People v. Johnson

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JOE EDWARD JOHNSON,

Defendant and Appellant.

S029551

Sacramento County Superior Court

58961

November 25, 2019

Chief Justice Cantil-Sakauye authored the opinion of the

Court, in which Justices Chin, Corrigan, Kruger and Groban

concurred.

Justice Liu filed a dissenting opinion.

Justice Cuéllar filed a dissenting opinion in which Justice Liu

concurred.

PEOPLE v. JOHNSON

S029551

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

A jury convicted defendant Joe Edward Johnson of the

first degree murder of Aldo Cavallo, and found true the special

circumstance allegation that defendant committed the murder

while engaged in a home invasion robbery. (Pen. Code,1 §§ 187,

subd. (a) [murder], 190.2, subd. (a)(17)(i) [robbery murder].) The

jury also convicted defendant of the forcible rape (§ 261, subd.

(a)(2)) and assault with intent to commit murder (former § 217)

of Mary S. The jury returned a verdict of death, and the trial

court sentenced defendant accordingly.

An automatic appeal followed. (§ 1239, subd. (b).) This

court initially held that the trial court had committed reversible

error under People v. Shirley (1982) 31 Cal.3d 18, by admitting

into evidence the hypnotically induced identification of

defendant by Mary S., and we reversed all convictions and the

death sentence on that basis. However, we subsequently

granted the People’s petition for rehearing, vacated our earlier

decision, and issued an opinion reversing the rape and assault

convictions but affirming the murder conviction and special

circumstance finding. (People v. Johnson (1988) 47 Cal.3d 576.)

We also reversed the judgment of death due to the trial court’s

erroneous jury instruction on the possibility of future

1

All further undesignated statutory references are to the

Penal Code.

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commutation under People v. Ramos (1984) 37 Cal.3d

136. (People v. Johnson, at p. 603.)

The prosecution retried the penalty phase based on the

murder conviction and special circumstance finding. It elected

not to retry defendant on the rape and related charges. The first

penalty phase retrial ended in a mistrial in 1991. The jury in

the second penalty phase retrial returned a death verdict in

1992, and the trial court sentenced defendant to death. This

appeal is automatic. We affirm the judgment in its entirety.

I. SUMMARY OF FACTS

A. Prosecution Evidence

The People presented the following evidence during the

second penalty phase retrial.

1. Robbery and murder of Aldo Cavallo

One evening in late July 1979, defendant removed the

screen from an open kitchen window to enter Cavallo’s

apartment via the back door. Defendant retrieved a dumbbell

from the apartment’s second bedroom, walked to the master

bedroom, and then struck a sleeping Cavallo once or twice in the

temple. The chain lock on the front door was still in place,

suggesting defendant exited the way he had entered.

Police responding to a neighbor’s welfare check found

Cavallo’s apartment in shambles: drawers were open with

contents dumped on the floor and a television sat on the floor in

the hallway. Two guns — one a shotgun and another a shotgun

or a rifle — and ammunition were lying on the floor. Cavallo’s

body was found on his bed under the covers. His head was

covered with blood. On the foot of the bed lay a dumbbell or

barbell with traces of blood and hair on it. The cause of death

was determined to be a single major blow to the right temporal

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area, consistent with having been caused by the dumbbell found

at the scene.

Investigators found a window screen, apparently taken

from the open window, leaning against a patio chair. A latent

fingerprint was obtained from the removed kitchen screen, and

a fingerprint expert identified the print as belonging to

defendant.

Inside the apartment, officers found a receipt for a Bohsei

portable television but did not locate the accompanying

television. They contacted the manufacturer and received a

copy of the warranty paperwork, including the television’s serial

number. The officers subsequently conducted a parole search of

defendant’s apartment and located the missing television set.

Cavallo’s close friend confirmed she had seen the found

television in Cavallo’s kitchen.

The prosecution read the testimony of three witnesses

from prior trials concerning Cavallo’s ownership of a .22-caliber

handgun, including friend Richard Canniff. Cavallo had told

Canniff on multiple occasions that he kept a handgun in his

nightstand for protection. Officers did not locate a handgun in

Cavallo’s apartment, but they found an open box of .22-caliber

cartridges on the dining table and a second box in the bedroom

closet. Cavallo’s ex-wife, who was available for the second

penalty phase retrial, testified that he owned a .22-caliber

handgun.

2. Evidence in aggravation

At the second penalty phase retrial, the prosecution

presented evidence of defendant’s rape and assault of Mary S.

as evidence in aggravation under section 190.3, factor (b)

(presence or absence of criminal activity involving the use,

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attempted use, or threats to use force or violence). The

prosecution also presented evidence that defendant had four

prior felony convictions as evidence in aggravation under section

190.3, factor (c) (presence or absence of any prior felony

conviction), and that defendant had committed one additional

previously uncharged aggravating act of criminal violence under

section 190.3, factor (b).

a. Rape and assault on Mary S.

Four days after Cavallo was robbed and murdered, Mary

S. attended mass at her church. She stayed behind in her pew

after mass ended. Defendant entered the church, approached

Mary S., and asked her where the priest’s house was. Defendant

started to walk away after Mary S. provided him directions, but

turned around and walked back toward her holding a gun. He

said, “Keep quiet and you won’t get hurt, and come with me.”

Defendant directed Mary S. into a bathroom at the back of

the church. He fired his gun into the toilet seat and said he

would not hurt her if she remained quiet. He ordered Mary S.

to take off her pants and “[g]et on the toilet,” and then raped

her. After instructing Mary S. to put her pants back on,

defendant asked if she had any money. She said she had only

change. Defendant took her purse and looked inside. He shoved

the purse into Mary S.’s hands and told her to pull her sweater

over her head. Defendant struck Mary S. on the head with his

gun, which broke into pieces.

After putting her sweater over her head, the next thing

Mary S. remembered was “groping” her way out of the back room

and into the church. She approached a woman in the pews and

asked for help. Mary S. was rushed into surgery to treat a

depressed skull fracture. The neurosurgeon opened her scalp,

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removed fragments of bone, and sutured a cut on the dura. The

surgeon counted 10 individual wounds on Mary S.’s skull caused

by both blunt force and sharp force. The wounds were consistent

with having been caused by a semiautomatic pistol. Mary S.

suffered loss of smell, postoperative vertigo, and amnesia

regarding some aspects of the attack.

When Mary S. awoke from surgery, a police detective

showed her more than 50 photographs of possible suspects,

which included a photograph of defendant. Mary S. also

reviewed photographs at her home after she was released from

the hospital. She did not recognize her assailant among the

photographs.

Doctors collected sexual assault evidence at the request of

the police. A criminalist compared the blood types of Mary S.

and defendant and determined they both had type O blood. The

vaginal swab contained a mixture of vaginal fluid and semen,

both of which were contributed by a donor or donors with type

O blood. The criminologist was unable to conclude whether

defendant was the source of the semen.

The handgun’s broken pieces, some of which had traces of

human blood, were found at the scene. Officers found and lifted

at least one latent fingerprint on the gun’s magazine. A

fingerprint expert concluded that defendant’s prints matched

those found on the magazine.

The criminologist compared the cartridges found in the

magazine to the live ammunition recovered from Cavallo’s

apartment. He found that all the cartridges had been

manufactured by the Federal Cartridge Company with no

discernable difference in type, caliber, or overall physical

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characteristics. The letter “F” logo on all of the bullets appeared

to have been marked by the same tool.

b. Stabbing of Verna O.

In 1978, Verna O. met defendant when she was working

as a janitor at a Sonoma hospital. Sometime after that, he

moved in with her and they developed a relationship. About two

weeks later, Verna O. asked defendant to leave because of his

controlling and threatening behavior. He had previously told

her that he would decapitate her children and grandchildren if

she “did anything against him.”

In early December 1978, defendant, Verna O., and her

friend, Lisa, were at home. Verna O. and Lisa prepared to leave

the house because defendant had previously asked Verna O. not

to be home that evening, when his friends were coming over.

Defendant screamed at Verna O., ordered her not to leave the

house, and slapped her. He then retrieved a knife from the

bedroom and stabbed Verna O. in the neck and chest. Defendant

told Verna O. that she “would be dead in two minutes.” Verna

O. asked defendant to leave her alone and let her die in peace.

He went back into the bedroom, and Verna O. staggered outside.

Lisa took Verna O. to the hospital, where Verna O. remained for

several days.

Defendant was convicted of assaulting Verna O. with a

deadly weapon (former § 245, subd. (a)(1)).

c. Assault on Thomas Scott

The prosecution read prior testimony from Thomas Scott,

who was deceased at the time of the second penalty phase

retrial. Scott was housed with defendant in a state medical

facility in 1973. One evening, Scott was in bed when defendant

started yelling and called Scott a vulture, accusing him of owing

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defendant a jar of coffee and cigarettes. Defendant hit Scott

with a chair, knocking him unconscious. Scott received stitches

on his chin and suffered permanent nerve damage to his left eye.

Defendant was convicted of assault with a deadly weapon

while confined in state prison (§ 4501).

d. Attack on Officer Laughlin and prison escape

After the assault on Scott, defendant was incarcerated at

a correctional facility in Chino. In April 1974, Correctional

Officer Steven Laughlin supervised defendant and two other

inmates while they worked on landscaping in an area between

the prison building and the fencing surrounding the institution.

One of the inmates struck Laughlin from behind, hitting him in

the head and causing him to fall. As Laughlin tried to stand up,

defendant hit him in the face multiple times and knocked him

back to the ground. The first inmate walked away and remained

seated nearby until the end of the incident, but the second

inmate and defendant dragged Laughlin to the side of the

building, tied him up, gagged him, and continued to hit him.

Laughlin saw defendant and the second inmate run toward the

fence and climb over. Laughlin was taken to a local hospital,

where he received 19 stitches on his face and head.

Defendant was apprehended within 24 hours. He pleaded

guilty to committing an escape with force (§ 4530, subd. (a)), and

was sent to a state hospital for treatment.

e. Attempted murder and witness threat on

Florence M.

In September 1971, defendant moved in with his half-

brother, Priestley M., and Priestley’s wife, Florence M. At the

time, Florence M. was several months pregnant and on

maternity leave.

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Some months later, Florence M. was at home talking on

the phone when defendant asked her to hang up because he

needed to make a phone call. She responded that he could use

the phone, but she wanted to finish her conversation

first. Defendant approached Florence M. holding a large

kitchen knife and stabbed her numerous times. He also struck

her in the face and head with his fists. Florence M. curled up on

the floor and tried to shield her stomach. Using the knife,

defendant wounded her multiple times on her face and twice on

her legs. Florence M. tried to stop him by grabbing the blade

with her right hand, causing a deep cut that left a significant

scar. She managed to get away and crawl from the bedroom to

the living room before collapsing. Defendant initially ignored

Florence M. but then returned and repeatedly stabbed her in the

back. The knife broke into pieces while defendant was stabbing

her. Defendant left the room to get a new knife. Priestly arrived

home as defendant was returning with a steak knife. Defendant

fled the house when he saw his brother.

Florence M. had surgery to repair the wounds on her back,

hand, forehead, and eyebrow. She spent eight days recovering

in the hospital.

Several days after the attack, a California Highway Patrol

(CHP) officer stopped defendant for a traffic violation and

arrested him for possession of a stolen vehicle. Defendant told

the officer that he thought he killed his pregnant sister-in-law

by stabbing her from the neck down to the stomach. He claimed

that the assault occurred during an argument about her “coming

on to him.”

Defendant was arrested and ultimately pleaded no contest

to attempted murder in exchange for dismissal of the remaining

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charges. At the second penalty retrial, the prosecution

presented evidence that defendant called Florence M. after his

arrest and threatened to harm her if she testified against him.

Florence M. and Priestly visited defendant while he was

receiving mental health treatment to regain competence to

stand trial in an unrelated offense. Defendant did not apologize

to Florence M. or ask about her baby, who had survived the

attack and was a toddler at the time.

B. Defense Evidence

The defense focused on five themes: lingering doubt

regarding defendant’s participation in the homicide; the effects

of defendant’s childhood and background on his behavior; the

failure of the juvenile court system to help defendant during his

youth; defendant’s mental illness and abnormal brain activity;

and defendant’s positive adjustment to prison.

1. Lingering doubt

Defendant presented evidence to show that James Curry,

one of defendant’s coworkers at Sonoma State Hospital, was

implicated in the Cavallo murder based on his connection to the

Bohsei television that was allegedly taken from Cavallo’s house.

Defendant also presented evidence to suggest that Cavallo did

not own a handgun at the time he was murdered.

Robert Ferroggiaro worked at Sonoma State Hospital in

1979 and knew both defendant and Curry. Ferroggiaro testified

that defendant called him from jail to say that he had purchased

a television from Curry and needed it delivered to his

wife. Curry brought the television to Ferroggiaro at work, and

Ferroggiaro delivered it to defendant’s apartment a few hours

before the parole search. Defendant’s wife called Ferroggiaro

after the search to tell him the television had been seized. She

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told Ferroggiaro that she did not reveal his connection to the

television because she did not want him to get in

trouble. Ferroggiaro contacted law enforcement to explain his

involvement in case his fingerprints were on the television. He

acknowledged on cross-examination that he remained friends

with defendant, and that he had told police officers defendant

was “as sane as anyone.”

Gerald Gourley, a former Federal Cartridge Company

employee and consultant on ammunition and guns, testified

about the process of marking cartridges with a tool called a

bunter. He explained that bunters were made by a tool called a

hob. Gourley further explained that after cartridges are

stamped with the bunter, they are commingled and packed into

boxes. He believed that it was possible to determine whether

two cartridges were struck by a bunter created by the same hob,

and opined that several cartridges depicted in the prosecution’s

exhibits appeared to be struck by a bunter created by the same

hob.

Cavallo’s ex-wife testified that Cavallo had purchased a

.22-caliber revolver, not a semiautomatic handgun, to practice

target shooting with her in the late 1950s. She did not know

whether he kept the revolver after they divorced, or if he had

purchased additional firearms.

2. Family history

Psychologist Addison Somerville testified as an expert

witness concerning the structure, makeup, and migration

histories of African-American families, and regarding the

influence of family on individuals. He interviewed defendant

and three of his 10 siblings to assess certain variables that are

crucial for normal development.

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Dr. Somerville testified that defendant was born in

Canton, Mississippi, but moved at age two with his family to

Detroit, Michigan to live with McClenton, the oldest of his

siblings. Defendant showed physical signs of malnutrition

between the ages of three and four, but his family did not

recognize the problem. Their stepmother was often gone for long

periods of time, and left defendant and his siblings with minimal

food. McClenton physically punished defendant by stripping

him, beating him with a belt, slapping him, and bouncing his

head on the floor.

Defendant did not know his father. Dr. Somerville opined

that the lack of parental bonding created emotional deprivation,

anxiety, and feelings of rejection. By age six, defendant was

stealing food and hiding it in the basement. He used a collection

container for a disabilities charity to collect money, which he

kept to buy food for his family. At ages eight and nine,

defendant often missed school because he was working odd jobs

to help take care of his sisters. Defendant and his siblings

frequently had only biscuits to eat and were told to drink a lot

of water. Dr. Somerville opined that lack of food and consistent

interactions at school had a tremendous impact on defendant’s

social development. Defendant had his first sexual encounter at

age eight and had engaged in casual relations since then. He

started smoking marijuana at age 10 and started using alcohol

around the same time. Defendant’s sister, Mary Lee, took in

defendant and his siblings but struggled to support them

financially. One of the sisters resorted to prostitution to secure

money for food.

