People v. Anderson

Filed 6/28/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S138474

v. )

)

ERIC ANDERSON, )

) San Diego County

Defendant and Appellant. ) Super. Ct. No. SCE230405

____________________________________)

A jury convicted defendant, Eric Anderson, of the first degree murder of

Stephen Brucker under the special circumstances of murder in the commission or

attempted commission of robbery and burglary. It also convicted him of

conspiracy to commit robbery and burglary and two counts of residential burglary.

It found defendant personally discharged a firearm during the commission of the

murder and conspiracy. After defendant waived a jury, the court convicted him of

being a felon in possession of a firearm. It also found true that he had suffered

two prior serious felony convictions and a third strike conviction, and that he had

served one prior prison term. After a penalty trial, the jury returned a verdict of

death. The court denied the automatic motion to modify the verdict and imposed a

judgment of death. It also imposed a prison sentence on the other counts and

enhancement allegations. This appeal is automatic.

We modify the judgment by striking a one-year enhancement the trial court

imposed for the prior prison term and, as modified, affirm the judgment.

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I. THE FACTS

A. Guilt Phase

1. Overview

Defendant and others conspired to commit burglary and robbery at the

home of Stephen Brucker. On April 14, 2003, when the conspirators arrived at the

home, Brucker confronted them at the door. Defendant shot Brucker in the chest,

mortally wounding him, after which the conspirators fled. Previously, defendant

had committed two other residential burglaries.1

2. Prosecution Evidence

a. The Completed Burglaries

On January 8, 2003, the home of Arlene Bell in La Mesa was burglarized.

The home was ransacked, and many items were taken, including a carved jewelry

box with a “Made in Poland” label and some silver coins. Police later found the

jewelry box and silver coins in defendant’s residence in Poway. The items were

found in the bedroom of defendant’s housemate, James Stevens, to which

defendant had access. Inside the jewelry box were credit cards in defendant’s

name. Later, a cell phone not belonging to the Bell family was discovered in their

house. It had apparently fallen under a load of firewood. Defendant was the

subscriber of the cell phone’s telephone number.

On April 9, 2003, the home of John and Pamela Dolan in Alpine was

burglarized. The home was ransacked, and various items were missing, including

a .22-caliber handgun and a ring containing the inscription “Jenny.” Defendant

1 Originally, there were three codefendants: Brandon Handshoe, Apollo

Huhn, and Randy Lee. None are involved in this appeal. Handshoe pleaded guilty

to reduced charges and agreed to testify. Lee was tried with defendant and

acquitted of all charges. Huhn was tried simultaneously but with a different jury.

He was convicted of murder with special circumstances and conspiracy. His

judgment was later reversed on appeal.

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later gave the ring to his girlfriend’s mother, who turned it over to law

enforcement. The stolen handgun was found under the seat of the Ford truck

defendant was driving when he was arrested in Oregon on May 16, 2003.

Matthew Hansen, a San Diego police officer, lived across the street from

the Dolan home. The day of the burglary, he heard a Ford Bronco that was “kind

of loud” drive down the Dolan driveway. When the Bronco emerged from the

driveway, Hansen paid particular attention. He “could distinctly hear it because it

was loud sounding leaving his driveway.” The next day, while driving in the area,

Hansen observed the same Bronco, with the same loud sound. It “sound[ed] like

there was some sort of exhaust problem on the vehicle.” Defendant was the

driver. Hansen wrote down the Bronco’s license number. The vehicle had been

purchased by, and was registered to, defendant. Police sometimes saw it at

defendant’s residence.

b. The Brucker Crimes

Stephen Brucker lived with his family in an unincorporated area of El

Cajon. Randy Lee was familiar with the Brucker home and knew that the family

had a safe. Zachary Paulson, Brandon Handshoe, and Valerie Peretti (Apollo

Huhn’s girlfriend, who was 15 years old and pregnant in April 2003) all testified

that, at various times beginning in 2002, Lee suggested to Handshoe and Huhn

that they burglarize the Brucker house and steal the safe, which, Lee said,

contained $1 million (according to Paulson) or $2 million (according to Peretti).

In early April 2003, defendant, Handshoe, and Huhn gathered at

Handshoe’s mobilehome in the Rios Canyon area of El Cajon and discussed

burglarizing the Brucker home to steal the safe. Paulson testified he was present

at the mobilehome in the first week in April when they discussed a robbery. Huhn

said he could “get into the safe.” Defendant said that “he could hold the guy

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hostage” and would “pistol whip him” if necessary. Handshoe said he would

“watch out.”

Peretti testified that on April 14, 2003, she went to Handshoe’s

mobilehome around 12:30 p.m. Defendant, Huhn, and Handshoe were present.

She sensed that the others did not want her to be there. But then Handshoe told

defendant that it was “okay” because she was Huhn’s girlfriend. Handshoe told

her they were going to rob someone. She observed defendant “messing with some

guns.” She also saw him with a bag containing “disguises.” He had some kind of

a “hair piece” that was “salt and pepper” colored, and thick glasses. The three

talked “about how they were going to do this.” Defendant asked for a piece of

paper, then started drawing what Peretti described as “diagrams . . . of the house

and how he was going to do it.” Defendant did most of the talking. Defendant

“said how they were going to go and do it, and what cars were supposed to be

there, and how the doorway or something was set up.” He told Handshoe “that he

was going to stand over him while Brandon [i.e., Handshoe] could go in and get

the safe or whatever he wanted to do.” Defendant told Huhn to “keep watch.”

Peretti testified that defendant “seemed like he had done this before,” but

Handshoe and Huhn were nervous and scared.

Defendant, Huhn, and Handshoe left the mobilehome in defendant’s

Bronco, with defendant driving. Before they left, defendant pulled out a

semiautomatic firearm from his waistband, cocked it, said, “ ‘Let’s do this fast,’ ”

then put the gun back in his waistband. He provided gloves to Handshoe and

Apollo from his bag. Handshoe also had a firearm. They were gone for about half

an hour. Huhn returned first, appearing scared and upset. Handshoe returned

later.

Peretti admitted that when she first talked to her father and the police about

the crime, she did not tell them that Huhn had gone with the others. She said she

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did not tell them about Huhn’s involvement “[b]ecause I loved him. He’s my

kid’s father.” She received immunity for her testimony.

Handshoe testified that on April 14, 2003, he was at his mobilehome with

Peretti, Huhn, and defendant. Defendant had a black .45-caliber firearm, and he

was “jacking rounds out of it.” At one point, Handshoe gave defendant a piece of

paper on which defendant drew a map. Defendant said something to the effect of,

“We’re going to do this right.” Defendant supplied Handshoe with a gun, which

Handshoe kept in his pocket and did not use.

Defendant, Huhn, and Handshoe then went to the Brucker home to

burglarize it. Defendant drove the three of them in his Bronco. When they

arrived, Handshoe remained in the car on the driveway acting as a “lookout.” He

had a walkie-talkie that defendant had supplied. Defendant, his firearm tucked

under his arm, and Huhn walked towards the front door and out of Handshoe’s

line of vision. Defendant was wearing what Handshoe said was a “disguise”—a

baseball cap and a wig. They were gone at most two minutes. Then Handshoe

heard a gunshot followed by a scream. Defendant and Huhn ran back to the car

and they “took off,” with defendant driving. Defendant “said something along the

lines of things went wrong and he shot the guy.”

While they were driving, Handshoe asked to get out of the car. Defendant

dropped him off, telling Handshoe that “if we were to say anything, we would be

next.” Handshoe went to a friend’s house then returned to his home. Peretti and

Huhn were there when he returned.

After being shot, Brucker called 911. He told the dispatcher that two White

males knocked on the door, and then one of them shot him in the heart. San Diego

County Deputy Sheriff Karl Miller was the first law enforcement officer to

respond. The front door of the Brucker house was open but the screen door was

closed. Deputy Miller heard someone inside say, “ ‘I’m in here.’ ” He went

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inside and observed Brucker on the telephone. Brucker had blood “all down to his

waist area.” He was conscious but in a lot of pain.

Deputy Miller asked what happened. Brucker responded that he had heard

somebody at the front door. He went to the door and saw two men standing there.

Brucker “told them to leave the property or, in his words, ‘Get the fuck off my

property.’ ” After the men said something in reply, Brucker repeated to them what

he had said. Then, Brucker reported, one of the men said, “Fuck you,” and shot

him in the chest. He described the shooter as White, in his “30’s,” with a “salt-

and-pepper beard,” and wearing a black and white baseball cap. Of the other man,

Brucker said only that he was “a 20 year old.” (Defendant was 29 years old at the

time, Huhn was 22.)

Brucker was rushed to the hospital but soon died of a single gunshot wound

to his torso. A .45-caliber shell casing was found near the front door of the house.

Several witnesses who lived in the area testified that around the time of the

shooting, they observed a Bronco generally described as similar to defendant’s

either emerging from the Brucker house or nearby. One witness said the vehicle

was going fast, and the driver was wearing a “ball cap.” Another witness said the

vehicle went “zooming” by, and it was “very loud.” Another witness said the

vehicle had a loud and distinctive sound. One witness thought the Bronco she saw

was lighter in color than defendant’s. Previously, the same witness had told an

investigator that the driver was wearing a baseball cap and sunglasses and had a

mustache.

Travis Northcutt, a roommate of defendant’s along with James Stevens,

told Steven Baker, an investigator with the district attorney’s office, that defendant

had told him “that something big was going to happen, a big hit that involved a

safe.” Northcutt also told the investigator that when he, Stevens, and defendant

were watching a newscast of the Brucker murder, defendant told him to “ ‘keep

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his fucking mouth shut,’ that he was only the third person to know that [defendant]

was involved and if he didn’t keep his mouth shut, he would be next.” Northcutt

also said he had seen defendant wearing a “goofy hairpiece.” When called to

testify, Northcutt generally denied the truth of these statements.

Charlene Hause, who had been defendant’s girlfriend, testified that he

normally drove a Bronco. But the last time she saw him, later in April 2003, he

drove a white truck. He told her he was using that truck “because they knew his

Bronco.” He had shaved off his mustache and said he was leaving the San Diego

area because of a parole violation.

Defendant’s parole agent testified that on April 30, 2003, when defendant

was at large, and after stolen property had been found in James Stevens’s and

defendant’s residence, resulting in Stevens being placed into custody, defendant

left a message on the voicemail of Stevens’s parole agent’s saying, “ ‘It’s all

fucking mine. Come and get me.’ ”

After the shooting, defendant went to Oregon. On May 16, 2003, Oregon

police stopped him while driving a white truck in Harney County. He had no

identification and said his name was James Stevens. The truck contained

materials for making false identification cards, a handcuff key, and the handgun

stolen from the Dolan home. Defendant was arrested and booked into the local

county jail under the name of James Stevens. His true identity was learned the

next day. A further search of the truck revealed a book entitled, “Counterfeit I.D.

Made Easy,” with several passages highlighted in pink.

Three witnesses who had shared a cell with defendant in the Oregon county

jail after his arrest testified that he talked to them about his plans to escape, which

included the possibility of violence against the guards. He showed each of them a

handcuff key in his possession. One of the cellmates drew for defendant a sketch

of the nearby town of Burns and the jail’s location. A search of defendant’s cell in

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July 2003 uncovered the sketch, a bent piece of plastic, three razor blades in a

deck of cards, and two handcuff keys, one on defendant’s person.

In December 2003, Zachary Paulson, then an inmate in the San Diego

County jail, where defendant was also incarcerated, testified against defendant at

the preliminary hearing in this case. On February 14, 2005, several inmates,

including defendant, assaulted Paulson in jail, inflicting serious injuries.

The prosecution also presented telephone records and testimony showing

the existence, although not the content, of telephone calls among the various

participants during relevant times.

3. Defense Evidence

Defendant presented evidence attempting to raise a reasonable doubt as to

his guilt, including evidence challenging the credibility of prosecution witnesses,

especially Handshoe, Paulson, and Peretti; evidence that he often drove a white

truck; evidence regarding his appearance at different times; and evidence that the

Bronco seen in the area of the crime might not have been his.

Jeffrey Gardner, a construction contractor, testified that he employed

defendant the day after the Brucker murder. Defendant arrived at the jobsite

before 7:30 a.m. that morning. The white truck, but not the Bronco, was there.

Defendant was calm and appeared his usual self according to Gardner.

James Stevens testified that sometimes he drove defendant’s Bronco and

sometimes defendant drove his white truck. The day of the Brucker murder,

defendant drove Stevens’s truck. Stevens saw defendant that evening and noticed

nothing unusual about his behavior. The two went to work together the next

morning. Stevens denied that he had ever been with Travis Northcutt and

defendant watching coverage of the Brucker murder or that he heard defendant tell

someone to “shut the fuck up.”

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B. Penalty Phase

1. Prosecution Evidence

The prosecution presented evidence that in July 1995, while driving a truck,

defendant fired around 12 shots from a .22-caliber firearm at the driver of a car

that passed in front of him. He told his passenger something along the lines of,

“That fucking bitch, who does she think she is?” Defendant later told a cellmate

in Oregon “that somebody in the white car had just aggravated him and he

unloaded a clip at the car.”

In March 1995, defendant was convicted of one count of residential

burglary and one count of possession of a stolen vehicle. In July 1995, he was

convicted of two counts of residential burglary.

2. Defense Evidence

Paul Mason testified that in 2003, he was a cellmate of Apollo Huhn. Huhn

told Mason that he went to the door of the Brucker home with “Brandon,” and

Huhn was the one who shot Brucker.

