The opinion
IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
CHESTER DEWAYNE TURNER,
Defendant and Appellant.
S154459
Los Angeles County Superior Court
BA273283
November 30, 2020
Justice Corrigan authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Liu, Cuéllar,
Kruger, Groban, and Gilbert* concurred.
*
Presiding Justice of the Court of Appeal, Second Appellate
District, Division Six, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
PEOPLE v. TURNER
S154459
Opinion of the Court by Corrigan, J.
Over the course of nearly 12 years, a serial killer raped
and murdered women in high crime areas of Los Angeles. Police
identified defendant Chester Dewayne Turner as a suspect in
2003, when his DNA was found to match DNA left on the victims
in several unsolved cases. Convicted of murdering ten women
and one viable fetus, he was sentenced to death. (Pen. Code,
§ 187, subd. (a).)1 This automatic appeal primarily challenges
the admission of statistical evidence about the significance of
the DNA matches and hearsay testimony about the fetus’s
viability. The hearsay claim has merit and warrants reversal of
the fetal murder conviction. The judgment is affirmed in all
other respects.
I. BACKGROUND
A. Guilt Phase
1. Figueroa Corridor Murders
Between 1987 and 1996, the bodies of eight women were
found in the Figueroa Corridor of Los Angeles, an area beset by
crime, including prostitution and narcotics activity. Defendant
1
All statutory references are to the Penal Code unless
otherwise stated. Defendant was convicted of second degree
murder for the fetus, but all other murders were in the first
degree. The jury also found true special circumstance
allegations of multiple murder and, as to one of the victims,
murder in the course of a rape. (§ 190.2, subd. (a)(3), (17).)
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lived at various addresses in the Figueroa Corridor during this
period. All of the victims had been sexually assaulted and
strangled to death, sometimes by ligature and sometimes
manually. All had a history of drug abuse, and all but one had
cocaine in their systems. Some were homeless; some were
thought to be mentally ill; and some had arrests for prostitution.
a. 1987 to 1989
The body of 21-year-old Diane Johnson was found on
March 9, 1987, in a construction area six blocks from
defendant’s home. Drag marks led to her body, which was nude
from the waist down. She had been strangled.
Annette Ernest, age 26, was found just three blocks away
on October 29, 1987. She lay face down with her pants lowered.
There was a possible ligature mark on her neck and a bite on
one breast. The cause of death was strangulation.
On January 20, 1989, a young boy discovered the body of
31-year-old Anita Fishman in an alley less than two blocks from
defendant’s home. Her pants were partially down and the body
was beginning to decompose. She died of manual strangulation.
Regina Washington was 27 years old and visibly pregnant
when she was killed. Her body was found on September 23,
1989, lying on a mattress in a burnt-out garage about 14 blocks
from defendant’s home. Although she was clothed, her pants
were unfastened and her shirt pulled up. A black coaxial cable
was wrapped around her throat and attached to an electrical box
on a nearby wall. She died of ligature strangulation with signs
of a struggle. Washington’s female fetus weighed 825 grams
with a gestational age of 27 to 28 weeks. That weight and age
were considered viable under World Health Organization
guidelines. Despite her mother’s cocaine use, the fetus had no
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congenital abnormalities and appeared to be developing
normally. She died from lack of oxygen due to her mother’s
strangulation.2
b. 1993 to 1996
On April 2, 1993, 29-year-old Andrea Tripplett was found
dead behind an abandoned house 22 blocks from defendant’s
residence and only two blocks from her own home. Her skirt
was pushed up and she was naked below the waist. She was
around five months pregnant when she was manually strangled
to death. At 305 grams, the fetus was not yet viable.
Deserae Jones, who sometimes went by Tracy Williams,
was also 29 years old and killed by manual strangulation. Her
body was found on May 16, 1993 in the trash-filled yard of a
burned, boarded-up house within 30 blocks of defendant’s
address. She was unclothed below the waist.
On February 12, 1995, Natalie Price’s body was found
approximately five blocks from defendant’s home, next to an
empty house where people gathered to smoke narcotics. Her bra
was pushed up around her neck and her pants were pulled
down. She had been strangled and struck on the head. She was
39 years old when she died.
Mildred Beasley, age 45, was on her way to her sister’s
house when she disappeared. Her body was found on November
6, 1996 on a trash-strewn embankment of the 110 Freeway
about 18 blocks from defendant’s home. The area was
2
These details as to fetal age and condition were taken from
an autopsy report and conveyed by a pathologist who did not
perform the procedure. We discuss their erroneous admission
post, at pages 38 to 46.
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frequented by transients and known for drug activity. She had
been strangled to death and left naked below the waist, with her
upper garments pulled up. Insect activity indicated the body
had begun to decompose.
2. Downtown/Skid Row Murders in 1998
Two additional murder victims were found under similar
circumstances near downtown Los Angeles in 1998. During that
year, defendant lived downtown at the Regal Hotel on 6th
Street.
Paula Vance, age 41, was found dead on February 3, 1998.
Her body lay next to an abandoned building near 6th and Hope
Street, about 14 blocks from defendant’s residence. Her upper
garments were pulled up, her nylons and underwear pulled
down. She had been strangled, and there were signs of sexual
assault. A surveillance camera at the scene recorded her
entering the alleyway with a man, who grabbed her around the
neck until she fell to the ground. Vance was the only murder
victim without cocaine in her system. Evidence showed that she
was homeless and suffered from mental illness.
On April 6, 1998, the body of 37-year-old Brenda Bries was
found in a portable toilet on South Gladys Avenue and 5th
Street, just 50 yards from defendant’s residence. She was
slumped with her head on the seat, pants around her knees, and
shirt pulled around her neck. A fabric cord, intertwined with
her bra, was wrapped around her neck. She died from ligature
strangulation and showed signs of a struggle.
3. Investigation
Crime scene investigators compiled and stored sexual
assault kits for all victims.
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a. 2002 Rape of Maria M.
In March 2002, defendant raped Maria M., a 47-year-old
homeless woman who worked as a prostitute and sold drugs.
She knew defendant from the Midnight Mission, a shelter they
both frequented. As she walked alone near the shelter one
night, defendant asked to borrow her lighter, which he used to
smoke cocaine. Instead of returning the lighter, defendant
grabbed Maria in a chokehold and dragged her behind some
dumpsters, where he raped and sodomized her, ejaculating in
the process. He threatened to kill her if he was arrested.
Maria immediately went to a police station, but after being
kept waiting for some time she felt ignored and left. The next
morning, she reported the assault to Midnight Mission
employees and the police. Defendant attempted to flee but was
arrested at the shelter. Evidence for a sexual assault kit was
collected at a hospital. Defendant ultimately pled no contest to
rape by force or fear and unlawful penetration. (§§ 261,
subd. (a)(2), 289, subd. (a)(1).)
b. DNA Identification of Defendant
i. General Evidence
Gary Sims, a director of the Department of Justice DNA
Laboratory, testified as an expert on forensic DNA analysis.
Chromosomes found in cell nuclei contain DNA, which is the
same in all cells of a person’s body. The vast majority of human
DNA is the same, coding basic traits all people share. At some
chromosomal regions, however, the DNA is highly variable.
Forensic DNA analysis studies these areas of variation. The
specific site being studied is called a “locus.” “Allele” describes
the alternative forms of genetic material at a particular locus.
Each locus has two alleles, one inherited from each parent.
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Current forensic testing focuses on loci with sections of DNA
that repeat a variable number of times, known as short tandem
repeats or STRs. Different people have different numbers of the
repeating sequence at these sites. DNA testing compares the
alleles at these sites to see if they are the same or different. As
the science of DNA analysis developed, more loci with variable
STRs could be tested. At the time of defendant’s trial, analysts
could study DNA variation at 13 different loci. Sims explained
that DNA analysis is a powerful tool in determining “the
probability of identity,” which is the likelihood that two people
chosen at random will have the same DNA sequences at the
areas tested.
Once DNA is extracted from biological material left at a
crime scene, the STR regions are amplified. Analysts determine
the number of STR repeats for alleles present at each of the 13
loci, producing a “profile” for the evidence sample. Biological
material is then obtained from a suspect to create a DNA profile.
When the two profiles are compared, a match is declared if the
alleles at all loci are the same. The significance of a match
depends on how common the particular DNA profile is in the
population. Sims explained that population databases have
been developed to determine how frequently particular alleles
are found in each major ethnic group. After the allele
frequencies are determined at each locus, the frequencies are
multiplied together to determine the rarity of the overall profile.
This number, called the random match probability, reflects the
probability that DNA from a randomly chosen person would
match the evidence profile.
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ii. Case-specific Evidence
On July 3, 2002, defendant gave cheek swabs for DNA
testing in connection with Maria’s assault. The Los Angeles
Police Department (LAPD) DNA Unit prepared defendant’s
DNA profile from this reference sample. His profile matched the
DNA in sperm cells recovered during Maria’s examination.
Investigators later compared defendant’s profile with
DNA samples from unsolved crimes.3 Defendant’s profile
matched DNA left on all of the victims here. A private forensic
laboratory, Orchid Cellmark (Cellmark), retested the evidence
and independently confirmed LAPD’s findings. Specifically, the
laboratories found as follows.
Sperm cell DNA matching defendant’s profile was
recovered from anal and vaginal swabs from Diane Johnson. In
the Anita Fishman, Regina Washington, Andrea Tripplett,
Natalie Price, Mildred Beasley, Paula Vance, and Brenda Bries
cases, DNA from sperm cells in vaginal swabs matched
defendant’s profile. Occasionally these samples included some
“carryover” DNA from the victim’s epithelial cells, but there
were no other sperm cell contributors. Cellmark also found
DNA with defendant’s profile in external genital swabs from
Price, Beasley, Vance, and Bries, and in the anal swabs for
Beasley and Bries. In the Annette Ernest and Deserae Jones
cases, sperm cell DNA recovered from the external genital area
matched defendant’s profile. Cellmark also found DNA with
defendant’s profile in nipple and anal swabs in the Ernest case
and in oral and anal swabs in the Jones case. Some external
3
The profile used in this analysis was obtained from a blood
sample defendant submitted after his rape conviction. (See
§ 1202.1, subd. (a).)
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genital samples included DNA from unknown individuals, but
in all such cases defendant was the primary contributor. Each
unknown DNA profile appeared in only one victim. Defendant’s
DNA profile alone recurred in all of the victims.
Both laboratories declared a match when DNA sequences
were the same at all 13 sites examined. LAPD’s DNA Unit
determined the probability of this match occurring at random
was one in one quintillion. Cellmark calculated the probability
of a random match within the Black population group as one in
6.725 quintillion. A quintillion is rendered as a one followed by
18 zeroes.
4. Defense Case
A third forensics laboratory analyzed the DNA evidence
for the defense. Unlike the other two laboratories, Technical
Associates (TA) used the Y-STR test, which isolates male DNA
by studying sites on the Y chromosome. Because it examines
only male lineage, the Y-STR test is less powerful than other
tests, producing random match probabilities of one in thousands
versus one in quadrillions. It is useful, however, when the
amount of male DNA in a sample is comparatively small.
TA tested samples from all of the victims except Anita
Fishman, examining 12 loci on the Y chromosome. Defendant
was considered identified when his DNA profile matched most,
if not all, of the 12 loci in the sample DNA. Rather than
describing a correspondence between defendant’s profile and the
sample as a “match,” the TA criminalist preferred to state that
defendant could not be excluded as the source of DNA in the
sample. Because genes examined by the Y-STR test are less rare
than those in other tests, it was possible another male’s profile
could overlap defendant’s at some sites.
