People v. Potts

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

THOMAS POTTS,

Defendant and Appellant.

S072161

Kings County Superior Court

97CM2167

March 28, 2019

Chief Justice Cantil-Sakauye authored the opinion of the court,

in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger, and

Simons* concurred.

Justice Liu filed a concurring opinion in which Justice Cuéllar

concurred.

*

Associate Justice of the Court of Appeal, First Appellate

District, Division Five, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

PEOPLE v. POTTS

S072161

Opinion of the Court by Cantil-Sakauye, C. J.

This case arises from the robbery and murder of an elderly

couple found dead in their home. A jury convicted defendant

Thomas Potts of two counts of first degree murder, one count of

first degree robbery, and one count of grand theft (from a

different victim). (Pen. Code, §§ 187, subd. (a) [murder], 211

[robbery], 487, subd. (a) [grand theft].)1 The jury found that

defendant knew or reasonably should have known that each

murder victim was at least 65 years old. (§ 667.9, subd. (a)

[elderly victim enhancement].) The jury also found true two

different special circumstance allegations — multiple murder

and robbery murder — and returned verdicts of death at the

close of the penalty phase. (§ 190.2, subds. (a)(3) [multiple

murder], (a)(17) [robbery murder].) As relevant here, the trial

court found true two prior felony offense allegations; imposed a

four-year determinate term based on the age of the victims;

imposed a $10,000 restitution fine; denied the automatic motion

to modify the verdict; and sentenced defendant to death.

(§§ 190.4, subd. (e) [automatic motion], 1202.4 [restitution].)

This appeal is automatic. (§ 1239, subd. (b).) We modify the

judgment by striking the four-year determinate term and

otherwise affirm.

1

All unspecified statutory references are to the Penal Code.

PEOPLE v. POTTS

Opinion of the Court by Cantil-Sakauye, C. J.

I. BACKGROUND

A. Guilt Phase

1. Prosecution case

a. Crime scene

Fred and Shirley Jenks made their home in Hanford,

California. A florist attempted to deliver them flowers on the

morning of August 5, 1997. When the Jenkses’ doorbell went

unanswered, the florist entrusted the flowers to a neighbor

rather than leaving them to wilt outside in the summer heat.

That evening, the neighbor went to see whether the

Jenkses were home. When their doorbell again went

unanswered, the neighbor peered through a glass portion of the

front door. Inside, she saw Fred’s body — with blood on the floor

and splattered on the wall. Police later discovered Shirley’s

body in the master bedroom. The evidence adduced at trial

suggested that Fred and Shirley had each been attacked with a

hatchet-type weapon and at least one knife. There was no

dispute that the attacks likely occurred the previous day, after

1:00 p.m.

Detective Darrell Walker led the homicide investigation.

He observed that drops of blood near Fred’s body reached as high

as a roughly ten-foot-tall ceiling. Near the body, Walker saw a

small metallic pin of the sort used to connect a watch band to a

watch face. The watch on Fred’s wrist had pins intact.

Underneath him, however, was a watch with a missing pin and

a partially detached band.

Bloody shoeprints were found at the scene. The prints had

a wavy pattern and at least some bore the word “Nike.” A print

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similar to those seen in several portions of the house also

appeared on Fred’s back.

Investigators found an open cutlery drawer in the Jenkses’

kitchen. One knife was discovered in the Jenkses’ pantry,

sticking out of a package of cookies. The kitchen sink contained

a short-bladed paring knife and a knife sharpener, both of which

tested positive for blood. The blood on the sharpener could have

come from Fred, but could not have come from Shirley. A longer-

bladed boning or filet-type knife was found in the Jenkses’

master bedroom, with blood on the knife’s handle. Neither Fred

nor Shirley was excluded as a potential blood contributor.

The knife in the master bedroom was found underneath

various boxes. Although some valuables remained in the room,

portions of it had been “ransacked” — with empty jewelry trays

and more than 30 empty jewelry boxes left behind. All told, it

appeared that at least 200 pieces of jewelry had been taken. By

contrast, a different bedroom was found “basically immaculate.”

No direct evidence indicated how the perpetrator entered

the Jenkses’ home. The only window or exterior door that was

unlocked, however, was the front door, and glass panes made it

possible to see who was outside that door before opening it.

There were no signs of forced entry.

b. Causes of deaths

Armand Dollinger, M.D., performed both autopsies. He

testified that Fred suffered “numerous contusions, bruises,

abrasions, lacerations, and . . . stab wounds.” Twenty-eight

separate wounds were visible on the top and back of Fred’s head.

Several of his fingers were nearly amputated. His chest had

been stabbed nine times, causing six wounds to his lungs. His

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ribs were fractured in a manner consistent with “[s]omebody

forcibly jumping or stomping on . . . either the front or the back

of the chest.”

Dr. Dollinger opined that the instruments used to attack

Fred likely included a knife and “a narrow-bladed hatchet” with

a round hammer on the back. It was possible that Fred was

stabbed with both the shorter knife in the kitchen sink and the

longer knife in the master bedroom. The shorter knife alone

may not have been long enough to cause some of Fred’s injuries.

Dr. Dollinger identified Fred’s cause of death as “open

cranial injuries due to multiple blunt trauma and stab wounds

of the head. Other contributing conditions, multiple stab

wounds of posterior chest with penetrating wounds of the

lungs.” Blood found in Fred’s pleural cavity indicated to Dr.

Dollinger that Fred was “probably alive when he sustained stab

wounds to the chest,” though Dr. Dollinger acknowledged that

prior head wounds “might have” killed Fred instantly and

collectively left him, “if not already dead, [then] almost dead and

dying.”

Shirley suffered three main types of injuries. She was

struck four times in the head with a hatchet-type weapon,

fracturing her skull and causing brain tissue to extrude from a

wound. She was stabbed at least six times in the chest,

puncturing her heart. And she was twice slashed across the

throat.

Dr. Dollinger described for the jury what he believed to be

the sequence of wounds that caused Shirley’s death: “It’s my

opinion that she was down on her back, unconscious, dying, as

a result of the wounds to her head when the stab wounds were

incurred. She was near — certainly near death at that time

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because there was very little bleeding into the chest. I feel that

she was actually probably dead at the time the slashing wounds

were made. I can’t be absolutely certain on that, they could all

have been postmortem . . . , but she was near death or dead at

the time the chest wounds were incurred and the slashing

wounds of the throat.” The longer knife found in the bedroom

could have caused Shirley’s stab and slash wounds.

c. Thomas Potts

Defendant Thomas Potts worked as a part-time

handyman and house cleaner. Fred Jenks was one of

defendant’s clients. Because defendant did not own a car, Fred

would usually pick him up for work. Otherwise, defendant

would ride his bicycle.

Roughly six months before the murders, Sergeant Darrel

Smith “contact[ed]” defendant while defendant was cycling

down an alleyway. Smith testified that defendant was carrying

a dark duffel bag containing a small axe or hatchet, which had

a blunt edge opposite the blade. Defendant claimed to use the

hatchet for construction work and left with the tool. The

following month, a different officer stopped defendant.

Defendant was carrying a gym bag containing pawn receipts,

plus “a small hatchet” with a roughly 5-inch blade opposite

something “like a hammer.” Defendant again left with the tool.

Diana Williams, defendant’s friend and former roommate,

saw him nearly every day. She confirmed that defendant owned

a hatchet with a blade and “a hammer part.” Sometime during

the month before the murders, defendant moved into a new

apartment. Williams saw him use the hatchet in his new home

to hammer speaker wire into place.

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Diana also described some of defendant’s other belongings.

When her son Quentin outgrew a pair of Nike shoes, he gave

them to defendant. Diana also had been with defendant when

he purchased the watch that he wore “every day.” She was

familiar with it because “the watch pin that would keep the band

on” would detach, and she at least twice helped him reinsert the

pin.

d. Events preceding the killings

Defendant received a Social Security payment on the first

of every month. Diana Williams was his payee. On August 1,

three days before the killings, she received the payment (around

$600) and gave it to defendant.

Defendant was a customer at a Hanford liquor store. The

store permitted him to maintain a charge account, with payment

due every 30 days. Defendant would ordinarily pay the prior

month’s bill on the first of each month; he paid his May ’97 bill

on June 1 and his June ’97 bill on July 1. On Friday, August 1,

however, defendant did not pay his $140 bill for July. According

to the store’s owner/operator, defendant instead called that day

to say that he would be in to pay his tab the following Monday

or Tuesday.

Williams returned from an out-of-town trip on Sunday,

August 3rd at around 4:00 p.m. Later that evening, at

defendant’s apartment, she and he watched a movie that he had

rented. Williams estimated that they met around 5:00 p.m. and

were together for two to three hours.

The next day, August 4th, defendant and Williams went

grocery shopping together around 11:00 a.m. Defendant told

Williams that “he didn’t have any money” because he had gone

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to a casino in Lemoore. She did not see him after around 2:00

p.m. As noted, the People and the defense agreed that the

Jenkses were likely killed that day after 1:00 p.m.

e. Events after the killings

The day after the killings, on August 5th, defendant and

Williams saw each other for coffee before 9:00 a.m. She returned

home from work before noon. Williams believed she saw

defendant again that day, though she was not sure when or for

how long.

Oscar Galloway testified that he occasionally gave people

rides in his car for a few dollars. He took defendant to a casino

in Lemoore “a couple of times.” Because his memory of the

events of early August 1997 had faded, an investigator read

from a report he made of an interview with Galloway a few days

after the killings. According to the report, Galloway said that

on August 5, the day after the killings, he took defendant to a

casino and to a destination in downtown Hanford near “the

Cottage Bar on Seventh Street.”

The evidence adduced at trial suggested that defendant

visited a Hanford pawnshop “[o]n Seventh” that day. A

pawnshop employee explained that transactions required photo

identification and a thumbprint from the person seeking to

pawn property. She identified two pawn slips concerning

transactions by Thomas Potts at 1:50 p.m. on August 5. A

fingerprint analyst testified that the prints on the relevant

pawn slips matched defendant’s prints. Defendant pawned a

ring for $15 and a pendant for $35 — an amount less than his

liquor store tab, which he did not pay. At trial, Shirley Jenks’s

sister testified that the pawned items belonged to Shirley. The

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Jenkses’ bodies were not discovered until after 7:00 p.m. on

August 5th.

Two officers went to defendant’s apartment at around 3:00

a.m. on August 6th, the morning after the bodies were

discovered, although the record suggests that the officers were

not yet aware of the aforementioned pawn transactions.

Defendant voluntarily accompanied the officers to a police

station, where he was questioned for about 20 or 30 minutes.

When asked about his hatchet, defendant said he thought he

lost it in his recent move. The officers returned defendant to his

apartment and obtained defendant’s consent to search. The

search revealed a blue duffel bag, but no hatchet, no Nike shoes,

and no bloody items.

Diana Williams testified that she and defendant likely

met for coffee later that morning, sometime between 8:00 and

9:00 a.m. She went to work and returned home before noon.

Defendant came to her apartment. Defendant, Williams, and

her son Quentin watched the noon news together; defendant and

Quentin in the living room, Williams possibly in the kitchen,

about 10 or 12 feet away. News of the Jenkses’ deaths came on

the television. Although the evidence at trial suggested that the

newscast made no mention of a hatchet, Quentin asked

defendant two or three times where his hatchet was. Williams

testified that she “th[ought] [defendant] avoided . . . the

question,” though she did not recall precisely how he did so.

Quentin testified at trial, however, that defendant said “he [did

not] want to discuss that around here because somebody might

have bugged the inside of [the] wall.” At the preliminary

hearing, Quentin claimed that defendant said, “I don’t want to

talk about it anymore” — despite having not yet discussed it.

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That evening, defendant and Williams ran an errand

together. On the way back, she asked him what time it was.

“[H]e said that he didn’t have his watch on, and he never goes

anywhere without his watch . . . .”

That same day, according to the report of the interview

with driver Oscar Galloway, defendant returned to Galloway’s

residence to retrieve a duffel bag he had left in the back of

Galloway’s car. The time of day is not clear from the record.

According to the report, “Galloway noted that the bag did not

look as packed as the day before when Potts got out of his car

and left for a while.”

Williams believed she saw defendant the following day

(Thursday), although she was not sure at what time or for how

long. That day, an officer went to the aforementioned pawn shop

“to pick up the police department copies of all pawn slips since

the first part of August.” He gave the slips with the name

Thomas Jerry Potts on them to an investigator, who then

retrieved the pawned jewelry.

Police arrested defendant the day after obtaining the

jewelry. He was wearing eyeglasses at the time. Detective

Walker removed the glasses from defendant’s face and

examined them for possible trace evidence. Walker saw “what

appeared to be either a rust spot or a droplet of blood.” Later

DNA testing revealed that a combination of Fred Jenks’s and

defendant’s genetic material accounted for the DNA on the

glasses. An expert explained that it would be “[n]ot at all”

surprising to find defendant’s DNA on his own glasses.

Assuming that defendant’s DNA was on his glasses, the expert

continued, the odds of another person completing the DNA

profile on the glasses and contributing nothing more were 1 in

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1.78 million Caucasians; 1 in 2.26 million African Americans; or

1 in 1.82 million Hispanics. Fred Jenks’s death certificate

described him as Caucasian.

The day of defendant’s arrest, Detective Walker spoke

with Diana Williams. She described defendant’s watch before

Walker showed her the watch found at the crime scene. When

Walker then showed her the watch, she identified it as

defendant’s.

Near the end of that month, Williams cleaned out

defendant’s apartment, essentially moving him out. She did not

find Nike shoes, the hatchet, a “fairly new” “pair of jeans . . . he

used to wear all the time,” a “fairly new” Wilson shirt, or his

watch.

f. Grand theft (count 4)

Before the Jenkses were killed, defendant cleaned the

home of Viola Bettencourt and her companion Frank.

Bettencourt wore a ring one day and placed it in a container on

her dresser when she returned home. Defendant came to clean

the next day. The day after he cleaned, Bettencourt noticed that

the ring was missing. When defendant returned to clean the

following week, she accused him of taking the ring. Defendant

denied the allegation, saying, “[n]o, I don’t do things like that.”

He did not hit, threaten, or do anything that frightened her.

Defendant cleaned for another hour or two, but Bettencourt did

not hire him after that.

A pawn slip suggested that on June 26, 1997 — the same

day of the week that Bettencourt believed defendant took her

ring — defendant pawned a ring at about 3:00 pm. The

description of the property pawned was consistent with a ring

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that Bettencourt identified as her own. Defendant apparently

received $100 for the ring; paid $114.50 on July 1, 1997, to get

the ring back; and pawned it again at a different shop that same

day for $125. Police retrieved the ring, which Bettencourt

identified as her own. Bettencourt’s ring appraised for $1,250

in 1967 and reappraised for $3,500 in August 1997.

2. Defense case

The thrust of the defense was that defendant did not kill

the Jenkses. Cross-examination focused on alleged gaps or

inconsistencies in the prosecution’s evidence, including

testimony regarding the characteristics of defendant’s hatchet;

whether the blood on defendant’s glasses was analyzed

correctly; and the lack of evidence that defendant tracked home

blood or had otherwise been at the crime scene. For example,

defense counsel elicited testimony that a fingerprint analyst had

lifted an estimated 15 to 20 usable prints from the crime scene

and was able to eliminate defendant as having left any of those

prints.

The only witnesses called by the defense had already

testified during the prosecution’s case-in-chief. Two witnesses

discussed how an intensive search of defendant’s apartment

after his arrest failed to yield evidence that he was involved in

the Jenkses’ killings. Another conceded that no blood was found

on defendant’s bicycle. Diana Williams clarified when and

where she saw defendant during the relevant period. And

Quentin admitted that the comment he claimed to hear

defendant make while watching the news should have been

heard by his mother, who had denied hearing it. No evidence

was presented regarding defendant’s whereabouts after he left

Williams’s company on the day of the killings.