Dr. Somerville concluded that defendant’s “early life

centered around survival, and he seems to have developed a

total lifestyle which is characterized by self-concern.” He opined

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that defendant was required to learn a variety of defenses which

enabled him to experience minimal guilt or remorse, and that

he lacked the confidence to attempt to change his behavior or

attitudes. Defendant acted in an impulsive and unpredictable

manner, denied his behavior when confronted, and was unable

to form close relationships or trust people. Dr. Somerville

explained that social, cultural, psychological, and economic

factors all contributed to defendant’s criminal behavior and

believed that defendant needed to be confined to protect society.

Dwayne Martin testified about defendant’s time at

Ypsilanti State Hospital (YSH), a psychiatric facility, in the

early 1960s. Defendant entered YSH in 1961 when he was 12

years old. Martin was defendant’s teacher at the hospital.

Martin explained that the children who came to YSH tended to

be either juvenile delinquents, autistic, or suffering from a

psychotic disorder. Martin opined that defendant fell

somewhere between borderline psychotic and juvenile

delinquent. He did not know whether YSH’s psychiatrist

medicated defendant. Defendant was treated for syphilis upon

arrival at YSH, though Martin did not know how he acquired

the disease.

Martin testified that defendant did well at YSH.

Defendant joined the Boy Scouts, took on a leadership role, and

volunteered to help whenever he could. He was respected by his

peers, treated the staff warmly, and became less aggressive

during his stay. The prosecution read prior testimony from

another YSH teacher, Margaret Yates, who observed that

defendant was motivated and worked hard. He seemed

interested in learning new things and his academic performance

improved. His social interaction also improved, and he took an

interest in caring for the classroom hamsters and goldfish.

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Sometime after he left YSH, defendant was committed to

the Wayne County Youth Home, a juvenile detention facility in

Detroit. Kenneth Peterson, the chief social worker at the home,

testified that defendant had been committed to the state

hospital the previous summer, but faced lengthy delays in

getting transferred. Peterson read from a letter he had sent to

the chief social worker at the hospital, in which he described

defendant as having “constant agitating and irritating

behavior[s]” and being hyperactive, expressing paranoid

thinking, and being involved in delinquent behaviors. Peterson

acknowledged that he had never personally worked with

defendant; rather, he relied on reports from other people when

writing the letter. A psychiatrist who worked with the youth

home also testified that the waiting list for children to receive

mental health treatment was very long and that Caucasian

children were admitted at a higher frequency than African-

American children.

When defendant was 16 years old, he was committed to

the Indiana State Reformatory (the Reformatory) for car theft.

He was initially housed in a minimum security dormitory

outside the institution. He escaped just over two weeks later

and was captured within a day. Defendant was subsequently

transferred to Indiana State Prison after multiple additional

disciplinary reports, including for having a knife in his cell,

assaulting an officer, shouting and yelling on the range, refusing

a direct order, creating a disturbance, and using threatening

and provoking language toward an official. He was released

from the prison in 1971.

A correctional counselor at the Reformatory testified,

describing the institution as a “walled, maximum security

prison.” It housed individuals ranging from 16 to 60 years old

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who were incarcerated for a variety of felony offenses, including

murder. Discipline for a minor offense sometimes involved

standing barefoot on a painted line for hours. Discipline for

more serious offenses could mean receiving a beating from staff

and then being taken directly to the hospital because they

“needed medical attention by the time they got there.”

3. Evidence of mental disease or defect

Six psychiatrists and neurologists, each of whom had

evaluated defendant at various times in his life, testified at the

second penalty phase retrial.

In June 1974, Patton State Hospital (PSH) psychiatrist

James Ramsaran prepared a report concerning defendant’s

competence to stand trial for forcible assault upon

Laughlin. After briefly interviewing defendant, Dr. Ramsaran

concluded that defendant suffered from paranoid schizophrenia

based on self-reported auditory hallucinations. Dr. Ramsaran

opined that defendant did not fully understand the charges

against him and could not assist in his defense. Defendant was

not particularly cooperative or forthcoming during the

interview, and Dr. Ramsaran did not have access to any

previous records.

James Kerns, another psychiatrist at PSH, evaluated

defendant for admission in July 1974. He diagnosed defendant

with paranoid schizophrenia. Dr. Kerns did not know whether

defendant received antipsychotic medication prior to his

admission, but noted that he received medication for about two

months after his admission.

Psychiatrist and neurologist Richard Finner evaluated

defendant at PSH a few days after Dr. Kerns. Dr. Finner agreed

that defendant suffered from schizophrenia, but opined that it

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presented as undifferentiated rather than paranoid, meaning it

presented as several forms of the disorder. Dr. Finner

acknowledged while testifying that his diagnosis could have

been different if he had had more information at the time of his

evaluation.

Psychologist Grant Hutchinson testified that he had

evaluated defendant in 1980 for evidence of brain injury and to

assess personality and emotional function. Dr. Hutchinson

found defendant to be of average intelligence with normal

memory function. He also found no evidence of brain injury,

despite several incidents of head trauma that defendant

described. He did, however, find an atypical personality profile.

The results of the Minnesota Multiphasic Personality Inventory

revealed that defendant scored high on the scales of

schizophrenia, mania, and paranoia. Dr. Hutchinson opined

that defendant might suffer from paranoid schizophrenia in a

chronic, residual phase, meaning it was inactive at the time of

the evaluation. He explained that stress or going off medication

can cause a person’s schizophrenia to become active.

Neurologist Sidney Kurn evaluated defendant before the

second penalty phase retrial. Dr. Kurn’s neurological

evaluation revealed mild abnormalities: defendant did not feel

sensation, such as a pin prick, on the right side of his body as

well as he did on the left side, and reflexes were mildly

depressed in his legs. Dr. Kurn performed a standard

electroencephalogram (EEG), the results of which appeared

normal. A magnetic resonance imaging (MRI) test revealed

abnormalities in defendant’s basal ganglia, an area of the brain

connected with movement and planning motor activity. A

second abnormality appeared in the pons area of the brain,

which is also connected to motor function. Dr. Kurn performed

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a computerized EEG, which analyzes brain activity in a more

advanced manner than a standard EEG. The computerized

EEG showed unusually high alpha brain-wave activity in

defendant’s frontal lobes, which control decision making,

motivation, and judgment. Dr. Kurn explained that this pattern

of brain-wave activity is typically found in the back of the brain.

The computerized EEG also revealed an unusually slow

response to auditory stimulation. The delayed response could

be the result of epilepsy, damage to the brain, or dysfunction in

the neurotransmitters in the brain. Dr. Kurn explained that the

abnormalities he found suggest that defendant’s nervous system

does not work properly, and therefore functions such as

judgment, foresight, and self-control are probably impaired. On

cross-examination, Dr. Kurn acknowledged that another

neurologist performed a similar evaluation — but not an MRI or

computerized EEG — on defendant in 1980 and found no

evidence of neurological impairment or disorder.

Neuropsychologist Robert Bittle testified as an expert on

brain disease and dysfunction. Dr. Bittle did not meet

defendant personally but reviewed several of his psychological

and neurological reports. Dr. Bittle agreed that the MRI

revealed structural abnormalities in defendant’s basal ganglia

and pons regions, likely due to trauma. He opined that people

with abnormal brain activity in the frontal lobes tend to be

hyperactive, emotionally overresponsive, and have low stress

tolerance. He concluded that defendant suffered from antisocial

personality disorder and paranoid schizophrenia.

4. Behavior in custody

Jerry Enomoto, a previous director of the former

California Department of Corrections (CDC), testified as an

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expert concerning corrections and inmate management.

Enomoto reviewed defendant’s CDC file from 1979 through the

time of trial and found only two disciplinary reports. He

believed that defendant had learned to conform to what was

expected of him in prison.

C. Rebuttal Evidence

1. Lingering doubt

Because Curry was unavailable as a witness, the

prosecution read his prior trial testimony to the jury. Curry had

testified that he and defendant worked together at Sonoma

State Hospital in 1978 and 1979. At the end of July 1979,

defendant asked Curry to hold a television for him. Curry

agreed and took the television to his girlfriend’s house. Curry

identified People’s Exhibit 48, a small Bohsei television set, as

being “similar” to the one he held for defendant. Defendant later

asked Curry to return the television, and had Ferroggiaro

retrieve the television from Curry. Defendant’s wife also called

Curry and asked him to return the television. Curry denied

selling the television to defendant.

2. Evidence of mental disease or defect

Psychiatrist Ronald Byledbal evaluated defendant in July

1979 to determine his competency to stand trial on pending

charges for assaulting Verna O. Defendant explained that he

remembered using cocaine and drinking before he argued with

Verna O., but did not recall stabbing her. Defendant told Dr.

Byledbal that if he had stabbed Verna O., he would have “done

a better job” by getting rid of the weapon and leaving town.

Dr. Byledbal reviewed defendant’s juvenile records,

several psychological and neurological reports, and transcripts

of prior testimony in preparation for his testimony in the trial.

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He concluded that defendant was not a paranoid schizophrenic

but did suffer from antisocial personality disorder. Dr. Byledbal

testified that it was his view that the two PSH doctors who

diagnosed defendant with paranoid schizophrenia were

incorrect because they had no knowledge of defendant’s prior

history. Dr. Byledbal opined that a doctor cannot make an

accurate diagnosis of some patients without knowing any

background information from a source other than the person,

and explained that it is easy to “play paranoid schizophrenic

very well” and fool an evaluator.

Dr. Byledbal testified that defendant’s history was typical

of antisocial personality disorder, the common characteristics of

which are hyperactivity, attempting to manipulate and control

people, lying, and refusing to accept responsibility while

blaming others. He stated that a person with antisocial

personality disorder may have aggressive tendencies, but not all

antisocial people are aggressive. He explained that people with

antisocial personality disorder can become psychotic under the

influence of drugs or alcohol, but he did not believe that was the

case with defendant.

Psychiatrist Donald Apostle also evaluated defendant in

July 1979 to determine his competency to stand trial on pending

charges for assaulting Verna O. Before interviewing defendant,

Dr. Apostle reviewed the sheriff’s report of the incident, Verna

O.’s hospital records, and CDC records. Defendant told Dr.

Apostle that he had no memory of the incident and that “there

is no way that he could have stabbed this particular woman.”

Defendant described two prior incidents in which he had

“blacked out,” including one at PSH and one at home with his

wife.

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Defendant recounted to Dr. Apostle a similar account of

the history described earlier: He moved to Detroit at age two,

was raised by a stepmother and believed his own parents to be

dead, and that he had an older stepbrother and younger

stepsister. He had problems in school and stole things to help

support his stepmother. He was sent to a state hospital in

Michigan at age 10 for armed theft, where he stayed until age

13. He was in and out of juvenile hall until he stole a car and

drove from Michigan to Indiana, where he was arrested and

incarcerated until 1971. Upon release, he was paroled to the

custody of his brother in California, after which he attacked

Florence M. During the interview, defendant told Dr. Apostle,

“I will be honest with you, Donald, I learned how to get around

in prison. I learned how to be a sociopath.” Defendant also said

that he would “never admit this present offense,” because, he

asserted to Dr. Apostle, it was the first time he had “ever fought

a case because he just didn’t remember doing it.”

After reviewing defendant’s neurological and psychiatric

reports, as well as his juvenile court records, Dr. Apostle opined

that defendant did not suffer from paranoid schizophrenia or

any other mental illness. He agreed that defendant suffered

from antisocial personality disorder based on defendant’s long

history of criminal behavior, childhood acting out, lack of taking

responsibility for his actions, belittling of Verna O., and the

claim that he learned how to be a sociopath in prison.

II. PENALTY PHASE ISSUES

A. Denial of Faretta Motion

Defendant contends the trial court committed reversible

error when it denied his request for self-representation under

Faretta v. California (1975) 422 U.S. 806 (Faretta), made two

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weeks prior to the scheduled trial date. We conclude the trial

court properly denied defendant’s motion as untimely.

1. Procedural history

Defendant’s first penalty phase retrial ended in a mistrial

on February 11, 1991. Four days later, defendant’s attorney,

Sonoma County Deputy Public Defender Elliot Daum, declared

a conflict. Daum expressed uncertainty whether the entire

office had a conflict and asked that the matter be continued. The

trial court found a conflict as to Daum, but not concerning the

entire public defender’s office.

In May 1991, the matter was transferred back to

Sacramento County Superior Court for trial, which was initially

set for September but was later rescheduled for November. At

a hearing in August 1991, the court was informed that Deputy

Public Defender Charles Ogulnik had been assigned as

defendant’s counsel, and that Donald Masuda, a local attorney

who had done some work on the first penalty phase retrial, was

appointed as Keenan counsel. (Keenan v. Superior Court (1982)

31 Cal.3d 424, 428.) In mid-November, defense counsel sought

and obtained a continuance of the trial date to June 22, 1992.

On June 8, 1992, two weeks before trial was scheduled to

commence, defendant filed2 several written motions in propria

persona: to proceed in propia persona under Faretta, to

substitute counsel pursuant to People v. Marsden (1970) 2

Cal.3d 118, for a continuance, and for discovery of documents in

2

Defendant had one week earlier sent these motions to

Masuda, asking him to file the pleadings for him because

Masuda was “close to the court and [i]t would take [defendant]

at least two weeks to get them certified and then mailed to the

court.”

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a California State Bar disciplinary proceeding relating to

Ogulnik. The motion for a continuance stated that “[d]efendant

has removed counsel of record and needs considerable time to

rev[ie]w documents, investigate possible defense strateg[ie]s,

interv[ie]w attorneys for advisory counsel pos[i]tion, as well as

others that will [be] part of the defense team[,]” and “[t]o deal

with any and all matters p[er]taining to putting forth a

creditable [sic] defense.” The motion also stated that “defendant

will require a substan[ti]al amount of time to rev[ie]w

documents to determine what creditable [sic] defense could be

fastened from it.”

The prosecution opposed defendant’s Faretta motion,

arguing it was untimely. The prosecution also opposed the

motion to continue.

At a pretrial hearing on June 12, trial counsel indicated

that they were ready to proceed with trial as scheduled. On

June 22, a trial judge was assigned to the case, and the parties

agreed to wait to argue defendant’s motions until they were

before the assigned judge. On July 6, the assigned trial judge

heard defendant’s Marsden motion in camera, which also

included discussion relevant to the Faretta motion. Defendant

explained that Ogulnik had promised not to contact family

members without his permission, but did so anyway and then

lied to him about it. He also felt there were better defense

strategies than the “sympathy” defense Ogulnik had planned,

and instead preferred to attack the guilt phase evidence.

Defendant agreed that Ogulnik had recently put a great deal of

effort into investigating the guilt phase evidence. He said that

he and Ogulnik had a personality conflict at the time he filed

the motion, but the conflict had since been

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resolved. Nonetheless, he asserted, he still wanted to represent

himself.

The court resumed the Marsden hearing the following

day. The court asked defendant to explain his statements that

he had not been permitted to assist in his defense, and had not

been provided with copies of materials that the defense had

obtained or gathered. Defendant replied that he believed the

defense evidence to date was “not as solid” as the prosecution’s,

and that “certain investigations or certain research” was either

not being done or was being done late in the process. Defendant

acknowledged his defense team’s investigative efforts had

increased substantially since the motion had been filed and a

little before then, too, but he believed the investigation “should

have been done several months earlier.” He also acknowledged

that his attorneys were keeping him better informed than they

had previously been.