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TA found DNA consistent with defendant’s profile in
samples from each of the victims studied. Specifically, DNA
consistent with defendant’s was found: in the nipple and
vaginal swabs from Diane Johnson; in the nipple, vaginal, and
anal swabs from Annette Ernest; in the external genital swab
from Regina Washington; in the anal swab from Andrea
Tripplett; in the nipple and anal swabs from Deserae Jones; in
the external genital, nipple, and anal swabs from Natalie Price;
in the nipple and anal swabs from Mildred Beasley; in the
external genital and nipple swabs from Paula Vance; and in the
external genital swab from Brenda Bries. The Y-STR test
detected male DNA from unknown contributors in several of the
samples. No DNA profile other than defendant’s repeated from
victim to victim.
The defense expert testified that sperm cells deposited in
the vagina are typically expelled within one to two days from a
living woman. After death, however, bodily processes slow down
the expulsion. Sperm cells could remain as long as two weeks
postmortem. Sperm found in a female who had been deceased
for a day could have been deposited three or four days earlier.
Even if defendant’s DNA profile was detected at a higher
concentration than unknown profiles, the finding did not mean
defendant was necessarily the last person to deposit DNA.
The parties stipulated that the defense requested
discovery of DNA test results for all clothing booked into
evidence and that neither side conducted such testing.
B. Penalty Phase
1. Aggravating Evidence
The prosecution presented victim impact evidence relating
to seven victims. The jury heard from Annette Ernest’s mother,
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Andrea Tripplett’s mother, Anita Fishman’s mother and
younger sister, Deserae Jones’s mother and niece, Regina
Washington’s daughter, Natalie Price’s daughter, and Mildred
Beasley’s younger sister and niece. They described the families’
sorrow at losing their loved ones and their anguish at having the
cases remain unsolved for so many years.
Most of the aggravating evidence concerned defendant’s
violent conduct in four unrelated incidents: murder, sexual
assault, felony resisting arrest, and threatening a sheriff’s
deputy while awaiting trial on the current charges. The
prosecution also presented evidence of defendant’s conviction for
the attack on Maria M.
a. Murder of Elandra Bunn
In June 1987, less than three months after Diane
Johnson’s murder, Elandra Bunn was killed in the Figueroa
Corridor. Her body had been left in an alley near 88th Street
and Figueroa. Her pants had been pulled down to her ankles.
She had “massive facial trauma” and multiple abrasions. The
injuries were consistent with her face being pushed or dragged
across a rough surface. She died of strangulation, likely
manual. Bunn had a history of cocaine abuse, and the drug was
found in her system. She was in the early stages of pregnancy.
Crime scene investigators compiled a sexual assault kit.
Although it was destroyed in 1996, some evidence was retained,
including a bloody tissue found four or five feet from the body.
DNA obtained from the tissue matched defendant’s profile, with
a random match probability of one in one quintillion.
b. Sexual Assault of Carla W.
After midnight in October 1996, 22-year-old Carla W. was
walking alone in downtown Los Angeles. A man grabbed her by
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the arm and crotch. He tried to pull her into a nearby alley but
she struggled and screamed. When a patrol car drove by, he
fled. Later that night, Carla identified defendant as her
attacker and did so again in court.
c. Resisting Arrest
In March 1997, the police tried to interview defendant
about a possible parole violation. When two officers came to his
motel room, defendant answered the door but refused to put his
hands behind his head for a weapons check. Officers attempted
to handcuff him but he ran, dragging the officers 10 to 20 yards
down a hallway and into the parking lot. Kicking one officer
several times in the chest and leg, he tried to grab the officer’s
gun, then broke free and fled. When a search dog alerted near
a woodpile, the officers ordered defendant to emerge. He rose
from his hiding place then hit the search dog with a nearby
fiberglass sink. The dog bit him in response. Defendant ran at
the officers, charging ahead even after being struck with six
rounds from a beanbag shotgun. Following another violent
struggle, defendant was finally taken into custody.
d. Threatening a Deputy
In May 2006, while in county jail awaiting trial, defendant
confronted Deputy Natalie Uyetatsu, the only female deputy
assigned to his area. Angry because Uyetatsu had put him on
lockdown, defendant told another inmate he would kill Uyetatsu
if he was found guilty of the pending charges. The inmate
thought the threat was serious because defendant seemed to
hate women.
2. Mitigating Evidence
Defendant’s mother, Audrey Turner, described his
upbringing. She raised defendant alone from the time he was a
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year old. She worked full time while a friend watched her son.
They moved from Arkansas to California when defendant was
four. He was a fun-loving child but struggled in school, often
getting into trouble. Defendant went to live with his father in
Arkansas but returned after a year. His father provided no
financial or emotional support.
When defendant was 14, Ms. Turner had a second son,
Anthony. Soon thereafter she began working a second job.
Friends helped with babysitting until Ms. Turner’s father
arrived to help in 1984. Defendant eventually dropped out of
high school and worked as a pizza delivery driver. When he was
17, his mother insisted he leave the home due to his drinking
and drug use, but she let him return while he recovered from a
gunshot injury. During that time, defendant treated his mother
well. He helped her with her cleaning job and cooked and
cleaned for the family.
In 1991, Ms. Turner moved to Salt Lake City. Anthony
stayed behind to finish the school year, then joined his mother.
Each summer, Anthony stayed in California with defendant,
who was his primary caretaker. Defendant warned his brother
to stay in school and keep out of trouble.
Defendant had four children who loved him. He was
unable to support them because he was often in custody. His
mother helped raise the children in Salt Lake City.
II. DISCUSSION
A. Pretrial Issues
1. DNA Issues
The court denied defendant’s pretrial motion under People
v. Kelly (1976) 17 Cal.3d 24 (Kelly) to exclude evidence about the
DNA matches and their statistical significance. Defendant now
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makes two related arguments concerning this ruling. First, he
contends the court erred in admitting random match probability
numbers because this statistic is not a generally accepted
measure of significance in “cold hit”4 DNA cases. (See Kelly, at
p. 30.) Building on this argument, defendant next asserts that
insufficient evidence supports the guilt verdicts because the jury
heard no evidence of the rarity of his DNA profile. The first
argument was rejected in People v. Nelson (2008) 43 Cal.4th
1242 (Nelson). Defendant does not persuade us that Nelson was
wrongly decided. Defendant’s second argument fails because, as
Nelson and other cases have explained, random match
probability is an expression of a DNA profile’s rarity in the
population. Because the jury was given this statistic, it was able
to evaluate the probative value of the DNA matches in
determining his guilt.
a. Background
“Forensic DNA analysis is a comparison of a person’s
genetic structure with crime scene samples to determine
whether the person’s structure matches that of the crime scene
sample such that the person could have donated the sample.”
4
A “cold hit case,” sometimes called a “trawl case,”
colloquially refers to a case in which “the DNA match itself made
the defendant a suspect, and the match was discovered only by
searching through a database of previously obtained DNA
samples.” (Donnelly & Friedman, DNA Database Searches and
the Legal Consumption of Scientific Evidence (1999) 97 Mich.
L.Rev. 931, 932.) Cold hit cases may be contrasted with
traditional “confirmation cases,” in which other types of
evidence pointed to the defendant as a suspect and warranted
testing his DNA against crime scene samples. (Ibid.; see Kaye,
Rounding Up the Usual Suspects: A Legal and Logical Analysis
of DNA Trawling Cases (2009) 87 N.C. L.Rev. 425, 428 (Kaye).)
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(Nelson, supra, 43 Cal.4th at pp. 1257–1258.) As discussed,
scientists examine specific loci that are highly variable among
individuals. A match is declared when DNA sequences in the
samples being compared are identical at all loci. Here,
prosecution experts found matches between defendant’s DNA
and crime scene DNA for each victim at 13 different loci.
Defendant does not dispute the accuracy of this part of the
analysis.
“Once a match is found, the next question is the statistical
significance of the match.” (Nelson, supra, 43 Cal.4th at
p. 1258.) This number helps the jury evaluate how much weight
it should give to evidence of a match. A match would be of little
significance if the genetic profile were shared by many others in
the population. (People v. Venegas (1998) 18 Cal.4th 47, 82
(Venegas).) The concept is frequently explained in terms of “how
unlikely it is that the crime scene samples came from a third
party who had the same DNA pattern as the suspect.” (People
v. Barney (1992) 8 Cal.App.4th 798, 809 (Barney).) In other
words, the question is: “Given that the suspect’s known sample
has satisfied the ‘match criteria,’ what is the probability that a
person chosen at random from the relevant population would
likewise have a DNA profile matching that of the evidentiary
sample?” (People v. Soto (1999) 21 Cal.4th 512, 523 (Soto).) The
smaller the odds that a match could be found at random in the
relevant population, the greater the evidentiary weight of a
suspect’s match. (Venegas, at p. 82.)
“Experts use a statistical method called the ‘product rule’
to calculate the rarity of the sample in the relevant population.”
(Nelson, supra, 43 Cal.4th at p. 1259.) We have discussed this
calculation in detail previously and need only summarize it
here. In short, examiners first determine the frequency of
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alleles at each locus using population databases, then multiply
the frequencies of all loci together, generating a statistic that
reflects the probability that an individual will have the complete
profile across all loci studied. (Ibid.; Soto, supra, 21 Cal.4th at
p. 525.) As in other cases involving a match across many loci,
application of the product rule here produced “astronomical
odds” (Nelson, at p. 1259): one in one quintillion according to
the LAPD expert, and one in 6.725 quintillion according to the
Cellmark expert. Earth’s total population at the time of trial
was around six and a half billion people.
Under the Kelly test, when expert testimony relies on “ ‘a
new scientific technique,’ ” the proponent must establish “that
the technique is ‘ “sufficiently established to have gained
general acceptance in the particular field to which it belongs” ’
(quoting Frye [v. United States (D.C. Cir. 1923)] 293 F. [1013,]
1014, italics omitted).” (Venegas, supra, 18 Cal.4th at p. 76; see
Kelly, supra, 17 Cal.3d at p. 30.) Reliability need not be
relitigated in every case. “[O]nce a trial court has admitted
evidence based upon a new scientific technique, and that
decision is affirmed on appeal by a published appellate decision,
the precedent so established may control subsequent trials, at
least until new evidence is presented reflecting a change in the
attitude of the scientific community.” (Kelly, at p. 32.)
We have considered whether evidence calculated by the
product rule satisfies Kelly’s reliability requirement in several
cases. Venegas held that a modified version of the product rule
known as the interim ceiling principle was “ ‘artificially
conservative,’ ” yet it was a generally accepted method for
calculating the significance of a DNA match while also
compensating for any possible effect caused by population
substructuring. (Venegas, supra, 18 Cal.4th at p. 89; see
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Barney, supra, 8 Cal.App.4th at pp. 814–816.)5 Soto determined
concerns about population substructuring had been laid to rest
by later scientific developments and held that use of the
unmodified product rule is generally accepted in the relevant
scientific community as a means of expressing the significance
of a DNA match. (Soto, supra, 21 Cal.4th at pp. 515–516.) Most
recently, Nelson held that the admissibility of evidence based on
the product rule in a cold hit case “is a question of relevance, not
scientific acceptance,” thus obviating the need for a Kelly
inquiry. (Nelson, supra, 43 Cal.4th at p. 1260.) We further held
that the product rule provides relevant and admissible evidence
in cold hit cases. (Ibid.)
b. Admissibility of Random Match
Statistics
Defendant was initially identified as a suspect based on
cold hits in the state’s database of convicted offenders.6
5
In the early days of forensic DNA analysis, population
geneticists were concerned that nonrandom mating within
subgroups would undermine the product rule’s assumption that
alleles at different loci were statistically independent. (See
Barney, supra, 8 Cal.App.4th at p. 815.)