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B. Penalty Phase

1. Prosecution case

At the penalty phase, the People presented evidence that

defendant had sexually assaulted three women, including

Shirley Jenks. The People also elicited victim impact testimony

and introduced documents revealing that defendant had

suffered several prior convictions.

a. Sexual assaults

Carol T. testified that in 1979, when she was 16 years old,

she moved to California with her boyfriend and began searching

for a job. When she was waiting at a bus stop, defendant offered

her a ride in the car he was driving. He took her to pick up job

applications. By late afternoon, Carol had asked him several

times to take her home. Defendant did not do so; eventually, he

instead took her to his apartment, which she did not wish to

enter. When they arrived inside, defendant shut the door and

put a straight razor to Carol’s throat. He then raped her and

attempted forcible anal penetration. Carol eventually escaped

from the apartment by jumping out a second-story bathroom

window. Cross-examination focused on the fact that defendant

had been drinking, and possibly smoking marijuana, before the

assault.

Diane H. was acquainted with defendant through his

then-wife Lori, who sometimes babysat on Diane’s behalf. One

evening in February 1980, at around 9:00 or 10:00 p.m.,

defendant came to Diane’s house alone, intoxicated, and

uninvited. Diane was home with her two young children, but

her husband was incarcerated at the time. She let defendant in

and offered him coffee to help sober him up, “so he could go

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home” without “get[ting] a drunk driving.” After he was let in,

defendant brought Diane to the ground and choked her. He then

forced her to have intercourse with him, stopping only when her

two-year-old child woke up and came into the living room. After

the child returned to bed, defendant raped Diane approximately

twice more. Cross-examination focused solely on the fact that

defendant was drunk at the time.

Sexual Assault Response Team (SART) nurse Georgeanne

Green examined Shirley’s corpse for evidence of sexual assault.

Green observed suspicious injuries that were consistent with

forced penetration. Additionally, Forensic Pathologist Thomas

Bennett reviewed Dr. Dollinger’s autopsy report, a SART case

summary, and photographs Green took during her examination.

He concluded that although no semen was recovered from

Shirley’s body, there was “clearly . . . evidence of forced sexual

penetration of Shirley Jenks.” Her injuries, he testified, could

have been inflicted as early as two hours prior to her death, or

as late as a few minutes after her death. If she were conscious

during the assault, she would have felt pain.

Bennett was not sure what “instrument” caused Shirley’s

injuries. “Could it be a finger? Yes. Could it be a broom handle?

Yes. Could it be a penis? Yes. It’s not specific.” Cross-

examination elicited that Bennett did not find evidence of any

nontissue blunt object (such as a broom, as opposed to a body

part). Bennett further acknowledged that it was possible to

examine a man to determine whether he had engaged in forcible

sexual activity, and that such examination was done in this

case. The People presented no evidence suggesting that the

examination yielded inculpatory information. During closing

argument, however, the prosecutor observed that a videotape of

the crime scene showed Shirley’s body at the edge of the bed,

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legs spread, without underwear, “and her nightgown is pulled

up, over up across her waist, exposing her private area.”

b. Victim impact

Clarence Washington was the Jenkses’ son-in-law,

through marriage to their daughter Debra. He had introduced

defendant (his cousin) to the Jenkses, who had high praise for

defendant’s work and “really liked him a lot.”

Clarence and the Jenkses were close. He had previously

lived with them for about a year, vacationed with them every

year for the eight years preceding their deaths, spoke with them

approximately every other day, and sometimes referred to them

as Mom and Dad. Fred Jenks was a father figure to Clarence,

whose own father had succumbed to cancer around 1992. At the

time of trial, Clarence was taking antidepressant medication

and had “been in intensive outpatient therapy.”

Clarence also testified that Debra was quite close to her

parents. She and Shirley Jenks, Clarence explained, were “more

of sisters, best friends, than mother and daughter”; they were

“extremely close” and spoke perhaps two or three times per day.

Debra and Clarence learned of the Jenkses’ deaths as the result

of a TV report. A friend of Debra saw a news story about a

couple who had been killed, which showed parts of the Jenkses’

home and a car belonging to Fred. The friend called Debra, who

was (and, earlier that day, had been) unable to reach her parents

by phone. According to Clarence, Debra went “ballistic.” He

took her to a psychiatric care facility the next morning. She

stayed in that facility for 22 days, was “released for a short

period,” entered another psychiatric facility, was again released,

entered another psychiatric facility, “and then right now she’s

heavily medicated.” Debra, Clarence testified, is now “almost

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an invalid. I have to care for her just about 24 hours a day.”

“She has no will to live, and at times she has urinated and

defecated on herself.” “She’s said she’s not suicidal, but some of

her actions warn me to think that she is.”

Billie Lou Hazelum, Shirley Jenks’s sister, also testified.

Hazelum explained that Fred and Shirley had a “[v]ery good”

relationship; they were “[l]ike love birds.” She and Shirley, too,

had a “[w]onderful,” close friendship. When they were together,

they would “go shopping, talk about old times[,] [d]ance in the

morning when we’d get up to music.” She thought about Shirley

and Fred constantly. She even had to replace her cutlery, which

reminded her of one of the knives used in the murders.

Hazelum had also had a close relationship with the

Jenkses’ daughter Debra. She thought of Debra as one of her

own daughters and as a good friend. Since the murders,

however, Debra had been unwilling to see Hazelum, because

Hazelum resembled Shirley.

c. Prior convictions

The People introduced certified documents indicating that

defendant had been convicted of perjury, auto theft, statutory

rape (regarding Carol T.), and twice convicted of robbery.

Aside from the statutory rape conviction, defendant had

not been convicted of sexually assaulting either Carol T. or

Diane H. Carol T. left California before she was due to appear

in court. Diane H. did not report her assault to the police.

Among other things, she was afraid that if her husband became

aware of the assault, he would kill defendant, “[a]nd then [her]

babies would have been without a dad.”

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2. Defense case

Defense counsel called only two witnesses during the

penalty phase. Psychiatrist Norberto Tuason, M.D., assessed

defendant about four months before the killings. Defendant

complained of paranoia, and that he was hearing voices “again.”

Dr. Tuason concluded that defendant “suffered from chronic

paranoid schizophrenia,” with which defendant had been

previously diagnosed. Dr. Tuason was also concerned that

defendant abused alcohol. Concluding that defendant was

treatable and did not require hospitalization, Dr. Tuason

prescribed medication and recommended that defendant follow

up with him in two months. At the follow-up meeting about two

months before the killings, defendant told Dr. Tuason, “ ‘The

voices went away.’ ” Dr. Tuason further explained, however,

that it is often difficult to ensure that paranoid schizophrenics

stay on their medication, and he made clear that “symptoms can

recur within a day or two once the medication has been missed.”

Among other things, cross-examination explored whether

alcohol use might explain defendant’s symptoms. Dr. Tuason

admitted that, although his diagnosis was unchanged, excessive

alcohol use alone could explain defendant’s symptoms even if

defendant did not suffer from schizophrenia. When asked on

recross-examination, “[H]ow do you know it’s not alcohol abuse

instead of schizophrenia?,” Tuason responded, “I don’t know.

You would not know.” Cross-examination also revealed that

defendant was aware and logical during his interview with Dr.

Tuason and that defendant was capable of knowing right from

wrong. Moreover, although Dr. Tuason concluded that

defendant had “subnormal intelligence,” his conclusion was

based solely on defendant’s description of his academic

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performance, rather than an IQ test or a review of academic

records.

Dr. Tuason told the jury that defendant had been

examined by a social worker on August 10, 1997, several days

after the murders. The social worker indicated that defendant

was “ ‘currently medically noncompliant,’ ” which, Tuason

explained, means in the field that defendant was not taking

medication as recommended. That notwithstanding, defendant

reportedly “ ‘denie[d] any hallucinations, suicidal ideations or

homicidal thoughts’ ”; was “ ‘[n]ot exhibiting any psychotic

behaviors’ ”; and did not “ ‘present an immediate danger to self

or others.’ ”

Defendant’s mother Lula also testified. Lula and

defendant’s father separated when defendant was about two

years old. Defendant “loved his father and he couldn’t

understand why his father wasn’t there.”

Lula moved the family to Los Angeles when defendant was

about two-and-a-half years old. She raised him as a single

mother until he was about 14 years old, after which she

remarried. Defendant was a “good boy” until he was about 16,

when he began getting in trouble, “joyriding in cars and things

like that.” She and defendant’s stepfather then brought him

back to Hanford (where he had been born), apparently at

defendant’s request. According to Lula, defendant believed he

would be able to stay out of trouble in a small town. He also

“loved his cousins” in the Hanford area and “wanted to be

around them.”

Lula asked the jury to spare her son’s life. Even after he

found trouble, she testified, she knew him to be “a quiet,

easygoing person” who “loved his family a lot.” He loved and

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tried to protect his mother and sister. He came to know and love

his stepfather. He was kind, loving, and compassionate with his

own son. “My son didn’t kill those people,” she testified, “[h]e’s

not that kind of a person.” Defendant, she added, was “brought

up God fearing,” and during his incarceration, “[h]e’s reading

the bible, he’s praying.”

II. DISCUSSION

A. Sufficiency of the Evidence

Defendant concedes that the evidence adduced at trial

provides “an arguably satisfactory” answer to the question of

who killed the Jenkses. Indeed. The evidence inculpating

defendant as the killer included the blood on his glasses; the

jewelry he pawned before the Jenkses’ bodies were discovered;

the lack of indicia of forced entry; his missing watch, found

under Fred Jenks’s corpse; the hatchet supposedly lost in his

move, yet seen in his new apartment; and his refusal to answer

Quentin’s questions about where the hatchet could be found.

That said, a conclusion that defendant killed the Jenkses does

not itself imply that he is guilty of murder in the first degree.

Instead, defendant is guilty of two counts of first degree murder

only if each killing (1) was premeditated and deliberate or

(2) occurred during the commission or attempted commission of

robbery. (See § 189 [first degree murder]; People v. Daveggio

and Michaud (2018) 4 Cal.5th 790, 847-849 (Daveggio).)

Defendant contends that the evidence was insufficient to

support either theory. We disagree. Viewing the evidence in the

light most favorable to the prosecution, we conclude that a

rational trier of fact could have found, beyond a reasonable

doubt, that the killings were deliberate and premeditated, and

that they occurred during the commission of a robbery. (Jackson

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v. Virginia (1979) 443 U.S. 307, 319; see also People v. Rangel

(2016) 62 Cal.4th 1192, 1212 [discussing standard of review];

People v. Rodriguez (1999) 20 Cal.4th 1, 11 [same].)

1. Premeditation and deliberation

“A murder that is premediated and deliberate is murder

of the first degree.” (People v. Jurado (2006) 38 Cal.4th 72, 118

(Jurado).) “ ‘In this context, “premeditated” means “considered

beforehand,” and “deliberate” means “formed or arrived at or

determined upon as a result of careful thought and weighing of

considerations for and against the proposed course of action.” ’ ”

(Ibid.) “ ‘An intentional killing is premeditated and deliberate

if it occurred as the result of preexisting thought and reflection

rather than unconsidered or rash impulse.’ ” (Ibid.; see also

People v. Anderson (1968) 70 Cal.2d 15, 24-34 (Anderson).) “The

true test is not the duration of time as much as it is the extent

of the reflection. Thoughts may follow each other with great

rapidity and cold, calculated judgment may be arrived at quickly

. . . .” (People v. Thomas (1945) 25 Cal.2d 880, 900.) Such

reflection may be revealed by planning activity, motive, and the

manner of the killings, among other things. (See Anderson, at

pp. 26-27; People v. Perez (1992) 2 Cal.4th 1117, 1125 (Perez);

People v. Brooks (2017) 3 Cal.5th 1, 59; People v. Koontz (2002)

27 Cal.4th 1041, 1081 (Koontz); People v. Thomas (1992) 2

Cal.4th 489, 517.)

The evidence that defendant arrived at the Jenkses’ home

carrying a weapon suggests that the murders were planned.

(See People v. Salazar (2016) 63 Cal.4th 214, 245; People v.

Wharton (1991) 53 Cal.3d 522, 547; Perez, supra, 2 Cal.4th at p.

1128.) Although police had stopped defendant at least twice

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while he had his hatchet, Diana Williams’s testimony suggested

that defendant did not carry it routinely.

Defendant also had a motive to kill the Jenkses: to

facilitate the taking of Shirley Jenks’s jewelry. (Cf. Perez, supra,

2 Cal.4th, at p. 1128 [“the conduct of defendant after the

stabbing, such as the search of dresser drawers [and] jewelry

boxes . . . would appear to be inconsistent with a state of mind

that would have produced a rash, impulsive killing”].)

Defendant had previously taken jewelry from Bettencourt, who

accused him of doing so. He had opportunity to know, from

cleaning for the Jenkses, that Shirley owned significant

amounts of jewelry — and apparently knew enough to

“ransack[]” a room containing significant amounts of jewelry

while leaving another room “basically immaculate.” A rational

trier of fact could conclude that defendant killed the Jenkses so

that he could take their jewelry without risk that they would

identify him as the culprit. (Cf. Perez, at p. 1126 [“it is

reasonable to infer that defendant determined it was necessary

to kill Victoria to prevent her from identifying him”].)2

The manner of the killings also supports a finding of

premeditation and deliberation. The attack — involving

multiple weapons, numerous stabs and slashes, and,

apparently, a knife-sharpening interlude — was undoubtedly

“prolonged.” (People v. Sandoval (2015) 62 Cal.4th 394, 425; cf.

People v. Streeter (2012) 54 Cal.4th 205, 244 [manner of killing

suggested premeditation and deliberation where “defendant’s

2

Evidence bearing on whether the intent to steal was

formed before the killings is addressed post, in part II.A.2. The

evidence of premeditation and deliberation would be sufficient

even if this motive were ignored.

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acts occurred in stages”].) In particular, the attacks with the

knives suggest deliberation, not only because they came later,

but also because “plunging a lethal weapon into the chest

evidences a deliberate intention to kill.” (Anderson, supra, 70

Cal.2d at p. 27.) Further, a jury could quite reasonably infer

that a person who followed a horrific double homicide by opening

a package of cookies was not surprised and dismayed by what

he had done, as one who acted impulsively might be. The

evidence of premeditation and deliberation was particularly

strong with respect to Shirley’s murder, because defendant had

to travel through the house to reach her after attacking Fred

near the front door. (Cf. People v. Cage (2015) 62 Cal.4th 256,

277 [manner of killing suggested premeditation and

deliberation when, “instead of then leaving the home, defendant

stepped over or around Bruni’s bloody body and proceeded up

the stairs to David’s room”].)

On appeal, defendant encourages us to speculate about

what might have happened inside the Jenkses’ home, in service

of an argument that the jury could not have ruled out his

speculative hypotheticals beyond a reasonable doubt. We are

not persuaded. Defendant’s appellate briefing suggests, for

example, that he may have gone to the Jenkses’ house to work

and killed in a spontaneous fit of rage. But the Jenkses were

found dressed in night clothes, not as though they were

expecting company. Further, Diana Williams testified that

defendant ordinarily told her when he would be working, which

he did not do in the week or so before the killings: “Q. In the

week or so before [the day the bodies were discovered], did

[defendant] mention anything about going to work for the

Jenks? [¶] A. No. [¶] Q. Did he normally tell you when he

was going to be working? [¶] A. Yes. [¶] Q. And he didn’t tell

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you? [¶] A. No.” In this context, the fact that officers found a

few bloody dollars on Fred Jenks’s body would not have required

rational jurors to conclude that the murders were the

spontaneous result of a job gone bad, rather than premeditated.

