People v. Tully

July S030402. 2012.] [No. PEOPLE,

THE Plаintiff and Respondent, TULLY, Appellant. RICHARD CHRISTOPHER Counsel Court; Thomson, Thomson & the Supreme

James S. under appointment by Stetler, Stetler; Jolie Defendant and Saor E. Appellant. Lipsig General, Graves, Harris, Jo Chief D. Lockyer Attorneys Mary Bill and Kamala General, General, Assistant Attorney Assistant Gerald A. Engler, Attorney General, Yu, J. for Plaintiff Attorneys Ronald S. Matthias and Margo Deputy and Respondent.

Opinion BAXTER, J. Richard amended charged information An Code, 187) (Pen. with the 1986 murder of Olsson Christopher Tully Shirley § (id., 1203.065, (b)).1 assault with intent to commit subd. rape § circumstance com- information a that the murder was also alleged special and, counts, that defendant mitted in the of a as to both commission burglary wit; 190.2, (§§ former dangerous used a and knife. deadly weapon, (a)(17)(vii), (b).)2 subd. subd. Olsson, a at the Livermore Veterans Administra-

Shirley nurse 59-year-old center, or early tion medical was murdered sometime in the brutally night and 24 to went to her residence morning hours of 1986. A coworker July bed; A had been 23 times. body discovered Olsson’s nude her she stabbed knife on the that abutted bloody golf and Olsson’s were found course purse house. her was a neighbor’s her The screen to bathroom window found in later, a on the knife the victim’s. Several months backyard. The blood was on the matched to defendant. Defend- knife were fingerprint palm print ant, residence, who had lived two houses from Olsson’s admitted down she and had he had been at the victim’s house the was murdered night police her, committed man. had sex with but claimed murder was another 1 statutory All further are to the Penal Code. unlabeled references 190.2, designations of subdivi changed A amendment to the statute section (xi) (A) (K); (a)(17)’s (i) roman to the letters subparagraphs sion from numerals 190.2, subdivi designation burglary-murder current circumstance section special for the (a)(17)(G). sion A convicted defendant as and found true the charged circum- special stance and death, It then weapon allegations. returned a verdict which the trial court declined to modify. This is automatic. We affirm appeal judgment.

I. Facts

A. Guilt Phase

1. Prosecution evidence

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

investigation 3. In Olsson worked Sandy as a July registered nurse at the Veterans Administration medical center in Livermore. Her was specialty ostomy— who had caring people colostomies—and she also worked as a charge supervising nurse. she Typically, worked Monday through Friday, arriving sometime between 7:00 and 7:30 a.m. and leaving 4:00 Olsson was p.m. children, old and divorced years with two adult Sandra daughter, Walters, son, and a Elbert Walters III. For much of the “Tripp” year she lived Street, alone at 1556 from Hollyhock October March except through when father, her Clifford came Sandberg, from Kansas and with her. stayed Olsson’s residence backed up against Golf Course. Springtown of Olsson that portrait from the emerged of various wit- testimony nesses set habits. When person fairly she arrived home from work, she locked the front door with a chain lock. After her she changing top, herself a poured of Coca-Cola glass and added a little bourbon to it. When visited, her father he and Olsson ate dinner together watched television. She usually rejected his suggestions do in the they something evenings Instead, because she tired from work. she went into her bedroom with mail, her drink to read her magazines, Olsson’s newspaper. daughter testified that Olsson went to bed sometime between 9:00 and 10:00 She p.m. first went her through house and made sure all the windows and doors were locked. Olsson awas modest woman who in a of men’s flannel slept pair pajamas.

Olsson’s father testified that his annual visits to during she daughter, never had male visitors. Her social life consisted of occasion- apparently out to dinner with ally going work friends. given Ms. Shirley Sandy by everyone Olsson’s name was but was called she but her father. at Veterans work arrived for

On Olsson Thursday, July She around 4:00 at a.m. and left at p.m. Administration medical center 7:00 nurse, Gifford Gifford. testified to her car with another Deborah walked that weekend Topeka in a mood because she was good flying Olsson was Olsson’s across-the- birthday. for a celebration of her father’s 85th family Freeman, between 4:15 arrive home sometime street Elden saw her neighbor, at room, leave her den Freeman Olsson and 4:45 From his saw living p.m. At at about turn off in room 10:00 p.m. about 8:00 then p.m. light that he could see. there were other on at her house lights no point, Rocke, a.m., in on the side At lived a house opposite about 4:00 Linda who Olsson, She took course was awakened her by dog’s barking. from golf In her family. backyard, outside to it from the rest her waking dog keep It had not in her Rocke found what like a small bathroom screen. been looked earlier. backyard next 25. This was July failed to at work the morning,

Olsson appear by colleague unusual because was described as reliable” her “very Olsson a.m., called her Maxine Gatten. When Olsson failed to 7:25 Gatten by appear Later, did an tried unsuccessfully residence but answer. she get again nurses; they reach She the matter with other Olsson discussed phone. sick, chest worried that Olsson be she had about complained because might nurse, left the Eventually, Gatten matter of Olsson’s absence another pains. Barbara Green.

Green and Olsson had a close shared an office relationship. They ate lunch her lunch to work in brought paper Olsson frequently together. fruit, like sack that she her lunch sometimes included in Her kept purse. for Green was Kansas next grapes. flying day aware Olsson was When, a.m., Olsson her father’s at about Gatten told Green that birthday. 8:45 she, too, work, had Green became concerned.” After “[v]ery not reported Green failed to reach drove to Olsson’s residence. Olsson Green by phone, her found car in the and the front of Olsson’s driveway newspaper parked door, bell, knocked, and house. She went to front called Olsson’s rang name, looked through glass but did not receive a She response. panel house; front of there was no movement inside. course. the back abutted golf

Green went around to where house However, she noticed The windows and the door were locked. sliding own, window She not reach it on her so she pulled bathroom could open. the stand. She was still beneath and climbed onto wooden stand plant enlisted the Eventually, help to see the window. Green unable through Olsson’s Freeman. neighbor,

Freeman knew well Olsson that she would to enough ask him water her and watch her house when she on been plants was vacation. He had expecting Olsson to him the to her bring key house so he could of it while take care she inwas Kansas. As of Friday morning, day before she was she leaving, and, not done had so. Green went to Freeman’s house after explaining Olsson, she had been reach to trying asked use the Green called phone. call, When there no 911. was from the and response she Freeman returned to Olsson’s house. With Freeman’s she managed get high help, enough mirror, to see the bathroom window. In the saw through bathroom she bed; Olsson’s reflection. Olsson was on naked her stomach across her lying there awas of blood on the floor beneath her “knew that puddle head. Green had to in as soon as get could because had to [she] stop [she] [she] ladder, bleeding.” Freeman returned to his house got Using ladder. Green entered the house through bathroom window. Freeman went around to the front door and waited. back,

Green went to her friend’s side. She “slits” saw on Olsson’s Sandy face,” “blood her down and “her left was out of her dripping eye bulging head.” Her bedclothes were her.- beneath She touched Olsson’s crumpled it was left the body; cold. She bedroom to find a call 911. As she phone bedroom, left saw a she framed had the wall fallen from photograph wall, the floor while another still on the photograph, was crooked broken. She was unable to find the went front door. She saw that a phone broken; chain lock had been two of the screws that attached to a on the plate were door from chain. She let hanging door and Freeman in. opened told him She she could not find the Freeman told her the was in phone. phone a Coca-Cola bottle and she it. shape where would find Green called and told the had been Before Olsson murdered. operator long, officer arrived. He asked if police Green Olsson was dead. Green tried She told the officer that

unsuccessfully get pulse. Olsson dead. At some Green left house and went to point, Freeman’s residence. Scott of the

Sergeant Robertson Livermore Police Department put He charge arrived at the house at 9:45 a.m. He investigation. about crime conferred with other then officers scene and walked already though the house. There were some room living green grapes carpet. observed He of a in the front he saw a framed signs struggle entryway, where that had fallen to the floor and two on the photograph apparently photographs wall were askew. Just master he saw inside the bedroom another slightly that had from He fallen the wall. also observed of a forced photograph signs into the entry house in form of the broken slide chain latch on the front door. bedroom, he

In Olsson’s observed blood on the closet door and a splatters examined smear blood on a switch. He Olsson’s and saw light body house. There a forced into the entry were consistent with

wounds believed consistent with and that seemed be lips were bruises on Olsson’s forehead outside of her left ankle. of a bruise on the the a door. There was similar edge blankets. There her a of flannel pair Beneath found body police pajamas on the next nightstand Coca-Cola and of bourbon glass glass of the floor. a desk in were on the On A bathrobe and of pair slippers bed. clothes, for her there Olsson trip were folded evidently put bedroom the but a kitchen no in the house receipt Kansas. Robertson found money $3.95 from a purchase had received of change supermarket indicated Olsson evening. prior noon, of were round finishing Around Judith Williams and Cathie Garton in a on saw a They floating pond Golf Course. purse golf Springtown it into the out of the and took the course. fished They purse pond card, identification driver’s clubhouse. The contained Olsson’s hospital purse license, checkbook, items, well some cards and other as as among credit no in it. loose It had cash grapes. afternoon, the murder course for golf

Later searched police Laboratory. from the Lawrence Livermore assisted officers weapon, by security Conn, officers, a bloody one those Renorise discovered At about 3:00 of p.m., tree That retrieved knee-high evening, knife beneath a brush. police in her backyard window screen that Linda Rocke had discovered previous master bathroom belonged Police determined that screen Olsson’s night. window. Van body. Van Meter Olsson’s Dr.

Pathologist Sandy Sharon autopsied with the knife Meter counted 23 stab wounds. The wounds were consistent course, a Buck knife. from the stab golf recovered from Apart wounds, neck muscles larynx Van Meter found of Olsson’s hemorrhaging Van also to Olsson’s injuries lip consistent with Meter observed strangulation. head come into contact with having edge and head consistent with her no While Van Meter found trauma Olsson’s a door forced being open. area, did mean she testified that the absence of such trauma vaginal death. before her had not been forced to submit to sexual intercourse Olsson cause death hemorrhaging, Van Meter that the was shock testified wounds, due to fractures the result of stab associated with asphyxia multiple more than an hour after Olsson have survived for larynx. may were inflicted. wounds with blood. The sheets

The blood on the knife was consistent Olsson’s off the been used to they wipe her bed had bloodstains that indicated had clothes, and bedding of Olsson’s body, knife. Forensic examination bloody who The criminalist to reveal the semen presence spermatozoa. failed conducted examination testified that her did out the findings not rule of sexual the intercourse if assailant had not possibility ejaculated.

Two identifiable were recovered prints from the knife handle. Between July 25, 1986, 1, 1987, and March the Livermore Police submitted the Department names of 40 or 50 of possible California Justice suspects Department for the fingerprint comparison submitted were purposes. Among prints However, defendant’s. were unable at that time to fingerprint analysts match the on knife or prints any taken from the crime scene to a prints suspect.

b. is connected to the murder Defendant 1986, Street, In July John Chandler lived on from two houses Hollyhock Olsson’s Chandler residence. was of mother and boyfriend defendant’s had known defendant since defendant was 15 old. had lived years Defendant Chandler, with out three moving weeks before Olsson murdered. only Defendant a and sometimes key He also kept stayed Chandler’s house. received mail and there. told phone messages Chandler the district attorney and a district that he attorney investigator was with defendant when defend- ant a Buck 110 knife in purchased September 1985.4

On March Robertson had with Sergeant a conversation Officer Trudeau, Scott a member also Livermore Police Based Department.5 conversation, on Robertson resubmitted defendant’s A analysis. prints and a on the fingerprint palm murder were matched to print weapon defendant’s right ring finger right On March Robertson arrested palm. defendant.

That same defendant was Robertson and Detective day, interrogated by Newton, Mike Police also Livermore Defendant acknowl- Department. that his address John edged mailing Chandler’s residence and admitted to claimed, however, lived there. He having that he had never met Olsson Sandy and had in her never been house. When Robertson told him that his Olsson, had been found on the knife that fingerprints killed defendant denied said involvement. He his knife had been stolen from his car in spring Defendant, of 1986. who said he read about murder in the newspapers, was a “domestic suggested killing.” type trial, At purchased Chandler testified that he did remember if defendant had knife. 7, 1987, drug charges Trudeau following stop. had arrested defendant on March traffic ultimately made Trudeau

Defendant statements Trudeau that realized connected defendant he suspicions. Olsson’s murder and informed Robertson of his Defendant’s statements trial, were suppressed prior suppress Trudeau but trial court declined to the fingerprint poisonous ruling subject evidence as fruit of tree. trial is the court’s of defendant’s first claim. wife, that defendant’s finger- Vicky Tully,

Robertson also told met Newton Robertson and on the murder weapon. had been identified prints Afterwards, March 1987. Tully following Monday, with Vicky again. talked to defendant officers interview, At some story: following point defendant told the

At the second 25, 1986, he knew with a man met July up in the hours early morning Thomas,” Angels. of the Hells who was member “Doubting only beers four or five four five 12-ounce had consumed already defendant he Thomas told 4-ounce “kamikazes” at bar Pleasanton. Street a woman who lived on Hollyhock wanted to to the house of go the Livermore, she obtained from drugs hospital. from whom he bought the John Chandler on told Thomas he rented a room from When defendant street, and told defendant to park Thomas said “that worked out good” same from their a of houses down” “only at Chandler’s because was couple to the residence. Thomas entered destination. The two men walked woman’s the woman and to enter. While Thomas and signaled first then defendant bedroom, a room he found talked in her defendant waited in the where living of it. bottle of and “took a few off” whiskey pulls down, the After calmed argue. they He heard Thomas and woman start asked him if defendant to into bedroom and Thomas motioned for come Defendant entered the he “wanted to have a little fun” with the woman. bed. had with bedroom and found the woman naked on her He intercourse He erection and did not ejaculate. woman but was too drunk maintain an left “kinda feeling stupid.” was in the bedroom for under 10 minutes and room while Thomas rejoined Defendant went back out into living again; He and the woman arguing woman in the bedroom. heard Thomas “[i]t her around some- knocking sounded like were or he was they wrassling came Defendant to listen in and the woman thing.” hallway went him. and into Thomas came out charging naked out of bedroom and ran and into the her throat hair. Defendant the woman back room by pulled minutes, room. a it got quiet returned to Within matter living and saw out Defendant went into bedroom Thomas came bedroom. on her back. on the bed with stab wounds multiple the woman naked lying if he had killed her. said he “was and asked Thomas freaking He out” Thomas said but did yes, say why. time, the entire gloves that Thomas had been leather wearing

Observing When he returned he saw Thomas defendant went to his car his get gloves. to wipe Defendant through attempted in the room living rummaging purse. left through off he had touched. He Thomas object his any fingerprints had had handed defendant the knife defendant door. Thomas patio car. Defendant became angry that Thomas had used his knife to kill house, woman. Thomas wanted to return to Chandler’s but told him, there, can’t know, “we back over go you like we do.” looking They walked toward the on the course. pond golf Defendant tossed the knife while Thomas, after what he wanted taking from the it into threw purse, pond. gave Defendant some of his clothes while he Thomas went to car. get his Thomas, When him, he returned for his clothes gone were and Thomas told “I stashed ’em so won’t be found.” they

Defendant be sought to in witness placed because he protection program afraid denied Doubting having Thomas. He stabbed the victim. Later that day, defendant to a an district spoke deputy attorney Defendant investigator. again interest in the expressed witness protection program. district declined to make attorney rebuffed promises, request for and reminded plea bargain, him that what he said could and would be used him. then against Defendant essentially repeated story had told the told the district police. that other attorney before, women had offered themselves to him for sex “Sometimes explaining, situations, it um, was party sometimes what call a just, they pass- around chick.”

A review of medications handled Olsson revealed shortages no controlled substance. Police identified Thomas” as Thomas Pillard. “Doubting His were obtained and fingerprints submitted to the California Department Justice along with defendant’s. evidence

2. Defense Robertson, The defense Sergeant called Scott who identified a pair men’s from shoes recovered near the dumpster golf course as well as items taken bedding from victim’s bedroom. The defense also re-called criminalist Sharon her Binkley examination of hair evidence regarding taken from Olsson’s bedroom. testified all hairs retrieved from the Binkley crime were scene with with consistent Olsson’s hair and inconsistent defend- hair, ant’s for some hairs on a except (which reddish-brown pillowcase belonged to Olsson’s and two evidently daughter’s unidentified human dog) hairs on a knitted other blanket. defense’s witness was Charles only Fraser, the district who had deputy interviewed defendant on March attorney 30, 1987. He testified to his aas trial experience lawyer, particularly number of cross-examinations he had conducted prior his interview with defendant. Phase Penalty

B. evidence

1. Prosecution involved had been evidence that defendant The prosecution presented January while in On jail. altercations two physical Defendant mealtime. during another inmate in a with engaged fistfight stitch, the other inmate while lower that required received a split lip Alameda County Deputy no visible On injuries. September suffered in a “wrestling inmate saw defendant and аnother Sheriff Michael Perkins had some had to be They forcibly separated. hold” with each other. for an eye inmate was treated his face. The other and bruises on bumps injury. in the form of evidence also victim impact

The prosecution presented children, and Elbert Sandra Walters adult from Olsson’s testimony Sandy III; sister, Dietrich; 91-year-old and Olsson’s then her Jan Walters “Tripp” trial, father, Walters, time of old at the years Clifford Sandra Sandberg. friend,” to me.” everything her and “meant that her mother was “best testified Her called her week. every once a month and She with her mother stayed who and “afraid.” She “didn’t know death had left her “lost” feeling mother’s thought mom around.” Her first to take care of me if wasn’t going my died,” could not see of how and she about her mother “is the horror she death. She testified the manner of her mother’s knife without remembering underneath bed.” She my and a “hatchet light” that she “with a slept night would have died by her mother had had breast cancer “but if she knew cancer, to her.” She remained bye could at least said good have [Walters] hard her and it had become because her mother had been taken from angry for her to be close to anyone. “anchor,” who had “uncon- testified that his mother was his Walters

Tripp and him a teenager when he was “a little bit wild” as ditional love” for even death Her “caring.” his mother as “happy” into his 20’s. He described down,” him and left “devastating,” “turned whole world was upside [his] murder, he had married and he and his mother’s Since his “very depressed.” if his mother a child. He would have understood wife were to have planning that she was murdered. he could not understand had died from cancer but trial, D.C., Dietrich, at the time of the lived in Washington, Jan who and were only sibling, were each other’s They Olsson’s sister. Sandy younger and the United States. travelled in together Europe close friends. had They three had they had to retire in years Dietrich testified that Olsson planned to tell her father about to travel. Dietrich had talked about Olsson’s plans Kansas, death, and her father could so that she and flew Topeka, Olsson’s fly California She and her together. father were at the airport Topeka to California time preparing fly at about the same Olsson’s would plane have been for her arriving Topeka father’s celebration. Dietrich birthday felt no closure because of the manner of her sister’s death.

Clifford testified he and his a car Sandberg buy had daughter planned after together she retired and to use it to travel. At he had experienced death of but the many manner of his death him people, daughter’s still caused difficulty. evidence

2. Defense Mendoca, Derek the inmate with whom defendant on January was fighting 7, 1988, testified that he threw the first because defendant had punch wiped mustard or on Mendoca’s shirt. He and defendant were friends ketchup before the and were fight friends afterwards.

Defendant’s older Brown and also testified. siblings, Shirley Roger Tully, Brown testified that defendant was bom in one of five children their Turkey, father, mother had three different men. Defendant’s Tully Richard Ross (Richard Ross), was Brown’s their name was Louise. stepfather; mother’s Richard Ross was in Air Force and the moved often. Richard Ross family also received assignments took him from home for away long periods Once, months, time. when he was gone six Louise with began living another man.

Richard Ross had a and he and drinking Louise “were problem, always Louise was the fighting.” She was physical aggressor. very demanding children, than a drill Brown was ashamed of her sergeant.” stepfa- “wors[e] ther’s constant because she “didn’t know drinking what to do.” going If he was at home “he was Richard Ross’s affected his drinking.” drinking Once, career—he lost rank and was forced to enter a rehabilitation clinic. room, when Brown was her came into her asked her if she age stepfather kissed, wanted to learn how and tried to her on her boys lay down bed. She told her mother about the incident but Louise did nothing.

Defendant was a bed wetter. He was also of his mother’s object rage and she would call him left Brown home as soon as she stupid. graduated school, from but continued to have emotional and high psychological prob- lems, for which she was She had visited defendant hospitalized. jail with him and she wanted to continue to do that. corresponded brother, defendant’s older Richard Roger Tully, Ross but adopted by trial, was not his natural At the son. time of defendant’s was a Roger burglary in the detective Baton Police where he had also served as Rouge Department, a homicide detective. childhood, nor Louise was often neither Richard Ross defendant’s

During home, and Shirley. care of him fell to Roger and responsibility taking home, time he was at if he came home Richard Ross was drunk most of the Once, on a hallucinating. camping at all. Sometimes he drank to point boat in the lake where he so drunk he he was in a got thought sinking trip, out, out, out. We’re get were He “Get they began screaming, get camped. down, to tell him were not in they we’re down.” tried going going Roger lake, Richard also be home brought but next to it. Ross would parked he and had with black and other Both Louise military eyes injuries. police naked with another man. He also affairs. Once discovered his mother Roger bedroom. found incest his pornography parents’ Richard his Often she would rouse drinking. Ross Louise over fought the children from would be “hauled off to a friend’s house or they sleep house.” The were sometimes One neighbor’s fights physical. night Roger Later, Richard Ross came home and found broken he saw glass everywhere. head; skillet on the kitchen floor with a over his he had been apparently leave, knocked and then Louise channeled her cold. Richard Ross would at her and her children. was inconsistent rules were anger Discipline arbitrary. hit Louise her children with her hands and a belt. Defendant was particular of his mother’s Louise was “volatile” and had no close friends. target anger. suicide; had had to intervene when his mother it was last Roger attempted time he saw her. reacted

Roger out.” He family’s dysfunction by “act[ing] experi- mented with and ran from home. When he drugs age away Roger became involved in a church. His mother threw him out of the house and he time, went to live he with had met the church. For the first family through he “what a normal life is.” He tried to share religious experienced defendant, with but Louise would not allow defendant go experience church with Roger. actions, said about “The between me

Roger only thing being there, here and him was the fact that I had a conversion being religious up [actions], when I was 18 .... He’s to take his for his but as got responsibility nоrmal, far as how it all came out ... it’s the most natural result. I don’t blame him.” niece, daughter—

Defendant’s Brown’s 18-year-old Ursula—Shirley testified that had while he was in begun jail she with defendant correspond on the and she had come to feel comfortable charges confiding present son, Richard him. She to continue their Defendant’s relationship. hoped his father on known as testified that often Anthony Tully, Tony, spoke and received letters from him. He wanted his father to live. phone

II. Discussion

A. motions Suppression 7,

1. detention March asserting Motion to on suppress unlawful 25, 1986; 1987, 24 or March Sandy July Olsson was murdered 7, 1987, had failed to On March investigation yield police suspect. however, defendant was detained for on a license. This led driving suspended and murder. his arrest on to his arrest for Olsson’s drug charges ultimately trial, Prior to defendant two motions to brought fingerprint suppress him evidence that linked to the murder and statements he made also weapon on March 27 and March The first during interrogations 1987. police motion evidence fruit of his asserted this was suppression poisonous (See detention on March States illegal Wong 1987. Sun United 371 U.S. 484 L.Ed.2d 83 S.Ct.

a. adduced at hearing Evidence 7, 1987, March Officer Scott Trudeau of the Livermore Police On surveillance of the residence of Kenneth Perry, Department conducting known offender. Trudeau was alone in his unmarked car. Two narcotics patrol officers, Shweib, other Painter and Jeff were At about 8:00 Timothy nearby. He Trudeau saw a Fiat Brava drive him with two occupants. p.m., past driver— as Ed He also recognized Snyder. recognized passenger earlier, but did defendant—because he had him two or three months stopped near not recall his name. The Fiat Trudeau twice before passed parking identi- residence. Trudeau described the to Painter. Painter Perry’s occupants fied the driver defendant. Painter had taken a vandalism week report defendant. Painter told Trudeau defendant was involving earlier allegedly and that there was an arrest warrant on a driver’s license driving suspended out for Snyder. lived, the car and went into the where building Perry

Defendant out of got later, Trudeau followed and away. to 25 minutes and drove emerged 20 defendant because of the license violation him. Trudeau stopped stopped and asked him for his warrant. He arrest Snyder’s approached Trudeau his license but and his registration. gave driver’s license to defendant about could not find his While Trudeau registration. talking at the side of Painter and Shweib were passenger his license registration, Shweib took to his own car where the car Painter talking Snyder. Snyder write out the citation. Trudeau returned to his vehicle to remained with him. car, but defendant still had to sign He most of the citation completed which further discussion there were boxes on the citation required some with defendant. defendant, car,

While Trudeau was in his Painter who patrol approached incident, was now outside his car. Because of the vandalism Painter standing knew defendant a armed and liked to was narcotics user who was normally a use knife. Painter had been told the victims that and defendant had by they been a involved in deal sour” and defendant had retaliated drug “gone against however, them by their car with a knife. At damaging point, vandalism incident even was closed. Defendant had not been listed as a because there was no definite evidence of his involvement. Even if he suspect car, had admitted Painter would not have arrested him vandalizing because it was a misdemeanor that had not been committed in his presence. He could only have written and asked for a Painter’s up report complaint. to defendant was to obtain information that either con- purpose talking firmed or discredited what he had been told about defendant’s involvement the vandalism.