6
No information about the database search was presented
at trial. In an early court appearance, the prosecutor explained
how defendant was identified. When DNA samples preserved
from various unsolved cases were uploaded to the state’s
offender database, defendant’s profile was found to match crime
scene evidence in the Beasley and Vance cases. After learning
of the matches, investigators identified approximately 25
unsolved murder cases with preserved biological evidence that
appeared to be sexually motivated killings of women in the
geographic region where defendant “either lived, worked[,] or
was known to associate.” DNA evidence from these cases was
then uploaded to the database, and eight more matches were
made to defendant’s profile. The Attorney General argues this
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Renewing the arguments we rejected in Nelson, he claims the
random match probability statistic generated by the product
rule does not accurately convey the significance of a DNA match
derived from searching an offender database. He also disputes
the relevance of this statistic in the cold hit context. Because
defendant insists Nelson was wrongly decided, we discuss that
case in some detail.
Nelson was identified as a suspect when DNA evidence
from a 26-year-old murder was uploaded to the state’s offender
database. (Nelson, supra, 43 Cal.4th at pp. 1248–1249.)
Further testing confirmed the database match. (Id. at p. 1249.)
At Nelson’s trial, the prosecution expert testified that the 15-loci
match profile would occur at random in only one in 950 sextillion
African-Americans, one in 130 septillion Caucasians, or one in
930 sextillion Hispanics. (Ibid.)7 Challenging these statistics,
Nelson conceded the product rule is a generally accepted method
for calculating the odds of a random match when a suspect’s
DNA is compared to crime scene evidence. (See Soto, supra, 21
Cal.4th at p. 541.) But he argued scientists disagree as to
whether the method is an appropriate way to assess the
significance of a match when the suspect is not identified at
random but is instead found through a database search.
is not a pure cold hit case because the second database search
was conducted after other evidence pointed to defendant as a
suspect. Even so, we address defendant’s arguments because it
is clear the initial identification was based exclusively on a
database match.
7
The LAPD DNA Unit did not report random match
probabilities broken down by racial population subgroups.
Defendant does not argue this omission was error, nor does he
contend the distinction alters Nelson’s force as precedent here.
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(Nelson, at pp. 1259–1260.) Defendant makes the same
argument here.
The challenges are premised on the idea that reported
statistics should avoid “ ‘ascertainment bias,’ ” which can result
when repeated testing of a hypothesis imbues a particular result
with more significance than it warrants. (Kaye, supra, 87 N.C.
L.Rev. at p. 454.) For example, while the odds of winning a
lottery are very small, a winner will likely be found if everyone
who actually bought a lottery ticket is considered. (See 4
Faigman et al., Modern Scientific Evidence: The Law and
Science of Expert Testimony (2019–2020 ed.) § 30:20) “The
probability [of winning], while remote, is not impossible, and
looking in a pool of people, rather than just picking a person at
random, affects the likelihood that you will find what you are
looking for.” (Ibid.) Ascertainment bias also describes “the bias
that exists when one searches for something rare in a set
database.” (U.S. v. Jenkins (D.C. 2005) 887 A.2d 1013, 1018–
1019 (Jenkins).)8 In the DNA context, for example, “if the
frequency of a given profile is expected to occur in 1 out of every
100,000 people, the chances of finding a match increase if one
searches a database with 50,000 entries versus a database with
only 10 entries.” (Jenkins, at p. 1018, fn. 8.)
Four methods have been proposed for expressing the
statistical significance of a match following a database search.
Only three need be considered here.9 One method, the random
8
While the Jenkins opinion is not binding precedent, we
find its analysis persuasive and its explanations of these
complex concepts helpful.
9
One proposal is not a statistical calculation but a different
approach to testing. The first National Research Council report
on forensic DNA analysis suggested ascertainment bias could be
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Opinion of the Court by Corrigan, J.
match probability statistic, is calculated by the unmodified
product rule, which calculates the rarity of a match in the
population. (Nelson, supra, 43 Cal.4th at p. 1261; see Soto,
supra, 21 Cal.4th at pp. 515–516.) An alternative proposal
begins with the rarity of the profile in the general population,
the statistic generated by the product rule, then multiplies that
number by the number of profiles in the database searched.
(Nat. Research Council, DNA Technology in Forensic Science
(1996) pp. 134–135.) The result reflects the probability of
finding a match in a particular database and is frequently called
the database match probability. (See Nelson, at p. 1262;
Jenkins, supra, 887 A.2d at p. 1020.) By definition, it will
always be a larger number than the rarity statistic alone, and
thus more favorable to the defendant. The last approach, often
called the Balding-Donnelly or Bayesian method, differs from
the others in its premise that a database match is more
significant than a confirmatory match. This model reasons that
a database search not only identifies a match but also
“simultaneously eliminates other profiles as being the source of
avoided by using one set of loci to identify a suspect in a
database and then examining a different set of loci to confirm
the match. (Nat. Research Council, DNA Technology in
Forensic Science (1992) p. 124.) Because this approach would
use fewer loci than actually matched in determining
significance, product rule calculations would result in shorter,
perhaps “unnecessarily conservative,” odds. (Nelson, supra, 43
Cal.4th at p. 1261.) Defendant does not challenge Nelson’s
observation that this approach “ ‘is no longer accepted or
followed by the relevant scientific community.’ ” (Id. at p. 1262,
quoting Jenkins, supra, 887 A.2d at p. 1022, fn. 17.)
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the sample,” thus increasing the likelihood the identified person
is the actual source. (Jenkins, at p. 1020.)10
After reviewing these different approaches, Nelson
observed that while there was “some disagreement among
experts as to which of these methods is the best, i.e., the most
probative, way to judge the significance of a cold hit” from a
database search, “the question before us is not what technique
is ‘best,’ but whether use of the product rule in a cold hit case is
permissible.” (Nelson, supra, 43 Cal.4th at p. 1263.) The
product rule had already been approved as a reliable method for
calculating the rarity of a DNA profile in the relevant population
(see Soto, supra, 21 Cal.4th at pp. 515–516), and we observed
that the rule’s use in a cold hit case did not convert it into a new
scientific technique requiring further Kelly scrutiny. (Nelson, at
pp. 1263–1264.) On the contrary, the real questions here
10
Professor Kaye illustrates this reasoning by contrasting a
database trawl with a hypothetical drug company that conducts
20 clinical trials and achieves success in only one, but then
reports that one success “as if there had been no search.” (Kaye,
supra, 87 N.C. L.Rev. at p. 469.) In the drug trial context, “the
omitted information contradicts the company’s claim of
therapeutic effectiveness. In contrast, if all the other clinical
trials were consistent with the company’s claim, the failure to
mention them would not prejudice the case for approving the
drug. The trawl case is similar to a series of successful clinical
trials . . . . The additional evidence — that everyone else in the
database is excluded — is consistent with the claim of
defendant’s guilt. The lack of other hits in the database trawl
therefore has an effect opposite to that of the lack of other
significant differences in the clinical trials. It supplies
compatible rather than contradictory data.” (Ibid., italics
added.) According to this reasoning, ascertainment bias is not
a problem that needs correction in database search cases. (Id.
at pp. 469–472.)
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Opinion of the Court by Corrigan, J.
concern relevance, not the reliability of methodology. (Id. at
p. 1264.) As the Jenkins court explained: “At the heart of this
debate is a disagreement over the competing questions to be
asked, not the methodologies used to answer those questions.
The rarity statistic, the database match probability, and the
Bayesian approach each answer unique and potentially relevant
questions. More importantly, there is no controversy in the
relevant scientific community as to the accuracy of the various
formulas. In other words, the math that underlies the
calculations is not being questioned. Each approach to
expressing significance of a cold hit DNA match accurately
answers the question it seeks to address. The rarity statistic
accurately expresses how rare a genetic profile is in a given
society. Database match probability accurately expresses the
probability of obtaining a cold hit from a search of a particular
database. Bayesian analysis accurately expresses the
probability that the person identified through the cold hit is the
actual source of the DNA in light of the fact that a known
quantity of potential suspects was eliminated through the
database search. These competing schools of thought do not
question or challenge the validity of the computations and
mathematics relied upon by the others. Instead, the arguments
raised by each of the proponents simply state that their
formulation is more probative, not more correct. Thus, the
debate . . . is one of relevancy, not methodology . . . .” (Jenkins,
supra, 887 A.2d at pp. 1022–1023, fn. omitted, italics added; see
Nelson, at p. 1264.)
Relevant evidence is that “having any tendency in reason
to prove or disprove any disputed fact.” (Evid. Code, § 210.)
Generally, all relevant evidence is admissible unless otherwise
provided by statute. (Evid. Code, § 351.) If admitted, the trier
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Opinion of the Court by Corrigan, J.
of fact determines the weight it gives to that evidence. Two
sources of relevant evidence may potentially conflict or lead to
opposite conclusions. Evidence may be relevant but found
unpersuasive. A jury hearing competing relevant evidence will
ultimately have to determine what weight, if any, to give each.
“Relevance” describes whether evidence should be heard
because it might reasonably resolve a dispute. “Weight”
describes the degree to which the jury finds the evidence
probative.
“Relevancy is a legal issue for courts to answer.” (Nelson,
supra, 43 Cal.4th at p. 1265.) While deference to scientists is
appropriate on scientific questions, determining the relevance of
evidence “ ‘is a hallmark responsibility of the trial judge and
that responsibility is not appropriately delegated to parties
outside the court.’ (Jenkins, supra, 887 A.2d at p. 1025.)” (Id.
at p. 1265.) Nelson concluded the statistical rarity of the DNA
profile, calculated by the product rule, is relevant in cold hit
cases. (Id. at p. 1267.) We see no basis to depart from that
conclusion. To be sure, a defendant remains free to present
evidence that the product rule statistic should be given less
weight because some experts have concerns about its persuasive
value due to ascertainment bias. But defendant did not attempt
to do so here, nor did he offer evidence of an alternative measure
of statistical significance, such as database match probability.11
11
Nelson left open the possibility that database match
probability might also be admissible in an appropriate case.
(Nelson, supra, 43 Cal.4th at p. 1267, fn. 3.) Defendants may
indeed seek to introduce such evidence, particularly in cases
where the database searched was especially large. As with the
other measures of statistical significance, the trial court may, of
course, consider an Evidence Code section 352 objection that the
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Opinion of the Court by Corrigan, J.
i. Applicability of the Kelly Test
Defendant first asserts that Nelson misapplied California
law because, contrary to Venegas and Soto, the court exempted
a category of DNA statistics from Kelly analysis despite an
ongoing scientific controversy. This argument misconstrues
both our prior precedents and Nelson’s holding. The issue in
Venegas and Soto was whether the product rule was a reliable
measure of a DNA profile’s rarity or whether some modification
was needed to account for population substructuring and other
issues. But, critically, both the unmodified product rule and the
modified ceiling approach are statistical formulae designed to
answer the same question: How frequently can we expect a
specific profile to appear in the relevant population? As
discussed, the alternative statistical models proposed for cold
hit cases are each answering a different question. We adhere to
the view that admissibility of the random match statistic in
these cases presents an issue of relevance, not scientific
reliability.
Defendant argues Nelson misconstrued the scientific
debate. He contends the issue is not one of legal relevance but
of science, because the various methodologies all seek to answer
the question: What is the correct way to statistically account for
ascertainment bias? Defendant merely repeats the arguments
made in Nelson. It is evident that experts disagree about what
information would be most helpful to the factfinder in
evaluating a cold hit DNA match. Frequentists believe juries
should be told the probability of finding a match in the offender
relevance of the database match probability statistic is
outweighed by a substantial possibility of juror confusion or
undue consumption of time.
