People v. Caro

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

SOCORRO SUSAN CARO,

Defendant and Appellant.

S106274

Ventura County Superior Court

CR47813

June 13, 2019

Justice Cuéllar authored the opinion of the court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Kruger, and Groban concurred.

Justice Liu filed a concurring opinion.

PEOPLE v. CARO

S106274

Opinion of the Court by Cuéllar, J.

In April 2002, defendant Socorro Susan Caro was

sentenced to death for killing three of her four children. This is

her automatic appeal. We affirm the judgment below.

I. BACKGROUND

Caro and her husband, Dr. Xavier Caro (Xavier1), had four

children: Xavier (known as “Joey”), Michael, Christopher, and

G.C. On November 22, 1999, Joey, Michael, and Christopher

were shot to death in the family home in Camarillo, California.

Joey was 11, Michael was 8, Christopher was 5, and G.C. was 1.

The Ventura County District Attorney filed a felony complaint

against Caro on December 17, 1999, and an information on April

24, 2000. Caro was charged with three counts of murder (Pen.

Code, § 187, subd. (a))2 while personally using a firearm

(§ 12022.53, subd. (d)), and a multiple-murder special

circumstance (§ 190.2, subd. (a)(3)). Caro pleaded not guilty,

and not guilty by reason of insanity.

At trial, the prosecution presented the testimony of Caro’s

husband. Xavier met Caro in 1979 during her externship in his

rheumatology medical practice. They began dating in 1980 and

1

We refer to Caro’s husband by his first name to avoid

confusion.

2

All subsequent unlabeled statutory references are to the

Penal Code.

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Opinion of the Court by Cuéllar, J.

married in 1986. At the time of the shootings, Caro’s parents

lived in the couple’s nearby second home and Caro’s mother,

Juanita, would often stay over to help with the children.

Early on in their relationship, Caro began working as

Xavier’s office manager. In August 1999, Xavier fired Caro

because, according to Xavier, she had been providing more

money than expected to her parents while allowing the medical

office’s rent to go unpaid. Xavier had also been having an affair

with someone who worked in his office. Xavier and Caro had

discussed divorce at various points in their relationship, and

after firing Caro, Xavier consulted a divorce lawyer. Xavier

testified he did not actually want a divorce. Indeed, Xavier

thought their marriage had improved after Caro and he agreed

in August 1999 to go to counseling, and Caro agreed to take

Prozac.

On the night of the shootings, November 22, 1999, Xavier

returned from work between 6:00 and 6:30 p.m. Xavier had

dinner with Caro, and they drank margaritas. Joey made a

negative comment about his parents’ drinking. Xavier and Caro

argued: Xavier wanted to discipline Joey, but Caro did not.

Later, after Xavier removed the television and videogame

system from Joey’s room as punishment, Xavier and Caro

continued their argument. Caro accused Xavier of not loving

her, and not respecting her. Xavier said he was leaving. Caro

grabbed him by the shoulders, slid to the floor, and held his

ankles as he pulled away from her. Juanita came up the stairs

and yelled, “Get out, you brute.” Xavier entered the garage, got

in his 1989 maroon Mercedes, and drove away.

Juanita’s testimony about the end of the fight that evening

was similar, though she testified that Xavier kicked Caro “on

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Opinion of the Court by Cuéllar, J.

the legs” when Caro was on the ground. Juanita told police that

after Xavier left, Caro said, “Now, Mom. I have no money now.

I don’t know what I’m going to do,” and “Mom, we’re going to

starve now.” Caro also told Juanita that night, “Well, I guess

I’m crazy like he says I am” and “Mom, he says I’m crazy.”

Around 9:00 p.m., Juanita left the house to return to her home.

Caro seemed normal. Juanita returned a few minutes later

because she forgot her glasses and left again soon after.

Xavier testified that he drove to his office in Northridge,

which was 40 to 46 minutes away from the house. Caro called

Xavier multiple times on his car phone and at the office. When

Xavier answered the phone at the office, Caro was crying and

agitated and asked Xavier to come home. Caro then calmly

stated, “That’s the thing I’ve always admired about you, X. You

always know the difference between right and wrong.” Phone

records show that Xavier made an unanswered call home at 9:53

p.m. from the office. Xavier testified that he left the office

around 10:30 p.m. to return home. As he left the building,

Xavier saw a big white truck parked outside the gate, a truck

that, according to the guard records, entered the hospital at

10:25 p.m. Time-stamped videotapes from security cameras at

Xavier’s work showed a vehicle similar to Xavier’s car arriving

at 9:24 p.m. and leaving at 10:36 p.m.

When Xavier returned home, he found Caro lying on her

right side in a semifetal position on the floor of their master

bedroom. Xavier noticed a bloodstained froth around her mouth

and thought she had overdosed. Xavier called 911 from a phone

in the bedroom at 11:21 p.m. He told the operator that Caro

might have overdosed or slit her wrists. Xavier rolled Caro onto

her back and noticed a .38-caliber revolver underneath Caro,

and several expended shell casings. Xavier had previously

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Opinion of the Court by Cuéllar, J.

purchased the gun for Caro, along with a gun for himself, for

self-defense. Xavier picked up the gun and saw a single shell

casing in the five-round cylinder.

The 911 operator asked if there were any children in the

house. Xavier went to Joey’s bedroom and found him lying face

up covered in blood. Xavier checked for a pulse but found none.

He then entered Michael and Christopher’s room and saw them

lying together in the bottom bunk of the bunk bed. Their faces

were ashen and neither boy was breathing. Xavier returned to

the master bedroom and told the 911 operator that his children

had been shot. Xavier kicked Caro and yelled at her.

The 911 operator asked how many children were in the

home. Xavier went to G.C.’s crib, found G.C. unharmed, and

told the 911 operator, “We’ve got one alive here.” Xavier picked

up G.C. and went to check the other children again. Joey and

Christopher were not breathing, but Michael was taking deep

gasping breaths. Xavier attempted to perform CPR on Michael,

until a fragment of Michael’s skull came off in his hands. Xavier

ran out of the room and told the 911 operator that first

responders needed to get there fast. He called Juanita on a

second phone line at 11:26 p.m. and told her that Caro “shot the

babies.” Xavier went to the front door where he encountered two

Ventura County Sheriff’s deputies, who ordered him outside.

Xavier had G.C. in his arms and was distraught.

When officers found Caro in the master bedroom, she was

surrounded by several pools of blood, a pool of vomit, and

expended shell casings. Caro was airlifted to a hospital.

Meanwhile, back at the family’s home, Juanita had arrived. In

a conversation between Xavier and Juanita that an officer

recorded, Xavier alternated between a calm and visibly upset

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Opinion of the Court by Cuéllar, J.

demeanor. He stated: “Why did she do this?”; “She killed my

best friend. She killed my Joey”; and “She wasn’t messing

around. She shot them all in the head.”

Xavier testified that he always kept the guns in a gun safe,

and Caro did not have the combination. In 1994 or 1995,

following an argument, Xavier came home to find Caro holding

a gun at the top of the stairs in the house. Xavier grabbed Joey

and left, but came back when Caro called and said she would

leave the gun in plain view for Xavier to recover.

Caro underwent surgery on the night of the shootings for

a gunshot to the head. Caro also had bruising on her right bicep,

bruising on the inside of her thighs, and a fractured foot that

was swollen and bruised. The forepart of the foot had broken

away from the middle part of the foot and was repaired

surgically a week later. Such an injury most commonly occurs

by landing on a pointed foot so that the foot is twisted, which

can happen when falling down stairs. The injury may also occur

from a person falling on his or her foot with the person’s own

weight, or if someone else stands on the foot as the person falls.

The day after the shootings, Detective Cheryl Wade went

to Caro’s hospital room and recorded the entire two-and-a-half

to three-hour visit. Wade asked Caro if she had taken a fall, and

Caro said she was not sure and could not remember. Caro said

at one point that she “might have fallen down the stairs,” and

that she was bruised by “wrestling with a boy.” But she

reiterated on multiple occasions that she did not remember how

she had been hurt. A defense expert enhanced the audiotape

and believed Caro said, “You have to ask the boys” rather than

“wrestling with the boys.”

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Detective Wade told Caro that her boys had been hurt,

that they had died, and that Caro was a suspect. Caro began

crying and screaming. Caro asked what Xavier had said and

asked where G.C. was located and whether he was okay.

Detective Wade later brought Juanita into Caro’s room and

recorded Juanita’s conversation with Caro. Caro said that “X is

going to need somebody.” Juanita asked, “Why did you do this?”

Caro replied, “My babies. My babies. I’m sorry. I’m sorry.”

Lisa VanEssen worked at Xavier’s office. She testified

that Caro had previously said she did not think Xavier loved her

and was worried that Xavier would leave her and the boys with

nothing. Around September 1999, VanEssen asked Caro how

she was and Caro replied, “Not good. Sometimes I think it would

just be better if I wasn’t here.” When VanEssen reminded Caro

of her “four boys that need [her],” Caro replied, “What would it

matter?”

Investigators found a gun safe in Caro and Xavier’s master

bedroom closet; the safe showed pry marks that could not be

dated. The door to the gun safe could be opened without

entering a combination. There were no testable fingerprints on

the gun, but the gun was also stained, so it was unlikely the gun

had been wiped down. Caro and Xavier both had gunshot

residue on their right hands, but only swabs of Caro’s hands

showed blood. At some point in the night, Xavier rinsed his

hands without using soap.

In the master bedroom, investigators found bullet

fragments or evidence of bullet fragments on the floor, on the

bed, in the wall above the bed, and in the ceiling. A forensic

scientist opined that the wall and ceiling damage was consistent

with the gun being held to the side of Caro’s head, and fired in

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Opinion of the Court by Cuéllar, J.

an upward direction. The doctor who performed surgery on Caro

on the night of the shootings confirmed that the bullet had

traveled “upward on the side of the defendant’s head.”

Investigators found two bloody handprints on the

doorjamb between Joey’s bedroom and the bathroom that

matched Caro’s hand, and blood above one of the handprints

matched Joey’s blood. Stains on the pajama shorts and T-shirt

Caro was wearing tested positive for blood. DNA testing

matched some of the stains to Joey, some to Christopher, and

some to Caro. According to a forensic scientist, projected blood

caused some of the stains on Caro’s shorts. He opined that one

of the stains on Caro’s shorts contained Christopher’s brain

matter, and a piece of Joey’s scalp may have caused one of the

other stains. Two blood stains in the master bathroom

contained Joey’s blood, one of those stains had potential

contributions from Christopher. Material under Caro’s

fingernails tested positive for blood and contained DNA from

Caro, Joey, and Christopher.

Various blood stains were found on Xavier’s sweatpants,

shirt, and jacket. Blood stains on Xavier’s sweatpants, G.C.’s

socks, the carpet, and the stair railing matched Michael’s DNA.

Most were transfer stains, but drops of blood caused stains on

Xavier’s sandals and on the knee of his sweatpants.

Based on blood spatter patterns, Rod Englert, a crime

scene reconstructionist, opined that Joey was facedown in bed

when shot. He testified that Michael was face up when shot.

Christopher, who was sleeping next to Michael, sat up and was

shot twice, as the first shot failed to kill him immediately. The

jury saw an animation depicting Englert’s opinion on how the

shootings of Michael and Christopher occurred. Englert

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Opinion of the Court by Cuéllar, J.

testified that the inner thigh of Caro’s shorts showed a high

velocity spatter — the kind associated with gunshots. Englert

opined that the person wearing the shorts shot Christopher and

he expressed confidence “beyond a reasonable degree of

certainty.” Englert found transfer stains and no evidence of

blood from a gunshot on Xavier’s jacket. Englert concluded that

the person wearing the jacket was “not involved” in “a shooting.”

He concluded gunshot spatter did not cause the blood stains on

Xavier’s pants and sandals.

Two officers interviewed Xavier on November 23, 1999, at

5:30 a.m. at the family home. Xavier indicated Caro was taking

Prozac, she had attention deficit disorder, had been drinking

margaritas, and agreed with the officer that the alcohol and

Prozac may have had a synergistic effect. At some point, he told

officers he had prescribed the Prozac to Caro. Around 7:00 p.m.,

officers escorted Xavier into his closet and let him obtain some

items before he went to a hotel, but the officers did not catalogue

items Xavier took from the house.

The defense presented evidence that the white truck

Xavier saw outside the gate while leaving the hospital had

entered hospital grounds around 10:00 p.m., that Joey and

Michael had died at 10:00 p.m. or later, and that it only took 30

minutes to drive home at night — implying Xavier had enough

time to kill the children and shoot his wife before the 11:21 p.m.

call to 911. Defense expert Herbert MacDonnell reviewed the

forensic evidence. He examined the shorts Caro was wearing

under a microscope and did not find any high velocity impact

spatter or mist. He did find projected blood on the inner crotch

but opined that it was not the result of the shootings because of

the confined spread of the stains and the small amount of blood.

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MacDonnell found transfer stains on Xavier’s jacket, socks, and

pants.

Dr. Frederick Lovell, a medical examiner, reviewed

evidence concerning Caro’s head wound. He testified that the

gun was held tightly against Caro’s head, at a right angle to the

bone above Caro’s ear. The gun would have been pointed “[v]ery

slightly downward.” When asked how Dr. Lovell would explain

a bullet fragment found in the ceiling, he testified to previously

saying that he did not know how it got there. He testified that

it was “highly unlikely” that the gunshot wound was self-

inflicted. It would have been difficult to hold the gun against

the skull at the slightly downward angle. The bruises on Caro’s

arms were consistent with finger grab marks. A criminalist

found hair in Caro and Xavier’s master bedroom that looked like

it had been pulled out, though some, maybe all, of the hair

belonging to Caro came out by the force of the gunshot.

The defense presented a number of character witnesses.

They testified that Caro was an admirable, friendly, nice person

who loved her children. Caro’s parents testified about their

financial arrangements with Xavier and Caro. Juanita testified

that, after the shootings, Xavier told her: “Wait til you hear the

911 call, Juanita. You’re gonna blow your mind.” Later, Xavier

told Juanita, step by step, how Caro killed the boys.

Caro testified in her own defense. Caro was forthcoming

with Xavier about expenditures while she served as office

manager, and wrote checks to her parents for family trip

expenses only after discussing them with Xavier. Caro was sad,

but not angry, about being fired as office manager and losing

control of the family finances in August 1999. Caro had no hard

feelings toward her friend VanEssen, who replaced Caro as

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office manager. Caro never talked to VanEssen about killing

herself. Xavier prescribed Prozac to Caro in August 1999 and

increased her dosage in September or October 1999. Caro also

took diet pills.

Caro and Xavier were having marriage difficulties. In

June 1999, Caro stayed at a hotel for three days to get away

from the family. In August 1999, after Xavier fired Caro, he told

Caro that they should separate. Later that month, Xavier told

Caro that he was going to a divorce lawyer and discussed with

Caro division of assets. Caro did not believe Xavier kept the

appointment with the divorce lawyer, but later found notes from

the meeting. Caro wanted to make the marriage work and was

unaware of Xavier’s affair.

Xavier had purchased Caro a firearm for home protection,

as well as lessons for her to learn how to use the gun. Xavier

never told Caro the combination to the gun safe and would get

the gun out for her before he would go out of town. Caro would

pop the safe open with the prong end of a hammer to put the gun

back. Caro had not fired the gun since before Christopher was

born and denied ever brandishing it at Xavier.

Caro had only partial memories of the day on which the

shootings occurred. She remembered the fight she had with

Xavier. She remembered Xavier saying he was leaving, and she

thought he meant he was leaving for good, though Caro did not

remember Xavier actually leaving to go to the office. Caro could

not remember what she wore that night. But she would not have

been wearing the shorts she was found in because they were

maternity shorts that were too big for her. She had never seen

the T-shirt she was found wearing. Her last memory of that

night was standing in the master bedroom closet, looking at a

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Opinion of the Court by Cuéllar, J.

pitcher of margaritas. Caro had no memory of hurting her

children. When she woke up she thought they had been in a car

accident because she was injured, and Detective Wade said the

boys were hurt. When she was told her boys were dead, she did

not know how they died. Caro was sure she did not kill her

children.