Painter told defendant “what had been said about him being narcotics user and armed” with a being knife. He asked defendant if he could search said, “Sure, him. Defendant I don’t have on me.” Painter searched anything defendant He by using flashlight. held the in defend- flashlight peered ant’s and around clothing him but did not want to too much” things “squeeze because he was afraid of stuck a needle.6 Painter found a bindle in being the coin left pocket The bindle contained white pants pocket. that Painter powder believed was He turned it over to methamphetamine. Trudeau. citation, Trudeau

As returned to defendant’s car to he heard complete Painter ask defendant for consent to search and defendant “[something reply effect, know, out, you ahead and knock go yourself like that.” something Trudeau heard Painter he was concerned that defendant carried say weapons but could not recall for word” what Painter said when he asked “[w]ord bindle, if he could search him. After Painter Trudeau the gave said, Trudeau asked defendant for to search his car. Defendant permission “[S]ure, bent, ahead.” Trudeau go found three and a burnt syringes hypodermic Defendant was then arrested for spoon. possession methamphetamine, on a He possession hypodermic syringes driving license. suspended station where a search revealed transported booking seven police eight bindles secreted in his underwear. methamphetamine suppression hearing, At the Painter testified that he told defendant he wanted to search him “weapons testimony hearing, and narcotics.” He confronted preliminary with his thought at which he testified that he might weapon, searched defendant because he have a testified, made explicit drugs. response, but no mention of In Painter “I believe it’s more to that,” asking but conceded he specifically did not recall defendant whether he could also search drugs weapon. him for as well as a (Miranda his Miranda rights Trudeau read defendant Arizona 1602]), which defendant waived. L.Ed.2d 86 S.Ct. 384 U.S. 436 [16 However, told defendant he “was to ask going when Trudeau [defendant] him, told the items that were found on questions pertaining [defendant] Trudeau he didn’t want to talk to stopped questioning [Trudeau] [him].” he did conversation about how defendant. Defendant then “initiated [a] there Trudeau told him were want to on that go jail particular evening.” occur,” could reach an agreement that not to that they “ways specifically offense,” an informant. Defend- for defendant to “work off his by becoming detective, and Trudeau went out to call a narcotics ant was interested arrive, were for Jensen waiting Detective Jensen. While he and defendant had been in the Marine Corps, talked. Trudeau learned that defendant they four or five timеs a day, himself with methamphetamine was injecting items he selling into cars and houses and his habit by breaking supported treated for stomach being them. He told Trudeau that he was took from also that Trudeau told at a Veterans Administration hospital. problems it would and the he way supported he had revealed about his habit drug what him, After and it did not in the police report. not be used against appear arrived, and said he and left the room. Jensen came out Jensen Trudeau that Defendant was released night. defendant had reached a deal. investigation, knew little about the Olsson At this Trudeau very point, . entered mind” an FBI of it. It “never he had read although profile [his] for a few Trudeau was off work be a in that crime. defendant might suspect defendant. When he returned he discovered after the interview with days He out sought attached to his had defendant’s driver’s license clipboard. still Jensen, defendant was off because who told him the deal with Detective he was going Jensen said bargain. failed to his end of the defendant had keep to him. return defendant’s license Trudeau said he would to file the case. drug driver’s license—1572 listed on defendant’s He drove to the residence where Olsson Sandy it was two houses from only realized Hollyhock—and at a him he was treated being defendant had told had lived. He remembered Veterans a nurse at the and that Olsson was Veterans Administration hospital the FBI center. He also remembered profile medical Administration and was in the area of the crime scene lived suggested suspect He found no one home. went to the address but user. Trudeau drug probably defend- Robertson about Sergeant station and talked returned to the police officer, Leal told John Leal. he ran into another ant. As he was leaving, a deadly weapon in an assault with was a suspect Trudeau that defendant suggested Robertson. He new information to Trudeau this conveyed case. murder found on the against run defendant’s fingerprints prints Robertson weapon. and 200 between 150 men had canvassed Robertson and his

Sergeant from this had not come up Defendant’s name around the crime scene. houses canvass. Between March Robertson had looked at July around 30 He had potential sent cards of suspects. fingerprint potential to the California of Justice suspects Department Sacramento to compare found on the murder prints but there had been no weapon matches. Defendant’s had been those sent to Sacramento.7 fingerprints among 17, 1987, him,

As of March when Trudeau Robertson had a approached Stewart, new Jack had supervisor, Sergeant who been to the case in assigned He January 1987. told Robertson he wanted to recanvass the entire neighbor- house, hood to determine who owned each and who had been in the living houses, visitors, whether as time renters or at the of the murder. A plot map of the houses the murder scene surrounding indicated that 1572 Hollyhock, lived, where defendant had had been doublechecked during first canvass that someone at verify the residence had been interviewed. Both Robertson and Stewart testified that the new would canvass have resulted in a triple check of that address. Stewart also testified that he to run a planned computerized address check to all residents at identify houses around the scene of the crime. He was also to see if it going was to run a possible check computer through of Motor Vehicles Department to determine whose driver’s licenses listed those houses their as residences.

Based on the information about defendant provided Robertson by 17, 1987, Officer Trudeau on March Robertson took defendant’s fingerprint card, offense, from a juvenile and hand delivered it to the Department Rienti, Justice in Sacramento. Angelo a latent told fingerprint analyst, Robertson that defendant’s matched the fingerprint on the murder print weapon.8 arrest, Defendant’s taken after palm print, his was later matched to a on the partial palm print murder weapon. 27, 1987,

Defendant was arrested on March at the home of his wife’s parents. Police went there with arrest warrants on drug charges. Sergeant Stewart and Detective went Tart to the front door of the residence while Robertson Sergeant and Detective Newton were to the rear. Diane deployed Holbert, mother, Vicky Tully’s answered the front door. She told police there, defendant was not but let the into her house to talk police to her. Once inside, Stewart asked Holbert if she knew where was. Holbert Vicky said no. However, as were they Stewart a talking saw woman in the who he hallway thought was Vicky one Tully leaving room and about to enter another. He 7 The why record is unclear defendant’s fingerprints among were those submitted to the Department of Justice. 8 Stewart testified that the comparison earlier prints print of defendant’s on the knife yielded had not a analyst match because the performing the earlier comparison only had looked card; right at the finger middle for print each eventually match that was made was to right ring finger. and he asked her if she was She said asked wanted to Vicky Tully. yes why know. Stewart told her he was for defendant. looked at the looking Vicky door she was toward and told defendant was inside the walking police asleep room. She she would him because he did not have clothes on. said get door, went down her

As she Stewart the hall told swiftly opened him. would At that the door about a foot. police get point, opened head Stewart saw a man on his stomach with his on a Stewart lying pillow. room, asked he was entered him to wake him and him if Richard yelled a woke Stewart identified himself as officer. Defendant Tully. police slowly told had Tully. and identified himself Richard Stewart him police arrested, arrest. Defendant was handcuffed and taken to jail warrants for his a of blue wearing only jeans. pair court

b. Trial ruling 2, 1992, motion, filed on asserted that all Defendant’s initial February 7, 1987, evidence from defendant’s initial detention March arising 27, 1987, from his arrest on March should be as a suppressed subsequent motion, seizure. on the Following hearing an search and product illegal motion the grounds defendant was allowed file supplementary specifying These search of included consent suppression. his the course of the March vehicle was invalid as the stop person Miranda of an unlawful because he interrogation given product valid, exceeded the (2) even if the search of defendant’s warning; person consent; (3) after his on March 7 on of his statements made arrest scope use criminal were drug charges regarding drug activity involuntary; (4) the where he was arrested violated section 844’s and into bedroom entry but, the was lawful knock-notice The argued stop requirement. prosecution the defend- evidence.connecting even if it was illegal, fingerprint comparison ant to murder not tainted such illegality. prosecution Olsson’s by evidence have inevitably also that the would argued comparison fingerprint new that Sergeant been discovered in of the measures light investigative Stewart intended to undertake. did not

The trial concluded that the search of defendant’s person court further, however, that the statements the of his It found exceed consent. scope use, criminal drug activity made his March 7 arrest about his his following he into and that he was homes cars—and drug use—breaking support and must involuntary a Veterans were treated at Administration being hospital told would not be used he had been these statements be because suppressed him. against

Nonetheless, the comparison the court declined to fingerprint suppress and obtained statements by it “was not tainted the illegally evidence because

979 the the were involuntary is admissible.” time statements Specifically, “[a]t obtained, the had reason to or believe the conversation officer no suspect turn evidence crime than the In the would of other narcotics offenses. up view, of court’s this was a case The court also serendipity.” investigatory found “the would have inevitably again police compared prints with those found on the found On the knife at the murder scene.” this point, found the court “credible” the evidence that in “normal course prosecution’s murder have continuing investigation, emerged would as a [defendant] from the to Officer prime suspect gave statements Trudeau.” quite apart

c. Discussion

“In ‘we reviewing defer to court’s suppression ruling, superior and factual implied if are substantial express findings they by supported evidence, we our in exercise independent judgment determining [but] ” of a search on the facts so v. legality (2010) found.’ Lomax (People 49 530, 96, Cal.4th 563 234 P.3d 377].) Cal.Rptr.3d [112 Thus, while we exercise ultimately our to determine independent judgment seizure, the constitutional aof search or we do so within context propriety historical facts determined trial court. “As the finder of fact... court is vested with the superior power judge credibility witnesses, resolve any conflicts testimony, weigh evidence draw factual inferences in whether a search is deciding constitutionally 668, (1999) unreasonable.” v. (People Woods 673 Cal.Rptr.2d [88 “ ‘ 88, 1019].) 981 P.2d We review its factuál “under the deferential findings ’ ” 225, (2000) substantial-evidence standard.” v. 23 Ayala Cal.4th 255 (People 3].) Cal.Rptr.2d Accordingly, view the evidence in a [96 “[w]e most favorable to the light order motion to denying (People suppress” (2002) 251]), Manderscheid 357 Cal.App.4th Cal.Rptr.2d [121 in the “[a]ny conflicts evidence are resolved favor court superior ruling” v. Limón Cal.App.4th Cal.Rptr.2d [21 Moreover, 397]). the reviewing court “must trial court’s resolution accept facts its disputed assessment of credibility.” (People Valenzuela (1994) 28 Cal.App.4th

Because the General asserts that of Attorney many defendant’s arguments court, on are forfeited failure appeal by his to have advanced them in the trial we must also the briefly examine of when an question argument not made to is, nonetheless, trial the court cognizable on appeal.

Constitutional claims for the time subject raised first are not appeal forfeiture when “the do new not invoke facts or only arguments legal standards from the different those trial court itself was asked to but apply, 980 omission, act or as for the wrong assert the trial court’s insofar

merely court, legal reasons to that had the additional actually presented consequence 412, 441, fn. (2006) of the v. violating (People Boyer Constitution.” 677, omitted; 581], Yeoman 17 133 P.3d italics see v. People Cal.Rptr.3d [42 However, 93, 186, 1166].) 72 (2003) 31 Cal.4th 117 P.3d Cal.Rptr.3d [2 “[a] in to conduct an it was not argue analysis cannot the court erred failing party 428, 37 435 (2005) to conduct.” Partida Cal.4th asked v. [35 644, 765].) Cal.Rptr.3d the duration of the

Defendant contends he was detained because unlawfully he traffic was excessive relation to its claims Additionally, stop purpose. the about defendant’s involvement in vandal- Officer Painter’s questions the incident were and lacked stop separate ism unjustified by purpose criminal because He concludes that activity. “reasonable suspicion” his consent was unjustified, detention was excessive the questioning he search his asserts consent to Additionally, person involuntary. before consent because he was not Miranda advisements involuntary given was sought. below; the are claim was others forfeited. The

Only argued the Miranda arguments—whether stop raised these duration of by questions analyses excessive and whether Painter’s were questions proper—involve factual bases trial was not asked to conduct and potentially required court at The claims are also without merit. hearing.9 additional to those adduced the “ matter, reason the decision to an automobile is general stop ‘As a that a traffic violation able have cause to believe police probable where 806, (Whren (1996) 517 U.S. S.Ct. has occurred.’ v. United States 810 [116 1769, for 89].) If is a reason legitimate stop, 135 L.Ed.2d there Lomax, 49 motivation the officers irrelevant.” (People subjective 564, omitted; (2010) v. Torres People Cal.App.4th Cal.4th at fn. see p. law that the officer 785-786 Cal.Rptr.3d contemplates “[T]he [116 at of time the scene for period detain offender may temporarily he of the traffic the duties that incurs virtue stop.” necessary discharge (1979) Cal.Rptr. 25 Cal.3d (People v. McGaughran [159 (1998) v. Brown People Cal.App.4th P.2d see (McGaughran); 207] 9 Here, elsewhere, apply his claim argues should not because defendant also forfeiture People rights, citing 15 Cal.4th 269 deprivation involves of fundamental Vera Vera, precluded that a “is not from In we observed 934 P.2d 1279]. fundamental, asserting deprivation of certain raising appeal the first time on a claim (Id. rights—a plea of none the narrow class of such rights.” constitutional at But Moreover, 276-277)—is (id. right implicated at here. pp. and the trial jeopardy once “end around the provide intended to defendants with an run” that dictum in Vera was not rule, here and at eviscerating reject it. therefore defendant’s reliance on Vera thus We forfeiture it to avoid forfeiture. every point other which invokes 793].) Those duties Cal.Rptr.2d may 496-497 include “necessarily [72 time

the the officer to write the and the out citation obtain required by offender’s to .... demand of a officer promise [U]pon every appear police motorist must for ‘examination’ both his license present driver’s [citation] the and card of the vehicle . registration . . And not although [citation]. law, specifically by certain other taken as compelled steps customarily matters of no good are less related to the citation police practice intimately the officer the process; example, will discuss the violation with usually offer; motorist and listen any to the latter if the explanation may wish to vehicles of either are to the danger, officer the driver to exposed may require to a safer location before the proceed continues. investigation [Citations.] [][] course, Each of the a certain amount to foregoing steps, of time requires accomplish.” (McGaughran, supra, omitted.) fn. p. that “once argues there was process completed, [the citation] search,

was no cause to detain him for to any consent which questioning, was obtained from during illegal was tainted.” questioning [defendant] This claim assumes citation when Officer process completed Painter defendant about questioned vandalism incident and to asked search him. Not so.

After Trudeau asked defendant for his license and and dis- registration, cussed them with him—while Painter and Shweib were removing Snyder from defendant’s car—Trudeau testified he went back to his car to write citation, but still to had obtain defendant’s with signature discuss defendant some boxes on the citation form. While Trudeau was in his car citation, defendant, on the working Painter approached him about spoke Thus, vandalism incident and asked for his consent to search. not detained of the citation completion allow Painter process after falls, him. As the question factual of his predicate argument argument itself—that the detention was excessive in relation to the time by required Trudeau to the citation complete process—also collapses.

Moreover, Painter was to ask permitted defendant about matters unrelated traffic so as the stop did not long questioning prolong beyond stop McGaughran, supra, time (See to cite defendant. 25 Cal.3d at required a warrant check can be within the of time completed” period [“[i]f for the necessary of the citation completion “no reason process, appears it hold it because would not add to the improper: lawfully delay already violation, offender as a experienced result of his would represent Bell People further intrusion on his see rights”]; Cal.App.4th 754, 767 [“investigative beyond activities the original 115] of a traffic are as purpose permissible long do not stop they prolong the time it stop beyond take”].) would otherwise 982 Brown, 493, lawfully

In v. 62 the defendant was Cal.App.4th People supra, a running for a without a or reflectors. While light detained riding bicycle check, officer asked the defendant about detaining warrant probation and, A search the contents of his consent of evidently, fanny pack. status it was On the defendant that methamphetamine. appeal, argued pack yielded him unrelated to for the officer to have about matters improper questioned “Questioning during court the claim: reviewing rejected vehicle stop. is not routine traffic on a unrelated to of subject stop stop purpose nor is neither a search itself a Fourth Amendment violation. Mere questioning 431, 499; (Id. (5th 1993) Cir. F.2d a seizure.” at see U.S. v. 993 p. Shabazz car could 435-437 stopped speeding, police question [where - as were consent to search his car as long they about his travels ask license].) of check on his driver’s for results waiting computer Bell, a was 43 where similar claim In People Cal.App.4th raised, ask that . . . cannot the court observed: “Defendant argues police of traffic of whether regardless unrelated purpose stop, questions The warrant check in McGaughran, [supra, those the stop. questions prolong however, stop; 25 was unrelated to the of the traffic purpose Cal.3d 577] nevertheless, long that check would be as permissible the court held a warrant an must (Id. not at Nor questioning as did the stop.” prolong matter, be does the traffic unduly stop, justified unrelated which not prolong 130 (2005) v. Gallardo wrongdoing. reasonable suspicion [where, during traffic stop, police Cal.App.4th 455] [29 car, obtained his in his anything illegal asked defendant whether had an articulable suspicion wrongdoing consent to search found drugs, the detention long was not “as as required search preceding request [was] search”].) a result of unreasonably request prolonged the traffic detention stop defendant’s claims that reject we Accordingly, the vandalism incident Painter’s about questions was unduly prolonged, a to the traffic or stop, were because were unrelated they improper before Painter was wrongdoing required reasonable separate suspicion search, or that defendant’s consent could seek consent to inquire an detention. illegal obtained in the course of to search his person improper claims that his consent him before rights questioning did not him his Miranda give

because Painter (1984) 468 U.S. McCarty incident. In Berkemer v. about the vandalism a held that Court (Berkemer), Supreme L.Ed.2d 104 S.Ct. 3138] [82 arrest, detention, to a formal is not tantamount traffic although routine stop, not constitute and, therefore, detentions do during asked such questions (Berkemer, warnings. Miranda interrogation requiring custodial Terry as similar to routine traffic 435-440.) stops The court characterized pp. (Terry Ohio 1868]), 392 U.S. L.Ed.2d 88 S.Ct. stops which briefly individuals about whom permit police question police entertain reasonable suspicion activity of criminal falls short cause. means that the ask a may officer the detainee probable “[T]his moderate number of to determine his to identity try to obtain questions information the officer’s But the confirming dispelling detainee suspicions. And, is not obliged to unless the detainee’s the respond. answers provide him, officer with to cause arrest he must then be The probable released. comparatively nonthreatening character of detentions of this sort explains absence of our Terry stops any are suggestion opinions subject dictates of Miranda. noncoercive of traffic similarly aspect ordinary stops tous hold that prompts detained to such persons temporarily pursuant stops 439-440, are not ‘in (Berkemer, for the of custody’ Miranda.” purposes pp. omitted.) fns.

Here, defendant was detained a lawfully for traffic violation during which Officer Painter asked him questions about the vandalism to incident either confirm or his information that defendant had been involved. dispel While defendant was not free to leave until citation he process completed, was under no obligation to answer Painter’s Unless his answers questions. had Painter to provided with cause him probable arrest for vandalism— which, case, in any testified he not Painter could have done—he have would been free to leave once the citation was completed. Accordingly, pursuant Berkemer, Painter was not Miranda defendant required give warnings before him and his failure to do did questioning so not invalidate defendant’s consent to search. We defendant’s reject assertions to contrary.10

Next, defendant search of his argues exceeded the person of his scope consent because he consented only to a search for not weapons, He drugs. claims “Painter exceeded the of consent when he scope forced coin fingers of pocket of jeans in[to] hopes finding [defendant’s] narcotics, knife, under the of for pretext searching a which could not possibly fit in that “The standard for pocket.” of a measuring scope suspect’s consent under the Fourth of Amendment is that ‘objective’ reasonableness— what would the reasonable typical have understood person by exchange (Florida v. Jimeno 248, between the officer suspect?” (1991) 500 U.S. 297, 251 L.Ed.2d 111 S.Ct. “Whether search [114 remained within the boundaries of the consent is a fact of to be determined question 10 reject We also involuntary related claim that his statement was because he argument was not told he could refuse to consent. The is forfeited because it was not raised It also surrounding below. without merit. The request circumstances Painter’s consent involuntary search are such that the search was not rendered because he did tell defendant Drayton (2002) (See had United right he States refuse consent. 536 U.S. assessing validity L.Ed.2d 122 S.Ct. totality [153 of consent “the 2105] [in control, giving weight circumstances must without extra to the absence of type this warning”].) erroneous, Unless clearly circumstances. totality from [Citation.] [the] v. Crenshaw the trial court’s determination.” we uphold U.S. 172]; see Sierra-Hernandez Cal.App.4th (9th 1978) Cir. 581 F.2d about what

Defendant’s focuses on argument perceived discrepancy Painter hearing, he told defendant. At suppression Officer Painter said he he wanted to search him for weapons told defendant testified narcotics, Painter testified he searched hearing ‍‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌​​‌​​​​​‌‌‌‌​​‌​‌‌​‌​​​​​‌​​‍while at the preliminary but made no mention because he have thought might weapon, who, Trudeau when narcotics. Defendant also cites Officer testimony to defendant about something weapons whether he heard Painter say asked not “He said correct.” weapons, but drugs, replied, what a reasonable person focus is narrow. The

Defendant’s too question about the his her with the officer exchange have understood from would look at the totality of To we question, the search. answer scope Here, he defendant about his infor- Painter testified that told circumstances. and carried a knife. When he asked defendant used drugs mation that said, “Sure, him, I don’t have he defendant defendant if could search seemingly confronted his inconsistent on me.” When Painter was by anything to both a and weapon drugs, he had asked search for testimony about whether mentioning I “I recall mentioning weapon he recall responded, of searching made reference in transcript narcotics use. But I—apparently search at my don’t recall exactly narrowing my scope for But I weapons. and, was, best, Trudeau, ambiguous As his response for point.” to what Painter said he that he did not remember event also testified word,” to search. his consent asking defendant “[w]ord user, Thus, an and communicated drug knew defendant was armed Painter It to him. is therefore to before he asked search his awareness defendant court did—that defendant the trial evidently to conclude—as reasonable It to search for both asking drugs weapons. understood Painter moreover, witness. trial found Painter be credible that the court appears, nor, the record on findings the trial court’s credibility We do not second-guess under- us, determination that defendant can we conclude its implied before erroneous. For clearly to be for both drugs weapons stood search of his reason, claim that consent search we defendant’s further this reject arrest, were tainted car, at the station and the search his person police his search. of the initial by illegality by to Trudeau were suppressed that his statements

Defendant asserts to use not induced Trudeau’s by promise because were they the trial court them to he repeated broken when defendant—a against promise them Robertson—should also Sergeant have been because were they suppressed taken in violation of Miranda. From this he that all further argues premise, evidence him to connecting Olsson’s murder should have been suppressed the fruit of the Miranda violation. Not so. Trudeau advised defendant his Miranda rights. rights invoked those about by declining speak surrounding events his arrest. At that Trudeau ceased his point, question Defendant reinitiated the told he not ing. conversation when he Tmdeau did want to togo jail that after which Trudeau night, suggested might “work off’ his offense an informant. Defendant by becoming indicated interest, and a narcotics detective was summoned. While and Trudeau detective, Thus, waited for the defendant made the statements at issue here. it was defendant who reinitiated the conversation of his own volition after Trudeau had acceded to his initial invocation of his right remain silent. (Edwards no Miranda violation. There was (1981) Arizona U.S. People Mickey 1880]; 484-485 L.Ed.2d S.Ct. [68 Cal.3d 648-649 Cal.Rptr. noted, As the trial court although statements suppressed Trudeau on the were ground induced Trudeau’s use they promise defendant, them against went to find that the evidence need fingerprint not be either because it suppressed, was the result “investigative serendip- ity,” or would inevitably have been discovered. Defendant contends the latter were error. The rulings General contends it Attorney was the trial court’s initial that defendant’s finding statements were that is the error involuntary here. The Gеneral Attorney argues that there is no substantial evidence those statements were induced Trudeau’s not to by use them because promise before spoke voluntarily Trudeau made that promise. agree.11 We

“In a general, confession is considered ‘if the accused’s voluntary i.e., [citation], decision to is “self-motivated” speak entirely if he and freely voluntarily chooses to without speak form of or of “any compulsion promise However, . reward. . .” a where in authority [Citation.]’ person [Citation.] makes an or of express clearly implied for the promise leniency advantage confess, accused which is a cause the decision to motivating the confession (People Boyde is and inadmissible as a involuntary (1988) matter law.” 212, 83, 46 Cal.3d 238 25].) 758 P.2d “A Cal.Rptr. [250 confession ‘obtained’ within the by promise of both the and federal state proscription “11 People may, appeal by pursuant an to provisions ‘[T]he defendant and 1252, allegedly rulings section obtain review of by erroneous the trial court in order to secure an (People v. judgment (2011) affirmance of the of conviction.’ 52 Mendoza [Citation.]” Cal.4th 1056, 808, omitted, 1], quoting People v. Braeseke Cal.Rptr.3d 1076-1077 [132 263 P.3d italics 691, 684, (1979) 384]; 25 Cal.Rptr. Cal.3d 701 appeal by [159 602 P.2d 1252 § [“On an defendant, shall, defendant, appellate by court addition to the issues raised consider pass upon rulings all of the trial court may requested adverse to State which it be to pass General.”].) upon Attorney 986 linked, and statement are

due if and if inducement guaranties only process were, . causal connection causation. . . The requisite by ‘proximate’ than ‘but for’: causation-in- between and confession must be more promise 754, 52 Cal.3d fact v. Benson (People is insufficient.” [276 awas 330].) P.2d rule raises two questions: “This separate Cal.Rptr. so, if did that made or implied, either leniency expressly promise (1995) 38 v. Vasila subject (People motivate promise speak?” “ ‘an 355].) questions To answer these Cal.Rptr.2d Cal.App.4th [45 be “all the circumstances—both surrounding examination must made of ”’ the interrogation.” characteristics of the accused and the details of (2009) 47 Cal.4th v. McWhorter made the statements in question Trudeau testified that defendant Officer awaited the arrival of conversing Trudeau were as they while out an agree- with defendant was work going narcotics detective whom exchange to be released that night ment that would allow him “this When asked whether specifically informant. becoming police drug and how methamphetamine sup- information about use of [defendant] him,” . . . said something you his habit” was made “in response ported “No, Rather, testified, statements not.” Trudeau testified these Trudeau it was Moreover, it had to work his case off.” agreed were made “after [defendant] told made these unsolicited statements Trudeau after defendant only case. drug be used him in against him those statements would not establishes that defendant’s statements uncontroverted testimony Trudeau’s already defendant had were made drug about his use and burglaries after Trudeau, arrest, and were to “work off” his were not solicited by agreed Furthermore, an informant. inducement for defendant become of any part not to use he made to defendant Trudeau’s testimony promise shows those court ruled rendered the trial very those statements—the promise the statements had been not until after involuntary—was statements given record, much substantial no evidence in the less made. There is simply evidence, induced court’s that Trudeau’s ruling promise the trial support Rather, and untethered to the statements were gratuitous the statements. made Trudeau. by promise it that the trial court erred when suppressed we conclude

Accordingly, have been should as Those statements involuntary. defendant’s statements admission of the trial court unnecessary justify and it was for admitted involuntary been taint of evidence as having purged fingerprint Likewise, doctrine. discovery as admissible under the inevitable statement or of those justifications. for us to address unnecessary propriety it is we Inasmuch as conclude evidence comparison was fingerprint conduct, the fruit of any illegal we defendant’s police necessarily reject further claim that for his eventual arrest the Olsson murder and he statements 30, 1987, made to on March 27 March were likewise tainted. police 2. Motion to on March 27 and suppress statements March

a. Evidence adduced at hearing Shortly before trial he began, moved to suppress statements on gave police March 27 and March During 1987. the March 27 interrogation defendant admitted to at lived John Chandler’s residence having two houses from Olsson’s residence. He otherwise denied Olsson or knowing having any involvement in her murder. the March 30 During interrogation, however, he claimed he had been taken to Olsson’s house a man he knew Thomas” to “Doubting her. purchase drugs from Defendant admitted had had sexual intercourse with Olsson but blamed Thomas” for “Doubting her murder.