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Opinion of the Court by Corrigan, J.
database because the database trawl makes the match to the
defendant less significant. (See Kaye, supra, 87 N.C. L.Rev. at
p. 460.) Bayesians believe the database match itself “has
considerable probative value” and does not reduce the
significance of the match to the defendant. (Id. at p. 471.) But,
as Nelson observed, the dispute among these statisticians
concerns not which information is correct, but which
information is “the best, i.e., the most probative, way to judge
the significance of a cold hit.” (Nelson, supra, 43 Cal.4th at
p. 1263.) Relevance, and hence admissibility, is a question for
the court. (Id. at p. 1265.) Probative value, or weight, is an issue
for the jury to decide.
Defendant’s renewed arguments do not persuade us that
a Kelly hearing was required. He cites no case agreeing with his
position. It appears all published decisions considering the
issue have concluded the product rule statistic is admissible in
cold hit cases without a Kelly hearing or the equivalent. (See
U.S. v. Davis (D.Md. 2009) 602 F.Supp.2d 658, 676–677;
Commonwealth v. Bizanowicz (2011) 459 Mass. 400, 407–409
[945 N.E.2d 356, 362–363]; State v. Bartylla (Minn. 2008) 755
N.W.2d 8, 20; Jenkins, supra, 887 A.2d at pp. 1023–1025; see
also Crews v. Johnson (W.D.Va. 2010) 702 F.Supp.2d 618, 639
[opining that database match probability should also have been
admitted, but finding no error in admission of product rule’s
rarity statistic because it was “clearly probative of guilt”].)
Indeed, the Massachusetts Supreme Judicial Court
persuasively observed that excluding evidence of the rarity
statistic would eviscerate the purpose for which offender
databases have been created. (Bizanowicz, at p. 408.) “DNA
evidence from convicted offenders whose DNA is stored in a
CODIS [(Combined DNA Index System)] database could never
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Opinion of the Court by Corrigan, J.
be used at trial unless it was obtained without using the CODIS
database.” (Id. at pp. 408–409.)
Nor are we persuaded that the denial of a Kelly hearing
was erroneous because of the trial court’s reasoning. The court
found it significant that the database match here was confirmed
by later testing, comparing the cold hit to a confidential
informant who initiates the investigation of a particular subject.
Similar reasoning appeared in People v. Johnson (2006) 139
Cal.App.4th 1135, where the Court of Appeal observed that a
“database search merely provides law enforcement with an
investigative tool, not evidence of guilt.” (Id. at p. 1150.)
Reasoning that proof of guilt depends upon the confirmatory
match between a defendant’s profile and that of the perpetrator,
the court concluded a defendant’s initial identification “as a
possible suspect based on a database search simply does not
matter.” (Id. at p. 1151.) The trial court disclaimed reliance on
Johnson, which was not yet final at the time of its ruling.
Nevertheless, defendant argues Johnson was wrongly decided
and could not properly support denial of a Kelly hearing. We
need not consider the validity of Johnson’s holding. Our task is
to review the trial court’s ruling, not its reasoning. “ ‘No rule of
decision is better or more firmly established by authority, nor
one resting upon a sounder basis of reason and propriety, than
that a ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If
right upon any theory of the law applicable to the case, it must
be sustained regardless of the considerations which may have
moved the trial court to its conclusion.’ ” (D’Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1, 19.) The court’s ruling
here was sound.
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Opinion of the Court by Corrigan, J.
ii. Relevance of the Profile’s Rarity
Defendant also disagrees with Nelson’s holding that the
generally accepted product rule statistic is relevant in cold hit
cases. Our discussion of this issue relied heavily on Jenkins,
supra, 887 A.2d 1013. First, Nelson agreed with Jenkins that
“in a non-cold-hit case, the number derived from the product
rule ‘represents two concepts: (1) the frequency with which a
particular DNA profile would be expected to appear in a
population of unrelated people, in other words, how rare is this
DNA profile (“rarity statistic”), and (2) the probability of finding
a match by randomly selecting one profile from a population of
unrelated people, the so-called “random match probability.” ’
(Jenkins, [] at p. 1018.)” (Nelson, supra, 43 Cal.4th at p. 1266.)
The government in Jenkins had conceded that when a match is
the result of a database search, the number derived from the
product rule is no longer an accurate expression of the
probability of finding a matching profile by chance. (Ibid.; see
Jenkins, at p. 1018 & fn. 7.) This is essentially the same
argument defendant makes here. Even accepting the
government’s concession that random match probability was not
an applicable principle in cold hit cases, Jenkins explained that
the “same product rule number . . . still accurately expresses the
rarity of the DNA profile.” (Jenkins, at p. 1018, fn. 7.) Although
the database search might alter the probability of finding a
match, it does not change how rare a specific profile is among
humans. (See Nelson, at pp. 1266–1267; Jenkins, at pp. 1018–
1019.) We held that this expression of rarity is relevant in cold
hit cases just as it is when the defendant has been identified by
other means. (Nelson, at p. 1267.)
Defendant contends the rarity statistic loses all relevance
when there has been a database search. That argument fails.
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Opinion of the Court by Corrigan, J.
In light of “modern DNA technology and statistical methods,”
the rarity of a matching profile is relevant no matter how the
suspect was first located. (Nelson, supra, 43 Cal.4th at p. 1267.)
If a profile is extremely rare, as is increasingly likely the more
loci are examined, “[i]t is relevant for the jury to know that most
persons of at least major portions of the general population could
not have left the evidence samples.” (People v. Wilson (2006) 38
Cal.4th 1237, 1245.) The rarity of the evidence profile has a
tendency to prove that the defendant, who has a matching
profile, was the source of the evidence at the crime scene. This
test for relevance is met regardless of how the defendant was
first identified. The product rule statistic “refer[s] to the
perpetrator’s profile and [is] therefore . . . unaffected by any
particular defendant or suspect.” (People v. Xiong (2013) 215
Cal.App.4th 1259, 1274 (Xiong).) It informs the jury “how few
people are likely to have this profile.” (Ibid.) The product rule
statistic therefore provides relevant evidence, although its
admissibility, as with all relevant evidence, may be subject to an
Evidence Code section 352 analysis.
Defendant contends random match probability is not
relevant in cold hit cases because a match resulting from a
database search is not “random.” Whereas random match
probability is appropriate if only one person is tested, defendant
insists the statistic is inapt when a potentially large number of
profiles are tested in a database trawl. This argument focuses
on the odds of finding a match in a database, relying on the
assertion that the more profiles are compared against the
evidence sample, the greater the likelihood a match will
ultimately be found. The assertion may be accurate, but it does
not assist defendant here. If a suspect’s profile is compared to a
database of 10, it may be quite unlikely that the suspect’s profile
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Opinion of the Court by Corrigan, J.
will happen to match one of those 10 profiles. But if the
database is expanded to 10,000, the chances of a successful
match increase because there are more opportunities for a
match. That the opportunities for a match increase as the
database size grows does not mean the database trawl itself
injects error, nor does it cast doubt on the fact that the suspect’s
DNA has been found to match crime scene evidence.
When the random match probability statistic is very
small, such as the one in one quintillion figure calculated by the
LAPD’s DNA Unit in this case, the probability of finding a match
in an offender database will generally not be germane to an
issue the jury must decide.12 In such cases, the relevance of
asking how likely it is that someone in the database committed
the crime is eclipsed by the issue of how likely it is that someone
other than the defendant could have been the source of the
evidence samples. This latter question is addressed by a
statistic that measures the prevalence of a DNA profile in the
entire population of potential suspects. (See Xiong, supra, 215
Cal.App.4th at pp. 1274–1275.) Thus, the statistic generated by
the product rule, which describes the rarity of the DNA profile
12
We reaffirm, however, that trial courts have discretion to
permit evidence of database match probability in an appropriate
case. Database match probability is relevant in some
circumstances. For example, a profile’s random match
probability may be relatively high if a degraded crime scene
sample provides only a few loci for testing. In such a case, there
is a significant chance that a “match” based on those few loci
could be found in a large database by coincidence, even though
the individual had nothing to do with the crime. (Chin et al.,
Forensic DNA Evidence: Science and the Law (The Rutter
Group 2019) § 5:4.) Database match probability is a way of
conveying this concept.
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Opinion of the Court by Corrigan, J.
shared by the perpetrator and the defendant, is relevant even in
cold hit cases. (Chin et al., Forensic DNA Evidence: Science and
the Law, supra, § 5:4.) Of course, defendants remain free to
challenge the probative value of this statistic through
objections, cross-examination, or the introduction of other
evidence, such as database match probability, and trial courts
may give clarifying jury instructions when appropriate.
c. Sufficiency of Evidence Regarding DNA
Profile Rarity
Building on his previous arguments, defendant claims
insufficient evidence supports the verdicts because the jury only
heard evidence of random match probability, not rarity. It is
true that the prosecution experts typically described statistical
significance in terms of “the probability of a random match of
unrelated individuals.” But this information did convey
essential facts about the significance of the matches between
defendant’s profile and crime scene DNA. The rarity of a DNA
profile and random match probability are two different ways of
expressing the meaning of the same statistic calculated using
the product rule, and it is ultimately the statistic that is
relevant. (See Nelson, supra, 43 Cal.4th at p. 1266.) Defendant
incorrectly asserts that Nelson disapproved use of random
match probability in cold hit cases. Nelson recited the Jenkins
court’s observation that “ ‘the product rule number no longer
accurately expresses the random match “probability” ’ ” in cold
hit cases. (Nelson, at p. 1266, quoting Jenkins, supra, 887 A.2d
at p. 1018, fn. 7.) But the statement simply acknowledged that
the defendant in a cold hit case has been identified by a database
search and not selected “at random.” Although the concept of
“random match probability” is not directly applicable when the
defendant has been identified by a database search, and the
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Opinion of the Court by Corrigan, J.
defendant may point this out at trial, the statistic generated by
the product rule continues to have relevance in cold hit cases
because it expresses rarity. Nelson did not suggest otherwise.
On the contrary, Nelson held, and we reaffirm, that the statistic
generated by the product rule provides relevant and admissible
evidence in cold hit as well as confirmatory match cases.
(Nelson, at pp. 1266–1267.)13
Here, one expert told the jury that the probability a
random person, unrelated to defendant, would match DNA left
at each crime scene was one in one quintillion. Another expert
set the probability at one in 6.725 quintillion. Even though
phrased in “random match” language, the point of these product-
rule-derived statistics was clearly to convey the rarity, if not
uniqueness, of the 13-loci profile. The evidence was properly
admitted and constitutes substantial evidence in support of the
verdicts.
2. Excusal of Prospective Jurors for Cause
Defendant next argues two prospective jurors were
improperly dismissed from the venire based on their views about
the death penalty. The dismissals were permissible.
Criminal defendants have a constitutional right to an
impartial jury, and “a prospective juror’s personal views
13
Trial courts and parties have tools available to address
any possible confusion arising from the use of “random match”
terminology in cold hit cases. If there is a risk jurors might
mistakenly think the defendant was identified at random,
rather than from a database search, the concept can be clarified
through cross-examination, additional evidence, and/or jury
instructions. Defendant did not object on this ground below, nor
did he seek to present evidence about the database searches by
which he was located.
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Opinion of the Court by Corrigan, J.
concerning the death penalty do not necessarily afford a basis
for excusing the juror for bias.” (People v. Martinez (2009) 47
Cal.4th 399, 425 (Martinez).) Instead, consistent with the
constitutional imperative, prospective jurors may be dismissed
for cause only if their views on capital punishment “ ‘would
“ ‘prevent or substantially impair’ ” the performance of [their]
duties as defined by the court’s instructions and [their] oath.’
(People v. Cunningham (2001) 25 Cal.4th 926, 975; see
Wainwright v. Witt (1985) 469 U.S. 412, 424; Witherspoon v.