Ogulnik explained that there might have been an

“innocent misunderstanding on [his] part” as to whether he had

defendant’s permission to contact family members. Ogulnik

knew that defendant had expressed to his previous counsel

similar concerns regarding contacting family, but Ogulnik

believed that he and defendant had resolved that with a meeting

“early on” in the representation. Ogulnik’s investigator, Gary

Dixon, shared Ogulnik’s understanding of the situation. When

the court asked Ogulnik about defendant’s claim that the team

got a late start with the investigation, he explained that given

the age of the case and the prior reversals, the team decided to

reinvestigate and “take nothing for granted.” Ogulnik explained

that locating witnesses took a long time, and he understood why,

to defendant, it appeared that they did not investigate matters

such as lingering doubt, bias, or prejudice. He also explained

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that he was obligated under the law to investigate the possibility

of a “psych defense,” but defendant found it to be unnecessary

and strongly objected.

Defendant told the court, “I know that right now what I

know is to be the best defense for me, and what is not going to

work is my major concern. I discussed it with Mr. Ogulnik. He

wants to go this way. I want to go this way. He wants to

investigate this. I don’t think it’s worth anything. . . . It’s my

life, see. . . . It’s my decision as to how my life should be

presented to this Court or to a jury, see. Because all good

intentions, I know he probably feel bad if I die, but badness ain’t

going to save me.” He acknowledged that tactical disagreements

as to how the case should be tried served as the basis for his

motion. The court denied defendant’s Marsden motion.

The court addressed defendant’s Faretta motion in open

court on July 9, one month after defendant had filed it. The

court noted defendant’s simultaneous request for a continuance

and asked how much time he would need to prepare for trial.

Defendant responded that it would be premature for him to give

a specific time period. Masuda suggested that defendant would

need about a year to prepare, and the court agreed that “many

months at the minimum would be required” for defendant to

prepare to represent himself. The court expressed concern

about the timeliness of the motion and requested the district

attorney leave the room so it could continue the hearing in

camera.

The court asked defendant if he had considered filing a

Marsden or Faretta motion prior to doing so in early June.

Defendant explained that he had considered such filings the

previous September, but decided not to do so because he and his

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

attorneys had resolved their differences and “worked out a

foundation from which we would confer and how we would from

that point investigate and search out new avenues of approach

to the case.” He further explained that his previous appellate

attorney knew he was having problems with Ogulnik and Dixon

but encouraged him to “sit back and be a lot more patient, and

see how things develop” with the investigation and

communications.

Defendant explained that he again considered filing a

Faretta motion in January or February 1992, but Masuda and

Sonoma County Public Defender Marteen Miller had

encouraged him to be patient and wait a few months to see if

matters improved. Defendant stated that “nothing [has]

changed to the point I felt that I would be comfortable, and I still

felt best that I could represent myself, so I filed it. That was the

reason for the delay both times. It was good advice from good

attorneys, and I waited.” He continued, “The only reason I

delayed . . . was as a result of people asking me because they felt

that I was being somewhat over judgmental as to Mr. Ogulnik

and everybody else involved in [the] case.”

The court stated that it needed more time to review

relevant law and continued the hearing until mid-July. The

court held another in camera hearing to ask defendant more

questions regarding both his Marsden and Faretta motions. In

his Faretta motion, defendant had alleged that counsel refused

his request to investigate “issues of grave importance” and

“wasted over five months of valuable time before starting any

investigation into any matter of concern to him.” The court

asked defendant to elaborate on his allegations. Defendant

explained that another person had a gun similar to the one

found at the church a few days after the incident, and he

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

believed that person’s gun could have been the weapon used to

assault Mary S. His previous attorneys did not undertake such

an investigation. He asked Ogulnik and Dixon to review the

matter; they completed the investigation three weeks prior,

although “to a degree unsatisfactory” to defendant. He also

requested DNA analysis be done on the blood found on the gun

located at the church, but was told “it was too little to do a

special analysis.” He additionally believed that counsel could

have worked harder to locate witnesses. Defendant

acknowledged that he and his attorneys had different

viewpoints concerning what was important to investigate, but

he believed that Ogulnik had agreed to also focus on what was

important to defendant. The court reaffirmed its denial of the

Marsden motion but did not decide the Faretta motion.

On July 21, 1992, the court denied defendant’s Faretta

motion as untimely. The court acknowledged that most case law

involving untimely Faretta motions involved motions made the

night before or the day of trial, but cited People v. Ruiz (1983)

142 Cal.App.3d 780 as involving an untimely motion made six

days before trial. The court explained that when assessing

timeliness, it needed to consider the periods of time preceding

the trial during which defendant had the opportunity or ability

to evaluate his dissatisfaction with counsel. The court noted

that Ogulnik had represented defendant since July 1991 and

found “no persuasive reason why” defendant had not moved

“substantially earlier in the proceedings” to represent himself.

The court further noted that defendant’s complaints against

Ogulnik were “in many rather striking ways similar to the

objections he had against the earlier attorney, Mr. Daum.”

Given that defendant could have filed the motions sooner, the

court stated that “the strong suspicion arises that the whole

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PEOPLE v. JOHNSON

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

process, at least, has an element in it of interrupting the orderly

processes and bringing about delays.” It also reiterated “that a

substantially significant time period would be required” for

defendant to prepare for trial, resulting in a disruption of trial

for an extended period. The trial court found, therefore, that the

Faretta motion was untimely.

The court went on to decide whether to exercise its

discretion to grant defendant’s untimely motion using the

factors set forth in People v. Windham (1977) 19 Cal.3d 121, 127

(Windham) (trial court has discretion to grant or deny untimely

Faretta motion based on quality of counsel’s representation,

defendant’s prior proclivity to attempt to substitute counsel,

reasons for defendant’s request, anticipated length and stage of

proceedings, and disruption and delay that might reasonably be

expected to follow granting Faretta motion). The court observed

that Ogulnik and Masuda were qualified and experienced

attorneys, and that their representation of defendant was

“satisfactory and of good quality.” It noted that defendant had

a prior history of substituting counsel; he had filed Marsden

motions against Daum in January and April 1991. The court

reiterated that it found defendant’s reasons for his prior

Marsden motions to be unpersuasive and his criticisms of

counsel unjustified. Based on these factors, the court declined

to grant the untimely motion.

Regarding the length and stage of proceedings, the court

stated that preparation for the case, involving reviewing

transcripts of two trials and voluminous police reports, would

take a long time. It stated: “So, it’s a lengthy proceeding, and

here we are on the eve of trial with a motion to first replace

counsel and then to represent himself, with no persuasive

explanation given for this delayed filing. As I mention, many of

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PEOPLE v. JOHNSON

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

the matters complained of have pre-existed.” The court noted

that the issues between defendant and counsel had existed over

a period of months and were “not new events that might explain

why someone has felt the need to make this motion as to what

amounts to about the eleventh hour.” Finally, the court noted

that the disruption and delay that might reasonably be expected

to follow would be “considerable” and “certainly would interrupt

any kind of orderly litigation of this case.” It acknowledged that

defendant was not responsible for the ten-year hiatus while the

case was on appeal, but stated that nonetheless “this case is

vulnerable in the sense that years are passing affecting the

availability of witnesses and the recall of witnesses and if this

case has to go off and start over again for the defendant to

prepare himself, the delay and the loss of witnesses could well

continue. So, the People run the risks of being significantly

prejudiced if this case is continued for a significant period of

time.”

After additional comments from defendant, the court

asked Masuda to address on the record defendant’s allegations

that he delayed filing a Faretta waiver because Masuda had

asked him to wait. During an in camera hearing, Masuda

explained that defendant wrote him a series of letters

expressing concern about Ogulnik’s representation. Masuda

encouraged defendant to wait because every attorney prepares

for trial differently “and so he shouldn’t be judgmental. He

should wait and see to see what kind of results would come up

and see what efforts were being done.” Masuda said he made

“sincere efforts” to calm defendant down and assure him that

“everything was being done that should have been done.” He

agreed that defendant’s relationship with Ogulnik had had its

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PEOPLE v. JOHNSON

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

ups and downs, but believed it was better than defendant’s

relationship with his previous attorney, Daum.

Defendant explained that in April he and Ogulnik had “hit

a snag that wasn’t going to be moved because he had his way of

wanting to do it. I had my way of feeling how I think it should

be done, and we couldn’t get along.” Defendant had written a

letter to Public Defender Miller expressing his dissatisfaction,

and Miller encouraged defendant to wait so that Miller could try

to “work it out.” Masuda and defendant agreed that they never

had a conflict between themselves.

Voir dire commenced on July 28. Shortly after jury

selection began, the court acknowledged that it had received

additional documentation related to defendant’s Faretta motion,

including correspondence regarding a State Bar disciplinary

proceeding involving Ogulnik. The court stated, “I do notice,

though, that this is an issue you did not really raise when you

made your [p]ro [p]er motion, that his problems with the State

Bar affected his competence to represent you in this case. Is

that — am I correct in that observation or am — I want to give

you an opportunity to comment on what struck me.” Defendant

replied, “I have no further comment about it. It was simply to

assert to the [c]ourt. There is no comment needed.” The court

stated that the documents did not cause it to reconsider its

denial of defendant’s untimely Faretta motion.

2. Analysis

In Faretta, the United States Supreme Court made clear

that a criminal defendant has a federal constitutional right to

represent himself if he voluntarily and intelligently so chooses.

(Faretta, supra, 422 U.S. at pp. 835-836.) A trial court must

grant a defendant’s request for self-representation if the request

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is timely and unequivocal, and the defendant makes his request

voluntarily, knowingly, and intelligently. (Windham, supra, 19

Cal.3d at pp. 127-128.) If a self-representation motion is

untimely, however, it is “within the sound discretion of the trial

court to determine whether such a defendant may dismiss

counsel and proceed pro se.” (Id. at p. 124.)

We have long held that a Faretta motion is timely if it is

made “within a reasonable time prior to the commencement of

trial.” (Windham, supra, 19 Cal.3d at p. 128.) In Windham, we

explained that the “reasonable time” requirement “must not be

used as a means of limiting a defendant’s constitutional right of

self-representation,” but rather to prevent the defendant from

“misus[ing] the Faretta mandate as a means to unjustifiably

delay a scheduled trial or to obstruct the orderly administration

of justice.” (Id. at p. 128, fn. 5.) The high court has

acknowledged that most lower courts require a defendant to

make a self-representation motion “in a timely manner,” which

reflects that “the government’s interest in ensuring the integrity

and efficiency of the trial at times outweighs the defendant’s

interest in acting as his own lawyer.” (Martinez v. Court of

Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 162.)

“[W]e have held on numerous occasions that Faretta

motions made on the eve of trial are untimely.” (People v. Lynch

(2010) 50 Cal.4th 693, 722 (Lynch), abrogated on other grounds

by People v. McKinnon (2011) 52 Cal.4th 610; id. at pp. 722-723,

citing People v. Frierson (1991) 53 Cal.3d 730, 742 [Faretta

motion made two days before trial was made “on the eve of trial”

and was untimely], People v. Valdez (2004) 32 Cal.4th 73, 102

[Faretta motion made “moments before jury selection was set to

begin” deemed untimely], People v. Horton (1995) 11 Cal.4th

1068, 1110 [Faretta motion made on the date scheduled for trial

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deemed untimely], and People v. Clark (1992) 3 Cal.4th 41, 99-

100 [Faretta motion made several days after case had been

continued day to day “in the expectation that the motions would

be concluded and jury selection set to begin at any time,” deemed

“in effect the eve of trial” and untimely].) We have also held that

Faretta motions made long before trial are timely. (Lynch, at p.

723, citing People v. Halvorsen (2007) 42 Cal.4th 379, 434

[Faretta motion made seven months before penalty retrial jury

selection commenced was timely]; People v. Stanley (2006) 39

Cal.4th 913, 932 [Faretta motion made one year before the

preliminary hearing and nearly two years before trial was

timely].) “[O]ur refusal to identify a single point in time at

which a self-representation motion filed before trial is untimely

indicates that outside these two extreme time periods, pertinent

considerations may extend beyond a mere counting of the days

between the motion and the scheduled trial date.” (Lynch, at

p. 723.)

In Lynch, we pointed out that “in the related context of the

Sixth Amendment right to select counsel of one’s choice, which

is also subject to automatic reversal if erroneously denied, the

high court has ‘recognized a trial court’s wide latitude in

balancing the right to counsel of choice against the needs of

fairness [citation], and against the demands of its calendar.’ ”

(Lynch, supra, 50 Cal.4th at p. 725, citing United States v.

Gonzalez-Lopez (2006) 548 U.S. 140, 152.) We observed that “a

trial court may ‘make scheduling and other decisions that

effectively exclude a defendant’s first choice of counsel’ ” (Lynch,

at p. 725, citing Gonzalez-Lopez, at p. 152), and “perceive[d] no

principled basis on which to deny a trial court the opportunity

to similarly consider the needs of fairness and the demands of

its calendar in ruling on a request for self-representation, or to

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accord the defendant seeking self-representation any greater

liberty to do so than the defendant seeking to select retained

counsel.” (Lynch, at p. 725.)

Relying on the federal high court’s cases as well as our

own, we concluded that a trial court may consider the totality of

the circumstances in determining whether a defendant’s

pretrial Faretta motion is timely. (Lynch, supra, 50 Cal.4th at

p. 726.) We held that a trial court may properly consider “not

only the time between the motion and the scheduled trial date,

but also such factors as whether trial counsel is ready to proceed

to trial, the number of witnesses and the reluctance or

availability of crucial trial witnesses, the complexity of the case,

any ongoing pretrial proceedings, and whether the defendant

had earlier opportunities to assert his right of self-

representation.” (Ibid.)

In Lynch, the trial court denied as untimely defendant’s

two Faretta motions, the first filed approximately five weeks

before trial was scheduled to begin,3 the second motion three

weeks later. (Lynch, supra, 50 Cal.4th at p. 714.) Based upon

the totality of the circumstances, we concluded that the trial

court’s denial of the defendant’s Faretta motions was proper.

(Id. at p. 726.) We observed that this was a complicated case

involving three counts of murder and two counts of attempted

murder, each involving a separate incident and carrying with it

a possible death sentence. (Ibid.) We also noted that discovery

was voluminous, and trial preparation complex. (Ibid.) The

prosecution anticipated calling at least 65 witnesses at the guilt

3

Pretrial motions ultimately commenced eleven days after

the scheduled trial date in Lynch. (Lynch, supra, 50 Cal.4th at

p. 721.)

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phase, many of whom were elderly. (Id. at pp. 726-727.) We

also pointed out that at the time of the Faretta hearing, held

approximately two weeks from the expected start date of

pretrial motions, defense counsel had indicated that they were

ready for trial. (Ibid.) We remarked that the case, which had

endured significant delay, was finally nearing resolution, and

that the defendant admitted that he would need additional time

to investigate and prepare his case and could not estimate how

much additional time he would require until he reviewed the

discovery and other materials. (Id. at pp. 727-728.)

We did not articulate in Lynch what standard a reviewing

court should apply in determining whether a defendant’s

request for self-representation is timely. Defendant urges us to

apply de novo review in deciding whether his Faretta motion

was timely filed. We need not decide whether de novo review or

a more deferential standard is appropriate, however, because

defendant’s claim fails under either standard.

Based on our independent review of the record and after

taking into consideration the totality of the circumstances under

Lynch, we conclude the trial court properly denied defendant’s

Faretta motion as untimely. As noted above, defendant filed his

Faretta motion two weeks before the scheduled trial date.

