People v. Tully

Filed 7/30/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S030402

v. )

)

RICHARD CHRISTOPHER TULLY, )

) Alameda County

Defendant and Appellant. ) Super. Ct. No. H97978

____________________________________)

An amended information charged defendant Richard Christopher Tully

with the 1986 murder of Shirley Olsson (Pen. Code, § 187) and assault with intent

to commit rape (id., § 1203.065, subd. (b)).1 The information also alleged a

special circumstance that the murder was committed in the commission of a

burglary and, as to both counts, that defendant used a dangerous and deadly

weapon, to wit: a knife. (§§ 190.2, subd. (a)(17)(vii), 12022, subd. (b).) 2

Shirley Olsson, a 59-year-old nurse at the Livermore Veterans

Administration medical center, was brutally murdered sometime in the night or

early morning hours of July 24 to 25, 1986. A coworker went to her residence and

discovered Olsson‟s nude body in her bed; she had been stabbed 23 times. A

bloody knife and Olsson‟s purse were found on the golf course that abutted her

1 All further unlabeled statutory references are to the Penal Code.

2 A 1995 amendment to the statute changed the designations of section

190.2, subdivision (a)(17)‟s subparagraphs from Roman numerals (i) to (xi) to the

letters (A) to (G); the current designation for the burglary-murder special

circumstance is section 190.2, subdivision (a)(17)(G).

1

house. The screen to her bathroom window was found in a neighbor‟s backyard.

The blood on the knife was the victim‟s. Several months later, a fingerprint and

palm print on the knife were matched to defendant. Defendant, who had lived two

houses down from Olsson‟s residence, admitted to police he had been at the

victim‟s house the night she was murdered and had had sex with her, but claimed

the murder was committed by another man.

A jury convicted defendant as charged and found true the special

circumstance and weapon allegations. It then returned a verdict of death, which

the trial court declined to modify. This appeal is automatic. We affirm the

judgment.

I. FACTS

A. Guilt Phase

1. Prosecution evidence

a. Shirley (Sandy) Olsson’s murder and the ensuing investigation3

In July 1986, Sandy Olsson worked as a registered nurse at the Veterans

Administration medical center in Livermore. Her specialty was ostomony —

caring for people who had colostomies — and she also worked as a charge or

supervising nurse. Typically, she worked Monday through Friday, arriving

sometime between 7:00 and 7:30 a.m. and leaving at 4:00 p.m. Olsson was 59

years old and divorced with two adult children, a daughter, Sandra Walters, and a

son, Elbert “Tripp” Walters III. For much of the year she lived alone at 1556

Hollyhock Street, except from October through March when her father, Clifford

Sandberg, came from Kansas and stayed with her. Olsson‟s residence backed up

against the Springtown Golf Course.

3 Ms. Olsson‟s given name was Shirley but she was called Sandy by

everyone but her father.

2

The portrait of Olsson that emerged from the testimony of various

witnesses was of a person of fairly set habits. When she arrived home from work,

she locked the front door with a chain lock. After changing her top, she poured

herself a glass of Coca-Cola and added a little bourbon to it. When her father

visited, he and Olsson ate dinner together and watched television. She usually

rejected his suggestions that they do something in the evenings because she was

tired from work. Instead, she went into her bedroom with her drink to read her

mail, magazines, and the newspaper. Olsson‟s daughter testified that Olsson went

to bed sometime between 9:00 and 10:00 p.m. She first went through her house

and made sure all the windows and doors were locked. Olsson was a modest

woman who slept in a pair of men‟s flannel pajamas.

Olsson‟s father testified that during his annual visits to his daughter, she

never had any male visitors. Her social life apparently consisted of occasionally

going out to dinner with work friends.

On Thursday, July 24, 1986, Olsson arrived for work at the Veterans

Administration medical center at 7:00 a.m. and left at around 4:00 p.m. She

walked to her car with another nurse, Deborah Gifford. Gifford testified that

Olsson was in a good mood because she was flying to Topeka that weekend for a

family celebration of her father‟s 85th birthday. Olsson‟s across-the-street

neighbor, Elden Freeman, saw her arrive home sometime between 4:15 and 4:45

p.m. From his living room, Freeman saw Olsson leave her den at about 8:00 p.m.

and then turn off the light in the room at about 10:00 p.m. At that point, there

were no other lights on at her house that he could see.

At about 4:00 a.m., Linda Rocke, who lived in a house on the opposite side

of the golf course from Olsson, was awakened by her dog‟s barking. She took the

dog outside to keep it from waking the rest of her family. In her backyard, Rocke

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found what looked like a small bathroom screen. It had not been in her backyard

earlier.

Olsson failed to appear at work the next morning, July 25. This was

unusual because Olsson was described as “very reliable” by her colleague Maxine

Gatten. When Olsson failed to appear by 7:25 a.m., Gatten called her residence

but did not get an answer. Later, she again unsuccessfully tried to reach Olsson by

phone. She discussed the matter with other nurses; they worried that Olsson might

be sick, because she had complained about chest pains. Eventually, Gatten left the

matter of Olsson‟s absence to another nurse, Barbara Green.

Green and Olsson had a close relationship. They shared an office and

frequently ate lunch together. Olsson brought her lunch to work in a paper sack

that she kept in her purse. Her lunch sometimes included fruit, like grapes. Green

was aware that Olsson was flying to Kansas the next day for her father‟s birthday.

When, at about 8:45 a.m., Gatten told Green that Olsson had not reported for

work, Green became “[v]ery concerned.” After she, too, failed to reach Olsson by

phone, Green drove to Olsson‟s residence. Green found Olsson‟s car parked in the

driveway and the newspaper in front of her house. She went to the front door,

rang the bell, knocked, and called Olsson‟s name, but did not receive a response.

She looked in through a glass panel at the front of the house; there was no

movement inside.

Green went around to the back where the house abutted the golf course.

The windows and the sliding door were locked. However, she noticed the

bathroom window was open. She could not reach it on her own, so she pulled a

wooden plant stand beneath it and climbed onto the stand. She was still unable to

see through the window. Eventually, Green enlisted the help of Olsson‟s

neighbor, Freeman.

4

Freeman knew Olsson well enough that she would ask him to water her

plants and watch her house when she was on vacation. He had been expecting

Olsson to bring him the key to her house so he could take care of it while she was

in Kansas. As of Friday morning, the day before she was leaving, she had not

done so. Green went to Freeman‟s house and, after explaining that she had been

trying to reach Olsson, asked to use the phone. Green called 911. When there was

no response from the 911 call, she and Freeman returned to Olsson‟s house. With

Freeman‟s help, she managed to get high enough to see through the bathroom

window. In the bathroom mirror, she saw Olsson‟s reflection. Olsson was lying

naked on her stomach across her bed; there was a puddle of blood on the floor

beneath her head. Green “knew that [she] had to get in as soon as [she] could

because [she] had to stop the bleeding.” Freeman returned to his house and got a

ladder. Using the ladder, Green entered the house through the bathroom window.

Freeman went around to the front door and waited.

Green went to her friend‟s side. She saw “slits” on Sandy Olsson‟s back,

“blood dripping down her face,” and “her left eye was bulging out of her head.”

Her bedclothes were crumpled beneath her. She touched Olsson‟s body; it was

cold. She left the bedroom to find a phone to call 911. As she left the bedroom,

she saw a framed photograph had fallen from the wall to the floor while another

photograph, still on the wall, was crooked and broken. She was unable to find the

phone and went to the front door. She saw that a chain lock had been broken; two

of the screws that attached to a plate on the door were hanging from the chain.

She opened the door and let Freeman in. She told him she could not find the

phone. Freeman told her the phone was in the shape of a Coca-Cola bottle and

where she would find it. Green called 911 and told the operator that Olsson had

been murdered. Before long, a police officer arrived. He asked Green if Olsson

was dead. Green tried unsuccessfully to get a pulse. She told the officer that

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Olsson was dead. At some point, Green left the house and went to Freeman‟s

residence.

Sergeant Scott Robertson of the Livermore Police Department was put in

charge of the investigation. He arrived at the house at about 9:45 a.m. He

conferred with other officers already at the crime scene and then walked though

the house. There were some green grapes on the living room carpet. He observed

signs of a struggle in the front entryway, where he saw a framed photograph that

had apparently fallen to the floor and two photographs on the wall that were

slightly askew. Just inside the master bedroom he saw another photograph that

had fallen from the wall. He also observed signs of a forced entry into the house

in the form of the broken slide chain latch on the front door.

In Olsson‟s bedroom, he observed blood splatters on the closet door and a

smear of blood on a light switch. He examined Olsson‟s body and saw wounds he

believed were consistent with a forced entry into the house. There were bruises on

Olsson‟s forehead and lips that seemed to be consistent with the edge of a door.

There was a similar bruise on the outside of her left ankle. Beneath her body

police found a pair of flannel pajamas and blankets. There was a glass of Coca-

Cola and a glass of bourbon on the nightstand next to the bed. A bathrobe and pair

of slippers were on the floor. On a desk in the bedroom were folded clothes,

evidently put there by Olsson for her trip to Kansas. Robertson found no money in

the house but a receipt in the kitchen indicated Olsson had received change of

$3.95 from a supermarket purchase the prior evening.

Around noon, Judith Williams and Cathie Garton were finishing a round of

golf at the Springtown Golf Course. They saw a purse floating in a pond on the

course. They fished the purse out of the pond and took it into the clubhouse. The

purse contained Olsson‟s hospital identification card, driver‟s license, credit cards

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and checkbook, among other items, as well as some loose grapes. It had no cash

in it.

Later that afternoon, police searched the golf course for the murder weapon,

assisted by security officers from the Lawrence Livermore Laboratory. At about

3:00 p.m., one of those officers, Renorise Conn, discovered a bloody knife beneath

a tree in knee-high brush. That evening, police retrieved the window screen that

Linda Rocke had discovered in her backyard the previous night. Police

determined that the screen belonged to Olsson‟s master bathroom window.

Pathologist Sharon Van Meter autopsied Sandy Olsson‟s body. Dr. Van

Meter counted 23 stab wounds. The wounds were consistent with the knife

recovered from the golf course, a Buck 110 knife. Apart from the stab wounds,

Van Meter found hemorrhaging of Olsson‟s neck and larynx muscles consistent

with strangulation. Van Meter also observed injuries to Olsson‟s lip and head

consistent with her head having come into contact with the edge of a door being

forced open. While Van Meter found no trauma to Olsson‟s vaginal area, she

testified that the absence of such trauma did not mean Olsson had not been forced

to submit to sexual intercourse before her death. Van Meter testified that the

cause of death was shock and hemorrhaging, as the result of multiple stab wounds,

associated with asphyxia due to fractures of the larynx. Olsson may have survived

for more than an hour after the wounds were inflicted.

The blood on the knife was consistent with Olsson‟s blood. The sheets on

her bed had bloodstains that indicated they had been used to wipe off the bloody

knife. Forensic examination of Olsson‟s body, clothes, and bedding failed to

reveal the presence of semen or spermatozoa. The criminalist who conducted the

examination testified that her findings did not rule out the possibility of sexual

intercourse if the assailant had not ejaculated.

7

Two identifiable prints were recovered from the knife handle. Between

July 25, 1986, and March 1, 1987, the Livermore Police Department submitted the

names of 40 or 50 possible suspects to the California Department of Justice for

fingerprint comparison purposes. Among the prints submitted were defendant‟s.

However, the fingerprint analysts were unable at that time to match the prints on

the knife or any prints taken from the crime scene to a suspect.

b. Defendant is connected to the murder

In July 1986, John Chandler lived on Hollyhock Street, two houses from

Olsson‟s residence. Chandler was the boyfriend of defendant‟s mother and had

known defendant since defendant was 15 years old. Defendant had lived with

Chandler, moving out only three weeks before Olsson was murdered. Defendant

kept a key and sometimes stayed at Chandler‟s house. He also received mail and

phone messages there. Chandler told the district attorney and a district attorney

investigator that he was with defendant when defendant purchased a Buck 110

knife in September 1985.4

On March 17, 1987, Sergeant Robertson had a conversation with Officer

Scott Trudeau, also a member of the Livermore Police Department.5 Based on

that conversation, Robertson resubmitted defendant‟s prints for analysis. A

fingerprint and a palm print on the murder weapon were matched to defendant‟s

right ring finger and right palm. On March 27, Robertson arrested defendant.

4 At trial, Chandler testified that he did not remember if defendant had

purchased the knife.

5 Trudeau had arrested defendant on March 7, 1987, on drug charges

following a traffic stop. Defendant made statements to Trudeau that Trudeau

ultimately realized connected defendant to Olsson‟s murder and he informed

Robertson of his suspicions. Defendant‟s statements to Trudeau were suppressed

prior to trial, but the trial court declined to suppress the fingerprint evidence as

fruit of the poisonous tree. The trial court‟s ruling is the subject of defendant‟s

first claim.

8

That same day, defendant was interrogated by Robertson and Detective

Mike Newton, also of the Livermore Police Department. Defendant

acknowledged that his mailing address was John Chandler‟s residence and

admitted to having lived there. He claimed, however, that he had never met Sandy

Olsson and had never been in her house. When Robertson told him that his

fingerprints had been found on the knife that killed Olsson, defendant denied any

involvement. He said his knife had been stolen from his car in the spring of 1986.

Defendant, who said he read about the murder in the newspapers, suggested it was

a “domestic type of killing.”

Robertson also told defendant‟s wife, Vicky Tully, that defendant‟s

fingerprints had been identified on the murder weapon. Robertson and Newton

met with Vicky Tully the following Monday, March 30, 1987. Afterwards, the

officers talked to defendant again.

At the second interview, defendant told the following story: At some point

in the early morning hours of July 25, 1986, he met up with a man he knew only as

“Doubting Thomas,” who was a member of the Hell‟s Angels. Defendant had

already consumed four or five 12-ounce beers and four or five 4-ounce

“kamikazes” at a bar in Pleasanton. Thomas told defendant he wanted to go to the

house of a woman who lived on Hollyhock Street in Livermore, from whom he

bought drugs that she obtained from the hospital. When defendant told Thomas he

rented a room from John Chandler on the same street, Thomas said “that worked

out good” and told defendant to park at Chandler‟s because it was “only a couple

of houses down” from their destination. The two men walked to the woman‟s

residence. Thomas entered first and then signaled for defendant to enter. While

Thomas and the woman talked in her bedroom, defendant waited in the living

room where he found a bottle of whiskey and “took a few pulls off” of it.

9

He heard Thomas and the woman start to argue. After they calmed down,

Thomas motioned for defendant to come into the bedroom and asked him if he

“wanted to have a little fun” with the woman. Defendant entered the bedroom and

found the woman naked on her bed. He had intercourse with the woman but was

too drunk to maintain an erection and did not ejaculate. He was in the bedroom

for under ten minutes and left feeling “kinda stupid.”

Defendant went back out into the living room while Thomas rejoined the

woman in the bedroom. He heard Thomas and the woman arguing again; “[i]t

sounded like they were wrassling or he was knocking her around or something.”

Defendant went to the hallway to listen in and the woman came charging naked

out of the bedroom and ran into him. Thomas came out and pulled the woman

back into the room by her throat and hair. Defendant returned to the living room.

Within a matter of minutes, it got quiet and Thomas came out of the bedroom.

Defendant went into the bedroom and saw the woman lying naked on the bed with

multiple stab wounds on her back. He said he “was freaking out” and asked

Thomas if he had killed her. Thomas said yes, but did not say why.

Observing that Thomas had been wearing leather gloves the entire time,

defendant went to his car to get his gloves. When he returned he saw Thomas in

the living room rummaging through a purse. Defendant attempted to wipe his

fingerprints off any object he had touched. He and Thomas left through the patio

door. Thomas handed defendant the knife defendant had had in his car.

Defendant became angry that Thomas had used his knife to kill the woman.

Thomas wanted to return to Chandler‟s house, but defendant told him, “we can‟t

go back over there, you know, looking like we do.” They walked toward the pond

on the golf course. Defendant tossed the knife while Thomas, after taking what he

wanted from the purse, threw it into the pond. Defendant gave some of his clothes

10

to Thomas while he went to get his car. When he returned for Thomas, his clothes

were gone and Thomas told him, “I stashed ‟em so they won‟t be found.”

