People v. Daveggio & Michaud

Filed 4/26/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S110294

v. )

)

JAMES ANTHONY DAVEGGIO and )

MICHELLE LYN MICHAUD, )

) Alameda County

Defendants and Appellants. ) Super. Ct. No. 134147

____________________________________)

Defendants James Anthony Daveggio and Michelle Lyn Michaud were

each convicted of one count of first degree murder (Pen. Code, § 187, subd. (a)),

two counts of oral copulation in concert by force (id., § 288a, subd. (d)), and one

count of oral copulation on a person under 18 years of age (id., § 288a, subd.

(b)(1)). Daveggio pleaded guilty to the oral copulation counts before trial; the

remainder of the convictions stemmed from the jury’s verdict. The jury also found

true two special circumstances—kidnapping and rape by instrument (id., § 190.2,

subd. (a)(17)(B), (K))—and returned verdicts of death at the close of the penalty

phase. The trial court denied the automatic motions to modify the verdicts (id.,

§ 190.4, subd. (e)) and sentenced defendants to death. This appeal is automatic.

(Id., § 1239, subd. (b).) We affirm the judgment.

I. BACKGROUND

This case arises from the kidnapping, rape by instrument, and murder of

Vanessa Lei Samson; the forcible oral copulation of Sharona Doe; and the oral

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copulation of minor April Doe. At trial, the prosecutor also adduced evidence of

four uncharged sexual offenses.

A. Guilt Phase

1. Prosecution case-in-chief

a. Defendants meet, move in together, and are evicted

Defendants met in 1996. Within a few months of their meeting, Daveggio

moved into the tri-level Sacramento home in which Michaud was residing. They

lived there together until August 1997, when Michaud was evicted. Following the

eviction, defendants began living out of Michaud’s green Dodge minivan. The

minivan had a sliding passenger-side door with a childproof lock, as well as

removable back and middle seats. At some point, defendants removed the middle

seats.

b. Christina Doe incident (uncharged)

Janet and Ted Williams, who were acquainted with defendants, permitted

defendants to stay in their home for a few nights in September 1997. On

September 11, after that stay had concluded, Janet and Ted left town for a few

days. They later discovered that the screen behind their bathroom window was

bent in a manner that appeared consistent with a break-in and that their shower had

been used. On or after September 14, Michaud confessed to Janet that she had

broken in through the bathroom window and stayed in the house with Daveggio.1

The first uncharged sexual offense occurred during this time period.

1 The trial court admitted several pieces of evidence against only one of the

defendants; this evidence was admitted only against Michaud. Because none of

our analysis depends on using evidence limited to one defendant against the other,

we do not separately identify each instance in which evidence was admitted as to

only one defendant.

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The offense involved a close friend of Michaud’s daughter, Rachel Doe. In

mid-September 1997, Rachel was 12 years old, around three months shy of her

13th birthday. Her friend, Christina Doe, was then 13 years old, and lived near the

tri-level. Christina had known Michaud since Christina was four years old, and

sometimes spent time with Michaud when Rachel was not present. By mid-

September 1997, Christina had also been acquainted with Daveggio for roughly

nine months.

One night in September, Michaud knocked on Christina’s door. Christina

testified that Michaud invited her to go run some errands. They left together in the

green minivan, eventually pulling up to and entering a house that Christina had

never visited before. According to Janet Williams, Christina’s later description of

the house’s floor plan appeared to describe the layout of Williams’s home.

Christina and Michaud entered the residence. When they did, Christina

saw Daveggio sitting on the couch. He was watching a television program about

mobsters and at some point told Christina that he collected “like baseball cards of

serial killers.” Michaud was in the room at the time of the comment. When she

later stood up and walked into the kitchen, Daveggio followed almost

immediately. Defendants used methamphetamine in the kitchen and urged

Christina to do the same, notwithstanding her protestations. After Christina

snorted the drugs, Michaud took Christina’s arm and said she had to speak with

her in the restroom.

Once inside the restroom, Michaud locked the door. Michaud told

Christina that “she wanted to party with” Christina. When Christina said no,

Michaud took a handgun from her pants and put it on the counter. Michaud told

Christina, “Don’t worry, it is just for protection”—but then told Christina to take

off her clothes. When Christina refused, Michaud removed Christina’s bra and

licked her chest. When Christina refused to take off the rest of her clothes,

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Michaud undressed her, opened the door, and guided her out. She told Daveggio

that Christina was his “present.”

Daveggio did not look surprised. He walked toward Christina, moved her

toward a bedroom, and began to kiss her, as Michaud removed his pants and

licked his anus. Daveggio then orally and digitally copulated Christina while

Michaud masturbated. When Daveggio stopped, Michaud orally copulated him,

told Christina to do the same, and, when Christina refused, attempted to force

Christina to do so. Daveggio then raped Christina for roughly 15 minutes while

Michaud licked his anus. Eventually Michaud returned to the bathroom with

Christina and instructed her to bathe. Christina testified that while they were

getting dressed, Michaud told her “that if I told anybody that she would kill me.”

c. Aleda Doe incident (uncharged)

A few weeks after the Christina Doe incident, defendants visited a pawn

shop in Reno, Nevada—Daveggio on September 28, Michaud on September 29.

Aleda Doe was a 20-year-old student attending night school in the same city. The

night of September 29, around 10:00 p.m., Aleda began to walk home after class.

Roughly 10 minutes later, a dark-colored van with a light stripe stopped alongside

her. A man she later identified as Daveggio grabbed her, pulled her inside, and

closed the van’s sliding door.

The driver was a thin, pale-faced woman with darker-colored, shoulder-

length hair. Daveggio gave directions to the driver and told Aleda “to stay quiet

and not to say anything.” After groping various parts of Aleda’s body, Daveggio

instructed Aleda to get undressed. Afraid, she partially disrobed; he took off her

bra. Daveggio then sexually assaulted her. At some point during the assault,

Aleda tugged on the driver’s hair to seek help. The driver ignored her.

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After the sexual assault, Daveggio asked Aleda if she was sexually

interested in women and wanted the driver to come to the back of the van. Aleda

did not respond. At some point, the driver put in a cassette tape and began singing

with Daveggio. Daveggio explained to Aleda, a non-native English speaker, that

the song was about “a man from Reno or a man in Reno that killed another man

just to see him die.” Daveggio denied that he had ever killed someone for that

purpose and denied having a gun with him at that time. He also told Aleda that

they could not return her to Reno because he had kidnapped her and was worried

about going to jail.

Aleda attempted to elicit information from the driver. The driver was

defensive and told Aleda that she was asking too many questions. Aleda noticed,

however, that at some point Daveggio had called the driver “Mickey.” Other

witnesses testified that Mickey was one of Michaud’s nicknames.

Aleda also heard Daveggio ask the driver, “So, what do you think? Should

we go ahead and go with the plan?” The driver requested 10 minutes to think

about it. Daveggio then asked the driver what she wanted to do, and said he would

leave the decision up to her. The driver pulled off the freeway and told Aleda to

get out of the van. While Daveggio switched into the driver’s seat, Michaud told

Aleda to count to 20 and to not look back. Aleda complied. Aleda was eventually

able to contact the police, who took her to a hospital at which a nurse collected

samples from her face and neck. At a later date, Aleda identified Daveggio in a

photo lineup. Aleda did not identify the driver, but described her as named

Mickey.

At trial, the court advised the jury that in connection with this incident,

Daveggio was convicted in federal court of kidnapping, conspiracy to commit

kidnapping, and aiding and abetting a kidnapping; and Michaud was convicted of

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kidnapping and aiding and abetting a kidnapping. “Both defendants,” the trial

court instructed, “received substantial prison terms for these convictions.”

After those judgments of conviction were rendered, DNA testing was

conducted on the samples the nurse collected from Aleda. Material included in

some of the samples was consistent with Daveggio’s DNA; the “particular profile

of nine genetic markers” at issue was only “found in approximately one in 510

billion Caucasians.”

d. Rachel Doe incident (uncharged)

Michaud’s daughter Rachel had a boyfriend. After Michaud was evicted,

she asked the boyfriend’s mother if Rachel could stay at the mother’s home. The

mother obliged.

One morning, a few weeks after the Aleda Doe incident, Michaud appeared

at the mother’s house. Michaud told Rachel that she wanted to spend time

together before defendants left for Oregon to look for a new place to live.

After spending a few hours at the home of one of Michaud’s friends (where

methamphetamine was present), Michaud invited Rachel to join the road trip to

Oregon. Rachel accepted the invitation. During the drive, she fell asleep on the

back bench seat. She testified that when she awoke, Daveggio massaged her inner

thigh, and “started to move up to the top of [her] pants like he was going to try to

go inside” them. Rachel moved his hand away and went up to the front passenger

seat. While she spoke with Michaud, Daveggio attempted to massage Rachel’s

shoulder as Rachel “kept trying to push his hand off.”

The van eventually reached a shop with a bathroom. Rachel entered the

bathroom with Michaud and told her what had happened. Rachel testified that

Michaud “assured me, she was like: yes, I will tell him to stop, I will have a talk

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with him about it.” When they returned to the van, Michaud had a conversation

with Daveggio that Rachel could not hear.

The trip resumed. As before, Michaud was driving, Rachel was in the

passenger seat, and Daveggio was in the back. “Out of nowhere,” Rachel testified,

Michaud “started telling me pretty much that she has had sex with everybody I

know. . . . She told me that I was her secret lust.” “She told me that I was like her

fantasy. And she told me that I was going to be an adventure. . . . She said that

. . . they had had adventures in Reno, and . . . that Christina was one of their

adventures, and that I was going to be the next one. . . . She told me that . . . when

I used to get high off marijuana and pass out that she would orally copulate me

and that she liked it best when I was on my period because she liked the taste of

my blood.” When Rachel dropped a beverage, Michaud added: “See, you are

getting wet just thinking about it.”

Michaud said she was going to pull over so they could have a talk. Rachel

objected. Michaud pulled over. When Rachel reached for her tennis shoes so she

could try to run away, Michaud locked the doors. Rachel tried to kick the

window, but Michaud “jumped on top of” her and Daveggio made her seat recline.

Michaud told Rachel that she could “go along with it willingly or they were going

to take it from” her.

Michaud straddled Rachel and unfastened Rachel’s pants. Daveggio

restrained Rachel while Michaud digitally copulated Rachel. More than once,

Rachel said, “Mommy, stop.”

Daveggio tugged Rachel into the back of the van. Defendants pulled

Rachel’s pants down and Daveggio orally copulated her. Rachel was “screaming,

crying, trying to fight.” Meanwhile, Michaud licked Daveggio’s anus and

eventually masturbated.

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Rachel later cried herself to sleep. She awoke outside a motel. The trio

went inside, and Rachel fell asleep in one of two beds. When she awoke the next

morning, Rachel testified, Michaud was next to her on the bed, naked. Michaud

asked if Daveggio could have intercourse with Rachel. Rachel said no.

Defendants then duct taped Rachel’s mouth from ear to ear, took off her pants, and

duct taped her hands behind her back. Daveggio began orally copulating Rachel.

Michaud masturbated while wiping Rachel’s tears. Eventually, Michaud told

Daveggio, “Okay, James, you can stop now.” He stopped. Michaud then engaged

in sexual activity with Daveggio on another bed. Roughly half an hour later, after

Rachel shook her head to indicate that she would not scream, Michaud took the

duct tape off Rachel’s mouth and hands. Before they left the motel that night,

Daveggio shaved his head, purportedly so that a motorcycle gang looking for him

would not recognize him.

They eventually traveled to Christina’s house. Christina saw red marks and

black lines around Rachel’s cheeks, mouth, and wrists. Rachel looked scared.

Christina agreed to travel with Rachel and defendants to Santa Cruz because,

Christina explained, “I felt if they did anything to her that they did to me, I don’t

think I would want to be alone either.” On the way back from Santa Cruz,

Daveggio drove into a wooded area, pointed a gun out the window, and shot it.

Rachel held Christina’s arm, afraid that defendants were going to kill them.

Christina understood Daveggio’s conduct to be a threat indicating that she and

Rachel should keep quiet. Daveggio then drove back on the freeway. According

to Rachel, at some point between her first assault in the van and the return from

Santa Cruz, Michaud “said that if we ever told anybody that they would track us

down and kill us.”

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e. Amy Doe incident (uncharged)

The incident involving Amy Doe occurred within a few weeks of the

incident involving Rachel, sometime around November 1 through 4, 1997. Amy

was then addicted to methamphetamine, which she believed she used at least every

other day.

Amy was at the home of an acquaintance of hers and Michaud’s. Michaud

came over and said she was upset with Daveggio and wanted to go for a drive.

They got in Michaud’s van and went to a motel room that Michaud said she

needed to be in to receive a call. There, they talked for what Amy estimated was

15 or 20 minutes, during which Michaud complained about Daveggio, cried, and

put her head in Amy’s lap. Amy was then hit on the back of the head with an

object that felt to Amy like a gun. Amy was dazed. As she came out of the daze,

fighting and screaming, Daveggio handcuffed one of her wrists and punched her in

the face. Amy’s mouth started bleeding. Defendants both angrily and repeatedly

told Amy “to shut up.” Amy testified that “it seem[ed] like [Daveggio] told me to

shut up or else I would die.” After she was punched, someone cuffed her other

wrist. Around that time, Amy felt a gun put to her head, heard a click, and heard

Daveggio say, “Damn, it jammed.”

Amy was cuffed behind her back. Michaud blindfolded her. Amy

continued resisting. One of the defendants put duct tape on Amy’s mouth,

although it did not stick well because of the blood.

Amy ended up facedown on the bed, at least initially. Michaud cut off

Amy’s shirt and bra, also pulling off Amy’s shoes, pants, and underwear.

Michaud orally copulated Amy, then Daveggio sexually assaulted Amy with

Michaud’s help. Eventually, someone removed the handcuffs and the blindfold

and Michaud slowly removed the duct tape. Both defendants, Amy testified, “told

me that if I said anything I would die.”

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Amy estimated that she was in the motel room for at least six or seven

hours, part of which Michaud spent laundering bloody linens. While Michaud was

out of the room doing laundry, Daveggio told Amy “that it was all [Michaud’s]

idea.”

Before taking Amy back to the acquaintance’s home, defendants went to

the welfare office. Michaud went inside, leaving Amy in the van with Daveggio.

When she returned, she informed Amy that she had already told their mutual

acquaintance that Amy had become intoxicated at a bar, fallen, and injured herself.

The last thing defendants told Amy before they let her go, Amy said, was “[t]hat if

I told anybody I would die.” Defendants returned to the same house roughly four

days later. As Michaud was leaving, Amy testified, “[Michaud] said: I see you

didn’t tell. And [Amy] said: I’m still alive.” Amy did not mention the incident to

law enforcement until around December 2000.

f. Sharona Doe incident (counts 1 & 2)

Sharona Doe knew Daveggio through her two best friends: Daveggio’s

daughters April and Jamie. April had spent some time living in the Sacramento

tri-level with defendants. When visiting April, Sharona met Michaud. At the

house, Sharona had used methamphetamine provided by Daveggio.

On November 3, 1997—around the same time as the attack on Amy Doe—

Sharona was working the night shift at Q-Zar, a laser tag arena in Dublin,

California. She “hadn’t done drugs for a few days.” While Sharona was taking a

cigarette break, defendants pulled up in the van, parked, and walked over to speak

with her. Daveggio offered her methamphetamine. Sharona accepted the offer,

and proposed consuming the drug in the Q-Zar bathroom. Defendants, she

testified, “didn’t like that idea,” so they “went over to the van” instead.

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Michaud got in the back seat. The middle seats were not in the van.

Michaud pretended to chop up the methamphetamine on a mirror and knocked the

mirror over, pretending to spill the drugs. “[S]he sent me over there,” Sharona

testified, “so I could see if there was anything there.”

Sharona did not see anything resembling methamphetamine. When she

began turning around, Michaud attempted to push her down. By that time, the

sliding door was closed. Sharona fought off Michaud, but Daveggio came back

from the driver’s seat and hit Sharona.

Sharona retained consciousness, but was dazed. When she was able to

orient herself, she realized that defendants were restraining her. Daveggio applied

handcuffs behind Sharona’s back. At least one of the defendants bound Sharona’s

legs. Sharona was struggling and crying. Daveggio remained in the back seat

with her, while Michaud moved the van to the bowling alley across the street from

the Q-Zar. Daveggio “started yelling at [Michaud] how it was a stupid place to

be,” Sharona testified, and Michaud drove onto the freeway.

While on the freeway, Sharona complained that the cuffs were causing her

pain. Daveggio removed them. Daveggio told Sharona to orally copulate him.