Defendant indicated in his accompanying motion for a

continuance that he would “need[] considerable time” to review

documents, investigate possible defense strategies, and prepare

for trial. Defense counsel estimated defendant would need a

year to be trial ready and the court agreed that “many months

at a minimum” would be necessary based on the record.

Meanwhile, trial counsel advised the court on June 12 that they

were ready to proceed with trial as scheduled.

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

Moreover, defendant had numerous opportunities to

assert his right of self-representation earlier.4 Ogulnik had

been appointed approximately eleven months prior to defendant

filing his Faretta motion. The trial court reasonably concluded

it had a “strong suspicion,” given the amount of time defendant

and Ogulnik had worked together and the similarities in

defendant’s complaint against Ogulnik and his prior attorney,

that defendant brought the Faretta motion with the purpose of

interrupting the process and creating delay. (People v. Marshall

(1997) 15 Cal.4th 1, 26 [Faretta motion may be denied based on

evidence that defendant’s purpose was to delay proceedings].)

In addition, because the case had been on appeal and the

first penalty retrial had ended in a mistrial, more than 13 years

had elapsed between the crimes against Cavallo and the second

penalty phrase retrial. The second penalty retrial, which

carried a possible death sentence, was inherently complex,

involving evidence of the circumstances of the charged offenses

as well as two uncharged acts of violence and four separate prior

felony convictions. The prosecution anticipated calling 20

witnesses and observed that several were no longer available.

As the trial court noted, the availability of witnesses, as well as

witness recall, had declined and would continue to do so should

there be additional delay. Although the lengthy delay in this

case cannot be attributed to defendant, “he did not thereby

4

Although defendant seems to imply that his decision to

represent himself was based, in part, on his discovery of the

State Bar disciplinary proceeding against Ogulnik, defendant

did not include this information in his Faretta motion or raise it

during the hearings on the motion, and, as observed earlier, he

declined the court’s invitation to elaborate on why he failed to

do so.

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escape any responsibility for timely invoking his right to self-

representation.” (Lynch, supra, 50 Cal.4th at p. 727.)

Defendant asserts that most federal courts have concluded

that a Faretta motion is timely as a matter of law if it is made

before trial, unless the motion is made for the purpose of delay.

(See, e.g., Fritz v. Spalding (9th Cir. 1982) 682 F.2d 782, 784;

U.S. v. Lawrence (4th Cir. 1979) 605 F.2d 1321, 1325; Chapman

v. U.S. (5th Cir. 1977) 553 F.2d 886, 894.) Although we

recognize that some federal appellate decisions have adopted a

different approach, we see no compelling reason to reconsider

the standard set forth in Lynch at this time. Indeed, in Lynch

we considered and rejected the idea of a bright-line rule,

explaining that “nothing in Faretta or its progeny either

expressly or implicitly precludes consideration of factors other

than the number of weeks between the self-representation

motion and the trial in determining timeliness . . . .” (Lynch,

supra, 50 Cal.4th at p. 725.) We further note that sister states

have also adopted a timeliness test consistent with Lynch. (See,

e.g., Lyons v. State (Nev. 1990) 796 P.2d 210, 214 [if Faretta

request can be granted without need for a continuance, request

should be granted; otherwise, request may be denied as

untimely if there is no reasonable cause to justify the late

request]; Guerrina v. State (Nev. 2018) 419 P.3d 705, 709,

quoting Lynch, supra, 50 Cal.4th at p. 724 [Faretta “ ‘nowhere

announced a rigid formula for determining timeliness without

regard to the circumstances of the particular case’ ”].)

We therefore conclude the trial court did not err when it

determined that defendant’s Faretta motion was untimely and

denied it on that basis.

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B. Batson/Wheeler Motion

Defendant contends the trial court erred when it found he

had not established a prima facie case of discrimination after

the prosecutor used three of his first 15 peremptory challenges

to strike three of the five African-American jurors who had been

seated. (See Batson v. Kentucky (1986) 476 U.S. 79, 89 (Batson);

People v. Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler).) We

conclude there was no error.

1. Procedural background

Before conducting individual voir dire, the trial court

instructed all prospective jurors to complete an eleven-page

written questionnaire and, if applicable, a hardship form.

Following hardship excusals, prospective jurors returned for

individual questioning over the course of several days.

Prior to preliminary voir dire of prospective juror Kenneth

M., who was African-American, the prosecutor revealed that he

had run a computer criminal history check “on some of the

jurors” and discovered that Kenneth M. had two misdemeanor

convictions. The prosecutor observed that Kenneth M. had

checked “no” on his jury questionnaire in response to the

question asking if he had ever been accused of or arrested for a

crime. The prosecutor requested the court to examine the juror

for misconduct and dismiss him for lying. Defense counsel

relayed that he had previously asked the prosecutor if he had

checked all the jurors, and the prosecutor had said no. Defense

counsel wondered whether the prosecutor had run a criminal

record check on only African-American prospective jurors. The

prosecutor responded, “I don’t think I am obliged to answer that

inquiry.” Defense counsel said, “I am just kind of curious why

he would run a check on Kenneth [M.] when his questionnaire,

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

itself, doesn’t indicate that he would be lying or lead one to

suspect that maybe he’s misinforming the Court or us with

respect to his background. I just find it very curious.”

The court agreed that it could not compel the prosecutor

to explain his reasoning, but stated that the prosecutor’s state

of mind would be relevant if a Batson/Wheeler challenge arose

later. When defense counsel explained that the defense did not

have access to the computer data that the prosecutor had, the

prosecutor replied that he would be happy to check on anybody

the defense might request. Defense counsel replied, “[Y]our

Honor, our request would be that we just have the information

as to all the jurors that [the prosecutor] ran . . . and the

information that he obtained.” The prosecutor explained that

he did not have time to check on every juror, but rather, was

“going to check certain jurors when they spark [his] interest.”

He reiterated that if a juror sparked the defense’s interest, he

would run a check on the requested juror.

Defense counsel stated that “a Wheeler motion is always

something that could occur in any case of this nature, and I

think we should always be aware of what’s going on and what’s

happening with respect to any potential Wheeler motion that

may be made, and I don’t see why [the prosecutor] would object

to informing us as to which jurors he ran a check on so that we

have the same information with respect to those jurors.” The

prosecutor responded that “a Wheeler motion requires that there

be made some kind of prima facie case. That’s why, frankly, for

the record, I am objecting to disclosing why I checked certain

jurors and which ones I checked because they have to make a

prima facie case. The fact that I checked one and found a record

doesn’t make a prima facie case.” The trial court agreed with

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the prosecutor, stating, “That’s what I perceive also, and that’s

why I haven’t agreed to order such disclosure.” It ultimately

directed the prosecutor to disclose “any juror that he ran and in

running gained some information that has not been clearly

disclosed by that juror in the questionnaire or here in court.” It

also permitted defense counsel to submit particular names in a

sealed envelope for background checks. After both sides

questioned Kenneth M., the prosecutor withdrew his request to

dismiss him from the jury for misconduct and both sides passed

for cause.

Jury selection began the following afternoon. The jury

pool consisted of 56 people, seven of whom identified themselves

on the jury questionnaire as African-American or Black, the

same race as defendant.

After the prosecutor exercised his initial peremptory

strike, the first African-American juror, Danella D., was seated.

The prosecutor exercised three peremptory challenges and then

passed. The defense exercised two challenges, and the

prosecutor struck another juror. After the defense used another

peremptory challenge, the second African-American juror,

Hazel D., was seated. The prosecution again accepted the panel

as constituted. After each side exercised additional challenges,

the third African-American juror, Lois G., was seated. Lois G.

was absent from proceedings that day “by understanding and

agreement,” and still available for jury duty. The defense

passed, and the prosecutor used his tenth peremptory challenge

to strike Lois G. Defense counsel then raised a Batson/Wheeler

motion. The court denied the motion, noting that the prosecutor

had exercised one of its 10 peremptory challenges against an

African-American juror, and two African-American jurors were

still seated in the box.

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Voir dire continued, and the prosecutor exercised two

more peremptory challenges. The fourth African-American

prospective juror, Sharon H., was seated. After the defense

passed, the prosecutor exercised his thirteenth challenge to

excuse Sharon H. The defense exercised another challenge and

the prosecution passed. Both sides exercised additional

challenges before Shanna H., the fifth African-American

prospective juror was seated. The prosecutor used his fifteenth

challenge to excuse Shanna H.

The defense made a second Batson/Wheeler motion,

arguing that the prosecutor had excused three African-

American jurors, each of whom had indicated on her

questionnaires an ability to vote for the death penalty. The

prosecutor acknowledged that he had excused three African-

American jurors but argued that he “left two. I don’t think that

quite reaches a prima facie case yet.” The court ultimately

agreed, concluding, “I am not persuaded that three out of five

with two remaining in the jury box being passed, that is a

statistically anything event showing a pattern of intent to

exclude or minimize” the presence of African-American jurors.

When voir dire resumed, each side exercised one more

peremptory challenge and then passed. Before the court could

swear in the panel, a prospective juror informed the court that

she was “quite uncomfortable” with the responsibility of having

to decide whether a person should live or die. After the court

questioned the juror, the parties agreed to reopen jury selection

and allow the prosecutor to exercise a peremptory challenge to

strike the juror. The defense exercised four remaining

peremptory challenges before Wayde B., the sixth African-

American prospective juror on the panel, was seated. Both sides

accepted the jury as constituted. At the close of regular jury

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selection, 48 prospective jurors had appeared in the box. The

prosecution had exercised 3 of 17 strikes on African-American

jurors. Three of the 12 seated jurors were African-American.

The court then called three alternate jurors to be seated,

including Kenneth M. The prosecutor used his second of three

additional peremptory challenges to remove Kenneth M. The

defense raised its third Batson/Wheeler motion, arguing that

Kenneth M. was excluded on the basis of race and “based on the

fact that the District Attorney used information available only

to him to check the background on [Kenneth M.]” The trial court

denied the motion. It stated that the prosecutor had “disclosed

the information discovered prior to voir dire, so that adequate

and thorough voir dire could be afforded to all sides,” and found

no fault in the prosecution “conducting his limited investigation

of jurors and disclosing the outcome of it.” The court also

determined that the statistics did not support a prima facie case

of discrimination.

At the close of alternate jury selection, 54 of the 56

prospective jurors had appeared in the box. The prosecution had

exercised a total of 4 of 19 strikes on African-American jurors.

The seated jury consisted of three African-American jurors,

seven Caucasian jurors, one Hispanic juror, and one mixed-race

juror.

2. Analysis

“Both the United States and California Constitutions

prohibit discriminatory use of peremptory strikes.” (People v.

Reed (2018) 4 Cal.5th 989, 999 (Reed).) To assess whether such

prohibited discrimination has occurred, our Batson/Wheeler

inquiry follows three distinct steps. (Ibid.) “First, the defendant

must make out a prima facie case ‘by showing that the totality

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of the relevant facts gives rise to an inference of discriminatory

purpose.’ [Citations.] Second, once the defendant has made out

a prima facie case, the ‘burden shifts to the State to explain

adequately the racial exclusion’ by offering permissible race-

neutral justifications for the strikes. [Citations.] Third, ‘[i]f a

race-neutral explanation is tendered, the trial court must then

decide . . . whether the opponent of the strike has proved

purposeful racial discrimination.’ ” (Johnson v. California

(2005) 545 U.S. 162, 168, fn. omitted (Johnson).)

The trial court denied each of defendant’s Batson/Wheeler

motions at the first stage of the inquiry after ruling defendant

failed to establish a prima facie case of discriminatory intent.

Prior to Johnson, the California standard at this step “was to

show that it was ‘more likely than not’ that purposeful

discrimination had occurred.” (People v. Carasi (2008) 44

Cal.4th 1263, 1293.) However, in Johnson¸ the United States

Supreme Court rejected that analysis as too stringent under the

federal Constitution and held that “a prima facie burden is

simply to ‘produc[e] evidence sufficient to permit the trial judge

to draw an inference’ of discrimination.” (Ibid.)

We review the trial court’s ruling “independently where,

as here, the trial predated Johnson and it is not clear from the

record whether the trial court analyzed the

Batson/Wheeler motion with this low threshold in mind.”

(People v. Scott (2015) 61 Cal.4th 363, 384.) We examine the

entire record when conducting our review. (Reed, supra, 4

Cal.5th at p. 999.) Certain facts, however, are considered

especially relevant. “These include whether a party has struck

most or all of the members of the venire from an

identified group, whether a party has used a disproportionate

number of strikes against members of that group, whether the

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party has engaged those prospective jurors in only desultory voir

dire, whether the defendant is a member of that group, and

whether the victim is a member of the group to which a majority

of remaining jurors belong. [Citation.] We may also consider

nondiscriminatory reasons for the peremptory strike that

‘necessarily dispel any inference of bias,’ so long as those reasons

are apparent from and clearly established in the record.” (Id. at

pp. 999-1000.)

Defendant challenges the court’s denial of his second

Batson/Wheeler motion. He asserts ample evidence supports a

prima facie case. Defendant argues that at the time he made

the second motion, the prosecutor had struck three of five

African-American jurors and had established a pattern of

striking an African-American juror whenever there were more

than two on the panel. Defendant also asserts that the

prosecutor appeared to conduct a criminal background check on

only one potential juror: Kenneth M., an African-American.

Defendant further notes that he is African-American and at

least two of the victims (Cavallo and Mary S.) were Caucasian,

and the struck African-American jurors all possessed traits the

prosecution could have viewed favorably. We conclude, based on

the entire record, that defendant has not shown that the totality

of relevant facts creates an inference of discriminatory intent.

Defendant first contends the prosecutor’s “strike rate”

establishes a prima facie case of discrimination because he

exercised a disproportionate number of peremptory challenges

against African-American jurors. Defendant points out that at

the time of the second Batson/Wheeler motion, the prosecutor

had used 20 percent of his strikes on African-American jurors —

3 of 15 — despite the proportion of African-American jurors on

the panel being 12 percent — 5 of 41. He further notes that the

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prosecutor’s excusal rate for African-American jurors was

60 percent — 3 of 5 — whereas his exclusion rate for the rest of

the panel was 34 percent — 12 of 35.

Considered in the context of the entire jury selection

process, the prosecutor’s strikes do not support an inference of

discrimination. (Reed, supra, 4 Cal.5th at p. 1000 [strikes made

after the Batson/Wheeler challenge are considered in assessing

discriminatory intent].) The prosecutor exercised 17 strikes

during the selection of regular jurors, and two more while

selecting alternates. Three of the prosecutor’s 17 strikes during

regular jury selection (18 percent) — and 4 of 19 overall

(21 percent) — targeted African-American jurors. These figures

“barely” exceed the 13 percent ratio (7 of 54) of African-

American jurors in the venire, and do not by themselves suggest

an inference of discrimination. (Ibid. [finding 46 percent strike

rate of African-Americans compared to 34 percent of African-

American jurors in the venire to be insignificant].)

Nor does the exclusion rate of African-American jurors

support an inference of discriminatory purpose. At the close of

regular jury selection, the prosecutor had struck 3 of 6 African-

American jurors — an excusal rate of 50 percent — and had

struck 14 of 42 non-African-American jurors — an excusal rate

of 33 percent. At the close of alternate jury selection, the

prosecutor had struck 4 of 7 African-American jurors — an

excusal rate of 57 percent — and had struck 15 of 47 non-

African-American jurors — an excusal rate of 32 percent.