Defense argued counsel statements were obtained in violation of defendant’s Miranda rights and were also involuntary.

Sergeant Robertson testified that defendant was taken into on custody 27, 1987, arrested, March at about noon. When he was a wearing only pair blue but no jeans, shirt or shoes. Robertson could not recall if defendant was given arrested, clothing station. At the same police time defendant was wife, Vicky Tully, instructed come to the station because she police was being for investigated writing checks insufficient funds. The check investigation had originally assigned been to Robertson but was reassigned Jacobs, Detective to whom Vicky Tully She admitted the charges, but spoke. she was not arrested because it the Livermore Police policy to refer such Department cases to the district attorney misdemeanor complaint.

The police of defendant interrogation on March 27 about 6:00 began p.m. The interrogation was conducted initially Robertson and by Sergeant Detective session, however, Newton. Toward the end of the Officer Trudeau came in and first, Detective but, Newton left. At used concealed police microphone because quality recording was poor, they with replaced on the table at which microphone they put and defendant were they sitting. ended at 12:05 interrogation a.m. of, waived,

At the outset the interrogation, defendant was advised and bars, his rights. During the interrogation, defendant was with supplied candy At breaks. one and bathroom cigarette and soft drinks allowed pizza, were in out an ankle shackle because officers into point, put interview, if asked defendant the end of the Robertson room. Toward asked, I choice?” “Do have a he would take a test. Defendant polygraph defend- about whether with a series rhetorical replied questions Robertson coerced, “Water lamp?” “Do have a rubber hose?” “Hot e.g., ant was I being replied to head?” your gun your on face?” dripping “[A] continued, choices.” Robertson “There’s your negative. accusations, to the least me and the say

“A. this charge you placed Well serious, I are think it would be— than more serious murder.

“Q. of California there nothing In State “A. Okay.

“Q. Period. to a lawyer.

“A. I it would behoove me consult Then think examination? to a “Q. submitting polygraph Before Okay. to Um, I wouldn’t want submitting any questions

“A. Before yeah. answer.” fallibil- machines and their about polygraph

After some further discussion [it], said, if, I to face I think it’d it best that if wanted defendant “I think ity, defendant discussed whether I a He and Robertson lawyer.” be best if consult said, “I that’s don’t know machines worked. Defendant [so] knew how the break in the There was short somebody talk to who does.” I’d like to why resumed, said, we last left this tape, “When When it Robertson interrogation. Do lawyer. mentioned you talking about were talking polygraph we A. Q. sure? A. I’m all You’re right. now? No. you lawyer [][] [][] want [f] Yeah.” and defendant Vicky Tully spoke the interrogation,

At the conclusion of Afterwards, the county jail. transported defendant five minutes. about and asked called Vicky Tully police On March Sunday, station the case. she had regarding about information Robertson or Newton speak her until did not talk to so Roberson day, was on duty Neither officer and told Robertson station police came Vicky Tully March 30. Monday, had Thomas” “Doubting but that at the murder had been present the witness protection talked about She and Robertson killed Olsson. Sandy she afraid program because was Thomas. Robertson told her if Doubting true, the information had she she him was and if given arrange- qualified, ments could be made for her to that go into but the final decision program rested with the district attorney.

Robertson and Newton then went to the to talk jail Tully to defendant. Vicky in followed her own car. The of March 30 interview taped began portion 8:08 Before p.m. officers told defendant about taping began,' information his wife had them. did not given Defendant Robertson respond. that thought defendant “was because he thinking,” might be frightened He Doubting Thomas. told defendant that he and his family might possibly for the qualify witness than Less a minute protection program. passed between the time Robertson with initially confronted him what had Vicky said and when he told him about the witness protection program.12 it, asked about the and there some program further discussion about after which he wanted to to his wife. speak She entered room and she and left, After she spoke privately. of the interview taped portion began. Defendant was advised of and again waived his After acknowl- rights. asked, edging his waiving rights, defendant in you “Can add the part about “Ok, the Witness Protection program[?]” Newton to this replied, prior tape being come on . . . we’ve discussed with and with [sic] [defendant] wife that Vicky testimony some be fur- might given [defendant’s] nished by involve ... might the Witness be [defendant] Protection Program, it the Federal and the State level.... I’ve assured that in [sic] [defendant] event that the and what testimony information that he has meets that criteria then we would work on the Witness Protection get and his Program wife involved in that This be program. may ... the Hells testimony involving Is that Angels. correct Richard? itYes is.” [1] [A]: defendant, Defendant also testified at the suppression hearing. According family’s in the participation witness was the program protection “key part” in his decision to him talk He testified that police. also told police unless he his wife would cooperated go “the check and his jail charges” Newton, children would be in placed foster homes. Detective who was also defense, called denied such were threats made.

b. Trial court ruling Defense counsel argued defendant’s March taken interrogation in violation of Miranda think because his statement “Then I it would behoove 12Defendant asserts that he remained silent 30 minutes after Robertson told him about only his wife’s provides support statement. The citation he this page assertion is to a reporter’s some transcript prior records discussion between the court and counsel contrast, hearing. nothing length Sergeant It contains about By silence. specifically Robertson “momentary.” testified that defendant’s silence was to me to a was an invocation of his counsel. Counsel lawyer” right consult violated Miranda because his lack defendant’s March 30 interrogation argued the given of when confronted with information initially by police response was an of his to remain silent. Defense by right them his wife invocation the it was involuntary also statement was because argued counsel in the the of defendant and his witness placing family induced by promise protection program. its The court found that

The trial court denied the motion in entirety. during his to counsel” the right defendant did not invoke “unambiguously to the nor did his failure to immediately respond March 27 interrogation, invoca- the the March 30 constitute an interrogation officers at of beginning concluded, based on “the of silent. The court also right tion to remain circumstances,” the that discussions of witness totality protection involuntary. statement on March 30 did not render defendant’s program

c. Discussion was obtained in that his March 27 statement

Defendant contends of Miranda him after he continued to police question violation because Arizona, [supra,] Edwards “In to U.S. had invoked his counsel. right , cease . law officers must immediately 477 . . we held that enforcement to have counsel right a who has asserted his clearly suspect questioning (Davis v. United States (1994) interrogation.” custodial during present Davis, (Davis).) In L.Ed.2d 114 S.Ct. 512 U.S. 2350] [129 “As we have unambiguous. held that such invocation must be court had observed, or it right assertion to counsel ‘a statement either is such an . . articulate his desire to have ... . must is not.’ suspect [A] [Citation.] officer in the reasonable sufficiently clearly police counsel present to be for an attorney. understand the statement a request circumstances would Edwards does clarity, meet the level requisite If the statement fails to (Davis, at suspect.” p. the officers stop require questioning to ask Moreover, a rule officers the court adopt requiring “decline[d] Davis, a reviewing (Id. with 461.) “Consistent clarifying questions.” circumstances, whether, officer reasonable . light court. . must ask be an an attorney reference to would have understood defendant’s cоunsel, regard for without and unambiguous request unequivocal his or her desire for articulate ability capacity subjective counsel, the officers ask imposed upon and with no further requirement issue, reviewing In of the defendant. clarifying questions [Citation.] court’s resolution of moreover, must the trial ‘accept court reviewing inferences, if its of credibility, supported evaluations facts and disputed reviewing independently determine[s] substantial evidence. court] [The the trial court found by facts and facts properly from the undisputed whether obtained.’ challenged statement was illegally [Citation.]” Gonzalez us, these we standards to facts before trial court’s

Applying uphold ruling. context which defendant referred an was not a attorney for counsel request then but an purposes interrogation occurring, that, test, indication if to required submit to a he would first want polygraph to with consult of lawyer. This his initial remark is reinforced interpretation he by further statements made the fallibility context of the polygraph i.e., machines his lack of how “I think understanding they operated, if, [it], best that if I wanted to face I it’d if lawyer,” think be best I consult a and “I don’t know that’s I’d like to to why talk who does.” somebody [so] when, Finally, any his ambiguity regarding was after a meaning dispelled break, Robertson, short to Sergeant referring his earlier mention of a lawyer test, while discussing the asked him “Do want a polygraph pointblank, you lawyer now?” to which defendant “No. I’m all Robertson replied, right.” him, Thus, “You’re sure?” pressed asking, Defendant “Yeah.” defend- replied, ant did not invoke his to unambiguously right counsel 27 March during interrogation and the police were not to cease their required questioning.

We also conclude that defendant’s con momentary silence when fronted by police with his wife’s statements to them at the beginning March 30 interrogation was not an invocation of his remain right to silent. “As Miranda itself recognized, police officers must cease questioning who suspect exercises to cut right interrogation. off . . . ‘Whether the however, has indeed suspect invoked that right, of fact to be question decided in the of all the .’ light circumstances . . . [Citation.]” Musselwhite 17 (1998) Cal.4th P.2d Cal.Rptr.2d [74 475].) The standard of review is the same as set forth above with to respect whether a defendant has invoked his People (See or her right counsel. Crittenden Cal.4th 128-129 testified,

Sergeant Robertson “We informed had Vicky [defendant] come to us see and had told what us he had told regarding her homicide Thus, scene Doubting Thomas.” defendant was not accused [and] Indeed, murder himself nor asked about it. any questions the information the told him had been police his wife exonerated provided by him murder. When Robertson, failed immediately he respond, thinking might Thomas, be about apprehensive Doubting that he and his explained family might the witness qualify Defendant asked protection about program. and then to to his wife. program speak It that the entire appears was exchange brief. relatively Defendant’s ultimate about response—asking witness protec- tion and to to his speak wife—indicates not that he was his invoking right he to learn his wife had talked to remain silent but that was nonplussed He to have been the information when absorbing seems police. simply Therefore, defend- failed to to Robertson’s statement. respond immediately not an invocation of the privilege against ant’s silence was momentary self-incrimination. March 30 statements were

Defendant maintains both March 27 and did not contends that defendant involuntary. Attorney specifi- General has to the March 27 statement involuntariness with cally argue respect evidence responds by citing forfeited the claim on thereby appeal. that he claims statement was adduced shows during hearing such an there evidence that could have involuntary. Even if supported counsel made was not made. The trial argument only argument argument, the March 27 was that statement interrogation the court regarding Thus, respect of counsel. with taken in violation of defendant’s invocation never mustered evidence support the March 27 trial counsel interrogation, a the court never asked to undertake of an involuntariness claim and trial was is the forfeited.13 analysis. Accordingly, argument voluntariness 13 event, involuntary if it is the argument the fails on its merits. statement is In “[A] or, generally, ‘overreaching’; requires involuntariness coercive product of more coercion were, be, it the agents; activity must as activity part on the of the state or its such (People merely cause in fact.” v. ‘proximate question, of and not a cause’ the statement (1) 647.) following: supra, defendant cites the Mickey, p. Cal.3d at As evidence of coercion 54 (2) only regarding purpose the interrogated wearing pair pants; he a of he was deceived was murder; (3) charge, he was drug he a rather than for the Olsson for which was arrested—on talked, that, (4) charges; be on check unless he his wife would arrested implicitly threatened Trudeau, brought keep was in to defendant prior relationship, with whom he had a Officer (5) agent they speak when allowed her to police the used wife their talking; his as brief, he cites fact interrogation reply him. his also the they their of In defendant after finished the be drawn from facts themselves and inferences to that he was shackled. Because these below, ruling. court’s light to the trial we them the most favorable disputed them were view Limón, 357; Manderscheid, supra, 17 People Cal.App.4th p. (People v. standard, evidence that we there was no definitive Applying that find Cal.App.4th at only supplied clothes were wearing pair pants a or whether interviewed defendant was Moreover, Also, at the time he charges. two jail. the was arrested on narcotics him at defendant warrants, to arrest him for the outstanding cause also existed probable arrested those was Thus, why police as to the were not a nor was he deceived murder. his arrest was ruse Olsson that, the he talked to defendant was threatened unless questioning There was no evidence him. respect was with this threat used would While defendant testified police, his wife be arrested. charge. accept We specifically Detective denied interrogation, to March Newton prior no evidence of a credibility finding point. on this There was implicit trial court’s defendant on than that Trudeau had arrested relationship Trudeau defendant other between 7, acting agent as that his wife was an support defendant’s claim nor does evidence March they defendant because point placed an ankle shackle on police. police While at one for the room, continuously no he was shackled. there was evidence were in and out of interview that, candy was with during interrogation, supplied evidence There was also bars, breaks. Viewed under cigarette and allowed and bathroom pizza, and soft drinks

Defendant renews his claim that his March 30 statement was involuntary because was induced he and his could enter the by family promise witness claims As protection program. corollary, manipulated police him Vicky into to incriminate himself. He asserts the Tully getting also police acted when they defendant and his deceptively suggested might family because, for the witness at the time qualify made protection program they suggestion, they believed defendant was already guilty Olsson murder. Defendant also maintains threatened to wife on the check police prosecute charges and his children into foster care. put

“It is well settled that is a confession and therefore involuntary if it inadmissible was elicited by any benefit or whether promise leniency express implied.” (People (1978) 21 Cal.3d 611 [147 Jimenez 672].) 580 P.2d “In Cal.Rptr. terms of assessing assertedly inducements ‘ offered to a the benefit out suspect, ... pointed police “[w]hen that which merely flows from a truthful and honest course of naturally conduct,” the statement will not be subsequent considered made. involuntarily ” v.Howard 44 Cal.3d [Citation.]’ Cal.Rptr. “The has the burden prosecution establishing by preponderance evidence that defendant’s confession was voluntarily ‘ made. In whether a determining confession was [Citations.] voluntary, “[t]he is whether defendant’s question choice to confess was not free’ ‘essentially ’ because his will overborne.” Whether the confession [or her] [Citation.] voluntary depends upon of the circumstances. totality [Citations.] ‘ “On the trial court’s as appeal, findings to the circumstances surrounding evidence, the confession are if upheld by substantial but the trial supported court’s finding to the voluntariness of the confession is subject ’ independent review.” (People Carrington [Citation.]” “ a court reviewing ‘[W]hen considers a claim coerced, that confession has been if the improperly conflicts, evidence the version most favorable to the must be relied People ” McWhorter, if the record. upon supported by (People v. supra, [Citations.]’ 357.) 41 Cal.4th at p.

Defendant bases his involuntariness claim on of evi- the interpretations dence and the of of the questions credibility witnesses that trial court implicitly Because rejected. substantial evidence those deter- factual supports minations, and, therefore, we rely on them defendant’s independently reject claim that March his 30 statement was the result either threats or promises. the claims that police him would him and promised they place his into a family witness if he them. record protection to The program spoke standard, totality of the circumstances we conclude that defendant’s 27 statement was March product the involuntary. not of coercion and therefore not that he told both the same Tullys the assertion. Robertson testified dispels truthful, for witness protection, if were thing: they being they might qualify District by but the final decision would be made the district attorney. Deputy Fraser, after the confirmed that who interviewed defendant Attorney police, this statement at he could make no to defendant. Fraser repeated promises interview, had end that he disclosed everything of the reminded defendant him, him that Fraser would could and would be used and admonished against evidence. Even defend- defendant’s statement compare against physical made that were testimony asserting promises ant’s own fell short explicit that the witness He testified protection. police to him about by police but, him when asked and about “explained” program “talk[ed]” he acknowl- he had Detective Newton about any promises, whether pressed he did do edged not so. about

To the extent there was conflict in evidence whether police of the the trial court resolved it in favor promised protection, finding record substantial evidence its prosecution. provides support Thus, defendant was only are it. the evidence shows that by we bound family he he and his told his statement was truthful and otherwise qualified, if attorney if the district could into a witness program be placed protection Therefore, no out point did more than permissibly approved. police “ ‘ from “truthful and honest course benefit that accrue his might possible ’ ” Howard, his Accordingly, 44 Cal.3d at conduct.” into him and his family was not induced to place statement promise witness protection. his wife into

We his claim that the reject police manipulated persuad- also court credible the a statement. The trial found police him make ing did initial discussion engineer Vicky Tully’s they officers’ testimony on March where interrogation with defendant at end Moreover, it is told Thomas” story. undisputed her evidently “Doubting on her own asked speak contacted Vicky Tully police trial Finally, had told her. about what defendant Robertson Newton threatened police testimony court evidently rejected into care his children foster on the check charges place wife prosecute court’s resolution to we are bound the trial Again, by if he did not them. speak determinations. and for Finally, in evidence and its credibility of conflicts reason, had already police we defendant’s assertion reject same and, him March 30 to they spoke concluded he was murderer before to to therefore, a to induce him of deception speak their offer protection he had be- Robertson whether Sergeant defense asked them. When counsel not murder, that he had Robertson testified account of the lieved defendant’s . information . . to more “gather [to] what believe and wanted known the investigation.” continue

995 record, On this we conclude that defendant’s March 30 statement was not involuntary.

B. Excusal prospective jurors cause

1. Overview contends the trial court erred in for cause five removing prospective jurors who reservations about expressed death penalty, Fifth, Sixth, thereby violating rights under the Eighth, Fourteenth I, Amendments to the United States Constitution and article section 16 of the California Constitution.14

“A prospective a juror case be removed for cause capital may if his or her views on ‘would capital punishment or “prevent substantially impair performance his duties as a juror accordance with his instructions ’ Witt[, and his v. 412, oath.” (Wainwright supra], U.S. L.Ed.2d [83 841, 105 S.Ct. Because prospective jurors not know how ‘may they will react when faced with sentence, imposing death or be unable to may articulate, or (id. wish to hide may their true 425), at feelings’ ‘deference p. must be to the trial paid who sees judge and hears the juror’ and must determine whether the ‘prospective would be juror unable to faithfully (id. impartially 426). law’ at apply We p. have this adopted standard for determining whether excusing for cause a prospective juror in case capital based on the prospective juror’s views on capital punishment violates to an right I, impartial under article section 16 of the California Constitution. ‘On we will the trial appeal, uphold [Citations.] [f] court’s if record, it is ruling fairly supported by accepting binding trial court’s determination as to the true prospective juror’s state of mind when the has prospective juror made statements are conflicting ambiguous. cases, ‘In many a prospective juror’s [Citations.]’ [Citation.] responses on voir dire questions will be or even halting, equivocal, Given the conflicting. juror’s probable unfamiliarity with the complexity law, with coupled the stress and anxiety being in a prospective juror case, such capital should equivocation be Under such circum expected. stances, we defer to the trial court’s evaluation of a state prospective juror’s 14 People Velasquez (1980) In 341], 26 Cal.3d Cal.Rptr. 425 [162 606 P.2d we held Witherspoon/Witt that an appellate challenge (Wainwright v. Witt (1985) excusal 469 U.S. 844]; Witherspoon (1969) L.Ed.2d v. Illinois [83 105 S.Ct. 391 U.S. 510 L.Ed.2d [20 1770]) 88 S.Ct. object 522.) is not forfeited a failure (Witherspoon, at trial. p. at In People McKinnon 1186], we overruled Velasquez’s (McKinnon, no-forfeiture rule. “Nevertheless . . . because at the time of this trial we had preserve Witherspoon/Witt expressly objection held that an necessary (Ibid.) appeal, excusal error on we do not apply this rule here.” 996 mind, courts.

of and such evaluation is on binding appellate [Citations.]’ 449, (2011) v. Cal.4th 462-463 Thomas 51 [Citation.]” [121 521, 247 P.3d Cal.Rptr.3d

“ ‘ juror’s against “There is no that bias requirement prospective Rather, death be with unmistakable it is clarity. penalty proven [Citations.] sufficient that the trial is left with the definite that a judge impression would be unable to and the law juror faithfully impartially apply prospective case in the before of juror.” “Assessing jurors qualifications [Citation.] is a the broad of the trial falling for cause matter within discretion challenged ’ 472, (2007) court.” (People v. 497-498 [Citation.]” [61 Abilez 526, P.3d 58].) 161 Cal.Rptr.3d “excluded

Initially, argues defendant that trial court improperly jurors who could would vote for death based they solely not promise [trial of facts of Defendant failed court’s bare offense.” capital description the] and, therefore, to his to the trial court’s of the offense object description Moreover, claim is in his brief defendant fails opening identify forfeited. on the court’s summary which were dismissed based trial jurors improperly brief, the trial of the offense. In his “it was court’s reply argues, admonitions, and systematic selection that led to the protocols, questions others, of in the Brief.”15As exclusion the five as raised jurors, Opening demonstrate, however, we the trial court’s excusal those five prospective and, therefore, correct error no can be attributed jurors entirely vein, In trial court’s of the offense. the same defendant argues description excused the trial court were excused jurors improperly prospective by case, facts of this rather than particular because their attitudes toward however, sentence. our inability Again, their abstract death impose excused subsumes jurors conclusion that the five were properly prospective this rejects complaint.16 15 failing characterizes as death- faults the trial court for to follow what he 966, (2003) People v. Heard Cal.4th “protocols” purportedly forth in qualification set object manner in which the 75 P.3d Defendant’s failure fn. 9 [4 53]. Heard, any erred. In we appeal court conducted voir dire forfeits claim on trial juror following an excusing for cause prospective concluded that the trial court erred in (Id. 963-966.) by pp. examination the court. at In the footnote defendant inadequate voir dire might them avoid the errors help we courts to treatises and handbooks cites directed trial resources, limit the trial court in Heard. By out we did not intend to pointing made these discretion, were thenceforth impose rigid court’s rules trial courts the trial much less Moreover, before Heard years trial was conducted 11 required follow. published. been and handbooks therein referenced had decided and before treatises during length questions permitting case-specific that our decisions Defendant contends People Fields starting 35 Cal.3d death-qualification process, with Witt, Wainwright 680], interpretation are on an erroneous Cal.Rptr. based argument persuaded by are not U.S. and should be reconsidered. We revisit decline his invitation to our decisions.

2. Specific challenges17 Juror M.D.

a. Prospective On his juror Juror M.D. wrote about his questionnaire, Prospective general feelings regarding death “I do not feel that it penalty, works well as a very crime, deterrent but in some cases is the best necessary perhaps solution.” He wrote he was in favor” of the death “[m]oderately penalty held no religious, moral or that views would affect his philosophical ability vote for the death toAs whether he would vote for a death penalty. penalty ballot, wrote, law were it to on the he “I appear don’t want to make that just choice until I have to.”

The court asked M.D. whether he could listen to the penalty phase evidence and consider both death and life without possibility after parole defendant, found having a reasonable beyond doubt that “the either alone or else, with had somebody burglarized house of the woman by name of Olsson. Shirley That she had been killed intentionally stab by way multiple wounds, as 25 perhaps many of those. You also have found that she may was assaulted with an intent to commit M.D. “I think I could.” rape.” replied, Under counsel, however, defense questioning by M.D. he acknowledged entertained some “ambivalence” about the death Defense counsel penalty. continued: effect, prosecutor] to ask going “[The to sentence you, this man to death. If you get appropriate stage he’s proceeding, going to ask to decide you by signing verdict or raising hand or your being He reminded polled.” M.D. he would bе taking first step putting defendant “in the chamber” and gas asked whether M.D.’s ambivalence “would be so great as to impact decision?” M.D. upon “Hon- replied: I estly, would have to say that’s Because possibility. I’ve had to always deal with the death in a theoretical penalty context. I never had to it.” apply added, He “I would tend against death but that doesn’t mean I penalty, would definitely However, that, vote against death he then said penalty.” given the circumstances special this case—what defense counsel called “a burglary” that “went would be awry”—“I hard decide very on the pressed death penalty.”

