People v. Hoyt

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE

Plaintiff and Respondent,

v.

RYAN JAMES HOYT,

Defendant and Appellant.

S113653

Santa Barbara County Superior Court

1014465

__________________________________________________________

January 30, 2020

Justice Kruger authored the opinion of the Court, in which Chief

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

and Groban concurred.

___________________________________________________________

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PEOPLE v. HOYT

S113653

Opinion of the Court by Kruger, J.

Defendant Ryan James Hoyt was convicted of the kidnap

and murder of Nicholas Markowitz and sentenced to death. We

affirm the judgment.

I. BACKGROUND

On October 30, 2000, defendant was charged by grand jury

indictment with kidnapping 15-year-old Nicholas Markowitz

(who was known as Nick) for ransom or extortion and for

murdering him, as well as a personal firearm use enhancement.

(Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(B), 209, subd.

(a).) Codefendants Jesse James Hollywood, Jesse Rugge,

Graham Pressley, and William Skidmore were charged with the

same crimes, but the cases were severed and defendant stood

trial first. A jury convicted defendant of one count of first degree

murder in violation of Penal Code section 187 and one count of

kidnapping committed with the personal use of a firearm in

violation of Penal Code sections 207 and 12022.5, respectively.

The jury also found true the special circumstance allegation that

the murder was committed during the course of a kidnapping

under Penal Code section 190.2, subdivision (a)(17)(B). The jury

returned a verdict of death. This appeal is automatic. (Id.,

§ 1239, subd. (b).)

PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

A. Guilt Phase Prosecution Case

The events that led to Nick’s kidnap and murder stemmed

from a feud between Jesse James Hollywood and Nick’s half-

brother, Ben, over a drug debt. Ben was supposed to have sold

illegal drugs for Hollywood but failed to do so. As a result, Ben

owed Hollywood $1,200, and their relationship had soured over

this debt. On one occasion, Hollywood retaliated against Ben by

running up a tab in the restaurant where Ben’s girlfriend

worked and leaving a note saying Ben could pay the bill from

the debt he owed Hollywood. For his part, Ben took revenge on

Hollywood by telling Hollywood’s insurance company that

Hollywood had falsely reported a vehicle stolen. Ben later broke

windows in Hollywood’s home. Although there was conflicting

testimony about precisely when the windows were broken, one

prosecution witness testified the event occurred on August 4,

2000. The next day, Hollywood would inform others that he

needed to move because his windows had been “busted out” and

people knew where he lived. The day after that, Hollywood

arranged to have Nick kidnapped. A few days later, worried

about the serious penal consequences if that crime was

discovered, Hollywood decided to eliminate Nick.

Hollywood enlisted defendant’s help. Defendant, like Ben,

sold drugs for Hollywood, and he also owed Hollywood money.

Mutual friends described defendant as the “low man on the

totem pole” in their circle. To pay for the drugs he purchased

from Hollywood for resale, defendant performed—and was often

teased for doing—menial, odd jobs for Hollywood, including yard

work, pet care, and housework. According to Brian Affronti, a

friend of both defendant and Hollywood, defendant did whatever

Hollywood asked of him, without complaint. Defendant agreed

to carry out the killing, along with two accomplices, in exchange

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for financial compensation including the forgiveness of his debt

to Hollywood.

Timeline

1. August 5, 2000

The events leading up to the crimes began on Saturday,

August 5, 2000, when Casey Sheehan, who also sold marijuana

for Hollywood, delivered a van to Hollywood’s West Hills home.1

Hollywood had told Sheehan that Hollywood needed to move

because people knew where he lived. When Sheehan arrived at

Hollywood’s home, defendant, Skidmore, and one other friend

were there, drinking beer and smoking marijuana. Some hours

later, Sheehan, Hollywood, and Skidmore met again at

Sheehan’s apartment, where Hollywood and Skidmore talked

about driving to Santa Barbara for a local party known as

Fiesta.

That same evening, Nick returned home a half hour before

his midnight curfew. His parents noticed he looked “glazed,” his

speech was slurred, and he had a bulge in his pocket. When they

confronted him, he ran out of the house and did not return for

an hour. When he returned, he agreed to speak with his parents

in the morning. Nick’s parents worried that he had been getting

involved with drugs, in part because Ben was a drug user.

2. August 6, 2000

On the morning of Sunday, August 6, two passersby saw a

dark-haired teenager being beaten by four other similar-aged

boys in West Hills. Both the assailants and their victim

appeared to be Caucasian. When the assailants were done

1

As the jury was informed, Sheehan testified under a grant

of immunity, which would be void if he failed to be truthful.

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hitting and kicking the dark-haired boy, they threw him into a

white van.

Affronti testified that at about 2:00 that afternoon,

Hollywood, Skidmore, and their friend Jesse Rugge picked him

up in a white van to drive to Santa Barbara for Fiesta. When

Affronti entered the van, he saw Nick in the back. Affronti knew

Ben, but he did not initially realize Nick was Ben’s younger

brother. Affronti did not know anything was out of the ordinary

until Hollywood told Nick “that his brother was going to pay up

his money” and “for Nick not to run or anything like that, not to

try and do anything irrational.”

When the men arrived in Santa Barbara, they stopped at

an apartment belonging to Richard Hoeflinger, a longtime

friend of Rugge’s. Hollywood asked Affronti to park the van and

directed Rugge to make calls from Affronti’s cell phone to

unknown recipients. Telephone records also showed that two

phone calls were placed that afternoon from Hoeflinger’s home

to defendant’s home phone number. Hollywood and Skidmore

then went into the apartment with Nick. When Affronti entered

after parking the van, he saw Nick in a bedroom with his hands

duct-taped in front of him and his shins also taped. Hollywood

and Rugge then left for a time; when Hollywood returned,

Affronti and Skidmore left in the van.

Hoeflinger, the apartment’s primary tenant, had not seen

his friend Rugge for a while before Rugge stopped by on August

6. Rugge asked if he could come in and Hoeflinger readily

agreed, but Hoeflinger was surprised when a group—which

included Nick—came in with Rugge. Emilio Jelez, Jr.,

Hoeflinger’s roommate at the time, and their friend Gabriel

Ibarra were also at the house when Rugge and others arrived

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Opinion of the Court by Kruger, J.

with Nick. Jelez and Ibarra saw Nick sitting in a bedroom of

the house with his wrists and ankles bound with duct tape.

Ibarra had never met Hollywood, but testified he did not call the

police or tell anyone what he had seen because he was afraid of

Hollywood after Hollywood walked up to Ibarra, intimated he

had a gun, “and pretty much threatened [Ibarra], told [him] that

[he] better keep [his] F’ing mouth shut.”

At some point that evening, Hoeflinger walked into his

bedroom and saw Rugge and Skidmore removing duct tape from

Nick’s wrists. Skidmore assured Hoeflinger that everything was

“ ‘cool’ ” and they were “ ‘just talking’ ” to Nick. Reassured,

Hoeflinger left his house less than a half hour later to attend a

barbecue. Hoeflinger returned home at dusk to find Nick and

Rugge drinking alcohol together in his living room with Nick

still unbound. Nick and Rugge then left Hoeflinger’s home

together a few hours later.

In the meantime, Affronti and Skidmore drove back to Los

Angeles in the white van. Affronti realized en route that he had

forgotten his cell phone and returned to Hoeflinger’s home to

retrieve it; there he saw Nick and Hollywood still spending time

together. Back in Los Angeles, Skidmore dropped Affronti off at

home and continued to Hollywood’s house, where he met

defendant. Skidmore did not mention Nick. Defendant and

Skidmore returned the van to its owner. Defendant and

Skidmore walked back to Hollywood’s house, where defendant

left Skidmore.

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3. August 7, 2000

a. Nick Spends the Day in Santa

Barbara

On the morning of August 7, Natasha Adams-Young, then

age 17, met Nick at Rugge’s house in Santa Barbara. Adams-

Young had been spending time with Rugge that summer. After

meeting Nick, Adams-Young spoke with Pressley, a mutual

friend of hers and Rugge’s. Pressley told her “that they, quote

unquote, kidnapped this kid [Nick] and brought him back up

here to Jesse Rugge’s house.” The group then caravanned to

Adams-Young’s house. Adams-Young, feeling concerned for

Nick’s welfare, spoke with Nick, and suggested he was free to

leave. Nick declined, explaining to Adams-Young that he

planned “to stick around” “to help out his brother and that he

was fine.”

The group eventually returned to Rugge’s home.

Hollywood and his girlfriend, Michele Lasher, met up with the

group there. Then-16-year-old Kelly Carpenter, another mutual

friend of Adams-Young and Rugge, had met Hollywood the week

before and knew that Hollywood, Rugge, and Pressley were

involved with selling marijuana. Adams-Young understood that

Nick’s presence in Santa Barbara and at Rugge’s home was

related to Hollywood in some fashion.

At Rugge’s home, Nick remained in a separate bedroom

talking to Rugge. Carpenter overheard Hollywood speaking to

his girlfriend about their plans that night and also heard

Hollywood talking to others about what he would do with Nick.

Hollywood said he might tie Nick up, throw him in the backseat

of the car, and then get something to eat. Although it was said

in a joking manner, the comment made Carpenter

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uncomfortable. Carpenter and Adams-Young left Rugge’s house

shortly thereafter.

b. Hollywood Confesses the

Kidnapping to Sheehan

Sheehan testified that Hollywood and Lasher socialized at

Sheehan’s apartment later on the night of August 7, drinking

alcohol and smoking marijuana with him. Sheehan conceded he

was “probably” “pretty wasted” and did not recall whether

Hollywood and Lasher spent the night. Sheehan did recall

Hollywood telling him he had taken Nick to Santa Barbara on

Sunday, August 6. Hollywood, Rugge, Affronti, and Skidmore

“pulled over” and “picked up” or “grabbed” Nick while he was

walking down the street. Sheehan did not believe anyone other

than those four men were involved in Nick’s capture. Hollywood

told Sheehan that Nick was still staying with Rugge in Santa

Barbara on August 7.

4. August 8, 2000

Nick’s parents reported their son missing on Tuesday

morning, August 8, after finally reaching Ben and realizing Nick

was not with him.

a. Nick’s Time in Santa Barbara

Adams-Young testified that Nick was still at Rugge’s

house when she returned there the morning of August 8.

Adams-Young was concerned with Nick’s continued presence in

Santa Barbara when “he wasn’t supposed to be” there and

discussed the issue with Pressley and Carpenter. Pressley told

Adams-Young he was not sure what he planned to do “but that

they weren’t going to hurt [Nick] in any way and that they were

just waiting to get a call from Jesse Hollywood.” Pressley also

told Adams-Young that “Hollywood had called Jesse Rugge and

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offered him money to kill Nick Markowitz.” Adams-Young

recalled “being shocked and appalled,” and Pressley assured her

he had no plans to kill Nick but also confessed he was not sure

what should be done with Nick. Pressley believed they were all

in danger.

Adams-Young returned to Rugge’s home and confronted

him. Rugge told Adams-Young he was not sure what he should

do, but “knew he was going to take Nick home” and planned to

provide him with a bus ticket, though he feared Nick would tell

someone about the kidnap when he returned home. Rugge

expressed concern about going to jail. Nick, who was present

during this conversation, assured Rugge he would not tell

anyone when he got home.

Shortly thereafter, Rugge suggested the group go to a

motel for the evening. Pressley’s mother drove Pressley,

Carpenter, Rugge, and Nick to the Lemon Tree Inn, where the

group stayed from 7:00 p.m. until 11:30 p.m. Rugge selected and

paid for the motel. Once there, they were joined by a friend,

Nathan Appleton, and Adams-Young met up with the group

later. The mood was celebratory, as Adams-Young and

Carpenter believed Nick would be going home that evening.

Nick spoke happily about what he would do once he returned

home. Around 11:00 or 11:30 p.m., Rugge asked Adams-Young,

Appleton, and Carpenter to leave for the night.

b. Hollywood’s Activities on the

Evening of August 8, 2000

On August 8, Hollywood visited the home of Stephen

Hogg, a criminal defense attorney who had a professional

relationship with both Hollywood and his father, John.

Hollywood explained to Hogg that acquaintances had picked up

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Opinion of the Court by Kruger, J.

the brother of the man who had damaged his home and had

taken the brother to Santa Barbara. Hollywood sought Hogg’s

advice. When Hogg suggested Hollywood go to the police,

Hollywood said he could not do that. Hogg described to

Hollywood the penalties for kidnapping as eight years, or—if

ransom was sought—life. Hollywood made clear that this was

something other people had done and that he was personally

uninvolved. Hollywood became agitated and left Hogg’s home

within five minutes of Hogg’s explaining the potential penalties

for kidnapping. Hogg tried to page Hollywood several times

after Hollywood left, but Hollywood did not respond.

On the evening of August 8, Hollywood and Lasher went

to Sheehan’s apartment to borrow Sheehan’s car. Hollywood

ran an errand in the car while Lasher stayed at the apartment.

Hollywood then returned without the car, and all three went out

to dinner to celebrate Lasher’s birthday.

5. August 9, 2000–August 17, 2000

a. Hollywood’s Father Rushes Home

Hollywood’s father, John, testified that on the evening of

August 8, he contacted Hogg and learned that Hollywood had “a

problem” or was “in trouble.” John was on vacation in Big Sur

but left for home after learning his son might be in trouble. John

tried unsuccessfully to reach his son numerous times on his way

home. John finally reached Hollywood via Lasher, and

Hollywood directed him to Lasher’s home. John arrived at

Lasher’s Calabasas home at 2:00 a.m. on the morning of August

9 to find his son looking “nervous and rattled.” John understood

that Hollywood believed his life was in some danger, that

Hollywood and Ben had been in a feud for some time, and that

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Opinion of the Court by Kruger, J.

Hollywood’s agitation was related to the kidnapping of Ben’s

younger brother.

b. Hollywood’s Father Contacts

Defendant

Later that day, John paged defendant and asked to meet

at a park. John asked defendant what was “ ‘going on with this

situation, you know, this kid’ ” and suggested they go “ ‘find out

where he is,’ ” “ ‘go get him and take him home.’ ” Defendant

told him that “he didn’t have control of the situation. And he,

you know he was trying to find out, but he wasn’t having any

luck.” John told defendant that when he asked his son where

Nick was and who was holding him, Hollywood had not provided

those details and instead told John to call defendant. Defendant

told John he did not know those details either, but “would see

what he could find out.” John and defendant agreed this was “a

bad situation,” and defendant indicated that “he wasn’t involved

in this thing from the start, and he was kind of irritated that he

was even being dragged into it.”

c. Sheehan and Defendant Spend

Time Together

When Sheehan came home from work on the afternoon of

August 9, he noticed the car he had loaned to Hollywood the day

before had been returned. That evening, Hollywood, Affronti,

Skidmore, Lasher, and defendant were at Sheehan’s home.

Defendant told Sheehan that “a problem was taken care of.”

Sheehan understood this to refer to Nick. When Sheehan asked

defendant to elaborate, defendant initially said it was “best that

[he] left things unsaid,” but eventually confessed that “Nick had

been killed.”

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After this conversation, Sheehan drove defendant to a

store where defendant purchased shirts, pants, and shoes

totaling a “couple hundred dollars,” paying in cash. Sheehan did

not believe defendant was working at the time, and he had

known that defendant was in debt to Hollywood. Defendant

assured Sheehan that the debt to Hollywood “was taken care of.”

In fact, Hollywood had given defendant “three or four hundred

bucks” the day before his birthday and told defendant, “[W]e’re

straight. No more debt.” Defendant spent the night at

Sheehan’s house that evening and celebrated his 21st birthday

the next day. After enjoying a party with between 20 and 30

guests at Sheehan’s home, defendant again spent the night

there.

