered previously.‖ The jury deliberated the rest of that afternoon with one

recess and adjourned at 4:00 p.m. The next day it deliberated for approximately

two and a half hours before reaching a verdict. The verdict fixed the penalty at

death.

B. Analysis

The Sixth Amendment mandates, in relevant part, that ―[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury . . . .‖ Given that one rationale for a jury trial ―is to prevent

oppression by the Government[,] . . . the essential feature of a jury obviously lies

in the interposition between the accused and his accuser of the commonsense

judgment of a group of laymen, and in the community participation and shared

responsibility that results from that group‘s determination of guilt or innocence.‖

(Williams v. Florida (1970) 399 U.S. 78, 100.) Central to the achievement of that

civic goal is the requirement that jury deliberations be conducted in secret.

(U. S. v. Thomas (2d Cir. 1997) 116 F.3d 606, 618 [secrecy of deliberations is the

cornerstone of the modern Anglo-American jury system].) Accordingly, the

Supreme Court has emphasized that a jury‘s deliberations must be ―free from

68

outside attempts at intimidation.‖ (Williams v. Florida supra, 399 U.S. at p. 100.)

This admonition applies to the trial court itself: ―Courts must exercise care when

intruding into the deliberative process to ensure that the secrecy, as well as the

sanctity, of the deliberative process is maintained.‖ (People v. Russell (2010) 50

Cal.4th 1228, 1251.)

Our state Constitution independently declares that ―[t]rial by jury is an

inviolate right and shall be secured to all . . . .‖ (Cal. Const., art. I, § 16.) We

similarly have emphasized that the federal and state constitutional right to a trial

by an impartial jury includes the right to a jury ―in which no member has been

improperly influenced‖ and that protecting a jury‘s impartiality ― ‗assures the

privacy of jury deliberations by foreclosing intrusive inquiry into the sanctity of

jurors‘ thought processes.‘ ‖ (In re Hamilton (1999) 20 Cal.4th 273, 294 &

fn. 17.)

In People v. Engelman (2002) 28 Cal.4th 436 (Engelman), we disapproved

of a jury instruction stating in part that ― ‗should it occur that any juror refuses to

deliberate or expresses an intention to disregard the law or to decide the case based

on [penalty or punishment, or] any [other] improper basis, it is the obligation of

the other jurors to immediately advise the Court of the situation.‘ ‖ (Id. at p. 442.)

We observed that ―an important element of trial by jury is the conduct of

deliberation in secret, free from ‗ ― ‗intrusive inquiry into the sanctity of jurors‘

thought processes.‘ [Citation.]‖ ‘ Secrecy affords jurors the freedom to engage in

frank discussions, free from fear of exposure to the parties, to other participants in

the trial, and to the public. [Citations.] The mental processes of deliberating

jurors are protected, because ‗[j]urors may be particularly reluctant to express

themselves freely in the jury room if their mental processes are subject to

immediate judicial scrutiny. The very act of questioning deliberating jurors about

69

the content of their deliberations could affect those deliberations. The danger is

increased if the attorneys for the parties are permitted to question individual jurors

in the midst of deliberations.‘ [Citation.]‖ (Id. at pp. 442-443., italics added.)

We recognized that the secrecy of deliberations ―may give way to

reasonable inquiry by the court when it receives an allegation that a deliberating

juror has committed misconduct.‖ (Engelman, supra, 28 Cal.4th at p. 443, italics

omitted.) Even then, however, trial courts ―must exercise care in responding to an

allegation from a deliberating jury that one of their number is refusing to follow

the court‘s instructions or is refusing to deliberate‖ or is engaging in any form of

juror misconduct. (Id. p. 445.)

