People v. Schultz

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL JOSEPH SCHULTZ,

Defendant and Appellant.

S114671

Ventura County Superior Court

CR49517

November 23, 2020

Chief Justice Cantil-Sakauye authored the opinion of the

Court, in which Justices Corrigan, Liu, Cuéllar, Kruger,

Groban and Goethals* concurred.

________________________

*

Associate Justice of the Court of Appeal, Fourth Appellate District,

Division Three, assigned by the Chief Justice pursuant to article VI,

section 6 of the California Constitution.

PEOPLE v. SCHULTZ

S114671

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

A jury convicted defendant Michael Joseph Schultz of the

first degree murder of Cynthia Burger (Pen. Code, § 187,

subd. (a)),1 and found true the special circumstance allegations

that the murder was committed while defendant was engaged

in the commission of rape and burglary (§ 190.2,

subd. (a)(17)(C), (G)). After a penalty phase trial, the jury

returned a verdict of death. Defendant moved to modify his

sentence to life without the possibility of parole. (§ 190.4,

subd. (e).) The trial court denied the motion and sentenced him

to death. Defendant’s appeal is automatic. (§ 1239, subd. (b).)

We affirm the judgment in its entirety.

I. FACTS AND PROCEDURAL BACKGROUND

A. Guilt Phase Evidence

1. Prosecution evidence

Cynthia Burger lived in a condominium complex in Port

Hueneme, a city located in Ventura County. Around 3:30 a.m.

on August 5, 1993, her neighbor was preparing to leave for work

and was surprised to see that Burger’s garage door was open.

Finding that sight unsettling, the neighbor sat in his car in front

of Burger’s garage. After hearing and seeing nothing for several

minutes, he left for work.

1

All further statutory references are to the Penal Code

unless otherwise indicated.

PEOPLE v. SCHULTZ

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

About two hours later, another neighbor awoke to the

smell of smoke and saw that Burger’s condominium was on fire.

Police officers were first on the scene, but they were unable to

get far into the home because of the thick smoke. Firefighters

soon arrived and quickly extinguished the fire, which was

confined to an upstairs bedroom. When firefighters searched

the rest of the residence, they found Burger’s lifeless body

facedown in a half-filled bathtub located on the first floor. Her

matted hair was an unnatural yellow-orange color that was

coated with a foamy soap-like substance. Fire personnel pulled

her from the water and attempted to revive her, but they

abandoned their efforts when it was apparent she was dead.

Police officers collecting evidence from the scene found no

signs of forced entry. They discovered, however, that the

condominium’s smoke detectors had been removed or disabled.

Burger’s sister was called to the scene and informed officers that

Burger’s purse containing her wallet and credit cards was

missing.

Later that day, Ventura County’s Chief Medical

Examiner, Dr. Ronald O’Halloran, performed on autopsy on

Burger’s body. Dr. O’Halloran noted that Burger had petechial

hemorrhages on the skin of her face, her eyelids, and the whites

of her eyes. She also had abrasions under her chin, bruising on

her neck, and a fractured hyoid bone. He concluded based on

these observations that the cause of death was manual

strangulation. Dr. O’Halloran also concluded that Burger was

already dead when the fire started because there was no

evidence she had inhaled smoke and no evidence of carbon

monoxide in her bloodstream.

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Dr. O’Halloran examined Burger’s genital area and

discovered three lacerations in the pubic area and bruising in

the lower portion of the vagina. He concluded that Burger had

been forcibly penetrated. Dr. O’Halloran swabbed and

aspirated Burger’s vaginal canal to recover possible seminal

fluid. He then conducted a microscopic examination from one of

the swabs and observed sperm. He released the swabs and

vaginal aspirant to the Port Hueneme Police Department. The

material was preserved for future testing.

Two weeks after the fire, an expert in fire reconstruction

visited the condominium to determine the fire’s point of origin,

characteristics, and duration. According to the expert, the fire

started when an open flame was applied to synthetic bedclothes

at the foot of the bed, erupted quickly, and was rapidly

extinguished. The expert concluded the fire was set

intentionally.

The investigation into Burger’s death went unsolved for

several years. In March 1996, three years after the killing, the

assistant laboratory manager at the Ventura County Sheriff’s

Department crime lab contracted with Orchid Cellmark

Laboratories (Cellmark) to extract DNA from the vaginal

aspirant (also referred to as a vaginal wash) produced by

Dr. O’Halloran during the autopsy. Cellmark successfully

extracted DNA from the sperm cells present in the vaginal wash

and the evidence was returned to the crime lab.

Meanwhile, around the time of the killing, defendant

became romantically involved with Therresa Mooney. The two

broke up at one point but had resumed dating when defendant

was sentenced to prison in 1996 for other crimes. Mooney

visited defendant in prison regularly. Defendant’s mother,

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Bruni Loprieato, had previously been estranged from defendant

but often joined Mooney to visit defendant.

In 1999, three years into his prison sentence and six years

after Burger’s death, defendant was transferred to a low

security fire camp. By August of that year, defendant and

Mooney were engaged to be married and they expected,

incorrectly, that he would be released within six months.

Mooney was therefore incredulous when defendant asked her to

help him escape.

Mooney testified at trial about her conversations with

defendant. She stated that defendant explained to her that

prison authorities soon would be taking a DNA sample from

him, which might implicate him in a prior crime. Defendant told

Mooney that he and a companion were burglarizing a home

when the homeowner awoke and confronted them. Defendant

claimed the homeowner cut him on the forearm with a butcher

knife as defendant attempted to flee, and that his companion

then killed the homeowner.

Defendant feared he would be held responsible for the

homeowner’s death, and asked Mooney to bring a car and to

meet him outside the fire camp between bed counts. He

explained that he wanted Mooney to give him a ride to a bus

station or airport, and that he might flee to live with a relative

in Germany. Mooney refused defendant’s request to help him

escape, saying that he should not run from the situation because

“if that’s really the way it happened,” defendant would not be

charged.

Mooney testified that she visited defendant about one

week later, this time accompanied by Loprieato. On the drive to

the fire camp, Mooney told Loprieato about defendant’s request

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for help to escape. Both women were angry and hurt, and they

made clear to defendant they would not assist him in escaping.

At one point during the visit, Loprieato went to the bathroom

and Mooney told defendant that she loved him and was “there

for [him],” but that she was skeptical of his story. Mooney asked

defendant whether he had killed someone. Defendant said that

he had. Prompted by a “weird feeling,” Mooney asked whether

the victim was a woman and whether he had raped her.

Defendant again said yes. He then told Mooney that the victim’s

name was “Cindy Burger” and that the killing happened on

August 4 or 5, 1993. He suggested that Mooney search the local

newspapers for coverage of Burger’s death, saying that he had

set a fire during the incident and that it was covered in the news.

Loprieato then returned, and the group resumed talking about

defendant’s plan to escape. Neither Mooney nor defendant

mentioned Burger to Loprieato at that time.

Mooney stated that when she left the fire camp, she and

Loprieato agreed not to tell anyone about defendant’s plan to

escape. Mooney did not tell law enforcement about the plan or

defendant’s admission regarding Burger’s death because she

was afraid and “wanted it to all be not true.” She eventually

went to a library and located a newspaper article about the

killing. She brought the article with her when she visited

defendant the following weekend. Mooney gave defendant the

article to read. At one point, he stopped reading and said the

article was wrong in stating that Burger had been wearing a

nightshirt. Mooney read the rest of the article to defendant and

demanded that he tell her what happened. Defendant agreed

and answered Mooney’s questions regarding the circumstances

surrounding the rape and killing.

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Mooney also testified that defendant told her that he had

used a lot of methamphetamine earlier in the day and stumbled

upon Burger’s open garage between 2:30 and 3:00 a.m. He said

he entered the garage intending to steal something, but then

found a key that unlocked the door separating the garage from

the residence.2 He went inside, looked around the first floor,

went upstairs, found Burger nude on her bed, and raped her.

When Mooney asked defendant if Burger fought back, he said,

“No, actually she seemed to like it.” Defendant told Mooney that

at one point Burger scratched either his face or his chest.

Mooney recalled that sometime around August 1993 she had

seen marks on defendant’s face.

Defendant answered more of Mooney’s questions about

the killing. Defendant explained that he had smothered Burger

with a pillow and that he killed her because he was “too

identifiable.” He said that he placed Burger’s body in the

downstairs bathtub and filled it with water, bleach, and other

household chemicals to “kill any DNA.” Defendant told Mooney

that, fearing he could be identified by DNA from hair or sperm

on Burger’s bed, he went back upstairs and used a candle to light

the bed on fire. He also explained that before leaving the scene,

he took some items to make it appear that Burger’s residence

had been burglarized.

After defendant had answered Mooney’s questions, she

mentioned that her friend knew a City of Ventura Police

Department employee who, for a fee, could check to determine

2

Mooney admitted at trial she had testified during the

preliminary hearing that defendant told her he did not have a

plan concerning what he was going to do when he entered

Burger’s home.

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whether any DNA evidence had been recovered from the crime

scene. She asked defendant not to attempt an escape until she

could obtain that information. Defendant agreed, telling

Mooney to ask Loprieato for the money. Mooney later gave her

friend $100 for the information; the friend reported that the

DNA from the case “wasn’t legible,” and Mooney communicated

the “good news” to defendant by telephone. Defendant then

asked Mooney to tell Loprieato about the crime.

Mooney further testified that during a subsequent drive to

visit defendant she disclosed to Loprieato what defendant had

told her about killing Burger. When Loprieato arrived at the

fire camp, she tearfully asked defendant whether what Mooney

told her was true. Defendant said, “Yes, mama, it is.” Mooney

and Loprieato decided they would not tell anyone about the

crimes.

Loprieato also testified at trial. She admitted that

defendant had asked for her help escaping from the fire camp

but asserted that she repeatedly refused to help him. She

denied that defendant told her he wanted to escape because of

any concern regarding DNA, but she admitted he said that

something he had done in the past was going to “backfire” on

him. Loprieato also denied that defendant ever confessed to her

that he had raped and killed Burger. She did, however, admit

that Mooney had told her about defendant’s confession and the

possible DNA evidence during one trip to visit defendant, that

she believed Mooney, and that she had no reason to think

Mooney would lie about the confession. When Loprieato

approached defendant at the fire camp that day, she said to

defendant, “[W]hat have you done?” He proceeded to cry, put

his head down, and walk away.

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Loprieato agreed that she and Mooney made a pact not to

tell anyone about defendant’s confession. Loprieato testified

that although defendant never personally told her he had

committed the crime, he also never told her he had not killed

Burger. Similarly, Mooney testified that defendant continued

to write to her after he was implicated in Burger’s death and

leading up to his capital trial, but that he never denied killing

Burger.

In August 2000, one year after defendant had disclosed to

Mooney the details of Burger’s rape and killing and several

months before defendant’s expected release from the fire camp,

Mooney told her daughter about defendant’s confession.

Mooney’s daughter told Mooney to call the police, or she

(Mooney’s daughter) would. That day, Mooney placed an

anonymous call to the City of Ventura Police Department to

report that she had information regarding Burger’s death.

In October 2000, investigators contacted Loprieato and

asked her about Burger’s death. Loprieato denied knowing

anything about the incident. After she spoke with investigators,

Loprieato met with Mooney at a restaurant. Unbeknownst to

Loprieato, Mooney was wearing a recording device. Loprieato

told Mooney that she was “playing dumb” when she spoke with

investigators, and that she would deny knowing anything about

Burger’s death. She reported that she had talked to defendant

about Burger’s death, saying, “I said to [defendant] what in the

world possibly could have happened to him to murder

somebody?” And she told Mooney that telling the police

anything “is not helping you and it’s not helping him. And you

know something, I think to myself fuck the system. Do you

know how many people who have money would have gotten

away with it?” At trial, Loprieato admitted to making those

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statements, although she denied talking with defendant directly

about the killing, saying her statement was taken out of context.

She explained, too, that she was upset, trying to comfort a

“hysterical” Mooney, and attempting to protect her son.

Later in October 2000, Loprieato became extremely

distraught about Burger’s death. She talked with a family

friend, Alan Bice, about whether to be truthful with law

enforcement about what she knew. Bice told Loprieato she

should be honest with investigators. Bice also testified that

Loprieato told him that defendant had admitted to her that he

had killed a woman.3 Six days later, Bice spoke with

investigators regarding his conversation with Loprieato. Later

that day, Bice accompanied Loprieato to the prosecutor’s office

where she talked with investigators and related what she knew.

About one month later, investigators obtained blood

samples from defendant. The blood samples were sent to

Cellmark, where they were compared with the DNA collected

from sperm found during Burger’s autopsy. DNA testing

showed the likelihood that the sperm collected during Burger’s

autopsy came from a Caucasian other than defendant was one

in 24 times 10 to the 18th power. In other words, the DNA

evidence showed a match.

3

On cross-examination, defense counsel pointed to

statements Bice made to law enforcement in an attempt to cast

doubt on Bice’s testimony. Bice acknowledged that some of his

prior statements were ambiguous but maintained at trial that

Loprieato had told him that defendant personally confessed to

her.

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2. Defense evidence

The defense presented no affirmative evidence at the guilt

phase of trial.

B. Penalty Phase Evidence

1. Prosecution’s case in aggravation

The prosecution’s case in aggravation included testimony

and documentary evidence regarding defendant’s prior

convictions and various uncharged acts of violence or threats of

violence. In addition, three of Burger’s family members

described how Burger’s death had affected them.

a. Prior convictions

The jury learned that defendant had been convicted of

residential burglary in September 1992, that he was initially

sentenced to probation but eventually sent to prison in

December 1992, and that he was released on parole in June

1993.

The jury also learned that in 1996, three years after the

killing, defendant pleaded guilty to six charges, including

second degree burglary, felony battery resulting in serious

bodily injury to a police officer, being under the influence of a

controlled substance, and other misdemeanor offenses. These

convictions stemmed from an incident that occurred on the

Ventura campus of California State University, Northridge.

Two officers, Thomas Avery and Alex Marquez, discovered

defendant using tools to break into a vending machine coin box

in the student lounge. According to the officers, they drew their

guns and ordered defendant to put down his tools and lie on the

floor. Defendant dropped the tools, but then ran at full speed

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toward the officers and was able to slip between them.4 The

officers chased defendant down several hallways and a flight of

stairs, cornering him inside an underground parking garage.

During the pursuit, the officers unsuccessfully used pepper

spray and baton strikes to attempt to stop defendant. At one

point they held defendant down on the ground of the garage with

both officers on top of him. Defendant managed to hoist himself

up into a squatting position and move toward a door leading

outside the garage. Defendant opened the door, and he and the

officers tumbled onto the ground outside. Defendant continued

to struggle to get away while Avery and Marquez held him

down, striking him each time he attempted to get up. Defendant

was subdued and handcuffed only after five additional officers

arrived and assisted in the arrest. The parties stipulated at trial

that a sample of defendant’s blood that was taken on the day of

the incident tested positive for methamphetamine.

Officer Marquez testified that several times during the

incident defendant reached for or grabbed Marquez’s holstered

sidearm, leading Marquez to fear for his life. Officer Avery

testified that he never saw defendant reach for Marquez’s

firearm; he acknowledged that there were times when Officer

Marquez and defendant were out of his sight, and that he would

have been watching for defendant to reach for the firearm.