Defendant sought to be placed in a witness protection program because he

was afraid of Doubting Thomas. He denied having stabbed the victim.

Later that day, defendant spoke to a deputy district attorney and an

investigator. Defendant again expressed interest in the witness protection

program. The district attorney declined to make any promises, rebuffed

defendant‟s request for a plea bargain, and reminded him that what he said could

and would be used against him. Defendant then essentially repeated the story he

had told the police. Defendant told the district attorney that other women had

offered themselves to him for sex before, explaining, “Sometimes it was party

situations, sometimes it was just, um, what they call a pass-around chick.”

A review of medications handled by Olsson revealed no shortages of any

controlled substance. Police identified “Doubting Thomas” as Thomas Pillard.

His fingerprints were obtained and submitted to the California Department of

Justice along with defendant‟s.

2. Defense evidence

The defense called Sergeant Scott Robertson, who identified a pair of

men‟s shoes recovered from a dumpster near the golf course as well as bedding

items taken from the victim‟s bedroom. The defense also recalled criminalist

Sharon Binkley regarding her examination of hair evidence taken from Olsson‟s

bedroom. Binkley testified that all the hairs retrieved from the crime scene were

consistent with Olsson‟s hair and inconsistent with defendant‟s hair, except for

some reddish-brown hairs on a pillowcase (which evidently belonged to Olsson‟s

daughter‟s dog) and two unidentified human hairs on a knitted blanket. The

defense‟s only other witness was Charles Fraser, the deputy district attorney who

11

had interviewed defendant on March 30, 1987. He testified to his experience as a

trial lawyer, particularly to the number of cross-examinations he had conducted

prior to his interview with defendant.

B. Penalty Phase

1. Prosecution evidence

The prosecution presented evidence that defendant had been involved in

two physical altercations while in jail. On January 7, 1988, defendant engaged in

a fistfight with another inmate during mealtime. Defendant received a split lower

lip that required a stitch, while the other inmate suffered no visible injuries. On

September 26, 1991, Alameda County Deputy Sheriff Michael Perkins saw

defendant and another inmate in a “wrestling hold” with each other. They had to

be forcibly separated. Defendant had some bumps and bruises on his face. The

other inmate was treated for an eye injury.

The prosecution also presented victim impact evidence in the form of

testimony from Sandy Olsson‟s adult children, Sandra Walters and Elbert “Tripp”

Walters III; her sister, Jan Dietrich; and Olsson‟s then 91-year-old father, Clifford

Sandberg. Sandra Walters, 35 years old at the time of trial, testified that her

mother was her “best friend,” and “meant everything to me.” She stayed with her

mother once a month and called her every week. Her mother‟s death had left her

feeling “lost” and “afraid.” She “didn‟t know who was going to take care of me if

my mom wasn‟t around.” Her first thought about her mother “is the horror of how

she died,” and she could not see a knife without remembering the manner of her

mother‟s death. She testified that she slept “with a night light” and a “hatchet

underneath my bed.” She knew her mother had had breast cancer “but if she

would have died by cancer, [Walters] could have at least said good bye to her.”

12

She remained angry because her mother had been taken from her and it had

become hard for her to be close to anyone.

Tripp Walters testified that his mother was his “anchor,” who had

“unconditional love” for him even when he “a little bit wild” as a teenager and

into his 20‟s. He described his mother as “happy” and “caring.” Her death

“turned [his] whole world upside down,” was “devastating,” and left him “very

depressed.” Since his mother‟s murder, he had married and he and his wife were

planning to have a child. He would have understood if his mother had died from

cancer but he could not understand that she was murdered.

Jan Dietrich, who lived in Washington, D.C., at the time of the trial, was

Sandy Olsson‟s younger sister. They were each other‟s only sibling, and were

close friends. They had travelled together in Europe and the United States.

Dietrich testified that Olsson had planned to retire in three years and they had

talked about Olsson‟s plans to travel. Dietrich had to tell her father about Olsson‟s

death, and flew to Topeka, Kansas, so that she and her father could fly to

California together. She and her father were at the airport at Topeka preparing to

fly to California at about the same time Olsson‟s plane would have been arriving

in Topeka for her father‟s birthday celebration. Dietrich felt no closure because of

the manner of her sister‟s death.

Clifford Sandberg testified he and his daughter had planned to buy a car

together after she retired and to use it to travel. At 91, he had experienced the

death of many people, but the manner of his daughter‟s death still caused him

difficulty.

2. Defense Evidence

Derek Mendoca, the inmate with whom defendant was fighting on

January 7, 1988, testified that he threw the first punch because defendant had

13

wiped mustard or ketchup on Mendoca‟s shirt. He and defendant were friends

before the fight and were friends afterwards.

Defendant‟s older siblings, Shirley Brown and Roger Tully, also testified.

Brown testified that defendant was born in Turkey, one of five children their

mother had by three different men. Defendant‟s father, Richard Ross Tully

(Richard Ross), was Brown‟s stepfather; their mother‟s name was Louise.

Richard Ross was in the Air Force and the family moved often. Richard Ross also

received assignments that took him away from home for long periods of time.

Once, when he was gone for six months, Louise began living with another man.

Richard Ross had a drinking problem, and he and Louise “were always

fighting.” Louise was the physical aggressor. She was very demanding of the

children, “wors[e] than a drill sergeant.” Brown was ashamed of her stepfather‟s

constant drinking because she “didn‟t know what he was going to do.” If he was

at home “he was drinking.” Richard Ross‟s drinking affected his career — he lost

rank and was forced to enter a rehabilitation clinic. Once, when Brown was

age 11, her stepfather came into her room, asked her if she wanted to learn how

boys kissed, and tried to lay her down on her bed. She told her mother about the

incident but Louise did nothing.

Defendant was a bed wetter. He was also the object of his mother‟s rage

and she would call him stupid. Brown left home as soon as she graduated from

high school, but continued to have emotional and psychological problems, for

which she was hospitalized. She had visited defendant in jail and corresponded

with him and she wanted to continue to do that.

Roger Tully, defendant‟s older brother, was adopted by Richard Ross Tully

but was not his natural son. At the time of defendant‟s trial, Roger was a burglary

detective in the Baton Rouge Police Department, where he had also served as a

homicide detective.

14

During defendant‟s childhood, neither Richard Ross nor Louise was often

at home, and responsibility for taking care of him fell to Roger and Shirley.

Richard Ross was drunk most of the time he was at home, if he came home at all.

Sometimes he drank to the point of hallucinating. Once, on a camping trip, he got

so drunk he thought he was in a sinking boat in the lake where they were camped.

He began screaming, “Get out, get out, get out. We‟re going down, we‟re going

down.” Roger tried to tell him they were not in the lake, but parked next to it.

Richard Ross would also be brought home by the military police with black eyes

and other injuries. Both he and Louise had affairs. Once Roger discovered his

mother naked with another man. He also found incest pornography in his parents‟

bedroom.

Richard Ross and Louise fought over his drinking. Often she would rouse

the children from sleep and they would be “hauled off to a friend‟s house or a

neighbor‟s house.” The fights were sometimes physical. One night Roger came

home and found broken glass everywhere. Later, he saw Richard Ross on the

kitchen floor with a skillet over his head; he had apparently been knocked cold.

Richard Ross would leave, and then Louise channeled her anger at her children.

Discipline was inconsistent and her rules were arbitrary. Louise hit her children

with her hands and a belt. Defendant was a particular target of his mother‟s anger.

Louise was “volatile” and had no close friends. Roger had had to intervene when

his mother attempted suicide; it was the last time he saw her.

Roger reacted to the family‟s dysfunction by “act[ing] out.” He

experimented with drugs and ran away from home. When Roger was age 17, he

became involved in a church. His mother threw him out of the house and he went

to live with a family he had met through the church. For the first time, he

experienced “what a normal life is.” He tried to share his religious experience

with defendant, but Louise would not allow defendant to go to church with Roger.

15

Roger said about defendant‟s actions, “The only thing between me being up

here and him being there, was the fact that I had a religious conversion when I was

18 . . . . He‟s got to take his responsibility for his [actions], but as far as how it all

came out . . . it‟s the most normal, natural result. I don‟t blame him.”

Defendant‟s 18-year-old niece, Ursula — Shirley Brown‟s daughter —

testified that she had begun to correspond with defendant while he was in jail on

the present charges and she had come to feel comfortable confiding in him. She

hoped to continue their relationship. Defendant‟s son Richard Anthony Tully,

known as Tony, testified that he often spoke to his father on the phone and

received letters from him. He wanted his father to live.

II. DISCUSSION

A. Suppression Motions

1. Motion to suppress asserting unlawful detention on March 7, 1987

Sandy Olsson was murdered on July 24 or 25, 1986; by March 1987, the

police investigation had failed to yield a suspect. On March 7, 1987, however,

defendant was detained for driving on a suspended license. This led to his arrest

on drug charges and ultimately to his arrest for Olsson‟s murder. Prior to trial,

defendant brought two motions to suppress the fingerprint evidence that linked

him to the murder weapon and also statements he made to police during

interrogations on March 27 and March 30, 1987. The first suppression motion

asserted this evidence was the poisonous fruit of his illegal detention on March 7,

1987. (See Wong Sun v. United States (1963) 371 U.S. 471, 484.)

a. Evidence adduced at hearing

On March 7, 1987, Officer Scott Trudeau of the Livermore Police

Department was conducting surveillance of the residence of Kenneth Perry, a

known narcotics offender. Trudeau was alone in his unmarked patrol car. Two

16

other officers, Timothy Painter and Jeff Shweib, were nearby. At about 8:00 p.m.,

Trudeau saw a Fiat Brava drive past him with two occupants. He recognized the

passenger as Ed Snyder. He also recognized the driver — defendant — because

he had stopped him two or three months earlier, but did not recall his name. The

Fiat passed Trudeau twice before parking near Perry‟s residence. Trudeau

described the occupants to Painter. Painter identified the driver as defendant.

Painter had taken a vandalism report a week earlier allegedly involving defendant.

Painter told Trudeau defendant was driving on a suspended driver‟s license and

that there was an arrest warrant out for Snyder.

Defendant got out of the car and went into the building where Perry lived,

emerged 20 to 25 minutes later, and drove away. Trudeau followed and stopped

him. Trudeau stopped defendant because of the license violation and Snyder‟s

arrest warrant. He approached defendant and asked him for his driver‟s license

and his registration. Defendant gave Trudeau his license but could not find his

registration. While Trudeau was talking to defendant about his license and

registration, Painter and Shweib were at the passenger side of the car talking to

Snyder. Painter took Snyder to his own car where Shweib remained with him.

Trudeau returned to his vehicle to write out the citation. He completed most of the

citation in his car, but defendant still had to sign it and there were some boxes on

the citation which required further discussion with defendant.

While Trudeau was in his patrol car, Painter approached defendant, who

was now standing outside his car. Because of the vandalism incident, Painter

knew defendant was a narcotics user who was normally armed and liked to use a

knife. Painter had been told by the victims that they and defendant had been

involved in a drug deal “gone sour” and defendant had retaliated against them by

damaging their car with a knife. At that point, however, the vandalism incident

was closed. Defendant had not even been listed as a suspect because there was no

17

definite evidence of his involvement. Even if he had admitted vandalizing the car,

Painter would not have arrested him because it was a misdemeanor that had not

been committed in his presence. He could only have written up a report and asked

for a complaint. Painter‟s purpose in talking to defendant was to obtain

information that either confirmed or discredited what he had been told about

defendant‟s involvement in the vandalism.

Painter told defendant “what had been said about him being a narcotics user

and being armed” with a knife. He asked defendant if he could search him.

Defendant said, “Sure, I don‟t have anything on me.” Painter searched defendant

by using a flashlight. He held the flashlight and peered in defendant‟s clothing

and around him but did not want to “squeeze things too much” because he was

afraid of being stuck by a needle.6 Painter found a bindle in the coin pocket of

defendant‟s left pants pocket. The bindle contained white power that Painter

believed was methamphetamine. He turned it over to Trudeau.

As Trudeau returned to defendant‟s car to complete the citation, he heard

Painter ask defendant for consent to search and defendant reply “[s]omething to

the effect, you know, go ahead and knock yourself out, something like that.”

Trudeau heard Painter say he was concerned that defendant carried weapons but

could not recall “[w]ord for word” what Painter said when he asked defendant if

he could search him. After Painter gave Trudeau the bindle, Trudeau asked

defendant for permission to search his car. Defendant said, “[S]ure, go ahead.”

Trudeau found three hypodermic syringes and a bent, burnt spoon. Defendant was

6 At the suppression hearing, Painter testified that he told defendant he

wanted to search him for “weapons and narcotics.” He was confronted with his

testimony at the preliminary hearing, at which he testified that he searched

defendant because he thought he might have a weapon, but made no explicit

mention of drugs. In response, Painter testified, “I believe it‟s more to that,” but

conceded he did not specifically recall asking defendant whether he could also

search him for drugs as well as a weapon.

18

then arrested for possession of methamphetamine, possession of hypodermic

syringes and driving on a suspended license. He was transported to the police

station where a booking search revealed seven or eight bindles of

methamphetamine secreted in his underwear.

Trudeau read defendant his Miranda rights (Miranda v. Arizona (1966) 384

U.S. 436), which defendant waived. However, when Trudeau told defendant he

“was going to ask [defendant] questions pertaining to the items that were found on

him, [defendant] told [Trudeau] he didn‟t want to talk to [him].” Trudeau stopped

questioning defendant. Defendant then “initiated [a] conversation about how he

did not want to go to jail on that particular evening.” Trudeau told him there were

“ways for that not to occur,” specifically that they could reach an agreement for

defendant to “work off his offense,” by becoming an informant. Defendant was

interested and Trudeau went out to call a narcotics detective, Detective Jensen.

While he and defendant were waiting for Jensen to arrive, they talked. Trudeau

learned that defendant had been in the Marine Corps, was injecting himself with

methamphetamine four or five times a day, and supported his habit by breaking

into cars and houses and selling items he took from them. He also told Trudeau

that he was being treated for stomach problems at a Veterans Administration

hospital. Trudeau told defendant that what he had revealed about his drug habit

and the way he supported it would not be used against him, and it did not appear in

the police report. After Jensen arrived, Trudeau left the room. Jensen came out

and said he and defendant had reached a deal. Defendant was released that night.

At this point, Trudeau knew very little about the Olsson investigation,

although he had read an FBI profile of it. It “never entered [his] mind” that

defendant might be a suspect in that crime. Trudeau was off work for a few days

after the interview with defendant. When he returned he discovered he still had

defendant‟s driver‟s license attached to his clipboard. He sought out Detective

19

Jensen, who told him the deal with defendant was off because defendant had failed

to keep his end of the bargain. Jensen said he was going to file the drug case.

Trudeau said he would return defendant‟s license to him. He drove to the

residence listed on defendant‟s driver‟s license — 1572 Hollyhock — and realized

it was only two houses from where Sandy Olsson had lived. He remembered

defendant had told him he was being treated at a Veterans Administration hospital

and that Olsson was a nurse at the Veterans Administration medical center. He

also remembered that the FBI profile suggested that the suspect lived in the area of

the crime scene and was probably a drug user. Trudeau went to the address but

found no one home. He returned to the police station and talked to Sergeant

Robertson about defendant. As he was leaving, he ran into another officer, John

Leal. Leal told Trudeau that defendant was a suspect in an assault with a deadly

weapon case. Trudeau conveyed this new information to Robertson. He

suggested Robertson run defendant‟s fingerprints against the prints found on the

murder weapon.

Sergeant Robertson and his men had canvassed between 150 and 200

houses around the crime scene. Defendant‟s name had not come up from this

canvass. Between July 1986 and March 1987, Robertson had looked at around 30

potential suspects. He had sent fingerprint cards of potential suspects to the

California Department of Justice in Sacramento to compare to the prints found on

the murder weapon but there had been no matches. Defendant‟s fingerprints had

been among those sent to Sacramento.7

As of March 17, 1987, when Trudeau approached him, Robertson had a

new supervisor, Sergeant Jack Stewart, who had been assigned to the case in

January 1987. He told Robertson he wanted to recanvass the entire neighborhood

7 The record is unclear why defendant‟s fingerprints were among those

submitted to the Department of Justice.