A few days later, Sheehan and defendant again discussed

Nick’s killing. Defendant told Sheehan they killed Nick

somewhere in Santa Barbara. Defendant described picking

Nick up from a motel and taking him to a site where they “shot

him and put him in a ditch,” and covered him with a bush.

Sheehan and defendant were together when defendant was

arrested; Sheehan was also arrested and released that same

evening.

d. Nick’s Body Is Discovered

On August 12, 2000, a group of hikers, including witness

Darla Gacek, were hiking in the Los Padres National Forest in

Santa Barbara County. They were passing through an area

known as Lizard’s Mouth, which is situated approximately three

and one-half miles from Highway 154. The hikers heard what

they thought was a swarm of bees coming from a location

approximately one-quarter mile beyond the point where vehicles

can go no further. The group saw brush piled high, and when

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they began removing it, they realized a human might be buried

beneath it. The group of hikers left the site to find a cell phone

to call the police. They encountered a group filming nearby.

Lars Wikstrom, a film video editor, had gone to the

Lizard’s Mouth area that day to help friends film a music video.

While Wikstrom was filming there, a man pointed out an area

to him about 20 to 30 yards away. Wikstrom followed the man,

initially noting a strong odor similar to that of a dead animal by

a roadside. As the two got closer, Wikstrom could see and hear

numerous flies near the ground. Wikstrom saw fine powder on

the ground, and then noted what appeared to be Levi’s denim

jeans and part of a shirt. Because Wikstrom was unsure

whether what he saw was a person, he decided to call the police.

Wikstrom waited for the police to come, directing hikers away

from the area.

Law enforcement arrived about an hour and a half after

Wikstrom called. Detective William Michael West, one of the

first detectives at the scene, observed cut brush along the entire

trail, from the trail head at West Camino Cielo all the way to

the location of the shallow grave. Detective West testified that

“[i]t looked like somebody had cleared the trail,” both at the

gravesite and all along the trail.

Criminalist George Levine also responded to the scene.

Nick’s body was only lightly and partially covered with dirt. The

weather that day and for a few days before was warm, resulting

in significant decomposition. Law enforcement officials

removed cartridge casings and a bullet from the first few inches

of the shallow grave. After the body was removed from the site,

a TEC-9 weapon, modified to be fully automatic, was found

under the area where Nick’s feet had been resting. Nick’s mouth

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had been duct-taped. Duct tape was also wrapped around Nick’s

hands and head.2

An autopsy revealed Nick had suffered a total of nine

gunshot wounds. Several of the gunshots would have

independently been fatal, but due to the level of decomposition

the medical examiner was unable to state which of the injuries

caused Nick’s death.

e. Pressley Confesses to Digging the

Gravesite

Detective Jerry Cornell testified that he interviewed

Pressley on August 16, and Pressley admitted digging a grave

in the trail area off San Marcos Pass known as Lizard’s Mouth

in the early morning hours of August 9.

f. Defendant Confesses to the Killing

On August 16, defendant was arrested, taken to a Santa

Barbara jail, and advised of his Miranda rights.3 According to

Detective West, defendant said that he decided to speak to

detectives after seeing a television broadcast regarding the case

and speaking to his mother. After defendant informed jail

officials he wished to be interviewed, detectives met with

defendant in the sheriff headquarters in Goleta, where they

audio- and video-recorded their encounter with him. Defendant

2

Once the tape was removed at the morgue, Nick was seen

to be wearing a ring. Nick also wore a distinctive belt buckle.

The parties stipulated to the identification of the deceased at

trial.

3

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

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was re-Mirandized and asked to explain why he was involved in

the crime.

Defendant told Detective West and Sergeant Ken

Reinstadler, “I’m going down. I, I just realized that.” The

detectives asked defendant to explain “how this went down,” and

defendant asked if they would “mind if I go back to my cell and

think about [it] tonight and talk to you guys tomorrow because

I know my arraignment is Monday.” Defendant expressed

concern that what he said would be repeated in court, but then

requested water and continued the conversation with the

detectives, explaining, “I had nothing to do with the

kidnapping.” Defendant asked why he was charged with that

crime.4 The detectives responded by urging defendant to tell his

story.

Defendant told them Ben owed Hollywood significant

sums of money, as did he. Defendant explained he was told he

could erase his own debt in exchange for killing someone; the

person was someone unknown to him. Defendant told detectives

4

Defendant alleges the transcript used at trial contained

two inaccuracies. After his assertion to detectives that he had

nothing to do with the kidnapping, the transcript given to jurors

indicated that there was some whispering before defendant

asked why he was charged. A later-filed corrected transcript of

the interview indicates that Reinstadler had responded to

defendant’s initial assertion that he had nothing to do with the

kidnapping by whispering, “We know that.” Defendant also

claims the transcript used at trial contained an error in an

exchange during which defendant indicated he met someone at

the Lemon Tree Inn. At trial, the transcript read, “WEST: You

met someone there? HOYT: Nick.” The corrected transcript

reads, “WEST: You met someone there? HOYT: Yeah.” These

discrepancies do not affect our evaluation of the issues in this

case.

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he drove Sheehan’s car to a motel in Santa Barbara. When

asked what happened next, defendant said, “You guys know

what happened. I think I’m going to stop there for now.” He

again requested water, then expressed concern for his family’s

well-being.

Sergeant Reinstadler reminded defendant that he had the

right to stop speaking to them at any point. Detective West

offered to let defendant “collect [his] thoughts,” and defendant

said he wished “more than anything” that he had a cigarette.

Sergeant Reinstadler reminded defendant, “You wanted to talk

to us, man.” Defendant asked whether he had been helpful, and

the detectives urged him to fill in more “piece[s] of the puzzle.”

Reinstadler asked him, “Who are you ultimately concerned

with? Who, who do you feel sorry for here?” Defendant replied,

“Not me,” continuing, “That kid I buried.” Reinstadler asked

him if he was “[w]ak[ing] up thinking about someone saying,

‘Please. Please.’ ” The detectives asked if that was what the

duct tape around the victim’s mouth was for, and defendant

replied, “Close.”

Reinstadler asked defendant if he put the duct tape on

Nick’s mouth, but defendant denied doing it. Reinstadler then

asked whether Jesse did it, and defendant said Hollywood was

not in Santa Barbara. Reinstadler clarified he meant Jesse

Rugge, not Jesse Hollywood, and told defendant that Rugge had

said that defendant placed the duct tape around Nick’s mouth.

Defendant replied, “I love this one. The only thing I did was kill

him.” Defendant added that he did not select the gravesite or

dig the grave; Pressley, whom he had not previously known,

handled both those tasks. The detectives asked defendant if he

had any moments of feeling what he was doing was wrong, and

he said he did think that, for a moment, “right before.”

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B. Defense Case

1. Defendant’s Testimony

Defendant testified on his own behalf. He acknowledged

that he was friends with, and sold drugs for, Hollywood. He was

indebted to Hollywood and did odd jobs, including yard work, to

reduce his debt.

On August 5, 2000, defendant helped Hollywood pack up

his house. Someone had broken the windows of the house, and

Hollywood had received a voicemail that Ben, who sometimes

sold marijuana for Hollywood, was the culprit. Defendant

finished cleaning up the broken glass and went to his

grandmother’s home around 10:00 p.m. that evening.

On August 8, 2000, at around 2:30 p.m., defendant went

to Hollywood’s home. He and Hollywood drove around for a

while, and Hollywood seemed excited. Hollywood asked if

defendant would like to work off the last $200 of his debt by

delivering a package to Rugge in Santa Barbara. Defendant

testified that Hollywood told him if he delivered the package, his

debt would be “clear” by his birthday a few days later.

Defendant was to drive Sheehan’s car. Defendant assumed

Hollywood was not going himself because he was celebrating his

girlfriend’s birthday. Defendant agreed, and Hollywood told

him where Rugge was staying and gave him a phone number to

reach Rugge. Defendant testified he then waited at Hollywood’s

home for about three or four hours, at which point Hollywood

picked up defendant and took him to Sheehan’s home to pick up

Sheehan’s car. Hollywood gave defendant a bag to deliver to

Rugge, and defendant testified that he did not look inside,

presuming it to contain marijuana. No one mentioned anything

about Nick to defendant.

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Defendant drove to Santa Barbara. He called Rugge from

a mini-market off the highway, and Rugge directed him to a

room at the Lemon Tree Inn. Defendant delivered the bag,

annoyed that Pressley was in the room because defendant had

asked that Rugge be alone. Rugge asked defendant to drive him

back to the San Fernando Valley in the morning, and defendant

agreed. Rugge and Pressley borrowed the car for several hours,

returning to the room about 2:30 a.m. Once they returned,

defendant and Rugge drove back toward Los Angeles.

Defendant dropped Rugge off at Rugge’s mother’s home.

Defendant then drove to his grandmother’s house, where he was

then living.

Defendant testified that he did not hear of Nick’s death

until the evening of August 12, when Skidmore told him that

“Ben’s brother had been found murdered.” Several days later,

defendant learned Skidmore had been arrested. Defendant

began calling mutual friends, including Sheehan, who told

defendant “he didn’t want [him] at his house.” Defendant did

not heed Sheehan’s request. Defendant received several pages

from a number he did not recognize, and believed police were

trying to reach him. Defendant asked Sheehan to take him to a

pay phone so he could call the police. He was arrested shortly

thereafter.

Following his arrest, he was eventually taken to Santa

Barbara, although he did not recall events with specificity. He

recalled throwing up and knew he called his mother but claimed

to have no memory of the content of the phone call. In fact,

defendant testified that he recalled nothing from the time of his

arrest on August 16 until he woke up alone in a jail cell four

days later. He did not remember his confession to detectives on

August 17.

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Defendant’s taped confession was played for the jury.

Defendant testified that none of the statements indicating he

was responsible for Nick’s death were true.

2. Dr. Kania’s Testimony

The defense proposed to call Dr. Michael Kania to testify

that defendant’s confession was false. Following an Evidence

Code section 402 hearing, the trial court ruled that Dr. Kania

could testify in response to hypothetical questions that assumed

defendant suffered from amnesia, including the characteristics

of amnesia. But the court ruled that Dr. Kania would not be

permitted to “testify as to circumstances, the things that he was

told by the defendant. The defendant can testify to those

things.”

Following the trial court’s ruling, Dr. Kania testified that

he believed defendant’s claim of amnesia concerning his

confession was credible. Defendant told Dr. Kania the only

thing he recalled from the interrogation was walking into the

room, being told to calm down, and to wait. Defendant told him

the next thing he remembered was leaving the interrogation.

C. Guilt Phase Rebuttal Case

Dr. David N. Glaser and Dr. Dana Chidekel testified for

the prosecution in rebuttal. Dr. Glaser testified that after

examining defendant and reviewing a great deal of case

information, he concluded defendant suffered from “no current

major mental illness.” Dr. Glaser opined that defendant

suffered from an avoidant personality disorder “with dependent

features.” He had low self-esteem, was willing to endure

“unpleasant conditions” to remain near the person on whom he

was dependent, and was uncomfortable acknowledging his

feelings. None of these features, in Dr. Glaser’s opinion, made

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defendant more likely to falsely confess. Dr. Glaser also

evaluated defendant for amnesia. Because defendant was

unable to recall anything about his interview with police based

upon cues given from the transcripts, and because total amnesia

absent a traumatic event or general anesthesia is very

uncommon, Dr. Glaser concluded that defendant was

malingering.

Dr. Chidekel testified that she evaluated defendant and

administered numerous psychological tests to determine

whether defendant had a psychological disorder rendering him

susceptible to falsely confessing. Dr. Chidekel determined

defendant suffered from “avoidance [sic] personality disorder,

with self-defeating and dependent features.” Based on the tests

administered, Dr. Chidekel was unable to diagnose defendant

with any other neuropsychological condition that interfered

with his “ability to see, to understand, or to be able to

communicate effectively.”

D. Penalty Phase

1. Aggravation

Nick’s mother, Susan Markowitz, testified about the

impact the loss of her son had on her and on her relatives and

friends. Nick was one of three children, and his sister had the

comfort of knowing Nick held his niece before his death, but not

his sister’s second child, who was not yet born at the time Nick

died. Susan testified that she twice tried to commit suicide,

“only to succeed in accumulating a twenty thousand dollar

hospital bill.” She told the jury, “There is no meaning to life

without Nick.”

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2. Mitigation

Victoria, defendant’s mother, testified about defendant’s

dysfunctional upbringing. Victoria was 19 years old when she

married defendant’s father, James Hoyt, and 21 when she gave

birth to defendant. Victoria testified that her husband was

“extremely abusive” to her, and not nice or attentive to the

children. James grabbed her by the hair and threw her against

a car and to the ground when she was eight months pregnant

with defendant, nearly resulting in miscarriage. When

defendant was four years old, James threw Victoria to the

ground in front of her children and beat her with a pipe wrench.

James had to be physically restrained by Victoria’s brother. The

couple divorced when defendant was five years old and, despite

the physical abuse, James was awarded custody. Following

their divorce, Victoria began using cocaine and drinking heavily.

Victoria’s sister, Anne Stendel Thomas, testified that

defendant’s father and mother verbally abused and threatened

defendant throughout his childhood. Thomas testified that

Victoria abused drugs and alcohol from an early age, and her

alcohol abuse continued and worsened throughout defendant’s

childhood. Her family was dysfunctional, and Victoria had been

a depressed child who would spend hours or days alone in her

room without moving or talking. Thomas testified that

defendant was a “sweet kid,” and she viewed him—the middle

child—as a mediator.

Victoria’s mother, Carol Stendel, testified about Victoria’s

early childhood. When Victoria was in fourth grade, she would

stand in class and walk around without being aware of her

behavior, despite performing at or above grade level in her

coursework. At age 14, Victoria began seeing a psychiatrist, who

recommended she be hospitalized due to depression. The family

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decided against treatment. Defendant’s grandfather also

suffered from depression.

Stendel made efforts to make her grandchildren feel

welcome in her home. She worried the children would feel

abandoned or abused by their parents. She testified that “in

their young lifetime, nobody, I mean nobody really helped them

to have safety and comfort.” Her eldest grandchild—defendant’s

sister, Christina—was a heroin addict. Stendel testified that

she loved defendant very much.

At the time of defendant’s trial, his younger brother,

Jonathan, was serving a 12-year prison sentence for armed

robbery and conspiracy to commit home invasion. Jonathan

committed the crimes as a 16 year old but was tried as an adult.

Jonathan testified about their abusive family, particularly their

abusive stepmother, and the physical abuse defendant suffered

at their father’s hands. When asked how he would feel if

defendant were to receive the death penalty, Jonathan

responded that he could “hardly take him being in jail period.”

He continued, “As far as putting him . . . on death row . . . , that’s

pretty awful.” James, defendant’s father, was asked about the

effect on him if his son was sentenced to death. He responded

that “[i]t would be a living nightmare you can’t wake up from.”

II. DISCUSSION

A. Jurisdictional Claim

Defendant’s first claim on appeal concerns the superior

court’s jurisdiction to hear the case. The evidence indicates that

the murder took place at or near the location where Nick’s body

was found in the area known as Lizard’s Mouth, which is

situated within the boundaries of the Los Padres National

Forest. Defendant contends that because the murder took place

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in a national forest, the case falls within the exclusive territorial

jurisdiction of the courts of the United States, and thus outside

the jurisdiction of the superior court.

Defendant did not raise this argument in the trial court,

which would ordinarily bar him from raising it on appeal. (See

In re Sheena K. (2007) 40 Cal.4th 875, 880–881.) But if, as

defendant contends, the superior court lacked territorial

jurisdiction, then it was without authority to act in the matter

and should not have entered judgment in the case. (People v.

Betts (2005) 34 Cal.4th 1039, 1050.) A claim of fundamental

jurisdictional defect is not subject to forfeiture or waiver.