On November 5, 2001, the jury found Caro guilty of three

counts of first degree murder, found the firearm enhancements

true, and found true the multiple-murder special circumstance.

On November 6, 2001, Caro withdrew her plea of not guilty by

reason of insanity.

The penalty phase began on November 27, 2001. In

aggravation, the prosecution presented evidence of prior acts

that Caro allegedly committed. On June 30, 1992, Caro and

another woman argued over a parking space. Caro ended up

grabbing the other woman by the hair with both hands and

pulling her head against the inside of the woman’s half-open

driver-side window. In August 1988, during an argument, Caro

punched Xavier in the face and fractured her knuckle. In 1996

or 1997, Caro gave Xavier a black eye by hitting him, possibly

with her hand or possibly by throwing a jewelry box. In the late

1990s, Caro threw a necklace box at Xavier and hit him in the

eye, causing a retinal tear that required laser eye surgery. Caro

threw a “C” battery at Xavier during an argument in the late

1990s that tore a hole in the screen door. During an argument

sometime between 1997 and 1999, Caro threw a three-pound

box of hot rollers at Xavier, which missed and broke the

bathroom mirror. At another time in the late 1990s, Caro threw

pizza, dishes, and silverware on the floor during an argument

before approaching Xavier with a butter knife. Xavier stated

that he did not hit Caro during these incidents. On cross-

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Opinion of the Court by Cuéllar, J.

examination, the defense elicited from Xavier occasions when he

was physically violent with Caro, including one time when he

punched Caro, causing her to fall “like a sack of potatoes.”

Xavier narrated a family video showing scenes of the three

boys who had been killed. Xavier testified about the boys and

their character traits.

In mitigation, the defense presented evidence that Caro

was a happy, obedient child. Her parents never used physical

punishment. Caro played basketball and volleyball, was a

cheerleader, and graduated from high school with a “C” average.

Xavier was the second boyfriend Caro ever had. Caro’s first

boyfriend testified that she was never violent with him or

anyone else. Extended family members described Caro as a

good, patient mother. Caro’s cousin, a pastor, and the Ventura

County Jail chaplain, testified that Caro was a person of

compassion, caring, and genuine Christian faith. Caro never

admitted in her confidential sessions with the pastor and

chaplain to killing her children. The children’s teachers

testified that Caro spent hours volunteering in her children’s

classrooms, and observed that she was a friendly, caring, and

affectionate mother.

Caro had a blood-alcohol level of 0.138 percent on the night

of the shootings. According to a defense toxicology expert, Caro

would have been staggering, would have felt sedated, and would

have been impaired in her ability to process information. Her

blood tested positive for Prozac and Xanax. Caro suffered from

depression at the time of the shootings. A forensic psychiatrist

attributed the killings and suicide attempt mostly to Caro’s

depression. He believed Caro fell in the class of depressed and

suicidal women who “primarily commit[] suicide” and kill their

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children as “a secondary act” to “prevent something bad from

happening to the children they love.” A clinical neurologist

testified that Caro suffered residual brain effects seven months

after the shootings. He diagnosed Caro with chronic depression

accompanied by mood congruent psychotic features, alcohol

dependence, alcohol abuse, and a dependent personality. The

neurologist believed Caro had amnesia resulting from her brain

trauma and the combination of drugs she took. In the

neurologist’s view, Caro was incapable of appreciating the

nature and consequences of her actions on the night of the

shootings.

On December 10, 2001, following the penalty phase, the

jury returned a verdict of death. On April 5, 2002, the trial court

denied a motion for new trial and a motion to modify sentence.

The trial court sentenced Caro to death on each count of murder,

with concurrent sentences of 25 years to life for the firearm

enhancements.

II. DISCUSSION

A. Jury Screening Issues

i. Caro’s Presence for Stipulated Excusals of Jurors

Caro contends she was entitled, as a matter of

constitutional and statutory law, to be present when counsel for

both sides discussed juror hardship in chambers and agreed by

stipulation to excuse 62 potential jurors in an e-mail to the trial

court. Jury screening in this case began on July 17, 2001. On

that day, the trial court started introducing groups of

prospective jurors to the facts of the case, soliciting applications

for hardship excusals, and directing prospective jurors to fill out

comprehensive juror questionnaires. The next day, the parties

and the trial court discussed the prospect of stipulating to the

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excusal of some jurors for cause. On July 23, 2001, the

prosecution stated it had begun “informal discussions with the

defense” about jurors “who both sides think will be challenged,

likely successfully, for cause.” Later that day, the trial court

scheduled the parties to return on July 27, 2001, to address such

stipulations. Defense counsel indicated she would exchange her

list of potential “for cause” stipulations with the prosecution. On

July 26, 2001, defense counsel sent an e-mail to the trial court

identifying 62 prospective jurors both parties agreed the court

could excuse “due to either hardship or cause.” Fourteen of the

excusals included the notation “(hardship).” The e-mail did not

indicate specific reasons for the remaining 48 prospective jurors.

On July 27, 2001, the trial court stated that the e-mail

stipulation had been filed and placed in the record. Caro was

present at the proceedings before and after the e-mail

stipulation. We assume Caro was absent from the informal

discussions and agreement on stipulations.

Caro argues she had the right to be present for these

stipulation discussions and the stipulations. The federal

Constitution provides a defendant the right to be present if “(1)

the proceeding is critical to the outcome of the case, and (2) the

defendant’s presence would contribute to the fairness of the

proceeding.” (People v. Kelly (2007) 42 Cal.4th 763, 781-782.) A

defendant’s right to be present under the California

Constitution and section 977, subdivision (b)(1) is similar.

(People v. Ervin (2000) 22 Cal.4th 48, 74 (Ervin) [proceeding

must have a “reasonable, substantial relation to [a defendant’s]

opportunity to defend the charges against him”]; People v.

Waidla (2000) 22 Cal.4th 690, 742.) The burden is on a

defendant to show that the “ ‘absence prejudiced his case or

denied him a fair and impartial trial.’ ” (Ervin, at p. 74; People

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v. Virgil (2011) 51 Cal.4th 1210, 1233-1234 (Virgil).) We reject

general claims that a defendant might have provided useful

input as “unduly speculative.” (Virgil, at p. 1234; see also People

v. Benavides (2005) 35 Cal.4th 69, 89 (Benavides).)

Caro fails to distinguish our prior decisions denying

similar claims. In Ervin, the defendant challenged his absence

from counsels’ jury “screening” discussions about stipulating to

the excusal of “prospective jurors whose questionnaires showed

they were probably subject to challenge and excusal.” (Ervin,

supra, 22 Cal.4th at p. 72.) We found that the defendant’s

presence at such discussions “would have served little purpose.”

(Id. at p. 74.) The same is true here. Caro argues “she might

have discouraged” the stipulated excusals. But even if such an

argument could establish that Caro’s presence was necessary,

such a contention does not establish prejudice: It is “unduly

speculative” because nothing in the record indicates Caro would

have actually discouraged the stipulations. (Virgil, supra, 51

Cal.4th at p. 1234.)

Caro asks us to reconsider our precedent in light of the

Washington Supreme Court’s decision in State v. Irby (2011) 170

Wash.2d 874 [246 P.3d 796]. But in Irby, neither the parties nor

their attorneys were present on the first day of jury screening,

when the trial court administered juror questionnaires. (Id.,

246 P.3d at pp. 798-799.) During that first day, the trial court

e-mailed the parties and suggested that reason existed to excuse

certain jurors — some for cause. (Ibid.) The e-mail indicated

that the trial court wanted to confirm the excusals that same

day, and the parties agreed by e-mail to dismiss some of the

suggested jurors within the hour. (Ibid.) Irby is distinguishable

from this case. The trial court here did not rush an out-of-court

for-cause jury excusal proceeding within an hour, nor did it

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otherwise fail to provide a material opportunity for Caro to even

see the prospective jurors. Irby thus gives us no occasion to

reconsider our precedent in this case. We conclude the parties’

stipulation to excuse jurors by e-mail did not violate Caro’s right

to be present or cause her prejudice.

ii. Stipulation To Excuse Prospective Jurors

Caro asserts the trial court erred by accepting the parties’

stipulated excusals, identified in defense counsel’s July 26,

2001, e-mail, without further inquiry. She argues that the trial

court should have determined whether each juror was properly

excusable for cause. She contends the trial court’s failure to

make these determinations led to the improper excusal of

qualified jurors and produced a biased jury.

We find Caro’s challenge to the stipulation procedure

forfeited and without merit. Although Caro attempts to

characterize trial counsel’s e-mail and subsequent conduct

otherwise, we find it clear in the record that counsel stipulated

to these excusals. Counsel then expressed no objection to the

court’s dismissing the listed prospective jurors based on the

parties’ agreement. These actions forfeited her challenges on

appeal. (E.g., People v. Duff (2014) 58 Cal.4th 527 (Duff); People

v. Booker (2011) 51 Cal.4th 141, 161 (Booker); see also People v.

Visciotti (1992) 2 Cal.4th 1, 38; People v. Mitcham (1992) 1

Cal.4th 1027, 1061 (Mitcham).)

Even if Caro’s argument were not subject to forfeiture, we

find it unpersuasive on the merits. As we have held time and

again, trial courts commit neither constitutional nor statutory

error when they permit counsel to prescreen juror

questionnaires and stipulate to juror dismissals. (See, e.g., Duff,

supra, 58 Cal.4th at p. 540; Benavides, supra, 35 Cal.4th at pp.

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88-89; Ervin, supra, 22 Cal.4th at p. 73.) Stipulations benefit all

parties “by screening out overzealous ‘pro-death’ as well as ‘pro-

life’ venirepersons, and by substantially expediting the jury

selection process.” (Ervin, at p. 73.) Here, as in other cases

where we have found no error, “once the preliminary screening

process had concluded, the court and counsel then conducted the

usual voir dire examination of the remaining prospective jurors

in selecting the actual jurors who would serve on defendant’s

jury.” (Ibid.) Caro fails to establish error on these facts or

persuade us to overrule our prior precedent.

Finally, to the extent Caro complains that this procedure

resulted in the improper excusal of jurors for cause, she is not

entitled to relief. (See People v. Potts (2019) 6 Cal.5th 1012,

1052-1053 (Potts); Duff, supra, 58 Cal.4th at p. 540; Booker,

supra, 51 Cal.4th at p. 161; Mitcham, supra, 1 Cal.4th at p.

1061.)

iii. Dismissal of Two Prospective Jurors for Cause

Caro argues the trial court improperly dismissed

Prospective Jurors J.W. and D.S. for cause because of their

views on the death penalty. Prospective jurors in a capital case

who oppose the death penalty are not automatically disqualified

“simply by virtue of their personal views on that punishment.”

(People v. Fuiava (2012) 53 Cal.4th 622, 656.) A trial court

should only dismiss a prospective juror for cause if the juror’s

views would “prevent or substantially impair” that juror from

carrying out their duty. (People v. Lancaster (2007) 41 Cal.4th

50, 78 (Lancaster).)

a. Standard of Review

On appeal, we review the trial court’s “for cause” juror

excusals deferentially. If the juror’s voir dire responses conflict

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Opinion of the Court by Cuéllar, J.

or are equivocal, we accept the trial court’s findings if supported

by substantial evidence. (E.g., People v. Duenas (2012) 55

Cal.4th 1, 10 (Duenas).)

Initially, Caro disputes this standard of review, asserting

the trial court deserves no deference here because it

misunderstood the applicable law. (Cf. People v. Cunningham

(2015) 61 Cal.4th 609, 664 [de novo review appropriate where

trial court applied incorrect standard in determining whether

racial discrimination motivated prosecutor’s peremptory

strike].) At times, the trial court described the inquiry as

concerning whether a juror could be “neutral” as between life

imprisonment without parole or death. We agree with Caro that

on their own, such statements could misleadingly suggest a

juror cannot serve if he tends to disfavor the death penalty.

Instead, “[t]he critical issue is whether a life-leaning prospective

juror — that is, one generally (but not invariably) favoring life

in prison instead of the death penalty as an appropriate

punishment — can set aside his or her personal views about

capital punishment and follow the law as the trial judge

instructs.” (People v. Thompson (2016) 1 Cal.5th 1043, 1065

(Thompson).)

Nonetheless, we find that in context, the trial court’s

statements about neutrality were consistent with the proper

inquiry: whether the prospective juror could “faithfully and

impartially” follow the law (Thompson, supra, 1 Cal.5th at p.

1066; accord, Lancaster, supra, 41 Cal.4th at p. 78), and

“ ‘conscientiously consider all of the sentencing alternatives,

including the death penalty where appropriate’ ” (Thompson, at

p. 1064). In discussing whether J.W. could be “neutral,” the trial

court expressed doubt that J.W. could “reasonably consider both

punishments” as instructed by the court. The court, too,

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Opinion of the Court by Cuéllar, J.

considered D.S.’s “ability to be neutral” to mean his ability to

“give serious consideration to both potential punishments.”

When the court explained the purpose of voir dire to prospective

jurors on several occasions, it conveyed –– correctly –– that it

could only accept “jurors who will not vote automatically for or

against the death penalty.” The court also emphasized that

jurors did not need “to choose between religious and ethical

beliefs” and “the law,” as long as they nonetheless “obey[ed] and

follow[ed] the law.” Moreover, we note the trial court did not

excuse all jurors who had misgivings about the death penalty.

In reviewing the sum of voir dire, we believe the trial court

properly focused the inquiry on whether a juror could “weigh[]

the aggravating and mitigating circumstances of the case and

determin[e] whether death is the appropriate penalty under the

law” (People v. Stewart (2004) 33 Cal.4th 425, 447), not just their

personal views on the death penalty. Accordingly, we now turn

to whether substantial evidence supported the excusals of J.W.

and D.S.

b. Prospective Juror J.W.

Prospective Juror J.W. stated in his questionnaire that he

“strongly support[s]” the death penalty where “clearly

warranted.” He believed the death penalty was sought “[t]oo

seldom.” J.W. indicated that the death penalty should not

automatically apply for the murder of children because it

“depends on circumstances,” though he “tend[s] to favor” the

death penalty in such cases. Nonetheless, J.W. wrote that he

“can’t help but have [a] gut reaction against [application of the

death penalty to women] — unless clearly warranted.” J.W.

wrote that his wife was “adamantly against” the death penalty.

J.W. indicated that he would be able to listen to all the evidence

and give honest consideration to both death and life, but also

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Opinion of the Court by Cuéllar, J.

wrote that “a conviction with death penalty could damage my

marriage. My wife has deep convictions.”

During voir dire, J.W. stated that his views had changed

since filling out the questionnaire. He stated that “it’s very

unlikely I would vote for the death penalty in this case, but it’s

not impossible” because of “[p]ersonal concerns and just

convictions.” When defense counsel asked him to explain, J.W.

stated, “I haven’t changed my convictions regarding the death

penalty per se. Knowing what I know about this case and just

being honest, I think it would be difficult for me to apply it.”

J.W. stated that he did not have preconceived notions about the

case, could conceive of a case where he would impose the death

penalty, and stated he could be fair and impartial to both sides.

But he indicated that his wife’s opposition to the death penalty

“might” affect him. J.W. told his wife that he might sit as a juror

on a capital case but did not give her any other details about the

case. When asked if he could set aside his wife’s beliefs, J.W.

stated, “I think so, but it’s — it’s a very difficult decision, and

when there are personal ramifications, it’s hard to guarantee.”

When pushed whether he could “forget about” his wife’s

opinions, he said, “Yes.”

The prosecutor asked J.W. whether he could go with

imposing the death penalty and then go home to his wife. J.W.

responded, “The reason I mentioned what I did is I know it

would be okay in the short-term, and the long-term effects on

our relationship would be, in my opinion, unpredictable.” J.W.

said, “Yes,” when asked whether the effects on his relationship

were something he would worry about while acting as a juror.