Officer Marquez, for his part, stated there was “no doubt in [his]

mind” that defendant was reaching for his firearm. He

described the incident as “the most violent confrontation I had

in my entire life.” As a result of the injuries he suffered during

4

Officer Marquez testified that defendant did not drop the

tools until he (Officer Marquez) struck him in the chest with a

police baton.

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the arrest, Officer Marquez had to undergo eight surgeries on

his knees and one on his back. Officer Avery said he had never

been involved in a struggle that was so violent; he dislocated a

finger while punching defendant to keep him subdued.

b. Uncharged crimes of violence

The prosecutor called several witnesses to testify about

prior uncharged incidents involving violence by defendant.

Michael Hecht testified that he met defendant in April or

May of 1989 when Hecht moved from Las Vegas to Redlands,

California. Hecht’s mother was dating defendant’s father at the

time, and Hecht and defendant worked at defendant’s father’s

refrigeration repair business; Hecht slept on a couch at the

business. That June, defendant’s father abruptly demanded

Hecht leave. As Hecht was gathering his possessions, he asked

his mother to leave with him because she and defendant’s father

had been fighting. Defendant and his father later attacked

Hecht and beat him, saying, “you’re dead.” Defendant grabbed

Hecht around the neck with one arm and punched him

repeatedly in the face with the other arm. At one point, after

Hecht had been wrestled to the ground, defendant banged

Hecht’s head against the pavement. Defendant’s father told

defendant that he was going to retrieve a firearm. Hecht

responded by slashing at his attackers with a pocketknife and

eventually was able to get away. He suffered a dislocated jaw,

a bloody nose, a concussion, and rib injuries.

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Defendant’s stepfather, Nick Loprieato,5 testified about

another incident that occurred in early 1991. He stated that he

was upstairs in the family home when he overheard defendant

and defendant’s mother arguing over defendant’s use of the

family’s washing machine. When Mr. Loprieato told defendant

that he “ought to respect [his] mother,” defendant grabbed him,

placed him in a chokehold, and said, “I could hurt you if I want

to.” Defendant’s mother called the police. A police officer

testified that Mr. Loprieato reported that defendant had

threatened to kill him, although at trial Mr. Loprieato said he

did not remember such a threat.

Therresa Mooney also testified about several incidents

involving defendant’s acts of violence. One incident occurred

around September 1993 at the beginning of their relationship

when defendant became angry with Mooney for socializing with

a male friend at a beach party. According to Mooney, she and

defendant argued, and defendant and the man got into a scuffle.

When defendant went to his car, Mooney’s friend picked up a

metal pipe that was part of a trampoline to defend himself.

Defendant then drove at Mooney’s friend, who “kind of hit the

front of the car . . . [and] jumped and rolled over the side of the

car . . . .” Mooney’s daughter gave a similar account of the

incident.

Mooney also described defendant’s assaults on her. On

one occasion in late 1994, defendant and Mooney were in a car

accident together and Mooney was in intensive care for two

weeks. After she was released from the hospital, she and

5

To avoid confusion, this opinion refers to Nick Loprieato

as “Mr. Loprieato” and refers to defendant’s mother, Bruni

Loprieato, as “Loprieato.”

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defendant argued over his drug use and he kicked or kneed her

in the buttocks. During a later argument over defendant’s drug

use, he kneed Mooney in the buttocks, hitting her tailbone. In

an incident that occurred after Mooney had broken off the

relationship due to defendant’s continued drug use, defendant

ingested methamphetamine, took Mooney’s house and car keys,

refused to return them to her, and twisted her hand backward

when she confronted him. Mooney’s daughter called the police.

Mooney also testified that on one occasion when defendant was

trying to convince Mooney not to end the relationship, he

threatened to smash her television. She was able to convince

him to leave her house, and she closed and locked the door.

Defendant then broke through the door, knocking her down in

the process.

Mooney also testified that in early 1995, after she and

defendant separated, she went on a date with a man named

Darryl Allen. When she returned home with Allen after the

date, defendant rushed at the car yelling at Allen and pulled

Allen from the vehicle. Allen retrieved a sledgehammer handle

from the back of his car, and he and defendant struggled.

Defendant put Allen in a chokehold and was able to take control

of the sledgehammer handle. Allen got back into his car to leave,

and defendant broke the car windshield with the handle.

Mooney’s daughter corroborated this account, including that

defendant broke Allen’s windshield. Allen testified and

provided a slightly different account of the events. Allen stated

that he drove to Mooney’s house alone and saw defendant and

Mooney arguing in the street. Allen exited his car, and

defendant started yelling at him, ripped Allen’s shirt from his

body, and punched Allen in the head. Allen then retrieved the

sledgehammer handle from his car, and defendant put him in a

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chokehold. Allen could not say how his car windshield had been

damaged; he believed it may have occurred when he was

retrieving the sledgehammer handle and defendant grabbed

him.

Richard Bowens described an incident from April 1995 in

which defendant became angry with Bowens’ girlfriend

concerning her failure to repay a $5 debt. Defendant grabbed

her shirt collar and shook her, prompting the woman to call out

for help. Bowens came between defendant and the woman and

told defendant that she would repay the debt when she could.

As defendant walked away, however, he turned and threw a

punch at Bowens that “grazed” his cheek. Police responded but

no charges were filed; Bowens said that he did not pursue the

matter after defendant begged him not to.

c. Victim impact evidence

The prosecution called Burger’s father, mother, and older

sister to testify regarding the effect Burger’s death had on them

individually and as a family. Burger’s father, Had, testified that

his daughter’s death left him with a feeling of emptiness.

Burger’s mother, Virgie, described the pain she felt after

learning of the killing. And Burger’s sister, Sandra, described

the bond she had with her sister and her reaction upon hearing

of her sister’s death.

2. Defense case in mitigation

The defense case in mitigation included testimony from

defendant’s family members, expert witnesses, and lay

witnesses. Defendant’s family members described defendant’s

upbringing in an environment of drug abuse and domestic

violence, the mental abuse inflicted on him and his siblings by

his father, and defendant’s use of drugs beginning at an early

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age. Other witnesses testified regarding defendant’s heavy drug

use and addiction to methamphetamine during his adult years

and the behaviors he exhibited in connection with that

addiction. The defense also presented testimony from an expert

in addictive medicine and expert testimony from a psychologist

regarding how an individual can be affected by witnessing and

experiencing domestic violence as a child. Finally, the defense

called several lay witnesses and a penology expert to testify

regarding defendant’s prospects for a successful adjustment to

life in prison without the possibility of parole.

a. Defendant’s upbringing and family background

Defendant’s half sister and brother described growing up

in a household beset by parental neglect, drug abuse, and

frightening domestic violence perpetrated by defendant’s father.

Defendant’s mother was the family’s primary income

earner and she spent long hours working as a hairdresser. From

a young age, defendant and his brother were generally left in

the care of their sister, who was five years older than defendant.

The children were often left alone at night.

Defendant’s father punished the children frequently, and

all three children were punished for the digressions of one. His

methods included beating them with a belt and forcing them to

kneel on the kitchen floor for lengthy periods of time.

Defendant’s father would belittle the children, often in an

interrogation-like setting that lasted for hours. According to

defendant’s sister, it was common practice for her and her

brothers to be awakened in the middle of the night for

punishment and then to be forced to stay awake. She described

their existence as akin to living in “a hostage situation” with a

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“sort of terrorist” because they had no idea what was going to

anger their father.

Defendant’s siblings testified that defendant’s father also

forced the three children to witness the physical abuse he

inflicted on their mother. For example, in the children’s

presence and while in a drunken rage, defendant’s father

pummeled their mother with his fists after she had mentioned

the possibility of a separation. Defendant’s sister remembered

another incident that occurred after their mother had fled the

home. After their mother had driven off, their father placed the

three children in his car to hunt her down, telling the terrified

children he would kill their mother when he found her.

Defendant’s brother described another occasion after their

mother had fled the house with their sister. Their father

grabbed his shotgun and put defendant’s brother and defendant

in the car, telling them that something bad would happen to the

boys if he could not find their mother.

Defendant’s siblings further testified that their father

used illegal drugs in the home, and would ingest “speed” and

cocaine in front of them. With his ever-increasing drug use,

their father became more paranoid and began threatening the

children with the firearms he kept at home.

According to defendant’s brother, beginning when

defendant was nine or 10 years old, he and defendant would

experiment with their father’s drugs, including “speed” and

marijuana. Around that time, they also started drinking hard

alcohol and beer. Defendant’s sister recalled that the drugs

made defendant agitated, and that he and his brother would hit

and burn each other with cigarettes when they were under the

influence.

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Defendant’s sister also testified that her father had

sexually molested her beginning when she was eight or nine

years old. To avoid him, she would often sleep in her brothers’

bedroom, sometimes under the bottom bunk bed. She kept the

molestations a secret. Defendant’s brother recalled that his

sister would occasionally sleep in the room he shared with

defendant. He remembered that on one of these nights their

father came into the room, drunk, around 2:00 or 3:00 in the

morning and lay down next to their sister. When their father

put his arm around her and said he loved her, defendant’s

brother stirred loudly, as if he had just woken up, and then got

out of bed to walk to the bathroom. As he walked out, he

overheard his sister say to their father something like, “It’s not

right.”

When defendant’s sister was about 17 years old, she heard

defendant’s father trying to enter the locked door to her

bedroom. When she saw that he had then gone outside the

house to try to break into her room through the window, she fled

to a bathroom and locked the door. Her father, who was clad

only in his underwear, began banging on the bathroom door

yelling for her to come out. The commotion brought defendant

and his mother and brother to the scene, and they observed

defendant’s father punch a hole through the bathroom door to

get inside. Defendant’s sister cowered in the corner, crying and

shaking. Defendant’s mother testified that when she angrily

asked her husband what was going on, he threatened her.

A short time after that incident, defendant’s sister

permanently left the home. Two or three weeks later, after

defendant’s father threatened to kill defendant’s mother if she

did not bring defendant’s sister back, defendant’s mother moved

out of the house and filed for divorce.

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

Defendant and his brother were 12 and 14 years old,

respectively, when their mother and sister departed. The boys

were left mostly in the care of their father, who provided them

with no structure, control, or stability. Defendant and his

brother moved from place to place with their father. During this

time, defendant used cocaine, methamphetamine, and other

drugs, sometimes with his father. By then, defendant had

stopped going to school and would often hang around at an

arcade.

After defendant’s parents divorced, defendant’s father

became romantically involved with Jacqueline White.

Defendant and his father lived with White when defendant was

about 15 years old. She testified that during the time defendant

and his brother resided in her home, defendant was quiet and

considerate, and very nurturing to her young son. White was

distressed by the abuse and punishment that defendant’s father

imposed on his sons, and she eventually became the target of his

wrath as well. On one occasion after defendant’s father and his

sons had moved to a different residence, they came to stay with

White for the weekend. During the evening, defendant’s father

became enraged and pushed White up against a wall.

Defendant stepped in, pulled his father off of White, and

managed to get him to stop the attack. White described another

similar incident when defendant stepped in to protect his

brother from their father’s abuse.

Defendant’s paternal aunt testified that her father

(defendant’s paternal grandfather) was abusive, controlling,

and unpredictable, and that she, defendant’s father, and their

mother had been subjected to the same type of abuse that

defendant’s father later meted out to his own wife and children.

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b. Defendant’s drug use as an adult

Defendant’s mother testified that when defendant was

about 18 years old he came to live with her and her new

husband. She asked defendant to leave, however, after his drug

use became more frequent and he had refused to attend the

airline mechanics school in which they had enrolled him.

Kenneth Ross testified that he first met defendant when

defendant was in his early twenties. At that time, Ross found

defendant to be a helpful and humble person who enjoyed down-

to-earth pleasures like walking on the beach and taking their

dogs out to play together. Several years later, Ross started

supplying defendant with methamphetamine. For the next

three or four years, they regularly used the drug together.

Ross explained that when he (Ross) was under the

influence he became a “totally different” person, doing things he

would never think of doing while sober. Ross also described the

changes he noticed in defendant’s personality after regular use

of methamphetamine. Specifically, Ross found defendant was

less likely to be helpful or generous. Instead, defendant grew

cold and self-absorbed. And when the effects of the drug were

wearing off, defendant could be intimidating and even

aggressive. Ross related that on one occasion, defendant

knocked him to the ground.

Defendant’s friend, Chad Hoffman, described similar

observations. Hoffman testified that he used

methamphetamine regularly with defendant, and that

defendant would often become quiet, grumpy, and even

aggressive when the effects of the drug were wearing off.

Other evidence regarding defendant’s drug use was

provided through the testimony of the probation officer who

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

prepared a presentencing report in connection with defendant’s

1996 guilty plea. During the interview with the officer,

defendant blamed the incident on his use of methamphetamine.

In summarizing his lengthy history of drug addiction and abuse

for the officer, defendant indicated that beginning at 15 years

old he snorted cocaine on a monthly basis, and that between the

ages of 22 and 24 his use of this drug increased significantly

until he was incarcerated. Defendant also reported that

between the ages of 15 and 20 he smoked marijuana daily. And,

with regard to his use of methamphetamine, he told the officer

that in his early twenties he snorted or smoked one-quarter

gram of methamphetamine every day.

c. Defense expert testimony

i. Drug addiction

The defense called as a mitigation witness an addiction

medicine expert, Alex Stalcup, M.D., who provided the jury with

detailed information about drug addiction and its effects. He

explained that a “drug of abuse” is a chemical that

overstimulates the neurotransmitters of the brain’s pleasure

centers. Such overstimulation changes the brain’s physiology

by damaging the pleasure systems, which in turn interferes with

the drug addict’s ability to experience pleasure without the use

of drugs. For a drug addict, the overstimulation of the pleasure

center’s neurotransmitters leads to the need for a higher dose of

the drug to achieve the same high, and with that need comes the

inability to control or stop their drug use. And because drug

addiction renders an individual incapable of experiencing

pleasure without drugs, he or she avoids sobriety, which

becomes a state of emptiness and boredom that can become

intolerable.

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Dr. Stalcup further explained that factors such as genetic

makeup and life experiences can predispose an individual to

drug addiction. For example, when children use drugs during a

tumultuous time the drugs not only make them feel good but

also allow them to escape the turmoil. The social context of a

child’s first use of drugs is also significant to predisposition

because a home or peer group environment that supports drug

use enables the child to obtain enough drugs to damage his or

her brain’s ability to experience pleasure.

Dr. Stalcup also discussed the factors that can lead a

susceptible person to become an addict. According to

Dr. Stalcup, “early onset use” of a high potency drug before 15

years old, when the brain’s pleasure centers are still developing,

presents a dangerous factor for progression toward addiction.

Another significant factor, he explained, is childhood trauma, be

it physiological, physical, or sexual.

With regard to the use of methamphetamine specifically,

Dr. Stalcup characterized it as a “much too powerful” drug that

if used over any extended period of time, particularly if smoked

or injected, will demonstrably injure the user’s pleasure centers.

According to Dr. Stalcup, studies have shown that some

methamphetamine users exhibit aggressive behavior because

the drug simulates the fight-or-flight response caused by

adrenaline. A methamphetamine user may become

apprehensive and hypervigilant, seeing a threat that does not

exist. Dr. Stalcup also opined that methamphetamine users do

not exercise free will but that, when intoxicated, they do what

the drug tells them to do. He further asserted that, in the case

of someone who committed a rape-murder, the drug “created

conditions that [a rape-murder] would happen.”