(People v. Lara (2010) 48 Cal.4th 216, 225.) We are therefore

obligated to address the claim. It is, however, without merit.

The fact the murder was committed within the boundaries

of a national forest does not necessarily mean that the federal

government, and the federal government alone, was empowered

to prosecute the crime. As this court explained more than a

century ago, federal ownership of land does not necessarily

establish “federal jurisdiction over crimes committed upon it, as

that fact does not oust the jurisdiction of the state . . . .” (People

v. Collins (1895) 105 Cal. 504, 509.) “[F]or many purposes a

State has civil and criminal jurisdiction over lands within its

limits belonging to the United States,” including the

punishment of “public offenses, such as murder or larceny,

committed on such lands.” (Utah Power & Light Co. v. United

States (1917) 243 U.S. 389, 404; see People v. Rinehart (2016) 1

Cal.5th 652, 660.) Whether the federal government has

exclusive jurisdiction over crimes committed on federal lands

depends on the terms on which the lands were acquired from the

states. (See Kleppe v. New Mexico (1976) 426 U.S. 529, 542–543

[under enclave clause of the federal Constitution (U.S. Const.,

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art. I, § 8, cl. 17), state may cede either exclusive or limited

jurisdiction to federal government].) Defendant points to no

authority indicating that the federal government acquired the

Los Padres National Forest on terms establishing exclusive

federal jurisdiction to prosecute crimes committed therein.

Defendant’s argument against state criminal jurisdiction

is rooted in an apparent misreading of California history. The

Los Padres National Forest was first created by presidential

proclamation in 1903, when it was known as the Santa Barbara

Forest Reserve. (Pres. Proc. No. 14, 33 Stat. 2327, Dec. 22,

1903.)5 As defendant notes, the national forest is made up of

lands that had been ceded by Mexico in the Treaty of Guadalupe

Hidalgo, under which title to lands not privately held passed to

the United States. (Feb. 2, 1848, 9 Stat. 922; see Thompson v.

Doaksum (1886) 68 Cal. 593, 596.) Defendant claims that

Congress asserted exclusive jurisdiction over these lands when

California was admitted to the Union two years later. (Act for

the Admission of the State of Cal. into the Union, Sept. 9, 1850,

ch. 50, § 3 (Act for Admission) 9 Stat. 452.)

Defendant is incorrect. The Act for Admission contains no

provision reserving to the federal government exclusive

jurisdiction over all public lands ceded by Mexico in the Treaty

of Guadalupe Hidalgo. (See Coso Energy Developers v. County

of Inyo (2004) 122 Cal.App.4th 1512, 1522–1523; accord, Martin

v. Clinton Construction Co. (1940) 41 Cal.App.2d 35, 46; see

generally Fort Leavenworth R. R. Co. v. Lowe (1885) 114 U.S.

525, 539.) Defendant relies on the noninterference clause of the

Act for Admission: “That the said State of California is admitted

5

The Los Padres National Forest took its present name in

1936. (Exec. Order No. 7501 (Dec. 3, 1936).)

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into the Union upon the express condition that the people of said

State, through their legislature or otherwise, shall never

interfere with the primary disposal of the public lands within its

limits, and shall pass no law and do no act whereby the title of

the United States to, and right to dispose of, the same shall be

impaired or questioned.” But this noninterference clause is not

unique to California (see Van Brocklin v. State of Tennessee

(1886) 117 U.S. 151, 164), and it offers no support for

defendant’s argument. Suffice it to say, a prohibition on

interfering with federal title is not the same as a prohibition on

prosecuting crime. (See Coso Energy, at pp. 1522–1523, citing

U.S. v. Bateman (N.D.Cal. 1888) 34 F. 86, 88–90.)

In the alternative, defendant argues that California

relinquished its prosecutorial power to the federal government

in an 1891 act ceding “exclusive jurisdiction over such piece or

parcel of land as may have been or may be hereafter ceded or

conveyed to the United States, during the time the United

States shall be or remain the owner thereof, for all purposes

except the administration of the criminal laws of this State and

the service of civil process therein.” (Stats. 1891, ch. 181, § 1,

p. 262.) That statute was reenacted in 1943 as Government

Code section 113, subsequently repealed, and eventually

reenacted in its current form to provide for the state’s

acceptance of the retrocession of jurisdiction from the federal

government of “land within this state.” (Gov. Code, § 113; see

Stats. 1943, ch. 134, p. 898 [1943 version].)

The difficulty with this argument is that the cession

provision on which defendant relies contains an explicit

exception for “the administration of the criminal laws of this

State.” (Stats. 1891, ch. 181, § 1, p. 262.) Defendant asserts

that this exception “has been uniformly interpreted as limited

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to the right to serve process,” but that is not what the statute

says, and defendant offers no support for his unlikely

interpretation. Nor is there any evidence that Congress

declined the terms of California’s partial cession of jurisdiction.

(See S. R. A., Inc. v. Minnesota (1946) 327 U.S. 558, 563.) As

particularly relevant here, only a few years later Congress

explicitly recognized the states’ authority to reserve jurisdiction

over national forest lands: In Title 16 United States Code

section 480, enacted in 1897, Congress provided that the states’

jurisdiction “over persons within national forests shall not be

affected or changed by reason” of the creation of national forests.

“By this enactment Congress in effect . . . declined to accept

exclusive legislative jurisdiction over forest reserve lands . . . .”

(Wilson v. Cook (1946) 327 U.S. 474, 487, italics added.)

In sum, although California ceded the lands comprising

the Los Padres National Forest to the United States, California

also retained jurisdiction to administer its criminal laws on the

ceded lands. Defendant points to nothing in the history of the

Los Padres National Forest to suggest it was an exception to this

reservation of criminal jurisdiction. The superior court did not

err in exercising jurisdiction in this matter.

B. Jury Selection Claims

1. Adequacy of Voir Dire

Defendant argues the trial court committed several errors

that resulted in inadequate voir dire of prospective jurors.

Defendant’s claims lack merit.

a. Denial of Request for Sequestered

Voir Dire

Defendant first points to the trial court’s decision to deny

defendant’s request for sequestered voir dire. Before jury

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selection began, defendant had filed a motion seeking

sequestered voir dire concerning prospective jurors’ attitudes

toward the death penalty and regarding the extent of pretrial

publicity. Defense counsel argued that sequestration would

avoid the potential contamination of prospective jurors who

might learn what others had seen or heard in the media.

Defense counsel also argued sequestered voir dire was necessary

to determine prospective jurors’ attitudes toward the death

penalty “alone, separately,” and “face-to-face” with counsel. The

prosecution opposed the motion on the ground that

sequestration was unnecessary; jurors’ attitudes and exposure

to pretrial publicity could be explored through juror

questionnaires. The trial court denied the motion, agreeing with

the prosecution that juror questionnaires would adequately

respond to defendant’s concerns.

Although defendant now asserts that the trial court erred

in denying the motion, he offers no substantive argument to

support the claim and has therefore forfeited it. But even if the

claim were properly presented for review, we would find no

error. “ ‘[I]n reviewing a trial court’s denial of a defendant’s

motion for individual sequestered jury selection, we apply the

“abuse of discretion standard,” under which the pertinent

inquiry is whether the court’s ruling “falls outside the bounds of

reason.” ’ ” (People v. Perez (2018) 4 Cal.5th 421, 443, quoting

People v. Famalaro (2011) 52 Cal.4th 1, 34.) We remain mindful

that “ ‘[i]ndividual sequestered jury selection is not

constitutionally required, and jury selection is to take place

“where practicable . . . in the presence of the other jurors in all

criminal cases, including death penalty cases.” ’ ” (Perez, at

p. 443, quoting Code Civ. Proc., § 223.) Here, defendant has not

shown that group voir dire was impracticable. He sought

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sequestered voir dire because of concerns about potential juror

bias, but he has not shown that group voir dire resulted in any

actual juror bias. (Cf. People v. Vieira (2005) 35 Cal.4th 264, 288

[“group voir dire may be determined to be impracticable when,

in a given case, it is shown to result in actual, rather than

merely potential, bias”].) The trial court acted within its

discretion in concluding defendant’s concerns could be

adequately addressed by means other than individual

sequestered voir dire.

b. Exclusion of Questions from

Juror Questionnaire

Defendant next complains that the trial court erred in

excluding certain questions from the juror questionnaire. The

parties exchanged proposed juror questionnaires in early

October 2001. The trial court warned the defense that its

proposed questionnaire, which was twice as long as the

prosecution’s, ran the risk of alienating prospective jurors. The

court explained that the questionnaire “looks pretty formidable

. . . and the [jurors] may get in a hurry to finish, and you don’t

really get the kind of answers you want; whereas, if they see

they’ve got a more limited question[naire] then they’ve got some

time.” The parties eventually settled on a questionnaire, which

was provided to four panels of prospective jurors. Before

distribution, a number of questions, including four that had

been proposed by the defense to examine jurors’ attitudes

toward an intentional kidnap murder of a minor (proposed

questions 78, 79, 98, and 120), were excluded from the

questionnaire.

Excluded question number 78 inquired, “What was your

first reaction when you heard this was a ‘kidnapping murder’

case?” Question number 79 inquired whether a prospective

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juror’s “feelings about the issue of kidnapping and murder

[were] such that” the juror “could not be fair and impartial in

relation to the defendant” or “to [a] complaining witness,” or

alternatively if “[n]either statement applie[d].” Question

number 98 inquired, “During the course of the trial, the

prosecution may present evidence that includes pictures of

Mr. Markowitz after he died, and a gun that was used in the

killing. The prosecution may even display the gun itself. How

do you think this type of evidence would affect your judgment of

the case as a whole?” Question number 120 inquired, “During

this trial you may hear detailed descriptions of kidnapping and

murder. Would that effect [sic] your ability to be fair and

impartial?” followed by a short blank line. The question

continued, “If so, please explain.”

Defendant argues it was error to exclude these questions.

Without the ability to question jurors about their attitudes

toward the death penalty in a case involving the intentional

kidnap murder of a minor, he argues, the defense had no

adequate means of determining whether the jurors harbored

disqualifying biases concerning the commission of such a crime.

We disagree.

A trial court has “ ‘wide latitude’ ” in the conduct of voir

dire, including with respect to the questions to be asked and

their format. (People v. Landry (2016) 2 Cal.5th 52, 83; see Code

Civ. Proc., § 223.) Voir dire must be “ ‘ “ ‘reasonably sufficient

to test the jury for bias or partiality.’ ” ’ ” (Landry, at p. 83.) But

“[i]t is not the purpose of voir dire to ‘ “educate the jury panel to

the particular facts of the case, to compel the jurors to commit

themselves to vote a particular way, to prejudice the jury for or

against a particular party, to argue the case, to indoctrinate the

jury, or to instruct the jury in matters of law.” ’ ” (Ibid.)

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Here, although defendant suggests otherwise, the

prospective jurors were informed of the nature of defendant’s

alleged crime. Before adjourning for one week on October 17,

2001, the court briefly described the case to the prospective

jurors. The court explained that the crime involved “the alleged

kidnapping of the 15 year old Nicholas Markowitz, and resulted,

allegedly, in the killing of Mr. Markowitz.” The court explained

that the series of events at issue occurred over a period of four

days and that defendant was charged with kidnapping, first

degree murder, and a special circumstance allegation that the

murder occurred during the commission of a kidnapping. The

juror questionnaire then sought to evaluate prospective jurors’

attitudes toward the death penalty in such a case, by asking

jurors whether they would always vote guilty as to first degree

murder and true as to the special circumstance, so as to

guarantee a penalty phase, and whether jurors would

automatically vote for death.

The additional questions on the subject proposed by

defendant—which asked, for example, for the jurors’ “first

reaction” to hearing “this is a ‘kidnapping murder case’ ”—were

not well-tailored to meaningful further exploration of the jurors’

views on the death penalty in this context. And to the extent

defendant sought the jurors’ predictions about how their

judgment would be affected by “detailed account[s]” of the crime

or other prosecution evidence, it is well established that a

defendant has “no right to ask specific questions that invite[]

prospective jurors to prejudge the penalty issue . . . [or] to

educate the jury as to the facts of the case.” (People v. Burgener

(2003) 29 Cal.4th 833, 865, citations omitted.)

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c. Conduct of Voir Dire

Defendant next argues that voir dire was inadequate

because the questioning was insufficient to determine whether

any of the jurors held disqualifying views concerning the

automatic application of the death penalty for the intentional

kidnap murder of a minor. Defendant argues: “Six jurors, fully

half the panel, were not questioned at all except [as to] whether

they could volunteer a basis for their own disqualification.”

Defendant contends, “Such general inquiries are insufficient

under long-standing United States Supreme Court case law.”

(See Morgan v. Illinois (1992) 504 U.S. 719, 734–735.) In

Morgan, the high court held that the petitioner “was entitled,

upon his request, to inquiry discerning those jurors who . . . had

predetermined . . . whether to impose the death penalty.” (Id.

at p. 736.)

As an initial matter, defendant’s claim that these six

jurors were not questioned “at all” is inaccurate. The court

questioned these jurors with some care and permitted the

parties to do the same. To the extent defendant took issue with

the nature of the trial court’s questioning, he made no mention

of it before the court. It is now too late to complain that the

court’s questioning was inadequate. (People v. Salazar (2016)

63 Cal.4th 214, 236 [“We have held that ‘a defendant may not

challenge on appeal alleged shortcomings in the trial court’s voir

dire of the prospective jurors when the defendant, having had

the opportunity to alert the trial court to the supposed problem,

failed to do so.’ ”].)

Defendant contends that the questioning of four

individual jurors raised “particular concerns about impartiality”

that were not adequately explored in voir dire because the trial

court impermissibly restricted questioning. But contrary to

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defendant’s contention, the trial court’s decision to remove the

four defense-proposed questions from the juror questionnaire is

not reasonably interpreted as precluding counsel from asking

follow-up questions regarding prospective jurors’ attitudes

toward the death penalty in a kidnap-murder case. It appears

from the record that the defense could have asked additional

questions of the prospective jurors but did not do so.

Nor, in any event, does the record support defendant’s

assertion that the prospective jurors’ answers raised particular

concerns about impartiality that were not adequately explored

in voir dire. Defendant asserts that Juror No. 9184’s

questionnaire suggests she was biased against defendant

because she responded affirmatively to the question, “Do you

have any feelings against the defendant solely because the

defendant is charged with this particular offense?” She also

responded affirmatively to the question inquiring whether “the

mere fact that an information was filed against the defendant

cause[d her] to conclude that the defendant is more likely to be

guilty than not guilty.” But during voir dire, defense counsel

asked her to explain these responses. She indicated that she

initially made a “natural” or “snap judgment” but after “sitting

here for a while, [she] believe[d] that there’s a due process that

people should go through now, and [she] underst[ood] a little bit

more about the situation.” Defense counsel probed further

whether she meant that her position on these two questions had

“changed somewhat” in that she “now . . . realize[d] that just

because someone is charged with an offense, or [had] been

arrested for an offense that isn’t evidence of anything.” Juror

No. 9184 agreed with defense counsel that she had “changed

[her] feelings somewhat on that.” Juror No. 9184 also confirmed

to the trial court that she had “no reason to think” she could not

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give both sides a fair trial, that she was prepared to follow the

law, and that she would accord defendant the presumption of

innocence.

Defendant argues that Juror No. 8919’s questionnaire

responses raised particular concerns because Juror No. 8919

“[d]isagree[d] somewhat” with the statement, “ ‘Anyone who

intentionally kills another person should always get the death

penalty.’ ” Juror No. 8919 added that “self defense can be seen

as ‘intentional.’ ” Juror No. 8919 also “[d]isagree[d] somewhat”

with the statement, “ ‘Anyone who intentionally kills another

person should never get the death penalty,’ ” adding, “should vs.

shall.” Taken together, these responses do not indicate, as

defendant argues, that Juror No. 8919 would vote for the death

penalty for all intentional murders other than self-defense. Nor

did voir dire raise such concerns; on the contrary, the juror

responded affirmatively to questions as to whether he could deal

“fairly and impartially” with the question of penalty.