20

to determine who owned each house, and who had been living in the houses,

whether as renters or visitors, at the time of the murder. A plot map of the houses

surrounding the murder scene indicated that 1572 Hollyhock, where defendant had

lived, had been double-checked during the first canvass to verify that someone at

the residence had been interviewed. Both Robertson and Stewart testified that the

new canvass would have resulted in a triple check of that address. Stewart also

testified that he planned to run a computerized address check to identify all

residents at houses around the scene of the crime. He was also going to see if it

was possible to run a computer check through the Department of Motor Vehicles

to determine whose driver‟s licenses listed those houses as their residence.

Based on the information about defendant provided to Robertson by Officer

Trudeau on March 17, 1987, Robertson took defendant‟s fingerprint card, from a

1973 juvenile offense, and hand-delivered it to the Department of Justice in

Sacramento. Angelo Rienti, a latent fingerprint analyst, told Robertson that

defendant‟s fingerprint matched the print on the murder weapon.8 Defendant‟s

palm print, taken after his arrest, was later matched to a partial palm print on the

murder weapon.

Defendant was arrested on March 27, 1987, at the home of his wife‟s

parents. Police went there with arrest warrants on drug charges. Sergeant Stewart

and Detective Tart went to the front door of the residence while Sergeant

Robertson and Detective Newton were deployed to the rear. Diane Holbert, Vicky

Tully‟s mother, answered the front door. She told police defendant was not there,

but let the police into her house to talk to her. Once inside, Stewart asked Holbert

8 Stewart testified that the earlier comparison of defendant‟s prints to the

print on the knife had not yielded a match because the analyst performing the

earlier comparison had looked only at the right middle finger for each print card;

the match that was eventually made was to defendant‟s right ring finger.

21

if she knew where Vicky was. Holbert said no. However, as they were talking

Stewart saw a woman in the hallway who he thought was Vicky Tully leaving one

room and about to enter another. He asked her if she was Vicky Tully. She said

yes and asked why he wanted to know. Stewart told her he was looking for

defendant. Vicky looked at the door she was walking toward and told police

defendant was asleep inside the room. She said she would get him because he did

not have clothes on.

As she opened the door, Stewart went swiftly down the hall and told her the

police would get him. At that point, the door was opened about a foot. Stewart

saw a man lying on his stomach with his head on a pillow. Stewart entered the

room, yelled at him to wake him and asked him if he was Richard Tully. Stewart

identified himself as a police officer. Defendant woke slowly and identified

himself as Richard Tully. Stewart told him the police had warrants for his arrest.

Defendant was arrested, handcuffed and taken to jail wearing only a pair of blue

jeans.

b. Trial court ruling

Defendant‟s initial motion, filed on February 2, 1992, asserted that all

evidence arising from defendant‟s initial detention on March 7, 1987, and from his

subsequent arrest on March 27, 1987, should be suppressed as a product of an

illegal search and seizure. Following the hearing on the motion, defendant was

allowed to file a supplementary motion specifying the grounds for suppression.

These included: (1) any consent by defendant to a search of his person in the

course of the March 7 vehicle stop was invalid as the product of an unlawful

interrogation because he was not given a Miranda warning; (2) even if valid, the

search of defendant‟s person exceeded the scope of his consent; (3) statements he

made after his arrest on March 7 on drug charges regarding his drug use and

22

criminal activity were involuntary; and (4) entry into the bedroom where he was

arrested violated section 844‟s knock-notice requirement. The prosecution argued

the stop was lawful but, even if it was illegal, the fingerprint comparison evidence

connecting defendant to Olsson‟s murder was not tainted by such illegality. The

prosecution also argued that the fingerprint comparison evidence would have

inevitably been discovered in light of the new investigative measures that Sergeant

Stewart intended to undertake.

The trial court concluded that the search of defendant‟s person did not

exceed the scope of his consent. It found further, however, that the statements he

made following his March 7 arrest about his drug use, his criminal activity to

support his drug use — breaking into homes and cars — and that he was being

treated at a Veterans Administration hospital were involuntary and must be

suppressed because he had been told these statements would not be used against

him.

Nonetheless, the court declined to suppress the fingerprint comparison

evidence because it “was not tainted by the illegally obtained statements and is

admissible.” Specifically, “[a]t the time the involuntary statements were obtained,

the officer had no reason to suspect or believe the conversation would turn up

evidence of any crime other than the narcotics offenses. In the court‟s view, this

was a case of investigatory serendipity.” The court also found “the police would

inevitably have again compared defendant‟s prints with those found on the knife

found at the murder scene.” On this point, the court found “credible” the

prosecution‟s evidence that in the “normal course of the continuing murder

investigation, [defendant] would have emerged as a prime suspect quite apart from

the statements he gave to Officer Trudeau.”

23

c. Discussion

“In reviewing a suppression ruling, „we defer to the superior court‟s

express and implied factual findings if they are supported by substantial evidence,

[but] we exercise our independent judgment in determining the legality of a search

on the facts so found.‟ ” (People v. Lomax (2010) 49 Cal.4th 530, 563.)

Thus, while we ultimately exercise our independent judgment to determine

the constitutional propriety of a search or seizure, we do so within the context of

historical facts determined by the trial court. “As the finder of fact . . . the

superior court is vested with the power to judge the credibility of the witnesses,

resolve any conflicts in the testimony, weigh the evidence and draw factual

inferences in deciding whether a search is constitutionally unreasonable.” (People

v. Woods (1999) 21 Cal.4th 668, 673.) We review its factual findings “ „ “under

the deferential substantial-evidence standard.” ‟ ” (People v. Ayala (2000) 23

Cal.4th 225, 255.) Accordingly, “[w]e view the evidence in a light most favorable

to the order denying the motion to suppress” (People v. Manderscheid (2002) 99

Cal.App.4th 355, 357), and “[a]ny conflicts in the evidence are resolved in favor

of the superior court‟s ruling.” (People v. Limon (1993) 17 Cal.App.4th 524, 529.)

Moreover, the reviewing court “must accept the trial court‟s resolution of disputed

facts and its assessment of credibility.” (People v. Valenzuela (1994) 28

Cal.App.4th 817, 823.)

Because the Attorney General asserts that many of defendant‟s arguments

on appeal are forfeited by his failure to have advanced them in the trial court, we

must also briefly examine the question of when an argument not made to the trial

court is, nonetheless, cognizable on appeal.

Constitutional claims raised for the first time on appeal are not subject to

forfeiture only when “the new arguments do not invoke facts or legal standards

different from those the trial court itself was asked to apply, but merely assert that

24

the trial court‟s act or omission, insofar as wrong for the reasons actually

presented to the court, had the additional legal consequence of violating the

Constitution.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17, italics omitted;

see People v. Yeoman (2003) 31 Cal.4th 93, 117.) However, “[a] party cannot

argue the court erred in failing to conduct an analysis it was not asked to conduct.”

(People v. Partida (2005) 37 Cal.4th 428, 435.)

Defendant contends he was unlawfully detained because the duration of the

traffic stop was excessive in relation to its purpose. Additionally, he claims that

Officer Painter‟s questions about defendant‟s involvement in the vandalism

incident were unjustified by the purpose of the stop and lacked a separate

“reasonable suspicion” of criminal activity. He concludes that because the

detention was excessive and the questioning unjustified, his consent was

involuntary. Additionally, he asserts his consent to search his person was

involuntary because he was not given Miranda advisements before consent was

sought.

Only the Miranda claim was argued below; the others are forfeited. The

questions raised by these arguments — whether the duration of the stop was

excessive and whether Painter‟s questions were proper — involve analyses the

trial court was not asked to conduct and potentially required factual bases

additional to those adduced at the hearing.9 The claims are also without merit.

9 Here, as elsewhere, defendant also argues forfeiture should not apply

because his claim involves the deprivation of fundamental rights, citing People v.

Vera (1997) 15 Cal.4th 269. In Vera, we observed that a defendant “is not

precluded from raising for the first time on appeal a claim asserting the

deprivation of certain fundamental, constitutional rights.” (Id. at p. 276.) But

none of the narrow class of such rights — a plea of once in jeopardy and the right

to jury trial (id. at pp. 276-277) — is implicated here. Moreover, that dictum in

Vera was not intended to provide defendants with an “end run” around the

forfeiture rule, thus eviscerating it. We therefore reject defendant‟s reliance on

Vera here and at every other point at which he invokes it to avoid forfeiture.

25

“ „As a general matter, the decision to stop an automobile is reasonable

where the police have probable cause to believe that a traffic violation has

occurred. (Whren v. United States (1996) 517 U.S. 806, 810 [135 L.Ed.2d 89, 116

S.Ct. 1769].) If there is a legitimate reason for the stop, the subjective motivation

of the officer is irrelevant.” (People v. Lomax, supra, 49 Cal.4th at p. 564, fn.

omitted; see People v. Torres (2010) 188 Cal.App.4th 775, 785-786.) “[T]he law

contemplates that the officer may temporarily detain the offender at the scene for

the period of time necessary to discharge the duties that he incurs by virtue of the

traffic stop.” (People v. McGaughran (1979) 25 Cal.3d 577, 584 (McGaughran);

see People v. Brown (1998) 62 Cal.App.4th 493, 496-497.) Those duties may

“necessarily include the time required by the officer to write out the citation and

obtain the offender‟s promise to appear . . . . [U]pon demand of a police officer

every motorist must present for „examination‟ both his driver‟s license [citation]

and the registration card of the vehicle [citation]. . . . And although not

specifically compelled by law, certain other steps customarily taken as matters of

good police practice are not less intimately related to the citation process: for

example, the officer will usually discuss the violation with the motorist and listen

to any explanation the latter may wish to offer; and if the vehicles of either are

exposed to danger, the officer may require the driver to proceed to a safer location

before the investigation continues. [Citations.] [¶] Each of the foregoing steps, of

course, requires a certain amount of time to accomplish.” (McGaughran, supra, at

p. 584, fn. omitted.)

Defendant argues that “once [the citation] process was completed, there

was no cause to detain him for questioning, and any consent to search, which was

obtained from [defendant] during the illegal questioning was tainted.” This claim

assumes that the citation process was completed when Officer Painter questioned

defendant about the vandalism incident and asked to search him. Not so.

26

After Trudeau asked defendant for his license and registration, and

discussed them with him — while Painter and Shweib were removing Snyder from

defendant‟s car — Trudeau testified he went back to his car to write the citation,

but still had to obtain defendant‟s signature and discuss with defendant some

boxes on the citation form. While Trudeau was in his car working on the citation,

Painter approached defendant, spoke to him about the vandalism incident and

asked for his consent to search. Thus, defendant was not detained after the

completion of the citation process to allow Painter to question him. As the factual

predicate of his argument falls, the argument itself — that the detention was

excessive in relation to the time required by Trudeau to complete the citation

process — also collapses.

Moreover, Painter was permitted to ask defendant about matters unrelated

to the traffic stop so long as the questioning did not prolong the stop beyond the

time required to cite defendant. (See McGaughran, supra, 25 Cal.3d at p. 584

[“[i]f a warrant check can be completed” within the period of time necessary for

the completion of the citation process, “no reason appears to hold it improper:

because it would not add to the delay already lawfully experienced by the offender

as a result of his violation, it would not represent any further intrusion on his

rights”], fn. foll. quote; see People v. Bell (1996) 43 Cal.App.4th 754, 767

[“investigative activities beyond the original purpose of a traffic stop are

permissible as long as they do not prolong the stop beyond the time it would

otherwise take”].)

In People v. Brown, supra, 62 Cal.App.4th 493, the defendant was lawfully

detained for riding a bicycle without a light or reflectors. While running a warrant

check, the detaining officer asked the defendant about his probation status and,

evidently, the contents of his fanny pack. A consent search of the pack yielded

methamphetamine. On appeal, the defendant argued that it was improper for the

27

officer to have questioned him about matters unrelated to the vehicle stop. The

reviewing court rejected the claim: “Questioning during the routine traffic stop on

a subject unrelated to the purpose of the stop is not itself a Fourth Amendment

violation. Mere questioning is neither a search nor a seizure.” (Id. at p. 499; see

United States v. Shabazz (5th Cir. 1993) 993 F.2d 431, 435-437 [where car

stopped for speeding, police could question defendant about his travels and ask

consent to search his car as long as they were waiting for results of computer

check on his driver‟s license].)

In People v. Bell, supra, 43 Cal.App.4th 754, where a similar claim was

raised, the court observed: “Defendant argues that . . . police cannot ask questions

unrelated to the purpose of the traffic stop, regardless of whether those questions

prolong the stop. The warrant check in McGaughran, [supra, 25 Cal.3d 577]

however, was unrelated to the purpose of the traffic stop; nevertheless, the court

held that a warrant check would be permissible as long as it did not prolong the

stop.” (Id. at p. 767.) Nor must questioning on an unrelated matter, which does

not unduly prolong the traffic stop, be justified by reasonable suspicion of

wrongdoing. (People v. Gallardo (2005) 130 Cal.App.4th 234, 238 [where,

during traffic stop, police asked defendant whether he had anything illegal in his

car, obtained his consent to search and found drugs, an articulable suspicion of

wrongdoing preceding search request was not required “as long as the detention

[was] not unreasonably prolonged as a result of the request to search”].)

Accordingly, we reject defendant‟s claims that the traffic stop detention

was unduly prolonged, that Painter‟s questions about the vandalism incident were

improper because they were unrelated to the traffic stop, or that a separate

reasonable suspicion of wrongdoing was required before Painter could inquire or

seek consent to search, or that defendant‟s consent was obtained in the course of

an illegal detention.

28

Defendant claims that his consent to search his person was improper

because Painter did not give him his Miranda rights before questioning him about

the vandalism incident. In Berkemer v. McCarty (1983) 468 U.S. 420 (Berkemer),

the Supreme Court held that a routine traffic stop, although a detention, is not

tantamount to a formal arrest, and, therefore, questions asked during such

detentions do not constitute a custodial interrogation requiring Miranda warnings.

(Id. at pp. 435-440.) The court characterized routine traffic stops as similar to

Terry stops (Terry v. Ohio (1968) 392 U.S. 1), which permit police to briefly

question individuals about whom the police entertain a reasonable suspicion of

criminal activity that falls short of probable cause. “[T]his means that the officer

may ask the detainee a moderate number of questions to determine his identity and

to try to obtain information confirming or dispelling the officer‟s suspicions. But

the detainee is not obliged to respond. And, unless the detainee‟s answers provide

the officer with probable cause to arrest him, he must then be released. The

comparatively nonthreatening character of detentions of this sort explains the

absence of any suggestion in our opinions that Terry stops are subject to the

dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops

prompts us to hold that persons temporarily detained pursuant to such stops are not

„in custody‟ for the purposes of Miranda.” (Berkemer, at pp. 439-440, fns.

omitted.)

Here, defendant was lawfully detained for a traffic violation during which

Officer Painter asked him questions about the vandalism incident either to confirm

or dispel his information that defendant had been involved. While defendant was

not free to leave until the citation process was completed, he was under no

obligation to answer Painter‟s questions. Unless his answers had provided Painter

with probable cause to arrest him for vandalism — which, in any case, Painter

testified he could not have done — he would have been free to leave once the

29

citation was completed. Accordingly, pursuant to Berkemer, Painter was not

required to give defendant Miranda warnings before questioning him and his

failure to do so did not invalidate defendant‟s consent to search. We reject

defendant‟s assertions to the contrary.10

Next, defendant argues that the search of his person exceeded the scope of

his consent because he consented only to a search for weapons, not drugs. He

claims “Painter exceeded the scope of any consent when he forced his fingers

in[to] the coin pocket of [defendant‟s] jeans in hopes of finding narcotics, under

the pretext of searching for a knife, which could not possibly fit in that pocket.”