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

Based on his review of the transcripts of the guilt phase

and interviews with defendant’s family members, Dr. Stalcup

believed that defendant was addicted to methamphetamine and

probably addicted to marijuana at the time of his 1996 arrest.

In explaining that opinion, Dr. Stalcup reviewed the various risk

factors shown by this evidence. For example, he found that

defendant’s family history of drug use showed he had a “high

genetic load” for addiction. He also observed that defendant was

raised in a household where he, his siblings, and his mother

suffered psychological abuse and brutal physical assaults. In

Dr. Stalcup’s view, incidents such as those described by

defendant’s family members are associated with feelings of

hopelessness, which further served to predispose defendant to

addiction. Dr. Stalcup also supported his opinion with evidence

that defendant snorted speed when he was 10 or 11 years old, at

a time when his brain function was not fully matured. This

suggested to Dr. Stalcup that the effect of that drug would be

much more potent than had it been ingested when defendant

was older.

Dr. Stalcup also found significance in the prevalence and

casualness of drug use in the household, which further enabled

defendant’s ingestion of drugs. Dr. Stalcup believed that the

description of the events that unfolded in 1996, when he fought

back violently against the officers who were attempting to

apprehend him, was a classic example of the methamphetamine

fight-or-flight phenomenon. Finally, in Dr. Stalcup’s view, the

testimony by defendant’s friends regarding defendant’s dark

mood when coming off the effects of methamphetamine was like

that of the addict who believes the way he or she feels without

the drug to be intolerable.

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ii. Impact of child abuse

The defense also called Bruce Gladstone, Ph.D., to testify

regarding the destructive behaviors that can be set in motion as

a result of growing up in an abusive environment. According to

Dr. Gladstone, the formative years of childhood are important

to the development of an individual’s brain and adult

personality. Child abuse can result in dysfunction later in life,

including cognitive and psychiatric problems.

Dr. Gladstone characterized as child abuse many of the

incidents that occurred during defendant’s upbringing, such as

witnessing the repeated beating of a parent, being left alone and

unsupervised, being beaten with a belt for a minor infraction,

and being exposed to drugs left around the house in accessible

places. As Dr. Gladstone explained, without a mentor or

positive role model outside the household, many children

growing up in an abusive environment tend to model the

behaviors that they see in their adult caretakers. They can

develop low self-esteem, poor impulse control, and an increased

likelihood for drug addiction as a result of the abuse. The more

severe the abuse, the more severe the damage to the child’s

development.

iii. Prospects for a positive adjustment to life

in prison

The defense called Anthony Casas, a former associate

warden for the California Department of Corrections and

Rehabilitation, as a penology expert to offer his opinion

regarding whether defendant would make a positive adjustment

if sentenced to life without the possibility of parole. According

to Casas, the record of an individual’s behavior in prison prior

to a capital offense is the best indicator of that person’s future

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

behavior in prison. Casas opined that neither defendant’s

conviction for Burger’s rape and murder nor his asking for help

to escape from fire camp would factor into the determination

concerning whether defendant would adjust well in prison.

After reviewing defendant’s prison and jail records,

including his work and disciplinary history, Casas expressed the

view that defendant would serve out a life sentence as an

obedient and peaceful inmate. He found it significant that

defendant worked and completed a vocational training program

while housed in a high security prison after his 1996 convictions.

Only one year later, defendant’s behavior allowed him to be

transferred to the Sierra Conservation Center to train as an

inmate firefighter. On his successful completion of that

program, Casas explained, defendant was assigned to the Mount

Gleason Fire Camp, which meant he was being housed in a

facility with the least secure level of custody. As Casas

described it, individuals selected for the fire camps “are

considered the A students of the prison population.” As for

defendant’s rules violations at the fire camp and while in

custody in county jail awaiting trial in this case, Casas noted

that the records showed only minor infractions (including

smoking cigarettes and being out of bounds), and that none

involved violence against staff or other inmates. Casas did note

one incident in 1998 when defendant caused a large boulder to

fall down a hill, leading the rest of the crew to take cover to avoid

being hit. Casas acknowledged that defendant was belligerent

and disrespectful when counseled about the incident.

Finally, the defense presented four witnesses who

supervised defendant when he worked at the fire camp.

Corrections Lieutenant Gregory Sims described defendant as an

“average” inmate, noting that defendant had earned prestigious

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positions on the fire crew but was also counseled several times

for incidents including smoking and failing to show up for count.

Charles Lovers, the firefighter foreperson at the fire camp,

testified that defendant earned the position of first sawyer on

the fire crew. Although defendant was once relieved of his

duties for not following Lovers’ directions and creating an

unsafe environment during a fire, Lovers believed defendant

worked well and had a good attitude. Fire Captain John Bailey

supervised defendant during 24-hour shifts fighting a fire on

Catalina Island. Bailey remembered defendant as having done

an outstanding job and found that he demonstrated leadership

abilities. Firefighter Michael Bernal also supervised inmates at

the fire camp. He testified that defendant served as a tool man

responsible for sharpening the firefighting tools. Bernal

explained that the position was a coveted one at the fire camp

that required the approval of all eight of the camp’s supervisors.

3. Prosecution rebuttal evidence

The prosecution called several rebuttal witnesses to

challenge the defense case in mitigation. Former police officer

Donald MacNeil, a narcotics expert, disagreed with

Dr. Stalcup’s assertion that methamphetamine use renders a

person unable to exercise free will. In MacNeil’s opinion,

defendant’s ability to think through and execute actions to cover

up the rape and murder, such as dismantling the smoke

detectors, filling the bathtub with chemicals, and setting the bed

on fire to destroy possible genetic material showed a

“remarkable” presence of mind.

The prosecution also presented evidence to rebut

testimony regarding defendant’s prospects for a positive

adjustment to prison life. Dennis Fitzgerald, an investigator

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

with the Ventura County District Attorney’s Office, testified

that defendant got a “white pride” tattoo while in custody

sometime after his 1996 arrest. Fitzgerald also told the jury

that while awaiting trial in the present case defendant

corresponded with Justin Merriman, once a leader of the

Ventura-based Skinhead Dogs white supremacist gang. One

letter showed that defendant referred to Merriman as “homey,”

ended his correspondence with the phrase “Long respects,” and

asked Merriman to keep in touch. Letters from Merriman to

defendant showed that Merriman referred to defendant as

“homey,” “Big Mike,” and “brother.” Merriman ended his letters

with the phrase, “With respect.”

C. The Parties’ Theories of the Case

The prosecution argued during both the guilt and penalty

phases that defendant had intentionally targeted Burger’s

home, knowing that she was “an attractive woman who lived

alone.”

Defense counsel conceded during the guilt and penalty

phase that defendant had raped and killed Burger. Counsel

argued, however, that defendant did not target Burger

specifically, but entered her home looking for items to steal

when he saw her garage door open. Defense counsel asserted

that defendant was under the influence of methamphetamine at

the time of the crime and characterized the crime as “a random

act committed by a man high on methamphetamine.” The

prosecution contested that defendant was under the influence

when the crime occurred, calling the killing “well planned,

deliberate, [and] organized.”

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

II. JURY SELECTION ISSUES

Excusal of Two Prospective Jurors for Cause

Defendant asserts that the trial court excused two

prospective jurors for cause in violation of the constitutional

standards set forth in Witherspoon v. Illinois (1968) 391 U.S. 510

(Witherspoon) and Wainwright v. Witt (1985) 469 U.S. 412

(Witt). We find substantial evidence supporting the excusals

and uphold the trial court’s rulings.

1. Governing principles

Under state and federal constitutional principles, a

criminal defendant has the right to be tried by an impartial jury.

(Cal. Const., art. I, § 16; U.S. Const., 6th & 14th Amends.) With

regard to jury selection in a capital case, decisions by this court

and the United States Supreme Court have made clear that

prospective jurors’ personal opposition to the death penalty is

not a sufficient basis on which to remove them from jury service

in a capital case, “ ‘so long as they clearly state that they are

willing to temporarily set aside their own beliefs in deference to

the rule of law.’ ” (People v. Stewart (2004) 33 Cal.4th 425, 446,

quoting Lockhart v. McCree (1986) 476 U.S. 162, 176; accord,

People v. Covarrubias (2016) 1 Cal.5th 838, 863.) Excusal for

cause is permissible, however, when the prospective juror’s

beliefs regarding the death penalty “would ‘prevent or

substantially impair the performance of his [or her] duties as a

juror in accordance with [the court’s] instructions and [the

juror’s] oath.’ ” (Witt, supra, 469 U.S. at p. 424, quoting Adams

v. Texas (1980) 448 U.S. 38, 45 (Adams); see also People v. Ghent

(1987) 43 Cal.3d 739, 767 [adopting the Witt standard].)

We review a trial court’s excusal of a prospective juror for

cause to determine “ ‘if it is fairly supported by the record.’ ”

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(People v. Thomas (2011) 51 Cal.4th 449, 462, quoting People v.

Mayfield (1997) 14 Cal.4th 668, 727.) “ ‘In many cases, a

prospective juror’s responses to questions on voir dire will be

halting, equivocal, or even conflicting.’ ” (Ibid., quoting People

v. Fudge (1994) 7 Cal.4th 1075, 1094.) In such cases, “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, citing

People v. Wilson (2008) 44 Cal.4th 758, 779; see also Utrecht v.

Brown (2007) 551 U.S. 1, 9 [deference to the trial court’s ruling

on a challenge for cause is appropriate because that ruling is

based in part on the court’s ability to assess the prospective

juror’s demeanor].)

2. Jury selection process

The trial court began the jury selection process by

providing several groups of prospective jurors a brief

introduction to the case, including the nature of the charges, the

structure of a capital trial, and general principles of law. After

the court excused some of the prospective jurors for hardship, it

directed those who remained to complete a 93-item

questionnaire. About one week later, after the court and the

parties had reviewed the questionnaires, approximately

70 prospective jurors assembled in the courtroom. After the

first 12 prospective jurors were seated in the jury box, the court

described for the entire courtroom a juror’s duty in a capital

case. For example, the court explained that a juror “must accept

and follow the law as I state it to you regardless of whether you

agree with the law.”

The court began voir dire questioning by asking each of

the 12 individuals seated in the jury box whether he or she had

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any reason to believe he or she could not be fair and impartial

to both sides in the case. After excusing some of the 12

prospective jurors for cause on its own motion and replacing

them, the court permitted counsel for both sides to question the

prospective jurors about their questionnaire responses. Neither

party challenged any of the first group of prospective jurors for

cause. The parties were then given the opportunity to exercise

peremptory challenges. The prosecutor exercised one

peremptory challenge, and another prospective juror was called

to the jury box. The court asked the newly seated prospective

juror the same question it had asked the first group — whether

she could think of any reason why she could not be a fair and

impartial juror — and then permitted the parties to question the

prospective juror, to challenge for cause, and to exercise

peremptory challenges.

Jury selection proceeded in this manner for three days

until 12 jurors and two alternates were accepted by the parties

and empaneled. During this process, Prospective Juror A.A.

was excused for cause at the prosecutor’s request, and

Prospective Juror M.M. was excused for cause on the court’s own

motion.

3. Discussion

a. Prospective Juror A.A.

Prospective Juror A.A.’s questionnaire answers indicated

that his opinion regarding the death penalty vacillated between

strong and mild opposition. For example, A.A. stated that his

views on the death penalty were influenced by his Catholicism,

and he characterized the death penalty as “unbiblical.” When

asked to choose where he stood on a numerical scale of one to

10, with 10 being strongly in favor of having a death penalty and

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one being strongly opposed, A.A. circled the number three and

commented that he was “kind of against but [not] sure what

[I’m] gonna do.” But he also answered “Yes” to the question

whether he had strong feelings on the use of capital punishment,

and included a comment that he was “against [the] death

penalty.” When asked what purpose, if any, he believed was

served by the death penalty, he answered, “None.”

A.A.’s questionnaire answers also provided conflicting

responses to questions regarding his ability to serve as a juror.

When asked whether his religious or moral views would make it

difficult for him to be a fair juror in a death penalty case, he

checked “Yes.” He also checked “Yes” when asked whether his

feelings against the death penalty were so strong that he would

always vote against it. At the same time, however, A.A. marked

“Yes” when asked whether he believed he could be open minded

about the penalty and whether he was willing to weigh and

consider all of the aggravating and mitigating evidence before

deciding the appropriate punishment.

When A.A. was called to sit in the jury box, the court asked

him, “Do you believe you can be a fair and impartial juror to both

sides in the case?” A.A. responded that he was “pretty sure” he

“could be fair in the first phase. But the second phase — you

know, I kind of don’t believe in the death penalty.” During

questioning by the prosecutor, A.A. elaborated on some of his

questionnaire answers. He explained, for example, that he was

against the death penalty but that “inside this court, you know,

I will follow the instruction, you know,” and, “I think I can follow

it, yeah.” When asked about his comment that he would always

vote against the death penalty, he stated, “I think I could — you

know, I could — as I said, I could follow the instruction, you

know. I would — I will try, you know, to be fair, you know, and

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follow the judge[’s] instructions. That’s all I can do, you know.”

And when asked if he could actually sign a verdict form stating

defendant should be put to death, A.A. responded that after

considering other jurors’ views, “probably I could — I could do

that, yes” and, “Yes, I could sign.” The prosecutor ended his

questioning by asking A.A., “If you have a choice between life in

prison and the death penalty as the two punishments, would you

always pick life in prison?” A.A. replied, “Well, if I have a choice,

you know, I would always pick life in prison.”

The prosecutor challenged A.A. for cause, and the trial

court granted the challenge. Defense counsel objected, arguing

that A.A. stated repeatedly that he could consider death as well

as life without the possibility of parole. The court explained that

A.A. indicated on his questionnaire and during questioning that,

if given the choice, he would always choose life without the

possibility of parole over the death penalty. In the court’s view,

that answer, in combination with A.A.’s equivocal responses to

the prosecutor’s questions and his deeply held religious

convictions, rendered A.A. unable to consider imposition of the

death penalty “as any possibility.” Defense counsel offered a

different interpretation of A.A.’s statement, understanding A.A.

to have meant that he would choose life without the possibility

of parole if he had a choice, but that A.A. recognized that “he

didn’t have a choice. He had to follow [the court’s] instructions.”

The court rejected that interpretation of A.A.’s response,

observing that the jurors would, in fact, have a choice: “The

Court is not going to instruct the [jurors] they must vote for

death or must vote for life without the possibility of parole.”

While a prospective juror may not be excused for cause

based on “general objections” or “conscientious or religious

scruples” against the death penalty (Witherspoon, supra,

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391 U.S. at p. 522), excusal is proper when a prospective juror

cannot “consider and decide the facts impartially and

conscientiously apply the law as charged by the court” (Adams,

supra, 448 U.S. at p. 45). When a prospective juror’s views

“prevent or substantially impair the performance of his duties

as a juror in accordance with his instructions and his oath” the

juror may be excused for cause. (Ibid.)

The record supports the trial court’s determination that

A.A.’s responses reflected a substantial impairment in his

ability to perform his duties as a juror. His juror questionnaire

responses revealed conflicting views on his ability to impose the

death penalty. Although he stated that he was willing to

consider all aggravating and mitigating evidence before

deciding the appropriate punishment, he also stated that his

feelings against the death penalty were so strong that he would

always vote against it. During questioning by the court, A.A.

stated he was “pretty sure” he could be “fair” during the guilt

phase, “[b]ut the second phase — you know, I kind of don’t

believe in the death penalty.” This response suggests that A.A.

doubted his ability to be fair during the penalty phase; he felt he

could be fair during the guilt phase but during the penalty phase

his opposition to the death penalty could prevent him from being

fair. An inability to be “fair” during the penalty phase would

substantially impair the performance of A.A.’s duties as a juror.

