People v. Camacho

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN GEORGE CAMACHO,

Defendant and Appellant.

S141080

San Diego County Superior Court

SCN 163535

November 28, 2022

Chief Justice Cantil-Sakauye authored the opinion of the Court,

in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and

Guerrero concurred.

PEOPLE v. CAMACHO

S141080

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

At approximately 5:05 p.m. on June 13, 2003, uniformed

Officer Tony Zeppetella of the Oceanside Police Department

detained defendant Adrian Camacho in a traffic stop. By

5:09 p.m., defendant had shot the officer no fewer than 13 times,

beaten him as he laid wounded but conscious on the ground, and

fled the scene. Despite receiving immediate medical attention,

Officer Zeppetella died en route to the hospital.

At trial, defendant did not contest that he shot and killed

Officer Zeppetella. He claimed, however, that he did so during

a period of delirium and psychosis brought about by a

combination of illicit substances and prescription medication he

had ingested. Defendant argued that, due to the effects of the

drugs, he did not possess the requisite mental state for first

degree murder. (Pen. Code, § 187, subd. (a); all further

unspecified statutory references are to the Penal Code.)

Defendant urged the jury to convict him of a lesser crime, one as

lenient as involuntary manslaughter, but in any event not more

severe than second degree murder.

The jury rejected defendant’s argument, finding him

guilty of first degree murder. (§ 189, subd. (a).) It also found

true two special circumstance allegations: (1) defendant

murdered Officer Zeppetella “for the purpose of avoiding or

preventing a lawful arrest” (§ 190.2, subd. (a)(5)), and

(2) defendant “knew, or reasonably should have known, that the

victim was a peace officer engaged in the performance of his or

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

her duties” and intentionally killed Officer Zeppetella while he

was engaged in the performance of said duties (§ 190.2, subd.

(a)(7)). The jury further found true the allegations that

defendant “personally use[d] a firearm” and “personally and

intentionally discharge[d] a firearm and proximately cause[d]

great bodily injury” in committing the murder. (§ 12022.5, subd.

(a); § 12022.53, subd. (d).) Finally, the jury convicted defendant

of being a felon in possession of a firearm and possessing a

controlled substance for sale.

At the conclusion of the penalty phase, the jury

recommended a sentence of death. The court so sentenced

defendant.

This is defendant’s automatic appeal. We affirm the

judgment in its entirety.

I. BACKGROUND

A. Evidence at the Guilt Phase

1. Prosecution case

a. Events at the scene of the shooting

The shooting and killing of Officer Zeppetella occurred on

a Friday afternoon in the parking lot of a Navy Federal Credit

Union in Oceanside. Because that Friday was payday at a

military base located close by, the credit union was busy and

multiple witnesses observed and testified to the events

surrounding the shooting.

Eyewitnesses testified to seeing a person later identified

as defendant driving a blue Toyota. Officer Zeppetella’s police

vehicle had pulled into the credit union’s parking lot behind the

Toyota, partially blocking it. The officer then walked up to

defendant, seated in the Toyota. Defendant handed the officer

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some sort of paperwork. The witnesses testified that the

interaction seemed routine.

As the officer half turned away from defendant with the

paperwork, however, defendant opened fire. Subsequent expert

testimony established that defendant fired his Ruger pistol,

hitting Officer Zeppetella multiple times. After a pause,

defendant and the officer began to exchange gunfire, and the

officer hit defendant once in the knee.

Laura Pallos observed the incident unfolding from her

vehicle. She testified that after hearing the initial gunshots, she

saw an officer “stumbling . . . out from between two cars.” She

then saw “a man,” defendant, “come out . . . from between those

same two cars with a gun pointing at the officer” and “shooting

at him.” After falling to the ground, Officer Zeppetella began

“pulling himself along with his right arm.” It appeared to Pallos

that Officer Zeppetella was “looking for some place to crawl

behind.” Defendant “watch[ed] very intently” before “following”

Officer Zeppetella, “taking the shortest path towards the

officer.” Having covered the distance to the victim, defendant

“reached down,” “grabbed the back of the police officer’s collar,”

“pulled him up,” then swung down with the gun held in his right

arm, striking the officer on the back of the head three or four

times. Defendant subsequently threw the officer “down to the

asphalt.”

Pallos testified that she saw defendant then “crouch[]

down” by the officer and press “at his waist line with both

hands.” Testimony by other witnesses indicated that defendant

had emptied his own firearm at this point, but that he found and

seized Officer Zeppetella’s Glock handgun, presumably when

Pallos saw defendant crouched by the officer. Pallos then saw

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defendant backing away while maintaining focus on the officer

“at all times.” When defendant saw movement from the officer,

he “stepped back in those two steps that he had backed up and

shot him again” — this time with the officer’s own handgun —

“three, four” more times. “The officer stopped moving.”

Defendant watched the victim for a second longer, then got into

the police vehicle and sped away from the scene.

Corpsman Gabriel Tellez, who specialized in “combat and

combat-related trauma,” was inside the credit union during the

shooting. Once the shooting ceased, Tellez made his way to the

parking lot and “noticed [an] officer laying on the ground face

down.” Based on the color and amount of the blood that “had

already pooled underneath the officer,” Tellez recognized that

Officer Zeppetella had “a very life threatening injury.”

“Working as quickly as [he] possibly c[ould],” Tellez rolled the

officer onto his back, got his ballistic vest off him, ascertained

that blood was pulsing from a wound in his chest, and inserted

his fingers into the wound to clamp off the severed artery that

was bleeding. Officer Zeppetella was still alive and responsive

at this stage, as he “winced in pain” when Tellez inserted his

fingers in the wound. Other bystanders joined Tellez in

rendering aid. An ambulance arrived. The paramedics loaded

Officer Zeppetella and Tellez, whose fingers were still inside the

officer’s chest maintaining “a critical hold,” into the ambulance.

Although the paramedics continued to provide medical care

during the ambulance ride, Tellez noticed “life [was] starting to

ebb out of Officer Zeppetella.” The officer was pronounced dead

at Palomar Hospital slightly more than an hour after the

shooting began.

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b. Events following the shooting

After defendant fled the scene in Officer Zeppetella’s

patrol vehicle, he drove to a neighborhood where he had

previously resided with his mother-in-law, Lorraine Camacho. 1

Lorraine lived at a house on Via Isidro, and an eyewitness saw

defendant on foot and turning onto the street. The eyewitness,

together with another individual, Doug Cosley, discovered a

police car abandoned a short distance away from Via Isidro with

the engine still running. The witnesses then heard through a

radio transmitting from the vehicle that “there was an officer

down and a car and weapons missing.” Thinking that the

missing police vehicle was the one they were standing next to,

Cosley used the radio to report the car’s location.

Police officers arrived soon after and followed what

appeared to be blood stains leading to Lorraine’s residence.

Surmising that defendant had isolated himself inside, law

enforcement personnel spent the next few hours securing the

area and evacuating nearby residents. By approximately

9:00 p.m., a SWAT team led by Sergeant Thomas Aguigui was

ready to make contact with defendant.

Aguigui testified that he communicated with defendant

via a bullhorn. After Aguigui established rapport, defendant

told the sergeant that he was scared, he had cut his wrists, and

he did not want to come out of the house for fear of the police.

Defendant also asked if “the officer died,” to which Aguigui

replied that he did not know. Aguigui reassured defendant that

“it was safe for him to come out” and that “medical attention

1

We refer to people who share a surname with defendant

by their first names to avoid confusion.

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[would be given] to his injuries.” Defendant agreed to exit the

residence. Defendant then followed Aguigui’s directions, turned

on the porch light, stepped out, dropped a piece of cloth that he

had in his hand when directed to do so, and walked to the

officers. After the SWAT team placed handcuffs on defendant,

he was turned over to medics for first aid. When he was on the

gurney, defendant volunteered that he did not “ ‘know what that

officer did to make [him] snap.’ ” Based on his interaction with

defendant, Aguigui testified that although defendant was “in

some significant amount of pain,” he was “coherent” and able to

understand the instructions given to him.

Aguigui’s observations of defendant’s demeanor were

echoed by medical personnel who treated defendant that night.

Timothy Huerta, one of the paramedics who transported

defendant to the hospital, testified he and his partner undertook

an initial assessment of defendant at 9:41 p.m. after defendant

walked out of the house on Via Isidro. Defendant was “alert,”

“cooperative,” able to relay date, time, and location as well as

“his age, his weight, whether or not he was in pain, which he

said he wasn’t, and where he had been shot.” In communicating

all this information, defendant’s speech was “normal and clear.”

Once the paramedics placed defendant into the ambulance, they

began standard treatment procedure for a patient with a

gunshot wound, bandaging his injuries, establishing an IV, and

placing him on oxygen. Defendant remained “very alert,”

“looking around” and “watching [the paramedics’] movements.”

Once defendant arrived at the hospital, Dr. Imad Dandan

treated him at 11:00 p.m. Dandan’s assessment was that

defendant was “awake and alert.” He talked to defendant, who

was “calm, very courteous, and responsive to . . . questions.”

Defendant did not have pressured or rapid speech; he was not

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incoherent; he did not sweat excessively; and his temperature

was normal. Defendant did have lacerations on both of his

forearms, three on the left and one on the right. The lacerations

were “a little jagged and superficial,” measuring from two

centimeters to four centimeters. Dandan administered local

anesthesia, “cleaned the wounds and repaired them.”

Defendant also had a gunshot wound on his right knee. Dandan

cleaned the wound and gave defendant antibiotics but did not

remove the bullet because there was “no danger [from] leaving

the bullet [in]” and removal would result in more damage.

A nurse drew defendant’s blood at around 11:00 p.m., the

same time as Dr. Dandan’s examination. Toxicologist John

Treuting reported the results of the tests done on the sample

extracted. According to Treuting, defendant tested “positive for

methamphetamine at a qualitative level of 119 nanograms per

millimeter of blood.” This was a level that Treuting would

consider “toxic.”

In addition to methamphetamine, defendant’s blood also

contained “morphine at a level of 576 nanograms per ml and a

codeine level of 98 nanograms per ml.” Morphine is a byproduct

of heroin, while the presence of codeine could be explained both

by an individual using codeine or by the individual “converting

morphine to heroin.” Again, Treuting would consider this level

of morphine “toxic.”

Treuting further testified that defendant tested positive

for Valium and Paxil at levels that were within the therapeutic

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range.2 Based on the levels present in defendant’s blood alone,

however, it was difficult for Treuting to conclude when

defendant had ingested the various illicit drugs or what the drug

concentrations were at a point in time prior to the blood sample

being taken.

At approximately the time that defendant was receiving

medical care, police officers conducted a search of Lorraine’s

house on Via Isidro. Defendant had evidently broken into the

house3 by shattering a rear glass door. Inside one of the

bathrooms, there was writing on the walls in what appeared to

be blood. One of the writings said, “I,” followed by a picture of a

heart, and “my wife and kids.” Two others read, “sorry” and “I’m

sorry.” Yet another writing read, “Help me, Ordas.” As will be

detailed below, Ordas is the name of a psychiatrist who had been

treating defendant.

In the same bathroom were various drug paraphernalia.

In the toilet was “a small ziploc baggie with brown residue.”

There was also a glass pipe with white residue and a bag with

“squares cut out of it.” Karen Laser, a corporal with the

Oceanside Police Department and the person who discovered

the items, testified that the brown baggie contained heroin, the

2

Valium, the brand name for diazepam, is an antianxiety

drug. Paxil, the brand name for paroxetine, is an

antidepressant. Treuting described the “therapeutic range” as

indicating a dosage at which an individual taking the drug is

“getting the beneficial effects and not the toxic effects or the

adverse effects.”

3

Lorraine Camacho, who still resided at the location,

happened not to be home.

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glass pipe contained methamphetamine, and the bag appeared

to be used to package tar heroin. 4

Marilyn Priem, a detective with the Oceanside Police

Department, searched one of the bedrooms in the house. Priem

saw a vacuum cleaner inside a closet and detected a hard object

inside the vacuum bag. Believing the object to have been too

large for a vacuum cleaner to have naturally suctioned up,

Priem “unzipped the outer portion of the bag” and saw that the

inner dust collection bag had been either torn or cut open. Inside

was a magazine containing bullets, next to which was “the back

end of a . . . Glock 17 gun.” Priem believed that both the

magazine and gun were “placed very carefully” rather than

“thrown in” the vacuum bag because “they were almost level

with [each other and had] almost the same amount of dust

surrounding [them].” After these two items were removed,

police personnel discovered a Ruger pistol inside the same

vacuum bag.

Officers also searched the blue Toyota that defendant had

been driving when he was stopped by Officer Zeppetella. John

Morgans, an investigator for the Oceanside Police Department,

processed the vehicle. Of relevance, Morgans recounted that he

found a blue nylon bag on the front passenger seat. Inside the

4

The items were sent for chemical testing. Although

laboratory work confirmed that the glass pipe contained

methamphetamine, it could not detect heroin from the baggie.

The criminalist who testified concerning the results explained

that heroin is “highly soluble” in water. As such, if a bindle

containing heroin was left in a toilet sometime between “5:00 in

the afternoon and 9:15 to 9:30 at night” and the bindle was not

recovered “out of the toilet until sometime after 4 or 5 o’clock the

next morning,” that could have “an impact on [the] ability to

detect . . . heroin.”

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bag were “tweezers, scissors, small jeweler’s bags, which are

used to package narcotics,” “small cotton swabs that are

generally used to dip into a substance that’s been heated up to

inject,” small plastic and metal spoons, two syringes, “a small

little ziploc bag that contained . . . some residue,” and small

glass vials, again, with residue. Morgans also testified that he

found a cell phone.

Finally, officers searched the house that defendant shared

with his wife, Stacey Camacho. Christopher Carnahan, another

Oceanside police officer, testified that both drug paraphernalia

and ammunition were found in the house. The police uncovered

plastic bags containing substances that looked like marijuana,

methamphetamine, and heroin, as well as spoons and pills.5

Carnahan was “an experienced narcotics detective,” and he

testified that the narcotics recovered from the Toyota and the

house were possessed not for “simple use” but for sale.

c. Expert testimony at trial

The prosecution in its case in chief presented various

experts, including that of a medical examiner and a crime scene

reconstruction expert. The medical examiner, Dr. Bethann

Schaber, performed an autopsy on Officer Zeppetella’s body “to

determine the cause and manner of [his] death” and testified as

follows.

Officer Zeppetella suffered 13 “penetrating and

perforating gunshot wounds.” 6 Of these, two were fatal. The

5

Many of the items seized from the house were sent to a

laboratory for testing and tested positive for heroin.

6

There appears to have been two additional shots that

grazed the officer but did not enter his body.

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first fatal shot entered the victim’s chest, “traveled from front to

back,” and remained lodged in his neck and back. In moving

through the body, the bullet fractured the clavicle and

perforated the “right internal jugular vein and the right common

carotid artery,” “two large blood vessels supplying the head.”

The second fatal shot entered the officer’s back. “The bullet

travel[ed] through the body, perforating fat around the kidney,

perforating the diaphragm or the muscle between the chest and

abdominal cavity that allows people to breath. It then

perforate[d] the spleen and is lodged in the . . . chest below the

nipple.”

In addition to these injuries, Officer Zeppetella sustained

gunshot wounds to the neck, back, left arm, right arm, right

elbow, right hand, right thumb and wrist,7 thigh, and buttock.

He also sustained “four separate lacerations or tears in the scalp

resulting from blunt force injury.” These injuries were

consistent with Pallos’s testimony that defendant struck the

officer in the head with defendant’s gun.