M.D. told the that on a scale of 1 to prosecutor was a three and a half in favor of the death He penalty. where the repeated special circumstance was felony-murder involving he would not be burglary, open the death imposing penalty. asked him again whether Hovey Superior Court Pursuant 28 Cal.3d 1 Cal.Rptr. 1301], prospective jurors individually were questioned presence outside the of other prospec jurors, tive by first the trial court and then parties, after which the court entertained challenges for cause. door” go is out of the and he would for life without “always penalty “[d]eath M.D. only in this of case.” “Based possibility parole type replied; gotten yes. information I’ve I don’t know what other information today, mind, but based on what told me and what I’ve might sway my you’ve today heard to this I would I be inclined not to.” The say have would up point, whether, case, a asked third time in this “I could stand here and prosecutor up ask the death and I’ve a shot?” M.D. “I would you for penalty got replied, no, have to based what I now . . . but that’s the I only way on know say added, could because I don’t know all the evidence.” He answer question come which would me. I don’t what it would sway know “something may up now, be, I don’t know where it would come but on what I know I’d based up, no, The about have I can’t.” said: “If we’re a say talking prosecutor home, case of into a and in burglary gone a the course a breaking person is this awry, type as defense counsel killed. Given says, single person [][] situation, fact the death is not a viable here M.D. you?” penalty penalty “No, available, so the other life without long as replied: possibility option of parole.”

The M.D. for cause. Defense counsel asked no challenged further matter. The court the juror. submitted the trial excused questions court did not abuse its discretion in M.D. on the excusing ground trial that his dire demonstrated that his “views would prevent voir answers of his duties as M.D.’s substantially juror.” impair performance in a case like this indicated he would consider death responses penalty (See People where the circumstance murder. alleged burglary special Pinholster P.2d Cal.4th 571] excused he that he would never where “concluded [prospective juror properly unless the were in killing vote for the death case penalty burglary-murder fact premeditated”].) claim that M.D.’s indicated

We are not swayed by responses been to consider both based further evidence might he have able penalties He was the case involved a brutal murder by trial. told emerge might assault of a victim in the course sexual stabbing possible multiple This was an described it—a burglary gone awry. of—as defense counsel him with acquainting of the case. We are not persuaded accurate overview him mind and made more inclined changed further details would have Moreover, swayed he be additional might consider death. while he said be,” information, added, there was don’t what it would indicating “I know allow him to consider circumstance he could think of would no further the death in this case.18 defense counsel had penalty Additionally, every made no effort to do so and to rehabilitate M.D. but opportunity attempt submitted without on the for cause. challenge Finally, argument prosecutor’s to the extent we defer to the trial court’s M.D.’s answers were equivocal, Thomas, evaluation of mind. 51 Cal.4th at his state of 462-463.) pp. Juror E.H. Prospective

b. Juror E.H. indicated on her that the death Prospective questionnaire penalty “in some cases is described her view toward it as neutral and necessary,” wrote she would have to “research” before she could decide how to vote were the death law on the ballot. she penalty told defense counsel (Subsequently, she would vote law.) for death penalty

She told court she could consider both But when defense penalties. counsel asked her whether the death would be where a penalty appropriate “man broke into a house to commit a . . . and killed a burglary who lady there, times,” lived stabbed her to death 25 E.H. on that “Based replied, outline, I wouldn’t think so.” Even after he introduced the of the possibility intent to commit perpetrator’s E.H. indicated it was not the kind of rape, crime where she would consider the death as to “a mass penalty, opposed murder.” She maintained her when again the court. position questioned by submitted E.H. for cause. The prosecutor challenged defense without argument and she was excused.

E.H.’s show she would responses clearly not consider the death penalty case burglary-murder because in her view it was not the kind of serious crime—as for to a opposed, mass murder—where the example, penalty appropriate. she was excused. Accordingly, properly Juror M.K. Prospective

c. Juror M.K. wrote on her Prospective that she questionnaire “believe[d] the death She that her penalty.” views about the death had explained penalty granting that the challenge contends trial court’s error in the cause as to M.D. challenge is underscored Prospective its denial of his for cause to Juror D.dR. Defendant “virtually strength claims M.D. and D.dR. identical were of their views” on the death penalty, though question. strong on different sides of the D.dR. admitted he had views on However, penalty worry might death and he would judgment. those views affect his consistently also maintained keep open that he would strive to an mind and to follow the law. Unlike M.D. he penalty felony-murder Accordingly, never ruled out one or the other in a case. reject analogy we defendant attempts to draw between the two. of the because she “became aware the Robert Alton Harris case after changed She described herself and the need for a death penalty.” death penalty death in favor of a of it. She wrote she would vote in favor moderately and the costs of because of overcrowded prisons ballot measure penalty them. supporting court, be indicated she would open from the M.K.

Under questioning However, how she felt when asked her when prosecutor both penalties. death involve the the trial “that this case might she first heard from judge have to make that decision.” “I felt like I’d rather not she replied, penalty,” between abstract support there was a difference The prosecutor suggested and asked it on a “real person,” death and actually imposing penalty the death about the idea of asked being impose whether she had “thought to know this six “I I would thought get person She responded: penalty?” to do.” When the prosecutor won’t be an easy thing weeks and it probably there,” said, over she death for that her whether she could “vote person asked knowing in the death and then know. I believe Saying penalty “I don’t concerned.” The as far as I’m are two different things involved person “Let’s assume that ended: then asked M.K. a long hypothetical job this jury, part further you’re foreperson name on that form .... Can you sign your is to the verdict sign foreperson warrant, carry the first that will the fact that that is step death appreciating Quentin, into across the to San bay put onto a bus to be taken this man over all again time and time chamber which we saw eventually green gas in Harris, in time breathe and he will at that point regarding this publicity “No.” do that?” M.K. replied, dead. Can you until he’s gas poisonous [¶] declined to cause. Defense counsel her for challenged The prosecutor however, court, asked The trial without argument. her submitted question the death that she could impose penalty her twice if what she meant was “Yes, evidence. M.K. replied, warranted by if she concluded it was even “Yes, correct,” not do that.” I could that’s indicated to excuse a who juror held it have permissible previously

“[W]e would find the the death time’ voting penalty he would have a ‘hard v. Roldan (2005) 35 Cal.4th difficult.’ decision ‘very [Citation.]” Here, M.K. stated unequivocally P.3d 697 [27 abstract, in the she that, the death her penalty notwithstanding support did not defense counsel so clear that it. She was could not actually impose cause granted prosecutor’s The court to rehabilitate her. properly attempt challenge. about hypothetical question the prosecutor’s claims did not Trial counsel the verdict form improper. M.K. could sign

whether forfeited, at this whether claim of error point object question the trial court misconduct or abuse of discretion by prosecutorial Moreover, a defense counsel had used similar gambit permitting question. he M.D. if he could the verdict that would be the first sign step when asked use of toward defendant “in the chamber.” Like defense counsel’s gas putting the verdict form was reference to M.K. imagery, signing prosecutor’s role in her way impressing gravity juror’s imposing upon death so as to her to assume that role. There was neither ability penalty gauge the trial court. misconduct nor an abuse of discretion by by prosecutor Juror B.D. Prospective d. Juror B.D. wrote on her that she believed

Prospective questionnaire death “is in certain it is cases—although heartbreaking.” penalty appropriate She wrote she was in favor of the death and would vote moderately penalty for a death ballot measure because “it is in some cases.” penalty appropriate

When asked court whether she would be able to either impose she that it would be difficult” to vote for the death penalty, replied “very added, and that she had “some on the She penalty anxiety” subject. “[I]t’s one to think about these and then to .... Part thing things theory actually of me . . . wonders if I could death When asked for really impose penalty.” so, think her “best about whether “I I she could do she don’t opinion” replied, could, there’s, know, could an I think I say yes. but unqualified you maybe and there’s been yes, still I’ve percent maybe percent—I apologize. this stuff out.” sorting

B.D. told defense counsel “bad for the death enough” this case was “but I don’t want to be the one to make that decision.” The penalty, asked her the same he had asked M.K. about hypothetical question she whether could the verdict form if the death. She sign jury imposed clarification, asked, “I don’t think so.” “I’m about replied, Seeking talking do; for the death voting this is not could penalty, something you personally “Well, that correct?” B.D. I have doubts about my ability serious replied, said, “Well, do that.” In the more I’m to further she response questioning, here, the more I’m that ... I don’t think I could. I couldn’t sitting realizing I, know, and if I can’t can vote.” The sign sign you how paper, paper, court asked whether she could the death even if she deter- impose penalty mined death was warranted. She “I don’t think so.” replied,

The her for cause. Defense counsel submitted and challenged prosecutor declined the court’s invitation to ask further The court indicated it questions. would take the matter under led to further by submission. This questioning both and the defense. While B.D. indicated there was some prosecutor death, said, “I don’t think I she be able to vote for she also possibility might I I make could do it. don’t think could that decision.” Ultimately, asked, the death verdict couldn’t return in this “Is one prosecutor you asked, B.D. “No.” The court are we in terms of case?” replied, “[W]here The was . . . could “Basically, procedure?” prosecutor replied, question ” case, her ‘No.’ The she return a death verdict in this answer was defense submitted without and the was argument challenge granted. about whether she could the death B.D.’s answers

Although impose were we defer to the trial court’s assessment of somewhat penalty equivocal, her state of mind. Defendant about the again hypo- complains prosecutor’s but, thetical he failed to claim and we find no again, object, forfeiting any He that the last error in the also asserts prosecutor’s question, question. that, because it contained a double was answer- negative, ambiguous by “no,” what B.D. meant was she could return the death Just “yes,” ing penalty. however, later, when the her to mean moments prosecutor interpreted reply death, she could not vote for neither B.D. nor defense counsel corrected him. for cause. challenge We conclude the trial court properly granted e. Juror T.L. Prospective the death

In about his toward general feeling response question that it Juror T.L. wrote on his questionnaire penalty, Prospective “[n]ot neutral the death for me.” He wrote he was toward big really problem not he would vote on a death ballot measure. sure how penalty penalty court, he could consider both Under T.L. said initially questioning death, he he When asked whether could vote directly impose penalties. asked any “No.” Neither the nor defense counsel questions replied, him for cause. Defense counsel submitted challenged of T.L. The prosecutor without argument. challenge granted. While T.L.’s voir find no of discretion in the trial court’s ruling.

We abuse brief, he death in this dire was indicated could vote clearly impose nor the defense asked him case. The fact that neither the prosecution neither side believed that his was so suggests plain questions position were some- to rehabilitate him. While T.L.’s answers worthwhile to attempt inconsistent, deference to the a situation that calls for classically what this is and demeanor. mental state juror’s trial court’s evaluation prospective P.2d (1997) 14 Cal.4th (People Mayfield failed to ask clarifying questions that the court complains off, T.L. said he could vote and that the record is incomplete. cut T.L. even clear that not sufficiently His was death position penalty. impose circumstances, we Under these him. to rehabilitate defense counsel attempted and its find as definitive of his answer court’s acceptance no error in the trial it because is the record incomplete further. Nor not to him decision question of verbally replying instead negative head in the indicates T.L. shook his The the death he could impose penalty. him whether when the court pressed cut Nor did the court the negative. to indicate understood gesture widely about he understood its question him and asked if T.L. off when interrupted said, “Yeah.” The T.L. In response, consider both penalties. ability T.L. to which responded, its original query, court then essentially repeated said, right.” court “Exactly, the other.” The one way “You mean deciding clarified. Thus, T.L. had about question confusion erred when it that the trial court defendant’s claim we Accordingly, reject add, however, Defend a note of caution. We these for cause. jurors excused of the offense summary that the trial court’s in this case is ant’s complaint who jurors whether prospective too truncated to allow it to assess have been able could nonetheless about the death qualms penalty expressed words, had the trial court would have it. In other apparently to apply hand, We, on the other factors. aggravating additional details about provide have the offense here may trial court’s summary are concerned that the Cash 28 Cal.4th People observed in been too detailed. As we 332], voir dire “must avoid death-qualification those identify that it fails to “it must not be so abstract two extremes.” While or substantially impair views would prevent death penalty whose jurors that it it be “so duties as neither should jurors,” specific of their performance on a issue based jurors penalty the prospective prejudge requires to be evidence likely presented.” mitigating aggravating summary the kind of overly trial courts (Cash, 721-722.) against at We advise pp. case. the court used in this of the offense summary detailed court C. Exclusion witnesses from under former its discretion that the trial court abused

Defendant contends family— exclude members of victim’s when it refused to section 1102.6 sister, Dietrich, daughter, and son and father, Jan Sandberg, her Clifford trial court the guilt phase.19 III and Sandra Walters—from Elbert Walters based on remain in the court and Elbert Walters to Dietrich permitted rights, and his process his due ruling also violated the trial court’s Defendant contends trial, penalty death witnesses and to reliable and cross-examine rights to a fair to confront Sixth, to the federal Amendments Eighth and Fourteenth pursuant determination these may While we entertain the trial court. raise these claims in He did not Constitution. rule we set forth to the no-forfeiture exception with the they are consistent claims to the extent ante; 17), our Boyer, supra, 980-981, fn. People (see pp. earlier “necessarily leads to trial court actually raised in the of the claim rejection on the merits 1004

prosecutor’s would not representation they be at the testifying guilt It phase. that both and appears Sandra Walters also attended Sandberg some sessions of after guilt had testified and been phase they excused. 1102.6,

Former section (a), subdivision that either the “victim”— provided or, defined as the unavailable, crime victim if she or he was to two up members of the victim’s family—“shall be entitled to be and seated at present trial,” unless the “court finds that the of the victim would presence pose substantial risk of or the content influencing affecting in any testimony,” case, which “the court shall exclude the victim from the trial or in entirely 1102.6, so as to effect the part (Former of this purposes (a), section.” subd. § 1986, 1273, 2, 4448, as enacted by 1995, Stats. ch. p. Stats. repealed by § 332, 2, However, case, ch. in this § did not seek to Olsson’s members permit family to be at trial under present section 1102.6. Rather, the defense moved to exclude them. Although the defense did not its the motion specify authority, based on presumably Evidence Code statute, section 777. Under that the court exclude “may from the courtroom any witness not at the time under examination so that such witness cannot hear the of other testimony witnesses.” The standard of review of a trial court’s under both statutes v. Wallace ruling is abuse of discretion. (2008) 44 1102.6]; Cal.4th 1053 P.3d Cal.Rptr.3d [81 911] [§ People 344] Griffin Code, ,)20 [Evid. § 777] At on the defense hearing request, prosecution objected exclusion as it related proposed Olsson’s Sandy sister son because would they not be at the testifying guilt The trial court phase. asked defense counsel if his motion encompassed only guilt Defense counsel phase. that his motion extended to the entire replied trial as the long circum- “[a]s stances of the crime under are 190.3 circumstances in aggravation.” [section] exclude,

The trial court the motion to granted limited to guilt phase witnesses. This Olsson’s sister and son to remain in permitted the courtroom. rejection newly applied ‘gloss’ constitutional separate as well. No constitutional cases, (Ibid.) required discussion is in provide such and we therefore none.” motion, Because it was a defense is specific understandable that the trial court made no Nonetheless, omission, seizing reference to section 1102.6. on this defendant claims the trial 1102.6, perform balancing (a) court failed to required by section subdivision between the right victim’s to be influencing affecting any in courtroom and the risk of the content of tеstimony. argument entirely without merit. It is clear from the record that the basis of permitting family defense’s motion was its concern that the victim’s members to remain in might way testimony. the courtroom fashioning ruling—excluding some affect their In its guilt phase declining two members from the to exclude of the witnesses from the was, effect, penalty showing phase potential without a further harm—the trial court 1102.6, performing balancing required by section whether or not the words of the statute passed lips. its however, renewed objection to a was without prejudice ruling,

The court’s it would defense counsel complained When testimony. witnesses or particular court “If testimony, replied, objectionable to such be difficult anticipate witness, will then we even a possibility, awith particular you contemplate The your and can make representations.” you interrupt proceedings did the nor evidently such further objections, did not make any defense the court- in remained daughter the victim’s father defense when object at the guilt phase. after testified they room for some period because, contrary discretion trial court abused its contends the Defendant two, members, to be rather than 1102.6, it four family to section permitted asserts, further, of these witnesses that the He “presence at the trial.21 present the content of their or affecting risk of influencing created a substantial to court’s failed ruling properly He the trial argues testimony.” penalty phase “against prosecutor’s a fair trial and due process balance his rights attend the guilt phase. victim witnesses” to need for his phase impact penalty burden the defense the court unfairly upon he claims that Finally, placed family which the victim’s testimony during of anticipating guilt phase merit. are without arguments entirely members should be excluded.22 His not, to allow the as defendant implies, The of section 1102.6 is purpose victims, but to crime by exhibiting engage jury’s sympathy 1986, of crime. When it enacted statute advance the interests of victims declared that section 1102.6 embodied “public policy the Legislature be afforded a reasonable that “a of a criminal offense this state” victim offense,” “not be for that to attend criminal trial any opportunity be . the victim has been or may subpoenaed excluded . . because merely access is “essential at the trial” because the victim such testify permitting 1, (Stats. ch. the fair and administration of justice.” § impartial Notes, Ann. Pen. 50B West’s Statutory at Historical p. reprinted 1102.6, ed.) (2004 Code foil. § the victim “entitled to be present” subject

The statute is clear that is risk “a substantial would that his or her only finding presence pose 1102.6, (Former the content of any testimony.” § or influencing affecting statement (a), added.) Legislature’s This language—and subd. italics 21 ruling only the victim’s sister and son wrong. permitted trial court’s Although apparently the during guilt of the trial. phase portion remain in the courtroom guilt phase, defense counsel daughter attended some sessions of victim’s father and also the court’s attention. order—if it was a violation—to bring did not this violation of the court’s effect, any his motion to exclude at ruling allowed defendant to renew In the trial court’s family might testimony the victim’s thought suspected even there be point at which he or injured by this how defendant was permitted should not be to hear. We fail to see members ruling, any injury. he demonstrate such favorable nor does with a in favor of the balancing begins intent—suggests preference victim’s to be Our decisions this right present. support interpretation real, referred to be statute in their that the substantial risk emphasis speculative hypothetical. People For example, Bradford 259], P.2d where the defendant claimed the trial court abused its

discretion under section 1102.6 members of the victims by family permitting statements, to remain in the courtroom we said: “Defendant’s during opening mere that the victims could or would be influenced opening assertion insufficient to that the victims’ ‘a statements was establish presence posed ” the content of influencing affecting any testimony.’ substantial risk of 1322, Cal.4th italics.) In v. (Bradford, original People Griffin, supra, 536, when it the we held the trial court did not abuse its discretion allowed the “Nothing victim’s mother and sister to be present during penalty phase. trial court at the time it made its ruling suggested before the [the craft or a substantial risk that either woman would presence posed victims’] so, to do as a result of her own or cause other witness testimony, any shape existed, but her . . . counsel asserted that such a risk only presence. [D]efense a claim that the trial court an assertion of this sort is insufficient to support (Id. abused its discretion.” at p.

Here, too, that the defendant asserts and without formulaically specificity members at the the substan- of the victim’s family guilt phase posed presence in the record to tial risk referred to in the statute but fails to to point anything of dis- This is not to show an abuse enough this assertion. support simply the trial court. cretion by

D. the evidence Sufficiency of his guilt phase contends the evidence is insufficient to support circum- first murder with degree burglary-murder special

convictions of The claim is without merit. and assault with intent to commit rape. stances “ evidence, court’s claim of the reviewing ‘In assessing insufficiency the the record in the most favorable to light judgment task is to review whole is, evidence that determine whether it discloses substantial evidence—that reasonable, credible, trier of fact value—such that a reasonable is and of solid .. . The a reasonable doubt. beyond could find the defendant guilty [Citation.] mainly the relies in cases in which prosecution standard of review is same “ it is the ‘Although duty evidence. on circumstantial [Citation.] of two that circumstantial evidence is susceptible a defendant if it finds acquit and the other innocence of which suggests guilt [cita one interpretations, court[,] of the which must be convinced tions], it not the jury, appellate “ ‘If circumstances reason a reasonable doubt. beyond defendant’s guilt court that of the reviewing the trier of fact’s ably justify findings, opinion contrary finding be reconciled with a reasonably the circumstances also might ” ” ” of the judgment.’ does not warrant a reversal [Citation.]’ [Citations.]’ 204 P.3d Story (2009) 45 Cal.4th (People Cal.Rptr.3d [91 306].) allegations. The circumstance same standard applies special Kelly (2007) 42 Cal.4th degree there was insufficient evidence to first

Defendant asserts support or to theory murder conviction based on burglary-murder support because the evidence failed burglary-murder allegation special-cirсumstance to commit either theft or that defendant entered victim’s home prove defendant does not discuss Notably, offenses of rape, target burglary.23 the evidence in detail—and not certainly light applicable standard of review—but relies on the fact that neither nor burglary rape a red We are not concerned charged herring. offense. This is separate with whether there was sufficient evidence to offenses that were prove charged. is whether evidence was sufficient question prove offenses that were It was. charged. defendant, knife,

The evidence showed armed with a en forcibly tered Olsson’s house late at or in the hours of Sandy night early morning July window, 24 or The bathroom with its screen removed and 1986. open discarded, indicated that he first to enter her residence attempted surrepti but, reason, failed to do so. The this window for whatever tiously through broken chain lock on the front door was another of forced and sign unconsented-to told he went to Olsson’s house with entry. police Thomas” because Thomas wanted to Olsson “Doubting buy drugs obtained from the where worked. Olsson lived Coincidentally, she hospital had with John Chandler. two houses from where defendant lived only away Defendant’s that he worked at a where statement shows knew Olsson hospital she have access to It is a reasonable inference that he learned drugs. would her he at Chandler’s about and that she lived alone while job living her and found discarded residence. Olsson’s was taken from residence purse in the he had seen Doubting on course. Defendant told pond golf police Thomas the victim’s in her room after he rummaging through living purse her; $3.95 stabbed indicated she had received from a receipt purchase 24, but no was found in her or at her home. The could July money jury purse invention of Thomas’s Doubting have discarded easily implausible crime role in the and concluded that defendant himself went to Olsson’s People Kipp (See residence and broke in to steal drugs property. jury required unanimously agree particular it was not on which The was instructed crime defendant intended to commit. have explained 450] [“We that when with evidence that a defendant killed another and took presented time substantial from the victim at property killing, infer that the defendant killed for the may reasonably ordinarily purpose robbery.”].)

There is also substantial evidence that defendant entered the victim’s intent residence with the to commit This conclusion would have been rape. consistent with late enter the residence of night attempt surreptitiously furthermore, Defendant, he woman who knew lived alone. admitted had sexual but did not that he intercourse with victim His admission ejaculate. did not is consistent with from the criminal- ejaculate testimony prosecution’s ist that the did not rule out the of intercourse if absence semen possibility there that the was no also testified absence ejaculation. pathologist trauma to the victim’s did not mean she had not been forced to genitals submit to sexual intercourse. Defendant was armed with a knife. The jury could have concluded defendant forced the victim to have sex reasonably not, claimed, him with as he knifepoint consensually.

Thus, there evidence to was substantial support felony-murder theory of first murder and circumstance. Our degree burglary-murder special evidence assessment of evidence also demonstrates there was substantial commit with intent to defendant’s conviction assault support rape.24 was unemployed Evidence E. when it

Defendant contends the trial court abused its discretion admitted that he was to show motive steal. testimony unemployed, unfair to in difficult financial circumstances it would be “Ordinarily persons their to be introduced for the evidence of general poverty purpose permit 24 conclusion, light we do not discuss in detail defendant’s further claim that there In of our support degree premeditation evidence a first murder conviction based on a was insufficient note, however, strong theory. planning and deliberation We there was evidence of that includes residence, entry the victim’s the fact that he was timing the manner and of defendant’s into armed, from the residence and also evidence of fingerprints the care he took to eliminate his neighbor. killing—(cid:127) recognized him as a former The manner of motive—fear Olsson stabbing the victim—also wipe defendant had time to his knife on the sheets as was (See People Anderson premeditation evidence of and deliberation. constitutes substantial 15, 550, (1968) motive Cal.Rptr. planning, 447 P.2d of 942] 70 Cal.2d 26-27 [73 [evidence killing may support finding premeditated a and manner of are nonexclusive factors Anderson does suggestion, require that these killing].) “Contrary deliberate to defendant’s weight, they particular combination or that be accorded a present special factors be in some the list exhaustive. Anderson was guide appellate an court’s simply nor intended to killing an inference that the occurred as the result of supports assessment whether the evidence (1992) (People Pride 3 impulse.” reflection rather than unconsidered or rash preexisting 636, 195, P.2d Cal.Rptr.2d Cal.4th 247 833 [10

1009 The risk of causing a motive for theft or establishing robbery. suspicion value of such evidence.” indigent generally outweighs probative persons 1, 50, v. Cornwell (People (2005) 37 Cal.4th Cal.Rptr.3d [33 v. Castaneda 622]; (2011) but see 51 Cal.4th People defendant’s P.3d on evidence of the Cal.Rptr.3d 249] [based addiction, “a drug combined with evidence of his sporadic employment had a motive to steal” and rational trier of fact could conclude that defendant death].) the intent to do before the victim’s Such evidence may, formed so however, be for other “such as to refute a defendant’s admissible purposes, claim that he did not commit the because he did not need the robbery money” v. Wilson P.2d 939 [13 “ 1212]) a sudden or to ‘eliminate other possible explanations (Cornwell, after 37 Cal.4th at wealth a theft offense.’ [Citations.]” 96). case, Chandler, John In asked at whose residence this prosecutor defendant had been off and on in the six months before Olsson’s living Sandy murder, whether “the defendant had a hard time Defense job.” keeping counsel on relevance The “Motive.” objected grounds. responded, trial court overruled In his objection. closing argument, prosecu- tor, said, Well, to this where referring testimony, using drugs. “[Defendant’s] do for that if can’t How do that? you get money you job. you keep support I mean we’re not about a roof over head.” talking your keеping without should not have been

Assuming, deciding, testimony admitted, we find its admission harmless under standard. The testimony brief, and, was to it in as argument, reference prosecutor’s section, evidence, demonstrated in the there more than previous ample from that defendant broke into testimony, finding this quite apart support Olsson’s residence to steal drugs money.

