People v. Brooks

Filed 3/20/17

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S099274

v. )

)

DONALD LEWIS BROOKS, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. PA032918

____________________________________)

A jury convicted Donald Lewis Brooks of the first degree murder of Lisa

Kerr (Pen. Code, § 187, subd. (a)),1 and found true two special-circumstance

allegations — that the murder was committed while defendant was engaged in the

commission of kidnapping (§ 190.2, subd. (a)(17)(B)), and that the murder was

intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). The jury

also convicted defendant of arson causing great bodily injury (§ 451, subd. (a)),

and stalking (§ 646.9, subd. (a)). After a penalty phase, the jury returned a verdict

of death. Defendant moved for modification of his sentence to life without the

possibility of parole (§ 190.4, subd. (e)). The trial court denied the motion and

1 All further statutory references are to the Penal Code unless otherwise

indicated.

SEE CONCURRING & DISSENTING OPINION

sentenced him to death.2 Defendant‘s appeal is automatic. (§ 1239, subd. (b).)

For the reasons that follow, we affirm the judgment.

I. FACTS

A. Guilt Phase Evidence

1. Prosecution evidence

Defendant met the homicide victim, Lisa Kerr, in October 1997 at a dance

sponsored by Alcoholics Anonymous (AA), an organization to which they both

belonged. For about 10 months, defendant kept it a secret that he was having an

affair with Kerr, who was married and the mother of a young son. In August

1998, however, defendant revealed the affair during a lengthy conversation with

another AA member, Mark Harvey. Defendant told Harvey that he was in love

with Kerr, that their relationship was perfect, and that his life was finally falling

into place. But defendant also indicated that he was upset and frustrated because

Kerr had recently decided to reconcile with her husband for the sake of their son.

Defendant told Harvey that he did not want his relationship with Kerr to end, and

that he wanted to stab Kerr‘s husband or ―get him out of the picture.‖

Kerr soon began expressing to friends that she was afraid of defendant.

One day in late September 1998, for example, she made a series of phone calls to

Harvey‘s girlfriend, Lynda Farnand, who also knew defendant. According to

Farnand, Kerr was talking very fast and sounded scared. After the last

conversation that day, Farnand accompanied Kerr to the local police station. Kerr

called Farnand again several days later, this time telling her she was concerned

2 The court also sentenced defendant to the upper term of nine years for the

arson conviction consecutive to eight months (one-third the midterm of

24 months) for the stalking conviction.

2

about three messages defendant had left on her home telephone answering

machine. Farnand came to the house and listened to the messages. The first

message was simply music. The second message began with music and ended

with defendant calling Kerr a slut and a whore. In the final message, Farnand

heard defendant say that ―if he couldn‘t have her, nobody could have her.‖

Around the same time that Kerr was starting to confide in others that she

feared defendant, defendant was talking to friends about the affair, saying he was

frustrated with being ―led on‖ by Kerr, and expressing open hostility toward

Kerr‘s husband. One of the individuals with whom defendant spoke about the

situation was Dwayne Kari, who also knew Kerr and was a good friend of Kerr‘s

husband. Kari disapproved of the affair and repeatedly advised defendant to put

an end to it. One morning in November 1998, Kari observed defendant driving his

van toward Kerr‘s home. Kari gave chase and eventually caught up with

defendant, accusing him of stalking Kerr and telling him it needed to stop. Kari

also warned defendant that ―it was going to get personal‖ after defendant admitted

having previously told Kari that he planned to stab Kerr‘s husband. Defendant

responded by saying Kerr was ―screwing him around.‖ To prove his point,

defendant retrieved some items from his van. The first item was a tape-recorded

message that Kerr had left on defendant‘s answering machine that said, ―All I can

say about last night was ‗yummy.‘ ‖ The other item was a piece of paper on which

Kerr had written ―Lisa Brooks.‖ Defendant said he was going to show these items

to Kerr‘s husband ―if she doesn‘t leave him.‖

Defendant continued to follow Kerr. David Heiserman, who defendant had

hired to assist him in his plumbing business, was in the van with defendant when

they circled Kerr‘s home. Defendant explained to Heiserman that he wanted ―to

see what was going on,‖ then parked the van one block away and was gone for 25

minutes. In December 1998, Kerr told her friend Cheryl Zornes that she feared

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defendant because ―every time she turned around‖ he was outside her home or

workplace watching her. Kerr also told her friend that she was going to inform her

husband about the affair before defendant did, and that she and her husband were

going to split up after Christmas. At some point during that conversation, Kerr

mentioned that, for her birthday, defendant had arranged to have an airplane with a

banner fly over her house, telling her friend, ―Look what he‘s willing to do for

me.‖ According to Kerr‘s friend, Kerr seemed scared and confused when she said

that.

Despite her expressions of fear, Kerr accepted defendant‘s offer of financial

assistance after separating from her husband and moving to her own apartment in

January 1999. Defendant signed the rental agreement, naming ―Donald Brooks

and Lisa Brooks‖ as the tenants. According to Kerr‘s close friend, Kimberlee

Hyer, Kerr said the only reason that defendant was in her life was ―for the

money.‖ Hyer eventually helped Kerr pay her bills, telling Kerr that ―she didn‘t

ever have to ask [defendant] for money again.‖ According to defendant‘s

plumbing assistant Heiserman, Kerr was sarcastic and rude to defendant and made

fun of him in front of others.

Meanwhile, defendant‘s obsession with Kerr intensified, and he stepped up

his surveillance of her. He continued to follow Kerr to or from places he knew she

would be, such as her workplace, her apartment, and certain bars. Defendant also

showed Heiserman a package containing a mail-ordered listening device that he

was going to use to bug Kerr‘s apartment. According to Heiserman, defendant

was upset with Kerr because she wanted to go back to her husband and family and

because he believed she was ―running around on him‖ with fellow AA member

Mark Harvey. In February or early March 1999, defendant told Heiserman that he

was tormented by thoughts of Kerr, and said once or twice that he wanted to kill

her by blowing up her car or being a sniper. According to Heiserman, defendant

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also talked about blowing up Kerr‘s car or setting it on fire in order to get her ―off

his mind.‖

In the days and weeks preceding Kerr‘s death, defendant appeared even

more consumed by his thoughts of Kerr. According to Heiserman, defendant‘s

appearance was uncharacteristically disheveled and he was so ―out of control‖ that

Heiserman quit working for him. Defendant told Heiserman that he wanted Kerr

to leave her family and start a family with him. He also said that, were she to

refuse, he ―wouldn‘t be able to live with it or be able to see her,‖ and again

mentioned blowing up her car. Meanwhile, Kerr‘s fear of defendant became more

acute. According to Kerr‘s friend Hyer, 10 days before Kerr‘s death she insisted

Hyer promise that she would take care of Kerr‘s son in the event anything

happened to her.

On March 23, 1999, the day prior to Kerr‘s death, Kerr drove her car to

Harvey‘s house around 7:00 p.m. to babysit one of his two young daughters so that

he could attend an AA meeting. When Harvey returned to the residence around

10:00 p.m., he noticed the silhouette of someone and the glow of a cigarette at the

edge of the fence and driveway, near some bushes. His back neighbor‘s dogs were

barking, but he did not investigate. When Harvey entered the house, he saw Kerr

asleep on the couch and his daughter asleep in her crib.

Kerr awoke around 11:00 p.m., and went outside to smoke. When she

came back inside, she was shaking and nervous, and Harvey asked what was

wrong. Kerr told him it would not be a good idea for her to accept his earlier offer

for her to rent a room in his home because defendant had threatened to kill Harvey

and his children in order to get to her. Kerr started to leave, but then said to

Harvey, ―We need to talk.‖ Kerr and Harvey went back inside the house and sat in

the living room on separate couches, one of which was located near an open heater

vent, and they talked for the next two hours, until 1:15 a.m. Sometime during

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their conversation, Kerr became very upset and told Harvey she was afraid of

defendant because he was following her to work and AA meetings, and had

threatened to kill her. Kerr also indicated that she was frustrated by her

relationships with her husband and defendant, who she described as

―overwhelmingly emotional.‖ She told Harvey she ―adored him‖ for being ―the

balance‖ between the two men. Kerr and Harvey talked about the possibility of

becoming physically involved, but they agreed that they would not do so. At one

point, however, Kerr sat on the floor while Harvey massaged her shoulders for a

minute.

When Kerr and Harvey had finished talking and walked outside, Harvey

tried to give Kerr a hug goodbye. She warned, ―Be careful, ‗Squirrel Boy‘ might

be watching us.‖ Kerr previously had referred to defendant as ―Squirrel Boy.‖

Before Kerr departed, Harvey asked her to call him when she arrived home. He

never received a call.

At 4:11 a.m., about three hours after Kerr and Harvey parted ways,

firefighters responded to a report of a fire adjacent to the southbound Hollywood

Freeway in the San Fernando Valley, at the Roscoe Boulevard exit ramp. An

intense fire had engulfed a vehicle located near the bottom of a 30- or 40-foot

embankment, and most of the flames were coming from the car‘s interior, not

from the engine. Firefighters succeeded in extinguishing the fire in two to three

minutes. An arson investigator was summoned when a body was discovered on

the floorboard behind the front seats.

Arson investigator Michael Camello arrived shortly after being called to the

scene. His observations regarding the burn patterns and the amount, character,

and location of damage to the car led him to conclude that the fire most probably

had been intentionally set with a flammable liquid that was ignited with an open

flame. For example, the car‘s windows and much of the floorboard carpeting had

6

burned away. This showed that the fire burned fast and low and had generated an

intense amount of heat, which is characteristic of fires started with the use of a

flammable liquid, rather than fires that began accidentally. Camello noticed a

piece of rolled-up paper on the driver‘s seat, which he believed may have been lit

and then thrown into the car from a safe distance to ignite the flammable liquid.

He also found, stuffed inside the filler neck of the gas tank, pieces of cloth that had

been lit and burned, which suggested to him a failed attempt to set the car on fire.

He explained that such a method is rarely successful, and that someone attempting

to set a car on fire in this manner might ―not [be] thinking clearly.‖

Camello further concluded, based on the position of the victim‘s body and

the nature of her injuries, that the flammable liquid used to start the fire had also

been poured over her. Specifically, the victim was on the floorboard between the

front and back seats, lying on her right side with her head facing toward the rear of

the car and her legs wedged in behind the front passenger seat. The body was over

the differential tunnel, which created an ―open space‖ under her. In Camello‘s

opinion, the flammable liquid that had been poured on top of the victim drained

into this open space, burning away the carpeting, her hands, and the lower portion

of her legs and feet. Camello found it noteworthy that the side of the victim‘s

face, neck, and shoulder covering her purse on the floor had not burned away,

which suggested to him that when the fire was lit she had been in the same

position in which firefighters had found her. He also saw no evidence that the

victim had been restrained.

Among the emergency personnel who responded to the scene of the car fire

was California Highway Patrol Officer Raul Campos. His search of the area

disclosed no evidence suggesting that the car had been involved in a traffic

collision. For example, the car‘s ―pop-up‖ headlights were closed, which would

not occur if the car was involved in an accident. The position of Kerr‘s body and

7

the location of the vehicle itself also were inconsistent with having been involved

in a collision. Specifically, the car was at a 90-degree angle from the off-ramp.

Had the vehicle gone over the edge of the off-ramp as a result of an accident, it

would have come to rest at a 45-degree angle and possibly gone through the chain

link fence that bordered the bottom of the embankment. Campos believed that

foul play was involved and that the car had been either pushed or driven at a low

speed down the embankment.

Heiserman learned from a morning news report that Kerr had died in a car

fire in the early morning hours, and he unsuccessfully tried to contact defendant.

Around 11:30 a.m., defendant called Heiserman, ignoring Heiserman‘s question

regarding his whereabouts and asking him, ―[I]s she okay?‖ When Heiserman

responded, ―Is who okay?,‖ defendant replied, ―C‘mon Smiley. Is she okay?‖

When Heiserman asked what was going on, defendant rephrased his question, this

time asking, ―Is she dead?‖ Heiserman said, ―Yes.‖ Defendant started to cry and

said he had to go. He called Heiserman again around 7:00 p.m., sounding scared

and upset. Defendant asked him to tell defendant‘s daughter that he loved her, and

he offered Heiserman his van and all of his plumbing tools.

An autopsy performed the following day showed that Kerr died primarily

as a result of smoke inhalation and thermal injuries. Other factors, for example,

strangulation, also may have played some role in her death, but they could not be

evaluated due to the extensive charring of her body. According to the medical

examiner who conducted the autopsy, the presence of soot in Kerr‘s mouth,

airway, larynx, trachea, and bronchi, which can occur only through active

breathing, indicated that Kerr was alive at the beginning of the fire. He saw no

evidence of intoxication or the use of restraints that would explain why Kerr made

no attempt to escape the fire, and believed she was most likely unconscious when

the fire started. From the extensive charring of Kerr‘s body and toxicology reports

8

showing low levels of carbon monoxide in the bloodstream, the medical examiner

further concluded that Kerr had been killed by a ―flash fire‖ that likely involved

the use of an accelerant.

The investigation into Kerr‘s death involved further examination of the

burned-out car, which had been transported from the scene of the fire to a towing

yard. With the assistance of a dog trained to detect the odor of common liquid

accelerants, an arson investigator concluded from his examination of the debris

removed from the vehicle that an ignitable liquid had been distributed in the car

and that the fire had been intentionally set. In contrast, a criminalist who used a

gas chromatograph with mass selector detector and other methods to analyze the

same debris examined by the arson investigator was unable to ascertain either the

presence or absence of an ignitable liquid.

The investigation also included a review of defendant‘s cellular telephone

records, which showed the times and general locations from which he made or

received calls. In the early evening the day before Kerr‘s death, defendant called

her pager four times, with no further calls after 7:18 p.m. In the early morning

hours of the next day, defendant made or received several calls close in time to the

fire. One call was transmitted near the fire scene at 4:23 a.m., just minutes after

the firefighters‘ arrival. Two calls were then transmitted at 5:00 and 5:01 a.m., in

close proximity to Kerr‘s residence.

In the course of the investigation, one of the detectives drove from

Harvey‘s house to Kerr‘s residence and from Hervey‘s home and Kerr‘s residence

to the scene of the fire so as to calculate how long it took to reach each of those

locations. According to the officer, the trip from Harvey‘s home to Kerr‘s

residence would have taken about 20 minutes in the early morning hours. The

drive from Kerr‘s residence to the Roscoe Avenue off-ramp where the fire

occurred would have taken between five and 10 minutes at that time of the day.

9

The drive from Harvey‘s house to the off-ramp would have taken 15 to 20

minutes.

As indicated by telephone records, defendant fled the day of Kerr‘s death,

driving through Arizona and New Mexico until he reached Colorado about one

week later. He drove a sedan that he had purchased ―on the street‖ in California,

leaving behind his work van and plumbing tools.

Defendant took the name ―Don Blanton,‖ and lived with others in a house

in Colorado Springs until his arrest four months later, in July 1999. He continued

his trade as a plumber, sometimes working with David Jayne, one of his

housemates. At some point, defendant told Jayne he was looking for new

identification because he had gotten in trouble in California. About three weeks

before his arrest, defendant disclosed to Jayne that he was in trouble because he

had strangled his girlfriend Lisa. Defendant explained that he suspected his

girlfriend was cheating on him, and that he had been shadowing her. He said he

followed her to the man‘s home and went into the crawl space underneath the

house to listen to their conversation. Defendant told Jayne he heard his girlfriend

belittling defendant‘s father, which angered him. He also told Jayne he heard his

girlfriend and the other man having sex. Defendant said he then followed his

girlfriend to her apartment, where he strangled her, ―like a spur-of-the-moment

type thing.‖ Defendant illustrated the act for Jayne by holding his hands in a

strangling motion and saying, ―I‘m going to go to jail for assault anyway, so

I might as well kill her.‖ According to Jayne, defendant was calm when

recounting the events.

Defendant was arrested at the Colorado residence in late July 1999. The

prosecutor presented evidence at trial that defendant told the arresting officer that

at 1:30 a.m. on the day of the fire, he and Kerr had a brief argument at her

apartment, and she was very angry when she left in her car. According to

10

defendant‘s account, he returned to the home he shared with his father. Later,

when defendant was driving on the freeway in the early morning hours, he saw

Kerr‘s car in flames and firefighters at the scene. Defendant explained that he

believed Kerr was having a sexual relationship with Harvey and that he felt angry

and betrayed by Kerr, particularly because he was paying for her apartment. He

also indicated that he had formed his suspicions and was feeling angry at Kerr well

before the night of her death.