Other than Mason’s testimony, defendant stated that he did not want his

attorneys to present evidence in mitigation. However, the court permitted him to

make a statement to the jury. He told the jury the following:

“I’ve given a lot of thought to what I want to say to you guys, but, you

know, start off is nine pages. I’m down to one page, because, basically, I think

anything I say to you would be a wasted breath. I don’t think you’ll pay attention

to anything I got to say. In one ear, out the other. But I feel compelled to tell you

two things: One is that I don’t give a shit. Give me the death penalty. If you

believe I’m guilty, kill me. The second is: I’m innocent. Your verdict was

wrong, and I hope you all can’t sleep with yourselves. I don’t know what you

expected from my attorneys. This ain’t Perry Mason or Matlock. No one is going

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to run into a courtroom saying, ‘I did it.’ What the hell did you expect? Did you

not listen to the witnesses? Not a single piece of evidence.”

At this point, the court told defendant that this was his chance to address

mitigating factors, not to admonish the jurors. Defendant then completed his

statement: “I really despise all of you and your decision. I don’t think you were

reasonable or fair. Thanks for nothing.”

II. DISCUSSION

A. Issues Regarding Guilt

1. Denial of Motions to Sever the Defendants

Defendant moved to sever his trial from that of the codefendants,

Handshoe, Huhn, and Lee. The court denied the motion, but to protect defendant,

it ordered that Huhn be tried in front of a different jury than defendant and Lee.

Later, defendant joined codefendant Lee’s separate severance motion. The court

denied that motion also. Defendant contends the court erred both times.

“The applicable law is settled. The Legislature has expressed a preference

for joint trials; therefore, two or more defendants jointly charged with crimes must

be tried together unless the court orders separate trials. (Pen. Code, § 1098;

People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 378.) Joint trials

promote efficiency and help avoid inconsistent verdicts. (Zafiro v. United States

(1993) 506 U.S. 534, 537; Bryant, Smith and Wheeler, at pp. 378-379.)

‘[I]mportant concerns of public policy are served if a single jury is given a full and

fair overview of the defendants’ joint conduct and the assertions they make to

defend against [the] ensuing charges.’ (Bryant, Smith and Wheeler, at p. 379.)

The court has discretion to order separate trials if there is an incriminating

confession, prejudicial association, likely confusion due to evidence on multiple

counts, conflicting defenses, or the possibility that a codefendant might provide

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exonerating testimony at a separate trial. (Ibid.) Prejudicial association might

exist if ‘the characteristics or culpability of one or more defendants [is] such that

the jury will find the remaining defendants guilty simply because of their

association with a reprehensible person, rather than assessing each defendant’s

individual guilt of the crimes at issue.’ (Id. at p. 383.) We review the court’s

denial of severance for abuse of discretion based on the facts as of the time of the

ruling. If the court properly denied severance at the time, the reviewing court may

reverse a judgment only if it finds that the joint trial caused gross unfairness that

denied due process. (Id. at p. 379.)” (People v. Sánchez (2016) 63 Cal.4th 411,

463-464.)

We see no abuse of discretion. “Defendant was charged with all of the

crimes, making this a ‘classic case for a joint trial.’ (People v. Bryant, Smith and

Wheeler, supra, 60 Cal.4th at p. 379.)” (People v. Sánchez, supra, 63 Cal.4th at p.

464.) Virtually no reason existed to try the defendants separately. Because the

court ordered a separate jury for Huhn, no incriminating confession was admitted

against defendant. The court had discretion to conclude defendant would not be

prejudiced by association with the codefendants, whom the evidence showed were

less culpable than defendant. Because defendant was charged with all counts,

there was no possibility of confusion due to evidence on multiple counts. No

indication exists that any codefendant would have provided exonerating testimony

at a separate trial.

Defendant argues that Lee’s defense—that Lee was not one of the

conspirators—conflicted with his defense. He notes that the trial court granted a

motion for acquittal of the conspiracy charge that Lee made, and claims the ruling

was erroneous and prejudiced him. We need not decide whether the trial court

correctly acquitted Lee of the conspiracy charge. Lee’s defense was different than

defendant’s, but not antagonistic in a way that prejudiced him. Contrary to

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defendant’s argument, the jury’s acceptance of Lee’s defense would not preclude

it from acquitting defendant. The jury could easily judge Lee’s guilt and

defendant’s guilt separately.

Handshoe later pleaded guilty and testified against defendant under

circumstances discussed in part II.A.5., post. Defendant argues that Handshoe’s

transition from a codefendant to a prosecution witness also made the denial of the

severance motions erroneous. We disagree. The possibility that a codefendant

might later plead guilty—a possibility that always exists when multiple defendants

are charged together—is not one of the factors a court must consider in ruling on a

severance motion. If a codefendant pleads guilty in a way that harms another

defendant, that defendant may make appropriate motions at that time, and an

appellate court may review any resulting rulings. Indeed, defendant does raise on

appeal various arguments regarding Handshoe’s change of plea. We consider

those arguments below. (Pt. II.A.5., post.)

Denial of severance did not violate any federal constitutional right. As the

United States Supreme Court recently explained, trying defendants together, and

allowing the jury to decide based on all the evidence, can increase the reliability of

the resultant verdict. “Joint proceedings are not only permissible but are often

preferable when the joined defendants’ criminal conduct arises out of a single

chain of events. Joint trial may enable a jury ‘to arrive more reliably at its

conclusions regarding the guilt or innocence of a particular defendant . . . .’ ”

(Kansas v. Carr (2016) 577 U.S. __, __ [136 S.Ct. 633, 645]; see People v.

Sánchez, supra, 63 Cal.4th at pp. 465-466.)

“In short, the joint trial was not unfair to defendant at all, much less grossly

unfair. The court acted within its discretion in implementing the legislative

preference for conducting joint trials.” (People v. Sánchez, supra, 63 Cal.4th at p.

466.)

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2. Denial of Motion to Sever Counts

Defendant moved to sever the burglary counts from the counts concerning

the Brucker crimes. The court denied the motion. Defendant contends the court

erred.

The law prefers trying charged offenses together because doing so

ordinarily promotes efficiency. (People v. O’Malley (2016) 62 Cal.4th 944, 967.)

Penal Code section 954 embodies this preference. That section provides as

relevant: “An accusatory pleading may charge two or more different offenses

connected together in their commission, . . . or two or more different offenses of

the same class of crimes or offenses, under separate counts . . . .” (Pen. Code,

§ 954.) “Offenses ‘committed at different times and places against different

victims are nevertheless “connected together in their commission” when they are

. . . linked by a “ ‘common element of substantial importance.’ ” ’ ” (People v.

Mendoza (2000) 24 Cal.4th 130, 160.) The two burglaries and the Brucker crimes

“all involved the intent to illegally obtain property,” which constitutes a common

element of substantial importance that makes joinder proper. (Ibid.; see Alcala v.

Superior Court (2008) 43 Cal.4th 1205, 1219.)

Even if, as here, joinder is proper, the court may order the counts tried

separately. “[T]he court in which a case is triable, in the interests of justice and

for good cause shown, may in its discretion order that the different offenses or

counts set forth in the accusatory pleading be tried separately or divided into two

or more groups and each of said groups tried separately.” (Pen. Code, § 954.)

“When, as here, the statutory requirements for joinder are met, a defendant must

make a clear showing of prejudice to establish that the trial court abused its

discretion in denying the defendant’s severance motion.” (People v. Mendoza,

supra, 24 Cal.4th at p. 160.) “In determining whether a trial court’s refusal to

sever charges amounts to an abuse of discretion, we consider four factors: (1)

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whether evidence of the crimes to be jointly tried is cross-admissible; (2) whether

some charges are unusually likely to inflame the jury against the defendant; (3)

whether a weak case has been joined with a stronger case so that the spillover

effect of aggregate evidence might alter the outcome of some or all of the charges;

and (4) whether any charge carries the death penalty or the joinder of charges

converts the matter into a capital case.” (People v. O’Malley, supra, 62 Cal.4th at

p. 968.)

We see no abuse of discretion. The trial court carefully considered each of

these factors when it exercised its discretion. Cross-admissibility is not “a

precondition to joinder of charges.” (People v. O’Malley, supra, 62 Cal.4th at p.

968, citing Pen. Code, § 954.1.) But, as the trial court found, it exists here to a

“limited” extent. The court did not find cross-admissibility to show identity. “The

greatest degree of similarity is required for evidence of uncharged misconduct to

be relevant to prove identity. For identity to be established, the 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.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) The court

did not find the burglaries sufficiently distinctive to show identity under this

standard.

But the court correctly found that the three incidents (the Bell burglary, the

Dolan burglary, and the Brucker crimes) were mutually relevant on the question of

intent. The least degree of similarity is required to prove intent. All that is needed

is for the crimes to be sufficiently similar to support an inference that the

defendant probably had the same intent each time. (People v. Soper (2009) 45

Cal.4th 759, 776.) Here, evidence that defendant stole property during the

daytime Bell and Dolan burglaries supported an inference that he had a similar

intent at the Brucker home. The crimes were also relevant to show a common plan

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or scheme. “To establish the existence of a common plan or scheme, ‘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.’ ”

(People v. Avila (2006) 38 Cal.4th 491, 586; accord, People v. Capistrano (2014)

59 Cal.4th 830, 849.) The jury could reasonably conclude that the three incidents

were not merely a series of spontaneous acts but part of a plan to steal property

repeatedly during daytime burglaries. Additionally, evidence that defendant used

his Bronco in the Dolan burglary was relevant to show that the Bronco the

witnesses saw at the time of the Brucker crimes was likely defendant’s. It may

have been mere coincidence that a Bronco was used in the two burglaries five days

apart, but, together with the rest of the evidence, the jury could reasonably

conclude otherwise.

The Bell and Dolan burglaries were not likely to inflame the jury regarding

the Brucker crimes. Although the Brucker crimes were far more serious than the

other burglaries, given the strength of the evidence regarding those burglaries, this

circumstance did not compel severance.

This is not a matter of joining a weak case with a stronger one. The

evidence that defendant participated in all three incidents was strong. He left his

cell phone in the Bell home and property from that burglary was found in his

home, albeit in Stevens’s bedroom. Credit cards in defendant’s name were in the

stolen jewelry box. Additionally, defendant later left a voicemail message saying

the items were his and challenging the authorities to “come and get” him.

Defendant’s Bronco was involved in the Dolan burglary, he gave a ring stolen in

that burglary to his girlfriend’s mother, and he possessed a gun stolen in that

burglary when arrested in Oregon. Defendant’s participation in the Brucker

crimes was shown by strong evidence, including the testimony of Zachary

Paulson, Brandon Handshoe, and Valerie Peretti; the testimony of various

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witnesses who saw a Bronco generally similar to defendant’s in the area of the

Brucker crimes; and Brucker’s description of the shooter, which generally

matched defendant and made clear that the shooter was the older of the two who

came to the door. Defendant was the older man by far.

This is a capital case. But that circumstance merely means the court had to

carefully exercise its discretion to avoid prejudicing defendant. It does not

automatically require severance. “Even where the People present capital charges,

joinder is proper so long as evidence of each charge is so strong that consolidation

is unlikely to affect the verdict.” (People v. Ochoa (2001) 26 Cal.4th 398, 423;

accord, People v. O’Malley, supra, 62 Cal.4th at p. 969.) The court acted

reasonably in finding that consolidation was not likely to affect the verdict.

For these reasons, we also reject defendant’s argument that joinder was so

unfair as to violate his federal constitutional rights. The trial court properly

permitted the counts to be tried together.

3. Defendant’s Pitchess Motion

Before trial, defendant made a Pitchess motion (Pitchess v. Superior Court

(1974) 11 Cal.3d 531) to discover past complaints concerning Investigator Steven

Baker that related to dishonesty or other misconduct. The court found defendant

showed good cause for discovery and ordered an in camera review with the

custodian of records in the absence of the prosecutor and defense. After

conducting the hearing, in open court, the court announced to the parties, “The

view has been conducted. No documents are being ordered released.”

“When a defendant shows good cause for the discovery of information in

an officer’s personnel records, the trial court must examine the records in camera

to determine if any information should be disclosed. . . . Pitchess rulings are

reviewed for abuse of discretion.” (People v. Winbush (2017) 2 Cal.5th 402, 424.)

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“[T]o protect the officer’s privacy, the examination of documents and questioning

of the custodian should be done in camera . . . , and the transcript of the in camera

hearing and all copies of the documents should be sealed.” (People v. Mooc

(2001) 26 Cal.4th 1216, 1229.) The trial court did this. Defendant properly asks

us to review the sealed record of the in camera hearing to determine whether the

court erroneously failed to provide discovery that he should have received. (Id. at

pp. 1229-1230.)

We have done so. The trial court did not abuse its discretion. It questioned

the custodian of records carefully to ensure that she had conducted a thorough

search and brought to court all relevant records. It then correctly found there were

no materials to disclose.

4. Admission of Evidence of the Events in Oregon

Before trial, defendant moved to exclude evidence of his flight to Oregon

and his plans to escape from custody. After a hearing, the court denied the

motion. Citing People v. Pensinger (1991) 52 Cal.3d 1210 and People v. Remiro

(1979) 89 Cal.App.3d 809, it found the proffered evidence probative to show

consciousness of guilt and not unduly prejudicial under Evidence Code

section 352. Defendant contends the court erred.

Evidence showing consciousness of guilt, such as flight or escaping from

jail, is generally admissible within the trial court’s discretion. The court’s ruling is

reviewed for abuse of discretion. (People v. Jones (2017) 3 Cal.5th 583, 609-610;

People v. Carrasco (2014) 59 Cal.4th 924, 962-963.) Defendant argues the court

abused its discretion because the consciousness of guilt might have been unrelated

to the Brucker crimes. He notes, for example, that he told Charlene Hause that he

was leaving because of a parole violation. Therefore, he argues, the evidence does

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not necessarily show consciousness of guilt of the charged crimes. We see no

abuse of discretion.