F. Erroneous admission “victim evidence at impact” guilt phase that, a combination of miscon-

Defendant contends through prosecutorial error, duct and trial court evidence was before improperly placed for the in a verdict tainted during guilt resulting by sympathy phase evidence. victim. Defendant characterizes this evidence as “victim impact” “ ‘A misconduct violates the Fourteenth Amendment prosecutor’s the United States Constitution when it “infects the trial with such unfairness In other as to make the conviction a denial of due process.” [Citations.] words, “of to result in the the misconduct must be sufficient significance A denial ‍‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌​​‌​​​​​‌‌‌‌​​‌​‌‌​‌​​​​​‌​​‍of the defendant’s to a fair trial.” right prosecutor’s [Citation.] unfair nevertheless fundamentally misconduct that does not render a trial 1010 if “the or violates California law it involves use of deceptive reprehensible ”

methods to either the court or the jury.” attempt persuade [Citations.]’ 856, 225, (2011) v. Clark 52 P.3d Cal.4th 960 261 (People Cal.Rptr.3d [131 243].) “A conviction not be reversed for will prosecutorial misconduct, however, unless it is that a result more reasonably probable have favorable to the defendant would been reached without misconduct. Also, a claim of misconduct is not prosecutorial preserved [Citation.] if defendant fails to and seek an admonition if an object objection appeal have cured the Crew injury. (People admonition would v. [Citation.]” 733, 822, (2003) 820],)25 74 P.3d 31 Cal.4th 839 Cal.Rptr.3d [3 “ Code, 350; (Evid. is admissible relevant evidence ‘Only § [cita and, statute, tions]), as otherwise all relevant evidence is by except provided I, 28, Code, 351; Const., (Evid. admissible see also Cal. art. § § (d) .).’ subd. . . ‘Relevant evidence is defined in Evidence Code [Citation.] in or “having any section 210 as evidence reason tendency prove disprove fact that is of to the determination of the action.” any disputed consequence The test of relevance is whether the evidence tends “logically, naturally, intent, inference” material facts such as or identity, reasonable to establish material motive. Defendant all issues placed [Citations.]’ [Citation.] [f] 96, (2011) v. Bivert 52 Cal.4th (People not dispute by pleading guilty.” 261, 300].) 116-117 254 P.3d trial court has broad Cal.Rptr.3d [127 “[T]he Cash, discretion to determine the relevance of evidence.” (People made Cal.4th at This discretion extends to evidentiary rulings (2007) 41 to Evidence Code section 352. v. Zambrano (People pursuant “ 1082, 297, 4].) Cal.4th 163 P.3d ‘Under California Cal.Rptr.3d 1149 [63 law, error in evidence not be the basis for may reversing admitting “an to or a motion to aside a verdict unless setting objection judgment . . . was made and so stated as to timely exclude or to strike evidence ” Code, (Evid. or motion . . . . objection make clear the specific ground of statute, 353, added.) “In this we have (a), subd. italics accordance with § ‘defendant’s failure to make a timely specific held that the consistently ground cogni on the asserted on makes ground appeal objection’ ’ ” (2011) 51 Cal.4th zable.” v. Nelson Cal.Rptr.3d [120 301].) 246 P.3d mind, we review defendant’s claims specific these

Bearing principles and trial court error. misconduct prosecutorial actions to which he prosecutorial misconduct repeatedly cites as instances brief, exempt be from the ground. reply In his he asserts that should object failed to on this misconduct. We repeated pattern and course of prosecutor’s forfeiture rule because of the and, reject suggestion that the forfeiture past, as we have in the we pattern discern no such Dykes (People capital cases. inapplicable

rule is dire Voir

1. Defendant contends the committed misconduct voir dire during prosecutor when, [J.W.], \ . . juror stated questioning prosecutor “[w]hile [i]t’s fair to the members of the woman who was murdered if can’t family people ” either of the two impose Defendant’s contention is based on penalties.’ factual error. The did not ask this Ju- prosecutor question Prospective J.W., ror who on the sat but of Juror J.B. J.B. was ultimately jury, Prospective before and did questioned just not sit on the defendant jury. Although J.W. comment,” asserts that J.W. “heard the he fails to citation in the provide any Furthermore, record that would his claim. defendant fails to show in support the record that the made the remark to other prosecutor any juror. prospective Thus, misconduct, even if we assumed this comment was fleeting could not have been since J.B. was not a prejudiced juror his case. Moreover, his failure to show that the comment was other repeated any belies his juror assertion there was a misconduct pattern prosecutorial during voir dire.

2. Prosecutor’s opening statement Defendant committed complains prosecutor misconduct in his (1) statement when he opening contrasted the intended family gathering which the victim was on weekend before her preparing death—her visit to for her father’s 85th Topeka birthday—to family gathering actually funeral; career; occurred—her (2) by her discussing nursing her discussing habits and routines.

Defendant failed object of these remarks at the time were any they made. He referred to them he subsequently when not to the objected, opening statement, Indeed, but to the actual evidence of these matters. defense counsel conceded that the “has a to refer to right evidence he expects trial,” in good faith to be admitted the course of the during but went on to question relevance of evidence of Olsson’s and the background birthday Instead, reunion. Defendant did not move to strike the statement. opening asked the court to make a Thus, substantive ruling his relevance objection. claim he specific advances here—misconduct during state- opening ment—is forfeited. We take his substantive in the up objection following section.

3. Admission evidence committed asserts the prosecutor misconduct by presenting reunion, career, evidence about the family Olsson’s and her habits nursing routines, as well as eliciting assertedly from Olsson’s improper testimony coworkers and her daughter.

a. Background there After statement and before prosecutor’s testimony, opening defense during was outside of the which lengthy hearing presence demanded trial court counsel that the rule on its to objections prospective career, to attend 85th evidence victim’s her her father’s nursing plans killed, celebration the weekend on she was her habits birthday Defense than routines. counsel the evidence was more argued prejudicial Later, Code, (Evid. he counsel said was also on probative. objecting § relevance grounds.

The as follows: evidence of victim’s prosecutor responded professional was because it she was not relevant demonstrated a docile background person and, thus, her without resistance to defendant indicated that “he submission that, had her under control at the of a complete point having weapon,” control, murder; evidence her to gratuitous committed of complete plans to her attend a reunion was relevant the concern of coworkers when family left; to have she failed to at work before she was and evidence appear day routines, work, her habits and came home was after she from particularly relevant to defendant’s statement whether—as had police suggested— have on a Defense she would entertained late male visitors work night night. called habit and custom evidence argued counsel what prosecution evidence; character that the reunion evidence really impermissible family would be coworkers was irrelevant because there no Olsson’s dispute work; to and that the were concerned her failure at appear prosecutor not be to show that at home at stayed night” by should “she permitted was a she wonderful work.” person “proving counsel, agree trial court told defense “I’m with going you part what at the have hospital might

and not in terms of her duties totality.” “[I]n been, . . . the weighing I will overrule that I’ve objection engaged relevance, I see some not at the risk undue certainly process. prejudice.” Furthermore, whether ... trip terms of there was contemplated “[i]n 26th, I some to overrule that can see objection. I’m July again, going that, don’t see undue “With and I the risk of certainly prejudice.” relevance I’m your what I’ll as evidence to sustain going describe personality regard That, it, I understand I think there is based on the offer proof, objection. Now, that, it’s to me based relevance that. . . . not inconceivable a limited evidence, defense presentation on cross-examination or based on possible ... At this based like that could become relevant. something point, direct testimony.” does not to be relevant appear the offer of ... proof b. Prosecutorial misconduct claims Defendant claims the committed misconduct testi- by eliciting about the of Olsson’s celebrate her mony purpose planned trip Topeka—to father’s 85th of the trial violation court’s such birthday—in ruling limiting evidence to whether a but mention of its trip contemplated, omitting any did purpose. misreads record. The trial court not impose any such limitation. The court overruled the defense’s to testi- simply objection that a mony was It said further that could be construed trip planned. nothing requiring to omit mention of the prosecutor any purpose trip. Indeed, defense counsel did not about the object questions birthday celebration, that he did suggesting not believe violated the questions Crew, court’s His failure to ruling. also forfeits the claim. object (People 839.) 31 Cal.4th at supra, p.

Defendant next contends the committed misconduct when prosecutor ques tioning Barbara Green. he Specifically, argues prosecutor impermissibly asked Green a series of about when and she became concerned questions why after Olsson failed to Two appear work. of those questions—involving Green’s inability before Olsson killed and sleep night was her pact with Olsson that the two women would be with each other if one was not dying—did draw an objection, thus claim of forfeiting any misconduct.26 Crew, 31 Cal.4th at Defendant did to other object questions conference, about Green’s concern. an Following bench unreported the trial court sustained ultimately an when objection asked prosecutor Green, “What was it about this set of circumstances that caused to leave you so, however, work and your out to a go coworker’s home?” It did as to only Thus, the form of the even if we assume that the question. basis of misconduct, defendant’s at the objection bench conference was prosecutorial the trial court’s ruling that implicitly rejected ground. 26 Defendant cites other testimony, instances of Green’s testimony as well as the of Olsson’s sister, father and which he “impermissible” characterizes as object but to which he did not trial. He object concedes he did testimony, says to this but he presents part it as “of the context, misconduct, background factual of the claim to prosecutorial show to show and to how prosecutor show violating violated court’s orders notice.” explana We deem his any argument

tion to be a concession testimony based on this is forfeited and we do not consider or unobjected-to testimony address further whether this improper. was through Also threaded prosecutor claim is an assertion that the violated a court requiring notify order him to going both the court and trial counsel in advance he when court, however, testimony elicit might objectionable. the defense find simply the prosecutor notify instructed the court and counsel in advance when he “anticipate^]” characterized, might getting be into areas the court “for lack of better description,” as “victim Plainly impact.” ruling left prosecutor’s judgment. much to the Nowhere does defendant objection cite an part on defense counsel’s the prosecutor had violated the court’s instruction, any ruling by much less the court on the issue. The claim is therefore forfeited. Nonetheless, concern Green’s testimony regarding defendant asserts all Olsson’s to show the because it served only impact was impermissible decision to and her subsequent murder on her. We Green’s concern disagree. context and well-being provide house to check on her helped to Olsson’s go Moreover, Green’s timeline for the case-in-chief. to establish prosecution’s because she missed work the home of a coworker simply decision to to go unusual; the cause of her her to omit mention of to have forced (See credibility. about her concern have raised may unnecessary questions v. Box 130] Péople birthday murdered on his third “helped to the fact victim was [references and assisted the jury witnesses in context testimony prosecution place that these we are their credibility”].) Finally, unpersuaded in assessing emotional significant to Green’s concern had brief references relatively the jury. impact when he committed misconduct next claims the had never heard Olsson use profanity. that she testimony

elicited from Green was sustained. to the his objection Defense counsel objected question to the was remedy inadequate to demonstrate that Defendant fails impropriety. were intended to elicit to Green

Defendant claims two other questions asked Green whether evidence. The prosecutor “victim impact” impermissible referred to the only tempera- in the bedroom her of the coldness description “It could be a combination Green feelings. replied, ture or also Green’s Later, found in you ever had flashbacks to “what he asked her if she both.” do, “Yes, I twice 1986?” Green July replied, Olsson’s bedroom on Sandy death since the at least that frequently more. I know that it’s been a month or his forfeiting thus failed to to these object questions, Sandy.” Crew, supra, {People misconduct on appeal. claim of prosecutorial not, find no grounds he had we would 839.) Even if Cal.4th at p. exchanges. on these brief reversible misconduct based his Next, during in misconduct engaged defendant claims prosecutor father. While questioning Olsson’s Sandberg, Sandy of Clifford questioning came home door after she the front locking about Olsson’s habit of Sandberg someone come work, having remembered “ever he if Sandberg from asked the door?” the chain was on the door when and her opening over to house came and pounded when a man was a case” “special there Sandberg replied floor. Defense had fallen to the wife was ill and that his saying on the door “All The answer right. The trial court replied: narrative.” counsel “to objected asked then When prosecutor can remain. Next question.” to this up point objected defense counsel the neighbor, had gone help whether Olsson sustained, not before although objection grounds relevance answered, “Yes.” Sandberg claim, to defendant’s current

Contrary his initial objection Sandberg’s and, therefore, was not sustained response did not commit prosecutor event, misconduct when he asked a In the basis of the question. any followup objection not misconduct but that the prosecutorial answer was narrative. The court sustained defendant’s second on relevance objection grounds. He that the answer was not stricken and the complains counsel, however, admonished to it. disregard Defense did not either request and, event, remedy we are unpersuaded Sandberg’s single-word answer—“Yes”—was “highly prejudicial,” as now maintains.

Defendant cites as misconduct a series of questions by Walters, Olsson’s daughter, mother, Sandra about her with her relationship whether, the subjects conversations, of their conversations and from these Walters knew whether her mother much of a social enjoyed life and if she knew whether Olsson ever in the nude. Defendant failed slept to two object of the nine questions, resulting forfeiture. None of his objections remaining Rather, were for questions prosecutorial misconduct. were they largely technical objections such as foundation and inadequate hearsay. Moreover, Thus, defense counsel’s were objections sustained. even repeatedly assuming his claim is not forfeited by his failure to have objected these Crew, on the questions ground misconduct prosecutorial 839), Cal.4th at he fails to demonstrate the inadequacy ' remedy did receive when his various were objections sustained.

Moreover, we reject claim underlying that the evidence the prosecutor sought to elicit from these “was relevant questions only to the impermissible consideration of victim impact.” directed to questions Walters were also relevant to show—contrary to the of defendant’s statement implication to the police—that Olsson was a modest woman who led a life. quiet

Defendant also contends the in prosecutor engaged misconduct during closing argument when he “It argued: is time to a halt to the and put brutality viciousness of this defendant. And it is time to give Olsson back her Sandy name good and Defense reputation.” counsel that the objected was prosecutor to “inflame the attempting and that jury” his comment was “irrelevant.” The court “I indicated replied: to the now that this is argument. These are arguments The attorneys. are arguments not evidence in the case.” The prosecutor continued: “The evidence in this case establishes this man tried to take in the world everything that Olsson had and Sandy he did take everything, for her name and except good and he tried to reputation, take that and steal that like else he everything took on the morning July 1986.”

The comments about prosecutor’s the victim’s name good and reputation were allusions to undoubtedly defendant’s statement to about the police statement, from murder. In that that Olsson stole suggested Sandy drugs where worked and sold to like “Doubting she them hospital people who, defendant, Thomas,” . also Angel. was a Hells according kind male night that Olsson was the of woman who entertained late suggested in with Defendant’s engaged strangers. visitors sex statement Panah There was Cal.4th evidence. no misconduct. has a comment [prosecutor right 790] on the evidence in closing argument].) his during

Defendant also claims the committed misconduct prosecutor were rebuttal but he failed to to the he asserts object comments argument claim is therefore forfeited. improper. event,

In we would find no misconduct. defense During argument, truth in counsel maintained that defendant was telling defense repeatedly He about the circumstances the murder. statement police had, fact, that Olsson taken from the to sell drugs suggested hospital testimony by Thomas.” The of that “Doubting argument implication that she was a modest woman who lived quietly Olsson’s friends family It is the statement was not credible. in this context that the made prosecutor [(defense counsel)] attacked defendant now claims was misconduct: “He it that these victim. He even attacked the victim’s Isn’t family. outrageous in this some are here. Isn’t courtroom with outrageous folks so they’re who has Terrible Terrible because only her friends. thing. thing, person context, In argument to lie is the defendant over there.” prosecutor’s rebuttal on the issue of witness credibility. permissiblе c. Trial court error im- misconduct for eliciting

In with addition charging evidence, trial rulings defendant faults the court for victim impact proper he claims the trial court failed abetted the misconduct. Specifically, allegedly and erred by to relevant and material matters limit evidence argument He while was alive. evidence a the victim she into admitting photograph trial errors and also he was court’s cumulatively prejudiced by argues misconduct. prosecutor’s court failed to issue “firm rulings” response contends the trial

Defendant result, he asserts that the prosecutor exploited to defense As objections. victim evidence. rulings impact court’s to elicit vague improper rule his objection claims the trial court failed to adequately Defendant Juror that it would comment to J.B. to the voir dire Prospective prosecutor’s were unable to consider both penalties. be to Olsson’s if family juror unfair But defendant did not make a comment. contemporaneous objection Instead, he waited until both that and next prospective juror prospective J.W., had been juror, and excused. then did questioned defense counsel Only court, argue comment was The trial after from “inappropriate.” hearing sides, observed, both “I’ve heard that only reference on one occasion .... I think we could a fair amount of time whether it’s an spend appropriate I subject.... would ask at this time to our simply you note conversation for the record. If the situation arises react and again, you may I’ll appropriately react Ias feel appropriate.” short,

In the trial court declined to rule on the propriety prosecutor’s comment to a single to which defendant had prospective juror, failed to object at the time it was made. The court’s action was reasonable. There entirely was no need for the court definitive to make a unless the situation ruling recurred, which it did not.

Defendant contends the trial court’s on his ruling inadequate objection career, evidence of the prospective victim’s her to attend her nursing plans celebration, father’s 85th and birthday her habits and routines. He cites the court’s remark that the had prosecutor the court agreed give and defense counsel advance notice if “he that anticipates areas be the may subject direct at which testimony,” court would hear and point rule on any objections. Defendant asserts the court failed to the “areas” clarify over which the was to tread prosecutor Neither lightly. defense counsel nor the however, prosecutor, found it necessary clarification. This is request because it was clear in context the “areas” to which the court was were referring those areas of anticipated testimony witnesses by prosecution that defendant had career, just objected to: Olsson’s the family reunion evidence, and evidence of her habits and routines. that the complains prosecutor advantage “[took] [the court’s]

inadequate ruling by asking objectionable and questions eliciting improper testimony before an drawing objection.” not. The court’s instruction Clearly to the to advise it and prosecutor defense counsel of he questions anticipated tread might into potentially areas committed objectionable those decisions to the prosecutor’s That judgment. prosecutor defense counsel might disagree on this issue was to be asked expected. questions and, were thought permissible when the defense disagreed objected, trial court ruled on the specific some question, sustaining objections overruling others. Defendant argues by requiring objections specific the court prosecution questions, made it look as his counsel was though He “bullying” witnesses. cites in the record to nothing this support specula- Moreover, tion. the trial court’s instructions made clear were objections a normal of a trial. We discern simply part no error by trial court or misconduct prosecutor. claim

Defendant renews that the in closing his reference prosecutor’s to the name and were and faults argument victim’s good reputation improper the trial court for not his but the sustaining objection admonishing simply that not evidence. have that the jury arguments are As we concluded evidence, we no error in argument was comment on the find permissible the defendant’s trial court’s handling objection. to

Defendant contends the trial court erred sustain a defense by failing to the remark in that defendant had objection argument rebuttal prosecutor’s the name and of the victim. Defendant good objected reputation” “smear[ed] record that the remarks invited the to on matters outside the speculate and referred to a Defendant previous objection during arguments. opening had the tried to from that defendant had attempted prevent prosecutor arguing had to the victim’s name and because the trial court sully good reputation sustained an when the had asked Olsson’s objection prosecutor supervisor, Brick, about The honesty integrity. Olsson’s Margaret reputation an that on Brick’s that argument testimony his based prosecutor replied audit had revealed no missing drugs hospital during period from there, Olsson had worked of defendant’s statement contrary implication had stolen counsel also drugs Olsson sold she from Defense hospital. could not base his on defendant’s argued argument prosecutor statement because the had introduced that statement. prosecutor police court It also ruled that the could argument. prosecutor support rejected his with audit Brick’s argument drug testimony. did not that the overruling objection

The court err in defendant’s prosecu- tor’s Defendant’s argument rebuttal referred matters outside record. by and the audit Brick were drug testimony statement police them.27 these same evidence and the could comment on For prosecutor reasons, denied claim that trial court erred when it we reject his on the rebuttal prosecutor’s argument. motion for mistrial based can be of. He renews summarily claims remaining disposed

Defendant’s trial his to exclude Olsson’s his claim the court erred when denied request already We have guilt members from the courtroom during phase. family and, (See given, again. for the reasons do so rejected argument his previously 1003-1006, ante.) ruling renews his claim that trial court’s Defendant pp. Kansas for about testimony Olsson’s regarding scope planned trip by prohibited that the renews the claim made trial counsel prosecution introduced commenting police because from on defendant’s statement Moreover, noted, already defense counsel authority cites no for this assertion. statement. He argument, suggesting that had been closing relied that statement his own drug committed dealer and the murder was police when he told Olsson was truthful party. third Doubting Thomas or some other

1019 her father’s in that it did not birthday ambiguous clearly preclude from evidence of the of the prosecutor presenting purpose trip opposed and, the mere fact of it. We have this claim for the reasons already rejected 1016-1017, 1013, (See ante.) do so previously given, again. pp. contends the trial court cut he defense counsel off when was attempting object references to the victim’s name and prosecutor’s good reputa- tion. Not so. court had heard extensive when it already argument counsel, off, sir, remarked to defense “I don’t mean to cut I’d but what you like at to do this time is . . . an give ... to memorialize you opportunity attention, issue because it to you now I want to make sure we brought my have a record about that which we do.” The court made a ruling preliminary with to the kind of respect testimony could elicit from his first witness, Maxine Gatten. The then resumed their parties argument both this session and in the next court session at even greater than before the length court’s comment. In no does the way record claim support the court him from prevented making on comprehensive argument this issue.

Defendant contends the trial court abused its discretion when it admitted evidence that Olsson’s coworkers were concerned when she failed to appear for work and, We have July 1986. previously rejected this argument for the (See 1013-1014, reasons do so given, ante) again. We have also pp. rejected his claim that the trial court erred when it admitted testimony by and, Barbara Green about her flashbacks to the crime scene for the reasons (See we do given, ante.) so again. Defendant contends evidence and, therefore, Olsson’s at the duties medical center was irrelevant the court abused its discretion in such We admitting testimony. disagree.

A focal point prosecution’s case was showing Olsson’s was all job consuming accounted for her which excluded quiet lifestyle, Thus, possibility drug dealing the nature and promiscuity. scope relevant, her professional duties were and the trial court acted well within its considerable discretion when it admitted such evidence. Defendant contends the trial court erred when it overruled his foundational objection testimony that his by Sandberg in flannel daughter based on his slept pajamas observa tions when he Code, with her from stayed (Evid. October to March. § [“Any otherwise admissible evidence of habit or custom is admissible to conduct on prove occasion specified with the habit conformity or custom.”].) determination of the admissibility “[T]he [habit custom] evidence rests in the sound discretion of the trial court.” (People Hughes P.3d Here the court reasonably concluded that observations of his Sandberg’s daughter’s and the fact that he sleepwear laundered her regularly the six pajamas during months a year with her stayed sufficient provided foundation for was mur- on the she night contention that she wore pajamas prosecution’s them her assailant. forced to remove dered and was when it admitted court abused its discretion Defendant contends the trial clothes while she Olsson in her work of Sandy into evidence photograph but the offered to to identity, the defense had stipulate was alive. Initially, showed the photograph The prosecutor rejected stipulation. prosecution Later, the defense to admis- objected identity. witnesses to establish several The trial irrelevant and it was grounds prejudicial. sion of the photograph the objection. court overruled used the acknowledges, photograph

As defendant prosecutor “Our cases different witnesses. four examining identification while purposes while alive. of victims uses of photographs [Citations.] have similar permitted (2003) v. (People admitting photograph[].” find no error in Martinez We [this] 648, “The 673, 748].) 74 P.3d photograph, 31 Cal.4th 692 Cal.Rptr.3d [3 witnesses, the witnesses’ relevant to establish to three was which was shown were they testifying. as the about whom the victims identify people ability not enough, by for the victims is that it generated sympathy possibility itself, v.DeSantis (People if it was otherwise relevant.” its exclusion compel Moreover, 628, 1210].) P.2d 831 1230 (1992) Cal.Rptr.2d Cal.4th [9 nurse, reject was a we was aware Olsson given jury because she prejudicial particularly claim that photograph clothes. in her work depicted from impact cumulative prejudice contends that suffered

Defendant above. We errors discussed and the trial court misconduct of the prosecutor’s error, or, of individual prejudice, errors if his claim of have rejected cumulative prejudice. not have suffered therefore he could in closing argument misconduct G. Prosecutorial in his guilt in misconduct engaged contends the prosecutor closing argument.

phase of defense First, integrity impugned contends prosecutor rhetorically, asked when prosecutor in his rebuttal argument counsel his client was believed the feeling counsel] ever you get [defense “[D]id “improper” that the remark was objected truth?” Defense telling is advised “The instructing: obliged, The court an admonition. requested mistrial, sought the defense comment.” Subsequently, this disregard denied. The motion was admonition was inadequate. that the court’s claiming court’s instruction. understood and applied fully We the jury presume 339, 356, fn. 13 Cal.Rptr.3d (2009) 46 Cal.4th [93 v. Curl (People 207 P.3d

Defendant contends the in misconduct when the prosecutor engaged pros- man,” ecutor referred to him as “a excuse for a despicable “despicable individual,” and “a “garbage,” sucker.” Defendant failed to to the last object remarks, three thus forfeiting his claim of misconduct on (People appeal. Panah, supra, 462.) Cal.4th at p. event,