“The standard for measuring the scope of a suspect‟s consent under the Fourth

Amendment is that of „objective‟ reasonableness — what would the typical

reasonable person have understood by the exchange between the officer and the

suspect?” (Florida v. Jimeno (1990) 500 U.S. 248, 251.) “Whether the search

remained within the boundaries of the consent is a question of fact to be

determined from the totality of the circumstances. [Citation.] Unless clearly

erroneous, we uphold the trial court‟s determination.” (People v. Crenshaw

(1992) 9 Cal.App.4th 1403, 1408; see United States v. Sierra-Hernandez (9th Cir.

1978) 581 F.2d 760, 764.)

Defendant‟s argument focuses on a perceived discrepancy about what

Officer Painter said he told defendant. At the suppression hearing, Painter

testified that he told defendant he wanted to search him for weapons and narcotics,

10 We also reject defendant‟s related claim that his statement was involuntary

because he was not told he could refuse to consent. The argument is forfeited

because it was not raised below. It is also without merit. The circumstances

surrounding Painter‟s request for consent to search are such that the search was

not rendered involuntary because he did not tell defendant he had a right to refuse

to consent. (See United States v. Drayton (2002) 536 U.S. 194, 207 [in assessing

validity of consent “the totality of the circumstances must control, without giving

extra weight to the absence of this type of warning”].)

30

while at the preliminary hearing Painter testified he searched defendant because he

thought he might have a weapon, but made no mention of narcotics. Defendant

also cites testimony by Officer Trudeau who, when asked whether he heard

Painter say something to defendant about weapons but not drugs, replied, “He said

weapons, correct.”

Defendant‟s focus is too narrow. The question is what a reasonable person

would have understood from his or her exchange with the officer about the scope

of the search. To answer that question, we look at the totality of the

circumstances. Here, Painter testified that he told defendant about his information

that defendant used drugs and carried a knife. When he asked defendant if he

could search him, defendant said, “Sure, I don‟t have anything on me.” When

Painter was confronted by his seemingly inconsistent testimony about whether he

had asked to search for both a weapon and drugs, he responded, “I recall

mentioning the weapon and I recall mentioning the narcotics use. But I —

apparently made reference in the transcript of searching for weapons. But I don‟t

recall exactly narrowing my scope of my search at that point.” As for Trudeau, his

response was, at best, ambiguous and, in any event he also testified that he did not

remember what Painter said to defendant “[w]ord for word,” in asking his consent

to search.

Thus, Painter knew defendant was an armed drug user, and communicated

his awareness to defendant before he asked to search him. It is therefore

reasonable to conclude — as evidently the trial court did — that defendant

understood Painter was asking to search for both drugs and weapons. It appears,

moreover, that the trial court found Painter to be a credible witness. We do not

second-guess the trial court‟s credibility findings nor, on the record before us, can

we conclude its implied determination that defendant understood the search to be

for both drugs and weapons was clearly erroneous. For this reason, we reject

31

defendant‟s further claim that the consent search of his car, his arrest, and the

search of his person at the police station were tainted by the illegality of the initial

search.

Defendant asserts that his statements to Trudeau that were suppressed by

the trial court because they were induced by Trudeau‟s promise not to use them

against defendant — a promise broken when he repeated them to Sergeant

Robertson — should also have been suppressed because they were taken in

violation of Miranda. From this premise, he argues that all further evidence

connecting him to Olsson‟s murder should have been suppressed as the fruit of the

Miranda violation. Not so. Trudeau advised defendant of his Miranda rights.

Defendant invoked those rights by declining to speak about the events surrounding

his arrest. At that point, Trudeau ceased his questioning. Defendant reinitiated the

conversation when he told Trudeau he did not want to go to jail that night, after

which Trudeau suggested defendant might “work off” his offense by becoming an

informant. Defendant indicated his interest, and a narcotics detective was

summoned. While he and Trudeau waited for the detective, defendant made the

statements at issue here. Thus, it was defendant who reinitiated the conversation

of his own volition after Trudeau had acceded to his initial invocation of his right

to remain silent. There was no Miranda violation. (Edwards v. Arizona (1981)

451 U.S. 477, 484-485; People v. Mickey (1991) 54 Cal.3d 612, 648-649.)

As noted, although the trial court suppressed defendant‟s statements to

Trudeau on the ground they were induced by Trudeau‟s promise not to use them

against defendant, it went on to find that the fingerprint evidence need not be

suppressed either because it was the result of “investigative serendipity,” or would

inevitably have been discovered. Defendant contends the latter rulings were error.

The Attorney General contends it was the trial court‟s initial finding that

defendant‟s statements were involuntary that is the error here. The Attorney

32

General argues that there is no substantial evidence those statements were induced

by Trudeau‟s promise not to use them because defendant spoke voluntarily before

Trudeau made that promise. We agree.11

“In general, a confession is considered voluntary „if the accused‟s decision

to speak is entirely “self-motivated” [citation], i.e., if he freely and voluntarily

chooses to speak without “any form of compulsion or promise of rewards . . . .”

[Citation.]‟ [Citation.] However, where a person in authority makes an express or

clearly implied promise of leniency or advantage for the accused which is a

motivating cause of the decision to confess, the confession is involuntary and

inadmissible as a matter of law.” (People v. Boyde (1988) 46 Cal.3d 212, 238.)

“A confession is „obtained‟ by a promise within the proscription of both the

federal and state due process guaranties if and only if inducement and statement

are linked, as it were, by „proximate‟ causation. . . . The requisite causal

connection between promise and confession must be more than „but for‟:

causation-in-fact is insufficient.” (People v. Benson (1990) 52 Cal.3d 754, 778.)

“This rule raises two separate questions: was a promise of leniency either

expressly made or implied, and if so, did that promise motivate the subject to

speak?” (People v. Vasila (1995) 38 Cal.App.4th 865, 873.) To answer these

questions “ „an examination must be made of “all the surrounding circumstances

— both the characteristics of the accused and the details of the interrogation.” ‟ ”

(People v. McWhorter (2009) 47 Cal.4th 318, 347.)

11 “ „[T]he People may, on an appeal by the defendant and pursuant to the

provisions of section 1252, obtain review of allegedly erroneous rulings by the

trial court in order to secure an affirmance of the judgment of conviction.‟

[Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1076-1077, quoting

People v. Braeseke (1979) 25 Cal.3d 691, 701, italics omitted; § 1252 [“On an

appeal by a defendant, the appellate court shall, in addition to the issues raised by

the defendant, consider and pass upon all rulings of the trial court adverse to the

State which it may be requested to pass upon by the Attorney General”].)

33

Officer Trudeau testified that defendant made the statements in question

while he and Trudeau were conversing as they awaited the arrival of the narcotics

detective with whom defendant was going to work out an agreement that would

allow him to be released that night in exchange for becoming a police drug

informant. When asked specifically whether “this information about the use of

methamphetamine and how [defendant] supported his habit” was made “in

response to something . . . you said to him,” Trudeau testified, “No, it was not.”

Rather, Trudeau testified these statements were made “after [defendant] had

agreed to work his case off.” Moreover, it was only after defendant made these

unsolicited statements that Trudeau told him those statements would not be used

against him in the drug case.

Trudeau‟s uncontroverted testimony establishes that defendant‟s statements

about his drug use and burglaries were made after defendant had already agreed to

“work off” his arrest, were not solicited by Trudeau, and were not part of any

inducement for defendant to become an informant. Furthermore, Trudeau‟s

testimony shows that the promise he made to defendant not to use those statements

— the very promise that the trial court ruled rendered those statements involuntary

— was not given until after the statements had been made. There is simply no

evidence in the record, much less substantial evidence, to support the trial court‟s

ruling that Trudeau‟s promise induced the statements. Rather, the statements were

gratuitous and untethered to any promise made by Trudeau.

Accordingly, we conclude that the trial court erred when it suppressed

defendant‟s statements as involuntary. Those statements should have been

admitted and it was unnecessary for the trial court to justify admission of the

fingerprint evidence as having been purged of the taint of the involuntary

statement or as admissible under the inevitable discovery doctrine. Likewise, it is

unnecessary for us to address the propriety of those justifications.

34

Inasmuch as we conclude that the fingerprint comparison evidence was not

the fruit of any illegal police conduct, we necessarily reject defendant‟s further

claim that his eventual arrest for the Olsson murder and statements he made to

police on March 27 and March 30, 1987, were likewise tainted.

2. Motion to suppress defendant’s statements on March 27 and

March 30, 1987

a. Evidence adduced at hearing

Shortly before trial began, defendant moved to suppress the statements he

gave to police on March 27 and March 30, 1987. During the March 27

interrogation defendant admitted to having lived at John Chandler‟s residence two

houses from Olsson‟s residence. He otherwise denied knowing Olsson or having

any involvement in her murder. During the March 30 interrogation, however, he

claimed he had been taken to Olsson‟s house by a man he knew as “Doubting

Thomas” to purchase drugs from her. Defendant admitted he had had sexual

intercourse with Olsson but blamed “Doubting Thomas” for her murder.

Defense counsel argued the statements were obtained in violation of

defendant‟s Miranda rights and were also involuntary.

Sergeant Robertson testified that defendant was taken into custody on

March 27, 1987, at about noon. When arrested, he was wearing only a pair of blue

jeans, but no shirt or shoes. Robertson could not recall if defendant was given

clothing at the police station. At the same time defendant was arrested, his wife,

Vicky Tully, was instructed to come to the police station because she was being

investigated for writing checks on insufficient funds. The check investigation had

originally been assigned to Robertson but was reassigned to Detective Jacobs, to

whom Vicky Tully spoke. She admitted the charges, but she was not arrested

because it was the policy of the Livermore Police Department to refer such cases

to the district attorney for a misdemeanor complaint.

35

The police interrogation of defendant on March 27 began about 6:00 p.m.

The interrogation was conducted initially by Sergeant Robertson and Detective

Newton. Toward the end of the session, however, Officer Trudeau came in and

Detective Newton left. At first, the police used a concealed microphone but,

because the quality of the recording was poor, they replaced it with a microphone

that they put on the table at which they and defendant were sitting. The

interrogation ended at 12:05 a.m.

At the outset of the interrogation, defendant was advised of, and waived,

his rights. During the interrogation, defendant was supplied with candy bars,

pizza, and soft drinks and allowed cigarette and bathroom breaks. At one point, he

was put into an ankle shackle because the officers were in and out of the room.

Toward the end of the interview, Robertson asked defendant if he would take a

polygraph test. Defendant asked, “Do I have a choice?” Robertson replied with a

series of rhetorical questions about whether defendant was being coerced, e.g.,

“Do I have a rubber hose?” “Hot lamp?” “Water dripping on your face?” “[A] gun

to your head?” Defendant replied in the negative. Robertson continued, “There‟s

your choices.”

“A. Well this charge you placed on me and the accusations, to say the least

are serious, I think it would be —

“Q. In the State of California there is nothing more serious than murder.

“A. Okay.

“Q. Period.

“A. Then I think it would behoove me to consult a lawyer.

“Q. Okay. Before submitting to a polygraph examination?

“A. Um, yeah. Before submitting to any questions I wouldn‟t want to

answer.”

36

After some further discussion about polygraph machines and their

fallibility, defendant said, “I think it best that if, if I wanted to face, I think it‟d be

best if I consult a lawyer.” He and Robertson discussed whether defendant knew

how the machines worked. Defendant said, “I don‟t know [so] that‟s why I‟d like

to talk to somebody who does.” There was a short break in the interrogation.

When it resumed, Robertson said, “When we last left this tape, we were talking

about polygraph and you mentioned talking to a lawyer. Do you want a lawyer

now? [¶] A. No. I‟m all right. [¶] Q. You‟re sure? [¶] A. Yeah.”

At the conclusion of the interrogation, Vicky Tully and defendant spoke for

about five minutes. Afterwards, defendant was transported to the county jail.

On Sunday, March 29, Vicky Tully called the police station and asked to

speak to Robertson or Newton about information she had regarding the case.

Neither officer was on duty that day, so Roberson did not talk to her until Monday,

March 30. Vicky Tully came to the police station and told Robertson defendant

had been present at the murder but that “Doubting Thomas” had killed Sandy

Olsson. She and Robertson talked about the witness protection program because

she was afraid of Doubting Thomas. Robertson told her if the information she had

given him was true, and if she qualified, arrangements could be made for her to go

into the program but that the final decision rested with the district attorney.

Robertson and Newton then went to the jail to talk to defendant. Vicky

Tully followed in her own car. The taped portion of the March 30 interview began

at 8:08 p.m. Before the taping began, the officers told defendant about the

information his wife had given them. Defendant did not respond. Robertson

thought that defendant “was thinking,” because he might be frightened of

Doubting Thomas. He told defendant that he and his family might possibly

qualify for the witness protection program. Less than a minute passed between the

time Robertson initially confronted him with what Vicky had said and when he

37

told him about the witness protection program.12 Defendant asked about the

program and there was some further discussion about it, after which he wanted to

speak to his wife. She entered the room and she and defendant spoke privately.

After she left, the taped portion of the interview began. Defendant was again

advised of and waived his rights. After acknowledging and waiving his rights,

defendant asked, “Can you add in the part about the Witness Protection

program[?]” Newton replied, “Ok, prior to this tape being come on [sic] . . .

we‟ve discussed with [defendant] and with [defendant‟s] wife Vicky that some

testimony that might be given or furnished by [defendant] might involve . . . the

Witness Protection Program, be it the Federal and [sic] the State level. . . . I‟ve

assured [defendant] that in the event that the testimony and what information that

he has meets that criteria then we would work on the Witness Protection Program

and get he and his wife involved in that program. This testimony may be

involving . . . the Hells Angels. Is that correct Richard? [¶] [A]: Yes it is.”

Defendant also testified at the suppression hearing. According to

defendant, his family‟s participation in the witness protection program was the

“key part” in his decision to talk to police. He also testified that the police told

him unless he cooperated his wife would go to jail on “the check charges” and his

children would be placed in foster homes. Detective Newton, who was also called

by the defense, denied any such threats were made.

12 Defendant asserts that he remained silent for 30 minutes after Robertson

told him about his wife‟s statement. The only citation he provides in support of

this assertion is to a page in the reporter‟s transcript that records some discussion

between the court and counsel prior to the hearing It contains nothing about the

length of defendant‟s silence. By contrast, Sergeant Robertson specifically

testified that defendant‟s silence was “momentary.”

38

b. Trial court ruling

Defense counsel argued that defendant‟s March 27 interrogation was taken

in violation of Miranda because his statement “Then I think it would behoove me

to consult a lawyer” was an invocation of his right to counsel. Counsel argued

defendant‟s March 30 interrogation violated Miranda because his lack of response

when initially confronted by police with the information given them by his wife

was an invocation of his right to remain silent. Defense counsel also argued that

the statement was involuntary because it was induced by the promise of placing

defendant and his family in the witness protection program.

The trial court denied the motion in its entirety. The court found that

defendant did not “unambiguously invoke his right to counsel” during the March

27 interrogation, nor did his failure to immediately respond to the officers at the

beginning of the March 30 interrogation constitute an invocation of his right to

remain silent. The court also concluded, based on “the totality of the

circumstances,” that discussions of the witness protection program did not render

defendant‟s statement on March 30 involuntary.

c. Discussion

Defendant contends that his March 27 statement was obtained in violation

of Miranda because the police continued to question him after he had invoked his

right to counsel. “In Edwards v. Arizona, 451 U.S. 477 (1981), we held that law

enforcement officers must immediately cease questioning a suspect who has

clearly asserted his right to have counsel present during custodial interrogation.”

(Davis v. United States (1994) 512 U.S. 452, 454 (Davis).) In Davis, the Court

had held that such invocation must be unambiguous. “As we have observed, „a

statement either is such an assertion of the right to counsel or it is not.‟ [Citation.]

. . . [A] suspect . . . must articulate his desire to have counsel present sufficiently

clearly that a reasonable police officer in the circumstances would understand the

39

statement to be a request for an attorney. If the statement fails to meet the

requisite level of clarity, Edwards does not require that the officers stop

questioning the suspect.” (Davis, at p. 459.) Moreover, the court “decline[d] to

adopt a rule requiring officers to ask clarifying questions.” (Id. at p. 461.)