The crime scene reconstruction expert, Rodney Englert,

related his opinion based on reports by others, his own

examination of the physical evidence, and a synthesis of

eyewitnesses’ accounts. Although Englert was not able to

pinpoint the exact sequence of shots, he was able to reconstruct

the following details regarding the shooting. Defendant fired

16 shots from his Ruger pistol, emptying the gun; of these,

7

Other testimony indicated that Officer Zeppetella held his

firearm in his right hand. The bullet that entered his right arm

fractured the officer’s humerus, the bone connecting his

shoulder to the elbow. The bullet through the thumb fractured

the ulna, one of the two bones in the wrist.

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11 struck Officer Zeppetella. Officer Zeppetella, in turn,

discharged his gun 14 times, hitting defendant once. In the

initial volley of shots, defendant fired his gun five times, hitting

the officer in the chest, neck, and right thumb and wrist.

Defendant fired the first fatal shot — the one that entered the

officer’s chest — in this burst of gunfire. During the subsequent

exchange of gunfire (when the officer had begun firing back),

defendant hit the officer another eight times, breaking his

shooting arm. After Officer Zeppetella attempted to crawl away,

defendant beat the officer, causing the head wounds observed by

the medical examiner. Defendant then seized Officer

Zeppetella’s Glock handgun and shot at him another four times,

emptying this firearm as well. One of these shots was the fatal

shot that entered through the officer’s back and perforated his

diaphragm and spleen.

2. Defense case

a. Testimony regarding defendant’s behavior

prior to the shooting

At trial, defendant argued that he suffered from a

diminished mental state at the time of the shooting due to his

use of drugs. To support his case, defendant introduced the

testimony of his wife, coworkers, and neighbor — witnesses who

recounted defendant’s addiction to heroin and his behavior prior

to the shooting.

Defendant’s wife, Stacey Camacho, testified that she had

known her husband for about ten years. Defendant was

addicted to heroin that entire time. Sometime in March or April

of 2002, Stacey arranged for defendant to begin seeing a

psychiatrist, Dr. Dennis Ordas. From 2002 to 2003, defendant’s

health was deteriorating. He “was going to rehab” and

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“methadone clinics.” At some point after he began seeing

Dr. Ordas, defendant was hospitalized at Aurora Hospital, “a

behavioral health center.” There he was prescribed Paxil, which

he continued to take until the day of the shooting. Between May

2002 and June 2003, defendant was hospitalized “five or six

times.” According to Stacey, defendant was “suicidal,” “had been

very depressed for a while,” and “was trying to stay off drugs,”

but “he said he couldn’t handle it anymore.”

Defense counsel also questioned Stacey concerning

whether there were “any times . . . when [defendant] exhibited

bizarre behavior [toward her].” Stacey answered affirmatively

and volunteered as examples the fact that defendant “would

hear voices that nobody else would hear” and “he always thought

that people were coming to the door, so he constantly was

staring [out] the window.” When asked if “there [was] a time

when he thought suspicious[ly]” of her, Stacey responded that

sometimes when she “wore a headband,” defendant “would grab

it” and “cut it up” or tell her that she had “wires in [her]

headbands” and was “trying to watch him.” Likewise, defendant

“thought [she] had hidden cameras in” her platform shoes. 8

Regarding the shooting, Stacey told the jury that

defendant called her at work sometime after 5:00 p.m. on

June 13, 2003. Defendant sounded “real scared” and

“hysterical.” He said “he was at [her] mom’s house and that a

police officer was hurt, and he wanted to die.” On direct

examination, Stacey testified that defendant did not tell her

8

Due to the phrasing of defense counsel’s questions (“were

there any times” “was there a time”), it is difficult to ascertain

when defendant “exhibited [the] bizarre behavior” Stacey

recounted.

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“how or why or what happened to the police officer,” that he did

not tell her that “he shot a police officer and a police officer shot

him,” but merely that “he hurt a police officer.” After speaking

to defendant, Stacey called her mother, Lorraine Camacho,

relating that defendant was “at her house,” “really upset,” and

that she (Lorraine) needed “to go home.”

Stacey also left work and drove to Lorraine’s home. She

thought defendant “was going to kill himself.” Stacey

cooperated with law enforcement personnel she encountered

around her mother’s residence. After defendant surrendered

and received medical care, Stacey was able to talk to him at the

Oceanside police station. In contrast to the medical personnel’s

observations, Stacey thought her husband was far from coherent

or “clear headed” — “he was mumbling things,” “wasn’t making

any sense,” “was crying,” and still saying that “he wants to die.”

On cross-examination, Stacey agreed with the prosecutor’s

description of her conversation with her mother, some of which

was inconsistent with her testimony on direct examination. For

instance, the prosecutor asked if Stacey told her mother “words

to the effect of, you know, the defendant called me — or

whatever words you used — and he got scared and he shot a cop,

and the cop shot him and you know — and he took off, words to

that effect to your mother.” Stacey responded, “right.”

Lorraine Camacho corroborated parts of Stacey’s

testimony. Lorraine stated that Stacey called her on the

afternoon in question and “was very hysterical” and “crying.”

After speaking to Stacey, Lorraine immediately went home.

Like Stacey, Lorraine encountered law enforcement

surrounding her home and cooperated with them.

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When questioned by the prosecution, Lorraine admitted

that she had given statements to the police that either conflicted

with certain details in her daughter’s testimony or tended to

incriminate defendant. For example, Lorraine stated Stacey

told her that, during the telephone conversations she (Stacey)

had with defendant, defendant told her, “I was speeding,” “got

pulled over in a traffic stop,” and “got scared.” Furthermore,

“the essence” of what defendant told Stacey, as Stacey related to

Lorraine, was that defendant “got scared, shot a cop, [and] a cop

shot him in the leg.” Although at trial Lorraine asserted she did

not remember saying so, in an audiotaped statement to the

police Lorraine had recounted that defendant told Stacey “he

shot a cop, and he got shot in the leg, and he — he went to your

house cause that’s the only place he could think of to hide

because it was right around there — or words to that effect.”

The defense also called to the stand two of defendant’s

coworkers, David Bates and Lonnie Roybal, and a neighbor,

Walter Priest. Bates testified that other employees told him

defendant had a drug problem. Bates also stated that

approximately a month before the shooting defendant stopped

showing up to work at his construction job. Defendant’s other

coworker, Roybal, testified that he knew about defendant’s drug

problem both because defendant confided to him about that, and

because Roybal observed behavior from defendant such as

“nodding out in the mornings.”

Walter Priest, who lived in the same mobile home complex

as defendant and Stacey, testified that he saw defendant driving

by between 2:30 and 3:00 p.m. on the day of the shooting. Priest

thought defendant’s behavior was unusual because he “stared a

lot,” looked like he was suspicious, and did not offer a “friendly

neighbor wave.”

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In response to Stacey’s testimony, the prosecution called

California Highway Patrol Officer William Grant. Grant had

assisted with directing traffic around Lorraine’s house on the

day of the shooting. When Stacey attempted to reach defendant

by driving to the residence, Grant stopped her, because no traffic

was allowed in or out of the area. Grant recounted that when

he talked to Stacey, she volunteered her husband had conveyed

that he shot a police officer, “that he wasn’t going to go back to

prison and that he was going to kill himself.”

b. Expert testimony at trial

In addition to the lay witnesses, the defense introduced

the testimony of two experts, psychiatrists Dennis Ordas and

Pablo Stewart. Ordas maintained a private practice and worked

at the Vista Detention Facility. Defendant had been one of

Ordas’s patients at his private clinic for about a year by the time

of Officer Zeppetella’s shooting. When Stacey first brought

defendant to Ordas in April 2002, defendant was addicted to

heroin and wanted help. During the next year, Ordas saw

defendant about 18 times. Defendant “struggle[d]” with his

addiction, trying to quit and relapsing, with “his longest clean

period [being] about ten days.”

On March 18, 2003, Dr. Ordas received a telephone

message from defendant. The message, as taken down by the

doctor’s secretary, said, “ ‘Please call. Hearing buzzing in

head.’ ” Ordas called defendant and scheduled an appointment

for two days later. When Ordas saw defendant at the

appointment, defendant told him that he had been “living on the

streets for a few weeks.” Defendant also conveyed that he “was

back to using more heroin, and he had actually done a small

amount of crystal meth.”

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On June 13, 2003, Dr. Ordas received telephone calls from

Stacey and law enforcement. Both informed him about the

events of the shooting, that defendant “was holed up in a house,

and [the Oceanside Police Department] wanted to see if [Ordas]

would attempt to talk him out of the house.” Ordas declined.

However, because of his work at the jail, Ordas did see

defendant the next day. Ordas’s impression was that defendant

was “mentally beat up” and suffering from “confusion about

what had just happened.” Defendant himself told the doctor

that he was “ ‘out of it.’ ”

When defendant was held at the jail, Dr. Ordas oversaw

his mental health care. Ordas believed defendant was

experiencing “traumatic recalls or intrusive thoughts” about the

events surrounding the shooting. Defendant reported having

nightmares, and Ordas prescribed him medications to help with

his anxiety, inability to sleep, and nightmares.

To lay groundwork for later testimony by Dr. Stewart, the

defense asked Dr. Ordas about methamphetamine-induced

psychosis. Ordas confirmed that such a condition is listed in the

Diagnostic and Statistical Manual of Mental Disorders and gave

a description of the condition. The defense then inquired about

the chemical makeup of Paxil and if “it might be similar to

methamphetamine.” Ordas responded “no,” but that “[t]here is

some literature that suggests that Paxil and methamphetamine

may compete at a similar receptor site in the liver.”

The defense also explored with Dr. Ordas defendant’s use

of Paxil. Ordas confirmed that defendant was prescribed the

medication during his visit at Aurora Hospital in 2002 and

Ordas “continued it [the prescription] when [defendant] came to

see me.” In fact, Ordas increased the dosage of the medication

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to treat defendant’s depression. On March 20, 2003 — the date

when defendant told Ordas that he was using

methamphetamine — Ordas prescribed defendant Paxil,

keeping the dosage of the drug the same but changing the

formulation of the medicine to “sustained release” so that the

active chemical released “throughout the day” instead of in “one

solid hit.”

Picking up on the topic of Paxil and methamphetamine,

the prosecution solicited from Dr. Ordas the view that he was

“comfortable giving the Paxil knowing [defendant] was taking

some meth with his heroin.” Ordas further volunteered that

such treatment is “fairly common.”

The prosecution inquired about the diagnoses that

Dr. Ordas made of defendant based on his provision of care

when defendant was in the jail. Ordas stated he diagnosed

defendant with heroin dependence, methamphetamine

dependence, depression, and antisocial personality disorder.

The prosecution verified that Ordas was not expressing an

opinion that defendant had a “methamphetamine-induced

psychotic episode on June 13th, 2003.” Ordas responded,

“I would not be qualified to say that. I wasn’t there.”

The defense’s principal expert was a psychiatrist,

Dr. Stewart, who, unlike Dr. Ordas, did opine that defendant

had methamphetamine-induced psychosis during the shooting

of Officer Zeppetella. In arriving at his diagnosis, Stewart

reviewed defendant’s medical records, interviewed his family

members, and talked to defendant. Stewart diagnosed

defendant with heroin and methamphetamine abuse. He noted

that these diagnoses were the same diagnoses defendant

received at Aurora Hospital in 2002. Stewart further noted that

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defendant was prescribed Paxil by the staff at Aurora Hospital

and that in March 2003 he was transitioned to a controlled

release form of Paxil. In Stewart’s opinion, being on a controlled

release form of Paxil was comparable to receiving an increased

dosage of the drug because the drug would stay in the body for

longer.

In addition to the above diagnosis, Dr. Stewart opined that

in June 2003 defendant suffered from two other mental

disorders: (1) substance intoxication delirium, with the relevant

substances being “the mixture of methamphetamine and Paxil,

and ... a contribution from the heroin,” and

(2) methamphetamine-induced psychotic disorder. Regarding

the first diagnosis, Stewart explained that delirium is like “a

short-lived dementia.” A delirious person “may not be fully

aware of [the environment],” or “fully cognizant of things going

on,” and may have “memory problems” and “perceptual

disturbances where [the person is] misinterpreting the

intentions and . . . behavior of others.” Such delirium is “short

lived” and may “wax and wane.” Substance intoxication

delirium means that the delirium is “related to the use of

substances,” in this case “methamphetamine and the

antidepressant Paxil.”

Dr. Stewart supported his diagnosis by explaining the

biochemistry of the substances involved, followed by

observations about defendant’s behavior. Regarding the

biochemistry of Paxil and methamphetamine, Stewart

explained that Paxil works in the body “basically the same [way]

. . . methamphetamine works.” This means that “one drug Paxil

plus one drug methamphetamine doesn’t equal two”; instead,

the effect of the drugs is “multiplied so [the individual] get[s] a

much greater effect from the mixing of these two drugs.” In

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addition, an enzyme in the liver, called 2D6, which metabolizes

methamphetamine, is inhibited by Paxil. This results in the

body “seeing more methamphetamine.” Having both Paxil and

methamphetamine in the system brings about “changes of

consciousness, [and] cognitive problems” or substance

intoxication delirium.

Such delirium, Dr. Stewart testified, “overlap[s]” with his

second diagnosis — that defendant was experiencing

methamphetamine-induced psychotic disorder. A person

suffering from this disorder has “psychotic symptoms,

hallucinations or delusions, . . . that are temporally related to

the use of the substance.” Examples of psychotic symptoms are

“auditory, [or] visual hallucinations” and “paranoid delusions.”

Stewart identified the following as evidence that defendant was

experiencing psychotic symptoms: the “buzzing in his head” as

reported to Dr. Ordas; defendant’s belief, as related by Stacey

Camacho, that Stacey had cameras in her platform shoes and

wires in her headband; and Stacey’s testimony that defendant

was hearing people coming up to his door “when in fact they

really weren’t.”

Turning to the events on the day of the shooting,

Dr. Stewart opined that defendant’s behavior corresponded to

his “having both of these conditions” and exhibiting “clouded

consciousness, cognitive problems, [and] perceptual

disturbances” during the encounter with Officer Zeppetella.

Stewart characterized the shooting as a “bizarre killing” that

occurred in the middle of the afternoon, when it was “bright out”

and there were “a lot of people around.” In Stewart’s opinion,

defendant displayed a “lack of . . . awareness of all these

witnesses that were around him” and engaged in a “single-

minded” act of shooting the officer. Moreover, defendant acted

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“odd[ly]” in stealing the police car when “there were plenty of . . .

civilian vehicles that were readily available to him if in fact he

was choosing to [escape].”

When asked if delirium and psychosis due to intoxication

were consistent with witnesses’ testimony regarding

defendant’s conduct preceding and following the shooting,

Dr. Stewart answered affirmatively. For example, defense

counsel asked, “when the police removed [defendant] from the

home [of Lorraine Camacho], he said he blacked out and didn’t

know what the officer did to set him off, and he wanted to kill

himself . . . are those statements consistent or inconsistent with

. . . the diagnoses you’ve described?” Stewart responded, “You

certainly can see types of behavior like that, given these

particular diagnoses that we’ve been discussing today.”

Anticipating the prosecution’s questions, defense counsel

queried if some of defendant’s seemingly purposeful behavior

was consistent with delirium and psychosis. Dr. Stewart replied

that due to the fluctuating nature of the conditions, defendant

“could have moments of lucidity followed by moments of

confusion.” Moreover, “[t]hings that appear to be purposeful”

(i.e., that defendant “gets in the police car,” “drives away,” “gets

weapons and puts them in a vacuum cleaner bag”) do not “rule

out the presence of a delirium diagnosis” because one “can’t tell

[delirium] from just looking at the behavior.”

The prosecution cross-examined Dr. Stewart at length,

focusing on the fact that there were “between 16 and 17,000

pages” of documents in the case, out of which Stewart reviewed

only 20 items. Those 20 items were provided to Stewart by the

defense, and Stewart did not request any additional documents.