In find we no misconduct. We have observed that a is not prosecutor to discuss his “required view case in clinical [or her] Panah, or detached detail.” (People 35 Cal.4th use “[T]he of derogatory to describe a defendant epithets misconduct.” necessarily v. Friend 520] “ described as like a mole ‘living ”].) [defendant rat that he is’ “A is allowed to make vigorous arguments even use such may evidence, as are epithets warranted as these long are not arguments and inflammatory aimed at principally or arousing of passion prejudice the jury.” (People Pensinger (1991) 52 Cal.3d 1210, v. 1251 Cal.Rptr. [278 640, 805 P.2d We have claims repeatedly rejected of prosecutorial misconduct the use of such involving epithets guilt arguments. (See, phase v. People Young e.g., (2005) 1149, 112, 34 Cal.4th 1195 Cal.Rptr.3d [24 misconduct where characterized prosecutor 487] [no crimes as “ ” “ ” ‘serial and killing,’ ‘terrorizing (italics omitted); killing’ people v. Jones People (1998) 279, 793, 17 Cal.4th 308-309 P.2d Cal.Rptr.2d 949 [70 ineffective assistance of 890] [no counsel for failure to to object prosecutor’s characterization of defendant’s crime as a “terrorist attack” and comparison of “terrorists”]; to People Pensinger, v. supra, 52 Cal.3d 1250-1251 misconduct where referred to prosecutor [no defendant as a “ Here, ‘perverted ”].) cases, maniac’ as in those we conclude that these which were epithets, but fleeting characterizations in the course of the summations, prosecutor’s very lengthy did not constitute misconduct. Defendant contends committed (Griffin v. prosecutor error Griffin (1965) 380 U.S. 1229]), L.Ed.2d 85 S.Ct. when he [14 California argued the jury should assess the credibility defendant’s statement to using same police standards as Griffin, to trial In “the applied testimony. high court held the prosecution may not comment on a defendant’s failure to testify.” (People Bennett 45 Cal.4th P.3d 535].) That did not here. As the trial court happen observed aptly

when it denied defendant’s mistrial motion on this “There ground, was no reference to the defendant’s failure to The testify.” General contends Attorney the prosecutor’s comments “simply urged jurors evaluate the credibility out-of-court statements—which had been received [defendant’s] into evidence under the hearsay for the exception admission of party— under the same standards and criteria used to evaluate in-court testimony.” We agree. declarant to the same as if

A standards hearsay subject credibility Code, (Evid. “the been a at the hearing.” declarant witness [had] § Here, alone that its evidence that defendant argued proved prosecution had murdered Olsson. inconsistent defendant’s state Sandy This was with Thus, ment to that a third committed the crime. police party did not credibility. confronted with a question prosecutor err should standards that statement as they they same arguing apply would to the of a That limited testimony argument witness. was plainly did not or police directly indirectly defendant’s statement implicate defendant’s decision not at trial. testify

Defendant next contends that the misstated the evidence referred facts not in evidence he cites argument. during Specifically, comment that safe in her because neighborhood “you Olsson felt prosecutor’s know mean there are on the windows.” neighborhood, this is I no bars good there safety Defendant contends was no evidence neighborhood’s latitude to whether Olsson felt secure her home. have wide “[P]rosecutors draw trial . . . .” reasonable inferences from the evidence at presented Zambrano, 1153-1154.) The evidence pp. neighborhood single-family showed that the victim lived in a quiet abutted a course. It further that she showed dwellings partly golf in her own a chain lock safety no home employed precautions beyond special Sandberg’s on the door that was broken. There was also front easily door one that when a had come at Olsson’s neighbor knocking testimony it. of the neigh- The characterization night, she .simply opened prosecutor’s not borhood and the victim’s sense of was security impermissible. that misstated the law when he argued

Defendant contends prosecutor of first theory not have to unanimously agree did jury applicable an anal- using murder or degree murder—burglary murder—by premeditated as to to “Just like in where can be divided burglary you ogy burglary: steal, rob, entered, it it was whether it whether whether he was to was why had one of those to do as all that he that intent or long you agree both. As case, intents, as you agree of In this as guilty burglary, long he’s particular [f] killed, during or that it occurred things he either had all these when he was improper course of a burglary.” complains argument that the never with either or robbery; defendant was charged burglary because for premeditated burglary conflated intent requirement prosecutor murder; were that things’ “he did tell them what ‘all these burglary as murder.” felony, could to a finding opposed lead them of premeditated, theory need not on the same The was correct that the jury agree prosecutor v.Nakahara (People of to convict defendant of charge. first murder degree 223, 705, 1190].) was He 712 68 P.3d (2003) Cal.4th Cal.Rptr.2d [134 when, that, also correct he by way analogy, out there was pointed similarly, no unanimity for v. Russo 25 Cal.4th requirement burglary. (People 1124, 1132-1133 It is from the Cal.Rptr.2d plain [108 context that he was not or crimes speaking burglary robbery separate but, rather, alluding burglary because the offense was before the jury murder and purposes felony burglary-murder circumstances.28 special that, General Attorney argues when the referred to “all prosecutor willful, these things” to a chart on which the alluding elements of deliberate and murder had been itemized in premeditated contradistinction to murder. The record burglary lends some General’s support the.Attorney in assertion that it is clear the charts using to illustrate legal no, however, that, context, Chart or we concepts. agree the prosecutor’s reference to “all these was to the things” elements of murder premeditated which he had at some explained before length jury addressing burglary Thus, murder. we conclude the could not have led the phrase to believe jury that the elements of murder and murder were the premeditated burglary same.

Finally, defendant argues the cumulative effect of the prosecutor’s misconduct reversal. As requires we have found no misconduct in the summation, we prosecutor’s find no necessarily cumulative or prejudice, individual. Stitely (2005) [26 108 P.3d 182].)

H. Jury unanimity that,

Defendant contends light Apprendi Jersey (2000) v. New 530 U.S. 2348], L.Ed.2d 120 S.Ct. constitutional were violated rights because the was not instructed jury that it must on a unanimously agree murder, is, of first theory degree whether was murder premeditated Furthermore, murder. burglary he asserts also Apprendi required unanimously agree on which of the two possible target offenses—theft or rape—supported burglary-murder of first theory degree murder. We have previously rejected these and arguments do so again. elements,

“[Although two forms of murder have different a only single statutory offense of murder exists. murder and Felony premeditated crimes, murder are not distinct and need not be separately pleaded. [Cita As for defendant’s claim that a instruction should have been unanimity tions.] contention, our cases given, have repeatedly rejected this that the holding 28 think prosecutor’s may We slip tongue reference to “rob” have been a and that which, instructed, say what he meant “rape,” jury correctly as the other was the instructions, predicate burglary light crime for murder. In reject of those we the notion that the reference could have jury. confused or misled the 1024 on a first either

jurors degree need not of murder as unanimously agree theory murder or and murder with deliberation. felony premeditation [Citations.] [][] Jerseyl, v. New U.S. by Apprendi supra,] We are not otherwise 530 persuaded There, a the United States Court found constitutional require- 466. Supreme crime, for a than my ment that that increases maximum other penalty fact conviction, finder, a be submitted to the fact formally must prior charged, element, treated as a and a doubt. beyond criminal reasonable proved see nothing Apprendi We that would unanimous require jury [Citation.] theory of murder. finding verdict as to first particular justifying degree 556, v. 584, (See (2002) 536 610 Ring also U.S. L.Ed.2d [153 Arizona 2428, doubt beyond 122 S.Ct. reasonable [requiring jury finding 2443-2444] Nakahara, v. (People supra, as to essential to 30 Cal.4th punishment].)” facts 574, 712-713, italics; v. (2010) People Taylor at see 48 Cal.4th original pp. 87, P.3d contention that for Cal.Rptr.3d [rejecting purposes 12] [108 offense].) murder the on the agree of must felony jury unanimously target Instructional error claims I.

1. Consciousness instruction guilt case given consciousness instructions in this guilt Defendant contends 2.03, 2.06, (CALJIC 2.52) Nos. were contradictory misleading burden of These standard instructions proof.29 lessened prosecution’s to be from the state inference drawn regarding guilt explicitly statement, them—a false or misleading circumstances described by willfully evidence, and insuffi destruction or suppression flight—is permissive Nonetheless, defendant claims the could have cient alone to prove guilt. alone it was not him based consciousness of even if guilt convicted a reasonable doubt. As defendant beyond otherwise convinced of his guilt we to these instructions. rejected challenges have acknowledges, repeatedly Zambrano, 1159; People (See v. People 41 Cal.4th generally 400].) Jurado 125-126 131 P.3d (2006) 38 Cal.4th Cal.Rptr.3d [41 to revisit We have also authority. previously rejected We decline this instructions. he makes here that such instructions are improper pinpoint claim Holloway do so again. We made a you 2.03 as “If find that before this trial the defendant given CALJIC No. stated: crimes he is now deliberately misleading concerning statement for which willfully false or tried, tending to conscious may prove as a circumstance being you consider such statement However, guilt weight and prove not sufficient itself to and its guilt. such conduct ness No. contained similar any, your if are determination.” CALJIC 2.06 significance, matters CALJIC contained concealment No. 2.52 language regarding the destruction or of evidence. committing a crime. accusation of language regarding flight after the commission or similar

1025 2. Circumstantial evidence instructions

Defendant next contends that the circumstantial evidence instructions given in this case lightened burden of impermissibly prosecution’s proof (CALJIC No. 2.01 one of circumstantial evidence interpretation [when unreasonable, reasonable and appears the other must the reason- jury accept standard, able circumstantial CALJIC No. 2.02 interpretation]; [same 8.83, state]; evidence of intent or mental CALJIC specific Nos. 8.83.1 [same standard, for special circumstance intent allegation or mental specific state for circumstance special allegation].) “Defendant that we acknowledges have rejected similar arguments cases. find prior We our [Citations.] reasoning those cases to be (People Morgan (2007) sound.” Cal.4th P.3d 129].) Cal.Rptr.3d [67 3. Voluntary intoxication

Defendant contends the trial court erred when it failed to give voluntary intoxication instruction as to the circumstance. burglary-murder special Defendant that the acknowledges court did give the instruction with respect (murder) to count 1 (assault and count 2 with intent to commit rape). jury instructed, in relevant “If the part: evidence shows that the defendant was crime, intoxicated at the time of the alleged you should consider that fact in state, whether determining defendant had such intent or mental specific If [f] from all the evidence have a you reasonable doubt whether the defendant formed states, such intent or mental specific must find you that he did not have such intent or mental specific (CALJIC states.” 4.21.) No.

argues court’s failure to give this instruction as to the circum- special stance may have led the jury whether ignore intoxication prevented from forming intent specific to establish the required special circumstance, e.g., intent to steal or specific commit rape.

“In error, a claim assessing of instructional ‘we must view a challenged “in the context of the portion instructions as whole and the trial record” to “ determine ‘whether there is a reasonable likelihood that the has jury applied ’ the challenged instruction in a way’ violates Constitution.” [Cita- v. Jablonski tion.]” The voluntary intoxication instruction informed the jury

could consider the effect of defendant’s intoxication on to form the ability intent or mental state” required “specific at “the time of the crime.” alleged This included all necessarily conduct and events the crimes comprised Indeed, and the circumstance. special was further instructed that the circumstance if special murder was committed applied only while the “[t]he defendant was in the engaged commission commission of a attempted burglary.” on defendant’s intoxication evaluated the effect of

The could not have jury murder intent for of burglary purposes to form ability required specific This circumstance. the issue with deciding respect special without also evaluated the effect of could not have true of count 2. The jury is also intent he formed the specific to whether defendant’s intoxication with respect deciding without also with intent to commit rape for assault required is, circumstance That the question allegation. issue for the special intent was the on his to form ability specific intoxication effect of defendant’s murder, to commit or with intent rape, it assault felony same whether was for one In the issue resolving circumstance. the burglary-murder special defend- reject we Accordingly, it for all purposes. resolved jury purpose, instructional error. ant’s claim that, the voluntary claim as given, defendant’s further

We also reject it it told the “should” jury because inadequate intoxication instruction was did The use of “should” it or must.” rather than “shall consider intoxication The defendant’s intoxication. whether to consider discretion jury give a reasonable informed that if entertained they the jurors next sentence very mental states to form the requisite ability doubt regarding There was conclude that he did not. “must” they because of his intoxication error. no error

J. Cumulative guilt phase error of guilt phase requires the cumulative effect Defendant contends and/or found “However, his claims rejected we either have reversal. whole, as a an individual basis. Viewed error to be nonprejudicial assumed v. Stitely, supra, (People reversal of the judgment.” errors do not warrant such activity penalty phase criminal Admission unadjudicated K. 190.3, evidence (b), the presented factor prosecution

Pursuant to section 190.3, altercations. Section in two jailhouse had been involved that defendant of criminal or absence presence to consider (b) factor allows “[t]he or use of force the use or attempted involved the defendant which activity by or violence.” threat to use force or implied violence or expressed Phillips hearing (1985) 41 Cal.3d 29 held a Phillips court (Phillips)) determination make a preliminary P.2d Cal.Rptr. 423] admissible. the evidence was whether error; (2) the court’s Phillips ruling (1) hearing argues law because violated state the altercations of the evidence admission violence; did not use force the aggressor

defendant was not because guarantees due federal process the evidence violated admission of acts of ‘violence’ bad for prior “allowed the jury punish [defendant] admission (4) at the guilt phase”; crimes any proven unrelated wholly were 190.3, (b) applied unconstitutional factor section the rendered of evidence had no conduct that of the introduction it “allowed this case because in determination”; (5) admission to the penalty issue relevant any on bearing the Eighth violates minimis acts in aggravation” evidence of “such de cases; (6) and in reliability” capital “heightened Amendment’s requirement linking misconduct by committed the closing argument in his of rape. had been convicted witness who to a defense phase defendant penalty 190.3, (b) . . . provide factor section “Both former present consider, determination, if fact is to the trier of in making penalty ‘ relevant, activity by of criminal “The or absence presence or violence or expressed use of force the use or attempted which involved ’ . . . or violence.” [E]vidence threat to use force [Citation.] or implied the conduct was prohibited under this must establish admitted provision crime. elements of the the essential a criminal statute and satisfied (b) other the factor bears the burden of proving The prosecution [Citations.] 1104, Cal.4th v. Moore (2011) 51 (People doubt.” crimes a reasonable beyond evidence be 2, 1153].) may other crimes 253 P.3d 1135 Cal.Rptr.3d [127 41 (Phillips, supra, or a misdemeanor. to either a amounting felony conduct significant enough the other crimes evidence is Cal.3d at Whether for the jury. in the determination is question be given weight penalty 554, 334, v. Smith Cal.Rptr.3d (People [25 229].) advisable for cases it be may we admonished that ‘in many

“In Phillips, before penalty phase trial court to conduct a preliminary inquiry each element’ of determine whether there is substantial evidence prove under in aggravation intends to introduce violent crimes the other prosecution ‘Moreover, to admit 190.3, a trial court’s decision (b). . . . section factor abuse of is reviewed for phase “other crimes” evidence penalty where, fact, discretion, will be found and no abuse of discretion v. Whisenhunt sufficient.’ legally evidence question [Citation.]” 125, P.3d (2008) 44 Cal.4th case, called the two in this the Phillips hearing prosecution At Sheriff altercations. Deputy witnessed the jailhouse correctional officers who that, dinner at the Santa testified while he was supervising Robert Pinkerton drawn to defendant attention was January Rita county jail were inmate, the two men Mendoca. Pinkerton testified Derek another did not other.” Pinkerton at each throwing in a fistfight, punches “involved landed, He fight. did he see who started nor recall if punches immediately separated two men. Mendoca was but defendant uninjured had cut treatment at a lip required hospital. incident, Sheriff

Deputy Michael Perkins testified about the second which occurred on September 1991. About 4:00 he heard a commotion and p.m., saw defendant and Robert “clutched McKinney in a match.” The wrestling two men “threw a at each other and couple punches” again each “grasped land, other and started around.” Perkins did wrestling not see any punches nor could he remember who threw first Defendant was treated for punch. “bruises and to his face bumps” was treated McKinney for an injured eye.

The trial court denied defendant’s motion to exclude evidence of these incidents. The two sheriffs testified for the deputy at the prosecution penalty phase, essentially had at the repeating testimony they given Phillips hearing. Derek Mendoca testified defense that he threw the first punch at defendant after defendant mustard or wiped Mendoca’s shirt. ketchup He testified further that he and defendant were friends before and after the cross-examination, fight. On Mendoca testified he had been convicted of and robbery kidnapping, rape. issue,

theOn other crimes was instructed that before it jury could circumstance, consider two batteries an as it find aggravating must a reasonable doubt that beyond defendant committed them. The was also jury innocence, instructed on the the burden of presumption and the proof elements of misdemeanor The latter instruction informed the battery. use of force and violence is not unlawful when done in lawful

“[t]he self-defense. The burden is on that the and People use force prove violence was not in lawful self-defense. If have a you reasonable doubt that unlawful, such use was must not you consider evidence for any purpose.” The trial court did not abuse its discretion when it admitted the evidence of the jailhouse altercations. The Pinkerton and testimony by Perkins Deputies constituted substantial evidence sufficient to misdemeanor prove battery. Defendant asserts the first incident did not constitute because Pinker- battery ton did not see defendant land a blow and there no touching without However, Pinkerton battery. testified that had started” before his “fight attention was drawn to it. He saw the men at each other “throwing punches” and, after were noted that defendant was Pinkerton’s they separated, injured. established that men were involved in mutual combat—as testimony to Mendoca defendant—and that the had opposed unilaterally attacking fight started when Pinkerton’s attention was drawn to it and blows had already been thrown with sufficient force to defendant. It was a reasonable injure inference from this that defendant had also struck Mendoca. testimony and threw fight trial that he started cites Mendoca’s testimony however, trial court when not before the testimony, This was only punch. motion. Phillips ruled on the incident, there Perkins’s obviously given touching,

As second in a wrestling were “clutched McKinney testimony This charac- that this was consensual.” “touching match.” Defendant asserts as a whole. Perkins testified light terization is of the record unsupportable at and that two men separated that the altercation took mealtime place this Plainly, other before each other. again grabbing threw at each punches trial did not abuse its court fight, horseplay sport. Again, evidence of altercation. discretion this admitting violated his Defendant contends that admission of the altercation evidence to due under state he “was not the aggressor law because right process use force forfeited because defendant failed did not or violence.” claim is trial it below. without The evidence before the court to raise It is also merit. Phillips minimum, that, indicated at each altercation involved hearing evidence, mutual combat rather than a unilateral attack on defendant. The" we have evidence that defendant used also constituted sufficient explained, Therefore, the factual force or violence to the issue before the jury. put of defendant’s claim and it fails on its merits. predicate collapses in Defendant next that the crimes evidence admitted this contends other 190.3, (1) (b) case renders factor unconstitutional because section applied it allowed the him for of violence unrelated to crimes acts jury punish convicted; which he In a related (2) of his conduct minimal. claim, he contends admission of other crimes evidence violated Eighth cases. reliability” Amendment’s of “heightened requirement capital 190.3, (b) of “is to enable the to make an purpose jury section factor individualized of of a defendant history assessment character v. Grant imposed.” determine nature of the to be punishment 444, 45 755 We have (1988) Cal.3d 851 P.2d Cal.Rptr. [248 any held that the statute not violate federal constitutional does repeatedly Smith, v. e.g., People (See, 368 Cal.4th guarantees. [admission Amends.]; People acts does not 8th or 14th adjudicated violent violate Jenkins (2000) P.2d 1044] [95 claim of evidence of unadjudicated that “use [rejecting 190.3, (b), to section factor activity criminal ... in aggravation pursuant Sixth, Fifth, Eighth renders his death unreliable and violates sentence Constitution”].) his state Fourteenth Amendments of the federal Like law claim, his tenden federal claim is based entirely defendant’s “as applied” he was of the “minor” and as to which tious view altercations as jailhouse the aggressor. We have concluded the trial court did not err in submitting evidence to the Whether jury. defendant’s use of force was legally justified and the if weight, to be any, given to these incidents for of the purposes individualized assessment of his character and were history matters for the to decide jury light instructions it. given to We find no violation of defendant’s federal constitutional under rights Eighth Fourteenth Amendment in either the submission of the evidence to the or the jury’s consideration of it.

Defendant next that the argues committed misconduct during when, closing Mendoca, argument to defense referring witness he said: “How many you would have guessed ais But he a friend rapist? [Mendoca] the defendant’s.” remark, Defendant failed to object and his claim of event, misconduct is forfeited. In there was no misconduct. The prosecu- tor’s statement was made in the context of Mendoca’s questioning credibility because of his convictions for and his rape acknowledged with friendship defendant, both facts that were in evidence.

In 190.3, we find summary, no error in the admission of the section factor (b) evidence in this case.

L. Trial court’s admission victim evidence impact the trial challenges court’s admission of victim evidence impact on both constitutional and evidentiary His are grounds. arguments without merit.

“The introduction of victim evidence in cases does impact capital not violate any rights guaranteed United States (Payne Constitution. Tennessee 501 U.S. 808 L.Ed.2d 111 S.Ct. 2597]____) In ‘ Payne, United States Court Supreme State has a explained “[T]he legitimate interest in counteracting evidence which the defend mitigating in, ant is entitled to the sentencer that put by reminding as the murderer just individual, should be considered as an so too the victim is an individual whose death loss to represents and in unique society particular ’ family.” ‘We have followed court’s lead high and [Citation.] [citation] have also found such victim evidence admissible impact as circumstance of 190.3, the crime (a) to section factor pursuant [citation].’ [Citation.]” 158, (2010) 153, v. (People Mills 48 Cal.4th 211 226 P.3d Cal.Rptr.3d [106 “ ‘Unless it invites a irrational from the purely jury, response effect of a crime devastating on loved ones and the capital is community 190.3, relevant and admissible aas circumstance of-the crime under section (a).’ factor ‘The federal Constitution bars victim evidence impact [Citation.] if it is “so only unduly as to render the trial prejudicial” “fundamentally

1031 ’ 1221, (2009) Cal.4th 1240 v. Bramit 46 (People [96 unfair.” [Citation.]” 35 574, Stitely, v. (Bramit)', supra, see People Cal.Rptr.3d 1171] “ is limited the victims’ 565.) testimony not impact Cal.4th at p. ‘[V]ictim (Mills, supra, the crime ....’ or to during relatives persons present [Citation.]” “limited to circum evidence 213.) 48 at Nor victim impact Cal.4th p. of crime.” at the time known or the defendant stances foreseeable 1240; Cal.4th (2004) v. 32 (Bramit, 46 Cal.4th at see Pollock p. People supra, 34, 1153, have victim approved P.3d 1183 89 Cal.Rptr.3d 353] [“We [13 not at the murder witnesses who were testimony present from impact multiple characteristics unknown scene and who circumstances and victim described [Citation.]”]) to the defendant. 1986, in evidence

When defendant murdered Olsson victim Sandy impact trial, But, in cases. defendant’s 1992 inadmissible capital prior Tennessee, 808, in U.S. Unitеd States Court v. 501 Supreme Payne supra, (1987) in 482 U.S. 496 Maryland its earlier decision Booth v. overruled 2529], Amendment Eighth L.Ed.2d S.Ct. and held that the 107 [96 827.) at (Payne, no se bar” to victim evidence. per impact p. “erect[ed] Thereafter, in Edwards 54 Cal.3d 787 People v. [1 in (Edwards), P.2d we revisited the issue of victim evidence impact 436] held, in Gordon People to our earlier decision v. light Payne contrary 251], (a) P.2d that “factor (1990) 50 Cal.3d 1223 Cal.Rptr. evidence on the harm caused argument section 190.3 allows specific defendant, at (Edwards, the victim.” family on the including impact where, here, the 835.) murder occurred “Payne Edwards even p. apply Booth, Stitely, while U.S. was in effect. supra, [Citation.]” at 35 Cal.4th supra, p. Edwards, 787; decline. overrule 54 Cal.3d we urges supra, us to

Next, evidence violates defendant contends that admission of victim impact Payne it does not. and Fourteenth Amendments. Clearly, light Eighth Payne by subsequent Defendant’s has been undermined suggestion a claim that be of the United States Court is should decisions Supreme of victim to that Defendant contends further that admission addressed body. facto and due evidence in this case violated ex impact post principles process defendant did Assuming the crime was committed because pre-Payne. below, it we have failing previously rejected forfeit this raise objection by Roldan, [“applying and do so again. (People does not a case where the crime decision Payne preceded rule in that also contends admission violate ex facto post principles”].) not limited facts or circumstances known victim evidence impact claim did not forfeit this Assuming defendant is unconstitutional. below, (Bramit, at we it. 46 Cal.4th supra, to raise it have by failing rejected Pollock, 1240; 1183.) at We do again. v. 32 Cal.4th so supra, p. p. People 1032

Defendant also the victim case was argues impact testimony this unduly and prejudicial inflammatory. about Specifically, complains testimony from victim’s that family she died before her could children her give that, son; that had been grandchildren; she an “anchor” to her following murder, Olsson’s her had fearful daughter become for her and safety personal of emotional that her sister had feared news of intimacy; daughter’s death attack; might have father given her a heart her sister’s guilt having died; been with the when victim she and her father’s belief Shirley Olsson had been tortured.