Defendant similarly argues that Juror No. 0555’s

questionnaire responses raised concerns because she indicated

she “[a]gree[d] somewhat” with the statement, “Anyone who

intentionally kills another person should always get the death

penalty” and “[s]trongly disagree[d]” with the statement,

“Anyone who intentionally kills another person should never get

the death penalty.” But Juror No. 0555 also stated she would

consider both possible penalties if the case reached the penalty

phase and that she would vote for life imprisonment in an

appropriate case. Defendant elected not to question Juror

No. 0555 on these subjects, and he points to nothing in her voir

dire responses to indicate that the juror would not be impartial.

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Finally, defendant asserts that Juror No. 6619 raised

particular concerns because, among other things, she wrote in

her juror questionnaire that, philosophically, she was strongly

in favor of the death penalty and “agreed somewhat” that

anyone who kills intentionally should always receive the death

penalty. But Juror No. 6619 also said she was amenable to

either punishment, depending on the evidence, and affirmed

that she would vote for life imprisonment in an appropriate case.

During voir dire, defense counsel probed some of Juror No.

6619’s responses concerning her views on the death penalty.

Although Juror No. 6619 had initially offered “self-defense” and

“automobile accidents” as examples of intentional killings where

the death penalty would not be warranted, counsel then clarified

that the question was whether there would be a situation in

which the juror could envision reaching the penalty phase of a

trial, after finding defendant “guilty of first-degree murder,” and

determining “life imprisonment without parole to be the most

appropriate sentence.” Juror No. 6619 responded affirmatively,

at which point defense counsel passed for cause, thereby

waiving any claim of juror bias. (People v. Zaragoza (2016) 1

Cal.5th 21, 59.) To the extent defendant now argues voir dire

was inadequate to determine whether Juror No. 6619 was

capable of serving as an impartial juror, we see no merit to the

claim.

2. Excluding Prospective Juror F.G. for

Cause

Defendant contends the trial court erred by excluding

Prospective Juror F.G. for cause. We hold the court acted within

its discretion.

F.G. was a musician who had performed at many prisons

and who had also worked on antidrug programs with the health

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department and the county sheriff’s department. During voir

dire, the trial court asked F.G. whether any of these experiences

would preclude him from being a fair juror, “knowing what the

juror’s job is.” F.G. replied, “No, I don’t think so. The only caveat

I would put on that is that I have . . . witnessed firsthand the

results of the sentencing. And I have spoken with people who

have been, for instance, sentenced for life, with no chance of

parole and stuff like that. And that—it’s a very heavy burden

to judge someone. So that’s all I can say.” The trial court

explained to F.G. that the concept of punishment and penalty

had no place in the determination of a defendant’s guilt and

asked whether F.G. understood those distinctions. F.G.

indicated his assent.

The court inquired whether, in light of F.G.’s experience

working with people who had received life sentences, he “would

be inclined to consider the potential sentence in determining the

issue of guilt or innocence” and whether those experiences

“would influence [his] view of the facts.” F.G. replied that he

“would like to think it wouldn’t, but it hangs on me very heavily,

morally.” The court clarified that “the question is, if you wind

up on this jury, are you going to deliberate with the other jurors,

consider the facts, decide the facts based on the evidence,

without consideration of any potential sentence that may be

imposed, if you get to that phase of the case. That’s the

question.” F.G. responded, “I would have to say that no matter

what I did, that would be a factor.” The court excused the

prospective juror.

Criminal defendants are constitutionally entitled to a trial

before an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal.

Const., art. I, § 16; see Duncan v. Louisiana (1968) 391 U.S. 145,

149–150; see also Turner v. Louisiana (1965) 379 U.S. 466, 471;

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People v. Black (2014) 58 Cal.4th 912, 916.) But the state also

has a vital interest in ensuring cases are tried before juries able

to make decisions concerning punishment “within the

framework state law prescribes.” (Uttecht v. Brown (2007)

551 U.S. 1, 9.) “[I]n determining whether the removal of a

potential juror would vindicate the State’s interest without

violating the defendant’s right, the trial court makes a judgment

based in part on the demeanor of the juror, a judgment owed

deference by reviewing courts.” (Ibid.) “When the prospective

juror’s answers on voir dire are conflicting or equivocal, the trial

court’s findings as to the prospective juror’s state of mind are

binding on appellate courts if supported by substantial

evidence.” (People v. Duenas (2012) 55 Cal.4th 1, 10.) A trial

court has the power, though not the obligation, to excuse biased

prospective jurors on its own motion. (People v. Cunningham

(2001) 25 Cal.4th 926, 981 [upholding sua sponte excusal of a

prospective juror for cause]; People v. Bolin (1998) 18 Cal.4th

297, 315–316 [no duty to excuse on court’s own motion].)

Although this was a capital trial, here it was F.G.’s views

toward a life sentence, not the death penalty, that raised

concerns about his ability to serve as a juror. The court engaged

in a colloquy with F.G., probing his responses to questions

suggesting an inability to put aside considerations of

punishment in determining guilt. F.G. unequivocally explained

that the potential penalty of life imprisonment “would be a

factor” in determining guilt. The trial court concluded F.G.

would be unable to follow the trial court’s instructions and

evaluate the evidence of defendant’s guilt without considering

the potential penalty, and for that reason determined dismissal

was warranted. Substantial evidence supports the trial court’s

determination. (People v. Duenas, supra, 55 Cal.4th at p. 10.)

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Defendant raises several challenges to this conclusion, but

none is persuasive. First, defendant argues it was improper for

the trial court to excuse F.G. absent a request from one of the

parties. Our cases, however, do not forbid a trial court from

excusing a juror for cause on its own motion (see People v.

Cunningham, supra, 25 Cal.4th at p. 981), and defendant offers

no persuasive reason for us to create such a bar.

Defendant next argues the excusal was improper under

Adams v. Texas (1980) 448 U.S. 38, which held that the federal

Constitution prohibits the exclusion for cause of a potential

juror because he or she is unable to state under oath that the

mandatory sentence of death or life imprisonment “ ‘will not

affect his [or her] deliberations on any issue of fact.’ ” (Id. at

p. 42, quoting Tex. Pen. Code Ann. § 12.31.) The court explained

the effect of the requirement was to exclude from the jury pool

those who stated “they would be ‘affected’ by the possibility of

the death penalty, but who apparently meant only that the

potentially lethal consequences of their decision would invest

their deliberations with greater seriousness and gravity or

would involve them emotionally.” (Adams, at pp. 49–50.)

This case presents no comparable circumstances.

Although defendant argues otherwise, in this case the trial court

reasonably understood F.G. to say not merely that his prior

experiences and views would cause him to perform his duties as

a juror with a particular sense of seriousness and gravity, but

that they would undermine his ability to impartially evaluate

the evidence of defendant’s guilt. Adams does not bar the

excusal of such a juror. (See People v. Ashmus (1991) 54 Cal.3d

932, 963 [Adams does not forbid excusal of juror who admitted

that his views on the death penalty would cause him to apply a

standard of proof higher than proof beyond a reasonable doubt].)

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Defendant also attempts to analogize this case to People v.

Heard (2003) 31 Cal.4th 946, in which we held that a

prospective juror was dismissed without adequate basis after

assuring the court he would be able to follow the law. (Id. at

p. 964.) The analogy is inapt; here, F.G.’s responses to voir dire

indicated he would be unable to perform the duties of a juror

insofar as he informed the court he could not follow the court’s

instructions to determine guilt without taking into account the

possible penalty. Substantial evidence supports the trial court’s

dismissal, and we are presented with no reason to upset that

decision on appeal. (People v. Duenas, supra, 55 Cal.4th at

p. 10.) 6

C. Guilt Phase Claims

1. “Second Kidnap” Theory

Defendant contends there was a material variance

between the kidnap alleged in the indictment and the

prosecutor’s argument regarding his actual offense, rendering

him unable to defend against the charge in violation of his rights

6

At oral argument, defense counsel also contended

Prospective Juror F.G.’s responses to the questionnaire

indicated his willingness to follow the court’s instructions in

general. He contended that dismissal was not warranted

because, in their oral exchange, the court did not specifically

advise F.G. that the court’s instructions would include an

instruction to decide guilt based on the evidence presented,

without allowing the potential penalty to factor into the jurors’

evaluation of the facts of the case. Based on our review of the

record, we see no genuine potential for confusion on this point.

It was not necessary for the trial court to explicitly advise F.G.

that a juror’s determination of the facts should be based solely

on the evidence presented.

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under the Fifth and Sixth Amendments to the United States

Constitution. We reject the argument.

a. Background

Defendant, along with Skidmore, Rugge, Pressley, and

Hollywood, was charged by indictment with kidnapping for

purposes of ransom or extortion. Specifically, the charging

document stated that “[o]n or about August 6, 2000 through

August 9, 2000, in the county of Santa Barbara, the said

defendants . . . did willfully, unlawfully, and forcibly detain,

take, carry away, and kidnap NICHOLAS SAMUEL

MARKOWITZ, age 15, for purposes of ransom or to commit

extortion, or to extract money from another person, in violation

of Penal Code section 209(a).” Five special allegations were

charged along with the kidnapping count, including that the

victim suffered death in the course of the kidnapping and that

defendant intentionally discharged a firearm resulting in Nick’s

death.7

During his closing argument, defense counsel maintained

that defendant had taken no part in the charged kidnapping,

because that kidnap, which began on August 6, had ended before

defendant drove to Santa Barbara. Specifically, counsel argued

that the kidnap ended when the victim could have fled his

captors—but did not—at several points during his captivity.

“[T]his kidnapping . . . ended before Mr. Hoyt ever spoke with

Jesse Hollywood on the 8th [of August, 2000] to take a bag up to

Santa Barbara. The kidnapping was done.” In response, the

7

Of the three remaining special allegations, two related to

Pressley’s age and the last stated that Skidmore, Rugge,

Pressley, and Hollywood were principals in a felony in which a

coprincipal, defendant, possessed an assault weapon.

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prosecutor argued that even if the defense was correct that the

kidnap concluded when Nick could have fled, defendant was

guilty of kidnap because “independent of the kidnapping that

took place on the 6th where [the victim] was brought from Los

Angeles County to Santa Barbara, there is as well the

kidnapping that took place in the late evening hours of the 8th,

into the early morning hours of the 9th of August, where he’s

taken from the motel, perhaps taken as well to Rugge’s house at

some point, we’ll never know, and then taken up to the location

on West Camino Cielo and there he was killed. That we know

is an independent kidnapping. And certainly, he would be guilty

of that offense.”

The prosecutor pointed out before the jury that defense

counsel’s argument never addressed whether defendant would

be guilty of the kidnap based on movement of the victim from

the motel to the murder site. Defense counsel objected at this

point, noting that only one count of kidnapping was charged.

The following colloquy occurred:

“THE COURT: He said the count, the kidnapping for—

count, relates only to the incident of the—I’ll have to look. Isn’t

that your point?

“MR. CROUTER [Defense]: That there is only one count

charged.

“MR. ZONEN [Prosecution]: Well, you have to look at the

date on the pleading there, and the time, and whether or not it

governs an entire period of time. And I believe in an Indictment

you’ll find that it covers the period of time from the 6th through

the 9th.

“THE COURT: Let’s see. That’s the way the count is

drawn. August 6th through August 9th.

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“MR. ZONEN: See, a kidnapping can go over a period of

time, and in this case it did. That kidnapping took place from

the 6th through the 9th. It is one count, but it’s one count that

covers the entirety of his movement from the time he left at the

location near his residence in that area, I think near Ingomar

and Platt in San Fernando Valley, to the point where he was

killed up in Santa Barbara County. That’s all covered in the

pleading in that one count as a kidnapping.”

Defense counsel raised no further argument or objection,

and the prosecutor continued his rebuttal.

b. Discussion

i. Material Variance

“ ‘Both the Sixth Amendment of the federal Constitution

and the due process guarantees of the state and federal

Constitutions require that a criminal defendant receive notice

of the charges adequate to give a meaningful opportunity to

defend against them.’ ” (People v. Williams (2013) 56 Cal.4th

630, 681.) Notice is supplied in the first instance by the

accusatory pleading. (E.g., People v. Jones (1990) 51 Cal.3d 294,

317.) But a variance between the pleading and proof at trial will

be disregarded if it is not material. (People v. LaMarr (1942) 20

Cal.2d 705, 711.) “The test of the materiality of a variance is

whether the indictment or information so fully and correctly

informs the defendant of the criminal act with which he is

charged that, taking into consideration the proof which is

introduced against him, he is not misled in making his defense,

or placed in danger of being twice put in jeopardy for the same

offense.” (Ibid.; accord, People v. Maury (2003) 30 Cal.4th 342,

427–428; People v. Arras (1891) 89 Cal. 223, 226.)

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Here, the indictment alleged defendant and his

codefendants committed an aggravated kidnap (Pen. Code,

§ 209, subd. (a)) by forcibly abducting Nick on August 6, 2000,

and detaining him until he was murdered on August 9, 2000.

The jury was instructed on the elements of aggravated kidnap

and on the lesser included offense of simple kidnap. The

aggravated kidnap statute provides in pertinent part, “Any

person who . . . kidnaps or carries away another person by any

means whatsoever with intent to hold or detain . . . that person

for ransom, reward or to commit extortion or to exact from

another person any money or valuable thing, or any person who

aids or abets any such act, is guilty of a felony . . . .” (Pen. Code,

§ 209, subd. (a).) Simple kidnap, in turn, requires proof of three

things: “that (1) the defendant took, held, or detained another

person by using force or by instilling reasonable fear; (2) using

that force or fear, the defendant moved the other person, or

made the other person move a substantial distance; and (3) the

other person did not consent to the movement. ([Pen. Code,]

§ 207, subd. (a).)” (People v. Burney (2009) 47 Cal.4th 203, 232.)

Defendant argues the prosecution crafted a new theory of

kidnap during the rebuttal phase of closing argument for the

dual purposes of surprise and to have the last word. This new

theory was that there were two distinct kidnap offenses in this

case, the first one commencing on August 6, 2000, and the

second on August 8, 2000. Defendant argues that because he

was charged with a single kidnap offense in the indictment, the

“second” kidnap constitutes a material variance from the

charged offense in violation of his Fifth and Sixth Amendment

rights.

The argument lacks merit. As the prosecution correctly

explained in the trial court, the indictment charged defendant

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and his codefendants with a continuing kidnapping offense that

extended over a period of time. That period included the time

the victim left his home and was taken to Santa Barbara, the

time he spent in Santa Barbara, and the time he was taken from

locations within Santa Barbara to the site of his murder. True,

defense counsel theorized that the kidnapping was interrupted

by a period during which Nick could have eluded his captors at

some point before defendant became involved on August 8, 2000.

But the indictment put defendant on notice that the prosecution

intended to prove kidnapping based on the events of August 8

and 9, 2000, as well. Defendant could not have been misled by

his own “interruption” theory into believing otherwise. There

was no fatal variance between indictment and proof, and cases

finding fatal variances under dissimilar circumstances do not

help defendant’s case. (Cf. U.S. v. Adamson (9th Cir. 2002) 291

F.3d 606, 615–616; U.S. v. Tsinhnahijinnie (9th Cir. 1997) 112

F.3d 988, 990.)

ii. Alleged Hearsay

A corollary of defendant’s “two kidnap” theory is that there

were also two distinct conspiracies, the first involving the

August 6 to 8 kidnapping of Nick and the second involving a

separate and unrelated agreement to kidnap and murder Nick.