In particular, Stewart did not review statements given to the

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police by Lorraine Camacho; he did not read letters that

defendant wrote while he was in jail even though Stewart had

testified in a prior matter that “the writings of the person who

[he] was assessing” were important; and he did not write a

report documenting his opinion despite having done so in prior

cases and knowing that “when [he has written such reports, he

was] cross-examined on the contents of the report.”

The prosecutor also questioned the basis of Dr. Stewart’s

opinion concerning biochemistry and the effect of combining

Paxil and methamphetamine. Stewart had produced to the

prosecution the abstracts of about two dozen articles, identified

as the sources on which he based his opinion. The prosecutor

asked, and Stewart agreed, that none of the articles concerned

Paxil, methamphetamine, and their effects on human beings.

Focusing on the one abstract documenting the function of the

enzyme 2D6 that Stewart had testified is inhibited by Paxil, the

prosecutor first elicited an acknowledgment that the article was

“one of the main” articles “supporting [Stewart’s] theory about

what happened in this case.” The prosecutor then elicited from

Stewart the concession that he had not actually read the article,

but only the abstract. Furthermore, Stewart could not recall

whether the article had concluded that the increase in

concentration of a key chemical because of 2D6 inhibition was

“small.” Likewise, Stewart did not remember whether the

article had concluded that there were “parallel enzymes” that

could help to metabolize chemicals when 2D6 was inhibited.

Of the letters that the prosecution mentioned to

Dr. Stewart, two were introduced into evidence at trial.

Defendant had written these letters when he was in custody

facing charges in the present case. As part of its attempt to

rebut the defense theory that defendant’s shooting and killing of

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Officer Zeppetella was explained by drugs and no other motives

or factors, the prosecutor used the letters to argue that

defendant harbored animus toward law enforcement.

To further rebut Dr. Stewart’s testimony, the prosecution

called its own expert, Dr. Daryl Matthews, a board-certified

forensic psychiatrist. Matthews stated that he had prepared a

written report laying out his opinion concerning this case. He

confirmed that in connection with the preparation of the report,

he received from the prosecution 16 to 17,000 pages of

documents. He further articulated that if the prosecution had

“pick[ed] and cho[]se[n] among the material that [it] sent him,”

his work would have been compromised and he would have

insisted that the prosecution give him the entire corpus of

materials.

Dr. Matthews stated that on June 13, 2003, defendant

suffered opioid dependence and antisocial personality disorder.

In exploring Dr. Matthews’s opinion, the prosecutor asked a

series of leading questions to conform the doctor’s testimony to

the parameters the trial court had imposed, which limited

discussion of hearsay information the doctor relied on in

reaching his conclusions. Matthews enumerated the diagnostic

criteria for antisocial personality disorder and explained that

defendant met those criteria. The most relevant parts of his

testimony, however, concerned areas in which he disagreed with

Dr. Stewart.

Dr. Matthews briefly reviewed the diagnostic criteria

pertaining to delirium, emphasizing that “the essential feature”

is a disturbance in consciousness, or a drop in a person’s

alertness, accompanied by an impairment in attention —

specifically “the ability to focus, sustain or shift attention.” This

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means that a delirious person cannot “pay attention very closely

to something, to handle this task, then go do that task, then

come back to the original task, [or] to pay long attention to any

task.”

Next, Dr. Matthews explained that to determine whether

defendant experienced delirium or psychosis when he shot

Officer Zeppetella, it was important to focus on defendant’s

behavior “close to the time [of] the incident.” Matthews

cautioned that the “mental wherewithal for any particular

action is not the basis for deciding [whether a person is

impaired]”; instead “it’s looking at the whole pattern of

interactions over a period of time” that allows one to make a

diagnosis.

Dr. Matthews then examined defendant’s actions on

June 13, 2003, and concluded that they showed defendant was

not suffering from delirium during the relevant events. For

example, in summarizing defendant’s interaction with Officer

Zeppetella during the traffic stop, Mathews observed that

defendant was able to converse with the officer and present

some sort of documentation. Such actions require “recognizing

that it’s a police officer and answering appropriately,”

appreciating that the documentation “was requested, know[ing]

where it is in your car, get[ting] it, [and] giv[ing] it to the

[officer].” The shooting itself indicated corresponding mental

skills. For instance, defendant’s action in taking the officer’s

gun required “recognizing that you don’t have any more bullets,

that [the] person is not yet dead, that they need more things to

happen to render them that way, making the decision to [obtain

the gun], then locating the appropriate object and being able to

use it properly.” Matthews also placed significance on

defendant’s action in fleeing the scene, observing that the

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conduct implicated “the recognition that . . . he needed to get

away, . . . and then to recognize that there are better ways of

fleeing than just running, and recognizing that the car he

brought wasn’t available to him because it was blocked, and

then understanding that he could get away using the police

vehicle, getting into a strange vehicle, . . . operating it in reverse

and maneuvering it successfully out of a parking [lot] and into a

street.” These acts, Matthews continued, “may seem like simple

things,” but undertaking them “requires visuospatial abilities”

and the capacity “to pay attention to where you’re going, not just

drive randomly into a post or make a wrong turn, but to pick a

destination, select it and then get there.” Such conduct, he

asserted, is not consistent with delirium.

Turning to Dr. Stewart’s diagnosis of methamphetamine-

induced psychosis, Dr. Matthews stated that defendant did not

suffer from any such psychosis. Focusing on defendant’s

behavior after he reached Lorraine’s house, Matthews noted

that defendant was able to locate a telephone, call his wife, talk

to her, and describe what happened. Likewise, defendant’s

placement of the guns inside the vacuum cleaner was

“significant” because “it involves recognizing that having those

things around could get him in serious trouble” and taking

“careful steps” to hide the weapons and “avoid being

apprehended.” When asked about defendant’s statements

“ ‘I don’t want to go back to prison,’ ” and “ ‘I’m going to kill

myself,’ ” Matthews opined that “those are statements made by

someone who knows what’s going on around him and . . . doesn’t

have any delusions or false beliefs, doesn’t have any difficulty

communicating and that reflect normal motivation, normal

response, normal recognition of his environment.” Addressing

the writing in blood on the walls and the fact that defendant cut

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his wrists, Matthews admitted using blood was “kind of

dramatic” but the writing showed that defendant was able to

remember the name of his doctor and write it correctly.

Regarding defendant’s self-harm, Matthews noted that people

with personality disorders — and according to the doctor,

defendant had antisocial personality disorder — make such

suicide gestures “to bring attention to themselves,” “to show how

much they’re suffering,” or “to divert attention from other

problems that they’ve created.”

Dr. Matthews gave similar testimony regarding

defendant’s actions in surrendering and his demeanor as

observed by medical personnel. For example, Matthews stated

that, unlike defendant, “people who are delirious would not

know their surrounding[s] and would not be able to answer

questions intelligently and give a good medical history and

behave cooperatively. They are prevented from doing that by

their diminished level of consciousness and by their inability to

pay attention.”

On cross-examination, Dr. Matthews was asked if certain

behavior “could be evidence of psychotic delusion.” The

behavior, as described, was “believing someone had wires in

their headband that were monitoring your behavior,” taking the

headband and cutting it up, “believing someone had hidden

cameras in their platform shoes that could possibly spy on you,”

and “hearing foot falls on the steps outside the door, fearing

people coming when no one’s there.” Matthews answered that

such conduct was consistent with psychotic thinking. On

redirect examination, however, Matthews clarified that such

behavior “alone, would [not] mean that you’re psychotic.”

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3. Competing theories of the crime

Based on the foregoing evidence, the defense argued that

drug intoxication caused defendant’s shooting and killing of

Officer Zeppetella. The defense emphasized defendant’s

addiction, his hospitalizations, and the fact that his blood

showed “toxic” levels of drugs on the day of the shooting.

Relying on Dr. Stewart’s testimony, counsel argued that

defendant suffered from drug-induced delirium and psychosis

during the relevant events. In support, counsel highlighted

evidence of such a diagnosis, including Stacey’s report of

defendant’s “psychotic symptoms,” Dr. Ordas’s observations of

defendant’s confusion after the shooting, defendant’s single-

minded and bizarre conduct during the shooting, and his

statements afterward. Ultimately, counsel urged the jury not to

convict defendant of the more serious crimes — first degree

murder, second degree murder, or voluntary manslaughter —

because, it was asserted, the prosecution failed to prove beyond

a reasonable doubt that defendant, delirious and psychotic,

acted with the mental states required for those crimes.

The prosecution, on the other hand, theorized that the

killing of Officer Zeppetella constituted a premeditated and

deliberate first degree murder that defendant perpetrated to

avoid arrest. The prosecution pointed out that defendant had

reason to fear arrest because he had drugs and a stolen gun in

the car but no driver’s license.9 The prosecution highlighted

9

The parties stipulated that defendant had felony

convictions, making him a felon in possession of a firearm. The

parties likewise stipulated that the Department of Motor

Vehicles had not issued a license under any of the names or

aliases defendant used.

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details of the crime that, in its view, reflected mental alertness

and accurate perceptions of reality that were inconsistent with

an altered mental state like delirium or psychosis. For example,

the prosecution emphasized defendant’s marksmanship, how he

was able to hit Officer Zeppetella multiple times, landing both

fatal shots and shots that disabled the officer’s shooting arm;

defendant’s ability to divide his attention — to watch the officer

to see if he was still moving, and then shift his attention to

securing a getaway vehicle; defendant’s rational decision to

break into Lorraine Camacho’s house via a back door because

defendant was “much less likely to be seen . . . doing it from the

backyard.” The prosecution summarized its case as one in which

the perpetrator was “a dope-selling, armed, dope user . . . in

command of his faculties . . . who gunned down an officer”

because he had a “stolen gun, [and] no driver’s license.”

At the conclusion of the guilt phase, the jury found

defendant guilty of first degree murder and found true the

special circumstance allegations.

B. Evidence at the Penalty Phase

1. Prosecution case

The prosecution introduced victim impact evidence in the

form of testimony from Officer Zeppetella’s wife, his father, and

a colleague from the Oceanside Police Department.

Detective Marilyn Priem testified that she was Officer

Zeppetella’s field training officer.10 From February through

March of 2003 — just before Officer Zeppetella began patrolling

in his own car — Priem rode with him ten hours a day, four days

10

Priem was the individual who discovered Officer

Zeppetella’s firearm in a vacuum cleaner.

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a week. Priem said the developing police officer was “very

caring,” “good-hearted,” and “compassionate with people.”

Officer Zeppetella’s death left “a big hole in the [Oceanside

Police] Department.”

Officer Zeppetella’s father, Tony Mario Zeppetella

(“Mr. Zeppetella”), told the jury of his son’s upbringing.

Mr. Zeppetella testified that Officer Zeppetella was the

youngest of three children and especially close to his mother.

Growing up, Officer Zeppetella was a “good kid” and “the joy of

[his parents’] life.” When contemplating attending college,

Officer Zeppetella told his parents he would join the Navy so

they would not have to pay for his education. After serving in

the Navy, Officer Zeppetella decided to become a police officer

because he “wanted to help people.” He graduated from the

police academy in October 2002. The week before he was killed,

he visited his parents and told them he was looking forward to

Father’s Day, noting that it would be the first that he would be

celebrating as a father himself. When Mr. Zeppetella and his

wife received news that Officer Zeppetella was killed, “it felt like

somebody killed us, also.” Officer Zeppetella’s mother “lost the

will to live” and now “every day, she’s at the cemetery.”

Officer Zeppetella’s widow, Jamie Zeppetella (“Jamie”),

testified about the couple’s life together. Jamie met him in

January 2002. “Within the first week” she knew “he was the

person I wanted to spend the rest of my life with.” The couple

got married in May 2002. In December 2002, shortly after

Officer Zeppetella graduated from the police academy, the

couple had their son, Jakob. Officer Zeppetella was a “very

involved” father, and on the day he was killed, he spent time in

the morning with Jakob before heading to work. When Jamie

found out later that afternoon that her husband had died, she

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“started screaming,” “went into . . . a state of shock, and didn’t

want to talk to anybody.” Jamie believed that her husband’s

death had an impact on six-month old Jakob, who now has to

grow up without his father. Jamie believed that her own “goals

and hopes” that she had for her family were “gone.”

In addition to the victim impact evidence, the parties

stipulated defendant had four prior felony convictions. Two

involved possession of controlled substances, one involved

possession of a firearm by a felon, and the other was for driving

in willful or wanton disregard for safety of persons or property

while fleeing from a pursuing police officer.

2. Defense case

The defense’s case in mitigation consisted of testimony by

defendant’s wife, mother, and an emergency room doctor, Karen

Van Hoesen. Dr. Van Hoesen told the jury that, based on the

medical records she reviewed, defendant’s self-inflicted

lacerations on his arms were “full thickness” lacerations, or “the

most severe” of lacerations. She also testified concerning

defendant’s blood loss, stating that defendant’s hematocrit level,

or “the amount of red blood cells . . . in [the] body,” was “lower

than what is expected to be normal.” Finally, Van Hoesen stated

that the blood found in the bathtub and scrawled as writing on

the wall was “consistent with the blood loss” from defendant’s

self-inflicted wounds. On cross-examination, Van Hoesen

conceded that the description of defendant’s lacerations as being

“full thickness” was recorded only in the paramedic’s report —

not the treating physician’s (Dr. Dandan’s) — and that, in any

event, the injuries were not life-threatening.

Diana Gil, defendant’s mother, told the jury that

defendant was the second of her five children. Defendant spent

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the first years of his life with his grandparents at the Daley

Ranch in Escondido, where his grandfather worked as a

caretaker. Gil confirmed that a picture the defense showed was

of her son at the age of 15. Gil pointed out various people

(defendant’s grandfather, grandmother, and oldest brother) who

were in the gallery during her testimony. Finally, Gil said that

she was at defendant’s trial because she “love[s] [her] son.”

Stacey Camacho again testified on her husband’s behalf.

She related that she and defendant met in 1996 and that they

married the next year. They had two children together, Alexis

and Anthony, who were six and seven years old. After providing

more biographical details, Stacey narrated for the jury a number

of pictures showing defendant with herself, Alexis, Anthony, or

his coworkers. Like with defendant’s mother, defense counsel

ended by asking if Stacey still loved defendant. Stacey said she

did. She also said that his children still loved him.

II. DISCUSSION

A. Guilt Phase Issues

1. Verdin error

a. Background

Approximately ten months before trial began, the

prosecution filed a motion seeking a court order requiring

defendant to submit to psychiatric examination by professionals

of the People’s choosing for the purpose of rebutting defendant’s

anticipated mental state defense. The trial court denied the

request as premature because the defense had not directly

placed his mental state at issue. Citing People v. Danis (1973)

31 Cal.App.3d 782 (Danis), however, the court indicated that if

defense counsel “present expert witnesses regarding mental

health issues, [the prosecution] is going be entitled to . . . have

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your client examined.” (See Danis, supra, 31 Cal.App.3d at

p. 786 [“even in the absence of an authorizing statute, a trial

court possesses the inherent power to order a defendant who has

imposed a defense of insanity or of diminished capacity to

submit to an examination of a psychiatrist selected by the

People”], disapproved in Verdin v. Superior Court (2008)

43 Cal.4th 1096 (Verdin).)

In August 2005, after defense counsel indicated that

Dr. Stewart would be rendering a medical opinion on

defendant’s behalf, the court stated that it would sign a “Danis

order,” allowing the prosecution to conduct a psychiatric

evaluation of defendant. Defendant objected to the order on

statutory and Fifth Amendment grounds. About a month later,

defense counsel informed the court that defendant would be

refusing to submit to the court’s order. Although defendant’s

attorney told the court that defendant was refusing to comply

on the advice of counsel, the court elicited a personal statement

from defendant that he was declining to cooperate with an

examination. The court accepted defendant’s refusal to obey its

order but, citing People v. Carpenter (1997) 15 Cal.4th 312

(Carpenter), told the parties that “the court will be instructing

the jury that [defendant] has refused.”