When asked whether that was “something that perhaps would

impair your ability to impose death in a case that called for it,”

J.W. replied, “Perhaps.” When asked if he could personally

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Opinion of the Court by Cuéllar, J.

impose the death penalty, J.W. said he easily could do so in a

case like the Oklahoma City bombing, but followed up by saying,

“I guess — I’m sorry. Also old-fashioned. The thought of

imposing the death penalty on a woman is an effort.” When

pushed on whether he could impose the death penalty on Caro

after hearing about her background, he responded,

“Theoretically, yes. I said it wasn’t impossible. I do think the

probability is low.” He stated that he could impose death in a

case involving a triple murder if he “heard enough factors that

led me to think it was the right thing to do.” He stated that he

would balance the aggravating and mitigating factors and could

“[c]ertainly” impose death based on a single overwhelming

aggravating factor, “depend[ing] on [his] judgment.”

The prosecution challenged J.W. for cause, and the trial

court excused J.W. because of his statements that he was

unlikely to impose death and his feelings about imposing death

on women. Based on J.W.’s responses, the trial court concluded

J.W.’s “mind-set” would “substantially impair[] his ability” to

“reasonably consider both punishments as a reasonable

possibility in this case.” The trial court also relied on the fact

that J.W. violated the court’s admonition not to talk about the

case by telling his wife that he might sit as a juror in a capital

case.

Substantial evidence in the record supports J.W.’s excusal

for cause. J.W. said he would worry about potential damage to

his relationship with his wife when acting as a juror and said

that it “[p]erhaps” would impair his ability to “impose death in

a case that called for it.” We disagree with Caro that

Wainwright v. Witt (1985) 469 U.S. 412 requires the juror’s own

views, not those of a third party such as his wife, to prevent or

substantially impair his performance. This is an overly rigid

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reading of Witt. The inquiry is whether “the trial judge is left

with the definite impression that a prospective juror would be

unable to faithfully and impartially apply the law.” (Id. at p.

426.) On this record, J.W.’s marital concerns justified such an

impression.

In addition, J.W. had a “gut reaction” against imposing the

death penalty against a woman, a belief he stated in his

questionnaire and repeated, unprompted, when asked whether

he personally could impose death on a person. We acknowledge

that J.W. gave statements indicating he would weigh the factors

and impose death according to his judgment, but given the trial

court’s superior position to evaluate the juror’s demeanor, tone

of voice, and as the trial court put it here, his “mind-set,” we do

not “interfere with the trial court’s resolution of” conflicting

statements. (Lancaster, supra, 41 Cal.4th at p. 80; People v.

Cain (1995) 10 Cal.4th 1, 60.) This is especially true because

J.W. contrasted his ability to impose the death penalty in a case

like the Oklahoma City bombing with this case — one involving

a woman — where he only “[t]heoretically” could impose the

death penalty.

Given the substantial evidence supporting the trial court’s

determination, we defer to its conclusion that J.W.’s statements

amounted to substantial impairment.

c. Prospective Juror D.S.

Prospective Juror D.S. stated in his questionnaire that the

death penalty “should be used only in the most extreme cases[.]

I do not believe that killing the defendant is a solution for the

first killing, so I would strongly object to the death penalty

unless overwhelmingly convinced of intent free of mental

impairments.” D.S. wrote that he supported life imprisonment

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Opinion of the Court by Cuéllar, J.

without the possibility of parole “over the death penalty.” He

indicated that he did not believe the death penalty serves any

purpose. D.S. thought the death penalty was sought “[t]oo often”

and “[r]andomly,” and that it is applied to “[t]oo many minorities

and women, few white men.” When asked whether D.S.’s

feelings about the death penalty were so strong that he would

always vote against the death penalty, he placed a question

mark in the “No” checkbox and wrote, “But almost always.” D.S.

similarly indicated he “would require sufficient evidence to

convince me that the death penal[ty] will serve a purpose beyond

retribution.” When asked if he could listen to all the evidence

and instructions and give honest consideration to both death

and life imprisonment without parole, he placed a question

mark in the “No” checkbox and wrote that he “would begin from

the position that life without parole is enough punishment and

no more is needed.” However, D.S. saw no reason why he could

not be a fair and impartial juror.

During the defense’s voir dire, D.S. stated, “If I

understand the proceeding correctly, I would have no objection

to deciding guilt or innocence. But when we got to the next

phase, I would have some very definite thoughts on it.” When

defense counsel asked whether D.S.’s thoughts would prevent

him from keeping an open mind and considering all the

evidence, D.S. replied, “I have some feelings that it seems to me

might be in — in conflict with — I don’t know with what . . . .”

After another question, he continued, “The problem is probably,

it seems to me, that the — the problem is that I believe that a

killing is a killing is a killing, and to kill a second time for

vengeance because the first killing occurred is ridiculous unless

there is proof offered that — that it would protect society, and

then of course I think society comes first. [¶] So I — it’s a

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Opinion of the Court by Cuéllar, J.

complicated thing, and I would — I don’t know exactly how to

answer your question.” In response to a later question, he

reiterated that he would not impose the death penalty unless

there was a threat to society. Nonetheless, D.S. responded

“[s]ure” when asked whether he would weigh the evidence and

could impose death if the aggravating circumstances

outweighed the mitigating circumstances. But he indicated that

he was “not sure what those two terms mean” and that he

“might not understand it.”

During the prosecution’s voir dire, when asked whether

D.S. could “ever impose death” in “this case,” D.S. responded, “I

have yet to hear anything.” D.S. also noted there “[c]ertainly”

existed a case where he would be able to impose death. D.S.

indicated that his ability to vote for death in the case depended

on the prosecution showing more than a “simple set of facts.”

The prosecutor then asked D.S. whether life in prison would

accomplish the goal of protecting society from a threat. D.S.

replied, “Aren’t you saying that — in other words, you can’t

prove that it — that it’s a threat to society, that the only thing

you can prove is an actual murder and you want me to forecast

what I would judge on what you may or may not prove? I can’t

do that.” When pushed further on whether he could impose

death on a person if life imprisonment without the possibility of

parole would protect society, D.S. said, “Even — okay. That’s a

tough one. There would be — it would be very difficult. . . . Very

difficult. I don’t know exactly what the answer is. But I

certainly will say it will be very difficult.” D.S. said he did not

“have an answer,” whether there was any justification for the

death penalty besides “protecting society.” He said he could

impose death on another human. When asked if he could impose

death on a defendant knowing the other option was life

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Opinion of the Court by Cuéllar, J.

imprisonment without parole, D.S. said, “I can’t answer that

kind of question. That’s too ethereal.” When pushed further on

this topic, D.S. responded, “I cannot say that absolutely I would

never do it” and that “[i]t’s possible. But I certainly have

expressed hesitation.”

The prosecutor challenged D.S. for cause. The trial court

excused D.S. because of his hesitation to impose the death

penalty and the limited society-protection rationale, which the

court believed D.S. “unequivocally stated” would be “the only

time” he would vote for death. Based on D.S.’s questionnaire

and voir dire answers, the court “was left with the definite

impression that the prospective juror would be unable to

faithfully and impartially apply the law.” The trial court

specifically noted D.S. “hesitated” when faced with the

possibility that life imprisonment without the possibility of

parole would satisfy D.S.’s society-protection rationale.

After weighing the relevant information, the trial court

determined that D.S.’s views substantially impaired his ability

to set aside his personal beliefs and consider both sentencing

options. Substantial evidence supports this conclusion. In his

questionnaire, D.S. gave equivocal responses about his ability to

vote for death. He believed he could be a fair and impartial

juror, but also indicated that he would “almost always” impose

life imprisonment without the possibility of parole. D.S. later

wrote that it would be “very difficult” to impose the death

penalty. These written answers certainly “are not magic

phrases,” and would not alone support the conclusion that he

was substantially impaired. (People v. Roldan (2005) 35 Cal.4th

646, 697 (Roldan); see also People v. Zaragoza (2016) 1 Cal.5th

21, 41 [where questionnaire responses do not “ ‘clearly reveal’ ”

an inability to perform the juror’s duties, the trial court must

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Opinion of the Court by Cuéllar, J.

examine the juror in court to ascertain the juror’s true state of

mind]; see also People v. Buenrostro (2018) 6 Cal.5th 367, 415.)

Here, however, substantial evidence supports the trial court’s

conclusion that D.S.’s questionnaire, combined with his

repeatedly equivocal voir dire responses on whether he could

consider both punishments, reflected that impairment. (See,

e.g., Duenas, supra, 55 Cal.4th at p. 12 [“Comments that a

prospective juror would have a ‘hard time’ or find it ‘very

difficult’ to vote for death reflect ‘a degree of equivocation’ that,

considered ‘with the juror’s . . . demeanor, can justify a trial

court’s conclusion . . . that the juror's views would “ ‘prevent or

substantially impair the performance of his duties as a

juror . . . ’ ” ’ ”]; Roldan, at p. 697.)

Caro argues that D.S.’s responses show the picture of a

thoughtful person who had not prejudged the evidence. But

D.S.’s thoughtfulness could be reasonably understood to indicate

unsureness whether his beliefs would allow him to ever impose

the death penalty in a particular case. (Duenas, supra, 55

Cal.4th at pp. 11-12 [“Many prospective jurors . . . ‘ “simply

cannot be asked enough questions to reach the point where their

bias has been made ‘unmistakably clear’ ” ’ ”].) As the trial court

noted, that equivocation became especially pronounced when

the prosecution pointed out that life imprisonment without the

possibility of parole might eliminate any potential threat to

society.3 (Cf. People v. Rountree (2013) 56 Cal.4th 823, 847

3

D.S.’s statement that he would only consider the death

penalty if the defendant is a danger “to society” is ambiguous as

to whether he meant society outside of prison or inside prison as

well — though at one point he acknowledged that he may be

talking about “danger to the public.” The jury can consider

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[upholding juror excusal where answers could “hardly have been

more equivocal”]; cf. People v. McKinzie (2012) 54 Cal.4th 1302,

1342 (McKinzie) [upholding for cause excusal of jurors who

would only impose the death penalty in narrow circumstances

not at issue in the case].) In these circumstances, we defer to

the trial court’s determination that D.S. would have been

substantially impaired in carrying out his duties in the penalty

phase.

iv. Prosecution’s Files on Prospective Jurors

Caro contends that the trial court should have required

the prosecution to turn over its investigatory materials on

prospective jurors. The trial court agreed with the prosecution

that such materials were undiscoverable work product. In

People v. Murtishaw (1981) 29 Cal.3d 733, we gave trial courts

“discretionary authority to permit defense access to jury records

and reports of investigations available to the prosecution.” (Id.

at p. 767.) In June 1990, California voters approved Proposition

115, which added section 1054.6 to the Penal Code. It provides

that “[n]either the defendant nor the prosecuting attorney is

required to disclose any materials or information which are

[privileged] work product . . . .” (§ 1054.6.) For purposes of

section 1054.6’s discovery bar, work product includes a writing

“that reflects an attorney’s impressions, conclusions, opinions,

future dangerousness in prison (People v. Medina (1995) 11

Cal.4th 694, 766-767), but the prosecution cannot present expert

testimony on that issue (People v. Avila (2006) 38 Cal.4th 491,

610). Regardless, D.S.’s responses at the very least show that

he was not sure whether dangerousness in prison would ever

allow him to impose the death penalty.

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Opinion of the Court by Cuéllar, J.

or legal research or theories . . . .” (Code Civ. Proc., former

§ 2018, subd. (c), now § 2018.030, subd. (a); see Pen. Code,

§ 1054.6; People v. Zamudio (2008) 43 Cal.4th 327, 355 & fn. 14.)

We need not decide whether the discovery request here solely

sought work product or encompassed non-work-product

material because any potential error was harmless. For any

error of this type, it is “ ‘entirely speculative whether denial of

access caused any significant harm to the defense.’ ”4 (People v.

Pride (1992) 3 Cal.4th 195, 227; accord, Murtishaw, at p. 767.)

We deny Caro’s claim on that basis.

B. Issues at Trial

i. Clothing Seized from Emergency Room

Caro argues the trial court erred by allowing the

introduction of the clothing that Caro was found wearing the

night of the shootings. In the alternative, Caro argues her trial

counsel was constitutionally ineffective for not moving to

suppress this evidence. On the night of the shootings,

emergency medical personnel brought Caro from her home to

the hospital emergency room on two different

4

Nor has Caro persuaded us she is entitled to the limited

remand procedure used to remedy error under Pitchess v.

Superior Court (1974) 11 Cal.3d 531. In that context, a limited

remand for the defendant to establish prejudice is appropriate

because the reviewing court has already determined the

defendant demonstrated “good cause” for the discovery

requested below — including that the discovery is material to

the litigation. (See People v. Gaines (2009) 46 Cal.4th 172, 179-

181; City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74,

85 [“The information sought must . . . be ‘requested with

adequate specificity to preclude the possibility that defendant is

engaging in a “fishing expedition.” ’ ”].) Caro made no such

showing here.

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Opinion of the Court by Cuéllar, J.

“backboards” — flat, firm boards used to safely transport

injured patients. Deputy Jeffrey Miller arrived at the hospital

after Caro. Miller found Caro’s shirt, pajama shorts, and

underwear — which looked as if medical personnel had cut them

off of Caro’s body — spread out on one of these backboards.

Miller seized this clothing and gave it to a field evidence

technician.

Caro argues that the trial court should have excluded the

clothing-related evidence because Miller did not have a warrant.

Caro concedes, however, that defense counsel never brought a

suppression motion related to this evidence or objected to its

introduction on these grounds. This claim is thus forfeited. (See

People v. Miranda (1987) 44 Cal.3d 57, 80.)

In the alternative, Caro argues that her counsel at trial

was ineffective for failing to bring a suppression motion. To

establish ineffective assistance of counsel, Caro must show that

her counsel’s performance was deficient and that she suffered

prejudice from the deficient performance. (Strickland v.

Washington (1984) 466 U.S. 668, 687-692.) On direct appeal, if

the record “ ‘sheds no light on why counsel acted or failed to act

in the manner challenged,’ ” we must reject the claim “ ‘unless

counsel was asked for an explanation and failed to provide one,

or unless there simply could be no satisfactory explanation.’ ”

(People v. Wilson (1992) 3 Cal.4th 926, 936.) Where a defendant

claims ineffective assistance based on counsel’s failure to

litigate a Fourth Amendment claim, Strickland ’s performance

prong requires her to show that it was objectively

unreasonable — “that is, contrary to prevailing professional

norms” — to forgo the motion. (Kimmelman v. Morrison (1986)

477 U.S. 365, 385 (Kimmelman); see also People v. Lopez (2008)

42 Cal.4th 960, 966 (Lopez) [the defendant bears the burden of

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Opinion of the Court by Cuéllar, J.

showing counsel’s performance “ ‘ “fell below an objective

standard of reasonableness [¶] . . . under prevailing professional

norms” ’ ”].) Examining the Fourth Amendment claim’s merit

has a role to play here. For example, “[c]ounsel is not ineffective

for failing to make frivolous or futile motions.” (People v.

Thompson (2010) 49 Cal.4th 79, 122.) The prejudice prong of

Strickland then requires the defendant to “prove that [the]

Fourth Amendment claim is meritorious and that there is a

reasonable probability that the verdict would have been

different absent the excludable evidence.” (Kimmelman, at p.

375; accord, People v. Coddington (2000) 23 Cal.4th 529, 652

(Coddington); People v. Wharton (1991) 53 Cal.3d 522, 576

(Wharton).)

Caro fails to establish that a motion to suppress the

clothing would have been meritorious. Under the plain view

doctrine, an officer may seize an item without a warrant if (1)

the officer was lawfully in a place where the object could be

viewed; (2) the officer had a lawful right of access to the seized

item; and (3) the item’s evidentiary value was immediately

apparent. (See Horton v. California (1990) 496 U.S. 128, 136-

137; Payton v. New York (1980) 445 U.S. 573, 586-587;

Arizona v. Hicks (1987) 480 U.S. 321, 327; People v. Bradford

(1997) 15 Cal.4th 1229, 1295; see also U.S. v. Cellitti (7th Cir.

2004) 387 F.3d 618, 623.) The doctrine does not amount to a full

exception to the warrant requirement, but merely allows a

warrantless seizure where an officer lawfully views, and can

lawfully access, contraband or incriminating evidence.

(Bradford, at p. 1295; Horton, at p. 137, fn. 7 [holding that even

if incriminating evidence is in plain view in a suspect’s home, an

officer cannot enter the home and seize the contraband without

a warrant, absent exigent circumstances].)