She complied, crying. The oral copulation lasted for roughly two and a half

minutes. Daveggio told Michaud to exit the freeway. She did, pulling into a

residential area and parking next to a field. Sharona testified that Daveggio

“started complaining about how that was a stupid spot also. Then [Michaud]

started driving again and we parked in front of like a bunch of big houses.”

Michaud moved to the back seat. Daveggio told Sharona that the sliding door was

locked and she could not open it. He also informed Sharona that Michaud was

“going to have her turn.” Michaud removed Sharona’s pants and orally copulated

Sharona for roughly 20 minutes while Daveggio watched, masturbating.

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Sharona was still naked from the waist down. Daveggio photographed her.

He told her that if she “ever told anybody that he would show the picture to

everybody.”

Daveggio took the wheel and headed for the Q-Zar. Defendants “began

talking about how they wouldn’t be able to let [Sharona] go because [she] knew

who they were.” At some point during the incident, both of them threatened to kill

her. Sharona was frightened. She assured defendants that if they released her, she

would fabricate a story to tell the police. Apparently to further that story, Michaud

tore Sharona’s shirt.

Defendants ultimately released Sharona at a gas station a block away from

the Q-Zar. When they did, Daveggio flashed a gun. Sharona called one of her Q-

Zar coworkers for help. The coworker picked her up. When they returned to the

Q-Zar, police were present. Sharona told them the fictional story—“something

about three guys”—“because [she] was still scared.”

Two law enforcement officers testified about their interactions with

Sharona that night. One observed that Sharona did not appear to be under the

influence. Another, Sergeant Michael Hart, “noticed marks around both wrists”

consistent with Sharona’s having been handcuffed. Hart was suspicious about

Sharona’s “three guys” story, having observed “several inconsistencies” between

the version Sharona told to him and the version Sharona told to the other officer.

Sharona repeated the story about “three guys” kidnapping her the next time she

and Hart spoke.

After defendants were arrested, Sergeant Hart spoke with Sharona a third

time. Sharona told Hart that she had lied to him earlier, and defendants were her

actual assailants. Sharona explained that she lied because defendants “were out on

the streets,” and indicated that she would press charges if she could be sure

defendants would not be released from jail and able to harm her. Sharona later

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admitted to a grand jury that she had initially lied to the police. When asked why,

she testified, “Because [defendants] were still on the streets and because they were

my best friends’ dad and my best friends loved their dad, or I thought they did, and

I thought that would really hurt them.”

g. Defendants stay with Michaud’s sister and Rick Boune

Michaud had an older sister, Misty. Misty’s boyfriend was Donald “Rick”

Boune. Boune and Misty moved into a new home around November 1, 1997. Not

long after, defendants stayed with them for a few days. Boune sometimes used

drugs with defendants, including during that visit. By the time of the visit,

Michaud’s green van had a stripe on its side. At some point, Boune had seen a

crossbow inside of it.

One night, Boune and Misty were in their front room with defendants.

Michaud appeared to be reading a book called “The Sex Slave Murders.” The

movie The Silence of the Lambs was on the television. When the movie came on,

Boune testified, Daveggio volunteered that “he had read every book written on

any documented serial killer published.” Daveggio said that “out of all the serial

killers that he read about, the one that he admired the most was Gerald and

Charlene Gallego[].” Daveggio added “that if he was ever going to be a serial

killer, he would be just like Gallegos.”2 During this conversation, Michaud had

serial killer trading cards; the top card was of the Gallegos. Michaud said “that if

they were ever to do anything like that, it would be—they would have a card like

that, she would have a card like that.”

2 Gerald Gallego was convicted of capital murder and sentenced to death

after he and his wife Charlene kidnapped and murdered a Sacramento couple.

(See People v. Gallego (1990) 52 Cal.3d 115, 140–141.) At the penalty phase of

his trial, the prosecution presented evidence that he had abducted and killed two

other women (one of whom he placed on a bed in the rear of his van) and that he

had sexually abused his daughter. (See id. at pp. 154–155.)

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Defendants stayed the night. The next morning, they had an argument.

Boune saw Daveggio point a gun at Michaud’s head and threaten to shoot her.

Daveggio eventually left; Michaud stayed the night. When Daveggio returned the

next morning, Michaud seemed “very happy.” Defendants stayed one more night

and then departed, leaving some of their belongings (including a semiautomatic

gun) at Boune and Misty’s house.

h. Christina and Rachel speak with the police

Christina’s father eventually contacted the police, as did Rachel’s maternal

grandfather Leland. Christina and Rachel spoke with the police sometime after

November 15, 1997. Rachel placed a pretextual phone call to Michaud,

attempting to elicit a confession. Michaud told Rachel, “Do you think I am

stupid? I know what you are trying to do. I am not going to say anything over the

phone.”

Around two weeks after defendants left Misty and Boune’s home, Michaud

returned to retrieve her belongings. Her father Leland was there when Michaud

arrived. When Michaud pulled up in the van, Boune testified, Leland told

Michaud that the police were looking for defendants “for what they had done to

Rachel and Christina.” Michaud denied doing anything to the girls.

i. April Doe (count 3)

As noted, Daveggio’s daughter April lived for at least some amount of time

in the Sacramento tri-level with defendants. By February 1997, she had moved in

with her mother and stepfather, Annette and Chris Carpenter, in Dublin,

California. Her sister Jamie lived with them.

Thanksgiving fell on November 27 that year. Defendants were in town as

of a week or so before. They spent several nights in hotels in the area. Twice

before Thanksgiving, April and Jamie stayed with one or both defendants at the

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Candlewood Inn. Around that time, April, then 16 years old, was using

methamphetamine every day. Daveggio provided her with “a lot” of it. While

staying at the Candlewood, April did not sleep at all.

Defendants joined the Carpenter family for a Thanksgiving meal. Jamie

testified that when they drove from the Candlewood to the Carpenters’ that

morning, the only seats in the car were the driver’s seat and front passenger seat;

the back bench had been removed. While at the house, April testified, she and

Daveggio were together in her room with the door open. Daveggio had a small,

automatic handgun that, according to April, he was “caressing” “like it was his

baby.”

April returned to the Candlewood with defendants that night “[b]ecause

they were going to take me to [the] DMV on Friday to get my license.” This time,

it was just the three of them. Jamie testified that she “started to go but [Daveggio]

said it was better if I just stayed home.” While at the Candlewood, April testified,

she and Daveggio “talked about lots of things,” including “the perfect way to rob

an armored truck.” He also asked April if she “wanted to go on a ‘hunting’ with

him,” which, April testified, Daveggio described as “where you stalk someone to

kill.” April and Daveggio also “talked about fear in people’s eyes”; according to

Daveggio, “it was an adrenaline rush.” “Looking at you,” he told April, “reminds

me of me, you show no remorse.” April testified that Daveggio “explained that

you can’t have feeling[s] for anyone, that if, for instance, my sister Cassie seen

him do something that he would have to kill her, too. . . . He wouldn’t care. He

said you can’t have feelings. . . . [Y]ou can’t care about people like that.”

Daveggio also mentioned that serial killers do not show remorse; they can

just “go on with their everyday life and no one would know what they had done.”

Daveggio had studied serial killers’ flaws and “knew how to get away with it.” He

had also given April a book called “Serial Murderers” while living at the

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Sacramento tri-level. The book “meant a lot to him,” April testified; “he didn’t

want me to lose it.” April had read about Henry Lee Lucas in the book, a man

who “had a girlfriend that used to lure women and they killed a lot of people.”

April asked Daveggio if he had ever killed anyone; Daveggio told her that “he

wouldn’t tell [her] if he did or not because he never wanted [her] to have to lie for

him.”

The conversation lasted around two hours. At the end of it, Daveggio took

a roughly 20-minute shower. While he was showering, Michaud sat next to April.

April testified that Michaud told her—without conferring with Daveggio—that

Daveggio was “going to have oral sex with” April when he finished his shower.

“[Michaud] said that [she] thought [April] would feel better if [April] knew.”

April was frightened and did not know what to do. After Daveggio finished

his shower, he sat on the bed and told April to sit next to him. She complied. He

told her that he loved her, and then started to touch her on the outside of her

clothing.

April said no. Daveggio told her “not to worry,” that she would “enjoy

[her]self.” Michaud went to the bathroom and closed the door. Daveggio

removed April’s pants and underpants. He kneeled on the floor and orally

copulated April for about an hour, while she cried. About 15 or 20 minutes before

the hour ended, April testified, Michaud returned from the bathroom, “layed on

the floor and gave my dad head.” Daveggio eventually stopped.

Testimony of a Candlewood employee indicated that defendants checked

out that morning, November 28. Defendants took April back to the Carpenters’.

Michaud cornered April in the Carpenters’ laundry room. April explained: “She

was trying to talk me into going on a hunt with them . . . . She told me that the day

after Thanksgiving was the biggest shopping day of the year and it would be a

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perfect day to find someone to kill.” April declined; Michaud became angry.

“She told me that we would have to go soon.”

April was with her boyfriend later that day. When they became intimate,

April became upset and started crying. She told him what defendants had done.

April’s boyfriend testified that April broke down crying and told him that

defendants had molested her.

j. Events between the April Doe and Vanessa Samson incidents

On November 30, defendants checked into a Motel 6 in Pleasanton.

Testimony indicated that at 6:51 p.m. that day, they purchased two curling irons

from a Kmart in Hayward.

On December 1, defendants shopped at an adult entertainment store in

Livermore called “Not Too Naughty.” They purchased a cassette tape called

“Submissive Young Girls” and a ball gag.

Elsewhere, that same day, Aleda Doe identified Daveggio to an FBI agent,

selecting Daveggio’s picture from a photo array. On December 2, in connection

with Aleda’s identification, a federal warrant issued for Daveggio’s arrest.

Also on December 2, defendants’ reservation at the Motel 6 in Pleasanton

concluded. The time of their departure was not recorded. Vanessa Samson

disappeared that day.

k. Vanessa Samson incident (count 4)

Vanessa Samson lived with her parents and siblings in Pleasanton. She

worked for an insurance company about a mile from their home, and usually

walked to the office. Samson had never failed to appear for work; she was due in

at 8:00 a.m. and would generally arrive around 10 minutes early. On the morning

of December 2, her mother said goodbye to her sometime between 7:20 and 7:45

a.m.

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That morning, two men were working on a roof overlooking a street on

Samson’s route to her office. Both men heard a scream—and the sound of a van

door sliding shut. One testified that it was then around 7:30 a.m. Both men saw a

forest green van driving away slowly. Though neither witness saw a stripe on the

van, one observed that the van had a light-colored California plate whose first

character was the number three. The other saw that the driver was a woman with

shoulder-length brown or black hair.

Later that morning, at around 9:45 a.m., Michaud was seen at a welfare

office in Sacramento. A witness placed her at a nearby check-cashing facility

around 20 minutes later. That same day, an employee at a recreation area between

Sacramento and Lake Tahoe spotted a dark green “Dodge Caravan or Plymouth

Voyager type vehicle” “parked in campsite number 9.” The vehicle had an

approximately “five-inch wide silver, white-colored stripe that ran down the side

of the vehicle below the windows.” The witness also saw a “slightly overweight”

white male outside the van smoking cigarettes and a white female with “longish

brown hair” inside of it. The witness believed the man saw him, and he testified

the van left within about five minutes after that.

The witness explained that the recreation area had “a self-service pay

station where you fill out your information, your vehicle, people that are staying

with you and various things. You put your money in the envelope pertaining to

what type of service that you’re going to be doing with the facility and you place

that into a metal canister.” An FBI agent later recovered torn-up pay envelopes

from the hotel room in which Michaud was arrested. The envelopes provide the

license plate number of Michaud’s van; indicate that the van was parked in

campsite #9 at Sly Park Recreation Area on December 2, 1997; and bear the name

“James Allen.” The field for “# People” is blank on one of the envelopes. The

other, however, lists the number of people in the van: “3.”

18

A different witness placed defendants at a motel in Lake Tahoe that same

day. The owner-manager of the Tahoe Sundowner Motel testified that a man with

a green van registered under the name Daveggio and gave a Sacramento address

that corresponded with the tri-level. The man requested a smoking room. Within

about half an hour, the witness saw a “white female with black hair” drive the van

off the premises; she returned within about 15 or 20 minutes. Later that night, the

room’s windows were fogged, as though someone had taken a long shower. The

lights were on, and the drapes were closed, but the van was gone. The next

morning at check-out time, the witness entered the room. Aside from a “very light

coffee stain” on the bedspread, the room was “nice and clean, just like they spent

only maybe [a] few hours.” Even “[t]he trash can was empty”; the liner had been

removed.

That same day, another witness placed defendants at the Lakeside Inn and

Casino, across the street from the Douglas County Courthouse in Nevada. At 7:19

p.m., a desk clerk checked in a customer named James Daveggio. The clerk

confirmed the name against Daveggio’s picture identification and recorded his

driver’s license number. Daveggio may have been accompanied by a woman with

“dark hair, dark complexion.”

A former deputy district attorney in Douglas County, Nevada, testified that

in November 1997, he had handled a case in which Michaud was accused of

passing bad checks. The attorney helped set up a future court date: December 3,

1997. He spoke with Michaud in the courthouse the morning of December 3,

before 11:00 a.m. Michaud appeared to be “at ease and very cooperative,” not

distressed.

Meanwhile, back in California that same day, FBI agents visited Misty and

Boune’s home. (Recall that a federal warrant had issued for Daveggio’s arrest the

19

day before, in connection with the Aleda Doe incident.) Boune told the agents that

Michaud was scheduled to appear for court in Lake Tahoe.

Back in Nevada, defendants were at the Lakeside Inn and Casino. FBI

agents arrested Daveggio on the casino floor at around 6:35 p.m. Around the same

time, Michaud was arrested on a state warrant in one of the guest rooms. Items

found inside the room included the Sly Park pay envelopes, torn into a few pieces,

and a cash box containing both a small semiautomatic pistol and baggies with

white powder. A roughly 36-inch piece of yellow nylon rope was recovered from

Michaud’s pocket. The green van was seized and secured. Its plate number began

with a 3.

The next morning, a passing driver found Samson’s body lying in the snow

on the side of the road. A deputy sheriff arrived, and after inspecting the body,

found no signs of life. The body seemed to be frozen and had “what appeared to

be a ligature type mark surrounding the neck.” From the area near Samson’s

body, the deputy recovered a black rope with human hair on it.

l. Autopsy

Dr. Curtis Rollins performed an autopsy, but did not testify during the

prosecutor’s case-in-chief (though he did later testify during the prosecutor’s

rebuttal). During its case-in-chief, the prosecutor called forensic pathologist Brian

Peterson. Dr. Peterson relied on Dr. Rollins’s autopsy report, a toxicology report,

and some black-and-white photographs to conclude that “the cause of death, as

Dr. Rollins stated, is mechanical asphyxia due to ligature strangulation. [¶] All I

would add to that is that I think there was also an aspect of manual strangulation.

But in any event, the cause of death is asphyxia.” Peterson also described deep

bruising on Samson’s gluteus maximus. He also noted that there were no physical

indications that Samson’s extremities had been restrained, but testified that it is

20

possible for a restraint to be applied to someone’s wrists and ankles without

leaving a mark.

On cross-examination, Peterson conceded that he could not exclude the

possibility that Samson had been “asphyxiated to the point of unconsciousness,”

left on the side of the road, and had frozen to death. He also testified that

Rollins’s report did not describe any trauma to Samson’s vaginal or rectal area.

Rollins, Peterson added, had problems with substance abuse; other testimony

indicated that Rollins had a problem with Demerol, which can “affect one’s ability

to attend to detail.”

m. Evidence in the van

The van was searched. A “Submissive Young Girls” tape was retrieved

from the van’s cassette player. A crossbow was in the back. Among other things,

agents found a white towel on the right front passenger floorboard. Wrapped

inside the towel were “one Revlon item with silver color [duct] tape on it, . . . one

leather-type [braided] black belt, one [bunch of] white tissue with red stains on it,

one yellow nylon-type rope, one green ball [gag], and one roll of duct tape.” The

Revlon item appeared to be a curling iron. A second curling iron was recovered

from elsewhere in the van. Both curling irons were modified: the electrical cords

were cut off; “[t]he clasp, metal clasp that is used to help curl your hair, was

removed”; and “there was duct tape around the middle portion of it where . . . the

clasp area [appears to] connect[].”

Forensic testing was done on some of the evidence recovered.

Fingerprinting suggested, among other things, that Daveggio had touched the cash

box, Michaud had touched a curling iron, and Samson had touched a cup found

inside the van. Swabs of a curling iron and the ball gag were subjected to DNA

testing. An expert concluded that Samson’s DNA was present.