During his testimony, Dr. Matthews — the prosecution’s

forensic psychiatrist — testified that defendant declined an

interview with him. Immediately after this statement,

Matthews explained the difference between forensic and clinical

psychiatry. According to Matthews, forensic psychiatrists do

not see “patients” and are not involved in treatment; instead,

they perform examinations on “evaluee[s]” with the goal of

“learn[ing] enough about the situation so that [they] can be of

service in some way to the judicial system.” Furthermore, a

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forensic psychiatrist is “trained to make decisions largely from

documentary evidence” and does not depend on “see[ing] the

patient.” Matthews also admitted that when he had gone to the

jail seeking to examine defendant, he brought four questions

prepared by the prosecution.

Dr. Stewart, the defense expert, echoed Dr. Matthews’s

statement that interviews with defendant were not pivotal to his

opinion. Stewart acknowledged that, unlike with Matthews,

defendant did cooperate with his (Stewart’s) efforts to examine

him, and Stewart interviewed defendant twice. Stewart

nonetheless told the jury that “taking away any interview [he]

did with the defendant” would not change his opinion.

Both the prosecution and defense referenced defendant’s

refusal to be examined by Dr. Matthews during closing

arguments. In discussing the testimony of Dr. Stewart, the

prosecution criticized the expert for failing to take notes,

forgoing a written report, and withholding his opinion until the

last minute. The prosecution called such conduct — along with

defendant’s “refus[al] [of] a court-ordered exam” — “game

playing” and said that such behavior “stinks.”

In response, the defense explained why defendant

declined to be interviewed by Dr. Matthews. Emphasizing that

Matthews was a forensic psychiatrist and not a clinician, the

defense counsel asked rhetorically, “Who would subject

themsel[ves] to this evaluation by Dr. Matthews, who doesn’t

perceive you as a client . . . [but] as an evaluee?” Characterizing

Matthews as someone who was “into it for 50 grand” — the

amount of money Matthews said he received as his

remuneration — the defense stated that Matthews’s “opinion is

not going to change” and as such, “nothing good was going to

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come of [the doctor meeting with defendant].” Finally,

referencing the court’s instruction regarding the refusal,

defense counsel urged the jury to think of it as “the punishment

for Mr. Camacho not [being] willing to participate in that

particular sham.”

The court’s instruction to the jurors read:

“Pursuant to California law, this court ordered the

defendant, ADRIAN J. CAMACHO, to submit to a

psychological examination by a doctor selected by

the prosecution. The defendant refused to be

examined or interviewed by him. If you find the

defendant’s refusal to answer questions or

participate in the mental examination willful, you

may take that fact into consideration when weighing

the defense’s expert opinions about the defendant’s

mental condition in this case. You may infer that

the defendant wanted only his self-chosen experts,

not others, to evaluate him.”

b. Analysis

As the trial judge’s comments indicate, at the time of

defendant’s trial “decisional law authorized trial courts to order

a defendant who placed his or her mental state in issue to

submit to mental examination by prosecution experts.” (People

v. Clark (2011) 52 Cal.4th 856, 939 (Clark).) In 2008, however,

this court held that such decisions did not survive the 1990

passage of Proposition 15. (Verdin, supra, 43 Cal.4th at

pp. 1102, 1106.) That proposition added section 1054 to the

Penal Code, which specifies that “no discovery shall occur in

criminal cases except as provided by this chapter, other express

statutory provisions, or as mandated by the Constitution of the

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United States.” (§ 1054, subd. (e).) Because “nothing in the

criminal discovery statutes (§ 1054 et seq.) authorizes a trial

court to issue an order” requiring a defendant who has mounted

a mental state defense to submit to an examination by

prosecution experts, we concluded in Verdin that trial courts

lacked the needed statutory authority to order such

examinations. (Verdin, supra, 43 Cal.4th at p. 1109.)

The Legislature responded to our decision in Verdin by

enacting a statute expressly conferring such power on trial

judges. (See § 1054.3, subd. (b)(1) [“whenever a defendant in a

criminal action . . . places in issue his or her mental state . . .

through the proposed testimony of any mental health expert,

upon timely request by the prosecution, the court may order that

the defendant . . . submit to examination by a prosecution-

retained mental health expert”]; id., subd. (b)(2).) However, the

rule announced in Verdin continues to apply to trials — like

defendant’s — conducted before January 1, 2010, the effective

date of the newly enacted statute. (See People v. Gonzales (2011)

51 Cal.4th 894, 927 (Gonzales); see also, e.g., People v. Banks

(2014) 59 Cal.4th 1113, 1193.)

Because Verdin applies in this case, the trial court erred

in ordering defendant to be examined by Dr. Matthews,

admitting Matthews’s testimony that defendant refused to

submit to the examination, allowing the prosecution to comment

on such refusal during closing argument, and instructing the

jury that it could consider defendant’s refusal in considering

Dr. Stewart’s opinion. (See, e.g., Verdin, supra, 43 Cal.4th at

p. 1116 [finding the court’s order to be error]; People v. Wallace

(2008) 44 Cal.4th 1032, 1087 (Wallace) [“admission of [a

prosecution expert’s] testimony regarding defendant’s refusal to

cooperate with the court-ordered psychiatric examination was

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also error”]; Clark, supra, 52 Cal.4th at p. 940 [“comment on

[the] defendant’s refusal to be questioned” was error]; Gonzales,

supra, 51 Cal.4th at p. 929 [court’s instruction to the jury that

“it could consider [the defendant’s] refusal to be interviewed” by

a prosecution-retained expert was “infected by the Verdin

error”].) The question before us is whether such errors are so

prejudicial as to require reversal of defendant’s convictions.

The parties disagree about the standard under which

these Verdin errors are to be assessed for prejudice. Defendant

argues that these errors violated his federal constitutional

rights and therefore should be subjected to a “harmless beyond

a reasonable doubt” standard. (Chapman v. California (1967)

386 U.S. 18, 24 (Chapman).) The People, on the other hand,

contend that “[t]he errors here involve state statutory law” and

should be analyzed under the lower reasonable probability

standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).

Our case law supports the People’s position that Verdin

errors occurring at the guilt phase are assessed for prejudice

“under the [Watson] standard for state law error, [i.e.,] whether

there is a reasonable probability that the outcome of trial would

have been more favorable to [the] defendant” had the errors not

occurred. (Clark, supra, 52 Cal.4th at pp. 940–941; see also

People v. Hoyt (2020) 8 Cal.5th 892, 941–942 (Hoyt).) This is

because, in the circumstances here presented, a defendant does

not have a constitutional right to refuse to be examined.

A long line of authorities, from both this court and the

United States Supreme Court, establishes that the federal

Constitution does not bar the government from performing a

mental examination of a defendant “to rebut that defendant’s

presentation of expert testimony in support of a [mental state]

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defense.” (Kansas v. Cheever (2013) 571 U.S. 87, 89–90 [“The

question here is whether the Fifth Amendment prohibits the

government from introducing evidence from a court-ordered

mental evaluation of a criminal defendant to rebut that

defendant’s presentation of expert testimony in support of a

defense of voluntary intoxication. We hold that it does not”]; see

also, e.g., People v. Nieves (2021) 11 Cal.5th 404, 436 (Nieves)

[“Once [a] defendant place[s] [his or] her mental state at issue,

[he or] she waive[s] her Fifth and Sixth Amendment rights to

object to the prosecution examinations”]; Maldonado v. Superior

Court (2012) 53 Cal.4th 1112, 1132–1133 (Maldonado) [“by

electing to present [a mental state defense], [a defendant] will

waive his privilege against self-incrimination to the extent

necessary to support his claim and allow fair rebuttal. Forcing

him to this choice does not offend the Constitution”]; Clark,

supra, 52 Cal.4th at p. 940 [“Defendant cites no decision, and we

are aware of none, holding that the Fifth Amendment or any

other federal constitutional provision prohibits a court from

ordering a defendant who has placed his or her mental state in

issue to submit to a mental examination by a prosecution

expert”]; Gonzales, supra, 51 Cal.4th at p. 929 [“It is settled that

a defendant who makes an affirmative showing of his or her

mental condition by way of expert testimony waives his or her

Fifth and Sixth Amendment rights to object to examination by

a prosecution expert”]; accord Buchanan v. Kentucky (1987)

483 U.S. 402, 422–423.) As such, although the trial court in this

case committed error under state law by ordering an

examination by the prosecution expert and allowing the jury to

learn of defendant’s refusal to be examined, this did not violate

defendant’s federal constitutional rights. We therefore analyze

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whether the court’s errors were prejudicial under the Watson

standard.11

Based on the totality of the circumstances, we conclude it

was not reasonably probable that the outcome of the trial would

have been more favorable to defendant had the errors not

occurred. Regarding the refusal, although Dr. Matthews

referenced the fact that defendant declined to be examined, he

did not use such refusal to criticize the defense expert’s opinion.

(Accord People v. Krebs (2019) 8 Cal.5th 265, 347 (Krebs)

[finding harmless an expert’s disclosure of the fact that a

defendant declined to be interviewed when “the prosecution

expert . . . ‘did not rely on defendant’s refusal to participate in

11

To the extent defendant argues that the errors here

amounted to constitutional violations of his right to remain

silent — so-called Griffin or Doyle errors — he is mistaken.

(Griffin v. California (1965) 380 U.S. 609, 615 [“the Fifth

Amendment . . . forbids either comment by the prosecution on

the accused’s silence or instructions by the court that such

silence is evidence of guilt”]; Doyle v. Ohio (1976) 426 U.S. 610,

619 [“the use for impeachment purposes of petitioners’ silence,

at the time of arrest and after receiving Miranda warnings,

violated the Due Process Clause”].) Neither Griffin nor Doyle

addressed circumstances in which a defendant has waived his

privilege against self-incrimination by electing to put in issue

his mental state, and it is clear that “[a] criminal defendant, who

neither initiates a psychiatric evaluation nor attempts to

introduce any psychiatric evidence, may not be compelled to

respond to a psychiatrist if his statements can be used against

him at a capital sentencing proceeding.” (Estelle v. Smith (1981)

451 U.S. 454, 468.)

Furthermore, “[t]he same reasoning [explaining why we

find meritless defendant’s Fifth Amendment arguments] applies

to defendant’s claim that [his] Fourteenth Amendment right to

due process was violated.” (Gonzales, supra, 51 Cal.4th at

p. 929, fn. 18.)

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the court-ordered examination’ to criticize his opponent’s

conclusions”]; Wallace, supra, 44 Cal.4th at p. 1087 [same].)12

Indeed, both the prosecution and defense experts stated that

interviews with defendant were not pivotal to their opinions.

Matthews testified that forensic psychiatrists such as himself

rely on documentary evidence to form their opinions, not

examinations of the individuals whose mental states they are

assessing. Dr. Stewart likewise stated that without defendant’s

interviews, he would still reach the conclusions he did. These

circumstances tend to reduce the likelihood that defendant was

prejudiced by Matthews’s comment regarding defendant’s

refusal to be interviewed. (Accord Clark, supra, 52 Cal.4th at

p. 941 [finding evidence of a defendant’s refusal to be

interviewed to be harmless when a prosecution expert “did not

suggest the fact that defendant refused . . . had any bearing on

his diagnosis” and “nothing in the record shows [the expert]

found any significance in defendant’s refusal to submit to an

examination”].)

Similarly, the prosecution’s remarks on defendant’s

noncooperation were brief and not inflammatory. (Accord Krebs,

supra, 8 Cal.5th at p. 347 [holding that Verdin errors were

harmless despite “the prosecutor’s brief comments in closing

argument highlighting defendant’s refusal to submit to an

interview”].) The prosecution criticized various aspects of

Dr. Stewart’s methodology and included in that criticism

defendant’s refusal to meet with the prosecution expert. Some

12

“We applied the higher ‘reasonable possibility’ standard in

. . . Wallace [and Krebs], because the error in th[ose] case[s]

occurred at the penalty phase of a capital trial when the more

exacting standard applies.” (Clark, supra, 52 Cal.4th at p. 941,

fn. 24.)

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of the prosecution’s comments — those characterizing defense

strategy as “game playing” or protesting that defendant’s

refusal “just stinks” — certainly were pointed. Nonetheless, the

prosecution did not dwell on defendant’s noncooperation.

Rather, the thrust of the prosecution’s comments was properly

aimed at rebutting Dr. Stewart’s testimony by emphasizing his

failure to take notes, prepare a written report, disclose his

opinion in a timely manner, or obtain and consider facts the

prosecution viewed as crucial to evaluating defendant’s mental

state. To the extent the remarks amounted to a targeted attack

on the defense rather than generalized protests about “fairness,”

they nonetheless did not prejudice defendant. (Cf. Krebs, supra,

8 Cal.5th at p. 346 [finding any error to be harmless despite the

prosecution complaining about a lack of “ ‘fairness’ ” and

“ ‘looking for the truth’ ” when the defendant declined to talk to

the prosecution expert].)

This is, in part, because defense counsel explained his

client’s refusal to see Dr. Matthews. (Accord Krebs, supra,

8 Cal.5th at p. 347 [“the fact that the defense provided the jury

with an explanation of why defendant refused to be examined

by [a prosecution expert] . . . lean[s] against a finding of

prejudice”].) Counsel suggested to the jury that Matthews was

biased because he saw the individuals he interviewed not as

“patients” but as “evaluee[s]” and that he brought questions

prepared by the prosecutor when he attempted to examine

defendant. In addition, by the time Matthews went to see

defendant, he had already reached an opinion and billed the

prosecution a substantial sum of money. Under such

circumstances, argued counsel, Matthews was not going to

change his views regardless of what defendant said to him.

Knowing this, counsel stated, defendant understandably

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refused to participate in a “sham” and so declined to subject

himself to Matthews’s questioning. This explanation tended to

blunt the impact of defendant’s refusal to cooperate with

Matthews and diffused the prosecution’s criticism that such

refusal “just stinks.”

Finally, the court instructed the jury that it could consider

defendant’s “refusal to answer questions or participate in the

mental examination . . . when weighing the defense’s expert

opinions about the defendant’s mental condition.” It further

stated that jurors “may infer that the defendant wanted only his

self-chosen experts, not others, to evaluate him.” 13 This last

part of the court’s instruction was taken from Carpenter, supra,

15 Cal.4th at page 413, where we said that “[t]he jury could

properly infer that defendant wanted only his self-chosen

13

This instruction is not materially different from that given

in Gonzales. There, the trial court told the jury “it had ordered

examinations by Kaser-Boyd and Dr. Mills [two experts retained

by the prosecution], that defendant had refused to be examined

by Dr. Mills, and that her refusal ‘may be considered by you

when weighing the opinions of the defense experts in this case.

The weight to which this factor is entitled is a matter for you to

decide.’ ” (Gonzales, supra, 51 Cal.4th at p. 926.) We held that

erroneous instruction to be harmless and, in so concluding,

relied in no small part on the existence of Evidence Code section

730. (See Gonzales, supra, 51 Cal.4th at p. 928; Evid. Code,

§ 730 [authorizing a trial court “on its own motion or on motion

of any party” to appoint an expert “to investigate, to render a

report as may be ordered by the court, and to testify as an expert

at the trial . . . to the fact or matter as to which the expert

evidence is or may be required”].) We do not discuss section 730

here because the Attorney General has not argued its relevance

to a determination of whether the Verdin errors were

prejudicial.