(See Adams, supra, 448 U.S. at p. 45.) This conclusion is further

supported by A.A.’s cautious responses during additional

questioning: “I think I can follow [instructions],” “I think I could

[vote for the death penalty],” “I will try, you know, to be fair,”

“probably I could [sign a death penalty verdict form].”

Defendant acknowledges that deference to a trial court’s

determinations is owed when a prospective juror’s responses are

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conflicting or equivocal. He asserts, however, that deference is

not appropriate here because A.A. did not exhibit ambivalence

or confusion, but instead explicitly stated he would set aside his

personal beliefs and follow the court’s instructions. Defendant

further asserts that A.A.’s responses indicated he distinguished

between his personal views against the death penalty and his

willingness to follow the court’s instructions.

The record shows, however, that A.A.’s responses were

conflicting and equivocal. On the one hand, he stated that he

believed he could be open minded about the appropriate penalty,

that he would try to be fair and follow the judge’s instructions,

and that he was willing to consider all of the aggravating and

mitigating evidence. On the other hand, he stated that he

believed the death penalty was “unbiblical,” that it served no

purpose, and that his moral feelings against the death penalty

were so strong that he would always vote against it. Any

responses suggesting A.A. would follow the court’s instructions

notwithstanding his opposition to the death penalty were

contradicted when he indicated, several times, that he would

always choose life without parole over the death penalty when

given a choice between the two.

Given these conflicting statements, we defer to the trial

court’s determination regarding A.A.’s state of mind (see People

v. Duenas, supra, 55 Cal.4th at p. 10), and conclude the record

supports the trial court’s ruling. The trial court was able to hear

A.A.’s responses to the prosecutor’s questions and observe

firsthand his demeanor and tone. The trial court did not err in

concluding that A.A.’s assurances that he could follow the

court’s instructions notwithstanding his personal beliefs were

undermined by his conflicting responses, particularly his

statement that, if given a choice, he would always vote for life

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without the possibility of parole. Although defense counsel

understood A.A. to have been speaking abstractly, the court was

entitled to accept A.A.’s comment at face value particularly

given, as the trial court noted, that A.A. would have a choice

about whether to impose the death penalty or life without the

possibility of parole. The court’s assessment of A.A.’s conflicting

responses and its observation of A.A.’s demeanor and tone “could

give rise to a definite impression that [A.A.’s] views on the death

penalty would substantially impair the performance of his

duties.” (See People v. Lewis and Oliver (2006) 39 Cal.4th 970,

1007.) We therefore conclude the trial court did not err in

excusing A.A. for cause.

b. Prospective Juror M.M.

Prospective Juror M.M. indicated in her questionnaire

that she previously was opposed to capital punishment but that

when she completed her questionnaire she believed that life in

prison might be worse than death. When asked to pick a

number from one to 10, with the number 10 being strongly in

favor of having a death penalty and the number one being

strongly opposed, M.M. circled the number five, commenting

that the punishment “doesn’t really matter because, if convicted,

the defendant’s life is over anyway.” She checked “No” when

asked whether she had strong feelings on the subject of the use

of capital punishment. She checked “Yes” when asked whether

she believed she could be open minded about the penalty

decision and would consider all of the aggravating and

mitigating evidence before making that decision.

M.M.’s questionnaire responses suggested some confusion

regarding the meaning of special circumstance murder.

Specifically, when asked how she felt regarding the death

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penalty as punishment for a murder with a special

circumstance, M.M. wrote that it “depend[ed] on the special

circumstance, if someone can be treated or helped with their

‘special circumstance’ then I would not vote for the death

penalty.”

During voir dire, the court asked M.M. whether she could

think of any reason why she could not be a fair and impartial

juror in the case. M.M. responded that she believed she could

be fair during the guilt phase, “but when it came to penalty, I’ve

been thinking about it for the last week and I know that I can’t

put someone to death.” The court probed further, asking, “So

you’re saying that regardless of the evidence and regardless of

the weighing in aggravation and mitigation in the penalty

phase, because of certain principles you hold, you could never

impose the death penalty. Is that what you’re saying?” M.M.

replied, “That’s what I’m saying, yes.” The court then excused

M.M. for cause on its own motion, finding that she could not be

a fair and impartial juror to both sides in the penalty phase of

trial.6

The record fairly supports the court’s finding that M.M.’s

views on the death penalty would impair the performance of her

duties as a juror. M.M. indicated in her questionnaire that she

was neutral on the subject of capital punishment. During voir

dire questioning, however, she stated that her views had

6

Defense counsel did not object to M.M.’s excusal.

Defendant’s claim is not forfeited, however, because the trial

occurred before our decision in People v. McKinnon (2011)

52 Cal.4th 610 at page 636, holding that counsel would

prospectively be required to make a timely objection to preserve

a Witt issue for appeal. (See also People v. Buenrostro (2018)

6 Cal.5th 367, 413.)

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changed and that she knew she could not vote for death. In

response to the court’s subsequent question, she confirmed that

she could never vote for death, regardless of the evidence and

the aggravating and mitigating factors. M.M.’s responses

indicating she would be unable to impose death even in an

appropriate case, when coupled with the court’s firsthand

observations of M.M.’s demeanor and tone, “could give rise to a

definite impression that [M.M.’s] views on the death penalty

would substantially impair the performance of [her] duties.”

(People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1007.)

Defendant asserts the court’s questions to M.M. did not

amount to an adequate and effective inquiry. He emphasizes

that the court never asked M.M. directly whether her opposition

to the death penalty meant she was not willing or able to set

aside her views and to follow the court’s instructions to

determine the appropriate punishment. And he asserts that

additional questioning was especially important because it was

apparent from M.M.’s responses to the juror questionnaire that

she did not understand the meaning of aggravating and

mitigating factors.

Before excusing a juror for cause, “ ‘the court must have

sufficient information regarding the prospective juror’s state of

mind to permit a reliable determination’ ” concerning whether

the juror’s views on capital punishment would impair his or her

performance as a juror in a capital case. (People v. Leon (2015)

61 Cal.4th 569, 592, italics omitted (Leon), quoting People v.

Stewart, supra, 33 Cal.4th at p. 445.) To ensure that its ruling

excusing a prospective juror for cause is consistent with the

constitutional standard, the court must make “ ‘a conscientious

attempt to determine a prospective juror’s views . . . .’ ” (Leon,

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supra, 61 Cal.4th at p. 592, quoting People v. Wilson, supra,

44 Cal.4th at p. 779.)

In Leon, three prospective jurors stated in their juror

questionnaires that they were opposed to the death penalty but

could nonetheless set aside their personal feelings and follow the

law. (Leon, supra, 61 Cal.4th at pp. 590–591.) During voir dire,

the trial court asked those jurors questions related only to

whether they were so opposed to the death penalty that they

would automatically vote for life without the possibility of

parole, but not whether they could set aside their personal

feelings. (Id. at p. 591.) The court then excused those jurors for

cause. (Ibid.) We held the court’s approach was problematic

because when confronted with the jurors’ conflicting statements,

“the court did not inquire about the jurors’ willingness to set

aside their views and follow the law . . . .” (Id. at p. 593.)

The present case is distinguishable from Leon given

M.M.’s clear and unambiguous statements during voir dire

regarding her inability to impose the death penalty. Unlike the

prospective jurors in Leon, who stated affirmatively that they

could set aside their personal views, M.M. firmly and directly

stated that her views on the death penalty had changed between

when she completed the juror questionnaire (when she stated

she was neutral on the subject of capital punishment) and when

she was questioned on voir dire (when she stated that she could

never put someone to death). The court presumably assessed

those answers in light of M.M.’s tone and demeanor. Although

M.M. indicated on her questionnaire that she did not have

strong views regarding the death penalty and that she could

follow the court’s instructions, her statements during voir dire

effectively repudiated her questionnaire responses. And her

statements during voir dire were unequivocal and

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unambiguous. She stated, “I know that I can’t put someone to

death.” The court immediately summarized and clarified her

beliefs: “So you’re saying that regardless of the evidence and

regardless of the weighing in aggravation and mitigation in the

penalty phase, because of certain principles you hold, you could

never impose the death penalty. Is that what you’re saying?”

And M.M. replied, “That’s what I’m saying, yes.”

These responses were clear and unambiguous statements

from which the trial court could properly conclude that M.M.

would not be able to set aside her beliefs and follow the court’s

instructions. (See People v. Perez (2018) 4 Cal.5th 421, 446

[upholding removal of juror during trial, finding juror’s

statement that, upon reflection, he “ ‘could not ever’ ” impose

death penalty “ ‘no matter what the aggravating circumstance

is and no matter what the mitigating circumstance evidence

is,’ ” was a “clear indication that he would not be able to perform

his duty of choosing whether a death sentence was

appropriate”]; People v. Winbush (2017) 2 Cal.5th 402, 429–430

[upholding removal of prospective juror when oral questioning

revealed the prospective juror’s views would substantially

impair her ability to return a death sentence, despite juror’s

questionnaire responses expressing a willingness to consider the

death penalty].) Defense counsel’s failure to object to M.M.’s

removal did not forfeit the claim on appeal, as we have noted,

but it does suggest that counsel “ ‘concurred in the assessment

that the juror was excusable.’ ” (People v. Souza (2012)

54 Cal.4th 90, 127, quoting People v. Cleveland (2004) 32 Cal.4th

704, 735.)

Defendant further asserts that additional inquiry was

required by the trial court because it was apparent from M.M.’s

responses to the juror questionnaire that she did not understand

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the meaning of aggravating and mitigating factors. We

disagree. Although M.M.’s questionnaire response suggested

she did not understand what was meant by a murder “with a

special circumstance” when she completed the questionnaire, it

does not shed light on her understanding of aggravating and

mitigating factors at the time she told the court that regardless

of such factors she could never impose the death penalty. As

this court has observed, “When first called to the capital venire,

prospective jurors frequently know little about death penalty

law and procedure and have reflected little on their own

attitudes.” (People v. Brasure (2008) 42 Cal.4th 1037, 1053.) We

have also recognized, however, that the voir dire process, when

conducted in the presence of the entire venire, can serve to

educate a prospective juror and help clear up

misunderstandings regarding his or her duty as a juror in a

death penalty case. (Ibid.)

Contrary to defendant’s assertion, nothing in the record

suggests that M.M., after having listened to the voir dire

questioning of the other prospective jurors, would have

misunderstood the meaning of aggravating and mitigating

factors. When examining prospective jurors before M.M. was

called into the jury box on the second full day of jury selection,

the prosecutor and defense counsel repeatedly explained what

was meant by aggravating and mitigating factors and the

process by which those factors were weighed during the penalty

determination. There is no indication, then, that M.M.’s clear

statement that she could not impose the death penalty was the

result of confusion or misunderstanding. To the contrary, the

record supports the trial court’s determination that M.M.’s

views regarding the death penalty would impair her ability to

perform her duty as a juror in the case.

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III. GUILT PHASE ISSUES

A. Admission of Recording of Answering Machine

Message from Burger

Defendant argues that the trial court erred prejudicially

when it admitted the recording of a message that Burger left on

the telephone answering machine of her dance class partner on

the evening before Burger’s death. Although the relevance of

the message was not particularly strong and the evidence

arguably posed some risk of undue prejudice, any error in its

admission is harmless in light of the overwhelming evidence of

defendant’s guilt.

1. Background

In a trial brief submitted prior to jury selection, the

prosecution asked the court to permit admission of a recording

of a message that Burger had left for her dance class partner,

Larry Rodriguez. In the message, left the evening before her

death, Burger discussed plans for attending dance class the next

day. The message, which is less than 30 seconds long, was as

follows: “Hi Larry. This is Cindy. And it’s about 9:15 on

Wednesday night. Give me a call back if you can, uh, or at work

tomorrow. I’d like to meet a little early before class and go over

the step from last week. Um, I just hope I don’t get too lost

tomorrow. But anyway, I had a real good, uh, trip. Look forward

to seein’ ya, and give me a call when you get a chance. Bye-bye.”

The prosecutor argued that Burger’s message was

admissible for the nonhearsay purpose of showing that she

planned to stay at home that night rather than to go out. Such

evidence, he argued, precluded any inference that Burger met

defendant while she was out and invited him back to her home.

The prosecutor also argued that the message would corroborate

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Mooney’s anticipated testimony that defendant told her he

entered Burger’s open garage intending to steal something.

In a written response to the prosecutor’s trial brief, the

defense opposed admission of the recording on the grounds that

it was not relevant to any disputed issue, that the evidence did

not satisfy the “state of mind” exception to the hearsay rule and

was therefore inadmissible hearsay, and that the “voice from the

grave” evidence was more prejudicial than probative. Counsel

also argued that the recording amounted to improper victim

impact evidence because there was little doubt that Rodriguez

would become emotional while testifying regarding the tape’s

authenticity.

At a hearing on the in limine motion, defense counsel

again asserted the message was not relevant because whether

Burger had stayed home was not an issue in dispute. The

prosecutor asserted that the prosecution had the burden of

proving defendant’s intent on entering the house, no matter

what the defense intended to dispute. According to the

prosecutor, the prosecution had “to show that this isn’t some

pickup or date that went awry” and was therefore entitled to

show Burger was planning to be home the evening she was

killed. The trial court agreed with the prosecutor that the

message was admissible for both a hearsay and a nonhearsay

purpose, and found that the probative value of the evidence

outweighed its prejudicial impact.

The message was played for the jury three times. First,

during the prosecution’s opening statement at the guilt phase.

Second, during the testimony of Rodriguez (the prosecution’s

first witness in the guilt phase). And, finally, during the

prosecution’s closing at the penalty phase. Defendant now

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asserts the admission of the message during the guilt phase (but

not during the penalty phase) was prejudicial error.

2. Discussion

Defendant argues that the answering machine message

was not relevant, constituted inadmissible hearsay, created an

“aura of sympathy and pathos” that harmed defendant’s case,

and should have been excluded as unduly prejudicial. We

conclude that, even assuming the trial court erred by refusing

to exclude or limit the recording, any error was undoubtedly

harmless under the standard articulated in either Chapman v.

California (1967) 386 U.S. 18, 36 (Chapman) (error is prejudicial

unless it appears beyond a reasonable doubt that the error did

not contribute to the verdict) or People v. Watson (1956) 46

Cal.2d 818, 836 (Watson) (error is prejudicial if it is reasonably

probable the defendant would have obtained a more favorable

result absent the error).

There was overwhelming evidence of defendant’s guilt.

Defendant admitted to Mooney that he raped and killed Burger,

and he asked for Mooney’s help escaping from custody to avoid

detection. Mooney provided compelling testimony describing

defendant’s detailed account of the crime. She described

defendant’s statements about gaining entry into Burger’s home

through an open garage, raping Burger in her bed, strangling

her to death, placing her body in a bathtub, pouring bleach into

the bathtub, and starting a fire in her bedroom. These are

details Mooney could not have known about the crime absent

defendant’s statements to her. He gave Mooney Burger’s name

and directed her to a newspaper article by providing the date of

the incident. This testimony was consistent with the crime

scene and the assault on Burger.