In this case, the trial court‘s inquiry was not triggered by an indication or

allegation of juror misconduct. Rather, the triggering event was that the jury

reported itself to be at an impasse after several days of deliberation. In such

circumstances, the trial court may take certain actions. For example, current

California Rules of Court, rule 2.1036(a), adopted in 2007, states that where an

impasse has been reported, ―the trial judge may, in the presence of counsel, advise

the jury of its duty to decide the case based on the evidence while keeping an open

mind and talking about the evidence with each other. The judge should ask if the

jury has specific concerns which, if resolved, might assist the jury in reaching a

verdict.‖ Rule 2.1036(b) states, ―[i]f the trial judge determines that further action

might assist the jury in reaching a verdict, the judge may: [¶] (1) Give additional

instructions; [¶] (2) Clarify previous instructions; [¶] (3) Permit attorneys to make

additional closing arguments; or [¶] (4) Employ any combination of these

measures.‖

Thus, a trial court may intervene in jury deliberations where it receives

reports of juror misconduct or in response to an impasse, but such interventions

70

must be limited and undertaken with the utmost respect for the sanctity of the

deliberative process. In this case, the trial court went considerably beyond any

permissible intervention and took action that undermined the sanctity of jury

deliberations and invaded the jurors‘ mental processes. Based solely on the

reported impasse, the court subjected the jurors to a detailed questionnaire that

asked them to report on the thoughts and conduct of their fellow jurors —

specifically, whether the jurors were refusing to deliberate, whether they were

basing their position on anything other than the evidence and jury instructions, and

whether they were expressing views about the inappropriateness of the death

penalty or life without parole based on anything other than evidence and law. It

was clear to the jury that the purpose of this inquiry was to solve the problem of

the jury‘s deadlock, and the inquiry therefore communicated to holdout jurors that

their deliberative processes would be reported by fellow jurors and scrutinized by

the court. This was improper. ― ‗ ―As a general rule, no one — including the

judge presiding at a trial — has a ‗right to know‘ how a jury, or any individual

juror, has deliberated or how a decision was reached by a jury or juror.‖ ‘ ‖

(Engelman, supra, 28 Cal.4th at p. 443.)

This case is factually distinguishable from People v. Sheldon (1989) 48

Cal.3d 935 (Sheldon), relied on by the Attorney General. In Sheldon, the jury‘s

foreman informed the trial court that the jury was hopelessly deadlocked 11 to 1 in

favor of death after two days of deliberation and with one ballot having been

taken. Upon questioning by the court, however, several jurors, while confirming

the deadlock, ―expressed the hope that further instructions by the court might

assist in bring about a verdict.‖ (Id. at p. 958.) The court announced its intention

to reread the penalty phase instructions the following morning. Before it could so,

the defendant moved for a mistrial on the grounds that forcing the jury to resume

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deliberations after it announced the vote ―would be the equivalent of directing a

death verdict.‖ (Ibid.) The trial court denied the motion and reread the

instructions. After further deliberations, the jury returned a verdict of death. The

defendant moved for a new trial, asserting the trial court had coerced the verdict.

That motion, too, was denied. (Id. at pp. 958-959.)

On appeal, we also rejected the jury coercion claim: ―No improper

coercion occurred here. The trial court made no coercive remarks and exerted no

undue pressure on the minority juror to change his vote. [Citation.] The court

merely made a discretionary determination, based on its examination of the jury,

that there remained a reasonable probability the deadlock might be broken

following a rereading of the penalty instructions. This determination seems

entirely reasonable given the fact that, before announcing the deadlock, the jury

had deliberated for only two days and had taken only one ballot, and that several

jurors had indicated that such a reinstruction might produce a unanimous verdict.‖

(Sheldon, supra, 48 Cal.3d at p. 959.) The intrusive actions by the trial court in

this case and the resulting pressure placed on jury bear no resemblance to the

reasonable actions taken by the trial court in Sheldon. Thus, Sheldon is inapposite.