“Consistent with Davis, a reviewing court . . . must ask whether, in light of the

circumstances, a reasonable officer would have understood a defendant‟s reference

to an attorney to be an unequivocal and unambiguous request for counsel, without

regard to the defendant‟s subjective ability or capacity to articulate his or her

desire for counsel, and with no further requirement imposed upon the officers to

ask clarifying questions of the defendant. [Citation.] In reviewing the issue,

moreover, the reviewing court must „accept the trial court‟s resolution of disputed

facts and inferences, and its evaluations of credibility, if supported by substantial

evidence. [The reviewing court] independently determine[s] from the undisputed

facts and the facts properly found by the trial court whether the challenged

statement was illegally obtained.‟ [Citation.]” (People v. Gonzalez (2005) 34

Cal.4th 1111, 1125.)

Applying these standards to the facts before us, we uphold the trial court‟s

ruling. The context in which defendant referred to an attorney was not a request

for counsel for purposes of the interrogation then occurring, but an indication that,

if required to submit to a polygraph test, he would first want to consult with a

lawyer. This interpretation of his initial remark is reinforced by further statements

he made in the context of the fallibility of polygraph machines and his lack of

understanding of how they operated, i.e., “I think it best that if, if I wanted to face

[it], I think it‟d be best if I consult a lawyer,” and “I don‟t know [so] that‟s why I‟d

like to talk to somebody who does.” Finally, any ambiguity regarding his meaning

was dispelled when, after a short break, Sergeant Robertson, referring to his earlier

mention of lawyer while discussing the polygraph test, asked him pointblank, “Do

40

you want a lawyer now?” to which defendant replied, “No. I‟m all right.”

Robertson pressed him, asking, “You‟re sure?” Defendant replied, “Yeah.” Thus,

defendant did not unambiguously invoke his right to counsel during the March 27

interrogation and the police were not required to cease their questioning.

We also conclude that defendant‟s momentary silence when confronted by

police with his wife‟s statements to them at the beginning of the March 30

interrogation was not an invocation of his right to remain silent. “As Miranda

itself recognized, police officers must cease questioning a suspect who exercises

the right to cut off the interrogation. . . . „Whether the suspect has indeed invoked

that right, however, is a question of fact to be decided in the light of all the

circumstances . . . .‟ [Citation.]” (People v. Musselwhite (1998) 17 Cal.4th 1216,

1238.) The standard of review is the same as set forth above with respect to

whether a defendant has invoked his or her right to counsel. (See People v.

Crittenden (1994) 9 Cal.4th 83, 128-129.)

Sergeant Robertson testified, “We informed [defendant] that Vicky had

come to see us and had told us what he had told her regarding the homicide scene

[and] Doubting Thomas.” Thus, defendant was not accused of the murder himself

nor asked any questions about it. Indeed, the information the police told him had

been provided by his wife exonerated him of the murder. When defendant failed

to immediately respond, Robertson, thinking he might be apprehensive about

Doubting Thomas, explained that he and his family might qualify for the witness

protection program. Defendant asked about the program and then to speak to his

wife. It appears that the entire exchange was relatively brief. Defendant‟s

ultimate response — asking about witness protection and to speak to his wife —

indicates not that he was invoking his right to remain silent but that he was

nonplussed to learn his wife had talked to the police. He seems simply to have

been absorbing the information when he failed to immediately respond to

41

Robertson‟s statement. Therefore, defendant‟s momentary silence was not an

invocation of the privilege against self-incrimination.

Defendant maintains that both his March 27 and March 30 statements were

involuntary. The Attorney General contends that defendant did not specifically

argue involuntariness with respect to the March 27 statement and has thereby

forfeited the claim on appeal. Defendant responds by citing evidence adduced

during the hearing that he claims shows that the statement was involuntary. Even

if there was evidence that could have supported such an argument, the argument

was not made. The only argument trial counsel made to the court regarding the

March 27 interrogation was that the statement was taken in violation of

defendant‟s invocation of counsel. Thus, with respect to the March 27

interrogation, trial counsel never mustered evidence in support of an

involuntariness claim and the trial court was never asked to undertake a

voluntariness analysis. Accordingly, the argument is forfeited.13

13 In any event, the argument fails on its merits. “[A] statement is involuntary

if it is the product of coercion or, more generally, „overreaching‟; involuntariness

requires coercive activity on the part of the state or its agents; and such activity

must be, as it were, the „proximate cause‟ of the statement in question, and not

merely a cause in fact.” (People v. Mickey, supra, 54 Cal.3d at p. 647.) As

evidence of coercion defendant cites the following: (1) he was interrogated

wearing only a pair of pants; (2) he was deceived regarding the purpose for which

he was arrested — on a drug charge, rather than for the Olsson murder; (3) he was

implicitly threatened that, unless he talked, his wife would be arrested on check

charges; (4) Officer Trudeau, with whom he had a prior relationship, was brought

in to keep defendant talking; and (5) the police used his wife as their agent when

they allowed her to speak to defendant after they finished their interrogation of

him. In his reply brief, he also cites the fact that he was shackled. Because these

facts themselves and the inferences to be drawn from them were disputed below,

we view them in the light most favorable to the trial court‟s ruling. (People v.

Manderscheid, supra, 99 Cal.App.4th at p. 357; People v. Limon, supra,

17 Cal.App.4th at p. 529.) Applying that standard, we find there was no definitive

evidence that defendant was interviewed wearing only a pair of pants or whether

clothes were supplied to him at the jail. Also, defendant was arrested on two

42

Defendant renews his claim that his March 30 statement was involuntary

because it was induced by the promise he and his family could enter the witness

protection program. As a corollary, he claims the police manipulated Vicky Tully

into getting him to incriminate himself. He also asserts the police acted

deceptively when they suggested defendant and his family might qualify for the

witness protection program because, at the time they made the suggestion, they

already believed defendant was guilty of the Olsson murder. Defendant also

maintains police threatened to prosecute his wife on the check charges and put his

children into foster care.

“It is well settled that a confession is involuntary and therefore inadmissible

if it was elicited by any promise of benefit or leniency whether express or

implied.” (People v. Jimenez (1978) 21 Cal.3d 595, 611.) “In terms of assessing

inducements assertedly offered to a suspect, „ “[w]hen the benefit pointed out by

the police . . . is merely that which flows naturally from a truthful and honest

course of conduct,” the subsequent statement will not be considered involuntarily

narcotics charges. Moreover, at the time he was arrested on those outstanding

warrants, probable cause also existed to arrest him for the Olsson murder. Thus,

his arrest was not a ruse nor was he deceived as to why the police were

questioning him. There was no evidence defendant was threatened that, unless he

talked to the police, his wife would be arrested. While defendant testified this

threat was used with respect to the March 30 interrogation, Detective Newton

specifically denied that charge. We accept the trial court‟s implicit credibility

finding on this point. There was no evidence of a prior relationship between

Trudeau and defendant other than that Trudeau had arrested defendant on March

7, nor does the evidence support defendant‟s claim that his wife was acting as an

agent for the police. While at one point police placed an ankle shackle on

defendant because they were in and out of the interview room, there was no

evidence he was continuously shackled. There was also evidence that, during the

interrogation, defendant was supplied with candy bars, pizza, and soft drinks and

allowed cigarette and bathroom breaks. Viewed under the totality of the

circumstances standard, we conclude that defendant‟s March 27 statement was not

the product of coercion and therefore was not involuntary.

43

made. [Citation.]‟ ” (People v. Howard (1988) 44 Cal.3d 375, 398.) “The

prosecution has the burden of establishing by a preponderance of the evidence that

a defendant‟s confession was voluntarily made. [Citations.] In determining

whether a confession was voluntary „ “[t]he question is whether defendant‟s

choice to confess was not „essentially free‟ because his [or her] will was

overborne.” ‟ [Citation.] Whether the confession was voluntary depends upon the

totality of the circumstances. [Citations.] „ “On appeal, the trial court‟s findings

as to the circumstances surrounding the confession are upheld if supported by

substantial evidence, but the trial court‟s finding as to the voluntariness of the

confession is subject to independent review.” ‟ [Citation.]” (People v. Carrington

(2009) 47 Cal.4th 145, 169.) “ „[W]hen a reviewing court considers a claim that a

confession has been improperly coerced, if the evidence conflicts, the version

most favorable to the People must be relied upon if supported by the record.

[Citations.]‟ ” (People v. McWhorter, supra, 47 Cal.4th at p. 357.)

Defendant bases his involuntariness claim on interpretations of the

evidence and questions of the credibility of witnesses that the trial court implicitly

rejected. Because substantial evidence supports those factual determinations, we

rely on them and, therefore, independently reject defendant‟s claim that his March

30 statement was the result of either threats or promises.

Defendant claims that the police promised him they would place him and

his family into a witness protection program if he spoke to them. The record

dispels the assertion. Robertson testified that he told both Tullys the same thing:

if they were being truthful, they might qualify for witness protection, but the final

decision would be made by the district attorney. Deputy District Attorney Fraser,

who interviewed defendant after the police, confirmed that he could make no

promises to defendant. Fraser repeated this statement at the end of the interview,

reminded defendant that everything he had disclosed could and would be used

44

against him, and admonished him that Fraser would compare defendant‟s

statement against the physical evidence. Even defendant‟s own testimony fell

short of asserting that explicit promises were made to him by the police about

witness protection. He testified that the police “explained” the program and

“talk[ed]” to him about it but, when asked whether he had pressed Detective

Newton about any promises, he acknowledged he did not do so.

To the extent there was conflict in the evidence about whether the police

promised defendant protection, the trial court resolved it in favor of the

prosecution. The record provides substantial evidence in support of its finding and

we are bound by it. Thus, the evidence shows only that defendant was told if his

statement was truthful and he otherwise qualified, he and his family could be

placed into a witness protection program if the district attorney approved.

Therefore, the police did no more than permissibly point out a possible benefit that

might accrue from his “ „ “truthful and honest course of conduct. ” ‟ ” (People v.

Howard, supra, 44 Cal.3d at p. 398.) Accordingly, his statement was not induced

by a promise to place him and his family into witness protection.

We also reject his claim that the police manipulated his wife into

persuading him to make a statement. The trial court found credible the police

officers‟ testimony that they did not engineer Vicky Tully‟s initial discussion with

defendant at the end of the interrogation on March 27, where he evidently told her

the “Doubting Thomas” story. Moreover, it is undisputed that Vicky Tully

contacted the police on her own and asked to speak to Robertson or Newton about

what defendant had told her. Finally, the trial court evidently rejected defendant‟s

testimony that the police threatened to prosecute his wife on the check charges and

place his children into foster care if he did not speak to them. Again, we are

bound by the trial court‟s resolution of conflicts in the evidence and its credibility

determinations. Finally, and for the same reason, we reject defendant‟s assertion

45

that the police had already concluded he was the murderer before they spoke to

him on March 30 and, therefore, their offer of protection was a deception to induce

him to speak to them. When defense counsel asked Sergeant Robertson whether

he had believed defendant‟s account of the murder, Robertson testified that he had

not known what to believe and wanted to “gather more information . . . [to]

continue the investigation.”

On this record, we conclude that defendant‟s March 30 statement was not

involuntary.

B. Excusal of prospective jurors for cause

1. Overview

Defendant contends the trial court erred in removing for cause five

prospective jurors who expressed reservations about the death penalty, thereby

violating his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to

the United States Constitution and article I, section 16 of the California

Constitution.14

“A prospective juror in a capital case may be removed for cause if his or

her views on capital punishment „would “prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.” ‟ (Wainwright v. Witt (1985) 469 U.S. 412, 424 [83 L.Ed.2d 841, 105 S.Ct.

844].) Because 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

14 In People v. Velasquez (1980) 26 Cal.3d 425, we held that an appellate

challenge to a Witherspoon/Witt excusal (Wainwright v. Witt, supra, 469 U.S. 412;

Witherspoon v. Illinois (1969) 381 U.S. 510) is not forfeited by a failure to object

at trial. (Witherspoon, at p. 443.) In People v. McKinnon (2011) 52 Cal.4th 610,

we overruled Velasquez‟s no-forfeiture rule. (McKinnon, at p. 643.)

“Nevertheless . . . because at the time of this trial we had not expressly held that an

objection is necessary to preserve Witherspoon/Witt excusal error on appeal, we do

not apply this rule here.” (Ibid.)

46

hide their true feelings‟ (id. at p. 425), „deference must be paid to the trial judge

who sees and hears the juror‟ and must determine whether the „prospective juror

would be unable to faithfully and impartially apply the law‟ (id. at p. 426). We

have adopted this standard for determining whether excusing for cause a

prospective juror in a capital case based on the prospective juror‟s views on capital

punishment violates the defendant‟s right to an impartial jury under article I,

section 16 of the California Constitution. [Citations.] [¶] „On appeal, we will

uphold the trial court‟s ruling if it is fairly supported by the record, accepting as

binding the trial court‟s determination as to the prospective juror‟s true state of

mind when the prospective juror has made statements that are conflicting or

ambiguous. [Citations.]‟ [Citation.] „In many cases, a prospective juror‟s

responses to questions on voir dire will be halting, equivocal, or even conflicting.

Given the juror‟s probable unfamiliarity with the complexity of the law, coupled

with the stress and anxiety of being a prospective juror in a capital case, such

equivocation should be expected. Under such circumstances, we defer to the trial

court‟s evaluation of a prospective juror‟s state of mind, and such evaluation is

binding on appellate courts. [Citations.]‟ [Citation.]” (People v. Thomas (2011)

51 Cal.4th 449, 462-463.)

“ „ “There is no requirement that a prospective juror‟s bias against the death

penalty be proven with unmistakable clarity. [Citations.] Rather, it is sufficient

that the trial judge is left with the definite impression that a prospective juror

would be unable to faithfully and impartially apply the law in the case before the

juror.” [Citation.] “Assessing the qualifications of jurors challenged for cause is a

matter falling within the broad discretion of the trial court. ” ‟ [Citation.]”

(People v. Abilez (2007) 41 Cal.4th 472, 497-498.)

Initially, defendant argues that the trial court improperly “excluded jurors

who could not promise they would vote for death based solely on the [trial court‟s

47

description of the] bare facts of the capital offense.” Defendant failed to object to

the trial court‟s description of the offense and, therefore, his claim is forfeited.

Moreover, in his opening brief defendant fails to identify which jurors were

improperly dismissed based on the trial court‟s summary of the offense. In his

reply brief, defendant argues, “it was the trial court‟s jury selection protocols,

admonitions, and questions that led to the systematic exclusion of the five jurors,

and others, as raised in the Opening Brief.”15 As we demonstrate, however, the

trial court‟s excusal of those five prospective jurors was entirely correct and,

therefore, no error can be attributed to the trial court‟s description of the offense.

In the same vein, defendant argues the prospective jurors excused by the trial court

were improperly excused because of their attitudes toward the particular facts of

this case, rather than their abstract inability to impose a death sentence. Again,

however, our conclusion that the five prospective jurors were properly excused

subsumes and rejects this complaint.16

15 Defendant faults the trial court for failing to follow what he characterizes as

death-qualification “protocols” purportedly set forth in People v. Heard (2003) 31

Cal.4th 946, 966, fn. 9.) Defendant‟s failure to object to the manner in which the

trial court conducted voir dire forfeits any claim on appeal that it erred. In Heard,

we concluded that the trial court erred in excusing a prospective juror for cause

following an inadequate voir dire examination by the court. (Id. at pp. 963-966.)

In the footnote defendant cites we directed trial courts to treatises and handbooks

that might help them avoid the errors made by the trial court in Heard. By

pointing out these resources, we did not intend to limit the trial court‟s discretion,

much less impose rigid rules that trial courts were thenceforth required to follow.

Moreover, defendant‟s trial was conducted 11 years before Heard was decided and

before any of the treatises and handbooks therein referenced had been published.

16 Defendant contends at length that our decisions permitting case-specific

questions during the death-qualification process, starting with People v. Fields

(1984) 35 Cal.3d 329, are based on an erroneous interpretation of Wainwright v.

Witt, supra, 469 U.S. 412, and should be reconsidered. We are not persuaded by

his argument and decline his invitation to revisit our decision.

48

2. Specific challenges17

a. Prospective Juror M.D.