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Loprieato, defendant’s mother, confirmed that Mooney

had told her about the confession and said she had no reason to

doubt what Mooney had related to her. Although Loprieato

maintained that defendant never confessed to her personally,

her surreptitiously recorded statements to Mooney stating she

would lie to law enforcement about her knowledge would have

drawn her credibility on that point into doubt. And Loprieato’s

testimony on that point was further undermined by Bice, who

told the jury that Loprieato spoke with him about whether to be

candid with law enforcement. According to Bice, Loprieato

admitted that defendant told Loprieato directly that he had

killed a woman.

Finally, DNA from sperm collected during Burger’s

autopsy matched a DNA profile developed from defendant’s

blood.7 The DNA evidence directly linked defendant to Burger’s

death. All of this evidence taken together establishes beyond a

reasonable doubt that the jury would have reached the same

verdict absent any error regarding Burger’s message to

Rodriguez.

Defendant’s main assertion regarding prejudice is that the

message tainted the jury’s determination regarding

premeditation. He contends the message “led the [jurors] to feel

that they knew Burger” and “made it difficult for them to focus

dispassionately on the elements of murder and accept the

defense that Schultz’s perceptions were so altered by

7

As discussed below, although certain testimony regarding

the DNA evidence may have been improperly admitted, the

ultimate determination that the DNA profile developed from

defendant’s blood matched the DNA from sperm found during

Burger’s autopsy was properly admitted.

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methamphetamine that it was impossible for him to

premeditate this crime or that the crime was not premeditated

but simply a random, albeit terrible, act.” There is no support

for defendant’s position. Defendant’s statements to Mooney —

that he killed Burger because he was afraid she would be able

to identify him and that he attempted to destroy any DNA

evidence by lighting a fire on her bed and placing Burger’s body

in a bathtub with bleach — amply support a finding of

premeditation. Further, the jury found true the felony-murder

special-circumstance allegations that defendant murdered

Burger during the commission of a rape and burglary.

Defendant could be convicted of first degree murder regardless

of the jury’s determination regarding premeditation. (See

People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 848.) As

defense counsel put it during closing argument, “in a lot of ways

[premeditation] doesn’t really matter because what happened is

a felony murder any way you slice it.” Although the jury was

exposed to a “voice from the grave,” any error in the court’s

admission of the message did not prejudice defendant.

B. Admission of the Results of DNA Testing

Defendant challenges the admission of expert testimony

establishing that defendant’s DNA profile matched the DNA

profile obtained from sperm recovered during Burger’s autopsy.

He puts forward three reasons the testimony should have been

excluded: first, that Magee related testimonial hearsay in

violation of defendant’s Sixth Amendment rights because Yates

did not testify; second, that it was not admissible as a business

record under Evidence Code section 1271; and third, that the

trial court erred by failing to adequately evaluate the proposed

testimony under People v. Kelly (1976) 17 Cal.3d 24 (Kelly). We

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conclude that any error in admitting this testimony was

harmless beyond a reasonable doubt.

1. Background

Prior to trial, the prosecution sought a ruling allowing a

supervisor at Cellmark to testify regarding the procedures,

results, and maintenance of the DNA testing records relevant to

the case. At a hearing, the court initially denied the motion,

agreeing with defense counsel that to properly present the DNA

evidence the prosecution was required to call the technicians

who performed the DNA testing to testify regarding the actual

procedures they employed. On the prosecution’s motion for

reconsideration, however, the court reversed its previous ruling

and, over defense counsel’s objection, permitted the prosecution

to call Wendy Magee, the Cellmark analyst who performed a

DNA comparison in 2000 (comparing DNA profiles she created

based on samples from defendant’s blood and from sperm found

in Burger’s vagina) but who did not perform the DNA extraction

in 1996 (extracting DNA from sperm found in Burger’s vagina).

At trial, the jury heard the following testimony. Dr.

O’Halloran conducted Burger’s autopsy, discovered trauma to

her genital area, swabbed and aspirated her vaginal canal, and

observed sperm cells during a microscopic examination from one

of the swabs. Ventura County Sheriff’s Department crime lab

assistant laboratory manager Michael Parigian testified that

the lab received the vaginal swabs and vaginal aspirant (which

he referred to as a “vaginal wash”). Several years later, in

March 1996, Parigian placed some of the vaginal wash into a

microcentrifugued tube and sent it to Cellmark for the purpose

of extracting DNA. Parigian also testified that Cellmark

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returned the vaginal wash to the crime lab with a report

indicating that DNA had been extracted.

Over a continuing defense objection, the prosecution called

Magee to testify. Magee testified that in 1996 Cellmark

employee Paula Yates performed a differential extraction to

isolate DNA from the sperm and nonsperm portions of the

vaginal wash. That procedure involved separating the

nonsperm cells from the sperm cells and extracting DNA from

both to be used for future testing. According to Magee, Yates

was trained and qualified to carry out a DNA extraction and the

methods she used were accepted within the scientific

community at the time of testing and at the time of trial.

Magee further explained that Yates recorded her lab notes

regarding the extraction procedure, and that any later evidence

could be compared with the DNA obtained during the extraction

that Yates had performed. Magee confirmed that at the time of

the DNA extraction in 1996 Cellmark had no blood or tissue

sample from defendant with which to conduct a DNA

comparison.

In November 2000, a blood sample was obtained from

defendant and sent to Cellmark. Magee explained to the jury

that she performed a DNA analysis of the blood sample. She

compared that analysis to the DNA profiles she obtained from

testing the sperm and nonsperm portions of the vaginal wash.

Her testing, using short tandem repeat (STR) amplification kits,

showed that the DNA profile she obtained from the nonsperm

cells did not match the DNA profile obtained from defendant’s

blood sample. The DNA profile she obtained from the sperm

cells, however, did match the DNA profile obtained from

defendant’s blood sample.

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2. Discussion

Defendant asserts multiple errors occurred based on

Magee’s purported testimony that she compared the DNA

profile she created from defendant’s blood sample with a DNA

profile Yates created from sperm cells recovered during Burger’s

autopsy in 1996. The factual premise of these claims is that

Magee’s conclusions relied on a DNA profile that Yates had

created, and thus necessarily communicated Yates’s findings to

the jury. Specifically, defendant asserts that Magee’s testimony

regarding the DNA profile Yates created and the “process

involved to secure” that DNA profile constituted testimonial

hearsay admitted in violation of defendant’s confrontation

clause rights under Williams v. Illinois (2012) 567 U.S. 50.

Defendant further asserts the trial court abused its discretion

in allowing Magee’s testimony under the business records

exception to the Evidence Code because Yates used her personal

conclusions to develop the DNA profile and because Yates’s

records were created for use as evidence in a criminal trial.

Finally, defendant asserts the trial court was required to

conduct a Kelly hearing to test the reliability of the DNA profile

Yates created and the methods Yates used to develop that

profile.

The record belies the factual basis for defendant’s claims.

It is apparent from the record that Magee did not rely on any

DNA profile created by Yates. Rather, Magee’s testimony

indicates that Magee herself created a DNA profile using DNA

extracted from sperm cells, that Magee herself created a DNA

profile based on defendant’s blood sample, and that Magee

herself compared the two DNA profiles. Thus, to the extent

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defendant’s claims hinge on the premise that Magee relied on a

DNA profile that Yates created, they necessarily fail.8

To be sure, some portions of the record suggest that Yates

may have created a DNA profile in 1996. At one point during

her testimony, Magee agreed with the prosecution’s

characterization that Yates both performed a DNA extraction

and created a DNA profile from the extracted DNA.9 And in

describing the proffered testimony before trial, the prosecution

stated that Cellmark had produced a DNA profile in 1996 based

on the vaginal wash. But other portions of the record make clear

that, even assuming Yates created a DNA profile, Magee relied

on — and confined her testimony to — DNA profiles that she

created herself. Magee’s testimony describing Yates’s actions

8

For this reason, the facts here are readily distinguishable

from Williams. There, a nontestifying expert created a DNA

profile based on semen found on vaginal swabs, and a testifying

expert relied on this DNA profile to conclude that it matched the

defendant’s DNA profile. (Williams, supra, 567 U.S. at p. 60

(plur. opn.).) In this case, as we have observed, Magee created

both the DNA profile from the sperm and the DNA profile from

defendant’s blood, she compared the two profiles herself, and

she testified at trial regarding her actions and her conclusion

that the DNA profiles matched. Magee did not rely on any DNA

profile created by a nontestifying expert. We therefore need not

delve further into the fractured opinion in Williams or the

“considerable flux” surrounding the high court’s Sixth

Amendment jurisprudence in this area. (People v. Bryant,

Smith, and Wheeler (2014) 60 Cal.4th 335, 395 (Bryant); see also

People v. Dungo (2012) 55 Cal.4th 608, 628 (conc. opn. of Chin,

J.).)

9

That testimony was as follows: “[The People]: And do your

records show that the vaginal wash pellet was separated into a

sperm and nonsperm fraction or portion and DNA was extracted

from each and a DNA profile was obtained for each? [¶]

[Magee]: Yes.”

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related only to DNA extraction, not to profile creation. And

Magee testified that she “tested the extracts from 1996” to

compare with the DNA profile from defendant’s blood sample.

There is no indication, then, that Magee compared a DNA profile

she created with a DNA profile Yates created.

Defendant also broadly asserts that evidence of the DNA

extraction Yates conducted could be admitted only through

testimony from Yates herself, rather than through testimony

from Magee. At oral argument before this court, counsel further

asserted that Magee was not qualified to testify regarding the

DNA extraction carried out by Yates because there was no

ability for defendant to cross-examine Magee regarding the

DNA extraction in any meaningful way. And without Yates’s

DNA extraction, defendant asserts, Magee’s testimony

regarding her creation and comparison of the DNA profiles could

not be admitted.

Even assuming the trial court erred under the Sixth

Amendment, Evidence Code section 1271, or Kelly by admitting

Magee’s testimony describing the DNA extraction performed by

Yates any error was harmless beyond a reasonable doubt. (See

Bryant, supra, 60 Cal.4th at p. 395 [confrontation clause

violations are subject to federal harmless error analysis under

Chapman]; People v. Ayers (2005) 125 Cal.App.4th 988, 996

[applying Watson standard to evaluate prejudice when evidence

is improperly admitted as a business record under Evid. Code,

§ 1271]; People v. Venegas (1998) 18 Cal.4th 47, 93 [applying the

Watson standard for evaluating prejudice when evidence is

improperly admitted under Kelly].)

To determine prejudice, we examine the record as though

Magee’s testimony regarding the actions carried out by Yates

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had not been admitted. But this analysis does not require us to

set aside Magee’s testimony in its entirety. As counsel

acknowledged at oral argument, Magee was qualified to testify

about the procedures she conducted herself, including the

creation of the DNA profiles. (See People v. Capistrano (2014)

59 Cal.4th 830, 872 [holding any error in allowing a testifying

analyst to describe results obtained by a nontestifying analyst

was harmless beyond a reasonable doubt in part because the

testifying analyst “personally” performed the STR test

implicating the defendant].)

Nor does setting aside the portion of Magee’s testimony

related to the DNA extraction fatally undermine the chain of

custody or foundation supporting Magee’s testimony regarding

the DNA profiles. The jury heard testimony from

Dr. O’Halloran that he recovered sperm cells after swabbing and

aspirating Burger’s vaginal canal. The swabs and aspirant were

sent to the county crime lab, and Parigian then sent the vaginal

wash sample to Cellmark. Parigian also testified that he

received the evidence back from Cellmark with a report

indicating that DNA had been extracted from the sample.10

Parigian further testified that in 2000 he again sent Cellmark

the vaginal wash sample along with a blood sample collected

from defendant. Magee related to the jury that she created a

DNA profile from defendant’s blood sample, that she “tested the

extracts from 1996,” and compared the resulting profiles herself.

This narrative sufficiently established that Magee created a

DNA profile based on sperm recovered from Burger’s autopsy,

and supported Magee’s ultimate conclusion that the DNA profile

10

Defendant does not challenge the admission of Parigian’s

testimony describing the Cellmark report.

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from defendant’s blood sample matched the DNA profile from

that sperm.

There is no indication that the chain of custody here was

compromised. The trial court stated it was “not particularly

worried about” any chain of custody related to the DNA

evidence, and defendant does not raise any claim of a chain of

custody error. The evidence connecting the DNA evidence

recovered from Burger’s autopsy to the DNA profile Magee

created “raise[s] no serious questions of tampering.” (See People

v. Caitlin (2001) 26 Cal.4th 81, 134.) In any event, any

presumed defect in the chain of custody would not have rendered

Magee’s testimony entirely inadmissible but would have gone to

the weight of her testimony. (See People v. Lucas (2014)

60 Cal.4th 153, 285 [“the trial court decides the admissibility of

physical evidence based on challenges to the chain of custody,

and, once admitted, any minor defects in the chain of custody go

to its weight”].)

We find that any error in admitting Magee’s testimony

regarding the actions Yates took is harmless beyond a

reasonable doubt. As we discussed above, there was

overwhelming evidence of defendant’s guilt presented during

trial. Magee’s conclusion that defendant’s DNA matched the

DNA from sperm found during Burger’s autopsy provided strong

support for the prosecution’s case. The presence of defendant’s

sperm also corroborated defendant’s asserted motive for killing

Burger (to prevent her from identifying him as her rapist). Even

without being able to point to the DNA extraction process,

Magee’s testimony established for the jury that DNA recovered

from sperm found in Burger’s body matched defendant’s DNA

profile.

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The DNA evidence was buttressed, too, by testimony from

Mooney, Loprieato, and Bice. Mooney provided compelling

testimony describing defendant’s detailed confession, and her

testimony was consistent with the crime scene and the assault

on Burger. Mooney’s testimony was corroborated by Loprieato,

and further supported by testimony from Bice. All of this

evidence taken together establishes beyond a reasonable doubt

that the jury would have reached the same verdict absent

Magee’s testimony describing the DNA extraction process

conducted by Yates.

Defendant maintains that the trial court’s decision to

allow Magee to testify as she did “forced defense counsel to

abandon an entire line of defense and to make concessions

during the guilt phase that would not have been made had he

had the opportunity to attack Yates’s DNA profile.” He asserts

that counsel would not have conceded defendant’s guilt and

would have attacked Mooney’s credibility regarding defendant’s

alleged confession because it was “easily impeached.” He alleges

that Mooney had previously and unsuccessfully tried to

implicate defendant in the death of a different woman, Jennifer

Vernals, and that Mooney’s credibility would have been

seriously undermined had the jury known she made more than

one accusation that defendant had killed a woman. He also

attacks Mooney’s account of defendant’s confession as being

based on her “weird feelings,” and he asserts that the details of

the crime came from the newspaper article Mooney read and not

from any confession from defendant.

We are not persuaded. To the extent that defendant’s

prejudice arguments are premised on the notion that Magee

relied on a DNA profile Yates created, we have already rejected

them. To the extent defendant’s assertions are based on

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prejudice stemming from the introduction of Yates’s actions by

way of Magee’s testimony, they likewise fail.

Defendant focuses in part on how counsel allegedly would

have revealed serious flaws in Yates’s report if she had testified.

But he provides no support for this assertion and we have found

none in the record. Defendant’s attacks on Mooney’s credibility

are also unpersuasive. Mooney’s suspicion that defendant was

involved in Vernals’s death was raised during the preliminary

hearing. Mooney testified at the preliminary hearing that when

she first told Loprieato about defendant’s plan to escape from

the fire camp because of his concerns about a DNA test,

Loprieato produced a clipping of a newspaper article discussing

Vernals’s death and said, “This is what I think he did.”