While in custody after extradition to California, defendant again spoke with

his former plumbing assistant Heiserman, this time describing the events leading

to Kerr‘s death. Specifically, defendant explained that he had followed Kerr to

Harvey‘s home, hid under the house, and heard them belittling him. Defendant

then told Heiserman he ―just couldn‘t take it,‖ and that he confronted Kerr when

she got to her car as she was leaving. He said he strangled Kerr and, when she

―was out,‖ put her in the backseat of her car.

2. Defense evidence

The defense did not dispute that defendant killed Kerr. Rather, the defense

presented evidence to support the theory that defendant was guilty of heat of

passion voluntary manslaughter, not murder. For example, the defense

investigator testified that Heiserman told him defendant had admitted becoming

incensed and fatally strangling Kerr after he overheard her calling him a ―jerk.‖

The defense also called several witnesses in an attempt to show that Kerr was not

fearful of defendant but rather happily involved with, or taking advantage of, him.

One such witness was Jody Wheeler, a bartender at the Van Nuys bar where

defendant often joined his father for lunch. She testified that defendant introduced

her to Kerr sometime in 1999 when he recommended Kerr for a job at the bar.

Wheeler trained Kerr as a bartender for one day but did not hire her because the

11

bar had a policy against employees having their boyfriends at the bar. From that

point in time, until her death, Kerr would call the bar sometimes 10 times a day

asking for defendant.

B. Penalty Phase Evidence

1. Prosecution’s case in aggravation

The prosecution called Kerr‘s family members and a friend to testify

regarding the impact of Kerr‘s death on themselves and other members of Kerr‘s

family, including her young son and mother.

The prosecutor also presented the testimony of defendant‘s former wife,

Mary C., who described for the jury acts of domestic violence that occurred during

a tumultuous three-year marriage replete with bitter arguments and mutual

combat. According to Mary, when she was pregnant with the first of their two

children, defendant entered the bathroom where she was running water into the

bathtub, grabbed her by the hair, and pushed her into the hot water. She admitted

during cross-examination that the night before that incident, she had punched

defendant in the eye. Mary also related that when she was eight months pregnant

with their second child, defendant pointed a loaded 12-gauge shotgun at her

stomach during an argument, asking her, ―Do you want to die?‖ She responded by

saying, ―Pull the fucking trigger. I‘m tired of talking about it.‖ On another

occasion some months later, according to Mary, she returned home to find

defendant gone and a group of people she did not know in the house. Their

daughter, who was now four months old, was sitting on one person‘s lap. The

next day, when Mary angrily confronted defendant about leaving the child with

strangers, defendant grabbed the arms of the wicker chair she was sitting in and

jerked it toward a burning fireplace. She kicked him and took off running.

12

Mary told the jury that she separated from defendant because of the

violence, and that she had obtained a restraining order after commencing divorce

proceedings. Mary also related that defendant left the state for a short period of

time to ―straighten out his life.‖ When he returned, however, he came over to the

house, angry about the restraining order. According to Mary, defendant told her

he should frame the order so that he could ―always remember what you‘ve put me

through,‖ to which Mary responded that defendant could ―stick it up his ass.‖ A

fight ensued in which defendant picked up their daughter, grabbed the keys, and

said he was leaving with the children. Mary said, ―No you‘re not,‖ and tried to

call 911, but defendant ripped the phone out of the wall. Mary smacked defendant

and ran to a neighbor‘s house, with defendant in pursuit. Defendant climbed over

the neighbor‘s fence, placed Mary in a headlock, and dragged her back toward

their house. During cross-examination, Mary described defendant as a person

with a good heart, but said that when he helped someone, he believed that person

was indebted to him. She testified further that she never saw defendant seriously

hurt anyone.

2. Defense case in mitigation

The defense called five witnesses to testify regarding defendant‘s

background, his good character, and his love for, and dedication to, his three

children.

Defendant‘s older half sister and mother testified regarding defendant‘s

upbringing in an environment of alcohol abuse and domestic violence. His sister

first chronicled for the jury their mother‘s many marriages and divorces. She

indicated that defendant was seven years old when his parents divorced, and that

from an early age defendant had witnessed his mother and father arguing and

fighting, which greatly upset him. Defendant‘s sister and his mother both testified

13

that defendant‘s father was an alcoholic, as was his stepfather, Edwin Rawl. They

also indicated that two years after defendant‘s mother married Rawl, the incidents

of intoxication-fueled domestic violence in the household not only resumed, but

increased in severity. Defendant saw Rawl beat his mother often, and defendant

sometimes intervened. On one occasion, the children watched as Rawl chased

their mother around the house with a rifle, which he eventually discharged over

the refrigerator. In another incident, defendant dragged his mother away from her

bed when Rawl tried to set it on fire. Defendant‘s attempt to intervene in the

violent incidents continued for as long as he lived at the house, until he graduated

from high school and left home for the Army.

Defendant‘s sister and mother also recounted for the jury several incidents

of extraordinary domestic violence. On one occasion, Rawl became enraged after

receiving an exorbitant medical bill in connection with the premature birth of

defendant‘s younger half brother. With defendant at home, Rawl poured gasoline

around the house the day before defendant‘s mother and the infant were to be

discharged from the hospital, although he ultimately did not set the house on fire.

While in a drunken rage on another occasion, Rawl shot defendant‘s mother in the

back with an M1 carbine. Defendant, who was 13 years old and home at the time

of the shooting, was very upset. Although Rawl was arrested for the assault,

defendant‘s mother eventually invited him back into the house and declined to

press charges. The alcohol abuse and violence continued, however, until she and

Rawl finally divorced years later.

All of the defense witnesses testified regarding defendant‘s great kindness

toward others. For example, the owner of a plumbing business who frequently

gave defendant work as a subcontractor told the jury that defendant often hired

assistants who had been released from jail or prison in order to give them a

chance. The former wife of a general contractor who also regularly hired

14

defendant as a plumbing subcontractor likewise indicated that defendant was a

caring person who ―would give anybody the shirt off his back.‖ According to

defendant‘s mother, defendant would let people live with him until they could get

back on their feet.

Some of the witnesses testified furthermore regarding defendant‘s

dedication to his children. The plumbing business owner related, for example, that

defendant was adamant about declining work if it would have interfered with his

every-other-weekend custody of his younger daughter.

All of the witnesses asked the jury to spare defendant‘s life.

II. DISCUSSION

A. Pretrial and Guilt Phase Issues

1. Striking of defendant’s testimony at the suppression hearing

The defense filed a pretrial motion to suppress defendant‘s statements to

interrogating officers on the ground that the statements were obtained in violation

of Miranda v. Arizona (1966) 384 U.S. 436. Defendant testified at a hearing on

the motion, but the trial court ordered defendant‘s testimony stricken in its entirety

after he refused to answer one of the prosecutor‘s questions during cross-

examination. The court ultimately granted the motion to suppress in part, ruling

that some of the custodial statements were improperly obtained. Of those

statements that the court found admissible, only one was presented to the jury in

the prosecution‘s case-in-chief.

Defendant asserts that his conviction and death sentence must be reversed

because the ruling striking his testimony prevented the court from properly

evaluating his motion to suppress in violation of various state and federal

constitutional rights, including his due process rights to a fair trial and to present a

defense. Alternatively, defendant urges that the judgment be vacated and the

15

matter remanded to the trial judge to reconsider his suppression motion in light of

defendant‘s testimony at the hearing. As we will explain, neither reversal nor

vacation of the judgment is required. Even were this court to conclude that the

trial court abused its discretion by striking defendant‘s testimony in its entirety,

any error could not have prejudiced defendant because the custodial statement that

was presented at trial was similar to, and less damaging than, defendant‘s other

properly admitted statements implicating himself in the murder.

a. Background

Defendant was arrested on July 21, 1999. He was taken to the Colorado

Springs police station, where Colorado Springs Detective Derek Graham

conducted an unrecorded interview of defendant. The next day, while still

detained in Colorado Springs, defendant spoke with Los Angeles Police

Department Detective Lindy Gligorijevic and her partner Detective Rick Gonzalez

in a videotaped interview. Four days later, on July 26, defendant made additional

statements to Gligorijevic and Gonzalez, first, while they transported him to the

airport and second, during the flight back to Los Angeles.

Before trial, the defense moved to suppress all four of defendant‘s statements

to the interrogating officers on the ground they were obtained in violation of

Miranda v. Arizona, supra, 384 U.S. 436, arguing both that defendant had not

waived his Miranda rights and that the officers failed to stop their questioning

when defendant invoked his right to counsel. The court held a hearing over the

course of two days.

1. Testimony of Detective Graham

Detective Graham of the Colorado Springs Police Department testified that

he spoke with defendant for approximately three hours, during which time Graham

mostly listened while defendant volunteered a substantial amount of information

16

about the crimes. Graham indicated that he spent the first 30 minutes sitting with

defendant while he and defendant ate hamburgers out on a patio, listening to his

concerns and talking with him about his Miranda rights. When defendant was

then formally advised of his rights and presented with a written waiver form, he

signed the form and agreed to speak with Graham. According to Graham,

defendant never asked for an attorney at any time, either before or after signing the

waiver form or at any point during the three-hour interview.

2. Testimony of Detective Gligorijevic

A transcript of the interrogation conducted by Detectives Gligorijevic and

Gonzales the day after defendant‘s arrest showed that Gligorijevic began her

formal interview by confirming with defendant that he had been advised of and

waived his Miranda rights before speaking with Detective Graham the previous

day. Detective Gligorijevic testified at the hearing that she interrogated defendant

for about two hours, stopping the interview at the point she believed defendant

clearly was asking for counsel.

Detective Gligorijevic testified further that defendant spoke to her and her

partner four days later during the drive to the airport and the flight to Los Angeles.

The conversation began in the car when defendant asked Gligorijevic if she and

Detective Gonzalez were wearing wires or tape recording him. Gligorijevic

assured him that they were not. Defendant then asked whether making a fuller

statement could be used against him. Gligorijevic responded that whatever

defendant said now would not be used against him because they were merely

transporting him and he was ―outside Miranda.‖ According to Gligorijevic,

defendant then spoke with the officers nonstop for hours, providing detailed

information regarding his relationship with Kerr and the events leading up to and

including her death, which Gligorijevic related to the court.

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3. Defendant’s testimony on direct examination

Defendant testified on his own behalf at the hearing. With regard to his

dealings with the arresting officers, defendant testified that at the time of his arrest

in Colorado Springs, he asked how he could speak with a lawyer but the officer

―blew it off.‖ According to defendant, he repeated that question about 30 minutes

later, when Detective Graham and his partner took him into a coffee room at the

police station. Defendant acknowledged at the hearing that he later signed a

written waiver of his Miranda rights, but he explained that he did so because the

officers had led him to believe they would help him.

Defendant also described his interview with the detectives from Los Angeles.

According to defendant, during that interrogation, he repeatedly asked why there

was no one helping him, and told the detectives several times that he was

uncomfortable and wanted to leave the room. Defendant explained at the hearing

that he had not wanted to be in the interrogation room, both because he believed

he was being secretly videotaped and because no one was there speaking for him

or helping him.

4. Cross-examination of defendant

The prosecutor began his cross-examination of defendant by asking him

several questions about his flight back to Los Angeles with Detectives Gligorijevic

and Gonzalez. When the prosecutor then asked defendant whether he told the

detectives during the flight that he had killed Kerr, defense counsel objected.

Specifically, he argued that the question went beyond the scope of direct

examination and was irrelevant to the issue before the court, which was whether

defendant had been told by the detectives while driving to the airport that anything

he said could not be used against him. Counsel acknowledged that he had not

objected when the prosecutor elicited from Detective Gligorijevic the substance of

defendant‘s incriminating statements during the ride to the airport and the flight to

18

Los Angeles. Counsel pointed out, however, that he had not covered that subject

with defendant during his testimony, and argued that the prosecutor‘s cross-

examination had therefore exceeded the scope of direct examination.

The court observed that the subject matter of all of the statements at issue in

the suppression motion seemed ―fair game‖ for questioning, and overruled the

defense objection.

5. Refusal to answer and striking of testimony

When the proceedings resumed after a short recess, defense counsel moved

the court for reconsideration of its prior ruling. Counsel explained that he did not

question defendant about his statements en route to the airport and during the

flight to Los Angeles because the defense position was that those statements must

be suppressed on the ground defendant was told that anything he said would not be

used against him. Counsel also informed the court that although he had advised

defendant not to answer any questions about the flight, defendant was ―more than

willing‖ to answer all questions concerning the time period covered on direct

examination.

The court denied the motion for reconsideration and reaffirmed its prior

ruling. The court emphasized that although defense counsel had questioned

defendant regarding only two of the four statements that had been placed in issue

by the suppression motion, Detective Gligorijevic had provided ―significant

testimony‖ regarding the other two statements, about which the prosecutor was

entitled to cross-examine defendant. When the court subsequently ordered

defendant to answer the prosecutor‘s question, defendant refused to do so. The

court then granted the prosecutor‘s motion to strike all of defendant‘s direct

examination testimony, observing that defendant was not permitted to ―pick and

choose‖ the questions he is willing to answer.

19

6. Rulings on the motion to suppress defendant’s statements to

interrogating officers

The court ruled that defendant‘s statements to Detective Graham during the

30-minute period prior to his signing the waiver form would be suppressed

because he had not been properly advised of his Miranda rights, but that any

statements he made thereafter were admissible.

At trial, the prosecutor elicited defendant‘s postwaiver statements during

Graham‘s testimony.

The court also granted in part and denied in part the motion to suppress

defendant‘s statements to Detectives Gligorijevic and Gonzalez. Relying

primarily on the transcript of the July 22 interrogation in the police station, the

court found that defendant had unequivocally and unambiguously invoked his

right to counsel well before the detectives ceased their questioning, and ordered all

statements after his request for a lawyer to be suppressed. Although the court

declined to suppress the portion of defendant‘s July 22 statement that he made

before invoking his right to counsel, the prosecution did not present that evidence

during its guilt phase case.

Finally, the court ordered that defendant‘s statements to the detectives during

the ride to the airport and the flight to Los Angeles be suppressed in their entirety.

As the court put it, ―basic justice‖ demanded that all of these admissions be

excluded from the prosecution‘s case-in-chief.

b. Discussion

Defendant argues that the court erred by striking his suppression hearing

testimony in its entirety because the question he refused to answer was not

relevant to the issue before the court. He further asserts that the order to strike

prevented the court from accurately evaluating and determining whether all of his

admissions were obtained in violation of Miranda v. Arizona, supra, 384 U.S. 436

20

and must be suppressed. We conclude that defendant is not entitled to relief, as

explained below.

A criminal defendant‘s due process right to defend against the state‘s

accusations includes the right to testify in his or her own behalf. (Chambers v.

Mississippi (1973) 410 U.S. 284, 294; People v. Robles (1970) 2 Cal.3d 205, 215;

People v. Reynolds (1984) 152 Cal.App.3d 42, 45-46.) However, a defendant‘s

right to take the witness stand to offer his or her account of the events in question

coexists with the prosecutor‘s right to fairly test that testimony through cross-

examination. (Fost v. Superior Court (2000) 80 Cal.App.4th 724, 733-734;

People v. Reynolds, at p. 46; see generally Chambers v. Mississippi, at p. 295.)

And it is well settled furthermore that ―[a] defendant cannot, by testifying to a

state of things contrary to and inconsistent with the evidence of the prosecution,

thus indirectly denying the testimony against him, . . . limit the cross-examination

to the precise facts concerning which he testifies.‖ (People v. Cooper (1991) 53

Cal.3d 771, 822; accord, People v. Cornejo (1979) 92 Cal.App.3d 637, 655.)

Courts have long recognized that when a defendant refuses to answer some or all

of a prosecutor‘s relevant questions during cross-examination, the trial court has

discretion to strike the defendant‘s direct testimony, either in part or in its entirety.

(People v. Miller (1990) 50 Cal.3d 954, 999; People v. Reynolds, at p. 47; People

v. McGowan (1926) 80 Cal.App. 293, 298-299.)