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Opinion of the Court by Cuéllar, J.

In this situation, the incriminating nature of the

clothing –– covered in bloodstains after the shooting –– was

immediately apparent. Caro raises the possibility that because

she had shot herself in the head, the stains could have been her

own blood. Yet that possibility does not eliminate the strong

likelihood that some of the stains would link her or some as-yet-

unidentified assailant to her or her sons’ injuries.

Given the clothes’ evidentiary value, trial counsel would

need to establish Officer Miller did not have lawful access to

them in order to block their admission from trial. But the record

is inconclusive on this point, as it fails to reveal where Miller

was when he saw and seized the clothing from the board on

which emergency personnel transported Caro. That ambiguity

makes it quite difficult to assess the legality of Miller’s actions

viewing and seizing Caro’s clothes. On this record, then, we

cannot say the plain view doctrine was inapplicable, and Caro

has not carried her burden to “establish that [her] Fourth

Amendment claim ha[d] merit.” (Coddington, supra, 23 Cal.4th

at p. 652.)

ii. Fifth Amendment Challenge to Caro’s Hospital

Room Statements

Caro argues that two statements she made to Detective

Wade at the hospital should have been excluded from trial

because (1) she did not receive the warnings required under

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and (2) the

statements were involuntary. The day after the shootings, Caro

was moved to an intensive care unit (ICU) room after her

surgery. In the afternoon, Wade arrived in plain clothes, and

hospital personnel removed Caro’s breathing tube. Wade began

sitting with Caro and stayed with her, or near her room, for two

and a half to three hours before providing Caro Miranda

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Opinion of the Court by Cuéllar, J.

warnings. Detective Rivera was also present in plain clothes.

Wade recorded her conversation with Caro by placing a tape

recorder on top of one of the machines near Caro’s bed, or at

times, on the bed itself. Wade spent much of the interview

getting Caro ice chips, adjusting pillows, helping Caro sit up or

change positions, and relating information to nurses, such as the

fact that Caro wanted medication or that she was in pain.

Intermittently with this care, however, Wade asked Caro what

happened. Caro was in pain during much of the discussion with

Wade, but the level of pain seemed to decrease when the nurse

gave Caro a codeine injection. Before the nurse gave the

injection, she asked if Wade was “getting much” from Caro and

checked in with Wade to make sure she would not “mess up

[Wade’s] thing” by giving the injection. Wade responded that

the nurse should do “what [the nurse] would normally do.”

The two statements in dispute occurred at different times.

At some point in the first hour and a half of questioning, before

the codeine injection, Caro stated that she “might have fallen

down the stairs,” but also indicated that she did not remember.

About 45 minutes after the codeine injection, Detective Wade

heard Caro say she was bruised by “wrestling with a boy.”

After the second statement, Detective Wade continued to

ask Caro questions about what happened, but Caro indicated

that she did not remember, and asked whether her boys and

Xavier were there. Wade told Caro that her boys were hurt and

asked if she knew how they were hurt. Caro asked if it was

“something serious.” Wade told Caro that she was investigating

the death of Caro’s boys, and that Caro was suspected of hurting

them. Wade then gave Caro Miranda warnings, and Caro

invoked her right to counsel.

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In addition to Detectives Rivera and Wade, a psychologist

hired by the district attorney, Susan Ashley, was present for

much of the pre-Miranda-warning interview. After Caro said

she might have fallen down the stairs, she noticed Dr. Ashley in

the room, and asked who she was. Wade identified her as

“Doctor Ashley” to Caro and may have mentioned she was a

psychologist from the district attorney’s office. Caro also noticed

a man from the district attorney’s office standing outside her

door at one point, and Wade told her who he was. Caro asked

why he was there and Wade told her he “was here because you

got hurt. And we’re trying to figure out what happened.” After

the first statement, but before the second, Caro asked a nurse

why Wade was there, and the nurse responded, “I don’t

know. . . . I’m not involved with that.”

The evidence showed that Detective Wade failed to give

Caro Miranda warnings before the two statements at issue.

Nonetheless, it also showed that she did not threaten or make

promises to Caro. The trial court also found that Wade did not

interfere with Caro’s medical treatment and did not do

“anything to overcome the will of” Caro. The trial court ruled

that Caro was not in custody for purposes of Miranda during the

Wade interview, and that Wade did not coerce an involuntary

statement from Caro. Caro now challenges both rulings.

Before they begin custodial interrogation of a suspect, the

police have an obligation to deliver Miranda warnings. This

familiar admonition warns the suspect of the right to remain

silent, that any statement may be used as evidence against him

or her, and that the suspect has a right to the presence of a

retained or appointed attorney. (People v. Leonard (2007) 40

Cal.4th 1370, 1399-1400 (Leonard).) The warning is meant to

protect the suspect’s privilege against self-incrimination, which

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is jeopardized by the inherently coercive nature of police

custodial questioning. (Miranda, supra, 384 U.S. at pp. 478-

479.)

The purpose of Miranda guides the meaning of the word

“custody,” which refers to circumstances “that are thought

generally to present a serious danger of coercion.” (Howes v.

Fields (2012) 565 U.S. 499, 508-509.) Such a danger of coercion

is usually present where there has been a “ ‘ “formal arrest or

restraint on freedom of movement” of the degree associated with

a formal arrest.’ ” (People v. Stansbury (1995) 9 Cal.4th 824,

830, quoting California v. Beheler (1983) 463 U.S. 1121, 1125;

see also People v. Moore (2011) 51 Cal.4th 386, 394-395.) The

key question is whether, under all of the objective

circumstances, a reasonable person in the suspect’s position

would have felt free to terminate the interrogation. (Leonard,

supra, 40 Cal.4th at p. 1400; Howes, at p. 509; Thompson v.

Keohane (1995) 516 U.S. 99, 112.) But even if a person’s freedom

of movement has been curtailed, an “additional question” arises:

“whether the relevant environment presents the same

inherently coercive pressures as the type of station house

questioning at issue in Miranda.” (Howes, at p. 509; see also id.

at p. 510 [discussing Berkemer v. McCarty (1984) 468 U.S. 420].)

All objective circumstances of the interrogation are relevant to

this inquiry, including the site of the interrogation, the length

and form of questioning, and whether the officers have conveyed

to the subject that their investigation has focused on him or her.

(See Stansbury, at pp. 831-832.) This initial custody

determination does not depend on “the subjective views

harbored by either the interrogating officers or the person being

questioned.” (Stansbury v. California (1994) 511 U.S. 318, 323.)

We have not explicitly discussed the custody analysis in a

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medical setting, but a handful of courts have addressed the

issue. (See People v. Mosley (1999) 73 Cal.App.4th 1081, 1091;

U.S. v. Martin (9th Cir. 1985) 781 F.2d 671, 672-673; U.S. v.

Infante (1st Cir. 2012) 701 F.3d 386, 397-398; U.S. v. Robertson

(10th Cir. 1994) 19 F.3d 1318, 1320-1321; U.S. v. Jamison (4th

Cir. 2007) 509 F.3d 623, 629-633; U.S. v. New (8th Cir. 2007)

491 F.3d 369, 374; Wilson v. Coon (8th Cir. 1987) 808 F.2d 688,

689-690; Reinert v. Larkins (3d Cir. 2004) 379 F.3d 76, 85-87.)

Statements taken in violation of Miranda are

inadmissible in the government’s case-in-chief. The prosecution

may still use such statements for impeachment purposes. (E.g.,

People v. Pokovich (2006) 39 Cal.4th 1240, 1247; People v. Peevy

(1998) 17 Cal.4th 1184, 1193.) What the government may not

use against a defendant for any purpose are any of her

involuntary statements. We consider statements

involuntary — and thus subject to exclusion under the Fifth and

Fourteenth Amendments of the federal Constitution –– if they

are the product of “coercive police conduct.” (People v. Williams

(2010) 49 Cal.4th 405, 437.) We evaluate this question by

looking to the totality of the circumstances to determine

“whether the defendant’s ‘ “will has been overborne and his

capacity for self-determination critically impaired” ’ by

coercion.” (Id. at p. 436.) The presence of police coercion is a

necessary, but not always sufficient, element. (Ibid.) We also

consider other factors, such as the location of the interrogation,

the interrogation’s continuity, as well as the defendant’s

maturity, education, physical condition, and mental health.

(Ibid.)

When Detective Wade delayed giving Miranda warnings

to Caro, she tread on perilous ground. True, Caro was not

directly restrained by officers or informed she was under arrest.

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And she eventually received Miranda warnings — though only

after two and a half hours of Wade’s off-and-on questioning.

Hospital staff moved freely in and out of her hospital room.

Wade’s urging one nurse to do “what [the nurse] would normally

do” and the somewhat intermittent nature of Wade’s presence

and questioning as hospital personnel tended to Caro or Caro

rested may well have indicated to a reasonable person that she

could be left to herself, if desired. And yet certain exchanges

between Wade and the staff, and between Wade and Caro

herself, may have suggested to a reasonable person that the

police exercised some authority over whether she could

terminate the interview. Specifically, we note the constant

presence of one or more law enforcement officers and the

suggestion of two staff members that they would not, or could

not, interfere with the interview. Caro was also isolated from

friends and family.

Such circumstances heighten the risk of coercion. In

Mincey v. Arizona (1978) 437 U.S. 385, the high court concluded

a hospitalized suspect did not give voluntary statements after

an officer engaged in “virtually continuous questioning” of a

suspect who had requested to be left alone. (Id. at p. 401.)

Because the officer persisted despite Mincey’s being “weakened

by pain and shock” and “barely conscious,” and the “clear”

indications “Mincey wanted not to answer” his questions (id. at

p. 401), the court concluded Mincey’s “will was simply

overborne” (id. at pp. 401-402).

The record of the trial court’s decision indicates it made a

contrary finding here — that Wade did not do “anything to

overcome” Caro’s will or interfere with her medical treatment.

Unlike the defendant in Mincey, Caro gave no clear indications

prior to the challenged statements that she wished to end her

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interaction with Wade. But unquestionably, Caro’s situation

here constrained her physical mobility: she was confined to her

ICU bed with a broken foot and a drain in her head from brain

surgery performed just hours before. She was fatigued and in

significant pain. While a defendant’s “compromised physical

and psychological condition” alone will not render her

statements involuntary (People v. Panah (2005) 35 Cal.4th 395,

471), that condition is relevant to the inquiry and presents an

opportunity for abuse.

Whether the extent of Detective Wade’s engagement was

sufficient to violate Caro’s constitutional rights is not a question

we need to resolve. Even assuming the interview violated

Miranda or the statements were involuntary, their admission

was harmless beyond a reasonable doubt. The prosecution

introduced the two statements to disprove the theory that

Xavier inflicted the injuries. The prosecution also used these

statements to argue that Caro remembered killing her children

and was lying about her amnesia. But in retrospect, taking into

account the full record of the proceedings, these statements did

not have high value in the overall evidentiary calculus.

For completeness, the jury heard testimony on Caro’s

other statements to Detective Wade before and after indicating

she could not remember what happened. This included Wade’s

testimony that earlier in their conversation, she asked Caro

whether she had “take[n] a fall or something,” and Caro asked

Wade what had happened. In addition, both statements had

plausible alternative explanations consistent with the defense’s

theory and Caro’s purported lack of memory. Caro’s statement

that she “might” have fallen down the stairs did not foreclose

the possibility that Xavier caused her falling down the stairs —

the prosecution’s theory that she fell down the stairs while

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Opinion of the Court by Cuéllar, J.

“running through that house quite angry” was entirely

speculative. And the defense presented testimony that, in an

enhanced version of the tape, Caro was saying, “You have to ask

the boys” rather than “wrestling with a boy.” There was also

evidence in the record that Xavier had kicked Caro “on the legs”

and in the “buttocks,” presenting a potential alternative

explanation for Caro’s bruises. Given the potential to reconcile

the challenged statements with Caro’s stating she could not

remember what happened, we think it unlikely the jury put

much weight on them as proving Caro remembered the killings.

Had these statements been omitted, moreover, it would

have been unlikely to affect consideration of the case’s

compelling forensic evidence. Expert testimony about the

bloody clothes Caro was found wearing provided a wealth of

incriminating information. Five blood stains on her shorts

matched Christopher’s DNA profile — Joey and Caro potentially

contributed minor amounts of DNA to one of these stains each.

One of these stains was yellow and appeared to be brain matter.

Three other stains on Caro’s shorts matched Joey’s DNA. Some

of the stains on the shorts appeared to come from projected

blood. A prosecution witness testified that gunshot mist likely

produced one of the stains that matched Christopher’s blood.

While a defense expert testified that it was a stain more

consistent with a beating, the defense expert acknowledged that

the only evidence of violence against the children in the case

involved gunshots. The shirt Caro was found wearing had 29

blood stains — two matched Joey’s DNA, with Christopher and

Michael as possible minor contributors, a control sample taken

for one stain matched Christopher, and 19 stains matched

Caro’s DNA profile.

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Evidence gleaned from the house completed the

evidentiary picture. Two bloody handprints matching Caro

were on the door jamb in the bathroom between Joey’s room and

Michael and Christopher’s room. Blood on the doorframe next

to the hand prints tested positive for Joey’s blood, with minor

contributions from Christopher. Blood on the sink in the

bathroom matched Joey’s DNA, and one sample also had a

potential minor contribution from Christopher.

Further circumstantial support came from expert

testimony regarding Caro’s own gunshot wound. Prosecution

experts opined that the bullet damage found in the ceiling and

in the wall above the bed was consistent with the gun being fired

at an upward angle. The surgeon who operated on Caro testified

that the bullet travelled upwards, and all of the bullet fragments

were above the bullet hole in Caro’s head.

In contrast, the evidentiary support for the defense’s

alternative theory, which identified Xavier as the shooter, was

comparatively weak. It ultimately did not sway the jury to

doubt Caro’s guilt, and we are convinced excluding the

challenged statements would not have made a difference. A

defense expert opined that Caro did not shoot herself because

the gun was held at an awkward, downward angle. But he did

not have “the slightest idea” how a bullet fragment hit the

ceiling. Prosecution and defense experts agreed that the blood

stains on Xavier’s sweatpants, shirt, and jacket were almost

certainly transfer stains. There was one projected bloodstain on

Xavier’s sweatpants, matching Michael’s DNA. But as one

expert testified, it was unlikely any of the stains came from the

type of high-velocity spatter typically associated with shooting

someone at close range. This would not have supported a

conclusion that Xavier shot Michael. Instead, it was consistent

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Opinion of the Court by Cuéllar, J.

with Xavier’s testimony that he had tried to give CPR to Michael

and was carrying G.C., whose socks had become soaked in

Michael’s blood. Moreover, tests found gunshot residue, but no

blood, on swabs of Xavier’s hands — though Xavier testified he

rinsed them at some point in the night. On the other hand, a

swab of Caro’s right palm did show the presence of blood.

Finally, the evidence showed that Xavier did not have

much time between when he arrived home and called 911. A

vehicle similar to Xavier’s Mercedes entered the parking area at

9:24 p.m. and left at 10:36 p.m. The surveillance tape captured

no other Mercedes leaving during the relevant

timeframe — making defense counsel’s assertion that Xavier

left earlier implausible. The evidence largely showed that it

takes 40 to 46 minutes to drive from Xavier’s office to the family

home — only one witness, Caro herself, testified to a shorter

time (30 minutes). And the 911 call was at 11:21 p.m. Based on

the prosecution’s evidence, Xavier would have only 5 minutes

maximum between arriving home and calling 911. If the jury

accepted Caro’s self-serving estimated driving time, he still

would have no more than 15 minutes. A reasonable jury would

not have believed Xavier shot his wife and children, hid all the

blood evidence that might link him to the crime, and staged

blood evidence corroborating his testimony within that window.

Even if the jury accepted the possibility of this unlikely sequence

of events, it stood at odds with the forensic evidence.

In considering the picture that emerges from this

evidence, we are persuaded beyond a reasonable doubt that the

jury would not have reached a different result in this case had

the court excluded the challenged statements.