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experts, not others, to evaluate him, an inference relevant to its

consideration of all the evidence of his mental condition.”14

Evaluating the court’s instruction alongside the

prosecutor’s argument and Dr. Matthews’s reference to

defendant’s refusal to be interviewed, we are not convinced that

the instruction tips the balance toward reversible error under

Watson. First, we do not believe there was much further harm

in telling the jury it “may” — but, by implication, need not —

consider defendant’s refusal to be examined in weighing the

credibility of the defense expert, or infer that defendant wanted

only some experts, and not others, to evaluate him. The latter

is a sort of truism arising from the fact that defendant

cooperated with his own experts, Drs. Ordas and Stewart, but

not the prosecution’s expert, Dr. Matthews. More broadly, the

jury was not constrained by other instructions from considering

defendant’s nonparticipation even in the absence of an

instruction. Second, to the extent the instruction indicates to

the jury that it may weigh the defense expert’s opinion

differently if the defendant thwarts the prosecution expert’s

process, defense counsel highlighted what he considered to be

the illogicality of the directive. Without apparent disagreement

from the prosecution in rebuttal, counsel made this point,

arguing that “there’s nothing about Dr. Stewart’s evaluation

that is assailed” by a missing interview with Dr. Matthews.

14

Although Carpenter has been overruled to the extent that

it is inconsistent with Verdin (Verdin, supra, 43 Cal.4th at

pp. 1106–1107), parts of the decision remain good law. (See,

e.g., Gonzales, supra, 51 Cal.4th at p. 929 [quoting with

approval Carpenter, Danis, and People v. McPeters (1992)

2 Cal.4th 1148 (McPeters) — cases that have been disapproved

in part in Verdin].)

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Ultimately, the issue the jury had to decide was the credibility

of the experts, both the defense’s and the prosecution’s. With

regard to that determination, it is true that the parties made

arguments concerning defendant’s refusal to submit to an

examination and that the instruction facilitated the argument.

However, the record indicates that these arguments were

tangential to the primary dispute over the experts’ methods and

conclusions. In sum, a different verdict at the guilt phase absent

the Verdin errors was not reasonably probable.

In addition to contending that the Verdin errors warrant

reversal of his convictions, defendant also makes conclusory

assertions that the errors deprived him of his right to a reliable

penalty determination. Defendant forgoes any specific

argument regarding penalty phase prejudice. Instead, he

generically asserts (primarily in the section headings within his

briefing) that the various errors violated that right.

To the extent such arguments are not waived for failure to

support them (see, e.g., People v. Lawley (2002) 27 Cal.4th 102,

169, fn. 25; People v. Williams (1997) 16 Cal.4th 153, 206), they

are meritless. It does not appear that any mention of

defendant’s refusal to submit to a court-ordered examination

was made at the penalty phase. Certainly, defendant’s own

recitation of the relevant facts is limited to the guilt phase, and

he offers no elaboration concerning how evidence relating to the

Verdin claim may have spilled over to the penalty determination

and tainted that decision as well. Under these circumstances,

there was no reasonable possibility that the Verdin errors

affected the death judgment. (See, e.g., Clark, supra, 52 Cal.4th

at p. 941, fn. 24.)

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Defendant advances various counterarguments in an

attempt to show that the Verdin errors rise to a constitutional

dimension in this case. (But see Clark, supra, 52 Cal.4th at

p. 940; Hoyt, supra, 8 Cal.5th at pp. 941–942.) Specifically,

defendant argues that the trial court violated his privilege

against self-incrimination because it did not confer upon him

“ ‘advance assurance of immunity against overbroad direct and

derivative use of [his] responses to the examiners.’ ”

We disagree.

Defendant’s argument rests largely on Maldonado, supra,

53 Cal.4th at page 1112. In Maldonado, this court confronted

the issue of “what general limits, if any, may properly be

imposed on prosecutorial access to court-ordered examinations

and their results . . . in order to vindicate or protect the

defendant’s Fifth and Sixth Amendment rights.” (Id. at

p. 1117.) We concluded that the limits mandated by the

Constitution are few. In the context of a court-ordered

examination, the Fifth Amendment allows “direct or derivative

use of [a defendant’s] statements to the prosecution examiners,”

although only to the extent necessary “to rebut any mental-state

evidence [the defendant] presents through his own experts.”

(Maldonado, supra, 53 Cal.4th at p. 1129; see also id. at p. 1125

[“The prosecution is . . . constitutionally permitted to obtain its

own examination of the accused, and to use the results,

including the accused’s statements to the prosecution

examiners, as is required to negate the asserted defense. If the

defendant refuses to cooperate with the prosecution examiners,

the court may impose sanctions, such as advising the jury that

it may consider such noncooperation when weighing the

opinions of the defense experts. On the other hand, except for

appropriate rebuttal, the defendant’s statements to the

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prosecution experts may not be used, either directly or as a lead

to other evidence, to bolster the prosecution’s case against the

defendant”].)

Maldonado also elucidated the various ways in which the

defense can ensure that the prosecution does not misuse

materials elicited during a court-ordered examination. This is

accomplished primarily through litigation at trial. (See

Maldonado, supra, 53 Cal.4th at pp. 1137–1138.) In particular,

once “the prosecution commences its rebuttal case, the defense

can raise specific objections to particular evidence.” (Id. at

p. 1138.) “At this stage, the court is in the best possible position

to determine whether particular rebuttal evidence proffered by

the prosecution exceeds the scope of the defendant’s Fifth

Amendment waiver.” (Ibid.) Furthermore, because Maldonado

was decided after the enactment of section 1054.3, we explained

in a footnote that “[t]o the extent petitioner and other criminal

defendants are entitled, as a prophylactic protection of their

Fifth Amendment privilege, to decline to submit to court-

ordered mental examinations until they receive advance

assurance of immunity against overbroad direct and derivative

use of their responses to the examiners, we may, and we do,

judicially declare such an immunity as ‘ “reasonably to be

implied” ’ from the statutory provision allowing the prosecution

to obtain such examinations for the limited purpose of rebutting

anticipated mental-state defenses.” (Maldonado, supra, at

p. 1129, fn. 10.)

Seizing on this language, defendant argues that because

section 1054.3 did not exist at the time of his trial, no such

immunity may reasonably be deemed to have been conferred in

his case. Pointing to the language of the court’s order, which did

not provide “advance assurance of immunity against overbroad

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direct and derivative use of [the defendant’s] responses to the

examiners,” defendant argues that in fact no such immunity was

extended. (Maldonado, supra, 53 Cal.4th at p. 1129, fn. 10.)

Defendant implies that under such circumstances, he was

within his constitutional right to refuse to submit to the order —

or conversely, that by signing such an order, the court violated

the constitutional guarantee protecting defendant against self-

incrimination.

We reject defendant’s argument. First, although we do not

need to decide the issue because the Attorney General did not

brief it, defendant’s argument appears forfeited. It is true that

defendant objected to the court’s order and ultimately refused to

cooperate with Dr. Matthews. Yet, he did not base either his

objection or refusal on the court’s alleged failure to provide

“advance assurance” that his statements would be introduced

only for proper rebuttal purposes. (Maldonado, supra,

53 Cal.4th at p. 1129, fn. 10.) If defendant were concerned

about the potential overbroad use of his statements, he could

have said as much. Even before Maldonado was decided, the

case law suggested that statements made during a court-

ordered examination could be used only for rebuttal purposes.

(See, e.g., Danis, supra, 31 Cal.App.3d at pp. 785–786; cf. People

v. Perez (2020) 9 Cal.5th 1, 7–8 (Perez) [“ ‘ “[r]eviewing courts

have traditionally excused parties for failing to raise an issue at

trial where an objection would have been futile or wholly

unsupported by substantive law then in existence” ’ ”].) Had

defendant brought the issue to the court’s attention, the court

could have addressed his concerns about any overbroad use of a

psychiatric evaluation. (See, e.g., People v. Simon (2001)

25 Cal.4th 1082, 1103 [explaining that “the basic rationale of the

forfeiture doctrine” is “ ‘ “ ‘to encourage a defendant to bring

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errors to the attention of the trial court, so that they may be

corrected or avoided and a fair trial had’ ” ’ ”].) Under such

circumstances, defendant’s failure to raise the issue may well

have resulted in forfeiture.

Second, the record in this case confirms that all parties

involved understood the intended use of any interview a

prosecution expert conducted with defendant would be limited

to rebutting defendant’s mental state defense. The People’s

motion requesting that the court issue an order requiring

defendant to sit for such an examination stated as much. The

People’s oral argument in the court and the exchange between

the trial judge and the parties suggest the same. And, of course,

the court referred specifically to Danis — with its attendant

limiting language — in granting the prosecution’s motion for an

examination.

In addition, decisional law relied upon by the trial judge

underscored the proper role of this evidence as limited to the

rebuttal of the defendant’s proffered mental state evidence. (See

McPeters, supra, 2 Cal.4th at p. 1190 [“By tendering his mental

condition as an issue in the penalty phase, defendant waived his

Fifth and Sixth Amendment rights to the extent necessary to

permit a proper examination of that condition. . . . Any other

result would give an unfair tactical advantage to defendants,

who could, with impunity, present mental defenses at the

penalty phase, secure in the assurance they could not be

rebutted by expert testimony based on an actual psychiatric

examination” (italics added)]; Carpenter, supra, 15 Cal.4th at

p. 412 [same]; Danis, supra, 31 Cal.App.3d at pp. 785–786 [“The

sole issues are whether the court committed reversible error in

granting the prosecution’s motion to have a court-appointed

psychiatrist examine defendant and in permitting the doctor to

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testify in rebuttal to the medical testimony introduced by

defendant on the subject of defendant’s diminished capacity”

and “opinion testimony from a court-appointed psychiatrist

based upon his examination of a defendant in a criminal case is

admissible as prosecution rebuttal during the guilt phase of the

trial, once the defendant has placed his mental condition in

issue by proffering an insanity or diminished capacity defense”

(italics added)].)

Third, defendant’s refusal to be examined was in fact used

only to rebut defendant’s argument that he lacked the requisite

mental state for the more serious crimes. As noted,

Dr. Matthews referenced defendant’s refusal in his testimony as

a rebuttal witness; the prosecution mentioned the refusal in

seeking to refute the defense expert’s opinion that defendant

suffered from a diminished mental state; and the court’s

instruction permitted the jury to consider the refusal in

assessing the same defense expert’s opinion. Defendant

therefore had no occasion to “raise [at trial] specific objections to

particular evidence” regarding his refusal to comply with the

court’s order. (Maldonado, supra, 53 Cal.4th at p. 1138.) In

such circumstances, to hold that the court nonetheless violated

defendant’s constitutional rights by not expressly specifying

that the result of the court-ordered examination would be used

only in rebuttal is unwarranted.

Defendant claims various other asserted infirmities

concerning the court’s instruction. He argues that the court

compounded its error by denying the defense proposal that the

court instruct the jury that defendant refused to submit to the

court-ordered examination on the advice of counsel. According

to defendant, “[r]elying on an attorney’s advice for a course of

action may defeat an allegation of willfulness and the trial court

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should have instructed the jury that when [defendant] refused

to submit to the examination, he was acting on the advice [of]

his attorneys and that fact could be taken into consideration in

determining if the refusal was willful.”

Defendant has cited no case establishing the premise that

“[r]elying on an attorney’s advice for a course of action may

defeat an allegation of willfulness” in the context of court-

ordered examinations. (See Nieves, supra, 11 Cal.5th at p. 437

[“Defendant cites no authority for her view that she did not

personally refuse to be examined, and she offers no reason to

dispel the general rule that absent complaint at trial, the acts of

her counsel are imputed to her”].) Furthermore, even if we

accept that defendant followed his counsel’s advice, this might,

at most, have led a juror to find that defendant’s refusal was not

willful. But in assessing the harm caused by the instruction, we

have assumed one or more jurors found “the defendant’s refusal

to answer questions or participate in the mental examination

[was] willful” and took that into consideration when weighing

the expert opinions regarding the defendant’s mental condition.

Given this assumption, the fact that the jury was not instructed

that defendant followed the advice of his counsel could not have

prejudiced defendant.

Defendant further argues that the court’s instruction

allowing the jury to infer from defendant’s refusal to meet with

Dr. Matthews “that the defendant wanted only his self-chosen

experts, not others, to evaluate him” was unsupported by

evidence. But at trial, the parties presented testimony

establishing that defendant cooperated with experts chosen by

the defense, Drs. Ordas and Stewart, yet not with an expert

retained by the prosecution, Matthews. The defense also

explained why defendant did not want Matthews — the only

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psychiatric expert not selected by defendant — to examine him.

Upon this record, we cannot say that no evidence supports the

inference permitted by the court’s advisement. (Accord, People

v. Alexander (2010) 49 Cal.4th 846, 905–906.)

2. Admission of letters written by defendant

a. Background

Defendant objects to the court’s admission into evidence of

two letters he authored. The prosecution sought to introduce

these letters to show defendant’s motive in the charged crimes.

Defendant wrote both letters while in pretrial detention on the

current charges. The first was written in early August 2003,

about two months after the June 13 shooting death of Officer

Zeppetella:

“I’m doing a lot better, thank you very much, had a

little problem here and there with these fucks (cops)

but other than that and all the muthafucking crying

that goes on here, it’s all good! . . .

“Today they extracted p-wee’s celli there in E-1 over

some fuckin bullshit and the only reason I don’t put

a green light on these fucks is because he’s always

fucking up.”

The second letter was written in late August 2003, evidently in

response to some problem defendant was experiencing with the

mail system at the jail:

“I tell you these fucks are really asking for me to

make an example. These fucks don’t understand

how important it was for that letter to get out. Only

cause they go home everyday, they think theyre tuff

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ass’es. Its going to be a big surprise when I send one

of them home in a fucken bodybag!”

The prosecution argued that the letters showed “an

animosity towards law enforcement” and were “relevant on the

issue of intent” or motive. The defense objected to admission of

the letters on the grounds they purportedly constituted

inadmissible hearsay and should in any event be excluded under

Evidence Code section 352. After hearing arguments from both

sides, the trial court admitted the letters, finding them “directly

relevant to defendant’s attitude toward law enforcement” and

“relevant to motive and as to [defendant’s] state of mind in June

of 2003, the time of the incident.”

At trial, the prosecution mentioned the letters in its

opening and closing statements. During opening remarks, the

prosecution read to the jury portions of the letters and argued

that they were evidence of defendant’s “special malice, . . .

special anger directed towards law enforcement.” The

prosecution also introduced testimony to clarify that the term

“green light” — as used in the first letter — “is a prison

terminology or street terminology [that means] it’s okay to kill

this person.” During closing argument, the prosecution again

argued that the letters showed defendant harbored “special

malice towards officers.” Responding to defense questioning of

witnesses and anticipating opposing counsel’s closing

comments, the prosecution asserted that the letters explained

why defendant engaged in seemingly “[un]necessary” violence

against Officer Zeppetella. In contrast to defense counsel’s

theory that defendant displayed “violence beyond that necessary

. . . because [of] the drugs and the Paxil,” the prosecution

attributed defendant’s brutality — his shooting the victim

13 times — to defendant’s “special malice.”

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The prosecution returned to the letters in its closing

statement at the penalty phase, using them to cast doubt on

defendant’s remorse for the killing of Officer Zeppetella.

b. Analysis

Defendant argues that the letters should have been

excluded as inadmissible character evidence under Evidence

Code section 1101, subdivision (a). Under that provision, and

subject to certain exceptions, “evidence of a person’s character

or a trait of his or her character (whether in the form of an

opinion, evidence of reputation, or evidence of specific instances

of his or her conduct) is inadmissible when offered to prove his

or her conduct on a specified occasion.” (Evid. Code, § 1101,

subd. (a).) Defendant further contends that whether the letters

constituted “[c]haracter evidence or not,” they were irrelevant to

the issue of his intent, motive, or state of mind. Finally, as

noted, he asserts the letters should have been excluded

pursuant to Evidence Code section 352, which provides: “The

court in its discretion may exclude evidence if its probative value

is substantially outweighed by the probability that its admission

will (a) necessitate undue consumption of time or (b) create

substantial danger of undue prejudice, of confusing the issues,

or of misleading the jury.” We address these arguments

seriatim.

