# People v. Virgil

> California Supreme Court · June 30, 2011 · 51 Cal. 4th 1210

URL: https://www.frixlaw.com/law-library/cases/844274

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. LESTER WAYNE VIRGIL, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** June 30, 2011
- **Citations:** 51 Cal. 4th 1210; 126 Cal. Rptr. 3d 465; 253 P.3d 553; 2011 Cal. LEXIS 6538
- **Precedential status:** Published
- **Opinion:** Opinion by Corrigan
- **Judges:** Corrigan
- **Cited by:** 265 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.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/844274

## How later opinions describe it (automated extraction)

- noting that it cannot find any cases holding that "sidebar conferences” during trial "are akin to a closure of the courtroom”

## Opinion text

Filed 6/30/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S047867
v. )
)
LESTER WAYNE VIRGIL, )
) Los Angeles County
Defendant and Appellant. ) Super. Ct. No. YA016781
____________________________________)

A jury convicted defendant Lester Wayne Virgil of murdering 22-year-old
Soy Sung Lao during a doughnut shop robbery. 1 The jury also convicted
defendant of two other robberies, both committed with a knife and one
accompanied by an assault with force likely to produce great bodily injury, and
found true a robbery/murder special circumstance.2 Because the penalty was set at
death, this appeal is automatic. We affirm the judgment.

BACKGROUND
I. Guilt Phase
A. Robbery of Beatriz Addo
On the morning of October 13, 1992, Beatriz Addo was working alone at
the LaBargain Grocery, which she owned with her husband. The store was

1 Penal Code sections 211 and 187, subdivision (a). All statutory references
are to the Penal Code unless otherwise stated.
2 Sections 12022, subdivision (b), 245, subdivision (a)(1), and 190.2,
subdivision (a)(17).

1
located in an alley near the intersection of Van Ness Avenue and West El Segundo
Boulevard, in Gardena. Sometime between 10:00 and 11:00 a.m., Addo was
talking with a neighbor when defendant rode up on a bicycle. He parked outside,
walked in, and asked if either woman wanted to buy the bike. When they
declined, he asked about a brand of shaving cream. Although Addo said they did
not carry the brand, defendant searched the store‟s shelves for it. He then asked if
Addo could give him a job. Addo promised to check with her husband, and
defendant wrote down the name “Robert William,” a telephone number, and the
address “1202 Denker, Apt. #10.” He left, and the visiting neighbor left soon
thereafter.
About five minutes later, Addo was alone. Defendant returned and walked
toward the display shelves. Defendant then grabbed Addo from behind and
pushed her toward the bathroom. Addo felt something pricking her in the back.
Defendant ordered her to sit on the toilet, but instead she knelt to pray. Defendant
left, closing the door behind him. Addo heard the ring of the cash register
opening. After about 10 minutes of silence, Addo emerged to find the telephone
line had been cut and the cash register left open. Approximately $60 had been
taken, along with an envelope containing $600 in rent money, which had been
stored underneath the register. Addo had small cuts and scratches on her back but
did not require medical attention.
Addo described the robber as a Black man of average weight, with short
hair and two to three days‟ growth of beard. He wore long dark pants and a black
T-shirt. In June 1993, Addo picked defendant‟s picture from a six-photo lineup,
and in October 1993, she identified him in a live lineup. She also identified him at
both the preliminary hearing and trial.
B. Robbery and Murder of Soy Sung Lao
Around 3:40 in the afternoon on October 24, 1992, Los Angeles County
Park Police Sergeant Donald Tiller and his partner went to the Donut King for
coffee. The small, family-owned shop was located in a strip mall near the

2
LaBargain Grocery. While his partner waited in the patrol car, Tiller went inside
and ordered from Soy Sung Lao, who was working behind the counter. Ms. Lao
was the only employee in the shop, and defendant the only customer. Defendant
sat at a table with a white styrofoam cup and an orange gym bag nearby. Sergeant
Tiller observed defendant during the three minutes he spoke with Ms. Lao at the
counter. It seemed unusual that defendant stared fixedly out the window and
would not look in his direction. In the sergeant‟s experience, people usually
looked at him when he was in uniform. Defendant was wearing a dark jacket, a
dark “Malcolm X” cap, and dark jeans. He appeared to be about six feet tall, 165
to 170 pounds, with “kind of a straggly beard.”
Lavette Gilmore worked at a hair salon in the same strip mall. Around 3:30
or 4:00 p.m. on October 24, 1992, she went to the doughnut shop and saw
defendant sitting in the window with a small coffee cup and a bag. He wore a cap
and a black shirt with red on it and drew Gilmore‟s attention because he looked
“rugged.” He was thin and unkempt, with long hair. He slouched and would not
return Gilmore‟s gaze. Gilmore stayed in the shop talking for 20 or 25 minutes.
She and Sergeant Tiller left at the same time. Gilmore expressed concern to Tiller
that defendant looked “funny.”
Debra Tomiyasu had an appointment at Gilmore‟s hair salon that afternoon.
She left around 3:40 p.m. and walked into the Donut King. She noticed an orange
duffel bag and a black Malcolm X cap on one of the customer tables but saw no
one in the shop. Tomiyasu yelled out “hello” two or three times, to no response.
A minute or two later, Deandre Harrison walked in. The two waited a few
minutes more, calling for service. Harrison walked in and out of the shop‟s front
door several times to trigger its buzzer. They then heard a series of muffled, high-
pitched screams. As the screams grew louder, defendant emerged from the back
of the store and walked straight to the cash register, which was partially open. He
took the money inside, walked out the front door, and ran across the parking lot.
A woman staggered out from the back of the store, covered in blood. Still

3
screaming, she held a blood-soaked white cloth to her neck. She took a few steps,
then collapsed. No one else emerged from the back. No sounds indicated anyone
else was in the store.
Tomiyasu followed defendant and chased him across the parking lot,
screaming for help. Meanwhile, Harrison ran to another shop and called 911.
After Tomiyasu lost sight of defendant, she also attempted to call the police, but
they arrived before she had time to dial. Other than defendant and the bleeding
woman, Tomiyasu and Harrison saw no one else in the shop, and no one else left
after defendant fled.
Ella Ford was picking up dry cleaning at the strip mall when she heard a
woman screaming from the Donut King. She dismissed the screams as the sound
of children playing. Defendant ran out of the doughnut shop and almost knocked
her down. She noticed he was holding something close to his body in his left
hand. Ford turned away but looked back at defendant after someone yelled, “he
stabbed her.” She eventually lost sight of defendant as he ran down the street.
Felipe Santoyo was working at a fish market in the strip mall when he
heard the commotion. A crying woman said, “she‟s bleeding.” Santoyo ran to the
doughnut shop, where several people had gathered. He saw Lao, whom he knew,
lying on the floor, “bleeding a lot.” He went to her and placed some bags under
her head “so she didn‟t feel on the floor.” Santoyo was soon joined by Lavette
Gilmore and Trina Simmons, who had run to the shop from Gilmore‟s salon when
they learned of the stabbing. Lao‟s eyes were open and she was asking for help.
She managed to give her family‟s phone number before she lost consciousness.
Santoyo left to call Lao‟s family.
Gardena Police Officers Blane Schmidt and Jody Schnabl were the first
authorities to arrive at the scene. Paramedics arrived minutes later. They
transported Lao to a hospital, but her condition deteriorated rapidly in the
ambulance and she never regained consciousness.

4
After the paramedics left, Officer Schmidt interviewed Simmons, Harrison,
and Tomiyasu. Tomiyasu described defendant as having a round face, dark skin, a
“scraggly” beard and mustache, a “wild-like appearance to his eyes,” and dark
smudges on his face. His hair was very short, and he appeared to be in his late
20‟s or early 30‟s. Defendant looked like a homeless or transient person because
he was very thin, with a drawn face and wild-eyed look. He wore blue jeans, dark
shoes, and a black T-shirt with an outline of Africa on the front. Harrison also
remembered that defendant wore blue jeans and a black T-shirt with Africa
depicted in red, yellow, and green. He was tall and thin, with medium-brown,
dirty skin and a “rough, ruggish” beard and mustache. Ella Ford gave a similar
description. She said defendant was a little over six feet tall, 150 pounds, with a
full beard, and wearing jeans, tennis shoes, and a black T-shirt with “African
colors.” Twice that evening, the police asked Tomiyasu to view suspects they had
detained, but she did not make a positive identification of either.
At the crime scene, police officers found the cash register drawer open but
with no bills in the tray. A blood trail extended from the restroom to where Lao
had fallen. Behind the closed door of the restroom, a large blood pool was oozing
into the drain. Blood was smeared on the inside doorknob and doorjamb. A
knotted towel and a pair of women‟s shoes lay on the floor. Police officers never
discovered a murder weapon. At one of the tables in the dining area, someone had
left an open gym bag, a baseball cap, a styrofoam cup, and a pair of shoelaces.
The gym bag contained several raffle tickets. Defendant‟s latent palm print was
lifted from the table. Although other latent fingerprints were recovered, none
could be matched to defendant.
Lao was stabbed 30 times with a single-edged blade approximately five-
eighths of an inch wide and five to six inches long. Her hands and arms showed
multiple defensive wounds. Two stab wounds pierced the rib cage and sliced
completely through her liver, causing massive abdominal bleeding. Another stab
wound to the chest collapsed a lung. Forensic evidence established that the

5
stabbing took place in the employee restroom. The bathroom door was closed
after the attack, but Lao managed to open it. Bleeding from her many wounds,
Lao moved toward the silent alarm button and collapsed nearby. The many
undisturbed blood pools and droplets in the hallway showed that Lao‟s attacker
left the bathroom before she did.
C. Robbery and Assault of Samuel Draper
Samuel “Joe” Draper was a mechanic at the Southwest Bowl. On October
31, 1992, defendant appeared in the doorway of the mechanic shop and asked
Draper for a dollar for bus fare. Draper recognized defendant from the bowling
alley, but they had never spoken before. Draper gave him a dollar from his shirt
pocket. Defendant started to leave but then asked for another dollar. Draper
walked into the shop to retrieve a dollar from his wallet. Defendant took the
money and left. He returned about five minutes later carrying a plastic shopping
bag, which he asked Draper to keep for him. When Draper turned to carry the bag
inside, defendant grabbed him from behind and put a knife to his throat. Draper
tried to grab the knife, cutting his fingers on the blade. Defendant said, “Get down
and I won‟t hurt you.” When Draper complied, defendant tied his hands and feet
with an extension cord and belt and tied a dirty rag around Draper‟s mouth as a
gag. Defendant plucked the wallet from Draper‟s pocket, took out $40 to $50 in
cash, and left, dropping the empty wallet.
Minutes later, Draper managed to free himself. He went inside the bowling
alley and reported the incident. Later, Draper spoke to two men who believed they
had seen defendant living out of a van parked in a nearby alley. Draper reported
this information to the police and showed them the van, but defendant was not in
the area. Draper described defendant as six feet tall, of medium build, and with a
mustache and goatee.
While investigating the Draper robbery, Detective Jacques LaBerge learned
that the suspect may have been the same person recently arrested for stealing a pie
from a church bake sale. Using that booking photograph of defendant, LaBerge

6
prepared a photographic lineup, which he showed to Draper. Draper identified
defendant as the person who had robbed him.
D. Investigation
During the investigation of Lao‟s murder, Sergeant Hernandes Lobo
determined that the raffle tickets found in the gym bag were originally sold to Joe
Vaouli in late September or early October of 1992. Shortly afterward, they were
stolen from Vaouli‟s car while he was visiting his friend Joe Draper at the
Southwest Bowl. Vaouli had reported the theft to the raffle‟s organizer but not to
the police.
In June 1993, the Gardena Police Department prepared and circulated a
flier about the doughnut shop killing. Along with information about the date and
location of the crime, the flier displayed photographs of the gym bag and other
items found at the scene, a description of the suspect, and a composite sketch
prepared with Tomiyasu‟s assistance. The flier was distributed to surrounding
police agencies.
Detective Richard Cohen thought the suspect in the flier resembled
defendant, whom he had recently arrested for burglarizing a church. In addition to
noting this resemblance, Detective Cohen knew that defendant “had been hanging
around the Southwest Bowl and possibly committing crimes there.” Detectives
Cohen and LaBerge met with Sergeant Lobo to share information about the
possibly related crimes. Afterward, Sergeant Lobo prepared a new mug shot
lineup containing the photograph of defendant that had previously been shown to
Draper.
Tomiyasu and Harrison both identified defendant in the photo lineup.
Beatriz Addo identified defendant as the person who had robbed her. Sergeant
Tiller did not make an immediate identification when shown the photographs but
asked if he could see pictures of the men in profile. Sergeant Lobo created a new
group of profile photographs, and Tiller identified defendant. A live lineup was