We conclude that the trial court erred in giving the questionnaire to the

jurors and in questioning several jurors about their responses. We turn then to the

question of prejudice. Nelson contends this unconstitutional intrusion into the

deliberative process constitutes structural error that requires automatic reversal

under the federal Constitution. We have recognized that not every unwarranted

intrusion into a jury‘s deliberative process requires automatic reversal. (See, e.g.,

People v. Jennings (1991) 53 Cal.3d 334, 383-384 [court‘s ex parte

communication with jury harmless beyond a reasonable doubt because its

admonition was a correct statement of law, it gave parties notice of its misstep,

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and it sought counsel‘s suggestions for an appropriate additional admonition].)

Here, assuming that the trial court‘s intrusions into the deliberative process do not

constitute structural error and are instead subject to harmless error analysis, we

conclude the intrusions were not harmless because they amounted to jury coercion.

―[B]efore a federal constitutional error can be held harmless, the court must

be able to declare a belief that it was harmless beyond a reasonable doubt.‖

(Chapman v. California (1967) 386 U.S. 18, 24.) Our state standard of review of

state constitutional errors in the penalty phase of a capital trial — ―whether there is

a reasonable possibility the error affected the verdict‖ — parallels the Chapman

standard. (People v. Gonzalez (2006) 38 Cal.4th 932, 960-961 [the two standards

are ― ‗the same in substance and effect‘ ‖ (citing People v. Ashmus (1991) 54

Cal.3d 932, 990].) Under both state and federal law, ―[a] defendant accused of a

crime has a constitutional right to a trial by unbiased, impartial jurors.

[Citations.]‖ (People v. Nesler (1997) 16 Cal.4th 561, 578.) A verdict ― ‗ ―cannot

stand if even a single juror has been improperly influenced.‖ ‘ ‖ (Ibid.) ―Any

claim that the jury was pressured into reaching a verdict depends on the particular

circumstances of the case. [Citations.]‖ (People v. Pride (1992) 3 Cal.4th 195,

265.)

In the circumstances of this case, we conclude there is a reasonable

possibility that the unwarranted introduction into the jury room of the court-

authorized questionnaire and the court‘s subsequent questioning of the jurors

affected the jury‘s deliberations. As we have recognized, inquiries by the trial

court designed to disclose the jury‘s deliberative processes are ― ‗ ―[e]specially

troublesome‖ because of ―the danger that such disclosure . . . presents to the

operation of the deliberative process itself.‖ ‘ ‖ (Engelman, supra, 28 Cal.4th at

p. 443.) ― ‗ ―[T]he mere suggestion that the views of jurors may be conveyed to

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the parties . . . understandably may cause anxiety and fear in jurors, and distort the

process by which a verdict is reached . . . .‖ ‘ ‖ (Ibid.)

Here, there was more than a remote possibility that the questionnaire and

the trial court‘s follow-up questioning distorted the deliberative process,

communicating to the jury that the views of the minority jurors preventing the

achievement of unanimity would be reported by the other jurors and would be

subject to scrutiny by the trial court in the form of questions such as whether

―there is anything you might suggest that could possibly be done to assist you in

achieving a unanimous verdict? If so, what?‖ There is a reasonable possibility

that this inquiry into jurors‘ views would discourage jurors from taking or

maintaining the minority position.

Adding to the pressure on the jurors was the trial court‘s excusal of Juror

A.H. Although the trial court has a duty under section 1089 to remove jurors

when it becomes aware they are unable to perform their duties, the information

that led to the removal of A.H. came to light only when the court improperly gave

the questionnaire to the jurors. The questionnaire fostered a selective disclosure

process: It was clear that the point of the questionnaire was to expose the conduct

and thought processes of the holdout jurors, not jurors in general.

Nelson contends that A.H. was improperly excused, an issue we not need

resolve in light of our reversal of the penalty judgment based on the trial court‘s

intrusion into the jury‘s deliberative process. Nonetheless, we are skeptical that

the grounds provided by the trial court for A.H.‘s dismissal demonstrated

―reasonable grounds for inferring‖ A.H. was biased as a ― ‗demonstrable reality.‘ ‖

(People v. Price (1991) 1 Cal.4th 324, 400.)

Regarding her ownership of a gun — a subject of questions Nos. 15 and 34

of the juror questionnaire — A.H. explained that she had forgotten about the gun

74

because it had been in storage for years and she had not seen it in five or six years.