As indicated in the cases the trial court cited, the existence of alternate

explanations for the defendant’s behavior does not necessarily defeat the court’s

discretion to admit consciousness-of-guilt evidence. (People v. Pensinger, supra,

52 Cal.3d at pp. 1243-1244 [instruction on flight as showing consciousness of

guilt permissible even though there was a possible innocent explanation for his

actions]; People v. Remiro, supra, 89 Cal.App.3d at p. 845 [evidence of an escape

attempt admissible despite the possibility the consciousness of guilt might be

ascribed to a different crime].) As stated in one of the cases cited in Remiro, “the

existence of explanations—other than consciousness of guilt of the crime

charged—for conduct which may be interpreted as flight is relevant to the weight

of the evidence showing flight, but not to its admissibility . . . .” (People v. Perry

(1972) 7 Cal.3d 756, 773-774.)

Defendant told Hause he was driving the white truck “because they knew

his Bronco,” which supports the inference that he drove that truck to Oregon due

to the murder in which he had used the Bronco. The jury could readily find that he

mentioned a parole violation to Hause, rather than the murder, for the simple

reason that he did not want to tell her he was implicated in the murder. Defendant

was entitled to argue, or present evidence, that he fled to Oregon and planned to

escape due to his parole status or any other reason. But, in light of all the

evidence, the jury could reasonably infer he drove the white truck and went to

Oregon to avoid the murder charge, which shows consciousness of guilt.

Defendant argues further that even if the evidence of his flight to Oregon

was admissible, the court abused its discretion is admitting the details of his

escape plans and the items found in his truck, on his person, and in his cell. But

the evidence was all part of defendant’s conduct showing a consciousness of guilt.

18

The evidence was admissible “to permit the jury to assess the effect and value of

the evidence on the issue of consciousness of guilt.” (People v. Remiro, supra, 89

Cal.App.3d at p. 845.) The exact nature of defendant’s actions was highly

relevant to whether he merely acted because of a parole violation or because of

something more serious, such as murder. Unlike the situation in People v.

Carrasco, supra, 59 Cal.4th at page 963, defendant’s plans to escape included the

possibility of violence against the guards. But under the circumstances, the court

had discretion to admit all the evidence.

Defendant argues that the alleged error was prejudicial regarding guilt and,

especially, regarding penalty. Because the court did not err, we need not consider

the question. He also argues that, at a minimum, the jury should not have been

allowed to consider the evidence in its penalty deliberations. The penalty jury was

permitted to consider the evidence for the reasons it was admitted at the guilt

phase. “ ‘So long as it considered the evidence offered at the guilt phase of trial

solely for [the purpose it was offered], the jury was entitled to take into account all

of the evidence offered at the guilt phase as part of the “circumstances of the

crime,” an aggravating factor that the jury may consider in its penalty

deliberations. ([Pen. Code,] § 190.3, factor (a).)’ (People v. Champion (1995) 9

Cal.4th 879, 947.) ‘Factor (a) of [Penal Code] section 190.3 allows the prosecutor

and defense counsel to present to the penalty phase jury evidence of all relevant

aggravating and mitigating matters “including but not limited to, the nature and

circumstances of the present offense, . . . and the defendant’s character,

background, history, mental condition and physical condition.” ’ (People v.

Guerra (2006) 37 Cal.4th 1067, 1154, some italics added.) The evidence may be

relevant ‘under [Penal Code] section 190.3, factor (a), to the extent that [it] gives

rise to reasonable inferences concerning the circumstances of the crime and

19

defendant’s culpability.’ (People v. Riggs (2008) 44 Cal.4th 248, 321-322.)”

(People v. Cordova (2015) 62 Cal.4th 104, 140-141.)

Additionally, at least some of the evidence might have been independently

admissible as aggravating evidence at the penalty phase. For example, the

evidence that defendant conspired to commit a forcible escape might have been

admissible as evidence of criminal activity involving the threat to use force or

violence under Penal Code section 190.3, factor (b). But even if some or all of the

evidence was “aggravating evidence of a type not statutorily authorized” (People

v. Champion, supra, 9 Cal.4th at p. 947), defendant cannot show error. “If

defendants had requested the trial court to instruct the jury that it could consider

this evidence only for the light it shed on defendants’ guilt, such an instruction

would perhaps have been appropriate. Defendants, however, did not request such

an instruction, and the trial court was not obligated to give such an instruction on

its own initiative.” (Ibid.; see People v. Barnett (1998) 17 Cal.4th 1044, 1168.)

Defendant did not request such an instruction.

In any event, the events in Oregon were minor compared to the other

evidence in aggravation. The penalty determination did not turn on whether the

jury improperly considered any of that evidence in aggravation for purposes other

than that for which it had been offered at the guilt phase.

5. Issues Regarding Handshoe’s Change of Plea and Testimony

Brandon Handshoe, originally a codefendant, pleaded guilty during jury

selection to reduced charges pursuant to a plea bargain and testified against

defendant. Defendant raises several arguments regarding these circumstances.

a. Factual Background

On April 11, 2005 (all further dates in this discussion of the factual

background are to the year 2005), Handshoe made a “free talk” with the

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prosecution.2 At some point after the talk, the prosecution offered him a plea

bargain that he rejected. On May 2, the prosecution provided the court with a

transcript of the free talk and, around that time, the prosecutor and Handshoe’s

attorney made a joint request to the court that, as the court later characterized it,

“the transcript not be released because it was not exculpatory and the deal had

fallen through” and because of “safety issues.” The court did not rule on the

request at that time.

Jury selection began on May 6, then was continued to May 11, when voir

dire began. Handshoe’s counsel participated in the jury selection process on those

days. On May 11, after jury selection had ended for the day, Handshoe pleaded

guilty and agreed to testify against defendant. At that time, the court had not yet

ruled on the joint request from the prosecutor and Handshoe’s attorney not to

disclose the free talk. The prosecutor provided defendant a transcript of the free

talk the next morning, May 12.

Defendant moved for a mistrial or a continuance due to what he called the

“unfair surprise” of Handshoe’s change of plea. The court denied both motions on

May 17. Opening statements in the case began on May 23. Handshoe testified on

June 3.

When Handshoe pleaded guilty and agreed to testify, he and the prosecutor

entered into a signed, written plea agreement. The agreement specified the exact

terms of the plea bargain and stated that Handshoe would be sentenced to state

prison for a total of 17 years. Additionally, it provided as follows:

2 “As used here, it appears that a ‘free talk’ is a statement about the crime

that a criminal defendant provides to the prosecutor or investigators (or both), in

defense counsel’s presence, with the aim of possibly leading to a plea bargain and

the defendant’s testifying against a codefendant.” (People v. Rices (2017) 4

Cal.5th 49, 82.)

21

“Defendant [i.e., Handshoe] agrees that he will cooperate by providing

information to law enforcement officers and by testifying in any and all

proceeding relating to Eric Anderson, Apollo Huhn and Randy Lee, including but

not limited to the April 14, 2003 murder of Stephen Brucker and any other

criminal matter filed against the above-listed defendants.

“On April 11, 2005 [Handshoe] gave a taped statement to investigators

regarding his knowledge of the circumstances surrounding the attempted

robbery/burglary and murder of Stephen Brucker. [Handshoe] confirms that his

statement is true and accurate as to his observations, his actions, and the actions of

Eric Anderson, Apollo Huhn and Randy Lee. [Handshoe] agrees to submit to

subsequent interviews if deemed necessary.

“Overriding all else, it is understood that this agreement extracts from

Brandon Handshoe an obligation to do nothing more other than to plead guilty to

the listed crimes and to tell the truth. At all times [Handshoe] shall tell the

truth, and nothing other than the truth, both during the investigation and on

the witness stand. [Handshoe] shall tell the truth no matter who asks the

questions—investigators, prosecutors, judges or defense attorneys. It is

further understood that [Handshoe] shall lose the benefits of this agreement for

any intentional deviation from the truth, and if a false statement occurs while he is

on the witness stand, he shall be subjected to prosecution for perjury.

“This agreement is automatically voided if Brandon Handshoe violates his

obligation to tell the truth or refuses to testify in any grand jury or court

proceeding. However, everything [Handshoe] has told law enforcement officers

after the commencement of this agreement can be used against him.” (Boldface in

original.)

The agreement added that Handshoe had read it, discussed it with his

attorney, understood its terms, and voluntarily accepted them. It concluded: “I

22

[Handshoe] agree to testify at all grand jury and court proceedings in exchange for

the benefit which I am going to receive pursuant to this agreement.”

Defendant moved to exclude Handshoe’s testimony on the ground that the

agreement to testify improperly coerced him into testifying in a particular fashion.

After a hearing, the court denied the motion.

b. Analysis

Defendant contends the prosecutor committed misconduct by not providing

timely discovery of the free talk. He did not object in the trial court on this

ground. Indeed, his attorney told the court he was not arguing there was a

discovery violation, and that he understood why the prosecutor did not provide the

discovery until Handshoe pleaded guilty. Accordingly, defendant has forfeited a

claim of misconduct. (People v. Sànchez, supra, 63 Cal.4th at p. 475; People v.

Banks (2014) 59 Cal.4th 1113, 1193.) Defendant did, however, move for a

mistrial or a continuance due to Handshoe’s change of plea and the late discovery.

The court’s denial of those motions is reviewable. Moreover, as we explain, we

see no misconduct or discovery violation, and no error in denying a mistrial or

continuance.

“Normally, the prosecution must disclose to the defendant statements of

other defendants. (Pen. Code, § 1054.1.) However, the prosecutor moved the

court, pursuant to Penal Code section 1054.7, for permission not to provide

discovery of the free talk . . . .” (People v. Rices, supra, 4 Cal.5th at p. 83.)

“Penal Code section 1054.7 provides that disclosure may be ‘denied, restricted, or

deferred’ if ‘good cause is shown.’ ‘ “Good cause” is limited to threats or possible

danger to the safety of a victim or witness, possible loss or destruction of

evidence, or possible compromise of other investigations by law enforcement.’

(Ibid.)” (Id. at p. 83, fn. 3.) “As the prosecutor represented to the court in his

23

motion not to provide the discovery, nothing in the free talk was favorable to

defendant. Accordingly, there was no error under Brady v. Maryland [(1963)] 373

U.S. 83 (concerning the prosecutor’s duty to disclose exculpatory evidence).” (Id.

at p. 84.)

Defendant claims the free talk was exculpatory in that it contained

statements relevant to Handshoe’s credibility. But the talk contained nothing

suggesting defendant’s innocence. To the extent it contained something that might

undermine Handshoe’s credibility, it became relevant only when Handshoe

became a prosecution witness, at which time the prosecution promptly provided it.

It was reasonable for the prosecutor not to disclose the free talk as long as

Handshoe was not likely to testify and the trial court had not ruled on the joint

motion to withhold the discovery. Here, unlike the situation in People v. Rices,

supra, 4 Cal.5th at page 84, the prosecutor provided discovery of the free talk

promptly after Handshoe pleaded guilty, that is, as soon as it became apparent he

would become a witness. In Rices, we assumed error in not providing the

discovery once it became apparent the codefendant would become a witness.

(Ibid.) Here, the prosecutor did provide the discovery. We believe the discovery

was timely under the circumstances. As discussed below, we also see no

prejudice. “A violation of [Penal Code] section 1054.1 is subject to the harmless-

error standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836.” (People

v. Verdugo (2010) 50 Cal.4th 263, 280.)

Defendant did move for a mistrial and a continuance due to these

circumstances. To the extent defendant contends the court erred in denying those

motions, we disagree. No doubt defendant was surprised when Handshoe changed

from a codefendant to a prosecution witness. But that happens sometimes.

Criminal defendants, occasionally including codefendants, sometimes accept a

24

plea offer and plead guilty at the last moment, when actually faced with an

imminent trial. We see nothing prejudicial that required a mistrial.

Relying on two Florida cases, defendant argues he was prejudiced by the

fact that Handshoe’s attorney participated in the beginning of jury selection. In

Kritzman v. State (Fla. 1988) 520 So.2d 568, a codefendant pleaded guilty and

agreed to testify against the remaining defendant. Even after the guilty plea, the

codefendant “was permitted to participate in the jury selection, for purposes of the

sentencing phase of his trial.” (Id. at p. 569.) The court found that “[a]llowing the

state’s star witness to participate in picking the jury that would eventually

determine Kritzman’s guilt and punishment” was reversible error. (Id. at p. 570.)

It noted that the procedure “permitted the state’s chief witness to excuse jurors

who would be prone to disbelieving his story, which implicates Kritzman”; doing

so “deprived Kritzman of the ability to fairly choose jurors, free of this type of

interference from” the former codefendant. (Ibid.) Similarly, in Allen v. State

(Fla.Dist.Ct.App. 1990) 566 So.2d 892, a codefendant participated in the entire

jury selection process, striking two jurors whom the remaining defendant had

accepted; then, after the jury had been sworn, the codefendant pleaded guilty and

became a prosecution witness. Relying on Kritzman, the court found reversible

error because the defendant “was tried before a jury partially chosen by a former

codefendant testifying for the state.” (Id. at p. 893.)

This case is different. Handshoe’s attorney participated in the beginning of

the jury selection process, including one day of voir dire. But he was not involved

in actually choosing the jurors. As soon as Handshoe pleaded guilty, well before

the jury was selected, his attorney stopped participating in the trial. The trial court

could reasonably conclude that the jury would have no difficulty understanding

that Handshoe, although originally a codefendant, had pleaded guilty, and that

25

defendant therefore suffered no prejudice. The court acted within its discretion in

denying the mistrial motion. (People v. Harris (2013) 57 Cal.4th 804, 848.)