In People v. Reynolds, supra, 152 Cal.App.3d 42, the Court of Appeal was

mindful that the trial court‘s order striking all of the defendant‘s direct testimony

in that case ―prevented [the] defendant from exercising a fundamental right.‖ (Id.

at p. 47.) Accordingly, the appellate court recommended that a court exercising its

discretion to strike testimony consider first whether the witness has refused to

submit to cross-examination altogether, rather than refused to answer only one or

more questions. In the latter circumstance, the Court of Appeal suggested, the

21

witness‘s direct testimony need not be stricken in its entirety in every case, and the

court should consider both the motive for the refusal to answer and the materiality

of the answer. The Court of Appeal also suggested that the court consider

solutions short of striking a defendant‘s entire testimony, such as striking only a

portion of the testimony, or instructing the jurors that they may take into account

the refusal to answer when assessing the defendant‘s credibility. (Id. at pp. 47-

48.)

We find that the decision in People v. Reynolds provides a useful framework,

not only for a trial court to follow in exercising its discretion in these

circumstances, but also for a reviewing court to use when assessing an appellant‘s

challenge to the trial court‘s ruling on a motion to strike his or her direct

testimony. We follow the suggested approach here to consider defendant‘s claim

that the court abused its discretion in striking his suppression hearing testimony in

its entirety.

Defendant‘s motive for refusing to answer the prosecutor‘s question appears

to have been a matter of tactics. Defense counsel strongly disagreed with the trial

court‘s ruling rejecting his arguments that the prosecutor‘s line of questioning

went beyond the scope of direct examination and was irrelevant to the issue before

the court, which was whether the detectives had assured defendant that nothing he

said could be used against him. Counsel informed the court, moreover, that he had

advised defendant not to answer any questions about the flight to Los Angeles,

acknowledging that the court would likely strike defendant‘s testimony were

defendant to refuse to respond to the prosecutor‘s question. By accepting

counsel‘s advice and refusing to answer, defendant apparently decided that there

was more utility in keeping out of the record his response to the prosecutor‘s

question than there was in having the court consider his hearing testimony up to

that point. Defendant‘s tactical decision did not exempt him from cross-

22

examination. (Cf. People v. Reynolds, supra, 152 Cal.App.3d at p. 46

[defendant‘s fear of attack by prison inmates for being a ―snitch‖ were he to

answer the prosecutor‘s question, although not baseless, did not constitute a legal

exemption from cross-examination].)

Less clear is whether the prosecutor‘s question asking defendant whether he

told the detectives that he had killed Kerr was material to the issues at the

suppression hearing. We agree with the People that defendant‘s credibility was

central to the outcome of the hearing, which largely pitted defendant‘s word

regarding the timing of his invocation of the right to counsel and the possibility of

an improper inducement to waiving his rights against that of the testifying officers.

Although whether or not defendant admitted to the detectives that he killed Kerr

did not bear directly on either of those disputed issues, it may have been relevant

to his credibility. Were defendant to have said that he told the detectives he had

killed Kerr, that response might have bolstered his credibility, generally speaking,

in that such a statement would have been against his penal interest and could have

been used to impeach him in the event he decided to testify on his own behalf at

trial. (See People v. Seminoff (2008) 159 Cal.App.4th 518, 527 [using similar

reasoning to conclude that the codefendant‘s responses to questions she refused to

answer on 5th Amend. grounds were crucial to an assessment of her credibility in

the suppression hearing].) By contrast, were defendant to deny having confessed

to killing Kerr, his denial might have reflected poorly on his credibility generally,

given Detective Gligorijevic‘s highly detailed testimony relating defendant‘s

account of events leading up to and including the homicide.

Defendant‘s credibility was not critical to whether the statements defendant

made to detectives on the drive to the airport and on the flight to Los Angeles

should be suppressed, however. As previously mentioned, defense counsel had

successfully argued that those statements must be excluded because defendant had

23

been assured by the detectives that anything he said to them at that time could not

be used against him. And as defendant points out, counsel‘s effort to suppress

those statements relied, not on defendant‘s own testimony, but on the testimony of

Detective Gligorijevic.

Even assuming for argument, however, that the court abused its discretion by

declining to consider defendant‘s testimony when ruling on the motion to suppress

and that, had it done so, the court would have suppressed all of the challenged

statements, we conclude that any error was harmless beyond a reasonable doubt.

(Chapman v. California (1967) 386 U.S. 18, 24; People v. Davis (2009) 46 Cal.4th

539, 598.) The court fully suppressed two of the four sets of challenged

statements, and suppressed sizeable portions of the other two. Of those portions of

the statements that the court found admissible, only one of them was presented to

the jury during the prosecution‘s case-in-chief, when Detective Graham recounted

what defendant had said regarding his relationship with Kerr and his activities

around the time of her death.

Specifically, Graham testified that defendant told him that at 1:30 a.m. on the

day of the fire, he and Kerr had had a brief argument at her apartment and that she

was angry when she left in her car. According to defendant, he was driving on the

freeway in the early morning hours when he saw Kerr‘s car in flames and

firefighters at the scene. Defendant explained to Graham that he believed Kerr

was having a sexual relationship with Harvey and that he felt angry and betrayed

by Kerr, particularly because he was paying for her apartment. He also indicated

to the officer that he had formed his suspicions and was feeling angry at Kerr well

before the night of her death.

But what Detective Graham told the jury about defendant‘s relationship with

Kerr and his activities around the time of her death was both cumulative of, and

less damaging than, other testimony and evidence admitted at trial that established

24

defendant‘s guilt. Like Graham, defendant‘s plumbing assistant Heiserman

testified that defendant told him he was upset with Kerr because he suspected she

was having a sexual relationship with Harvey, and that defendant had argued with

Kerr on the night of her death. Both witnesses also indicated that defendant was

angry with Kerr well before her death. But Heiserman also testified that defendant

had expressed a desire to kill Kerr by blowing up her car or setting it on fire. And,

Heiserman informed the jury that defendant admitted following Kerr to Harvey‘s

house where he listened to their conversation, and then strangled her and put her in

the back of her car. Defendant‘s Colorado Springs roommate David Jayne

likewise testified that defendant admitted strangling his girlfriend after secretly

listening to a conversation between her and a man with whom, he believed, she

was sexually involved.

The People point out that the defense did not challenge the evidence that

defendant killed Kerr, but had argued instead that he killed her in the heat of

passion and therefore was guilty of voluntary manslaughter, not murder.

Defendant asserts, however, that defense counsel‘s theory was substantially

impacted by the court‘s rulings striking defendant‘s testimony and refusing to

suppress his admissions to Graham. Had the court suppressed those statements as

well, he posits, it is likely the defense would not have conceded that defendant

killed Kerr.

We find defendant‘s assertion highly speculative, given that defendant made

far more damaging admissions to other witnesses, as discussed above. For a

similar reason, we reject defendant‘s further contention that defense counsel‘s

concession was the only connection between defendant and Kerr‘s death.

Defendant‘s statements to Detective Graham indeed placed defendant at the

location where Kerr‘s burning vehicle had been found. But there was other, strong

evidence connecting defendant to her death, such as defendant‘s call to Heiserman

25

on the morning of Kerr‘s death asking, ―Is she dead?‖ and the mobile telephone

records showing his immediate flight from Southern California. We conclude that

the court‘s striking of defendant‘s testimony at the suppression hearing and refusal

to suppress defendant‘s statements to Graham, even if error, was harmless beyond

a reasonable doubt.

2. Failure to appoint a second attorney

Section 987, subdivision (d), provides trial courts with discretion to appoint

at public expense a second attorney in a capital case ―upon a written request of the

first attorney appointed.‖ Implicitly acknowledging that defense counsel did not

make a request for the appointment of cocounsel, defendant contends that the

court‘s failure, on its own motion, to appoint a second attorney to represent him

violated his various rights under the state and federal Constitutions. We reject

defendant‘s assertion that to protect those constitutional rights, the court had a

duty to appoint cocounsel.

Our decisions have long emphasized that ―[t]he appointment of a second

counsel in a capital case is not an absolute right protected by either the state or the

federal Constitution.‖ (People v. Clark (1993) 5 Cal.4th 950, 997, fn. 22; accord,

People v. Cunningham (2015) 61 Cal.4th 609, 667; People v. Lancaster (2007)

41 Cal.4th 50, 71.) From this it follows that the failure to appoint a second

attorney does not, in itself, implicate any constitutional guarantees.

Defendant asserts nonetheless that the constitutional requirements of

effective representation, heightened reliability, and an individualized

determination of guilt and penalty require capital defendants to be represented by

two attorneys. For support, he points to the recommendation in the 1989

American Bar Association‘s Guidelines for the Appointment and Performance of

Defense Counsel in Death Penalty Cases (1989) (ABA Guidelines) that ―two

26

qualified trial attorneys should be assigned to represent the defendant.‖ (ABA

Guidelines, guideline 2.1.) According to the commentary to this guideline, the

responsibilities of trial counsel in a capital case are ―sufficiently onerous‖ to

require the appointment of two attorneys ―in order to ensure that the capital

defendant receives the best possible representation.‖ (Id., comm. foll. guideline

2.1.)

As defendant acknowledges, this court has long recognized that the

appointment of a second attorney to represent a capital defendant is a decision left

to the trial court‘s discretion, based on a proper showing by the defendant that an

additional attorney is necessary. (Keenan v. Superior Court (1982) 31 Cal.3d 424,

430 (Keenan); People v. Jackson (1980) 28 Cal.3d 264, 287.) We decline

defendant‘s invitation to overrule these decisions and to hold instead that

representation of a capital defendant by a single attorney, because it violates ABA

Guidelines, amounts to constitutionally inadequate performance as a matter of law.

Defendant is correct that the United States Supreme Court has recognized the

ABA Guidelines as ―useful ‗guides‘ ‖ for assessing the reasonableness of

counsel‘s performance in connection with a defendant‘s claim of ineffective

assistance of counsel. (Bobby v. Van Hook (2009) 558 U.S. 4, 7; see Strickland v.

Washington (1984) 466 U.S. 668, 688.) But the high court has also indicated that

the ABA Guidelines are not controlling. (Bobby v. Van Hook, at p. 8.) This court

likewise has observed that the ABA Guidelines are ―far from binding precedent.‖

(People v. Brown (2014) 59 Cal.4th 86, 113.) Aside from his quotation of

guideline 2.1 and its accompanying commentary, defendant fails to offer any

persuasive basis on which to conclude that representation by a single attorney

amounts to ineffective assistance in every capital case.

Nor does defendant provide any support for his contention that the

constitutional requirement of heightened reliability in a capital case is undermined

27

when the judgment of only one attorney is involved. We note that Keenan

emphasized Sixth Amendment concerns when explaining how a trial court should

exercise its discretion under section 987, subdivision (d). For example,

recognizing that ―death is a different kind of punishment from any other, both in

terms of severity and finality,‖ Keenan directed trial courts to be ―particularly

sensitive to insure that every safeguard designed to guarantee defendant a full

defense be observed.‖ (Keenan, supra, 31 Cal.3d at p. 430.) But Keenan also

made clear that the decision to appoint a second attorney in a capital case is one

left to the trial court‘s sound discretion, based on a showing that the additional

attorney is necessary. (Ibid.)

Defendant‘s claim that representation by a single attorney denied him equal

protection under the law is likewise without merit. Section 987, subdivision (d),

authorizes the appointment of a second attorney at public expense in a capital case.

But not all capital defendants are similarly situated because not all capital cases

present a ―genuine need‖ for a second attorney to ―lend important assistance in

preparing for trial or presenting the case.‖ (Keenan, supra, 31 Cal.3d at p. 434.)

We have expressly rejected in another case a capital defendant‘s claim that

the trial court‘s failure to appoint, on its own motion, a second attorney to

represent him infringed his federal constitutional rights under the Sixth and Eighth

Amendments. (People v. Cunningham, supra, 61 Cal.4th at p. 667.) Defendant

has presented no persuasive grounds for disturbing that prior conclusion.

3. Admission of Kerr’s statements regarding her fear of defendant

Defendant was charged with the crimes of murder, stalking, and arson. In

connection with the stalking count, the trial court permitted the prosecution to

elicit from several witnesses Kerr‘s out-of-court statements regarding her fear of

defendant. (See former § 646.9, subd. (e), as amended by Stats. 1998, ch. 825,

28

§ 4, p. 5162; id., ch. 826, § 1, p. 5166; CALJIC No. 9.16.1 (1999 rev.) (6th ed.

1996) [the crime of stalking under former § 646.9 requires a showing that the

harassing conduct directed at a specific person actually caused that person

―substantial emotional distress‖]; cf. People v. Ewing (1999) 76 Cal.App.4th 199,

211-212 [evidence that the victim experienced sleepless nights and had joined a

support group for battered women was insufficient to show that she suffered

substantial emotional distress for purposes of establishing the stalking charge].)

Defendant contends the court erred in admitting Kerr‘s out-of-court

statements, in part, because the statements were not admissible under any hearsay

exception and should have been excluded as more prejudicial than probative under

Evidence Code section 352. His primary argument, however, is that, even if

Kerr‘s statements were relevant to prove the fear element of the stalking charge,

the court‘s limiting instructions were inadequate to prevent the jury from using

those statements for the improper purpose of finding that he killed Kerr

intentionally and with premeditation, rather than in the heat of passion. Although

we conclude that the statements in question were properly admitted, we need not

decide whether the court‘s limiting instructions provided adequate safeguards

against the improper use of that evidence because even if they did not, any error

was harmless.

a. Background

Prosecution witness Mark Harvey testified in large part about his interactions

with Kerr on the evening preceding her death. Over repeated defense objections,

and after extensive argument by the parties over the course of several court days,

the trial court ruled it would permit Harvey to recount several statements Kerr

made to him expressing her fear of defendant and relating that defendant had

threatened to kill her. In ruling the evidence admissible, the court found Kerr‘s

29

expressions of fear fell within the state-of-mind exception to the hearsay rule.

(Evid. Code, § 1250, subd. (a).) In this regard the court found Kerr‘s statements

were both trustworthy and highly relevant to the issue of whether she was afraid of

defendant, an element of the crime of stalking. The court further found that Kerr‘s

statements regarding defendant‘s threats to kill her were also admissible, but as an

admission of a party opponent, not under the state-of-mind exception. In response

to defense counsel‘s objection under Evidence Code section 352, in which he

argued that the evidence of defendant‘s threats was highly prejudicial because the

jury would use this evidence to find intent to kill and premeditation, the court

determined that the probative value of the evidence far outweighed its prejudice.

Acknowledging that the prejudicial impact was considerable, however, the court

indicated it would instruct the jury to consider the evidence only when deciding

the charge of stalking, and for no other purpose. The court also granted defense

counsel‘s request to give the limiting instruction during Harvey‘s testimony, rather

than at the close of evidence.

In accordance with the court‘s ruling, Harvey described for the jury his

conversations with Kerr on the night before her death. As mentioned in the factual

recitation, Kerr had come to Harvey‘s home to babysit while Harvey attended an

AA meeting. After Harvey returned, Kerr went outside to smoke a cigarette and

when she came back inside, she was shaking. When asked what was wrong, Kerr

stated that she did not believe it would be a good idea to accept Harvey‘s earlier

offer to rent her a room in his home because defendant had threatened her. More

specifically, she told Harvey that defendant had threatened to kill Harvey and his

children, if he had to, in order to get to her. The court interrupted Harvey‘s

testimony at this point to instruct the jury about the limited purpose of the

testimony, directing the jury ―not to consider it for . . . proof of an intent to

commit a murder or any sort of proof of premeditation.‖

30

Subsequent to Harvey‘s testimony, the court similarly overruled defense

counsel‘s hearsay and prejudice objections to testimony by three other prosecution

witnesses who related Kerr‘s statements regarding her fear of defendant.

Accordingly, Kerr‘s friend Lynda Farnand testified that Kerr mentioned in three

separate conversations that she was afraid of defendant. As during the Harvey

testimony, the court interrupted the questioning to instruct the jury that the

evidence of Kerr‘s statements to Farnand was being admitted only to show Kerr‘s

state of mind and whether she was afraid of defendant, for purposes of the stalking

charge. When Farnand then testified that Kerr told her defendant once said no one

could have Kerr if he could not have her, the court again admonished the jury that

the evidence was being introduced for the limited purpose of determining whether

or not the victim was afraid for purposes of the stalking count.