On his juror questionnaire, Prospective Juror M.D. wrote about his general

feelings regarding the death penalty, “I do not feel that it works very well as a

deterrent to crime, but in some cases it is necessary and perhaps the best solution.”

He wrote he was “[m]oderately in favor” of the death penalty and held no

religious, moral or philosophical views that would affect his ability to vote for the

death penalty. As to whether he would vote for a death penalty law were it to

appear on the ballot, he wrote, “I just don‟t want to make that choice until I have

to.”

The court asked M.D. whether he could listen to the penalty phase evidence

and consider both death and life without possibility of parole after having found

beyond a reasonable doubt that “the defendant, either alone or with somebody

else, had burglarized the house of the woman by the name of Shirley Olsson. That

she had been intentionally killed by way of multiple stab wounds, perhaps as many

as 25 of those. You may also have found that she was assaulted with an intent to

commit rape.” M.D. replied, “ I think I could.” Under questioning by defense

counsel, however, M.D. acknowledged he entertained some “ambivalence” about

the death penalty. Defense counsel continued: “[The prosecutor] is going to ask

you, in effect, to sentence this man to death. If you get to the appropriate stage of

the proceeding, he‟s going to ask you to decide by signing a verdict or raising your

hand or being polled.” He reminded M.D. he would taking the first step of putting

defendant “in the gas chamber” and asked whether M.D.‟s ambivalence “would be

so great as to impact upon that decision?” M.D. replied: “Honestly, I would have

17 Pursuant to Hovey v. Superior Court (1980) 28 Cal.3d 1, prospective jurors

were individually questioned outside the presence of other prospective jurors, first

by the trial court and then by the parties, after which the court entertained

challenges for cause.

49

to say that that‟s a possibility. Because I‟ve always had to deal with the death

penalty in a theoretical context. I never had to apply it.” He added, “I would tend

against the death penalty, but that doesn‟t mean I would definitely vote against the

death penalty.” However, he then said that, given the special circumstances in this

case — what defense counsel called “a burglary” that “went awry” — “I would be

very hard pressed to decide on the death penalty.”

M.D. told the prosecutor that on a scale of 1 to 10, he was a three and a half

in favor of the death penalty. He repeated that where the special circumstance was

felony-murder involving burglary, he would not be open to imposing the death

penalty. The prosecutor asked him again whether the “[d]eath penalty is out of the

door” and he would “always go for life without possibility of parole in this type of

case.” M.D. replied: “Based only on the information I‟ve gotten today, yes. I

don‟t know what other information might sway my mind, but based on what

you‟ve told me today and what I‟ve heard up to this point, I would have to say I

would be inclined not to.” The prosecutor asked a third time whether, in this case,

“I could stand up here and ask you for the death penalty and I‟ve got a shot?”

M.D. replied, “I would have to say no, based on what I know now . . . but that‟s

the only way I could answer the question because I don‟t know all the evidence.”

He added, “something may come up which would sway me. I don‟t know what it

would be, I don‟t know where it would come up, but based on what I know now,

I‟d have to say no, that I can‟t.” The prosecutor said: “If we‟re talking about a

case of a person breaking into a home, and in the course of a burglary gone awry,

as defense counsel says, a single person is killed. [¶] Given this type of fact

situation, the death penalty is not a viable penalty here for you?” M.D. replied:

“No, so long as the other option is available, life without possibility of parole.”

The prosecutor challenged M.D. for cause. Defense counsel asked no

further questions and submitted the matter. The trial court excused the juror.

50

The trial court did not abuse its discretion in excusing M.D. on the ground

that his voir dire answers demonstrated that his “views would prevent or

substantially impair the performance of his duties as a juror.” M.D.‟s responses

indicated he would not consider the death penalty in a case like this where the

special circumstance alleged was burglary murder. (See People v. Pinholster

(1992) 1 Cal.4th 865, 917 [prospective juror properly excused where he

“concluded that he would never vote for the death penalty in a burglary-murder

case unless the killing were in fact premeditated”].)

We are not swayed by defendant‟s claim that M.D.‟s responses indicated he

might have been able to consider both penalties based on further evidence that

might emerge at trial. He was told the case involved a brutal murder by the

multiple stabbing and possible sexual assault of a victim in the course of — as

defense counsel described it — a burglary gone awry. This was an accurate

overview of the case. We are not persuaded acquainting him with further details

would have changed his mind and made him more inclined to consider death.

Moreover, while he said he might be swayed by additional information, he added,

“I don‟t know what it would be,” indicating there was no further circumstance he

could think of that would allow him to consider the death penalty in this case.18

Additionally, defense counsel had every opportunity to attempt to rehabilitate

M.D. but made no effort to do so and submitted without argument on the

18 Defendant contends that the trial court‟s error in granting the cause

challenge as to M.D. is underscored by its denial of his challenge for cause to

Prospective Juror D.dR. Defendant claims M.D. and D.dR. were “virtually

identical on the strength of their views” on the death penalty, though on different

sides of the question. D.dR. admitted he had strong views on the death penalty

and he would worry that those views might affect his judgment. However, he also

consistently maintained that he would strive to keep an open mind and to follow

the law. Unlike M.D. he never ruled out one or the other penalty in a felony-

murder case. Accordingly, we reject the analogy defendant attempts to draw

between the two.

51

prosecutor‟s challenge for cause. Finally, to the extent M.D.‟s answers were

equivocal, we defer to the trial court‟s evaluation of his state of mind. (People v.

Thomas, supra, 51 Cal.4th at pp. 462-463.)

b. Prospective Juror E.H.

Prospective Juror E.H. indicated on her questionnaire that the death penalty

“in some cases is necessary,” described her view toward it as neutral and wrote

she would have to “research” before she could decide how to vote were the death

penalty law on the ballot. (Subsequently, she told defense counsel she would vote

for a death penalty law.)

She told the court she could consider both penalties. But when defense

counsel asked her whether the death penalty would be appropriate where a “man

broke into a house to commit a burglary . . . and killed a lady who lived there,

stabbed her to death 25 times,” E.H. replied, “Based on that outline, I wouldn‟t

think so.” Even after he introduced the possibility of the perpetrator‟s intent to

commit rape, E.H. indicated it was not the kind of crime where she would consider

the death penalty, as opposed to “a mass murder.” She maintained her position

when again questioned by the court.

The prosecutor challenged E.H. for cause. The defense submitted without

argument and she was excused.

E.H.‟s responses clearly show she would not consider the death penalty in a

burglary-murder case because in her view it was not the kind of serious crime —

as opposed, for example, to a mass murder — where the penalty was appropriate.

Accordingly, she was properly excused.

c. Prospective Juror M.K.

Prospective Juror M.K. wrote on her questionnaire that she “believe[d] in

the death penalty.” She explained that her views about the death penalty had

52

changed after the Robert Alton Harris case because she “became aware of the

death penalty and the need for a death penalty.” She described herself as

moderately in favor of it. She wrote she would vote in favor of a death penalty

ballot measure because of overcrowded prisons and the costs of supporting them.

Under questioning from the court, M.K. indicated she would be open to

both penalties. However, when the prosecutor asked her how she felt when she

first heard from the trial judge “that this case might involve the death penalty,” she

replied, “I felt like I‟d rather not have to make that decision.” The prosecutor

suggested there was a difference between abstract support of the death penalty and

actually imposing it on a “real person,” and asked whether she had “thought about

the idea of being asked to impose the death penalty?” She responded: “I thought I

would get to know this person for six weeks and it probably won‟t be an easy

thing to do.” When the prosecutor asked her whether she could “vote death for

that person over there,” she said, “I don‟t know. Saying I believe in the death

penalty and then knowing the person involved are two different things as far as

I‟m concerned.” The prosecutor then asked M.K. a long hypothetical that ended:

“Let‟s assume further that you‟re the foreperson of this jury, and part of the job of

the foreperson is to sign the verdict form . . . . Can you sign your name on that

death warrant, appreciating the fact that that is the first step that will carry this

man onto a bus to be taken across the bay to San Quentin, put into eventually that

green gas chamber which we saw time and time again over all this publicity

regarding Harris, and he will at that point in time breathe in poisonous gas until

he‟s dead. [¶] Can you do that?” M.K. replied, “No.”

The prosecutor challenged her for cause. Defense counsel declined to

question her and submitted without argument. The trial court, however, asked her

twice if what she meant was that she could not impose the death penalty even if

53

she concluded it was warranted by the evidence. M.K. replied, “Yes, that‟s

correct,” and “Yes, I could not do that.”

“[W]e previously have held it permissible to excuse a juror who indicated

he would have a „hard time‟ voting for the death penalty or would find the

decision „very difficult.‟ [Citation.]” (People v. Roldan (2005) 35 Cal.4th 646,

697.) Here, M.K. stated unequivocally that, notwithstanding her support of the

death penalty in the abstract, she could not actually impose it. She was so clear

that defense counsel did not attempt to rehabilitate her. The court properly granted

the prosecutor‟s cause challenge.

Defendant claims the prosecutor‟s hypothetical question about whether

M.K. could sign the verdict form was improper. Trial counsel did not object to the

question and any claim of error at this point is forfeited, whether of prosecutorial

misconduct or abuse of discretion by the trial court in permitting the question.

Moreover, defense counsel had used a similar gambit when he asked M.D. if he

could sign the verdict that would be the first step toward putting defendant “in the

gas chamber.” Like defense counsel‟s use of that imagery, the prosecutor‟s

reference to M.K. signing the verdict form was a way of impressing upon her the

gravity of a juror‟s role in imposing the death penalty so as to gauge her ability to

assume that role. There was neither misconduct by the prosecutor nor an abuse of

discretion by the trial court.

d. Prospective Juror B.D.

Prospective Juror B.D. wrote on her questionnaire that she believed the

death penalty “is appropriate in certain cases — although it is heartbreaking.” She

wrote she was moderately in favor of the death penalty and would vote for a death

penalty ballot measure because “it is appropriate in some cases.”

54

When asked by the court whether she would be able to impose either

penalty, she replied that it would be “very difficult” to vote for the death penalty

and that she had “some anxiety” on the subject. She added, “[I]t‟s one thing to

think about these things in theory and then to actually . . . . Part of me . . . wonders

if I really could impose a death penalty.” When asked for her “best opinion” about

whether she could do so, she replied, “I don‟t think I could say an unqualified yes.

I think I could, but there‟s, you know, maybe 80 percent yes, and there‟s still

maybe 20 percent — I apologize. I‟ve been sorting this stuff out.”

B.D. told defense counsel that this case was “bad enough” for the death

penalty, “but I don‟t want to be the one to make that decision.” The prosecutor

asked her the same hypothetical question he had asked M.K. about whether she

could sign the verdict form if the jury imposed death. She replied, “I don‟t think

so.” Seeking clarification, he asked, “I‟m talking about voting for the death

penalty, this is not something you could personally do; is that correct?” B.D.

replied, “Well, I have serious doubts about my ability to do that.” In response to

further questioning, she said, “Well, the more I‟m sitting here, the more I‟m

realizing that . . . I don‟t think I could. I couldn‟t sign the paper, and if I can‟t sign

the paper, how can I, you know, vote.” The court asked whether she could impose

the death penalty even if she determined death was warranted. She replied, “I

don‟t think so.”

The prosecutor challenged her for cause. Defense counsel submitted and

declined the court‟s invitation to ask further questions. The court indicated it

would take the matter under submission. This led to further questioning by both

the prosecutor and the defense. While B.D. indicated there was some possibility

she might be able to vote for death, she also said, “I don‟t think I could do it. I

don‟t think I could make that decision.” Ultimately, the prosecutor asked, “Is the

death verdict one you couldn‟t return in this case?” B.D. replied, “No.” The court

55

asked, “[W]here are we in terms of procedure?” The prosecutor replied,

“Basically, the question was . . . could she return a death verdict in this case, and

her answer was „No.‟ ” The defense submitted without argument and the

challenge was granted.

Although B.D.‟s answers about whether she could impose the death penalty

were somewhat equivocal, we defer to the trial court‟s assessment of her state of

mind. Defendant again complains about the prosecutor‟s hypothetical but, again,

he failed to object, forfeiting any claim and we find no error in the question. He

also asserts that the prosecutor‟s last question, because it contained a double

negative, was ambiguous and that, by answering “no,” what B.D. meant was

“yes,” she could return the death penalty. Just moments later, however, when the

prosecutor interpreted her reply to mean she could not vote for death, neither B.D.

nor defense counsel corrected him. We conclude the trial court properly granted

the challenge for cause.

e. Prospective Juror T.L.

In response to the question about his general feeling toward the death

penalty, Prospective Juror T.L. wrote on his questionnaire that it was “[n]ot really

a big problem for me.” He wrote he was neutral toward the death penalty and not

sure how he would vote on a death penalty ballot measure.

Under questioning by the court, T.L. initially said he could consider both

penalties. When asked directly whether he could vote to impose death, he replied,

“No.” Neither the prosecutor nor defense counsel asked any questions of T.L.

The prosecutor challenged him for cause. Defense counsel submitted without

argument. The challenge was granted.

We find no abuse of discretion in the trial court‟s ruling. While T.L.‟s voir

dire was brief, he clearly indicated he could not vote to impose death in this case.

56

The fact that neither the prosecution nor the defense asked him questions suggests

that his position was so plain neither side believed it worthwhile to attempt to

rehabilitate him. While T.L.‟s answers were somewhat inconsistent, this is

classically a situation that calls for deference to the trial court‟s evaluation of the

prospective juror‟s mental state and demeanor. (People v. Mayfield (1997) 14

Cal.4th 668, 727.)

Defendant complains that the court failed to ask clarifying questions and

cut T.L. off, and that the record is incomplete. T.L. said he could not vote to

impose the death penalty. His position was sufficiently clear that not even defense

counsel attempted to rehabilitate him. Under these circumstances, we find no

error in the trial court‟s acceptance of his answer as definitive and its decision not

to question him further. Nor is the record incomplete because it indicates T.L.

shook his head in the negative instead of verbally replying when the court pressed

him whether he could impose the death penalty. The gesture is widely understood

to indicate the negative. Nor did the court cut off T.L. when it interrupted him and

asked if he understood its question about his ability to consider both penalties. In

response, T.L. said, “Yeah.” The court then essentially repeated its original query,

to which T.L. responded, “You mean deciding one way or the other.” The court

said, “Exactly, right.” Thus, any confusion T.L. had about the question was

clarified.

Accordingly, we reject defendant‟s claim that the trial court erred when it

excused these jurors for cause. We add, however, a note of caution. Defendant‟s

complaint in this case is that the trial court‟s summary of the offense was too

truncated to allow it to assess whether the prospective jurors who expressed

qualms about the death penalty could nonetheless have been able to apply it. In

other words, he apparently would have had the trial court provide additional

details about aggravating factors. We, on the other hand, are concerned that the

57

trial court‟s summary of the offense here may have been too detailed. As we

observed in People v. Cash (2002) 28 Cal.4th 703, death-qualification voir dire

“must avoid two extremes.” While “it must not be so abstract that it fails to

identify those jurors whose death penalty views would prevent or substantially

impair the performance of their duties as jurors,” neither should it be “so specific

that it requires the prospective jurors to prejudge the penalty issue based on a

summary of the mitigating and aggravating evidence likely to be presented.”

(Cash, at pp. 721-722.) We advise trial courts against the kind of overly detailed

summary of the offense the court used in this case.

C. Exclusion of witnesses from court

Defendant contends that the trial court abused its discretion under former

section 1102.6 when it refused to exclude members of the victim‟s family — her

father, Clifford Sandberg, sister, Jan Dietrich, and son and daughter, Elbert

Walters III and Sandra Walters — from the guilt phase.19 The trial court

permitted Dietrich and Elbert Walters to remain in the court based on the

prosecutor‟s representation that they would not be testifying at the guilt phase. It

appears that both Sandberg and Sandra Walters also attended some sessions of the

guilt phase after they had testified and been excused.