The court also acted within its discretion in denying a continuance. “[T]he

decision whether or not to grant a continuance of a matter rests within the sound

discretion of the trial court. [Citations.] The party challenging a ruling on a

continuance bears the burden of establishing an abuse of discretion, and an order

denying a continuance is seldom successfully attacked.” (People v. Beames

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

When the court and the parties discussed whether a continuance was

needed, the prosecutor informed the court that he would probably call Handshoe

as a witness at the end of his case. In fact, Handshoe did not testify until June 3,

some three weeks after defendant received discovery of the free talk and became

aware that Handshoe would testify. The prosecutor made no use of the free talk,

although defendant himself asked Handshoe about it on cross-examination to show

his interest in obtaining as favorable a plea offer as possible. Nothing in the

record suggests that three weeks was an inadequate amount of time for defendant

to prepare for Handshoe’s testimony. The court acted within its discretion in

denying a continuance.

Defendant also argues that the plea agreement improperly coerced him into

testifying in a particular fashion.

“[A] defendant is denied a fair trial if the prosecution’s case depends

substantially upon accomplice testimony and the accomplice witness is placed,

either by the prosecution or the court, under a strong compulsion to testify in a

particular fashion.” (People v. Medina (1974) 41 Cal.App.3d 438, 455; accord,

People v. Homick (2012) 55 Cal.4th 816, 862.) Because of this, “[i]mmunity or

plea agreements may not properly place the accomplice under a strong compulsion

to testify in a particular manner—a requirement that he or she testify in conformity

26

with an earlier statement to the police, for example, or that the testimony result in

defendant’s conviction, would place the witness under compulsion inconsistent

with the defendant’s right to fair trial.” (People v. Jenkins (2000) 22 Cal.4th 900,

1010.) “[W]e review the record and reach an independent judgment whether the

agreement under which the witnesses testified was coercive and whether defendant

was deprived of a fair trial by the introduction of the testimony, keeping in mind

that generally we resolve factual conflicts in favor of the judgment below.” (Ibid.)

Defendant contends Handshoe’s agreement was improperly coercive under

this standard. However, as the bold print in the agreement emphasized, the

agreement required Handshoe to do nothing more than testify truthfully.

“Although we have recognized that there is some compulsion inherent in any plea

agreement or grant of immunity, we have concluded that ‘it is clear that an

agreement requiring only that the witness testify fully and truthfully is valid.’

[Citations.] Such a plea agreement, even if it is clear the prosecutor believes the

witness’s prior statement to the police is the truth, and deviation from that

statement in testimony may result in the withdrawal of the plea offer, does not

place such compulsion upon the witness as to violate the defendant’s right to a fair

trial.” (People v. Jenkins, supra, 22 Cal.4th at p. 1010.) The agreement is not

improperly coercive unless it “is expressly contingent on the witness sticking to a

particular version . . . .” (People v. Garrison (1989) 47 Cal.3d 746, 771; accord,

People v. Homick, supra, 55 Cal.4th at p. 862.)

In the agreement, Handshoe confirmed that his previous statement was true.

But this provision did not make the agreement impermissibly coercive. Nothing in

the agreement indicated that it would be violated if Handshoe were to testify

truthfully yet contradict an aspect of his prior statement. “These principles are

violated only when the agreement requires the witness to testify to prior statements

‘regardless of their truth,’ but not when the truthfulness of those statements is the

27

mutually shared understanding of the witness and the prosecution as the basis for

the plea bargain.” (People v. Homick, supra, 55 Cal.4th at p. 863, citing People v.

Boyer (2006) 38 Cal.4th 412, 456.)

In Boyer, “the agreement stated, ‘the witness has represented that [his]

testimony . . . will be in substance’ ” consistent with his prior taped statements.

(People v. Boyer, supra, 38 Cal.4th at p. 455.) We found this provision not

improperly coercive. “The grant of immunity to Kennedy [the witness], by its

terms, was based on his truthful testimony, which Kennedy himself ‘represented’

would be in accordance with his prior statements. Thus, the agreement simply

reflected the parties’ mutual understanding that the prior statements were the truth,

not that Kennedy must testify consistently with those statements regardless of their

truth.” (Id. at p. 456.) The agreement here was similar.

The agreement also informed Handshoe that if he intentionally lied, the

agreement would be nullified and he (like any witness) could be prosecuted for

perjury. But this language “simply spells out the consequences present in every

plea agreement conditioned on the witness testifying truthfully; it does not amount

to Medina error.” (People v. Homick, supra, 55 Cal.4th at p. 863.)

Accordingly, the trial court correctly permitted Handshoe to testify. Its

ruling did not deny defendant a remedy. He had the opportunity to, and did, cross-

examine Handshoe effectively regarding the plea agreement and any coercive

aspect it may have had. The jury learned about the agreement and the surrounding

circumstances and thus could evaluate Handshoe’s credibility. (People v. Jenkins,

supra, 22 Cal.4th at p. 1012.) “We conclude that the record does not establish that

defendant was denied a fair trial.” (Ibid.)

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6. Refusal to Order a Witness to Undergo Drug Testing

During Valerie Peretti’s testimony, at a conference outside the jury’s

presence, defendant’s attorney stated: “I have a concern as to whether Ms. Peretti

may be under the influence as she is testifying today. Her demeanor is such that

she’s constantly leaning, constantly locking her jaw, and is scratching herself.

Given what I know of her history, I think it is—it would be quite likely that she is

under the influence. And I think if she is, that the jurors would have a right to

know about that. So I would ask the court to order that she produce a urine

sample.” The court denied the request but added, “In terms of cross-examination,

if you feel that there is unresponsiveness, you can inquire.” Defendant argues the

court erred in not requiring the witness to undergo drug testing.

“A witness’s drug intoxication may indeed be a basis for impeaching his

credibility [citations]; in extreme cases it may render him incompetent to testify

[citation]. Defendant must be allowed to explore fully any issue of the witness’s

competence or credibility by cross-examination, subject to the witness’ right

against self-incrimination. [Citation.] But defendant has cited no case, nor have

we discovered one, which suggests that a criminal accused is entitled on demand

to subject a witness to a court-ordered physical intrusion or chemical test to

determine whether he is under the influence of an intoxicating substance.”

(People v. Melton (1988) 44 Cal.3d 713, 737.) Witnesses, as well as criminal

defendants, have a constitutional right “to be free from unwarranted bodily

intrusions by agents of government.” (Ibid.) “[N]o intrusion may be ordered on a

showing less than probable cause.” (Id. at p. 738.) Although most of the cases

involve criminal suspects, “it is manifest that nonparties have equal rights against

unreasonable bodily searches.” (Ibid.) Accordingly, “[a] defendant’s

constitutional right to confront a witness does not entitle him to obtain court-

ordered evidence in violation of the witness’s constitutional rights against

29

unreasonable searches and seizures.” (Ibid; accord, People v. Earp (1999) 20

Cal.4th 826, 882.) Before the court can order a witness to undergo drug testing it

must find probable cause to believe doing so will uncover material evidence.

(Earp, at p. 882.)

We need not decide whether the circumstances would have permitted the

court to order Peretti to undergo drug testing, for nothing in the record suggests

the court was compelled to do so. Defense counsel argued for drug testing, but

that alone did not compel the court to order it. The judge was present and was in a

far better position than this court to determine the necessity and propriety of

subjecting the witness to drug testing. But even reviewing the cold record, no

reason appears to believe that such testing was warranted, much less required.

The witness, 17 years old at the time she testified, was articulate and appeared to

have no difficulty understanding and answering the questions. She withstood

without apparent difficulty an extraordinarily long and probing cross-examination.

As the trial court noted, defense counsel was able to, and did, ask questions

regarding her past drug use, which the witness candidly and articulately answered.

This record does not compel a finding of probable cause sufficient to order

the witness to undergo drug testing. Accordingly, we see no error.

7. Permitting the Jury To View and Listen to Defendant’s Bronco

Two witnesses who observed the Bronco at the time, and in the area, of the

Brucker crimes described it as loud. Accordingly, the prosecutor requested that

the jury be allowed to listen to the sound of defendant’s Bronco, which had been

impounded. Defendant objected, arguing that whether the Bronco was loud was

not disputed, and the conditions were not the same at the time of trial as they were

at the time of the crimes over two years earlier. The court overruled the objection.

It stated that this is “simply a tidbit of circumstantial evidence. It’s relevant in

30

terms of there’s been testimony that this particular Ford Bronco has some unique

characteristics. So, to me, it’s similar to any type of eyewitness identification

issue.” The court observed that defendant could present any evidence he wished

explaining that the sound at the time of the trial might be different than at the time

of the crimes. But the court “believe[d] that goes to weight, not admissibility.”

Later, Detective Curt Goldberg stated to the court and the parties that the vehicle

would be pulled onto a flatbed truck and towed to the spot where the jury would

view it. Defense counsel indicated there might be additional objections.

The next court day, the court held another hearing. Defense counsel

reiterated the objection that what she termed an “experiment” would be conducted

under different conditions than prevailed at the time of the crimes. The court

asked the prosecutor whether he intended to conduct an experiment. He

responded that he did not: “The vehicle is simply going to be started so that the

jurors have an opportunity to hear the loudness or lack thereof of the vehicle.”

The court again overruled the objection: “I agree in terms of the logic of what

[defense counsel] said that there may in fact be some dissimilarity in terms of the

exact condition of the exhaust system, the muffler, today’s condition versus April

14th or April 9th and 10th of 2003. But I sense from what’s been proposed by the

district attorney that they’re not trying to establish that the exhaust system is a

tenor or a baritone or a bass or anything of that nature. They’re trying to establish

that it has a problem with the exhaust system, period.” It reiterated that defendant

could cross-examine witnesses in this regard.

Detective Goldberg testified in front of the jury that he impounded

defendant’s Bronco on May 13, 2003 and, after searching it for evidence, he stored

it at the sheriff’s department impound lot in El Cajon, where it had remained until

trial. He arranged for it to be brought to the area of the courthouse. On cross-

examination, defense counsel established that the vehicle had been towed to the

31

courthouse that day; that it had remained in the open exposed to the elements,

including rain, for over two years; and that it had been started twice during that

time, the last time on February 17, 2005.

After Detective Goldberg testified, the jury was taken outside to the

Bronco’s location. Defendant further objected that, because the vehicle was on

top of the metal tow truck, the sound would reverberate, making it sound louder

than it otherwise would. The court did not change its ruling. At defendant’s

request, it ruled that the jury could look at the vehicle’s muffler. Then the Bronco

was started and the jury listened to it.

Defendant contends the court erred in permitting the jury to listen to the

Bronco’s sound. He argues that, because the circumstances in which the jury

heard it were different than those that existed two years earlier, the evidence was

irrelevant and, even if relevant, should have been excluded as impermissibly

prejudicial under Evidence Code section 352. “The trial court has broad discretion

both in determining the relevance of evidence and in assessing whether its

prejudicial effect outweighs its probative value.” (People v. Horning (2004) 34

Cal.4th 871, 900.) We see no abuse of discretion.

The evidence was relevant. It had a “tendency in reason to prove or

disprove any disputed fact that is of consequence to the determination of the

action.” (Evid. Code, § 210.) Because witnesses testified that the Bronco seen

near the crime scene was loud, evidence that defendant’s Bronco was loud tended

in reason to prove that his Bronco was the one used in the crime, which, in turn,

tended in reason to prove that defendant was involved in the murder, a disputed

fact that is of consequence to the determination of defendant’s guilt. It also

corroborated Matthew Hansen’s testimony that defendant’s Bronco had a loud

sound the day of, and the day after, the Dolan burglary, i.e., four and five days

before the Brucker crimes. Defendant argues, in effect, that it was possible the

32

Bronco sounded loud at the time the jury heard it but not at the time of the crimes

two years earlier. To the extent that possibility existed—and defendant had full

opportunity to present evidence and argument in that regard—it weakened the

strength of the evidence; but it did not render it irrelevant. Standing alone, the

sound of the Bronco was not particularly strong evidence. But it was, to use the

trial court’s term, a “tidbit” of circumstantial evidence.

Defendant cites cases involving efforts to admit evidence of the lighting

conditions at the time of the crime. (See generally People v. Jones (2011) 51

Cal.4th 346, 375-377.) Those cases do not aid defendant. They establish that the

decision whether to admit experimental evidence lies within the trial court’s

discretion. (Id. at pp. 375-376.) What occurred here was not an experiment but

merely permitting the jury to listen to defendant’s actual vehicle. But in any

event, the same abuse of discretion standard prevails. Even though it had limited

value, the court acted within its discretion in admitting this bit of circumstantial

evidence.

8. Admitting Northcutt’s Hearsay Statement

The prosecution called Travis Northcutt as a witness. His testimony

consisted largely of denials of prior statements and claims of lack of memory. The

prosecution later called Investigator Baker to testify about statements Northcutt

had made to him. He testified that Northcutt told him that defendant had told

Northcutt “that something big was going to happen, a big hit that involved a safe.”

Defendant contends the court erred in admitting this item of evidence because it

was inadmissible hearsay and did not qualify as a prior inconsistent statement.

Preliminarily, the Attorney General argues defendant has forfeited the

contention because he did not object on hearsay grounds at trial. (Evid. Code,

§ 353; People v. Partida (2005) 37 Cal.4th 428, 433-434.) The prosecutor asked

33

Investigator Baker, “Did [Northcutt] tell you that Eric Anderson had told him that

he was coming along and —” At this point defendant’s attorney objected on the

ground that the question was leading. The prosecutor responded, “It’s

impeachment.” The court ruled, “I think this is a question that was asked of Mr.

Northcutt and . . . my ruling is that there is the foundation for prior inconsistent

statement.” The prosecutor then asked the question that elicited the testimony

defendant challenges.