As to her bipolar illness, as Nelson points out, the juror questionnaire‘s phrase of

the health question — ―Do you have any specific health problems or

disabilities?‖ — could have been understood by her to refer to physical disabilities

only, and in fact, the juror answered that she had ―digestive problems.‖ Moreover,

she disclosed on her questionnaire that she had seen a mental health professional.

Finally, as she explained to the court, her bipolar condition was controlled by

medication, did not impede her thought process, and had not prevented her from

receiving her bachelor‘s and master‘s degrees or from working in a managerial

position. Thus, not only was it reasonable that A.H. could have understood the

question to be asking about physical and not mental disabilities, she may

reasonably not have viewed her condition as a disability at all.

On the issue of whether A.H. knew individuals in custody, the question at

issue asked, ―Have you, or anyone close to you, ever been arrested for or accused

of a crime?‖ (Italics added.) On her questionnaire, A.H. disclosed that she had a

friend who had outstanding warrants and had apparently been arrested for

receiving stolen property. When questioned further during the penalty phase, she

acknowledged that her former babysitter‘s son and her former brother-in-law had

also been in custody. The juror may quite reasonably have thought neither of

these individuals — an ex-babysitter‘s son and an ex-brother-in-law — were

―close‖ to her for purposes of having to disclose them in response to the question.

In short, it is not evident that the juror affirmatively misrepresented or concealed

material information. Her responses appear to be either the result of inadvertence

or a reasonable interpretation of the questions asked on the questionnaire. The

selective scrutiny to which A.H. was subjected and the dubiousness of the trial

75

court‘s grounds for excusing her further highlight the impropriety of the court‘s

unwarranted intrusion into the deliberative process and its coercive effect.

Under the circumstances presented above, there is a reasonable possibility

that these intrusions into the jurors‘ deliberative process suggested to the jurors the

following: (1) the majority position was the reasonable one; (2) the dissenting

jurors‘ position was unreasonable and would be subject to particular scrutiny — an

inference that could only have been strengthened when the court, without

explanation to the jury, excused one of the two holdout jurors; and (3) the ―new‖

deliberations following the substitution of one holdout would simply be a matter

of the majority convincing the last holdout and the new juror to come to its side.

There is a considerable possibility that this message would have pressured the

remaining holdout juror to reevaluate her position and would have discouraged the

alternate juror, whose views until that point were unknown, from taking a minority

position.

Moreover, to the extent the majority jurors were also continuing to

deliberate, and there was a possibility that they too could change their minds in

favor of life without parole, the questionnaire and the court‘s remarks made any

such conversion significantly less likely. With respect to the foreperson and Juror

J.J, both of whom were questioned by the trial court about the holdout jurors, there

is a reasonable possibility that the trial court‘s direct questioning led them to

believe that a change in their position in favor of life without parole, thereby

deepening the impasse, would result in the trial court again asking them to account

for their own or other jurors‘ thought processes. In addition, there is a reasonable

possibility that other jurors were aware of the trial court‘s questioning of the

foreperson and Juror J.J., leading them also to believe they might have to explain

their thought processes to the court if they voted for life without parole.

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In sum, we cannot conclude beyond a reasonable doubt that the death

verdict in this case was the product of fair and impartial deliberations free from the

intrusive influence of the trial court‘s questions and comments. We conclude

Nelson is entitled to a new penalty trial.

77

IV. CONCLUSION

For the reasons above, we reverse the lying-in-wait special-circumstance

and penalty judgment, and otherwise affirm the convictions.

LIU, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CUÉLLAR, J.

KRUGER, J.

78

CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.

I concur in the judgment, but dissent with regard to the lying-in-wait issue.