Under this theory, defendant argues that the trial court erred

by admitting various out-of-court statements by Hollywood,

Rugge, Skidmore, and Pressley, as testified to by various

witnesses at trial, because the statements were not admissible

as statements of coconspirators in the only conspiracy and

kidnapping defendant participated in, and therefore constituted

inadmissible hearsay.

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Coconspirators’ hearsay statements may be admitted if

there is independent evidence of a conspiracy and the party

seeking to admit the hearsay shows the speaker was involved in

the conspiracy when the hearsay statement was made, the

statement was made in furtherance of the conspiracy, and the

person against whom the statement is being offered either was

participating in, or later would participate in, the conspiracy.

(Evid. Code, § 1223; In re Hardy (2007) 41 Cal.4th 977, 995–

996.) Here, the trial court permitted introduction of hearsay

statements testified to by Affronti, Hoeflinger, Carpenter,

Adams-Young, Sheehan, and Hogg regarding Nick’s time in

Santa Barbara. As generally set forth above, these witnesses

testified about Nick’s kidnap and captivity. Although defendant

alleges these statements were not in furtherance of the

conspiracy to kidnap Nick, the trial court reasonably concluded

otherwise. We find no error.

As an initial matter, it is unclear that defendant has

preserved his objections to the introduction of the statements:

When the statements in question were introduced, defendant

generally failed to object on the bases he now raises on appeal.

For example, although he raised a “hearsay upon hearsay”

objection at trial to Adams-Young’s testimony regarding a

statement made by Pressley after she had expressed concern to

him about Nick’s continued presence in Santa Barbara, defense

counsel stated, “And I don’t disagree with the . . . in furtherance

of the conspiracy” theory of admission, “but I still have the

problem that there appears to be a second level of hearsay.” The

court overruled defendant’s objection.

“Because the question whether defendant[] . . . preserved

the[] right to raise this issue on appeal is close and difficult, we

assume that defendant[] . . . preserved the[] right, and proceed

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to the merits.” (People v. Champion (1995) 9 Cal.4th 879, 908,

fn. 6.) Having done so, we conclude the trial court committed no

error in admitting the hearsay statements recounted by these

witnesses. Defendant argues that the conspiracy he entered

into with Hollywood to murder Nick was a wholly separate

enterprise from the one Rugge and others entered into to kidnap

Nick, and the statements admitted regarding Nick’s capture

were therefore inadmissible with regard to Nick’s murder and

defendant’s involvement therewith. The trial court was not

compelled to so finely parse this case. The evidence showed that

Hollywood, the mastermind, had his friends kidnap Nick to

exact a ransom from Nick’s brother. When Hollywood learned

that the potential penalty for Nick’s kidnap was too high a price

for him to pay, he asked defendant to kill Nick. The hearsay

statements that were admitted, which tell the story of Nick’s

initial capture and subsequent captivity, were relevant to

demonstrating this overarching conspiracy, and were made in

furtherance of the conspiracy.

iii. Jury Questions

Defendant also argues the court’s responses to juror

inquiries regarding whether one or two kidnaps were alleged,

and the relevance of conspiracy, ultimately worked to direct a

verdict on the kidnap count and kidnap-murder special-

circumstance charges.

During the second day of deliberations, the jury posed a

question about whether one or two kidnapping events occurred

and asked about the relevance of the conspiracy instruction.

The jury asked whether “the kidnapping [is] a continuous, single

event” and “what are the correct dates” of the kidnapping. The

court explained, “[T]hat was one of the issues in the case that I

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gave you an instruction when a kidnapping terminates, and

there was some, the defense—there was some argument that the

initial kidnapping had already terminated and he was free to go,

remember that, and then there was some subsequent argument

that the facts supported a second kidnapping based upon what

you found there, and so that’s really one of the issues that you

have to decide. I can’t answer that question for you. I can just

point out to you that that was one of the disputed issues in the

case. One, was the kidnapping that happened in the San

Fernando Valley still ongoing when this happened. And there

was argument about that. And then, even if it wasn’t, was there

another kidnapping. Those were the issues that were presented

to the jury. And I can only remind you of what those issues were.

I can’t answer that question for you, because I’d be stepping in

and I’d have to send all of you home because I’d be taking over

your responsibility.” The foreperson responded, “[T]hat’s

helpful in itself.” Defense counsel was present and raised no

objection.

The court also responded to the jury’s question regarding

the dates of the kidnapping offense, noting that the dates the

jury had to keep in mind were August 6 and 9, 2000. The court

noted, “[A]gain, whether or not the kidnapping was ongoing

through that period or there were two kidnappings or there was

only one that had terminated, those are the dates that you have

to keep in mind, the 6th through the 9th.”

The jury also asked about the lesser included offense of

simple kidnap under Penal Code section 207. The court

reminded the jury to consider defendant’s involvement only

when considering the elements of the offense. The jury then

asked, “So being a coconspirator has nothing to do with it?” The

court reminded the jury that defendant was not charged with

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conspiracy, and the jury was instructed regarding

coconspirators to give context to certain statements made. The

jury thanked the court and indicated its question had been

resolved.

Defendant argues the trial court’s responses were faulty

insofar as they instructed the jury they could convict on the

basis of the prosecution’s “second kidnap” theory; failed to

clarify that the jury could not convict defendant of the kidnap if

the movement of the victim during this kidnapping was

incidental to the murder (People v. Brents (2012) 53 Cal.4th 599,

612); and failed to clarify that defendant could not be held

“strictly liable” for an earlier kidnap by other participants. To

the extent, if any, the court’s response caused confusion,

defendant’s failure to object forfeits any claim of error on appeal.

(See People v. Tully (2012) 54 Cal.4th 952, 1061.) In any event,

there was no significant risk of confusion. The trial court

correctly advised the jury it could convict defendant of

kidnapping based on his own involvement in the transportation

of the victim to the site where he was murdered. Under the

circumstances of the case, there was no danger the jury would

misunderstand the trial court as advising that it could hold

defendant “strictly liable” for the earlier abduction of Nick on

August 6; no such argument was raised at trial. Defendant’s

argument that the trial court’s responses worked to direct a

verdict on the kidnap count and kidnap-murder special-

circumstance charges is without merit.

iv. Instructional Issues

Defendant argues that a unanimity instruction was

warranted or could have cured whatever error the court created

through its responses to juror questions. Such instructions

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“generally appl[y] to acts that could have been charged as

separate offenses, and . . . must be given ‘ “only if the jurors

could otherwise disagree which act a defendant committed and

yet convict him of the crime charged.” ’ ” (People v. Seaton (2001)

26 Cal.4th 598, 671.) Here, for reasons already explained, there

was no realistic possibility of disagreement. The indictment

charged a continuous course of conduct—albeit one involving

various actors at different times—that began with Nick’s

abduction on August 6, 2000, and culminated with his murder

on August 9, 2000. The evidence at trial showed that

defendant’s involvement began on August 8 when he took and

transported Nick to the location where he was killed. The trial

court advised the jury that it was to evaluate only defendant’s

involvement when determining defendant’s guilt. The trial

court was not obligated to give a unanimity instruction.

Finally, we note that while defendant argues the jury

should have been instructed with CALJIC No. 9.56,8 setting

forth the asportation-by-fraud defense, he neither requested the

instruction nor objected to the trial court’s failure to give the

instruction. The trial court had no sua sponte duty to give the

instruction because the instruction was inconsistent with the

8

CALJIC No. 9.56 provides: “When one consents to

accompany another, there is no kidnapping so long as the

condition of consent exists. [¶] To consent, a person must: [¶]

1. Act freely and voluntarily and not under the influence of

threats, force, or duress; [¶] 2. Have knowledge that [he] [she]

was being physically moved; and [¶] 3. Possess sufficient

mental capacity to make an intelligent choice whether to be

physically moved by the other person [or persons]. [¶] [Being

passive does not amount to consent.] Consent requires a free

will and positive cooperation in act or attitude.”

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theory of the defense. There was thus no error in connection

with this instruction.

2. Admission of Custodial Confession at

Trial

Defendant contends the trial court erred by admitting the

audio and videotapes of his custodial confession to killing Nick,

which he claims were involuntary and were obtained in violation

of his Miranda rights. The trial court did not err in admitting

defendant’s confession.

a. Background

While housed at the Santa Barbara jail, defendant spoke

twice with his mother. Evidently believing her son to be

innocent and taking the blame for someone else’s crime, she

suggested he talk to the detectives to “spill [his] guts and get

out.” Defendant apparently heeded her advice and asked to

speak with a detective.

Defendant then spoke with Detective West and Sergeant

Reinstadler, who began by confirming that defendant had

initiated the conversation and reminding him of his Miranda

rights. Defendant waived his Miranda rights orally and in

writing. After conversing back and forth about the crime, Hoyt

told the detectives that he had asked to speak with them to “say

that this picture that everybody’s painting of me is not me.”

Detective West responded, “Well, tell us who you are. Tell us

how this went down.” Hoyt told them he could not do that and

instead asked, “Do you mind if I go back to my cell and think

about tonight and talk to you guys tomorrow because I know my

arraignment is Monday?” The detectives responded by telling

defendant, “Once you’re arraigned, we can’t talk to you. That’s

the bottom line. I mean, if you want to tell us something, I’m

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being honest with you, this is your opportunity to do it. This is

it.” Defendant replied, “There’s no way I can talk to you

tomorrow?” Sergeant Reinstadler explained, “No. I know why,”

continuing, “you won’t want to talk to us tomorrow because

somebody’s gonna get to you, telling you not to talk to us.”

When the detectives asked if he was okay, defendant

responded: “I mean, I’m going down for life.” Sergeant

Reinstadler replied: “There’s a difference between life and the

death penalty. And everything else in between. All we want is

the truth.” The interview continued, and after additional

discussion, defendant explained how he had become involved in

the crimes. Defendant explained to the detectives he was

indebted to Hollywood and was told by an intermediary (whom

defendant did not name) that he could erase his debt if he went

to “take care of somebody,” which defendant understood to mean

killing him. The intermediary did not tell defendant the name

of his intended victim but relayed a location—Santa Barbara.

Defendant drove Sheehan’s car to the Lemon Tree Inn in Santa

Barbara, where he found a gun waiting.

When the detectives asked what happened next,

defendant said, “I think I’m going to stop there for now,” and

asked for a glass of water. The detectives complied with the

request for water and asked defendant whether he was asking

to take a break or “telling us you don’t want to talk anymore,

period.” Defendant replied that he would like an overnight

break. The detectives responded that that would be “[t]oo late,”

and told defendant that “[o]nce a lawyer contacts you, we are

precluded from speaking with you anymore, period.” Defendant

asked whether a lawyer would be contacting him the next day,

and the detectives replied, “Oh, I’m sure. It’s normal. It’s their

job.” Defendant told the detectives his mom was unable to afford

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an attorney for him, so he would have to work with a public

defender. While the detectives assured him “[t]hat’s fine,”

defendant worried aloud, “[A] public defender, I’m going

nowhere with that one.” The detectives then reminded

defendant, “You wanted to talk to us, man.” Defendant

responded, “And have I helped you out at all?” The detectives

told him that there were still pieces of the puzzle to fill in, and

the conversation continued.

Defendant admitted to feeling sorry for “[t]hat kid that I

buried.” He told the detectives he had not put the duct tape on

Nick’s mouth. When the detectives said Rugge had told them

otherwise, defendant responded: “I love this one. The only thing

I did was kill him.”

After answering additional questions about Pressley’s

involvement, defendant said: “All right. You guys I think I want

to stop there. I think you guys got a pretty good picture.”

Detective West agreed: “Yeah, I’ve got a good picture, and it’s

pretty grim for you . . . . I’m sorry, uh, that that’s what you

painted for me.” Sergeant Reinstadler asked defendant whether

there was “ever a time when right before you pulled the trigger

that you just thought, you know, I shouldn’t do this? This is

wrong.” Defendant replied: “Hell, yes. Right before.” The

conversation ended not long thereafter.

Before trial, defendant sought to suppress the confession,

arguing that it was coerced and obtained in violation of

Miranda. Defense counsel argued that Sergeant Reinstadler

and Detective West threatened defendant with the death

penalty and urged him to correct the impression that he was a

“stone-cold killer.” The trial court concluded the confession was

not coerced, explaining the detectives’ reference to the death

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penalty “was actually in response to the defendant’s initiation of

the subject of penalty. He said something about the fact that he

was looking at life and then the detective said, ‘Well, that’s

better than death or what’s in-between,’ or something like that,

this was not a subject that was pursued after that. And it

doesn’t appear to me that that reference was anything that

resulted or led to Mr. Hoyt’s confession.”

The trial court also examined whether defendant’s

admission was coerced because he was called “a stone-cold

killer” during the interrogation. The court reasoned that use of

that phrase, “in and of itself” was not sufficient to conclude his

admission was coercively obtained. The court acknowledged the

argument’s logic: that if a person is truly a killer, that person

would receive the death penalty and would be required to

demonstrate facts in mitigation in order to avoid that

consequence. The court did not find the detectives’ use of the

phrase “stone-cold killer” to have been used as a threat. Rather,

the court concluded, it was somewhat factual and therefore was

not coercive.

The superior court next examined defendant’s invocation

of his right to remain silent, concluding that the transcript as a

whole reflected defendant’s desire to continue talking. The court

explained that defendant “was not expressing a wish to

terminate the interview, to terminate his colloquy with the

police, he was temporizing it. He didn’t quite know what he

wanted to do, and he was sort of postponing the inevitable, but

he didn’t really want to stop talking because he didn’t quit

talking.” (Italics added.) The court continued, “I don’t think the

officers ever tried to coerce [defendant] into further discussions.

I don’t think they attempted to question him until after it was

obvious that he wanted to resume the discussion. So, I don’t find

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that there’s been any violation of Miranda as far as [defendant]

is concerned.”

The court concluded that defendant’s statement to the

detectives was admissible because he did not “ever vent[] any

real interest in terminating [his] interview.” The court noted

that when defendant sought an overnight break, the detectives

correctly informed him that he would be provided with an

attorney, and that attorney might advise him not to continue

speaking to the detectives. Because defendant continued

talking despite having a basis to cease doing so and because

nothing the detectives told defendant was misleading, the court

concluded defendant’s Miranda rights were not violated. Later

in the colloquy, the parties acknowledge that defendant says,

“Yeah, I think I want to stop there, I think you guys got a pretty

good picture.” The court did not explicitly rule on whether any

statement made following defendant’s invocation was

admissible because the prosecution agreed to terminate the tape

at that point, and the court acknowledged this evidence, the so-

called “Side-B” evidence, was not going to be admitted unless

defendant elected to testify, which had not yet been determined

at the time the court evaluated this statement. Accordingly, the

trial court did not expressly rule on whether the statement that

followed this third invocation was admissible under Miranda.

b. Discussion

The Fifth Amendment provides, “No person . . . shall be

compelled in any criminal case to be a witness against himself

. . . .” (U.S. Const., 5th Amend.) “To safeguard a suspect’s Fifth

Amendment privilege against self-incrimination from the

‘inherently compelling pressures’ of custodial interrogation

(Miranda, supra, 384 U.S. at p. 467), the high court adopted a

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set of prophylactic measures requiring law enforcement officers

to advise an accused of his right to remain silent and to have

counsel present prior to any custodial interrogation (id. at

pp. 444–445).” (People v. Jackson (2016) 1 Cal.5th 269, 338–

339.) During such an interrogation, if a defendant invokes

either the right to remain silent or the right to counsel, “ ‘ “the

interrogation must cease.” ’ ” (Id. at p. 339.) “ ‘[A]n accused . . .

having expressed his desire to deal with the police only through

counsel, is not subject to further interrogation by the authorities

until counsel has been made available to him, unless the accused

himself initiates further communication, exchanges, or

conversations with the police.’ (Edwards v. Arizona (1981) 451

U.S. 477, 484–485.” (Jackson, at p. 339.) “[W]hen, as in this

case, a defendant has waived his Miranda rights and agreed to

talk with police, any subsequent invocation of the right to

counsel or the right to remain silent must be unequivocal and

unambiguous.” (People v. Sanchez (2019) 7 Cal.5th 14, 49

(Sanchez).)