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iii. Ineffective Assistance of Counsel for Failure To

File a Fourth Amendment Pretrial Suppression

Motion

Caro argues her counsel was constitutionally ineffective

for failing to bring a pretrial suppression motion based on the

Fourth Amendment to the federal Constitution. Caro asserts

that such a motion could have challenged the introduction of

(1) Caro’s bloody clothing; (2) the scrapings of Caro’s hands and

feet after bags were placed over her appendages to preserve

evidence; (3) photographs of Caro during surgery; (4) bullet

fragments removed from Caro’s head; (5) statements Caro made

in the surgery recovery room; and (6) statements Caro made in

her ICU room.

While she was unconscious, Caro was transported from

the crime scene to the hospital. There, Caro’s clothes were cut

off and left on the backboard used to transport her, where an

officer recovered them. A surgeon removed bullet fragments

from Caro’s head. Detective Rivera and forensic criminologist

Debra Schambra were in scrubs and present during the surgery.

Pictures taken by Rivera, Schambra, and other officers were

admitted into evidence. After the surgery, a nurse gave the

bullet fragments to Rivera, who later gave them to Schambra.

Before the surgery, hospital staff placed bags over Caro’s hands

and feet to preserve evidence, and in the recovery room,

Schambra took fingernail scrapings and performed a gunshot

residue test. Rivera testified to statements Caro made in the

recovery room and her ICU room. Later, Detective Wade asked

Caro a number of questions in her hospital room, and Dr.

Ashley, a psychologist, listened to a portion of that questioning.

We have already addressed Caro’s ineffective assistance of

counsel claim arising from the failure to move to suppress Caro’s

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bloody clothing. In this part, however, we address a different

set of issues implicated by Caro’s arguments. The Fourth

Amendment limits searches and seizures where a defendant has

a reasonable expectation of privacy in the place searched or item

seized. This encompasses the defendant’s property and

possessory interests (see People v. Valdez (2004) 32 Cal.4th 73,

122), but also any privacy expectation “ ‘that society is prepared

to recognize as reasonable’ ” (Carpenter v. United States (2018)

___ U.S. ___ [138 S.Ct. 2206, 2213]). So we must examine what

reasonable expectation of privacy Caro had in her physical

person and in other areas of the hospital, such as the operating

room, the recovery room, and her ICU room.

Caro’s primary contention is that Detective Wade violated

the Fourth Amendment by entering her ICU room and then

making observations and hearing Caro’s statements, both before

and after the administration of Miranda warnings. (See People

v. Cook (1985) 41 Cal.3d 373, 381 [“the police may not intrude

into a hospital room” to see or hear the activities within “simply

because hospital personnel routinely go in and out”].) Three

statements were admitted from Wade’s conversation with Caro:

Caro indicated that she may have broken her foot by falling

down the stairs; that she might have gotten hurt by “wrestling

with a boy”; and after receiving Miranda warnings and invoking

her right to a lawyer, Caro spontaneously asked about where

G.C. was located (and not about the other children).

As we earlier concluded, the first two statements were

harmless beyond a reasonable doubt. Any claim of ineffective

assistance of counsel based on these statements necessarily fails

for the same reason. (See, e.g., Wharton, supra, 53 Cal.3d at p.

576 [defendant must show prejudice to prevail on a claim of

ineffective assistance of counsel].) We also conclude that

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excluding the third statement, concerning G.C., would not

produce a reasonable probability of a different result in light of

the compelling forensic evidence and implausibility of the

defense’s alternative theory. Counsel’s failure to have these

statements excluded on Fourth Amendment grounds or

otherwise did not prejudice Caro.

Caro also asserts pictures taken of her in the operating

room and in the recovery room violated her Fourth Amendment

rights. At least one state has held that a defendant has no

reasonable expectation of privacy in an operating room because

of “a patient’s traditional surrender to his or her physician of the

right to determine who may and may not be present during

medical procedures.” (State v. Thompson (Ct.App. 1998) 222

Wis.2d 179, 192 [585 N.W.2d 905].) But even though Caro may

have had no dominion over the operating and recovery rooms,

concerns about incursions on the privacy we maintain in our

bodies are heightened during medical procedures. (See, e.g.,

Sanders v. American Broadcasting Companies, Inc. (1999) 20

Cal.4th 907, 917 [citing cases where pictures of a patient in a

hospital constituted an actionable intrusion upon seclusion

under tort law]. But see Hernandez v. Hillsides, Inc. (2009) 47

Cal.4th 272, 294, fn. 9 [indicating that state tort law privacy

rights are not necessarily coextensive with the 4th Amend.].)

Nonetheless, we need not consider whether or in what

circumstances the government’s taking of surgical images may

invade a defendant’s privacy. Caro fails to adequately explain

why the exclusion of these pictures would have, with a

reasonable probability, altered the outcome of the case. Caro’s

bloodstained clothes, with the high-velocity spatter and the

potential piece of scalp, also established Caro’s presence around

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her children when they were shot, and, in the testimony of the

prosecution expert, that she pulled the trigger.

Caro similarly offers only cursory, unpersuasive

arguments regarding any prejudice from the fingernail scraping

and gunshot residue evidence police collected. To the extent

those fingernail scrapings indeed showed the blood of Caro’s

children, there was other evidence that Caro came in contact

with her children’s blood.

Caro also points to Detective Rivera’s presence in the

recovery room and the ICU room. Rivera testified to Caro’s

demeanor when he asked her questions, and when her surgeon

asked her questions. But Caro fails to prove prejudice: her

nurse and surgeon testified to Caro’s demeanor in these

timeframes, so there is not a reasonable probability that the

exclusion of Rivera’s testimony on these issues would have

affected the outcome of the case.

Finally, Caro argues that the recovery of bullet fragments

from her head during surgery was an illegal seizure. The Fourth

Amendment limits only governmental activity. (See, e.g.,

United States v. Jacobsen (1984) 466 U.S. 109, 113.) Thus, the

removal of a bullet by medical personnel acting independently

of law enforcement directives does not implicate the rights

therein. A hospital nurse handed the bullets from Caro’s head

over to the police, and Caro fails to address whether the nurse

was acting at the request of officers when doing so. (See

Massachusetts v. Storella (1978) 6 Mass.App.Ct. 310, 315-316

[345 N.E.2d 348] [upholding finding that nurse was not a

government agent in similar circumstances].) Nor does she

explain why she retained a property interest or reasonable

expectation of privacy in the fragments once removed. (See, e.g.,

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Commonwealth v. Johnson (Pa. 1999) 727 A.2d 1089, 1098

[holding the defendant had no reasonable expectation of privacy

with respect to a bullet removed from him during surgery].) And

even if officers improperly seized the fragments, Caro fails to

meaningfully address any resulting prejudice.

Caro argues that the evidence addressed here was

cumulatively prejudicial. But for some she fails to show that the

evidence should have been excluded, and she does not persuade

us other allegedly excludable evidence was cumulatively

prejudicial. Caro’s Strickland claim must fail. (See

Kimmelman, supra, 477 U.S. at p. 375.)

iv. Denial of Request for Continuance

Caro argues the trial court abused its discretion and

violated due process by failing to continue a hearing on a motion

to strike evidence that Caro asked about G.C. At trial, on

September 17, 2001, Detective Wade testified that Caro asked

about where G.C. was located, but not the three children who

had been killed. On the next day of trial, September 18, 2001,

Caro moved to strike Wade’s testimony about G.C., asserting the

statement violated Miranda and her Fourth Amendment right

to privacy. Caro’s Miranda argument asserted that Wade

elicited the statement about G.C. by interrogation after Caro

invoked her right to counsel. The Fourth Amendment argument

asserted that Wade’s presence in the hospital room violated

Caro’s reasonable expectation of privacy.

The hearing on the motion spanned over three days. The

hearing began on the afternoon of the next day, September 19,

2001. The prosecution called Detective Wade to testify. The

defense’s cross-examination of Wade went long, so the trial court

continued the hearing to the following morning. The following

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day, September 20, 2001, the defense cross-examined Wade for

a short amount of time in the morning and in the afternoon.

During the afternoon cross-examination, the trial court asked

defense counsel for a time estimate on any further evidence in

the hearing. Defense counsel indicated that she needed 20

additional minutes to cross-examine Wade, and 10 to 15 minutes

to present the testimony of Nina Priebe, a social worker who

worked at the hospital. Because of Ms. Priebe’s limited

availability, defense counsel requested — and the trial court

allowed — the hearing to continue to the following morning

rather than later that day. The trial court did so with some

trepidation, given the potential unavailability of prosecution

witnesses the following week.

The next morning, on September 21, 2001, Priebe testified

that she was a social worker at the hospital, and worked in the

ICU on the day Detective Wade questioned Caro. Priebe heard

screaming from Caro’s room (likely right after Wade told Caro

that her children had died), but did not go in because a nurse,

Debbie Anderson, had told her that “police had asked us not to

comfort” Caro. The prosecution objected on hearsay grounds,

and the trial court sustained the objection.

After Priebe’s testimony, defense counsel stated that she

wanted to call Nurse Anderson as a witness, but indicated that

she had been unable to contact her, and wanted to consult with

an investigator. Anderson had testified in the case previously

as a prosecution witness. But defense counsel stated she had

been unable to contact Anderson because the only contact

information defense counsel had was Anderson’s work phone

number, and Anderson had not been to work the prior two days.

The court denied the request because “[a]ll parties knew today

was the day we were going to have the hearing”; defense counsel

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“had ample opportunity to have [her] witnesses present[;] . . .

[a]nd the Court ha[d] been I believe extremely generous in

allowing time for this hearing and for other hearings that have

been occurring at the — the last minute.” Caro now argues the

denial of a continuance was an abuse of the trial court’s

discretion and a violation of due process.

The decision to continue a hearing so a party can secure

the presence of a witness is one within the trial court’s

discretion. (People v. Roybal (1998) 19 Cal.4th 481, 504.) A trial

court does not abuse its discretion in denying a continuance

unless the defendant establishes good cause for a continuance.

(Ibid.) Good cause requires a defendant to show that he or she

exercised due diligence in pursuing the witness’s presence, the

witness’s expected testimony was material and not cumulative,

the testimony could be obtained within a reasonable time, and

the facts the witness would provide could not otherwise be

proven. (Ibid.)

We conclude the trial court did not abuse its discretion. As

the trial court observed, counsel for both parties knew that the

final part of the hearing would occur on September 21, 2001, a

schedule somewhat determined by prosecution witness

availability. Defense counsel did not raise the possibility of

calling Anderson until the last minute. And Priebe’s testimony

that Anderson said that police told Anderson hospital staff

should not comfort Caro was clearly hearsay if offered for the

truth of the fact that police made that statement to Anderson.

So counsel could have predicted the need for Anderson’s

testimony. Defense counsel asserted that she had no way of

contacting Anderson because she had not been at work for two

days, but defense counsel failed to explain what steps she had

taken to contact Anderson, when those efforts were made, and

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whether Anderson could be found in a reasonable time. Defense

counsel also failed to argue that Anderson was the sole witness

who could establish a police policy against comforting Caro that

night. So the trial court did not abuse its discretion by denying

a continuance.

Moreover, the trial court denied the motion to strike

because (1) the statement at issue was “spontaneous” rather

than the result of an interrogation under Miranda, and (2) the

court had no jurisdiction to hear the Fourth Amendment issue.

Anderson’s testimony that police told hospital staff not to

“comfort” Caro would have been irrelevant to the resolution of

these issues. The trial court also concluded the statement was

spontaneous and “voluntarily [made] by” Caro. Caro contends

that Anderson’s proposed testimony that hospital staff were

asked to refrain from comforting Caro is relevant to whether

Caro’s spontaneous statement uttered after the Miranda

warning was involuntary. Although such proposed testimony

may be relevant in principle, it does not support Caro’s

contention in this case because Caro’s statement was still a

spontaneous utterance, not the product of police coercion. (See

Colorado v. Connelly (1986) 479 U.S. 157, 167.)

Nothing in the record shows that officers sought to limit

Caro’s medical care or access to an attorney, and at the time the

statement was made, Detective Wade was actively trying to find

Caro’s mother so that she could come comfort Caro. Caro’s

further contention that the testimony may have justified

reconsideration of the trial court’s prior Miranda and

voluntariness findings is purely speculative. If Anderson’s

testimony would have warranted such an action, counsel might

have obtained a declaration from Anderson and moved for

reconsideration of the court’s prior Miranda ruling, but did not

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do so. So the trial court did not abuse its discretion or violate

any constitutional rights by failing to grant the continuance.

v. Exclusion of Evidence Assertedly Implicating

Right to Present a Defense

a. Records from Xavier’s Therapist

Caro argues that the trial court erred by refusing to review

and order the disclosure of records from Xavier’s visits to a

therapist. Before trial, Caro subpoenaed records maintained by

Xavier’s therapist. The therapist moved to quash the subpoena,

relying on the psychotherapist-patient privilege and the right to

privacy. The therapist also argued that Caro did not have the

right to pretrial in camera review of the records under People v.

Hammon (1997) 15 Cal.4th 1117 (Hammon). Xavier supported

the therapist’s motion. Caro opposed the motion. After a

hearing, the trial court found that the psychotherapist-patient

privilege applied and that our decision in Hammon prevented

pretrial disclosure of privileged information. The trial court also

found that Caro failed to establish “good cause” because she had

not shown a “reasonable likelihood that the documents in

question contain information that is both material and favorable

to the defense and that the same or comparable information is

not obtainable from nonpriv[i]leged sources.”

Before us, Caro argues she has a federal and California

constitutional right to an in camera hearing to examine Xavier’s

psychotherapy records, based on her right to confront and cross-

examine witnesses. Caro contends that our decision in

Hammon, which rejected such an argument, was wrongly

decided. In Hammon, we declined to provide a pretrial right to

discovery under the confrontation clause, and instead found that

any such right under the confrontation clause attaches at trial.

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(Hammon, supra, 15 Cal.4th at pp. 1127-11288.) Although the

advent of digitized, voluminous records may conceivably raise

new and challenging issues in this context, we decline to

reconsider Hammon on these facts, which involve

psychotherapy records from the relatively short period of time

from August 4, 1999, to November 22, 1999. Moreover, Caro

does not argue that the lack of pretrial discovery prejudiced her

ability to request psychotherapy records at trial, or somehow

altered her trial strategy. Nor does Caro argue on appeal that

any requests for psychotherapy records were improperly denied

at trial. In addition, Caro’s primary contention on appeal that

the records might have shown that Xavier fired Caro to

consummate his affair rather than to fix the office’s finances is

speculative at best. We cannot conclude that the trial court’s

ruling interfered with Caro’s right to confrontation in this case.

b. Admission of Child Autopsy Photos

Caro argues that four admitted autopsy photos showing

the victims’ wounds were so gruesome and inflammatory that

their admission was unduly prejudicial under Evidence Code

section 352. The trial court has broad discretion over the

admission of photographs that are alleged to include disturbing

details. (Roldan, supra, 35 Cal.4th at p. 713; see also People v.

Bonilla (2007) 41 Cal.4th 313, 353-354.) We routinely uphold

the admission of autopsy photos to establish the placement of a

victim’s wounds and clarify the testimony of prosecution

witnesses. (See, e.g., McKinzie, supra, 54 Cal.4th at pp. 1351-

1352.) The prosecution is not limited to proving its case “solely

from live witnesses; the jury is entitled to see details of the

victims’ bodies to determine if the evidence supports the

prosecution’s theory of the case.” (People v. Gurule (2002) 28

Cal.4th 557, 624.)

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The prosecution sought to introduce 14 autopsy photos.

The trial court excluded four of these photos as unduly

prejudicial and cumulative. It allowed the introduction of the

remaining 10 photographs. Caro now challenges four of the 10

admitted photographs. People’s exhibit 40A was a close-up

picture of the gunshot wound to Joey’s head, showing some

tearing around the wound, which a prosecution witness used to

opine that the gun was touching Joey’s head when fired.

Similarly, People’s exhibit 42B was a close-up picture of the

wound to Michael’s head, which similarly was used by an expert

to opine that Michael suffered a contact gunshot wound because

of visible hemorrhaging and tearing around the wound. People’s

exhibit 44B showed a large, gaping torn injury in Christopher’s

head, which demonstrated the damage caused by two gunshot

wounds. People’s exhibit 44C was a closer view of the wound

Christopher suffered, which a prosecution witness used to

explain how the bullet entered and exited Christopher’s skull.