Later, over defense counsel‘s Evidence Code section 352 objection, the court

permitted Kerr‘s friend Cheryl Zornes to testify briefly regarding a telephone

conversation in which Kerr told her she was afraid of defendant because ―every

time she turned around [defendant] was there, following her.‖ Another friend,

Kim Hyer, likewise was permitted to testify regarding Kerr‘s statements

suggesting she feared defendant. Specifically, Hyer told the jury that Kerr made

her promise to take care of Kerr‘s young son were anything to happen to her.

Immediately after this part of Hyer‘s testimony, the court reminded the jury that

the limited purpose of this evidence was its relevance to the fear element of the

stalking charge. The court also included a limiting instruction when instructing

the jury prior to its deliberations.

31

b. Discussion

1. Admissibility of Kerr’s statements

Defendant argues that Kerr‘s statements regarding her fear of defendant were

not admissible, either as state-of-mind evidence under Evidence Code sections

1250 and 1252, or under Evidence Code section 352.3 We agree with defendant

that Kerr‘s statements fall into two categories for purposes of analyzing their

admissibility, namely, Kerr‘s statements that she feared defendant, and Kerr‘s

statements indicating that defendant had threatened her. Contrary to defendant‘s

assertions, however, both categories of Kerr‘s statements were properly admitted

below.

Defendant acknowledges that Kerr‘s statements that she feared defendant

were relevant to the fear element of stalking and that they therefore fell within the

scope of the state-of-mind exception under Evidence Code section 1250,

subdivision (a)(1), which allows admission of a hearsay statement when the

declarant‘s statement of his or her then existing state of mind ―is itself an issue in

the action.‖ (See People v. Hernandez (2003) 30 Cal.4th 835, 872 [―A murder

victim‘s fear of the alleged killer may be in issue when the victim‘s state of mind

is directly relevant to an element of an offense‖].) Defendant points out that

before the trial court ruled on the admissibility of Harvey‘s testimony relating

Kerr‘s statements, defense counsel indicated that he did not intend to challenge the

point that Kerr feared defendant. According to defendant, this rendered Kerr‘s

3 Evidence Code section 352 provides that ―[t]he court in its discretion may

exclude evidence if its probative value is substantially outweighed by the

probability that its admission will (a) necessitate undue consumption of time or

(b) create substantial danger of undue prejudice, of confusing the issues, or of

misleading the jury.‖

32

statements inadmissible because they no longer were ―an issue in the action,‖ as

required by Evidence Code section 1250, subdivision (a)(1).

Defendant‘s argument does not succeed. ―[A] fact . . . generally becomes

‗disputed‘ when it is raised by a plea of not guilty or a denial of an allegation [and]

remains ‗disputed‘ until it is resolved.‖ (People v. Rowland (1992) 4 Cal.4th 238,

260; accord, People v. Scott (2011) 52 Cal.4th 452, 471.)

Defendant further argues that Kerr‘s statements that she feared defendant

were inadmissible because defense counsel also offered to stipulate that Kerr told

Harvey she was afraid of defendant. Contrary to defendant‘s assertion, however,

the proposed stipulation was not a concession of the fear element of the stalking

count and therefore did not remove that issue from dispute. In any event, and as

defendant acknowledges, the prosecutor refused the stipulation. It is well settled

that a prosecutor generally cannot be compelled to agree to a stipulation if it would

diminish the persuasiveness and forcefulness of the prosecution‘s case. (People v.

Rogers (2013) 57 Cal.4th 296, 329; People v. Edelbacher (1989) 47 Cal.3d 983,

1007.) Defendant argues nonetheless that the trial court‘s refusal to force the

prosecutor to accept the stipulation was error under Evidence Code section 352.

He relies on Old Chief v. United States (1997) 519 U.S. 172 for support, but that

decision reaffirms the general rule that ―the prosecution is entitled to prove its case

free from any defendant‘s option to stipulate the evidence away.‖ (Id. at p. 189.)

The general rule must bend, the high court explained, ―when the point at issue is a

defendant‘s legal status [as a convicted felon], dependent on some judgment

rendered wholly independently of the concrete events of later criminal behavior

charged against him.‖ (Id. at p. 190.) Defense counsel‘s proposed stipulation

concerned evidence from which the jury could draw the inferences necessary to

reach its verdict on the stalking count; it did not concern defendant‘s status as a

convicted felon. Old Chief‘s exception to the general rule is not applicable here.

33

Nor does defendant persuade that the trial court‘s failure to compel the

prosecutor to accept the proposed stipulation violated his right to due process. He

argues that although Kerr‘s hearsay statements were not admitted to prove the

murder charge, there was a significant risk the jury would conclude defendant

premeditated the murder based on those statements. As explained post, at page 37,

however, any inadequacy in the court‘s limiting instructions could not have

prejudiced defendant.

Equally meritless is defendant‘s assertion that the admission of Kerr‘s

statements violated the confrontation clause, as interpreted in Crawford v.

Washington (2004) 541 U.S. 36. As defendant recognizes, the confrontation

clause is implicated only when testimonial statements are involved. (Id. at p. 51.)

Kerr‘s statements to her friend Harvey were clearly nontestimonial in nature and

therefore fell outside the reach of confrontation clause protections. As Crawford

itself explained, the confrontation clause addresses the specific concern of ―[a]n

accuser who makes a formal statement to government officers‖ because that

person ―bears testimony in a sense that a person who makes a casual remark to an

acquaintance does not.‖ (Ibid.; accord, People v. Cage (2007) 40 Cal.4th 965,

991; see People v. Griffin (2004) 33 Cal.4th 536, 579-580, fn. 19 [statement made

to a friend at school does not constitute ― ‗testimonial hearsay‘ ‖ under

Crawford].)

We likewise reject defendant‘s argument that the trial court erred by

admitting Kerr‘s statements that defendant had threatened to kill her. Defendant

asserts that these statements could not be admitted under the state-of-mind

exception in Evidence Code section 1250 because they showed defendant’s state

of mind, not Kerr‘s. Defendant‘s argument does not succeed, however, because

the statements in question were not being admitted for their truth; that is, they

were not presented to prove that defendant intended to kill her or thought about

34

killing her. Rather, Kerr‘s statements that defendant had threatened to kill her

were relevant circumstantial evidence that she was afraid of defendant. (People v.

Green (1980) 27 Cal.3d 1, 23, fn. 9; People v. Ortiz (1995) 38 Cal.App.4th 377,

389-390.) Because the statements were being offered for a nonhearsay purpose,

they fell outside the reach of Evidence Code section 1250 and other exceptions to

the hearsay rule. The trial court found that evidence of defendant‘s threats to Kerr

were admissible under the hearsay exception for admissions by a party opponent

(Evid. Code, § 1220), rather than as statements not being offered for their truth.

Although this analysis is different from ours, we have explained that ― ‗we review

the ruling, not the court‘s reasoning and, if the ruling was correct on any ground,

we affirm.‘ ‖ (People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11.)

Defendant relies on People v. Lew (1968) 68 Cal.2d 774, to support his

argument that Kerr‘s out-of-court statements relating defendant‘s threats to kill her

were inadmissible because they amounted to double hearsay that concerned

defendant’s state of mind, not Kerr‘s. For several reasons, however, the reasoning

in that case does not assist defendant. In Lew, although the court determined that

the murder victim‘s out-of-court statements that the defendant had threatened to

kill her were relevant to an issue raised by the defense, the evidence was deemed

inadmissible, in part, because the statements referred to the defendant‘s past acts,

rather than threats of future conduct. (Id. at pp. 779-780.) But the decisional basis

for excluding the evidence for that reason, People v. Hamilton (1961) 55 Cal.2d

881, 893, appears to have been largely undermined by the later enactment of the

Evidence Code. Under the Evidence Code, trial courts were granted broad

discretion to determine in every case whether the need for the state-of-mind

evidence outweighed the danger of misuse by the jury. (See People v. Ortiz,

supra, 38 Cal.App.4th at pp. 387-389; 1 Witkin, Cal. Evidence (5th ed. 2012)

Hearsay, § 211, pp. 1070-1071.) The other basis for exclusion in Lew was that the

35

victim‘s statements were made under circumstances indicating they were probably

not trustworthy. (Lew, at pp. 779-780.) We observe, again, that Lew preceded

enactment of the Evidence Code, and that the codified state-of-mind exception

does not mention independent indicia of trustworthiness as part of the required

foundation. Here, moreover, nothing in the record contradicts the trial court‘s

determination that Kerr‘s statements to Harvey and her other friends were

trustworthy. This is not a case like Lew, in which the victim may have claimed

that the defendant had threatened her as a pretext for explaining to a college

professor why she had missed a midterm examination. (Id. at p. 780.)

Finally, we find no merit in defendant‘s argument that Kerr‘s out-of-court

statements should have been excluded as more prejudicial than probative under

Evidence Code section 352. In People v. Green, supra, 27 Cal.3d 1, this court

held that the trial court erred when it allowed the prosecution to present the murder

victim‘s statements that the defendant said ―he would kill her if she left him.‖ (Id.

at p. 23.) In Green, the victim‘s statements were relevant as circumstantial

evidence that she was in fear of the defendant on the morning of the murder and

would not have left with him willingly. We concluded, however, that the evidence

was improperly admitted because the trial court failed to determine that the risk of

undue prejudice from the evidence was outweighed by its probative value. (Id. at

p. 26.) Although a ―trial judge need not expressly weigh prejudice against

probative value — or even expressly state that he has done so‖ (People v. Mickey

(1991) 54 Cal.3d 612, 656), here, the trial court specifically considered the

prejudicial impact of the evidence in question and reasonably determined that the

prejudice was outweighed by the substantial probative value of the evidence with

regard to the fear element of the stalking charge. The court properly exercised its

discretion and its ruling fell well within the bounds of reason.

36

2. Adequacy of the court’s limiting instructions

Defendant contends that even if Kerr‘s out-of-court statements were relevant

to the fear element of the stalking charge, the court abused its discretion in

admitting them, and their admission deprived him of his constitutional rights to

due process, jury trial, and a reliable fact finding process, because the court‘s

limiting instructions were not adequate to prevent the jury from using the evidence

as proof of first degree premeditated murder. In defendant‘s view, it was

impossible for the jury to have limited its consideration of Kerr‘s statements solely

to the stalking charge, and he asserts that this evidence was used by the

prosecution to convince the jury that he premeditated the murder.

We need not resolve whether the court‘s limiting instructions did not

sufficiently protect against the jury‘s improper use of Kerr‘s statements that she

feared defendant. Even if the instructions were inadequate, the error was harmless

under any standard of review because the evidence of premeditation, including

defendant‘s own statements, was extremely strong. For example, several months

before Kerr‘s death, defendant told his plumbing assistant Heiserman that he

wanted to get Kerr ―off his mind‖ by blowing up her car or setting it on fire.

Defendant also told Heiserman, closer in time to the killing, that were Kerr to

refuse to leave her family for him, he ―wouldn‘t be able to live with it or be able to

see her,‖ and again mentioned blowing up her car. Premeditation was further

shown by strong circumstantial evidence, including the secluded location of Kerr‘s

burning car and evidence showing that defendant poured accelerant over Kerr and

the inside of her car, stuffed a burning rag into the gas tank and, when that did not

ignite the accelerant, lit a rolled-up piece of paper on fire and threw it inside the

car to set it ablaze.

37

4. Admission of defendant’s threats against Kerr’s husband

Defendant‘s fellow AA member Mark Harvey testified for the prosecution.

At one point while he was on the witness stand, the court excused the jury and

conducted a hearing to decide the admissibility of Harvey‘s expected testimony

regarding a lengthy conversation he had with defendant about seven months

before Kerr‘s death. Harvey testified at the hearing that, during their conversation,

defendant disclosed that he was having an affair with Kerr, who was married and

living with her husband at the time. According to Harvey, defendant made threats

against Kerr‘s husband, saying he wanted to stab him or get rid of him.

Defense counsel objected to the anticipated testimony, but it was the court

that articulated the basis of the objection, asking counsel if his position was that

the evidence of the threat should be excluded as more prejudicial than probative

under Evidence Code section 352 because the threat was directed at someone other

than Kerr. Although counsel indicated that the court had correctly stated the basis

of the defense objection, the court was not persuaded by the argument and

overruled the objection. In the court‘s view, the probative value of the evidence

— that months before Kerr‘s death, defendant had told Harvey he wanted to kill

Kerr‘s husband — substantially outweighed its prejudicial impact. In accordance

with the court‘s ruling, Harvey testified that defendant told him that he wanted to

stab Kerr‘s husband or ―get him out of the picture.‖

Defendant contends the court erred in admitting this evidence. The evidence

was inflammatory, he asserts, because it involved death threats. And it lacked

probative value because the threat was uttered some seven months before Kerr‘s

death, which meant it had no relevance to whether defendant had killed Kerr in the

heat of passion.

The People assert that defendant cannot raise such grounds for exclusion

under Evidence Code section 352 because defense counsel did not present these

38

particular objections to the trial court during the hearing on the admissibility of the

evidence. This court has explained that an objection must ― ‗fairly inform the trial

court, as well as the party offering the evidence, of the specific reason or reasons

the objecting party believes the evidence should be excluded, so the party offering

the evidence can respond appropriately and the court can make a fully informed

ruling.‘ ‖ (People v. Geier (2007) 41 Cal.4th 555, 609; see Evid. Code, § 353,

subd. (a) [a judgment cannot be reversed on the basis of erroneously admitted

evidence unless the defendant made a timely objection that ―make[s] clear the

specific ground of the objection or motion‖].) The People‘s call for forfeiture is

not well taken here, however, because the record indicates that the grounds for

exclusion defendant now advances on appeal were before the court at the time of

its ruling. In response to defense counsel‘s objection to the evidence, the

prosecutor pointed out that the evidence of the alleged threats would show that

seven months before Kerr‘s death, defendant was contemplating the notion of

homicide and violence in connection with his relationship with her. As the

prosecutor argued, such evidence was highly relevant to the issues of defendant‘s

intent to kill and premeditation, particularly because the defense theory was that

defendant killed during an explosion of rage. Although the court‘s articulation of

the defense position emphasized that the alleged death threats were directed at

someone other than Kerr, the court also would have considered the prosecutor‘s

points, which fairly included a response to the basis for exclusion of the evidence

that defendant presents for our review. Defendant‘s arguments are properly raised

here.

Although we conclude that defendant has not forfeited his claim of error, we

nonetheless reject his contention that the court abused its discretion in admitting

Harvey‘s testimony that defendant told him he wanted to stab Kerr‘s husband and

―get him out of the picture.‖ The evidence was highly probative of defendant‘s

39

frustration with the affair and Kerr‘s attempt to reconcile with her husband. It also

was relevant to show the progression of defendant‘s growing obsession with Kerr,

which included contemplating violence or even homicide against someone who

was coming between him and Kerr. Defendant argues that the evidence was too

remote to be relevant to whether he made a spur-of-the-moment decision to kill

while in the heat of passion. But this argument ignores the relevance of the

evidence with regard to the other theory of homicide, that defendant premeditated

and deliberated Kerr‘s killing. And, contrary to defendant‘s assertion, evidence of

a death threat against a person other than Kerr was not unduly prejudicial in that it

suggested to the jury that he would have killed other people if necessary to get to

Kerr. The evidence was more probative than prejudicial in that it showed both

that defendant wanted Kerr‘s husband ―out of the picture‖ because he was

obstructing defendant‘s relationship with Kerr, and the extent of defendant‘s

obsession with Kerr.

Rulings under Evidence Code section 352 come within the trial court‘s broad

discretion and will not be overturned on appeal absent a showing of an abuse of

that discretion. (People v. Clark (2016) 63 Cal.4th 522, 586.) On this record, we

conclude that the court did not abuse its discretion in rejecting defendant‘s

Evidence Code section 352 challenge to the admission of evidence of defendant‘s

threats against Kerr‘s husband.