Although the prosecutor excused a higher percentage of African-

American jurors, the numbers are subject to a variety of

interpretations. (See, e.g., People v. Jones (2011) 51 Cal.4th 346,

362 [peremptory challenges of 60 percent of African-American

jurors “not particularly troubling” when strike rate of African-

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Americans was only slightly higher than their percentage on the

jury].) We note, for example, that the numbers could also

indicate that African-American jurors were overrepresented in

the box compared to their representation in the candidate pool:

constituting 25 percent of the seated panel (3 of 12) as compared

to 13 percent of the available pool (7 of 54). (See People v.

Hartsch (2010) 49 Cal.4th 472, 487-488 (Hartsch).) In other

words, African-American representation on the seated jury was

almost twice that reflected in the eligible jury pool. In any

event, in light of the small sample size, we assign no great

weight to the prosecutor’s excusal rate. (People v. Harris (2013)

57 Cal.4th 804, 835.)

Moreover, the prosecutor repeatedly accepted the jury

when two African-American jurors were on the panel, and

ultimately accepted a panel with three African-American jurors.

“While acceptance of one or more black jurors by the prosecution

does not necessarily settle all questions about how the

prosecution used its peremptory challenges, these facts

nonetheless help lessen the strength of any inference of

discrimination that the pattern of the prosecutor’s strikes might

otherwise imply.” (Reed, supra, 4 Cal.5th at p. 1000; see also

People v. Clark (2011) 52 Cal.4th 856, 906.) We have previously

held that the prosecutor’s acceptance of a jury panel including

multiple African-American prospective jurors, “while not

conclusive, was ‘an indication of the prosecutor’s good faith in

exercising his peremptories, and . . . an appropriate factor for

the trial judge to consider in ruling on a Wheeler objection . . . .’ ”

(Hartsch, supra, 49 Cal.4th at p. 487.) Viewed in its overall

context, the pattern of strikes does not suggest an inference of

discrimination.

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Defendant also asserts the prosecutor’s unjustified

investigation into prospective juror Kenneth M. raises a

suspicion that he was attempting to limit the participation of

African-American jurors, arguing that the prosecutor appeared

to conduct a criminal background check on only Kenneth M. The

prosecutor’s responses to the court, however, suggest that he did

conduct a criminal history check on additional jurors. Although

the prosecutor did not disclose which prospective jurors he

investigated further, he told the court that he “was checking

some of the jurors through the computer system” (italics added)

and that he was “going to check certain jurors when they spark

[his] interest” (italics added), indicating that Kenneth M. was

not the only juror he investigated. Rather, the record suggests

that Kenneth M. may have been the only juror checked who

provided inaccurate information on his questionnaire. Although

the prosecutor’s background check on some jurors, including

Kenneth M., may be probative concerning the issue of

discriminatory intent, we conclude that this fact, without

additional indicia of discriminatory purpose,5 falls short of

establishing a prima facie case. We also note that the record

does not reveal any significant disparities in the nature or

extent of the prosecutor’s questioning of the African-American

prospective jurors, and defendant does not argue otherwise.

In his dissent, Justice Cuéllar asserts that the prosecutor’s

“unwillingness” to answer defense counsel’s question whether

he checked only African-American jurors in itself constitutes an

5

If there were evidence that the prosecutor in fact targeted

only African-Americans for background checks, we would agree

that such conduct would plainly constitute a prima facie case of

discrimination. But there is no such evidence here.

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“implicit[] admission of discriminatory conduct.” (Dis. opn. of

Cuéllar, J., post, at p. 6.) We do not draw the same conclusion

from the record. First, it is not incumbent on a prosecutor to

respond to questions from defense counsel; questions to

opposing counsel are properly funneled through the court. A

prosecutor may have numerous innocuous reasons for not

engaging with defense counsel, including not wanting to

encourage further probing into a topic relating to jury selection

or trial strategy. Indeed, in this case, defense counsel’s query

quickly morphed into repeated requests for the disclosure of “all

the jurors” on which the prosecutor ran checks. Neither

defendant nor Justice Cuéllar argue that the prosecutor was

obligated to disclose this information, or that the failure to do so

is evidence of discriminatory intent.

Second, even assuming that a response was required, the

transcript of proceedings shows that the prosecutor did, in fact,

give a nondiscriminatory reason concerning why he had not

initially answered defense counsel’s query. Specifically, the

prosecutor told the court that he was objecting to defense

counsel’s questions relating to the investigation of prospective

jurors because defense counsel had not yet “ma[d]e a prima facie

case” under Batson/Wheeler. The trial court agreed with the

prosecutor’s assessment and declined to order disclosure on that

basis. Thus, the record indicates that the prosecutor preferred

not to reveal anything related to his jury selection and trial

strategy unless ordered to do so, and he believed that defense

counsel had not demonstrated that a response was required.

Indeed, the prosecutor undertook the same approach following

defendant’s second Batson/Wheeler challenge, explaining that

“if [the court] believe[s] [defendant] made a prima facie case

based on what is before [the court], then I am required to

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respond.” That the prosecutor, citing Wheeler, declined defense

counsel’s request that he disclose information regarding the

jurors he checked, does not constitute in itself “compelling

evidence” of unlawful scrutiny. (Dis. opn. of Cuéllar, J., post, at

p. 1.)

In short, the prosecutor was under no obligation to

respond to defense counsel’s question, and his stated reason for

not answering it is innocuous and credible. We decline to adopt

Justice Cuéllar’s incongruous reasoning that, despite the trial

court’s finding that no prima facie showing of discrimination

had been made, the prosecutor’s refusal to answer defense

counsel’s query nonetheless gives rise to a prima facie inference

of discriminatory purpose. We conclude that the prosecutor’s

refusal to answer defense counsel’s question does not establish,

alone or together with other circumstances, a prima facie case

of discrimination.

Finally, defendant emphasizes that Cavallo and Mary S.

are both Caucasian while he is African-American. Although the

prosecution presented evidence that defendant committed

violent acts against four additional victims, the races of these

individuals are unknown. We acknowledge that when the race

of the defendant is different from that of the victim, and the

victim is a member of the group to which the majority of

remaining jurors belong, this circumstance is one of many that

is relevant to whether a prima facie case existed. (See Johnson,

supra, 545 U.S. at p. 167; Wheeler, supra, 22 Cal.3d at

p. 281.) However, as indicated above, because we have

concluded that none of the other “especially relevant factors” —

“whether a party has struck most or all of the members of the

venire from an identified group, whether a party has used a

disproportionate number of strikes against members of that

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group, [and] whether the party has engaged those prospective

jurors in only desultory voir dire” (Reed, supra, 4 Cal.5th at

pp. 999-1000) — are present, we do not infer discriminatory

intent based solely on the fact that the known race of two of the

victims is the same as that of a bare majority — 7 of 12 — of the

seated jurors.6

Based on the entire record, we conclude the trial court did

not err when it ruled that defendant had failed to show a prima

facie case of discriminatory intent.7

6

We also disagree with Justice Cuéllar’s characterization of

the trial court’s deeming the races of the victims and defendant

as a “side issue that we need not get into”; rather, the record

shows that the trial court made this comment in the context of

explaining that a defendant need not be the same race as the

excused jurors in order to make a Batson/Wheeler motion.

7

Because we have concluded that defendant failed to raise

an inference of discrimination, we need not resort to examining

the record for obvious race-neutral reasons for the prosecutor’s

peremptory strikes that would “ ‘necessarily dispel any

inference of bias[.]’ ” (Reed, supra, 4 Cal.5th at p. 1000.)

However, because the dissenting justices rely heavily on the

characteristics of the excused African-American jurors, we feel

it appropriate to note that, at least with respect to three of the

four jurors, there do appear to be “clearly established” and

“apparent” nondiscriminatory reasons for their excusal. (Ibid.)

Kenneth M. lied on his jury questionnaire about two criminal

convictions. Shanna H. wrote that her son had been arrested

twice, including once for rape, and she testified that she felt the

court process was unfair and that her son may have been coerced

into accepting a plea bargain for a crime he did not commit.

Sharon H. had worked extensively with abused and troubled

adolescents, including youths from juvenile courts, and she

stated that she had a “heart” for “what we call throw-away kids.”

Defendant’s mitigation case focused on childhood abuse and

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C. Removal of Juror for Cause

Defendant contends the trial court erred when it excused

prospective juror Laura C. for cause based on her opinions and

beliefs regarding the death penalty. Defendant asserts the court

asked misleading questions and provided inaccurate

information to the juror regarding the nature of a jury’s

sentencing discretion.

In her jury questionnaire, Laura C. stated that she was a

legal secretary and identified herself as a practicing Catholic.

When addressing whether she would automatically refuse to

vote in favor of the death penalty, she wrote, “No. As a fair-

minded person and legal secretary familiar with legalities I

would make a judgment based on all factors before making any

decision.” When asked about her general feelings regarding the

death penalty, she explained, “I would prefer a society where

people lived happily together and no crimes ever happened —

but that is not the real world — so I understand that for those

people who commit crimes or who think about it, the death

penalty must be there as a reminder of what the consequence

might be because of their actions. This penalty thus protects the

neglect; to the extent the prosecutor anticipated that defense,

Sharon H. would clearly be an undesirable juror from the

prosecution point of view. These revelations provide a readily

apparent, race-neutral basis to excuse each of these prospective

jurors. Although the fourth juror, Lois G., presented no such

obvious grounds for excusal, the existence of readily apparent

grounds for three of the four disputed prospective jurors would

undercut, to some degree, whatever possible inference of

discrimination that might otherwise arise from the pattern of

excusals considered in isolation. But once again, here we

conclude that the statistics alone did not give rise to an inference

of discrimination.

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peaceful people.” Concerning whether she had any religious

objections to the death penalty, she wrote, “Yes/No. I believe

people should live their lives for as long as God lets them,

despite what kind of life that may be — a person should

experience his whole life — however, I believe that the death

penalty needs to be a reminder to all who would endanger

others.”

During voir dire, the court asked Laura C. if the answers

she provided on the questionnaire accurately reflected her

feelings regarding the death penalty, and she confirmed that

they did. She confirmed that she would be able to follow the law

and guidance given to the jurors. The court explained, “You

understand the law does not — well, in a sense it mandates a

result in some situations. If you find that the mitigating

circumstances are substantial, that they outweigh the

aggravating or that they’re equal to the aggravating, they are

balanced. Then, in that situation, the law says you cannot

return a death penalty, but you can only return life without

parole.” Laura C. replied, “Yes. I am happy for that.” The court

continued, “If, on the other hand, the aggravating circumstances

substantially outweigh the mitigating, at that point, the law

does not mandate the death penalty, but it says [the jurors] still

have the option of choosing not to impose the death penalty, if

they feel that that is not the most appropriate punishment. . . .

Now, is there anything in that structure that would cause you

any problems?” Laura C. said, “No.”

Defense counsel stated that he was “a little bit confused”

about the juror’s attitudes concerning the death penalty based

on her answer that a person should experience his whole life.

Counsel asked, “Are you of the belief that only God can take a

life?” Laura C. replied, “That would be my number one belief.”

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She acknowledged the law in California, and said, “I have tried

to integrate my Christian beliefs with the real live world that

we live in. . . . I believe that when there is a law, and I need to

decide on that law, I do use my Christian values, too, my

Christian values here in this situation. You have not only a civic

responsibility, you have a Christian responsibility to be true to

your decision, to be fair to, not only my Christian values, but

also to society. It’s a very hard thing to integrate, but somehow

I feel that I am able to do that.”

Defense counsel said, “The judge, a little bit earlier, told

you that even if you found the evidence that the district attorney

put on was — was substantially greater, the aggravating

evidence was substantially greater than the mitigating

evidence, you could still return a life without the possibility of

parole verdict, and that would still be following the law. Do you

feel comfortable with that concept?” Laura C. replied that she

did. Defense counsel continued, “And if eleven other jurors were

to tell you quite candidly, and with no reservation, that the

district attorney had proven — has met his burden, and they all

feel the death penalty is appropriate, and that’s the way they

desire you to vote or give your individual opinion. If you still felt

that this was a life without possibility of parole, could you stand

by your individual conviction?” Laura C. replied, “I am glad you

brought that up because I would, of course, very candidly take

the lesser, life imprisonment without parole. I would like — I

would prefer that judgment over the death penalty in this

particular situation if aggravating circumstances were more, so,

and I have that choice. I have the freedom of choice, and that’s

not against the law. I have that choice, and it’s legal, and I

would go for the life imprisonment.”

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Defense counsel clarified, “So, no matter what evidence

the district attorney put on, you would only feel life without

possibility of parole would be suitable?” Laura C. replied, “If

that is my legal choice, if I have a choice legally to do that, that’s

the way I would vote.” Defense counsel reminded Laura C. that

she previously said she would feel comfortable following the law

and asked if there were circumstances in which she could apply

the death penalty. Laura C. explained, “If it lent more over to

the aggravating side, and that’s a very good question, possibly

not. I would prefer the life imprisonment without parole.”

The prosecution challenged Laura C. for cause. The court

asked the juror: “[C]orrect me if I am wrong, but I get the

impression from the discussion we’ve had here, this morning,

that you could return a death penalty if the law basically

compelled it?” Laura C. nodded her head. The court continued,

“Because you’re willing to and feel the obligation to follow the

law?” Laura C. replied, “That’s right.” The court said, “Okay.

But in this case, in fact, in any death penalty case, the law does

not ever compel a death verdict. Even when the aggravating

factors clearly and substantially outweigh the mitigating

factors, the law allows the juror — the law says the jurors may

impose the death penalty, but the law does not compel it. It

allows a juror to or a jury to decide, in spite of the heavy

aggravating factors that for whatever reason might be mercy,

they choose to give life without the possibility of parole, so, there

is always an option. The law never compels the death penalty.”

Laura C. acknowledged the court’s comments with “okay.” The

court continued, “And what it strikes me is since you prefer, you

made it clear you prefer, significantly prefer, life without the

possibility of parole to the death penalty, and if the law is never

going to force you, or direct you, or compel you to return a death

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penalty, is it true that, in effect, you would be returning a life

without possibility of parole? That would be your vote in

virtually every case?” Laura C. replied, “I would have to say,

yes. . . . I didn’t realize that, you know. It went over my head

that there isn’t a law that said that compels you. There are no

guidelines. There are no factors. . . . My answer is just, yes.”

The court granted the prosecution’s challenge for cause.

“It is well established that opposition to the death penalty

does not by itself disqualify a juror from sitting on a capital

case.” (People v. Penunuri (2018) 5 Cal.5th 126, 141; see

Witherspoon v. Illinois (1968) 391 U.S. 510, 522.) A prospective

juror may be excluded for cause only when “the juror’s views

would ‘prevent or substantially impair the performance of his

duties as a juror in accordance with his instructions and his

oath.’ ” (Wainwright v. Witt (1985) 469 U.S. 412, 424.) “ ‘[I]n

applying this standard, reviewing courts are to accord deference

to the trial court. . . . [W]hen there is ambiguity in the

prospective juror’s statements, “the trial court, aided as it

undoubtedly [is] by its assessment of [the venireman’s]

demeanor, [is] entitled to resolve it in favor of the State.” ’ ”

(Penunuri, at p. 141.)