Each of these photos served an evidentiary purpose by

supporting the expert’s explanation of how the shootings

occurred. Although the cause of death was not disputed at trial,

these photos provided valuable context for understanding how

the expert reached her conclusions about the nature of the

shootings. (See Booker, supra, 51 Cal.4th at p. 170

[“photographs of murder victims are relevant to help prove how

the charged crime occurred”].) Photographic evidence that Joey

and Michael were killed by contact gunshot wounds and that

Christopher was shot twice tended to demonstrate

premeditation, deliberation, and the intent to kill. Moreover, we

cannot conclude that these photos were unduly prejudicial.

Although these photos constituted graphic images of gunshot

wounds, even showing the insides of the victims’ heads in the

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case of exhibits 42B and 44B, we do not believe they were “ ‘so

gruesome as to have impermissibly swayed the jury.’ ” (People

v. Burney (2009) 47 Cal.4th 203, 243, italics added.) The

pictures were limited to the result of the gunshot wounds

themselves. They included no gratuitous details, unlike the

pictures at issue in cases where courts have found an abuse of

discretion. (See, e.g., People v. Marsh (1985) 175 Cal.App.3d

987, 996 [finding prejudicial photos of a child’s dangling bloody

scalp with, in the background, the child’s blood-spattered torso

“with the ribcages rolled back to expose the bowels”].) On

balance, we conclude that the trial court did not abuse its

considerable discretion in finding that the prejudice arising from

the photographs did not substantially outweigh their probative

value.

c. Rulings on the Parties’ Objections

Caro argues that the trial court erred in sustaining

multiple prosecution objections and overruling multiple defense

objections at trial. We review evidentiary rulings, including

ultimate rulings on whether evidence should be excluded as

hearsay, for abuse of discretion. (People v. DeHoyos (2013) 57

Cal.4th 79, 131, 132.) When a hearsay exception requires

foundational findings of fact, we review such findings for

substantial evidence. (Id. at p. 132.)

First, Caro contends that the trial court erred by allowing

Xavier to testify that Caro gave more money to her parents than

was documented by the checks in evidence. A lay witness must

have personal knowledge of the facts to which he or she testifies.

(Evid. Code, § 702.) Xavier testified “those checks represent only

a fraction of what was paid to [Caro’s parents] over that period

of time for their expenses.” Caro contends the prosecution laid

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insufficient foundation of Xavier’s personal knowledge of how

much Caro paid to her parents. But the prosecution established

earlier that Xavier reviewed his corporate and personal finances

in August 1999, which established a foundation for Xavier’s

personal knowledge. Thus, the trial court did not abuse its

discretion.

Second, Caro argues that the trial court erred by not

allowing defense counsel to cross-examine Xavier about the

location where he had sex with Laura G., the woman with whom

he was having an affair, after the shootings. After the trial

began, Xavier told the prosecution that he had sex with Laura

at the Marriott Hotel where Xavier stayed for two or three

months. Laura told the police that she and Xavier had not had

sex at the Marriott Hotel, but had continued their affair. At

trial, Xavier denied having sex with Laura at a hotel — a

statement inconsistent with his prior statement. The trial court

excluded this evidence because it considered the continued

affair — but not its precise location — relevant to the case. The

trial court alternatively excluded the evidence because its

probative value was substantially outweighed by “its undue

influence, bias, and consumption of time” under Evidence Code

section 352. The trial court has broad discretion to exclude

impeachment evidence where the subject matter is “collateral”

with “no logical bearing on any material, disputed issue.”

(People v. Contreras (2013) 58 Cal.4th 123, 152.) The location of

a witness’s affair may be relevant in some cases. But here, Caro

sought to establish a potential motive for Xavier to kill his

children by showing the continued affair. Caro did not argue

below, and fails to argue on appeal, how the location would be

relevant to anything except Xavier’s inconsistency and

credibility on that issue. Moreover, given its collateral nature,

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the trial court did not abuse its discretion by alternatively

excluding the evidence under section 352. This is especially true

because other evidence was elicited from Xavier showing the

relationship continued soon after the shootings: He testified

that he kissed Laura and was still in love with her in December

1999 or January 2000. The precise location of the affair’s

continued consummation was a minor collateral issue. The trial

court did not abuse its discretion.

Third, Caro argues that the trial court erred by allowing

prosecution expert Edwin Jones to testify that the prosecution

made Caro’s underwear available to the defense. In

Coddington, supra, 23 Cal.4th at page 606, we held the work

product privilege is violated where the prosecution asks

questions that “invit[e] the jury to infer that . . . other [defense]

experts were not called because their testimony would not be

favorable.” Here, Jones was a prosecution forensic scientist who

testified on defense cross-examination that he examined Caro’s

underwear on July 10, 2001. Defense counsel asked if that was

the first time Jones had examined the underwear, and he

replied that he examined it “on a date earlier than that when

other examiners were looking at [it],” those other examiners

being “Richard Fox or Herb MacDonnell. One of those two or

both.” On redirect, the prosecution asked, “[W]ho is Richard

Fox?” and defense counsel objected to the question under

Coddington. Though, defense counsel said she would not object

to testimony that the prosecution made the underwear available

to the defense. The trial court sustained the objection. The

prosecution then asked Jones if he “provide[d] access to that

particular item to defense experts?” He replied, “Yes,” and

defense counsel did not object. Defense counsel waived a claim

challenging this question by saying she would not object to

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testimony that the prosecution made the underwear available to

the defense. To the extent the question that was asked exceeded

the scope of the waiver, Caro forfeited any claim by failing to

object. (People v. Seumanu (2015) 61 Cal.4th 1293, 1365.)

Moreover, the testimony was admissible. (See People v. Scott

(2011) 52 Cal.4th 452, 489.) The trial court did not abuse its

discretion.

Fourth, Caro contends the trial court abused its discretion

by not allowing a police officer to testify that Xavier told him

that a psychotherapist advised Xavier to increase Caro’s Prozac

dosage. Defense counsel proffered this testimony to impeach

Xavier’s testimony on what he told police about Caro’s Prozac

and to show that Xavier was trying to convince the police that a

professional agreed with the increased Prozac prescription.

Earlier in the trial, defense counsel had asked Xavier, “Did you

tell the police when you were interviewed initially that your

psychologist had prescribed Prozac for Cora?”5 Xavier

responded, “I don’t recall if I used those words when I spoke to

the sheriff’s department.” When asked if he had discussed

Prozac with the police, Xavier stated, “To the best of my

recollection, I mentioned to [the police] that Cora had been

started on Prozac by me.” Xavier denied that he tried to

intentionally mislead the police about who prescribed the Prozac

to Caro.

The trial court held that the police officer could not testify

to Xavier’s statement to police that a psychotherapist had

advised Xavier on prescribing Prozac to Caro. According to the

trial court, this was not an inconsistent statement that fell

5

Trial witnesses at times referred to Caro by her nickname,

“Cora.”

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within a hearsay exception. To the extent this testimony was

proposed for purposes of showing Xavier’s attempt to seem more

credible to police, the trial court held that, on the record before

the court, Caro had not established a statement that implied

such an attempt. Indeed, defense counsel indicated that they

had not yet “gotten to” that part of the transcript of the police

interview.

We conclude any error was harmless. If the evidence was

admitted for its truth, it would not have harmed — and may

have bolstered — Xavier’s credibility, as evidence that he

received advice about Caro’s Prozac. Moreover, the purported

inconsistency in the statement would have been unlikely to alter

the jury’s evaluation of Xavier’s credibility because defense

counsel’s question about what Xavier told police was general,

and he added the caveat that he was responding to the “best of

[his] recollection.” This evidence also would not have provided

much support to the defense theory that Xavier sought to

manipulate the police. Xavier simultaneously told police that

he was the one who actually prescribed the Prozac; the advice of

a family therapist not allowed to prescribe Prozac herself would

not have added much legitimacy to his decision. Therefore,

there is no reasonable probability this evidence would have

changed the trial’s outcome.

Fifth, Caro argues that the trial court erred by excluding

the defense’s proposed question to Caro, during direct

examination, about whether Xavier told her he had kept his

appointment with a divorce lawyer. On defense objection, the

trial court held that the question called for hearsay and the

answer would not be relevant to Caro’s proposed inconsistent

statement hearsay exception theory. Some questions later, Caro

testified to believing Xavier had not kept the appointment with

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the divorce lawyer based on Xavier’s statements to her. Caro

argues on appeal that this was the nonhearsay purpose for

which the excluded testimony should have been admitted. But

since this fact was established by the later testimony, no

possible prejudice arose from the prior ruling.

Sixth, Caro argues that the trial court erred by allowing

Detective Wade to testify to what Juanita said about Caro’s

statements. In the hospital, Juanita asked Caro, “Why did you

do this?” and then said a prayer over Caro. During the prayer,

Caro said “My babies. My babies. I’m sorry. I’m sorry.” The

prosecution sought to introduce evidence of Juanita’s later

statement to Wade that recounted Caro saying that she was

“sorry for what happened to my babies.” Defense counsel

objected that the testimony constituted Juanita’s speculation

about why Caro was sorry. The trial court disagreed and found

that Juanita was not speculating, but rather was attributing the

statement to Caro. In context, the trial court reasonably

interpreted Juanita’s statement as reporting what she thought

Caro had said in response to her question asking why Caro did

it. To the extent another interpretation was possible, we cannot

conclude that the trial court abused its discretion by resolving

this factual dispute in a reasonable manner. (See People v.

Thornton (2007) 41 Cal.4th 391, 429 [“The court’s ruling did not

fall outside the bounds of reason”].)

Seventh, Caro argues that the trial court should have

allowed her to introduce transcript excerpts containing

statements Xavier made to Juanita after the shootings. In a

conversation recorded by Deputy Anthony Tutino, Xavier told

Juanita the following: “[Caro] shot them in the head. She

wasn’t messing around.” Defense counsel argued that this

statement was relevant inconsistent statement evidence

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because Xavier had never specifically testified about observing

where Joey was shot in his direct testimony. Defense counsel

also contended that this statement showed that Xavier had

greater knowledge about how the children died than he should

have had based on his direct testimony. The trial court

ultimately denied the motion as to these transcript excerpts.

Even if the trial court erred by excluding this evidence, any such

error was harmless. Deputy Tutino had earlier testified to this

same statement during the prosecution’s case, and defense

counsel ultimately referenced it during jury argument.

Admitting a transcript of Xavier’s exact words in addition to

Tutino’s testimony would have been largely cumulative and

unlikely to affect the outcome of the case.

d. Exclusion of Written Statement in Police Report

Caro argues the trial court erred by excluding a statement

in a police report. Deputy Tutino wrote — in a paragraph

concerning statements Xavier made to Juanita in the garage the

day after the shootings — that “[Caro] told Xavier that she had

killed all the kids.” The prosecution argued that admitting this

statement would violate the rule against hearsay because it was

an out-of-court statement to be admitted for the truth of the

matter asserted. This statement implicates three potential

hearsay statements: the first level is Caro’s supposed statement

to Xavier that she killed the children; the second is Xavier’s

assertion that Caro made the statement; and the third is

Tutino’s writing about what Xavier said.

Caro contends that the purpose for admitting the

statements only implicated the third level of hearsay — the

police report itself. Caro argues that the first two levels of

hearsay could be avoided because the statement would not have

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been admitted for the truth of Caro committing the murders, or

for the truth of Caro telling Xavier she committed the murders.

Instead, Caro argues that Xavier’s statement would have shown

Xavier’s attempt to place blame on Caro and impeach his

credibility. Regarding the police report, Caro argues that it fell

within Evidence Code section 1237, which provides a hearsay

exception for past recollections recorded. The trial court found

that this exception did not apply.

The Attorney General does not defend the trial court’s

exclusion of the statement, but rather argues that any error was

harmless. We agree any error was harmless for the limited

purposes for which the statement would have been admitted.

The statement’s purpose was to impeach Xavier’s testimony

about what he said in the garage and to show that he was trying

to lay blame on Caro. This statement that Tutino wrote down,

but did not remember, and which was not on the tape recording

of the conversation in the garage, had low evidentiary value.

Juanita also never testified that Xavier made such a statement

to her, and Xavier did not remember making the statement. The

jury would be unlikely to find Xavier measurably less credible

had this statement been admitted. Moreover, the theory that

this statement showed Xavier’s attempt to lay blame on Caro

does not hold up under scrutiny. It is unclear why Xavier would

tell Juanita — but not the police — that Caro admitted to the

crime if he shot his family and was trying to blame Caro. So for

the limited purposes for which the statement would have been

admitted, we conclude that any error was harmless.

e. Cumulative Error and Right To Present a

Defense

Caro argues the trial court’s evidentiary errors are

prejudicial when considered cumulatively, and also violated her

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constitutional right to present a defense. To the extent we

assumed error, but found harmlessness with respect to Caro’s

evidentiary arguments, we do not find that those errors are

cumulatively prejudicial. Those assumed errors involved

evidence that was so minor that it was unlikely to have affected

the case, even in the cumulative, and did not affect Caro’s right

to present a defense. (See People v. Samuels (2005) 36 Cal.4th

96, 114 [“ ‘generally, violations of state evidentiary rules do not

rise to the level of federal constitutional error’ ”].)

vi. Admission of Computer Animation

Caro argues that the trial court abused its discretion by

allowing the prosecution to show the jury a computer animation

depicting the opinion of Rod Englert, a blood spatter expert, on

how the shootings of Christopher and Michael occurred. We

review a trial court’s decision to admit demonstrative evidence

for abuse of discretion. (Duenas, supra, 55 Cal.4th at p. 21.)

Before trial, the prosecution moved to introduce the computer

animation, and the defense opposed. The prosecution argued

the animation was admissible as a visual depiction of Englert’s

expert opinion on what happened. Regarding prejudice, the

prosecution asserted the animation would not show highly

emotional details of the crime, such as the victims’ facial

expressions and Winnie the Pooh paraphernalia. At the trial

court’s request, the prosecution played and narrated the

animation for the court. The trial court found the animation to

be admissible demonstrative evidence to the extent it

represented only the prosecution expert’s proposed testimony.

Because Englert could not confirm whether Christopher’s eyes

were open during the shootings, the trial court ordered the

prosecution to show them closed in the animation. The trial

court also required Englert to provide a declaration confirming

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that the final version of the animation depicted his

understanding of the evidence. The prosecution shared a copy

of the final version of the animation with the defense.

The computer animation was presented to the jury in eight

scenes during expert testimony by Englert, who spoke after each

scene. The animation featured three-dimensional, mannequin-

like recreations designed with relevant details, such as clothing

and hair. Englert testified that the animation illustrated his

opinion of how the shootings had to occur to produce the

bloodstain patterns on the clothing that Caro was found wearing

the night of the shootings. The court also delivered a cautionary

instruction about the animation to the jury multiple times over

the course of trial.6

6

One of these instructions read: “This is an animation

based on an expert’s opinion. [¶] The computer animation we

have here is nothing more than that, an illustration of the

expert’s opinion. You are instructed to treat it no differently

than you would any chart or diagram of the evidence. [¶] The

animation is not intended to be a film of what actually occurred,

nor is it an exact re-creation. Therefore, there may be facts that

are not exactly accurate or not exactly as they occurred but may

be reasonably close. [¶] It is important to keep in mind that an

animated video is not an actual film of what occurred, nor is it

intended to be an exact, detailed replication of every detail of

every event or every movement. It is only an aid to giving you

an overall view of the particular version of the events, based on

particular viewpoints or particular interpretations of evidence

made by an expert witness. [¶] . . . In determining what weight

to give to any opinion expressed by an expert witness, you

should consider the qualifications and believability of the

witness, the facts and materials upon which each opinion is

based, and the reasons for each opinion. . . .”

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We allow the admission of a computer animation as

demonstrative evidence of expert testimony, but only if certain

conditions are met. The animation must accurately depict an

expert opinion, the expert opinion must fairly represent the

evidence, the trial court must provide a proper limiting

instruction, and the animation must be otherwise admissible

under Evidence Code section 352. (See Duenas, supra, 55

Cal.4th at pp. 20-25.) Caro contends the computer animation

here is inadmissible under section 352. We disagree.