“This court has arguments ‘that victim previously rejected impact evidence must be [citation], confined what is aby witness provided single [citation], that victim witnesses must have witnessed the crime and impact such evidence is limited matters within the knowledge ....’” McKinnon, (People Indeed, supra, 690.) 52 Cal.4th at are p. “People ‘ entitled to life present “complete histor[y] murder from [of victim] ’ ” v. Garcia 706, childhood to (People early (2011) death.” 52 Cal.4th 751 617, 258 P.3d are Cal.Rptr.3d also entitled to People [129 present full (See, the victim’s death on his or her impact survivors. e.g., v. Scott 452, 466-467, People (2011) 91, 494-495 Cal.Rptr.3d [129 P.3d father 257 testified he could not about what stop thinking 703] [victim’s died; sister, victim endured before she victim’s brother and brother-in-law murder]; v. Booker testified to their residual fear People (2011) following 141, 722, Cal.4th 51 245 P.3d Cal.Rptr.3d 193 [testimony by [119 366] victim’s mother her suicide and about “was attempt hospitalizations relevant evidence”]; v. Cowan People victim 485 impact Cal.4th [113 [testimony by victims’ Cal.Rptr.3d daughter grand 1074] about daughter they imagined what the last moments of victims’ lives were like “was relevant to the witnesses’ own states of mind and effect that murders had them and therefore was victim upon personally, permissible v. Ervine People impact (2009) 47 Cal.4th testimony”]; P.3d not limited “to impact testimony is 820] [victim but of human expressions grief’ “encompasses spectrum responses, [citation], [citation], including fear and an anger aggressiveness inability [citation]”].) work We have reviewed the victim evi carefully impact dence in this case. from unduly Far being inflammatory prejudicial, evidence admitted here was of the victim evidence ‘we ‘typical’ impact “[t]he Scott, have routinely allowed.’ Cal.4th at [Citation.]” defendant contends that the victim evidence should Finally, impact relevant, been have excluded because of notice. “As here section inadequate case the evidence in 190.3 provides capital prosecution may present if has the defendant ‘notice of evidence to be given aggravation only court, . . . within reasonable of time as determined introduced period

1033 the the must be ‘before given trial.’ To be notice timely, to prior [Citation.] the learns as the prosecution trial as soon thereafter cause is called to content, must the notice be as to To sufficient evidence exists.’ [Citation.] ‘ to the a defense to prepare reasonable opportunity the defendant “a afford ’ (People Mayfield, supra, at Cal.4th allegation[].” [Citation.]” victim Here, of to present impact the filed its notice intent prosecution all the family the names of the The notice listed began. before trial testimony father, sister, ultimately and son—who daughter members—the victim’s testified, did court of not. The trial as the names coworkers who well evidence the of victim impact conducted hearing admissibility pretrial Later, and Edwards decisions. Payne in denying the of then recent light the notice inadequate to exclude evidence on grounds defendant’s motion below, no the victim impact the court ruled: evidence on trial “[T]here guilt adduced at the or is phase that was not anticipated already issue based on the that is be reasonably within the of evidence to range anticipated .” the member . . . the death and loss of family notice with to given respect at matter was discussed court its “That noting: referenced pretrial ruling, trial, and the is clear as of this record guilt the commencement the phase as the trial was to address that issue how the court addressed or prepared progressed.” erred. He asserts the prosecution’s

Defendant nonetheless claims the court it did not contain information as notice because “inadequate so. Given testimony.” victim Not substance proposed impact members, extensive family notice of intent call prosecutor’s pretrial evidence, victim permissible impact discussion about scope defense counsel guilt actual of two of those witnesses testimony phase, intended call could not have failed to understand that her their with relationships victim’s members to family testify an sufficient to afford defense effect of her death on them. This was further what a defense. No spеcification opportunity prepare Ledesma People (2006) 39 Cal.4th (See evidence would be required. P.3d evidence impact M. Prosecutorial misconduct: victim elicited inadmissible claims that the prosecutor 1. Defendant’s orders; by court erred denying court testimony violated two mistrial motions during in misconduct engaged Defendant contends the prosecutor the trial eliciting testimony examination of his victim witnesses impact that the prosecutor He also asserts court had ruled inadmissible. specifically violated the trial court’s order that the ask prosecutor only leading questions of his victim witnesses to avoid them impact into areas the court having stray result, had contends, ruled inadmissible. As a he he to was compelled repeatedly object to the prosecutor’s examination of his witnesses. Finally, claims the trial erred court when it denied his two motions for mistrial. Defendant’s claims are without merit. noted, trial,

As at the of time defendant’s 1992 victim evidence had impact only recently become admissible in a Payne capital trials as result of the ‍‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌​​‌​​​​​‌‌‌‌​​‌​‌‌​‌​​​​​‌​​‍and Tennessee, 808; Edwards, Edwards (Payne supra, 502 U.S. decisions. Thus, observed, Cal.3d as the trial court of regarding scope

permissible victim evidence there “are few this impact very in guidelines area,” a and “is difficult very area Before the everybody.” penalty phase began, the a prosecutor made offer of as lengthy every to victim proof impact Afterwards, witness he intended to call. both sides their argued position regarding of such proper scope evidence. Defense counsel a argued for sister, narrow of the case law: interpretation statement of simple my “[I]t’s my mother is and I daughter, my gone, miss her much .... very A quick life, into the victim’s I think glimpse that’s the key phrase again.” He cited the Payne prosecutor disagreed. observation that it was unfair to allow virtually limitless evidence in but to bar state mitigation from then “either of the offering life which the defendant glimpse chose or to the extinguish demonstrating loss victim’s and to society family which resulted from the defendant’s homicide.” The contin- [has] ued, well, him, “[Payne] doesn’t limit it I I love this and miss person cases, counsel . would have it. . . is not what is envisioned [][] [T]hat and that not the of is would offset the of thing type mitigating type evidence can defense in.” get

Ultimately, trial court ruled admissible evidence of the victim’s “pro- fession and such about details her which have job, already been received [in . . . that she guilt individual which seems to be phase] caring admitted, information and that looked implicit[] she forward previously . . retirement. . Inadmissible victim evidence . . . would include impact [f] service, evidence as her time military leisure financial pursuits sacrifices which have been made toward retirement.” may

As her death on her the court ruled impact admissible family, “that a family member a close with the victim and that enjoyed relationship missed, she her was loved that the death was home reality brought while other that a belongings making arrangements, son packing death, married and her of a daughter had children after loss impact matter, child on a as a and the loss of her parent general companionship or details of retirement, but not the specific plan her during anticipated her was “the survivors] ruled admissible impact [on travel.” Also had she from” impact death here as distinguished nature of her [violent] and the causes . . . impact death or natural died an “accidental [from] Inadmissible the victim’s death tell a member of family ....[][] having with difficulty member’s family . . include a evidence . would victim impact member, abuse, guilt another family or that of safety alcohol fear for personal death, of her night the victim ... on because of failure to contact feelings about what the victim’s or testimony as to other people, a sense suspicion her death.”30 immediately prior have been thoughts may areas, the into excluded wander might In view of the a witness possibility to allow some you “I would be inclined court told the trial prosecutor, course, area subject, in this leading latitude with regard questions Later, the court to instruct when defense counsel asked objection.” “to only told the prosecutor to ask court leading questions, prosecutor whenever possible, and be as specific possible utilize that form of question out that are articulated.” The prosecutor pointed with respect questions we and ‘no’ get ‘yes’ “where asking leading that the with problem questions on the evidence a form “has a significant impact answers” was that question’s itself,” or direct forms of ask you while “the reason open-ended questions me.” comes from the witness not from is so that information questions leading court ask by again you questions The responded “requesting the other side.” subject objection by whenever possible, “ is, course, elicit to “intentionally ‘It misconduct for a prosecutor is exacer Such misconduct inadmissible testimony.” [Citation.] [Citations.]’ after to elicit such evidence bated if the continues to attempt prosecutor v. Cal.4th objected.” (People Smithey 20 960 defense counsel has However, cannot be 1171].) P.2d prosecutor 978 Cal.Rptr.2d [86 neither answer the prosecutor faulted for a witness’s nonresponsive v. (2004) 32 Cal.4th (People nor could have anticipated. Valdez solicited P.3d defendant claims the prosecutor instances where We turn to specific testimony. elicited inadmissible that the trial court impact certain victim evidence subsequently We have held admissible Scott, (People case, feelings fear v. including, example, a survivor’s

excluded in this 494), they imagined victim’s last supra, testimony by how p. survivors about Cowan, 485), testimony (People about p. 50 Cal.4th at moments of life Panah, supra, 35 Cal.4th at following the murder abuse victim’s survivor’s substance decisions, course, 495). anticipating these but fault the trial court for not Of we cannot certainly any prejudice into admissible must factor have concluded such evidence is we analysis.

a. Sandra Walters Defendant contends the to elicit inadmissible evi- prosecutor attempted Walters, her, dence from the victim’s Sandra when he daughter, asked “Tell us about mother.” your Defense called for a objected grounds question narrative. The court sustained this and directed the objection prosecutor ask more The specific asked a series of about questions. prosecutor questions Walters’s with her mother before the next defense relationship objection, Walters, when he asked “When that she made yоu say are you person you what did mean that?” The today, you that the objection again question narrative; called for a it was sustained.

The defense next when the objected asked about Olsson’s “thoughts” regarding of Walters children. Walters possibility having “I have one that I never with replied, guilt, mom provided my grandchild, she something always wanted.” defense as to form successfully objected and asked that the answer be stricken. Another objection was sustained when asked Walters whether her mother’s death had had prosecutor any impact on Walters’s with other The relationship objection was sustained as to people. form. The then asked the same After prosecutor essentially Walters question. answered that her mother’s death had had “a on me intimate big being impact asked, with that?” The anybody,” “Why is defense prosecutor objected, without stating grounds; was sustained. objection

The asked a series of about how Walters learned of prosecutor questions her mother’s death. When she answered that she was told a detective mother, asked, about an “accident” her “How did involving prosecutor that make feel?” The defense no you objected, stating grounds; objection was sustained. Walters’s drove her to her mother’s house. When boyfriend asked whether her her boyfriend told about what “anything happened your mother,” the on defense was sus- objected hearsay grounds; objection whether, tained on that and also on relevance. The asked ground prosecutor house, on the her drive to mother’s she received information about what “Yes, had to her mother. told me he [my She happened replied, boyfriend] had called and talked to the detective.” The defense to the form of objected and on The sustained and the hearsay grounds. objection was question answer stricken. a series of about the of her mother’s death on

Following questions impact her, asked, Walters was “What are the hardest times of the year you?” defense without was sustained. The objected, stating grounds; objection court next sustained an to a about how objection question by prosecutor her earlier cancer had home her mother’s diagnosis “[brought] mortality you.” defendant contends the improp-

In addition to these questions, prosecutor elicited from Walters about the fear she continued erly testimony experi- her to have children. ence as a result of her mother’s death and about plans failed to these his claim of misconduct is to object questions; Valdez, Moreover, 122.)31 {People supra, forfeited. 32 Cal.4th at noted, victim witness about the we have since held that testimony by impact murder fear he or she has continued to as a result of the experience Scott, 466-467, {People 52 Cal.4th pp. permissible. that she did not want to have children because Similarly, testimony Walters’s too, the same loss of their she was afraid have to they, might experience her her murder. mother as she had related to the effects on mother’s lasting Thus, the was not testimony impermissible. count, our five of the defense’s to Walters’s

By objections testimony were to form of called for prosecutor’s they because questions narrative if with This would be misconduct we response. only agreed that the was under orders to ask only leading prosecutor questions, but he was not. the court told the it would allow Initially, simply prosecutor him some latitude are to ask because such leading questions questions Code, (Evid. direct ordinarily examination. permitted § v. Williams (a)(1); People subd. see 691, 181 P.3d Code section 767 vests a trial 1035] [“Evidence with

court broad discretion to decide when to the use of leading permit examination.”].) on direct Even after the defense questions complained was not the court directed him to use prosecutor asking leading questions, “whenever leading This left the with some questions possible.” circumstances, discretion as to the form of his Under these we questions. decline to find misconduct because the elected to ask direct simply prosecutor Defendant’s in such cases was to to open-ended questions. remedy object seen, the form the As we have he did so and the court question. vigorously sustained his objections.

On four occasions any grounds. defense without objected stating the failure to on of misconduct and to Ordinarily, object grounds specifically an seek admonition forfeits the claim unless an admonition would not have 673], Citing People v. Hill 17 Cal.4th 800 object any question contends that his failure to he cites as should be excused. In to misconduct Hill, misconduct, egregious prosecutor’s coupled we concluded that the with the trial court’s hostility objections, objections toward rendered further futile. “Under these defense such circumstances, legal unusual we conclude must be excused from the [defense counsel] obligation continually object, grounds objection, jury state the of his and ask be (Id. 821.) present are where p. admonished.” Those “unusual circumstances” in this case Thus, Hill repeatedly successfully objected. defense not excuse defendant’s failure does object questions he now contends were misconduct. Valdez, case, 125.) each (People supra, cured the harm. 32 Cal.4th at In p. that the was sustained. Defendant fails demonstrate objection remedy was inadequate.

Moreover, defendant’s were also sustained. remaining objections Again, defendant fails to demonstrate that this was remedy inadequate. realize, course,

We that defendant’s is that the had a position prosecutor evidence, but no In emerges. inadmissible such pattern eliciting pattern context, was to elicit then novel victim impact prosecutor attempting evidence consistent with the trial court’s for admissible guidelines testimony a combination of as he was through leading questions, open-ended defense, wanted to narrow the to do. The which permitted understandably heard, amount of victim evidence the to some objected questions. impact The trial ruled on those There was no objections. court appropriately prosecu- torial misconduct in the examination of the victim’s daughter. prosecutor’s

b. Elbert Walters III “Tripp” elicited from the testimony Defendant contends the inadmissible prosecutor instance he to is Walters’s to a victim’s son. first points Tripp response about into his mother’s house after her death. In he going question passing, over in mentioned dolls she had collected when “she was stationed Japan testimony Korea in the sеrvice.” The trial court excluded regard specifically service, ground the victim’s but defendant failed to on this ing military object event, In neither and the claim of misconduct is forfeited. prosecutor service, and military solicited nor could have the reference to anticipated Valdez, there no 32 Cal.4th at misconduct. relevance to two about grounds, objected, questions a child. The

number of times the witness and his moved when family irrelevant, did not broach While the questions were sustained. objections Thus, the trial court. evidence ruled inadmissible by areas of victim impact claim not reason of defendant’s failure even forfeited assuming asserts, no misconduct. on the he now there was grounds object deemed of this witness Defendant claims the asked questions Those Sandra Walters’s during testimony. the trial court objectionable by however, not their content. We were to the form of the question, objections, by committed misconduct have defendant’s claim rejected prosecutor event, In to the extent defend- asking any sometimes open-ended questions. sustained, he suffered no ant’s were objections prejudice. the witness’s question defendant cites as misconduct

Finally, response to how he would his mother’s murder as opposed about regarding feelings have felt had she died of natural causes. The witness “For her replied, part, murdered, to be I cannot understand that .... asinine.” absolutely [I]t’s event, Defendant failed to the claim. In object, forfeiting any testimony court, was within the of admissible set forth the trial guidelines testimony by which included “the of the nature of her death here as impact distinguished from accidental death or natural causes.” Jan Dietrich

c. Defendant cites as evidence of misconduct prosecutorial prosecutor’s Dietrich, decline of Jan the victim’s sister. we open-ended questions Again, find misconduct based on the form of the prosecutor’s questions. witness,” contends further that the “made no to control the prosecutor attempt the defense to and that requiring object, the witness “had to be interrupted numerous times the defense or the trial court when she gave nonrespon- sive or narrative answers to A witness’s answer questions.” nonresponsive Valdez, cannot be the basis of claim of prosecutorial misconduct. (People supra, Cal.4th at p.

Defendant contends that the Dietrich prosecutor impermissibly questioned about her father’s reaction to his death. He claims he daughter’s “objected this line of Not so. He questioning.” at the end objected single question of the examination of the on prosecutor’s witness this and his point objec is, tion—on relevance sustained. His claim of grounds—was misconduct therefore, sustained, forfeited and to the extent his one objection was even answered, Moreover, before the witness he was not we have since prejudiced. held that is no members confine their requirement family “[t]here themselves, about testimony of the victim’s death to impact omitting Panah, mention of other members.” family 35 Cal.4th at 495.) Nor did defendant to the next object and answer he claims question misconduct, involved about the events of Dietrich surrounding departure and her father from Kansas after she informed him of the death. The victim’s event, claim is therefore forfeited. In any was not testimony impermis sible because it dealt with the death her impact victim’s sister father, who found themselves at the to California at the waiting fly airport same time Olsson had been Sandy to arrive in Kansas for a expected family celebration.

Defendant refers us to a series of at the asked end questions of his examination of Dietrich of her sister’s death on involving impact died, her. To one the manner in which she are there question—“Given thoughts reoccur?”—the witness “The terror.” A constantly responded, defense was sustained. To a about how the on the objection question impact witness was different because the victim was murdered rather than dying about to worry cancer or Dietrich accidentally, replied part, from “[B]ut time, minutes, there to I all the when I wasn’t fifteen or as do twenty her last later, the A few prosecutor her.” An was sustained. objection questions help asked, in such a' fashion that the manner of her death you “Has impacted sister, to her the think of what was when think of you your you happening answered, “Yes. And guilt fifteen minutes of her The witness last life[?]” called The defense that the objected question that I wasn’t there to her.” help answer, after the anything ‘yes’ gets ‘no’ and I would ask “for a ‘yes’ then asked When the prosecutor The court granted request. stricken.” the victim’s mind through about what was thought going whether the witness life, “this is the defense objected fifteen minutes of her last and ruled on.” The was sustained objection court something specifically stricken. The court also sustained the witness’s answer—“Yes”—was about whether the witness’s answer “Yes” prosecutor’s question struck left her actually about “at what spirit the witness thought point victim’s] [the body.” violated the court’s specific prohibition

Defendant contends these questions before her just the victim’s thoughts witnesses about against questioning ex mistrial. The moved for prosecutor death. The defense subsequently the victim’s to elicit from the witness that he had not been attempting plained last mo about her sister’s thought but whether the witness last thoughts, fact we have subse derides this defendant Although explanation, ments. were imagined about what they held that survivors testimony by quently mind the witnesses’ own states of of life is “relevant to victim’s last moments and therefore had them the effect that the murders upon personally, [is] Cowan, 50 Cal.4th testimony.” (People victim permissible impact Here, had not deliberately that the the court concluded prosecutor had also noted it these court its order by asking questions. disregarded had elicited not because objection, sustained the defense’s evidence, into areas” possibility overlap but “because impermissible line in this the court found no misconduct Accordingly, that were prohibited. reason, defendant’s claim this we also reject Nor do we. For of questions. on this denied his mistrial motion when it the trial court abused its discretion v. Dement 39-40 ground. ‘ discretion in considerable trial court is vested with P.3d 292] [“ “[T]he ” ’ ”].) . . on mistrial motions. . ruling were sustained as to which objections cites Finally, questions the remedy He to demonstrate fails relevancy hearsay grounds. inadequate.

d. Sandberg Clifford Defendant focuses on two asked of the victim’s father: when the questions asked about prosecutor details of travel had made with his plans Sandberg asked, and when he “With daughter to has her death regard losing [Sandy] been different in its effect on how she you, given court sustained died[?]” the defense’s objection to first before could question Sandberg respond. answered, “Yes, Yes, sir, To second question, Sandberg sir. because I know she was tortured to death.” The trial court sustained the defense’s struck the objection, Nonetheless, answer and directed the to it. jury disregard reference to torture Sandberg’s became the for the basis defense’s renewed motion for a mistrial. The defense that the complained prosecutor’s question had violated the trial court’s order on the of victim evidence. scope impact motion, The trial court denied the that the observing question posed Sandberg was within the court’s and “also an area ruling that was taken up Furthermore, with the previous witnesses.” the court noted it had immediately sustained the objection, struck the answer and admonished the jury it. disregard

Since the defense objection to the first was sustained question before it, could Sandberg answer defendant was not even if the prejudiced prosecu- tor’s question strayed into an area the court prohibited by about the “specific plan details of her travel.” The prosecutor’s second question involved the difference in impact between a murder and a death accident or natural causes, which solicit, was permissible. He did not nor could he have torture, anticipated, Sandberg’s testimony about and thus committed no Valdez, misconduct. v. (People Moreover, supra, 125.)32 Cal.4th at trial court did not abuse its discretion by denying defendant’s motion for found, effect, mistrial when it sustaining objection, striking testimony directing jury cured disregard prejudice. (People Dement, 39-40.) at pp. conclusion,

In the record does not support defendant’s claim that the in a prosecutor engaged pattern misconduct in his of victim presentation evidence. impact we Accordingly, reject the claim.

2. claim misconduct in statement opening and closing Defendant’s argument Defendant contends that the committed pervasive prejudi- cial misconduct during statement and opening closing arguments. 32 In the trial appeal, court and on prosecutor may insinuates that the have been Sandberg aware and his stray other witnesses would into areas the trial court had banned and nothing prevent did doing them from conjecture so. This is mere unsupported by the record.

a. statement Opening “ ‘The statement is inform the purpose opening evidence the intends to . . .’ prosecution present. [Citation.]” 107, 106, (2002) 988].) Farnam 28 Cal.4th 168 47 P.3d Cal.Rptr.2d [121 contends the such statement failed to prosecutor’s opening present but, instead, an overview of his evidence dwelt on evidence and guilt phase hear and the as instructions the later misled to its task. jury might jury he Defendant failed to to the two the by prosecution statements object claims misled the as to the of the jury brings purpose penalty phase—“what us here is for to decide whether this man should die for what today you did this Olsson or the rest of his life in and “in [Sandy] prison,” spend the will hear evidence to make that determination as to what phase you or should be: death in the chamber or ... lethal ... gas by injection penalty Therefore, life without his claim on is forfeited. of possibility parole.” appeal Clark, at 960.) v. 52 Cal.4th (People supra, p. deem

Even were his claim not forfeited we would find no misconduct. We to have than of these remarks been no more shorthand colloquial, descriptions 96, (See (1998) the of the Millwee 18 Cal.4th v. purpose penalty phase. People 418, who 138 P.2d misconduct Cal.Rptr.2d by 954 prosecutor 990] [74 [no as “execution” because “the term killing challenged simply referred an served as a shorthand means of an intentional and describing premeditated remarks, the murder”].) jury’s As the made clear in his further prosecutor evidence verdict was to be based on its assessment of the in aggravation Thus, claim, did not his first remark mitigation. contrary the about to make an individualized assessment mislead its jury duty did them irrelevant defendant and his second remark not steer toward of the of execution. considerations method at chief the relied factor in which aggravation upon prosecution 190.3, (§ (a).)

the circumstances of the crime. factor the phase penalty relevant immediate include evidence to “the guilt phase Such circumstances crime,” of the as well as such additional and spatial temporal circumstances “ evidence, evidence, materially, morally, like victim ‘surrounds impact Thus, it was (Edwards, 54 Cal.3d the crime.” logically’ the to have to the evidence guilt not referred phase misconduct prosecutor well as the victim to the crime as impact relevant circumstances no in the we find misconduct evidence he intended to Similarly, produce. about brief instruction to the jury reference court’s prosecutor’s prior or his reference—cut off even briefer penalty phase purpose could jury expect. further instructions objection—about b. Closing circumstances the crime argument regarding Defendant claims that arguments prosecutor’s regarding factor of circumstances of the crime were intended to inflame aggravating because were based facts not in “The on evidence. prejudice jury they not, course, (People argue should facts not evidence.” prosecutor Osband (1996) P.2d 640].) [55 However, “the has discuss case in wide-ranging right argument. He has state his views to what closing right fully evidence shows and to deems urge whatever conclusions he Opposing proper. counsel if may complain or the reasoning faulty appeal are deductions because these are illogical matters for to determine.” Lewis 50 Cal.3d Cal.Rptr. “ ‘When claim focuses prosecutorial on comments [a misconduct] by made before the a court must prosecutor jury, determine would, could, threshold how the remarks or have been understood a by juror. reasonable If the remarks would have been taken aby juror [Citations.] harmful, to or state nothing cannot be imply they deemed obviously objec v. Cox tionable.’ Cal.4th [Citation.]” Defendant summarizes his of claim misconduct as follows: “The prosecu-

tor of the urged ‘enormity’ crime was fact aggravated beyond basic of murder and assault burglary with intent to commit over and rape by arguing clothes, over that forced Ms. Olsson at to remove her knifepoint [defendant] that made she an intentional decision to back because fight she he hoped her, would that he only told her he hurt rape would not her if she complied wishes, with life, that she with him to her she bargained that did not spare resist or he struggle, that tortured her the knife her with on playing body, her, that he ‘actually’ brutally that she was still alive when raped he left her bedroom go to her through purse. No evidence was introduced to of these assertions.” support claim,

In order assess this briefly we review the relevant The evidence. signs of in only Olsson’s house were struggle two askew on the photographs in the front wall and a entryway that had fallen to the in photograph ground floor; the master There bedroom. were on the grapes living room same kind Otherwise, of were later found grapes in the victim’s according purse. Robertson, of Sergeant “[n]othing really out order” in the house. appeared from fallen was Specifically, apart there no of photograph, sign struggle in the victim’s The bedroom. victim’s were found the bed on pajamas her beneath there body. While was no evidence of semen or of forcible sexual intercourse, both the and the testified criminalist that the absence pathologist of such evidence did not mean the victim had not been forced to have sexual he admitted to had sexual police intercourse before her death. Defendant victim, he a statement ejaculate, with the but said did not intercourse there there would be ho semen had consistent with the criminalist’s view that have testified that the victim may been no The ejaculation. pathologist as an after she was stabbed and The victim strangled. survived hour long him. belonged was a knife that defendant admitted to police attacked with and tossed into a in the course golf victim’s removed purse pond had kitchen indicated she behind the victim’s house. A in victim’s receipt but money $3.95 in from a earlier that no change purchase evening received in the house. was found her or purse the circumstances- our argument regarding

From review prosecutor’s evidence, the bulk of the of-the-crime we conclude complained-of he drew from inferences and conclusions permissible remarks were based did not commit this evidence. we conclude Specifically, he at various victim submitted argued, points, misconduct when so, because, she have or believed she would may by doing hoped inference from the absence evidence not be killed. This was an arguable bedroom, with defendant’s admission the victim’s struggle coupled the victim and the had sexual intercourse with testimony pathologist or did not mean and criminalist that the absence semen traumatic injury It intercourse before her death. the victim had not been forced have sexual faulty was matter to decide whether the inference and, the the court reminded acknowledges, repeatedly as defendant illogical defendant’s claim reject was evidence. we argument Similarly, that not jurors that, as victim argued when he the that the committed misconduct prosecutor her through not her but was going purse defendant did assist lay dying, fact grapes an inference from the that arguable This was looking money.33 it found in the victim’s when purse the room floor were also living found on recovered, “Doubting that he saw was defendant’s statement ultimately been in the room after she had living her through purse Thomas” rummaging stabbed, evening on the $3.95 the victim had received change the in her in in anywhere not found her before she was murdered was purse was house, as as an hour after she long and the victim have lived may have and the she may the state of mind hopes attacked. victim’s Regarding also drawn from her these comments were family, entertained for herself and 33 remark: complains prosecutor’s of the argument, with this In connection any his to show remorse callousness at the scene and failure aggravating “Another factor his totally going through, she Totally callous. to what at the of that crime. [In]different scene remark, forfeiting appeal. object this thus his claim and failed to to completely.” Defendant manner, event, in a callous on the evidence that defendant acted any In it was a fair comment brief of We do not believe his characteriza the circumstances the crime. which was relevant to factor, way any repeat, he could have in aggravating which did not tion callousness as an required to consider. jury the relevant factors it was misled the about

1045 victim evidence about her with her children and father impact relationships her and postretirement plans.