7
conducted at the sheriff‟s department on October 19, 1993.3 Tiller, Addo,
Harrison and Draper all identified defendant. Tomiyasu could not decide between
defendant and another man in the lineup. Although defendant looked like the
robber, he had gained significant weight. Tomiyasu asked to see another
photographic lineup. When one was prepared, she identified defendant as
“definitely the man that I saw in the donut shop.”
Lavette Gilmore said she could not distinguish between defendant and
another man in Sergeant Lobo‟s first photographic lineup. When shown the
profile photographs shown to Sergeant Tiller, Gilmore identified defendant. At
the live lineup in October 1993, Gilmore identified a different suspect. She later
confessed to the police, however, that she had purposefully picked the wrong
person because her husband had warned her not to get involved. Gilmore later
asked to see another photographic lineup. On January 20, 1995, shortly before
trial, she viewed another six photos and was “over a hundred percent sure”
defendant was the man she had seen at the doughnut shop.
Ella Ford avoided contact with the police for years because she was afraid
of retaliation. She did not attend the live lineup and refused to speak with the
police about the incident until shortly before defendant‟s trial. On January 6,
1995, Ford finally met with the police and identified defendant from a
photographic lineup.
Defendant did not present any evidence in the guilt phase of trial, and the
jury convicted him of all charges.
II. Penalty Phase
A. Prosecution Evidence
1. Victim Impact
Soy Sung Lao was 22 years old when she was murdered. She was the
youngest of six siblings in a close-knit family. After their parents died in 1975

3 Defendant was in custody at the time on an unrelated offense.

8
and 1976, the siblings took care of each other. In 1980, when Lao was 10 years
old, they fled from a communist regime in Cambodia. Sleeping in the forest and
hiding from soldiers, they escaped first to Thailand, then came to the United
States. The family settled in San Diego.
In 1987, Lao‟s sister Lynn Lao Ngov married and moved to Los Angeles to
run the Gardena doughnut shop. When she graduated high school, Lao moved
nearby and enrolled in the University of Southern California. Lao was a full-time
college student majoring in international relations, scheduled to graduate in May
1993. Lao was very close to Ngov‟s two children.
Ngov last saw Lao at the doughnut shop on the day of the murder. She had
left the shop around noon, while Lao worked on alone. When someone phoned
saying Lao had been stabbed, Ngov was shocked and drove straight to the
doughnut shop. She arrived just after the ambulance drove away. Ngov still felt
shocked and “numb” about the murder. Two and a half years later, she still
thought about her sister every day.
2. Other Crimes
On several occasions in October 1992, defendant rented a room at the
Hilltop Motel, where Julio Montulfar and his wife Benita Rodriguez worked as
nighttime caretakers. The first time defendant checked in, he had about $300 cash.
He did not have enough money to pay for his room on other nights, however, and
borrowed money from Montulfar.
Around 9:00 p.m. on October 29, 1992, five days after Lao‟s murder,
defendant came into a room Benita Rodriguez was cleaning. Defendant asked
after Montulfar, and Rodriguez explained that he had gone to the store. About 10
or 15 minutes later, Rodriguez began cleaning another room. When she emerged
from the bathroom, defendant was standing near the bed holding a knife. The door
to the room was closed. Defendant put a finger to his lips, motioning Rodriguez to
be quiet. At knifepoint, defendant took Rodriguez‟s rings and watch, then asked
for the office key. Rodriguez, who spoke little English, repeatedly told defendant,

9
“No money.” She knelt at defendant‟s feet, imploring him not to kill her.
Defendant tried to tie Rodriguez‟s hands behind her back using a shoelace, but she
refused to cooperate. He gestured for Rodriguez to remove her pants. When she
did not understand, defendant “got on all fours on top of the bed” and told her to
imitate the position. When Rodriguez refused, defendant repeatedly kicked her,
stabbed her in the side, and tried to suffocate her. He stabbed her a total of 20
times in the face, arm, stomach, and leg. Fearing for her life, Rodriguez screamed
and tried to grab the knife blade, which was about five or six inches long. She
managed to take hold of the blade and break it off, seriously injuring her finger.
Defendant fled. Trailing blood, Rodriguez staggered to the office and told
Montulfar defendant had stabbed her.
Rodriguez underwent three surgeries to treat the injuries to her stomach and
intestines. She suffered persistent digestive problems and could eat only once a
day. The attack left her face disfigured. Her left eye drooped partially closed,
impairing her vision. She had difficulty sleeping and was afraid to be alone.
In addition to the attack on Benita Rodriguez, the jury learned that
defendant had been convicted of burglary in 1983, in California, and again in
1989, in Louisiana.
B. Defense Evidence
Defendant‟s older sister, Debra Virgil, testified about his upbringing.
Defendant and his sister were raised by a teenage mother in Los Angeles.
Defendant‟s father moved back to Louisiana before defendant‟s birth. His mother
waitressed and relied on welfare payments for support. The family moved often
and lived in small apartments. They always had enough food and clothing, and
their mother was always attentive to her children‟s educational needs. When
defendant and his sister were very young, their mother was convicted of
manslaughter. She was jailed for a brief period, during which the children stayed
with their aunt. Their mother drank excessively and sometimes disciplined
defendant harshly, using her hand, a belt, or an extension cord. The discipline

10
grew more severe as defendant got older; he became angry and resentful.
Defendant‟s mother always had a reason for imposing discipline, but she never
demonstrated affection.
Another child, Dexter, was born when defendant was almost 12 years old.
Dexter‟s father was also involved in defendant‟s life. Loving and affectionate, he
tried to teach the children positive values. Nevertheless, defendant‟s grades began
dropping in junior high school, and he ran away from home briefly when he was
14 or 15. He started working part-time jobs and dropped out of high school at age
16 or 17. Defendant had few friends outside his extended family. In 1982, after
he served a county jail sentence for stealing tools from a garage, defendant moved
with his sister to Tallulah, Louisiana. Defendant worked at different jobs,
eventually entered the job corps, and started a romantic relationship with Annie
Antoine.
Antoine testified that she and defendant began living together in
Shreveport, Louisiana, in 1987. Antoine noticed changes in defendant‟s behavior
when he started spending time with his cousin Chester, a cocaine user. Defendant
still worked but began staying out late at night. In 1989, he was arrested and
imprisoned for burglarizing a warehouse. When paroled in May 1991, defendant
moved in with Antoine and his sister Debra, who were living together in Los
Angeles. During this time, Antoine continued to notice changes in defendant‟s
personality, and their relationship deteriorated. After a few months, defendant
moved to Las Vegas. When Antoine joined him two weeks later, she noticed that
he had lost a significant amount of weight and displayed mood swings. Defendant
stayed out all night, or for days at a time. When Antoine accused him of having
an affair, defendant admitted he was abusing cocaine. Antoine eventually moved
to live with a sister in Salt Lake City. She then discovered she was pregnant with
defendant‟s child.
Antoine resumed contact with defendant when he was in jail. Defendant
took pride in his son, Nigel, and arranged for his family to help with the boy‟s

11
care. Despite defendant‟s addiction to cocaine, Antoine believed he would be a
good father. He had never been violent toward her. She was shocked to learn
about the doughnut shop murder.
DISCUSSION
I. Guilt Phase Issues
A. Defendant’s Absence from Court Proceedings
Defendant claims that the occurrence of several bench conferences during
jury selection and trial deprived him of his statutory (§ 1043) and constitutional
rights to be personally present during critical stages of the trial.4 Defendant has
not shown that his absence from these conferences “ „prejudiced his case or denied
him a fair and impartial trial.‟ ” (People v. Bittaker (1989) 48 Cal.3d 1046, 1080,
quoting People v. Jackson (1980) 28 Cal.3d 264, 309-310.) We reject his claims
as unduly speculative. (See People v. Waidla (2000) 22 Cal.4th 690, 742.)
During voir dire, the trial court conducted all cause challenges at sidebar.
Defendant did not object to this procedure, although defense counsel expressed a
preference that challenges be conducted in open court. He now complains of 12
instances in which prospective jurors were questioned at sidebar about sensitive

4 With regard to this claim and virtually every other claim raised on appeal,
defendant asserts that the error violated his rights to a fair trial and reliable penalty
determination under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and corresponding provisions of the California
Constitution. In most instances, defendant failed to make these constitutional
arguments in the trial court. Nevertheless, unless otherwise indicated, we consider
the merits of these newly raised arguments because either (1) the appellate claim is
of a kind that required no objection to preserve it, or (2) the claim invokes no facts
or legal standards different from those before the trial court, but merely asserts that
an error had the additional legal consequence of violating the Constitution. (See
People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.) In those circumstances,
defendant‟s new constitutional arguments are not forfeited on appeal. (Ibid.; see
People v. Partida (2005) 37 Cal.4th 428, 433-439.) Where rejection of a claim of
error on the merits necessarily leads to a rejection of the newly asserted
constitutional objection, no separate constitutional analysis is required and we
have provided none. (See Boyer, at p. 441, fn. 17.)

12
matters. Some of these sidebar hearings resulted in the prospective juror‟s
dismissal for cause or the denial of a cause challenge. In four instances, sidebar
questioning led to a prospective juror‟s excusal by stipulation. Defendant also
complains of 16 occasions when trial proceedings were conducted outside his
presence. Fourteen of these incidents were brief bench conferences held during
the presentation of evidence or argument. Once, outside the presence of the jury,
defendant was removed from the courtroom so that witnesses Montulfar and
Rodriguez could be brought into court and ordered to return the following day.
Defendant was also removed from court during part of a posttrial hearing when the
court identified by name the jurors who had spoken at a previous hearing.
“ „A criminal defendant‟s right to be personally present at trial is
guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution
. . . . [Citations.] A defendant, however, “does not have a right to be present at
every hearing held in the course of a trial.” [Citation.] A defendant‟s presence is
required if it “bears a reasonable and substantial relation to his full opportunity to
defend against the charges.” [Citation.] The defendant must show that any
violation of this right resulted in prejudice or violated the defendant‟s right to a
fair and impartial trial. [Citation.]‟ (People v. Hines [(1997)] 15 Cal.4th [997,]
1038-1039.)” (People v. Lucero (2000) 23 Cal.4th 692, 716-717; see Kentucky v.
Stincer (1987) 482 U.S. 730, 745; United States v. Gagnon (1985) 470 U.S. 522,
526.) The same analysis applies under article I, section 15 of the California
Constitution. (People v. Ochoa (2001) 26 Cal.4th 398, 433; People v. Waidla,
supra, 22 Cal.4th at p. 742.) “The standard under sections 977 and 1043 is
similar. „ “[T]he accused is not entitled to be personally present during
proceedings which bear no reasonable, substantial relation to his opportunity to

13
defend the charges against him . . . . [Citation.]” [Citation.]‟ [Citations.]”
(People v. Rogers (2006) 39 Cal.4th 826, 855.) 5
“On appeal, we apply the independent or de novo standard of review to a
trial court‟s exclusion of a criminal defendant from pretrial and trial proceedings,
either in whole or in part, „insofar as the trial court‟s decision entails a
measurement of the facts against the law.‟ (People v. Waidla, supra, 22 Cal.4th
690, 741.)” (People v. Cole (2004) 33 Cal.4th 1158, 1230.) After independent
review, we find no error. Defendant‟s constitutional right to be personally present
was not violated.
Defendant has not indicated how his presence at any of the various sidebar
conferences during voir dire or trial bore a reasonably substantial relation to his
opportunity to defend himself. All of the bench conferences during trial
concerned routine evidentiary or legal matters, and “we cannot conclude with
respect to any one of them that [defendant‟s] personal presence either was
necessary for an „opportunity for effective cross-examination,‟ for purposes of the
Sixth Amendment‟s confrontation clause [citation]; or would have „contribute[d]‟
to the trial‟s „fairness‟ in any marginal way, for purposes of the Fourteenth
Amendment‟s due process clause [citation]; or bore a „ “ „ “reasonably substantial
relation to the fullness of his opportunity to defend,” ‟ ” ‟ for purposes of
section 15 of article I of the California Constitution and also sections 977 and
1043 of the Penal Code [citation].” (People v. Waidla, supra, 22 Cal.4th at p. 742,
italics omitted.) Defendant complains he should have been present at bench
conferences when questions about his attorney‟s performance might have been
raised, such as when the court sustained prosecutorial objections or overruled
defense objections, when defense counsel agreed to limit his questioning to

5 We decline defendant‟s suggestion that we reexamine these established
precedents based on what he finds to be the United States Supreme Court‟s
increased reliance on common law in regard to an accused‟s right to be present at
trial.