Moreover, this theory calls for further speculation that

(i) defendant had a legitimate reason for arriving with a hatchet

(which would seem unnecessary for mere housekeeping work);

that (ii) defendant was somehow and for some reason enraged;

and that (iii) the Jenkses died before defendant formed a

deliberate and premeditated intent to kill them. As to this last

premise, even if the Jenkses were dead by the time of the knife

attacks, postmortem conduct can still be probative of a

defendant’s state of mind before the fatal wounds were inflicted.

(See, e.g., People v. Manibusan (2013) 58 Cal.4th 40, 89; cf.

Perez, supra, 2 Cal.4th at p. 1127 [“[D]efendant would not have

known the precise moment of death or which wound would cause

it. Moreover, the jury could reasonably infer that the

postmortem wounds were inflicted to make certain the victim

was dead.”].) A theory that a person killed in a fit of rage is

undermined by proof that, after ample opportunity for

reflection, the person decided that continuing a violent attack

was appropriate.

Defendant’s appellate briefing also suggests that perhaps

he went to the Jenkses’ home to solicit a cash advance. But the

evidence indicated that he and Fred Jenks had communicated

via telephone in the past, making an unannounced drop-in seem

unnecessary. Nor is it clear why defendant would need to bring

his hatchet to request an advance innocently. And here, too,

there is a wide gulf between (1) a theory that defendant showed

up for an innocuous reason and (2) the violent killings revealed

by the evidence. (Cf. People v. Zamudio (2008) 43 Cal.4th 327,

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361, fn. 18 (Zamudio) [“It seems extremely unlikely that a truly

peaceful person who has no history of violence and is on very

friendly terms with his victims would fly into a homicidal rage

simply because his victims decline his request for a second loan

and criticize his spending choices”].) We of course agree with

defendant that the prosecution bore the burden of proof beyond

a reasonable doubt. But a reasonable jury could find that

burden satisfied notwithstanding his string of suppositions.

The evidence, in short, was sufficient to support findings of

premeditated and deliberate murders.

2. Robbery

Defendant further contends that the evidence was

insufficient to support a conclusion that the killings occurred

during the commission of a robbery. (See § 189 [“All murder

that is . . . committed in the perpetration of . . . robbery . . . is

murder of the first degree”].) “Robbery is the felonious taking of

personal property in the possession of another, from his person

or immediate presence, and against his will, accomplished by

means of force or fear.” (§ 211.) “[A] conviction of robbery cannot

be sustained in the absence of evidence that the defendant

conceived his intent to steal either before committing the act of

force against the victim, or during the commission of that act; if

the intent arose only after the use of force against the victim,

the taking will at most constitute a theft.” (People v. Morris

(1988) 46 Cal.3d 1, 19; see also People v. Lindberg (2008)

45 Cal.4th 1, 28 [discussing robbery-murder special

circumstance].) Defendant argues that no rational jury could

rule out the possibility, beyond a reasonable doubt, that

defendant formed his intent to take the Jenkses’ property only

after the acts of force had concluded. We again disagree.

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“ ‘ “[W]hen one kills another and takes substantial

property from the victim, it is ordinarily reasonable to presume

the killing was for purposes of robbery.” ’ ” (People v. Jackson

(2016) 1 Cal.5th 269, 346 (Jackson); see also People v. Johnson

(2015) 60 Cal.4th 966, 988 [“The jury could readily conclude

defendant intended to steal when he entered the victim’s house

with a weapon and beat her to death. It did not have to conclude

he killed the victim for no apparent reason and only then

decided to steal.”].) Here, the evidence indicated that defendant

took a substantial amount of jewelry from the Jenkses’ home,

some of which he pawned even before the bodies were

discovered. Moreover, although the Bettencourt theft did not

involve force, the incident lends support to a determination that

defendant intended to take jewelry from the Jenkses’ home

before he inflicted the fatal blows. (See Jackson, at p. 346 [“The

jury can also infer a defendant’s intent to steal from his

commission of other similar crimes”].)

Notably, even defense counsel’s hypothetical reasons why

defendant may have been at the Jenkses’ home center on an

attempt to acquire funds, whether through work or by

requesting an advance. Even if defendant had been provoked

into a rage — because no paying work was available, or because

no cash advance would be made — the evidence would support

a conclusion that the killings occurred during the commission of

a robbery if defendant formed the intent to take the jewelry

while killing the Jenkses. A rational jury applying the beyond-

a-reasonable-doubt standard could rule out a hypothetical

scenario in which defendant dropped in for an unannounced

social visit (with a hatchet, at a time when the Jenkses were in

their night clothes); became sufficiently enraged to brutally

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murder the people he was visiting; and then decided, as an

afterthought, to take the jewelry.

To conclude that the evidence of a preexisting intent to

steal was sufficient to prove the crime of robbery, it is not

necessary to rely on the evidence that defendant lacked money

to go grocery shopping and had recently pledged to pay his

liquor-store debt. But these circumstances further confirm that

the evidence of robbery was sufficient. Recall that three days

before the killings, defendant called a liquor store to say that he

would pay his debt on Monday, August 4 (the day the Jenkses

were killed) or Tuesday, August 5 (the day he pawned some of

Shirley Jenks’s jewelry). As noted, Diana Williams’s testimony

indicated that as of August 4, defendant “didn’t have any money

to go grocery shopping.” These facts support an inference that

defendant (whose schedule appeared to be flexible) did not

merely lack time to pay the liquor store on or right after August

1, but instead, that he lacked the resources. More importantly,

these facts suggest that defendant expected to acquire resources

sufficient to cover his $140 tab — by the day of, or after, the

Jenkses were killed. A rational trier of fact could understand

this evidence to point toward a preconceived plan to rob.

Defendant urges us to ignore these details in our analysis

of the sufficiency of the evidence, asserting that “poverty is such

poor evidence of a motive for theft, much less robbery and

murder, that it is not even admissible on that issue.” This

argument misses the mark twice over. First, it is true that “a

defendant’s poverty generally may not be admitted to prove a

motive to commit a robbery or theft; reliance on such evidence

is deemed unfair to the defendant, and its probative value is

outweighed by the risk of prejudice.” (Koontz, supra, 27 Cal.4th

at p. 1076; see also, e.g., People v. Clark (2011) 52 Cal.4th 856,

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928-930.) But the evidence here was admitted, and its probative

value bears on the sufficiency of the evidence at trial, regardless

of the risk of prejudice that came with it. (Cf. Lockhart v. Nelson

(1988) 488 U.S. 33, 40 [reversing a conviction because evidence

was improperly admitted at trial is not equivalent to reversing

for insufficient evidence, even if, without that evidence, the

proof adduced at trial would have been insufficient].) Our case

law has taken similar evidence of a defendant’s particularized

need or desire for resources into account. (See, e.g., Jackson,

supra, 1 Cal.5th at p. 346 [“the jury could infer . . . that

Jackson’s need for cash motivated him to break into Myers’s

house”]; Zamudio, supra, 43 Cal.4th at p. 360 [“there was ample

evidence here that defendant killed the Bensons and took their

property because he needed or wanted money”]; People v.

Sakarias (2000) 22 Cal.4th 596, 619.)3

Second, this evidence did not merely show that defendant

was impoverished. Instead, it revealed a baseline of his finances

— whatever their state — and showed that he expected to

acquire enough money to cover a debt that exceeded his current

ability to pay. It is the expected acquisition of funds in the near

future that makes these circumstances probative, not the mere

fact of poverty. (Cf. People v. Kelly (1901) 132 Cal. 430, 431-432

[“Generally, evidence of the wealth or poverty of a defendant is

not admissible; but the sudden possession of money,

immediately after the commission of a larceny, by one who

3

Although defendant’s opening brief raises 18 separately

numbered issues on appeal, a challenge to the court’s

discretionary admission of this evidence is not among them —

perhaps because defendant appears to acknowledge that no

objection was made below.

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before that had been impecunious, is clearly admissible as a

circumstance in the case”].)

To be sure, defendant’s call to the liquor store did not

necessarily imply that he planned to take the Jenkses’ property.

The call was made before he told Diana Williams that he had

lost his money at the casino, and it is possible that he lost his

money after the call but before speaking with Williams. It also

appears that defendant did not pay the debt, perhaps because

the jewelry he pawned yielded less than the amount he owed.

Regardless, details surrounding the call — defendant’s

deviation from the norm of paying on the first of the month, yet

apparent expectation of having money a few days later —

provide additional circumstantial evidence in support of the

jury’s verdict.

B. Reasonable Doubt Instruction

Defendant raises several arguments concerning the

definition of “reasonable doubt” provided to the jury. He claims

that a pattern instruction inadequately defined that concept.

He further contends that the instruction was undermined both

by asserted prosecutorial misconduct and by the trial court’s

comments during jury selection. Even assuming defendant’s

claims are preserved for our review, we perceive no reversible

error.

1. CALJIC No. 2.90

“The federal Constitution’s due process guarantee

‘protects the accused against conviction except upon proof

beyond a reasonable doubt of every fact necessary to constitute

the crime with which he is charged.’ [Citation.] The

Constitution ‘does not require that any particular form of words

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be used in advising the jury of the government’s burden of proof,’

but it does require that, ‘ “taken as a whole, the instructions . . .

correctly conve[y] the concept of reasonable doubt to the jury.” ’

[Citation.] What matters, for federal constitutional purposes, is

‘whether there is a reasonable likelihood that the jury

understood the instructions to allow conviction based on’

insufficient proof.” (Daveggio, supra, 4 Cal.5th at pp. 839-840.)

The jury was instructed with CALJIC No. 2.90. The court

advised: “A defendant in a criminal action is presumed to be

innocent until the contrary is proved, and in case of a reasonable

doubt whether his guilt is satisfactorily shown, he is entitled to

a verdict of not guilty. This presumption places upon the People

the burden of proving him guilty beyond a reasonable doubt.

[¶] Reasonable doubt is defined as follows: It is not a mere

possible doubt; because everything relating to human affairs is

open to some possible or imaginary doubt. It is that state of the

case which, after the entire comparison and consideration of all

the evidence, leaves the minds of the jurors in that condition

that they cannot say they feel an abiding conviction of the truth

of the charge.” We have “repeatedly upheld” this instruction

“against constitutional challenge.” (Daveggio, supra, 4 Cal.5th

at p. 840; see also, e.g., People v. Lucas (2014) 60 Cal.4th 153,

294-299 (Lucas).)

Defendant complains that the instruction “merely tells

the jurors that they need to expect to remain convinced of the

truth of the charge for a prolonged period (‘abiding conviction’),

without telling them how convinced they must be.” We perceive

no error. “An instruction cast in terms of an abiding conviction

as to guilt . . . correctly states the government’s burden of proof.”

(Victor v. Nebraska (1994) 511 U.S. 1, 14-15 (Victor); see also

People v. Romero (2015) 62 Cal.4th 1, 42; People v. Brown (2004)

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33 Cal.4th 382, 392; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d

997, 999-1000.) Defendant advances no persuasive reason to

depart from this well-settled rule, notwithstanding his

complaint regarding a prosecutor’s discussion of the instruction.

(See ante, at part II.B.2.)

Defendant also complains of the instruction’s statement

that a defendant “is presumed to be innocent until the contrary

is proved, and in the case of a reasonable doubt whether his guilt

is satisfactorily shown, he is entitled to a verdict of not guilty.”

(Italics added.) Defendant argues that the term “until” implies

that the People will inevitably satisfy their burden. We

disagree. The word “until” can refer to a condition that may

never be satisfied. No reasonable juror would have understood

the instruction to suggest that the People would inevitably

satisfy their burden of proof, because “the instruction . . .

expressly dictates what should occur in the event the jury finds

a reasonable doubt.” (Lucas, supra, 60 Cal.4th at p. 296.)

2. Asserted prosecutorial misconduct

The case against defendant was tried by two prosecutors,

Michael Reinhart and Gayle Helart. Defendant contends that

Helart committed misconduct during the rebuttal portion of

closing argument, lowering the People’s burden of proof. There

was no error.

a. Background

Because defendant’s challenge to Helart’s rebuttal

argument draws on the context in which that argument was

made, we begin by describing the arguments that preceded hers.

Deputy District Attorney Reinhart delivered the initial

portion of the People’s closing argument. In pertinent part, he

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argued: “Lastly, on the idea of these instructions and the law, I

know they may have sounded like the instructions on how to do

— how to program your VCR or stereo. They get rather

complicated and convoluted. But at the core of them, they’re

really based on common sense. And if you’re back there and you

find yourself going against your common sense, you say

something like, well, we know he’s guilty, but the instructions

say this, so does that mean that we have to find him not guilty?

If you find yourself going against your common sense, going off

on places where you really don’t think common sense tells you

you should be going, stop. Come back, ask the judge to clarify

them. Don’t go down too far a road because you may be

misreading or reading too much into the instructions. They

really are based on common sense, and, again, if you’re violating

your common sense, you’re going against something you just

think, hey, this don’t sound right, ask the Judge. That’s very

common to do. Be sure you understand the instructions.”

After Reinhart concluded, defendant’s trial counsel

delivered closing argument. In pertinent part, counsel

contrasted proof by a preponderance of the evidence, proof by

clear and convincing evidence, and proof beyond a reasonable

doubt. He continued, “If you go back into that jury room and

you tell yourself and your colleagues agree, you know, I’m pretty

sure he did it, you have to enter verdicts of not guilty because

the law says you’ve got to be more than pretty sure.”

Deputy District Attorney Helart responded as follows:

“Defense tried to do this, I don’t know, hierarchy of reasonable

doubt, and boy, when the defense does the hierarchy it just

sounds like preponderance is way down here, and clear and

convincing is kind of here, and beyond a reasonable doubt is

clear up here, high as Mt. Everest. That’s sort of what the

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inference is, kind of like a bar chart or something. Well, you

know, we could do a bar chart the other way, and let’s start with

beyond a reasonable doubt right down here, and then you could

go beyond a shadow of a doubt right there, and beyond any doubt

right here, and absolutely certain up here, and then way up here

is one hundred percent certain. So you see that’s not really very

helpful. You can kind of manipulate bar charts any way you

want to and that’s not helpful. [¶] But in your consideration of

reasonable doubt don’t ever come back and tell a prosecutor,

‘Gosh, you know, we believed he was guilty, but —.’ Don’t do that.

If you believe he’s guilty today and you’ll believe he’s guilty next

week then that’s that abiding conviction that’s going to stay with

you. And ‘beyond a reasonable doubt’ is defined in the jury

instructions it’s not a mere possible doubt; anything open to

being human has some possible or imaginary doubts. It’s what’s

reasonable.” (Italics added to the language challenged on

appeal.)

b. Analysis

Defendant argues that the portion of Helart’s rebuttal

emphasized above diminished the reasonable doubt standard.

The claim is not preserved for our review. “A claim of

prosecutorial misconduct is ordinarily preserved for appeal only

if the defendant made ‘a timely and specific objection at trial’

and requested an admonition.” (Daveggio, 4 Cal.5th at p. 853;

see also, e.g., People v. Centeno (2014) 60 Cal.4th 659, 674

(Centeno); People v. Green (1980) 27 Cal.3d 1, 27-35.) Defendant

neither objected nor requested an admonition. These failures

could be excused if an objection would have been futile or a

request for admonition ineffectual. (See, e.g., Daveggio, at

p. 853.) But we have no reason to doubt that the trial court

would have sustained any meritorious objection, nor to doubt

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that any prejudice could have been cured by an admonition

emphasizing that the jury should follow the court’s instructions

and disregard the statements at issue.

Defendant contends that he “is not precluded from raising

for the first time on appeal a claim asserting the deprivation of

certain fundamental, constitutional rights.” (People v. Vera

(1997) 15 Cal.4th 269, 276.) But he identifies no authority

indicating that such a right is at issue here, and we have

repeatedly applied our ordinary forfeiture rule to claims that a

prosecutor misstated the reasonable doubt standard. (See, e.g.,

People v. Barnett (1998) 17 Cal.4th 1044, 1156; People v.