21

Criminalist Brian Burritt also testified. Among other things, Burritt

examined the second curling iron for biological material. He found “brown

material in the grooves of the tip of the curling iron” and “on the interior of the tip

of the curling iron.” Packed inside the curling iron, occupying roughly the bottom

half of the 3/4” deep tip, was a pellet of brown material. The pellet, along with

swabs taken from the tip of the curling iron, tested presumptively positive for

blood. Although he could not say to a scientific degree of certainty that the

material was fecal matter, it appeared to be and had the characteristics of fecal

matter. Burritt also observed at least three sets of bite marks on the ball gag.

DNA testing of swabs taken from the curling irons, from the ball gag, and from

napkins found in the van were all consistent with Samson’s DNA profile.

n. Additional evidence

Testimony indicated that before departing for Lake Tahoe, defendants left

several of their belongings at the Carpenters’ house. Items recovered included a

crossbow; a book entitled “Sex Slave Murders”; and a set of serial killer trading

cards, which included a card for Charlene and Gerald Gallego.

2. Defense cases

Daveggio rested without calling any witnesses. Michaud called

Dr. Gregory Reiber, an expert in the area of forensic pathology. Reiber testified

that, in his view, Rollins, who had conducted the autopsy of Samson, had a

“serious substance abuse problem.” Reiber called into question Rollins’s and

Peterson’s conclusion that the cause of death was asphyxiation. Although Reiber

acknowledged a “strong possibility” that Samson died from asphyxiation, he

thought it was possible that she died from exposure, and did not think it was

reasonably medically certain that asphyxiation caused her death. On cross-

examination, he conceded that no clinical observation indicated that Samson froze

22

to death, though he would not have expected otherwise, since hypothermia is “a

diagnosis of exclusion.” Reiber also acknowledged that an absence of vaginal or

rectal trauma does not mean that someone was not assaulted in that area, adding

that in roughly 60 percent of forcible sodomy cases, no anal trauma is visible.

When asked specifically whether he would “expect to find signs of trauma if that

organ were penetrated by a hard metallic object,” he responded, “[i]n many

situations I would. It really depends on the size of the object and the way in which

it is used.”

Michaud also called Dr. Pablo Stewart, “an expert in the area of psychiatric

treatment of alcohol and drug abuse and posttraumatic stress syndrome.” He

testified that Michaud, who had been a prostitute, who was allegedly abused by

her father, and at whom Daveggio had waved a gun, suffered “from complex

posttraumatic stress disorder” and that she had a propensity to be “controlled by

someone else in a relationship.”

Several friends or acquaintances of Michaud also testified. One testified to

incidents suggesting a troubled relationship between Rachel and Michaud. The

witness testified that, on one occasion, Rachel had pushed Michaud down a flight

of stairs. On another occasion, the witness testified, Rachel had threatened to

falsely tell police that the witness had raped (or attempted to rape) her.

Another witness stated that as of November or December 1997, Michaud

was using drugs and was less outgoing than she had previously been; something

was bothering her. Further, although he thought Michaud “would follow where

ever [Daveggio] would go,” the witness had described them as “equal partners”

who “could stand up to each other.”

A third witness testified that Christina and Rachel had admitted being in a

gang, and that Rachel had once falsely accused a schoolmate of trying to pull

down her skirt so that her brother would beat him up. That same witness claimed

23

to have seen Amy Doe every day during the relevant time period, but never saw

bruises or cuts on Amy’s face and never heard from Amy that Amy had been

attacked.

Finally, a witness named Sheri explained that she had known Michaud

since Michaud was 16 years old. Sheri ran a massage parlor where prostitution

occurred. She testified that Michaud’s father Leland would bring clients for

Michaud, and that on at least one occasion, Sheri walked in on Leland and

Michaud having sex with each other. Michaud, Sheri testified, also had a

physically abusive boyfriend named Johnny. Sheri added that before Daveggio

moved into the tri-level, Michaud “was beautiful,” and her children attended a

Catholic private school. After he moved in, she continued, Michaud “quit caring

about herself.”

3. Rebuttal

Daveggio called Vicki Fairbanks, a former romantic partner of his and an

acquaintance of Michaud’s. Among other things, Fairbanks described Michaud as

“obsessed” with Daveggio and as having “manipulated” and “controlled” him.

The prosecutor called Dr. Rollins, who performed the Samson autopsy.

Dr. Rollins discussed his Demerol addiction, explaining why he was “[a]bsolutely,

100 percent” sure that he was not “loaded on Demerol” when he performed the

autopsy.

Rollins had “absolutely no doubt” that Samson “died from a ligature

strangulation.” Samson, in his opinion, “had some of the worst neck injuries I

have ever seen. She had unsurviveable injuries without extensive, aggressive

therapeutic intervention. She would not have lived without an airway being

placed down her throat. . . . She had a reason to be dead, a clear, anatomic reason

to be dead. It is just that she’s in a snow bank.” A rope shown to him by the

24

prosecutor, he added, was “consistent with leaving a furrow mark as [he] observed

in [Samson’s] neck.” He also testified that if Samson had died as a result of

hypothermia, he would have expected to see severe skin discoloration, which

Samson did not have.

Finally, Rollins explained why he did not do a rectal exam. Although

Rollins’s understanding was that trauma appears in only 50 to 56 percent of cases

involving forcible entry of the rectum, had he known at the time of the autopsy

what he knew at the time of trial, he would have performed a rectal exam. But, he

explained, “If there’s no trauma there, I’m not going to . . . mutilate this person’s

remains.”

4. Closing arguments

During his closing, Daveggio conceded that the jury could find him guilty

of first degree murder. His defense focused instead on the truth of the special

circumstances. He contended that defendants abducted Samson for the sole

purpose of murdering her (referring to April’s testimony about going “on a

hunting”), and that they did not rape Samson with the curling irons.

In her closing, counsel for Michaud appeared to adopt Daveggio’s

arguments by reference. Unlike Daveggio, however, she did not concede that she

could be held liable for the first degree murder of Vanessa Samson. She argued

that her culpability was diminished by her posttraumatic stress, which rendered her

particularly susceptible to domination by Daveggio. Concerning the April Doe

incident, Michaud argued that she did not orally copulate April and tried to warn

her to prevent the attack from happening, but was “dominated or controlled” by

Daveggio. She did not seriously dispute her guilt regarding the Sharona counts,

aside from alluding to the presumption of innocence.

25

B. Penalty Phase

Penalty phase witnesses testified that Vanessa Samson was a beloved

daughter, sister, significant other, and friend. To her mother, for example,

“Vanessa was sunshine. She was always positive, always happy. Caring.” To her

father, she was a “fishing buddy,” a “[g]reat[,] [g]reat[,] [b]ubbly” person whose

grave he visited after every workday. Vanessa was buried wearing a ring her

significant other had purchased for her before the last time he saw her. She used

to tell her mother, “Mom, of all your children, I will be the first one to give you a

grandchild.”

Other witnesses called during the penalty phase testified about defendants.

Several discussed additional sexual assaults that Daveggio had allegedly

perpetrated against them. Rachel described an incident in which defendants

plotted to kill Daveggio’s ex-girlfriend.

In her defense, Michaud presented evidence that she was a battered woman

under Daveggio’s control, and that, among other things, she was involved with a

church and had worked as a school crossing guard. Daveggio, for his part, called

witnesses who spoke to his childhood, religiosity, and behavior while in prison.

Daveggio also testified.3 In his testimony, he admitted that defendants

abducted Samson, and that the “number one motive” for the abduction was sexual

gratification. At some point not long after the abduction, Daveggio took the

wheel. Michaud sexually assaulted Samson in the back while he drove. They

eventually stopped at Sly Park, and rented a motel room in which they sexually

assaulted Samson. Daveggio claimed that he wanted to let Samson live, but

Michaud told him he had to kill Samson because she could identify them. After “a

3 Some of Daveggio’s penalty phase testimony is inconsistent with testimony

adduced during the guilt phase. Our description of guilt phase incidents, and our

analysis of defendants’ claims of error, does not take Daveggio’s penalty phase

testimony into account.

26

pretty heated discussion,” “[t]he way it ended was we were going to let

Ms. Samson go.” Daveggio went to the bathroom. By the time he emerged,

Michaud had strangled Samson in the van. Defendants dumped Samson in a snow

bank, returned to the motel room, and eventually proceeded to the Lakeside Inn.

Before the kidnapping, defendants had not definitively decided to kill

Samson, but they agreed that they would do so if it became necessary. Daveggio

denied being “fascinated with the Gallegos.”

Regarding the curling irons, Daveggio said he never touched them aside

from when he purchased them. It was his idea to buy them as sex toys, though

Michaud modified them. Both curling irons were used to penetrate Samson.

Defendants, Daveggio testified, were basically equal partners; Michaud was

“very” capable of standing up to him. “Neither one of us, I don’t believe, was any

control factor.” Daveggio found violence and aggression sexually gratifying, but

Michaud “actually[] more so.”

Daveggio also described prior misconduct by Michaud. He testified that

Michaud told him she had performed a contract killing for the Hell’s Angels and

that she had castrated and hung a “black male” she accused of raping her.

Daveggio admitted that he had considered using the bolts that anchored the

(removable) back and middle van seats to tie down victims, but, after testing, did

not think it would work. He confirmed that defendants assaulted Christina, Aleda,

Rachel, Amy, Sharona, and April. He said the original “plan” regarding Aleda

was to sell her as a sex slave, but the plan was abandoned when Aleda told them

she had a child.

27

II. DISCUSSION

A. Denial of Severance Motions

Defendants moved for severance at various points before and during trial.

It is now argued that the trial court’s denial of their severance motions warrants

reversal of the judgment.4 We find no error.

Penal Code section 1098 provides, in relevant part: “When two or more

defendants are jointly charged with any public offense, whether felony or

misdemeanor, they must be tried jointly, unless the court order[s] separate trials.”

“Joint trials are favored because they ‘promote [economy and] efficiency’ and

‘ “serve the interests of justice by avoiding the scandal and inequity of inconsistent

verdicts.” ’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40 (Coffman

and Marlow).) “When defendants are charged with having committed ‘common

crimes involving common events and victims,’ as here, the court is presented with

a ‘ “classic case” ’ for a joint trial.” (Ibid.) We review a trial court’s denial of a

severance motion for abuse of discretion, based on the facts at the time of the trial

court’s ruling. (Id. at p. 41.) “Even if a trial court abuses its discretion in failing

to grant severance, reversal is required only upon a showing that, to a reasonable

probability, the defendant would have received a more favorable result in a

separate trial.” (Ibid.)

Before trial, defendants argued that their cases should have been severed

because their defenses were antagonistic: While Daveggio’s planned defense to

the charges was that he was not aware that Samson had not consented to the sexual

acts and that he neither planned to kidnap nor murder her, Michaud’s defense was

4 This argument was first raised in an amicus curiae brief filed by the

California Appellate Project. As a general rule, this court does not permit amici

curiae to enlarge the issues on appeal. In this case, however, Daveggio did not

object to the new argument and Michaud expressly adopted it, so we will address

it.

28

that Daveggio controlled her and was the instigator of their joint crimes. The

contention that the nature of these defenses compelled severance relies largely on

a Ninth Circuit case applying rule 14 of the Federal Rules of Criminal Procedure,

U.S. v. Tootick (9th Cir. 1991) 952 F.2d 1078. But as this court has previously

explained, the United States Supreme Court has since clarified, in Zafiro v. United

States (1993) 506 U.S. 534, that “ ‘[m]utually antagonistic defenses are not

prejudicial per se.’ ” (People v. Thompson (2016) 1 Cal.5th 1043, 1081; see

Zafiro, at pp. 538–539.) Rather, antagonistic defenses require severance only

when “ ‘ “the conflict is so prejudicial that [the] defenses are irreconcilable, and

the jury will unjustifiably infer that this conflict alone demonstrates that both are

guilty.” ’ ” (Coffman and Marlow, supra, 34 Cal.4th at p. 41.) “If the moving

party’s guilt can be established by sufficient independent evidence, ‘it is not the

conflict alone that demonstrates . . . guilt,’ and severance is not required.” (People

v. Winbush (2017) 2 Cal.5th 402, 456, quoting Coffman and Marlow, at p. 41.)

Here, although Daveggio and Michaud each may have sought to cast blame

on the other, it was undisputed that both had been involved in some manner in

each of the incidents. The mere fact that defendants “ ‘may attempt to shift

responsibility to each other does not compel severance of their trials[.]’ ” (People

v. Jackson (1996) 13 Cal.4th 1164, 1208.) In any event, there was overwhelming

independent evidence against each defendant, dispelling any notion that the

conflict alone might have established guilt. With respect to the murder charge,

witnesses testified that both defendants discussed “hunting” for victims; witnesses

placed defendants in Lake Tahoe shortly after Samson was kidnapped; and

witnesses connected defendants to the green van. Moreover, forensic evidence

from the van independently linked both defendants to the victim—Michaud’s

fingerprints and Samson’s DNA were found on the curling iron that was used to

sodomize Samson and Samson’s and defendants’ fingerprints were on an ampm

29

Pepsi cup. With respect to the sexual offenses, Sharona Doe and April Doe

testified to the sexual assaults, providing sufficient independent evidence against

each defendant. The trial court did not abuse its discretion in denying defendants’

pretrial severance motions.

Nor did the trial court abuse its discretion in denying Daveggio’s renewed

motion for severance after he pleaded guilty to the sexual offenses. The argument

stresses that, despite Daveggio’s guilty plea, the trial court admitted the testimony

of the victims of the charged and uncharged sexual offenses. There was thus, it is

argued, a “strategic conflict” between defendants: While Daveggio wanted to

inform the jury of his plea early on, Michaud opposed it. The implicit assumption

underlying the argument is that if Daveggio had a separate trial, the evidence of

the sexual offenses could not have been used against him. The assumption is

incorrect. Evidence of the sexual offenses would have been admissible even if the

trial court severed his trial from Michaud’s; as we discuss below, the charged and

uncharged sexual acts were admissible under Evidence Code sections 1101 and

1108 for their bearing on the remaining charge against Daveggio.

We also reject the argument that Daveggio was prejudiced at the penalty

phase because the “juxtaposition of [Daveggio’s] mitigation next to Michaud’s

mitigation evidence prevented the jury from determining the appropriate sentence

for [Daveggio].” As we have noted, to accept this sort of argument “would

eviscerate the statutory preference for joint trials in all capital cases.” (People v.

Winbush, supra, 2 Cal.5th at p. 457.) There is nothing in the record that suggests

that the jury compared Michaud’s mitigation evidence to Daveggio’s, as

defendants suggest, in direct contradiction of the trial court’s instruction to

consider the penalty for each defendant separately. We presume that jurors follow

the instructions provided by the court in the absence of a showing to the contrary.

(See, e.g., People v. Shazier (2014) 60 Cal.4th 109, 150.)

30

Finally, we conclude that the joint trial did not deprive defendants of due

process of law under the federal Constitution. “ ‘We have held that even if a trial

court’s ruling on a motion to sever is correct at the time it was made, a reviewing

court still must determine whether, in the end, the joinder of counts or defendants

for trial resulted in gross unfairness depriving the defendant of due process of law.

[Citations.]’ ” (People v. Soper (2009) 45 Cal.4th 759, 783.) Defendants bear the

burden of establishing that the trial was grossly unfair and denied them due

process of law, and “a judgment will be reversed on this ground only if it is

‘reasonably probable that the jury was influenced [by the joinder] in its verdict of

guilt.’ ” (People v. Merriman (2014) 60 Cal.4th 1, 49.) No gross unfairness has

been established here. And given the strength of the independent evidence against

each of the defendants, we perceive no reasonable likelihood that the jury was

influenced by the joinder in its verdict of guilt.

B. Prior Sexual Misconduct

Defendants contend that the trial court abused its discretion by admitting

evidence of the uncharged incidents involving Christina, Aleda, Rachel, and Amy

Doe. They also claim that the court erroneously instructed the jury as to how to

evaluate the evidence of those incidents, as well as the evidence concerning

Sharona Doe and April Doe. We find no reversible error.

1. Evidentiary issues

a. Background

The prosecution sought to introduce evidence of 15 uncharged sexual

misconduct incidents involving one or both defendants. The trial court excluded

evidence of 11 of those incidents under Evidence Code section 352 (section 352),

on the ground that their prejudicial effect substantially outweighed their probative

value, but admitted evidence of the above-described incidents concerning

31

Christina, Aleda, Rachel, and Amy Doe. The court ruled that the evidence of

these incidents was admissible both under Evidence Code section 1108, which

permits admission of evidence of other sex offenses in a sex crime prosecution,

and under Evidence Code section 1101, subdivision (b), to show defendants’

intent, motive, and common plan. The court further noted that the Aleda Doe

incident was also admissible to prove defendants’ identity as to the Vanessa

Samson charge and appurtenant special circumstances. (See generally People v.