5. Exclusion of defense evidence

Defendant asserts that the court erred in sustaining the prosecutor‘s

objections to defense evidence and questioning, and that the individual and

cumulative impacts of the court‘s rulings deprived him of his state and federal

constitutional rights to due process, fair trial, jury determination of the facts, and

meaningful cross-examination. We conclude to the contrary that none of the

40

rulings in question amounted to prejudicial error, under either state law or the state

or federal Constitutions.4

a. Harvey’s relationships with other women

During opening statements, defense counsel remarked that the jurors would

hear testimony by prosecution witness Mark Harvey, who had spent time with

Kerr at his home on the night of her death. According to counsel, several months

before the killing, defendant observed Kerr becoming even closer to Harvey,

which was ―tremendously upsetting‖ to him. Counsel described Harvey as a ―very

nice looking guy‖ who ―spends a lot of time at the Alcoholics Anonymous Club,

dating women [who] are trying to recover from their problems with their alcohol

and drugs.‖

Shortly after the parties‘ opening remarks, but outside the jury‘s presence, the

prosecutor indicated to the court that he intended to move in limine to exclude

evidence of Harvey‘s bad character to which defense counsel had alluded during

4 The People assert that defendant has forfeited his constitutional claims on

appeal, except for his claim of a due process violation, because he did not invoke

constitutional guarantees at trial. The People are correct that defendant failed to

explicitly raise some or all of the constitutional arguments he now advances.

However, ―[i]n each instance, unless otherwise indicated, it appears that either

(1) the appellate claim is of a kind . . . 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.]‖ (People v. Boyer (2006) 38 Cal.4th 412, 441,

fn. 17.) ― ‗No separate constitutional discussion is required, or provided, when

rejection of a claim on the merits necessarily leads to rejection of any

constitutional theory or ―gloss‖ raised for the first time here.‘ [Citations.]‖

(People v. Solomon (2010) 49 Cal.4th 792, 811, fn. 8.)

41

opening statement, specifically, evidence regarding Harvey‘s sexual relationships

with other women. The court conducted a hearing on that motion immediately

before Harvey was set to testify in front of the jury. Harvey stated at the hearing

that he had been attending AA meetings for the past 20 years and that during that

time he had formed romantic relationships with four women, but Kerr was not one

of them. In ruling on the motion, the court indicated that evidence regarding a

relationship between Kerr and Harvey was relevant to whether defendant killed

Kerr in the heat of passion. In the court‘s view, however, evidence of Harvey‘s

sexual conduct with women other than Kerr, was ―totally irrelevant‖ to proving

the existence of that relationship. Defense counsel argued that evidence regarding

Harvey‘s proclivity for ―hitting on‖ women at the AA Club would support the

defense theory that defendant believed Harvey and Kerr were romantically

involved, which would provide the basis of the provocation for the heat of passion

defense. The court was not persuaded and reiterated that it would not allow

evidence regarding other sexual or romantic relationships that Harvey may have

had with the unnamed women. The court explained that, under Evidence Code

section 352, the prejudicial impact of such evidence — that is, the undue

consumption of time required for its presentation — far outweighed any probative

value.

Defendant insists that the court erred in excluding evidence that Harvey had

engaged in sexual relationships with women he met through his involvement in

AA because such evidence was relevant to the reasonableness of defendant‘s

belief that Harvey and Kerr were having a sexual relationship and was therefore

fundamental to his heat of passion defense. As mentioned previously, the court

found evidence that Harvey engaged in romantic relationships with women in AA

to be ―totally irrelevant.‖ Although the court reasonably concluded that such

evidence had no bearing on whether Harvey and Kerr were romantically involved,

42

the evidence appears to have had at least some relevance to defendant‘s suspicions

in this regard. But even if the court mistakenly characterized the evidence as

completely lacking in relevance, the court did not abuse its discretion in excluding

it under Evidence Code section 352. The court weighed the arguably slight

probative value of evidence regarding Harvey‘s romantic relationships with four

women in AA against the likelihood that its admission would require an ―undue

consumption of time‖ (Evid. Code, § 352), and soundly determined that the

balance justified exclusion. Contrary to defendant‘s assertion, the excluded

evidence was far from ―fundamental‖ to his heat of passion defense because

several witnesses testified that defendant suspected Kerr was having a sexual

relationship with Harvey. (Cf. People v. Minifie (1996) 13 Cal.4th 1055, 1070

[concluding that the court erred in excluding evidence of third party threats that

went to the ― ‗heart of‘ ‖ defendant‘s claim of self-defense and that would not

have required an undue consumption of time].) We conclude that no abuse of

discretion occurred.

b. Kerr’s reference to herself as Lisa Brooks

During cross-examination of Mark Harvey, defense counsel confirmed with

the witness that during his conversation with Kerr at his home on the night of her

death, she had referred to defendant as ―Squirrel Boy.‖ In response to further

questioning, Harvey indicated that Kerr did not use that name in defendant‘s

presence. When counsel then asked Harvey whether he knew that Kerr had been

calling herself ―Lisa Brooks‖ as opposed to Lisa Kerr, the prosecutor objected on

relevance and hearsay grounds. The court sustained the objection without

comment, at which point defense counsel indicated he had no further questions

and concluded his cross-examination.

43

Defendant argues that the court‘s ruling was in error because the fact Kerr

referred to herself using defendant‘s last name, rather than her married name, was

not being admitted for its truth, but rather to show her state of mind and thereby to

rebut the prosecutor‘s evidence that Kerr feared defendant.

Counsel made no offer of proof and advanced no argument to counter the

prosecutor‘s relevance and hearsay objections to his cross-examination, and the

trial court did not explain the basis of its ruling sustaining the objection. We

conclude therefore that defendant has forfeited his claim of error. Even were we

to assume that the court abused its discretion in preventing counsel from pursuing

the challenged line of questioning, however, any error was harmless because

Kerr‘s use of the name Brooks was independently established. The parties

stipulated at trial that defendant signed a rental agreement with the names ―Donald

Brooks and Lisa Brooks‖ for an apartment in which Kerr lived. And defendant‘s

acquaintance, Kari, testified that defendant showed him a piece of paper with

―Lisa Brooks‖ written on it. The defense also called a number of witnesses who

testified to the effect that Kerr did not fear defendant. For example, Sheila Peet

told the jury that Kerr seemed happy and excited when she was around defendant.

On this record, even if the court erred in precluding defense counsel from asking

Harvey whether he was aware Kerr had been referring to herself as ―Lisa Brooks,‖

the ruling did not prejudice defendant.

c. Defendant’s receipt of a package containing women’s panties

As previously mentioned, the defense called several witnesses in an attempt

to show that Kerr was not fearful of defendant, but rather that she was happily

involved with him. Over the prosecutor‘s objection, Yreno Lujano testified that

defendant played for him several telephone messages that Kerr had left on

defendant‘s answering machine telling defendant that she loved him and missed

44

him, and thanking him for helping her with her lawyer. However, the court did

not permit defense counsel to elicit from Lujano that he had seen defendant open a

package he had received in the mail that contained a pair of women‘s panties. In

the court‘s view, this evidence could not support a reasonable inference regarding

Kerr‘s state of mind because it lacked sufficient foundation that Kerr was the

person who had sent the package to defendant. In so ruling, the court rejected

defense counsel‘s argument that Lujano‘s statement that he saw defendant open a

package that had panties inside, standing alone, would support an inference that

the panties had come from Kerr. Defendant claims that the court erred in

excluding this evidence.

The relevance, and thus the admissibility, of the evidence in question

depends on the existence of the preliminary fact that Kerr was the person who

mailed a pair of panties to defendant. Defendant, as the proponent of the

evidence, bore the burden of producing evidence in support of that preliminary

fact. (Evid. Code, § 403, subd. (a).) When, like here, the evidence at issue

concerns the ―conduct of a particular person and the preliminary fact is whether

that person . . . so conducted [herself],‖ the evidence is inadmissible ―unless the

court finds that there is evidence sufficient to sustain a finding of the existence of

the preliminary fact.‖ (Evid. Code, § 403, subd. (a)(4).) We have explained that

the trial court‘s role with regard to preliminary fact questions under Evidence

Code section 403, subdivision (a), ― ‗is merely to determine whether there is

evidence sufficient to permit a jury to decide the question.‘ ‖ (People v. Lucas

(1995) 12 Cal.4th 415, 467.) The determination regarding the sufficiency of the

foundational evidence is a matter left to the court‘s discretion. (Id. at p. 466.)

Such determinations will not be disturbed on appeal unless an abuse of discretion

is shown. (People v. Tafoya (2007) 42 Cal.4th 147, 165; People v. Cornwell

(2005) 37 Cal.4th 50, 83-84.)

45

The defense was entitled to rebut the prosecution‘s evidence that Kerr feared

defendant, which supported the stalking charge, with evidence that Kerr did not

fear him. Evidence that Kerr had sent defendant a pair of panties in the mail might

tend to show she was not afraid of him. The preliminary fact necessary to permit

Lujano‘s testimony that he saw defendant open a package that contained women‘s

panties was that Kerr was the person who sent them. This fact may be established

by circumstantial evidence. (See People v. Coddington (2000) 23 Cal.4th 529,

591; see also Evid. Code, §§ 1415-1421 [specifying some of the types of

circumstantial evidence that may authenticate a document].)

Defendant argues that the court erred in excluding Lujano‘s testimony

regarding defendant‘s receipt of the package because the undisputed fact that

defendant and Kerr were involved in a sexual relationship, when coupled with

evidence defendant had received a package of panties in the mail, was sufficient to

allow the jury to infer that the package had come from Kerr. The People counter

that the defense produced no evidence that would adequately support such an

inference.

Here, the court ruled it would permit Lujano to testify that on several

occasions during the period of defendant‘s relationship with Kerr, defendant

played for him tape-recordings of answering machine messages left by Kerr telling

defendant that she loved him. The court also allowed Lujano to testify that during

this same period, defendant showed him love letters from Kerr. Defendant‘s

receipt of the package presumably occurred close in time to the messages and love

letters. From this evidence the jury arguably might have been able to decide that it

was Kerr who had sent the package that Lujano saw defendant open.

We need not decide, however, whether the court erred in excluding Lujano‘s

testimony regarding the package of panties because even if the evidence in

question should have been allowed, there is no reasonable probability defendant

46

would have obtained a more favorable result had it been admitted. (People v.

Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4 [applying prejudice standard for state

law error under People v. Watson (1956) 46 Cal.2d 818, 836, to assess effect of

error in excluding evidence for lack of foundation].) As discussed above, the

purpose of the proffered evidence was to show that Kerr did not fear defendant.

The record shows, however, that the defense elicited strong evidence both during

cross-examination and the defense case itself to make that point. For example, as

noted earlier, prosecution witness Dwayne Kari testified that defendant played for

him a tape-recorded message that Kerr had left on defendant‘s answering machine

that said, ―All I can say about last night was ‗yummy.‘ ‖ Kari also testified that

defendant showed him a piece of paper on which Kerr had written ―Lisa Brooks.‖

Other evidence suggested that Kerr had willingly accepted defendant‘s offer of

financial assistance, including his signing an apartment rental agreement for her

that named ―Donald Brooks and Lisa Brooks‖ as the tenants. And defense witness

Jody Wheeler, a bartender at the bar where defendant often joined his father for

lunch, testified that Kerr would often call the bar asking for defendant, sometimes

10 times a day. On this record, it is not reasonably probable that the addition of

evidence from which it could be inferred that Kerr had mailed a pair of her panties

to defendant would have led the jury to agree with the defense that Kerr did not

fear defendant. Any error in the exclusion of this evidence does not warrant

reversal of the judgment.

d. Domestic violence against Kerr

Among the defense witnesses who testified that Kerr was not fearful of

defendant was Sheila Peet, who owned a plumbing business where defendant

purchased his plumbing supplies. According to Peet, defendant brought Kerr into

the shop on two or three occasions in early 1999, and Kerr talked with Peet about

47

her relationship with defendant. When defense counsel asked the witness what

Kerr had said in this regard, the court held a sidebar conference with the parties to

discuss the anticipated out-of-court statements.

At the sidebar, defense counsel confirmed that the expected testimony was

intended to show Kerr‘s state of mind, specifically, that she did not fear defendant.

The prosecutor objected, however, to counsel‘s plan to elicit Kerr‘s statement to

Peet to the effect that she had left her husband because he was violent and was

trying to kill her. The court found that the proffered testimony regarding why

Kerr left her husband was not relevant to the issue whether she feared defendant,

and would not be admitted. The court also took defense counsel to task for

attempting to ―dirty up the victim.‖

Counsel pushed for admission of Kerr‘s statements regarding her husband

nonetheless, arguing the proffered evidence would explain that, rather than fearing

defendant, Kerr had a motivation to be with him. The court was not persuaded

and reiterated that it would not allow that point to come in under the state-of-mind

exception to the hearsay rule.

When Peet‘s testimony resumed, she told the jury that when Kerr came into

the plumbing shop with defendant she appeared to be ―very happy‖ and talked

about defendant getting her a place to live and retaining an attorney for her.

According to Peet, Kerr did not appear to be afraid of defendant.

Defendant contends the court erred in excluding evidence that Kerr said her

husband was physically abusing her, which would have shown that she had a

reason for being with defendant and did not fear him. According to defendant, the

court‘s exclusion of the evidence on the ground that it ―dirt[ied] up the victim‖

was erroneous because the proffered evidence portrayed Kerr‘s husband, not Kerr,

in a negative light. This was not the basis of the court‘s ruling, however. Rather,

the court excluded the evidence because it found Kerr‘s statements regarding her

48

husband to have no bearing on the issue whether she feared defendant. We

conclude that the court acted well within its discretion in determining that Kerr‘s

statements concerning her husband‘s violence toward her had no tendency to show

her state of mind with respect to defendant.

Defendant observes that the trial court admitted into evidence numerous out-

of-court statements by Kerr offered by the prosecution to show that Kerr feared

defendant. From this he argues for the first time that evidence of Kerr‘s

statements regarding physical abuse by her husband should have been admitted

under authority of Evidence Code section 356.5 We previously have referred to

that provision as the ―[r]ule of completeness‖ (People v. Samuels (2005)

36 Cal.4th 96, 130, italics omitted), and have described its purpose as

― ‗prevent[ing] the use of selected aspects of a conversation, act, declaration, or

writing, so as to create a misleading impression on the subjects addressed.‘ ‖

(People v. Pearson (2013) 56 Cal.4th 393, 460; accord, People v. Williams (2006)

40 Cal.4th 287, 319.) Thus, ― ‗ ― ‗[i]n the event a statement admitted in evidence

constitutes part of a conversation or correspondence, the opponent is entitled to

have placed in evidence all that was said or written by or to the declarant in the

course of such conversation or correspondence, provided the other statements have

some bearing upon, or connection with, the admission or declaration in

evidence.‘ ‖ ‘ ‖ (People v. Harris (2005) 37 Cal.4th 310, 334-335.)

5 Evidence Code section 356 provides: ―Where part of an act, declaration,

conversation, or writing is given in evidence by one party, the whole on the same

subject may be inquired into by an adverse party; . . . when a detached act,

declaration, conversation, or writing is given in evidence, any other act

declaration, conversation, or writing which is necessary to make it understood may

also be given in evidence.‖

49

According to defendant, Kerr‘s statements regarding her husband‘s physical

abuse were admissible under Evidence Code section 356 because it was

misleading to allow the prosecution to present Kerr‘s statements that she feared

defendant without also allowing statements suggesting she had a reason to be with

him.

As a threshold matter, we conclude defendant forfeited his claim that the

proffered evidence was admissible under Evidence Code section 356 because

counsel did not raise that basis for admissibility below. (People v. Pearson, supra,

56 Cal.4th at p. 460.) In any event, Evidence Code section 356 has no application

here. Defendant acknowledges that Kerr‘s statement to Peet regarding her

husband‘s physical abuse of her did not occur in any of the conversations,

presented by the prosecutor, in which Kerr said she feared defendant. By its

terms, Evidence Code section 356 applies ―[w]here part of an act, declaration,

conversation, or writing is given in evidence by one party . . . .‖ (Evid. Code,

§ 356, italics added.) Nor does defendant persuade that the proffered statement

was necessary to the jury‘s understanding of the prosecution‘s evidence regarding

Kerr‘s fear of defendant. (See People v. Farley (2009) 46 Cal.4th 1053, 1103

[trial court was not required under Evid. Code, § 356 to grant the defendant‘s

request to admit numerous additional letters from the defendant to the victim when

several such letters that had been placed into evidence were ― ‗independently

comprehensible‘ ‖ on the relevant topics of intent to kill and premeditation].)