Anderson (1990) 52 Cal.3d 453, 472; People v. Gonzalez (1990)

51 Cal.3d 1179, 1214-1215.)

Defendant likewise fails to identify any authority

indicating that forfeiture concerns are irrelevant because his

claims concern “ ‘a pure question of law which is presented by

undisputed facts.’ ” (People v. Hines (1997) 15 Cal.4th 997,

1061.) Defendant’s interpretation of that exception to the

forfeiture rule would seem to imply that any issue reviewable de

novo may be raised for the first time on appeal, even when, as

here, information about the prosecutor’s intonation would be

relevant, but is not revealed by the trial transcripts. Such an

exception would allow a defendant to invalidate an entire trial

based on a claim of prosecutorial misconduct that could have

been easily remedied by a timely objection and an admonition.

We decline to extend the exception to the circumstances

presented here, or to excuse the forfeiture as a matter of

discretion.

Even assuming that there was no forfeiture (or that we

should reach the merits regardless, as a matter of discretion),

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there was no error. A claim of prosecutorial misconduct may

have merit even absent proof that a prosecutor had “a culpable

state of mind.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

For this reason, “[a] more apt description of the transgression is

prosecutorial error.” (Ibid.) Such error occurs when a

prosecutor misstates the law by, for example, making remarks

that would “absolve the prosecution from its prima facie

obligation to overcome reasonable doubt on all elements.”

(People v. Marshall (1996) 13 Cal.4th 799, 831; accord People v.

Cortez (2016) 63 Cal.4th 101, 130 (Cortez).) For such remarks to

constitute error, however, it is not enough that the remarks

could be construed as improper. (People v. Winbush (2017) 2

Cal.5th 402, 480.) Instead, “[a] defendant asserting

prosecutorial misconduct must . . . establish a reasonable

likelihood the jury construed the remarks in an objectionable

fashion.” (People v. Duff (2014) 58 Cal.4th 527, 568; see Cortez,

at pp. 130-134; see, e.g., Centeno, supra, 60 Cal.4th at p. 665

[finding such a likelihood when “the prosecutor used a visual

display” — an outline of California — “to illustrate the standard

of proof”].)

In context, it is not reasonably likely that jurors

understood Helart’s remarks in an objectionable fashion. A

reasonable juror would interpret the argument as a whole as

carrying the general import that an abiding conviction is one so

strongly held that it lasts, rather than one that is fleeting and

might weaken in the near future. As context reveals, the

argument was framed in response to the defense’s “hierarchy of

reasonable doubt”; jurors, Helart argued, should not be misled

into acquitting based on that hierarchy (“ ‘Gosh, you know, we

believed he was guilty, but — ’ ”), but should instead rely on the

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actual meaning of “ ‘beyond a reasonable doubt,’ ” a phrase

“defined in the jury instructions.”

Our recent decision in Cortez supports this conclusion.

The prosecutor in that case stated: “ ‘The court told you that

beyond a reasonable doubt is not proof beyond all doubt or

imaginary doubt. Basically, I submit to you what it means is

you look at the evidence and you say, “I believe I know what

happened, and my belief is not imaginary. It’s based in the

evidence in front of me.” ’ ” (Cortez, supra, 63 Cal.4th, at p. 130,

italics added.) After an objection, the prosecutor added,

“ ‘[t]hat’s proof beyond a reasonable doubt.’ ” (Ibid.)

Faced with a claim of misconduct, we “observe[d] that the

challenged remarks, viewed in isolation, were incomplete at

best. They informed jurors that their ‘belief’ about what had

happened had to be ‘based in the evidence’ rather than

‘imaginary.’ ” (Cortez, supra, 63 Cal.4th at p. 131.) “Although

this is a correct statement of the law,” we continued, “it does not

alone suffice as a definition of the beyond-a-reasonable-doubt

standard.” (Ibid.) Viewing the argument and instructions as a

whole, however, we found no misconduct. (Id., at pp. 133-134.)

We explained, “given that the challenged comments were brief

and constituted a tiny, isolated part of the prosecution’s

argument, that the prosecution was responding to defense

counsel comments, that the prosecution expressly referred the

jurors to the instruction they had on reasonable doubt, that both

the court and defense counsel properly defined ‘reasonable

doubt’ numerous times, and that the jury had written

instructions during deliberations that properly defined the

standard, we find no reasonable likelihood the jury construed or

applied the prosecution’s challenged remarks in an

objectionable fashion.” (Ibid.)

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There was likewise no error here. True, this case is not

precisely the same as Cortez; for example, defense counsel did

not object to Helart’s remarks. But those remarks were brief,

they were made in response to defense counsel’s comments, and

they referred jurors to the court’s instructions. Moreover, the

court instructed jurors, both immediately after they were sworn

and before the start of closing arguments, that “[i]f anything

concerning the law said by the attorneys in their arguments or

at any other time during the trial conflicts with my instructions

on the law, you must follow my instructions.” (Cf. Cortez, supra,

63 Cal.4th at p. 131.) To guide their deliberations, jurors were

also provided with a copy of this instruction and with CALJIC

No. 2.90. (Cf. ibid.) We presume not only that jurors follow

instructions in general (Daveggio, supra, 4 Cal.5th at p. 821),

but also “that jurors treat the court’s instructions as a statement

of the law by a judge, and the prosecutor’s comments as words

spoken by an advocate in an attempt to persuade” (People v.

Clair (1992) 2 Cal.4th 629, 663, fn. 8; accord Cortez, at p. 131).

We have no reason to deviate from those presumptions here, and

note that, despite Prosecutor Reinhart’s invitation, the jury did

not request clarification of the reasonable doubt instruction.

Under these circumstances, it is not reasonably likely the jury

construed the remarks in an objectionable fashion, nor that “the

jury understood the instructions to allow conviction based on”

inadequate proof. (Victor, supra, 511 U.S. at p. 6.)4

4

Defendant further claims that the “don’t ever come back

and tell a prosecutor” statement suggested “that jurors would be

accountable to the prosecution after they reached their verdict.”

This claim is also not preserved for our review. In any event, it

is not reasonably likely that jurors understood the comment in

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3. Trial court’s comments during jury selection

During jury selection, the trial court gave prospective

jurors an example of when someone might draw a conclusion

based on circumstantial evidence. Defendant contends that, in

doing so, the trial court diluted the reasonable doubt standard.

a. Background

Before prospective jurors received questionnaires, the

trial court used CALJIC No. 2.90 to instruct them about the

presumption of innocence and the burden of proof beyond a

reasonable doubt. After the questionnaires were completed, a

prosecutor asked whether the attorneys would be permitted to

question prospective jurors “during general voir dire.” When the

trial court indicated that it “had not intended to permit that,”

the prosecutor asked the court to add “two questions . . . to its

list.” The first question concerned whether jurors would be

biased in favor of the defense because more people would be

sitting at the prosecution’s table at trial. Defense counsel

objected, and the court refused to ask the question.

The prosecutor’s second request concerned the burden of

proof. The prosecutor explained to the court: “[I]t appears that

a number of these jurors, notwithstanding the Court having

already instructed that the burden of proof is beyond a

the way defendant claims. Helart clearly did not want the jury

to acquit based on a less-than-reasonable doubt, and

communicated her view that doing so would be a mistake. But

her brief, isolated comment could not reasonably be understood

to threaten adverse consequences for jurors.

Finally, because the prosecutor’s remarks were not

erroneous, trial counsel was not ineffective for declining to

object to them.

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reasonable doubt for the guilt phase, have expressed opinions

that because it’s a death penalty case it would require guilt

beyond a shadow of a doubt, at least expressed by one, one said

like a hundred percent. There is at least enough of them to raise

a concern by us that they would not follow the law.” The court

responded, in pertinent part, “I do intend to include a discussion

of circumstantial evidence and I intend to remind the jurors or

to inform the jurors that a consideration of circumstantial

evidence is no different in a death penalty case than it is in any

other trial. . . . [I]f a juror either indicates here or has indicated

in their written declarations that they’re going to have a

problem utilizing those conventional criteria for evaluating

circumstantial evidence and following the Court’s instructions

on burden of proof, then I’ll — we’ll individually examine them.”

Defense counsel did not object, nor probe the connection between

the prosecutor’s requested question (regarding the burden of

proof) and the court’s anticipated question (regarding

circumstantial evidence).

Four panels of prospective jurors were called to the

courtroom. The court illustrated for each panel the concept of

circumstantial evidence. Before doing so, the court explained

the purpose of the illustration, with statements like, “One of the

types of evidence that people sometimes are a little confused

about is the evidence that we call circumstantial evidence. . . .

There’s nothing mystical about circumstantial evidence, and the

best way to approach this would be just to give you a simple

example.”

The example that most strongly supports defendant’s

claim of error went as follows: “Let’s assume that you or your

spouse prepared . . . a raspberry pie and you set that on the

counter to cool. There’s nobody home except you and your nine-

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year-old child, and you tell the child to stay away from that pie,

that you have company coming that evening and you don’t want

the pie to be messed up, keep their fingers out of it. And then

you leave and you go about your tasks. Nobody else comes or

goes from the house. An[] hour or two later you come back into

the kitchen and somebody has stuck their finger in that pie, and

you go look for the child, and sure enough, there’s your nine-

year-old in the bedroom and he or she has raspberry pie filling

on their lower lip. I don’t think you’d have any trouble figuring

out what happened to that pie. Now, that’s circumstantial

evidence, sure, but I think most moms or dads would arrive at a

conclusion beyond any reasonable doubt under those

circumstances that that child was the one who got into that pie.”

(Italics added.) It appears two seated jurors heard this version

of the illustration. Other versions did not include the

“reasonable doubt” language, instead stating, for example, “I

don’t think any of you would have a problem figuring out what

happened to that pie.”

b. Discussion

In assessing defendant’s argument that the trial court’s

raspberry pie example diminished the reasonable doubt

standard, the relevant question is whether “ ‘there is a

reasonable likelihood that the jury understood the instructions

[as a whole] to allow conviction based on’ insufficient proof.”

(Daveggio, supra, 4 Cal.5th at p. 840.) There is not.

Defendant claims there is a reasonable likelihood that the

raspberry pie example caused prospective jurors to believe their

“task was to determine what had actually happened in the case

before them, as opposed to whether the prosecution had made a

sufficient case for [defendant’s] guilt.” We disagree. The trial

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court explained to each of the four panels of prospective jurors

that its example illustrated the concept of circumstantial

evidence. We have no reason to doubt that jurors understood

this point. The example was merely a portion of the guidance

provided to prospective jurors — let alone seated jurors — and

the balance of the court’s instructions made clear that the

People bore the burden of proof beyond a reasonable doubt. (See,

e.g., CALJIC No. 2.90; see also Daveggio, supra, 4 Cal.5th at p.

842 [comments made during jury selection are less significant

than instructions at the close of evidence].)5

Defendant is on somewhat firmer ground when he

complains that the court’s example “compared the jurors’ duty

to decision-making in ordinary life,” though only to the extent

that he challenges the court’s statement that “most moms or

dads would arrive at a conclusion beyond any reasonable doubt

under those circumstances that that child was the one who got

into that pie.” We perceive no error.

We have explained that “jurors should not be instructed to

convict based on the level of certainty needed to make decisions

‘in the ordinary affairs of life.’ ” (Daveggio, supra, 4 Cal.5th at

p. 841, quoting People v. Brannon (1873) 47 Cal. 96, 97; but cf.

Victor, supra, 511 U.S. at p. 19; Holland v. United States (1954)

348 U.S. 121, 140; Hopt v. Utah (1887) 120 U.S. 430, 439.)

“Because people often act in important matters notwithstanding

substantial uncertainty, the fear is that defining proof beyond a

reasonable doubt in relation to a person’s willingness to act,”

even “in the weightier affairs of life,” “might understate the

5

Contrary to defendant’s suggestion, there is no reasonable

likelihood that these or other comments led the jury to believe

that it should ignore the court’s other instructions.

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government’s burden of proof.” (Ramirez v. Hatcher (9th Cir.

1998) 136 F.3d 1209, 1214.)

The trial court’s raspberry pie example avoids the core of

this concern. The court did not communicate that if jurors had

sufficient confidence to make an ordinary or even important life

decision, then they had been convinced beyond a reasonable

doubt. The court instead provided a commonly used court

example of a fictional scenario and indicated that most parents

would be able to reach a beyond-a-reasonable-doubt conclusion

— having already told prospective jurors what “beyond a

reasonable doubt” means. To be clear, we do not condone the

court’s reference to the reasonable doubt standard in its

illustration of circumstantial evidence. (See Daveggio, 4 Cal.5th

at p. 844 [“We . . . reiterate that ‘modifying the standard

instruction [on reasonable doubt] is perilous, and generally

should not be done . . . .’ ”].) Nevertheless, we cannot conclude

that this brief, inartful pretrial reference to the reasonable

doubt standard — a standard the court had already defined

properly and would again define after the close of evidence —

created any “ ‘reasonable likelihood that the jury understood the

instructions to allow conviction based on’ insufficient proof.”

(Daveggio, supra, 4 Cal.5th at p. 840.) Accordingly, there was

no error.

Shifting away from his arguments regarding the burden

of proof beyond a reasonable doubt, defendant further complains

that the trial court’s comments “violated the evenhandedness

which due process demands.” This contention is meritless. To

the extent defendant claims that the court was not, in fact,

evenhanded, the comments he identifies fall far short of

establishing that claim. Here, the court had reason to be

concerned that at least some jurors were unaware of the rules

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governing capital trials. The court’s effort to “disabuse” jurors

of a possible misconception — in a manner the defense did not

find objectionable — in no way hints at partiality. The claim

also overlooks examples of the trial court’s conduct that were

favorable to defendant, including the court’s efforts to limit any

unduly prejudicial effect of the crime scene video and

photographs, and, close in time to the comments at issue here,

the court’s refusal to ask one of the questions requested by the

prosecution.

To the extent defendant claims the court conveyed to

jurors an appearance of partiality, the claim also lacks merit.

The court’s hypothetical, though lengthy and colloquial, did not

concern a fact pattern like the case before the prospective jurors,

and nothing the court said could reasonably be viewed as a

comment on the evidence. Moreover, this claim plucks the

court’s comment from context. Before jurors filled out

questionnaires, for example, the court explained that “we have

no idea if we will ever get to the penalty phase of this trial.” It

further emphasized that “[t]he fact that the defendant is in court

for trial or that charges have been made against him is no

evidence whatsoever of his guilt. You are to consider only

evidence properly received in this courtroom in determining the

guilt or innocence of the defendant.” The court also instructed

seated jurors with CALJIC No. 2.01, which explains when

circumstantial evidence is insufficient to support a conviction.

And, immediately before the seated jurors began their

deliberations, the court instructed them with CALJIC No. 17.30:

“I have not intended by anything I have said or done, or by any

questions that I may have asked, or by any ruling I may have

made, to intimate or suggest what you should find to be the

facts, or that I believe or disbelieve any witness. [¶] If anything

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I have done or said has seemed to so indicate, you will disregard

it and form your own conclusion.” We have no persuasive reason

to doubt that the jurors followed this instruction.

It may be preferable, as defendant asserts, to use more

neutral examples to illustrate the concept of circumstantial

evidence, rather than inculpatory fact patterns. (See, e.g.,

CALCRIM No. 223 [“[I]f a witness testifies that he saw someone

come inside wearing a raincoat covered with drops of water, that

testimony is circumstantial evidence because it may support a

conclusion that it was raining outside”].) Even if the court’s

framing was error, however, it was plainly harmless under any

potentially applicable standard.