Illinois (1968) 391 U.S. 510, 521–522.)” (People v. Winbush
(2017) 2 Cal.5th 402, 424 (Winbush).) A prospective juror’s bias
against the death penalty need not be shown with unmistakable
clarity. (People v. Abilez (2007) 41 Cal.4th 472, 497.) “Jurors
commonly supply conflicting or equivocal responses to questions
directed at their potential bias or incapacity to serve.”
(Martinez, at p. 426.) Indeed, “many prospective jurors ‘simply
cannot be asked enough questions to reach the point where their
bias has been made “unmistakably clear”; these [prospective
jurors] may not know how they will react when faced with
imposing the death sentence, or may be unable to articulate, or
may wish to hide their true feelings.’ ” (People v. Beck and Cruz
(2019) 8 Cal.5th 548, 607 (Beck and Cruz).) Nevertheless, a
dismissal for cause is appropriate if, “after examining the
available evidence, . . . the trial court [is] left with a definite
impression that the prospective juror is unable or unwilling to
faithfully and impartially follow the law.” (People v. Thompson
(2016) 1 Cal.5th 1043, 1066 (Thompson).)
Our review in this area is necessarily deferential because
“the trial court, through its observation of the juror’s demeanor
as well as through its evaluation of the juror’s verbal responses,
is best suited to reach a conclusion regarding the juror’s actual
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Opinion of the Court by Corrigan, J.
state of mind.” (People v. Jones (2012) 54 Cal.4th 1, 41; see
Uttecht v. Brown (2007) 551 U.S. 1, 7.) In applying deferential
review, “appellate courts recognize that a trial judge who
observes and speaks with a prospective juror and hears that
person’s responses (noting, among other things, the person’s
tone of voice, apparent level of confidence, and demeanor),
gleans valuable information that simply does not appear on the
record.” (People v. Stewart (2004) 33 Cal.4th 425, 451 (Stewart).)
Accordingly, the trial court’s determination as to the juror’s true
state of mind is binding on appeal if supported by substantial
evidence. (Thompson, supra, 1 Cal.5th at p. 1066; Martinez,
supra, 47 Cal.4th at pp. 426–427.)
a. Prospective Juror No. 4
In her jury questionnaire, Prospective Juror No. 4 said she
was moderately in favor of the death penalty, and her responses
evinced a general willingness to impose death in an appropriate
case. When asked to consider this particular case, however, the
juror’s confidence faltered. The questionnaire asked whether,
depending on the evidence and circumstances presented, jurors
could impose the death penalty in a case involving a multiple
murder allegation. Instead of circling “yes” or “no,” Prospective
Juror No. 4 wrote “possibly.” The court probed this response in
voir dire, asking whether the juror could impose the death
penalty in a case involving allegations of multiple murder and
murder in the course of a rape. She responded, “I’d have to hear
everything,” and “I am open.” However, after the court finished
its question with the phrase “could you actually vote for death,”
Prospective Juror No. 4 said, “I would not vote for death.” The
questioning continued:
“THE COURT: I’m sorry. You would not?
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Opinion of the Court by Corrigan, J.
“PROSPECTIVE JUROR NO. 4: No. I’d have to listen to
everything and, you know, get an understanding and the good
and the bad and all of that.
“THE COURT: All right.
“PROSPECTIVE JUROR NO. 4: And it would be a hard
decision to say now.
“THE COURT: There are some people that believe in the
death penalty, support it but cannot participate in the process.
“PROSPECTIVE JUROR NO. 4: Right.
“THE COURT: Is that you? You could not vote for death,
no matter what the evidence is in the penalty phase?
“PROSPECTIVE JUROR NO. 4: Possibly, yeah.”
Later in voir dire, the prosecutor explained that there is
no burden of proof at the penalty phase, but jurors must make
“a moral decision and . . . a choice.” She then asked Prospective
Juror No. 4 about her ability to make such a choice:
“MS. DO: And so given some of the reluctance that I’m
seeing in you, knowing that it’s a choice, do you think that if you
have the option of giving a person, a human being[,] life without
parole, that you would always choose that?
“PROSPECTIVE JUROR NO. 4: I have a hard time
putting someone to death. Most likely my choice would be the
life in prison.
“MS. DO: Okay.
“PROSPECTIVE JUROR NO. 4: I would have a hard
time with the other.
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Opinion of the Court by Corrigan, J.
“MS. DO: All right. So do you think that you might, if
we get to penalty phase, walk in predisposed to life without
parole?
“PROSPECTIVE JUROR NO. 4: Most likely, yes.
“MS. DO: Okay. And would the prosecution have quite a
burden to prove to you that death would be appropriate to
overcome that predisposition?
“PROSPECTIVE JUROR NO. 4: Yeah.”
In granting the prosecution’s motion to dismiss
Prospective Juror No. 4, the court remarked that it had noticed
the juror’s “body language as she was answering the questions,
and she seemed to be very tightly drawn, is what I would say.
That’s a bad description, but not open and free with her feelings
about it but somewhat defensive about it.” Although the juror
had said on the questionnaire that she could “possibly” impose
the death penalty, in oral questioning she made it “awfully
clear,” in the court’s opinion, that she would not actually do so.
Based on the juror’s demeanor and responses in voir dire, the
court concluded “she would not fairly impose the death penalty.”
Substantial evidence supports this decision. Although the
juror may have supported the death penalty in theory, her voir
dire responses made it clear she felt great reluctance about
actually voting to impose it. We considered a similar record in
People v. Solomon (2010) 49 Cal.4th 792 (Solomon). There, we
deferred to the trial court’s finding of substantial impairment
regarding a prospective juror who expressed support for the
death penalty in her questionnaire but later equivocated about
whether she could ultimately vote to sentence someone to death.
(Id. at pp. 835–836.) Similarly, in People v. Cunningham, supra,
25 Cal.4th at page 981, we upheld the dismissal of a prospective
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Opinion of the Court by Corrigan, J.
juror who said “she believed in the death penalty and would like
to see it applied more often but was not certain whether
personally she could vote for it.”
Deference to the court’s finding of substantial impairment
is particularly appropriate here because the court expressly
based its ruling, in part, on the juror’s “tightly drawn” and
“defensive” body language. (See People v. Manibusan (2013) 58
Cal.4th 40, 73.) This demeanor, combined with the juror’s
repeatedly expressed doubts about whether she could impose a
death sentence, could support a “definite impression” that the
juror would be unwilling or unable “to faithfully and impartially
apply the law.” (Wainwright v. Witt, supra, 469 U.S. at p. 426;
see People v. Nunez and Satele (2013) 57 Cal.4th 1, 24.)
Stewart, supra, 33 Cal.4th 425 does not compel a different
result. There, we held it was error to dismiss jurors based solely
on brief written comments and a check mark next to a box
indicating their views “would either ‘prevent or make it very
difficult’ ” to impose the death penalty. (Id. at p. 446.) Here, the
court and prosecutor explored Prospective Juror No. 4’s views in
greater detail. While it is true that a prospective juror is not
disqualified merely because she would find it difficult to impose
the death penalty (id. at pp. 446–447), Prospective Juror No. 4’s
responses to oral questioning indicated not only that she would
have difficulty with the decision but also that she would be
predisposed to voting for a life sentence, regardless of the
evidence presented. Nor is this case like People v. Pearson
(2012) 53 Cal.4th 306, 332, in which the court improperly
dismissed a prospective juror who had no strong views on the
death penalty and gave no indication she would be unable to
perform her duty as a capital juror. The juror’s responses here
indicated she would not be able to impartially apply the law.
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Opinion of the Court by Corrigan, J.
b. Prospective Alternate Juror No. 1
Prospective Alternate Juror No. 1’s questionnaire
responses consistently expressed personal opposition to capital
punishment.14 He checked a box indicating he was strongly
against the death penalty and wrote, “I’m not for death penalty”
in response to the question whether he would always vote guilty
to reach the penalty phase in a capital case. He wrote that he
was “not sure” what purpose the death penalty serves and that
he did not feel it should be used. When asked whether he could
impose the death penalty in a case involving multiple murder,
the juror circled “yes” and wrote, “I will perform my civi[c] duty
but I’m not for it.” He reported that his religious organization
was “anti death penalty” and, though he felt obligated to accept
that view, he could “do what I’m ask[ed] to do” regardless of his
views. Finally, he agreed somewhat that people who
intentionally kill should never get the death penalty, explaining,
“I’m not for the death of anyone.”
In voir dire, the court asked whether Prospective
Alternate Juror No. 1 would always vote against the death
penalty, regardless of the evidence. The juror responded, “Not
always, but I’d say if it was on a scale, it would be more towards
life than death.” When the court asked if he was open to voting
for death, the juror said, “If I have to, . . . I will follow the
instructions,” but in his “personal view,” he “would lean towards
life.” When pressed about whether he could realistically ever
see himself voting for death, the juror responded, “Not really,”
14
Because an alternate juror was selected at random and
seated early in the trial, it does not appear that any error in this
excusal would have been harmless. (See People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 399, fn. 19.)
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Opinion of the Court by Corrigan, J.
and “it would be kind of tough for me.” Nevertheless, he stated
that he could perform his duty as a juror and could vote for death
if the penalty was warranted.
The prosecutor asked whether, given his religious and
moral opposition to the death penalty, Prospective Alternate
Juror No. 1 could “make a decision that would end a man’s life.”
The juror responded, “I’m not sure if I could do that,” adding
that he might not be able to vote for death if the defendant’s
family members were present. The prosecutor explained that
there might be family members in the audience but asked again
whether, regardless of family members, the juror could vote for
death.15 Again, he answered, “I’m not sure.”
The court granted the prosecutor’s cause challenge.
Although the juror said he would “do his duty,” the court found
his answers indicated he would not be able to vote for death,
“especially if there were any people in the courtroom related to
the defendant.” As with Prospective Juror No. 4, this dismissal
is supported by substantial evidence. We recently upheld the
dismissal of a prospective juror who expressed similar doubts
about her ability to impose the death penalty. (Beck and Cruz,
supra, 8 Cal.5th at p. 607.) When a prospective juror repeatedly
says he does not know whether he could realistically impose the
death penalty, we will not second-guess the trial court’s
15
Defendant argues it was “improper” for the prosecutor to
probe the juror’s ability to announce a death verdict in front of
family members. We have repeatedly approved similar lines of
questioning. (See People v. Lynch (2010) 50 Cal.4th 693, 734;
People v. Bramit (2009) 46 Cal.4th 1221, 1235; People v.
Samayoa (1997) 15 Cal.4th 795, 853–854.)
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
determination that the juror is substantially impaired. (See id.
at pp. 607–608; Solomon, supra, 49 Cal.4th at pp. 835–836.)
B. Guilt Phase Issues
1. Third Party Culpability Evidence
Defendant argues the court infringed his constitutional
right to present a defense when it excluded evidence about police
efforts in the Washington case to match a partial shoe print with
a different suspect. The ruling was an appropriate exercise of
discretion.
Shortly before trial, defense counsel announced he
intended to introduce evidence that police had compared a
partial footprint found on Regina Washington’s shirt to the shoe
of another individual. The court deferred ruling, noting
admissibility would depend on the print’s significance in
relation to the crime scene. Trial evidence established that a
partial shoe print outline had been found on the back shoulder
of Washington’s white T-shirt. At an Evidence Code section 402
hearing, a criminalist testified that the shoe print was
approximately one square inch and “of a quality that no further
comparison could be made.” He had compared the print to a
shoe belonging to Ray Anthony Williams and could not
eliminate the shoe as the source of the print. Mr. Williams was
connected to the case by unspecified hearsay evidence, which
was not made part of the record. The prosecution sought to elicit
evidence about the size and quality of the print but argued the
defense should be precluded from inquiring about the Williams
comparison under Evidence Code section 352.16
16
Evidence Code section 352 provides: “The court in its
discretion may exclude evidence if its probative value is
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
The court agreed the evidence would be irrelevant and
inadmissible. It explained, “[T]he problem is this: By making
the comparison, it suggests to the jury that there was a reason
for the comparison, which is hearsay, which is not admissible.