14
accommodate witnesses‟ schedules, and when defense counsel once asked to end
the day early to attend to a personal matter.6 Defendant also asserts that he should
have been present when the prosecutor was criticized for failing to provide
discovery on some witnesses.7 In both cases, however, nothing suggests
defendant‟s presence would have accomplished anything useful. Defendant does
not claim that discovery violations by the prosecutor infringed his rights or entitle
him to a new trial. Nor does he argue his attorney provided constitutionally
ineffective representation. Defendant observed his attorney‟s performance in
court, and he does not claim to have been unaware of defense strategies discussed
at sidebar. Although counsel‟s sidebar arguments were not always successful,
defendant has not identified any particular shortcoming that could have been
grounds for a successful motion under People v. Marsden (1970) 2 Cal.3d 118.
Nor has defendant shown that his presence would have affected the
outcome of the for-cause juror challenges argued at sidebar. (See People v.
Benavides (2005) 35 Cal.4th 69, 89.) With few exceptions, defendant simply
describes the proceedings and does not explain how his presence would have made
a difference. In the examples he does discuss in detail, and which we consider
below, we perceive no reasonable or substantial relation between defendant‟s
absence from the proceedings and his ability to present a defense.
During sidebar conferences, two prospective jurors reported being abused
as children. Defendant now contends his absence from these discussions was
detrimental because he could have “provide[d] input to counsel regarding his
assessment” of the effect of such abuse on the prospective jurors‟ views. Neither
of these prospective jurors was excused immediately, however, and in both

6 After the close of testimony in the penalty phase, defense counsel reported
at sidebar that he had learned his mother-in-law had just died. Counsel asked if
they could finish the proceedings early so that he could join his wife.
7 Defense counsel complained the prosecution had not notified him that
Montulfar would testify or provided notes of any interviews of this witness.

15
instances defendant and his attorney had an opportunity to discuss the information
revealed at sidebar. In discussions of sensitive issues such as a prospective juror‟s
childhood abuse, “allowing the defendant to be present „could well undermine the
confidence and cooperation‟ necessary” to encourage candor. (People v. Ochoa,
supra, 26 Cal.4th at p. 435, quoting People v. Hovey (1988) 44 Cal.3d 543, 573.)
Defendant complains of another sidebar that was requested by one of the
sworn jurors during the selection of alternates. This juror revealed at sidebar that
he was familiar with the locations of the crimes and had talked with relatives about
criminal activity in the area. After he returned to his seat, the lawyers remained at
the bench and immediately agreed the juror had to be excused from service. In
discussing how to fill the juror‟s seat, defense counsel requested that the court seat
the first alternate juror but also give both sides an additional peremptory
challenge. The court agreed. Defendant now complains that that this procedure
was critically important and his absence deprived him of the “opportunity to
provide . . . input to counsel.” He raised no objection at the time, however, and
even now fails to explain what useful “input” he could have given or what
different procedure he might have urged. At most, defendant‟s absence from this
tactical discussion deprived him of “a mere „shadow‟ benefit” and does not
amount to a constitutional or statutory violation. (People v. Ochoa, supra, 26
Cal.4th at p. 433; see Snyder v. Massachusetts (1934) 291 U.S. 97, 106-107
[accused has no constitutional right to be present “when presence would be
useless, or the benefit but a shadow”].)
Finally, more than three years after briefing in this case had been
completed, defendant filed a supplemental brief raising the new argument that the
questioning of jurors at sidebar violated his federal constitutional right to a public
trial. In Presley v. Georgia (2010) __ U.S. __ [130 S.Ct. 721], the high court held
that a criminal defendant‟s Sixth Amendment right to a public trial extends to jury
selection. (Presley, at p. 724.) However, the court recognized that “there are
exceptions to this general rule. „[T]he right to an open trial may give way in

16
certain cases to other rights or interests, such as the defendant‟s right to a fair trial
or the government‟s interest in inhibiting disclosure of sensitive information.‟
(Waller[ v. Georgia (1984)] 467 U.S.[ 39,] 45.)” (Presley, at p. 724.)
Initially, we note that the claim is forfeited because defendant failed to
object on this ground below. “A defendant „may, by his own acts or acquiescence,
waive his right [to a public trial] and thereby preclude any subsequent challenge
by him of an order excluding the public. Unlike the jury trial right which requires
an express personal waiver [citation], the constitutional guarantee of a public trial
may be waived by acquiescence of the defendant in an order of exclusion.‟
[Citations.]” (People v. Edwards (1991) 54 Cal.3d 787, 813.)
This late-raised argument claim also fails on the merits. Not every sidebar
conference rises to the level of a constitutional violation. Trial courts retain broad
power to control their courtrooms to maintain security, protect the defendant‟s
interest in a fair trial, protect the privacy concerns of prospective jurors, and
efficiently dispose of matters outside the hearing of jurors or testifying witnesses.
(Alvarado v. Superior Court (2000) 23 Cal.4th 1121, 1150; People v. Esquibel
(2008) 166 Cal.App.4th 539, 552.) We have also held that even a partial or
temporary exclusion of the public from certain proceedings, if justified, imposes
no more than a de minimus restriction on the constitutional right to a public trial.
(People v. Woodward (1992) 4 Cal.4th 376, 385-386; see also People v. Bui
(2010) 183 Cal.App.4th 675, 683-687 [concluding Presley did not alter the “de
minimis” exception recognized in Woodward].)
Here, the courtroom was not closed. Defendant has directed us to no case
that holds sidebar conferences to discuss sensitive or potentially prejudicial
matters are akin to a closure of the courtroom, violating state or federal
constitutional public trial guarantees. In Presley, the trial court had excluded all
members of the public from the courtroom during voir dire, including one of the
defendant‟s family members. (Presley v. Georgia, supra, 130 S.Ct. at p. 722.)
Defendant was present and the public was allowed, but the court questioned jurors

17
at sidebar about sensitive subjects bearing on potential cause challenges. We
agree that, as a general rule, the questioning of prospective jurors should be
conducted in open court, with sidebar conferences reserved for particularly
sensitive or prejudicial topics. However, having reviewed the record, we are
satisfied that the brief bench conferences during jury selection here imposed no
more than a de minimus infringement of the public trial guarantee. These brief
episodes of questioning and argument at the bench did not deprive defendant of
his right to a public trial.
B. Cause Challenges
Defendant claims the court erred in its rulings on challenges to three
prospective alternate jurors for cause and improperly limited defense counsel‟s
questioning of a fourth prospective juror. We find no abuse of discretion.
1. Denial of Defense Challenges
a. Prospective Alternate Juror John B.
During voir dire, the court questioned Prospective Alternate Juror John B.
at the bench about disclosures in his questionnaire concerning child abuse. After
this topic was explored, defense counsel requested permission to ask John B. “one
question.” He then asked whether “a person who has committed cold-blooded,
premeditated murder in the commission of a robbery has forfeited his right to live
and should automatically get the death penalty regardless of his circumstances?”
John B. disagreed with the word “automatically” and said he would not vote for
death automatically. He explained, however, that he could imagine circumstances
when a murderer would forfeit the right to live, such as if the victim was murdered
even when doing his or her best to cooperate. When defense counsel asserted
“that is precisely what the People are going to try to prove,” John B. admitted that,
in that case, he would “lean very strongly” in favor of voting for death. The court
interrupted the juror and asked if the prosecutor had any questions. In response to
the prosecutor‟s questioning, John B. repeatedly stated that he would “weigh the
circumstances” in deciding whether to impose the death penalty and would not

18
impose death automatically. John B. stressed that he would always take the
circumstances of the case into account. He could vote for life imprisonment
without parole, but he conceded that in certain circumstances, like the murder of a
compliant victim, he would lean strongly toward the death penalty.
Defense counsel interposed the beginning of a question: “But if a person
goes out of his way to take a robbery victim who is not resisting, and take them to
another area and murder them by repeatedly stabbing them —.” The court
sustained an objection, and counsel rephrased the question. Directing John B.‟s
attention to a questionnaire response stating that a person who committed
premeditated murder had “ „forfeited the right,‟ ” defense counsel asked whether a
fact pattern of premeditated murder would cause John B. to “automatically vote
for death.” John B. responded, “I‟m going to object to the term „automatic.‟ I
would lean much more heavily towards it. But I mean, there are circumstances
that would have to be weighed all the way around.”
The next day, defendant moved to dismiss John B. for cause, arguing there
was no reasonable possibility John B. would impose life imprisonment without
parole under the facts of this case. The court denied the challenge. Having
observed John B.‟s demeanor at sidebar, the court “found him to be very
thoughtful in his answers, and . . . very credible.” Although John B. said he would
strongly lean toward death in certain cases, the court concluded this statement was
not a sufficient basis for disqualification. The court observed, “Yes, he‟s a strong
pro-deather. But he made it very, very clear that he would be willing to look at the
circumstances, although his feelings on the subject matter are very strong.” After
his cause challenge was denied, defendant exercised a peremptory challenge to
excuse John B. and exhausted all four peremptory challenges allotted for the
selection of alternate jurors. However, defense counsel did not express
dissatisfaction with the jury as sworn.
“As a general rule, a party may not complain on appeal of an allegedly
erroneous denial of a challenge for cause because the party need not tolerate

19
having the prospective juror serve on the jury; a litigant retains the power to
remove the juror by exercising a peremptory challenge. Thus, to preserve this
claim for appeal we require, first, that a litigant actually exercise a peremptory
challenge and remove the prospective juror in question. Next, the litigant must
exhaust all of the peremptory challenges allotted by statute and hold none in
reserve. Finally, counsel . . . must express to the trial court dissatisfaction with the
jury as presently constituted.” (People v. Mills (2010) 48 Cal.4th 158, 186.)
Defendant satisfied the first two of these requirements, but not the third. We have
declined to find claims forfeited under these circumstances in cases tried before
1994, when the expression of dissatisfaction requirement was clarified in People v.
Crittenden (1994) 9 Cal.4th 83, 121, footnote 4 (see Mills, at pp. 186-187);
however, defendant‟s trial was in 1995.
Even if defendant‟s claim had been preserved, it would fail on the merits.
Defendant first argues the court erred in limiting his attorney‟s questioning of John
B. In general, both parties are entitled to ask prospective jurors questions “that are
specific enough to determine if those jurors harbor bias, as to some fact or
circumstance shown by the trial evidence, that would cause them not to follow an
instruction directing them to determine a penalty after considering aggravating and
mitigating evidence. [Citation.]” (People v. Cash (2002) 28 Cal.4th 703, 720-
721.) However, “[o]ur decisions have explained that death-qualification voir dire
must avoid two extremes. On the one hand, 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 in the case being tried. On the
other hand, it must not 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. [Citation.] In deciding where to strike the
balance in a particular case, trial courts have considerable discretion. [Citations.]”
(Id. at pp. 721-722.)

20
Defense counsel had ample opportunity to question John B. and did so at
length. This questioning was cut short on only one occasion, when the court
sustained an objection to counsel‟s question whether John B. would impose the
death penalty upon a person who had moved an unresisting robbery victim to
another location and then repeatedly stabbed them. This hypothetical question
included several key facts about defendant‟s alleged crime: (1) The murder was
committed during a robbery; (2) the victim did not resist; (3) the victim was
moved to another location; and (4) in that location, the victim was stabbed
repeatedly and killed. Given this specificity, the trial court did not abuse its
discretion in concluding that the question improperly called for Prospective
Alternate Juror John B. to prejudge the penalty determination based on evidence
likely to be presented.
Defendant next argues substantial evidence does not support the court‟s
denial of his challenge of John B. for cause. “A prospective juror may be
challenged for cause based upon his or her views regarding capital punishment
only if those views would „ “prevent or substantially impair” ‟ the performance of
the juror‟s duties as defined by the court‟s instructions and the juror‟s oath.
(Wainwright v. Witt (1985) 469 U.S. 412, 424; People v. Crittenden[, supra,] 9
Cal.4th [at p.] 121; People v. Mincey (1992) 2 Cal.4th 408, 456.)” (People v.
Cunningham (2001) 25 Cal.4th 926, 975.) “If a juror‟s responses are conflicting
or equivocal, the trial court‟s ruling is binding on us. [Citations.] If not, we will
uphold the trial court if the ruling is fairly supported by substantial evidence in the
record, giving deference to the trial court which had the opportunity to observe
and listen to the juror. [Citations.]” (People v. Holt (1997) 15 Cal.4th 619, 651.)
Substantial evidence supports the trial court‟s conclusion that John B. could
remain impartial and apply the law despite his personal beliefs regarding the death
penalty. The trial court found John B.‟s responses to be thoughtful and credible,
and we defer to this assessment. (People v. Navarette (2003) 30 Cal.4th 458, 490;
People v. Crittenden, supra, 9 Cal.4th at p. 122.) John B. repeatedly averred that