Balcom (1994) 7 Cal.4th 414; People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt).)

In admitting the evidence, the trial court conducted a separate analysis

under section 352. The court explained: “The court has evaluated the uncharged

acts pursuant to Evidence Code section 352, the weighing of the probative value of

the proffered evidence against the prejudicial effect of such evidence. Included in

the criteria used by the court in this weighing process is the following: [¶]

Whether the source of the evidence for the uncharged acts is independent from the

source of the evidence for the charged acts; [¶] whether there is a close proximity

in time from the uncharged acts and the charged acts; [¶] whether there are distinct

similarities between the uncharged acts and the charged acts; [¶] whether the

evidence of the uncharged acts would be cumulative; [¶] whether the evidence

focused on the material facts of the case; [¶] whether the existence of other

damaging information, i.e., the charged acts, minimizes the prejudicial effects; [¶]

whether the uncharged acts are more inflammatory than the charged acts; [and] [¶]

whether the defendants have been convicted of the uncharged acts in another

proceeding.”

b. Discussion

Evidence must be relevant to be admissible (Evid. Code, § 350); that is, it

must have some “tendency in reason to prove or disprove any disputed fact that is

of consequence to the determination of the action” (id., § 210). A plea of “not

32

guilty” “place[s] all material issues in dispute” (People v. Bivert (2011) 52 Cal.4th

96, 117), including a defendant’s intent (People v. Scott (2011) 52 Cal.4th 452,

471). The evidence concerning the uncharged incidents shed light on whether

Daveggio and Michaud had a propensity to commit acts of sexual misconduct (cf.

People v. Reliford (2003) 29 Cal.4th 1007, 1012 (Reliford); People v. Falsetta

(1999) 21 Cal.4th 903, 915 (Falsetta))—a propensity relevant to whether

defendants kidnapped Samson solely to murder her, the rape by instrument special

circumstance, and the charges of oral copulation against Michaud. The question is

whether this evidence was inadmissible on other grounds.

Section 1101 of the Evidence Code limits the admissibility of so-called

“propensity” or “disposition” evidence offered to prove a person’s conduct on a

particular occasion. (See Evid. Code, § 1101, subd. (a) (section 1101(a)).)

Specifically, section 1101(a) instructs that “evidence of a person’s character or a

trait of his or her character (whether in the form of an opinion, evidence of

reputation, or evidence of specific instances of his or her conduct) is inadmissible

when offered to prove his or her conduct on a specified occasion.”

Subdivision (b) clarifies that subdivision (a) does not prohibit the admission of

evidence relevant “to prove some fact . . . other than [the person’s] disposition to

commit such an act,” such as the person’s “motive, opportunity, intent,

preparation, plan, knowledge, [or] identity.” (Evid. Code, § 1101, subd. (b)

(section 1101(b)); see also id., § 1101, subd. (c) [discussing witness credibility];

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 406 (Bryant).)

Evidence Code section 1108 (section 1108) carves out an exception to

section 1101. It provides that “[i]n a criminal action in which the defendant is

accused of a sexual offense, evidence of the defendant’s commission of another

sexual offense or offenses is not made inadmissible by Section 1101, if the

evidence is not inadmissible pursuant to Section 352.” (§ 1108, subd. (a); see also

33

§ 1101(a) [“Except as provided in . . . Section[] . . . 1108, . . . .”].) Section 352, in

turn, sets out the general rule 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.” (See also People v. Villatoro (2012) 54 Cal.4th 1152, 1163 (Villatoro)

[section 1108’s reference to section 352 clarifies that “section 1108 does not

supersede section 352 or other provisions of the Evidence Code”] (italics

omitted).) It follows that if evidence satisfies the requirements of section 1108,

including that it is not inadmissible under section 352, then the admission of that

evidence does not violate section 1101. (See People v. Merriman, supra, 60

Cal.4th at p. 59, fn. 9; People v. Avila (2014) 59 Cal.4th 496, 517–518 (Avila);

People v. Jones (2012) 54 Cal.4th 1, 50; People v. Loy (2011) 52 Cal.4th 46, 63

(Loy); People v. Story (2009) 45 Cal.4th 1282, 1295 (Story).)

To determine whether section 1108 evidence is admissible, trial courts must

engage in a “careful weighing process” under section 352. (Falsetta, supra, 21

Cal.4th at p. 917.) “Rather than admit or exclude every sex offense a defendant

commits, trial judges must consider such factors as its nature, relevance, and

possible remoteness, the degree of certainty of its commission and the likelihood

of confusing, misleading, or distracting the jurors from their main inquiry, its

similarity to the charged offense, its likely prejudicial impact on the jurors, the

burden on the defendant in defending against the uncharged offense, and the

availability of less prejudicial alternatives to its outright admission, such as

admitting some but not all of the defendant’s other sex offenses, or excluding

irrelevant though inflammatory details surrounding the offense. [Citations.]”

(Ibid.)

34

A trial court’s rulings admitting evidence under Evidence Code sections

1101 and 1108 are reviewed for abuse of discretion. (People v. Cordova (2015)

62 Cal.4th 104, 132 (Cordova); Story, supra, 45 Cal.4th at p. 1295 [“Like any

ruling under section 352, the trial court’s ruling admitting evidence under section

1108 is subject to review for abuse of discretion.”].) “ ‘ “ ‘Evidence is not

prejudicial, as that term is used in a section 352 context, merely because it

undermines the opponent’s position or shores up that of the proponent. The ability

to do so is what makes evidence relevant. The code speaks in terms of undue

prejudice. Unless the dangers of undue prejudice, confusion, or time consumption

“ ‘substantially outweigh’ ” the probative value of relevant evidence, a section 352

objection should fail. [Citation.] “ ‘The “prejudice” referred to in Evidence Code

section 352 applies to evidence which uniquely tends to evoke an emotional bias

against the defendant as an individual and which has very little effect on the

issues. . . .’ ” The prejudice that section 352 “ ‘is designed to avoid is not the

prejudice or damage to a defense that naturally flows from relevant, highly

probative evidence.’ [Citations.] ‘Rather, the statute uses the word in its

etymological sense of “prejudging” a person or cause on the basis of extraneous

factors.’ ” ’ ” ’ ” (Bryant, supra, 60 Cal.4th at p. 408.)

Defendants do not dispute that section 1108 applies, and for good reason:

This case is “a criminal action.” (§ 1108, subd. (a) (section 1108(a)).) Both

defendants were “accused of a sexual offense.” (Ibid.; see id., § 1108, subd.

(d)(1)(A); Pen. Code, § 289; cf. Story, supra, 45 Cal.4th at p. 1285.) And neither

defendant contests that evidence of the four incidents in question was “evidence of

the defendant’s commission of another sexual offense or offenses.” (§ 1108(a).)

Defendants do argue, however, that the trial court abused its discretion in

refusing to exclude the evidence under section 352 (although much of their

argument focuses specifically on the trial court’s admission of evidence for the

35

limited purposes outlined in section 1101(b), rather than for purposes of section

1108(a)). In evaluating defendants’ argument, we begin by noting several

considerations that form the backdrop for our inquiry. We have noted that, given

section 1108’s purpose of facilitating the adjudication of sex crimes—which

typically occur outside the presence of potential witnesses and often leave no

corroborating evidence—the case for admission of propensity evidence “is

especially compelling” where, as here, “the sexual assault victim was killed and

cannot testify.” (Avila, supra, 59 Cal.4th at p. 515; see also Loy, supra, 52 Cal.4th

at p. 62.) Additionally, it is apparent that the trial court carefully considered

several of the factors our cases have identified in describing the “careful weighing

process under section 352.” (Falsetta, supra, 21 Cal.4th at p. 917.) The trial court

whittled the 15 acts of misconduct offered by the prosecution down to four. (See

ibid. [discussing admission of “some but not all of the defendant’s other sex

offenses”].) Finally, each of the uncharged incidents occurred no earlier than

September 1997, close in time to the charged offenses, and each involved both

defendants acting together. (Cf. ibid. [discussing “similarity to the charged

offense”].) With these considerations in mind, we address each uncharged

incident of sexual misconduct.

Aleda Doe: We conclude the trial court acted within its discretion when it

admitted evidence of the Aleda Doe incident. Among other things, that evidence

tended to show that defendants had previously abducted a young woman from the

side of the road for purposes of sexual assault, as the prosecution alleged

defendants had done in the case of Vanessa Samson. Further, the fact that

defendants had been convicted in federal court of various kidnapping-related

crimes weighed heavily in favor of admission. (See Loy, supra, 52 Cal.4th at p. 61

[conviction implies enhanced certainty that offense occurred; “no new burden of

defending against the charges”; no temptation for jurors “to convict . . . of the

36

charged crime to punish . . . for the earlier crimes”; and “little danger of confusing

the issues”].) Perhaps for these reasons, trial counsel for one of the defendants

“acknowledege[d] that the Aleda Doe incident is sufficiently similar and

sufficiently probative to the charge in Count 4 that I am not straining my

credibility by arguing against that.”

Amy Doe: Evidence of the Amy Doe incident was also admissible. The

evidence tended to show that, roughly one month before the Samson abduction,

defendants, acting together, used force to subdue and sexually assault their victim.

True, in this instance, the force was used to restrain a resisting victim who had

been lured into a hotel room, rather than (as in Samson’s case) pulled from the

side of the road. But the probative value of defendants’ conduct remains

substantial. Further, relatively little trial time was devoted to this incident;

evidence of even extremely dissimilar offenses may be admitted under section

1108 (Loy, supra, 52 Cal.4th at p. 63); and the evidence at issue here was “less

inflammatory than the evidence about the” Samson murder (People v. McCurdy

(2014) 59 Cal.4th 1063, 1099 (McCurdy)).

Christina Doe: The trial court also properly admitted the evidence

concerning Christina Doe. The evidence tended to show that defendants

previously sexually assaulted someone together. At 13 years old, Christina was

meaningfully younger than the victims of the charged offenses, and certainly

younger than Samson, then 22. But the age difference is not dispositive. We have

held, for example, that a court permissibly admitted evidence that a defendant had

raped a six year old in a trial concerning the rape and murder of a 14-year-old

victim. (People v. Williams (2016) 1 Cal.5th 1166, 1197.) Further, the evidence

concerning the Christina Doe incident, in addition to consuming a relatively small

portion of the trial (and not being seriously disputed), did not involve the violence

at issue in the Samson murder. That difference limits the evidence’s prejudicial

37

effect. (See Cordova, supra, 62 Cal.4th at p. 133 [“Defendant stresses that the

Colorado crimes contained none of the violence of the charged crime. But this

circumstance reduces any prejudicial effect.”].) Under the circumstances, there

was no abuse of discretion.

Rachel Doe: Finally, we conclude the trial court properly admitted the

evidence concerning the Rachel Doe incident. We acknowledge that, like the

Christina Doe incident, the Rachel Doe incident differed in certain respects from

the Samson incident and involved some details likely to have a particular impact

on the jurors. Rachel was only 12 years old; she was Michaud’s daughter; and

some of her testimony paints Michaud in a distinctly cruel light.5

There is, however, no doubt that this testimony was probative of

defendants’ character, and was particularly relevant to the question whether

Samson’s abduction was for purposes of murder only, as defendants had argued.

(Cf. McCurdy, supra, 59 Cal.4th at p. 1098 [applying section 1101(b), and

reasoning that “it would not be speculative to infer that, because he had committed

lewd acts against his sister when she was a child, he abducted Piceno with the

intent to commit a lewd act against her”].) The probative value of the evidence is

particularly strong as concerns Michaud. Rachel testified that Michaud had played

a central role in instigating the abuse. Rachel testified that Michaud referred to

her as her “secret lust,” and that when Michaud stopped masturbating, she told

Daveggio, “Okay, James, you can stop now,” and he did. This testimony supports

5 There was at least some suggestion, though fleeting, that Rachel had

previously threatened to fabricate a claim of rape (or attempted rape)—which may

be thought to bear on the “certainty of [the offense’s] commission.” (Falsetta,

supra, 21 Cal.4th at p. 917.) But aside from general attacks on Rachel’s

credibility, defendants had little defense to these allegations—and Christina’s

observation that Rachel looked frightened, and had “red marks and like black

lines” around her cheeks, mouth, and wrists, tends to confirm that the incident

occurred.

38

an inference that Michaud was not merely Daveggio’s passive, unintentional

victim. Although Rachel’s testimony was undoubtedly damaging, we cannot say

that the trial court abused its discretion when it concluded that the danger of undue

prejudice did not substantially outweigh the probative value of the testimony.

Finally, defendants contend that the admission of the four uncharged sex

offenses under section 1108 violated the federal Constitution’s due process

guarantee. We have previously rejected this argument (see Falsetta, supra, 21

Cal.4th at p. 907), and defendants offer no persuasive reason to reconsider that

holding.

2. Instructional issues

a. Section 1101(b) instruction concerning section

1108(a) evidence

In addition to admitting the prior sex offense evidence under section 1108,

the trial court also admitted it under section 1101(b). The court instructed the jury

that it could consider the prior acts as evidence of defendants’ motive; intent;

common method, plan, or scheme; and the existence of any good-faith belief in the

victims’ consent. (See § 1101(b).) The court also informed the jury that the Aleda

Doe incident could be used as proof of identity as to the Samson charge and

special circumstance allegations.

Defendants argue the trial court erred in admitting the prior sex offense

evidence under section 1101(b), and thus erred in instructing the jury that it could

consider the evidence for the limited purposes described in section 1101(b). The

first objection is without merit; as noted above, the evidence was properly

admitted under section 1108(a), which defeats any objection that the evidence was

inadmissible under Evidence Code section 1101. (See § 1108(a) [evidence

admissible under section 1108(a) “is not made inadmissible by Section 1101”].)

39

The second objection, concerning the trial court’s instructions that the

evidence could be considered for the purposes identified in section 1101(b), is

likewise without merit. At a minimum, the evidence was admissible to shed light

on defendants’ motive and intent. We have explained that “[t]he least degree of

similarity (between the uncharged act and the charged offense) is required in order

to prove intent.” (Ewoldt, supra, 7 Cal.4th at p. 402.) Evidence is admissible for

these purposes if there is “sufficient evidence for the jury to find defendant

committed both sets of acts, and sufficient similarities to demonstrate that in each

instance the perpetrator acted with the same intent or motive.” (McCurdy, supra,

59 Cal.4th at p. 1097.) Here, defendants lured or kidnapped each of their victims

to a designated location, where they sexually assaulted them by threat or use of

force. Despite the substantial age difference between some of the victims, the

similarity between the uncharged and charged offenses provided a sufficient basis

for the jury to conclude that defendants acted with the same criminal intent or

motive, rather than by “ ‘accident or inadvertence or self-defense or good faith or

other innocent mental state.’ ” (Ewoldt, supra, at p. 402.)

The evidence of the uncharged acts against Aleda Doe was also admissible

under section 1101(b) to prove identity with regard to the Samson incident. This

court has established that “[t]he greatest degree of similarity is required for

evidence of uncharged misconduct to be relevant to prove identity . . . . [T]he

uncharged misconduct and the charged offense must share common features that

are sufficiently distinctive so as to support the inference that the same person

committed both acts. [Citation.] ‘The pattern and characteristics of the crimes

must be so unusual and distinctive as to be like a signature.’ [Citation.]” (Ewoldt,

supra, 7 Cal.4th at p. 403.) This high level of similarity is present here—both

Aleda Doe and Samson were kidnapped by defendants from the side of the road

and were placed in a van, where defendants sexually assaulted them.

40

The degree of similarity required to prove the existence of a common

design or plan falls between these two poles. (Ewoldt, supra, 7 Cal.4th at p. 402.)

“To establish the existence of a common design or plan, the common features

must indicate the existence of a plan rather than a series of similar spontaneous

acts, but the plan thus revealed need not be distinctive or unusual.” (Id. at p. 403.)

Given that the evidence of the prior sex offenses was properly admitted under

Evidence Code section 1108, we need not decide whether this evidence was also

admissible to show an overarching common plan or scheme across the various

charged and uncharged incidents, because any assumed error on this score would

be harmless. (See Falsetta, supra, 21 Cal.4th at p. 920 [“evidence of a

defendant’s other sex offenses constitutes relevant circumstantial evidence that he

committed the charged sex offenses”].) The trial court committed no reversible

error in instructing the jury that it could consider evidence of the prior incidents

for that purpose.