“An involuntary confession may not be introduced into

evidence at trial.” (People v. Carrington (2009) 47 Cal.4th 145,

169 (Carrington).) It is the prosecution’s burden to establish by

a preponderance of the evidence that the defendant’s confession

was voluntary. (Ibid.) “In determining whether a confession is

involuntary, we consider the totality of the circumstances to see

if a defendant’s choice to confess was not ‘ “ ‘ “essentially

free” ’ ” ’ because his will was overborne by the coercive practices

of his interrogator.” (People v. Spencer (2018) 5 Cal.5th 642,

672.) A “confession [is] not ‘essentially free’ when a suspect’s

confinement was physically oppressive, invocations of his or her

Miranda rights were flagrantly ignored, or the suspect’s mental

state was visibly compromised.” (Ibid.)

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A confession obtained in violation of Edwards and

Miranda is likewise inadmissible during the prosecution’s case-

in-chief. (People v. Peevy (1998) 17 Cal.4th 1184, 1204–1205.) It

is the prosecution’s burden to establish by a preponderance of

the evidence that the defendant’s waiver of his Miranda rights

was knowing, voluntary, and intelligent. (People v. Jackson,

supra, 1 Cal.5th at p. 339.) In reviewing a trial court’s denial of

a suppression motion, we accept its resolution of factual

disputes when supported by substantial evidence and determine

independently whether, on those facts, a challenged statement

was obtained illegally. (Ibid.)

Defendant raises several challenges to the admission of

his confession to the detectives. Preliminarily, he argues that

the trial court erred by failing to hold an evidentiary hearing

before denying his motion to suppress his confession. Defendant

concedes the trial court asked if he wanted such a hearing and

he declined. The trial court accordingly decided the suppression

issue based on the transcripts and tapes the parties had

submitted to the court. We find no abuse of discretion on this

score.

Defendant argues that his confession is inadmissible

under Edwards v. Arizona, supra, 451 U.S. 477, because he

requested counsel on arrest and did not voluntarily initiate

further contact with the detectives. The record is to the

contrary: It shows defendant did initiate further contact by

requesting an audience with Detective West and Sergeant

Reinstadler, who then renewed Miranda warnings before

proceeding with the interview. Indeed, West reminded

defendant before the interview began in earnest that defendant

had initially asked to speak with an attorney and confirmed that

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he now wanted to make a statement to law enforcement.

Defendant said he did.

Defendant claims, however, that police coerced him into

reinitiating contact through the medium of his mother, who had

cajoled him over the phone to talk to detectives to secure his

release. This claim is utterly devoid of merit. Defendant points

to no evidence suggesting that the police had anything to do with

the conversation with defendant’s mother, except insofar as they

facilitated the conversation by allowing defendant to make a

collect call. There is nothing coercive about allowing a detained

suspect to call his mother.

Defendant also contends he did not act knowingly,

intelligently, and voluntarily when he waived his Miranda and

Edwards rights, due to substantial memory deficits as well as

his limited experience, education, young age, and below average

intelligence. Defendant did not present any evidence of mental

or other impairments at the suppression hearing, so he cannot

now claim the trial court erred in failing to consider them. And

defendant points to nothing else in the record, including his age

(21 at the time of the interview), that would have raised

questions about his ability to understand his rights as they had

been explained to him. The state satisfied its burden of

demonstrating by a preponderance of the evidence that

defendant’s waiver was knowing, intelligent, and voluntary.

(See People v. Nelson (2012) 53 Cal.4th 367, 375; People v.

Williams (2010) 49 Cal.4th 405, 425, 428.)

Defendant contends that even if he voluntarily reinitiated

contact with the detectives and waived his Miranda rights, the

detectives later improperly failed to honor his requests to cut off

questioning. Defendant points to two episodes in particular.

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The first episode occurred when defendant asked detectives:

“Do you mind if I go back to my cell and think about tonight and

talk to you guys tomorrow . . . .” Defendant contends that at this

point, detectives should have stopped questioning him. But

after a suspect has waived his Miranda rights, officers are not

required to cease questioning unless the suspect invokes his

rights unambiguously and unequivocally. (Sanchez, supra, 7

Cal.5th at p. 49.) Defendant’s question did not amount to an

unambiguous and unequivocal invocation of the right to cut off

questioning. Nor did the colloquy that followed. Sergeant

Reinstadler told defendant that once he was “arraigned, we can’t

talk to you. That’s the bottom line. I mean, if you want to tell

us something, I’m being honest with you, this is your

opportunity to do it. This is it.” Defendant reiterated his

request to speak with the detectives the next day and was told

“No. I know why. [¶] [Y]ou won’t want to talk to us tomorrow

because somebody’s going to get to you, telling you not to talk to

us. Play the games that we know people play. And then, the

next thing you know, you’re looking at you being triggerman.”

Defendant asked clarifying questions of the detectives about

whether he could speak to them with anonymity, and they

answered his questions. The conversation continued from there.

Because defendant never unambiguously invoked his right to

stop the interview, the detectives were under no obligation to do

so.

Defendant invokes People v. Neal (2003) 31 Cal.4th 63 in

support of his argument, but that case is easily distinguished.

There, the defendant repeatedly and clearly invoked his rights

to silence and counsel without waiving his rights under

Miranda, only to be ignored by the questioning officer, who

hoped to obtain evidence for impeachment purposes. (Id. at

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p. 74.) Here, by contrast, defendant voluntarily waived his

Miranda rights at the outset of the conversation and did not

unambiguously invoke his right to stop the interview.

The second episode occurred after defendant had spoken

to the detectives for some time about how he had learned he

could erase his debt to Hollywood in exchange for traveling to

Santa Barbara to kill a person unknown to him. When the

detectives asked defendant what happened next, defendant

said, “You guys know what happened. I think I’m going to stop

there for now. Can I get some more water, please?” Defendant

argues that even if the detectives were not obligated to stop

before, they were obligated to stop questioning him at this point.

But once again, defendant never unambiguously invoked his

right to silence. The detectives accommodated his request for

water, and defendant told them a number of things: He thought

the quality of water he had been given was poor; he described

the love he had for his eight-year-old brother; he discussed his

mother and her dependency upon him, his incarcerated brother,

and his drug-addicted sister, all to justify his hesitancy to add

to the story he had thus far provided to the detectives regarding

the crime. Sergeant Reinstadler reminded defendant about his

right to remain silent. Detective West offered to let defendant

“collect [his] thoughts,” and then, to clarify defendant’s

meaning, asked whether defendant wanted only a short break

or to cut off the conversation altogether. Defendant asked for a

cigarette, saying, “I’d love just to take a break. Do some more

thinking.” The detectives and defendant discussed whether

defendant wanted a break overnight or just for a few moments,

and defendant indicated the break he had in mind would be

overnight.

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Sergeant Reinstadler told defendant a break between

“now and tomorrow” would be “too late” because “[o]nce the

lawyer contacts you, we are precluded from speaking with you

anymore, period.” Defendant asked whether a lawyer would

contact him the next day, and the detective explained it was

“normal” and “their job” to do so. Defendant then asked the

detectives whether he had been helpful to them, and Reinstadler

explained that defendant had an opportunity to be of more help,

to fill in more “pieces of the puzzle.” The conversation

continued. At no time did defendant unambiguously signal a

desire to end the interview, even though the detectives gave him

ample opportunity to do so.

Defendant contends that the detectives improperly

coerced him into continuing the conversation when they told

him they would be “precluded” from talking to him again if he

chose to take a break until the next day. Defendant contends

that the detectives’ statements were deceptive and that their

deception undermined the voluntariness of his statements.

“While the use of deception or communication of false

information to a suspect does not alone render a resulting

statement involuntary [citation], such deception is a factor

which weighs against a finding of voluntariness.” (People v.

Hogan (1982) 31 Cal.3d 815, 840–841.) Here, it was certainly

an exaggeration for the detectives to tell defendant they would

not be able to speak with him again, “period,” if he took a break

and spoke with a lawyer; represented suspects can, of course,

speak with law enforcement officials if they choose. It is unclear

whether the detectives intended to deceive defendant on this

point; what the detectives may have meant to convey is that a

lawyer would likely advise against speaking with detectives—

meaning that, from their perspective, they almost certainly

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would not have another opportunity to speak with defendant.

But in any event, insofar as they spoke in absolutes, the

detectives overstated the case. Regardless, we are not

persuaded the statements rendered defendant’s statement

involuntary. Just before the challenged exchange, the

detectives had reminded defendant that he had the right to

remain silent and the right to speak with a lawyer. Defendant

responded to the exchange by asking for clarification about

when a lawyer would contact him, then went on to ask whether

he had been helpful to the detectives, and the conversation

continued from there. The record does not support defendant’s

claim that he was coerced into continuing to speak with

detectives after he had asked for a break.

Defendant next contends the detectives employed other

coercive interrogation tactics that rendered his confession

involuntary. (See People v. Jackson, supra, 1 Cal.5th at p. 340

[“ ‘ “A confession may be found involuntary if extracted by

threats or violence, obtained by direct or implied promises, or

secured by the exertion of improper influence.” ’ ”].) In

particular, he argues that Detective West and Sergeant

Reinstadler impliedly threatened him by mentioning the death

penalty and that they improperly induced his confession by

exaggerating the evidence against him.

“ ‘In assessing allegedly coercive police tactics, “[t]he

courts have prohibited only those psychological ploys which,

under all the circumstances, are so coercive that they tend to

produce a statement that is both involuntary and unreliable.” ’ ”

(People v. Williams, supra, 49 Cal.4th at p. 436.) As the trial

court found, there was nothing coercive about the detectives’

brief—and accurate—acknowledgment that the death penalty

was a potential punishment for the crimes with which defendant

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was charged, and it does not appear that the mention of the

death penalty prompted defendant’s confession. Nor is urging a

defendant to tell his story before matters go any further an

impermissible law enforcement tactic. (Id. at pp. 438–439, 443;

Carrington, supra, 47 Cal.4th at p. 171.)

As for defendant’s claim that the detectives improperly

exaggerated the strength of the evidence against him, defendant

points to an exchange in which detectives said others had told

them that defendant gagged and shot the victim and dug the

grave, which caused defendant to blurt out, “[T]he only thing I

did was kill him.” As defendant acknowledges, however, “the

use of deceptive comments does not necessarily render a

statement involuntary. Deception does not undermine the

voluntariness of a defendant’s statements to the authorities

unless the deception is ‘ “ ‘of a type reasonably likely to procure

an untrue statement.’ ” ’ ” (People v. Williams, supra, 49 Cal.4th

at p. 443.) Defendant fails to explain why, in his view, the

detectives’ questioning fits that description. The only element

of deception in the relevant exchange was the detectives’

assertion that others had told them defendant had dug Nick’s

grave, but defendant fails to explain how the assertion

undermined the voluntariness of defendant’s claim to have

“only” killed Nick.

Defendant’s final challenge to the admission of his

confession concerns the introduction of the last exchange that

took place between the detectives and defendant after defendant

told the detectives, “I think I want to stop there. I think you

guys got a pretty good picture.” In the colloquy that followed,

Reinstadler asked defendant if “there ever [was] a time when

right before you pulled the trigger that you just thought, you

know I shouldn’t do this? This is wrong. Because I haven’t

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heard that from you.” Defendant asked if the detectives wanted

his “honest[]” response and when they answered in the

affirmative, he told them, “Hell, yes. Right before.” Defendant

now argues that this exchange—what he refers to as “side B”9

evidence—should have been excluded, or an effective limiting

instruction should have been given.

The Attorney General does not dispute that defendant had

unequivocally invoked his right to remain silent before this

exchange. Nonetheless, we conclude defendant’s claim lacks

merit. As the high court made clear in Harris v. New York

(1971) 401 U.S. 222, 225–226, “although statements elicited in

violation of Miranda are generally not admissible, statements

that are otherwise voluntarily made may be used to impeach the

defendant’s trial testimony.” (People v. Case (2018) 5 Cal.5th 1,

18.) Defendant argues that the trial court should have excluded

the evidence altogether as a sanction for the detectives’

deliberate violation of defendant’s right to remain silent. But

even if defendant’s characterization were correct, the “side B”

evidence would nevertheless be admissible as impeachment

evidence. (People v. Peevy, supra, 17 Cal.4th at p. 1188; People

v. Nguyen (2015) 61 Cal.4th 1015, 1076.)

As for defendant’s argument about jury instructions, the

jury was, in fact, instructed that it was to consider the “side B”

evidence only for purposes of impeachment, and not as evidence

of guilt. To the extent defendant would have preferred for the

instruction be phrased differently to make it more effective, it

was his obligation to request a correction of the instruction given

9

This exchange was captured on the second side, or “side B”

of the audiotape used to record Detective West’s and Sergeant

Reinstadler’s interview with defendant.

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or seek a new, more specific instruction. (People v. Chism (2014)

58 Cal.4th 1266, 1308.) Having done neither, defendant has

forfeited the claim on appeal. Accordingly, we conclude no error

arose from the introduction of the “side B” evidence for

impeachment purposes.

3. Defendant’s Testimony

Defendant argues the court violated his rights under the

Fifth and Sixth Amendments to the United States Constitution

by compelling him to testify as a foundation for testimony by his

expert, Dr. Michael Kania, that his confession was false. We

conclude his claim is forfeited and lacks merit in any event.

The defense proposed calling Dr. Kania to testify that

defendant’s confession was false. The trial court held a hearing

under Evidence Code section 402 to determine the admissibility

of that testimony.10 During the hearing, the court and parties

discussed the possibility of defendant testifying before

Dr. Kania to provide a foundation for Dr. Kania’s testimony.

Specifically, the court indicated its assumption that “defendant

is going to testify that he doesn’t remember giving that

interview” to police to contextualize Dr. Kania’s opinion about

anxiety causing amnesia of the sort defendant alleges he

suffered. The defense did not object at this juncture or indicate

10

Evidence Code section 402, subdivision (a) provides:

“When the existence of a preliminary fact is disputed, its

existence or nonexistence shall be determined as provided in

this article.” Subdivision (b) provides: “The court may hear and

determine the question of the admissibility of evidence out of the

presence or hearing of the jury; but in a criminal action, the

court shall hear and determine the question of the admissibility

of a confession or admission of the defendant out of the presence

and hearing of the jury if any party so requests.”

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there was uncertainty about whether or when defendant

planned to testify. The court “made it clear that I don’t believe

that [Dr. Kania] can get on the stand and testify to things that

he was told [while interviewing defendant] and, in effect,

present the defendant’s defense, the defendant’s own testimony

through the interview, I’ve said he can’t do that.” Defendant

raised no objection to the court’s characterization. The court

informed counsel that Dr. Kania’s testimony would be limited to

his opinion about defendant’s anxiety and amnesia, not the

content of Dr. Kania’s interview with defendant. The court

explained, “I’m not going to let him [Dr. Kania] testify as to

circumstances, the things that he was told by the defendant.

The defendant can testify to those things and he [defendant] can

be asked questions about it.” The court further rejected defense

counsel’s argument that Dr. Kania should be permitted to

testify as to whether or not defendant gave a false confession,

concluding the issue was one for the jury to decide. Defense

counsel responded: “We understand your ruling. We object to

it on state and federal due process grounds, but we accept it.”