21
he would not impose the death penalty automatically, but would consider all the
relevant circumstances in making a decision. Although he admitted he would lean
toward death in the case of a robber who proceeded to murder a cooperative
victim, he stressed that no particular penalty would be “automatic.” In context,
John B.‟s statements appear to convey his view that the premeditated murder of an
unresisting victim presents, in the abstract, a collection of aggravating
circumstances that tip the balance heavily in favor of death. John B. did not rule
out a different result, however, if mitigating circumstances were also taken into
account.
b. Prospective Alternate Juror Tracey S.
Prospective Alternate Juror Tracey S. worked as a registered nurse with the
Los Angeles County Sheriff‟s Department, treating inmates at the Men‟s Central
Jail. She came in contact with deputy sheriffs but none were her friends. At
sidebar, defense counsel disclosed that defendant remembered being treated by
Tracey S. in the past. Defendant had seen her talking to deputies and believed she
dated deputies. Defense counsel challenged Tracey S. for cause “out of an
abundance of caution” and conceded the challenge was not based on “anything
specific.” Counsel explained that he would feel “uncomfortable” having Tracey S.
as a juror given that she could encounter defendant at the jail during the trial and
“we‟re trying to pretend he‟s not in custody.” The court observed that Tracey S.
would not have contact with defendant if she served as a juror “because she
obviously wouldn‟t be going to work; she would be coming here.” Nevertheless,
the court asked if Tracey S. recognized anyone at counsel table, and she replied
that she did not. The court denied the challenge. Immediately after this ruling,
defense counsel declined to exercise a peremptory challenge against Tracey S. and
expressly accepted the alternate jurors. Tracey S. was sworn as an alternate and
eventually sat as a regular juror.
Defendant now claims the court erred in denying his challenge. Assuming
this claim was not waived by defense counsel‟s express acceptance of the alternate

22
jurors, it fails on the merits. Tracey S. said she did not recognize anyone at the
defense table. Defense counsel could not identify any specific reason why Tracey
S. could not serve as a fair and impartial juror. He referred only to his discomfort,
defendant‟s speculation, and counsel‟s conjecture that Tracey S.‟s job, which she
would be away from during trial, might alert her to defendant‟s custodial status.
These vague and speculative objections were not sufficient to support a dismissal
for cause, and the trial court‟s denial of the challenge is supported by substantial
evidence. (See People v. Carpenter (1999) 21 Cal.4th 1016, 1035.)
However, defendant insists that the challenge should have been granted
because, almost a month later, Tracey S. did see defendant at the jail. Jurors were
excused from court for one day after the close of evidence in the guilt phase.
Tracey S. went to work that day and saw defendant standing in line outside the
jail‟s clinic with a group of inmates. They did not speak. Tracey S. walked by
defendant, had no more contact with him, and did not try to find out more about
him. Thus, while she learned that defendant was in custody, she knew nothing
else about him, and she did not remember having ever treated him. Defense
counsel asked Tracey S. several questions about the incident, and she repeatedly
said it would not affect her ability to serve as a juror. At the court‟s request, she
also agreed not to mention the sighting to other jurors. Counsel did not move to
dismiss Tracey S. or make any attempt to show she was disqualified from serving
as a juror. “Plainly, if a defendant desires the trial court to fashion an appropriate
remedy under these circumstances, the request must be timely to afford the
opportunity to rule when the ruling will be meaningful. [Citation.]” (People v.
Ramos (1997) 15 Cal.4th 1133, 1160.) Because no objection was made below, to
the extent defendant contends the court erred in failing to discharge Tracey S.
from the jury, the claim has been forfeited. (Ibid.; see also § 1089 [permitting
discharge of a juror at any time “upon . . . good cause shown to the court” (italics
added)].)

23
Even if the claim had been preserved, it would fail on the merits. A juror
may be discharged if, at any time before or after final submission of the case, the
court upon good cause finds the juror “unable to perform his or her duty.”
(§ 1089.) We generally uphold a trial court‟s decision regarding discharge if there
is any substantial evidence to support it, although, if a juror is discharged, her
inability to perform as a juror “must „ “appear in the record as a demonstrable
reality.” ‟ [Citation.]” (People v. Marshall (1996) 13 Cal.4th 799, 843.) The
record does not support defendant‟s claim that Tracey S.‟s ability to serve was
compromised because she saw him in custody. Tracey S. immediately reported
the incident to the court, repeatedly assured the court the incident would have no
effect on her decisionmaking, and agreed to say nothing about it to other jurors.8
2. Grant of Prosecution Challenge to Prospective Alternate
Juror Janice S.
In her questionnaire, Prospective Juror Janice S. wrote that she “really
[didn‟t] believe in the death penalty,” but she thought she could set her beliefs
aside and impose it if she thought it was appropriate. During voir dire, however,
Janice S. said that she did not believe she had the “right to say . . . somebody else
should die. I can‟t make that decision” The court asked if Janice S. could think of
a set of circumstances in which she could impose the death penalty for a person
convicted of first degree murder committed in the course of a robbery. Janice S.
said she could not, although she had written on her questionnaire that she could do
so. Janice S. explained: “[N]ow I‟m thinking. I had time to think. And no, I
couldn‟t say — even if they did all that — that I still couldn‟t say that I could
sentence this person to death.” When the court asked again, “are you telling us . . .
you can‟t see a set of circumstances where you could find yourself personally

8 Although the defense was “trying to pretend” that defendant was not in
custody, few jurors would find it remarkable that a defendant facing the death
penalty would be in custody during trial. We note further that during the penalty
phase defendant refused to wear civilian clothing. Thus, his custody status was
evident.

24
voting to put someone to death,” Janice S. answered, “Right. I couldn‟t. No, I
could not.” Later, the prosecutor challenged Janice S. for cause. Defense counsel
asked for an opportunity to attempt to rehabilitate her. In the alternative, he
opposed the challenge based on Janice S.‟s questionnaire responses expressing a
willingness to set aside her beliefs and impose the death penalty if appropriate.
The court sustained the challenge without allowing further inquiry.
A prospective juror may be excluded for cause without compromising a
defendant‟s right to trial by an impartial jury if the juror‟s 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,
supra, 469 U.S. at p. 424; see also People v. Rodrigues (1994) 8 Cal.4th 1060,
1146.) “A prospective juror is properly excluded if he or she is unable to
conscientiously consider all of the sentencing alternatives, including the death
penalty where appropriate. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229,
1246.) “Generally, the qualifications of jurors challenged for cause are matters
within the wide discretion of the trial court, seldom disturbed on appeal.
[Citations.] 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. [Citations.] „On review, if the juror‟s statements are equivocal or
conflicting, the trial court‟s determination of the juror‟s state of mind is binding.
If there is no inconsistency, we will uphold the court‟s ruling if it is supported by
substantial evidence. [Citations.]‟ (People v. Carpenter (1997) 15 Cal.4th 312,
357.)” (Jones, at pp. 1246-1247.)
The record amply supports the trial court‟s dismissal of Janice S. for cause.
Although her questionnaire responses were somewhat ambiguous, Janice S.
unequivocally stated at voir dire that she had considered the matter further and
concluded she could not vote to impose the death penalty under any

25
circumstances. This clear admission established that Janice S. could never impose
the penalty sought by the prosecution in this capital case. Accordingly, the trial
court properly dismissed Janice S. because her views would have substantially
impaired her ability to perform her duties as a juror.
Defendant also claims the court violated his constitutional rights by
refusing to allow defense counsel to question Janice S. further on her views about
the death penalty. Defendant speculates that further questioning might have
shown that Janice S. could have set aside her strong views and fulfilled her duties
as a capital juror. However, as we have repeatedly stated, “[t]he court has
discretion to refuse to allow defense counsel to question jurors for the purpose of
rehabilitation if their „answers made their disqualification unmistakably clear . . . .‟
(People v. Bittaker, supra, 48 Cal.3d at p. 1085, citing People v. Nye (1969) 71
Cal.2d 356, 364.)” (People v. Carpenter, supra, 15 Cal.4th at p. 355; see also
People v. Samayoa (1997) 15 Cal.4th 795, 823.) We find no abuse of discretion.
After reflection, Janice S. candidly admitted that she could not vote to impose the
death penalty under any circumstances. Her clearly stated views disqualified her
from jury service.
Defendant nevertheless insists the questioning of Janice S. was
constitutionally inadequate under Morgan v. Illinois (1992) 504 U.S. 719. Not so.
Morgan simply held that general questions about a juror‟s ability to be fair and
follow the law are not sufficient to detect those in the venire who would
automatically vote for or against death. (Id. at pp. 734-735.) Questions about
death penalty biases must be specific enough that they require potential jurors to
consider whether they have such strong views about capital punishment that they
could not follow the law. (Id. at pp. 735-736.) The trial court‟s questions directly
involving the death penalty were sufficiently specific. As the Supreme Court
observed in Morgan, “such jurors — whether they be unalterably in favor of, or
opposed to, the death penalty in every case — by definition are ones who cannot
perform their duties in accordance with law . . . .” (Id. at p. 735.)

26
3. Limited Questioning of Prospective Alternate Juror
Duvall G.
Finally, defendant claims the court erred in refusing to allow defense
counsel to question Prospective Alternate Juror Duvall G. Before jury selection,
the court announced its intention to question the jurors itself but also allow each
side one hour for the attorneys to “hone in on areas that they really believe are
necessary.” No objections were raised to this procedure. Each prospective juror
had completed a detailed, 36-page questionnaire, and the record reflects that the
court questioned each juror individually. After the court questioned Duvall G.,
defense counsel requested leave to ask “a couple” of questions. The court
declined, remarking that the attorneys were “both out of time.” Defendant did not
challenge Duvall G. for cause or exercise a peremptory challenge against him.
Duvall G. was sworn as an alternate juror and substituted onto the jury during the
guilt phase.
In his questionnaire, Duvall G. revealed that he had been physically and
mentally abused by his father. When the court asked about this abuse at sidebar,
Duvall G. explained that his mother had abandoned the family, leaving Duvall G.
with his alcoholic father. Duvall G. remarked on the experience: “To me, it‟s no
big deal. I‟m here. I work every day. . . . [¶] I never had any psychological
counseling. So I guess I‟m just a regular kind of guy, you know.” Duvall G.
thought he could objectively weigh evidence about similar abuse, “because I never
think about it. It doesn‟t bother me.” Asked if a person subjected to such abuse
“can still make the right choices in life,” Duvall G. responded, “[of] course they
can.” He believed that if an abused person later made “wrong choices in life,”
they would be accountable for such choices. He explained: “It‟s not like they‟re
still being abused. To me, it‟s not that deeply rooted . . . . That‟s just my personal
opinion.” Despite this opinion, Duvall G. averred that he could consider evidence
of abuse as a factor in causing a person to make bad decisions.

27
Duvall G. was arrested for joyriding and driving while intoxicated when he
was 13 or 14 years old. When the court asked about this experience, Duvall G.
confirmed that he had been treated fairly by the criminal justice system. He
regretted the incident because he could have hurt someone.
Duvall G.‟s questionnaire also mentioned that he had been the victim of a
burglary and a robbery. In response to the court‟s questions, Duvall G. disclosed
that two men had robbed him at knifepoint eight or nine years earlier. He did not
contact the police because robberies happened “all the time” in that neighborhood,
and he thought “it was, like, no big deal as long as I didn‟t get hurt. That‟s what
you pray for, not to get hurt.” Also, he did not think the police could catch the
robbers, who ran away on foot, “and they only got a couple dollars.” Duvall G.
did not try to find the culprits. He affirmed that he could be fair in the present
case even though it involved an allegation of robbery with a knife. Duvall G. also
stated in his questionnaire that he could find defendant not guilty if the evidence
did not support the charges, and he commented, “Robbery is not murder.”
In his questionnaire, Duvall G. agreed that it is important to know a
person‟s life circumstances when deciding between the death penalty and life
imprisonment, and he said he could follow an instruction directing him to consider
these circumstances. On voir dire by the court, Duvall G. affirmed that he could
give fair and objective consideration to all the evidence bearing upon penalty, and
he could personally impose either penalty depending on what the evidence
showed.
Defendant now contends the trial court‟s refusal to allow further
questioning by defense counsel rendered the trial fundamentally unfair. Because
defendant did not challenge Duvall G. for cause, did not exercise a peremptory
challenge against him, and expressly accepted the panel of alternate jurors sworn,
he has forfeited any claim of error regarding Duvall G.‟s suitability as a juror.
(People v. Burgener (2003) 29 Cal.4th 833, 866; People v. Ramos, supra, 15
Cal.4th at p. 1160.) His argument also fails on the merits.