Finally, defendants argue that the trial court’s instruction permitted the jury

to consider the uncharged sex offenses as evidence of their propensity to engage in

sex offenses, in violation of the Fifth, Eighth, and Fourteenth Amendments to the

federal Constitution. But as explained above, we have already held that the

federal Constitution permits reliance on proof of uncharged sex offenses as

relevant to a defendant’s propensity to engage in crimes of the same type, subject

to the careful weighing analysis prescribed by section 352. Defendants fail to

establish that the trial court committed reversible federal constitutional error by

instructing the jury under section 1101(b) as well as section 1108(a).

b. Evidence of charged offenses as propensity evidence

Defendants also contend that the trial court’s instructions erroneously

permitted the jury “to draw an inference of criminal propensity from evidence

41

pertaining to charged offenses”—specifically, the offenses involving Sharona Doe

and April Doe—“that had not been subjected to the trial court’s exercise of

discretion under Evidence Code section 352 as required by Evidence Code section

1108.” As we explained in a decision issued while this appeal was pending,

evidence of charged sex offenses, like evidence of uncharged sex offenses, may

give rise to an inference of propensity to commit similar crimes, but the trial

court’s decision to permit the jury to consider the evidence for that purpose is

properly guided by a section 352 weighing analysis. (See Villatoro, supra, 54

Cal.4th at pp. 1161–1164.)

Here, although defendants argue otherwise, we conclude the trial court did

exercise its discretion under section 352. In the trial court, Daveggio moved to

bifurcate, urging that the counts to which he had pleaded guilty (counts 1–3)

should be tried separately from the murder (count 4). Michaud appears to have

joined the motion, pursuant to the trial court’s ruling that “cocounsel will join in

motions unless otherwise stated.” Although Daveggio acknowledged that

evidence of the Aleda Doe incident might be admissible in a trial concerning only

count 4, he urged that “everything else is textbook 352.”

The trial court denied the motion to bifurcate. In so doing, it expressly

rejected defendants’ section 352 argument. In the same statement of decision that

described the court’s “exercise[] [of] discretion pursuant to Evidence Code

[section] 352” regarding the uncharged acts, the court explained that “[i]f the

events charged in counts one, two, and three were uncharged acts, they would be

admissible in the trial concerning count four under the analysis used by the court

regarding the [uncharged] events . . . . The facts relating to the events involving

Sharona Doe and April Doe are similar to the facts involving the other uncharged

Does and would thus be admissible under Evidence Code [section] 1101(b) on the

issue of intent, motive and common plan and design or under Evidence Code

42

section 1108. [¶] Therefore, as between counts one, two, three, and count four,

there would be cross-admissibility of evidence, which would be the determining

factor on the bifurcation issue. [¶] In addition, the court finds [that] while all of

the counts charged are to a certain extent inflammatory, none of the counts is

noticeably more inflammatory than the others. . . .” This discussion makes clear

that the trial court exercised its discretion under section 352 when resolving

defendants’ motion to bifurcate.

Michaud asserts in her reply brief that the trial court’s ruling on the motion

to bifurcate cannot be regarded as an exercise of section 352 discretion because

the ruling was made before trial, while section 352 review “typically occurs during

trial in the context of evidence already before the jury . . . .” We see no persuasive

reason to disregard the trial court’s section 352 analysis simply because it was

conducted before trial. And Michaud points to no change occurring at trial that

she contends could or would have altered the trial court’s section 352 analysis.6

Further, since defendants do not argue that the trial court abused its discretion

under section 352, we do not reach that issue here.

6 A section heading in Daveggio’s opening brief asserts, without further

elaboration, that the court’s instruction “allowed the jury to find he had a

propensity for committing sex offenses from which it could be inferred . . . that he

committed malice murder.” We agree with the Attorney General that this “point is

not properly raised: it is perfunctorily asserted without argument in support.”

(People v. Ashmus (1991) 54 Cal.3d 932, 985, fn. 15, abrogation on other grounds

recognized by People v. Russell (2010) 50 Cal.4th 1228, 1271.) Indeed, it is not

clear precisely what the heading is meant to convey. If Daveggio means that “the

jury would view the instructions as permitting it to find defendant guilty of [a]

murder based solely on his prior sexual offenses,” we have previously rejected that

argument in the face of similar instructions. (Loy, supra, 52 Cal.4th at p. 76,

italics added, discussing Reliford, supra, 29 Cal.4th at p. 1013.)

43

C. Other Claims of Evidentiary Error

Defendants claim the trial court made several other erroneous rulings

concerning fingerprint evidence, carpeting in Michaud’s van, and certain

weaponry. We consider each claim in turn.

1. Fingerprints

Defendants argue that the trial court violated state law and the federal

Constitution by refusing to hold a hearing on the admissibility of certain

fingerprint evidence and refusing to exclude testimony that collected fingerprints

“matched” defendants’ exemplar prints. We conclude the trial court did not

prejudicially err by declining defendants’ requests.

a. Background

Before trial, defendants “object[ed] to any expert introduced here making a

conclusionary [sic] statement on the fingerprints in that there’s no scientific

evidence to support such a conclusion.” In support of their argument, defendants

presented the trial court with a newspaper article discussing the decision of a

federal district court that had reportedly concluded that fingerprint identification

by certain experts did not pass the Kelly/Frye standard for general acceptance of

scientific evidence. (See People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly); Frye v.

United States (D.C. Cir. 1923) 293 F. 1013, 1014.) “[A]s I recall the article,”

counsel explained, “the court there did allow experts to testify to points of

similarity, but did not allow them to draw conclusion[s] as to identity. It’s my—I

don’t have a copy of that decision and it is my understanding that this is an area

that’s under controversy here in the local federal districts.” The trial court

overruled the objection.

Defendants then requested “at a minimum Daubert or Kelly/Frye hearings.”

(See Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579

44

(Daubert).) The court overruled that objection as well. The court did, however,

authorize some voir dire and cross-examination concerning the issue, in particular

concerning defendants’ request to “be able to inquire if [witnesses] participated in

that study that the FBI conducted where various sample exemplar prints were sent

to various experts and there was no unanimity on agreement.” The jury ultimately

heard testimony identifying certain latent fingerprints on objects found in the van

as belonging to Michaud, Daveggio, and Samson.

b. Discussion

Under the Kelly/Frye (or simply “Kelly”) inquiry applicable in California

courts, “when faced with a novel method of [scientific] proof, [we] have required

a preliminary showing of general acceptance of the new technique in the relevant

scientific community” before the scientific evidence may be admitted at trial.

(Kelly, supra, 17 Cal.3d at p. 30; see also People v. Venegas (1998) 18 Cal.4th 47,

78 (Venegas) [admission also requires proof of expert qualifications to testify as to

general acceptance and demonstration that correct scientific procedures were used

in the particular case].)7 The Kelly “approach is intended to prevent lay jurors

from being unduly influenced by procedures which seem scientific and infallible,

but which actually are not.” (People v. Webb (1993) 6 Cal.4th 494, 524; see

People v. Stoll (1989) 49 Cal.3d 1136, 1155–1156.)

The logic of Kelly suggests that advances in scientific understanding may

strip a scientific technique of the general acceptance it once had. (See Kelly,

7 This test originated with Frye, an influential federal appellate decision. In

federal courts, Frye has been superseded by the standard articulated in Daubert.

(See Daubert, supra, 509 U.S. at pp. 589–598.) Under Daubert, while

“[w]idespread acceptance can be an important factor in ruling particular evidence

admissible,” general acceptance is not “an absolute prerequisite to admissibility.”

(Id. at pp. 594, 588.) Notwithstanding Daubert, Kelly/Frye remains the law of

California. (People v. Leahy (1994) 8 Cal.4th 587, 591; see also id. at pp. 593–

604.)

45

supra, 17 Cal.3d at p. 32 [“[O]nce a trial court has admitted evidence based upon a

new scientific technique, and that decision is affirmed on appeal by a published

appellate decision, the precedent so established may control subsequent trials, at

least until new evidence is presented reflecting a change in the attitude of the

scientific community” (italics added)]; see also People v. Jones (2013) 57 Cal.4th

899, 937; People v. Doolin (2009) 45 Cal.4th 390, 447; People v. Bolden (2002)

29 Cal.4th 515, 546; Venegas, supra, 18 Cal.4th at pp. 53, 78.) Just as jurors may

be unduly persuaded by the “ ‘misleading aura of certainty which often envelops a

new scientific process,’ ” (Kelly, supra, 17 Cal.3d at p. 32, quoting Huntingdon v.

Crowley (1966) 64 Cal.2d 647, 656), so too might they be unduly persuaded by

familiar methods of proof that have fallen into disrepute in the relevant scientific

community. Indeed, familiar methods of proof may pose a risk of deception

precisely because they are familiar.

Defendants contend that fingerprint comparison evidence falls into this

category. New scientific understandings, they argue, show that fingerprint

evidence may not be as reliable an indicator of identity as it has generally been

understood to be. In light of those understandings, they argue they were entitled to

a Kelly hearing. We disagree.

“[F]ingerprint comparison has a long history of acceptance” as a form of

identification evidence. (In re O.D. (2013) 221 Cal.App.4th 1001, 1008, citing

cases.) In People v. Farnam (2002) 28 Cal.4th 107, 160, this court rejected a

Kelly challenge to the admission of testimony concerning the use of a

computerized system for comparing latent prints to fingerprints in a database. We

explained that although the police had used the system “to narrow the range of

potential candidates whose fingerprints might match the latent prints, the

prosecution relied on a long-established technique—fingerprint comparison

46

performed by fingerprint experts—to show the jury that defendant’s fingerprints

matched those found” at the scene. (Ibid.)

The Court of Appeal in In re O.D. similarly rejected a Kelly challenge to

the admission of fingerprint comparison testimony, reasoning that “fingerprint

comparison is not the type of scientific technique Kelly governs since it can easily

be understood by nonexperts and is unlikely to convey a misleading aura of

certainty.” (In re O.D., supra, 221 Cal.App.4th at p. 1007; see also People v.

Rivas (2015) 238 Cal.App.4th 967, 975–976 [agreeing with In re O.D. that

fingerprint comparison testimony is not subject to challenge under Kelly].)

Defendants have made no showing that would warrant reevaulation of the

admissibility of fingerprint comparison evidence. As defendants acknowledge in

their briefs, they relied primarily on a newspaper article reporting on the ruling of

a single federal district court. This is manifestly insufficient to warrant

reconsideration of a form of evidence that has for many years been universally

accepted. (Cf. U.S. v. Baines (10th Cir. 2009) 573 F.3d 979, 988 [upholding the

admission of fingerprint evidence under the Daubert standard and noting, inter

alia: “Every published decision to address this issue has found the evidence

admissible. Fingerprint evidence has been admissible in this country for almost

100 years.”].)

Although it is unnecessary to our conclusion, we further note that any

conceivable error in admitting the fingerprint evidence was harmless beyond a

reasonable doubt. As one of the defendants correctly pointed out during closing

argument, the significance of the fingerprint evidence (particularly a cup in the

van bearing Samson’s print) was that it indicated that defendants abducted

Samson. But the proof that defendants abducted Samson was overwhelming even

without that evidence; for example, Samson’s DNA was also found inside the van,

47

and witnesses to Samson’s abduction testified to observing a van matching the

description of Michaud’s van driving away from the scene.

2. Carpet

Defendants claim the trial court abused its discretion by admitting evidence

that “cuts had been made in the carpeting in [Michaud]’s van that allowed access

to unused seat anchor bolts to which ropes could be secured to theoretically

restrain someone in a spread-eagled position.” Defendants’ claim lacks merit.

a. Background

The van had removable back and middle seats. When the seats were

removed, the bolts that anchored the seats to the van’s floor were exposed. The

evidence in question indicated that a carpet had been placed over the floor and cut

in a manner that permitted rope to be passed through four of the bolts, but did not

permit the seats to be secured to the van. That evidence included photographs of

the carpet, a template revealing the pattern of the slits, and photographs of rope

passing through the slits on the template. Although there was evidence that

defendants had rope with them in the van, no rope marks indicated that Samson’s

limbs had been restrained.

Defendants objected that there was no evidence Samson was ever tied

down to the bolts, and argued the evidence was unduly inflammatory and

suggestive. The trial court disagreed, expressing doubt that there was any

legitimate purpose for the slits in the carpet and deeming the evidence “more

probative than prejudicial on the issues of planning, premeditation, and

scheming.”

b. Discussion

Defendants claim the trial court abused its discretion when it admitted the

carpet-related evidence. The probative value of that evidence, defendants argue,

48

was either nonexistent (Evid. Code, §§ 210, 350), or at least outweighed by the

“substantial danger of undue prejudice” that it posed (§ 352).

At the threshold, it is at least debatable whether defendants have preserved

an objection to anything other than the photographs of ropes passing through the

template, such as photographs of the template and carpet themselves. Before trial,

following defendants’ initial objections and some discussion between the parties,

the court said, “But nobody has any objection to the fact that if there is a template

showing those four holes placed in the back of the van that correspond with those

eyebolts, you are not objecting to that concept, you are just objecting to the fact

they have ropes coming through there.” Counsel for Michaud responded,

“Basically, yes.” Counsel for Daveggio added, “Yeah. The template is supposed

to be, I assume for ease rather than moving the rug back and forth. There is no

objection to this diagram.” This colloquy could be read to suggest a waiver of any

earlier objections concerning the carpet and the template itself, especially because,

when the prosecutor sought admission of the carpet-related exhibits, defendants

objected only to “photographs that show ropes protruding from the holes in either

the carpet or the exemplar.”

We need not decide the extent to which defendants preserved their

objections to admission of the other carpet-related evidence, however, because the

objections lack merit in any event. As the trial court noted, the slits in the carpet

had no obvious legitimate purpose. The template (with ropes passed through)

made clear that the slits aligned with the anchor bolts on the van, giving rise to an

inference that defendants intended to use those bolts for purposes of restraint.

That inference was plainly relevant to the disputed issue of whether defendants

49

planned to sexually assault Samson, or instead abducted her solely to kill her.

(See Evid. Code, § 210.)8

It is true that no rope markings indicated that Samson’s limbs were tied,

and no physical evidence confirmed that rope had ever been passed through the

slits in the carpet. But the suggestion that defendants planned to use the anchor

bolts to restrain Samson remained an entirely reasonable and probative inference.

Further, in light of the other evidence presented, such as the ball gag and curling

iron, the idea that defendants planned to use (or perhaps even actually used) ropes

to restrain Samson was not especially inflammatory. Accordingly, we cannot

conclude that the trial court abused its discretion rejecting defendants’ argument

that this evidence posed a danger of undue prejudice that substantially outweighed

its probative value. (§ 352.)9

3. Weapons

Defendants challenge the admission of evidence concerning guns,

ammunition, crossbows, and crossbow bolts. That evidence, defendants contend,

was irrelevant (Evid. Code, § 350), unduly prejudicial (§ 352), and violated the

rule against admission of propensity evidence (§ 1101(a)). We reject each of these

arguments.

a. Background

Before trial, the parties discussed whether the prosecution could use as an

exhibit a poster board containing photographs of “evidence of all the weapons that

were recovered.” In arguing that the exhibit was proper, the prosecutor noted the

8 Some of defendants’ briefing can perhaps be read as cursorily asserting that

the evidence was propensity evidence inadmissible under section 1101(a). Suffice

it to say that evidence may be admitted to prove intent without running afoul of

that section. (§ 1101(b).)

9 Defendants’ cursory assertions that the admission of the evidence violated

their constitutional rights likewise lack merit.

50

existence of questions concerning whether the oral copulation and sexual

penetration of Sharona Doe had been accomplished by force or fear; urged that she

was “entitled to show they used force and fear in accomplishing the acts they did

to Vanessa Samson,” an issue relevant to felony murder and the rape-by-

instrument special circumstance; and discussed testimony regarding guns,

ammunition, and “[t]he crossbow and the [bolts] for the crossbow [that] were

recovered inside the van.” The prosecutor continued, “[T]he other relevance of

the crossbow is that Mr. Daveggio talked to Christina Doe and Rachel Doe about

how it is easier to kill someone with a crossbow because it is silent as opposed to

how loud his .38 was, and talked about the methods of killing and the fact that a

crossbow could be used in a silent method; more proof that he studied methods of

killing.”

Defendants objected, noting that the evidence in the case made clear that

Samson had not been killed by a crossbow. The court replied, “It is a deadly

weapon. If the allegation is force and fear and it is found at the scene of the

alleged crime, I think it is certainly relevant, isn’t it? I think so. . . . I mean, they

found [the crossbow] in the van; is that right?” The prosecutor replied, “That is

right.” The court concluded, “Force and fear is an allegation. It is a deadly

weapon and found at the scene and location of the alleged crime. I think that is

certainly as relevant as you need to get.”