Although defendant objected only on the ground the question was leading,

the court anticipated a hearsay objection and ruled on it. The rule requiring an

objection on the ground asserted on appeal serves important purposes—including

permitting the court to make a reasoned ruling and the proponent of the evidence

to cure any defect—but it must also “be interpreted reasonably, not

formalistically.” (People v. Partida, supra, 37 Cal.4th at p. 434.) The court’s

ruling might have forestalled defendant from additionally objecting on hearsay

grounds. It did make a reasoned ruling. Under the circumstances, we conclude

defendant may challenge the correctness of the court’s ruling.

Turning to the merits, the trial court’s ruling was correct. The testimony

was double hearsay—what Northcutt told the investigator about what defendant

told him. But each level of hearsay came within an exception to the hearsay rule,

making the statement admissible. (Evid. Code, § 1201; People v. Zapien (1993) 4

Cal.4th 929, 951-952.) Defendant’s statement to Northcutt came within the

exception for statements of a party. (Evid. Code, § 1220; People v. Horning,

supra, 34 Cal.4th at p. 898.) Northcutt’s statement to the investigator came within

the exception for prior inconsistent statements. (Evid. Code, § 1235; People v.

Rodriguez (2014) 58 Cal.4th 587, 633.) “[M]ultiple hearsay consisting of a prior

inconsistent statement and an admission of the defendant” is admissible. (Zapien,

at p. 953.)

34

Defendant argues that the statement in question was not inconsistent with

Northcutt’s trial testimony. Citing part of Northcutt’s testimony, he argues that

Northcutt said that he did not remember the statement. “Ordinarily, a witness’s

inability to remember an event is not inconsistent with that witness’s prior

statement describing the event. [Citation.] When, however, ‘a witness’s claim of

lack of memory amounts to deliberate evasion, inconsistency is implied.’ ”

(People v. Rodriguez, supra, 58 Cal.4th at p. 633.) We need not decide whether

this and Northcutt’s many other claims not to remember (including, for example,

his roommate’s name and his own address) were evasive within this rule, for the

statement in question was clearly inconsistent with other portions of Northcutt’s

testimony.

Northcutt affirmatively denied that defendant had brought up “the subject

of committing a crime involving a safe.” During cross-examination, defense

counsel asked him “about [defendant] telling you that he was involved in

something big and that it involved a safe.” Northcutt answered, “That would have

never happened.” He then reiterated, “It never happened,” and “It couldn’t

possibly, no, no.” Northcutt’s prior statement was inconsistent with this testimony

and, accordingly, the trial court properly admitted it.

Defendant also argues the testimony was not sufficiently trustworthy to be

admissible. Trustworthiness is not an element of the hearsay exception for prior

inconsistent statements (Evid. Code, § 1235) but, like most kinds of evidence, a

matter for the jury to judge. To the extent defendant may be understood to argue

that admitting the evidence violated his federal constitutional right to confront

witnesses, the claim also lacks merit. In Crawford v. Washington (2004) 541 U.S.

36, 59-60, footnote 9, the high court “reiterate[d] that, when the declarant appears

for cross-examination at trial, the Confrontation Clause places no constraints at all

35

on the use of his prior testimonial statements.” (See People v. Rodriguez, supra,

58 Cal.4th at p. 632.)

9. Admitting Evidence Regarding When Defendant Became a Suspect

The prosecution presented evidence of defendant’s flight to Oregon and

escape plans to show consciousness of guilt. (See pt. II.A.4, ante.) In response,

defendant called Detective Goldberg as a witness and questioned him about a

newspaper article in the San Diego Union-Tribune dated April 24, 2003, that

contained Goldberg’s name. The prosecutor objected on relevance grounds. At a

conference outside the jury’s hearing, defense counsel argued that “this is the

exact date of the parole search. This is the date where the People are alleging that

Mr. Anderson fled because he was a suspect in the Brucker homicide. Whereas in

fact the suspect information, it is completely different. . . . It is being offered to

show the state of the publicity at the time.” The court overruled the prosecutor’s

objection, ruling that the evidence “supports the contention that it was flight for

parole reasons rather than being named as a suspect.”

Back in the jury’s presence, Detective Goldberg testified that the April 24,

2003, article said two women between the ages of 17 to 25 were being sought as

suspects in the Brucker homicide, and the suspect vehicle was a gray Toyota

“4Runner” or “PreRunner” type of truck. He also testified about another article in

the same newspaper dated May 10, 2003, that also referenced himself. He said

that by that date, the two women had been cleared, and the investigators were

asking the public for more information. The article quoted him as saying that the

investigation was “wide open.”

On cross-examination, Detective Goldberg testified that defendant first

became a suspect through a “crime stopper tip” on April 17, 2003. Defendant

objected to the testimony as hearsay. The court overruled the objection, stating it

36

would “allow it for the limited purpose, not for the truth of the tip, but the timing

of the tip and what happened next.”

Defendant argues the court erred in permitting this cross-examination of

Goldberg because it elicited inadmissible hearsay and violated his federal

confrontation rights. However, as the court explained in front of the jury, the

testimony was not offered for a hearsay purpose but for the nonhearsay purpose of

establishing when defendant became a suspect in the case. (See People v.

Livingston (2012) 53 Cal.4th 1145, 1162.) This nonhearsay purpose was relevant

to counter the testimony defendant elicited on direct examination. “[T]here are no

confrontation clause restrictions on the introduction of out-of-court statements for

nonhearsay purposes.” (People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6, citing

Crawford v. Washington, supra, 541 U.S. at p. 60, fn. 9.) Contrary to defendant’s

argument, no reason appears to believe that Detective Goldberg, who investigated

the case from the beginning, would not have personal knowledge of when

defendant became a suspect. The court properly permitted the testimony for this

limited purpose.

10. Admission of Evidence of Telephone Data

The prosecution presented telephone records and testimony showing

telephone calls among the various participants during relevant times. It obtained

the telephone records pursuant to a court order under 18 United States Code

section 2703, part of the federal Stored Communications Act. (See Carpenter v.

United States (June 22, 2018, No. 16-402) 585 U.S. __. __ [2018 WL 3073916

p. *4].) Defendant moved to suppress the evidence, partly on the ground that

obtaining the records without a search warrant violated his rights under the Fourth

Amendment to the United States Constitution. Citing Smith v. Maryland (1979)

442 U.S. 735 (using a telephone company’s central offices to track telephone

37

numbers the defendant dialed from his home is not a search under the Fourth

Amendment), the trial court found no constitutional violation.

The United States Supreme Court has now held that a search warrant is

needed to obtain at least some types of information governed by the Stored

Communications Act. (Carpenter v. United States, supra, 2018 WL 3073916.)

The court stressed that its holding is “narrow,” and that it did “not disturb the

application of” cases such as Smith v. Maryland, supra, 442 U.S. 735. (Carpenter,

at p. *13.) It is not clear whether Carpenter’s holding would apply here. But we

need not decide the question. Any error was harmless beyond a reasonable doubt.

The evidence merely showed that some of the alleged conspirators communicated

by telephone at certain times; the content of the communications was not revealed.

Although relevant, the evidence was unimportant in light of the trial as a whole.

11. Excluding Defense Evidence

Defendant called as a witness Andrea Finch. She testified that she knew

Lee, Huhn, and Handshoe through Ronnie Densford, who had been her boyfriend

from 1992-2000. The prosecutor objected to the testimony on relevance grounds,

and a hearing ensued outside the jury’s presence.

Defendant’s attorney made an offer of proof that the witness would testify

that Densford was a close friend of Huhn and Handshoe, and Densford’s home

was a “hangout place” for the group. At Densford’s home, “there was access to

weapons, specifically large-caliber automatic weapons, there was access to

disguises, and there was access to vehicles.” Defendant’s attorney was not

offering the testimony as evidence of third party culpability but “to show that

Apollo Huhn and Brandon Handshoe had access to all of the items that have been

described as having been used in this particular crime through someone other than

Eric Anderson.” Although the witness broke up with Densford in 2000, “she

38

continued hanging out at the house until summer 2002.” The court sustained the

prosecutor’s objection, explaining, “I’m finding as to the probative value of

summer ’02, a third party exhibiting a firearm has limited probative value and an

undue consumption of time.”

Defendant contends the court erred in excluding this evidence. We

disagree. As explained before, “The trial court has broad discretion both in

determining the relevance of evidence and in assessing whether its prejudicial

effect outweighs its probative value.” (People v. Horning, supra, 34 Cal.4th at p.

900.) As the court found, any relevance that Huhn and Handshoe were hanging

out at a home where weapons, vehicles, and disguises were present as late as the

summer before the April 2003 crimes was tenuous at best. “The court weighed the

arguably slight probative value of” the evidence “against the likelihood that its

admission would require an ‘undue consumption of time’ (Evid. Code, § 352), and

soundly determined that the balance justified exclusion.” (People v. Brooks

(2017) 3 Cal.5th 1, 45.) There was no error.

12. Impeaching a Defense Witness

Over defense objection, the court permitted defense witness James Stevens

to be impeached with his convictions for “auto theft” in 1986, 1987, 1992, and

1993; for “escape” in 1986; and for “robbery with use of a firearm” in 1996, his

last conviction. He was in prison on the last conviction when he met defendant

around 1996-1997.

In overruling defendant’s objections, the court found that “Mr. Stevens is

not a defendant who can suffer some prejudice in terms of disposition to commit

crimes.” Contrary to defendant’s argument, it found that escape is a crime

involving moral turpitude. It also found that the firearm use finding regarding the

robbery was relevant for impeachment, explaining that “if the firearm was pled

39

and admitted, that constitutes a specific incident of willingness to do evil.” It

“weigh[ed] [the firearm use finding] pursuant to [Evidence Code section] 352.

And my belief is that that is a separate, although it might be a tangent, it is a

separate act that would constitute moral turpitude: the use of a weapon in the

course of a felony offense.” Additionally, in response to defendant’s argument

that some of the convictions were too remote, it ruled that “the fact that they go

back 20 years, I find . . . does not neutralize the probative value of it because it

looks like for ten years, up until the 1996 [robbery], it was an uninterrupted

sequence of criminal activity.”

Defendant contends the court erred in not excluding at least some of the

convictions and the firearm use finding. It did not. After the 1982 adoption of

article I, section 28, subdivision (f), of the California Constitution, a witness may

be impeached with any prior felony conviction involving moral turpitude, subject

to the trial court’s discretion under Evidence Code section 352 to exclude it if it

finds its prejudicial effect substantially outweighs its probative value. (People v.

Clair (1992) 2 Cal.4th 629, 653-654.) The court’s ruling is reviewed for abuse of

discretion. (Id. at p. 655.) Because this discretion is broad, “a reviewing court

ordinarily will uphold the trial court’s exercise of discretion.” (People v. Clark

(2011) 52 Cal.4th 856, 932.)

The court did not abuse its discretion. As it noted, because Stevens was not

a defendant, there was no reason to be concerned that the jury might improperly

consider the convictions as showing a propensity to commit crimes. This

circumstance greatly reduces the danger of undue prejudice. The main factors for

the court to consider when the witness is not a defendant are “whether the

conviction (1) reflects on honesty and (2) is near in time.” (People v. Clair, supra,

2 Cal.4th at p. 654.)

40

Contrary to defendant’s argument at trial, escape, even without force,

involves moral turpitude. (People v. Lang (1989) 49 Cal.3d 991, 1009-1010.)

Any “[m]isconduct involving moral turpitude may suggest a willingness to

lie . . . .” (People v. Wheeler (1992) 4 Cal.4th 284, 295.) The early convictions

were somewhat remote in time, but because the witness continued to commit

crimes for many years thereafter, and then was incarcerated, limiting his ability to

commit more crimes, the court reasonably admitted them. (People v. Turner

(1994) 8 Cal.4th 137, 200.) “Even a fairly remote prior conviction is admissible if

the defendant has not led a legally blameless life since the time of the remote

prior.” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925-926.) The fact that

the witness had so many convictions did not compel the court to exclude any of

them. “[A] series of crimes may be more probative of credibility than a single

crime.” (People v. Clark, supra, 52 Cal.4th at p. 932.) Finally, the firearm use

finding was part of the robbery conviction. The fact that Stevens went so far as to

use a firearm to steal was also relevant to whether he might lie to help defendant.

The court acted within its discretion in admitting the convictions.

13. Trial Court’s Response to a Juror’s Question

During a break in Valerie Peretti’s testimony, the court received a note

from one of the jurors asking, “Can I figure a person’s attitude and demeanor

outside of the courtroom, i.e., specific witness actions in court’s main area outside

of main entrance?”

At a hearing held outside the rest of the jury, the court told the juror that the

“short answer is no. The instructions that I gave in terms of demeanor means

demeanor while testifying.” When questioned, the juror said, “I saw a witness

[later identified as Peretti] that at least — we were down in the common area, and

you see everybody. And a witness was, what I would say, in a much more joyous

41

and, you know, very high levity than what I would expect of somebody who is in

this kind of magnitude of a case.” He also said that two other jurors on the same

panel also observed the same behavior. The three jurors discussed that “that

doesn’t seem, you know, the same demeanor that they should have, and that’s

where we left it.” They wondered whether they could “weigh it or not.” After the

juror left the courtroom, two of the defense attorneys said they observed Peretti

apparently trying to make eye contact with the jurors as they walked by and

smiling at them. The court agreed to admonish Peretti not to do so and to

admonish the jury.

The court then instructed the jury that “it is important to recognize that a

witness is allowed to communicate with a trial juror only through the question and

answer procedure. The taking of testimony in the courtroom.” It told the jurors to

inform the court if anyone felt a witness was trying to communicate in other ways.