Evidence Code section 352 provides that a court “may

exclude evidence if its probative value is substantially

outweighed by the probability that its admission will (a)

necessitate undue consumption of time or (b) create substantial

danger of undue prejudice, of confusing the issues, or of

misleading the jury.” Caro argues that unlike in Duenas, where

the cause of death was in dispute, the animation here is only

minimally probative because only identity was disputed at trial.

But Caro forgets that the animation had more than minimal

probative value on the issue of identity. The animation

illustrated the expert’s opinion that the blowback of blood from

a gunshot to Christopher’s head was consistent with the

bloodstain patterns on Caro’s, not Xavier’s, clothes.

It is true that courts must be mindful of the powerful

impact computer animations may have on jurors. The potential

for such impact does not, however, create “an unjustified ‘air of

technical and scientific certainty’ ” if accompanied by proper

limiting instructions. (Duenas, supra, 55 Cal.4th at p. 23.) The

trial court gave such limiting instructions here. They informed

the jury that the animation merely illustrated the expert’s

opinion, it did not exactly recreate the events on the night of the

shootings, and it was the jury’s role to evaluate the expert’s

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opinion and its factual basis. While Caro argues that these

cautionary instructions were ambiguous as to the animation’s

purpose, the instructions were quite clear: They stated that the

animation was an aid for understanding an expert’s opinion.

Further, the content of the computer animation is not

itself so graphic that prejudice arising from those details

substantially outweighs the animation’s probative value. The

animation featured mannequin-like representations of

Christopher and Michael, with some facial features, hair, and

clothing. The animation showed each gunshot fired, and the

pattern of blood distribution after the gunshots, which was

necessary to depict Englert’s testimony. It featured only one

personal possession of the children, a doll on the side of the bed

that Christopher’s blood had dripped on. While a slow-motion

visual depiction of two killings is indeed disturbing, the

animation did not include highly emotional details, such as

graphic images of the damage wrought by the bullet entry

wounds, the children’s facial expressions, or other superfluous

elements to tug on the heartstrings of the jury. (See People v.

Hood (1997) 53 Cal.App.4th 965, 972.)

Caro also argues the animation was prejudicial because it

was cumulative of other evidence. But in Duenas, we rejected a

similar argument because it “misapprehend[ed] the animation’s

role as demonstrative evidence. The animation was not offered

as substantive evidence, but as a tool to aid the jury in

understanding the substantive evidence.” (Duenas, supra, 55

Cal.4th at p. 25.) Here, the animation is similarly not

cumulative, as it is demonstrative evidence illustrating expert

testimony — such demonstrative evidence provides

noncumulative value over the testimony itself by encapsulating

what may otherwise be a confusing series of events. Because

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whatever prejudice arising from the computer animation did not

substantially outweigh its probative value, we conclude the trial

court did not abuse its discretion.

vii. Prosecutorial Misconduct

Caro argues that the prosecution committed misconduct

by making certain statements in the closing arguments of the

guilt and penalty phases of trial. Under California law, to

establish reversible prosecutorial misconduct a defendant must

show that the prosecutor used “ ‘deceptive or reprehensible

methods’ ” and that it is reasonably probable that, without such

misconduct, an outcome more favorable to the defendant would

have resulted. (People v. Riggs (2008) 44 Cal.4th 248, 298

(Riggs).) A prosecutor’s misconduct violates the federal

Constitution if the behavior is “ ‘so egregious that it infects the

trial with such unfairness as to make the conviction a denial of

due process.’ ” (People v. Redd (2010) 48 Cal.4th 691, 733

(Redd).) To preserve a claim of prosecutorial misconduct for

appeal, a defendant must object and request an admonition.

(E.g., id. at p. 734; People v. Hill (1998) 17 Cal.4th 800, 820.) An

exception exists where the objection and request for admonition

would have been “futile or ineffective.” (Riggs, at p. 298.)

a. Guilt Phase Closing Argument

Caro contends that the prosecutor committed five

instances of misconduct during closing arguments of the guilt

phase. To establish misconduct, Caro must show “ ‘a reasonable

likelihood the jury construed the remarks in an objectionable

fashion.’ ” (Potts, supra, 6 Cal.5th at p. 1036.)

First, Caro argues that the prosecutor improperly vouched

for Xavier’s truthfulness by asserting that he was “honest” and

that he “testified truthfully.” But Caro failed to object to these

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statements and request an admonition, so the claim is forfeited.

(Riggs, supra, 44 Cal.4th at p. 298.) Moreover, any misconduct

was harmless. The comments were brief, and several were

“followed immediately by references to evidence bearing on

witness credibility.” (People v. Sully (1991) 53 Cal.3d 1195,

1236.) The substantial physical evidence against Caro also

corroborated Xavier’s version of events over hers. And both

parties and the trial court’s instructions repeatedly emphasized

to the jury that witness credibility was solely theirs to decide.

Under these circumstances, there is no reasonable probability

that the prosecutor’s comments affected the outcome.

Second, Caro argues that the prosecutor committed

misconduct by describing Xavier as “stifl[ing] sobs” and

“crumpl[ing] over in pain” during his testimony. The statement,

she contends, was impermissible because these physical cues

are not in the record. Because defense counsel did not object or

request an admonition on this issue, the claim is forfeited.

(Redd, supra, 48 Cal.4th at p. 746.) Moreover, there was no

misconduct. The demeanor of a witness is “rarely reflected in

the record” (People v. Navarette (2003) 30 Cal.4th 458, 516), but

is a proper factor for the jury to consider when assessing the

witness’s credibility (People v. Jackson (1989) 49 Cal.3d 1170,

1205-1206; see also Evid. Code, § 780, subd. (a)).

Third, Caro contends that the prosecutor improperly

expressed a personal opinion in closing argument. She said,

“And Deputy Tutino heard [Xavier] say again and again, ‘She

killed my best friend. She killed my best friend.’ [¶] You know

that [Xavier] was talking about Joey. Like any father [Xavier]

would want to believe that he loved all of his children equally.”

She then began to say, “I’m sure he did a great job making each

child feel loved and feel — ” when defense counsel objected on

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the ground that the prosecutor was expressing a personal

opinion, and the trial court sustained the objection.

The prosecutor then went on to argue the following: “But

as difficult as it is to say, you can tell from the state of the

evidence that [Xavier] had a special place for Joey. Joey was the

one who made [Xavier] a father for the first time. Joey was the

one who was most like a person. He was the oldest at the time.

[¶] And when [Xavier] sat there in his family room saying, ‘She

killed my best friend,’ he was talking about Joey. That’s

probably why he was the defendant’s first target.” Caro asserts

this second statement, too, was the prosecutor’s own opinion and

not permissible argument on the evidence.

As to the first statement about making each child feel

loved, counsel objected but did not request an admonishment.

As to the second statement, Caro did not object. Both omissions

forfeit any challenge to these statements. (Riggs, supra, 44

Cal.4th at p. 298.) And the alleged misconduct was, in any

event, so minimal as to have no reasonable probability of

affecting the outcome.

Fourth, Caro asserts that the prosecutor improperly relied

on facts not in evidence by arguing that Sergeant Timothy

Lorenzen was the lead investigator but was not called in the

prosecution case because he only had a limited set of duties.

Caro argues that this was an improper way to explain the reason

why the prosecution did not call Lorenzen to testify, and that

the actual reason was that he was impeachable for cheating on

an exam. But Caro failed to object to the argument regarding

Lorenzen at trial; so the claim is forfeited. (Riggs, supra, 44

Cal.4th at p. 298.) Plus, any error was harmless because the

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reason for not calling Lorenzen was a tangential, minor issue

that would not have affected the outcome of the case.

Fifth, Caro argues the prosecutor improperly insulted the

role of the defense by arguing that the prosecution’s burden was

to “prove to 12 jurors beyond a reasonable doubt the truth of the

allegations against a defendant,” while all the defense had to do

was “confuse one of you.” The prosecutor went on to say, “That’s

the tactic that many defense attorneys employ. Confusion.

Throw up smoke. Try and mislead jurors. And maybe, by

chance, they’ll get lucky and get one.” The prosecutor later said,

“I just ask that you not be the one that the defense is trying to

target for confusion.” Caro failed to object to this argument, so

the claim is forfeited. (Riggs, supra, 44 Cal.4th at p. 298.) In

any event, we do not forbid prosecutors from arguing that the

defense case seeks to confuse the jury. (See People v. Kennedy

(2005) 36 Cal.4th 595, 626.) And the prosecutor was permitted,

as she did immediately after these statements, to “highlight the

discrepancies between [defense] counsel’s opening statement

and the evidence.” (People v. Bemore (2000) 22 Cal.4th 809,

847.) We find no misconduct under these circumstances.

b. Penalty Phase Closing Argument

Caro contends — in a summary bullet-point list — that the

prosecutor committed 15 instances of misconduct during the

penalty phase closing argument. Given the summary nature of

her contentions, Caro fails to assert precisely why the

statements were misconduct or cite relevant authority. She also

does not argue how these statements prejudiced her, except by

asserting that all of the prosecutorial misconduct claims were

cumulatively prejudicial. The failure to “ ‘offer any authority or

argument in support of [her] claim[s]’ ” would justify us

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“declin[ing] to address these contentions.” (People v. Foster

(2010) 50 Cal.4th 1301, 1352 (Foster).) Regardless, Caro

concedes that defense counsel did not object to the following

statements, thus forfeiting her claim: (1) the assertion that

Christopher was trying to “get away from his killer” and was

“fighting . . . for his life”; (2) the assertion that Christopher

“saved [G.C.]’s life by making her shoot [Christopher] twice,

using up the bullet that was probably meant for [G.C.]”; (3) the

statement that “[a]ll murders are committed when people are

going through bad times in their lives”; (4) descriptions in the

penalty phase of Xavier’s testimony as truthful or honest; and

(5) statement’s that the dead children “would have been

successful” and “would have been wonderful.” (Riggs, supra, 44

Cal.4th at p. 298.)

For the following statements, Caro objected but failed to

request an admonition: (1) the prosecutor asked the jury to cry

for the boys; (2) the prosecutor misstated the law by asserting

that every factor in the penalty phase must be proven beyond a

reasonable doubt (and the jury instructions later stated the

correct standard); (3) the prosecutor stated that the defense had

“chang[ed] [its] story” in the penalty phase; (4) the prosecution

referred to a witness as a “bought-and-paid-for defense expert”;

and (5) the prosecution argued Caro was not someone who

“wound up selling dope at age twelve to put food in her mouth,

getting hooked on drugs.” That failure forfeits her claims. (Duff,

supra, 58 Cal.4th at p. 567.) With regard to the final statement

about getting “hooked on drugs,” Caro points out that the

prosecutor continued by arguing that Caro was not “a poor

inner-city kid who never had a chance.” But Caro failed to object

or request an admonition as to that subsequent statement,

forfeiting the claim. (Riggs, supra, 44 Cal.4th at p. 298.)

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Moreover, any potential misconduct in these statements was

ultimately harmless.

Caro also raises a number of claims where the trial court

overruled objections or rejected requests for admonitions. First,

Caro contends that the prosecutor relied on facts not in evidence

when she argued, “This defendant’s situation is really not that

much different from other people who are facing difficult

relationships or failed marriages. [¶] In fact, hers was a lot

better.” The prosecutor continued, “The only real emotional

disturbance or strain that separates this defendant from any

other woman or any man who’s facing a failing marriage is her

vanity. Her pride. . . .” Caro objected, and the trial court

overruled the objection. We find no misconduct. These

references to how other women react to similar circumstances

draws on “ ‘common knowledge’ ” or “ ‘common experiences.’ ”

(People v. Mendoza (2016) 62 Cal.4th 856, 908.)

Second, the prosecutor incorrectly argued to the jury that

appellant’s toxicology screen did not test positive for Xanax. The

trial court overruled a defense objection. But no possible

prejudice arose from this statement because the prosecutor

subsequently admitted its mistake to the jury, and the parties

stipulated to the presence of Xanax in Caro’s bloodstream.

Third, the prosecutor argued that the trial court could

consider sympathy for Caro in mitigation, but not sympathy for

her family. Defense counsel objected on the ground that this

was a misstatement of law, and the trial court overruled Caro’s

objection. The prosecutor did not misstate the law. (See People

v. Ochoa (1998) 19 Cal.4th 353, 456 (Ochoa); see also People v.

Rices (2017) 4 Cal.5th 49, 87-89.) Caro’s citation to Cullen v.

Pinholster (2011) 563 U.S. 170 is unavailing because it was an

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ineffective assistance of counsel case based on a 1984 trial,

before we held in Ochoa that the jury could not consider

sympathy toward a defendant’s family in mitigation.

(Pinholster, at pp. 176, 191.) This argument was not

misconduct.

Fourth, the prosecutor told the jurors to imagine

themselves as Christopher in bed, feeling safe, before he was

shot by Caro. Caro’s objection was overruled. This argument

was not misconduct. It is not improper for a prosecutor to “invite

the jurors to put themselves in the place of the victims and

imagine their suffering.” (People v. Slaughter (2002) 27 Cal.4th

1187, 1212.)

Finally, the prosecutor stated that Caro “slaughtered” the

boys. Caro failed to object, but later requested the jury be

admonished that the term “slaughter” was improper. The trial

court refused. This statement was not misconduct because the

word “slaughter” is a fair description of what happened to the

children — the killer shot three children in the head, in their

beds, at point-blank range. The prosecutor is, to a point, allowed

to use “colorful language to explain the prosecutor’s view of the

evidence.” (People v. Rundle (2008) 43 Cal.4th 76, 163 (Rundle).)

On the facts of this case, saying “slaughter” was not misconduct.

In addition, Caro contends that defense counsel’s failure

to object or request an admonition to the above statements

constituted ineffective assistance of counsel under Strickland.

But we regularly reject such claims on direct appeal where, as

here, the record sheds no light on why defense counsel failed to

object or request an admonition. (People v. Gray (2005) 37

Cal.4th 168, 207.) This is not the rare case where there “could

be no satisfactory explanation” for the failure to object or request

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admonitions, which may have arisen from a desire not to call

attention to the allegedly faulty arguments. (Ibid.) The failure

to object only rarely constitutes ineffective representation.

(Ibid.) And Caro fails to demonstrate that the exclusion of the

statements would have, with a reasonable probability, changed

the outcome. We therefore reject Caro’s ineffective assistance of

counsel claim.

viii. Penalty Phase Factor (b) Evidence

Caro argues that there was insufficient evidence to allow

admission of her prior criminal acts at the penalty phase of trial,

and that the evidence presented was insufficiently specific to

give Caro a fair opportunity to defend against the accusations

concerning those acts. As a result, she contends that the

evidence of prior acts violated her right to due process, to

confront and cross-examine witnesses against her, and to a

reliable determination of penalty under the Sixth, Eighth, and

Fourteenth Amendments.

Section 190.3, factor (b) allows the jury to consider as

aggravation evidence “[t]he presence or absence of criminal

activity by the defendant which involved the use or attempted

use of force or violence or the express or implied threat to use

force or violence.” To present such evidence at trial, the

prosecution must provide the defendant notice of the evidence

to be introduced and the opportunity to confront the available

witnesses. (People v. Yeoman (2003) 31 Cal.4th 93, 136-137; see

also Rundle, supra, 43 Cal.4th at p. 183.) Additionally, to

consider this evidence in aggravation, the jury must be

convinced beyond a reasonable doubt that Caro committed these

prior acts. (Yeoman, at p. 137.) If these three requirements are

satisfied, the jury may consider a defendant’s prior criminal acts

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without violating his or her rights to due process, a speedy trial,

or a reliable penalty determination. (Id. at p. 136.) The

remoteness of the prior criminal acts then affects their weight

in aggravation rather than their admissibility. (Id. at p. 137.)