Laura C.’s answers during voir dire indicated that

although she understood the law and was not opposed to the

death penalty generally, she would be unwilling to return a

verdict of death no matter what evidence the prosecution

presented. Indeed, after the trial court informed her that the

law never compels a death verdict, she confirmed that unless

she was forced or compelled to do otherwise, she would return a

verdict of life without the possibility of parole in virtually every

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case. Although her answers on the jury questionnaire indicated

that she could follow the law as instructed, she admitted to the

court that upon realizing she would not be compelled to return

any specific verdict, she would not be open to returning a verdict

of death. We conclude that Laura C.’s responses sufficiently

indicated that her views would prevent or substantially impair

the performance of her duties as a juror, and therefore the trial

court did not abuse its discretion in granting the prosecution’s

request to remove her for cause.

D. Consideration of Aggravating Evidence

Defendant contends the trial court erred in permitting the

jury to consider the crimes against Mary S. as aggravating

evidence under section 190.3, factor (b) because there was

insufficient evidence that he was the assailant.

As noted above, in his first trial, defendant was found

guilty of raping and assaulting Mary S. On appeal, we

ultimately reversed these convictions after concluding that

Mary S.’s posthypnotic identification of defendant was

inadmissible under Shirley, supra, 31 Cal.3d 18. (People v.

Johnson, supra, 47 Cal.3d 576.)

At the second penalty phase retrial, the prosecution

introduced evidence of the rape and assault as aggravating

evidence under section 190.3, factor (b), rather than retrying the

offenses. The defense unsuccessfully moved in limine to have

the evidence excluded or tried by a separate jury.

The prosecution introduced evidence suggesting that

defendant used the pistol and bullets stolen from Cavallo’s

residence to attack Mary S. After the prosecution concluded its

case, the defense argued that insufficient evidence supported a

finding that defendant committed the crimes against Mary S.,

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and likened its argument to a motion for acquittal. The defense

noted that Mary S. had not identified defendant as her

assailant, and the only evidence against him was a fingerprint

on the gun clip, “a moveable object.” During a hearing on the

defense’s motion outside the presence of the jury, the prosecutor

acknowledged that the gun’s magazine was a moveable object

but argued that “a magazine is an object that normally is not

one that is touched by someone in a casual fashion. The

magazine or a clip belongs inside the weapon and is normally

carried there.” He continued, “[T]he magazine is not in a

position where it’s casually touched, as though someone were

handing around a weapon at a weenie roast somewhere, and you

just happen to touch it. All right. It’s inside the handle of the

weapon, and the fingerprint is on a place where it would

normally be to load the weapon.” The prosecutor went on to

summarize relevant testimony about the fingerprint found on

the magazine and testimony that Cavallo owned a similar

weapon. The court denied defendant’s motion, concluding that

sufficient evidence linked him to the assault and “that there is

sufficient evidence upon which a reasonable jury could find that

the defendant did, in fact, commit the rape.”

Section 190.3, factor (b) permits the jury to consider the

“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.” Before the

evidence is presented to the jury, the trial court must determine

that the evidence offered would allow a rational trier of fact to

decide beyond a reasonable doubt that the defendant committed

the criminal activity alleged under factor (b). (People v. Clair

(1992) 2 Cal.4th 629, 676.) Once presented, whether the

evidence of other acts is significant enough to be given weight in

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the penalty determination is for the jury to decide. (People v.

Smith (2005) 35 Cal.4th 334, 369.)

We review a trial court’s decision to admit evidence of

other crimes for abuse of discretion, “ ‘and no abuse of discretion

will be found where, in fact, the evidence in question was legally

sufficient.’ ” (People v. Whisenhunt (2008) 44 Cal.4th 174, 225.)

“On appeal, the test of legal sufficiency is whether there is

substantial evidence, i.e., evidence from which a reasonable

trier of fact could conclude that the prosecution sustained its

burden of proof beyond a reasonable doubt. [Citations.]

Evidence meeting this standard satisfies constitutional due

process and reliability concerns.” (People v. Boyer (2006) 38

Cal.4th 412, 479-480.)

Defendant asserts the evidence was insufficient because

the gun clip was a movable object. He relies on Mikes v. Borg

(9th Cir. 1991) 947 F.2d 353 (Mikes), a case in which the

prosecution’s only evidence against the defendant consisted of

fingerprints found on a disassembled turnstile the victim had

recently purchased at a going-out-of-business sale. (Id. at

p. 355.) The federal appellate court stated that “in fingerprint-

only cases in which the prosecution’s theory is based on the

premise that the defendant handled certain objects while

committing the crime in question, the record must contain

sufficient evidence from which the trier of fact could reasonably

infer that the fingerprints were in fact impressed at that time

and not at some earlier date.” (Id. at pp. 356-357.) The court

held that the defendant’s conviction could be upheld only if the

record showed that the object in question was inaccessible to

him at the “ ‘relevant time,’ ” defined as “the time prior to the

commission of the crime during which the defendant reasonably

could have placed his fingerprints on the object in

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question and during which such prints might have remained on

that object.” (Id. at p. 357.) Because the turnstile presumably

had been in operation before being sold, the evidence was

insufficient to preclude the reasonable possibility that the

defendant placed his fingerprints on the item prior to the

victim’s acquisition of it. (Id. at pp. 358-359.)

Defendant also relies on People v. Trevino (1985) 39 Cal.3d

667. In Trevino, the defendant and codefendant were charged

with the murder and robbery of their friend. (Id. at p. 676.) The

only evidence linking the codefendant to the scene of the crime

was a fingerprint found on a dresser drawer. (Id. at p. 678.) The

fingerprint expert could not determine the date of the print,

acknowledging that it could have been made months earlier.

(Ibid.) We held that the fingerprint evidence could not be

considered substantially incriminating. (Id. at p. 696.) Because

the expert could not determine the age of the print, there was

no reason to presume it had been made on the day of the crime

rather than a previous occasion. (Id. at pp. 696-697.) We noted

that the “ ‘evidence as to how or when the print came to be

placed on the dresser is fraught with uncertainty, leaving the

triers of fact to speculate as to how and when the print was

made. This kind of guesswork as to the facts does not elevate

speculation to the level of reasonable inference.’ ” (Id. at p. 697.)

Mikes and Trevino are easily distinguished from this case.

In Mikes, the turnstile containing the defendant’s fingerprint

was “fully accessible to the general public” before the victim

acquired it, and the defendant could have placed his fingerprint

on the object during that period. (Mikes, supra, 947 F.2d at pp.

358-359.) Here, by contrast, there was no evidence the

magazine was accessible to the general public before the crime

against Mary S., making Mikes distinguishable on that basis.

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Moreover, there was no indication that defendant knew Cavallo

or had ever been inside Cavallo’s home before he was killed, and

yet defendant’s fingerprint was found on an object taken from

inside Cavallo’s home and found at the site where Mary S. was

assaulted. Additionally, it is clear the gun was loaded when

Mary S. was attacked because a shot was fired in the bathroom

during the commission of that crime. It is therefore reasonable

to conclude that defendant loaded the weapon or checked the

clip immediately before using it to assault Mary S.

In Trevino, the codefendant was the victim’s friend and

presumably had been at the victim’s house on occasions prior to

the day of the homicide. Because the date of the fingerprint

could not be determined in that case, no solid evidence linked

the codefendant to the scene on the day of the murder. Here, as

noted above, defendant’s fingerprint was found on the magazine

within a gun that belonged to Cavallo, who did not know

defendant. Moreover, unlike in Trevino, the prosecution’s

fingerprint expert testified that the fingerprint powder “leaped

out” at him, which indicated that the print was fresh when Mary

S. was assaulted. Therefore, the evidence of defendant’s

fingerprint on the magazine of the gun used to attack Mary S.

was sufficient to establish identity.

For the reasons stated above, the evidence was sufficient

for a rational trier of fact to determine beyond a reasonable

doubt that defendant committed the attack on Mary S. The trial

court, therefore, did not abuse its discretion in admitting

evidence of the rape and assault against Mary S. Because the

trial court did not err, defendant’s rights to due process, a fair

trial, and a reliable penalty verdict under the United States

Constitution were not violated.

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E. Admission of Hearsay Statements

Defendant contends the trial court erroneously admitted

hearsay statements from Cavallo’s friend, Richard Canniff, who

testified that Cavallo kept a gun at home. Defendant asserts

the statements were inadmissible as evidence of habit.8

Canniff died before the second penalty phase retrial.

Defendant filed a written motion in limine to exclude Canniff’s

prior testimony as inadmissible hearsay. Defendant did not

challenge Canniff’s unavailability. Rather, defendant was

specifically concerned with Canniff’s testimony that Cavallo

kept a small gun near him in his house; Canniff admitted he

never personally saw a gun at Cavallo’s residence. The

prosecution argued the evidence was admissible as evidence of

habit because Cavallo customarily kept a gun near his bed for

protection. He also argued that Canniff’s statements tended to

show Cavallo was asleep when he was killed, because Cavallo

did not have time to reach for the gun.

The court admitted Canniff’s testimony over defendant’s

objection. The prosecution read Canniff’s testimony from the

guilt phase, during which Canniff said that Cavallo kept a small

gun for protection. Canniff explained, “ ‘It had to be close to his

bed. . . . He was never — he said repeatedly to me and others

that he was never going to be caught off guard by anyone.’ ” He

8

The Attorney General argues that defendant forfeited his

challenge to the admission of Canniff’s hearsay statements by

not objecting directly before the testimony was read. However,

defendant filed a motion to exclude Canniff’s testimony before

trial. The Attorney General also alleges the evidence was

admissible as nonhearsay under Evidence Code section 1250 to

show that Cavallo was asleep when he was killed, but cites no

authority to support this claim.

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said that Cavallo “ ‘frequently’ ” mentioned keeping a gun for

protection.

Evidence Code section 1105 provides: “Any otherwise

admissible evidence of habit or custom is admissible to prove

conduct on a specified occasion in conformity with the habit or

custom.” “ ‘ “Habit” means a person’s regular or consistent

response to a repeated situation. “Custom” means the routine

practice or behavior on the part of a group or organization that

is equivalent to the habit of an individual.’ ” (People v. Memro

(1985) 38 Cal.3d 658, 681, fn. 22.) Because evidence of habit or

custom must be “otherwise admissible,” any hearsay evidence of

habit must fall within an exception to be admissible. (See Evid.

Code, § 1200 [hearsay evidence is inadmissible except as

provided by law].) The determination whether habit evidence is

admissible rests in the sound discretion of the trial court.

(People v. Hughes (2002) 27 Cal.4th 287, 337.) The erroneous

admission of hearsay is reviewed under the reasonable

possibility standard. (People v. Brown (1988) 46 Cal.3d 432,

447-448 (Brown); see People v. Page (2008) 44 Cal.4th 1, 54.)

Defendant asserts the evidence was inadmissible hearsay

and the trial court erred in admitting Canniff’s testimony as

evidence of habit. He also asserts that the testimony was

insufficient to show habit because it failed to establish a regular

or consistent response to a repeated situation. Even assuming

the trial court erred in admitting the statements, however, there

is no reasonable possibility that a result more favorable to

defendant would have been reached in the absence of the

asserted error. (Brown, supra, 46 Cal.3d at p. 448.) The court

admitted the testimony of two other witnesses from prior trials

concerning Cavallo’s ownership of a .22-caliber handgun, and

Cavallo’s ex-wife testified that he owned such a handgun.

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Additionally, testimony from the officer who found Cavallo’s

body supported an inference that Cavallo had been asleep

during the attack. Thus, any error in admitting Canniff’s

testimony was harmless.

F. Evidence of Failure to Apologize to Prior Victim

Defendant contends the trial court abused its discretion

when it admitted evidence that defendant did not apologize to

Florence M. or ask her about the fate of her child after his

conviction for stabbing her. He asserts her statement regarding

his lack of apology was irrelevant to proving a factor in

aggravation.

Florence M. testified about the 1971 stabbing

incident. She explained that after her testimony in the first

trial, she and her husband, defendant’s half-brother, visited

defendant at a state psychiatric hospital. Over defendant’s

objection, the prosecutor asked Florence M., “Did he apologize

to you in any way for what he done [sic] to you?” She replied,

“No, no way at all.” The prosecutor asked, “Did he ask you

anything about the baby?” Florence M. answered, “No, he didn’t

say anything about that.”

A lack of remorse is not enumerated as an aggravating

factor under section 190.3. A prosecutor, therefore, should not

argue that the absence of remorse is a factor in aggravation.

(People v. Keenan (1988) 46 Cal.3d 478, 510; see also People v.

Rivera (2019) 7 Cal.5th 306, 343 (Rivera) [postcrime evidence of

remorselessness does not fit within any statutory sentencing

factor and should not be urged as aggravating].)

Assuming without deciding that the court erred in

admitting Florence M.’s statement that defendant did not

apologize or ask about her baby, however, we see no reasonable

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possibility that the error affected the jury’s death verdict.

(Chapman v. California (1967) 386 U.S. 18, 24 (Chapman);

Rivera, supra, 7 Cal.5th at pp. 343-344; People v. Nelson (2011)

51 Cal.4th 198, 218, fn. 15.) The prosecution presented other

aggravating evidence in support of a death verdict, including the

circumstances of the crimes against Cavallo, defendant’s prior

felony convictions, and his prior instances of violent criminal

conduct, including the rape and assault of Mary S. Nothing

suggests that Florence M.’s testimony regarding defendant’s

lack of remorse “tipped the scales in favor of death.” (Rivera, at

p. 344.) We therefore conclude any error in admitting the

testimony was harmless beyond a reasonable doubt.

G. Admission of Aggravating Evidence Without

Notice

Defendant contends the trial court abused its discretion

when it admitted evidence in aggravation with assertedly

inadequate notice.

Nine days after the attack on Florence M., CHP Officer

Lance Erickson stopped defendant for committing a traffic

violation. As noted earlier, Erickson arrested defendant for

grand theft of an automobile. When detained, defendant told

Erickson that he thought he had killed his pregnant sister-in-

law by stabbing her “from the neck down to her stomach.”

Before the first penalty phase retrial, the prosecution filed

a list of possible witnesses, which included Erickson. Because

Erickson’s original police report had been destroyed a few years

after the grand theft case closed, the parties used a report about

that case prepared for the Los Angeles Police Department

(LAPD) by another officer.

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The prosecutor met with Erickson the night before he was

scheduled to testify in the second penalty phase

retrial. Erickson informed the prosecutor about additional facts

not in the LAPD report, including that defendant ran from and

struggled with the officers, made statements to the effect that

he would shoot them if he had a gun, and admitted that he had

stabbed, raped, and killed his pregnant sister-in-law during an

argument because she “was coming on to him.”

The prosecutor acknowledged to the court that the

additional information was new to him and to the defense. He

then sought to introduce the statements defendant had made

about Florence M. and her making sexual advances toward him,

arguing that they were indicative of a guilty mind and were

clearly “false statements” about the attack. Defendant opposed

admission of the statements, arguing that they lacked adequate

notice and the prejudicial effect of the evidence outweighed the

probative value under Evidence Code section 352.

Following an evidentiary hearing outside the presence of

the jury to hear Erickson’s testimony, the court admitted

defendant’s statements concerning why he stabbed Florence M.

The court reasoned that the inclusion of Erickson’s name on the

witness list for the first penalty retrial and the admitted LAPD

report provided the defense with adequate notice to contact

Erickson and interview him well before the second penalty

retrial. The court also observed that the LAPD report “indicates

that there was some statement made to the Highway Patrol

about the Florence [M.] incident. Either side could have

explored that and been ready for it. It just turns out that neither

side did look into it in detail.” The court denied defendant’s

motion to exclude the statements and his request for a

substantial delay in proceedings to investigate the matter.