As a preliminary matter, we agree with the People that

defendant has not preserved the issue for review because he

failed to argue below that the letters constituted inadmissible

character evidence. (See, e.g., People v. Valdez (2012) 55 Cal.4th

82, 130 (Valdez) [the “defendant’s argument under Evidence

Code section 1101 is not cognizable on appeal because he failed

to object on this basis at trial”]; People v. Demetrulias (2006)

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39 Cal.4th 1, 20–21 (Demetrulias).) At trial, defendant objected

to admission of the letters because, in his view, they were

hearsay, not subject to any exception and their probative value

was substantially outweighed by the danger of prejudice.

Defense did not once assert that the letters constituted

character evidence, or argue that they reflected evidence of a

trait of his character improperly offered to prove “his . . . conduct

on a specified occasion.” (Evid. Code, § 1101, subd. (a).) As such,

defendant cannot be heard now to complain on this ground. (See

Valdez, supra, 55 Cal.4th at p. 130.)

Defendant seeks to excuse his failure to raise a specific

objection by arguing that “[a]ll of the parties were experienced

litigators” and therefore “saw no need to identify for the record

that the letters were character evidence” despite understanding

them to be such. The contention fails to persuade. Experienced

or not, counsel needed to make a timely and specific objection on

the ground asserted on appeal. (See, e.g., Valdez, supra,

55 Cal.4th at p. 130.) Furthermore, insofar as the parties

wrangled over the tendency of the letters to demonstrate

animosity toward law enforcement and therefore establish

defendant’s motive in killing a police officer, such arguments do

not reflect that the litigants and the court all implicitly treated

the letters as character evidence and, as defendant now asserts,

“moved directly to the subject of whether they came in as an

exception under [Evidence Code section] 1101(b).” Although

subdivision (b) of section 1101 refers to evidence of motive (along

with other types of evidence), there is no reason that evidence of

motive necessarily is also evidence of character. Moreover, the

record here makes clear that the prosecution described the

letters as tending to show motive in response to the court’s query

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regarding their relevance, not how they fit under an exception

to character evidence.

On the merits, we are persuaded the trial court did not

abuse its discretion in finding the letters to be relevant

regarding the issue of motive and as such, admissible under

Evidence Code section 1101, subdivision (b). (See, e.g., People v.

Crittenden (1994) 9 Cal.4th 83, 132 (Crittenden) [“The trial court

has broad discretion in determining the relevance of evidence”];

People v. Mickey (1991) 54 Cal.3d 612, 668 (Mickey) [“The

appropriate standard of review for a ruling on admissibility over

an objection of irrelevance and/or undue prejudice is abuse of

discretion”]; People v. Gordon (1990) 50 Cal.3d 1223, 1239

(Gordon) [same].) That provision states: “Nothing in this

section prohibits the admission of evidence that a person

committed a crime, civil wrong, or other act when relevant to

prove some fact (such as motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake or

accident . . .) other than his or her disposition to commit such an

act.” (Evid. Code, § 1101, subd. (b).)

Relevant evidence is that “having any tendency in reason

to prove or disprove any disputed fact that is of consequence to

the determination of the action.” (Evid. Code, § 210.) In this

case, the central fact in dispute was defendant’s state of mind

when he shot and killed Officer Zeppetella. The prosecution

maintained that defendant premeditated and deliberated the

murder of the victim, and, as part of that charge, had to prove

that defendant acted with malice aforethought. The defense, on

the other hand, urged that defendant killed Officer Zeppetella

because defendant was delirious and psychotic due to the

influence of drugs. The letters were relevant to this dispute

“because, if the defense version of events were true, one might

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reasonably expect defendant, upon recovering from the

psychotic episode and realizing the senseless violence he had

done” not to engage in thoughts and words showing him to

contemplate doing further violence to people detaining him.

(People v. Bell (2007) 40 Cal.4th 582, 606 (Bell).) Conversely, if

the prosecution theory of the crime were correct, defendant’s

hostility and willingness to resort to violence against persons in

authority “would more clearly be expected.” (Ibid.) More

directly, although other inferences are possible, one may

reasonably conclude that the letters showed defendant harbored

hostility toward law enforcement, and it was this hostility — not

delusions or psychosis — that drove him to shoot Officer

Zeppetella 13 times. Under such circumstances, we cannot say

that the letters did not have “any tendency” to prove a disputed

fact. (Evid. Code, § 210, italics added.)

Defendant’s arguments to the contrary appear to conflate

the probative value of a piece of evidence with its relevance.

Reprising assertions raised before the trial court, defendant

contends the letters simply “reflected defendant’s attitude

towards his jailers” and so “were not relevant to any issues

involving a patrol officer such as Officer Zeppetella.” Yet, in his

early August letter, defendant referred to “these fucks” and

parenthetically clarified that he meant he was having trouble

with “cops.” Defendant then mentioned “put[ting] a green light

on these fucks.” Likewise, in the later August letter, defendant

once again alluded to “these fucks” and said it was going to be a

“big surprise” when he “send[s] one of them home in a . . .

bodybag.” Whether defendant was simply expressing

frustration with his jailers or manifesting hostility toward law

enforcement more generally in writing the letters was a factual

question for the jury. Likewise, whether the letters reflected

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sentiments defendant held on the day of the crime was a

determination for the jury. Defendant was free to urge the jury

to discount the letters for the reasons he now suggests. At

bottom, although defendant couches his argument as one

concerning the relevance of the communications, his assertions

are really aimed at the weight of the evidence. (See, e.g., People

v. Turner (2020) 10 Cal.5th 786, 805 [“ ‘Relevance’ describes

whether evidence should be heard because it might reasonably

resolve a dispute. ‘Weight’ describes the degree to which the

jury finds the evidence probative”].) Simply because the letters

would have had more probative value if they contained a

“definitive indication” that “the sentiments expressed were long

held” or directly referenced “the crime or . . . Officer Zeppetella”

does not render them irrelevant otherwise.

We are further persuaded that the court did not err in

refusing to exercise its discretion under Evidence Code section

352 to exclude the letters. (See, e.g., Mickey, supra, 54 Cal.3d at

p. 668; Gordon, supra, 50 Cal.3d at p. 1239.) Any potential

prejudice arising from admission of the letters was low given

that the unsavory language and sentiment expressed therein

were not unduly prejudicial, or “ ‘of such nature as to inflame

the emotions of the jur[ors], motivating them to use the

information, not to logically evaluate the point upon which it is

relevant, but to reward or punish one side because of the jurors’

emotional reaction.’ ” (People v. Doolin (2009) 45 Cal.4th 390,

439.) Here, undisputed evidence showed that defendant —

unprovoked by anything the victim did — shot a police officer

13 times, firing when the officer was already down and crawling

away, beat the officer’s head repeatedly, and then absconded in

the patrol car after making sure the victim was no longer

moving. In light of the brutality of the charged crimes,

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admission of evidence that defendant used offensive language in

describing unperformed acts of violence did not create an

intolerable risk of prejudice. (Accord, ibid. [“Although evidence

of D.’s rape and Hamblen’s mistreatment is unpleasant, it paled

in comparison to the testimony from four witnesses that

defendant tried to kill them”]; People v. Eubanks (2011)

53 Cal.4th 110, 146 (Eubanks) [“here, where the charged

offenses included four counts of first degree murder based on

defendant having killed her four children, admission of evidence

that defendant had mistreated her nephew once by rubbing his

face in feces” was not an abuse of discretion].) This conclusion

is strengthened by the fact that the prosecution “did not suggest

to the jury that it consider the [letters] for any improper

purpose,” instead appropriately utilizing the evidence as

demonstrating defendant’s motive and to rebut the defense

theory of mental incapacity. (Demetrulias, supra, 39 Cal.4th at

p. 19; accord Doolin, supra, 45 Cal.4th at p. 439; Bell, supra,

40 Cal.4th at p. 607 [because “the evidence was probative on the

central factual issue of the case, and as its introduction was

clearly targeted to that issue rather than to creation of

prejudicial emotion, we cannot agree with defendant that the

court’s choice to admit it was arbitrary or capricious”].)

Because we find no merit in defendant’s claims of state

evidentiary law, “we reject the associated contention that

introduction of the evidence violated defendant’s constitutional

rights . . . under . . . the United States Constitution.”15 (Bell,

15

Defendant also complains about the prosecution’s

reference to the letters at the penalty phase, arguing that their

assertedly erroneous admission at the guilt phase deprived him

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supra, 40 Cal.4th at p. 607; see also, e.g., Valdez, 55 Cal.4th at

p. 134 [“Because there was no statutory error, his constitutional

claims . . . fail”].)

3. Exclusion of defense witnesses’ testimony

a. Background

Defendant claims the trial court erred when, on three

occasions, it sustained objections to testimony of defense

witnesses “that would tend to prove [defendant] was sincere in

his efforts to end his addiction to drugs.” Two of these instances

occurred during the testimony of Stacey Camacho. During her

direct examination, Stacey was asked, “Did it appear to you that

Adrian was sincere in his efforts to get off of drugs [during the

year preceding the shooting], or did it appear that he was just

playing you?” The prosecutor interposed an objection, stating

“[Y]our Honor: Speculative.” The court sustained the objection,

and defense counsel continued, “If you know, based on your

relationship with Adrian, did it seem to you — were his actions

and words and behavior — did they appear sincere?” The

of a reliable penalty determination. As discussed, we are of the

view that there was no error relating to the trial court’s decision

to admit defendant’s writings. Moreover, the prosecution made

proper use of the letters during the penalty phase, employing

them to suggest that defendant did not experience remorse for

killing the victim. “ ‘[R]emorse is universally deemed a factor

relevant to penalty,” and “[n]o misconduct or constitutional

error occurred” when, as here, “the prosecutor merely

anticipated predictable defense argument urging sympathy for

defendant and sought to negate its mitigating effect by

highlighting defendant’s apparent lack of concern for the

murder victim.” (People v. Bemore (2000) 22 Cal.4th 809, 854–

855 (Bemore).)

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prosecutor again objected on the same ground, and the court

once more sustained the objection.

The second occasion in which the court sustained an

objection concerned Stacey’s testimony regarding a time during

which defendant was being treated at Aurora Hospital. Defense

counsel had asked Stacey, “When he was hospitalized, can you

describe how his demeanor was, what he was physically

depicting to you by his demeanor?” Stacey responded, “He was

really depressed. He was — he was crying a lot because he

wanted to stop using drugs so bad, and he couldn’t. He would

try not to use drugs, and if he would go too long without it, he

would get sick. He couldn’t get out of bed. He said that his bones

would hurt.” At this point, the prosecutor made a hearsay

objection, which was sustained.

The third instance involved the testimony of Lonnie

Roybal, defendant’s coworker. The following exchange took

place during Roybal’s examination:

“Question: Okay. And when [defendant]

talked with you about his drug

problem with heroin, what was his

demeanor like?

“Answer: He cried a couple of times. He was

pretty sad about it. I mean, he

wanted help, you know, off it.

“[Prosecutor]: I’m going to object, your honor, as

hearsay what he said.

“THE COURT: Sustained.

“[Prosecutor]: Move to strike. Ask the jury be

told to disregard.

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“THE COURT: Answer will be stricken. Jury to

disregard.

“Question: When he’d talk with you about his

problems and he’d cry, did you ever

know him to also show evidence of

using, to the extent you might

know?”16

The examination thereafter resumed.

In contrast to the above witnesses, Dr. Ordas was

permitted to testify concerning defendant’s “sincer[ity] in his

efforts to end his addiction to drugs.” In setting up Ordas’s

testimony, defense counsel first asked the doctor to describe the

symptoms an addict experiences when withdrawing from

heroin. Ordas stated, “If . . . not treated, [that is] the addict

doesn’t actually get some more drugs or gets in treatment, then

often it [the withdrawal symptoms] progresses to a much worse

state that can include incredible joint pain — when I say joint,

I don’t mean just a bit — but serious pain in the joints of the

body, diarrhea, vomiting, nausea, headaches, that kind of stuff.”

Counsel subsequently asked Ordas to “describe for the jury

[defendant’s] demeanor and attitude about treatment with you.”

Ordas replied, “In general, he was highly motivated.” Counsel

then directly inquired whether in Ordas’s interactions with

defendant, defendant seemed “sincere in his efforts.” Ordas

reiterated that defendant was sincere most of the time.

16

Defense counsel’s question — referring to the prior

testimony of defendant crying — makes clear it is only the last

part of Roybal’s answer (that defendant “wanted help . . . off

[heroin]”) that was struck by the court.

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b. Analysis

Defendant asserts the trial court erred in sustaining the

prosecution’s objections to the defense witnesses’ testimony. In

examining defendant’s claims, we keep in mind that we review

the trial court’s ruling, “not the court’s reasoning and, if the

ruling was correct on any ground, we affirm.” (People v. Geier

(2007) 41 Cal.4th 555, 582 (Geier); see also, e.g., People v. Chism

(2014) 58 Cal.4th 1266, 1295, fn. 12 [same]; People v. Jones

(2012) 54 Cal.4th 1, 50 (Jones); People v. Fuiava (2012)

53 Cal.4th 622, 668–669 (Fuiava); People v. Zapien (1993)

4 Cal.4th 929, 976 [“ ‘ “No rule of decision is better or more

firmly established by authority, nor one resting upon a sounder

basis of reason and propriety, than that a ruling or decision,

itself correct in law, will not be disturbed on appeal merely

because given for a wrong reason. If right upon any theory of

the law applicable to the case, it must be sustained regardless

of the considerations which may have moved the trial court to

its conclusion” ’ ”].)

Here, although the trial court sustained the prosecution’s

objections on varying grounds (hearsay and speculation), the

testimony regarding whether defendant was sincere in his

efforts to stop using drugs was properly excluded because it was

irrelevant. (See Evid. Code, § 350 [“No evidence is admissible

except relevant evidence”]; see also, e.g., Crittenden, supra,

9 Cal.4th at p. 132 [“The trial court has broad discretion in

determining the relevance of evidence [citations], but lacks

discretion to admit irrelevant evidence”].) Because defendant

did not contest that he shot and killed Officer Zeppetella, the

central issue for the jury was defendant’s state of mind when he

opened fire. Whether defendant was sincere in his attempts to

quit drugs in the year before he shot the officer was at best

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weakly linked to an impaired mental state on the day of the

shooting. Had defendant been sincere about wanting to quit

drugs, that would presumably increase the likelihood that

defendant had actually stopped taking drugs at the time of the

killing, was not then under the influence, and so would be more

likely to harbor malice. But this inference was not available in

this particular case given that all the evidence of defendant’s

supposed sincerity about stopping use of drugs — all sought to

be introduced by the defense — was coupled with evidence that

defendant, in fact, did not cease his drug use. Dr. Ordas, for

example, testified that defendant was “sincere in his efforts” to

quit drugs “most of the time” and yet “always seemed to relapse”

into drug use. Because there was no suggestion that defendant

actually stopped his drug use, the sincerity of his attempts to

cease his addiction had no “tendency in reason to prove or

disprove any disputed fact that is of consequence to the

determination” of defendant’s state of mind. (Evid. Code, § 210.)

As such, testimony intended to show defendant “was sincere in

his efforts to end his addiction to drugs” was properly excluded.

Defendant offers no argument regarding the relevance of

the challenged testimony. Instead, he insists that Stacey should

have been allowed to answer the question about whether

defendant’s “actions and words and behavior . . . appear sincere”

because such question elicited a lay opinion permitted under

Evidence Code section 800. Likewise, he contends that Stacey’s

statement that defendant said “his bones would hurt”

constituted a statement concerning defendant’s “then existing

state of mind, emotion, or physical sensation” admissible under

Evidence Code section 1250. Last, he asserts that Roybal’s

statement that defendant “wanted help . . . off [drugs]” was not

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hearsay but a description of defendant’s demeanor as Roybal

observed it.