Caro first asserts that the notice given to her about the

evidence to be presented, and the evidence eventually

presented, deprived her of notice of the allegations and an

opportunity to present a meaningful defense. For many of the

seven prior acts presented in the penalty phase, the notice and

testimony did not identify the specific timeframe when the event

occurred. We rejected a similar claim in Rundle where the

defendant argued that the section 190.3, factor (b) evidence

relating to the defendant’s ex-wife amounted merely to a

“nonspecific series of acts occurring over a period of several

months, without providing exact dates upon which specific acts

of forcible sodomy or oral copulation occurred.” (Rundle, supra,

43 Cal.4th at p. 182.) We held that the relevant inquiry is

whether the three requirements set forth in Yeoman are

satisfied. (See Rundle, at pp. 183-186 [requiring less notice of

timeframes in penalty phase where the point is the evaluation

of the defendant’s character, not the establishment of a

particular act].) Here, Caro had notice of the incidents at issue

and evidence to be presented against her and had the

opportunity to cross-examine witnesses. Moreover, defense

counsel asserted the incidents would be “disputed and

contested,” the credibility of the witnesses would be “vigorously

attacked,” and “there are some very significant defenses to acts

[the prosecution] claimed occurred.” The jury was also

instructed to only consider the evidence in aggravation if it

found the prior acts true beyond a reasonable doubt. Our

precedent does not require more. (See ibid.)

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Caro also contends that there was insufficient evidence for

the jury to conclude beyond a reasonable doubt that many of the

incidents occurred because they were supported only by Xavier’s

uncorroborated testimony. We have previously rejected similar

claims based on a witness’s lack of trustworthiness in the section

190.3, factor (b) context. (People v. Stitely (2005) 35 Cal.4th 514,

564.) Rather than rendering factor (b) evidence inadmissible,

the untrustworthiness of a witness’s testimony goes to its weight

and can be shown through cross-examination and other

evidence. (Rundle, supra, 43 Cal.4th at pp. 184-185.) Neither

the lack of specific dates nor the character of the evidence

presented caused the evidence to be insufficient as a matter of

law. (Id. at p. 185.)

Caro requests we require trial courts to hold hearings to

determine whether the evidence is sufficient for a jury to find a

prior violent offense beyond a reasonable doubt. Trial courts

have discretion to hold such a hearing. (See People v. Phillips

(1985) 41 Cal.3d 29, 72, fn. 25; see also People v. Friend (2009)

47 Cal.4th 1, 87; People v. Fauber (1992) 2 Cal.4th 792, 849.)

Caro argued here that a hearing was necessary because she

planned to impeach the prosecution’s evidence and present

defenses. But the trial court did not abuse its discretion by

finding the prosecution’s proffered evidence sufficient without a

hearing and allowing the jury to evaluate the defense response.

And to the extent Caro argues that the probative value of the

prior act evidence was not substantially outweighed by undue

prejudice under Evidence Code section 352, that claim fails. The

trial court did not abuse its discretion by finding that these prior

acts were not “particularly prejudicial” in comparison to the

offense of conviction, especially under the somewhat

circumscribed Evidence Code section 352 analysis for Penal

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Code section 190.3, factor (b) evidence. (People v. Box (2000) 23

Cal.4th 1153, 1201.)

Finally, Caro asks us to reconsider Rundle because of the

danger that jurors will credit vague, uncorroborated prior acts

when introduced with more specific, corroborated prior acts.

But we perceive no such danger where jurors receive

instructions to only consider a prior act in aggravation if proven

beyond a reasonable doubt. Because the requirements in

Yeoman and Rundle were satisfied, we reject Caro’s section

190.3, factor (b) claim.

C. Juror Misconduct and Related Motion for New

Trial

i. Dismissal of Juror During Deliberations

Caro argues that the trial court erred by dismissing Juror

No. 9 for his statements to Juror No. 11 outside of the

deliberation room. In the alternative, Caro argues that if there

was sufficient evidence for Juror No. 9’s dismissal, then the trial

court should have also dismissed Juror No. 11, who was part of

the conversation with Juror No. 9. Caro also contends that the

trial court erred by failing to grant a new trial based on the

jurors’ posttrial declarations about their conversation.

On November 2, 2001, the jury foreperson submitted a

note to the trial court stating that one of the jurors was a holdout

who was refusing to deliberate. Because this note came on a

Friday, the trial court decided to excuse the jury and conduct an

inquiry the following Monday. But before excusing the jury, the

trial court admonished the jury: “I need to give you the

admonition you’ve heard so many times before, but you need to

hear it again. [¶] And that is you cannot discuss this case

outside the presence of the jury room with the other 11 or 12

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jurors. . . . You’re not to deliberate upon the case any further

during the weekend, and the only time you can discuss the case,

deliberate the case is when you’re back in the jury room Monday

and all 12 jurors are present in the jury room.”

The following Monday, the trial court called in the jury

foreperson, who indicated that the juror at issue was no longer

refusing to deliberate. The parties did not pursue the issue

further. But defense counsel also raised a new issue discovered

by a defense investigator, who saw Juror No. 9 and Juror No. 11

speaking in the parking lot the previous Friday evening after

the jury was excused. Defense counsel requested an inquiry.

The trial court first examined Juror No. 9. When asked

whether there was any discussion about the case between Juror

No. 9 and Juror No. 11, Juror No. 9 said, “There was. There was

one line, I think. One or two lines. That’s correct.” When the

trial court asked Juror No. 9 to describe the discussion he

related the following: “The comment which was discussed

between myself and the one juror only . . . was in regards to the

emotionalism of what was going on in the jury room and the fact

that emotions were very highly charged. [¶] We were — there

was some personal stuff said, which made it difficult for

deliberations to take place, and there was also a comment in

regards to the personal — or not personal, excuse me, in regards

to the emotional state, which sounds really bad, but it was — in

fact, the exact quote was in regards to the defendant. And it

would have been ‘she had to be emotional on that night.’ And

my response to that was that I agree.” Juror No. 9 said that was

the only discussion of the case. When asked whether Juror No.

9 or Juror No. 11 had initiated the conversation about the case,

Juror No. 9 said, “It very well could be me, sir,” but he could not

remember. Juror No. 9 remembered telling Juror No. 11

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regarding the deliberations that “it’s not productive when

people’s tempers get so flared up they start to use personal

attacks and stuff like that.”

The trial court then called Juror No. 11. When asked

whether the case was discussed in the parking lot, Juror No. 11

said, “Not specifically, no.” When asked whether they spoke

about the deliberations, Juror No. 11 said, “Sort of.” Juror No.

11 explained, “Basically, he thanked me for taking the time to

listen . . . and to understand his perspective of things.” Juror

No. 11 indicated this was the only discussion about the case and

that she did not advocate for Juror No. 9 to do anything during

the deliberations.

Defense counsel requested the discharge of Juror No. 9

because he “knowingly and willingly violated” the trial court’s

specific orders and “attempted to engage another juror in

discussions about the emotional state of Mrs. Caro” in order to

“convince her of his position . . . .” Defense counsel argued, “I

want [Juror No. 9] off. He’s deliberately and intentionally

violated his oath as a juror. I just couldn’t be more concerned

about it.” The prosecution agreed to the removal of Juror No. 9

so long as Caro personally consented to the discharge, and Caro

consented. The trial court then discharged Juror No. 9, finding

“good cause” because of his “flagrant violation of the court’s

order regarding discussing the matter outside the presence of

the jury room with another juror and discussing subject matter

that is indeed in the court’s opinion deliberations on evidence

received in this case.”

The trial court then invited the parties “to raise any issues

regarding Juror No. 11.” The prosecutor raised concerns about

removing Juror No. 9, but not Juror No. 11, if there was “two-

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way participation” in the parking lot conversation. Defense

counsel and the prosecutor agreed that they did not hear

evidence that Juror No. 11 had made a comment about Caro’s

emotional state on the night of the shootings. Defense counsel

also stated that Juror No. 11 seemingly did not understand that

Juror No. 9 was attempting to gain support for his position, and

that “she didn’t offer any information about the case or discuss

any of the facts of the case.” The trial court agreed, and

explained, “I took [Juror No. 11]’s comments to be it was [Juror

No. 9] who was the initiator of the conversation and [Juror No.

11] was kind of stuck and being nice.” The trial court stated it

was not finding that Juror No. 11 discussed the case and noted

that “no one is asking to excuse Juror No. 11. I presume if the

parties felt there was something inappropriate in what she said,

I would have heard it by now.” After a recess, the trial court

stated that it “was satisfied that nothing has occurred that

would jeopardize [Juror No. 11]’s ability to continue to be a fair,

impartial juror for both sides.” The trial court asked the parties

if they wanted to be heard, and neither defense counsel nor the

prosecutor requested that Juror No. 11 be removed.

Following the penalty phase verdict, Caro filed a motion

for new trial. Among other issues, Caro contended, through a

declaration from Juror No. 9, that Juror No. 11 should have been

removed for misconduct. Juror No. 9 declared that he and Juror

No. 11 had “continued with the conversations that we had

started in the deliberation room” as they walked to their cars,

and that he did not remember who “initiated the topic of the

deliberations or trial.” Juror No. 9 wrote that he told Juror No.

11 that he “appreciated that she discussed the case calmly

without flying into a tantrum as others had done” and that there

was “mutual discussion revolving around the events that took

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place that day.” According to Juror No. 9, they went on to

discuss Caro’s state of mind. Juror No. 9 “made the point that

Cora was of the opinion that her husband was going to leave her

and the boys. He had done it before and he was just going to do

it again. The e-mails and interviews showed this. . . . This

might cause us to question the motive presented by the

prosecution.” According to Juror No. 9, Juror No. 11 said that

this “ ‘was just the last straw for Cora,’ ” that Xavier was going

to leave her again, and this time Caro could not stand it. Juror

No. 11 then said “in a raised voice with some animation in the

arms, ‘Well [Juror No. 9], you know she had to be emotional that

night.’ ”

The prosecution submitted a declaration from Juror No.

11. She stated, “On the evening of the fourth day of

deliberations, [Juror No. 9] and I walked to our cars together in

the parking lot. [Juror No. 9] brought up the topic of the

deliberations. He made comments about how difficult

deliberations were, and that the deliberations had gotten

personal. He stated that the deliberations had become too

emotional. I said something to the effect of, ‘Well it had to be an

emotional night, so it’s understandable that we’re emotional in

there.’ ” Juror No. 11 also denied waving her arms when making

this statement, referencing Caro’s mental state on the night of

the shootings, or discussing any of the evidence related to the

case.

The trial court denied Caro’s motion for new trial. It

expressed general agreement with the prosecution’s argument,

which included an assertion that Juror No. 11’s declaration,

rather than Juror No. 9’s declaration, accurately represented

the events in the parking lot. The trial court then found that

Juror No. 9’s declaration did not differ substantially from the

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statements uncovered in the inquiry at trial, and that Juror No.

11’s declaration was consistent with what the court uncovered

in the inquiry. The trial court noted that neither party

requested Juror No. 11’s discharge and that it was now

“disingenuous” for the defense to assert that Juror No. 11

committed misconduct. The trial court also found that, if there

was misconduct, it was not “inherently and substantially likely

to have influenced” Juror No. 11, and it was not “substantially

likely” that she was biased against Caro because of the

conversation. The trial court later found that, in general, Juror

No. 9 “infers motive or intent or conduct which a better factual

analysis would not show that that was the import of that

statement or the intent of the conduct or the motive of the

person who made the statement.” The trial court characterized

this as, to some extent, a credibility finding with respect to Juror

No. 9, who “just assumes things and perhaps believes them to

be accurate when in fact a further analysis would reveal they’re

not accurate.”

Regarding the dismissal of Juror No. 9, Caro has waived

her claim of error. Defense counsel affirmatively sought to

discharge Juror No. 9 because the juror committed intentional

misconduct. She did not seek a mistrial based on Juror No. 9’s

discharge. Having forcefully argued for Juror No. 9’s dismissal,

Caro cannot now complain that the trial court erred in siding

with her. (See People v. Coffman (2004) 34 Cal.4th 1, 49 [counsel

invited error by affirmatively challenging juror]; People v.

Cunningham (2001) 25 Cal.4th 926, 1029 [claim of improper

juror discharge waived where “defense counsel not only did not

object to the substitution of the juror or move for a mistrial, but

sought to have her excused”].)

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Caro argues in the alternative that if the claim was

forfeited, defense counsel’s choice to seek Juror No. 9’s removal

constituted ineffective assistance of counsel. But Caro must

show that her counsel’s performance was deficient, that is,

counsel’s performance must fall “ ‘ “below an objective standard

of reasonableness [¶] . . . under prevailing professional

norms.” ’ ” (Lopez, supra, 42 Cal.4th at p. 966.) It is undisputed

that Juror No. 9 committed misconduct. Without a more

compelling argument, it is difficult to conclude a lawyer’s

attempt to remove a juror who clearly committed misconduct —

an attempt to preserve the integrity of the jury — constitutes

constitutionally deficient performance. Regardless, there may

have been plausible strategic reasons for seeking Juror No. 9’s

removal that are not apparent on direct appeal. (Ochoa, supra,

19 Cal.4th at p. 445; People v. Mendoza Tello (1997) 15 Cal.4th

264, 266.) So we cannot conclude that seeking to remove Juror

No. 9 constituted deficient performance.

Caro next contends that even if the trial court was right to

remove Juror No. 9, it should have also removed Juror No. 11

because she was equally culpable. To the extent Caro argues

that the trial court should have removed Juror No. 11 during

trial, defense counsel’s failure to object or request a mistrial

forfeited that argument. (See People v. Williams (2013) 58

Cal.4th 197, 289 (Williams); Foster, supra, 50 Cal.4th at pp.

1340-1341; People v. Stanley (2006) 39 Cal.4th 913, 950.) And

to the extent Caro raises an ineffective assistance of counsel

claim for not seeking Juror No. 11’s dismissal, even assuming

there was good cause for such a dismissal, the record is

insufficient to evaluate trial counsel’s tactical choice. (See

People v. Mendoza Tello, supra, 15 Cal.4th at p. 266.)

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Nonetheless, Caro brought a new trial motion arguing

that a declaration of Juror No. 9 showed that Juror No. 11

committed misconduct. We only disturb a trial court’s decision

on a motion for new trial if the ruling constitutes “a manifest

and unmistakable abuse of . . . discretion.” (People v.

Thompson, supra, 49 Cal.4th at p. 140.) If the motion is based

on juror misconduct, we accept the trial court’s factual findings

and credibility determinations if supported by substantial

evidence, but exercise “independent judgment” to determine

whether the misconduct was prejudicial. (People v. Dykes (2009)

46 Cal.4th 731, 809 (Dykes).) Juror misconduct raises a

presumption of prejudice. Still, we evaluate the entire record to

determine if, on the whole, there was a “ ‘substantial

likelihood’ ” of prejudice in the form of “ ‘actual[] bias[] against

the defendant.’ ” (In re Boyette (2013) 56 Cal.4th 866, 890, italics

omitted.)

As an initial matter, the trial court found that Juror No.

9’s declaration did not substantially differ from the evidence at

trial. Although some differences existed — Juror No. 9 asserted

a longer, heated conversation than what he testified to at

trial — the trial court’s finding that there was no substantial

difference makes sense in light of its credibility determinations

about Juror No. 9. The trial court agreed generally with the

prosecution’s arguments on the motion for a new trial, which

included an assertion that Juror No. 11’s, rather than Juror No.

9’s, declaration was accurate, and the trial court later found that

Juror No. 9 lacked credibility. The trial court’s findings

implicitly rejected the additional details Juror No. 9 included in

his declaration and showed acceptance of Juror No. 11’s version

of events, which comported with the evidence at trial. Caro

argues that Juror No. 11’s declaration differed from her trial

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court statement, because she did not previously mention that

she had told Juror No. 9 it had to be “an emotional night.” But

the declaration was consistent with Juror No. 9’s statement at

trial that he had “agreed” with Juror No. 11’s assertion that

“ ‘[Caro] had to be emotional on that night.’ ” Although Juror

No. 9’s earlier account indicated that Juror No. 11 may have

spoken about Caro’s emotional state, and Juror No. 11’s

declaration contained a more general statement about an

“emotional night,” the trial court clearly felt that Juror No. 9

lacked credibility, so this minor difference does not make the

later declaration inconsistent. We conclude the trial court’s

finding — that there was no substantial difference in the

declarations’ versions of events — was support

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