[¶] So you can’t get the reason for doing the comparison in front
of the jury.” The court also denied defendant’s request to ask
more generally whether the print had been compared “to
anybody else” to eliminate them as a suspect, explaining that
the print “doesn’t include or eliminate because it’s not sufficient
to do that. And . . . bringing forth the fact of the comparison, it
suggests that there is more than the actual evidence in the case,
which is the reason for it, which is hearsay.” Defendant now
contends he had a constitutional right to present evidence of the
Williams comparison because it tended to show a third party
committed the Washington murder.
Like all other evidence, third party culpability evidence
may be admitted if it is relevant and its probative value is not
substantially outweighed by the risk of undue delay, prejudice,
or confusion, or otherwise made inadmissible by the rules of
evidence. (Evid. Code, §§ 350, 352; see People v. Hall (1986) 41
Cal.3d 826, 834 (Hall).) “To be admissible, the third-party
evidence need not show ‘substantial proof of a probability’ that
the third person committed the act; it need only be capable of
raising a reasonable doubt of defendant’s guilt. At the same
time, we do not require that any evidence, however remote, must
be admitted to show a third party’s possible culpability.” (Hall,
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.”
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
at p. 833.) For example, “evidence of mere motive or opportunity
to commit the crime in another person, without more, will not
suffice to raise a reasonable doubt about a defendant’s guilt
. . . .” (Ibid.) Moreover, admissible evidence of this nature
points to the culpability of a specific third party, not the
possibility that some unidentified third party could have
committed the crime. (See People v. Page (2008) 44 Cal.4th 1,
39 (Page); People v. Panah (2005) 35 Cal.4th 395, 481; People v.
Gutierrez (2002) 28 Cal.4th 1083, 1136.) For the evidence to be
relevant and admissible, “there must be direct or circumstantial
evidence linking the third person to the actual perpetration of the
crime.” (Hall, at p. 833, italics added.) As with all evidentiary
rulings, the exclusion of third party evidence is reviewed for
abuse of discretion. (See People v. Lewis (2001) 26 Cal.4th 334,
372–373 (Lewis); People v. Kaurish (1990) 52 Cal.3d 648, 686.)
The court properly excluded evidence about the shoe print
comparison. No direct or circumstantial evidence linked
Williams to the Washington murder. Defendant insists the
evidence would have shown that “someone else was present at
the scene [and] was responsible for the murder.” But the
evidence could establish no such thing. The one-inch print was
deficient in quality and size to be matched to any particular
shoe. This deficiency would have made it impossible to exclude
any number of shoes as the source of the mark. The criminalist’s
inability to exclude Williams as the source of the print was
therefore irrelevant and potentially misleading, to the extent
the jury might have speculated the result indicated an
affirmative identification. Defendant contends forensic
evidence linking a third party to a crime scene is always
admissible, but the premise of his argument fails. The shoe
print did not affirmatively link Williams, defendant, or anyone
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
else to the murder. Nor was it relevant that the police had
compared the shoe print to a third party, since the comparison
yielded no “direct or circumstantial evidence linking [him] to the
actual perpetration of the crime.” (Hall, supra, 41 Cal.3d at
p. 833.) We have repeatedly upheld the exclusion of third party
culpability evidence when the third party’s link to a crime is
tenuous or speculative. (See, e.g., Page, supra, 44 Cal.4th at
pp. 38–39; Lewis, supra, 26 Cal.4th at p. 373; People v. Alcala
(1992) 4 Cal.4th 742, 792–793.) The linkage here is similarly
unsupported.
Furthermore, as the trial court noted, testimony about the
comparison would have invited speculation about why Williams
was being investigated. Yet no explanation could be provided
because the evidence about Williams’s potential as a suspect
was inadmissible hearsay. The court reasonably concluded the
shoe print evidence would have been irrelevant and potentially
confusing without this additional information. Although the
court did not expressly invoke Evidence Code section 352 as the
basis for its ruling, it clearly had the concerns of that statute in
mind when excluding the evidence. Moreover, express reliance
on section 352 is not required because we must affirm if the
court’s ruling is correct on any ground. (People v. Geier (2007)
41 Cal.4th 555, 582.)
Defendant also claims exclusion of the evidence violated
his constitutional rights to due process, compulsory process, and
“to present a complete defense.” (California v. Trombetta (1984)
467 U.S. 479, 485.) There was no constitutional error. “As a
general matter, the ordinary rules of evidence do not
impermissibly infringe on the accused’s right to present a
defense.” (Hall, supra, 41 Cal.3d at p. 834; see United States v.
Scheffer (1998) 523 U.S. 303, 308.) This case is no exception.
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
The court’s reasonable application of the rules of evidence to
exclude irrelevant and potentially misleading information did
not deprive defendant of his constitutional rights. (See Lewis,
supra, 26 Cal.4th at p. 373–374; People v. Cudjo (1993) 6 Cal.4th
585, 611.)
2. Issues Regarding Fetal Viability
Defendant was charged with murdering the fetus carried
by Regina Washington. In 1989, when this crime was
committed, the murder statute had consistently been
interpreted to require a finding of fetal viability. (See People v.
Davis (1994) 7 Cal.4th 797, 804–805, 812 (Davis).)
Dr. Lisa Scheinin, a deputy medical examiner with the Los
Angeles County Coroner’s Office, testified on that topic.
Although she had not autopsied the fetus herself, Dr. Scheinin
related findings from an autopsy report that the fetus was
female, weighed 825 grams, and had a gestational age of 27 to
28 weeks, or approximately six and a half months. She
explained that World Health Organization guidelines consider a
fetus viable after it has reached the 22nd week or a weight of
500 grams. Although the autopsy report said nothing specific
about whether the fetus could have survived outside the womb,
Dr. Scheinin concluded from the numbers in the report that it
was “clearly well into the range that’s defined as viable.” The
fetus had no congenital abnormalities, and there was nothing to
suggest Washington’s cocaine use had negatively affected its
health or development. Based on the autopsy report’s findings,
the fetus appeared to be a “normally developing healthy baby.”
a. Fetal Viability Instruction
Defendant first contends the jury instruction defining
viability was erroneous and violated his rights to due process, a
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
fair trial, and a fair and reliable penalty determination. The
claim fails because the instruction accurately conveyed the legal
definition of viability.
The jury was instructed with a modified version of
CALJIC No. 8.10: “In the crime of murder, a human fetus is
defined as a viable unborn child. Viability is defined as the
capability of the fetus to maintain independent existence
outside of the womb even if this existence required artificial
medical aid.”17 Defendant did not object or propose an
alternative instruction.
In 1970, the Legislature amended section 187,
subdivision (a), to include the killing of a fetus within the
definition of murder. (Stats. 1970, ch. 1311, § 1, p. 2440; Davis,
supra, 7 Cal.4th at p. 803.) Thereafter, the United States
Supreme Court decided in the abortion context that states have
no legitimate interest in protecting a fetus before it reaches
viability, which the court defined as the “capability of
meaningful life outside the mother’s womb.” (Roe v. Wade (1973)
410 U.S. 113, 163; see Davis, at p. 803.) A series of Court of
Appeal decisions relying on Roe held that only the killing of a
viable fetus could constitute murder. (See People v. Smith
(1976) 59 Cal.App.3d 751, 757 (K.A. Smith); People v. Apodaca
(1978) 76 Cal.App.3d 479, 487, 489 (Apodaca); People v. Smith
(1987) 188 Cal.App.3d 1495, 1514 (R.P. Smith); see also Davis,
at pp. 804–805.) We disapproved this line of cases in 1994 when
17
The 1988 version of the instruction in effect at the time of
the Washington murder was similar. It said: “A viable human
fetus is one who has attained such form and development of
organs as to be normally capable of living outside of the uterus.”
(CALJIC No. 8.10 (5th ed. 1988).)
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
we held that viability is not required for the crime of murdering
a fetus. (Davis, at p. 810.) However, our decision was
prospective only. (Id. at p. 812.) Accordingly, when defendant
was tried, a conviction for murdering the Washington fetus
required a finding that the fetus was viable.
Courts first defined viability for this purpose as “ ‘having
attained such form and development of organs as to be normally
capable of living outside the uterus.’ ” (K.A. Smith, supra, 59
Cal.App.3d at p. 758.) The definition was later expanded to
address the availability of medical assistance. Apodaca, supra,
76 Cal.App.3d at page 489 stated that “a fetus is deemed viable
when it is possible for it to survive the trauma of birth, although
with artificial medical aid.” Similarly, R.P. Smith, supra, 188
Cal.App.3d at page 1514 summarized case law as holding that
“viability means being capable of surviving the trauma of birth
with the aid of normal medical science.” The instruction here
was fully consistent with the controlling law. It defined viability
as the fetus’s capability to live outside the womb, even if doing
so required medical assistance.
Nevertheless, defendant complains the instruction was
comparable to one we found lacking in Davis. The comparison
does not withstand scrutiny. The instruction at issue in Davis
stated that “ ‘a fetus is viable when it has achieved the capability
for independent existence; that is, when it is possible for it to
survive the trauma of birth, although with artificial medical
aid.’ (Italics added.)” (Davis, supra, 7 Cal.4th at p. 813.) We
found the term “possible” to be problematic because it could
permit a finding of viability for a fetus that was “incapable of
survival outside the womb for any discernible time.” (Id. at p.
814.) Because the term significantly lowered the viability
threshold as it was commonly accepted at the time, we
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
concluded this modification of CALJIC No. 8.10 was error.
(Davis, at p. 814.) By contrast, the instruction in defendant’s
trial used no variant of the word “possible,” nor did it include
any similar language that could have lowered the threshold for
when a fetus becomes viable. The instruction required that a
viable fetus have the “capability . . . to maintain independent
existence outside of the womb even if this existence required
artificial medical aid.” (Italics added.) The word “maintain”
excludes a case in which the fetus might only survive
momentarily. Even assuming defendant did not forfeit his claim
by failing to object, the instruction given here accurately defined
viability and did not violate defendant’s constitutional rights.
b. Hearsay Evidence of Viability
After we notified the parties of our intention to set the case
for oral argument, defendant filed a supplemental brief
contending Dr. Scheinin violated state law by relating case-
specific hearsay from the fetus’s autopsy report to support her
viability opinion.18 (See People v. Sanchez (2016) 63 Cal.4th 665
(Sanchez).) He also argued the report’s statements were
testimonial and admitted in violation of his Sixth Amendment
right to confront his accusers. (See Crawford v. Washington
(2004) 541 U.S. 36.) Because we conclude the state law error
was prejudicial and requires reversal of the fetal murder
conviction, we need not address these constitutional
arguments.19 It is not reasonably possible the error affected the
18
He also sought judicial notice of the autopsy report and its
attachments. We granted this unopposed request. (See Evid.
Code, §§ 452, subds. (c), (h), 459, subd. (a).)
19
Whether a challenged statement is hearsay is always the
threshold question. If it is, it cannot be admitted unless it
satisfies an exception. If it does not do so, and the error is
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Opinion of the Court by Corrigan, J.
jury’s penalty decision, however, and defendant’s death
sentence remains undisturbed. (See People v. Gonzalez (2006)
38 Cal.4th 932, 960-961 (Gonzalez); see also Chapman v.
California (1967) 386 U.S. 18, 24 (Chapman).)
i. Hearsay
Hearsay is “evidence of a statement that was made other
than by a witness while testifying at the hearing and that is
offered to prove the truth of the matter stated.” (Evid Code,
§ 1200, subd. (a).) “Documents like letters, reports, and
memoranda are often hearsay because they are prepared by a
person outside the courtroom and are usually offered to prove
the truth of the information they contain.” (Sanchez, supra, 63
Cal.4th at p. 674.) Hearsay evidence is generally inadmissible
unless it satisfies a statutory exception. (Evid. Code, § 1200,
subd. (b).)