28
“The trial court . . . has a duty to restrict voir dire within reasonable bounds
to expedite the trial. [Citation.]” (People v. Avila (2006) 38 Cal.4th 491, 536.)
We review a trial court‟s limitations on voir dire for abuse of discretion. (People
v. Benavides, supra, 35 Cal.4th at p. 88; see Code Civ. Proc., § 223.) No such
abuse appears here. The court thoroughly questioned Duvall G. on his background
and relevant experiences and probed his ability to be a fair and impartial juror.
Defense counsel never told the trial court what additional questions he sought to
ask, what subjects needed to be explored further, or why the information elicited
from Duvall G.‟s detailed questionnaire and the court‟s questioning was not
sufficient to allow him to exercise his challenges intelligently. Defendant did not
ask the court to pose further questions. As a result, defendant‟s argument that the
time limits on attorney voir dire deprived him of an opportunity to establish that
Duvall G. could not serve as a fair and impartial juror is purely speculative.
(People v. Roldan (2005) 35 Cal.4th 646, 693, disapproved on another ground in
People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Duvall G.‟s responses in the
questionnaire, and in court, consistently showed that he was qualified to serve as a
juror. Defendant had sufficient information from the questionnaire and in-court
voir dire to exercise his challenges intelligently. The trial court did not abuse its
discretion by denying defense counsel‟s request to question this prospective juror
further. (See Roldan, at p. 694.)
C. Admission of Victim Photographs
During the guilt phase, the prosecution introduced People‟s exhibit No. 14,
which held four mounted photographs of the murder victim, Soy Sung Lao. The
two photographs on the left depicted Lao in life, wearing a University of Southern
California sweatshirt. The two on the right were taken by the coroner during
Lao‟s autopsy. When the prosecutor used this exhibit in questioning Sergeant
Tiller, Officer Schmidt, and Debra Tomiyasu, he left one of the autopsy photos
partially uncovered, revealing only Lao‟s face. The other autopsy photo was
covered entirely. Defendant did not object to the use of the exhibit with any of

29
these witnesses. During the testimony of Ty Ngov, the victim‟s brother-in-law,
defense counsel objected to a display of the partially covered coroner‟s
photograph. In response, the prosecutor covered the photograph entirely, leaving
exposed only the photographs of Lao in life. Defense counsel agreed to stipulate
that Lao was the person shown in the covered photograph. The exhibit remained
in this condition, with both autopsy photos covered, when the prosecutor displayed
it in questioning Lao‟s sister and a crime scene technician. Defendant did not
object to these displays of the partially covered exhibit. During his examination of
the forensic pathologist, the prosecutor uncovered the autopsy photos and, without
objection, displayed the full exhibit to the jury. In addition to marking the
locations of Lao‟s stab wounds on a blank body chart, the pathologist circled some
specific wounds on one of the autopsy photographs in the exhibit.
Defendant now claims the trial court abused its discretion when it admitted
People‟s exhibit No. 14 into evidence. Although defense counsel did not object to
the use of the exhibit with seven separate witnesses, he argued after the close of
testimony in the guilt phase that the exhibit should be excluded from evidence
because the juxtaposition of autopsy photos with pictures of the victim in life was
more prejudicial than probative. This objection should have been made during the
pathologist‟s testimony, when all the photographs were unveiled for the jury, but it
was not. “Because defendant did not object at the time the photographs were used
in questioning the witnesses, he failed to preserve the issue for appeal. Although
he later raised an objection, that objection was not sufficiently timely to preserve
the issue. The requirement that an objection to evidence be timely made is
important because it „allows the court to remedy the situation before any prejudice
accrues.‟ [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 423-424.)
Even if the claim had been preserved, the evidence was properly admitted.
“The admission of photographs of a victim lies within the broad discretion of the
trial court when a claim is made that they are unduly gruesome or inflammatory.
[Citations.] The court‟s exercise of that discretion will not be disturbed on appeal

30
unless the probative value of the photographs clearly is outweighed by their
prejudicial effect. [Citations.]” (People v. Crittenden, supra, 9 Cal.4th at pp. 133-
134.) The photographs in the exhibit were relevant to corroborate eyewitness
identifications of Lao and to illustrate expert forensic testimony. Defendant does
not contend the autopsy photographs were especially gruesome. He objects that
the juxtaposition of photos showing the victim in life and in death was unfairly
prejudicial because this combination would likely evoke sympathy for the victim.
“We have described the „prejudice‟ referred to in Evidence Code section 352 as
characterizing evidence that uniquely tends to evoke an emotional bias against a
party as an individual, while having only slight probative value with regard to the
issues. [Citation.]” (Crittenden, at p. 134; see also Vorse v. Sarasy (1997) 53
Cal.App.4th 998, 1008 [“Evidence is not prejudicial, as that term is used in a
section 352 context, merely because it undermines the opponent‟s position or
shores up that of the proponent”].) Each photo was properly admitted. All
evidence is to be considered as a whole. The mere fact that four properly admitted
photographs were mounted on a single board does not approach the threshold for a
section 352 exclusion. After seven witnesses had been questioned about People‟s
exhibit No. 14 without objection from the defense, the trial court did not abuse its
discretion in admitting the exhibit itself into evidence.
D. Testimony of Lavette Gilmore
Defendant complains the trial court made several errors in regard to the
testimony of Lavette Gilmore, the hair stylist who identified defendant as having
been in the doughnut shop shortly before the murder. We find no prejudicial error.
1. Nonresponsive Testimony
During direct examination, after Gilmore described the man she saw sitting
alone at one of the doughnut shop tables, the prosecutor asked what drew her
attention to this person. She responded that he gave her a “funny feeling” and his
sitting there “[j]ust didn‟t feel right.” Defense counsel asked the court to strike the
phrase “funny feeling” because Gilmore‟s “suspicions or feelings” were not

31
relevant. The court overruled the objection and noted that Gilmore‟s remark
“explain[ed] why she paid attention” to the man in the shop. Gilmore also
testified, without objection, that defendant‟s appearance drew her suspicion
because “[h]e looked like he shouldn‟t have been there. He looked rugged.” He
was thin, needed a haircut, and “didn‟t look clean at all.” When the prosecutor
asked Gilmore to identify defendant, in court, as the man she saw in the doughnut
shop, she responded, “He looks so clean and nice now and healthy.” She could
not say he was the same person. The prosecutor then questioned Gilmore about
the 1993 photographic lineup in which she identified defendant‟s profile photo.
Asked how she expressed her identification to the officer, Gilmore replied that she
remembered the man‟s eyes, nose, cap, facial hair, and the way he tried to hide his
face. She explained that she focused her attention on the man in the shop because
she “had a lot of money in [her] back pocket” from having worked a full day at the
salon. Defense counsel interrupted, objecting to testimony about money in
Gilmore‟s pocket and her “inchoate fears.” The court responded by directing the
prosecutor to ask his next question. Defense counsel did not request a ruling on
his objection or move to strike Gilmore‟s testimony as nonresponsive.
Defendant now claims the court erred in failing to strike Gilmore‟s
testimony sua sponte because it was nonresponsive and more prejudicial than
probative. Specifically, defendant contends the testimony asked the jury to infer
that he had a predisposition to commit robbery. He also argues Gilmore‟s
testimony was inadmissible as a lay opinion about whether the man she saw in the
doughnut shop intended to commit a robbery.
Defendant forfeited these claims by failing to obtain a ruling on his
objection and failing to move that Gilmore‟s testimony be stricken. “ „In the
absence of an erroneous ruling on an objection or request that a nonresponsive
answer be stricken and the jury instructed to disregard it, there is no error.‟
(People v. Harris [(1989)] 47 Cal.3d [1047,] 1089.)” (People v. Jackson (1996)
13 Cal.4th 1164, 1214.) Defense counsel‟s vague objection to what he

32
characterized as Gilmore‟s “inchoate fears” was not sufficient to preserve a claim
of error for appeal. “A nonresponsive answer is properly the subject of a motion
to strike (Evid. Code, § 766), not an objection.” (People v. Bell (2007) 40 Cal.4th
582, 611, fn. 11.)
In any event, defendant‟s claims fail on the merits. Gilmore did not express
an opinion about whether the man was a potential robber. She gave no character
evidence about defendant‟s propensity to act in a particular way. She merely
described her state of mind upon seeing a “rugged”-looking man sitting alone in
the shop. The testimony was relevant to show that she paid particular attention to
the man and explain why she did so. As to defendant‟s challenge under Evidence
Code section 352, the evidence was not unduly prejudicial, meaning it did not
“ „uniquely tend[] to evoke an emotional bias against the defendant as an
individual‟ ” while having little bearing on disputed issues. (People v. Karis
(1988) 46 Cal.3d 612, 638.) “ „In applying section 352, “prejudicial” is not
synonymous with “damaging.” ‟ [Citation.]” (Ibid.) The trial court did not err in
permitting the testimony.
2. Trial Testimony from Photographic Lineup
After she identified defendant‟s profile in August 1993 from a photographic
lineup, Gilmore was asked to attend a live lineup that October. At trial, Gilmore
explained that she did not identify defendant in the live lineup, even though she
recognized him among the suspects, because she was frightened. Because his
appearance had changed so much by the time of trial, she also could not identify
defendant in court as the man she saw in the doughnut shop.
During Gilmore‟s direct examination, the prosecutor sought to reconstruct
the live lineup by showing her photographs of that lineup. Defense counsel
objected to the questioning because Gilmore did not identify defendant at the live
lineup. When pressed to state the legal grounds for his objection, defense counsel
argued that, given the passage of time, there was no foundation Gilmore had the
ability to make an in-court identification from photographs of the lineup. The

33
court overruled the objection, noting that counsel could explore the subject on
cross-examination. When questioning resumed, the prosecutor showed Gilmore
three photographs from the live lineup. She selected defendant‟s photograph and
said it depicted the person she had recognized at the lineup but failed to identify.
Defense counsel interrupted and asked that the record reflect that the exhibit
shown to Gilmore also contained a large single photograph of defendant, mounted
below two pictures of the live lineup. He raised no objection to use of the exhibit,
however.
On appeal, defendant claims the ruling permitting this line of questioning
abridged various constitutional rights, including his right to counsel. No
constitutional violation occurred. Defendant was represented by counsel when the
live lineup was conducted and, of course, at trial. Moreover, there is no Sixth
Amendment right to counsel at a photographic lineup. (United States v. Ash
(1973) 413 U.S. 300, 321.)
Defendant also argues for the first time in his reply brief that the
identification procedure violated due process because the photographic exhibit
shown to Gilmore was overly suggestive. The exhibit in question displayed two
pictures of the live lineup and a third, of the same size, showing only defendant‟s
head and shoulders. Because counsel did not object or seek to prevent questioning
on this exhibit on the ground that it was unduly suggestive, this claim is forfeited
on appeal. In any event, defendant has not established error. “[F]or a witness
identification procedure to violate the due process clauses, the state must, at the
threshold, improperly suggest something to the witness — i.e., it must, wittingly
or unwittingly, initiate an unduly suggestive procedure.” (People v. Ochoa (1998)
19 Cal.4th 353, 413.) Defendant‟s complaint that the exhibit was unduly
suggestive misses the point because the exhibit was not used as part of a “witness
identification procedure.” The prosecutor did not use the challenged exhibit to
obtain an identification from Gilmore. He did not ask her to identify which
picture depicted the man she saw in the doughnut shop. Rather, the prosecutor

34
asked Gilmore whether the photos showed the lineup she attended. He then asked
her to point out the man she had recognized but declined to identify. For this
purpose, it did not matter whether the exhibit displayed defendant prominently.
The witness testified she had recognized defendant when she saw him in person.
Her testimony reflected that, at trial, she remained able to identify the same man.
There is no indication that her trial testimony was influenced by the additional
photo of defendant mounted on the exhibit.
3. Limitation of Cross-examination
“ „[A] criminal defendant states a violation of the Confrontation Clause by
showing that he was prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the part of the
witness, and thereby, “to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the witness.” ‟
(Delaware v. Van Arsdall (1986) 475 U.S. 673, 680, quoting Davis v. Alaska
(1974) 415 U.S. 308, 318.) However, not every restriction on a defendant‟s
desired method of cross-examination is a constitutional violation. Within the
confines of the confrontation clause, the trial court retains wide latitude in
restricting cross-examination that is repetitive, prejudicial, confusing of the issues,
or of marginal relevance. [Citations.] California law is in accord. [Citation.]
Thus, unless the defendant can show that the prohibited cross-examination would
have produced „a significantly different impression of [the witnesses‟] credibility‟
(Van Arsdall, supra, 475 U.S. at p. 680), the trial court‟s exercise of its discretion
in this regard does not violate the Sixth Amendment. [Citation.]” (People v. Frye
(1998) 18 Cal.4th 894, 946, disapproved on another ground in People v. Doolin,
supra, 45 Cal.4th at p. 421, fn. 22.)
Defendant complains the court improperly restricted his cross-examination
of Gilmore by sustaining objections to three areas of questioning. There was no
error.