Although it’s not clear from the record what was in the

newspaper article, Mooney testified that she (Mooney) was

named in the article (although defendant was not) and that the

article, “kind of said that I might have [implicated defendant]

on that Jennifer Vernals case. And I think [Loprieato] was going

to confront me with him about that.”

Mooney also testified at the preliminary hearing that

during the visit when defendant asked her and Loprieato for

help escaping, she and Loprieato confronted defendant about his

story that he had participated in a burglary and was cut with a

knife. Neither believed the story because “we both thought that

he had committed the Jennifer Vernals murder.” Mooney stated

that during the same visit when Loprieato went to the bathroom

and left Mooney alone with defendant, Mooney asked defendant

whether he killed Vernals. He said he did not. Mooney then

asked defendant if he had killed someone, and he said yes and

went on to tell Mooney about assaulting and killing Burger.

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Bringing this issue to the attention of the jury would not

have undermined Mooney’s credibility, as defendant suggests.

On the contrary, it would likely have been highly prejudicial to

defendant for defense counsel to alert the jury that defendant’s

girlfriend (and perhaps also his mother) believed he had killed

another woman besides Burger. Indeed, defense counsel filed a

motion in limine to exclude any references to Vernals’s death at

trial. The prosecution did not object, and the court granted the

motion and directed the prosecution to instruct the witnesses

not to mention Vernals during trial.

Nor is there any indication in the record that the details

of the crime that Mooney claimed defendant had described came

from Mooney herself or the newspaper article describing

Burger’s death.11 Further, the testimony from Loprieato and

Bice supported Mooney’s credibility, and the jury was able to

make its own determination as to each witness’s credibility

based on his or her testimony and demeanor. In short, we

conclude that any error in the portion of Magee’s testimony

relating the DNA extraction process conducted by Yates was

harmless beyond a reasonable doubt.

IV. PENALTY PHASE ISSUES

A. Defendant’s Correspondence with a White

Supremacist Gang Leader

Defendant raises two related claims concerning penalty

phase rebuttal evidence informing the jury that while awaiting

trial in the present matter defendant exchanged letters with

Justin Merriman, a prison inmate who had once been the leader

11

The newspaper article is not in the record before us.

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of a white supremacist gang.12 First, he asserts that the

rebuttal evidence violated due process as evidence of “guilt by

association,” infringed his constitutional right to freedom of

association, was improper hearsay, and was irrelevant and

unduly prejudicial. Second, defendant argues that the trial

court erred by not granting a mistrial after, contrary to the

court’s earlier ruling limiting the scope of the testimony

regarding the letters, the prosecutor inquired into the contents

of one of the letters. As we explain below, neither claim requires

reversal of the death judgment.

1. Admission of evidence regarding the

correspondence

a. Background

i. Prosecution’s cross-examination of Casas

As part of its penalty phase case in mitigation, the defense

called penology expert Anthony Casas, who expressed the view

that defendant would conduct himself in an obedient and

cooperative manner if sentenced to life in prison without the

possibility of parole. (See ante, pt. I.B.2.iii.) On cross-

examination, the prosecutor elicited from Casas that Casas

would predict a negative adjustment to prison for someone who

had joined a prison gang such as a white supremacist gang.

Casas explained that such gangs are dangerous “because when

you have a situation like that, if the individual is a validated

member of one of those gangs and gets an order to do something,

like kill an officer or kill an inmate, and he doesn’t do it, then

he’s signed his own death warrant because the punishment for

12

We upheld Merriman’s first degree murder conviction on

direct appeal in 2014. (People v. Merriman (2014) 60 Cal.4th 1.)

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failing to carry out a contract with these organizations, the

organized prison gangs, is death usually.”

The prosecutor then showed Casas photographs of

defendant’s tattoos that said “white” and “pride,” and asked

whether this indicated that defendant might join a white

supremacist gang. Casas replied, “Not at all.” The prosecutor

asked whether Casas’s answer would change if he knew

defendant had been corresponding with a former leader of a

Ventura County-based white supremacist gang called the

Skinhead Dogs. Defense counsel promptly objected on the

ground of undue prejudice and lack of foundation, pointing out

at a sidebar conference that there was no evidence defendant

was in a gang. The court sustained the objection for lack of

foundation. But the court allowed the prosecutor to attempt to

lay a foundation by probing Casas’s experience regarding the

topic of prison gang membership.

When questioning resumed, the prosecutor elicited from

Casas that a person who holds white supremacist beliefs might

be likely to join a white supremacist gang. But Casas strongly

disagreed with the prosecutor’s suggestion that a person with

“white pride” tattoos would be more likely to join a white

supremacist gang than a person without such tattoos. Nor did

Casas believe that any correspondence between defendant and

a one-time gang leader in which defendant referred to the gang

leader as “homey” and signed his letter “with respect” meant

that defendant was more likely to join a gang than someone not

engaged in such correspondence. Casas reiterated that an

exchange of letters in which an individual referred to the

recipient white supremacist gang member as “homey” or

“brother” would not be enough to conclude that the letter writer

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was more likely to join a gang. As Casas phrased it, “it could or

it couldn’t.”

ii. Prosecution’s rebuttal

One of the prosecution’s rebuttal witnesses was District

Attorney Investigator Dennis Fitzgerald. Anticipating that the

prosecution would seek to introduce the correspondence

between defendant and Merriman through Fitzgerald’s

testimony, the defense sought an offer of proof outside the jury’s

presence. In relevant part, the prosecutor indicated that

Fitzgerald would testify based on defendant’s booking record

that defendant likely obtained his “white pride” tattoos in

prison. Fitzgerald, who was the investigator in Merriman’s

capital case, would also testify that he had reviewed the two

letters Merriman wrote to defendant and the one letter

defendant wrote back to Merriman. Fitzgerald would testify

that defendant and Merriman addressed each other as “homey”

and “brother” and that defendant asked Merriman to “stay in

touch.” Fitzgerald would also inform the jury that Merriman

was a member of a skinhead gang that advances the doctrine of

white supremacy. After having laid that foundation, the

prosecutor explained, he intended to introduce the letters.

Defense counsel objected to the admission of the three

letters on the grounds that they constituted inadmissible

hearsay, were irrelevant to the argument that defendant was

likely to join a prison gang, were highly prejudicial, and would

violate defendant’s right to a fair trial if introduced. As counsel

pointed out, the letters disparaged counsel and the court system

by, for example, referring to “kangaroo courts” and unfair juries.

Notably, counsel observed, nothing in the letters referred to

gangs.

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The court ruled that the contents of the letters were not

admissible but that the fact of the correspondence was proper

rebuttal to the defense expert’s opinion that defendant would

adapt well to life in prison. The court also indicated it would

allow the prosecutor to elicit from Fitzgerald how defendant and

Merriman addressed each other, how they signed their letters,

and whether Merriman was a gang member. Defense counsel

renewed his objection to this limited line of questioning, but

indicated he understood the court’s ruling.

Fitzgerald then testified in front of the jury that he had

reviewed defendant’s booking records and concluded that he had

received his “white pride” tattoo sometime while in custody after

1996. Fitzgerald also testified that he was the lead investigator

in a criminal case involving Merriman, who was then a leader of

a white supremacist gang in Ventura County called the

Skinhead Dogs. Fitzgerald indicated that he was familiar with

Merriman’s writings and that he had reviewed an exchange of

letters between defendant and Merriman. He testified that in

the letter from defendant to Merriman, defendant twice referred

to Merriman as “homey” and signed off with the phrase “Long

respects, Michael J. Schultz.” In one of the two letters

Merriman wrote to defendant, Merriman referred to defendant

as “brother” and signed it “with respect, Justin James

Merriman.” The salutation in a second letter from Merriman to

defendant referred to defendant as “Big Mike” and later as

“brother” and “homey,” and again ended with the phrase “With

respect.”

Fitzgerald did not state any opinion regarding defendant’s

ability to adjust to life in prison. On cross-examination, defense

counsel elicited from Fitzgerald that he was aware of no

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evidence showing that defendant was ever a member of the

Skinhead Dogs.

iii. Jury instructions and closing argument

The jury was instructed by the trial court that it could not

consider the letters and salutations as factors in aggravation:

“Evidence received in the penalty phase of this trial regarding

Mr. Schultz’s correspondence with another inmate and his

tattoos may not be considered as a factor or factors in

aggravation.”

Toward the end of the prosecution’s closing argument at

the penalty phase, the prosecutor discussed the defense

evidence regarding defendant’s prospects for a positive

adjustment to life in prison. In the prosecutor’s view, evidence

of defendant’s positive behavior while previously in custody was

not a significant mitigating factor even if true. He nonetheless

argued to the jury that Casas’s testimony should not be credited.

In the course of that brief argument, the prosecutor pointed out

that Casas’s opinion was based in part on his belief that

defendant would not join a prison gang. Casas’s opinion was

refuted, the prosecutor argued, by evidence that defendant

received a “white pride” tattoo in prison and that he was in

contact with a member of a white supremacist gang. The

prosecutor clarified that he was not suggesting the evidence of

defendant’s correspondence with Merriman was a factor in

aggravation, or that Merriman endorsed Burger’s rape and

murder. Rather, he asserted, the use of the terms “homey” and

“brother” indicated a possibility that defendant would be

interested in joining the gang, thereby undermining the defense

argument that defendant would adapt well to life in prison.

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b. Discussion

i. Asserted First Amendment violation

Defendant argues that, assuming the rebuttal evidence

established that he shared Merriman’s white supremacist views

and wanted to associate with Merriman and his gang, the

admission of such evidence infringed his First Amendment

rights to freedom of association and belief.

As defendant acknowledges, he did not raise this First

Amendment claim in the trial court, but objected only on

relevance and prejudice grounds. Citing People v. Partida

(2005) 37 Cal.4th, 433–439 and People v. Boyer (2006) 38 Cal.4th

412, 441, defendant asserts that he has not forfeited the claim

notwithstanding the lack of a specific objection because the

arguments he now presents do not invoke facts or legal

standards different from those the trial court was asked to

apply. Neither case is availing because the legal standards

applicable to a claim under Evidence Code section 352 and a

First Amendment claim are different. Under Evidence Code

section 352, a court determines whether evidence (including

evidence of a defendant’s racist beliefs) is relevant and its

probative value is not substantially outweighed by the

probability of prejudice, undue consumption of time, confusing

the issues, or misleading the jury. (See People v. Young (2019)

7 Cal.5th 905, 930–931 (Young).) A First Amendment claim, on

the other hand, asks a court to exclude evidence not only because

it is irrelevant, but because it is irrelevant and therefore its only

possible purpose is to invite the jury to convict the defendant

based on protected speech or associational activity. (See id. at

p. 946.)

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In Young, this court held that a First Amendment claim

nearly identical to the one raised here was forfeited when that

defendant objected during the guilt phase of a capital trial to the

admission of his racist tattoos and beliefs only on relevance and

prejudice grounds. (Young, supra, 7 Cal.5th at pp. 931–932.)

Here, too, the claim is forfeited. Defendant’s general objections

on relevance and prejudice grounds did not preserve the more

specific First Amendment claim he now attempts to raise.

ii. Asserted due process claim

Defendant asserts that the testimony regarding the fact of

the correspondence between himself and Merriman and the

salutations in their letters was improper rebuttal evidence

because it was based on a “guilt by association” theory and thus

violated due process. To the extent this claim amounts to an

assertion that the evidence was irrelevant or unduly prejudicial,

we reject it below. To the extent the claim is related to

defendant’s First Amendment claim or raises a separate “guilt

by association” due process claim, it was not raised in the trial

court and is therefore forfeited. (See Young, supra, 7 Cal.5th at

pp. 931–932; People v. Fuiava (2012) 53 Cal.4th 622, 689.)

iii. Evidence Code section 352

Defendant argues that the evidence regarding his

correspondence with Merriman was more prejudicial than

probative and should have been excluded under Evidence Code

section 352. We examine the trial court’s decision to determine

whether the court “ ‘exercised its discretion in an arbitrary,

capricious or patently absurd manner that resulted in a

miscarriage of justice.’ ” (People v. Rodrigues (1994) 8 Cal.4th

1060, 1124, quoting People v. Jordan (1986) 42 Cal.3d 308, 316.)

We are not persuaded the trial court erred.

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The probative value of the evidence here related to the

defense expert’s opinion that defendant would adjust well to life

in prison. In light of this testimony, the prosecution was entitled

to explore the issue on cross-examination and rebuttal. (See

People v. Gates (1987) 43 Cal.3d 1168, 1211, disapproved on

another ground in People v. Williams (2010) 49 Cal.4th 405,

458–459; see also People v. Mattson (1990) 50 Cal.3d 826, 878

[“Evidence of future dangerousness may be introduced in

rebuttal when the defendant himself has raised the issue of

performance in prison and offered evidence that in a prison

environment he would be law-abiding”]; People v. Coleman

(1989) 48 Cal.3d 112, 150 [same].) In exploring the issue during

cross-examination, the prosecutor could properly ask the

witness whether his opinion would change if he was aware that

defendant was likely to join a white supremacist gang, and to

suggest several grounds from which such a possibility could be

inferred. (See People v. Winbush, supra, 2 Cal.5th at p. 479

[“Having chosen to raise this subject, the defense could not

reasonably insulate it from cross-examination”].) During

rebuttal, the prosecutor was likewise permitted to undermine

the defense expert’s opinion by presenting evidence suggesting

a likelihood of future gang membership. This evidence was

presented through the prosecution investigator’s testimony

regarding defendant’s “white pride” tattoos, the fact of

defendant’s correspondence with an incarcerated white

supremacist gang leader, and the friendly salutations in

defendant’s letter to Merriman.

Contrary to defendant’s assertion, the probative value of

this evidence was not based on an inference of “guilt by

association” or on defendant’s alleged racist views. Rather, the

evidence provided a foundation for questioning the defense

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expert’s opinion that defendant was likely to live out his days as

a peaceful and cooperative prison inmate. For the same reason,

there is no merit to defendant’s assertion that the trial court

should have excluded all evidence regarding the correspondence

because the court knew the letters did not mention gangs or

racist ideology. The trial court concluded the contents of the

letters were not admissible, but the fact of the correspondence

itself and some of the familiar salutations arguably indicated

defendant might join a white supremacist gang. The trial court

provided a limiting instruction to the jury on this point, stating

that evidence “regarding Mr. Schultz’s correspondence with

another inmate and his tattoos may not be considered as a factor

or factors in aggravation.” The prosecution, in closing

argument, similarly pointed out that the letters were not to be

considered as factors in aggravation, but to “refute the

contention that [defendant is] not so bad when he’s in

prison . . . .”

The defense expert disagreed with many of the

prosecutor’s assertions regarding the evidence during cross-

examination. But the fact defendant and a former leader of a

white supremacist gang had exchanged letters in which

defendant referred to the former gang leader as “homey” created

an inference that undermined the expert testimony that

defendant would make a positive adjustment to life in prison.