As noted, Dr. Scheinin did not perform the autopsy on
Regina Washington’s fetus. She did, however, relate to the jury
observations recorded by the non-testifying medical examiner,
including the weight and gestational age of the fetus. These
facts were hearsay if offered to prove their truth. (See Sanchez,
supra, 63 Cal.4th at p. 674.) Experts enjoy wide latitude in the
sources they may draw upon, and they are permitted to rely on
hearsay in reaching their conclusions. (Id. at pp. 685–686;
People v. Leon (2015) 61 Cal.4th 569, 603; see Evid. Code, § 802.)
That is to say, experts can take hearsay into account when
forming their own opinions.20 “What an expert cannot do,”
prejudicial under state law, a further Crawford analysis is
unnecessary. (See Sanchez, supra, 63 Cal.4th at p. 680.)
20
Experts may also tell the jury about background
information generally accepted and reasonably relied on in their
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Opinion of the Court by Corrigan, J.
however, “is relate as true case-specific facts asserted in hearsay
statements, unless they are independently proven by competent
evidence or are covered by a hearsay exception.” (Sanchez, at
p. 686.) Some prior cases had allowed experts to relate case-
specific facts on the theory that the material was not offered for
its truth, but merely to show the basis of the expert’s opinion.
Sanchez pointed out the flaw in this logic: “When an expert
relies on hearsay to provide case-specific facts, considers the
statements as true, and relates them to the jury as a reliable
basis for the expert’s opinion, it cannot logically be asserted that
the hearsay content is not offered for its truth. In such a case,
‘the validity of [the expert’s] opinion ultimately turn[s] on the
truth’ (Williams[ v. Illinois (2012)] 567 U.S. [50,] 108 . . . (conc.
opn. of Thomas, J.)) of the hearsay statement. If the hearsay
that the expert relies on and treats as true is not true, an
important basis for the opinion is lacking.” (Sanchez, at
pp. 682–683.)21 When Dr. Scheinin gave facts about gestational
field. This information is part of the expert’s specialized
knowledge, even if derived from hearsay sources. (See Evid.
Code, §§ 801, subd. (b), 802; Sanchez, supra, 63 Cal.4th at
p. 676; see also Simons, Cal. Evidence Manual (2020) § 4:31.)
On the distinction between case-specific facts and general
background information, see Sanchez at pages 676 to 677.
21
Defendant raised no hearsay or confrontation objection
below. Although his case was tried after Crawford established
a constitutional ban on testimonial hearsay, the statements in
question would not have been considered hearsay at all under
the law then in effect because they were offered for the “non-
hearsay purpose” of explaining the basis for Dr. Scheinin’s
opinion. (See People v. Montiel (1993) 5 Cal.4th 877, 918–919
(Montiel), overruled in Sanchez, supra, 63 Cal.4th at p. 686,
fn. 13.) Drawing on United States Supreme Court precedent,
particularly Williams v. Illinois, supra, 567 U.S. 50, Sanchez
rejected that approach. (See People v. Perez (2020) 9 Cal.5th 1,
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Opinion of the Court by Corrigan, J.
age and weight obtained only from the autopsy report, presented
them to the jury as true, and represented that those facts
bolstered her opinion, she related case-specific hearsay. (See
Sanchez, at p. 685.)
The Attorney General concedes the testimony was hearsay
but argues the report could have been admitted under an
exception to the hearsay rule. For example, when an
appropriate foundation has been laid, autopsy reports have
sometimes been admitted as business records (Evid. Code,
§ 1271; see People v. Beeler (1995) 9 Cal.4th 953, 979 (Beeler)) or
official records (Evid. Code, § 1280; see People v. Clark (1992) 3
Cal.4th 41, 158–159). However, it is significant that the
prosecution did not offer the report itself into evidence, and the
trial court did not rule on whether it was admissible under
either exception. “The proponent of hearsay has to alert the
court to the exception relied upon and has the burden of laying
the proper foundation.” (People v. Livaditis (1992) 2 Cal.4th
759, 778.) A trial court’s decision to admit evidence under a
hearsay exception is entitled to great deference on appeal, but
here foundational testimony was neither elicited by the
prosecution nor ruled upon by the court.
Both the business record and official record exceptions
require a showing that the writing “was made at or near the
time of the act, condition, or event” (Evid. Code, §§ 1271,
subd. (b), 1280, subd. (b)); either “in the regular course of a
business” (id., § 1271, subd. (a)) or “by and within the scope of
duty of a public employee” (id., § 1280, subd. (a)); and that
9.) Accordingly, as the Attorney General acknowledges,
defendant’s failure to object did not forfeit his present claims.
(Ibid.)
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Opinion of the Court by Corrigan, J.
“sources of information and method and time of preparation
were such as to indicate [the writing’s] trustworthiness” (id.,
§§ 1271, subd. (d), 1280, subd. (c)). Dr. Scheinin described how
autopsy reports are customarily prepared and maintained in the
Los Angeles County Coroner’s Office, but she did not begin
working there until two years after the autopsy in question. She
did not testify that the same procedures were followed before
her arrival, nor did she link her description of the office’s
procedures to the preparation of this particular autopsy report.
The foundational showing here is notably thinner than we have
encountered in upholding rulings to admit other autopsy
reports. For example, in Beeler, supra, 9 Cal.4th at page 979,
the testifying pathologist both explained the office’s autopsy
procedures and attested that these standard procedures were
followed in the autopsy’s performance and documentation. That
testimony was sufficient to support the court’s admission of the
report as a business record. (Ibid.) In contrast, given the record
here, we cannot say with confidence that the fetal autopsy report
would have been admissible as either a business record or a
public record, and the issue was not explored at trial.
We recognize that the prosecution might reasonably have
perceived no need to offer the autopsy report under a hearsay
exception. When defendant’s case was tried in 2007, courts
frequently allowed experts to relate case-specific hearsay under
the rationale that such evidence merely explained the basis of
the expert’s opinion and was not offered for its truth. (See, e.g.,
Montiel, supra, 5 Cal.4th at p. 919, overruled in Sanchez, supra,
63 Cal.4th at p. 686, fn. 13.) Sanchez changed this aspect of the
law. (See Sanchez, at p. 686.) But, while our treatment of
hearsay has changed in light of evolving Supreme Court
jurisprudence (see id. at p. 682), this change does not make it
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
appropriate in this case to uphold the admission of hearsay
against a criminal defendant based on an exception that was
never presented to the trial court, for which no effort was made
to lay the necessary foundation, and on which the court never
ruled.
Had the report been offered and admitted under an
exception, the words of the document itself would have
constituted admissible hearsay. Dr. Scheinin’s recitation of the
content of an unadmitted document remains hearsay for which
no exception was established. She was allowed to present
inadmissible hearsay as true and supportive of her opinion.
This was error under California’s hearsay statutes. (See
Sanchez, supra, 63 Cal.4th at p. 686).
ii. Prejudice
State law error in the admission of hearsay requires
reversal of the judgment if “ ‘it is reasonably probable that a
result more favorable to the [defendant] would have been
reached in the absence of the error.’ ” (People v. Watson (1956)
46 Cal.2d 818, 837 (Watson); see People v. Duarte (2000) 24
Cal.4th 603, 618–619.) Given the significance of the hearsay
evidence to the fetal murder charge, and the dearth of other
evidence on the issue, we cannot conclude the error was
harmless. Defendant’s conviction for the fetal murder count
must be reversed.
The prosecution had to prove the fetus was viable at the
time of death. Dr. Scheinin testified that viability is largely a
function of weight and gestational age. At both the time of trial
and in 1989 when Regina Washington was murdered, scientists
generally considered a fetus viable after it had reached a
gestational age of 22 weeks or a weight of 500 grams. To
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Opinion of the Court by Corrigan, J.
illustrate her testimony, Dr. Scheinin displayed a chart showing
the week-by-week development of an embryo into a fetus. She
drew the jury’s attention to a dividing line on this chart labeled
“stage of viability.” She explained, “Anything to the left of this
line is considered a pre-viable fetus and anything to the right of
it is considered viable,” noting the dividing line of weight and
age. Having previously quoted from the autopsy report that the
Washington fetus weighed 825 grams and had reached a
gestational age of 27 to 28 weeks, Dr. Scheinin then pointed to
the place on the chart indicated by these statistics. She
observed that, “according to the medical examiner who did the
autopsy, . . . the baby is in this ballpark here, and about in this
ballpark here by weight, so it’s clearly well into the range that’s
defined as viable.” (Italics added.) Finally, she quoted the
report’s statement that the fetus had “no congenital
abnormalities” and concluded “nothing in the report” suggested
the fetus was anything other than healthy. All of Dr. Scheinin’s
statements about the fetus’s ability to survive outside the womb
were expressly tied to the autopsy report, the contents of which
she presented to the jury. This case-specific information was
neither stipulated nor independently proven.
Dr. Scheinin’s testimony was essential in proving
viability. The only other evidence bearing on the subject was
testimony from Washington’s daughter, 11 years old at the time
of the crime, who recalled that her mother was visibly pregnant
and the family believed the gender was female. This evidence
was insufficient to prove viability beyond a reasonable doubt.
Although the Attorney General is correct that no contrary
evidence was presented, it was the prosecution’s burden to prove
every element of the charge. (See Estelle v. McGuire (1991) 502
U.S. 62, 69; see also Melendez-Diaz v. Massachusetts (2009) 557
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U.S. 305, 324 [“the Confrontation Clause imposes a burden on
the prosecution to present its witnesses, not on the defendant to
bring those adverse witnesses into court”].)
The Attorney General argues the error was harmless
because, apart from the hearsay, Dr. Scheinin gave her own
opinion about fetal viability. He reasons that even if she had
been precluded from reciting the report’s facts about fetal
weight and gestational age, she still would have been able to
testify to her opinion on the ultimate question. It is true that an
“expert may still rely on hearsay in forming an opinion, and may
tell the jury in general terms that he did so.” (Sanchez, supra,
63 Cal.4th at p. 685.) Dr. Scheinin thus could have told the jury
that she read the autopsy report and relied on it in forming her
opinion. But that is not what happened here. Instead, she
repeatedly recounted case-specific facts from the report and
invited the jury to compare that hearsay to the medically
accepted guidelines for determining viability.
Once the improperly admitted hearsay testimony is
excluded (see People v. Doolin (2009) 45 Cal.4th 390, 448), all
that remains of Dr. Scheinin’s viability testimony is a bare
conclusion that “just looking at the numbers, the age of the baby
would indicate that it was a viable fetus, meaning it has a
chance for life by itself.” The persuasive force of this conclusion
would have been considerably diminished without testimony
about the case-specific facts on which it was based. An expert’s
opinion is only as strong as its factual basis. “The jury is not
required to accept an expert’s opinion. The final resolution of
the facts at issue resides with the jury alone. The jury may
conclude a fact necessary to support the opinion has not been
adequately proven, even though there may be some evidence in
the record tending to establish it. If an essential fact is not
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found proven, the jury may reject the opinion as lacking
foundation.” (Sanchez, supra, 63 Cal.4th at p. 675.) A
conclusory opinion, with no articulated factual foundation,
would have been substantially less compelling than the
testimony Dr. Scheinin actually gave. She repeatedly stated the
fetus’s specific weight and gestational age and showed on a
demonstrative exhibit how these attributes placed it “well into”
the medically established viability range.