19 Defendant contends the trial court‟s ruling also violated his due process

rights, and his rights to a fair trial, to confront and cross-examine witnesses and to

a reliable death penalty determination pursuant to the Sixth, Eighth and Fourteenth

Amendments to the federal Constitution. He did not raise these claim in the trial

court. While we may entertain these claims to the extent they are consistent with

the exception to the no-forfeiture rule we set forth earlier (see pp. 24-25, ante;

People v. Boyer, supra, 38 Cal.4th at p. 441, fn. 17), our rejection on the merits of

the claim actually raised in the trial court “necessarily leads to rejection of the

newly applied constitutional „gloss‟ as well. No separate constitutional discussion

is required in such cases, and we therefore provide none.” (Ibid.)

58

Former section 1102.6, subdivision (a), provided that either the “victim” —

defined as the crime victim or, if she or he was unavailable, up to two members of

the victim‟s family — “shall be entitled to be present and seated at the trial,”

unless the “court finds that the presence of the victim would pose a substantial risk

of influencing or affecting the content of any testimony,” in which case, “the court

shall exclude the victim from the trial entirely or in part so as to effect the

purposes of this section.” (Former § 1102.6, subd. (a), as enacted by Stats. 1986,

ch. 1273, § 2, p. 4448, and repealed by Stats. 1995, ch. 332, § 2, p. 1824.)

However, in this case, the prosecutor did not seek to permit Olsson‟s family

members to be present at trial under section 1102.6. Rather, the defense moved to

exclude them. Although the defense did not specify its authority, the motion was

presumably based on Evidence Code section 777. Under that statute, the court

“may exclude from the courtroom any witness not at the time under examination

so that such witness cannot hear the testimony of other witnesses.” The standard

of review of a trial court‟s ruling under both statutes is abuse of discretion.

(People v. Wallace (2008) 44 Cal.4th 1032, 1053 [§ 1102.6]; People v. Griffin

(2004) 33 Cal.4th 536, 574 [Evid. Code, §777].)20

20 Because it was a defense motion, it is understandable that the trial court

made no specific reference to section 1102.6. Nonetheless, seizing on this

omission, defendant claims the trial court failed to perform the balancing required

by section 1102.6, subdivision (a) between the victim‟s right to be in the

courtroom and the risk of influencing or affecting the content of any testimony.

The argument is entirely without merit. It is clear from the record that the basis of

the defense‟s motion was its concern that permitting the victim‟s family members

to remain in the courtroom might in some way affect their testimony. In

fashioning its ruling —excluding two members from the guilt phase and declining

to exclude any of the witnesses from the penalty phase without a further showing

of potential harm — the trial court was, in effect, performing the balancing

required by section 1102.6, whether or not the words of the statute passed its lips.

59

At the hearing on the defense request, the prosecution objected to the

proposed exclusion as it related to Sandy Olsson‟s sister and son because they

would not be testifying at the guilt phase. The trial court asked defense counsel if

his motion encompassed only the guilt phase. Defense counsel replied that his

motion extended to the entire trial “[a]s long as the circumstances of the crime

under [section] 190.3 are circumstances in aggravation.”

The trial court granted the motion to exclude, limited to guilt phase

witnesses. This permitted Olsson‟s sister and son to remain in the courtroom. The

court‟s ruling, however, was without prejudice to a renewed objection to particular

witnesses or testimony. When defense counsel complained it would be difficult to

anticipate such objectionable testimony, the court replied, “If you contemplate

with a particular witness, even a possibility, then we will interrupt the proceedings

and you can make your representations.” The defense did not make any such

further objections, nor evidently did the defense object when the victim‟s father

and daughter remained in the courtroom for some period after they testified at the

guilt phase.

Defendant contends the trial court abused its discretion because, contrary to

section 1102.6, it permitted four family members, rather than two, to be present at

the trial.21 He asserts, further, that the “presence of these witnesses created a

substantial risk of influencing or affecting the content of their penalty phase

testimony.” He argues the trial court‟s ruling failed to properly balance his rights

to a fair trial and due process “against the prosecutor‟s need for his penalty phase

victim impact witnesses” to attend the guilt phase. Finally, he claims that the

21 Defendant is wrong. The trial court‟s ruling permitted only the victim‟s

sister and son to remain in the courtroom during the guilt phase portion of the trial.

Although apparently the victim‟s father and daughter also attended some sessions

of the guilt phase, defense counsel did not bring this violation of the court‟s order

— if it was a violation — to the court‟s attention.

60

court unfairly placed the burden upon the defense of anticipating guilt phase

testimony during which the victim‟s family members should be excluded.22 His

arguments are entirely without merit.

The purpose of section 1102.6 is not, as defendant implies, to allow the

prosecutor to engage the jury‟s sympathy by exhibiting crime victims, but to

advance the interests of victims of crime. When it enacted the statute in 1986, the

Legislature declared that section 1102.6 embodied the “public policy of this state”

that “a victim of a criminal offense be afforded a reasonable opportunity to attend

any criminal trial for that offense,” and “not be excluded . . . merely because the

victim has been or may be subpoenaed to testify at the trial” because permitting

the victim such access is “essential to the fair and impartial administration of

justice.” (Stats. 1986, ch. 1273, § 1, reprinted at Historical and Statutory Notes,

50B West‟s Ann. Pen. Code (2004 ed.) foll. § 1102.6, p. 370.)

The statute is clear that the victim is “entitled to be present” subject only to

the finding that his or her presence would pose “a substantial risk of influencing or

affecting the content of any testimony.” (Former § 1102.6, subd. (a), italics

added.) This language — and the Legislature‟s statement of intent — suggests

that any balancing begins with a preference in favor of the victim‟s right to be

present. Our decisions support this interpretation of the statute in their emphasis

that the substantial risk referred to be real, not speculative or hypothetical.

For example, in People v. Bradford (1997) 15 Cal.4th 1229, where the

defendant claimed the trial court abused its discretion under section 1102.6 by

permitting family members of the victims to remain in the courtroom during

22 In effect, the trial court‟s ruling allowed defendant to renew his motion to

exclude at any point at which he thought or even suspected there might be

testimony the victim‟s family members should not be permitted to hear. We fail to

see how defendant was injured by this favorable ruling, nor does he demonstrate

any such injury.

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opening statements, we said: “Defendant‟s mere assertion that the victims could

or would be influenced by the opening statements was insufficient to establish that

the victims‟ presence posed „a substantial risk of influencing or affecting the

content of any testimony.‟ ” (Bradford, at p. 1322, original italics.) In People v.

Griffin, supra, 33 Cal.4th 536, we held the trial court did not abuse its discretion

when it allowed the victim‟s mother and sister to be present during penalty phase.

“Nothing before the trial court at the time it made its ruling suggested that [the

victims‟] presence posed a substantial risk that either woman would craft or shape

her own testimony, or cause any other witness to do so, as a result of her

presence. . . . [D]efense counsel asserted only that such a risk existed, but an

assertion of this sort is insufficient to support a claim that the trial court abused its

discretion.” (Id. at p. 574.)

Here, too, defendant asserts formulaically and without specificity that the

presence of the victim‟s family members at the guilt phase posed the substantial

risk referred to in the statute but fails to point to anything in the record to support

this assertion. This is simply not enough to show an abuse of discretion by the

trial court.

D. Sufficiency of the evidence

Defendant contends the evidence is insufficient to support his guilt phase

convictions of first degree murder with burglary-murder special circumstances and

assault with intent to commit rape. The claim is without merit.

“ „In assessing a claim of insufficiency of evidence, the reviewing court‟s

task is to review the whole record in the light most favorable to the judgment to

determine whether it discloses substantial evidence — that is, evidence that is

reasonable, credible, and of solid value — such that a reasonable trier of fact could

find the defendant guilty beyond a reasonable doubt. [Citation.] . . . The standard

62

of review is the same in cases in which the prosecution relies mainly on

circumstantial evidence. [Citation.] “ „Although it is the duty of the jury to acquit

a defendant if it finds that circumstantial evidence is susceptible of two

interpretations, one of which suggests guilt and the other innocence [citations], it

is the jury, not the appellate court[,] which must be convinced of the defendant‟s

guilt beyond a reasonable doubt. “ „If the circumstances reasonably justify the

trier of fact‟s findings, the opinion of the reviewing court that the circumstances

might also reasonably be reconciled with a contrary finding does not warrant a

reversal of the judgment.‟ ” [Citations.]‟ ” [Citation.]‟ ” (People v. Story (2009)

45 Cal.4th 1282, 1296.) The same standard applies to special circumstance

allegations. (People v. Kelly (2007) 42 Cal.4th 763,788.)

Defendant asserts there was insufficient evidence to support the first degree

murder conviction based on a burglary-murder theory or to support the burglary-

murder special-circumstance allegation because the evidence failed to prove that

defendant entered the victim‟s home to commit either theft or rape, the target

offenses of the burglary.23 Notably, defendant does not discuss the evidence in

any detail — and certainly not in light of the applicable standard of review — but

relies on the fact that neither burglary nor rape was charged as a separate offense.

This is a red herring. We are not concerned with whether there was sufficient

evidence to prove offenses that were not charged. The question is whether the

evidence was sufficient to prove the offenses that were charged. It was.

The evidence showed defendant, armed with a knife, forcibly entered

Sandy Olsson‟s house late at night or in the early morning hours of July 24 or 25,

1986. The open bathroom window, with its screen removed and discarded,

indicated that he first attempted to enter her residence surreptitiously through this

23 The jury was instructed it was not required to unanimously agree on which

particular crime defendant intended to commit.

63

window but, for whatever reason, failed to do so. The broken chain-lock on the

front door was another sign of forced and unconsented-to entry. Defendant told

police he went to Olsson‟s house with “Doubting Thomas” because Thomas

wanted to buy drugs that Olsson obtained from the hospital where she worked.

Coincidentally, Olsson lived only two houses away from where defendant had

lived with John Chandler. Defendant‟s statement shows that he knew Olsson

worked at a hospital where she would have access to drugs. It is a reasonable

inference that he learned about her job and that she lived alone while he was living

at Chandler‟s residence. Olsson‟s purse was taken from her residence and found

discarded in the pond on the golf course. Defendant told police he had seen

Doubting Thomas rummaging through the victim‟s purse in her living room after

he stabbed her; a receipt indicated she had received $3.95 from a purchase on July

24, but no money was found in her purse or at her home. The jury could easily

have discarded defendant‟s implausible invention of Doubting Thomas‟s role in

the crime and concluded that defendant himself went to Olsson‟s residence and

broke in to steal drugs or property. (See People v. Kipp (2001) 26 Cal.4th 1100,

1128 [“We have explained that when presented with evidence that a defendant

killed another and took substantial property from the victim at the time of the

killing, a jury ordinarily may reasonably infer that the defendant killed for the

purpose of robbery”].)

There is also substantial evidence that defendant entered the victim‟s

residence with the intent to commit rape. This conclusion would have been

consistent with his late night attempt to surreptitiously enter the residence of a

woman who he knew lived alone. Defendant, furthermore, admitted he had sexual

intercourse with the victim but did not ejaculate. His admission that he did not

ejaculate is consistent with testimony from the prosecution‟s criminalist that the

absence of semen did not rule out the possibility of intercourse if there was no

64

ejaculation. The pathologist also testified that the absence of trauma to the

victim‟s genitals did not mean she had not been forced to submit to sexual

intercourse. Defendant was armed with a knife. The jury could reasonably have

concluded defendant forced the victim to have sex with him at knifepoint and not,

as he claimed, consensually.

Thus, there was substantial evidence to support the felony-murder theory of

first degree murder and the burglary-murder special circumstance. Our assessment

of the evidence also demonstrates there was substantial evidence to support

defendant‟s conviction of assault with intent to commit rape.24

E. Evidence that defendant was unemployed

Defendant contends the trial court abused its discretion when it admitted

testimony that he was unemployed, to show motive to steal. “Ordinarily it would

be unfair to persons in difficult financial circumstances to permit general evidence

of their poverty to be introduced for the purpose of establishing a motive for theft

24 In light of our conclusion, we do not discuss in detail defendant‟s further

claim that there was insufficient evidence to support a first degree murder

conviction based on a premeditation and deliberation theory. We note, however,

there was strong evidence of planning that includes the manner and timing of

defendant‟s entry into the victim‟s residence, the fact that he was armed, the care

he took to eliminate his fingerprints from the residence and also evidence of

motive — fear that Olsson recognized him as a former neighbor. The manner of

killing — defendant had time to wipe his knife on the sheets as he was stabbing

the victim — also constitutes substantial evidence of premeditation and

deliberation. (See People v. Anderson (1968) 70 Cal.2d 15, 26-27 [evidence of

planning, motive and manner of killing are nonexclusive factors that may support

a finding of premeditated and deliberate killing].) “Contrary to defendant‟s

suggestion, Anderson does not require that these factors be present in some special

combination or that they be accorded a special weight nor is the list exhaustive.

Anderson was simply intended to guide an appellate court‟s assessment whether

the evidence supports an inference that the killing occurred as the result of

preexisting reflection rather than unconsidered or rash impulse.” (People v. Pride

(1992) 3 Cal.4th 195, 247.)

65

or robbery. The risk of causing suspicion of indigent persons generally outweighs

the probative value of such evidence.” (People v. Cornwell (2005) 37 Cal.4th 50,

96; but see People v. Castaneda (2011) 51 Cal.4th 1292, 1325 [based on evidence

of the defendant‟s sporadic employment combined with evidence of his drug

addiction, “a rational trier of fact could conclude that defendant had a motive to

steal” and formed the intent to do so before the victim‟s death].) Such evidence

may, however, be admissible for other purposes, “such as to refute a defendant‟s

claim that he did not commit the robbery because he did not need the money.”

(People v. Wilson (1992) 3 Cal.4th 926, 939) or to “ „eliminate other possible

explanations for a defendant‟s sudden wealth after a theft offense.‟ [Citations.]”

(Cornwell, supra, 37 Cal.4th at p. 96.)

In this case, the prosecutor asked John Chandler, at whose residence

defendant had been living off and on in the six months before Sandy Olsson‟s

murder, whether “the defendant had a hard time keeping a job.” Defense counsel

objected on relevance grounds. The prosecutor responded, “Motive.” The trial

court overruled the objection. In his closing argument, the prosecutor, referring to

this testimony, said, “[Defendant‟s] using drugs. Well, where do you get money

for that if you can‟t keep a job. How do you support that? I mean we‟re not

talking about keeping a roof over your head.”

Assuming, without deciding, that the testimony should not have been

admitted, we find its admission harmless under any standard. The testimony was

brief, as was the prosecutor‟s reference to it in argument, and, as demonstrated in

the previous section, there was more than ample evidence, quite apart from this

testimony, to support a finding that defendant broke into Olsson‟s residence to

steal drugs or money.

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F. Erroneous admission of “victim impact” evidence at guilt phase

Defendant contends that, through a combination of prosecutorial

misconduct and trial court error, evidence was improperly placed before the jury

during the guilt phase resulting in a verdict tainted by sympathy for the victim.

Defendant characterizes this evidence as “victim impact” evidence.

“ „A prosecutor‟s misconduct violates the Fourteenth Amendment to the

United States Constitution when it “infects the trial with such unfairness as to

make the conviction a denial of due process.” [Citations.] In other words, the

misconduct must be “of sufficient significance to result in the denial of the

defendant‟s right to a fair trial.” [Citation.] A prosecutor‟s misconduct that does

not render a trial fundamentally unfair nevertheless violates California law if it

involves “the use of deceptive or reprehensible methods to attempt to persuade

either the court or the jury.” [Citations.]‟ ” (People v. Clark (2011) 52 Cal.4th

856, 960.) “A defendant‟s conviction will not be reversed for prosecutorial

misconduct, however, unless it is reasonably probable that a result more favorable

to the defendant would have been reached without the misconduct. [Citation.]

Also, a claim of prosecutorial misconduct is not preserved for appeal if defendant

fails to object and seek an admonition if an objection and jury admonition would

have cured the injury. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.)25

“ „Only relevant evidence is admissible (Evid. Code, § 350; [citations]),

and, except as otherwise provided by statute, all relevant evidence is admissible

(Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d) . . .).‟ [Citation.]

25 Defendant repeatedly cites as instances of prosecutorial misconduct actions

to which he failed to object on this ground. In his reply brief, he asserts that he

should be exempt from the forfeiture rule because of the prosecutor‟s repeated

pattern and course of misconduct. We discern no such pattern and, as we have in

the past, we reject the suggestion that the forfeiture rule is inapplicable to capital

cases. (People v. Dykes (2009) 46 Cal.4th 731, 757.)