C. Other Claims of Guilt-phase Instructional Error

Defendant complains of several other instructions given

during the guilt phase of his trial. Even assuming his claims of

error are preserved for our review, none has merit. (Cf.

Daveggio, supra, 4 Cal.5th at p. 840 [explaining that whether

failure to object was excused under section 1259 turned on the

merits of the claim, and thus “proceed[ing] to consider the

merits”].)

1. Burden of proof regarding robbery and grand theft

The jury was instructed with CALJIC No. 2.15. The court

advised: “If you find that a defendant was in conscious

possession of recently stolen property, the fact of that possession

is not by itself sufficient to permit an inference that the

defendant is guilty of the crimes of robbery and grand theft.

Before guilt may be inferred there must be corroborating

evidence tending to prove defendant’s guilt. However, this

corroborating evidence need only be slight and need not by itself

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be sufficient to warrant an inference of guilt. [¶] As

corroboration you may consider the attributes of possession[ —

]time, place, and manner[,] that the defendant had . . . an

opportunity to commit the crime charged, the defendant’s

conduct, a false account of how he acquired possession of the

stolen property, and any other evidence which tends to connect

the defendant with the crime charged.” This pattern instruction

is “generally favorable to defendants; its purpose is to emphasize

that possession of stolen property, alone, is insufficient to

sustain a conviction for a theft-related crime.” (People v.

Gamache (2010) 48 Cal.4th 347, 375.)

Defendant contends this instruction lowered the People’s

burden of proof. He similarly asserts the instruction permitted

the jury to draw an irrational inference, in violation of his right

to due process. “We have previously rejected the same

arguments, concluding that CALJIC No. 2.15 appropriately

permits — but does not require — jurors to infer guilt of

burglary, robbery, or theft from the possession of stolen property

plus some corroborating evidence, and that it does not violate

due process or reduce the burden of proof.” (People v. Grimes

(2016) 1 Cal.5th 698, 730; see also People v. Letner and Tobin

(2010) 50 Cal.4th 99, 189 [“the jury separately was instructed

regarding the elements of both robbery and theft, and there was

no suggestion in the challenged instruction that the jury need

not find that all of the elements of robbery (or theft) had been

proved beyond a reasonable doubt”].) We see no persuasive

reason to revisit or distinguish our precedent. Considering “the

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entire charge to the jury,” there was no error. (People v. Holt

(1997) 15 Cal.4th 619, 677.)6

2. After-acquired intent and robbery

Defendant contends that by instructing the jury with

CALJIC No. 9.40.2, the court misled jurors into believing that

they could find defendant guilty of robbery even if his intent to

take the Jenkses’ property arose after his use of force was

complete. We disagree.

CALJIC No. 9.40.2 provides: “To constitute the crime of

robbery, the perpetrator must have formed the specific intent to

permanently deprive an owner of [his] [her] property before or

at the time that the act of taking the property occurred. If this

intent was not formed until after the property was taken from

the person or immediate presence of the victim, the crime of

robbery has not been committed.” Defendant rightly observes

that it is possible for someone to form an intent to permanently

deprive another of property before “the act of taking the

property” is complete, but after the use of force has concluded.

The problem with defendant’s argument is that CALJIC

No. 9.40.2 merely sets out one of several conditions necessary

for a robbery conviction, a felony murder conviction based on

robbery, or a robbery-murder special-circumstance true finding.

The jury was elsewhere “adequately informed concerning the

6

Defendant could be understood to complain of a

prosecutor’s discussion of this instruction. Any claim of

misconduct was forfeited by defendant’s failure to object and to

request an admonition in the trial court. (Daveggio, supra, 4

Cal.5th at p. 853.) Defendant does not argue that any exception

to our forfeiture rule should apply with respect to this comment,

and none is apparent.

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point in time the intent to steal must have been formed” (People

v. Hughes (2002) 27 Cal.4th 287, 360), because it was instructed

with CALJIC Nos. 3.31 (concurrence of act and intent), 8.21

(first degree felony murder in the commission of a robbery),

8.81.17 (murder in commission of robbery), and 9.40 (robbery).

(See Jackson, supra, 1 Cal.5th at pp. 343-344; Zamudio, supra,

43 Cal.4th at p. 361; People v. Valdez (2004) 32 Cal.4th 73, 111-

112 & fn. 11; Hughes, at pp. 358-360, 363.) Viewing the

instructions as a whole rather than evaluating CALJIC No.

9.40.2 in isolation, there was no error.

3. Acquittal-first rule

Although a jury is free to consider greater and lesser

included offenses in whatever order it chooses (see People v.

Kurtzman (1988) 46 Cal.3d 322, 324-325), a jury may not return

a guilty verdict on a lesser offense without also acquitting the

defendant of a greater offense (see People v. Fields (1996)

13 Cal.4th 289, 309; see also People v. Anderson (2009) 47

Cal.4th 92, 114). The jury in this case was correctly instructed

on these principles: “[Y]ou are to determine whether the

defendant is guilty or not guilty of the crimes charged in Counts

1, 2, 3, and 4 or of any lesser crimes. In doing so, you have

discretion to choose the order in which you evaluate each crime

and consider the evidence pertaining to it. You may find it

productive to consider and reach a tentative conclusion on all

charges and lesser crimes before reaching any final verdicts.

However, the court cannot accept a guilty verdict on a lesser

crime unless you have unanimously found the defendant not

guilty of the charged crime.” (See CALJIC No. 17.10.)

Defendant’s trial counsel asked the court to instruct on

CALJIC No. 17.10, which describes this so-called acquittal first

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rule. Defendant now complains, however, that the rule creates

an intolerable risk that a juror may acquiesce to a first degree

murder conviction. The hypothesized juror may believe that a

defendant is guilty of second degree murder. But, the

hypothesis continues, a juror may perceive that fellow jurors

will be unwilling to acquit of first degree murder, and thus feel

pressured to convict of that offense rather than causing a

mistrial. (Cf. United States v. Tsanas (2d Cir. 1978) 572 F.2d

346 [“If the jury is heavily for conviction on the greater offense,

dissenters favoring the lesser may throw in the sponge rather

than cause a mistrial that would leave the defendant with no

conviction at all, although the jury might have reached sincere

and unanimous agreement with respect to the lesser charge”].)

A guilty verdict on second degree murder, with a mistrial on first

degree murder, is not an option; “the court cannot accept a guilty

verdict on a lesser crime” unless the jury has “unanimously

found the defendant not guilty of the [charged] [greater] crime.”

(CALJIC No. 17.10.)7

We have repeatedly rejected challenges to this acquittal-

first rule, albeit sometimes in the context of a different pattern

instruction. (See People v. Brooks, supra, 3 Cal.5th at pp. 81-82;

People v. Covarrubias (2016) 1 Cal.5th 838, 906; People v.

Sattiewhite (2014) 59 Cal.4th 446, 479; People v. Whisenhunt

(2008) 44 Cal.4th 174, 222-223; Jurado, supra, 38 Cal.4th at p.

125; People v. Cox (2003) 30 Cal.4th 916, 967; People v.

7

Defendant notes in passing that similar pressure may

apply when a jury is deciding whether to convict of robbery or a

lesser included offense.

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Nakahara (2003) 30 Cal.4th 705, 715.) We decline to reconsider

our precedent.8

In light of defendant’s thorough and thoughtful briefing on

the subject, however, we make one observation. The choice

defendant hypothesizes is far afield from requiring a jury to

choose between convicting a defendant of a capital crime or

convicting him of nothing at all. (Cf. Beck v. Alabama (1980)

447 U.S. 625, 627 [death sentence may not be imposed “ ‘after a

jury verdict of guilt of a capital offense, when the jury was not

permitted to consider a verdict of guilt of a lesser included non-

capital offense, and when the evidence would have supported

such a verdict’ ”].) We presume that jurors follow instructions.

There is far less reason to doubt that they will do so when the

alternative is a mistrial rather than an acquittal — let alone to

believe that they will violate their duty to follow the instructions

by convicting of first degree murder rather than by entering a

compromise acquittal on that greater charge and agreeing to

convict only of second degree murder. The risk of erroneous

conviction is particularly diminished because jurors remain free

to discuss second degree murder before reaching a verdict on

first degree murder; they can acquit of first degree murder with

confidence that the defendant will still be convicted of a serious

offense.

In any event, it is difficult to imagine that the acquittal-

first rule had any effect in this case. There is no reason to

believe the rule would have caused jurors to unanimously find

8

Because this claim fails on the merits, it is unnecessary

for us to analyze whether trial counsel’s request that the

instruction be given invited any error or forfeited the claim of

error. (See People v. Bramit (2009) 46 Cal.4th 1221, 1246.)

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true the robbery-murder special-circumstance allegation. That

finding thus confirms that the jury unanimously believed

defendant was guilty of at least felony murder.

4. Burden of proof regarding the degree of murder

Defendant contends that another pattern instruction

“tended to,” among other things, “place the burden of raising a

doubt” as to the degree of murder on the defense. We are not

persuaded.

The instruction at issue informed the jury: “If you are

convinced beyond a reasonable doubt and unanimously agree

that the crime of murder has been committed by a defendant,

but you unanimously agree that you have a reasonable doubt

whether the murder was of the first or of the second degree, you

must give defendant the benefit of that doubt and return a

verdict fixing the murder as of the second degree as well as a

verdict of not guilty of murder in the first degree.” (See CALJIC

No. 8.71 (6th ed. 1996).)

Defendant complains that this “instruction stated, in

effect, that the jury had to find a doubt in order to make the

crime of the second degree,” and thus “implied that the default

finding was first-degree murder.” “And if the jury had to be

convinced of a doubt to reduce the charge,” he continues, “the

further implication was that the defendant was the party to do

the convincing, by raising one.”9

9

The record suggests that defendant requested this

instruction, again raising the question whether any error was

invited. We again decline to resolve this question, because the

claim fails regardless.

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There is no reasonable likelihood that the jury understood

the instruction in this way. (Estelle v. McGuire (1991) 501 U.S.

62, 72 & fn. 4.) The instruction governed the jury’s conduct only

if the jury had been “convinced beyond a reasonable doubt” that

defendant was guilty of murder. In other words, the instruction

applied only if the prosecution had carried its burden of proving

murder (meaning, at minimum, second degree murder) beyond

a reasonable doubt. From that point, the instruction redounded

to the benefit of the defendant; uncertainty about the degree of

the offense would not make first degree murder the default, it

would require that the defendant receive the benefit of the doubt

— an acquittal on the first degree murder charge. (See People

v. Salazar, supra, 63 Cal.4th at p. 247 (Salazar).) Certainly, and

contrary to defendant’s contention on appeal, the instruction

was not stated solely from the viewpoint of the prosecution.

Defendant also argues that the instruction was flawed

because it “stated a need for a collective finding” of doubt,

notwithstanding his “right to each juror’s individual judgment.”

We have acknowledged that, viewed in isolation, the

instruction’s focus on whether “you unanimously agree that you

have a reasonable doubt” (CALJIC No. 8.71 (6th ed. 1996))

“carr[ies] at least some potential for confusing jurors about the

role of their individual judgments” (People v. Moore (2011) 51

Cal.4th 386, 411; id., at pp 409-412). Viewing the instructions

as a whole, however, there was no error. In context, the jury

would have understood the challenged language to refer to the

concept, discussed above, that “the court cannot accept a guilty

verdict on a lesser crime unless you have unanimously found the

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defendant not guilty of the charged crime.” (See CALJIC No.

17.10; Salazar, supra, 63 Cal.4th at pp. 247-248.)10

The jury was also instructed with CALJIC No. 17.40,

which makes clear, in pertinent part: “The People and the

defendant are entitled to the individual opinion of each juror.

[¶] Each of you must consider the evidence for the purpose of

reaching a verdict if you can do so. Each of you must decide the

case for yourself, but should do so only after discussing the

evidence and instructions with the other jurors. [¶] Do not

hesitate to change an opinion if you are convinced it is wrong.

However, do not decide any question in a particular way because

a majority of the jurors, or any of them, favor that decision.” It

is thus not reasonably likely that the jury understood the

challenged instruction in the way defendant does on appeal.

(See Salazar, supra, 63 Cal.4th at p. 248 [“Defendant’s reading

assumes the jury would disregard . . . the explicit directions of

CALJIC No. 17.40 emphasizing each juror’s duty to decide the

case as an individual”].)

5. Consciousness of guilt instruction

The jury was instructed with CALJIC No. 2.03. The court

advised: “If you find that before this trial the defendant made a

willfully false or deliberately misleading statement concerning

the crimes for which he is now being tried, you may consider

that statement as a circumstance tending to prove a

consciousness of guilt. However, that conduct is not sufficient

10

Defendant complains that these instructions

“exacerbated” each other’s effect. We agree that the instructions

jointly made clear the acquittal-first rule, but that was not error,

and we do not perceive any other.

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by itself to prove guilt, and its weight and significance, if any,

are for you to decide.” “The cautionary nature of [this]

instruction[] benefits the defense, admonishing the jury to

circumspection regarding evidence that might otherwise be

considered decisively inculpatory.” (People v. Jackson (1996)

13 Cal.4th 1164, 1224; accord Covarrubias, supra, 1 Cal.5th at

p. 908 (Covarrubias); see also People v. Page (2008) 44 Cal.4th

1, 50 & fn. 24.) Defendant nevertheless claims that the trial

court erred by giving the instruction. We disagree.

Defendant first argues that the instruction was not

applicable to the facts of his case. It was. The morning of

August 6, the day after defendant pawned Shirley Jenks’s

jewelry, defendant spoke with two officers regarding his

hatchet. As one officer testified: “[W]e then asked him . . . could

we see the hatchet? And then he said he didn’t have it, he

thought that he lost it. [¶] We then went on to ask him where

it could have been lost or how it could have been lost? He told

us that he recently had moved from one apartment in the

complex to another apartment in the complex and he must have

lost it in the move.” By contrast, Diana Williams testified that

she had seen defendant use the hatchet in his new apartment to

hammer speaker wire into place. Moreover, also on August 6,

defendant refused to answer Quentin’s repeated questions about

where the hatchet had gone — conduct undermining defendant’s

appellate theory that his statement to police about losing the

hatchet could have been “an honest mistake.” On these facts,

the instruction was amply justified. (See People v. Russell

(2010) 50 Cal.4th 1228, 1254-1255 (Russell) [instruction was

properly given when the evidence permitted the jury to make a

rational inference that the defendant made a false statement to

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deflect suspicion away from himself].) Likewise, the instruction

did not invite the jury to draw an irrational inference.

Defendant also claims that the instruction is

impermissibly argumentative. We have repeatedly held

otherwise and see no persuasive reason to revisit or distinguish

our precedent. (See, e.g., People v. Henriquez (2017) 4 Cal.5th

1, 34; People v. Nelson (2016) 1 Cal.5th 513, 552; People v.

Williams (2015) 61 Cal.4th 1244, 1265; People v. Bryant (2014)

60 Cal.4th 335, 438; People v. Jones (2013) 57 Cal.4th 899, 971;

People v. Bacon (2010) 50 Cal.4th 1082, 1108; People v. Page,

supra, 44 Cal.4th at pp. 49-52.) True, the evidence showed that

defendant was otherwise cooperative with officers at around the

time he claimed to have lost his hatchet. But the jury could

consider that cooperation in determining whether “[the]

defendant made a willfully false or deliberately misleading

statement.” (CALJIC No. 2.03; cf. Russell, supra, 50 Cal.4th at

p. 1253 [instruction not argumentative in case in which

“[i]mmediately following his arrest, defendant agreed to be

interviewed”]; id., at p. 1256.)

6. Requiring unanimous agreement on a theory of first

degree murder

The jury was instructed that “[i]n arriving at a verdict for

first degree murder, it is not necessary that all jurors agree on

one or more of several theories proposed by the prosecution.”