The defense was permitted to introduce evidence to the effect that Kerr did

not fear defendant. This evidence was admitted, not as a matter of completeness

under Evidence Code section 356, but rather because it tended to rebut the

prosecution‘s evidence that Kerr feared defendant. The court determined that

Kerr‘s statement regarding physical abuse by her husband was not relevant to

50

whether she feared defendant. We conclude that the court did not err in excluding

the proffered evidence on that ground.

e. Kerr’s prior conviction for welfare fraud

At the end of the defense case, defense counsel sought admission of evidence

that in March 1998, about one year before her death, Kerr had been convicted of

welfare fraud. Counsel argued that the felony conviction was admissible to

impeach Kerr‘s out-of-court statements regarding her fear of defendant, which had

been admitted for their truth under the state-of-mind hearsay exception.

The court excluded the prior conviction evidence, finding it both irrelevant

and more prejudicial than probative. As the court explained, the evidence was not

relevant to the case because the court had admitted the fear evidence under the

state-of-mind hearsay exception for only a limited purpose, that is, the stalking

charge. Invoking Evidence Code section 352, the court also explained that the

prejudicial impact of the proffered evidence far outweighed its probative value. In

the court‘s view, the welfare fraud conviction lacked any probative value

whatsoever because it was being offered against a dead victim who never testified

at trial.

Defendant argues that the court prejudicially erred by refusing to allow the

defense to use Kerr‘s welfare fraud conviction to impeach her out-of-court

statements that she feared defendant and that he was stalking her, because

preventing the defense from demonstrating Kerr was willing to lie cloaked her

hearsay statements with a false air of truthfulness. Defendant‘s claim does not

succeed: As explained below, even were defendant to show that the court abused

its discretion in excluding the proffered evidence, the error did not prejudice him.

The court‘s stated reason for concluding that the prior conviction evidence

lacked probative value suggests that the court was unaware of Evidence Code

51

section 1202, which allows impeachment of hearsay statements with evidence that

would have been admissible had the declarant testified at trial.6 (See generally

People v. Blacksher (2011) 52 Cal.4th 769, 806-808.) Although this court has not

addressed the issue whether a prior felony conviction may be used as

impeachment evidence under Evidence Code section 1202, the Courts of Appeal

have held that such evidence falls within the purview of that provision. (People v.

Little (2012) 206 Cal.App.4th 1364, 1373-1377; People v. Jacobs (2000)

78 Cal.App.4th 1444, 1449-1452.) The appellate courts also have concluded that,

like the use of prior felony convictions for purposes of impeachment generally

(People v. Castro (1985) 38 Cal.3d 301, 312), the admission of a prior felony

conviction pursuant to Evidence Code section 1202 to impeach the credibility of a

declarant who does not testify at trial is subject to the trial court‘s discretion under

Evidence Code section 352. (People v. Little, at pp. 1377-1379; People v. Jacobs,

at pp. 1452-1453; see People v. Baldwin (2010) 189 Cal.App.4th 991, 1005 [trial

court has discretion under Evid. Code, § 352 to exclude as more prejudicial than

probative evidence of a declarant‘s prior inconsistent statements proffered for

purposes of impeachment under Evid. Code, § 1202].)

Because the court excluded, rather than allowed, the evidence of Kerr‘s

felony welfare fraud conviction, we need not decide in this case whether prior

felony convictions may be admitted pursuant to Evidence Code section 1202 to

impeach the hearsay statements of a declarant who does not testify at trial.

6 In relevant part, Evidence Code section 1202 provides that ―[e]vidence of a

statement or other conduct by a declarant that is inconsistent with a statement by

such declarant received in evidence as hearsay evidence is not inadmissible for the

purpose of attacking the credibility of the declarant though he is not given and has

not had an opportunity to explain or to deny such inconsistent statement or other

conduct.‖

52

Assuming without deciding that evidence of a prior felony conviction may be

admitted under section 1202, we reject defendant‘s assertion that the court

prejudicially erred under Evidence Code section 352 when it prohibited the

defense from presenting the welfare fraud conviction to impeach Kerr‘s statements

admitted under the state of mind exception to the hearsay rule.

In considering whether to admit evidence of a prior felony conviction of a

witness subject to impeachment concerning his or her credibility, the prominent

factors in determining the probative value of the prior conviction include ―whether

the conviction (1) reflects on honesty and (2) is near in time.‖ (People v. Clair

(1992) 2 Cal.4th 629, 654; People v. Woodard (1979) 23 Cal.3d 329, 335-337.)

As defendant points out, Kerr‘s felony welfare fraud conviction involved a crime

of moral turpitude reflecting on her honesty. (See People v. Barnett (1998)

17 Cal.4th 1044, 1128.) Moreover, because the prior conviction occurred in

March 1998, during Kerr‘s relationship with defendant, it clearly was not remote

in time. Finally, and as previously related, the court found that the prior

conviction lacked probative value because it was being offered against a dead

victim who never testified at trial. At the time of the court‘s ruling, however,

People v. Jacobs, supra, 78 Cal.App.4th 1444 established that a prior conviction

could be admitted pursuant to Evidence Code section 1202 to impeach the out-of-

court statement of a declarant who did not testify at trial. (Jacobs, at pp. 1449-

1452.)

We need not determine whether the court abused its discretion by excluding

evidence of Kerr‘s prior felony conviction for lack of probative value, however.

Even if the court‘s ruling was an abuse of discretion, reversal is not warranted

because there is no reasonable probability that a more favorable result would have

occurred had the prior conviction evidence been admitted. (People v. Watson,

supra, 46 Cal.2d at p. 836.) The defense attempted to cast doubt on the veracity of

53

Kerr‘s statements regarding her fear of defendant and his stalking activities with

testimonial evidence from which it could be inferred that Kerr was not afraid of

defendant. For example, as recounted earlier, a fellow plumber and friend of

defendant‘s, Yreno Lujano, testified that he heard a telephone answering machine

message from Kerr telling defendant that she loved him and missed him. The

owner of a plumbing supply store, Sheila Peet, told the jury that when defendant

brought Kerr into the shop with him, Kerr seemed happy and did not appear to be

afraid. In addition, the bartender at the bar where defendant often dined testified

that Kerr sometimes called the bar numerous times a day asking for defendant.

Given the defense evidence that was before the jury, the admission of

documentary proof that Kerr had committed welfare fraud, for the limited purpose

of impeaching her out-of-court statements, would not have led the jury to

disbelieve the prosecution‘s evidence that Kerr feared defendant. Even if the court

erred by preventing the defense from presenting evidence of Kerr‘s prior

conviction for welfare fraud, that error could not have prejudiced defendant.

Defendant contends that the cumulative prejudicial impact of all of the

evidentiary rulings that he challenges in this claim of error rendered his trial

unfair. Whether viewing the asserted evidentiary errors individually or

cumulatively, we conclude that the rulings in question did not deprive defendant

of his right to a fair trial.

6. Admission of photographs

Defendant claims that the trial court‘s admission of inflammatory crime

scene and autopsy photographs showing Kerr‘s charred remains and her soot-filled

respiratory tract, and a photograph of Kerr while alive, violated Evidence Code

section 352 and defendant‘s state and federal constitutional rights to due process

54

and a reliable death verdict. We conclude that the photographs were properly

admitted, as explained below.

a. Crime scene and autopsy photographs

During the prosecution‘s case-in-chief, the prosecutor referred several of its

witnesses to exhibit No. 5, a large board containing six crime scene photographs

of Kerr‘s face, head, and body that were labeled A through F. The last of the

witnesses to be asked about the exhibit No. 5 photographs was Dr. Raffi

Djabourian, who performed the autopsy on Kerr and testified regarding his

findings. When Dr. Djabourian explained that the extensive charring of Kerr‘s

body showed she had suffered a thermal injury from the fire, the prosecutor

referred him to exhibit No. 5C, which depicted Kerr‘s badly charred body after it

had been removed from the car. Dr. Djabourian confirmed that his finding was

consistent with that photograph. Next referring to the entire board of photographs,

the prosecutor asked Dr. Djabourian his opinion as to why a certain area of Kerr‘s

hair and face appeared not to have burned. According to the witness, it may have

been caused by the positioning of the body and the use of accelerant to cause the

fire.

The prosecutor then questioned Dr. Djabourian regarding his findings

following an internal examination of Kerr‘s body during the autopsy. According

to Dr. Djabourian, one of the most significant findings was the presence of soot in

the respiratory system, including inside the mouth and within the larynx, trachea,

and bronchi. The court interrupted the witness‘s testimony to conduct a sidebar

conference regarding defense counsel‘s objection to the admission of exhibit No.

27, which consisted of two autopsy photographs depicting these portions of Kerr‘s

upper respiratory system. Counsel argued that this evidence, and the exhibit No. 5

photographs of Kerr‘s body at the crime scene, were ―too gory for the jury‖ and

55

therefore inadmissible under Evidence Code section 352. The court overruled the

objection, presumably agreeing with the prosecutor that the photographs were

highly relevant to significant issues in the case, including whether Kerr was alive

at the time of the fire.

When Dr. Djabourian‘s testimony resumed and the prosecutor referred him to

exhibit No. 27, the witness indicated that the black discoloration in the larynx and

trachea was soot. Dr. Djabourian told the jury that, based on the distribution of the

soot in the respiratory tract, he had no doubt that Kerr was alive, at least at the

beginning of the fire.

Defendant argues that the photographs in exhibits Nos. 5 and 27 were

unnecessary to prove any fact in dispute, and that they were inflammatory. As

defendant points out, for example, the defense did not contest that there was soot

in Kerr‘s respiratory tract, which rendered photographs depicting that condition

unnecessary.

―The admission of allegedly gruesome photographs is basically a question of

relevance over which the trial court has broad discretion. [Citation.] ‗A trial

court‘s decision to admit photographs under Evidence Code section 352 will be

upheld on appeal unless the prejudicial effect of such photographs clearly

outweighs their probative value.‘‖ (People v. Roldan (2005) 35 Cal.4th 646, 713;

accord, People v. Cage (2015) 62 Cal.4th 256, 283.)

Even if the defense did not contest that Kerr had soot in her respiratory tract,

or that her charred body was found on the floorboard in the car, and was willing to

so stipulate, ― ‗[t]he prosecution was not obligated to ―accept antiseptic

stipulations in lieu of photographic evidence.‖ ‘ ‖ (People v. Johnson (2015) 61

Cal.4th 734, 767.) The autopsy and crime scene photographs were relevant to

several issues, including whether the fire was started with accelerant and whether

Kerr was alive at the time. These issues in turn were relevant to the prosecution‘s

56

theories that defendant premeditated the murder and committed torture. (See

People v. Brents (2012) 53 Cal.4th 599, 617 [photograph of the victim‘s burned

body lying in the trunk of the car, combined with autopsy evidence indicating she

was alive when set on fire, was probative of premeditation and torture].) ―[T]he

jury is entitled to see details of the [victim‘s body] to determine if the evidence

supports the prosecution‘s theory of the case.‖ (People v. Gurule (2002)

28 Cal.4th 557, 624.)

We have examined the objected-to photographs and find they are not unduly

gruesome. Indeed, any ―revulsion they induce is attributable to the acts done, not

to the photographs.‖ (People v. Brasure (2008) 42 Cal.4th 1037, 1054.) The court

did not abuse its discretion in admitting these photographs.

b. Photograph of Kerr while alive

Before opening argument, and outside the jury‘s presence, the prosecutor

informed the court that during opening argument he would be referring to a

number of photographs mounted on display boards. Defense counsel indicated he

had no objection to the prosecution‘s photographs, one of which depicted Kerr

while alive. Nor did defense counsel object when the court allowed the jury to

individually examine the photograph of Kerr after one of the jurors indicated

during the prosecutor‘s opening statement that he had not seen it clearly.

The photograph of Kerr while alive was marked as People‘s exhibit No. 13

and first shown during the redirect examination of Detective Gligorijevic, who

identified the exhibit as a picture of Kerr. The prosecutor elicited from the

detective that she had obtained the photograph during the course of her

investigation. When asked from where she had obtained the photograph, the

detective indicated it had come from a friend of Kerr‘s, at which point defense

counsel objected on the grounds of relevance, hearsay, and lack of personal

57

knowledge. The court immediately overruled the first two grounds for objection

but eventually sustained the objection based on personal knowledge.

Later during trial, Kerr‘s friend Cheryl Zornes confirmed that she had given

Kerr‘s picture to Detective Gonzales, and that the photograph comprising exhibit

No. 13 depicted Kerr. The prosecutor also showed exhibit No. 13 to prosecution

witnesses Mark Harvey, Lynda Farnand, and Dwayne Kari, who likewise

identified Kerr as the person shown in the photograph. At the conclusion of the

guilt phase, the court admitted into evidence all of the prosecution‘s marked

exhibits. Counsel raised no new objections to the exhibits at that time, submitting

the issue of their admissibility on the objections he had raised during trial.

Defendant contends the trial court abused its discretion in admitting the

photograph of Kerr while alive because it created an undue risk of sympathy for

the victim and prejudice against him. He argues that the court‘s ruling also

deprived him of his state and federal constitutional right to due process and

protection against cruel and unusual punishment.

We agree with the People that defendant has forfeited his claim of error on

appeal because defense counsel did not object on these grounds when the

prosecutor used the photograph during opening remarks and while questioning

witnesses. Defendant insists that counsel‘s relevance objection to exhibit No. 13

at the time it was offered into evidence during Detective Gligorijevic‘s testimony

was sufficient to preserve his claim on appeal. We reject his reading of the record.

As summarized above, the record shows that defense counsel did raise a relevancy

objection to Gligorijevic‘s testimony, but never challenged the photograph itself.

Accordingly, he may not challenge its admission here. (See People v. Boyette

(2002 ) 29 Cal.4th 381, 423-424.)

In any event, defendant does not persuade that the court abused its discretion

in admitting the photograph of Kerr while alive. We have long advised trial courts

58

to exercise care when deciding whether to admit during the guilt phase of trial

photographs of a capital murder victim while alive, because of the risk such

evidence ―will merely generate sympathy for the victim[].‖ (People v. Harris,

supra, 37 Cal.4th at p. 331; accord, People v. Osband (1996) 13 Cal.4th 622, 677.)

But the possibility that a photograph of the victim while alive will elicit sympathy

from the jury does not require exclusion if it is otherwise relevant. (Harris, at p.

331; People v. Osband, at p. 677; People v. DeSantis (1992) 2 Cal.4th 1198,

1230.) Here, the photograph was relevant because it permitted the witnesses to

identify Kerr as the person ―about whom they were testifying.‖ (DeSantis, at p.

1230 [upholding on similar grounds the admission of a photograph of the capital

murder victim and his wife while on vacation].) Moreover, our examination of the

photograph suggests no basis on which to conclude that its admission was unduly

prejudicial. Exhibit No. 13 was a two-feet by three-feet poster board, but the

photocopy of the color photograph of Kerr that is mounted on the board measures

eight and one-half by 11 and one-half inches, and the actual image measures four

by 11 inches. The picture shows Kerr in a pair of shorts and a sleeveless shirt,

smiling and standing in what appears to be a park or garden. Although the

photograph arguably posed some risk it would elicit sympathy from the jury,

nothing about the manner in which Kerr‘s likeness was displayed or the

photograph‘s background suggests it was ― ‗particularly calculated‘ ‖ to do so.

(People v. Smithey (1999) 20 Cal.4th 936, 975.) There was no error in admission

of the photograph. Nor did its admission violate defendant‘s federal and state

constitutional rights. (Cf. People v. DeSantis, at p. 1231 [in light of the strong

evidence of guilt, there was little possibility that any sympathy toward the victims

that was generated by the photograph lessened the reliability of the guilt verdict in

violation of the 8th Amend.].)

59

7. Sufficiency of the evidence

The prosecution presented five theories of defendant‘s guilt of first degree

murder: (1) premeditated, deliberate murder, (2) murder during the commission of

kidnapping, (3) murder during the commission of arson, (4) murder by means of

torture, and (5) murder by means of lying in wait. Three of these theories, kidnap-

murder, torture, and lying in wait, were the underpinnings of the three special

circumstances alleged in the case.

The jury found defendant guilty of first degree murder but did not specify the

theory or theories on which it rested its verdict. The jury also found the

kidnapping-murder and torture-murder special-circumstance allegations to be true,

but found the lying-in-wait special-circumstance allegation to be not true.