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„Relevant evidence is defined in Evidence Code section 210 as evidence “having

any tendency in reason to prove or disprove any disputed fact that is of

consequence to the determination of the action.” The test of relevance is whether

the evidence tends “logically, naturally, and by reasonable inference” to establish

material facts such as identity, intent, or motive. [Citations.]‟ [Citation.] [¶]

Defendant placed all material issues in dispute by pleading not guilty.” (People v.

Bivert (2011) 52 Cal.4th 96, 116-117.) “[T]he trial court has broad discretion to

determine the relevance of evidence.” (People v. Cash, supra, 28 Cal.4th at

p. 727.) This discretion extends to evidentiary rulings made pursuant to Evidence

Code section 352. (People v. Zambrano (2007) 41 Cal.4th 1082, 1149.) “ „Under

California law, error in admitting evidence may not be the basis for reversing a

judgment or setting aside a verdict unless “an objection to or a motion to exclude

or to strike the evidence . . . was timely made and so stated as to make clear the

specific ground of the objection or motion . . . . ” (Evid. Code, § 353, subd. (a),

italics added.) “In accordance with this statute, we have consistently held that the

„defendant‟s failure to make a timely and specific objection‟ on the ground

asserted on appeal makes that ground not cognizable.” ‟ ” (People v. Nelson

(2011) 51 Cal.4th 198, 223.)

Bearing these principles in mind, we review defendant‟s specific claims of

prosecutorial misconduct and trial court error.

1. Voir dire

Defendant contends the prosecutor committed misconduct during voir dire

when, “[w]hile questioning juror [J.W.], the prosecutor stated „. . . [i]t‟s not fair to

the family members of the woman who was murdered if people can‟t impose

either of the two penalties.‟ ” Defendant‟s contention is based on a factual error.

The prosecutor did not ask this question of Prospective Juror J.W., who ultimately

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sat on the jury, but of Prospective Juror J.B. J.B. was questioned just before J.W.

and did not sit on the jury. Although defendant asserts that J.W. “heard the

comment,” he fails to provide any citation in the record that would support his

claim. Furthermore, defendant fails to show in the record that the prosecutor made

the remark to any other prospective juror. Thus, even if we assumed this fleeting

comment was misconduct, defendant could not have been prejudiced since J.B.

was not a juror in his case. Moreover, his failure to show that the comment was

repeated to any other juror belies his assertion that there was a pattern of

prosecutorial misconduct during voir dire.

2. Prosecutor’s opening statement

Defendant complains that the prosecutor committed misconduct in his

opening statement (1) when he contrasted the intended family gathering for which

the victim was preparing on the weekend before her death— her visit to Topeka

for her father‟s 85th birthday — to the family gathering that actually occurred —

her funeral; (2) by discussing her nursing career; and (3) by discussing her habits

and routines.

Defendant failed to object to any of these remarks at the time they were

made. He subsequently referred to them when he objected, not to the opening

statement, but to the actual evidence of these matters. Indeed, defense counsel

conceded that the prosecutor “has a right to refer to any evidence he expects in

good faith to be admitted during the course of the trial,” but went on to question

the relevance of evidence of Olsson‟s background and the birthday reunion.

Defendant did not move to strike the opening statement. Instead, he asked the

court to make a substantive ruling on his relevance objection. Thus, the specific

claim he advances here — misconduct during the opening statement — is

forfeited. We take up his substantive objection in the following section.

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3. Admission of evidence

Defendant asserts the prosecutor committed misconduct by presenting

evidence about the family reunion, Olsson‟s nursing career, and her habits and

routines, as well as eliciting assertedly improper testimony from Olsson‟s

coworkers and her daughter.

a. Background

After the prosecutor‟s opening statement and before any testimony, there

was a lengthy hearing outside the presence of the jury during which defense

counsel demanded that the trial court rule on its objections to prospective evidence

of the victim‟s nursing career, her plans to attend her father‟s 85th birthday

celebration on the weekend she was killed, and her habits and routines. Defense

counsel argued the evidence was more prejudicial than probative. (Evid. Code,

§ 352.) Later, counsel said he was also objecting on relevance grounds.

The prosecutor responded as follows: evidence of the victim‟s professional

background was relevant because it demonstrated she was not a docile person and,

thus, her submission without resistance to defendant indicated that “he had her

under complete control at the point of a weapon,” and that, having complete

control, he committed a gratuitous murder; evidence of her plans to attend a family

reunion was relevant to the concern of her coworkers when she failed to appear at

work the day before she was to have left; and evidence of her habits and routines,

particularly after she came home from work, was relevant to whether — as

defendant‟s statement to the police had suggested — she would have entertained

late night male visitors on a work night. Defense counsel argued that what the

prosecution called habit and custom evidence was really impermissible character

evidence; that the family reunion evidence was irrelevant because there would be

no dispute that Olsson‟s coworkers were concerned by her failure to appear at

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work; and that the prosecutor should not be permitted to show that “she stayed at

home at night” by “proving she was a wonderful person at work.”

The trial court told defense counsel, “I‟m going to agree with you in part

and not in totality.” “[I]n terms of what her duties at the hospital might have been,

I will overrule that objection . . . I‟ve engaged in 352, the weighing process. I see

some relevance, certainly not at the risk of undue prejudice.” Furthermore, “[i]n

terms of whether there was . . . a trip contemplated for July 26th, again, I‟m going

to overrule that objection. I can see some relevance to that, and I certainly don‟t

see the risk of undue prejudice.” “With regard to what I‟ll describe as personality

evidence I‟m going to sustain your objection. That, based on the offer of proof, as

I understand it, I think there is a limited relevance to that. . . . Now, it‟s not

inconceivable to me that, based on cross-examination or based on possible defense

presentation of evidence, that something like that could become relevant. . . . At

this point, based on the offer of proof. . . it does not appear to be relevant direct

testimony.”

b. Prosecutorial misconduct claims

Defendant claims the prosecutor committed misconduct by eliciting

testimony about the purpose of Olsson‟s planned trip to Topeka — to celebrate her

father‟s 85th birthday — in violation of the trial court‟s ruling limiting such

evidence to whether a trip was contemplated, but omitting any mention of its

purpose. Defendant misreads the record. The trial court did not impose any such

limitation. The court simply overruled the defense‟s objection to testimony that a

trip was planned. It said nothing further that could be construed as requiring the

prosecutor to omit any mention of the purpose of the trip. Indeed, defense counsel

did not object to the questions about the birthday celebration, suggesting that he

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did not believe the questions violated the court‟s ruling. His failure to object also

forfeits the claim. (People v. Crew, supra, 31 Cal.4th at p. 839.)

Defendant next contends the prosecutor committed misconduct when

questioning Barbara Green. Specifically, he argues the prosecutor impermissibly

asked Green a series of questions about when and why she became concerned after

Olsson failed to appear for work. Two of those questions— involving Green‟s

inability to sleep the night before Olsson was killed and her pact with Olsson that

the two women would be with each other if one was dying — did not draw an

objection, thus forfeiting any claim of misconduct.26 (People v. Crew, supra, 31

Cal.4th at p. 839.) Defendant did object to other questions about Green‟s concern.

Following an unreported bench conference, the trial court ultimately sustained an

objection when the prosecutor asked Green, “What was it about this set of

circumstances that caused you to leave your work and go out to a coworker‟s

home?” It did so, however, only as to the form of the question. Thus, even if we

26 Defendant cites other instances of Green‟s testimony, as well as the

testimony of Olsson‟s father and sister, which he characterizes as “impermissible”

but to which he did not object at trial. He concedes he did not object to this

testimony, but says he presents it as part “of the factual background of the claim to

show context, to show prosecutorial misconduct, and to show how the prosecutor

violated the court‟s orders violating notice.” We deem his explanation to be a

concession that any argument based on this testimony is forfeited and we do not

consider or address further whether this unobjected-to testimony was improper.

Also threaded through defendant‟s claim is an assertion that the prosecutor

violated a court order requiring him to notify both the court and trial counsel in

advance when he was going to elicit testimony that the defense might find

objectionable. The court, however, simply instructed the prosecutor to notify the

court and counsel in advance when he “anticipate[d]” he might be getting into

areas the court characterized, “for lack of better description,” as “victim impact.”

Plainly the ruling left much to the prosecutor‟s judgment. Nowhere does

defendant cite an objection on defense counsel‟s part that the prosecutor had

violated the court‟s instruction, much less any ruling by the court on the issue.

The claim is therefore forfeited.

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assume that the basis of defendant‟s objection at the bench conference was

prosecutorial misconduct, the trial court‟s ruling implicitly rejected that ground.

Nonetheless, defendant asserts all the testimony regarding Green‟s concern

was impermissible because it only served to show the impact of Olsson‟s murder

on her. We disagree. Green‟s concern and her subsequent decision to go to

Olsson‟s house to check on her well-being helped provide a context and to

establish a time line for the prosecution‟s case-in-chief. Moreover, Green‟s

decision to go to the home of a coworker simply because she missed work was

unusual; to have forced her to omit any mention of the cause of her concern may

have raised unnecessary questions about her credibility. (See People v. Box

(2000) 23 Cal.4th 1153, 1202 [references to the fact victim was murdered on his

third birthday “helped place the testimony of prosecution witnesses in context and

assisted the jury in assessing their credibility”].) Finally, we are unpersuaded that

these relatively brief references to Green‟s concern had a significant emotional

impact on the jury.

Defendant next claims the prosecutor committed misconduct when he

elicited from Green testimony that she had never heard Olsson use profanity.

Defense counsel objected to the question and his objection was sustained.

Defendant fails to demonstrate that the remedy was inadequate to the impropriety.

Defendant claims two other questions to Green were intended to elicit

impermissible “victim impact” evidence. The prosecutor asked Green whether

her description of the coldness in the bedroom referred only to the temperature or

also Green‟s feelings. Green replied, “It could be a combination of both.” Later,

he asked her if she ever had flashbacks to “what you found in Sandy Olsson‟s

bedroom on July 25, 1986?” Green replied, “Yes, I do, twice a month or more. I

know that it‟s been at least that frequently since the death of Sandy.” Defendant

failed to object to these questions, thus forfeiting his claim of prosecutorial

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misconduct on appeal. (People v. Crew, supra, 31 Cal.4th at p. 839.) Even if he

had not, we would find no grounds for reversible misconduct based on these brief

exchanges.

Next, defendant claims the prosecutor engaged in misconduct during his

questioning of Clifford Sandberg, Sandy Olsson‟s father. While questioning

Sandberg about Olsson‟s habit of locking the front door after she came home from

work, he asked if Sandberg remembered “ever having someone come over to the

house and her opening the door when the chain was on the door?” Sandberg

replied there was a “special case” when a man came and pounded on the door

saying that his wife was ill and had fallen to the floor. Defense counsel objected

“to narrative.” The trial court replied: “All right. The answer up to this point can

remain. Next question.” When the prosecutor then asked whether Olsson had

gone to help the neighbor, defense counsel objected on relevance grounds and the

objection was sustained, although not before Sandberg answered, “Yes.”

Contrary to defendant‟s current claim, his initial objection to Sandberg‟s

response was not sustained and, therefore, the prosecutor did not commit

misconduct when he asked a followup question. In any event, the basis of the

objection was not prosecutorial misconduct but that the answer was a narrative.

The court sustained defendant‟s second objection on relevance grounds. He

complains that the answer was not stricken and the jury not admonished to

disregard it. Defense counsel, however, did not request either remedy and, in any

event, we are unpersuaded that Sandberg‟s single-word answer — “Yes” — was

“highly prejudicial,” as defendant now maintains.

Defendant cites as misconduct a series of questions by the prosecutor to

Olsson‟s daughter, Sandra Walters, about her relationship with her mother, the

subjects of their conversations and whether, from these conversations, Walters

knew whether her mother enjoyed much of a social life and if she knew whether

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Olsson ever slept in the nude. Defendant failed to object to two of the nine

questions, resulting in forfeiture. None of his objections to the remaining

questions were for prosecutorial misconduct. Rather, they were largely technical

objections such as inadequate foundation and hearsay. Moreover, defense

counsel‟s objections were repeatedly sustained. Thus, even assuming that his

claim is not forfeited by his failure to have objected to these questions on the

ground of prosecutorial misconduct (People v. Crew, supra, 31 Cal.4th at p. 839),

he fails to demonstrate the inadequacy of the remedy he did receive when his

various objections were sustained.

Moreover, we reject his underlying claim that the evidence the prosecutor

sought to elicit from these questions “was only relevant to the impermissible

consideration of victim impact.” The questions directed to Walters were also

relevant to show — contrary to the implication of defendant‟s statement to the

police — that Olsson was a modest woman who led a quiet life.

Defendant also contends the prosecutor engaged in misconduct during

closing argument when he argued: “It is time to put a halt to the brutality and

viciousness of this defendant. And it is time to give Sandy Olsson back her good

name and reputation.” Defense counsel objected that the prosecutor was

attempting to “inflame the jury” and that his comment was “irrelevant.” The court

replied: “I indicated to the jury now that this is argument. These are the

arguments of the attorneys. The arguments are not evidence in the case.” The

prosecutor continued: “The evidence in this case establishes this man tried to take

everything in the world that Sandy Olsson had and he did take everything, except

for her good name and reputation, and he tried to take that and steal that like

everything else he took on the morning of July 25, 1986.”

The prosecutor‟s comments about the victim‟s good name and reputation

were undoubtedly allusions to defendant‟s statement to police about the murder.

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In that statement, he suggested that Sandy Olsson stole drugs from the hospital

where she worked and sold them to people like “Doubting Thomas,” who,

according to defendant, was a Hell‟s Angel. Defendant also suggested that Olsson

was the kind of woman who entertained late night male visitors and engaged in

sex with strangers. Defendant‟s statement was in evidence. There was no

misconduct. (People v. Panah (2005) 35 Cal.4th 395, 463 [prosecutor has a right

to comment on the evidence in closing argument].)

Defendant also claims the prosecutor committed misconduct during his

rebuttal argument but he failed to object to the comments he asserts were

improper. The claim is therefore forfeited.

In any event, we would find no misconduct. During the defense argument,

defense counsel repeatedly maintained that defendant was telling the truth in his

statement to the police about the circumstances of the murder. He suggested that

Olsson had, in fact, taken drugs from the hospital to sell to “Doubting Thomas.”

The implication of that argument is that testimony by Olsson‟s friends and family

that she was a modest woman who lived quietly was not credible. It is in this

context that the prosecutor made the statement defendant now claims was

misconduct: “He [defense counsel] attacked the victim. He even attacked the

victim‟s family. Isn‟t it outrageous that these folks are here. Isn‟t it so outrageous

that they‟re in this courtroom with some of her friends. Terrible thing. Terrible

thing, because the only person who has to lie is the defendant over there.” In

context, the prosecutor‟s argument was permissible rebuttal on the issue of witness

credibility.

c. Trial court error

In addition to charging the prosecutor with misconduct for eliciting

improper victim impact evidence, defendant faults the trial court for rulings that

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allegedly abetted the misconduct. Specifically, he claims the trial court failed to

limit evidence and argument to relevant and material matters and erred by

admitting into evidence a photograph of the victim while she was alive. He also

argues he was cumulatively prejudiced by the trial court‟s errors and the

prosecutor‟s misconduct.

Defendant contends the trial court failed to issue “firm rulings” in response

to defense objections. As a result, he asserts that the prosecutor exploited the

court‟s vague rulings to elicit improper victim impact evidence.

Defendant claims the trial court failed to adequately rule on his objection to

the prosecutor‟s voir dire comment to Prospective Juror J.B. that it would be

unfair to Olsson‟s family if a juror were unable to consider both penalties. But

defendant did not make a contemporaneous objection to the comment. Instead, he

waited until both that prospective juror and the next prospective juror, J.W., had

been questioned and excused. Only then did defense counsel argue the comment

was “inappropriate.” The trial court, after hearing from

This text is long and has been trimmed here. Open the source document for the complete record.