The trial court did not err in concluding that the probative

value of the evidence was not substantially outweighed by its

potential for prejudice. As defendant acknowledges, the

“prejudice” referred to in Evidence Code section 352 means

“ ‘evidence which uniquely tends to evoke an emotional bias

against the defendant as an individual and which has very little

effect on the issues. In applying section 352, “prejudicial” is not

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synonymous with “damaging” ’ ” (People v. Karis (1988) 46

Cal.3d 612, 638, quoting People v. Yu (1983) 143 Cal.App.3d 358,

377; accord, Bryant, supra, 60 Cal.4th at p. 408.) This court has

observed that gang evidence “may have a highly inflammatory

impact on the jury,” and that trial courts should “carefully

scrutinize such evidence before admitting it.” (People v.

Williams (1997) 16 Cal.4th 153, 193, citing People v. Champion

(1995) 9 Cal.4th 879, 922–923.) The trial court here did

scrutinize the evidence, limiting its admission to the fact of the

correspondence and some of the words used by defendant and

Merriman, excluding a second witness the prosecutor sought to

call, and providing a limiting instruction to the jury that

prohibited the use of the evidence as an aggravating factor. And

the limited evidence offered was not likely to evoke an

inflammatory emotional bias from the jurors. The testimony

was brief and limited in scope. The prosecutor’s argument,

likewise, did not inflame the juror’s emotions; it was limited to

a brief argument that defendant received a “white power” tattoo

while in prison and corresponded with Merriman, which

“refutes the contention that he’s not so bad when he’s in

prison . . . .” We find no error.

iv. Assertedly inadmissible hearsay

The trial court ruled that the contents of the

correspondence between defendant and Merriman were

inadmissible. However, the court did allow the prosecutor to

present evidence regarding the fact of the correspondence and

that defendant and Merriman referred to each other as “homey”

and “brother” and signed their letters using phrases such as

“with respect.” Defendant argues that the court erred in

admitting the salutations in the letters to him from Merriman

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because they constituted inadmissible hearsay that did not fall

within any exception to the hearsay rule.

As an initial matter, we disagree with the Attorney

General that defendant has forfeited his hearsay challenge to

this evidence by not raising it below. Defense counsel objected

to the admission of the letters on various grounds, including that

the letters were inadmissible hearsay. As mentioned above, the

court ruled the contents of the letters were generally

inadmissible with the exception of the salutations used by

defendant and Merriman. Defense counsel indicated to the

court that the defense still objected to the evidence but

understood the court’s ruling. Although the court did not

articulate the basis of its ruling excluding the letters but

permitting evidence of the salutations, we conclude on this

record that the court was aware that counsel’s hearsay objection

extended to the admission of the salutations. Defendant’s claim

is preserved for appeal.

The Attorney General further argues that the salutations

did not constitute inadmissible hearsay because they were not

admitted for their truth and because they fell within the scope

of the state of mind exception to the hearsay rule. (See Evid.

Code, § 1250.)

As noted, the trial court did not articulate the basis of its

ruling excluding the contents of the letters but allowing the

salutations. Even if we assume the salutations in Merriman’s

letters should have been excluded, any such error would not

entitle defendant to a new penalty trial because there is no

reasonable possibility that the admission of the challenged

evidence affected the penalty verdict. (See People v. Wilson

(2008) 43 Cal.4th 1, 28.)

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The purpose of introducing defendant’s correspondence

with Merriman was to rebut the defense expert’s opinion that

defendant would serve out his life in prison as a peaceful and

cooperative inmate. As noted above, the jury was instructed

that this was not to be considered as an aggravating factor. And

this was a minor component of the defense case in mitigation

and played an even smaller role in the prosecutor’s closing

argument. The focus of the prosecution’s argument was instead

on the callous and brutal nature of the capital crime, the

strength of the evidence of guilt, and defendant’s pattern of

violence both before and after the murder. By contrast, the

prosecutor’s references to evidence of defendant’s exchange of

correspondence with Merriman comprised only three

paragraphs in a closing argument transcript spanning 48 pages.

Any assumed hearsay violation at issue amounted to a further

subset of that minor component, and the salutations added

relatively little to the properly admitted fact of the

correspondence generally. Further, defendant does not

challenge the admission of the salutations in his letters to

Merriman, which were nearly identical to the salutations in

Merriman’s letters. On this record, there is no reasonable

possibility the admission of the salutations in the letters from

Merriman to defendant affected the jury’s penalty verdict.

2. Denial of motion for mistrial

In a related claim, defendant asserts that the trial court

erred in denying defense counsel’s motion for a mistrial during

the penalty phase. The prosecutor posed a leading question to,

and elicited an answer from, rebuttal witness Fitzgerald that

revealed the contents of Merriman’s letter to defendant, in

direct violation of the court’s recent ruling. The prosecutor’s

question constituted misconduct. Nonetheless, we conclude that

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the court did not abuse its discretion in denying the mistrial

motion.

a. Background

As observed above, immediately prior to the testimony of

prosecution rebuttal witness Fitzgerald the trial court ruled

inadmissible the contents of the exchange of letters between

defendant and Merriman except for their salutations. Despite

that ruling, which the prosecutor acknowledged he understood,

the prosecutor asked Fitzgerald whether Merriman “offer[ed] to

send [defendant] a manual from San Quentin?” Fitzgerald

responded, “Yes, he [did].” The court promptly sustained

defense counsel’s objection, ordered the answer stricken, and

admonished the jury to disregard it, telling the prosecutor,

“I ruled from the bench on that issue . . . .”

At a bench conference immediately after the conclusion of

Fitzgerald’s testimony, defense counsel moved for a mistrial

based on the prosecutor’s question regarding the San Quentin

manual, arguing that the inquiry was a violation of the court’s

order and highly prejudicial to defendant. Before ruling on the

motion, the court excused the jury for the day. In giving its

usual admonishments, the court added, “I want to admonish you

again the objection made to a question asked by the district

attorney in reference to an item allegedly contained in a letter

from a Mr. Merriman to defendant — objection made to it.

I sustained the objection. The answer was stricken. [¶] I want

to admonish you again you’re not to consider anything that you

heard in that answer for any purpose whatsoever in this case.”

The court heard from the parties on the motion. The

prosecutor apologized for eliciting testimony in violation of the

court’s earlier ruling but asserted that no prejudice resulted.

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The court responded, “I sure don’t like it, and I can understand

[defense counsel’s] concern completely.” The court nonetheless

denied defendant’s motion for mistrial, concluding that the

misconduct would not have inflamed the jurors against

defendant. The court explained, “it does seem to the Court the

jury’s already aware that at a minimum the defendant’s going

to spend the rest of his life in prison . . . . [¶] I think the reality

[is] that the jurors are not foolish, stupid idiots but do indeed

follow the law as the Court instructs and will do so in this

case.”13

Later, when instructing the jurors before their penalty

phase deliberations, the court read CALJIC No. 1.02, which, as

given, reminded the jurors not to consider “for any purpose . . .

any evidence that was stricken by the court” but to “treat it as

though you had never heard it.”

b. Discussion

We agree with defendant that the prosecutor committed

misconduct by eliciting testimony regarding the contents of one

of the letters Merriman wrote to defendant. (See People v. Tully

(2012) 54 Cal.4th 952, 1035.) The trial court had ruled clearly

that the contents of the letters were inadmissible. The

prosecutor nonetheless directly asked Fitzgerald a question

regarding the contents of one letter. Although the prosecutor

apologized for asking the question, he offered no excuse or

explanation for his conduct. This was clear misconduct, not a

situation in which a question led to “a witness’s nonresponsive

13

The prosecutor stated during this colloquy that he

believed the manual referred to in the letter was a document

published by prison officials “about what it’s like [in San

Quentin State Prison].”

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answer that the prosecutor neither solicited nor could have

anticipated.” (Ibid.) We take this opportunity to admonish

counsel regarding the importance of strictly adhering to a

court’s rulings concerning the scope of proper examination.

Such adherence is important in every case. It certainly is no less

vital in the context of a capital case.

Still, the prosecutor’s error did not require the court to

declare a mistrial. “ ‘Whether a particular incident is incurably

prejudicial is by its nature a speculative matter, and the trial

court is vested with considerable discretion in ruling on mistrial

motions.’ ” (People v. Williams (2006) 40 Cal.4th 287, 323,

quoting People v. Haskett (1982) 30 Cal.3d 841, 854.) As we have

explained, “[a] trial court should grant a mistrial only when a

party’s chances of receiving a fair trial have been irreparably

damaged . . . .” (People v. Bolden (2002) 29 Cal.4th 515, 555,

citing People v. Ayala (2000) 23 Cal.4th 225, 282; see People v.

Jenkins (2000) 22 Cal.4th 900, 986 [court should grant a mistrial

if it determines the prejudice “incurable by admonition or

instruction”].)

Reviewing the court’s denial of the mistrial motion for an

abuse of discretion (People v. Valdez (2004) 32 Cal.4th 73, 128,

citing People v. Ayala, supra, 23 Cal.4th at p. 283), we conclude

the court did not err. We presume that a jury follows the court’s

admonishments. (People v. Avila (2006) 38 Cal.4th 491, 574,

citing People v. Boyette (2002) 29 Cal.4th 381, 436.) Here, after

scolding the prosecutor in open court for violating its earlier

ruling, the court promptly and forcefully directed the jury to

disregard the improper question and response. The court did so

repeatedly, both at the time the court sustained the defense

objection and again, a short time later, when the court excused

the jury for the day. The jury was also instructed in more

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general terms prior to penalty phase deliberations that it was

not to consider for any purpose evidence stricken by the court.

The court acknowledged defense counsel’s concerns that

the improper question and response could lead the jury to

speculate regarding the contents of the San Quentin “manual”

in ways that could prejudice defendant. But the court also

reasonably concluded its admonishments would ensure that the

brief reference to an undescribed “manual” did not irreparably

damage defendant’s chance of receiving a fair penalty trial.

Citing empirical research suggesting generic instructions

are of limited value in curing prejudice, defendant asserts that

the three “anemic” admonitions did not effectively dispel the

prejudice. But nothing in the record provides any reason to

question the court’s belief that the prejudice resulting from the

improper evidence was cured by the court’s prompt and explicit

directives that the jury disregard it. Nor does the record disclose

any reason for this court to cast aside the presumption that the

jurors followed the court’s repeated admonishments. We

conclude the trial court did not abuse its discretion in denying

the motion for a mistrial.

B. Victim Impact Testimony

The prosecution called to the witness stand three

members of Cynthia Burger’s immediate family to testify

regarding how they were impacted by her death. Defendant

contends the testimony by two of the witnesses fell outside the

scope of constitutionally permissible victim impact evidence. He

further complains that the testimony was emotionally

overwrought and thereby diverted the jury from its proper role

at the penalty phase. As we explain, the admission of the

challenged testimony was proper.

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1. Background

Prior to trial, defense counsel filed a motion to limit any

victim impact testimony proffered by the prosecution. After a

brief hearing on the motion, the court rejected the defense

argument that such evidence should be limited to testimony by

only those family members who were actually present at the

crime scene. But the court agreed to limit the evidence to

testimony from three immediate family members — Burger’s

father (Had Burger), mother (Virgie Burger), and sister (Sandra

Woodward).

Mr. Burger testified briefly regarding how much his

daughter had meant to him, his deep sense of shock and grief

upon learning she had died, and the enduring feeling of

emptiness that could not be filled after her death.

Mrs. Burger testified next. In explaining what her

daughter meant to her, Mrs. Burger described the

circumstances surrounding Burger’s birth, including that Mr.

Burger drove 500 miles to the hospital and was there to hold

their newborn child. Mrs. Burger explained how that event

created a special bond between Burger and Mr. Burger because

he could not attend the birth of their first child, which occurred

during World War II when he was stationed at Guadalcanal.

She also mentioned that she was very ill following the birth and

that family members supported her.

Mrs. Burger mentioned her daughter’s dedication to

Jesus, saying, “Jesus Christ was her hero.” She talked about

Burger’s desire to be the best person she could be, and about her

graduation from Calvary Bible College. When asked to recount

how she learned her daughter had died, Mrs. Burger described

the news as “a horrendous story by a monster” and called the

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killing a “weird, horrible story.” According to Mrs. Burger, her

heart broke that day and has never healed. She also expressed

how much she missed Burger, who she described as a “wonderful

daughter, beautiful daughter, kind, considerate.” When

relating some of the hardest things for her after Burger’s death,

Mrs. Burger discussed having to walk through her daughter’s

home, including the bedroom where she had been strangled.

She also mentioned the loss of the family Bible in the fire. Mrs.

Burger found some solace in having a close and loving family.

After bringing Burger’s cats to live with her and her husband,

Mrs. Burger would “feel the [cats’] fur and I knew that I was

feeling Cindy’s hands stroking that little kitty.” After Burger’s

death, Mrs. Burger explained that she suffered poor health and

depression, and that she lived in fear at night when her husband

was not home.

Burger’s older sister, Sandra Woodward, explained that

she and Burger had “something magic” between them, even

when Burger was an infant. When she learned Burger was

dead, she was shocked and suffered intense, unrelenting pain.

Woodward said she knew everything about Burger and had

taken for granted that she and her sister would grow old

together. She recounted how difficult it was to answer police

investigators’ questions about Burger’s friends and

acquaintances, and to inventory Burger’s house to identify what

was missing. According to Woodward, it was hard to control her

suspicions about Burger’s friends during the long investigation.

In describing her experience at the mortuary, Woodward

recalled that her sister’s hair and features were unrecognizable

and that she struggled with how to tell her parents. She related

that her father did not want to see Burger’s body because he

“wanted to remember how Cindy was last week.” When

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Woodward returned to the mortuary with Mrs. Burger,

Woodward could see the grief washing over Mrs. Burger as she

(Mrs. Burger) rocked Burger in her arms.

Woodward testified that she had trouble sleeping after

Burger’s death, and that she would often wake around 3:00 a.m.

She said that when she later was told that defendant entered

Burger’s home “between 2:30 or 3:00, I just had a stab to my

heart. It all made sense to me. I knew why I was waking up at

3 o’clock. There was no doubt in my mind.”

Woodward also told the jury that although she finds joy in

her memories of her sister, she is saddened knowing they will

no longer have special times together. Woodward explained that

her sister’s death traumatized the family, each of whom dealt

with his or her grief differently. Specifically, her father became

angry and hard, while her mother cried all the time because she

“worried about the pain and the torture that Cindy went

through and she kept reliving it.” Woodward also described her

own physical pain, including difficulty breathing. She stated

that when another individual told her she was experiencing

heartache, she said, “I didn’t realize there was such physical

pain with death.”

2. Discussion

Defendant raises three challenges to the victim impact

testimony. First, he argues that the testimony by Mrs. Burger

and Ms. Woodward exceeded the limitations the high court

placed on victim impact evidence in Payne v. Tennessee (1991)

501 U.S. 808 (Payne). Payne departed from earlier precedent to

hold that the Eighth Amendment does not bar states from

allowing at a capital sentencing proceeding evidence regarding

the loss to the victim’s family that resulted from the murder, so

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long as the evidence is not “so unduly prejudicial” that it leads

to a “fundamentally unfair” trial. (Payne, supra, 501 U.S. at

p. 825; see also People v. Edwards (1991) 54 Cal.3d 787, 835

[holding that § 190.3, factor (a) authorized “evidence and

argument on the specific harm caused by the defendant,

including the impact on the family of the victim”].) Payne did

not disturb the high court’s earlier holding in Booth v. Maryland

(1987) 482 U.S. 496, however, that “admission of a victim’s

family members’ characterizations and opinions about the

crime, the defendant, and the appropriate sentence violates the

Eighth Amendment.” (Payne, supra, 501 U.S. at p. 830, fn. 2;

see also People v. Taylor (2010) 48 Cal.4th 574, 647–648.)