The case-specific hearsay erroneously admitted here
served two interrelated purposes. First, it provided nearly all
the direct evidence pointing to fetal viability. Second, it
provided the entire factual basis for the expert’s opinion on that
question. The hearsay evidence was relevant to an especially
important issue. On this record, it is reasonably probable the
jury would have reached a different verdict on the fetal murder
count absent the admission of hearsay evidence. (See Watson,
supra, 46 Cal.2d at p. 837.)
We do not agree with defendant, however, that this error
undermines the penalty judgment. Defendant was a convicted
serial killer who preyed on vulnerable women for over a decade.
A jury convicted him of strangling his victims and abandoning
their corpses in degrading conditions. Apart from the fetal
death, the jury found that defendant murdered 10 women. The
jury heard evidence about these murders and defendant’s sexual
assault of Maria M. In the penalty phase, it heard aggravating
evidence about yet another murder and sexual assault.
Although defendant suggests the jury may have considered the
fetus’s murder especially aggravating, that argument is
speculative at best. Moreover, despite the error, the jury was
still entitled to give aggravating weight to the fact that
defendant murdered a visibly pregnant woman. (See Brown v.
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Opinion of the Court by Corrigan, J.
Sanders (2006) 546 U.S. 212, 220.) The prosecutor’s closing
argument only mentioned this death in a single sentence. Nor
was there any victim impact evidence concerning the fetus. In
view of the substantial aggravating facts of both the charged and
uncharged crimes, it is not reasonably possible the jury would
have reached a different penalty verdict absent the error. (See
People v. Johnson (2019) 8 Cal.5th 475, 518.) Likewise, any
federal constitutional error in admitting the evidence was
harmless beyond a reasonable doubt as to penalty. (Chapman,
supra, 386 U.S. at p. 24; see Gonzalez, supra, 38 Cal.4th at
pp. 960-961.)
C. Penalty Phase Issues
1. Criminal Threat Evidence
Defendant contends insufficient evidence was admitted to
establish that he made a criminal threat against Deputy
Uyetatsu. Assuming this claim was not forfeited, any error was
harmless.
To establish a criminal threat, the prosecution must prove:
(1) the defendant willfully threatened death or great bodily
injury to another person; (2) the threat was made with the
specific intent that it be taken as a threat, regardless of the
defendant’s intent to carry it out; (3) the threat was “on its face
and under the circumstances in which it [was] made, . . . so
unequivocal, unconditional, immediate, and specific as to convey
to the person threatened, a gravity of purpose and an immediate
prospect of execution”; (4) the threat caused the person
threatened “to be in sustained fear for his or her own safety or
for his or her immediate family’s safety”; and (5) this fear was
reasonable under the circumstances. (§ 422, subd. (a); see
People v. Toledo (2001) 26 Cal.4th 221, 227–228.) Defendant
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Opinion of the Court by Corrigan, J.
challenges the evidentiary support for three elements. First,
defendant argues the evidence does not show he specifically
intended to threaten Deputy Uyetatsu. Although he told
another inmate he planned to kill the deputy if he was convicted
of the pending charges, he did not instruct the inmate to report
the threat to her, nor was there evidence to suggest he thought
such a report was likely. Second, defendant asserts the threat
was not sufficiently unconditional and immediate because he
made it while in a locked cell, and he would have even less
ability to carry it out if he were convicted of the capital charges.
Finally, he argues there was no evidence the threat caused
Deputy Uyetatsu to be in a state of sustained fear. When asked
how she felt upon learning of the threat, Uyetatsu said only that
she thought defendant had the ability to carry it out and would
do so if given the opportunity. She did not say she was afraid,
nor did she testify that she wanted to be moved to a different
unit.
First, the claim is not cognizable on appeal because
defendant did not object or move to strike the evidence he now
challenges. (See People v. Livingston (2012) 53 Cal.4th 1145,
1175; People v. Hamilton (2009) 45 Cal.4th 863, 934.) Defendant
couches his argument as a challenge to the sufficiency of
evidence, noting such claims are generally permitted on appeal
without the need for an objection. (See People v. McCullough
(2013) 56 Cal.4th 589, 596.) However, it is significant that “here
the evidence was admitted at the penalty phase of a capital trial
as aggravating evidence, not to support a conviction for that
crime.” (Livingston, at p. 1175.) “Even if defendant need do
nothing at trial to preserve an appellate claim that evidence
supporting his conviction is legally insufficient, a different rule
is appropriate for evidence presented at the penalty phase of a
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Opinion of the Court by Corrigan, J.
capital trial. There the ultimate issue is the appropriate
punishment for the capital crime, and evidence on that issue
may include one or more other discrete criminal incidents.
(§ 190.3, factors (b), (c).) If the accused thinks evidence on any
such discrete crime is too insubstantial for jury consideration,
he should be obliged in general terms to object, or to move to
exclude or strike the evidence, on that ground.” (Montiel, supra,
5 Cal.4th at p. 928, fn. 23.)
Even assuming admission of the threat evidence was
error, there is no reasonable possibility it affected the penalty
verdict. (See People v. Collins (2010) 49 Cal.4th 175, 220.) The
threat was only one of five violent crimes admitted under section
190.3, factor (b) and had arguably less impact. The jury heard
evidence in the penalty phase that defendant had murdered
Elandra Bunn, sexually assaulted Carla W., and forcibly
resisted arrest. It was also directed to consider guilt phase
evidence about his attack on Maria M. The threat was certainly
less impactful than defendant’s capital crimes. Defendant was
a proven serial killer who brutally raped and murdered nearly
a dozen known victims, preying on vulnerable women from his
own neighborhood. As the court stated in denying defendant’s
automatic motion for modification of the verdict, “defendant
methodically located unescorted and vulnerable women,
overwhelmed each of them in isolation, and strangled each to
death for his own sexual pleasure.” The aggravating facts here
were overwhelming, and any error relating to the threat
evidence was clearly harmless.
2. Constitutionality of Death Penalty Law
Defendant raises a number of challenges to the
constitutionality of California’s death penalty statute and
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Opinion of the Court by Corrigan, J.
instructions. He acknowledges that we have previously rejected
all of these arguments. We decline to reconsider our precedents
as follows:
Section 190.2 adequately narrows the class of offenders
eligible for the death penalty. (People v. Reed (2018) 4 Cal.5th
989, 1018; Winbush, supra, 2 Cal.5th at p. 488.) Section 190.3,
factor (a), allowing aggravation based on the circumstances of
the crime, does not permit arbitrary and capricious sentencing.
(People v. Capers (2019) 7 Cal.5th 989, 1013 (Capers);
Thompson, supra, 1 Cal.5th at p. 1129.) “Choice of penalty is a
normative decision,” not a factual one. (Beck and Cruz, supra, 8
Cal.5th at p. 670.) Accordingly, the death penalty scheme does
not violate the federal Constitution for failing to require:
• written findings (People v. Rhoades (2019) 8 Cal.5th 393, 455
(Rhoades); Winbush, at p. 490);
• unanimous findings as to proof of each aggravating factor or
unadjudicated crime (Capers, at p. 1013);
• findings that aggravating factors (other than section 190.3,
factors (b) and (c)) were proven beyond a reasonable doubt;
• or specific, articulated findings that aggravating factors
outweigh those in mitigation, or that death is the appropriate
penalty (People v. Krebs (2019) 8 Cal.5th 265, 350 (Krebs);
People v. Rangel (2016) 62 Cal.4th 1192, 1235).
These conclusions are not altered by Apprendi v. New Jersey
(2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, or
Hurst v. Florida (2016) 577 U.S. 92. (Capers, at pp. 1013–1014;
People v. Henriquez (2017) 4 Cal.5th 1, 45.) Because sentencing
is “an inherently moral and normative function, and not a
factual one amenable to burden of proof calculations” (Winbush,
at p. 489), the prosecution has no obligation to bear a burden of
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Opinion of the Court by Corrigan, J.
proof or persuasion (Capers, at pp. 1014–1015). Nor does the
federal Constitution require an instruction that life is the
presumptive penalty. (Capers, at p. 1016; Beck and Cruz, at
p. 670.)
CALJIC No. 8.88 is not impermissibly vague or otherwise
defective for failing to require a finding that death is the
“appropriate” penalty (People v. Leon (2020) 8 Cal.5th 831, 853;
see Beck and Cruz, supra, 8 Cal.5th at p. 671) or failing to
require a life sentence if the jury finds that mitigating factors
outweigh aggravating ones (Capers, supra, 7 Cal.5th at p. 1016;
People v. Johnson (2018) 6 Cal.5th 541, 594 (Johnson)). The
phrase “so substantial” in this instruction is not overbroad or
unconstitutionally vague. (Beck and Cruz, at p. 671; People v.
Ghobrial (2018) 5 Cal.5th 250, 292.) Nor is the jury’s
consideration of mitigating factors impermissibly constrained
by CALJIC No. 8.85’s use of the words “extreme” and
“substantial” to describe mitigating circumstances. (Beck and
Cruz, at p. 671; People v. Rices (2017) 4 Cal.5th 49, 94.) The
court is not constitutionally obligated to delete inapplicable
sentencing factors, identify which factors are aggravating or
mitigating, or instruct that certain factors are relevant only for
mitigation purposes. (Krebs, supra, 8 Cal.5th at p. 351;
Rhoades, supra, 8 Cal.5th at p. 455; Winbush, supra, 2 Cal.5th
at p. 490.)
Intercase proportionality review is not constitutionally
required. (Rhoades, supra, 8 Cal.5th at pp. 455–456; Johnson,
supra, 6 Cal.5th at p. 594.) Nor does the death penalty law
violate equal protection by providing different procedures to
capital and noncapital defendants. (Rhoades, at p. 456; Capers,
supra, 7 Cal.5th at p. 1017.) We continue to hold that
California’s capital sentencing scheme does not violate
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Opinion of the Court by Corrigan, J.
international norms or evolving standards of decency in
violation of the Eighth and Fourteenth Amendments. (Beck and
Cruz, supra, 8 Cal.5th at p. 671; Krebs, supra, 8 Cal.5th at
p. 351; Capers, at p. 1017.)
D. Cumulative Error
Finally, defendant argues errors in his trial were
cumulatively prejudicial. We conclude to the contrary. (See
People v. Penunuri (2018) 5 Cal.5th 126, 172.) Hearsay was
improperly admitted on the question of fetal viability. That
murder conviction is reversed. We also assumed a penalty
phase error involving evidence that defendant threatened
Deputy Uyetatsu. In light of the totality of evidence at both
phases of trial, reversal of neither the guilt nor penalty
judgments is required for the reasons discussed above.
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PEOPLE v. TURNER
Opinion of the Court by Corrigan, J.
III. DISPOSITION
The second degree fetal murder conviction is reversed. In
all other respects, the judgment is affirmed.
CORRIGAN, J.
We Concur:
CANTIL-SAKAUYE, C. J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.
GILBERT, J.*
_______________________
*
Presiding Justice of the Court of Appeal, Second Appellate
District, Division Six, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
60
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Turner
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S154459
Date Filed: November 30, 2020
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: William R. Pounders
__________________________________________________________________________________
Counsel:
Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme Court, and
William C. Whaley, Deputy State Public Defender, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant
Attorneys General, Susan Sullivan Pithey, Assistant Attorney General, Joseph P. Lee and Blythe J. Leszkay,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
William C. Whaley
Deputy State Public Defender
770 L. St., Suite 1000
Sacramento, CA 95814
(916) 322-2676
Blythe J. Leszkay
Deputy Attorney General
300 South Spring St., Suite 1702
Los Angeles, CA 90013
(213) 269-6191