After the last witness testified, but before closing argument, the prosecution

sought the admission of the same poster board. Defense counsel objected, arguing

that the evidence was irrelevant and that it should be excluded under section 352.

The court admitted the exhibit, also overruling an objection complaining of

speculation.

Later, the prosecution sought admission of evidence concerning

ammunition. Defense counsel objected on grounds of foundation, relevance, and

51

section 352, describing the evidence as “ammunition . . . found in the van.” The

prosecutor responded: “There was testimony that a .25 auto was used in several of

the crimes and the .38 was shot off as a threat to Christina and Rachel to keep

quiet. And these are .25’s and .38’s. And the .25 auto was recovered in the hotel

room.” Counsel for Daveggio objected that “[t]here is no showing a firearm was

used with the homicide case that remains against Mr. Daveggio.” The court

admitted the evidence.

b. Discussion

Defendants contend that the trial court abused its discretion by admitting

evidence concerning the crossbow found in the van. The contention lacks merit.

The crossbow was relevant to whether the sexual penetration of Samson was

accomplished by force or fear, and it shed light on how defendants were able to

control her during the incident. That was particularly probative given defendants’

assertion that lack of visible external trauma indicated that Samson was not

penetrated at all. Testimony indicated, for example, that the curling iron had “a

good likelihood” of causing trauma “unless some care was taken,” and evidence

whether defendants were controlling Samson, or whether she was resisting, was

relevant to shed light on the nature of the attack. The probative value of this

evidence was not outweighed by a risk of undue prejudice. Given the misconduct

of which defendants were accused, having a crossbow (or bolts for that crossbow)

was hardly inflammatory. True, as defendants emphasize, the victim was not

killed with a crossbow. But just because evidence may not be admissible as proof

of the murder weapon does not mean it is not admissible at all. (See, e.g., People

v. Prince (2007) 40 Cal.4th 1179, 1248–1249; cf. People v. Riser (1956) 47 Cal.2d

566, 577 [“It was error therefore to admit the Colt, two of the holsters, the belts,

and the box of .22 shells. The P38 was admissible on other grounds that appear

below.” (Italics added.)].) Further, while defendants do not appear to have

52

preserved an objection that the crossbow was merely evidence of the act of

crossbow possession, admitted to show propensity (§ 1101(a)), that objection lacks

merit in any event; the “fact” of crossbow possession was relevant to prove

something beyond defendants’ “disposition to commit” misconduct (§ 1101(b)).

Defendants further object to evidence that “guns were seized from

Michaud’s van and from the motel room occupied by [defendants] at the time of

their arrest.” We assume arguendo that this objection is preserved,

notwithstanding the fact that defendants’ objections focused on the crossbow and

the ammunition. Like the crossbow, this evidence was relevant to issues regarding

whether defendants accomplished the charged crimes by force or fear, and it was

not, in context, unduly prejudicial. Additionally, while the ammunition found

with or near defendants at the time of their arrest is less probative than the guns

themselves, the fact that the guns were loaded (or that ammunition was available

for loading) is relevant and not unduly prejudicial.

The gun evidence was also, more specifically, relevant to the incident

involving Sharona Doe. Among other things, Sharona testified that: At some

point during her abduction, both defendants threatened to kill her; she had

previously seen both defendants with a gun; and, when defendants were dropping

her off at the end of the assault, Daveggio retrieved a gun from a pocket behind

the passenger seat and flashed it “in [a] way that made me know that if I told that

he was going to kill me.” Defendants argue that the gun evidence was not relevant

to whether the oral copulation of Sharona Doe was accomplished by force or fear,

since the oral copulation was complete when Daveggio flashed the gun. But even

accepting this argument, the incident involving the gun was, in any event, relevant

to explain why Sharona initially lied to police about the incident.

Defendants also argue that the court should not have admitted certain

evidence recovered from the Carpenters’ home. In particular, they complain that a

53

crossbow found among items that defendants left there had little probative value,

since no crossbow was involved in the Sharona incident and defendants had

dropped off their belongings, including the crossbow, before the Samson incident

occurred. Nevertheless, defendants have not apprised us of any objection

informing the trial court that this crossbow should have been treated differently

because it was not found in the van, and we are not aware of any such objection.

Likewise, while some of the ammunition to which defendants objected appears to

have been recovered from the Carpenters’ home, the objection defendants identify

in their briefing on appeal described the evidence at issue as “ammunition . . .

found in the van.” Accordingly, we doubt these claims of error are preserved.

(See People v. Partida (2005) 37 Cal.4th 428, 435.) In any event, the admission

of this evidence, if erroneous, was plainly harmless. Other, far more shocking

evidence was properly admitted—and this evidence was not even distinctive, since

other crossbow- and ammunition-related evidence was in evidence.

D. Other Claims of Instructional Error

In addition to their claims of instructional error concerning evidence of

prior sexual misconduct, defendants challenge the trial court’s instructions

concerning (1) the prosecution’s burden of proof beyond a reasonable doubt;

(2) the “equal guilt[]” of a direct perpetrator and an aider and abettor; (3) the

independent felonious purpose required to sustain the kidnapping special

circumstance allegation; and (4) defendants’ decision not to testify. We address

each challenge in turn.

1. Reasonable Doubt

Defendants argue that the trial court committed reversible error when it

instructed prospective jurors about the meaning of “reasonable doubt.” The claim

lacks merit.

54

a. Background

In August 2001, the trial court addressed several groups of prospective

jurors who had yet to complete juror questionnaires. In each session at issue here,

the court discussed the presumption of innocence and requirement of proof beyond

a reasonable doubt. One fairly representative example of the court’s description of

those concepts went as follows:

“The most important concept we deal with in the criminal system is the

presumption of innocence. The fact that the defendants have been charged with

the crime I just read to you, the fact that this trial is taking place, is no evidence

whatsoever of the truth of those charges or any evidence of their guilt. [¶] . . . [¶]

“The defendants sit here cloaked in innocence. Because they entered a plea

of not guilty, it is up to the prosecution to prove the defendants’ guilt. They must

prove each and every element of each and every charge that they have filed against

the defendants, and they must prove it to beyond a reasonable doubt, which I will

discuss with you in a moment. [¶] . . . [¶]

“The burden of proof that the prosecution has to meet is what we call

beyond a reasonable doubt. And it is the highest burden of proof provided for in

the law. It does not mean beyond all possible or imaginary doubt, because every

time you talk about human affairs and human interaction you can always conjure

up some imaginary doubt.

“Basically, it is an evaluation of the facts and the evidence, based upon

common sense and reason, to see if you are left with any reasonable doubt after

you hear the testimony and see the other evidence.

“You have all seen the Lady of Justice who has the scales, maybe not all of

you, but some of you have. In a criminal case, the scales of justice start tipped in

favor of the defense, because the defendants are presumed to be innocent. The

burden the prosecution must meet is to bring those scales into balance and then

55

substantially tip them in favor of the truth of the charges that were filed against the

defendants.

“There is no number we assign to this and no percentage. But you can see

that it is a fairly substantial burden that the prosecution must meet to prove their

case.”10

Trial began nearly six months later. After the trial began, the jury received

two other sets of instructions regarding reasonable doubt. First, in February 2002,

before Aleda Doe testified, the court preinstructed the jury on matters that might

pertain to her testimony. Among other things, the court explained that if the jury

found “beyond a reasonable doubt that a defendant committed prior sexual

offenses, that is not sufficient by itself to prove beyond a reasonable doubt that he

or she committed the charged crimes. The weight and significance of the

evidence, if any, are for you to decide.” The court then read CALJIC No. 2.90,

which explains the concepts of reasonable doubt and the presumption of

innocence.11

10 The court’s pretrial commentary varied to some extent across its sessions

with prospective jurors. Defendants, however, have not identified what comments

were made to the jurors who were ultimately impaneled, and it is not clear from

the record which prospective jurors attended which session. For the sake of the

discussion that follows, we will assume that each of the impaneled jurors heard a

set of comments substantially similar to the example set out above.

11 In accord with CALJIC No. 2.90, the jury was instructed: “A defendant in

a criminal action is presumed to be innocent until the contrary is proved, and in

case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or

she is entitled to a verdict of not guilty. This presumption places upon the people

the burden of proving him or her guilty beyond a reasonable doubt.

[¶] Reasonable doubt is defined as follows: [¶] It is not a mere possible doubt;

because everything relating to human affairs is open to some possible or imaginary

doubt. It is that state of the case which, after the entire comparison and

consideration of all the evidence, leaves the minds of the jurors in that condition

that they cannot say they feel an abiding conviction of the truth of the charge.”

56

Second, after closing arguments were concluded in May 2002, the trial

court again instructed the jury on reasonable doubt in accordance with CALJIC

No. 2.90—once with the accompanying discussion of the presumption of

innocence, and once without. The court also provided a written copy of the full

instruction to the jury.

b. Discussion

The federal Constitution’s due process guarantee “protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.” (In re Winship (1970)

397 U.S. 358, 364.) The Constitution “does not require that any particular form of

words be used in advising the jury of the government’s burden of proof,” but it

does require that, “ ‘taken as a whole, the instructions . . . correctly conve[y] the

concept of reasonable doubt to the jury.’ ” (Victor v. Nebraska (1994) 511 U.S. 1,

5 (Victor).) What matters, for federal constitutional purposes, is “whether there is

a reasonable likelihood that the jury understood the instructions to allow

conviction based on” insufficient proof. (Id. at p. 6.)

Defendants do not object to the giving of CALJIC No. 2.90, an instruction

we have repeatedly upheld against constitutional challenge. (See People v.

Romero and Self (2015) 62 Cal.4th 1, 42 & fn. 15; see also People v. Brown

(2004) 33 Cal.4th 382, 391–392 & fn. 2; Victor, supra, 511 U.S. at pp. 7–17;

People v. Freeman (1994) 8 Cal.4th 450, 504 & fn. 9 (Freeman); People v.

Hearon (1999) 72 Cal.App.4th 1285, 1286–1287 [collecting cases].) Defendants

argue, however, that the trial court’s comments about reasonable doubt during jury

selection improperly diluted the reasonable-doubt standard in four respects.

Defendants acknowledge that they did not object to the trial court’s statements at

the time they were made, but they contend that no objection was required because

the asserted errors affected their substantial rights. (Pen. Code, § 1259.) The

57

Attorney General concedes that evaluating the merits of that argument requires us

to consider the merits of defendants’ asserted claims of error. We thus proceed to

consider the merits of defendants’ claims.

First, defendants complain that the trial court failed to explain that jurors

must have an “abiding conviction” of the defendants’ guilt to convict. Defendants

do not contend that the omission of the “abiding conviction” standard rendered the

comments misleading, but instead contend that the trial court should have

elaborated further on the “nature and depth of certitude necessary for conviction.”

But while the court omitted mention of the phrase “abiding conviction” during its

discussion with prospective jurors, the court later advised the selected jurors—

multiple times—that they could not convict absent “an abiding conviction of the

truth of the charge.” The trial court’s earlier omission of that language posed no

risk of diluting the prosecution’s burden of proof.

Second, defendants argue that the court should not have advised

prospective jurors that, if selected, they could rely “upon common sense and

reason” in reaching a verdict. This statement diluted the prosecution’s burden of

proof, defendants claim, because it permitted each potential juror to “apply his or

her own common sense in addition to reason in evaluating the evidence.” The

argument is unpersuasive. Common sense may provide the premise upon which

reason operates; indeed, it is hard to see how jurors could perform tasks such

as evaluating witness credibility without keeping common sense in mind. (Cf.

People v. Centeno (2014) 60 Cal.4th 659, 669 (Centeno) [“jurors may rely on

common knowledge and experience in evaluating the evidence”]; Venegas, supra,

18 Cal.4th at p. 80 [jurors may often “rely on their own common sense and good

judgment in evaluating the weight of the evidence presented to them”].) It is not

reasonably likely that prospective jurors believed that, if selected, they could rely

on common sense that exceeded the bounds of reason in reaching a verdict.

58

Defendants rely on People v. W.E. Paulsell (1896) 115 Cal. 6 for the

proposition that a trial court errs by invoking “common sense” in connection with

a reasonable doubt instruction. Paulsell did reverse a conviction following a

reasonable-doubt instruction invoking “reason and common sense,” but as later

cases made plain, the ground for reversal was not the trial court’s invocation of the

term “common sense,” but the court’s refusal to adhere to previously approved

language describing the reasonable-doubt standard. (People v. Manasse (1908)

153 Cal. 10; People v. White (1897) 116 Cal. 17, 19.) Defendants cite no case in

which a court has concluded that it is reversible error to mention reliance on

“common sense and reason” in reaching a verdict, and we are aware of none.12

Third, defendants contend that the trial court’s references to concepts like

“human affairs and human interaction” and “how people interact and what people

do in everyday life” lowered the burden of proof. Defendants are right to say that

jurors should not be instructed to convict based on the level of certainty needed to

make decisions “in the ordinary affairs of life.” (People v. Brannon (1873) 47

Cal. 96, 97.) But that is not what the trial court told the prospective jurors. It

instead told them that “beyond a reasonable doubt” does not mean “beyond all

possible or imaginary doubt,” because—in “human affairs,” “human interaction,”

and “everyday life”—some doubt can always be conjured. In so advising the

prospective jurors, the trial court essentially paraphrased CALJIC No. 2.90, which

explains that a reasonable doubt “is not a mere possible doubt[,] because

12 On the contrary, federal courts have frequently included “common sense”

in their definitions of reasonable doubt. (See Freeman, supra, 8 Cal.4th at p. 527,

fn. 1 (conc. opn. of George, C. J.) [discussing federal pattern instruction]; 1A

O’Malley et al., Federal Jury Practice and Instructions (6th ed. 2008) § 12:10,

pp. 160–161; see also, e.g., U.S. v. Munson (1st Cir. 1987) 819 F.2d 337, 346

[“[I]n trying to define the difficult concept of ‘reasonable doubt,’ the court told the

jury to exercise its common sense in assessing whether a doubt is reasonable. The

court was merely telling the jury to do the obvious.”].)

59

everything relating to human affairs is open to some possible or imaginary doubt.”

(Accord, Pen. Code, § 1096.) We discern no error in the statement. (See People

v. Romero and Self, supra, 62 Cal.4th at p. 42 & fn. 15.)

Fourth, and finally, defendants claim that the trial court should not have

analogized to the scales of justice in explaining the meaning of “reasonable

doubt.” As they put it, “[T]he combination of the use of the imagery of movement

of the scales of the Lady of Justice and the trial court’s definition of the reasonable

doubt standard as ‘tipped’ and ‘substantially tipped’ conveyed the impression of a

lesser standard of proof than the constitutionally required standard of proof

beyond a reasonable doubt.”

In considering this argument, we must keep in mind that the challenged

comments were made before the jury had even been selected and several months

before the trial began. Once the trial was underway, the jury was repeatedly

instructed on the meaning of reasonable doubt in accordance with CALJIC

No. 2.90. We consider it unlikely that the trial court’s description of the

reasonable doubt standard was the sort that “create[s] such an indelible impression

on prospective jurors that they are unable to follow specific instructions given at

the time the case is submitted to the jurors for decision.” (People v. Holt (1997)

15 Cal.4th 619, 662; accord, People v. Myles (2012) 53 Cal.4th 1181, 1219; cf.

People v. Avila (2009) 46 Cal.4th 680, 716 [trial instructions made jury “fully

aware” of “what evidence could be considered mitigating,” notwithstanding voir

dire comments].) Indeed, even instructions during trial that misdescribe the

burden of proof may, in light of other instructions, leave no reasonable likelihood

that the jury misunderstood the proof required. (See People v. Espinoza (1992) 3

Cal.4th 806, 823 [court’s brief misstatement suggesting “that a verdict of not

guilty had to be proven beyond a reasonable doubt” was immaterial in light of

other instructions, including CALJIC No. 2.90].)

60

The instructions at issue in this case differ from those at issue in People v.