Repeating portions of CALJIC Nos. 1.00, 2.00, and 2.20, that it had given at the

outset of trial, it also reiterated that “you must determine the facts in this case from

the evidence received in this trial and not from any other source. Evidence means

testimony, writings, material objects, or anything presented to the senses that are

offered to prove the existence or nonexistence of a fact. In determining the

credibility of a witness, you may consider the demeanor of the witness while

testifying and the manner in which the witness testifies.”

Later, outside the jury’s presence, defense counsel asked the court to

instruct the jury that it “can consider the demeanor of the witness present in the

courthouse for the purpose of testifying.” The court declined to so instruct. It

noted that not all the jurors might have seen what one juror saw. Additionally, it

noted that all parties had agreed the court should instruct, pursuant to CALJIC No.

1.00, that the jury “must determine what facts have been proved from the evidence

42

received in the trial and not from any other source.” The court did not “believe

that definition of trial extends to the hallway or the patio.”

Defendant contends the court erred. He appears not to argue now what his

attorneys argued at trial—that the jury should be allowed to consider a witness’s

demeanor outside the courtroom. The trial court was correct in this regard. “[T]he

jury is to determine the effect and value of the evidence addressed to it . . . .”

(Evid. Code, § 312, subd. (b), italics added.) What a witness might or might not

do outside the courtroom is not part of the evidence presented to the jury. Thus,

CALJIC No. 1.00 correctly informs the jury it may consider only “evidence

received in the trial.” To make the proceeding fair to all, evidence is presented in

controlled circumstances within the courtroom (or, occasionally, outside the

courtroom, as when the jury in this case listened to the sound of defendant’s

Bronco, but still under controlled circumstances) so that all jurors can observe and

hear the evidence together. Trying to draw meaning from what one or more

jurors, but not all, might observe outside the courtroom can be misleading. As

CALCRIM No. 101 (not given in this trial) explains, “It is unfair to the parties if

you receive additional information from any other source because that information

may be unreliable or irrelevant and the parties will not have had the opportunity to

examine and respond to it.”

Defendant argues instead that the court did not directly answer what he

calls the “jury’s question” regarding whether a juror may consider demeanor

outside the courtroom. However, the jury did not ask the question; a single juror

did. And the court answered that question quite directly and entirely correctly:

“[N]o.”

The court also correctly reiterated other instructions to ensure the entire

jury understood its duty. Defendant argues those instruction limited the jury’s

ability to consider the witness’s demeanor in the courtroom when that witness is

43

not testifying. It is not clear, but, apparently, defendant claims the court

improperly precluded the jury from considering the witness’s demeanor while

exiting the courtroom after testifying (or perhaps while approaching the witness

chair before testifying). This was not defendant’s concern at trial. The argument

is basically an attack on CALJIC No. 2.20, which instructs the jury that it may

consider “[t]he demeanor and manner of the witness while testifying.” (See also

CALCRIM No. 105 [the jury may consider “the witness’s behavior while

testifying”].) As the Attorney General observes, “Because witnesses necessarily

testify inside the courtroom, jurors would have had no reason to think they could

not rely on their observations of witnesses inside the courtroom in assessing their

credibility.” We see no error in the court’s reiteration of this portion of CALJIC

No. 2.20 or in any other part of its response to the juror’s question.

14. Instructing the Jury Regarding Accomplices

The court instructed the jury that the testimony of an accomplice must be

corroborated. It also instructed that Brandon Handshoe was an accomplice as a

matter of law. However, it rejected defendant’s request to instruct the jury that

Valerie Peretti and Zachary Paulson were also accomplices as a matter of law. It

said the parties could argue the point to the jury, but it found the evidence in

dispute as to whether either of those witnesses was an accomplice. Accordingly, it

instructed the jury that it had to determine whether Peretti or Paulson were

accomplices.

“In California, ‘[a] conviction cannot be had upon the testimony of an

accomplice unless it be corroborated by such other evidence as shall tend to

connect the defendant with the commission of the offense . . . .’ ([Pen. Code,]

§ 1111.) For purposes of this rule, an ‘accomplice’ is ‘one who is liable to

prosecution for the identical offense charged against the defendant on trial in the

44

cause in which the testimony of the accomplice is given.’ (Ibid.) ‘This definition

encompasses all principals to the crime [citation], including aiders and abettors

and coconspirators. [Citation.]’ . . . [L]iability as an aider and abettor requires

proof that the person in question ‘aid[ed] or promote[d] the perpetrator’s crime

with knowledge of the perpetrator’s unlawful purpose and an intent to assist in the

commission of the target crime.’ . . . [W]hether a witness is an accomplice is a

question of fact for the jury unless no reasonable dispute exists as to the facts or

the inferences to be drawn from them.” (People v. Manibusan (2013) 58 Cal.4th

40, 93.) “The court’s task was not to determine whether the jury could reasonably

find [the witness] was an accomplice, but rather whether it could only reasonably

find that he was an accomplice.” (People v. Bryant, Smith and Wheeler, supra, 60

Cal.4th at p. 430.)

Defendant contends the court erred in refusing to instruct the jury that

Peretti and Paulson were accomplices as a matter of law. However, the trial court

was correct that the facts or the inferences to be drawn from them were reasonably

disputable as to both witnesses. In fact, little evidence existed that either was an

accomplice. As defendant notes, both were present when the conspiracy was

discussed. This presence might establish that they knew of the conspiracy. But it

does not establish beyond reasonable dispute that either did anything to further the

conspiracy or did so with the required intent.

Peretti was Huhn’s 15-year-old, pregnant girlfriend. Her testimony

suggested her presence at the April 14, 2003, meeting was accidental, and, indeed,

unwanted. No evidence exists to suggest that she participated in substantive

discussions regarding the planned robbery. She did testify that she said they

would “go shopping” with the money, but that alone does not establish accomplice

liability as a matter of law. She also testified that she told Huhn she did not want

him to go to the planned robbery.

45

Similarly, little or no evidence exists to suggest that Paulson did anything

to further the conspiracy or had the requisite intent—and certainly none that

establishes these elements beyond dispute. “On this record, it was for the trier of

fact to decide whether [either witness] had the intent necessary to establish that

[either] was an accomplice.” (People v. Manibusan, supra, 58 Cal.4th at p. 94.)

The court properly refused to instruct the jury that either was an accomplice as a

matter of law.

Moreover, any error would have been harmless. “Error of the kind he

alleges is harmless if the record contains ‘sufficient corroborating evidence.’

[Citation.] ‘Corroborating evidence may be slight, entirely circumstantial, and

entitled to little consideration when standing alone. [Citations.] It need not be

sufficient to establish every element of the charged offense or to establish the

precise facts to which the accomplice testified. [Citations.] It is “sufficient if it

tends to connect the defendant with the crime in such a way as to satisfy the jury

that the accomplice is telling the truth.” ’ ” (People v. Manibusan, supra, 58

Cal.4th at p. 95.)

Contrary to defendant’s additional argument, even if we were to assume

that both Peretti and Paulson were accomplices, ample evidence corroborated their

testimony. The evidence that defendant drove a loud Bronco during the Dolan

burglary four days before the Brucker crimes, combined with the evidence that

numerous witnesses observed a generally similar Bronco near the Brucker crime

scene, which two also said was loud, tended to connect him to the crime. So did

Charlene Hause’s testimony that defendant told her that he was using the white

truck “because they knew his Bronco.” Additionally, Travis Northcutt’s

statements about what defendant told him, including that a “big hit” involving a

safe was going to happen, connected defendant to the crime.

46

15. Instructing the Jury on Accessories

In her argument to the jury, defense counsel argued that Peretti was an

accomplice. In part, she cited actions after the Brucker crimes, including her

failure to report promptly what she knew, the “lies” she told about “her

boyfriend’s involvement,” and the fact she was given immunity for her testimony.

Counsel said, “This is a girl who was definitely an accomplice to the crime.”

After this argument, outside the jury’s presence, the prosecutor asked the

court to instruct the jury on liability as an accessory. He argued that doing so was

necessary to fully inform the jury of the law in light of the defense argument:

“Without the jury being aware of the fact that there is another criminal liability

theory here, and that is accessory to [sic: probably meant to be “after”] the fact,

they’re going to be influenced to believe that if she was given immunity, it was

because she was an accomplice, and I just don’t think that’s fair under the facts of

this case.” Defendant objected. After considering the matter during a break, the

court agreed to give the requested instruction.

Accordingly, the court instructed the jury on liability as an accessory:

“Every person who, after a felony has been committed, harbors, conceals, or aids a

principal in that felony with the specific intent that the principal may avoid or

escape from arrest, trial, conviction, or punishment, having knowledge that the

principal has committed that felony or has been charged with that felony, or

convicted thereof, is guilty of the crime of accessory to a felony, in violation of

Penal Code section 32.” The court further instructed that an “accessory to a felony

is not, by that fact alone, a principal in that felony.”

In his rebuttal argument, the prosecutor cited this instruction to argue that

Peretti might have been guilty of being an accessory, but that did not make her an

accomplice.

47

Defendant contends the court erred in instructing the jury on accessory

liability. It did not. Because someone who is merely an accessory under Penal

Code section 32 is not “liable to prosecution for the identical offense charged

against the defendant on trial in the cause” (Pen. Code, § 1111), that person is not

an accomplice whose testimony requires corroboration. (See People v. McKinzie

(2012) 54 Cal.4th 1302, 1353.) The trial court must instruct the jury “on general

principles of law that are closely and openly connected to the facts and that are

necessary for the jury’s understanding of the case.” (People v. Carter (2003) 30

Cal.4th 1166, 1219.) To fully understand whether Peretti was an accomplice, it

was necessary for the jury to know that an accessory is not necessarily an

accomplice.

In a reprise of his earlier argument, defendant contends the evidence did not

support the instruction because Peretti was an accomplice as a matter of law. As

explained previously (pt. II.A.14, ante), she was not. The evidence that she

originally lied about Huhn’s involvement supported the accessory instruction. We

see no error.

16. Asserted Prosecutorial Misconduct

Defendant contends that Glenn McAllister, the prosecutor, committed

various acts of misconduct.

First, defendant contends the prosecutor committed misconduct in cross-

examining defense witness James Stevens. At one point, the prosecutor asked,

“Mr. Stevens, is it fair to say that you’ll do whatever it takes to help Mr. Anderson

avoid responsibility for his actions in this case?” The witness responded that he

took an oath and planned to tell the truth. The prosecutor next asked, “Now, you

took an oath so that you wouldn’t perjure yourself?” The witness responded,

“That’s correct.” Defense counsel objected that the question was argumentative.

48

The court ruled that the question and answer could stand but told the prosecutor

not to ask any “more oath questions.” The prosecutor then asked, “What you’re

telling us here is that you, who have been convicted of these felony offenses that

you’ve told us about, just won’t perjure yourself?” Defense counsel again

objected that the question was argumentative. The witness said, “Sir, I do not plan

on telling any lies. I am telling the truth, honest to God.” The court said, “He

indicates that he’s telling the truth,” and told the prosecutor to ask the next

question. The prosecutor went on to other matters.

Defendant contends these questions were impermissibly argumentative.

“An argumentative question is designed to engage a witness in argument rather

than elicit facts within the witness’s knowledge.” (People v. Guerra, supra, 37

Cal.4th at p. 1125.) It “is a speech to the jury masquerading as a question. The

questioner is not seeking to elicit relevant testimony. Often it is apparent that the

questioner does not even expect an answer. The question may, indeed, be

unanswerable. . . . An argumentative question that essentially talks past the

witness, and makes an argument to the jury, is improper because it does not seek

to elicit relevant, competent testimony, or often any testimony at all.” (People v.

Chatman (2006) 38 Cal.4th 344, 384.)

The questions were appropriate. The prosecutor may challenge defense

witnesses’ credibility. (People v. Earp, supra, 20 Cal.4th at p. 894.) He did so,

and rather vigorously. The questions, “though barbed and accusatory at times”

(People v. Pearson (2013) 56 Cal.4th 393, 436), were both answerable and

actually answered, and they elicited testimony within the witness’s personal

knowledge—whether he was lying. The witness himself injected into the

questioning that he had taken an oath. The prosecutor was entitled to ask a follow-

up question on that point. The trial court acted within its discretion in permitting

49

these brief questions while limiting the length and scope of such questioning.

(People v. Chatman, supra, 38 Cal.4th at p. 384.)

Second, defendant contends the prosecutor misstated the evidence

regarding Brandon Handshoe’s plea agreement during his final argument to the

jury. In response to defense counsel’s argument that the agreement made the

witness incredible, the prosecutor noted that Handshoe would be sentenced to 17

years in prison. He argued, “Is it a lesser sentence? You bet it is. . . . Is it still a

significant sentence? You bet it is. But, you know, the thing about Brandon

Handshoe’s ‘deal’ with the People is that it was done when it was done, and it was

done before he testified on the stand. And he could have blamed this crime on

Martians, and it wouldn’t have changed his 17-year stipulated sentence.”

Defense counsel objected that the argument “misstates the evidence.” The

court ruled, “This is argument. Ladies and gentlemen, you will have a copy of the

agreement that was reached with Mr. Handshoe. I’m going to allow Mr.

McAllister to argue his viewpoint on what that means.”

The prosecutor went on to argue, “This would not have changed his

sentence, if he came in and said Martians. Now, if you could make a case for

perjury, . . . you can do a low-level felony, couple years maximum in state prison

or something like that. The point is: The deal was struck, and no matter what he

said, he was getting 17 years. If he came in and said it was Martians that did it,

the deal that he was going to testify and get 17 years was a done deal. It can’t go

up, it can’t go down; that’s the way it is.”

Later, outside the jury’s presence, defense counsel renewed the objection.