35
Defense counsel began his cross-examination of Gilmore by challenging
her intentional identification of the wrong person at the live lineup. Counsel
asked, without objection, “What if that man was convicted and was put in the gas
chamber?” Gilmore responded that she “wasn‟t thinking like that” at the time.
After further probing, counsel asked whether Gilmore had “put down something
that wasn‟t true in something as crucial as a capital murder case.” The court
sustained the prosecutor‟s objection that the question assumed Gilmore knew the
proceedings would be prosecuted as a capital case. This objection was well taken.
Defendant was not even arraigned on the final charges until November 19, 1993, a
month after the live lineup. Gilmore testified she knew someone had been
murdered, but there is no support for defendant‟s overly broad assertion that it is
“common knowledge” that convicted murderers are subject to the death penalty in
California.9 Indeed, if there were such common knowledge, the jurors would have
held it too, and presumably could have weighed that factor in assessing Gilmore‟s
credibility. Defense counsel‟s point, although not properly presented, would
nonetheless have been made.
Next, defendant challenges rulings sustaining two objections to
argumentative questions. In probing Gilmore about her intentional
misidentification at the live lineup, defense counsel asked how she would have felt
if she had been the person who was wrongly identified. The trial court sustained
an objection to the question as argumentative. This ruling was proper. Gilmore‟s
state of mind about how she would have felt to be misidentified was not relevant
to any disputed issue in the trial or to her credibility as a witness. The question
was also cumulative, because Gilmore was asked many questions about the
circumstances surrounding the misidentification and her lack of candor in making
it. Later, defense counsel questioned Gilmore about the description she gave to

9 Defendant points out that an August 1993 newspaper article stated that
Lao‟s murderer “could” face the death penalty or life imprisonment without
parole, but he concedes there is no evidence suggesting Gilmore read the article.

36
Officer Nick Pepper at the crime scene. Counsel read a description and asked if
Gilmore recalled describing the man in the doughnut shop as clean-shaven. She
responded, “No. He wasn‟t no clean-shaved person [sic].” Defense counsel
prefaced his next question with the statement, “Yeah, I know, all these pictures
you have looked at —,” and the prosecutor interrupted to object.
The trial court properly sustained the objection because counsel‟s statement
was clearly argumentative. “An argumentative question is a speech to the jury
masquerading as a question. The questioner is not seeking to elicit relevant
testimony. Often it is apparent that the questioner does not even expect an
answer.” (People v. Chatman (2006) 38 Cal.4th 344, 384.) Counsel was not
asking a question; he was telling the jury his own explanation for why Gilmore‟s
description had changed. The court‟s rulings sustaining objections to
argumentative questions did not infringe defendant‟s constitutional rights.
“ „[T]he Confrontation Clause guarantees an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.‟ [Citation.]” (Delaware v. Van Arsdall,
supra, 475 U.S. at p. 679.)
E. Testimony of Detective Richard Cohen
Next defendant claims the trial court erred in allowing Detective Richard
Cohen to testify why he considered defendant to be a suspect in Lao‟s murder.
Detective Cohen was twice called to the witness stand. He testified first
about his interview of defendant in connection with the burglary of the St. Frances
Xavier Cabrini Church. Defendant told Detective Cohen he had sometimes been
living near the Southwest Bowl. Later, when Detective Jacques LaBerge was
investigating the robbery of Samuel Draper at the Southwest Bowl, Cohen
remembered that defendant lived near there as “a transient,” and he shared this
information with LaBerge.
Later in the trial, Detective Cohen was recalled to the stand to describe his
meeting in June 1993 with LaBerge and Sergeant Lobo. Cohen testified that he

37
saw a poster concerning a murder in Gardena and, based on the photograph and
other information stated in the poster, Cohen thought he might have a lead on a
possible suspect. When the prosecutor asked whether Detective Cohen had
developed “any sort of suspicions” after looking at the composite picture and
learning the circumstances of the Gardena murder, defense counsel objected that
the detective‟s state of mind was not relevant. He argued that Cohen should not be
allowed to give an opinion that the composite looked like defendant, or was
similar to defendant‟s appearance when Cohen interviewed him after the church
burglary. The prosecutor explained that he was trying to establish how, despite
initial delays, the investigation ultimately focused on defendant. He expected
Detective Cohen would testify both that the composite resembled defendant and
that the circumstances of the crimes revealed “the same kind of MO.” The court
found that the evidence had probative value to explain how, after a long delay, law
enforcement officers focused on defendant as a suspect. The court agreed that
Cohen‟s opinion as to whether the composite looked like defendant was irrelevant,
but it allowed evidence showing Cohen‟s memory of defendant was triggered by
similarities in the modus operandi of the crimes. After this ruling, Detective
Cohen testified, without objection, that he started to consider defendant a possible
suspect in the Gardena murder because the composite “kind of resembled” what
defendant looked like when Cohen interviewed him and because Cohen knew that
defendant “had been hanging around the Southwest Bowl and possibly committing
crimes there.”
Defendant now complains this testimony was inadmissible as lay opinion.
“A lay witness may testify to an opinion if it is rationally based on the witness‟s
perception and if it is helpful to a clear understanding of his testimony. (Evid.
Code, § 800.)” (People v. Farnam (2002) 28 Cal.4th 107, 153.) The challenged
testimony was based on the detective‟s perceptions and was helpful for the jury to
understand how Cohen came to suspect defendant was connected to the Gardena
homicide. It was important for the prosecution to establish how the investigation

38
suddenly came to focus on defendant eight months after the murder, with
defendant jailed for much of this time for other crimes. The testimony was not
unduly prejudicial, and Tomiyasu had already testified about defendant‟s
resemblance to the composite picture. The jury was, of course, free to draw its
own conclusion. The trial court did not abuse its discretion in permitting the
testimony.
F. Testimony of Ella Ford
Next, defendant claims the trial court violated his rights to due process, the
assistance of counsel, and a reliable penalty determination by admitting testimony
about Ella Ford‟s photographic identification, made just a month before trial, and
by permitting her to make an in-court identification.
On the afternoon of Lao‟s murder, Officer Nick Pepper interviewed Ella
Ford at the crime scene. Ford described seeing a tall, dark-skinned, bearded male,
wearing a black T-shirt that displayed the continent of Africa. He was running
through the parking lot, away from the Donut King. Ford saw the man‟s face as
he looked back toward the shop. She did not mention seeing anything in his
hands.
On September 27, 1993, defendant requested that a live lineup be
conducted pursuant to Evans v. Superior Court (1974) 11 Cal.3d 617 (Evans).
The request did not specifically name Ford but, after listing certain names, called
for the attendance of “any other witness who observed any suspect associated with
the 10-24-92 homicide.” The court granted the request, and several witnesses
attended the live lineup on October 19, 1993. When a law enforcement officer
attempted to bring Ford to the lineup, however, she refused to go. In her trial
testimony, Ford explained she did not want to attend the lineup because she was
afraid of possible retaliation if the person she had seen was affiliated with a gang.
The police tried to contact her other times in the remainder of 1993 and 1994, but
she remained reluctant to talk with them. On January 6, 1995, Sergeant Lobo and
the prosecutor visited Ford‟s house to interview her again about the homicide.

39
During this meeting, Sergeant Lobo showed Ford a lineup of six photographs.
Before Ford viewed the photographs, Lobo presented her with a standardized form
explaining that she was not obligated to identify anyone. Lobo did not indicate
that Ford should make an identification, nor did he suggest that the person she saw
in the parking lot was included in the lineup. Ford chose defendant‟s photograph.
She wrote on the form that this photograph “ „look[ed] like the person [she] saw
the day of the incident more so than anyone else in the six-pack file.‟ ” Ford was
“90 percent, not 100 percent” certain defendant‟s photograph was that of the
person she saw. She was “almost sure.”
Defendant filed a pretrial motion to exclude evidence of this photographic
identification, and any possible in-court identification by Ford, on the ground that
Ford had not attended the Evans lineup. He argued the defense should have been
notified before the police sought a photographic identification from Ford. If
notice had been given, the defense could have requested that another live lineup be
conducted, or could have been present when Ford viewed the photographs. As a
sanction, defense counsel asked the court to suppress evidence of Ford‟s
identification from the photographic lineup. He also asked that the court either
suppress any in-court identification or hold an Evidence Code section 402 hearing
to determine if Ford could make an identification independent of the photographs.
Alternately, counsel asked the court to admonish the jury that the defense should
have been notified before photographs were shown to Ford, and that they should
consider the People‟s failure to give such notice in deciding the accuracy of the
identification. The prosecutor responded that law enforcement officers had made
several unsuccessful attempts to contact Ford, who only recently agreed to speak
with them. He argued that the passage of time, Ford‟s reluctance to cooperate
with the police, and inconsistencies between her statements were all proper
subjects for cross-examination but not grounds for excluding the identifications.
The court denied the motion, finding the officers had no obligation to
contact defense counsel before showing Ford a photographic lineup. Although

40
Ford was arguably included within the scope of the order for an Evans lineup, the
court concluded that striking her identification would be too harsh a sanction. It
agreed, however, to modify the pattern jury instruction concerning eyewitness
testimony. As modified, the version of CALJIC No. 2.92 read to the jury stated
that, among other factors, the jury could consider “[t]he failure of a witness to
attend a live line-up” in assessing the accuracy of that witness‟s identification.
Defendant now argues that “under the totality of the circumstances” the admission
of Ford‟s identification testimony violated his rights to due process, the assistance
of counsel, and a reliable penalty determination. There was no constitutional
violation.
Defendant‟s complaints about the photographic identification lack merit.
First, as noted, the absence of defense counsel at Sergeant Lobo‟s pretrial meeting
with Ford is of no constitutional moment because the United States Supreme Court
has long held that the Sixth Amendment does not guarantee a criminal defendant
the right to counsel at a photographic lineup. (United States v. Ash, supra, 413
U.S. at p. 321.)
Second, despite defendant‟s bare assertions to the contrary, there is no
evidence that the identification process was so unreliable as to violate due process.
“In order to determine whether the admission of identification evidence violates a
defendant‟s right to due process of law, we consider (1) whether the identification
procedure was unduly suggestive and unnecessary, and, if so, (2) whether the
identification itself was nevertheless reliable under the totality of the
circumstances, taking into account such factors as the opportunity of the witness to
view the suspect at the time of the offense, the witness‟s degree of attention at the
time of the offense, the accuracy of his or her prior description of the suspect, the
level of certainty demonstrated at the time of the identification, and the lapse of
time between the offense and the identification. [Citations.]” (People v.
Cunningham, supra, 25 Cal.4th at p. 989.) If the answer to the first question is
“no,” because we find that the challenged procedure was not unduly suggestive,

41
our inquiry into the due process claim ends. (People v. Ochoa, supra, 19 Cal.4th
at p. 412.) Defendant does not claim the photographic lineup or the circumstances
of its presentation to Ford were unduly suggestive. Instead, he focuses on
discrepancies in Ford‟s statements to police at the crime scene, at the January 1995
meeting, and at trial, and he argues these inconsistencies demonstrate that Ford‟s
identification is unreliable. The accuracy of Ford‟s identification was a question
for the jury. Inconsistencies in her descriptions of the man she saw, and in her
accounts of her activities on the day of the murder, are matters affecting the
weight of her eyewitness testimony, not its admissibility. (People v. Williams
(1973) 9 Cal.3d 24, 37, disapproved on another ground in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3.) Because defendant has not shown that the
identification procedures were impermissibly suggestive, his due process claim
fails. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.)
Finally, the Constitution does not require exclusion of eyewitness testimony
as a sanction for a witness‟s failure to attend a lineup. In Evans, supra, 11 Cal.3d
at page 625, we held that “due process requires in an appropriate case that an
accused, upon timely request therefor, be afforded a pretrial lineup in which
witnesses to the alleged criminal conduct can participate.” Defendant was given
his pretrial lineup upon request. Due process was satisfied. Although defendant
did not list Ford among the specific witnesses he wanted to attend the lineup,
police officers notified her and tried to have her participate. She refused to go and
refused to have any contact with law enforcement about the case for almost two
years. Ford‟s existence as a witness was known from the crime scene police
reports. There is no indication the defense was prevented from contacting her.
Indeed, there is no indication of any bad faith on the part of the police or the
prosecution.
Under these circumstances, the trial court had discretion to fashion a
remedy short of excluding the witness‟s identification altogether. Addressing a
similar situation, the Court of Appeal in People v. Fernandez (1990) 219

42
Cal.App.3d 1379, 1384-1385, approved of an instruction that told the jury it could
view “with caution” the testimony of an eyewitness who had failed to attend a live
lineup. The trial court fashioned a similar remedy here when it modified CALJIC
No. 2.92. This remedy was an appropriate exercise of the court‟s discretion. The
court did not err in admitting testimony about Ford‟s in-court and out-of-court
identifications of defendant.
G. Instructional Error Claims
1. CALJIC Nos. 2.50, 2.50.1, and 2.50.2
The jury heard about defendant‟s involvement in several uncharged petty
crimes. These included: (1) the theft of raffle tickets from Joe Vaouli‟s car; (2)
the theft of a pie from a church, which led to defendant‟s arrest and interview with
Detective Cohen; (3) the possession and apparent use of rock cocaine outside the
Hilltop Motel, which led officers to recognize defendant‟s clothing and gym bag
from the homicide; and (4) the burglary of an automobile in Gardena nine days
after Lao‟s murder, which led to defendant‟s arrest and the booking photos later
shown to witnesses.
Before trial, the prosecutor explained that he wanted to introduce evidence
of these uncharged crimes to show when defendant was in custody and to trace the
course of the investigation. Defense counsel agreed that “all” of this evidence
should be admitted because defendant‟s appearance and state of mind during this
period were “relevant and in issue.” Counsel further stated that he was agreeing to
the admission of uncharged crimes evidence “for tactical reasons,” explaining, “I
think the jury needs a complete picture of what Lester Virgil looked like at various
times, to make a determination of guilt or innocence on the various charges.” So
long as no mention was made of defendant‟s custody in a state prison, defense
counsel stated he had “no opposition to [the prosecutor] bringing out the various
arrests for the offenses he‟s talking about, even though they are uncharged
offenses.”