Garcia (1975) 54 Cal.App.3d 61, on which defendants rely. In that case, the

Court of Appeal held that a trial court erred when it provided a then-standard

reasonable-doubt instruction but added: “ ‘In other words, reasonable doubt

means just what the term implies, doubt based upon reason, doubt that presents

itself in the minds of reasonable people who are weighing the evidence in the

scales, one side against the other, in a logical manner in an effort to determine

wherein lies the truth.’ ” (Garcia, supra, at p. 68, fn. omitted.) The Court of

Appeal reasoned that the instruction impermissibly watered down the prosecutor’s

burden of proof. It explained that the instruction was “strikingly comparable” to

the civil preponderance-of-the-evidence standard, adding, “[t]his ‘weighing’

process, where a tipping of the scales determines the ‘truth,’ is wholly foreign to

the concept of proof beyond a reasonable doubt.” (Id. at p. 69.) Other courts have

also criticized use of a scales-of-justice analogy. (Cf. State v. Smith (1981) 183

Conn. 17, 28 [438 A.2d 1165, 1170] [“Under the charge, the jury could have

found the defendant guilty if they believed beyond a reasonable doubt that the

‘scale’ had been tipped in favor of conviction. This is not the same as the

constitutionally mandated standard of proof beyond a reasonable doubt.”];

Commonwealth v. New (1946) 354 Pa. 188, 215 [47 A.2d 450, 465] [“[T]he

Commonwealth cannot obtain a conviction on evidence which ‘just tips the

scales’ . . . .”].)

In this case, although the trial court invoked a scales-of-justice analogy, it

also stressed that the prosecutor’s burden of proof was “the highest burden [or

“standard” or “level”] of proof provided for in the law.” It further noted that, in a

criminal case, the scales of justice begin weighted in favor of the defendant (due to

the presumption of innocence), and must not only be returned to equipoise, but

“substantially tipped” in favor of the prosecution, to sustain a conviction. The

61

court’s use of the scales-of-justice metaphor thus did not evoke a simple

preponderance inquiry. (Cf. State v. Moss (1983) 189 Conn. 364, 369–370 [456

A.2d 274, 276] [“The use of a balance scale analogy, while undesirable, is not

inherently misleading. [¶] . . . [¶] The charge makes it clear that the level of proof

must shift substantially out of equipoise in order to support a finding of guilt

beyond a reasonable doubt.”].) To be clear, we do not encourage the use of the

metaphor. But the court’s comments are far afield from the instruction at issue in

Garcia.

Nor is this case like People v. Katzenberger (2009) 178 Cal.App.4th 1260,

on which defendants also rely. The prosecutor there showed jurors six pieces of

an eight-piece puzzle representing the Statue of Liberty, urging the jurors that they

“ ‘know [what] this picture is beyond a reasonable doubt without looking at all the

pieces of that picture. We know that that’s a picture of the Statue of Liberty, we

don’t need all the pieces of . . . it.’ ” (Id. at p. 1265.) The Court of Appeal found

that the prosecutor had misrepresented the reasonable doubt standard, explaining

that “[t]he presentation, with the prosecutor’s accompanying argument, leaves the

distinct impression that the reasonable doubt standard may be met by a few pieces

of evidence. It invites the jury to guess or jump to a conclusion, a process

completely at odds with the jury’s serious task of assessing whether the

prosecution has submitted proof beyond a reasonable doubt.” (Id. at p. 1267.)

Additionally, the “prosecutor’s puzzle analogy” contained a “quantitative

component,” in that it suggested that six of eight pieces (that is, 75 percent of the

pieces) were enough to overcome the reasonable doubt standard. (Id. at pp. 1267–

1268.)

In this case, by contrast, the trial court’s scales-of-justice analogy did not

invite the jury “to guess or jump to a conclusion.” (People v. Katzenberger, supra,

178 Cal.App.4th at p. 1267; cf. Centeno, supra, 60 Cal.4th at p. 669 [criticizing

62

“[t]he use of an iconic image like the shape of California or the Statue of Liberty,”

which “necessarily draw on the jurors’ own knowledge” and “trivialize the

deliberative process, essentially turning it into a game that encourages the jurors to

guess or jump to a conclusion”].) Further, in each colloquy challenged by

defendants, the court advised that there is “no number we assign to this and no

percentage,” or gave a similar advisement to that effect.

In short, we do not believe that the trial court’s comments on the reasonable

doubt standard several months before trial were such that they could have had any

impact on the jury’s deliberations. Given the proper instructions repeatedly

provided during trial, there is no “reasonable likelihood that the jury understood

the instructions to allow conviction based on” insufficient proof. (Victor, supra,

511 U.S. at p. 6.) We do, however, reiterate that “modifying the standard

instruction [on reasonable doubt] is perilous, and generally should not be done

. . . .” (Freeman, supra, 8 Cal.4th at p. 504; cf. Sullivan v. Louisiana (1993) 508

U

.

S 2. Aiding and abetting

. Defendants next argue that the trial court’s instructions concerning aiding

and abetting liability were erroneous, and that the error requires us to set aside

2

Michaud’s conviction for the oral copulation of April Doe, and both defendants’

7

convictions for the first degree murder of Samson. We find no reversible error.

5 a. Background

, The evidence adduced at trial did not reveal whether Daveggio, Michaud,

or both, had committed the physical acts that caused Samson’s death. The

2

prosecutor argued that both defendants were, however, guilty of first degree

7

murder, because each was liable in any event for aiding and abetting the actual

9

282 [erroneously instructing on reasonable doubt is structural error requiring

63

automatic reversal].)

killer. The prosecution also raised the question of aiding and abetting liability in

connection with the oral copulation count concerning April Doe: Although the

trial evidence showed that Daveggio, and not Michaud, orally copulated April

Doe, the prosecutor argued that Michaud was nevertheless liable because she had

aided and abetted Daveggio’s misconduct.

The trial court instructed the jury on general principles of aiding and

abetting liability in accordance with the then-current version of CALJIC No. 3.00,

which provided, in pertinent part: “Persons who are involved in committing or

attempting to commit a crime are referred to as principals in that crime. Each

principal, regardless of the extent or manner of participation is equally guilty.

Principals include: [¶] 1. Those who directly and actively commit or attempt to

commit the act constituting the crime, or [¶] 2. Those who aid and abet the

commission or attempted commission of the crime.” The court further charged the

jury with CALJIC No. 3.01, which added, as relevant here: “A person aids and

abets the commission or attempted commission of a crime when he or she,

[¶] 1. With knowledge of the unlawful purpose of the perpetrator and [¶] 2. With

the intent or purpose of committing or encouraging or facilitating the commission

of the crime, and [sic] [¶] 3. By act or advice aids, promotes, encourages or

instigates the commission of the crime.”

Immediately after reading those instructions, the court added, “You may

consider evidence of a defendant’s voluntary intoxication and/or mental disease in

deciding whether he or she possessed the necessary mental state and/or intent,

namely knowledge of the unlawful purpose of the perpetrator and the intent or

purpose of committing, encouraging, or facilitating the commission of a crime.”

64

b. Discussion

Defendants contend that it was error for the trial court to instruct with the

“equally guilty” language in the former version of CALJIC No. 3.00. They

contend that the instruction incorrectly permitted the jury to convict them on the

basis of the culpability of the direct perpetrator of the charged crimes, without

considering whether they shared the perpetrator’s wrongful intent.

As the Attorney General notes, defendants did not raise this objection at

trial, although counsel for Michaud did raise a different objection to the “equally

guilty” language (namely, that it created tension with the special circumstance

instructions, which informed the jury that to find the special circumstances true, it

had to find that Michaud was a major participant in the kidnapping or rape by

instrument). As we have in prior cases, we will assume, without deciding, that

“defendants’ challenge to the ‘ “equally guilty” ’ language in [former CALJIC

No. 3.00] was not forfeited for lack of objection and reach[] the merits of their

claim, as permitted under section 1259.” (People v. Johnson (2016) 62 Cal.4th

600, 639 (Johnson).)

Defendants’ argument departs from the premise that “an aider and abettor’s

criminal liability may sometimes be greater than, or lesser than, that of the

perpetrator.” (Johnson, supra, 62 Cal.4th at p. 638.) As we have explained,

aiding and abetting liability “is based on a combination of the direct perpetrator’s

acts and the aider and abettor’s own acts and own mental state.” (People v.

McCoy (2001) 25 Cal.4th 1111, 1117 (McCoy), italics omitted; see also People v.

Prettyman (1996) 14 Cal.4th 248, 259.) It is therefore possible for a direct

perpetrator and an aider and abettor to be guilty of different degrees of the same

offense, depending on whether they harbored different mental states. For

example, we held in McCoy that a defendant who aided and abetted a fatal

shooting could be convicted of first degree murder, even if the shooter himself,

65

who argued he was acting under unreasonable self-defense, might ultimately be

found guilty only of the lesser crime of voluntary manslaughter. (McCoy, supra,

at p. 1122.) In other words, if an aider and abettor’s “mens rea is more culpable

than another’s, that person’s guilt may be greater even if the other might be

deemed the actual perpetrator.” (Ibid.)13 The Courts of Appeal, following

McCoy, have also held that “an aider and abettor’s guilt may also be less than the

perpetrator’s, if the aider and abettor has a less culpable mental state.” (People v.

Samaniego (2009) 172 Cal.App.4th 1148, 1164 (Samaniego), italics added; see

People v. Nero (2010) 181 Cal.App.4th 504, 513–518; see also People v. Concha

(2009) 47 Cal.4th 653, 666 (Concha).)

As this court has previously explained, however, former CALJIC No. 3.00

“generally stated a correct rule of law. All principals, including aiders and

abettors, are ‘equally guilty’ in the sense that they are all criminally liable.”

(Bryant, supra, 60 Cal.4th at p. 433, citing Pen. Code, § 31.) But it also “could be

misleading if the principals in a particular case might be guilty of different crimes

and the jury interprets the instruction to preclude such a finding.” (Ibid.)14 The

13 We take no position on whether this general rule applies when an aider and

abettor intends to commit a nonhomicide offense, and the direct perpetrator is

guilty only of a lesser offense. (See McCoy, supra, 25 Cal.4th at p. 1122, fn. 3.)

Nor do we express any view on the scope of other possible exceptions inapplicable

here (such as a rule prohibiting a minor for being charged with aiding and abetting

statutory rape).

We further note that an aider and abettor may be liable for certain criminal

conduct that he or she did not intend to facilitate, based on the so-called “natural

and probable consequences doctrine.” (People v. Chiu (2014) 59 Cal.4th 155,

164.) That doctrine is not at issue in this appeal and could not, in any event,

support a conviction for first degree murder. (Id. at pp. 166–167.)

14 To avoid confusion, former CALJIC No. 3.00 was modified in 2010. The

“instruction now states in relevant part, ‘Persons who are involved in [committing]

[or] [attempting to commit] a crime are referred to as principals in that crime.

Each principal, regardless of the extent or manner of participation is [equally

(Footnote continued on next page.)

66

question before us, then, is whether there is a reasonable likelihood that the jury

might “have been misled in this respect in the present matter.” (Johnson, supra,

62 Cal.4th at p. 640; see also People v. Nunez (2013) 57 Cal.4th 1, 44.) To answer

that question, we consider the first degree murder and oral copulation charges in

turn.

i. First degree murder

“[A] defendant may be liable for murder when he possesses the appropriate

mens rea and either the defendant or an accomplice [proximately] causes an

unlawful death.” (Concha, supra, 47 Cal.4th at p. 660.) “To satisfy the mens rea

element of murder, the defendant must personally act with malice aforethought”

(ibid.; see Pen. Code, § 187, subd. (a)), and does so when he intended the killing

(Pen. Code, § 188). “[I]f the intent to kill is formed after premeditation and

deliberation,” the murder is first degree murder. (People v. Gonzalez (2012) 54

Cal.4th 643, 653 (Gonzalez); see also Pen. Code, § 189; People v. Delgado (2017)

2 Cal.5th 544, 571.)

Defendants argue that the jury could not have convicted the aider and

abettor of first degree premeditated murder if it believed that the actual perpetrator

committed that crime, and that the aider and abettor assisted in its commission, but

without premeditation. Any determination that a defendant was an aider and

abettor required a conclusion that the defendant intended to further Samson’s

killing; the court advised the jury (per CALJIC No. 3.01) that in order to find that

either defendant was an aider and abettor, the jury had to find that the defendant

guilty.] [guilty of a crime.]’ The Use Note indicates that in cases presenting the

issue whether the aider and abettor’s mens rea suggests his or her guilt may be

greater or lesser than that of the actual perpetrator, the court should instruct with

the ‘ “guilty of a crime” ’ language instead of ‘ “equally guilty.” ’ (Use Note to

CALJIC No. 3.00 (Spring 2010 rev.).)” (Johnson, supra, 62 Cal.4th at p. 640, fn.

5.)

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knew of the perpetrator’s unlawful purpose and acted with the intent or purpose of

committing, encouraging, or facilitating the crime. (Cf. Johnson, supra, 62

Cal.4th at pp. 640–641.) But while intent to kill establishes express malice (Pen.

Code, § 188), it does not itself establish deliberation and premeditation (see, e.g.,

People v. Koontz (2002) 27 Cal.4th 1041, 1080).

That said, “[i]t would be virtually impossible for a person to know of

another’s intent to murder and decide to aid in accomplishing the crime without at

least a brief period of deliberation and premeditation, which is all that is required.”

(Samaniego, supra, 172 Cal.App.4th at p. 1166.) And under the circumstances of

the case, it is exceedingly unlikely that a jury convinced that one of the defendants

was an aider and abettor, but not provided with the “equally guilty” language,

would have reached a different result regarding premeditation. As noted,

Daveggio conceded that the jury could find him guilty of first degree murder; his

theory of defense was that jury could not return a true finding as to the special

circumstances because he and Michaud kidnapped Samson for the sole purpose of

killing her. Michaud, for her part, adopted Daveggio’s argument that the

kidnapping was incidental to the murder. Her primary defense was that she was

controlled by Daveggio and did not voluntarily act in concert with him. But even

had the jury credited her theory, Daveggio’s control over her would not have

negated the conclusion that she aided in the crime after “at least a brief period of

deliberation and premeditation”—which, again, “is all that is required.” (Ibid.)

And here, it bears noting, the evidence of deliberation and premeditation was

unusually direct: April Doe testified that she discussed going on a “hunting” with

both Daveggio and Michaud. April testified that Michaud, in particular, not only

asked her if she wanted to join in the “hunting,” but became angry when April

declined.

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Michaud suggests in passing that she was acting under duress, but, as she

acknowledges, duress is not a defense to a capital crime. (See People v. Vieira

(2005) 35 Cal.4th 264, 290.) She argues that duress may nevertheless negate the

deliberation or premeditation required for first degree murder. This is true only in

a limited sense. This court has previously acknowledged that “a killing under

duress, like any killing, may or may not be premeditated, depending on the

circumstances.” (People v. Anderson (2002) 28 Cal.4th 767, 784.) For example,

“[i]f a person obeys an order to kill without reflection, the jury might find no

premeditation and thus convict of second degree murder.” (Ibid.) But this case

involves no comparable circumstances. Even if, as Michaud argues, she was

“submissive to Daveggio,” she points to no evidence suggesting that she acted

without reflection.

Finally, even if the jury could have somehow found that an accomplice to

Samson’s murder had not premeditated the killing, the jury was also told that it

could find defendants guilty of first degree murder based on the felony-murder

doctrine. “Felony-murder liability does not require an intent to kill, or even

implied malice . . . .” (Gonzalez, supra, 54 Cal.4th at p. 654.) Instead, under that

doctrine, “when the defendant or an accomplice kills someone during the

commission, or attempted commission, of an inherently dangerous felony, the

defendant is liable for either first or second degree murder, depending on the

felony committed. If the felony is listed in [Penal Code] section 189, the murder

is of the first degree . . . .” (Ibid.) Rape and kidnapping are listed felonies. (See

Pen. Code, § 189.) The jury found true, with respect to each defendant, the special

circumstance that Samson’s killing “was committed while the defendant . . . was

engaged in and an accomplice in the commission, the attempted commission and

the flight thereafter of a felony, to wit: KIDNAPPING, a violation of section 207

of the Penal Code . . . .” This alone establishes defendants’ guilt of first degree

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murder. Accordingly, there was no reversible error here. (See People

v. Bacigalupo (1991) 1 Cal.4th 103, 125 [any error in refusing requested

instructions regarding premeditation was harmless because robbery special

circumstance finding meant “the murder verdicts [were] not dependent on findings

that the killings were deliberate or premeditated”]; People v. Sedeno (1974) 10

Cal.3d 703, 721; cf. People v. Covarrubias (2016) 1 Cal.5th 838, 905

(Covarrubias) [declining to decide whether “a jury should be permitted to find an

aider and abettor less culpable than the actual perpetrator of the target crimes”

because “[t]he felony-murder and conspiracy verdicts completely eliminate the

possibility that defendant could have been convicted of anything less than first

degree murder”].)

ii. Oral Copulation

Michaud also argues that her conviction for oral copulation with a person

under 18 years of age must be set aside because of the “equally guilty” instruction.