Defendant does not challenge the sufficiency of the evidence supporting the

lying-in-wait theory of first degree murder. But he argues that the first degree

murder conviction and death judgment must be reversed because the evidence was

insufficient to prove any of the other four theories of first degree murder presented

by the prosecution. He asserts furthermore that there was insufficient evidence

supporting the kidnapping-murder and torture-murder special-circumstance

findings, which likewise would require reversal of the death judgment.

The principles governing our assessment of defendant‘s various challenges to

the sufficiency of the evidence are well settled. We ― ‗ ―must 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. Clark (2011) 52 Cal.4th 856,

942.) The same standard applies when examining the sufficiency of the evidence

supporting a special circumstance finding. (Id. at p. 943.) ―Substantial evidence

60

includes circumstantial evidence and any reasonable inferences drawn from that

evidence.‖ (In re Michael D. (2002) 100 Cal.App.4th 115, 126.)

Defendant‘s sufficiency challenge to the four theories of first degree murder

liability and the special circumstance findings is premised on the same factual

argument. According to defendant, the evidence showed that he confronted Kerr

at her apartment in a fit of jealousy and rage and fatally strangled her, then placed

the body in the back of her car and drove to the freeway off-ramp where he set the

car on fire to hide the killing. As explained below, however, there was evidence in

the record from which a reasonable trier of fact could have rejected that scenario

and found instead that defendant had incapacitated Kerr, that he was aware she

was still alive when he placed her in the back of the car, and that, after deciding

her fate, ultimately drove to the off-ramp to set Kerr and her car on fire. Although

the scenario defendant describes appears plausible, this court‘s role on review does

not involve a reevaluation of the evidence. Rather, ―we presume the existence of

every fact in support of the verdict that could reasonably be inferred from the

evidence.‖ (People v. Booker (2011) 51 Cal.4th 141, 173.)

Under the applicable standard of review, we conclude that the record contains

substantial evidence from which a reasonable trier of fact could find that defendant

committed premeditated and deliberate murder, murder in the commission of

kidnapping and arson, and murder by means of torture, and that substantial

evidence likewise supports the true findings on the kidnapping-murder and torture-

murder special-circumstance allegations.

a. First degree murder based on a theory of premeditation and

deliberation

A ―willful, deliberate, and premeditated killing‖ is murder in the first degree.

(§ 189.) ― ‗Deliberation‘ refers to careful weighing of considerations in forming a

course of action; ‗premeditation‘ means thought over in advance.‖ (People v.

61

Koontz (2002) 27 Cal.4th 1041, 1080.) ―The true test is not the duration of time as

much as it is the extent of the reflection. Thoughts may follow each other with

great rapidity and cold, calculated judgment may be arrived at quickly, but the

express requirement for a concurrence of premeditation and deliberation excludes

from murder of the first degree those homicides . . . which are the result of mere

unconsidered or rash impulse hastily executed.‖ (People v. Thomas (1945)

25 Cal.2d 880, 900-901.)

People v. Anderson (1968) 70 Cal.2d 15, 26-27 identified three categories of

evidence relevant to deciding whether to sustain a verdict of first degree murder

based on premeditation and deliberation: (1) evidence of planning activity prior to

the killing, (2) evidence of the defendant‘s prior relationship with the victim from

which the jury could reasonably infer a motive to kill, and (3) evidence that the

manner in which the defendant carried out the killing ―was so particular and

exacting that the defendant must have intentionally killed according to a

‗preconceived design‘ to take his victim‘s life in a particular way for a ‗reason‘

which the jury can reasonably infer from facts of type (1) or (2).‖ (Italics

omitted.)

The identified categories of evidence are those we ― ‗typically‘ find

sufficient‖ to uphold first degree murder convictions. (People v. Thomas (1992)

2 Cal.4th 489, 517.) But we have also observed that the Anderson factors are

simply an ―aid [for] reviewing courts in assessing whether the evidence is

supportive of an inference that the killing was the result of preexisting reflection

and weighing of considerations rather than mere unconsidered or rash impulse.‖

(People v. Perez (1992) 2 Cal.4th 1117, 1125; accord, People v. Streeter (2012)

54 Cal.4th 205, 242.)

The record in this case discloses ample evidence from which it could be

inferred that defendant acted deliberately and according to a ―preconceived

62

design‖ rather than from a rash impulse. Circumstantial evidence of planning

included evidence regarding the location of Kerr‘s burning car, which defendant

had driven to a secluded freeway off-ramp in the early morning hours when there

was likely to be little traffic, and either had maneuvered or pushed the car down

the embankment, hidden from view, to fake an accident and avoid detection.

Planning also could be inferred from evidence regarding the various materials

defendant used to set Kerr‘s car on fire. Specifically, defendant poured accelerant

over Kerr and the inside of her car, stuffed a burning rag into the gas tank and,

when that failed to ignite the accelerant, lit a rolled-up piece of paper on fire and

threw it inside the car to set it ablaze.

With regard to motive, the record discloses evidence that in the months

preceding the killing, defendant had become obsessed and angry with Kerr. An

acquaintance of defendant testified that defendant told him Kerr was ―screwing

him around,‖ and that defendant threatened to disclose evidence of the affair to

Kerr‘s husband ―if she doesn‘t leave him.‖ Other witnesses testified that

defendant was suspicious and highly possessive of Kerr, that he routinely

monitored her whereabouts and activities, and that he had placed a listening device

inside her home. Defendant‘s plumbing assistant Heiserman testified, for

example, that he and defendant were on a job when defendant parked the van near

Kerr‘s home and was gone for 25 minutes ―to see what was going on.‖ Heiserman

testified, moreover, that in the weeks before Kerr‘s death, defendant appeared

even more consumed by his thoughts of Kerr, telling Heiserman that he wanted

Kerr to leave her husband and son and start a family with him. According to

defendant‘s Colorado roommate, defendant told him that he suspected Kerr was

cheating on him and that, on the night of the killing, he was in the crawl space

underneath the man‘s house when he overheard them having sex. Defendant also

told his roommate that he overheard them belittling his father, which made him

63

angry. And, according to Mark Harvey, while he and Kerr stood outside the front

of his house saying goodnight, Kerr referred to defendant as ―Squirrel Boy.‖

There was also evidence of a deliberate manner of killing. The crime scene

and arson investigation evidence suggested that defendant poured accelerant

around the car‘s interior and directly onto Kerr as she lay on her side, unconscious,

on the backseat floorboard. The evidence also indicated that defendant first

attempted to set the car afire by stuffing a lighted cloth into the gas tank. And,

when that plan did not succeed, he chose a different strategy, lighting a rolled-up

piece of paper on fire and tossing it into the front seat from a safe distance away,

which caused an intense and quick-burning fire.

As described earlier, the record shows additional evidence from which a

rational trier of fact could find a premeditated, deliberate murder. On one or two

occasions several months before Kerr‘s death, defendant told his plumbing

assistant Heiserman that he wanted to get Kerr ―off his mind‖ by blowing up her

car or setting it on fire. And, close in time to the killing, defendant told Heiserman

that were Kerr to refuse to leave her family for him, he ―wouldn‘t be able to live

with it or be able to see her,‖ and again mentioned blowing up her car.

Defendant acknowledges the testimony by the medical examiner that Kerr

was alive but unconscious when the car was set on fire, and that she died of

thermal injuries. But he argues there was no evidence suggesting that he knew

Kerr was alive at that time, thereby precluding a finding that he set out to kill her

in a deliberate and intentional manner by lighting her car on fire. Defendant

asserts that the evidence showed he confronted Kerr at her apartment in a fit of

jealous rage and fatally strangled her, then placed the body in her car and drove to

the freeway off-ramp where he set the car on fire to hide the killing.

Notwithstanding defendant‘s argument, the record discloses substantial

evidence from which a reasonable trier of fact could have rejected defendant‘s

64

reading of the record and found instead that defendant had incapacitated Kerr

before driving her to the off-ramp, and that he knew she was alive, albeit

unconscious, at the time he set her and her car on fire. The evidence showed that

defendant had positioned Kerr‘s body so she was not visible, and he poured

accelerant not only on the interior of Kerr‘s car but also on Kerr herself. From this

evidence the jury could reasonably infer that defendant did so to cause her death,

not simply to cover up his crimes. The evidence showed furthermore that when

defendant called Heiserman some seven hours after firefighters responded to the

scene of Kerr‘s burning car, he ignored Heiserman‘s question about his

whereabouts and asked, ―Is she okay?‖ When Heiserman responded, ―Is who

okay?,‖ defendant said, ―C‘mon Smiley. Is she okay?‖ Heiserman asked what

was going on, and defendant rephrased his question, this time asking, ―Is she

dead?‖ When Heiserman said, ―Yes,‖ defendant started to cry. A reasonable trier

of fact could have inferred from these questions that defendant was asking whether

Kerr had survived the fire. Heiserman further testified about the substance of his

conversation with defendant after defendant had been returned to California

following his arrest in Colorado. As noted earlier, during that conversation

defendant explained that after hiding in the crawl space below Harvey‘s house and

overhearing Harvey and Kerr bad-mouthing him, he confronted Kerr at her car,

strangled her and, ―when she was out,‖ put her in the backseat of her car.

This evidence is more than sufficient to raise an inference that defendant

knew Kerr was alive at the time he drove to the off-ramp and set her and her car

on fire. We therefore conclude there is substantial evidence in the record from

which a reasonable trier of fact could have found beyond a reasonable doubt that

defendant committed a premeditated and deliberate murder.

65

b. First degree felony murder based on a kidnapping-murder

theory and kidnapping-murder special-circumstance finding

We likewise conclude the evidence was sufficient to support both the first

degree murder verdict on a felony-murder theory based on kidnapping, and the

kidnapping-murder special-circumstance finding.

―All murder . . . which is committed in the perpetration of . . . kidnapping . . .

is murder of the first degree.‖ (§ 189.) At the time of defendant‘s crimes, section

207, subdivision (a), as now, provided that ―[e]very person who forcibly . . . steals

or takes, . . . or arrests any person in this state, and carries the person into another

. . . part of the same county, is guilty of kidnapping.‖ (§ 207, subd. (a), as

amended by Stats. 1990, ch. 55, § 1, p. 393.)

The mental state required for felony murder is ―the specific intent to commit

the underlying felony‖ (People v. Gutierrez (2002) 28 Cal.4th 1083, 1140), and

― ‗the evidence must establish that the defendant harbored the felonious intent

either prior to or during the commission of the acts which resulted in the victim‘s

death.‘ ‖ (People v. Ainsworth (1988) 45 Cal.3d 984, 1016.) First degree felony

murder does not require proof of a strict causal or temporal relationship between

the felony and the killing. (Ibid.) Rather, a killing has been ―committed in the

perpetration of‖ the underlying felony within the meaning of section 189 ―if the

killing and the felony are parts of one continuous transaction.‖ (Ainsworth, at p.

1016; accord, People v. Booker, supra, 51 Cal.4th at p. 175.)

The evidence showed that defendant formed an intent to kidnap Kerr prior to

committing the acts that caused her death. Kerr was last seen alive at 1:15 a.m.

when she left Mark Harvey‘s house to drive home to her apartment. Defendant

had told his plumbing assistant Heiserman that he confronted and strangled Kerr

when she got to her car and that when she ―was out,‖ he put her in the backseat.

But Kerr‘s burning vehicle and charred body were not discovered until three hours

66

later, at the bottom of an embankment near a freeway off-ramp that was a 15 to

20-minute drive from Harvey‘s residence. From this evidence, a jury could

reasonably have inferred that defendant formed the intent to kidnap Kerr after

rendering her unconscious, and that he set her and her car on fire only after having

formed that intent. We conclude there is substantial evidence from which a

reasonable trier of fact could have found beyond a reasonable doubt that defendant

formed the intent to commit kidnapping before killing Kerr, and that he committed

both crimes as part of a continuous transaction.7

Defendant argues that his belief he had killed Kerr at her apartment precludes

a finding that moving her from the apartment to the location where her charred

body was discovered constituted a kidnapping. (See People v. Hillhouse (2002)

27 Cal.4th 469, 498 [kidnapping requires a living victim].) As previously

discussed, however (see ante, at p. 65), the record discloses substantial evidence

from which a reasonable trier of fact could have rejected that scenario and found

instead that defendant incapacitated Kerr after confronting her at her car as she

was leaving Harvey‘s house, and that he knew Kerr was still alive, albeit

unconscious, when he placed her in the back of her car and eventually drove to the

off-ramp embankment where he set her and her car on fire.

We likewise reject defendant‘s challenge to the sufficiency of the evidence

supporting the kidnapping-murder special-circumstance finding. The prosecution

alleged that Kerr‘s murder was committed while defendant was engaged in the

commission of kidnapping. (§ 190.2, subd. (a)(17)(B).) To prove that special

7 We reject defendant‘s further argument that the first degree murder verdict

based on a theory of murder perpetrated in the commission of kidnapping was

infected by prejudicial instructional error, as discussed more fully post, at page 75

et seq.

67

circumstance allegation at the time the present crimes occurred, the prosecutor had

to show ―that the defendant had an independent purpose for the commission of the

felony, that is, the commission of the felony was not merely incidental to an

intended murder.‖ 8 (People v. Mendoza (2000) 24 Cal.4th 130, 182; see also

People v. Raley (1992) 2 Cal.4th 870, 902 [inquiring whether the defendant had a

―purpose for the kidnapping apart from murder‖].)

Defendant argues that, even were the jury to have rejected the defense theory

and found instead that he drove to the embankment of the freeway off-ramp to

murder Kerr, the only logical conclusion would be that the kidnapping was merely

incidental to the murder. We conclude that substantial evidence supports the

contrary conclusion.

Here, the record discloses substantial evidence from which a jury could

reasonably infer that defendant had not yet decided Kerr‘s fate after incapacitating

her and moving her into the back of her own car. First, the evidence established

an hours-long gap between the time Kerr said goodbye to Harvey at around 1:15

a.m. to return to her apartment and the firefighters‘ discovery of her burning car

and charred body. Heiserman testified that defendant told him he had confronted

Kerr and strangled her into unconsciousness when she got to her car after leaving

8 Subsequent to the crimes in this case, voters approved the adoption of

section 190.2, subdivision (a)(17)(M), which did away with the independent

felonious purpose requirement for the kidnapping and the arson special

circumstances. That subdivision provides that ―[t]o prove the special

circumstances of kidnapping in subparagraph (B), or arson in subparagraph (H), if

there is specific intent to kill, it is only required that there be proof of the elements

of those felonies. If so established, those two special circumstances are proven

even if the felony of kidnapping or arson is committed primarily or solely for the

purpose of facilitating the murder.‖ (Ibid.; see People v. Brents, supra, 53 Cal.4th

at pp. 608-609, fn. 4.)

68

Harvey‘s house. But it was not until three hours later that firefighters arrived at

the scene of Kerr‘s intensely burning car.

In addition to evidence of the three-hour time gap, there was substantial

evidence regarding the complicated relationship between defendant and Kerr from

which a reasonable jury could infer that defendant was conflicted regarding what

to do with Kerr after he had strangled her. By all accounts, their year-long affair

was tumultuous and consuming. Defendant conveyed to others that he was in love

with Kerr and wanted to marry her, and described their relationship as ―perfect.‖

The evidence showed that defendant was upset and frustrated by Kerr‘s decision to

try to reconcile with her husband. But even shortly before the murder, defendant

continued to profess his love for Kerr and his desire for her to leave her husband

and start a family with him. Moreover, although he suspected that Kerr was

―screwing him around,‖ defendant nonetheless rented an apartment for her after

she left her husband, signing the rental agreement as ―Donald Brooks and Lisa

Brooks.‖

The record further showed that defendant had grown increasingly obsessed

with Kerr and ―tormented by thoughts‖ of her. It is during this period that

defendant made remarks to the effect that he wanted to burn or blow up Kerr‘s car.