Defendant contends that the jury should have been required to

unanimously agree on which of the prosecution’s theories had

been proved beyond a reasonable doubt: premeditated and

deliberate murder, or robbery felony murder. We have rejected

this argument in the past and see no persuasive reason to revisit

the issue. (See, e.g., People v. Sattiewhite, supra, 59 Cal.4th at

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p. 479; People v. McKinzie (2012) 54 Cal.4th 1302, 1354; People

v. Valencia (2008) 43 Cal.4th 268, 289 (Valencia).) We also

observe that the jury not only convicted defendant of a

standalone robbery charge, but also found true the robbery-

murder special-circumstance allegation. At the very least, the

special circumstance finding “necessarily demonstrates the

jury’s determination that the defendant committed felony

murder” (People v. Gonzalez (2018) 5 Cal.5th 186, 200

(Gonzalez)), evincing unanimous agreement on at least that

theory of first-degree murder (Valencia, at p. 289).

D. Admission of Report on Galloway’s Statement

On rebuttal, an investigator read aloud from his report of

an interview with driver Oscar Galloway. Defendant contends

the report was hearsay, admitted in violation of state law and

the confrontation clause of the Sixth Amendment to the United

States Constitution. We conclude that any statutory error was

harmless at the guilt phase and that no constitutional violation

occurred.

1. Background

Detective Walker spoke with Oscar Galloway at

Galloway’s residence a few days after the killings. At trial in

June 1998, Galloway explained that he was then undergoing

cancer treatment and lacked a full and accurate recollection of

the events of early August 1997. He did, however, identify

defendant in the courtroom; testify that he had driven defendant

to a casino “a couple of times”; recall speaking with Walker; and

claim that he answered Walker’s questions honestly. Galloway

acknowledged on cross-examination that he could not recall

what he told Walker and was not able to recall when he drove

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defendant to the casino. Galloway added that his medical

problem did not “really [come] down” on him until October 1997,

about two months after the Walker interview.

Over defendant’s objection, the trial court allowed the

detective to read aloud from his report of the interview. The

detective then testified as follows: “Galloway said that on

Tuesday, 8-5-97, . . . Potts wanted to go to The Palace and . . .

play the slots. He also wanted to go downtown. Galloway said

that Potts entered the car with a large blue duffel bag. When

Galloway parked his car, Potts exited with the duffel bag and

said he would be back shortly. [¶] Galloway stood out in front

of the Cottage Bar on Seventh Street talking to a friend until

sometime later Potts came back. They then went to The Palace

and played the slot machines. Galloway said that they did not

stay there very long, however. [¶] Galloway did not think much

of it until the next day, 8-6-97, when Potts came to his house and

asked him if Potts had left his duffel bag in the back of

Galloway’s car. Galloway did not know for sure, and he knew

that his car was locked, so he and Potts walked together to the

car to look for the duffel bag. [¶] According to Galloway, the

duffel bag was found on the back seat in the car. Potts retrieved

the bag. Galloway noted that the bag did not look as packed as

the day before when Potts got out of his car and left for a while.”

2. Analysis

Defendant first argues that admission of the statement

violated the confrontation clause, because “the statement was

made out of court and without an opportunity for cross-

examination.” This argument lacks force, because Galloway

was available for cross-examination about the statement at

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trial, his memory problems notwithstanding. (See People v.

Cowan (2010) 50 Cal.4th 401, 467-468.)

Defendant next argues that the statement was

inadmissible hearsay, an objection he raised below. The

statement was certainly hearsay, but the trial court ruled it

admissible under the past recollection recorded exception to the

hearsay rule. (See Evid. Code, § 1237.) Defendant contends

that two of the exception’s requirements were not satisfied.

Most notably, he argues that the report was not created “at the

time” the statement “was made” (id., § 1237, subd. (a)(2)),

because Walker did not record Galloway’s statement the

morning it was uttered, but instead typed his report at some

unspecified time later that day.

It is debatable whether defense counsel objected on this

precise ground in the trial court. But the People do not argue

that the claim has been forfeited, and the trial court was

sufficiently informed to ask Walker, “[d]o you recall when you

typed it” and “you believe you wrote up the interview or your

record of the interview on August 9th?” Indeed, the People’s

brief conspicuously fails to mention this objection at all, let alone

press forfeiture or engage with defendant’s interpretation of the

statutory phrase, “at the time it was made.”

Because of the People’s failure to engage with defendant’s

argument, we decline to explore whether the argument was

preserved or had merit. Instead, we conclude that any error was

harmless at the guilt phase. (See Gonzalez, supra, 5 Cal.5th at

p. 195 [nonstructural state law error evaluated for reasonable

probability of a more favorable result]; People v. Watson (1956)

46 Cal.2d 818, 836-837.) Defendant contends that Galloway’s

statement was highly relevant to whether defendant committed

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the killings; the statement helped “to explain the absence of

jewelry, bloody clothing or shoes, or a hatchet among

[defendant’s] belongings, because the duffel that was supposedly

in Galloway’s car at the time of the search contained them.” A

prosecutor made a similar argument during closing argument.

He expected the defense to argue that the lack of evidence found

during the 3:00 a.m. search of defendant’s apartment soon after

the killings indicated that defendant was not the perpetrator.

Part of the prosecutor’s response to the anticipated argument

was that Galloway’s statement was “a very significant piece of

information,” which showed that at least the bag (and, the

prosecutor seemed to suggest, “the [hatchet] and the other

items”) were in Galloway’s car that night.

Notwithstanding the prosecutor’s rather strong assertion

that the evidence was “very significant,” it is hard to imagine

that the Galloway statement had any impact on the jury’s guilt-

phase verdict. The lack of hatchet or jewelry found during the

3:00 a.m. search tended to exculpate defendant to the extent

that one would expect those items to be found in his apartment.

To defeat that expectation, all the jury had to believe was that,

in the more than 24 hours between the murders and the search,

defendant had left the unpawned jewelry and the hatchet

literally anywhere in the world other than inside his apartment.

The prosecutor argued this point as well: “One, your common

sense tells you, well, not likely, because if you just killed

somebody and you had blood all over your clothes, you’re going

to throw them away, you’re not going to keep them around the

house. And, two, you might hide the jewelry where people can’t

find it.” Indeed, if the theory is that defendant retrieved the

items from Galloway’s car two days after the killings, then he

must have been capable of hiding the items elsewhere, before

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the intensive postarrest search of his apartment also failed to

uncover those items.

Finally, viewing the record as a whole (including the gaps

in the prosecution’s case), the evidence that defendant

committed the murders was quite strong. (See ante, part II.A.)

E. Penalty-related Claims

1. Admission of report on Galloway’s statement

Defendant contends that the admission of Galloway’s

statement during the guilt phase prejudiced the jury’s penalty

determination. We disagree.

When a defendant claims that evidence admitted in

violation of state law at the guilt phase prejudiced the jury’s

penalty determination, we assess prejudice using the standard

for state law penalty-phase error. (See People v. Romero, supra,

62 Cal.4th at p. 28.) Under that standard, “we will affirm the

judgment unless we conclude there is a reasonable (i.e.,

realistic) possibility that the jury would have rendered a

different verdict had the error . . . not occurred.” (People v.

Brown (1988) 46 Cal.3d 432, 448.) This inquiry is “ ‘the same in

substance and effect’ ” as the harmless-beyond-a-reasonable-

doubt inquiry triggered by federal constitutional error. (People

v. Ochoa (1998) 19 Cal.4th 353, 479; see also Chapman v.

California (1967) 386 U.S. 24.)

Even if Galloway’s statement about his outing with

defendant had been excluded, there is no reasonable possibility

the jury would have reached a different penalty-phase verdict.

Defendant contends that the prosecutor used Galloway’s

statement to portray defendant as callous, pointing out that the

prosecutor said defendant was “off to the casino gambling” the

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day after the murders. This reference to gambling was but a

tiny sliver of the closing argument, which instead focused on the

horrific details of the crime and the effect it had on others.

Defendant similarly contends that although the other

evidence at trial would have given jurors “the impression that

[he] was so desperate for money that he could not buy food, the

testimony admitted in error replaced that image by one of a man

willing to kill two people to fund a brief visit . . . to the slot

machines.” This version of defendant’s argument has at least

two problems. First, although Galloway’s out-of-court

statement was the only direct evidence that defendant gambled

after killing the Jenkses, it was hardly the only evidence

suggesting that the murders were connected to a gambling

problem. Galloway testified in court that he had driven

defendant to a casino “a couple of times,” and Diana Williams

testified that defendant had lost money at an out-of-town casino

in the days leading up to the Jenkses’ murders. Second, and

more fundamentally, the brutality of the murders — to say

nothing of the sexual assault — overwhelmingly indicated that

defendant was not a reluctant killer merely trying to obtain

money to buy food. Among other things, jurors had before them

a videotape showing Shirley Jenks’s body spread across her bed,

with one arm clutching her bloodied chest and a throat slit from

ear to ear. On these facts, and even considering the case in

mitigation and the possibility of lingering doubt, any error was

harmless.

2. Excusing jurors based on their views about the

death penalty

A prospective juror may not be excused based on his or her

views on capital punishment unless those views would

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substantially impair the person’s performance of his or her

duties as a juror. (Wainwright v. Witt (1985) 469 U.S. 412, 424;

see also Witherspoon v. Illinois (1968) 391 U.S. 510.) Defendant

claims the trial court improperly excused seven prospective

jurors from the venire based on their opposition to the death

penalty, denying him due process and an impartial jury. This

claim lacks force, because defendant’s trial counsel stipulated to

dismissal of those jurors. (See People v. Booker (2011) 51 Cal.4th

141, 161 (Booker).)

Defendant contends that the stipulations are

inconsequential. He observes that at the time of his trial, an

objection was not necessary to preserve this sort of claim of

error. (See People v. McKinnon (2011) 52 Cal.4th 610, 637-643.)

In this case, he continues, the trial court itself identified jurors

about which it was concerned rather than leaving that task to

the parties. Thus, defendant argues, the stipulations here were

effectively mere failures to object to the court’s anticipated

rulings, and his claim is cognizable on appeal.

This argument is not persuasive. To be sure, it appears

that the trial court’s doubts about whether certain jurors could

fairly consider imposing the death penalty prompted it to

inquire whether the parties would stipulate to those jurors being

excused. What matters, however, is not why defendant’s

counsel voluntarily stipulated to the dismissals nor how the

court might have ruled in the absence of stipulations; it is that

the dismissals were made by stipulation. (See People v.

Mitcham (1992) 1 Cal.4th 1027, 1061 [“Because of the

stipulation, the trial court was not called upon to decide whether

these prospective jurors could properly be excused for cause”];

cf. Booker, supra, 51 Cal.4th at p. 161 [stipulation effective even

when “the discussion between the trial court and the parties

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focused on the prospective jurors’ opinions about the death

penalty, and those expressed opinions formed the basis for the

parties’ decisions regarding whether to stipulate to the

dismissal”].) Accordingly, we reject defendant’s challenge to the

dismissal of these prospective jurors.

3. Lack of instruction regarding victim-impact

evidence

The trial court instructed the jury with various standard

instructions explaining the principles governing the jury’s

penalty determination, including CALJIC Nos. 8.84.1, 8.85, and

8.88. Defendant argues that the trial court had an additional

duty to instruct the jury, on the court’s own motion, about the

proper use of victim impact testimony. “[W]e have repeatedly

held that the trial court’s use of jury instructions CALJIC Nos.

8.84.1 and 8.85 is sufficient to address a defendant’s concerns

about the proper use of victim impact evidence, and is consistent

with his or her federal and state constitutional rights to due

process, a fair trial, and a reliable penalty determination.”

(People v. Simon (2016) 1 Cal.5th 98, 143; see also, e.g., People

v. Johnson (2015) 61 Cal.4th 734, 780; People v. Enraca (2012)

53 Cal.4th 735, 763-764; People v. Tate (2010) 49 Cal.4th 635,

708; People v. Carrington (2009) 47 Cal.4th 145, 198; People v.

Bramit, supra, 46 Cal.4th at pp. 1244-1245; Valencia, supra, 43

Cal.4th at p. 310.) We see no persuasive reason to revisit or

distinguish our precedent.

4. Lack of unanimity requirement for unadjudicated

criminal activity

The People presented evidence that defendant sexually

assaulted Carol T. and Diane H. prior to the Jenkses’ murders.

(See § 190.3, factor (b).) A pattern instruction properly

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communicated that a juror could consider that unadjudicated

criminal activity as an aggravating factor only if the juror was

satisfied, beyond a reasonable doubt, that defendant committed

that activity. (See, e.g., People v. Robertson (1982) 33 Cal.3d 21,

53-55; see also CALJIC No. 8.87.) The pattern instruction also

communicated, however, that it was not necessary for the jury to

agree unanimously that defendant did so. Defendant contends

that this was error.

We disagree. A penalty-phase jury need not unanimously

agree that a defendant engaged in unadjudicated criminal

activity; what is required is that the jury’s penalty

determination as a whole be unanimous. (People v. Ghent (1987)

43 Cal.3d 739, 773.) We acknowledge that unadjudicated

criminal activity may prove significant to a juror’s penalty

determination. But we cannot say that this factor is so

categorically different from other factors, such as “[w]hether or

not the defendant acted under extreme duress or under the

substantial domination of another person” (§ 190.3, factor (g)),

that unanimity is uniquely necessary in this context. We

instead adhere to our settled precedent on this issue. (See e.g.,

People v. Landry (2016) 2 Cal.5th 52, 121; People v. Bryant,

supra, 60 Cal.4th at pp. 451-452; People v. Burney (2009) 47

Cal.4th 203, 259-260; People v. Butler (2009) 46 Cal.4th 847,

876; People v. Yeoman (2003) 31 Cal.4th 93, 164; People v.

Anderson (2001) 25 Cal.4th 543, 590.) The high court’s decision

in Apprendi v. New Jersey (2000) 530 U.S. 466 does not require

a different result. (Burney, at pp. 259-260.)

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F. Noncapital Sentencing Claims

1. Elderly victim enhancements

In connection with each murder count, the jury found true

an allegation that “at the time of the commission of the above

offense the defendant committed the above crime against a

person 65 years of age or older and that this condition was

known or reasonably should have been known to the defendant

within the meaning of section 667.9(a) of the Penal Code.”

(Italics added.) Based on these findings and a prior strike under

the “Three Strikes” law, the court imposed a four-year

enhancement (two one-year determinate terms, doubled).

Defendant claims that murder is not one of the crimes eligible

for enhancement under section 667.9, subdivision (a). The

People confess error, but assert that since robbery is an eligible

crime, and the same information charged defendant with

robbery, “the enhancement should still be applied to the robbery

count.” The People cite no authority suggesting that we can, let

alone must, transfer the jury’s finding to the robbery count. We

decline to do so.

2. Restitution fine

The trial court ordered defendant to pay a $10,000

restitution fine. Defendant acknowledges that at the time he

was sentenced, the applicable version of section 1202.4

permitted the trial court to consider his inability to pay in

setting the amount of the fine. Subdivision (c) of that section

instructed that “[a] defendant’s inability to pay shall not be

considered a . . . reason not to impose a restitution fine.

Inability to pay may be considered only in increasing the

amount of the restitution fine in excess of the two-hundred-

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dollar ($200) or one-hundred-dollar ($100) minimum.” (Stats.

1997, ch. 527, § 4, p. 3215.) Subdivision (d) added that “[i]n

setting the amount of the fine pursuant to subdivision (b) in

excess of the two-hundred-dollar ($200) or one-hundred-dollar

($100) minimum, the court shall consider any relevant factors

including, but not limited to, the defendant’s inability to

pay . . . .” (Ibid.)