43
“Evidence that a defendant has committed crimes other than those currently
charged is not admissible to prove that the defendant is a person of bad character
or has a criminal disposition; but evidence of uncharged crimes is admissible to
prove, among other things, the identity of the perpetrator of the charged crimes,
the existence of a common design or plan, or the intent with which the perpetrator
acted in the commission of the charged crimes. [Citation.] Evidence of uncharged
crimes is admissible to prove identity, common design or plan, or intent only if the
charged and uncharged crimes are sufficiently similar to support a rational
inference of identity, common design or plan, or intent.” (People v. Kipp (1998)
18 Cal.4th 349, 369.)
In light of his trial counsel‟s express consent, defendant does not claim the
admission of uncharged crimes evidence was error in itself. Instead, he takes issue
with the court‟s instructions pursuant to CALJIC Nos. 2.50, 2.50.1, and 2.50.2
regarding the standard of proof required for the uncharged crimes.10 Defense

10 The version of CALJIC 2.50 read to the jury stated: “Evidence has been
introduced for the purpose of showing that the defendant committed crimes other
than that for which he is on trial. Such evidence, if believed, was not received and
may not be considered by you to prove that the defendant is a person of bad
character or that he has a disposition to commit crimes. Such evidence was
received and may be considered by you only for the limited purpose of
determining if it tends to show the identity of the person who committed the
crime, if any, of which the defendant is accused. For the limited purpose for
which you may consider such evidence, you must weigh it in the same manner as
you do all other evidence in the case. You are not permitted to consider such
evidence for any other purpose.”

As read to the jury, the companion instructions stated: “Within the
meaning of the preceding instruction, such other crime or crimes purportedly
committed by a defendant must be proved by a preponderance of the evidence.
You must not consider such evidence for any purpose unless you are satisfied that
the particular defendant committed such other crime or crimes. The prosecution
has the burden of proving these facts by a preponderance of the evidence.”
(CALJIC No. 2.50.1.) “Preponderance of the evidence means evidence that has
more convincing force and the greater probability of truth than that opposed to it.
If the evidence is so evenly balanced that you are unable to find that the evidence

44
counsel objected that instruction with CALJIC No. 2.50 was misleading because
no evidence had been presented that the crimes were committed based on a
common plan or scheme. When the court agreed there was no evidence presented
of a common method or plan connecting the uncharged and charged offenses,
defense counsel suggested that the instruction be modified so that it advised the
jury it could use the uncharged misconduct evidence only to prove the identity of
the person who committed the crimes.11
In accordance with this suggestion, the trial court instructed the jury,
pursuant to CALJIC No. 2.50, that evidence of defendant‟s uncharged misconduct
could be considered “only for the limited purpose of determining if it tends to
show: [¶] the identity of the person who committed the crime, if any, of which the
defendant is accused.” The court also instructed the jury, pursuant to CALJIC No.
2.50.1, that “such other crime or crimes purportedly committed by a defendant
must be proved by a preponderance of the evidence. You must not consider such
evidence for any purpose unless you are satisfied that the particular defendant
committed such other crime or crimes. [¶] The prosecution has the burden of
proving these facts by a preponderance of the evidence.” Finally, pursuant to
CALJIC No. 2.50.2, the court defined “preponderance of the evidence.”
Defendant now complains these instructions were flawed because they
“failed to convey the jury‟s need to find Mr. Virgil‟s guilt for the uncharged
crimes beyond a reasonable doubt before those crimes could be used as an

on either side of an issue preponderates, your finding on that issue must be against
the party who had the burden of proving it. You should consider all the evidence
bearing upon every issue regardless of who produced it.” (CALJIC No. 2.50.2.)
11 We note that, in order to prove identity by reliance on other crimes, the
similarities between the charged and uncharged offenses must be so unusual and
distinctive as to be like a signature. (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)
Defendant does not argue here that the offenses were insufficiently similar.
Indeed, the defense had its own tactical reasons for permitting the admission of the
uncharged crimes. Accordingly, we do not address this consideration further.

45
inference in establishing his identity as the perpetrator of the charged
offenses . . . .” The premise of defendant‟s claim fails because “we have long held
that „during the guilt trial evidence of other crimes may be proved by a
preponderance of the evidence . . . .‟ [Citations.] The „beyond a reasonable
doubt‟ standard is applicable only to evidence of „other crimes‟ sought to be
admitted as aggravating evidence at the penalty phase of trial. [Citation.]”
(People v. Medina (1995) 11 Cal.4th 694, 763, italics omitted; see also People v.
Carpenter, supra, 15 Cal.4th at p. 382 [concluding the “preponderance of the
evidence standard adequately protects defendants”].)
Despite our long adherence to this rule, defendant urges us to reconsider the
standard of proof set forth in the uncharged conduct instructions because, he
asserts, this court “has not adequately addressed the conflict between the
circumstantial evidence instruction [CALJIC No. 2.01],” which requires proof
beyond a reasonable doubt of each essential fact in the chain of circumstances
necessary to establish guilt, and CALJIC No. 2.50, which permits consideration of
uncharged crimes if they are proven by only a preponderance of the evidence. We
have explained before, however, that these different standards of proof are
reconciled by the different purposes for which the evidence is used. When
evidence of uncharged misconduct is admitted for the purpose of establishing
identity or intent, we have explained that the crimes are mere “evidentiary facts.”
(People v. Medina, supra, 11 Cal.4th at p. 763.) The jury cannot consider them at
all unless they find them proven by a preponderance of the evidence. “If the jury
finds by a preponderance of the evidence that defendant committed the other
crimes, the evidence is clearly relevant and may therefore be considered. (Evid.
Code, § 351; see Huddleston v. United States [(1988)] 485 U.S. [681,] 689.)”
(People v. Carpenter, supra, 15 Cal.4th at p. 382.) If the jury finds the facts
sufficiently proven for consideration, it must still decide whether the facts are
sufficient, taken with all the other evidence, to prove the defendant‟s guilt beyond
a reasonable doubt. (People v. Medina, at p. 763; see also People v. Foster (2010)

46
50 Cal.4th 1301, 1347-1348 [no danger jury would use preponderance of evidence
standard to decide elemental facts or issues because instructions on the People‟s
burden and on circumstantial evidence make clear that ultimate facts must be
proved beyond a reasonable doubt.])
2. CALJIC No. 2.51
Although he raised no objection below, defendant now complains the court
prejudicially erred in giving CALJIC No. 2.51. He contends this instruction,
combined with the prosecutor‟s closing argument, withdrew from the jury‟s
consideration an essential element of the crime of robbery and the robbery special
circumstance allegation. Defendant‟s failure to object to the instruction below, or
the prosecutor‟s argument, forfeits the claim on appeal. (People v. Hillhouse
(2002) 27 Cal.4th 469, 504; People v. Prieto (2003) 30 Cal.4th 226, 259-260.)
The claim also fails on the merits.
CALJIC No. 2.51 advises that “[m]otive is not an element of the crime
charged and need not be shown.”12 We have upheld this instruction as a proper
statement of the law. “Motive describes the reason a person chooses to commit a
crime. The reason, however, is different from a required mental state such as
intent or malice.” (People v. Hillhouse, supra, 27 Cal.4th at p. 504; see also
People v. Cash, supra, 28 Cal.4th at p. 738.)
Defendant contends the prosecutor‟s closing argument conflated motive
with specific intent. Based on this argument, defendant asserts, jurors could have
misunderstood CALJIC No. 2.51 to mean that they did not have to find intent in
order to convict him of robbery or the robbery special circumstance allegation.
Having reviewed the prosecutor‟s argument, we are satisfied that no reasonable

12 The complete version of CALJIC No. 2.51 given to defendant‟s jury states:
“Motive is not an element of the crime charged and need not be shown. However,
you may consider motive or lack of motive as a circumstance in this case.
Presence of motive may tend to establish guilt. Absence of motive may tend to
establish innocence. You will therefore give its presence or absence as the case
may be the weight to which you find it to be entitled.”

47
juror would have confused “motive” with “intent” in the manner defendant
envisions. The prosecutor discussed the definition of robbery and explained all
the required elements in detail, including the requirement that defendant acted
with the specific intent to permanently deprive the owners of their property.
Although the prosecutor later explained that the special circumstance of murder
committed in the course of a robbery meant, essentially, “that the compelling
motive [for the murder] in this case was robbery,” this discussion was distinct
from his explanation of the required elements for robbery. The prosecutor could
properly argue that defendant‟s motive in murdering Lao was to complete a
robbery, but nothing in this argument suggested that the jury could convict
defendant of robbery or robbery-murder without finding he had a specific intent to
steal. By merely discussing motive, which was relevant to the robbery charges
and the robbery-murder special circumstance allegation, the prosecutor did not
conflate it with intent.
Moreover, considered as a whole, the instructions made clear that the jury
had to find specific intent in order to convict defendant of robbery or find the
robbery-murder allegation true. (CALJIC Nos. 3.31 [concurrence of act and
specific intent]; 8.21 [first degree felony murder]; 8.83.1 [special circumstances—
sufficiency of circumstantial evidence to prove required mental state]; 9.40
[robbery].) In addition to the pattern instructions, the jury was also given two
special instructions on specific intent requested by the defense. The first stated, in
part: “To convict the defendant of felony murder in the commission of a robbery
you must find that he had the intent to steal at or before the time of the application
of the lethal force.” The second special instruction stated, in part: “To convict the
defendant of robbery you must find that he had the specific intent to steal at or
before the time of the application of force or violence, or the use of fear or
intimidation.” Considering these instructions, it is not reasonably likely the jury
would have believed “motive” to be synonymous with “intent,” or relied on

48
CALJIC No. 2.51 to convict defendant of the robbery-related charges without
finding the requisite mens rea. (See People v. Cash, supra, 28 Cal.4th at p. 739.)
3. Failure to Give CALJIC No. 2.22
The court below did not give CALJIC No. 2.22, regarding how jurors are to
weigh conflicting testimony.13 Defendant now claims the absence of this
instruction violated his rights under the state and federal Constitutions to due
process, a fair and impartial jury, and a reliable penalty determination.
Although instruction with CALJIC No. 2.22 was not requested, we have
held that the trial court is required to give it sua sponte when conflicting evidence
has been presented. (People v. Cleveland (2004) 32 Cal.4th 704, 751; People v.
Rincon-Pineda (1975) 14 Cal.3d 864, 884-885.) Defendant presented no evidence
in the guilt phase; however, the jury heard conflicting testimony from various
prosecution witnesses about the appearance and identity of Lao‟s murderer.
Accordingly, as the Attorney General concedes, CALJIC No. 2.22 should have
been given. Under the circumstances of this case, however, the absence of this
instruction was harmless.
The same argument was made in People v. Snead (1993) 20 Cal.App.4th
1088, 1097, disapproved on another ground in People v. Letner and Tobin (2010)
50 Cal.4th 99, 181-182. In that case, the Court of Appeal concluded the failure to
give CALJIC No. 2.22 was harmless error because the jury had received sufficient
guidance from other standard instructions. (Snead, at p. 1097.) Here, defendant‟s
jury received the same instructions the jury received in Snead: CALJIC No. 2.00,

13 CALJIC No. 2.22 states: “You are not required to decide any issue of fact
in accordance with the testimony of a number of witnesses, which does not
convince you, as against the testimony of a lesser number or other evidence, which
you find more convincing. You may not disregard the testimony of the greater
number of witnesses merely from caprice, whim or prejudice, or from a desire to
favor one side against the other. You must not decide an issue by the simple
process of counting the number of witnesses [who have testified on the opposing
sides]. The final test is not in the [relative] number of witnesses, but in the
convincing force of the evidence.”

