# People v. Tully

> California Supreme Court · July 30, 2012 · 54 Cal. 4th 952

URL: https://www.frixlaw.com/law-library/cases/844166

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. RICHARD CHRISTOPHER TULLY, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** July 30, 2012
- **Citations:** 54 Cal. 4th 952; 145 Cal. Rptr. 3d 146; 282 P.3d 173; 2012 Cal. LEXIS 7247; 2012 WL 3064338
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Baxter, Kennard, Liu
- **Cited by:** 629 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

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

3
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
5
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

6
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 m

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/844166. Public record. Not legal advice.