Although the prosecutor used such statements to support his theory of

premeditated murder, a reasonable jury could also have inferred from this

evidence that defendant‘s mental and emotional state was highly unstable close in

time to the crimes. Evidence of defendant‘s complicated relationship with Kerr,

when coupled with evidence of his fragile mental and emotional state, raised a

reasonable inference that defendant was conflicted, confused, and possibly in a

state of panic after rendering Kerr unconscious, and that he decided her fate only

after having placed her on the floorboard of her car and driven off. Indeed, the

arson investigator testified during cross-examination that defendant‘s initial

69

attempt to light the car on fire — by stuffing a burning cloth into the gas tank‘s

filler neck — is a method that is rarely successful, and suggested that defendant

may not have been ―thinking clearly.‖

Viewing the evidence in the light most favorable to the jury‘s true finding

on the kidnapping-murder special-circumstance allegation as we must, we

conclude that substantial evidence supports the conclusion that the kidnapping was

not merely incidental to the murder.

c. First degree felony murder based on an arson-murder theory

Defendant challenges the sufficiency of the evidence supporting the first

degree murder conviction on a felony murder theory based on arson. We conclude

otherwise that substantial evidence supports that basis of first degree murder

liability.

―All murder . . . which is committed in the perpetration of, or attempt to

perpetrate, arson . . . is murder of the first degree.‖ (§ 189.) As previously

discussed, the mental state required for felony murder is ―the specific intent to

commit the underlying felony‖ (People v. Gutierrez, supra, 28 Cal.4th at p. 1140),

and ― ‗the evidence must establish that the defendant harbored the felonious intent

either prior to or during the commission of the acts which resulted in the victim‘s

death.‘ ‖ (People v. Ainsworth, supra, 45 Cal.3d at p. 1016.) A killing has been

―committed in the perpetration of the [underlying felony] if the killing and the

felony are parts of one continuous transaction.‖ (Ibid.)

Defendant argues that his conviction for first degree felony murder based on

arson cannot stand because the arson was merely an afterthought to the killing.

Specifically, he asserts that the arson was for the purpose of concealing Kerr‘s

identity and destroying evidence connecting him to her killing. Defendant‘s

argument is premised on his view of the evidence, which is that he believed he had

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killed Kerr when he strangled her. However, as more fully discussed ante, at

page 65, there was substantial evidence from which a reasonable jury could

conclude that defendant knew Kerr was alive, albeit unconscious, at the time he

doused her and the interior of her car with accelerant and set the car on fire. And

although defendant may have intended to commit arson for the additional purpose

of concealing Kerr‘s identity and his role in her killing, we have observed that

concurrent intent to kill and to commit the target felony does not preclude a felony

murder theory of first degree murder. (People v. Gutierrez, supra, 28 Cal.4th at

p. 1141.) A jury reasonably could infer that the killing and the arson were ―parts of

one continuous transaction.‖ (People v. Ainsworth, supra, 45 Cal.3d at p. 1016.)

d. First degree murder committed by means of torture and torture-

murder special-circumstance finding

One of the prosecution‘s theories of first degree murder was murder

committed by means of torture. (§ 189.) To establish this theory of first degree

murder, the prosecution must prove ―(1) acts causing death that involve a high

degree of probability of the victim‘s death; and (2) a willful, deliberate, and

premeditated intent to cause extreme pain or suffering for the purpose of revenge,

extortion, persuasion, or for any other sadistic purpose.‖ (People v. Cook (2006)

39 Cal.4th 566, 602.)

The prosecution also alleged a torture-murder special circumstance under

section 190.2, subdivision (a)(18), which the jury found to be true. To prove that

special circumstance allegation, the prosecution had to establish that ―defendant

intended to kill and had a torturous intent, i.e., an intent to cause extreme pain or

suffering for the purpose of revenge, extortion, persuasion, or another sadistic

purpose.‖ (People v. Streeter, supra, 54 Cal.4th at p. 237.)

For both first degree murder by means of torture and the torture-murder

special circumstance, the question of sufficiency is directed at evidence of the

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defendant‘s torturous intent. (People v. Hajek and Vo (2014) 58 Cal.4th 1144,

1187; People v. Mincey (1992) 2 Cal.4th 408, 433.) The perpetrator intends to ‗

―cause pain and suffering in addition to death,‖ ‘ and ‗ ―in the course, or as a result

of inflicting pain and suffering, the victim dies.‖ ‘ [Citation.]‖ (People v. Edwards

(2013) 57 Cal.4th 658, 716.)

An intent to cause extreme pain or suffering ― ‗may be inferred from the

circumstances of the crime, the nature of the killing, and the condition of the

victim‘s body.‘ ‖ (People v. Cole (2004) 33 Cal.4th 1158, 1213-1214.)

Considering these factors, we conclude that there was substantial evidence in the

record from which a reasonable jury could have inferred that defendant intended to

cause Kerr extreme pain and suffering for the purpose of revenge, thus supporting

a verdict of murder committed by means of torture and the true finding on the

torture-murder special-circumstance allegation.

Defendant‘s intent to cause extreme pain in order to exact revenge is shown

by evidence regarding the circumstances preceding the killing. Several months

before Kerr‘s death, defendant had become increasingly jealous and possessive of

Kerr, and he was angry and upset that she wanted to reconcile with her husband.

On one or more occasions during this time, defendant indicated to his plumbing

assistant that he wanted to get Kerr ―off his mind‖ by blowing up her car or setting

it on fire. The evidence also suggested that defendant had come to believe that

Kerr was using him for financial support, and he also began to suspect that she

was having a sexual relationship with fellow AA member Mark Harvey.

The record further showed that, driven by his suspicions, defendant had

planted a listening device in Kerr‘s apartment and began following her to her work

and home. Then, on March 24, 1999, after having become even more obsessed

with Kerr, defendant crawled under Harvey‘s house to listen as Harvey and Kerr

talked into the early morning hours. Defendant believed he heard them having

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sex, and he may have overheard Kerr belittling him by referring to him as

―Squirrel Boy.‖ The record indicates that defendant then confronted Kerr, either

at her car as she was leaving Harvey‘s home or after she had returned to her own

apartment. Defendant strangled Kerr into unconsciousness, but he was aware that

she was not dead, and he placed her on her side on the floorboard between the

front and back seats of her own car.

The nature of the killing and the condition of Kerr‘s body further show a

torturous intent. The record indicates that, once having decided Kerr‘s fate,

defendant either drove or pushed the car down the secluded embankment of a

freeway off-ramp. He then doused the car‘s interior and Kerr with a flammable

liquid, and ignited a fire by tossing a burning piece of rolled up paper onto the

driver‘s seat. The accelerant-induced fire burned quickly and intensely,

obliterating Kerr‘s hands, the lower portion of her legs, and her feet. As this court

has observed, ―[f]ire has historically been used as an instrument of torture and is

generally known to cause extreme pain.‖ (People v. Cole, supra, 33 Cal.4th at p.

1203.)

In sum, a reasonable jury could infer from evidence of defendant‘s intense

possessiveness and all-consuming suspicions that Kerr was using him financially

and ―cheating‖ on him with Mark Harvey, coupled with his dousing her and her

car with accelerant and lighting them on fire, that defendant intended to inflict

severe pain on Kerr for the purpose of revenge.

Defendant argues that he could not have intended to inflict extreme pain on

Kerr if he believed she was dead when he set the car on fire. As we have

previously explained, however, there is substantial evidence in the record from

which to infer that defendant knew Kerr was alive when he set the car on fire.

(See ante, p. 65.)

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Referencing the medical examiner‘s conclusion that Kerr was most likely

unconscious when the fire was started, defendant asserts alternatively that, even if

he knew Kerr was alive, he would have known that she was unconscious when the

fire started, and therefore could not have harbored the intent to cause her to suffer.

As defendant acknowledges, for purposes of murder by means of torture,

―there is no requirement that the victim be aware of the pain.‖ (People v. Cole,

supra, 33 Cal.4th at p. 1207; see id. at p. 1228 [awareness of pain is not an

element of the torture-murder special circumstance].) As our decisions have

explained, the torture-murder theory of first degree murder liability is premised on

the defendant‘s intent to cause pain to the victim, not on whether the victim

actually suffered pain. (People v. Wiley (1976) 18 Cal.3d 162, 172-173.) From

this proposition we have observed that a defendant who, intending to inflict pain

and suffering, renders his victim unconscious at the outset of a homicidal attack

―may not assert the victim‘s condition as a fortuitous defense to his own

deplorable acts.‖ (Id. at p. 173.)

Likewise here, the evidence that defendant had incapacitated Kerr by

rendering her unconscious before dousing her body with accelerant and setting her

car on fire does not foreclose the inference that defendant intended to cause her

extreme pain and suffering. That inference was amply supported by the evidence

recounted above.

We conclude that the record contains substantial evidence from which to

infer that defendant intended to cause Kerr extreme pain and suffering for the

purpose of revenge, thus supporting a verdict of first degree murder based on

torture, and the torture-murder special-circumstance finding. We also reject

defendant‘s further assertion that the murder conviction and special circumstance

finding must be overturned because the definition of torture is unconstitutionally

vague. As defendant recognizes, this court has previously rejected the precise

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argument he advances here. (See People v. Chatman (2006) 38 Cal.4th 344, 394-

395.) He provides no persuasive reason for this court to revisit the issue in his

case.

8. Claims of instructional error at the guilt phase

a. Erroneous definition of asportation

Defendant argues that the trial court‘s instruction explaining the elements of

the special circumstance allegation that defendant murdered the victim while

engaged in kidnapping stated an incorrect definition of the asportation

requirement. We agree with defendant that the court erred by instructing the jury

with a definition of asportation that was not in effect at the time of the crimes in

question. We conclude, however, that the error was harmless beyond a reasonable

doubt, and therefore does not require that either the kidnapping-murder special-

circumstance finding or the death sentence be set aside, as explained below.

In connection with the kidnapping-murder special-circumstance allegation,

the jury was instructed under CALJIC No. 8.81.17. (1999 rev.) (6th ed. 1996) that

to establish the truth of the allegation, the prosecution must prove, in relevant part,

that ―[t]he murder was committed while the defendant was engaged in the

commission or attempted commission of kidnapping in violation of section 207 of

the Penal Code.‖ As noted, section 207, subdivision (a), defines the crime of

simple kidnapping and provides, in relevant part, that ―[e]very person who

forcibly . . . steals or takes, or holds, detains, or arrests any person in this state, and

carries the person . . . into another part of the same county is guilty of

kidnapping.‖ The statute does not refer to any particular distance the victim must

be moved. This court has long recognized, however, that the movement, or

asportation, of the victim must be ―substantial in character,‖ not slight or trivial

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(People v. Stanworth (1974) 11 Cal.3d 588, 601), and juries were instructed

accordingly. (See CALJIC No. 9.50 (6th ed. 1996).)

At the time defendant committed his crimes, in March 1999, the question

whether the movement of the victim was ―substantial in character‖ was

determined solely by the actual distance that the victim was moved. (People v.

Caudillo (1978) 21 Cal.3d 562, 572-573.) Decisions applying Caudillo

established that 90 feet did not satisfy the element of asportation as a matter of law

(People v. Green, supra, 27 Cal.3d, at pp. 66-67), but that a movement of 200 feet

was sufficient (People v. Stender (1975) 47 Cal.App.4th 413, 421-423).

In April 1999, this court issued our decision in People v. Martinez (1999)

20 Cal.4th 225, 236 (Martinez), which abandoned as ―ultimately unworkable‖

Caudillo‘s exclusive focus on the actual distance the victim was moved to

determine whether the movement was ―substantial in character.‖ Martinez

adopted in its place a ―totality of the circumstances‖ standard (id. at p. 237) that

took into account not simply the actual distance the victim was moved, but ―the

‗scope and nature‘ of the movement . . . , and any increased risk of harm‖ (id. at p.

236). The 1999 version of the standard instruction was revised accordingly.

Defendant‘s trial was held in 2001 and the court instructed defendant‘s jury

with the 1999 revision of CALJIC No. 9.50. Like the former version of CALJIC

No. 9.50, the revised version told the jury in relevant part that ―[a] movement that

is only for a slight or trivial distance is not substantial in character.‖ The jury also

was told, however, pursuant to this revision, that ―in determining whether a

distance that is more than slight or trivial is substantial in character, you should

consider the totality of circumstances attending the movement, including, but not

limited to, the actual distance moved, or whether the movement increased the risk

of harm above that which existed prior to the movement or decreased the

likelihood of detection, or increased both the danger inherent in a victim‘s

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foreseeable attempt to escape and the attacker‘s enhanced opportunity to commit

additional crimes.‖ (See CALJIC No. 9.50 (1999 rev.) (6th ed. 1996).)

We agree with defendant, and the People concede, that the court erred by

giving the 1999 version of CALJIC No. 9.50. Martinez expressly stated that

because its holding enlarged the reach of the kidnapping statute, the totality of the

circumstances standard for determining whether the movement of the victim was

substantial could not be applied retroactively to a defendant whose offense was

committed at the time Caudillo was the governing test. (Martinez, supra,

20 Cal.4th at p. 239.) Here, defendant committed the crimes against Kerr in

March 1999, one month before Martinez was issued. The court therefore should

have instructed the jurors with the version of the standard instruction on simple

kidnapping that preceded the revisions prompted by Martinez, which would have

focused their attention only on whether Kerr had been moved ―a substantial

distance . . . [that is] more than slight or trivial.‖

Although we agree with defendant that the court erred by giving the jury the

revised 1999 version of CALJIC No. 9.50, which provided the jury with a more

expansive definition of asportation than the one in effect at the time of defendant‘s

crimes, we conclude that the error was harmless beyond a reasonable doubt.

―Misdescription of an element of a charged offense is subject to harmless

error analysis and does not require reversal if the misdescription was harmless

beyond a reasonable doubt.‖ (People v. Hagen (1998) 19 Cal.4th 652, 670;

accord, People v. Harris (1994) 9 Cal.4th 407, 424.) Notwithstanding defendant‘s

arguments to the contrary, we can say beyond a reasonable doubt that the

instructional error ―did not contribute to the verdict obtained.‖ (Chapman v.

California, supra, 386 U.S. at p. 24.)

The court‘s instruction, although improperly expanding the factual basis on

which the jury could decide whether defendant committed simple kidnapping,

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nonetheless allowed the jury to consider all of the evidence relevant to the issue of

the actual distance Kerr was moved. (See People v. Hagen, supra, 19 Cal.4th at

p. 670.) The revised instruction given to defendant‘s jurors specifically directed

them to consider the ―actual distance‖ the victim was moved. Indeed, our decision

in Martinez contemplated that a jury instructed in accordance with its holding

could decide the asportation element solely on the basis of evidence of the actual

distance the victim was moved: ―While the jury may consider a victim‘s increased

risk of harm, it may convict of simple kidnapping without finding an increase in

harm, or any other contextual factors.‖ (Martinez, supra, 20 Cal.4th at p. 237.)

The instruction given here thus concerned, not the entirety of the definition of

asportation, but rather one of the theories under which the jury was told the

element of asportation could be established, a theory that was ― ‗not itself

necessary for the verdict.‘ ‖ (People v. Harris, supra, 9 Cal.4th at p. 430.)

Because the court‘s instruction on the post-Martinez theories of asportation

included actual distance, we presume, as we must, ―that the jury considered all

relevant evidence relating to [the actual distance the victim was moved].‖ (Harris,

at p. 431.)

This court explained in People v. Harris, supra, 9 Cal.4th 407, that in order

to conclude that an instructional error ― ‗did not contribute to the verdict‘ ‖ within

the meaning of Chapman (Harris, at p. 424) we must ― ‗find that error

unimportant in relation to everything else the jury considered on the issue in

question, as revealed in the record‘ ‖ (id., at p. 430, quoting Yates v. Evatt (1991)

500 U.S. 391, italics omitted). Here, there was compelling, uncontroverted

evidence showing that the actual distance defendant moved Kerr was sufficient to

satisfy the asportation element of simple kidnapping as a matter of law. (See

People v. Caudillo, supra, 12 Cal.3d at p. 574, citing with approval People v.

Stender, supra, 47 Cal.App.3d at p. 423 [a movement of 200 feet is sufficient].)

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Evidence in the record showed two possible locations — either outside Mark

Harvey‘s home or at Kerr‘s apartment — where defendant rendered Kerr

unconscious and moved her into the back of her own car. It is true, as defendant

points out, that nothing in the record expressly indicated the precise number of feet

between either Harvey‘s or Kerr‘s residence and the Hollywood Freeway‘s Roscoe

Boulevard off-ramp where defendant ultimately set Kerr and the car on fire. The

police investigator testified, however, that to drive in the early morning hours from

those locations to the off-ramp would have taken 15 to 20 minutes, and five to 10

m

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