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The court also concluded that “the information [Erickson]

offers is very relevant to the state of mind of the defendant

concerning this incident and his attitude toward this incident,

how he feels about the violence he visited upon his sister-in-law.

It all goes to character and the quality of the criminal conduct

involved. So, in that sense, I consider it very probative, and, of

course, in a sense it’s prejudicial, but in a penalty trial . . . [the]

issue of the prejudicial nature of the evidence . . . doesn’t have

the same application as it does in a guilt trial.”

Section 190.3 requires the prosecution to provide the

defendant with notice of the evidence to be introduced within a

reasonable period of time prior to trial. “Nothing in the

language of section 190.3, however, suggests that it was

intended to grant the defendant any greater rights with respect

to penalty phase evidence, or that evidence of which the

prosecution had no knowledge when the original notice is given

must be excluded. Such a construction would be inconsistent

with the purpose of section 190.3 that the jury be made aware of

all of the factors bearing on the penalty decision.” (People v.

Jennings (1988) 46 Cal.3d 963, 987.) If the prosecution

discovers new evidence that it wishes to present after the initial

notice, it must promptly notify the defendant. (Ibid.) If

necessary, the defendant is entitled to a reasonable continuance

to allow time to prepare. (Ibid.)

We find no error in admitting the evidence. Defendant

knew Erickson was on the witness list for the first penalty phase

retrial and had more than a year to contact him if defendant

wished to inquire about the circumstances surrounding his

arrest. Further, the LAPD report stated that defendant said he

stabbed and killed Florence M. Although the report did not

include the information regarding why defendant stabbed

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Florence M. — that they argued because she allegedly made

sexual advances toward him — the report provided the defense

with sufficient notice that defendant may have said something

about the assault against Florence M. The first penalty retrial

witness list and LAPD report provided to defendant gave him

sufficient time to prepare a defense to the aggravating evidence.

(See People v. Howard (2008) 42 Cal.4th 1000, 1016.) The

prosecutor also promptly notified the defense of the new

information the morning after he spoke with Erickson.

Moreover, the trial court did not abuse its discretion when

it found the evidence was more probative than prejudicial.

“Prejudicial” means evidence “ ‘that uniquely tends to evoke an

emotional bias against a party as an individual, while having

only slight probative value with regard to the issues.’ ” (People

v. Thomas (2012) 53 Cal.4th 771, 807 (Thomas).) “A trial court’s

exercise of discretion under [Evidence Code] section 352 will be

upheld on appeal unless the court abused its discretion, that is,

unless it exercised its discretion in an arbitrary, capricious, or

patently absurd manner.” (Id. at p. 806; see Evid. Code, § 352.)

Defendant cannot establish that the trial court did so here.

Defendant’s statements had probative value by showing that he

attempted to shift blame to the victim, did not feel empathy for

the victim, and did not take responsibility for his actions.

H. Evidence of Offense Committed After Capital

Offense

Defendant contends the trial court erred when it

instructed the jury that it could consider as an aggravating

factor defendant’s conviction for assault with a deadly weapon

on Verna O., because he was convicted of this crime after the

capital offense. Therefore, he asserts, it was not a prior

conviction within the meaning of section 190.3, factor (c).

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Defendant attacked Verna O. on December 2, 1978, prior

to the murder of Cavallo. He was convicted of the charge

relating to the offense against Verna O., however, shortly after

he committed the capital offense. The court determined that a

“prior felony conviction” under section 190.3, factor (c), was

admissible if the conviction occurred after the capital offense but

before trial. Over defendant’s objection, the trial court

instructed the jury that it could consider the attack on Verna O.

as an aggravating factor under section 190.3, factor (c).

The Attorney General concedes that defendant’s

conviction for the assault on Verna O. was inadmissible as a

prior felony conviction under section 190.3, factor (c). (See

People v. Balderas (1985) 41 Cal.3d 144, 201 (Balderas) [“prior

felony convictions” are limited to those entered before

commission of the capital crime].) However, we conclude the

error is harmless because there is no reasonable possibility that

defendant would have received a more favorable result absent

the error. (See Brown, supra, 46 Cal.3d at p. 448-449; People v.

Lewis (2008) 43 Cal.4th 415, 527 [“ ‘reasonable possibility it

affected the verdict’ ” standard is essentially the same as beyond

a reasonable doubt standard in Chapman, supra, 386 U.S. at p.

24].) The weight of the other aggravating evidence was

substantial. The prosecution introduced evidence of the

circumstances of defendant’s robbery and murder of Cavallo, his

assault and rape of Mary S., and his threat to dissuade Florence

M. from testifying. The prosecution also introduced evidence

that defendant had been convicted of three other violent

felonies. The properly introduced aggravating evidence

substantially outweighed the mitigating evidence. Further, the

prosecutor only briefly discussed the Verna O. assault during

his closing argument. It is not reasonably possible that the

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exclusion of this conviction would have altered the jury’s

balancing of evidence in this case.

Moreover, the evidence would have been properly

admissible under factor (b) as the presence of criminal activity

by defendant that involved the use of force or violence. We have

previously acknowledged that factors (b) and (c) serve distinct

purposes — factor (b) admits evidence of violent criminality to

show a defendant’s propensity for violence, while factor (c)

admits evidence of any prior felony conviction to show that the

capital offense was the culmination of habitual

criminality. (Balderas, supra, 41 Cal.3d at p. 202.) We have

also held that when a prior conviction is erroneously admitted

under factor (c) but properly admitted under factor (b), a

defendant cannot establish prejudice because the additional fact

of a conviction “ ‘could have added very little to the total picture

considered by the jury.’ ” (People v. Hayes (1990) 52 Cal.3d 577,

637-638.)

Defendant asserts this case is different because the jury

was instructed to consider only those factor (b) criminal acts

listed in the corresponding instruction; the Verna O. assault was

not listed. Therefore, he contends, but for the erroneous factor

(c) instruction, the jury would not have considered the Verna O.

assault at all. Although the jury was not instructed to consider

evidence of the Verna O. assault under factor (b), we are not

persuaded that the instructional error undermined the verdict.

The prosecution did not overlap offenses between the factor (b)

and factor (c) instructions; all four of the offenses listed under

factor (c) could have been included in the factor (b) instruction,

but were not. It is reasonable to assume that had the court

denied the prosecution’s request to include the Verna O. attack

under factor (c), the prosecution would have then simply

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requested it be enumerated in the factor (b) instruction provided

to the jury. Further, to the extent the factor (b) instruction

omitted an offense that should have been included, defendant

did not object to the modified instruction in the trial court. “It

is incumbent on defense counsel to point out an omitted incident

and request a more complete instruction on the subject.” (People

v. Bacon (2010) 50 Cal.4th 1082, 1122.)

For the reasons stated, we discern no prejudice under the

facts.

I. Loss of Defense Exhibit

Defendant contends the trial court’s loss of an exhibit

deprived him of due process and a fair penalty trial. He further

asserts the court abused its discretion when it denied his motion

for a new trial based on the omission.

Kenneth Peterson testified for the defense. Peterson was

the chief social worker for a youth home where defendant

resided in the 1960s. Peterson explained that children referred

by juvenile court would be evaluated at the youth home, and

those diagnosed as mentally ill would be transferred to a state

hospital. Because the state hospitals had many long-term

patients, children at the youth home faced a delay in being

transferred. On April 14, 1965, Peterson sent a letter to the

chief social worker at one of the state hospitals, explaining that

the youth home had arranged for defendant to be committed to

the state hospital the previous summer, but he had not yet been

placed there eight months later. Peterson testified that the

youth home did not have facilities for treating mentally ill

children. During cross-examination, the prosecution had

Peterson read aloud the parts of the letter describing

defendant’s symptoms and struggles at the youth home.

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Peterson acknowledged that he had never personally worked

with defendant; rather, he relied on reports from other people

when writing the letter. The letter was admitted into evidence

as Exhibit N.

Richard Komisaruk, a psychiatrist who worked with the

youth home, also testified for the defense. He affirmed

Peterson’s testimony that the wait list for children to enter a

state hospital for mental health treatment was very long. He

testified that in the early 1960s Caucasian children were

accepted into state hospitals “at a much higher frequency”

compared with ethnic minorities. Komisaruk explained that

when children were finally admitted into the state hospital, the

hospital would often rediagnose children and claim they needed

to be in reform school, not a hospital. Komisaruk conducted a

study that revealed “there was a greatly disproportionate[]

representation of Black people in this group of rediagnosed

individuals who were sent back from the State hospital and were

relegated to treatment within the criminal justice system.”

The prosecution showed Komisaruk Exhibit N. The

prosecution also showed Komisaruk a report, dated July 1965,

from the state hospital that eventually admitted defendant.

Komisaruk read from the report: “We arranged with Doctor

Komisaruk to admit this child and discharge him. It was also

agreed upon that should the youngster become involved with the

law once more, that Doctor Komisaruk in the Juvenile Court

would commit him to Boys Training School.” Although

Komisaruk did not recall ever interacting with defendant prior

to testifying, he explained that in similar situations, a patient

who “look[ed] like a psychopath” or “a sociopath” and who it was

believed would not benefit from treatment would be discharged

from the hospital and sent to the Boys Training School.

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The defense realized shortly after Komisaruk testified

that he accidentally took two exhibits with him, including

Exhibit N. Komisaruk died soon after returning to his home

state, and the exhibit was never returned. Neither the court nor

the parties realized that Exhibit N had not been retained by the

court and given to the jury until after the verdict was received.

Defendant filed a motion for a new trial arguing, in part, that

the missing exhibit “was a substantial piece of evidence in

mitigation” that would have garnered sympathy for defendant.

The court denied the motion, finding that the fact that the

exhibit was missing was not prejudicial. The court

acknowledged that the jury did not have the “opportunity to

study, weigh, or deliberate upon the importance of this single

document.” The court concluded, however, that “the substance

and information and significance of that letter and significance

of that information was communicated to the jurors” through

testimony by Peterson and Komisaruk, and a substantial

portion of the letter was read into the record. Additionally, the

court noted, the jury did not request the letter or otherwise note

its absence.

We will not disturb a trial court’s denial of a motion for a

new trial unless “a ‘manifest and unmistakable abuse of

discretion’ ” clearly appears. (People v. Coffman and Marlow

(2004) 34 Cal.4th 1, 127.) We find no abuse of discretion. The

trial court carefully weighed defendant’s argument and whether

the failure to transfer Exhibit N to the jury could have affected

the outcome of the trial. We also note that significant portions

of the letter were read aloud to the jury, and its contents were

discussed by two witnesses. Defendant has not explained how

the document itself would hold any evidentiary value beyond its

content.

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Further, defense counsel did not rely on the contents of the

letter during closing argument. Rather, he emphasized the

importance of Komisaruk’s testimony, asserting that African-

American children were seen as “sociopaths” who “were

warehoused” in the youth home instead of receiving treatment.

He also reminded the jury that defendant had been committed

to a state hospital several times for being mentally incompetent

and the juvenile court system failed to provide him with the

mental health assistance that he needed. The record supports

a finding that the actual presence of the letter during

deliberations would have yielded no significant difference.

For these reasons, the absence of Exhibit N did not deprive

defendant of due process and a fair penalty trial. There is no

reasonable possibility that defendant would have received a

more favorable result absent the error. (See Chapman, supra,

386 U.S. at p. 24; Brown, supra, 46 Cal.3d at pp. 448-449.)

J. Cumulative Error

Defendant contends reversal is warranted because of the

cumulatively prejudicial effect of penalty phase errors. We have

found four possible errors: admission of Florence M.’s testimony

regarding defendant’s remorselessness, admission of Canniff’s

hearsay testimony, the erroneous instruction on consideration

of the Verna O. conviction, and the failure to transfer Exhibit N

to the jury. None of these errors was prejudicial. We conclude

that no error in the penalty phase, whether considered alone or

together, merits reversal. (See People v. Souza (2012) 54

Cal.4th 90, 139, 141 [a few nonprejudicial instructional errors

do not warrant reversal on cumulative error claim].)

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PEOPLE v. JOHNSON

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

III. OTHER ISSUES

A. Denial of Application to Modify Verdict

Defendant contends the trial court abused its discretion

when it denied his application to modify the death verdict under

section 190.4, subdivision (e). He first contends the trial court

improperly considered the underlying facts of the assaults on

Florence M. and Verna O. He acknowledges this evidence was

admitted during the penalty phase but claims the trial court

could not rely on this evidence because the jury was not

instructed to consider them as aggravating factors under section

190.3, factor (b). He asserts the court was free to consider his

convictions in connection with the two incidents under section

190.3, factor (c), but could not properly consider the details of

the acts that led to the convictions.

Defendant also contends the court erroneously relied on

facts unavailable to the jury. The Attorney General concedes

that the court improperly considered two pieces of evidence that

it excluded from the jury’s consideration under Evidence Code

section 352: previously excluded evidence that defendant had

raped Florence M. while attacking her, and a letter defendant

wrote to the trial judge in the Verna O. case, requesting release

on bail and asserting his innocence.

When ruling on an application to modify the death verdict,

the trial court “shall review the evidence, consider, take into

account, and be guided by the aggravating and mitigating

circumstances referred to in Section 190.3, and shall make a

determination as to whether the jury’s findings and verdicts

that the aggravating circumstances outweigh the mitigating

circumstances are contrary to law or the evidence presented.”

(§ 190.4, subd. (e).) “In ruling on the application to modify, the

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

trial court does not make an independent penalty

determination, but instead reweighs the evidence

of aggravating and mitigating circumstances and then

determines whether the weight of the evidence supports the jury

verdict.” (People v. Wallace (2008) 44 Cal.4th 1032, 1096.) We

independently review the trial court’s ruling in light of the

record. (Ibid.)

We conclude that the trial court properly denied

defendant’s motion to modify the death verdict. Concerning

defendant’s first contention, although the trial court erroneously

instructed the jury concerning the Verna O. attack under section

190, factor (c), as noted above, the facts underlying the assault

were nonetheless properly admissible under section 190, factor

(b). Because the underlying facts of the assaults on Florence M.

and Verna O. were properly admitted, the jury would have

considered this evidence in making its penalty determination

and the court properly considered the details of the assaults

when reweighing the evidence under section 190.4, subdivision

(e).

Regarding defendant’s second contention, as the Attorney

General concedes, the trial court erred when it considered the

rape of Florence M. and the letter defendant wrote requesting

bail. (See People v. Visciotti (1992) 2 Cal.4th 1, 78 [the court is

limited to consideration of the evidence that was before the

penalty jury].) This error, however, does not require reversal.

The court acknowledged the presence of mitigating factors, but

found that “the significance of that mitigation becomes

attenuated or lessens as one has opportunities to grow and to

develop some maturity and to learn from experience.” The court

described the “rather gross and truly disturbing aggravating

factors in [defendant’s] history” and noted that “the continuity

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

of that violence over a period of time is so extreme.” Given the

court’s finding that a history of extreme violence “substantially

outweigh[ed]” the presence of mitigating factors, there is no

reasonable possibility that it would have modified the death

verdict absent consideration of the excluded evidence.

B. Challenges to the Death Penalty Law

Defendant presents several challenges to California’s

death penalty law that our prior decisions have considered and

rejected. He provides no persuasive reason for us to reexamine

the following conclusions:

“Allowing the jury to consider the circumstances of the

crime (§ 190.3, factor (a)) does not lead to the imposition of the

death penalty in an arbitrary or capricious manner.” (People v.

Kennedy (2005) 36 Cal.4th 595, 641.)