49
“Direct and Circumstantial Evidence — Inferences”; CALJIC No. 2.20,
“Credibility of Witness”; CALJIC No. 2.21.1, “Discrepancies in Testimony”;
CALJIC No. 2.21.2, “Witness Willfully False”; CALJIC No. 2.27, “Sufficiency of
Testimony of One Witness”; and CALJIC No. 2.80, “Expert Testimony.” (Snead,
at p. 1097.) Defendant‟s jury was also instructed with CALJIC No. 2.01,
“Sufficiency of Circumstantial Evidence — Generally”; CALJIC No. 2.11,
“Production of All Available Evidence Not Required”; CALJIC No. 2.13, “Prior
Consistent or Inconsistent Statements as Evidence”; CALJIC No. 2.81, “Opinion
Testimony of Lay Witness”; CALJIC No. 2.83, “Resolution of Conflicting Expert
Testimony”; CALJIC No. 2.91, “Burden of Proving Identity Based Solely on
Eyewitnesses”; and CALJIC No. 2.92, “Factors to Consider in Proving Identity by
Eyewitness Testimony.” Considering the instructions as a whole, we are satisfied
the jury received ample guidance on how to evaluate conflicting testimony. (See
People v. Castillo (1997) 16 Cal.4th 1009, 1016.) The prosecutor did not suggest
that the jury should decide defendant‟s guilt by comparing the number of
witnesses presented by each side, and there is no evidence the absence of CALJIC
No. 2.22 hampered the jury‟s ability to evaluate the evidence. Because it is not
reasonably probable that the jury would have reached a different result had
CALJIC No. 2.22 been given, the court‟s error in failing to give the instruction
was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.)
H. Sufficiency of Evidence
Defendant claims no substantial evidence supports his convictions for the
robbery and murder of Soy Sung Lao, particularly with regard to his identity as the
perpetrator of these crimes. He also urges that insufficient evidence establishes he
formed an intent to commit robbery before or at the time of the murder.
“A reviewing court faced with such a claim determines „whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.‟ (Jackson v. Virginia (1979) 443 U.S. 307, 319, italics omitted;

50
see also People v. Kraft (2000) 23 Cal.4th 978, 1053.) We examine the record to
determine „whether it shows evidence that is reasonable, credible and of solid
value from which a rational trier of fact could find the defendant guilty beyond a
reasonable doubt.‟ [Citation.] Further, „the appellate court presumes in support of
the judgment the existence of every fact the trier could reasonably deduce from the
evidence.‟ [Citation.] This standard applies whether direct or circumstantial
evidence is involved. „Although it is the jury‟s duty to acquit a defendant if it
finds the circumstantial evidence susceptible of two reasonable interpretations, one
of which suggests guilt and the other innocence, it is the jury, not the appellate
court that must be convinced of the defendant‟s guilt beyond a reasonable doubt.
[Citation.] “ „If the circumstances reasonably justify the trier of fact‟s findings,
the opinion of the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the judgment.‟ ” ‟
[Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
Substantial direct and circumstantial evidence established both that
defendant was the person who murdered Lao and that he did so during the course
of a robbery or attempted robbery. (See People v. Marshall (1997) 15 Cal.4th 1,
34, 40-41.) Sergeant Tiller and Lavette Gilmore saw defendant in the doughnut
shop shortly before the murder. Gilmore thought defendant was behaving
suspiciously because he would not look at her. Deandre Harrison and Debra
Tomiyasu saw defendant emerge from the back of the store closely followed by
Lao, who was screaming and bleeding profusely from many stab wounds. No one
else was in the store. As Harrison and Tomiyasu watched, defendant walked
straight to the cash register, took the money inside, and quickly left the store. Ella
Ford saw defendant running across the parking lot, while someone behind him
yelled, “he stabbed her.” Defendant was carrying some object close to his body.
Although defendant criticizes inconsistencies in these accounts, the jury clearly
found the eyewitness testimony credible. We defer to this assessment. (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.)

51
Defendant asserts that the prosecution presented no evidence that he formed
an intent to steal the money in the register before or during the stabbing, and
therefore the jury‟s true finding on the robbery-murder special circumstance
allegation was based on mere speculation or conjecture. We disagree. The jury
could have inferred that defendant planned to rob the doughnut shop from
evidence that he waited at a back table, concealing his face from Gilmore, until the
store was empty of other patrons. The cash register was already partially open
when defendant emerged from the back of the store, walked straight to it, and took
the cash inside. From these facts, the jury could infer that defendant planned to
rob the store and the stabbing occurred after a robbery had been initiated.
“ „[W]hen one kills another and takes substantial property from the victim, it is
ordinarily reasonable to presume the killing was for purposes of robbery.‟
[Citations.]” (People v. Horning (2004) 34 Cal.4th 871, 903.) The jury also heard
evidence that defendant had committed several other property crimes in the
immediate area, including the robberies of Beatriz Addo and of Samuel Draper,
during which he threatened to harm the victims with a sharp object. The jury was
instructed that it could use evidence of these other crimes to prove intent. (See
Evid. Code, § 1101, subd. (b).) Moreover, there was no evidence “suggesting, or
requiring the jury to conclude, that defendant took . . . property merely to obtain a
reminder or token of the incident [citation], to give a false impression about his
actual motive for the murder, or in some other way to facilitate or conceal the
killing [citation]. Nor was there substantial evidence of any motive for the murder
apart from accomplishing the robbery.” (People v. Bolden (2002) 29 Cal.4th 515,
554.) The jury could reasonably conclude from the evidence that defendant killed
Lao primarily and perhaps solely to facilitate the robbery.
I. Certification of Appellate Record
Defendant raises two claims of error concerning the trial court‟s
certification of the record on appeal. First, he claims the court erred in denying his
request to settle the record with respect to a chalkboard diagram created by a blood

52
spatter expert during her testimony. Second, he claims the court erred in including
in the settled statement the trial court‟s own recollection of the circumstances
surrounding the hardship excusal of 60 prospective jurors. Defendant argues these
errors deprived him of a complete and accurate record on appeal. The record
settling procedures were adequate and did not violate defendant‟s constitutional
rights.
“The record on appeal in a capital case „includes, but is not limited to, the
following: [¶] (1) The normal and additional record prescribed in the rules
adopted by the Judicial Council pertaining to an appeal taken by the defendant
from a judgment of conviction. [¶] (2) A copy of any other paper or record on file
or lodged with the superior or municipal court and a transcript of any other oral
proceeding reported in the superior or municipal court pertaining to the trial of the
cause.‟ (Pen. Code, § 190.7, subd. (a)(1), (2).) „In any case in which a death
sentence may be imposed, all proceedings conducted in the municipal and superior
courts, including all conferences and proceedings, whether in open court, in
conference in the courtroom, or in chambers, shall be conducted on the record
with a court reporter present.‟ (Id., § 190.9, subd. (a)(1).)” (Marks v. Superior
Court (2002) 27 Cal.4th 176, 192.) When gaps occur in the record, rule 8.137
(former rule 7) of the California Rules of Court provides a mechanism for creating
a settled statement. (Marks, at p. 192; see also Cal. Rules of Court, rules 8.346
[providing for the use of settled statement procedures in criminal appeals] &
8.619(d)(3) [providing for the use of settled statements in capital cases].)
1. Chalkboard Diagram
On September 26, 2002, defendant‟s appellate counsel filed a request to
augment, correct, and settle the record on appeal. Among several other items,
defendant asked for a settlement of the chalkboard diagram created by Los
Angeles Sheriff‟s Department Senior Criminalist Elizabeth Devine. During her
direct examination, Devine was asked how a criminalist can determine from its
appearance the direction a blood droplet has traveled. She requested and was

53
provided with a chalkboard, which she used to illustrate her testimony about the
effect of gravity on blood droplets. Because the diagram was drawn on a
blackboard and was not admitted into evidence, it would have to be re-created by
the witness for the record to be settled. The prosecutor recalled only that the
diagram consisted of “basic marks . . . to indicate blood spatter in a directional
way.” He suggested that defendant‟s appellate counsel consult with Devine
because the drawing might have been “a standard demonstration that she does in
these kinds of cases.” Defendant‟s appellate counsel was not able to contact
Devine. However, Devine‟s former supervisor expressed the belief that Devine
would not have created her chalkboard diagram spontaneously in court, but would
have based it on materials that were likely preserved in her case file.
The Attorney General opposed appellate counsel‟s request to settle the
record with a re-creation of Senior Criminalist Devine‟s chalkboard diagram. At a
hearing on November 18, 2002, the trial court also expressed concern about
allowing defendant‟s attorney to try to re-create the diagram from information in
Devine‟s files because the files likely contained information not presented to the
jury. Counsel was merely guessing that Devine had in fact re-created something
in her file, and the court itself had no memory of the diagram. When counsel
persisted in seeking a court order for access to Devine‟s files, the court refused,
explaining the search would be futile: “We are not talking about something that
the jury was actually given in hand. It was something drawn, they saw whatever
was drawn on the board.” Accordingly, defendant‟s request to settle the record on
this point was denied.
The trial court did not err in refusing to authorize defendant‟s appellate
counsel to search an expert‟s files in hopes of finding a document resembling a
diagram the expert drew on a chalkboard to illustrate and explain her testimony.
No attempt was made to preserve the chalk drawing, which was by its nature
ephemeral. It was not marked, lodged, or admitted into evidence, nor was a
photograph taken to preserve it. Neither the attorneys nor the trial court could

54
recall exactly what the diagram looked like. Assuming record settlement
procedures can be used for demonstrative evidence, the diagram was not a proper
subject for settlement of the record.14
“The rules authorizing settlement, augmentation, and correction of the
record on appeal concern documents „file[d] or lodged‟ in the superior court and
transcripts of „oral proceedings‟ that occurred therein. [Citations.] These
provisions—much like the entire network of rules governing matter properly
included in the appellate record—are intended to ensure that the record transmitted
to the reviewing court preserves and conforms to the proceedings actually
undertaken in the trial court. [Citations.] The settlement, augmentation, and
correction process does not allow parties to create proceedings, make records, or
litigate issues which they neglected to pursue earlier.” (People v. Tuilaepa (1992)
4 Cal.4th 569, 585.) Defendant‟s trial counsel took no steps to preserve the
diagram Senior Criminalist Devine spontaneously drew during her testimony. The
settlement process does not permit defendant to create anew something that he
neglected to make part of the record in the first place. The trial court therefore did
not abuse its discretion in denying appellate counsel‟s request to search for a
similar diagram in the expert‟s files.
2. Record of Hardship Excusals
In an addendum to his original request to settle the record, defendant‟s
appellate counsel also asked the court to clarify whether the discussion of jurors‟
hardship requests was reported or whether the record needed to be settled
regarding the excusals. In his first proposed settlement of the record, defendant
noted that after prospective jurors completed hardship questionnaires, the trial
court read the names of jurors whose hardship requests had been granted and those

14 We note that the Rules of Court refer to preparation of a settled statement
when “oral proceedings cannot be transcribed.” (Cal. Rules of Court, rule
8.346(a).) We assume but do not hold that the settled statement procedures can be
used in the case of demonstrative evidence.

55
of jurors from whom more information was sought. Except for jurors who were
questioned about their requests, the record included no discussion about 61 jurors
who were excused for hardship based on their questionnaires alone, and the
prosecutor did not recall how the court handled these hardship excusals. In order
to settle the record, defendant‟s appellate counsel requested the trial court‟s
“assistance in detailing the procedures employed and the reasons for excusing the
prospective jurors at issue.”
At the November 18, 2002 hearing, defendant‟s appellate counsel asked for
the court‟s input regarding the hardship excusal of 61 jurors. Trial counsel had
told him he believed a hearing had been conducted on the record before these
jurors were excused. The trial court stated, “I do have a recollection; and as far as
the original hardships were concerned, both counsel stipulated that certain jurors
could be excused; and it was done on the basis of their paid jury leave.” Although
the court was reluctant to attempt to recreate a record when neither side had
objected to excusing the jurors, it agreed with appellate counsel‟s proposal to have
both trial counsel review the 61 hardship questionnaires and try to recollect the
reasons for their release.
In his second revised proposed settled statement, appellate counsel reported
that, although the prosecutor did not recall any details about the hardship excusals,
defendant‟s trial counsel “recall

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/844274. Public record. Not legal advice.