Defendant contends that the trial court set the $10,000

amount based on erroneous information about whether

defendant would be permitted to work while incarcerated. In

particular, the probation officer reported: “The defendant will be

imprisoned for an extended period of time. Therefore, it is your

officer’s opinion, during the time he is imprisoned he is capable

of earnings, therefore, capable of paying for the fines as ordered

by the Court.” On appeal, the People do not dispute that

condemned inmates are not permitted to work, nor that the trial

court can be assumed to have relied on the probation officer’s

error. They also do not contend that defendant has forfeited any

claims based on that error. (Cf. People v. Gallardo (2017) 4

Cal.5th 120, 128 [“Forfeiture is not a jurisdictional doctrine”].)

We will thus assume, for argument’s sake, that the trial court

abused its discretion when it initially imposed a $10,000

restitution fine.

In the unusual circumstances of this case, however, we

conclude that any error was harmless beyond a reasonable

doubt. Although we assume that the trial court imposed the

initial restitution fine with the belief that defendant could work

while incarcerated, as discussed below, we are confident that the

trial court would have imposed the same fine even in the

absence of that belief. We also conclude that such a fine would

have been lawful.

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Long after sentencing, in 2007, defendant filed a “Motion to

Modify Restitution Fine” in the trial court. He brought the

probation officer’s error to the court’s attention, arguing that he

was unable to pay the $10,000 fine and that a lower fine should

be imposed. The thrust of his argument was that his only source

of income was the small gifts he occasionally received, and that

the fine would result in up to 55 percent of those gifts being

withheld — interfering with his ability to satisfy his basic needs

by purchasing items at the commissary. The same judge that

initially sentenced defendant refused to modify the fine. The

court reasoned that seizing a portion of defendant’s income,

rather than all of it, “seems a minimal burden considering the

incredible loss that was inflicted, not only on the victims, but on

their daughter, who suffered catastrophic emotional

consequences.” The court continued, “We . . . don’t have any

evidence of her current status. The last time the Court had

information, it would appear she was still suffering and would

probably always be disabled because of the emotional trauma that

she experienced. [¶] I see no reason to revisit the Court’s earlier

order and modify that restitution fine. The defendant’s ability to

pay is taken into consideration by the Department of Corrections

when it makes its deductions and makes payments toward that

restitution liability. So I’m going to deny the motion.” Given

these comments, we are confident that the trial court would have

imposed the same fine even ignoring the probation officer’s

error.11

11

We rely on the trial court’s comments solely as a guide to

whether the probation officer’s error had any prejudicial effect.

We express no opinion on whether the trial court had authority

to consider all or part of the motion.

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We further conclude that, had the court imposed the same

fine in the absence of the probation officer’s error (and in the

face of a similar objection), the fine would have been lawful.

Defendant first argues that the court’s rationale in ruling on the

2007 motion “strip[ped] the criterion of ability to pay of all

meaning” because the deduction at issue is taken from all

prisoners. We do not understand the trial court to have meant

that all prisoners are necessarily able to pay because they will

lose only a portion of their income in prison. Instead, we

understand the court to have indicated that the significance of

defendant’s difficulty paying was blunted by the fact that he

would retain at least some of the money sent to him. Indeed,

defendant — unlike prisoners whose release is anticipated —

would seem to be subject to deduction rules governing prisoners

for the rest of his life.12

Defendant also appears to suggest that a fine is

automatically invalid if a defendant is unable to pay it. We

disagree. Inability to pay is a factor for the court to consider in

setting the amount of a restitution fine, alongside “any relevant

factors including, but not limited to, . . . the seriousness and

gravity of the offense and the circumstances of its commission,

any economic gain derived by the defendant as a result of the

crime, the extent to which any other person suffered any losses

12

We do not suggest that a court satisfies its obligation to

“consider any relevant factors, including, but not limited to, the

defendant’s inability to pay” merely by noting that the

Department of Corrections and Rehabilitation considers ability

to pay. (§ 1202.4, subd. (d).) The point is that a trial court

considering the burden that a restitution fine will impose on a

capital inmate may properly consider evidence that the inmate

will retain a portion of his income, fine notwithstanding.

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as a result of the crime, and the number of victims involved in

the crime.” (Former § 1202.4, subd. (d); see also ibid. [“Those

losses may include pecuniary losses to the victim or his or her

dependents as well as intangible losses, such as psychological

harm caused by the crime”].) The court was permitted to

conclude that the monetary burden the restitution fine imposed

on defendant was outweighed by other considerations.

Our decision in People v. Lewis (2009) 46 Cal.4th 1255

(Lewis) is instructive. We explained: “Defendant’s argument in

the trial court — that the imposition of a large restitution fine,

which would be deducted from a portion of any funds given to

defendant by his family to purchase personal items such as

toothpaste, would be ‘an additional indignity’ — did not

establish that imposing the maximum fine of $10,000 would be

inappropriate under section 1202.4. On the contrary, his

argument contemplated that defendant would have funds in the

future from which restitution could be paid, and thus

contradicted the view that defendant would be unable to pay the

fine. Defendant’s theory on appeal — that the trial court

disregarded his inability to pay the fine — also fails. The court

clearly considered that possibility as a factor, but defendant’s

assertion that he was unable to pay the fine did not compel the

court to impose a lesser fine. In light of the offenses committed

by defendant and the harm he caused to the victim and her

children, we find no abuse of discretion in the trial court’s

determination that a fine in the amount of $10,000 was

appropriate.” (Id., at p. 1321.)13

13

Given the force of this competing consideration, and that

this rationale accounts for defendant’s ability to pay, the fine

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People v. Viera (2005) 35 Cal.4th 264 is not to the contrary.

In Viera, we held that a defendant ordered to pay a restitution

fine at a time when a court could not consider inability to pay

was entitled to a remand, so that the court could consider the

restitution fine under current statutory criteria. (See Viera, at

pp. 305-306; Covarrubias, supra, 1 Cal.5th at p. 935.) We

further indicated that “[i]f the People choose not to contest the

matter on remand, defendant’s restitution fine shall be reduced

to the statutory minimum” (Viera, at p. 306) — the best result

Viera could have obtained at a contested hearing. Defendant

claims this statement implies that “if a defendant prevails in

showing inability to pay, the fine should be the minimum,

regardless of such factors as the seriousness of the offense.” He

is mistaken; we left the People free to contest the matter on

remand, and the trial court free to conclude that,

notwithstanding any difficulty Viera may have had in paying, a

fine higher than the statutory minimum would be appropriate.

The court in this case had that discretion as well.

G. Cumulative Effect of Errors Identified or

Assumed

Defendant contends that he is entitled to relief based on

the cumulative effect of the errors he claims to have identified.

We disagree.

We have assumed error regarding defendant’s challenge

to the trial court’s illustration of circumstantial evidence and to

the admission of Galloway’s statement. Considered

cumulatively, these assumed errors provide no basis for

would not be excessive, deny defendant due process, or deny him

equal protection of the laws.

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reversal. The Galloway statement had no bearing on the jury’s

understanding of circumstantial evidence. And although it

would have been preferable for the court’s illustration of

circumstantial evidence to be more neutral, we have already

concluded that the illustration was harmless in light of the

record as a whole — including the Galloway statement.

We have also found or assumed error regarding the elderly

victim enhancements and the amount of the restitution fine.

Here, too, there is no cumulative prejudice. The fact that the

elderly victim enhancements were attached to the wrong counts

(murder, not robbery) would have no effect on any other aspect

of the jury’s deliberations. And the jury did not even set the

amount of the restitution fine, which had no effect on the rest of

the sentence.

Defendant also argues that even if there were no

individual errors, he is still “entitled to reversal if his trial was

unfair or its result unreliable.” Viewing the record as a whole,

we cannot say that defendant was denied a fair trial or a reliable

judgment.

H. Constitutionality of California’s Death Penalty

Scheme

Defendant argues that California’s death penalty scheme

is unconstitutional. He advances one argument he believes we

have yet to consider and several he concedes we have rejected in

the past. He also contends that the duration of his confinement

under his death sentence constitutes cruel and unusual

punishment, which should be relieved by vacating that

sentence. None of these arguments has merit.

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Opinion of the Court by Cantil-Sakauye, C. J.

1. Burden of proof

We have held that “ ‘[t]he death penalty is not

unconstitutional for failing to impose a specific burden of proof

as to the existence of aggravating circumstances, the greater

weight of aggravating circumstances over mitigating

circumstances, or the appropriateness of a death sentence.’ ”

(People v. Parker (2017) 2 Cal.5th 1184, 1232; see also People v.

Rangel, supra, 62 Cal.4th at p. 1235 [discussing burden of proof

regarding “Pen. Code, § 190.3, factor (b) or factor (c) evidence”].)

As we explained nearly 30 years ago, “[a]t the penalty phase,

each juror must determine, through the weighing process, which

of the two alternative penalties is the more appropriate.

Because the determination of penalty is essentially moral and

normative [citation], and therefore different in kind from the

determination of guilt, there is no burden of proof or burden of

persuasion. [Citation.]” (People v. Hayes (1990) 52 Cal.3d 577,

643 (Hayes).)

Defendant contends that various provisions of the

Evidence Code entitled him to an instruction that the

prosecution had the burden of proof and persuasion at the

penalty phase, or alternatively, an instruction that there was no

such burden. (See Evid. Code, §§ 500, 502, 520, 550.)

Evidence Code section 500 states, “Except as otherwise

provided by law, a party has the burden of proof as to each fact

the existence or nonexistence of which is essential to the claim

for relief or defense that he is asserting.” Defendant argues that

“[i]n a capital case, the prosecution’s demand for the death

sentence is a claim for relief.” Even assuming the truth of that

premise for the sake of argument, defendant fails to identify any

essential fact that the prosecution must prove at the penalty

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Opinion of the Court by Cantil-Sakauye, C. J.

phase, after the jury has already found the special circumstance

allegations true beyond a reasonable doubt.

Evidence Code section 502 requires the court, “on all

proper occasions,” to “instruct the jury as to which party bears

the burden of proof on each issue . . . .” Our observation that the

penalty phase “is essentially moral and normative [citation],

and therefore different in kind from the determination of guilt”

(Hayes, supra, 52 Cal.3d at p. 643), implies the penalty phase is

not a “proper occasion[]” (§ 502) within the meaning of this

generally applicable rule of evidence. (See People v. Holt, supra,

15 Cal.4th at p. 684 [notwithstanding section 502, “because

capital sentencing is a moral and normative process, it is not

necessary to give instructions associated with the usual

factfinding process”].)

Evidence Code section 520 provides that “[t]he party

claiming that a person is guilty of crime or wrongdoing has the

burden of proof on that issue.” We have repeatedly held that

this provision does not require an instruction placing the burden

of proof on the People at the penalty phase, and we see no

persuasive reason to reconsider our precedent. (See, e.g., People

v. Brooks, supra, 3 Cal.5th at p. 115; People v. Whalen (2013) 56

Cal.4th 1, 90; People v. Clark, supra, 52 Cal.4th at pp. 1007-

1008; People v. Cowan, supra, 50 Cal.4th at p. 509; People v.

Dykes (2009) 46 Cal.4th 731, 814; People v. Leonard (2007) 40

Cal.4th 1370, 1429; People v. Abilez (2007) 41 Cal.4th 472, 534;

People v. Dunkel (2005) 36 Cal.4th 861, 939; see also People v.

Lenart (2004) 32 Cal.4th 1107, 1136 [“Defendant advances no

meritorious reason for us to reconsider the rule that, apart from

other-crimes evidence, the jury need not be instructed on the

burden of proof at the penalty phase”].)

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Opinion of the Court by Cantil-Sakauye, C. J.

Finally, Evidence Code section 550 instructs: “(a) The

burden of producing evidence as to a particular fact is on the

party against whom a finding on that fact would be required in

the absence of further evidence. [¶] (b) The burden of producing

evidence as to a particular fact is initially on the party with the

burden of proof as to that fact.” Again, given the “essentially

moral and normative” character of the penalty phase (Hayes,

supra, 52 Cal.3d at p. 643), and that the jury does not return a

collective “finding” of “fact” (§ 550, subd. (a)), this provision does

not require the instruction defendant requests.

We have also held that “the trial court is not required to

explicitly tell the jury that neither party bears the burden of

proof.” (People v. Leonard, supra, 40 Cal.4th at p. 1429; see also,

e.g., People v. Parker, supra, 2 Cal.5th at p. 1232; People v.

Bunyard (2009) 45 Cal.4th 836, 861.) None of defendant’s

arguments provides any persuasive reason to reconsider that

conclusion. We note that CALJIC No. 8.88 advised the jury that

“[t]o return a judgment of death, each of you must be persuaded

that the aggravating circumstances are so substantial in

comparison with the mitigating circumstances that it warrants

death instead of life without parole.” Accordingly, we see no

merit to defendant’s contention that, absent a no-burden-of-

proof instruction, “there is the possibility that a juror would vote

for the death penalty because of a misallocation — to

[defendant] — of a nonexistent burden of proof.”

2. Previously considered challenges

We have previously considered and rejected the other

arguments defendant raises on appeal. We see no persuasive

reason to reexamine the following conclusions:

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Opinion of the Court by Cantil-Sakauye, C. J.

The class of murderers eligible for the death penalty is not

impermissibly broad. (See People v. Lopez (2018) 5 Cal.5th 339,

370 (Lopez); § 190.2.)

Directing the jury to consider “[t]he circumstances of the

crime” (§ 190.3, factor. (a)) does not result in arbitrary and

capricious punishment (People v. Ghobrial (2018) 5 Cal.5th 250,

291 (Ghobrial)). Adjectives such as “extreme” (§ 190.3, factors

(d), (g)) and “substantial” (§ 190.3, factor (g)) do not

unconstitutionally impede consideration of mitigating evidence.

(People v. Delgado (2017) 2 Cal.5th 544, 591-592.)

“The death penalty statute ‘is not invalid for failing to

require (1) written findings or unanimity as to aggravating

factors, (2) proof of all aggravating factors beyond a reasonable

doubt, (3) findings that aggravation outweighs mitigation

beyond a reasonable doubt, or (4) findings that death is the

appropriate penalty beyond a reasonable doubt.’ ” (Lopez,

supra, 5 Cal.5th at p. 370.)

CALJIC No. 8.88’s use of “the phrase ‘so substantial’ is not

impermissibly vague or ambiguous.” (Ghobrial, supra, 5 Cal.5th

at p. 292.) Directing the jury to determine whether the death

penalty is warranted, rather than appropriate, is not error.

(Ibid.) It is not necessary to instruct “that a life sentence is

mandatory if the jury finds that the factors in mitigation

outweigh the factors in aggravation.” (Ibid.) “The instruction is

not deficient for failing to specify that defendant had no burden

of proof with respect to the circumstances in mitigation.

[Citation.] Nor is it deficient for failing to inform the jury that

there was no need for unanimity as to those circumstances . . . .

[Additionally], ‘[t]he trial court’s failure to instruct the jury on

the presumption of life did not violate defendant’s constitutional

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Opinion of the Court by Cantil-Sakauye, C. J.

rights to due process, to be free from cruel and unusual

punishment, to a reliable determination of his sentence, and to

equal protections of the laws.’ ” (Id., at p. 292-293.)

CALJIC No. 8.85 identifies several factors for the jury to

consider, “if applicable,” “[i]n determining which penalty is to be

imposed.” A trial court is not required to delete inapplicable

mitigating factors, nor to identify whether factors are mitigating

or aggravating. (Lopez, supra, 5 Cal.5th at p. 371.) “We have

consistently rejected state and federal law claims that a trial

court must specifically instruct on lingering doubt because the

concept is sufficiently covered in CALJIC No. 8.85.” (People v.

Enraca, supra, 53 Cal.4th at p. 767.)