Yet, none of the grounds of admissibility defendant posits

allows for the admission of irrelevant evidence. (See Evid. Code,

§ 800 [“If a witness is not testifying as an expert, his testimony

in the form of an opinion is limited to such an opinion as is

permitted by law” (italics added)]; People v. Edwards (2013)

57 Cal.4th 658, 726 (Edwards) [“Even assuming the evidence

defendant sought to elicit from [two witnesses] was admissible

to show defendant’s state of mind, state of mind evidence must

nonetheless be relevant”]; People v. Hernandez (2003) 30 Cal.4th

835, 872 [“A prerequisite to this exception to the hearsay rule

[created by Evidence Code section 1250] is that the declarant’s

mental state or conduct be factually relevant”]; Geier, supra,

41 Cal.4th at p. 586 [similar]; Evid. Code, § 702, subd. (a)

[providing that “the testimony of a witness concerning a

particular matter is inadmissible unless he has personal

knowledge of the matter” but does not otherwise establish that

testimony is admissible whenever a witness has personal

knowledge of the matter].) Evidence Code section 350 makes

clear that “[n]o evidence is admissible except relevant evidence,”

and defendant has not cleared this hurdle for admissibility.

Furthermore, even assuming that the trial court erred in

excluding portions of Stacey’s and Roybal’s testimony, any error

was harmless given what Dr. Ordas told the jury. (Accord,

Edwards, supra, 57 Cal.4th at p. 726.) Although Stacey’s

statement that defendant said his bones would hurt when he

stopped using drugs drew an objection, Ordas testified to the

severe joint pain, along with other serious symptoms, that

someone like defendant would experience when withdrawing

from drugs. Ordas further testified that defendant was “highly

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motivated” and sincere, although unsuccessful, in his efforts to

quit taking drugs. And as mentioned, any inference raised by

evidence of defendant’s supposed sincerity in stopping drug use

was adverse to defendant’s case of mental impairment on the

day of the shooting. Under such circumstances, it was not

“reasonably probable that a result more favorable to [defendant]

would have been reached” if the testimony from Stacey and

Roybal had been admitted. (Watson, supra, 46 Cal.2d at p. 836.)

4. Asserted prosecutorial misconduct

a. Background

During closing argument, the prosecutor criticized

Dr. Stewart’s opinion and methodology at some length. The

prosecutor first highlighted Stewart’s failure to produce a report

or timely render an opinion and then stated, “[h]e does not

review the entire file, which is a violation of the ethics and

conduct of forensic psychiatry.” Defense counsel objected that

the prosecutor was testifying. The court asked counsel to clarify,

and counsel stated, “These are not facts in evidence.” The

prosecutor responded, “Dr. Matthews,” whereupon the court

overruled the objection.

The prosecutor then told the jury, “Check Dr. Matthews’

testimony. Dr. Mathews told us — remember that — I won’t

take a case unless I can have the whole file, because it isn’t

right.” The prosecutor further commented, “None of us can be

charged with knowing what the ethical obligations of forensic

psychiatry [are]. But it was Dr. Stewart’s responsibility to call

[defense counsel] up and say: Excuse me. I cannot consult in a

case unless I get the run of the file. Because [counsel] are

advocates, and we may inject our own bias into the materials

[we send].”

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b. Analysis

Defendant contends the prosecutor committed prejudicial

misconduct by arguing matters outside the record in stating

that Dr. Stewart’s failure to review the entire file was “a

violation of the ethics and conduct of forensic psychiatry.”

Certainly, “[a] prosecutor commits misconduct by referring in

argument to matters outside the record.” (People v.

Cunningham (2001) 25 Cal.4th 926, 1026 (Cunningham).)

Nonetheless, “the prosecution has broad discretion to state its

views regarding which reasonable inferences may or may not be

drawn from the evidence” (ibid.) and “ ‘[w]hether the inferences

the prosecutor draws are reasonable is for the jury to decide’ ”

(People v. Letner and Tobin (2010) 50 Cal.4th 99, 179). “To

constitute a violation of the federal Constitution, prosecutorial

misconduct must ‘ “so infect[] the trial with unfairness as to

make the resulting conviction a denial of due process.” ’

[Citations.] Conduct by a prosecutor that does not render a

criminal trial fundamentally unfair is prosecutorial misconduct

under state law only if it involves ‘ “the use of deceptive or

reprehensible methods to attempt to persuade either the court

or the jury.” ’ ” (People v. Benavides (2005) 35 Cal.4th 69, 108.)

Here, the prosecutor’s comment was based on

Dr. Matthews’s testimony. Matthews — a board certified

forensic psychiatrist — discussed the standards for forensic

psychiatry. He first described a forensic psychiatrist as “a

psychiatrist . . . who puts their expertise at the service of the

legal system,” stating that “[t]he purpose of forensic psychiatry

is to find the truth and to learn enough about the situation so

that you can be of service in some way to the judicial system.

It means that rather than having one’s loyalty to the patient or

the person you’re examining, that your major loyalty is to

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principles of honesty and principles of objectivity.” Matthews

was subsequently asked whether “it [was] important . . . that a

forensic psychiatrist be allowed to basically have at the whole

body of document” and responded that he could not do the work

without having access to the entire record.

The prosecutor’s comments did not infect the trial with

unfairness that rises to the level of prejudicial error. When

viewed in context, the prosecutor made clear that he was basing

his argument on Dr. Matthews’s testimony and not outside

knowledge regarding “the ethical obligations of forensic

psychiatry.” Not only did the prosecutor’s argument following

the challenged comment closely track Matthews’s testimony,

but the prosecutor also expressly told the jury to “[c]heck

Dr. Matthews’ testimony” and “remember” “[w]hat

Dr. Matthews told us.” Furthermore, the prosecutor

acknowledged that “[n]one of us [advocates] can be charged with

knowing what the ethical obligations of forensic psychiatry

[are],” indicating he did not have independent knowledge of “the

ethics and conduct of forensic psychiatry.” It was thus not

reasonably likely that the jury construed the prosecutor’s

comments in the objectionable manner defendant suggests.

(See, e.g., Cunningham, supra, 25 Cal.4th at p. 1001.)

5. Alleged errors under Sanchez

In his supplemental briefing, defendant argues that the

testimony of two witnesses — Dr. Matthews and Officer

Carnahan — violated the rule set forth in People v. Sanchez

(2016) 63 Cal.4th 665 (Sanchez) concerning hearsay and expert

testimony.

In Sanchez, we held that “[i]f an expert testifies to case-

specific out-of-court statements to explain the bases for his

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opinion, those statements are necessarily considered by the jury

for their truth, thus rendering them hearsay.” (Sanchez, supra,

63 Cal.4th at p. 684.) “Like any other hearsay evidence,” such

statements must be “properly admitted through an applicable

hearsay exception” or “an appropriate witness.” (Ibid.)

Otherwise, the admission of such statements constitutes error.

Depending on whether the statements are testimonial, the

prejudicial effect of their admission is assessed under either the

standard articulated in Chapman, supra, 386 U.S. at page 18 or

that found in Watson, supra, 46 Cal.2d at page 818. (See, e.g.,

People v. Navarro (2021) 12 Cal.5th 285, 310 (Navarro).)

The failure to object at trial before Sanchez was decided

does not forfeit a claim raising so-called Sanchez errors. (Perez,

supra, 9 Cal.5th at p. 9.)

a. Dr. Matthews’s testimony

Regarding Dr. Matthews’s testimony, defendant argues

the doctor ran afoul of Sanchez in conveying to the jury “that he

relied on inadmissible hearsay to form his opinion regarding

defendant’s mental state.” But if all Matthews did was to tell

the jury that he relied on materials sent to him by the

prosecution in forming his opinion, then Sanchez does not

prohibit such testimony.

As we stated in Sanchez, “[a]ny expert may still rely on

hearsay in forming an opinion, and may tell the jury in general

terms that he did so.” (Sanchez, supra, 63 Cal.4th at p. 685,

italics in original; see also id. at p. 686 [recognizing that under

the court’s holding, an expert may “tell[] the jury the expert

relied on additional kinds of information that the expert only

generally describes”].) The limitations that Sanchez placed on

expert testimony concern case-specific information that an

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expert relates to a jury, not materials upon which the expert

relies. (See, e.g., id. at p. 685 [stating that experts cannot

“present, as facts, the content of testimonial hearsay

statements” and “only when a prosecution expert relies upon,

and relates as true, a testimonial statement would the fact

asserted as true have to be independently proven to satisfy the

Sixth Amendment” (first italics added)]; id. at pp. 676, 684.)

Regarding the sources upon which the expert relies, Sanchez

recognizes that the expert “may still rely on hearsay” and the

expert is permitted “to relate generally the kind and source of

the ‘matter’ upon which his opinion rests.” (Id. at pp. 685–686.)

Here, Dr. Matthews told the jury very little of the contents

of the materials he reviewed in forming his opinion. This was

deliberate. Before Matthews testified, the court had an

extensive discussion with the parties regarding the scope of the

expert’s testimony. Defense counsel argued at length that

Matthews should not be able to relate to the jury details gleaned

from defendant’s criminal record. In contrast, counsel accepted

that Matthews should be able to rely on such records in forming

his opinion, specifically the opinion that defendant had

antisocial personality disorder. Consistent with Sanchez,

counsel also conceded that Matthews “can say what he relied on”

but “should not be allowed to speak to hearsay.” The court

generally agreed with counsel, ruling, for instance, that the

expert is “not allowed to talk about the details of the convictions,

how many, what they are” but what “he can say is I’ve reviewed

the file, and it does show a criminal history.”

To ensure that Matthews’s testimony would conform to

the court’s rulings, the prosecutor asked leading “yes-no”

questions of the witness. A typical exchange is as follows:

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“Question: [By the prosecutor] Okay. All

right. So let me just kind of

walk you through it, then.

“All right. And these are a

series of yes-no questions,

Doctor; okay?

“Answer: [By Matthews] Yes.

“Question: So part — so the first one we’ve

talked about in the category A,

those seven items [that are part

of the diagnostic criteria for

antisocial personality disorder],

three of which have to be met,

you saw a failure to conform to

social norms with respect to

lawful behavior, repeatedly

performing acts that are

grounds for arrest; is that right?

“Answer: Yes.

“Question: You also determined through

your review of the records that

the defendant lied repeatedly

about his date of birth and

name and has several aliases; is

that right?

“Answer: Yes.”

The prosecution followed a similar pattern of eliciting yes-

no answers when questioning Dr. Matthews about the sources

of information upon which he relied. The inquiry confirmed that

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the prosecution sent Matthews “35 three-inch binders full of

documents,” consisting of “16 to 17,000 pages of stuff.” The

prosecution then asked if “those documents included — and I’m

going to talk generically here, all right — rehab records, police

records, a wide variety of records like that, correct?” Matthews

answered, “Yes,” and conveyed no further information to the

jury.

Against this backdrop, it is perhaps telling that defendant

does not specifically identify the portions of Dr. Matthews’s

testimony he asserts conveyed inadmissible case specific

hearsay. Instead, defendant essentially contends that three

areas of Matthews’s testimony constituted prejudicial error

under Sanchez: Matthews improperly opined that defendant

was not in a drug-induced delirium when he shot Officer

Zeppetella; Matthews improperly opined that defendant had an

antisocial personality disorder that accounted for defendant’s

behavior at the time of the crime; and Matthews emphasized

that he based his opinions on a swath of documents beyond those

considered by defense expert Dr. Stewart. Each of these points

was independently supported by properly admitted evidence,

such that either there was no Sanchez violation or that any

violation was harmless even under Chapman’s “beyond a

reasonable doubt” standard.17

17

In his reply brief, defendant contends that “the only way”

an expert may rely on case-specific hearsay that has been

admitted through an appropriate witness is to “ ‘assume its

truth in a properly worded hypothetical question in the

traditional manner.’ ” Although we have approved of such an

approach, we have not limited an expert’s discussion to

hypothetical questions. We stated in Sanchez, for example, that

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First, Dr. Matthews opined that defendant was not in a

drug-induced delirium when he shot Officer Tony Zeppetella. In

reaching this conclusion, Matthews relied in part on the facts of

the offense, stating, for example, that an individual suffering

from delirium could not drive a car, provide relevant

identification to a police officer during a traffic stop, reload a

gun, drive to his mother-in-law’s home, or hide evidence inside

a vacuum cleaner bag because all of these steps required a

presence of mind inconsistent with delirium. He opined, too,

that defendant’s “normal demeanor” when examined by health

care workers immediately after the crime indicated defendant

was not suffering from delirium because “[p]eople who are

delirious would not know their surroundings and would not be

able to answer questions intelligently and give a good medical

history and behave cooperatively.” Each of these facts was

independently established in prior testimony; the facts

themselves were not contested, and the jury was able to weigh

Matthews’s opinion (that the facts indicated defendant did not

suffer from delirium) against Dr. Stewart’s opinion (that the

facts indicated defendant did suffer from delirium). Any

Sanchez error that related to Matthews’s description of these

facts was not prejudicial.

Second, Dr. Matthews opined that defendant suffered

from antisocial personality disorder, and that this disorder

explained defendant’s behavior at the time of the crime.

Matthews based this diagnosis on defendant’s “failure to

a jury considers certain facts for their truth “[w]hen an expert is

not testifying in the form of a proper hypothetical question and

no other evidence of the case-specific facts presented has or will

be admitted . . . .” (Sanchez, supra, 63 Cal.4th at p. 684, italics

added.)

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conform to societal norms with respect to lawful behaviors

indicated by repeatedly performing acts that are grounds for

arrest,” that he “lied repeatedly about his date of birth and

name,” that he “showed irresponsible work behavior and had

been unemployed for significant periods of time,” and that he

had been “using heroin and methamphetamine despite being

made [aware] of their high risk of harmful consequences.”

Although defendant appears to object to the bases for

Matthews’s diagnosis as inadmissible case-specific hearsay, the

diagnosis itself appears uncontested. Indeed, defendant’s own

expert, Dr. Ordas, also testified that defendant suffered from

antisocial personality disorder. Further, each basis of

Matthews’s diagnosis was independently established by other

admissible evidence introduced at trial, including testimony

from defendant’s wife, Dr. Ordas, Dr. Stewart, and the officers

investigating the offense. Defendant’s wife, for example,

testified that she knew defendant had a drug problem “for a long

time,” that he used the alias “Roberto Vasquez,” and that he was

not working for “a couple of months” before killing Officer

Zeppetella. Any Sanchez error related to Matthews having

discussed that diagnosis was harmless given testimony by other

witnesses.

Finally, defendant asserts Dr. Matthews bolstered his

credibility by improperly referring to the documents and records

on which he relied. We are not convinced that Matthews went

further than simply “tell[ing] the jury in general terms” that he

relied on hearsay in forming his opinion. (Sanchez, supra,

63 Cal.4th at p. 685.) To the extent that he did, any error is

harmless because, as discussed above, the basis for each of

Matthews’s opinions was independently established by other

admissible evidence introduced at trial.

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b. Officer Carnahan’s testimony

In addition to challenging Dr. Matthews’s testimony,

defendant contends Officer Carnahan’s opinion that defendant

possessed narcotics for sale was based on inadmissible

hearsay — Detective Morgans’s statement to Carnahan that he

(Morgans) found a scale in defendant’s car. Morgans had

testified about the items he discovered in defendant’s car

(including a cell phone and syringes); he did not testify about

having discovered a scale. As such, and as the Attorney General

concedes, Carnahan’s testimony regarding the scale was error

under Sanchez.