The death penalty statute “is not invalid for failing to

require (1) written findings or unanimity as to aggravating

factors, (2) proof of all aggravating factors beyond a reasonable

doubt, (3) findings that aggravation outweighs mitigation

beyond a reasonable doubt, or (4) findings that death is the

appropriate penalty beyond a reasonable doubt.” (People v.

Snow (2003) 30 Cal.4th 43, 126 (Snow).) These conclusions are

not altered by the United States Supreme Court’s decisions

in Apprendi v. New Jersey (2000) 530 U.S. 466, or Ring v.

Arizona (2002) 536 U.S. 584. (People v. Simon (2016) 1 Cal.5th

98, 149.) Likewise, the high court’s decision in Hurst v. Florida

(2016) 577 U.S. ___ [136 S.Ct. 616], which invalidated Florida’s

capital sentencing scheme, does not invalidate California’s law

because our sentencing scheme is “ ‘materially different from

that in Florida.’ ” (People v. Becerrada (2016) 2 Cal.5th 1009,

1038; People v. Rangel (2016) 62 Cal.4th 1192, 1235, fn. 16.)

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

The use of the term “so substantial” in CALJIC No. 8.88

does not render the instruction impermissibly broad. (People v.

Breaux (1991) 1 Cal.4th 281, 316, fn. 14.)

If the trial court instructs the jury that it can impose the

death penalty only if it finds that aggravation outweighs

mitigation, it need not also instruct the jury on the converse —

that it must return a sentence of life without the possibility of

parole if it finds that mitigation outweighs aggravation. (People

v. Duncan (1991) 53 Cal.3d 955, 978.)

Instructions on the meaning of a sentence of life

imprisonment without the possibility of parole and on the

“ ‘presumption of life’ ” are not constitutionally

required. (People v. Demetrulias (2006) 39 Cal.4th 1, 43.)

CALJIC No. 8.88 adequately instructs the jury to

determine whether the balance of aggravation and mitigation

makes death the appropriate penalty. (People v. Arias (1996)

13 Cal.4th 92, 171.)

“Comparative intercase proportionality review by the trial

or appellate courts is not constitutionally required.” (Snow,

supra, 30 Cal.4th at p. 126.)

California’s death penalty does not violate international

law or international norms of decency. (Thomas, supra,

53 Cal.4th at p. 837.)

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PEOPLE v. JOHNSON

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

IV. CONCLUSION

The judgment is affirmed.

CANTIL-SAKAUYE, C. J.

We Concur:

CHIN, J.

CORRIGAN, J.

KRUGER, J.

GROBAN, J.

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PEOPLE v. JOHNSON

S029551

Dissenting Opinion by Justice Liu

This is yet another case in which a black man was

sentenced to death for killing a white victim after a jury

selection process in which the prosecution disproportionately

excused black prospective jurors. And this is yet another case

in which this court has refused to find any inference of

discrimination in jury selection, despite a well-founded

suspicion that the prosecutor here, in evaluating prospective

jurors, targeted only black jurors for criminal background

checks.

As the high court said in Batson v. Kentucky (1986) 476

U.S. 79 (Batson), “[s]election procedures that purposefully

exclude black persons from juries undermine public confidence

in the fairness of our system of justice.” (Id. at p. 87.) Yet it has

been more than 30 years since this court has found Batson error

involving the removal of a black juror. “Racial discrimination

against black jurors has not disappeared here or elsewhere

during that time” (People v. Hardy (2018) 5 Cal.5th 56, 124 (dis.

opn. of Liu, J.) (Hardy) [citing cases]), and if the facts in this

case do not give rise to an inference of discrimination, then I am

not sure what does. Because the totality of circumstances here

readily establishes a prima facie case of discrimination, I

respectfully dissent.

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PEOPLE v. JOHNSON

Liu, J., dissenting

I.

The Batson issue here arose during jury selection for

Johnson’s second penalty retrial in 1992 in Sacramento County,

a community that was 75.1% white and 9.3% black at the time.

(Bureau of the Census, U.S. Dept. of Commerce, 1990 Census of

Population, General Population Characteristics: California

(1992) p. 245.) Johnson, a black man, had been convicted of

murdering a white man, Aldo Cavallo, and the prosecutor

planned to introduce, and did introduce, evidence that Johnson

had assaulted and raped a white woman, Mary S., as an

aggravating factor in support of a death sentence. It must be

acknowledged at the outset that “the social, racial and sexual

overtones [of the case] were precisely the kind which could ‘most

effectively prejudice’ defendant.” (People v. Williams (1989) 48

Cal.3d 1112, 1129.)

The fact that the contested strikes were directed at black

jurors in a case involving a black defendant is also relevant.

Just this year, the high court underscored that one of “the most

critical” aspects of the Batson opinion was its express

prohibition on “ ‘strik[ing] black veniremen on the assumption

that they will be biased in a particular case simply because the

defendant is black.’ ” (Flowers v. Mississippi (2019) 588 U.S. __,

__ [139 S.Ct. 2228, 2241] (Flowers), quoting Batson, supra, 476

U.S. at p. 97; see Powers v. Ohio (1991) 499 U.S. 400, 416

(Powers) [“Racial identity between the defendant and the

excused person might in some cases be the explanation for the

prosecution’s adoption of the forbidden stereotype, and if the

alleged race bias takes this form, it may provide one of the easier

cases to establish both a prima facie case and a conclusive

showing that wrongful discrimination has occurred.”].)

2

PEOPLE v. JOHNSON

Liu, J., dissenting

At the time of the Batson ruling now before us, the

prosecutor had used 15 peremptory strikes to remove three of

the five black jurors (60 percent) and 12 of the 35 nonblack

jurors (34 percent) in the jury box. Beyond the fact of this

disproportion, all three black jurors who were struck — Lois G.,

Sharon H., and Shanna H. — were qualified to serve as jurors

in this penalty trial. All three expressed a willingness to impose

the death penalty; all three indicated they would make a penalty

judgment based on the facts and evidence; and none said

anything on the juror questionnaire or during voir dire that

would have raised an obvious concern for the prosecution.

Lois G. was a 59-year-old homeowner with two grown

children. She served as the vice president of a middle school and

was pursuing a doctorate degree in education. During voir dire,

she explained that she handled almost all the disciplinary issues

at the school, which put her in close contact with the police. On

her questionnaire, she indicated that she was “close friends”

with police officers. Lois G. also noted that she had been the

victim of a burglary and a car theft. As to whether she would

automatically vote either for death or for life without parole, she

wrote, “I have no biases regarding the penalties mentioned —

would listen and try to be fair in my assessment.” She also wrote

that she viewed the death penalty as “the law and the system

we are using” and would decide whether it should be imposed

“based on evidence in [the] case.” When asked if she had

religious objections to the death penalty, she wrote “no.” During

voir dire, she said her views on the death penalty were the same

as what she wrote on the questionnaire, and she again expressed

her willingness to impose the death penalty. Today’s opinion

acknowledges that there was no obvious reason for excusing

Lois G. (Maj. opn., ante, at p. 48, fn. 7.)

3

PEOPLE v. JOHNSON

Liu, J., dissenting

Sharon H. was 39 years old, had never been married, and

had no children. She worked in telecommunications at Pacific

Bell and was also the executive director of a nonprofit

organization she had founded. She said she works with abused

children at the nonprofit and has a “heart” for “what we call

throw-away kids.” When read in context, Sharon H.’s statement

did not make her a “clearly . . . undesirable juror from the

prosecution point of view.” (Maj. opn., ante, at p. 48, fn. 7.)

During voir dire, she drew a clear distinction between “kids that

are abused” and “the real difficult kids” who “have a lot of

criminality in their background.” She said her organization

refuses to serve the second category of children, who can be

“detrimental” to the organization’s other clients and “to the

whole neighborhood.” Given Johnson’s extensive juvenile

criminal record, it is not obvious that Sharon H. would have

sympathized with the mitigation evidence about his childhood.

In addition, Sharon H. indicated on her questionnaire that

her sister had been the victim of a burglary. When asked

whether she had any “extraordinary security precautions at

[her] home,” she wrote that she had burglar alarms. Sharon H.

said she would not automatically vote for death or for life

without parole. She indicated clearly that she was willing to

impose the death penalty and said, “My general feeling is that

some crimes warrant it — some don’t.” When asked if she had

religious objections to the death penalty, she wrote “No.” During

voir dire, Sharon H. said her views on the death penalty were

the same as what she wrote on the questionnaire. She explained

that she does not make any decision automatically, has “been

known to ask a lot of questions,” and always tries to consider

“[e]verything.”

4

PEOPLE v. JOHNSON

Liu, J., dissenting

Shanna H. was a 40-year-old homeowner with three

children in high school. She had been a state tax auditor for 19

years. On her questionnaire, she noted that she had twice been

the victim of burglary. She had “extraordinary security

precautions at [her] home,” including security bars and lights,

because “[she didn’t] want anyone taking what belongs to [her].”

As to her death penalty views, Shanna H. wrote that “the death

penalty [should be] used in cases where another life was taken

or any crimes committed against children & senior citizens.”

She indicated she would not automatically vote either for death

or for life without parole. When asked if she had religious

objections to the death penalty, she wrote “none.” During voir

dire, she reiterated that she would not automatically vote for or

against the death penalty. She clarified that she believed the

death penalty should be considered as a possibility when a life

is taken, not that it should be imposed any time a life is taken.

She also said that nothing in her religious beliefs dictated how

she should feel about the death penalty.

When asked whether a member of her family had been

arrested for a crime, Shanna H. wrote that her son had been

arrested twice, including once for rape. But the significance of

those incidents is not as clear as the court suggests. (Maj. opn.,

ante, at p. 47, fn. 7.) During voir dire, Shanna H. explained that

her main concern with her son’s criminal proceedings was the

plea-bargaining process. She said she “thought everybody was

suppose[d] to be tried by the jurors.” Plea bargaining was not at

issue in this case; Johnson was convicted in a jury trial.

Furthermore, Shanna H. emphasized that her son’s experiences

would not affect her impartiality as a juror in this case. She said

that “[t]hose are two separate issues” and that she knew “how

to draw the line.” She explained that as a tax auditor she

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PEOPLE v. JOHNSON

Liu, J., dissenting

“learned every case stands on its own merit. You deal with the

facts.”

It is evident that these three black women had diverse

backgrounds, occupations, and family circumstances. None of

them expressed views clearly suggesting partiality to the

defense; in fact, all of them had characteristics that might be

considered favorable to the prosecution. Lois G. and Shanna H.

had been victims of burglary, and Sharon H.’s sister had been a

victim of burglary; Johnson had been convicted of committing

murder during a burglary. (See People v. Turner (1986) 42

Cal.3d 711, 719.) All three jurors clearly expressed their

willingness to impose the death penalty; none indicated a

religious objection. And all three jurors consistently said they

would not automatically vote for or against the death penalty

and would instead make a decision based on the facts and

evidence — exactly as we would expect a conscientious juror to

do.

The removal of these three jurors occurred against the

backdrop of the prosecutor’s revelation one day earlier that he

had run a criminal background check on a black juror, Kenneth

M. The background check showed that Kenneth M. had been

convicted twice of driving under the influence and arrested once

for domestic violence, a record at odds with the assertion on his

juror questionnaire that he had never been accused of or

arrested for a crime. The prosecutor asked the trial court to

investigate Kenneth M. for misconduct and suggested that he

should be removed from the venire. (Kenneth M. was not

removed for cause and was eventually struck by the prosecution

during the selection of alternate jurors.)

6

PEOPLE v. JOHNSON

Liu, J., dissenting

In the trial court, there was no dispute that Kenneth M.

had provided inaccurate information on his questionnaire.

Instead, defense counsel wondered why the prosecutor, before

any individual voir dire of Kenneth M., had chosen Kenneth M.

for a criminal background check. Today’s opinion says defense

counsel’s concern was that “the prosecutor appeared to conduct

a criminal background check on only Kenneth M.” (Maj. opn.,

ante, at p. 44.) But what defense counsel actually said was:

“[Kenneth M.] is a Black or indicates on his form that he is

Black, and I am wondering if Mr. Mullins [the prosecutor] just

checked all the Black prospective jurors with respect to any

criminal record.” (Italics added.)

At this point, the prosecutor replied, “I don’t think I am

obliged to answer that inquiry,” and went on to explain that he

did not conduct criminal background checks on all prospective

jurors. He said his approach was “to check certain jurors when

they spark my interest” or “if I find something on the

questionnaire that sparks my interest.” Defense counsel asked

to “have the information as to all the jurors that Mr. Mullins

ran.” When the prosecutor refused, defense counsel made clear:

“I think a Wheeler Motion is always something that could occur

in any case of this nature, and I think we should always be

aware of what’s going on and what’s happening with respect to

any potential Wheeler Motion that may be made, and I don’t see

why Mr. Mullins would object to informing us as to which jurors

he ran a check on so that we have the same information with

respect to those jurors.” (See People v. Wheeler (1978) 22 Cal.3d

258 [California’s forerunner to Batson].) The prosecutor again

refused, claiming there was no prima facie case for any Wheeler

motion.

7

PEOPLE v. JOHNSON

Liu, J., dissenting

The prosecutor’s vague and evasive statements are cause

for suspicion. While stating that he ran background checks on

jurors who “spark my interest,” the prosecutor never pointed to

anything about Kenneth M.’s questionnaire that sparked his

interest or might have suggested Kenneth M.’s criminal history

warranted further investigation. And because individual voir

dire of Kenneth M. had not yet occurred, there is no suggestion

that something about Kenneth M.’s appearance or demeanor

sparked the prosecutor’s interest. Further, when directly asked

whether he had targeted all black jurors for criminal

background checks, the prosecutor refused to answer. When

defense counsel made clear that this issue would be relevant to

“any potential Wheeler Motion,” the prosecutor again refused to

answer. Even assuming the prosecutor was under no obligation

at that point to disclose how he had selected jurors for

background checks, it is suspicious that he did not simply

answer “no” when directly asked whether he “just checked all

the Black prospective jurors.” If the prosecutor had not targeted

only black jurors, why didn’t he say so? Answering “no” would

have put to rest any notion that he had targeted black jurors,

without requiring any affirmative description of how he had

selected jurors for background checks.

It is true that “the prosecutor repeatedly accepted the jury

when two African-American jurors were on the panel, and

ultimately accepted a panel with three African-American

jurors.” (Maj. opn., ante, at p. 43.) But the prosecutor accepted

the third black juror on the panel after the three contested

strikes had resulted in two Batson motions. (Cf. Miller-El v.

Dretke (2005) 545 U.S. 231, 250 (Miller-El) [“This late-stage

decision to accept a black panel member willing to impose a

death sentence does not . . . neutralize the early-stage decision

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PEOPLE v. JOHNSON

Liu, J., dissenting

to challenge a comparable venireman . . . .”].) And as for the

prosecutor’s acceptance of the other two black jurors on the

panel, this fact may lessen but hardly dispels an inference of

discrimination. (See dis. opn. of Cuéllar, J., post, at pp. 12–13.)

Even if the totality of circumstances here does not amount to

proof of discrimination, it is more than enough to raise a

significant question about the prosecutor’s intent. In situations

like this, “[t]he inherent uncertainty present in inquiries of

discriminatory purpose counsels against engaging in needless

and imperfect speculation when a direct answer can be obtained

by asking a simple question.” (Johnson v. California (2005) 545

U.S. 162, 172.)

In sum, the record readily supports an inference of

discrimination, and the trial court erred in failing to require the

prosecutor to state his reasons for striking three bla

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