A trial court need not inform the jury to ignore “ ‘the

deterrent or nondeterrent effect of the death penalty or the

monetary cost to the state of execution or maintaining a prisoner

for life without the possibility of parole’ ” “where ‘neither party

raise[s] the issue of either the cost or the deterrent effect of the

death penalty . . . .’ ” (Zamudio, supra, 43 Cal.4th at p. 371.)

“ ‘Comparative intercase proportionality review by the

trial or appellate courts is not constitutionally required.’ ”

(Lopez, supra, 5 Cal.5th at p. 371.) “ ‘The capital sentencing

scheme does not violate equal protection by denying to capital

defendants procedural safeguards that are available to

noncapital defendants.’ [Citation.] [¶] California’s death

penalty does not violate international law or international

norms of decency.” (Ibid.)

We see no persuasive reason to conclude that these aspects

of our system, considered cumulatively, are constitutionally

infirm. (See People v. Anderson (2018) 5 Cal.5th 372.)

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Opinion of the Court by Cantil-Sakauye, C. J.

3. Duration of confinement on death row

Defendant was sentenced to death more than twenty years

ago. He contends that his prolonged time on death row

constitutes cruel and unusual punishment. To the extent

defendant argues “that delay inherent in the automatic appeal

process . . . is cruel and unusual punishment,” we disagree.

(People v. Anderson, supra, 25 Cal.4th at p. 606.) To the extent

he claims that the prison conditions imposed on capital inmates

are unconstitutional, at least after an extended period of time,

the record is insufficient to support the claim. The record is also

insufficient to support a claim that delays have made actual

executions unconstitutionally arbitrary. (See People v.

Seumanu (2015) 61 Cal.4th 1293, 1372-1375.) Defendant offers

no persuasive reason to distinguish or reconsider these

precedents.

III. DISPOSITION

We modify the judgment by striking the four-year

determinate term imposed for the elderly victim enhancements.

The trial court is directed 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.

CANTIL-SAKAUYE, C. J.

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PEOPLE v. POTTS

Opinion of the Court by Cantil-Sakauye, C. J.

We Concur:

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

SIMONS, J.*

*

Associate Justice of the Court of Appeal, First Appellate

District, Division Five, assigned by the Chief Justice pursuant

to article VI, section 6 of the California Constitution.

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PEOPLE v. POTTS

S072161

Concurring Opinion by Justice Liu

Today’s decision is our first to affirm a death judgment

since Governor Newsom signed Executive Order N-09-19

effecting a moratorium on capital punishment in California.

Neither defendant nor the Attorney General has suggested that

the Executive Order raises any new issues bearing on this

appeal. We thus decide this case on the claims and arguments

as submitted.

And yet, as the Executive Order underscores, our decision

affirming the judgment does not alter a fundamental reality: A

death sentence in California has only a remote possibility of ever

being carried out. As leaders of the judiciary have long

observed, the death penalty presents serious challenges for the

fair and efficient administration of justice. For decades, those

challenges have not been meaningfully addressed. As a result,

California’s death penalty is an expensive and dysfunctional

system that does not deliver justice or closure in a timely

manner, if at all.

This case is instructive: The death judgment was issued

in 1998. Now, 21 years later, we affirm the judgment on direct

appeal, but there is more litigation to come in the form of habeas

corpus petitions in state and federal courts. This timeline is

typical of our capital cases. (See, e.g., People v. Johnson (2018)

6 Cal.5th 541 [20 years between judgment and affirmance on

direct appeal]; People v. Powell (2018) 6 Cal.5th 136 [24 years];

PEOPLE v. POTTS

Liu, J., concurring

People v. Spencer (2018) 5 Cal.5th 642 [22 years]; People v. Wall

(2017) 3 Cal.5th 1048 [23 years]; People v. Jones (2017) 3 Cal.5th

583 [19 years]; People v. O’Malley (2016) 62 Cal.4th 944 [25

years]; People v. Cunningham (2015) 61 Cal.4th 609 [19 years];

People v. Brown (2014) 59 Cal.4th 86 [18 years].) In two recent

cases, we reversed the death judgment and remanded for a new

penalty trial; each defendant lived for over a decade under an

unconstitutional sentence. (See People v. Armstrong (2019) 6

Cal.5th 735 [15 years between judgment and reversal]; People v.

Buenrostro (2018) 6 Cal.5th 367 [20 years].) And in one recent

case, we vacated a capital conviction because of false evidence;

that defendant was released after serving 25 years on death row.

(In re Figueroa (2018) 4 Cal.5th 576.)

The Executive Order describes California’s death penalty

system as “wasteful” and “protracted.” (Governor’s Exec. Order

No. N-09-19 (Mar. 13, 2019); see ibid. [“[S]ince 1978, California

has spent $5 billion on a death penalty system that has executed

13 people.”].) In this respect, the Executive Order echoes the

assessment of numerous leaders of the justice system over many

years.

These leaders include two Chief Justices of our state,

whose collective tenure atop the judicial branch spans more

than two decades. In his memoir, former Chief Justice Ronald

George described California’s death penalty system as a

“protracted and dysfunctional process” that “places the

administration of justice and all of the courts, state and federal,

and government as a whole, in a very bad light.” (George, Chief:

The Quest for Justice in California (2013) p. 523 (George).) “My

ultimate concern,” he wrote, “is that we’re expending a

tremendous amount of effort and expense to impose death

sentences and send people to death row under circumstances

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PEOPLE v. POTTS

Liu, J., concurring

that almost totally undermine the deterrent effect of the death

penalty. A person sentenced to death knows that he or she in

effect is being given a life-without-parole sentence, because the

odds are that he or she is going to die of old age behind bars.”

(Id. at p. 541; see Cal. Dept. of Corrections and Rehabilitation,

Condemned Inmates Who Have Died Since 1978 (Mar. 8, 2019)

[120 inmates have died on death row for reasons other than

execution since 1978, the vast majority due to natural causes].)

Our current Chief Justice has similarly observed that

California’s death penalty is “ ‘not effective’ ” and in need of

“ ‘structural change.’ ” (Dolan, California Chief Justice Urges

Reevaluating Death Penalty, L.A. Times (Dec. 24, 2011) (Dolan);

see ibid. [“ ‘I don’t know if the question is whether you believe

in it anymore. I think the greater question is its effectiveness

. . . .’ ”].) According to the Chief Justice, it is worth “asking

whether the criminal justice system can ‘make better use of our

resources.’ ” (Ibid.; see Shafer, California’s Chief Justice: Hard

to Say the Death Penalty Is Working, KQED: The California

Report (Jan. 23, 2015).)

In 2014, U.S. District Judge Cormac Carney likewise

concluded in a lengthy opinion that the administration of the

death penalty in California is “dysfunctional.” (Jones v.

Chappell (C.D.Cal. 2014) 31 F.Supp.3d 1050, 1053, revd. sub

nom. Jones v. Davis (9th Cir. 2015) 806 F.3d 538 [finding

petitioner’s claim procedurally barred].) “California’s death

penalty system is so plagued by inordinate and unpredictable

delay that the death sentence is actually carried out against only

a trivial few of those sentenced to death.” (Jones v. Chappell, at

p. 1062.) Judge Carney cited Senior Judge Arthur Alarcón of

the United States Court of Appeals for the Ninth Circuit, who

exhaustively chronicled the “unconscionable delay” in the death

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PEOPLE v. POTTS

Liu, J., concurring

penalty system due to “dysfunctional procedures.” (Alarcón,

Remedies for California’s Death Row Deadlock (2007) 80 So.Cal.

L.Rev. 697, 697, 711.)

In 2008, the Legislature created a blue-ribbon commission

of law enforcement officials, prosecutors, public defenders, and

scholars — chaired by former Attorney General and Los Angeles

County District Attorney John Van de Kamp — to study the

issue. (Cal. Com. on the Fair Admin. of Justice, Final Report

(2008) (Commission Report).) The Commission concluded that

“California’s death penalty system is dysfunctional” and

emphasized two major sources of dysfunction: “The system is

plagued with [1] excessive delay in the appointments of counsel

for direct appeals and habeas corpus petitions, and [2] a severe

backlog in the review of appeals and habeas petitions before the

California Supreme Court.” (Id. at pp. 111, 114–115.)

As to the first issue, “[c]apital defendants are entitled to

counsel on direct appeal and in state habeas proceedings.

(See Douglas v. State of California (1963) 372 U.S. 353, 355 . . . ;

Gov. Code, § 68662.) [¶] On average in California, it takes three

to five years after a death judgment to appoint appellate

counsel. In April 2016, there were 49 capital defendants waiting

for attorneys to be appointed for direct appeals and 360 capital

defendants waiting for attorneys to be appointed for habeas

corpus petitions. About half of those waiting for appointment of

habeas counsel have been waiting for over 10 years.” (Briggs v.

Brown (2017) 3 Cal.5th 808, 864 (Briggs) (conc. opn. of Liu, J.),

citations omitted.) To address the difficulty of appointing

counsel, the 2008 Commission Report recommended increasing

the budget of the Office of the State Public Defender by one-

third, substantially increasing the compensation of private

attorneys who take capital cases, and dramatically expanding

4

PEOPLE v. POTTS

Liu, J., concurring

the Habeas Corpus Resource Center. (Commission Report,

supra, at pp. 132–135.) These recommendations have never

been implemented or put to the voters. (See George, supra, at

p. 524 [discussing unsuccessful efforts to obtain increased

funding for death penalty reforms].)

As to the second issue, the state Constitution assigns the

California Supreme Court exclusive jurisdiction over appeals

from judgments of death. (Cal. Const. art. VI, § 11, subd. (a).)

“[T]he fact that all appeals go to a single court . . . inevitably

result[s] in a bottleneck.” (Briggs, supra, 3 Cal.5th at p. 869

(conc. opn. of Liu, J.); see id. at p. 864 [“In April 2016, there were

337 direct appeals . . . pending in this court.”].) The 2008

Commission Report endorsed the recommendation of then Chief

Justice George to amend the state Constitution so that the

California Supreme Court would have discretion to transfer

death penalty appeals to our intermediate appellate courts.

(Commission Report at pp. 147–148.) This recommendation

also has never been implemented or put to the voters.

In 2016, the electorate approved Proposition 66, the Death

Penalty Reform and Savings Act, an initiative “intended to

facilitate the enforcement of [death] judgments and achieve cost

savings in capital cases.” (Briggs, supra, 3 Cal.5th at p. 822.)

Among other things, Proposition 66 sets forth new procedures

governing habeas corpus petitions (Pen. Code, §§ 1509, 1509.1),

new rules for granting extensions of time for briefing (id.,

§ 1239.1, subd. (a)), new rules for appointing counsel (id.,

§ 1239.1, subd. (g)), and a reorganization of the Habeas Corpus

Resource Center (Gov. Code, §§ 68661, 68661.1, 68664).

Proposition 66 also directs the Judicial Council to adopt rules

and standards “designed to expedite the processing of capital

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PEOPLE v. POTTS

Liu, J., concurring

appeals and state habeas corpus review” within 18 months of

the initiative’s effective date. (Pen. Code, § 190.6, subd. (d).)

Although the efficacy of Proposition 66 “remains to be

seen” (Briggs, supra, 3 Cal.5th at p. 860), two things are clear.

First, Proposition 66 cannot possibly achieve its objectives

unless California devotes considerable additional resources to

its judicial branch. (See Briggs, at p. 860 [“Much depends on the

funding made available by the Legislature.”].) While directing

this court to appoint counsel for indigent appellants “as soon as

possible” (Pen. Code, § 1239.1, subd. (a)) and directing trial

courts after entry of a death judgment to “offer counsel to the

prisoner” for a habeas corpus petition (id., § 1509, subd. (b)), the

initiative does not provide for additional resources to increase

the pool of attorneys who are qualified and willing to accept

these assignments. And while dispersing habeas corpus

petitions to the trial courts and Courts of Appeal and directing

those courts to proceed “expeditiously” (Pen. Code, §§ 1509,

subd. (f), 1509.1, subd. (c)), the initiative does not allocate

additional resources to those courts. (See Briggs, at p. 860

[“Proposition 66 presumes that the courts will have sufficient

resources to manage their caseloads.”].)

Second, while stating that it is this court’s “duty” to

“expedite the review” of capital cases (Pen. Code, § 1239.1,

subd. (a)), Proposition 66 does not alter this court’s exclusive

jurisdiction over direct appeals. A proposed initiative in 2014

did contain a constitutional amendment to provide our

intermediate courts of appeal with direct appellate jurisdiction

in capital cases. But the proposed initiative was abandoned, and

Proposition 66 did not include any constitutional amendment.

(See Briggs, supra, 3 Cal.5th at pp. 865–866 (conc. opn. of Liu,

J.).)

6

PEOPLE v. POTTS

Liu, J., concurring

Proposition 66 thus did not enact or put to the voters the

key reforms that leading authorities consider fundamental to a

workable death penalty system. Proposition 66 did not reduce

the bottlenecking of direct appeals in this court. It did not

provide additional resources to enable this court, the courts of

appeal, or the trial courts to expedite capital cases. And it did

not provide additional resources for appointment of qualified

counsel.

Nevertheless, Proposition 66 was presented to the voters

as a measure that “Requires Completion of Direct Appeal

and Habeas Corpus Petition Process Within Five Years”

and generally requires trial courts to resolve initial habeas

corpus petitions within one year. (Voter Information Guide,

Gen. Elec. (Nov. 8, 2016), analysis of Prop. 66 by Legis. Analyst,

p. 106 (italics and boldface in original); see Pen. Code, §§ 190.6,

subd. (d), 1509, subd. (f).) In these respects, Proposition 66

promised more than the system can deliver. As this court

unanimously held in Briggs, the time limits — “presented to the

voters by the proponents of Proposition 66 without the benefit of

hearings or research exploring their feasibility or their impact

on the rest of the courts’ work” — so plainly threaten to impair

the judicial function that they cannot be given any binding

effect. (Briggs, supra, 3 Cal.5th at pp. 860–861; see id. at

pp. 858–860; id. at p. 872 (conc. opn. of Liu, J.); id. at pp. 872–

873 (conc. & dis. opn. of Cuéllar, J.).) In enacting time limits “so

sweeping in [their] objective yet so vague on the means of

accomplishing the objective,” the voters were never asked to

“make difficult choices as to what should be sacrificed for the

sake of dramatically expediting the death penalty.” (Id. at

p. 871 (conc. opn. of Liu, J.).) Avoiding these hard choices serves

only to perpetuate the current dysfunction.

7

PEOPLE v. POTTS

Liu, J., concurring

I express no view here on the morality or constitutionality

of the death penalty. Since joining this court, I have voted to

affirm scores of death judgments, and I will continue to do so

when the law requires. It is impossible to review these cases

without feeling tremendous compassion for the victims and their

families, who have suffered unimaginable heartbreak and loss.

But the promise of justice in our death penalty system is a

promise that California has been unable to keep. We are

overdue for what our Chief Justice has called “a merit-based

discussion on [the death penalty’s] effectiveness and costs.”

(Dolan, supra.) In the meantime, the judiciary will continue to

do its duty under the law, leaving it to the voters and our elected

representatives to decide whether California should double

down on the current system or chart a new course.

LIU, J.

I Concur:

CUÉLLAR, J.

8

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Potts

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S072161

Date Filed: March 28, 2019

__________________________________________________________________________________

Court: Superior

County: Kings

Judge: Louis F. Bissig

__________________________________________________________________________________

Counsel:

Michael P. Goldstein, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief

Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Maggy Krell, Ryan

B. McCarroll and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael P. Goldstein

Law Office of Michael P. Goldstein

PMB 9122

5000 MacArthur Boulevard

Oakland, CA 94613

(510) 910-7220

Sally Espinoza

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 210-6282