(Maj. opn., ante, at pp. 41-45.) The murder in this case was an ambush, unlike the

murder in People v. Carter (2005) 36 Cal.4th 1215, the only case on which the

majority relies to reach its contrary conclusion. In Carter, the defendant broke

through the victim‘s front door. (Id. at p. 1261.) Here, defendant snuck up on his

victims from behind as they sat unsuspecting in the front seats of a car, and shot

them through an open rear passenger window. These facts are nothing like those

in Carter.

The majority does not question the sufficiency of the evidence that

defendant concealed his purpose and perpetrated a surprise attack on his

unsuspecting victims from a position of advantage. It finds the evidence lacking

only as to the ―substantial period of watching and waiting‖ element of the lying-

in-wait special circumstance. (People v. Morales (1989) 48 Cal.3d 527, 557.) It

reasons that because the evidence did not establish whether defendant arrived at

the scene before his victims, it cannot be said there was a period of watchful

waiting. I disagree.

As the majority recognizes, the period of watching and waiting required for

the lying-in-wait special circumstance need be no longer than the time required to

form the mental state of premeditation or deliberation. (Maj. opn., ante, at p. 43.)

The majority recounts that defendant rode his bicycle to the parking lot where he

1

had reason to believe the victims would be waiting before work. He concealed his

bicycle before approaching the victims from the rear. (Id. at pp. 43-44.) We also

know from the testimony of an eyewitness that defendant ran away on foot after

making sure his victims were dead by returning to the car to shoot several more

times. Even if defendant arrived at the parking lot after the victims did, these facts

indicate that he took the time to hide his bicycle some distance away from the

victims‘ car.

There is no question that defendant had time to premeditate and deliberate

this murder while he went from where he left the bicycle to the car. Surely the

majority would not overturn a first degree murder verdict on these facts for

insufficient evidence of premeditation or deliberation. Under settled law, recited

by the majority and explained to the jury in the special circumstance instructions,

―[t]he lying in wait need not continue for any particular period of time provided

that its duration is such as to show a state of mind equivalent to premeditation or

deliberation.‖ (CALJIC No. 8.81.15 (1989 rev.) (5th ed. 1988) (Special

Circumstances — Murder While Lying in Wait); see, e.g., People v. Mendoza

(2011) 52 Cal.4th 1056, 1073; People v. Moon (2005) 37 Cal.4th 1, 23; maj. opn.,

ante, at p. 43.)1

1 The majority does not question our precedent approving this rule. It cites

People v. Sandoval (2015) 62 Cal.4th 394, 424, for the proposition that ―the fact

that there was substantial evidence of premeditation and deliberation does not

necessarily mean there was substantial evidence of watching and waiting for an

opportune time to act.‖ (Maj. opn., ante, at p. 45.) Sandoval, however, says only

that ―a conclusion that there was insufficient evidence of lying-in-wait murder

does not mean there was no premeditation and deliberation, but only that these

mental states must be established by another route.‖ (Sandoval, at p. 424.)

2

Reviewing the record in the light most favorable to the jury‘s

determination, as the majority acknowledges we must, the evidence of watchful

waiting was plainly sufficient. (Maj. opn., ante, at p. 43.) The jury could

reasonably find that after concealing his bicycle, defendant engaged in ―a

substantial period of watching and waiting for an opportune time to act.‖ (People

v. Morales, supra, 48 Cal.3d at p. 557.) Whether he arrived at the scene first or

his victims did, it is inferable that as he approached the car from behind, he was

watching the victims for any sign they might discover his presence, and waiting

until he was in position to shoot them before they did.

CORRIGAN, J.

I CONCUR:

CHIN, J.

3

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Nelson

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S048763

Date Filed: August 15, 2016

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Clarence Stromwall

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Joseph E. Chabot and

Nina Wilder, Deputy State Public Defenders, for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Robert R. Anderson, Chief Assistant Attorney

General, Pamela C. Hamanaka, Assistant Attorney General, John R. Gorey, Sharon E. Loughner and Tita

Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Joseph E. Chabot

Deputy State Public Defender

1111 Broadway, 10th Floor

Oakland, CA 94607-4139

(510) 267-3300

Tita Nguyen

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 897-2060