As noted, there was evidence that at least one of the defendants (Daveggio) was a

direct perpetrator of the oral copulation of April Doe, and that the other (Michaud)

was not. Michaud also notes that the jury requested a read-back of part of April’s

testimony; asked whether physical contact was “necessary” to convict her of this

offense, or whether Michaud could “be found to be a principal by aid and abet”;

and was reinstructed with CALJIC No. 3.00.

This argument lacks merit. As noted, the court’s aiding and abetting

instructions (per CALJIC No. 3.01) made clear that Michaud could be convicted

as an aider and abettor only if she intended to commit, encourage, or facilitate

Daveggio’s criminal acts. And there are no differing degrees of the crime of oral

copulation based on different mental states. There is thus no possibility that the

jury might have found the two defendants “guilty of different crimes” based on

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their different mental states, but for potential misinterpretation of former CALJIC

No. 3.00’s “equally guilty” language. (See Bryant, supra, 60 Cal.4th at p. 433.)

Finally, and in any event, we note that ample evidence supported the jury’s

conclusion that Michaud did intend to commit, encourage, or facilitate Daveggio’s

criminal acts, including April’s testimony that “Michelle came and sat next to

me. . . . She told me that when my dad got out of the shower he was going to have

oral sex with me,” and April’s further testimony that at some point during the

assault, “Michelle layed on the floor and gave my dad head.”

3. Kidnapping as incidental to the murder

Defendants next contend that the trial court erred by denying their request

for a pinpoint instruction concerning the kidnapping special circumstance

allegation. We find no error.

a. Background

As previously noted, the jury was asked to decide the truth of two special

circumstance allegations: kidnapping and rape by instrument. (See Pen. Code,

§ 190.2, subd. (a)(17)(B), (K).) Before the case was submitted to the jury, the

court and the parties discussed the propriety of the relevant pattern instruction,

CALJIC No. 8.81.17. Citing Ario v. Superior Court (1981) 124 Cal.App.3d 285,

the defense proposed that the pattern instruction be modified or supplemented to

say: “If you find that the kidnapping was for the purpose of murder, then under

the law, murder was not committed while the defendant was engaged in

kidnapping. Hence, the special circumstances of murder in commission of

kidnapping is not established.” The prosecutor objected that defendants’ proposed

language misstated the law, and the court rejected defendants’ request. It

explained that the proposed language would erroneously suggest “that any killing

that took place while a kidnapping was going on couldn’t be a felony murder.”

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The court did, however, recite other language from the Ario decision, which

the court included (with slight modification) in its oral and written instructions to

the jury. Between the pattern instruction, a further instruction requested by the

prosecutor, and the language from Ario identified by the court, the jury was

instructed:

“To find that the special circumstance, referred to in these instructions as

murder in the commission of a Kidnapping in violation of Penal Code section 207,

or Rape by Instrument, in violation of Penal Code [s]ection 289, is true, it must be

proved:

“1. The murder was committed while a defendant was engaged in or was

an accomplice in the commission or attempted commission of Kidnapping, or

Rape by Instrument; and

“2. The murder was committed in order to carry out or advance the

commission of the crime of Kidnapping, or Rape by Instrument, or to facilitate the

escape therefrom or to avoid detection. In other words, the special circumstance

referred to in these instructions is not established if the Kidnapping, or Rape by

Instrument was merely incidental to the commission of the murder.

“[Court’s addition:] Either one or both of the felony murder special

circumstances may be found to be true only if the evidence demonstrates that the

felony was for some independent purpose other than merely to facilitate the crime

of murder. If the kidnapping or the rape by instrument was merely incidental to

the murder, then the felony murder special circumstance is not established.

“[Prosecutor’s requested addition:] Concurrent intent to kill and commit an

independent felony will support a felony-murder special circumstance.”

b. Discussion

Under the law in effect at the time of Samson’s murder, the kidnapping

special circumstance allegation required proof of an “independent felonious

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purpose.” (People v. Thompson (1980) 27 Cal.3d 303, 324; see also Pen. Code,

§ 190.2, subd. (a)(17)(M) [change in law]; People v. Brooks (2017) 2 Cal.4th 674,

734–736 & fn. 8.) Such a purpose existed so long as defendants had “a concurrent

purpose to commit both the murder” and the kidnapping. (People v. Brents (2012)

53 Cal.4th 599, 609 (Brents); see also People v. Castaneda (2011) 51 Cal.4th

1292, 1326–1327.) If, by contrast, the kidnapping was “merely incidental to the

murder,” then the kidnapping special circumstance allegation was false. (People

v. Green (1980) 27 Cal.3d 1, 61.)

Defendants contend that the trial court erred by denying their request for a

pinpoint instruction advising the jury that it could not find the kidnapping special

circumstance true if it found “the kidnapping was for the purpose of murder.”

This claim is unavailing. It is generally true that “[a] criminal defendant is

entitled, on request, to a[n] instruction ‘pinpointing’ the theory of his defense.”

(People v. Wharton (1991) 53 Cal.3d 522, 570.) But a request for a particular

instruction may be denied if the instruction is argumentative (id. at pp. 570–571),

misstates the law (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142), or

duplicates other instructions (id. at p. 1144). Here, defendants’ proposed

instruction misstated the law insofar as it suggested that the jury could not render a

true finding if it found that the “kidnapping was for the purpose of murder”; as the

court correctly instructed the jury, “a concurrent purpose to commit” both murder

and kidnapping would support a true finding (Brents, supra, 53 Cal.4th at p. 609).

In any event, to the extent the purpose of the pinpoint instruction was to inform the

jury of the “independent felonious purpose” requirement, the point was adequately

conveyed by the instruction the court gave: “Either one or both of the felony

murder special circumstances may be found to be true only if the evidence

demonstrates that the felony was for some independent purpose other than merely

to facilitate the crime of murder. If the kidnapping or the rape by instrument was

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merely incidental to the murder, then the felony murder special circumstance is

not established.”

4. Calling attention to Michaud’s decision not to testify

Michaud argues that the trial court committed reversible error by calling

attention to her decision not to testify during the guilt phase. We find no error.

a. Background

Neither defendant testified during the trial’s guilt phase. The trial court

advised that it would instruct the jury with CALJIC No. 2.60, which provides: “A

defendant in a criminal trial has a constitutional right not to be compelled to

testify. You must not draw any inference from the fact that a defendant does not

testify. Further, you must neither discuss this matter nor permit it to enter into

your deliberations in any way.” Michaud objected that the instruction would call

attention to her decision not to testify; Daveggio requested that the instruction be

given. The court gave the instruction.

b. Discussion

The Fifth Amendment of the federal Constitution provides that “[n]o person

. . . shall be compelled in any criminal case to be a witness against himself.” (U.S.

Const., 5th Amend.) That provision “forbids either comment by the prosecution

on the accused’s silence or instructions by the court that such silence is evidence

of guilt.” (Griffin v. California (1965) 380 U.S. 609, 615; accord, People v.

Thompson, supra, 1 Cal.5th at p. 1117.) But as the high court explained in

Lakeside v. Oregon (1978) 435 U.S. 333 (Lakeside), “a judge’s instruction that the

jury must draw no adverse inferences of any kind from the defendant’s exercise of

his privilege not to testify is ‘comment’ of an entirely different order”—and does

not violate the constitutional privilege against self-incrimination. (Id. at p. 339.)

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Michaud nevertheless faults the trial court for giving the instruction over

her objection. She notes that, after Lakeside was decided, we explained that “the

purpose of the instruction is to protect the defendant, and if the defendant does not

want it given[,] the trial court should accede to that request, notwithstanding the

lack of a constitutional requirement to do so.” (People v. Roberts (1992) 2 Cal.4th

271, 314 (Roberts); see also Lakeside, supra, 435 U.S. at p. 340 [state law may

forbid courts from giving such instructions over a defendant’s objection].)

The central problem with this argument is that, while Michaud objected to

CALJIC No. 2.60, Daveggio asked that the instruction be given. “[T]he Fifth

Amendment requires that a criminal trial judge must give a ‘no-adverse-inference’

jury instruction when requested by a defendant to do so.” (Carter v. Kentucky

(1981) 450 U.S. 288, 300.) If Michaud means to suggest that our state-law

holding that courts should honor requests to omit CALJIC No. 2.60 displaces

Daveggio’s federal constitutional right to a no-adverse-inference instruction, the

suggestion is incorrect. (See U.S. Const., art. VI, cl. 2 [Supremacy Clause].)

In any event, any error was plainly harmless beyond a reasonable doubt.

“We must assume that the jury followed the admonition not to take into account

defendant’s failure to testify. Under that view, it is inconceivable that the giving

of the instruction led to a less favorable outcome for defendant.” (Roberts, supra,

2 Cal.4th at pp. 314–315; cf. Lakeside, supra, 435 U.S. at p. 340 [it is “very

doubtful” that, absent a no-adverse-inference instruction, “the jurors [would] have

not noticed that the defendant did not testify”].)

E. Prosecutorial Misconduct

Defendants contend that the attorney who prosecuted the case, Angela

Backers, engaged in several instances of misconduct, primarily during her opening

statement at the guilt phase.

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A claim of prosecutorial misconduct is ordinarily preserved for appeal only

if the defendant made “a timely and specific objection at trial” and requested an

admonition. (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 (Seumanu); see

also People v. Gonzales (2012) 54 Cal.4th 1234, 1275 [claim of error forfeited

where objection was made and sustained, but no admonition was requested];

People v. Maciel (2013) 57 Cal.4th 482, 528 [rule applies to challenge to playing

of videotape].) “ ‘The primary purpose of the requirement that a defendant object

at trial to argument constituting prosecutorial misconduct is to give the trial court

an opportunity, through admonition of the jury, to correct any error and mitigate

any prejudice.’ [Citation.]” (Seumanu, at p. 1328.) Consistent with that purpose,

“[a] court will excuse a defendant’s failure to object only if an objection would

have been futile” (People v. Jackson (2016) 1 Cal.5th 269, 349), or if an

admonition would not have mitigated the harm caused by the misconduct (ibid.;

see People v. Valdez (2004) 32 Cal.4th 73, 125, 133). “ ‘[T]he absence of a

request for a curative admonition’ ” may likewise be excused if “ ‘ “the court

immediately overrules an objection to alleged prosecutorial misconduct [and as a

consequence] the defendant has no opportunity to make such a request.” ’ ”

(Seumanu, at pp. 1328–1329.) “A defendant claiming that one of these exceptions

applies must find support for his or her claim in the record. [Citation.] The ritual

incantation that an exception applies is not enough.” (People v. Panah (2005) 35

Cal.4th 395, 462.)

As we have previously explained, “the term prosecutorial ‘misconduct’ is

somewhat of a misnomer to the extent that it suggests a prosecutor must act with a

culpable state of mind. A more apt description of the transgression is

prosecutorial error.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 (Hill).)

Such error occurs, as a matter of state law, when a prosecutor “engage[s] in

deceptive or reprehensible tactics in order to persuade the trier of fact to convict.”

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(People v. Lightsey (2012) 54 Cal.4th 668, 718.) Federal constitutional error

occurs only when the prosecutor’s actions “comprise a pattern of conduct that is

serious and egregious, such that the trial is rendered so unfair that the resulting

conviction violates the defendant’s right to due process of law.” (Ibid.) “In order

to be entitled to relief under state law, defendant must show that the challenged

conduct raised a reasonable likelihood of a more favorable verdict.” (People v.

Blacksher (2011) 52 Cal.4th 769, 828, fn. 35 (Blacksher).) Under federal law,

relief is not available if “the challenged conduct was . . . harmless beyond a

reasonable doubt.” (Ibid.)

We limit our discussion to the claims of error that were at least arguably

preserved by an objection and request for an admonition, as well as claims as to

which defendants colorably argue that objection would have been futile. (Cf.

People v. Fuiava (2012) 53 Cal.4th 622, 681 (Fuiava).) Because defendants’

theories of futility are interwoven with their arguments on the merits, our

discussion of those futility theories is as well.

1. Opening statement

Defendants complain of several comments made by Ms. Backers during her

opening statement. “[W]hen [a] claim focuses upon comments made by the

prosecutor before the jury, the question is whether there is a reasonable likelihood

that the jury construed or applied any of the complained-of remarks in an

objectionable fashion.” (People v. Samayoa (1997) 15 Cal.4th 795, 841

(Samayoa).)

a. Description of Aleda Doe incident

Much of Ms. Backers’s initial description of the Aleda Doe incident was a

dry recitation of what the evidence would show. Other portions, however, include

the following statements, which were interspersed between others:

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“Now, I would like to tell you about a little Salvadorian woman by the

name of Aleda Doe who fell prey to the defendants on September 29th.”

“Aleda Doe is a beautiful young 21-year-old Salvadorian woman who came

to America to build a life for herself and [her] family.”

“Michaud drove the van away with Aleda as their prisoner, their victim.”

“[Daveggio] forced himself on Aleda all the way from Reno to Auburn,

California. He assaulted this little four-foot-ten girl for 93 miles. [¶] . . . [¶] He

forced this little girl to touch his testicles with her hands. . . . [¶] Daveggio

shoved his fingers into Aleda’s vagina. He shoved them into Aleda’s rectum. He

raped Aleda by shoving his penis into Aleda’s vagina. [¶] The driver, Michelle

Michaud, kept glancing back over her shoulder to watch. While Daveggio was on

top of Aleda and forcibly raping her, Aleda pulled on Michaud’s hair to try to get

help, but she refused to come to her aid. [¶] During this rape, Daveggio did not

ejaculate at this point.”

“While Daveggio forced Aleda to orally copulate his penis, he kissed her

on the neck. He now took his penis out of her mouth and began masturbating.

Daveggio ejaculated in Aleda’s face. He ejaculated on her face and in her hair.”

“At this point, Aleda knew they were going to kill her so she started

begging for her life. Begging. . . . [¶] . . . Daveggio refused to take Aleda back to

Reno because he said she might do something stupid. Aleda continued to beg.

That is fine. You can drop me off right here. She just wanted to live. Then

Daveggio said to Michaud: So, Mickey, what do you think? [¶] Michaud

answered: well, let me think about it for ten minutes. [¶] While Michaud thought

about whether Aleda would live or die, Daveggio allowed Aleda to get dressed.”

After Ms. Backers reached a stopping point in her description of the

incident, the following colloquy occurred:

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“THE COURT: All right. Ladies and Gentlemen, we will take a recess at

this time. . . .

“[DEFENSE COUNSEL]: May we approach the bench?

“(Whereupon, the following proceedings were held at sidebar.)

“[DEFENSE COUNSEL]: Your honor, I will object to some of

Ms. Backers’ opening comments. The detail that she is presenting on Aleda Doe

is only calculated to inflame the jury. The court has allowed the Aleda Doe

testimony to come in for the purpose of similar and [sic] identity. [¶] There is no

evidence that I can recall that this kind of conduct occurred to the victim. There is

no evidence of ejaculation on Samson, the 187 victim. The court said that it can

come in because it is a similar for identity. None of this detail has been indicated

to have occurred to the 187 victim. It is only calculated for the prosecution to try

to have the jury be inflamed and speculate that this sort of thing might have

happened to Ms. Samson. [¶] So I know what the court’s ruling is on the

evidence, but I want to be clear that from its inception Ms. Backers is attempting

to inflame this jury. [¶] . . . [¶]

“THE COURT: I have a bigger problem with the way it is being presented.

I mean, I have about reached the limit: As Michelle thought about whether she

lives or dies? You have no damned idea of what Michelle was thinking about.

That is argument. That is an inference as to what was going on as to what the

initial plan was. I mean, you are arguing the case.

“MS. BACKERS: Excuse me. That is what the victim is going to testify

to.

“THE COURT: She doesn’t know what Michelle Michaud was thinking

about.

“MS. BACKERS: She knows that the defendant Daveggio said he was

leaving it up to Michelle.

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“THE COURT: Leaving what up? That is an inference.

“MS. BACKERS: That was the conversation she heard.

“THE COURT: That is an inference, Ms. Backers. I am putting you on

notice that if this continues, I will start making objections while you are doing it.

That is argument. What Michelle was thinking is argument. It is an inference that

can be drawn from the facts. I will let you argue that, but you are not going to do

it in opening statement. This is an opening statement. This is not closing

argument. And you are arguing the case and you know better. And I am trying to

get everybody to get this thing started, but I am not a happy camper with the way

this is going. So you are on notice that you better start presenting this stuff as an

opening statement and not [a] closing argument.

“[DEFENSE COUNSEL]: I was also going to ask, since she has been

talking th

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