Defendant now claims that he testified at trial only

because the court compelled him to do so on pain of forfeiting

the ability to present Dr. Kania’s expert testimony. This

compulsion, he argues, violated his Fifth and Sixth Amendment

rights. The record does not support the claim. It is true that

the trial court observed that an adequate foundation would need

to be laid for the expert’s testimony. It is also true that the trial

court at various times appeared to assume—without

contradiction from defense counsel—that defendant would

supply the necessary foundation through his testimony. But the

trial court did not rule that Dr. Kania’s testimony would be

permitted if and only if defendant took the stand, nor did

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defendant object on the ground that the trial court had, in effect,

issued such a ruling. Nor has defendant established it would

have been futile to raise such an objection; had he objected, the

court could have considered whether, as he now claims,

defendant’s testimony was in fact unnecessary to lay the

foundation for Dr. Kania’s opinion. By failing to object in the

trial court, defendant has forfeited the claim on appeal.

To the extent defendant argues it was error for the court

to make admission of Dr. Kania’s testimony contingent on the

introduction of foundational evidence, the claim lacks merit.

Defendant sought to present expert testimony that he suffered

anxiety-induced amnesia and did not recall confessing. But

without some foundational evidence that defendant did not

remember the confession, Dr. Kania’s opinion would lack

relevance. Dr. Kania could not be the source of the evidence that

defendant did not remember his confession because that

information would be the product of inadmissible hearsay,

having originated from Dr. Kania’s interviews with defendant.

(Evid. Code, § 1200.) An adequate foundation was, in fact,

required.

Despite defendant’s arguments to the contrary, nothing in

that conclusion contradicts the high court’s teachings in Crane

v. Kentucky (1986) 476 U.S. 683, 689. In that case, the high

court held that when the prosecution’s case was based on the

defendant’s confession, it was error to preclude the defendant

from introducing evidence about the manner in which his

confession was obtained as part of his defense. (Id. at p. 691.)

But Crane does not require the admission of any and all defense-

proffered evidence about the circumstances of a confession,

without regard to the ordinary rules of evidence.

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Defendant also argues that the trial court violated his

constitutional rights by effectively requiring him to testify

before Dr. Kania. Defendant relies on Brooks v. Tennessee

(1972) 406 U.S. 605, in which the United States Supreme Court

struck down a Tennessee statute requiring a defendant to testify

first or not at all because it deprived “the accused and his

lawyer” of the “opportunity to evaluate the actual worth of their

evidence” and make tactical decisions after observing the

testimony of other defense witnesses. (Id. at p. 612.) Here, the

trial court placed no comparable restrictions on defendant. The

court and parties both appear to have simply assumed that

defendant would testify before Dr. Kania, so that Dr. Kania’s

testimony could be properly contextualized. But defendant

never gave any indication that he planned or hoped to testify

after Dr. Kania. Because defendant raised no concerns, we

conclude this objection is forfeited on appeal. (See, e.g., People

v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 371

(Bryant).)

Defendant also claims that the court improperly limited

his own direct testimony in a few instances. In some of these

instances, review of the record reveals defendant is simply

incorrect. For example, he claims he was not permitted to

answer whether he would have been willing to go to prison for

life in Hollywood’s place at the time he was arrested. Although

there was an objection, the question was rephrased, and

defendant was given an opportunity to, and did, respond. As for

the claim that defendant was improperly precluded from

explaining what he meant by certain words he used in his

confession, there was nothing improper in this ruling. The trial

court permitted defendant to testify as to the truthfulness of his

incriminating statements, but not what he meant at the time he

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said them, since he claimed not to recall having uttered the

words in the first place. The trial court did not abuse its

discretion by ruling that defendant could not speculate about

what he might have meant by words he claimed not to remember

saying. (See People v. Riggs (2008) 44 Cal.4th 248, 289 [trial

court has discretion to determine the relevance of evidence].)

Defendant claims the ruling violates People v. Webb (1993) 6

Cal.4th 494, 535, in which we said that “a defendant’s absolute

right to testify cannot be foreclosed or censored based on

content.” But Webb concerns a defendant’s right to testify

against the advice of counsel, where such testimony will have a

deleterious effect necessitating special jury instructions. Webb

neither holds nor suggests that a testifying defendant is entitled

to speculate about matters of which he or she claims no direct

knowledge.

4. Expert Witness Testimony

Defendant argues that the trial court erred by limiting

Dr. Kania’s and Dr. Glaser’s testimony. With regard to

Dr. Kania, defendant contends the trial court categorically

excluded testimony regarding defendant’s statements during

certain interviews, which defendant claims was admissible for

nonhearsay purposes. He alleges the court erred by prohibiting

Dr. Kania from explaining that accepting telephone calls from

his mother provoked anxiety in defendant. He also alleges

Dr. Kania was prohibited from describing the effects of

defendant’s personality disorders, his relationship with

Hollywood, his sleep deprivation, and drug intoxication on his

alleged false confession. Defendant fails to provide any citation

to the record for these alleged prohibitions and makes no

assertion that he made contemporaneous objections, and we

have not located any passage showing that defendant attempted

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to offer this testimony but was precluded from so doing. Both

by failing to interject contemporaneous objections and by failing

to support his appellate arguments with record citations,

defendant has forfeited any claim of error on appeal. (See People

v. Tully, supra, 54 Cal.4th at p. 1061; People v. Stanley (1995)

10 Cal.4th 764, 793.) In any event, whatever errors defendant

now claims occurred could not have affected the outcome of the

case; Dr. Kania testified at length about defendant’s alleged

anxiety-inducted amnesia based on his evaluation of defendant.

Defendant also claims the trial court erred by permitting

Dr. Glaser to testify for the prosecution whether, in his opinion,

defendant’s claimed amnesia was a fabrication, while

“Dr. Kania was not permitted to share his opinion that

[defendant’s] confession was false in most respects.” There is,

however, no inconsistency in the court’s treatment of the two

experts. Dr. Kania was permitted to offer his opinion on

precisely the same subject as Dr. Glaser, testifying that he

believed defendant’s claim of amnesia was credible.

Finally, defendant contends the court erred by denying his

request to recall Dr. Kania for purposes of responding to the

prosecutor’s experts’ reports and their testimony. We review for

abuse of discretion a trial court’s decision to exclude surrebuttal

evidence, and we see none here. (People v. Marshall (1996) 13

Cal.4th 799, 836.) Defendant does not explain what it was,

precisely, about the experts’ reports or testimony that required

a further response via additional testimony from Dr. Kania, nor

did defendant offer such an explanation to the trial court. The

claim is therefore forfeited on appeal. Defendant also argues

that Dr. Kania should have been permitted to testify in

surrebuttal as to the content of defendant’s interviews with him

in order to respond to the prosecution’s evidence that

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defendant’s claimed amnesia was a fabrication. The trial court

did not abuse its discretion in ruling that this was largely

territory that had already been covered and did not require

additional surrebuttal evidence. If any error occurred, it was

not prejudicial. (See Chapman v. California (1967) 386 U.S. 18,

24; People v. Watson (1956) 46 Cal.2d 818, 836–837 (Watson).)

5. Psychiatric Examination

Defendant argues the trial court erred by compelling him

to undergo a prosecution-conducted psychiatric examination.

The Attorney General concedes the compelled examination was

error but argues it did not prejudice defendant. We agree.

Before trial, the prosecution moved to compel defendant to

undergo a psychiatric examination by prosecution experts. In

support of the motion, the prosecution argued defendant had

placed his mental state at issue by claiming he gave a false

confession induced by various psychological factors. The defense

objected. After hearing argument, the court granted the motion.

The court opined that when “a defendant presents expert

psychological or psychiatric evidence” explaining his conduct,

“the prosecution is entitled to rebut that evidence, and the only

realistic manner in which the prosecution can do that is to be

entitled to have a psychiatric evaluation of its own in order to

prepare an expert to testify.”

The prosecution retained Drs. Glaser and Chidekel, both

of whom testified for the prosecution in rebuttal. Dr. Glaser

testified that after examining defendant and reviewing a great

deal of case information, he concluded defendant suffered from

“no current major mental illness,” but had low self-esteem, was

uncomfortable acknowledging his feelings, and was willing to

suffer “unpleasant conditions” to remain near the person on

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whom he was dependent. Defendant had no disorders rendering

it more likely that he would falsely confess. Dr. Glaser also

evaluated defendant for amnesia and concluded defendant was

malingering because he recalled nothing even after being given

cues from the transcripts.

Dr. Chidekel evaluated defendant, administering

numerous psychological tests, and determined defendant

suffered from “avoidance [sic] personality disorder, with self-

defeating and dependent features.” Based on the tests

administered, Dr. Chidekel was otherwise unable to diagnose

defendant with any neuropsychological condition that interfered

with his “ability to see, to understand, or to be able to

communicate effectively.”

We have previously described the shifts in the law

governing court-ordered psychological examinations like the one

ordered in this case. “At the time of defendant’s trial in [2001],

decisional law authorized trial courts to order a defendant who

placed his or her mental state in issue to submit to mental

examination by prosecution experts. [Citation.] This court later

held that after the 1990 passage of Proposition 115 (the Crime

Victims Justice Reform Act), which resulted in the enactment of

the criminal discovery statutes, the courts ‘are no longer free to

create such a rule of criminal procedure, untethered to a

statutory or constitutional base.’ (Verdin v. Superior Court

(2008) 43 Cal.4th 1096, 1116 (Verdin).) We have applied Verdin

retroactively.” (People v. Clark (2011) 52 Cal.4th 856, 939, fn.

omitted (Clark).)

“Shortly after Verdin, the Legislature amended [Penal

Code] section 1054.3 to expressly authorize courts to compel a

mental examination by a prosecution-retained expert. (See

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[Pen. Code,] § 1054.3, subd. (b), as amended by Stats. 2009, ch.

297, § 1.)” (People v. Banks (2014) 59 Cal.4th 1113, 1193.) But

in Banks, we concluded that Verdin continues to apply to cases

predating that amendment. (Banks, at p. 1193.) This is such a

case. For that reason, the Attorney General concedes that

“Verdin compels the conclusion that it was error under state law

to require [defendant] to submit to mental examinations by

prosecution experts.” It follows that it was also error for the

trial court to admit testimony by the prosecution’s experts based

on their interviews with defendants. (Clark, supra, 52 Cal.4th

at p. 940.) The Attorney General urges, however, that these

errors were harmless under the relevant standard articulated in

Watson, supra, 46 Cal.2d at page 836. We agree.

In Clark, supra, 52 Cal.4th at page 940, we rejected the

argument that errors in mandating examination by prosecution

experts are subject to review under the more demanding

standard for federal constitutional error set forth in Chapman

v. California, supra, 386 U.S. 18. We explained that we were

aware of no decision “holding that the Fifth Amendment or any

other federal constitutional provision prohibits a court from

ordering a defendant who has placed his or her mental state in

issue to submit to a mental examination by a prosecution

expert.” (Clark, at p. 940.) “We thus assess the errors for

prejudice under the standard for state law error, inquiring

whether there is a reasonable probability that the outcome of

trial would have been more favorable to defendant had the court

not ordered him to submit to examinations by” prosecution-

retained experts. (Id. at pp. 940–941.)

We conclude it is not reasonably probable that the outcome

of the trial would have been more favorable had defendant not

undergone examinations conducted by prosecution-retained

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experts. Defendant gave his friend Casey Sheehan a detailed

confession to Nick’s murder and confessed to the detectives that

“the only thing he did was kill” Nick. The details of defendant’s

confession to Sheehan were corroborated by witnesses who

spent time with Nick at the Lemon Tree Inn before he was killed

and those who found his body in a shallow grave covered by a

bush. On the other hand, defendant’s claim of amnesia was a

highly selective one: He claimed that although he remembered

enough of the events surrounding the crimes to exonerate

himself and shift blame to his codefendants, he experienced a

brief lapse in memory that happened to coincide with the period

during which he confessed to police detectives. It is not

reasonably probable that, had the prosecution’s experts not

testified to their findings based on their examination of

defendant, the jury would have discredited defendant’s

confessions and instead credited his claim of amnesia. Under

the circumstances, we conclude there is no reasonable

probability that the jury would have reached a result more

favorable to defendant had the court not issued an order

requiring him to submit to mental examination by Drs. Glaser

and Chidekel and had these experts not testified against

defendant based on those examinations.

6. Prosecutorial Misconduct During the

Guilt Phase Closing Argument

Defendant alleges the prosecutor engaged in numerous

instances of misconduct during his closing argument. He failed

to object to nearly all such instances and has therefore forfeited

these claims on appeal. In any event, no misconduct occurred.

As we have explained, to preserve a claim of prosecutorial

misconduct for appeal, “ ‘ “a criminal defendant must make a

timely and specific objection and ask the trial court to admonish

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the jury to disregard the impropriety.” ’ [Citation.] The lack of

a timely objection and request for admonition will be excused

only if either would have been futile or if an admonition would

not have cured the harm.” (People v. Powell (2018) 6 Cal.5th

136, 171.) “ ‘ “A prosecutor’s misconduct violates the Fourteenth

Amendment to the United States Constitution when it ‘infects

the trial with such unfairness as to make the conviction a denial

of due process.’ [Citations.] In other words, the misconduct

must be ‘of sufficient significance to result in the denial of the

defendant’s right to a fair trial.’ [Citation.] A prosecutor’s

misconduct that does not render a trial fundamentally unfair

nevertheless violates California law if it involves ‘the use of

deceptive or reprehensible methods to attempt to persuade

either the court or the jury.’ ” ’ ” (Id. at p. 172.) To the extent

the alleged instances of misconduct were not forfeited by

defendant’s failure to object, we conclude none infected the trial

with unfairness or deceived the court or jury.

Defendant first contends that the prosecutor argued “facts

not in evidence” when he stated in closing argument that

defendant did “ ‘considerably more’ ” than shoot the victim and

was “ ‘probably involved in the taping and the burial process, if

not digging the grave.’ ” Defendant did not object to this

argument at trial and does not argue that objection would have

been futile. The claim is therefore forfeited. (See People

v. Powell, supra, 6 Cal.5th at p. 171.)

But the claim lacks merit in any event. Defendant’s

argument presumes that the only basis for the prosecutor’s

argument was certain statements conveyed by Pressley to

Detective Jerry Cornell. Detective Cornell testified to some of

Pressley’s out-of-court statements at trial, but because Pressley

himself did not testify, Detective Cornell was not permitted to

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relay certain statements implicating defendant in the grave-

digging and burial. When Detective Cornell nevertheless

testified that Pressley had said “they”—presumably meaning

both Pressley and defendant—had buried the victim, the trial

court admonished the jury to ignore the use of the pronoun

“they” and to consider only that portion of Detective Cornell’s

statement relaying that Pressley went to Lizard’s Mouth and

dug the grave. Defendant argues that the prosecution violated

the court’s ruling by referring to Pressley’s statements in closing

argument.

Pressley’s statements were not, however, the only basis for

the argument. Sheehan told the jury that defendant came to

him asking for advice and told him Nick had been shot

“somewhere in the middle of nowhere.” Defendant also told

Sheehan that after shooting the victim, he put a bush over him.

This testimony was consistent with the evidence of where and

how hikers found Nick’s body. The prosecutor’s reference to

defendant “probably” doing more than shooting the victim was

a reasonable commentary on the evidence and does not

constitute misconduct. (See People v. Farnam (2002) 28 Cal.4th

107, 168.)

Defendant next argues that the prosecutor committed

misconduct by telling the jury that none of the experts, including

Dr. Kania, testified that defendant gave a false confession.

Defendant objected to the argument on the ground that the

prosecution was “arguing the Court’s restriction on the

evidence.” In response, the trial court clarified for the jury that

none of the experts had so testified because the court had

previously ruled that no expert would be permitted to give an

opinion as to whether or not a false confession was given in this

case; the question was instead one for the jury to decide. Both

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the prosecutor and defense counsel thanked the court for the

clarification, and the prosecutor resumed the closing argument.