The court explained why it did not sustain the objection: “When the objection was

made, it did appear to me that it might have been a characterization that was not

borne out by the language of the agreement itself. And it could be, however, that

any reasonable person reviewing that would conclude that what is the truth and

50

what is not the truth is going to be hard to establish; and, therefore, it would be

difficult to revoke that agreement. My response was to leave that decision in the

hands of jurors, simply because the agreement, the precise language of that, is

going to be accessible. They can interpret it and determine if it was

mischaracterized by Mr. McAllister.”

To the extent the prosecutor argued that the agreement could never be

rescinded under any circumstances, it mischaracterized the agreement—as any

juror reading it would readily understand. Given the court’s response in front of

the jury, and its decision to make the agreement itself available to the jury, we see

no reasonable likelihood the jury understood or applied the argument in an

objectionable way. (People v. Linton (2013) 56 Cal.4th 1146, 1205.) The jury

knew exactly what the agreement said.

Third, defendant contends the prosecutor improperly vouched for his case

in his final argument. The prosecutor argued, “But for the two defendants in this

room [defendant and Lee] Stephen Brucker would be alive today. I believe with

all my heart that I’ve provided you with the evidence to prove that that is true.”

Later, outside the jury’s presence, defense counsel objected that the argument was

improper vouching. The court disagreed: “I don’t believe that was vouching for

the credibility of any particular witness. I believe it was establishing that, in terms

of the case that has been presented, the evidence that has been presented, the

People have presented, and he was arguing he has presented a comprehensive

case. I don’t believe it could be interpreted that Mr. McAllister has inside

information, that he is communicating on what the jurors should rely in

determining the credibility of any particular witness.”

Improper vouching occurs when the prosecutor either (1) suggests that

evidence not available to the jury supports the argument, or (2) invokes his or her

personal prestige or depth of experience, or the prestige or reputation of the office,

51

in support of the argument. (People v. Seumanu (2015) 61 Cal.4th 1293, 1329;

People v. Linton, supra, 56 Cal.4th at p. 1207.) The prosecutor did not suggest his

argument was based on evidence not available to the jury. On the contrary, he

stated that it was based on the evidence he had “provided.” To the extent the

prosecutor’s language, “I believe with all my heart,” could be viewed as invoking

his personal prestige or depth of experience, the brief remark could not have been

prejudicial. We caution, however, that prosecutors should be wary of mentioning

their personal beliefs about the quality of the evidence.

Finally, defendant contends the prosecutor committed misconduct by

failing to redact a portion of the transcript of Handshoe’s free talk before, he

claims, the transcript was shown to the jury. Defendant did not object at trial on

that basis, so the claim is forfeited. Additionally, the record does not support

defendant’s claim that the jury was shown the transcript.

Defendant cites only the trial court’s statement, when it overruled

defendant’s objection to the prosecutor’s argument regarding Handshoe’s plea

agreement, that the jury “will have a copy of the agreement.” That statement

indicates that the jury would receive a copy of the agreement. It does not suggest

the jury would receive, or did receive, a copy of the transcript of the free talk that

had occurred a month before the agreement. Nothing indicates the jury received

the transcript. A copy of the agreement to engage in the free talk and of the

ultimate plea agreement, consisting of three pages total, was marked into evidence

as People’s exhibit 66 and eventually received into evidence. That exhibit appears

to be what the court was referring to. The record does not indicate a transcript of

the free talk itself was even marked as an exhibit, much less received into

evidence. Defendant’s attorney cross-examined Handshoe about the existence of

the free talk but not about its substance. She did not use the transcript itself.

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Because the record does not support defendant’s claim that the jury was

given the transcript of the free talk, we need not consider whether presenting it to

the jury would have been error or misconduct.

17. Court’s Response to the Other Jury’s Verdict

Apollo Huhn was tried in front of a different jury than defendant and Randy

Lee. The Huhn jury returned a verdict before defendant’s jury did. Defendant

contends the court erred in handling that situation.

a. Factual Background

Huhn’s jury began deliberating two days before defendant’s jury. While

the Huhn jury was deliberating, counsel for defendant requested that if Huhn’s

jury reached a verdict before defendant’s jury did, the verdict be sealed until

defendant’s jury also reached a verdict. The prosecutor expressed the concern

that, unless Huhn waived the right to have the jury polled in open court, sealing

the verdict would not ensure that the verdict would be valid later if something

were to happen to one of the jurors. Counsel for Huhn stated he would not waive

the right to have the jury polled.

The court responded that it would “think about this, and maybe delve into

it . . . and possibly come up with a proposal that satisfies a legitimate concern

expressed by the People. If there is a verdict and we’re going to seal it, how do we

ensure that that becomes an official verdict at some point in time, should there be a

loss of a juror?” The prosecutor suggested “that we take the verdict in a closed

courtroom, and you put a protective order on the result, and that the verdicts are

sealed in court.” The court responded, “There seems to be concurrence by the

People that the effort to ensure that there is not dissemination of a verdict by one

panel before the verdict of the other panel is a good objective, a reasonable goal.

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We will try to achieve that without jeopardizing the rights of either party.” The

court then recessed for the day.

The day after defendant’s jury began deliberating, the Huhn jury announced

it had reached a verdict. In Huhn’s matter, in the absence of defendant and his

attorneys, Huhn’s attorney, the prosecutor, and the court discussed how to

proceed. The court noted that, even though defendant and his attorneys were not

present, they had requested “that the court take precautions to ensure that the

continuing deliberations of one jury are not affected or influenced in any way by a

public verdict.” It recognized that “it is so sensitive at this point in time that we

have a jury deliberating on identical facts, that there has to be some step to ensure

that the other jury is not influenced. I don’t want to jeopardize any rights that Mr.

Huhn has or the People in terms of this jury, but I think that we can take some

steps that satisfy the needs of the People, Mr. Huhn, as well as the needs of the

defendants who currently have a jury out deliberating their fate.”

The court suggested sealing the verdict form and having the jury return

later to complete taking the verdict. However, Huhn’s attorney refused to waive

the right to have the jury polled, to have a public hearing, and to have the verdict

taken that day. Citing Penal Code section 1147, the court stated that, although its

preference would be to “take some steps to ensure that the verdict is not public,”

without a waiver from Huhn, it was “obligated to take the verdict. And, therefore,

we will take the verdict.” Thereafter, in open court, the jury Huhn returned a

verdict of guilty.

Later that day, while defendant’s jury was still deliberating, the parties in

defendant’s matter discussed the situation. The court stated the intent “to simply

repeat the standard admonishments.” It also asked were there “any suggestions

regarding the admonishments? I am not going to focus on there is going to be a

news report, I’m just going to emphasize the standard order is in place, unless

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either side would like me to focus on the likelihood that there is going to be news

reports so please, please, be cautious, have somebody screen the paper for you. I

don’t want to do that, unless you both agree, because it seems to arouse curiosity

unnecessarily, and then I will.” Defendant’s attorney responded, “I agree with the

court on that, and besides, the cat is kind of out of the bag at this point.”

When defendant’s jury recessed for the day, the court admonished it: “I

simply want to remind you of certain rules while you’re off for a long weekend. I

appreciate the fact that you’re probably tired of hearing me admonish you

regarding what can and cannot be said outside the jury deliberation room, but this

is so important that I thought I will bring you in again and remind you. The

separation is going to be fairly lengthy. You will be off tomorrow and returning at

nine o’clock Monday. During this period of time, do not discuss anything

concerning the case with anyone. I’m going to repeat that. Do not discuss

anything regarding the case with anyone. That means family members, spouses,

brothers, sisters, neighbors, you cannot talk about this case at all. . . . Do not read,

view, listen to any account or discussion of the case reported in the news media.

Please be cautious. This is a long period of time where you’re going to be away

from the courthouse. Don’t let any family member coax you into looking at

something that they feel might be associated with the case. Be cautious, don’t

scan the headlines, just ignore them, if you would, the local section, regarding any

type of criminal case.”

The court asked the jury if there was any uncertainty about these orders. “If

there is,” it instructed, “please let me know, because it is so important that you

abide by these.” There was no response. The court then recessed for the weekend.

The jury resumed deliberation the following Monday. Outside the jury’s

presence, defendant’s attorney objected to the process of taking the Huhn verdict.

He presented the court with an online article and a newspaper article about the

55

verdict that he claimed were prejudicial. The jury returned its verdict later that

day.

b. Analysis

Defendant contends the court should have delayed taking the Huhn verdict

until his own jury reached a verdict, or sealed the verdict rather than take it in

open court, or imposed a “gag order,” or at least inquired into whether the Huhn

verdict had influenced his jury. We disagree. The court handled the situation

appropriately.

The trial court was properly concerned that Huhn had the right to have the

verdict taken that day, to have the proceeding be public (a right the public

probably also had), and to poll the jurors about their verdict. (Pen. Code, §§ 1147,

1163; Press-Enterprise Co. v. Superior Court of Cal. (1984) 464 U.S. 501; NBC

Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178 (NBC

Subsidiary); People v. Edwards (1991) 54 Cal.3d 787, 812-813.) Huhn refused to

waive any of his rights. We need not consider in detail the exact nature of these

rights or the potential consequences of violating any of them, because the court

acted with proper caution in trying to protect Huhn’s rights by taking the verdict

that day in open court. Additionally, under the circumstances, trying to impose a

gag order on the parties, court personnel, media, and public would probably have

been inappropriate and certainly unrealistic. We cannot fault the court for taking

the verdict in open court and permitting the press to report it.

Instead, the court firmly readmonished the jury not to read or view any

media coverage of the trial. “We must presume that jurors generally follow

instructions to avoid media coverage, and to disregard coverage that they happen

to hear or see. . . . ‘[A]bsent a contrary indication in the record, it must be

assumed the jury followed its instruction to avoid all publicity in the case.’ . . .

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To paraphrase Justice Holmes, it must be assumed that a jury does its duty, abides

by cautionary instructions, and finds facts only because those facts are proved.

(Aikens v. Wisconsin (1904) 195 U.S. 194, 206.)” (NBC Subsidiary, supra, 20

Cal.4th at pp. 1223-1224; see Skilling v. United States (2010) 561 U.S. 358, 388,

fn. 21.) Defendant suggests the admonition was insufficient. But he did not

request an alternative, even though the court invited suggestions. The admonition

seems sufficient to us.

Defendant also argues the court should have inquired into whether the

Huhn verdict had influenced his jury. He did not request an inquiry at the time.

(People v. Martinez (2010) 47 Cal.4th 911, 943.) But even if we assume the

failure to request an inquiry does not forfeit the claim, as we assumed in Martinez,

no inquiry was needed. “ ‘The decision whether to investigate the possibility of

juror bias, incompetence, or misconduct . . . rests within the sound discretion of

the trial court. . . . [A] hearing is required only where the court possesses

information which, if proven to be true, would constitute “good cause” to doubt a

juror’s ability to perform his duties and would justify his removal from the case.’ ”

(People v. Manibusan, supra, 58 Cal.4th at p. 53; accord, Martinez, at p. 942.)

Here, no information suggested juror misconduct was occurring or was likely to

occur. Although the court had the authority to conduct an inquiry had it believed

one was warranted (see NBC Subsidiary, supra, 20 Cal.4th at p. 1224, fn. 50), it

did not abuse its discretion in failing to hold one.

Defendant cites People v. Cummings (1993) 4 Cal.4th 1233, another case

involving two juries. That case does not aid him. There, the trial court knew that

two jurors had learned of the codefendant’s jury verdict. The court then

appropriately conducted an inquiry to ensure that the jury remained impartial. (Id.

at pp. 1331-1332.) Here, the court had no information suggesting an inquiry was

needed.

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Ultimately, the problem here was little different than the difficulties

inherent in conducting any publicized trial. The media will always cover such

trials, including during the trial itself. And, in this country, appropriately so. As

the United States Supreme Court has noted, “News coverage of civil and criminal

trials of public interest conveys to society at large how our justice system

operates.” (Skilling v. United States, supra, 561 U.S. at p. 399, fn. 34.) We must

trust the jury to follow its sworn duty to decide the case solely on the law and

evidence presented to it. The court’s admonitions to the jury were sufficient.

Absent information warranting further inquiry, none was required.

18. Asserted Jury Misconduct

Defendant contends the “jury engaged in misconduct when jurors were

given an exhibit not admitted into evidence during deliberations.” The jury did

not commit misconduct, although judicial error occurred.

a. Factual Background

John Pasquale, who had shared a jail cell in Oregon with defendant,

testified about defendant’s escape plans. On cross-examination, defense counsel

confronted him with a letter he had written to the prosecutor in this case stating,

“There is no doubt in my mind of Brandon Handshoe’s [sic] guilt in your case

against him because of information he disclosed to me in Burns County Jail in

Oregon where we shared a cell.” He also said, “I would like to help you to convict

him of murder an[d] see to the fact that he never kills again.” In the letter,

Pasquale asked the prosecutor for help in avoiding a prison sentence in Colorado.

He testified that he meant defendant rather than Handshoe. He used the name

“Brandon Handshoe” in the letter because, he believed, that was what defendant

had originally told him defendant’s name was. He never actually met the real

Brandon Handshoe. The letter was placed into evidence.

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On redirect examination, the prosecutor showed the witness a letter from

the prosecutor to the witness responding to the witness’s letter. The prosecutor

stated in the letter that there was nothing he “can do regarding any cases you may

have pending.” The letter also stated, “I also appreciate how difficult it is to find

yourself in the position of being compelled to testify in such a serious case while

incarcerated as an inmate. But, as you pointed out, the greater good here is to see

that Anderson is not in a position to harm others in the future.” The witness

testified that he had not received the letter, and it was never admitted into

evidence. The clerk’s transcript indicates the letter had been withdrawn but then

was “erroneously submitted to” defendant’s jury.