Defendant argues that the testimony by Burger’s mother

and sister exceeded the permissible scope of victim impact

evidence under Payne. He asserts that Burger’s mother and

sister offered improper opinions regarding the crime and

defendant. Specifically, defendant points to Mrs. Burger’s

characterization of the facts of Burger’s death as “a horrendous

story by a monster” and a “weird, horrible story.” He

emphasizes Mrs. Burger’s testimony that “[t]his girl was so

beautiful both inside and out and was murdered with great pain,

fear, and then set [on] fire, and then put in a tub of acid.”

Defendant also complains that Woodward’s testimony regarding

the police investigation invited the jury to speculate that

numerous individuals beyond the immediate family had been

adversely impacted by Burger’s death. Defendant further

asserts that the testimony from Burger’s mother and sister ran

afoul of Payne because it was distracting, emotional, and

irrelevant. He points to testimony from both women regarding

the circumstances of Burger’s birth, Burger’s religious

convictions, and the “psychic connections” described by the

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witnesses (Mrs. Burger’s testimony that she would pet Burger’s

cats and know “that I was feeling Cindy’s hands stroking that

little kitty,” and Woodward’s testimony that she would often

wake up at 3:00 a.m., around the time Burger was killed).

As an initial matter, defendant failed to object to these

statements during trial. Defendant moved before trial to limit

any victim impact testimony to those family members present

during or immediately after the crime, and to exclude any

prejudicially emotional victim impact testimony. The trial court

granted the motion to the extent that defendant sought to limit

testimony to impacted family members but stated those

witnesses need not have been present during the crime. Rather,

the court ruled that testimony from Burger’s mother, father, and

sister would be admissible to describe the impact of Burger’s

death on them. Defendant did not subsequently object that the

witnesses’ testimony exceeded the scope of the trial court’s order

or was otherwise improper. As the Attorney General asserts,

and defendant does not contest, defendant’s claims are therefore

forfeited. (People v. Romero and Self (2015) 62 Cal.4th 1, 46

[“denial of the motion in limine [to exclude all victim impact

testimony] did not make objection during testimony redundant,

but rather it was incumbent on defendants to object if they

believed the testimony actually presented was ‘excessive,

improper, inflammatory, and highly prejudicial’ ”].)

Even considering defendant’s claims on the merits,

however, the challenged statements did not run afoul of the

Eighth Amendment. Neither Mrs. Burger nor Ms. Woodward

improperly commented on the crime or defendant. When placed

in context, Mrs. Burger’s references to the horrendous nature of

the crimes against her daughter, and the suffering that she

imagined her daughter must have endured, reflected how those

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crimes had directly affected her (Mrs. Burger). (See People v.

Mendez (2019) 7 Cal.5th 680, 713 [permitting testimony of

family members describing how they imagined their loved ones’

final moments, and describing as “obvious” that a parent would

describe a child’s murder as a “ ‘tragic, sickening, evil,

disgusting death’ ”]; People v. Pollock (2004) 32 Cal.4th 1153,

1182 [rejecting the defendant’s challenge to testimony by the

victims’ son describing his parents’ murders as brutal and “ ‘a

savage act’ ”].) Likewise, Mrs. Burger’s characterization of her

daughter’s killer as a “monster” was a permissible expression of

the harm caused by the crimes. (See People v. Taylor, supra,

48 Cal.4th at p. 647 [one family member’s fleeting reference to

the defendant as “ ‘that idiot’ ” reflected how the murder had

devastated her and the victim’s large family and close friends].)

Mrs. Burger’s testimony was properly admitted to remind the

jury that Burger was “ ‘an individual whose death represents a

unique loss to society and in particular to [her] family.’ ” (Payne,

supra, 501 U.S. at p. 825, quoting Booth v. Maryland, supra,

482 U.S. at p. 517 (dis. opn. of White, J.).)

Further, defendant does not explain how Woodward’s

testimony regarding the investigation improperly broadened the

scope of testimony regarding those impacted by Burger’s death.

At most, her testimony stated what was obvious; Burger’s death

generally impacted those who knew her. Woodward’s general

testimony that officers investigating the crime questioned those

close to Burger was not so emotional as to invite an irrational

response from the jury. (See People v. Winbush, supra, 2 Cal.5th

at p. 465 [rejecting similar claim when victim’s sister and

mother described impact of murder on victim’s father, who was

“ ‘totally devastated’ ” and died six months after the murder].)

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Nor can the testimony here be characterized as irrelevant,

distracting, or unduly emotional. Contrary to defendant’s

assertion, Mrs. Burger could properly describe some of the

circumstances surrounding Burger’s birth because, by showing

the supportive and loving family environment in which Burger

was raised, the testimony provided the jury a glimpse of who

Burger was. (See People v. Dykes (2009) 46 Cal.4th 731, 786

[victim impact evidence offers the jury “an idea of who the victim

was”].) As we have repeated, “ ‘[t]he People are entitled to

present a “ ‘complete life histor[y] [of the murder victim] from

early childhood to death.’ ” ’ ” (People v. Williams (2015)

61 Cal.4th 1244, 1286, quoting People v. Garcia (2011)

52 Cal.4th 706, 751; accord, People v. Zamudio (2008) 43 Cal.4th

327, 365.)

For a similar reason, Mrs. Burger’s references to her

daughter’s trust in Jesus and graduation from a Christian

college were not improper. We denied a similar challenge to

testimony regarding a murder victim’s participation in Bible

study classes in People v. Pollock, supra, 32 Cal.4th at page

1181. Although we noted that the testimony there did not

include mention of the victim’s “specific religious beliefs” (ibid.),

the testimony here was brief and limited to a general description

of Burger as a devout Christian. And, like in Pollock, nothing

in the record supports defendant’s assertion that this testimony

would have suggested to the jury that its penalty decision should

be guided by religious doctrine, let alone his claim that these

references “cast a mantle of saintliness about [Burger] and

invited the jury to recall the Old Testament call to take

vengeance for the righteous.”

Further, we find untenable defendant’s contention that

the testimony by Mrs. Burger and Woodward relating their

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thoughts about Burger subsequent to her death (which

defendant characterizes as “psychic connections”) would have

invited jurors to believe Burger’s spirit would be watching over

their deliberations. We have previously rejected similar

challenges to “ ‘supernaturally tinged’ ” evidence such as a

murder victim’s mother describing a nightmare about being shot

just before learning her son had been shot (People v. Mendez,

supra, 7 Cal.5th at p. 713) and a witness describing that the

victim’s goddaughter reported seeing the victim’s ghost after the

victim was killed (People v. Verdugo (2010) 50 Cal.4th 263, 297–

299).

Defendant also urges us to revisit our holding in People v.

Edwards, supra, 54 Cal.3d 787, that section 190.3, factor (a)

allows victim impact evidence, and those decisions declining to

limit such evidence to the facts and circumstances that the

defendant knew or reasonably should have known at the time of

the crime. He cites to language in Justice Kennard’s concurring

and dissenting opinion in People v. Fierro (1991) 1 Cal.4th 173,

264. We have declined to adopt that language, and defendant

provides no persuasive reason to reopen our consideration of

these issues. (See, e.g., People v. Simon (2016) 1 Cal.5th 98,

140–141; People v. Jones (2012) 54 Cal.4th 1, 70; People v. Myles

(2012) 53 Cal.4th 1181, 1219; People v. McKinnon, supra,

52 Cal.4th at p. 690.)

Finally, defendant asserts that the victim impact

testimony was far more prejudicial than probative and that the

court should not have allowed the jury to consider it when

deciding the appropriate punishment. Again, the claim is

forfeited because defendant failed to object. And, again,

defendant’s claim fails on its merits. Testimony regarding grief

and loss is necessarily emotional, but that does not necessarily

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render it inadmissible. Here, the testimony of Burger’s father,

mother, and sister, which included their descriptions of the

shock and grief they experienced on learning of Burger’s death,

was the type of evidence typically permitted at the penalty

phase and “concerned the kinds of loss that loved ones commonly

express in capital cases.” (See People v. Lewis and Oliver, supra,

39 Cal.4th at p. 1057; see also People v. Myles, supra, 53 Cal.4th

at p. 1197 [victim’s father related to the jury that when he was

informed of his son’s death, he fell to his knees and dropped the

telephone in disbelief].) Nor was it error to allow Mrs. Burger’s

testimony describing the emotion she felt listening to trial

testimony or testifying herself. Testimony describing the

“ ‘residual and lasting impact’ ” of a murder on the victim’s

family is permissible. (People v. McKinnon, supra, 52 Cal.4th at

p. 691, quoting People v. Brown (2004) 33 Cal.4th 382, 398.)

Characterizing the victim impact testimony as

“duplicative and excessive,” defendant faults the court for not

attempting to lessen the prejudicial effect by, for example,

allowing only one of the three members of Burger’s immediate

family to testify. The record shows that the victim impact

testimony in this case was neither duplicative nor excessive.

Indeed, the testimony represented only 20 pages in a reporter’s

transcript of the prosecution’s case in aggravation that spanned

several hundred pages. (See, e.g., People v. Mendez, supra,

7 Cal.5th at p. 712 [stating that allowing three victim impact

witnesses per murder victim is comparable to what this court

has previously condoned]; People v. Williams, supra, 61 Cal.4th

at p. 1285 [rejecting challenge to amount of victim impact

testimony involving ten witnesses].) We discern no error in the

trial court’s decision to allow the testimony here.

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Nor did the testimony unduly prejudice defendant by

painting a contrasting picture for the jury, effectively asking the

jury to compare Burger’s life with defendant’s and to “base its

punishment decision on which life was more valuable to society.”

Nothing in the record supports this assertion, and we have

previously rejected similar unsupported claims. (See People v.

Winbush, supra, 2 Cal.5th at p. 465; People v. Kelly (2007)

42 Cal.4th 763, 799.)

C. Unadjudicated Criminal Activity

Defendant contends that section 190.3, factor (b), which

permits evidence of “criminal activity by the defendant which

involved the use or attempted use of force or violence or the

express or implied threat to use force of violence,” violates the

Eighth Amendment to the federal Constitution.

The purpose of section 190.3, factor (b) is to “enable the jury

to make an individualized assessment of the character and

history of a defendant to determine the nature of the

punishment to be imposed.” (People v. Grant (1988) 45 Cal.3d

829, 851.) This court has long held that the admission of

evidence of unadjudicated crimes at the penalty phase is not a

violation of state or federal constitutional principles. (See, e.g.,

People v Jenkins, supra, 22 Cal.4th at p. 1054; People v.

Balderas (1985) 41 Cal.3d 144, 204–205.)

Defendant mischaracterizes section 190.3, factor (b) as

allowing evidence of irrelevant everyday “spats and quarrels.”

In fact, the statute allows the use of criminal activity related to

force or violence, or what we have described as “prior violent

conduct.” (People v. Davis (1995) 10 Cal.4th 463, 544.) The jury

is instructed that it may consider evidence of such prior conduct

only when the conduct has been proved beyond a reasonable

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doubt. (People v. Robertson (1982) 33 Cal.3d 21, 53.) As we have

explained, “[t]he penalty phase is unique, intended to place

before the sentencer all evidence properly bearing on its decision

under the Constitution and statutes. Prior violent criminality

is obviously relevant in this regard; the reasonable doubt

standard ensures reliability; and the evidence is thus not

improperly prejudicial or unfair.” (People v. Balderas, supra,

41 Cal.3d at p. 205, fn. 32.) Defendant was entitled to argue to

the jury that the incidents were mere minor spats and should be

given little weight. (See People v. Tully, supra, 54 Cal.4th at

p. 1030 [“Whether defendant’s use of force was legally justified

and the weight, if any, to be given to these incidents for purposes

of the individualized assessment of his character and history

were matters for the jury to decide in light of the instructions

given to it”].)

Defendant further asserts that the admission of

unadjudicated acts through anecdotal evidence violates the

Eighth Amendment’s requirement of heightened reliability in

capital cases because, as a general matter, only the victim’s

recollection is presented to the jury. We have repeatedly

rejected claims that the admission of section 190.3, factor (b)

evidence violates a defendant’s right to a reliable penalty

determination. (See, e.g., People v. Anderson (2001) 25 Cal.4th

543, 584–585.) Defendant’s complaint that only the victim’s

version of events is the one heard by the jury is remedied by his

Sixth Amendment right to confront the witnesses who testify

against him at the penalty phase. (See People v. Rogers (2006)

39 Cal.4th 826, 894.)

Defendant also asserts that the admission of evidence

under section 190.3, factor (b) violates the Eighth Amendment

because it is out of step with evolving standards of decency. We

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have not previously considered this particular challenge to

section 190.3, factor (b). We reject it now.

Defendant asserts that section 190.3, factor (b) is “the only

statute in the country to include a statutory aggravator that

allows a jury to impose the death penalty based upon

unadjudicated everyday spats and quarrels.” He acknowledges,

however, that other states allow consideration of unadjudicated

acts as a nonstatutory aggravating factor.

Indeed, at least seven other states allow the admission of

unadjudicated acts in a similar fashion as California. (See, e.g.,

Devier v. State (Ga. 1984) 323 S.E.2d 150, 163 [allowing as an

aggravating factor “[a]ny lawful evidence,” including prior

unadjudicated acts, that tend to show a defendant’s “general

moral character” or “predisposition to commit other crimes”];

State v. Johns (Mo. 2000) 34 S.W.3d 93, 113 [allowing

consideration of evidence of defendant’s “character and

conduct,” including unadjudicated criminal conduct that

occurred before or after the capital offense]; Paxton v. State

(Okla. 1993) 867 P.2d 1309, 1321–1323 [allowing unadjudicated

offenses to support aggravating circumstance of continuing

threat to society]; State v. Tucker (Or. 1993) 845 P.2d 904, 913

[allowing evidence of unadjudicated “bad acts” as an

aggravating factor related to defendant’s future dangerousness];

Powell v. State (Tex. 1994) 898 S.W.2d 821, 830 [allowing

unadjudicated “extraneous offenses” to show defendant poses a

future danger to society]; State v. Taylor (Utah 1991) 818 P.2d

1030, 1035 [allowing violent and nonviolent unadjudicated

crimes as an aggravating factor relevant to defendant’s

character]; Stockton v. Commonwealth (Va. 1991) 402 S.E.2d

196, 209–210 [construing applicable statute as allowing

evidence of unadjudicated misconduct, rejecting due process

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challenge to that practice, and noting split between states

allowing or prohibiting admission of such evidence].)

That California is among eight states allowing

consideration at the penalty phase of prior unadjudicated

criminal activity involving force or violence is not sufficient to

establish that California’s statutory scheme is out of step with

evolving standards of decency or otherwise violates the Eighth

Amendment. (See People v. Taylor, supra, 48 Cal.4th at p. 634;

cf. Miller v. Alabama (2012) 567 U.S. 460, 469–470, 479 [holding

that mandatory imposition of life without parole sentences for

juvenile offenders violated 8th Amend. evolving standards of

decency].)

D. Constitutionality of California’s Death Penalty

Law

Defendant presents several challenges to the

constitutionality of California’s death penalty law that, he

acknowledges, this court has previously considered and rejected.

We decline his request to reconsider our prior conclusions.

(People v. Schmeck (2005) 37 Cal.4th 240, 303.)

Section 190.2 provides a list of the special circumstances,

including felony murder, which render a defendant eligible for

the death penalty. The

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