The error was harmless, however. Defendant’s sole

argument related to prejudice is that the scale “was the key

element of [Officer Carnahan’s] conclusion that the drugs . . .

were possessed for sale.” This is not so. The scale was but one

of many bases for Carnahan’s conclusion. The other bases

included items Carnahan personally seized from defendant’s

house, including the baggies and balloons used to package

narcotics for sale, and the ammunition indicating defendant had

armed himself for protection (a tactic Carnahan stated was

common for those selling narcotics). Carnahan also stated that

the cell phone and syringes found in defendant’s car supported

his opinion. Because Detective Morgans testified at trial to

recovering these items, Carnahan could properly rely on the

detective’s testimony. (See, e.g., Sanchez, supra, 63 Cal.4th at

p. 686.) Carnahan stated that the “totality of what was

recovered” in defendant’s home and car led to his opinion. This

evidence was sufficient to support the officer’s conclusion. (See,

e.g., People v. Newman (1971) 5 Cal.3d 48, 53 [experienced

officers may give their opinion that narcotics are held for

purposes of sale based on matters including packaging,

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quantity, and normal use of an individual], disapproved on

another ground in People v. Daniels (1975) 14 Cal.3d 857, 862.)

Additionally, Roybal, defendant’s coworker, testified that

defendant told Roybal he sold drugs, including heroin. The jury

was therefore presented with evidence of narcotics sales, and

testimony that defendant admitted he sold narcotics.

In light of these facts, we may conclude beyond a

reasonable doubt that the error in admitting Officer Carnahan’s

statement regarding the scale did not contribute to the jury’s

verdict finding defendant guilty of possession of narcotics for

sale.

6. Cumulative effect of asserted errors

Defendant argues that all of the alleged errors occurring

at the guilt phase cumulated in his not “receiv[ing] a fair trial

on the issue of his mental state at the time of the shooting” and

urges us to reverse his convictions on this basis. We have found

or assumed errors in three areas: those relating to the court’s

order that defendant submit to an examination by

Dr. Matthews; the prosecutor’s remarks regarding the ethics of

forensic psychiatry; and the testimony implicating Sanchez,

supra, 63 Cal.4th at page 665. We do not find these errors to be

cumulatively prejudicial.

“Defendant was entitled to a fair trial but not a perfect

one.” (Cunningham, supra, 25 Cal.4th at p. 1009.) Because

“[t]he few errors that occurred during defendant’s trial were

harmless, whether considered individually or collectively”

(ibid.), we reject defendant’s contention that his constitutional

right to a fair trial was violated.

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B. Penalty Phase Issues

1. Excusal of prospective juror

a. Background

Over defendant’s objection, the trial court excused

Prospective Juror No. 70 for cause because of her views on the

death penalty. Juror No. 70 had indicated in her questionnaire

that she was “somewhat opposed” to the death penalty. When

asked “[f]or what kinds of crimes, if any, do you believe the death

penalty should be imposed,” she wrote, “Perhaps, serial[] killers

& serial rapists that are beyond any sort of redemption.” The

juror also gave responses indicating that although she was

willing to consider evidence offered by defendant favoring life in

prison, she was unwilling to consider evidence offered by the

prosecution to persuade jurors to vote for the death penalty.

Both the defense and prosecution questioned the

prospective juror regarding her position on the death penalty.

During examination by defense counsel, Prospective Juror No.

70 stated, “I’m not necessarily in support of the death penalty.

I think too many innocent people have been put to death. . . . If

one person is put to death, that’s too many for me.” She also

reiterated that “[i]t would be difficult for me to put somebody to

death.” In response to the question whether “in some cases you

could see it [the death penalty] apply,” she replied, “It would be

difficult for me. I mean, it would have to be somebody like —

it’s hard — I know there’s evil that exists in the world . . . but it

would have to be, you know, a serial killer that . . . beyond any

kind of reasonable doubt has committed horrible crimes, you

know, violent crimes against people.” Defense counsel reminded

the prospective juror that on her questionnaire she had said the

death penalty “was appropriate for serial killers and heinous

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people who are unredeemable” and asked “so . . . you do see it

[as] appropriate for some people.” She responded: “Well, yeah.

Like I said, I believe evil does exist in our world, but I think

that’s not a whole lot that would qualify as truly evil.”

Defense counsel subsequently asked if Prospective Juror

No. 70 was “open to hearing [aggravating] evidence.” She

responded, “Well, I’m open to hearing it. It would take an awful

lot to convince me. I just can’t . . . imagine myself condemning

somebody to die.” Counsel followed up with similar questions,

and the prospective juror confirmed that she was “open to

listening to both sides.”

The prosecutor likewise probed the prospective juror

about circumstances under which she could vote for the death

penalty. Upon being asked, “if it’s not a serial killer, . . . you

can’t really conceive of imposing the death penalty outside that,”

she answered: “I think the person themselves would have had

to have given up on themselves too.” The prosecutor queried if

“realistically” there was a way for him to convince the

prospective juror “that death would be a proper verdict in a case

where there’s no allegation there’s more than one dead person.”

She replied, “It would be very difficult.” She nonetheless

clarified that she could not “be a hundred percent sure.

I honestly — I mean, I could imagine coming across someone

who is without any merit whatsoever and maybe deserves to die,

but I don’t know if it’s this particular defendant.” Prospective

Juror No. 70 also agreed with the proposition that

“participat[ing] in rendering a death verdict” “endorses the

death penalty side of the system.” The prospective juror did not

think she would “want to do that” because her “general

philosophy would sort of impair or prevent [her] from finding

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death” as part of a “system of death penalty law that [she does

not] think is fair.”

The court held a sidebar conference with the attorneys,

opening the discussion by stating, “I am inclined to excuse

[Prospective] Juror[] 70 . . . for cause.” When asked if she

wished to be heard, defense counsel replied, “With regard to 70,

I think it’s — it’s one of those borderline questions.” Defense

counsel emphasized that the prospective juror was “open to

listening to see” if defendant was “the kind of defendant that

would deserve the death penalty.” She also disputed that “the

only type of person [Prospective Juror No. 70] could describe

that would fit that category [of somebody deserving of the

ultimate punishment] is a serial killer,” arguing that the

prospective juror also included in that category “someone so evil

and so unredeemable.” The prosecutor interjected, contending

the prospective juror’s answers indicated that her feelings would

“substantially impair [her] from reaching a verdict of death.”

The court agreed, stating, “she even went further. I have down

a quote. Quote: I can’t imagine condemning someone to die.”

The court elaborated that in its view, the juror was “saying

hypothetically there may be one person out there — if Ted

Bundy is in here, I may consider [the death penalty], but I really

have such strong feelings, I can’t imagine having to be in that

position.” The court thus concluded, “we’re in a Witt situation”

and granted the prosecution’s challenge for cause.

b. Analysis

Defendant asserts the court’s excusal of Prospective Juror

No. 70 violated his right to due process and an impartial jury

guaranteed by the federal Constitution. We disagree.

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“Under federal and state law, a prospective juror may be

excluded for cause where his 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.” ’ ”

(People v. DePriest (2007) 42 Cal.4th 1, 20 (DePriest); see also

Wainwright v. Witt (1985) 469 U.S. 412, 420, 424 (Witt).) Such

a standard “does not require that a juror’s bias be proved with

‘unmistakable clarity.’ ” (Witt, supra, 469 U.S. at p. 424.)

Indeed, “the question [to determine juror bias] is not whether a

reviewing court might disagree with the trial court’s findings,

but whether those findings are fairly supported by the record.”

(Id. at p. 434.) “[W]here answers given on voir dire are equivocal

or conflicting, the trial court’s assessment of the person’s state

of mind is generally binding on appeal.” (DePriest, supra,

42 Cal.4th at p. 21.) “Accordingly, in such situations where the

trial court has had an opportunity to observe the juror’s

demeanor, we uphold the court’s decision to excuse the juror so

long as it is supported by substantial evidence.” (People v.

Spencer (2018) 5 Cal.5th 642, 659 (Spencer).)

Substantial evidence supports the trial judge’s decision to

excuse Prospective Juror No. 70. As the court noted, the juror

stated during voir dire that she “can’t imagine myself

condemning somebody to die.” Furthermore, she repeatedly

made clear that it would be “difficult” or “very difficult” for her

to vote for the death penalty. (See People v. Duenas (2012)

55 Cal.4th 1, 12 [“Comments that a prospective juror would

have a ‘hard time’ or find it ‘very difficult’ to vote for death

reflect ‘a degree of equivocation’ that, considered ‘with the

juror’s hesitancy, vocal inflection, and demeanor, can justify a

trial court’s conclusion . . . that the juror’s views would

“ ‘prevent or substantially impair the performance of his duties

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as a juror . . . .’ ” ’ [Citation.] On appeal, such a finding binds

us”]; People v. Poore (2022) 13 Cal.5th 266, 296 [Although “ ‘it is

true that a prospective juror is not disqualified merely because

she would find it difficult to impose the death penalty’

[citations], these panelists did not merely note the difficulty of

reaching a penalty decision. They went on to question their

actual ability to vote for death under any circumstances. ‘When

a prospective juror repeatedly says he does not know whether

he could realistically impose the death penalty, we will not

second-guess the trial court’s determination that the juror is

substantially impaired’ ”].) As indicia concerning how difficult

it would be for her, the juror emphasized her feeling that “too

many innocent people have been put to death” and “[if] one

[such] person is put to death, that’s too many for me.” She

followed by observing that she would not want to participate in

rendering a death verdict because to do so would be to endorse

a system of death penalty law that she believed to be unfair.

Prospective Juror No. 70 also described in her questionnaire

only a set of narrow circumstances not presented in this case —

“serial[] killers & serial rapists that are beyond any sort of

redemption” — as a situation in which she could “perhaps” view

the death penalty as appropriate.

The prospective juror’s written answers further bolster

the inference that she could not consider evidence presented to

support a verdict of death. In contrast to her unequivocal

answer that she would take into account “evidence offered by

the defendant favoring life in prison without the possibility of

parole,” the juror indicated that she could only “possibly”

“consider and give weight to any evidence offered by the

prosecution favoring the death penalty.” She further elaborated

that even if the “evidence is overwhelming” she could only

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“maybe” consider it. Likewise, although the juror was clearly

willing to “consider evidence the defendant introduces about his

life and history in support of life in prison without the possibility

of parole,” she was decisively unwilling to consider “evidence the

prosecution introduces about the defendant and his past to

arrive at a verdict of death.”

Under such circumstances, we conclude the trial court did

not err in excusing Prospective Juror No. 70. (Accord, e.g.,

Fuiava, supra, 53 Cal.4th at pp. 660–661 [“the trial court could

reasonably view Prospective Juror L.’s own statements that she

could be fair in assessing guilt but not penalty, that she would

have a ‘real problem’ voting for death, and her agreement that,

although perhaps not impossible, it would be ‘very unlikely’ she

ever would vote for death, as establishing that her ability to

follow the law would be substantially impaired”]; People v.

Williams (2013) 56 Cal.4th 165, 181 (Williams) [deferring to the

trial court’s ruling sustaining a challenge for cause when the

prospective juror “repeatedly expressed extreme discomfort with

the prospect of imposing the death penalty, telling the

prosecutor at one point that even though he had voted for the

death penalty, if personally called upon to carry it out, ‘I’d have

to pass’ ”]; People v. Thomas (2011) 51 Cal.4th 449, 471 [similar];

Jones, supra, 54 Cal.4th at p. 43 [similar]; DePriest, supra,

42 Cal.4th at p. 22 [similar]; People v. Lancaster (2007)

41 Cal.4th 50, 80 [upholding a trial court’s dismissals when the

prospective venirepersons “gave answers during voir dire

indicating there was only a slim possibility they could vote for

the death penalty, regardless of the state of the evidence”];

Spencer, supra, 5 Cal.5th at p. 661 [citing cases to support the

proposition that it is not error to excuse members of the venire

when their responses indicated that scenarios in which they

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could vote for death did not reflect circumstances in the present

trials]; People v. Jones (2017) 3 Cal.5th 583, 615 [similar]; People

v. Tully (2012) 54 Cal.4th 952, 999–1000 (Tully) [similar].)

It is true that Prospective Juror No. 70 also gave answers

that were somewhat more supportive of her ability to consider

aggravating evidence and that arguably suggested she would

not categorically exclude the possibility of imposing the death

penalty in this case. But this is simply to say that the

prospective juror’s answers were equivocal. As discussed, “the

proper inquiry in determining whether [Witt] error occurred is

not whether some evidence exists that the prospective juror

could vote for the death penalty.” (Spencer, supra, 5 Cal.5th at

pp. 660–661.) “The standard is instead whether substantial

evidence exists to support the trial judge’s determination that

the juror was substantially impaired in terms of his [or her]

ability to do so.” (Id. at p. 661.) Here, the trial judge was “left

with [such a] definite impression that a prospective juror would

be unable to faithfully and impartially apply the law” that she

was first to suggest that Prospective Juror No. 70 should be

excused. (Witt, supra, 469 U.S. at p. 426.) Defense counsel, too,

conceded that whether the juror was substantially impaired was

a “borderline question.” The most that could be said, therefore,

is that the prospective juror was ambivalent in her responses.

Such equivocation “requires that we defer to the trial court’s

assessment of her initial and ultimate state of mind.” (Jones,

supra, 54 Cal.4th at p. 43.) In light of such deference, we

conclude the trial court did not err in excusing the prospective

juror.

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2. Rulings on scope of cross-examination

a. Background

Before the penalty phase began, the trial court held a

hearing to discuss evidence the parties intended to introduce.

(See Evid. Code, § 402, subd. (b).) The defense indicated that it

planned to call defendant’s mother, sister, grandfather, and

wife. The defense made the following offer of proof regarding

these witnesses.

With respect to defendant’s mother, Diana Gil, defense

counsel stated that the intention was for Gil “to say where and

how [defendant] grew up and that she’s his mother, and she

loves him.” Upon hearing this offer of proof, the prosecutor

referenced defendant’s juvenile record and remarked, “[u]ntil

now we have . . . sanitized this case from that, but depending on

what she says . . . [t]he door opens . . . and I get to start talking

to her about what happened as he was growing up.” The trial

court agreed, indicating that if Gil “start[s] talking about what

a good child he was . . . that’s going to open the door to a lot of

this information coming in about his criminal record.” Defense

counsel responded, “I agree if we try to paint a picture that he

was a good boy, then bad boy comes in.” Counsel emphasized

that the defense would not present defendant as “a good student,

. . . a good child,” and “well behaved, because we recognize that

would open doors.” Instead, defense counsel asserted, his

mother’s testimony would simply “paint a picture of this is a

mother who’s going to be affected and . . . regardless of what

[jurors] know about her son, she loves him.” Counsel also stated

that a photograph of defendant at age 15 would be introduced

through Gil’s testimony. The court indicated it would allow the

photograph and that neither the photograph nor Gil’s testimony,

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as proffered, would subject the witness to cross-examination

about defendant’s juvenile record.

Defense counsel next discussed the anticipated testimony

of defendant’s sister, Tatiana. The offer of proof concerning that

testimony, counsel explained, “is that she loves him and that

she’s his little sister and where she fits in the family. Rather

brief.” The court ruled that it would allow Tatiana to testify,

finding her testimony not to be cumulative. It further clarified

that if Tatiana “wants to say in general he’s my brother and

I love him, then it would not open the door” to rebuttal evidence.

However, if Tatiana testified to “details [about] what a

wonderful person [defendant has] been, character evidence

about things he’s done for the family, for example, through his

life . . . that would open the door to impeachment with this

information that we have discussed.” Defense counsel

responded, “Thank you.”

Defense counsel continued the discussion with an offer of

proof concerning the testimony of defendant’s grandfather, Jose

Gil Torres. According to counsel, Torres would “draw [a] picture”

for the jury that defendant and his brother grew up with their

grandfather on a ranch before they began school and that To

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