After trial, defendant moved for a new trial due to the jury’s mistakenly

receiving the letter. At the hearing on the motion, the court acknowledged that it

appeared the letter had been erroneously “placed in the jury room.” It also

assumed, “in ruling on this motion that the jurors looked at this letter, even though

there is no evidence that they, in fact, did.” However, it found no prejudice and

denied the new trial motion.

b. Analysis

Defendant claims the jury committed misconduct. However, even

assuming, as the trial court did, that the jury viewed the letter, it did nothing

wrong. “When, as in this case, a jury innocently considers evidence it was

inadvertently given, there is no misconduct. . . . There has been merely ‘an error

of law . . . such as . . . an incorrect evidentiary ruling.’ [Citation.] Such error is

reversible only if it is reasonably probable that a result more favorable to the

defendant would have been reached in the absence of the error.” (People v.

Cooper (1991) 53 Cal.3d 771, 836.)

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No such reasonable probability exists in this case. The error was

insignificant. The letter contained no factual content, merely the prosecutor’s

rather mildly stated opinion. The jury already knew, through defendant’s cross-

examination and the letter the witness wrote, that Pasquale professed to believe

defendant guilty and in need of being convicted so he would not kill again.

(Pasquale used the name “Handshoe” in the letter, but, as he testified, he obviously

meant defendant. Pasquale shared a cell only with defendant and never with

Handshoe.) Given the evidence the prosecutor had presented, it could hardly be a

revelation for the jury to learn that, in responding to Pasquale’s letter, the

prosecutor agreed that defendant must not be in a position to harm others.

Contrary to defendant’s additional argument, the error was also not

prejudicial at the penalty phase. The same prosecutor’s penalty argument to the

jury was much stronger than the single sentence defendant complains of now.

Accordingly, the court did not abuse its discretion in denying the new trial motion.

(People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127.) Indeed, we are

confident under any standard that the verdicts rested on the evidence, instructions,

and argument properly presented, and not at all on the letter the jury was

inadvertently permitted to see.

B. Issues Concerning Penalty

1. Defendant’s Statement to the Jury

Defendant contends that the court’s permission to make his statement to the

jury quoted in part I.B.2, ante, denied him a reliable penalty determination in

violation of various state and federal constitutional rights. (See People v. Mai

(2013) 57 Cal.4th 986, 1054.) He argues the court should have prohibited the

statement or at least stricken the harmful part. We disagree. Acquiescing in

defendant’s wishes did not violate his rights.

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A defendant has an “absolute right to testify,” and that right “cannot be

foreclosed or censored based on content.” (People v. Webb (1993) 6 Cal.4th 494,

535, citing People v. Guzman (1988) 45 Cal.3d 915, 962.) Defendant’s statement

was not entirely harmful to him. He was able to assert his innocence without

subjecting himself to cross-examination. We do not suggest defendant had a right

to make such a statement rather than testify in the usual fashion, merely that once

the court permitted him to do so, it could not censor what he said. (See People v.

Cleveland (2004) 32 Cal.4th 704, 766.) Presumably, defendant would not want

the court to prohibit or strike that portion of his statement, only the harmful part.

But the court had no obligation to strike any portion of the statement.

“[W]e have repeatedly rejected the contention that the constitutional

reliability of a death judgment is undermined by recognizing the defendant’s

personal right to testify in favor of the death penalty.” (People v. Mai, supra, 57

Cal.4th at p. 1056, citing People v. Nakahara (2003) 30 Cal.4th 705, 719, People

v. Webb, supra, 6 Cal.4th at pp. 534-535.)

Defendant also argues that the trial court should at least have instructed

“the jury sua sponte not to consider [his statement] in choosing the appropriate

penalty.” In People v. Guzman, supra, 45 Cal.3d at page 962, we suggested that

the court might give a special instruction “inform[ing] the jury that despite the

defendant’s testimony, it remains obligated to decide for itself, based on the

statutory factors, whether death is appropriate.” We also held the court had no sua

sponte duty to give the instruction. (Ibid.) The trial court gave such an instruction

in Webb. (People v. Webb, supra, 6 Cal.4th at p. 535 & fn. 29.)

The court here did give essentially that instruction. When the parties

discussed the penalty instructions, the court stated that, “in anticipation of Mr.

Anderson’s testimony,” it had added to the standard instructions language that

“each of you remain obligated in weighing the factors in aggravation and

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mitigation whether death is the appropriate penalty despite testimony offered by

the defendant suggesting . . . .” At this point, the court invited suggestions, and

the parties discussed the exact language to be used. The court agreed to language

that defense counsel either suggested or said he wanted. Defense counsel

requested no other instruction in this regard. Ultimately, the court modified the

standard instruction to add the following: “Each of you remains obligated to

decide for yourself, based upon the weighing of the factors in aggravation and

mitigation, whether death or life without possibility of parole is the appropriate

penalty, despite testimony offered by the defendant suggesting a preference for a

particular penalty.”

This instruction was sufficient to protect defendant from an unreliable

verdict. (People v. Webb, supra, 6 Cal.4th at p. 535.) Indeed, we have upheld

death verdicts even absent such a specific instruction. (People v. Mai, supra, 57

Cal.4th at p. 1056 [finding the other instructions sufficient]; People v. Nakahara,

supra, 30 Cal.4th at p. 719 [“The jurors in this case were properly instructed that

their duty was to decide the appropriate penalty, based on the law and the

evidence, and defense counsel’s closing arguments confirmed that principle and

expressed skepticism about defendant’s asserted preference for death”].) The

prosecutor never relied on defendant’s statement in seeking the death penalty. His

only comment on that statement, an indirect one, came near the end of his jury

argument where he said, “This is not about what the defendant wants. It is about

what he deserves.” Defense counsel also argued that defendant’s “request for a

death sentence is something that is not an appropriate consideration for you.

You’re going to be specifically instructed that that is not something for you to base

your verdict on, penalty on.” (The jury instruction in this regard came after

argument.)

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Defendant argues that a different instruction was necessary. But he

requested nothing different. Indeed, he participated in the discussion leading to

everyone agreeing on the exact language the court should use. In substance, that

language was what we suggested in Guzman and what was given in Webb.

Because there was no sua sponte duty to give any instruction, there certainly was

no sua sponte duty to give a different instruction. We see no error.

2. Claims of Instructional Error

The court gave the standard instructions set forth in CALJIC Nos. 8.85 and

8.88 as they existed at the time of trial (see CALJIC, Oct. 2005 ed.) except that it

modified CALJIC No. 8.88 in two respects. First, at the request of both the

prosecutor and defendant, it added the sentence, “In reaching your determination

on the appropriate penalty, you must consider death to be a greater punishment

than life without possibility of parole.” Second, it added the sentence discussed in

part II.B.1., ante, referring to defendant’s statement. Defendant contends the court

erred in denying his request to modify the instructions in three other respects. We

disagree. “In general, we have consistently held that the standard jury

instructions, CALJIC Nos. 8.85, 8.86, 8.87, and 8.88, adequately and properly

instruct on the jury’s determination of sentence.” (People v. Bryant, Smith and

Wheeler, supra, 60 Cal.4th at p. 456.) “No additional instructions were required.”

(People v. Valencia (2008) 43 Cal.4th 268, 309.)

First, defendant contends the court should have revised CALJIC No. 8.85 to

state “that the list of aggravating and mitigating factors was an exclusive list.” But

the standard instructions the court gave effectively do so. The court instructed:

“You shall consider, take into account and be guided by the following factors, if

applicable.” Then follows the statutory factors. (CALJIC No. 8.85.) The court

also instructed: “[Y]ou shall consider, take into account and be guided by the

63

applicable factors of aggravating and mitigating circumstances upon which you

have been instructed.” (CALJIC No. 8.88.) No additional limiting instruction was

required. (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 457;

People v. Sattiewhite (2014) 59 Cal.4th 446, 490; People v. Lucero (2000) 23

Cal.4th 692, 728.)

As defendant notes, in People v. Hillhouse (2002) 27 Cal.4th 469, 509,

footnote 6, we said, “To avoid any possible ambiguity in the future, we suggest

that, on request, the court merely tell the jury it may not consider in aggravation

anything other than the aggravating statutory factors.” But the “possible

ambiguity” mentioned existed only in the specific instructions given in that case; it

does not exist in the standard instructions given here. In Hillhouse, the court

“instructed the jury, ‘The factors A through J [of Penal Code section 190.3] which

I have just listed are the only factors that can be considered by you as aggravating

factors . . . .’ ” (Id. at p. 508, italics added.) The defendant argued that this

instruction allowed the jury to consider in aggravation all the listed factors,

including those that can only mitigate. We rejected the argument but added the

suggestion in footnote 6. (Id. at pp. 508-509.) Nothing in the standard

instructions given here suggests that mitigating factors can be considered in

aggravation, so the suggestion in footnote 6 of Hillhouse is not needed. The cases

cited above rejecting this contention apply here, not Hillhouse.

Second, defendant argues the court should have revised the standard

instruction to state “that there need not be any mitigating circumstances to justify a

decision that the penalty be life without parole.” We have repeatedly rejected the

contention and continue to do so. The additional language was unnecessary in

light of the instruction actually given. (People v. Bryant, Smith and Wheeler,

supra, 60 Cal.4th at p. 457; People v. Ray (1996) 13 Cal.4th 313, 355-356.)

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Third, defendant argues the court should have instructed on lingering doubt.

It did not have to do so. “[A] penalty phase jury may consider lingering doubt as a

factor in mitigation. But . . . a trial court is under no obligation, constitutional or

otherwise, to give a lingering doubt instruction.” (People v. Brooks, supra, 3

Cal.5th at p. 104.) As the trial court noted in refusing defendant’s request, the

defense may argue lingering doubt. Defense counsel did so, at length. But no

specific instruction was needed.

3. Challenges to California’s Death Penalty Law

Defendant repeats many challenges to California’s death penalty law that

we have repeatedly rejected and continue to reject.

“Penal Code sections 190.2 and 190.3 are not impermissibly broad, and

factor (a) of Penal Code section 190.3 does not make imposition of the death

penalty arbitrary and capricious.” (People v. Sánchez, supra, 63 Cal.4th at p. 487.)

“ ‘Except for evidence of other crimes and prior convictions, jurors need not find

aggravating factors true beyond a reasonable doubt; no instruction on burden of

proof is needed; the jury need not achieve unanimity except for the verdict itself;

and written findings are not required.’ ” (Ibid.) “Intercase proportionality review

is not required.” (Id. at p. 488.) “Admission of evidence of prior unadjudicated

criminal activity does not violate a defendant’s constitutional rights.” (People v.

Hartsch (2010) 49 Cal.4th 472, 515.) “The trial court is not obligated to advise

the jury which statutory factors are relevant solely as mitigating circumstances and

which are relevant solely as aggravating circumstances.” (People v. McKinnon

(2011) 52 Cal.4th 610, 692; see People v. Page (2008) 44 Cal.4th 1, 61.)

“California’s death penalty law does not violate equal protection by treating

capital and noncapital defendants differently.” (Sánchez, at p. 488.) “California’s

use of the death penalty does not violate international law.” (Ibid.)

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Defendant argues we should not consider these arguments in isolation but

should view California’s death penalty law as a whole. Citing Kansas v. Marsh

(2006) 548 U.S. 163 (holding, in light of the statutory scheme as a whole, that the

statute’s requirement that death be imposed if aggravating and mitigating factors

are in equipoise did not create a presumption in favor of death) and Pulley v.

Harris (1984) 465 U.S. 37, 51 (rejecting the contention that comparative

proportionality review is required in death penalty cases but, “[a]ssuming that

there could be a capital sentencing system so lacking in other checks on

arbitrariness that it would not pass constitutional muster without comparative

proportionality review,” reviewing the entire statutory scheme), defendant argues

that the “constitutionality of a State’s death penalty system turns on review of that

system in context.” Even considering the arguments in combination, and viewing

the death penalty law as a whole, it is not constitutionally defective. Defendant’s

challenges to California’s death penalty scheme “are no more persuasive when

considered together,” than when considered separately. (People v. Simon (2016) 1

Cal.5th 98, 150.) “California’s capital sentencing scheme as a whole provides

adequate safeguards against the imposition of arbitrary or unreliable death

judgments.” (People v. Williams (2008) 43 Cal.4th 584, 648; accord, People v.

Johnson (2016) 62 Cal.4th 600, 658.)

4. Cumulative Effect of the Errors

Defendant contends the cumulative effect of the asserted errors was

prejudicial as to both guilt and penalty. We disagree. The errors, actual or

assumed, were insignificant. Even in combination, they were not prejudicial.

5. Determinate Sentence on Noncapital Crimes

In addition to sentencing defendant to death, the court imposed a prison

sentence for the other counts and prior convictions. The sentence included a

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consecutive one-year enhancement for the prior prison term. (Pen. Code, § 667.5,

subd. (b).) Defendant argues, and the Attorney General concedes, that, because

the prison term was served for two of the convictions for which the court also

enhanced the sentence, the enhancement for the prior prison term must be stricken.

We agree. (People v. Jones (1993) 5 Cal.4th 1142.)

III. CONCLUSION

We modify the judgment by striking the one-year enhancement for the prior

prison term and direct the trial court to send to the Department of Corrections and

Rehabilitation a corrected abstract of judgment with the enhancement stricken.

We affirm the judgment as modified, including the judgment of death.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GILBERT, J.*

——————————————————

* Presiding Justice of the Court of Appeal, Second Appellate District,

Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the

California Constitution.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Anderson

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S138474

Date Filed: June 28, 2018

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: Lantz Lewis

__________________________________________________________________________________

Counsel:

Joanna McKim, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Julie L. Garland, Assistant Attorney General,

Holly D. Wilkens, Theodore M. Cropley and Michael T. Murphy, Deputy Attorneys General, for Plaintiff

and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Joanna McKim

P.O. Box 19493

San Diego, CA 92159

(619) 303-6897

Michael T. Murphy

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9211