To the extent defendant now believes the trial court’s

clarification was insufficient, he has forfeited the objection.

(People v. Powell, supra, 6 Cal.5th at p. 171.) But even were his

claim preserved, we would find no error. The prosecutor’s

remarks were accurate, if susceptible to misunderstanding. The

court cleared up any possible misunderstanding with its

clarification. (See ibid.)

Defendant also argues that the prosecutor referred in

closing argument to “side B” of defendant’s confession, during

which defendant was asked whether it occurred to him that

what he was doing was “wrong” and defendant replied,

“Honestly? [¶] Hell yes. Right before.” Defendant has forfeited

any challenge to the prosecutor’s argument regarding “side B”

of defendant’s confession by failing to object. (People v. Powell,

supra, 6 Cal.5th at p. 171.)

Defendant argues that the prosecutor committed

misconduct during the guilt phase closing argument by making

improper remarks about witness Sheehan, who had testified

under a grant of immunity. First, the prosecutor argued the jury

could be assured that Sheehan would be even more truthful

than other witnesses because he was subject to greater

consequences for lying. Second, the prosecutor argued the jury

could infer that Sheehan would not have needed immunity if

defendant were innocent because otherwise Sheehan would

have been harboring a friend, not a fugitive. Defendant

objected, claiming the prosecution’s argument was speculative.

The court sustained the objection and admonished the jury to

disregard the prosecutor’s remarks. Defendant now renews his

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objection to the prosecutor’s remarks, arguing the prosecutor

impermissibly vouched for Sheehan based on the prosecutor’s

own personal beliefs (and decisions about how and why to grant

witness immunity), rather than evidence in the record. (See

People v. Martinez (2010) 47 Cal.4th 911, 958.) But defendant

offers no persuasive reason to believe the trial court’s

admonition to disregard the prosecutor’s brief, passing remarks

was insufficient to cure any unfairness. We see no basis for

reversal.

Finally, defendant argues that the prosecutor committed

misconduct by spending six transcript pages describing the

“original” kidnap, in which defendant was not involved. In fact,

the prosecutor spent less than two transcript pages describing

the kidnapping, and some of the events described involved

defendant. The prosecutor referred to the victim’s abduction

from West Hills, his time in Santa Barbara, and his murder,

arguing “there is a kidnapping at the very beginning, there’s a

kidnapping at the very end. Is there a kidnapping in between?

Okay.” The defense did not object to this discussion. Assuming

for the sake of argument that this claim is not forfeited despite

the lack of specific, contemporaneous objection (see People v.

Seumanu (2015) 61 Cal.4th 1293, 1339), we find no misconduct

because the prosecutor has “wide latitude to comment on the

evidence during closing argument.” (People v. Peoples (2016) 62

Cal.4th 718, 797.) Discussion of a significant aspect of the

criminal endeavor that culminated in the victim’s death during

closing argument constitutes a reasonable comment. (Ibid.)

7. Instructional Error Concerning

Accomplices and Immunity

Defendant argues the trial court erred by failing to modify

CALJIC No. 3.16, concerning accomplice testimony, and

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CALJIC No. 2.20, concerning witness credibility. Defendant

also argues the court erred by failing to give CALJIC No. 3.19,

concerning the determination whether a corroborating witness

is an accomplice. We find no grounds for reversal.

a. CALJIC No. 3.16

Penal Code section 1111 provides that an accomplice’s

testimony cannot support a conviction without corroboration by

other evidence “as shall tend to connect the defendant with the

commission of the offense; and the corroboration is not sufficient

if it merely shows the commission of the offense or the

circumstances thereof.” The statute defines an accomplice as

“one who is liable to prosecution for the identical offense charged

against the defendant on trial in the cause in which the

testimony of the accomplice is given.” (Ibid.; People v. Gomez

(2018) 6 Cal.5th 243, 307; see id. at p. 308.)

On November 2, 2001, defendant submitted his list of

proposed jury instructions, which included CALJIC No. 3.16,

Witness Accomplice as Matter of Law. Defendant listed Rugge,

Pressley, Hollywood, Sheehan, and Affronti among the

witnesses to be included in the instruction. But when the jury

was ultimately instructed with CALJIC No. 3.16, the

instruction named only two of these individuals: “If the crimes

charged were committed by anyone, Jesse Rugge and Graham

Pressley were accomplices as a matter of law and their

testimony is subject to the rule requiring corroboration.”

The record does not reveal why the instruction named only

Rugge and Pressley. Defendant explains that the trial court

conducted an “ ‘informal’ ” conference with the attorneys to

address jury instructions, and the content of that conference was

not settled or recorded. Defendant argues he should not be

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faulted for the lack of recorded proceedings and contends the

denial of his request to name Skidmore, Hollywood, and

Sheehan in CALJIC No. 3.16 should be deemed preserved for

appeal.

Even assuming the claim has been adequately preserved,

the claim lacks merit. Although the informal conference may

not have been recorded, defense counsel conceded on the record

that Sheehan was not an accomplice and was therefore not an

appropriate person to include among those listed in CALJIC

No. 3.16. And although Skidmore and Hollywood “meet [Penal

Code] section 1111’s definition of an accomplice” in that “[e]ach

was liable to prosecution . . . for the identical offenses charged

against defendant” (People v. Williams (1997) 16 Cal.4th 635,

682), neither Skidmore nor Hollywood provided statements

requiring corroboration, which is the concern of CALJIC

No. 3.16.

“A court must instruct on the need for corroboration only

for accomplice testimony ([Pen. Code,] § 1111); ‘ “ ‘testimony’

within the meaning of . . . [Penal Code] section 1111 includes all

oral statements made by an accomplice or coconspirator under

oath in a court proceeding and all out-of-court statements of

accomplices and coconspirators used as substantive evidence of

guilt which are made under suspect circumstances.” ’ ” (People

v. Williams, supra, 16 Cal.4th at p. 682.) “ ‘The most obvious

suspect circumstances occur when the accomplice has been

arrested or is questioned by the police.’ [Citation.] ‘On the other

hand, when the out-of-court statements are not given under

suspect circumstances, those statements do not qualify as

“testimony” and hence need not be corroborated under . . .

section 1111.’ ” (People v. Williams (1997) 16 Cal.4th 153, 245.)

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Here, neither Skidmore nor Hollywood testified at trial,

but defendant identifies various out-of-court statements they

made that were admitted through other witnesses. For

example, defendant himself testified Skidmore had told him

“Ben’s brother had been killed” several days before Nick’s body

was found. Other witnesses testified to statements Hollywood

made to his fellow codefendants and others about Nick’s kidnap.

And witnesses reported statements Hollywood made to his

father and Hogg in which Hollywood described the crime

without owning up to his role in it. But none of these statements

were made under “suspect circumstances” undermining their

reliability. (People v. Williams, supra, 16 Cal.4th at p. 682

[“[S]tatements made in the course of and in furtherance of the

conspiracy were not made under suspect circumstances and

therefore were sufficiently reliable to require no

corroboration.”].) Accordingly, we find no error in the trial

court’s decision not to name Skidmore and Hollywood in the jury

instruction concerning corroboration of accomplice testimony.

b. CALJIC No. 3.19

Defendant also requested that the jury be instructed with

CALJIC No. 3.19, entitled “Burden to Prove Corroborating

Witness Is an Accomplice.” The instruction states: “You must

determine whether the witness [blank] was an accomplice as I

have defined that term. [¶] The defendant has the burden of

proving by a preponderance of the evidence that [blank] was an

accomplice in the crime[s] charged against the defendant.”

(CALJIC No. 3.19.) Defendant now says he proposed filling the

blank with witness Casey Sheehan and argues that whether

Sheehan was an accomplice constituted a question of fact the

jury should have been permitted to determine.

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We conclude the claim of error fails because, as noted

above, defense counsel agreed on the record that Sheehan—who

was not charged with any of the same offenses as defendant or

his codefendants—was not an accomplice. In any event, any

error would have been harmless because the jury was

adequately instructed concerning the definition of accomplices

pursuant to CALJIC No. 3.10, which states that “[a]n

accomplice is a person who [is] . . . subject to prosecution for the

identical offense charged . . . against the defendant on trial by

reason of . . . [being a member of a criminal conspiracy],” and the

need for corroboration of accomplice testimony. It is not

reasonably probable the jury would have returned a more

favorable result had it also been instructed with CALJIC

No. 3.19. (Watson, supra, 46 Cal.2d at p. 837 [setting forth

standard for evaluating harmlessness of state law error]; see

People v. Carpenter (1997) 15 Cal.4th 312, 393 [“Mere

instructional error under state law regarding how the jury

should consider evidence does not violate the United States

Constitution”].)

c. CALJIC No. 2.20

At trial, the jury was instructed with CALJIC No. 2.20

concerning the “believability of a witness.” The instruction told

jurors to “consider anything that has a tendency reasonably to

prove or disprove the truthfulness” of witness testimony and

listed numerous factors, including “demeanor,” whether the

witness had “bias, interest, or other motive” to testify, and

“[w]hether the witness is testifying under a grant of immunity.”

Defendant argues that, unbeknownst to the jury, a number of

witnesses in addition to Sheehan—namely, Adams-Young,

Affronti, Carpenter, Hogg, John Hollywood, and Lasher—

received immunity in exchange for their testimony. He contends

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the court should have modified CALJIC No. 2.20 to specifically

identify all of the witnesses testifying under a grant of immunity

and to advise the jury to view their testimony with “ ‘care and

caution.’ ”

At trial, defendant made no request to identify any

declarant other than Sheehan who testified under a grant of

immunity and thus forfeited that claim. But the claim fails

regardless. There is no duty to instruct a jury that the testimony

of immunized witnesses must be viewed with care and caution.

(People v. Daniels (1991) 52 Cal.3d 815, 867, fn. 20 [“Defendant

points to no authority requiring the court to instruct the jury

that immunized-witness testimony is to be viewed with distrust.

We have held that the court has no such duty to instruct sua

sponte.”]; see also People v. Leach (1985) 41 Cal.3d 92, 106.) It

follows that the trial court did not err by failing to convey to the

jury, via modification of CALJIC No. 2.20, which witnesses were

testifying under a grant of immunity.

Finally, and in any event, the trial court’s failure to modify

CALJIC No. 2.20 could not have prejudiced defendant. The role

these six witnesses played in the prosecution’s case was minimal

when compared with the substantial evidence of guilt presented

at trial unrelated to their testimony, including defendant’s own

detailed confession and Sheehan’s testimony that defendant

killed the victim. Moreover, the jury was instructed to consider

the witnesses’ “bias, interest, or other motive” for testifying.

(CALJIC No. 2.20.) It is not reasonably probable defendant

would have achieved a more favorable result if jurors viewed the

testimony of these six peripheral witnesses with somewhat

greater caution. (See People v. Lewis (2001) 26 Cal.4th 334, 371;

Watson, supra, 46 Cal.2d at p. 836.)

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D. Special Circumstances Claim

At one time, proof of the kidnap-murder special

circumstance required that the prosecution show a defendant

had an independent felonious purpose, “ ‘that is, the commission

of the [kidnapping] felony was not merely incidental to an

intended murder.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 62–63;

id. at p. 117; see People v. Brents, supra, 53 Cal.4th at pp. 608–

609.) The statute was amended to eliminate this independent

felonious purpose requirement in 1998, five months before the

crimes at issue here. (See Pen. Code, § 190.2, subd. (a)(17)(M),

added by Stats. 1998, ch. 629, § 2, p. 4165, and approved by

voters, Primary Elec. (Mar. 7, 2000); Brooks, at p. 63, fn. 8;

Brents, at pp. 608–609, fn. 4.)11 Nonetheless, the jury in this

case was instructed to find an independent felonious purpose to

kidnap. Defendant now argues the evidence was insufficient to

support the jury’s finding. And although he acknowledges that

the statute then in force did not, in fact, require the jury to make

such a finding, defendant contends that without the

independent felonious purpose requirement, the kidnap-murder

special circumstance is unconstitutional. We reject the first part

of this argument, which makes it unnecessary to address the

second: Because the jury was instructed on the independent

felonious purpose requirement and because the evidence was

sufficient to support the jury’s finding that the requirement was

11

As amended in 1998, Penal Code section 190.2,

subdivision (a)(17)(M) provides, “To prove the special

circumstance[] of kidnapping[,] . . . if there is specific intent to

kill, it is only required that there be proof of the elements of

th[at] felon[y]. If so established, [the] special circumstance[] [is]

proven even if the felony of kidnapping . . . is committed

primarily or solely for the purpose of facilitating the murder.”

(Italics added.)

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satisfied, we need not decide here whether the kidnap-murder

special circumstance is constitutional in the absence of an

independent felonious purpose requirement. (See, e.g., Loeffler

v. Target Corp. (2014) 58 Cal.4th 1081, 1102 [“Our jurisprudence

directs that we avoid resolving constitutional questions if the

issue may be resolved on narrower grounds.”]; see id. at p. 1103.)

The jury here was instructed that, to find the special

circumstance of kidnap felony murder true, “it must be proved,

one, the murder was committed while the Defendant was

engaged in the commission of a kidnapping; or, two, the murder

was committed in order to carry out or advance the commission

of the crime of kidnap, or to facilitate the escape therefrom, or

to avoid detection. In other words, the special circumstance

referred to in these instructions is not established if the kidnap

was merely incidental to the commission of the murder.”12

“ ‘In reviewing the sufficiency of the evidence, we must

determine “whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have

12

At oral argument, defendant argued for the first time that

this instruction was defective because the “or” in the first

sentence of the instruction would have conveyed to the jury that

it could find the special circumstance true so long as it concluded

that “the murder was committed while the Defendant was

engaged in the commission of a kidnapping,” even if it did not

find that defendant had an independent purpose to kidnap Nick.

While it does appear the disjunctive “or” in the first sentence

was included in error, we see no likelihood that the jury was

confused by it. The second sentence of the instruction

unambiguously informed the jury that “the special circumstance

. . . is not established if the kidnap was merely incidental to the

commission of the murder.” The instruction thus expressly told

the jurors that they must find an independent felonious purpose

to find the special circumstance true.

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found [this] element[] of the crime beyond a reasonable doubt.” ’

[Citation.] ‘Substantial evidence’ is evidence which is

‘ “reasonable in nature, credible, and of solid value.” ’ ” (People

v. Morgan (2007) 42 Cal.4th 593, 613–614.)

Defendant’s sufficiency of the evidence argument depends

on the premise that the evidence established two separate

kidnappings, only the second of which involved defendant.

Defendant argues that “the jury may have applied an incorrect

theory if it believed [defendant] committed the murder in order

to assist Hollywood in avoiding detection for the August 6th

completed kidnap.” And to the extent the jury instead focused

on defendant’s later act of moving Nick to the gravesite at

Lizard’s Mouth, defendant argues there was insufficient

evidence to support a finding that defendant had an

independent purpose to kidnap Nick: “[N]o properly-instructed

rational trier of fact could have found that this ‘second kidnap’

(if it were a ‘kidnap’) was not merely incidental to the murder,

with the murder being the defendant’s primary purpose.”

Defendant’s argument suffers from an overly narrow view

of the kidnap, one inconsistent with our duty to view the

evidence in the light most favorable to the prosecution. As

already noted, the indictment charged defendant and his

codefendants with a continuing kidnapping offense that

extended over the period of time from when the victim left his

home and was taken to Santa Barbara, to the time he spent in

Santa Barbara, and the time he was taken from locations within

Santa Barbara to the site of his murder. As previously

discussed, there was evidence from which a jury could conclude

defendant moved Nick against his will as part of that single,

continuous kidnapping. In addition, there was evidence from

which the jury could conclude the murder was committed to

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“advance the commi

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