We also claim it for the reject defendant’s was misconduct the in and a chart urge itself the victim’s to use prosecutor put place to illustrate that the line object To extent defendant failed to point. this event, claim argument, is forfeited. In such is not argument miscon duct. “We have held that it is at the for a repeatedly proper phase penalty to invite the prosecutor themselves of the victims jurors put place and their Slaughter (2002) (People imagine suffering. 27 [Citations.]” Cal.4th deem Nor do we it Cal.Rptr.2d [120 misconduct that the is an animal.” prosecutor argued “maybe [defendant] “Argument include may warranted opprobrious epithets evidence. Zambrano, (People 41 Cal.4th at [prosecutor [Citation.]” “ ” characterized the permissibly defendant as a ‘dangerous sociopath’ “ crime, ”].) evil’ ‘especially Given the circumstances prosecutor’s use “within comment epithet range permissible regarding v. Thomas conduct on egregious defendant’s part.” P.2d characterization of [prosecutor’s 101] “ ” “ ” murderer, defendant as ‘mass murderous rapist,’ ‘perverted cancer’ “ ” ‘walking cancer’ depraved permissible].) Defendant also that the committed misconduct when complains prosecutor he discussed the characteristics of a knife. a knife You can you point. “[W]ith run down the side of a face. You can with a with buttons knife. You play can put knife in that are places terribly intimidating threatening “With knife you can indicate can you do more than kill. can simply You claim, maim. You can disfigure.” Contrary did argue that defendant in these actions with the engaged knife before killing out, victim—although, as Attorney correctly General points injuries inflicted on her as he ultimately stabbed her 23 times could be fairly characterized mayhem and disfigurement—but made these remarks context of his contention that submitted victim without resistance event, to survive. In if even these remarks did the hoping just fall beyond they did not constitute the pale, kind miscоnduct for which reversal is under either federal or required state standards. argument other

c. Closing matters regarding misconduct in number of other remarks made perceives by in his prosecutor closing arguments. rebuttal The in he prosecutor quoted Roger Tully’s testimony, which said that defendant’s actions were “his The commented: responsibility.” prosecutor he was in that sees in ticking Roger “It’s his What is that responsibility. ” defendant, brother.’ Defense counsel say, that that he doesn’t ‘spare my The trial court that the remark to jury speculate.” objected “ask[ed] not are “you that statements of counsel are evidence and reminded jury that not presented you.” Assuming not to about evidence was speculate defend- calling comment was prosecutor’s objectionable speculation, was, effect, admonished not to ant’s in sustained and objection jury the trial court’s swift action Defendant fails to demonstrate that speculate. was inadequate.

Next, regarding about comments by prosecutor defendant complains to life without of parole. of defendant sentenced being possibility prospect dangerousness. were directed at future For arguments example, Some these altercations, the to evidence of defendant’s jailhouse prosecu after referring asked, his tell about this defendant and future you tor “What does that or . . when he a life gets violence his violence in the future? . happens [W]hat that counsel The trial court reminded the objected. jury sentence.” Defense it would instruct on statements of counsel were not evidence vein, The arguing, “you the law after continued this argument. prosecutor he is all the on death row where isolated have keep [from] [defendant] he main line with all the other gets other because prisoners, [if] sentence, card his he an American Platinum with life has prisoners, Express him They give what can do to him? can’t they do violence will. Because some other some guard, another he’s life. And some other day, got prisoner, nurse, does something or social worker jail some hospital prison [sic] hurts, like, hits, maims, can it at acts he do violently, doesn’t and he out did not renew its objection. will.” defense defendant’s failure renew by the claim is forfeited

Assuming declined to find repeatedly we find no misconduct. have his objection, “[W]e danger defendant’s future concerning error or misconduct where argument violent crimes admitted based on evidence his custody past ousness is of section 190.3. aggravating categories under one of the specific [Citations.]” 313, 353 (1996) 13 Cal.4th (People Ray

Here, evidence of other criminal was based on argument prosecutor’s 190.3, (b). Defendant maintains section factor admitted activity pursuant trivial, but altercations jailhouse this evidence of two evidence. Nor was view the entitled to advance different reference to “death row” because the prosecutor’s misconduct argument isolation afforded the level of “concerning evidence was unsupported It a matter of common to life row compared prisoners.” death prisoners the general on death row are from prison that inmates knowledge separated indeed, row” as much. signifies term “death very the population; Nor was the misconduct the ex- argument gave because prosecutor nurse, a of life a might encounter or social amples people prisoner “prison context, that, In worker.” the the the meaning of was in argument simply a general violent inmate have access to population, might more potentially victims than an inmate on death We the row. do not believe would have jury understood the have a to been to death example “jury request impose so that again nurse or social would hurt maim not or a prison [defendant] worker, (See where there was no he evidence had ever done so before.” Cox, People v. supra, 30 Cal.4th at claim p. 960 the of prosecutorial [when “ misconduct based remarks to the ‘a court must the jury determine at could, would, threshold how the remarks have been by understood ”].) reasonable juror.’

Next, defendant argues the remarks the of about kind prosecutor’s existence a life in prisoner might constituted irrelevant and experience prison impermissible comments on the of conditions confinement. We do not such, understand them as nor would have a reasonable The juror. prosecutor’s references to resources and amenities to which life inmate have might access—food, shelter, calls, care, television, to access medical radio or phone stereo, that, crime, films—was in of argument service his in view of life the in good “too prison We have held that a may prosecutor [defendant].” “assert that the community, acting injured, on behalf of those has the right its express values the severest imposing for the most punishment aggra crimes,” vated so long as those comments were “not did not inflammatory,” “seek to invoke untethered and did not “form the passions,” basis of principal Zambrano, his argument.” (People 41 Cal.4th at “This case, the prosecutor was at of pains suggest, was one those that deserved such severe (Ibid.)34 No misconduct punishment. occurred.”

Defendant next the complains misstated the law. First, he cites the argument that the prosecutor’s jurors might sympathy harbor had to be directed at defendant than rather The family. argument complains prosecutor’s that the passing availability reference the conjugal because, trial, visits for life inmates was at the improper availability time of his such prisoners If, visits privilege, right, for life was a it not a has since been rescinded. trial, granted time of prisoner might life be privilege, improper, reference nor does a later revocation of the privilege Similarly, prosecutor’s render it so. comparison between prison predicament defendant’s life unemployed homeless and the misconduct; that, argument does not simply point render his light reinforced his aggravation, factors in did not hope simple “deserve . . . life. pleasures of [or] thing only your justice Finally, deserves is verdict of death and that’s what demands.” prosecutor’s speculation prisoner extent brief life hope that a could entertain the a cataclysmic might jail event that free earthquake apart’’—the him—“an and the trial falls objection jury disregard court sustained presume and instructed the We it. followed trial court’s instruction. Cal.4th Martinez 1048 Bennett, supra, v. (People 45 Cal.4th at 601

was not improper. p. [“The his not considered family a defendant’s execution on or her be may of impact v. Smithey, mitigation.”]; People supra, Cal.4th at 1000 p. in 20 jury by can a that a jury for a defendant’s not matter ‘sympathy family capital [“ ”].) . . . .’ mitigation consider to disregard contends the urged jury prosecutor improperly of in the of his the circumstances mitigation argument

evidence in course We have to warrant the death the crime alone were sufficient penalty. and, no remarks while are model they reviewed the carefully complained-of a could have possibly we fail see how reasonable clarity, juror be or her to the evidence disregard him prosecutor urging understood Donnelly (See 416 U.S. in mitigation. DeChristoforo infer that a lightly court should not L.Ed.2d 94 S.Ct. [40 1868] [“[A] have meaning an remark to its most ambiguous damaging intends prosecutor exhortation, meaning a will draw that or that a sitting through lengthy jury, Cox, People less see interpretations.”]; from damaging plethora we claim that the same reason defendant’s reject For a remorse “was about the absence of postcrime remarks prosecutor’s into misleading thinking effective means of highly backhanded . . . .” The an factor aggravating point the absence of remorse was there was no evidence of remorse was that argument prosecutor’s Indeed, “You haven’t heard any he said that: just of mitigation. purposes remorse, not has so it’s present evidence that this defendant demonstrated any v. Ochoa (2001) 26 factor.” There was no misconduct. as mitigating P.3d prosecutor properly Cal.4th 78] [“The factor mitigating lack remorse showed the potential defendant’s argued claim that We also reject prosecutor was inapplicable.”].) by burden of proof, and thus lowered jury, prosecution’s misled 190.3, was a of the victim section uncharged that defendant’s suggesting rape Indeed, (a) consideration. consideration rather than factor (b) factor be was to considered the jury rape prosecutor explained “We don’t activity: criminal uncharged of the crime circumstance else, . . . beyond other acts what We’re about talking something double dip. violence, Olsson, then whether or not he did to other acts Sandy convictions.” any felony had effect of miscon- contends the cumulative

Finally, prosecutorial either no reversal. We have found impropriety duct requires not have sustained which defendant could from or minor impropriety assertion of cumulative prejudice. we Accordingly, reject prejudice. religious closing Biblical and N. arguments references Bible, that contends “relied on prosecutor impermissibly and biblical to to religious jurors law convince the return death authority verdict.” Defendant relatively devotes considerable ink to what were brief and minor in digressions These remarks prosecutor’s lengthy argument. in three two that exceed 120 in the occupy perhaps pages arguments pages Some in to themed reporter’s arguments were rebuttal transcript. religiously forfeited, the defense. As are if by we defendant’s claims but even explain, not, were he fails to demonstrate that they any arguable impropriety prejudicial.

Defendant failed to references to the Bible to object or prosecutor’s his use of a chart biblical in of the death quoting passages support penalty.35 “Because we cannot assume that an and admonition objection would have ineffective, been futile or forfeited [he appellate has] [his] claim[s] Letner and Tobin 99, misconduct.”. 201 [112 746, (Letner event, Tobin).) In any 62] we conclude that certain of the remarks defendant now finds were objectionable not instances, In the misconduct. other even for the sake of assuming, argument, bounds, that we prosecutor find that overstepped proper defendant Zambrano, suffered no prejudice warranting People (Ibid.; reversal. (Zambrano).) 41 Cal.4th at

In his chart, while opening argument, apparently displaying pros- ecutor that had argued nothing done “decent” in his life to merit conversion; contrast, compassion. By he to pointed Roger Tully’s religious “You’ve heard tell us about Roger what difference in his life religious his conversion had. Have heard like you that about the defendant? anything now, said he’s different Roger there’s been this You intervention. know Roger of, woman, it in the puts terms but this for I wouldn’t have been to converted God, Now, but the is it takes two to reality can hit tango, you somebody [f] over head all but if if day long, they’re not not willing, they’re receptive, it’s not to . . going . happen.”

The role, then turned to the issue of if briefly religion what it should any, in the play jury’s determination of defendant’s sentence. He chart, Punishment,” captioned The “The Bible Capital quota Sanctions contained four shed, tions: “Who blood of man shall image shed[s] man his blood for in his did [be] man,” Genesis, 6; God make attributed to chapter that verse “He smiteth man so that he die, death,” Exodus, 12; surely put shall be to attributed chapter verse “And if he strike die, him an instrument of iron w[ith] so that he he is surely a murderer: murderer shall be death,” Numbers, 16; put you attributed chapter verse “And not shall take death,” reparations soul of a murderer who to die he be put deserves but shall Numbers, chapter attributed to verse 31. used that is to be religious something reminded the that belief “is all, has to the Bible or the Koran anything say.” what aggravation Nonetheless, all is religions “one that is universal argued, thing throughout he to be and that death penalty this idea murderers are punished, who have might sanctioned and that it is Addressing juror appropriate.” the death minute about religious scruples imposing penalty, prosecu- last does, fact, To “the Bible sanction argued punishment.” tor capital his chart: “There is he on scriptural passages illustrate point, quoted ‘He an who strikes him with instrument just right one that is so point: [ft] die, murderer, will be surely he is a and the murderer put of iron so for the soul of a murderer who death. And shall take no you reparations death, die, the to He who sheds blood of deserves to but he shall be put [ft] man, did make man. blood be shed. For in his God by image man shall his ” concluded, “I want to just life be shed man.’ He by His blood his will in the and that’s not way, air there that does not stand religion clear the rest of evaluation.” The devoted the prosecutor to enter into your supposed case the factors in demonstrating to in this why his lengthy argument and in outweighed mitigation justified imposition factors aggravation the death penalty. counsel, argument, the

Following prosecutor’s opening Strеllis, As of his Strellis part argument, his closing argument. Mr. gave said, ‘Hate at one in time point the New Testament: “Jesus putatively quoted ” that, sin, contrary He also argued prosecu- but love sinner.’ “I condone the death don’t religious that all traditions penalty, tor’s assertion use In an effort to counter prosecutor’s think Buddhism does.” Testament, he cited the Talmud on capital punish- from the Old quotations ment, under Jewish law. it an used punishment that was arguing infrequently Defense followed gave argument, then rebuttal prosecutor address also elected to Wagner briefly closing argument. Cocounsel Wagner’s that in and He noted religious imagery. reference to themes the prosecutor’s brother, Testament, the life of his did not execute Cain for taking Old God Abel, denominations out that major religious him.” He pointed but “banished the death against penalty.” “have taken stands rigorous to briefly argument by responding his rebuttal began The prosecutor In the the death religious penalty.36 remarks questioning support Strellis’s comments, biblical law he between distinguished course of those Testament, when God “The Old were required apply. law the jurors secular die,” man but “when clear. Murderers shall Very made it clear. very spoke, chart was still briefing quotation the biblical record or the whether It not clear from the is it prosecutor did not refer to taken down. The point may have been exhibit or what argument. during rebuttal gets into the act he softening starts rules a little bit and that’s up okay.” The prosecutor out that secular law pointed defendant with various provided due process and the protections including counsel two-tiered trial procedure that, in the law the factors penalty phase, required jurors weigh in in aggravation against those He “And then we mitigation. explained: get this we [penalty] where start phase talking mitigating about aggravating and he gets bring could cause to have some anything you sympathy that shows something about his character. His record that causes to say you aggravating circumstances don’t substantially outweigh mitigating and that the proper penalty not death. You have to do all that.”

Somewhat later his rebuttal argument, alluded briefly the crucifixion of Jesus and the two thieves who were crucified on either side of him. He said: “And we’ve labeled them the thief and the good bad thief. both Why? They’re thieves. But what makes difference is one of them said, Lord, one of them repented, ‘Forgive me I you.’ believe in The other know, Christ, nose, one cussed at just, you turned his whatever. Christ said to thief, know, the good be you you’ll with me in heaven. He was saved. The wasn’t, good Well, thief was saved. The bad thief the moral of that story [f] was that the good thief was not cut down off that until cross he was dead and his soul was in saved heaven. But Caesar law And was the completed. [sic] thief died good with the along bad thief.”

We have held is misconduct a for to prosecutor argue “[i]t that biblical authority supports the death imposing because to penalty, suggests the that jurors follow an they may other than the authority legal instructions given by the court. (People v. Cook (2006) 39 Cal.4th 614 [Citation.]” [47 hand, Cal.Rptr.3d P.3d “On 139 the other we have it is suggested not to impermissible for the argue, benefit of who religious jurors might fear otherwise, that of the death application to according secular law does penalty contravene biblical doctrine [citations], or that the Bible shows society’s historical (Zambrano, of acceptance capital supra, 41 Cal.4th at punishment.” 1169, original italics.) p. Because the line between permissible argument and draw, whether, misconduct in this area is difficult to we have often focused on misconduct assuming of purposes argument only, defendant was Tobin, Letner (See, and supra, 50 Cal.4th at prejudiced. e.g., 202 if p. [Even the prosecutor’s argument overstepped bounds reversal is not proper required “ ‘ where his comments “were of a part longer argument that properly ’ Zambrano, focused ”]; the factors in upon aggravation mitigation.” [same]; supra, Vieira 41 Cal.4th at People p. [same].) 990] mind,

With this in we turn to background claims. He specific brother, asserts that the of with prosecutor’s comparison his who conversion, that defendant was a religious suggested jury underwent he had neither nor converted.” We of because “unworthy mercy repented defendant, brother, that unlike his had disagree. point prosecutor’s of his life. A rational change not availed himself any opportunity we no misconduct. Accordingly, could not have understood otherwise. find Next, use biblical authority, defendant maintains that prosecutor’s chart, argument in his was intended by “give buttressed opening however, Initially, the death jurors strength penalty.” impose who be juror might directed his comments prosecutor explicitly from juror imposing that would by religious prevent troubled scruples admonished To extent argument merely death prosecutor’s penalty. death, in the beliefs need not stand religious way imposing juror’s Tobin, (Letner Cal.4th at supra, the argument permissible. p. contends, however, containing chart biblical using the death which he then orally repeated, supporting penalty,

quotations that the the death permits penalty by went Bible beyond arguing However, it. even if in case the Bible mandated this suggesting particular misconduct, defendant was not prejudiced. we assume there was an that spans fewer than two argument These remarks occupy pages for a and half. day a hundred went on transcript over pages reporter’s Thus, in an extensive devoted argument primarily were minor they point outweighed any mitigation, factors why aggravating a discussion religious render any improper argu which we have found to circumstances Vieira, 298.) The 35 Cal.4th at ment nonprejudicial. would have of the which also came at the beginning argument remarks Tobin, and at supra, Letner (Cf. 50 Cal.4th their further diminished impact. of the case came at the end reference in the present 202-203 biblical pp. [“the more have been somewhat might promi and therefore argument prosecutor’s in the middle the than if it had fallen somewhere nent in the minds of jurors no Thus, we find basis for any of regardless impropriety of the argument”].) reversal. for the support returned to the issue of briefly religious

The prosecutor claims made by in to argument, in his rebuttal response death penalty Strellis, of the counsel, biblical support that called into doubt defendant’s well, remarks as particu- finds these death impropriety penalty. Testament, God “when that in the Old the statement larly prosecutor’s But, having shall die.” clear. clear. Murderers very Vеry he made spoke, statement, law of the contrasted the immediately the made that prosecutor law, clear, the he made required the law. This with secular Old Testament to first determine the then a jurors reach determina- guilt, penalty tion only listening after the evidence in balancing aggravation mitigation. if

Even the prosecutor clear” Old overstepped by referring “very rule, Testament we are satisfied that reversal is not These remarks required. half in a occupy page 20-page Additionally, immediately transcript. that secular death law different and explaining penalty was must prevail, prosecutor negated any effect his initial prejudicial might comments have Moreover, had. did not have the last word. That went Cocounsel Wagner, whose for defendant’s life last plea thing reasons, that, heard before it was instructed. For these we conclude even line, assuming Old Testament prosecutor’s remarks crossed the suffered no reversible harm.

We reach the same conclusion with respect reference prosecutor’s the crucifixion scene later in his rebuttal The remarks argument. came beginning argument consist two paragraphs transcript. They were therefore not the main focus of the nor did he prosecutor’s argument, return to this or make imagery further allusions to biblical or religious for the death as an support penalty appropriate murder. punishment Moreover, circumstance, in an analogous we found no misconduct and no Lenart prejudice. 1128-1130 (Lenart).) 88 P.3d 498] Lenart, In a penalty phase defense witness apparently involved in prison ministry referred repeatedly Bible and God during direct examination. cross-examination, On after from the prosecutor, eliciting witness that Jesus, God one forgave asked, thieves crucified with along without “ ” ‘Didn’t objection: did he? . . stop punishment, . [T]he crucifixion!?]’ “ ” answered, rebuttal, The witness ‘No.’ On defense counsel questioned the Abel, witness about Cain’s for the murder of to which punishment “ ” (Lenart, witnessed ‘It life.’ replied: Cal.4th at these Regarding we exchanges, observed: “Here both sides asked questions Stewart, a witness who described men job about Jesus. That teaching questioning biblical in which highlighted passages wrongdoer one was pun- ished for life and one was by death. We that this is punished emphasize H] case, not a case of Even in we improper prosecutorial argument. such have considered the whether defense itself relied on biblical text in assessing (Id. 1130.) prejudice. at p. [Citation.]” Lenart,

Here, as in the adverted to the thief’ prosecutor “good in story rebuttal to defense arguments to undercut attempted biblical for support Thus, Lenart lends to our conclusion support the death penalty. misconduct, crucifixion, was assuming even brief allusion to prosecutor’s not prejudicial. references to reversal in the prosecutor’s we find no basis for

Accordingly, religious authority.37 biblical and Future dangerousness

O. that the trial court erred by permitting Defendant contends prosecutor a threat of future danger. that defendant argue posed prosecutor “[T]he future as an dangerousness aggravating evidence of may expert present factor, conduct, in the defendant’s as indicated but from may argue past record, be a in danger prison. the defendant will [Citations.]” case, (Zambrano, at In this prosecutor’s As in of defendant’s altercations. jailhouse evidence argument grounded such, in overruling trial court did not err it was and the permissible rehashes merely it. on argument defendant’s to Defendant’s objection appeal in to present that the trial court erred permitting prosecutor his assertion argument and that the evidence of the altercations jailhouse prosecutor’s have both claims. inflammatory. rejected We use charts P. Prosecutor’s court erroneously prosecu- that the trial permitted contends that defendant characterizes during closing argument

tor to use six charts Consideration’; ‘Factors for “The six charts were: Chart 1. as “inflammatory.” Factor, Guilt/Enormity/ Increases 2. Chart 3. ‘Battery’; ‘Aggravating Chart Hear About Richard 4. ‘What Didn’t You Chart Injurious Consequences’; Heard about Richard Christopher Chart 5. ‘What Have You Tully’; Christopher ” Punishment.’ 6. ‘The Bible Sanctions Capital and Chart Tully’; his claim as to that defendant has forfeited The General contends Attorney charts only those were than charts Nos. 3 and because chart other We agree. lodged specific objections. as to which defendant of his beginning closing charts displayed prosecutor counsel. the court or defense them to having without shown argument eye principle of “an for prosecutor invoked the reject We claim that also told the this case. The penalty the death in eye” justification imposing for an eye an talking about an beyond the rule of system had “evolved [Hammurabi] that our punishment. crime and Nowhere eye,” proportionality went to discuss notions for the authority as basis scriptural an perceive do we invocation this brief discussion penalty. death

1055 “The objected: Defense counsel charts and using presenting [prosecutor] break, them to the them to the noon jury showing Following without us first.” and court counsel met outside the to jury discuss presence issue. lodged Defense counsel his to some of the entries” on the “objection charts, but the only he made were to entries on chart objections specific 4, No. “What captioned Didn’t You Hear About Richard Christopher Tully.” chart, The defense to various objected including: statements on that “That this him”; remorseful, violence is out of character for he “He’s what sorry did”; he “That is not violent in a setting”; and “That he has done one prison life, decent in his he thing that found God Counsel argued, repented.” are all items that would be as items in mitigation, “[T]hese appropriate therefore, inference is that the absence of these items are aggrava- [mc], tion” and also constituted error. potentially Griffin The trial court ordered the to strike the four statements forth prosecutor set above. It otherwise overruled the defense without objections prejudice.

Defense counsel later also to an on No. . objected entry (“. chart 3 . Increases Guilt/Enormity/Injurious about whether the Consequences”) victim to attempted bargain with defendant. The trial court sustained the objection and admonished the jury that of counsel was not argument evidence.

We that has agree forfeited claim other than specific objections made to charts 3 Nos. and 4.38 44 (People Riggs Cal.4th chart object to 363] [failure used at trial on specific claim].) advanced forfeits the ground appeal Moreover, defendant fails to show with how the any specificity prosecutor’s thus, use of the other charts was if even his claim was not improper forfeited, he demonstrates neither error nor prejudice.

As to chart No. defendant’s objection was sustained and his requested admonition was We given jury. understood and presume jury followed the court’s admonition. Riggs, Cal.4th at

As chart No. defendant the claim that did repeats listing items not hear about defendant in an amounted to mitigation argument they constituted factors aggravation. made no such argument Indeed, chart, in that jury. illustrated part argument he stated that the factor, absence of factor “doesn’t become an mitigating aggravating suggests may lodged objections during his counsel have additional unreported involving objection entry bench conference his on chart 3. But neither of No. when, conference, attorneys corrected the memorializing single court it referred to a therefore, objection. presume, We that the court’s recollection was accurate. 1056 Moreover, trial specifically

it’s not that it.” the court something aggravates the “The of a factor does statutory mitigating instructed absence jury, and the understood constitute an factor.” We aggravating presume jury 119, v. Cal.4th 168 (1997) instruction. Jones 15 (People [61 followed that Cal.Rptr.2d

Q. parole without Jury query regarding possibility life of deliberations, for the note to the court that asked

After it sent a began jury of parole.” day the of life in without definition “legal prison possibility received, the memorialized the discussion after the was trial court request have had “The court and counsel conferred had with counsel about the query. matter, it has been agreed the of a to this response with to issue regard of as For the the court this follows: respond purpose will inquiry defendant, should assume you sentence for this determining appropriate for confinement in life without prison that either the death or state penalty or You are not to consider would be carried out. of possibility parole that preclude as circumstance any might other possibility speculate out.” The was summoned jury either of the two from carried being penalties read to it twice. this was response L.Ed.2d v. U.S. 154 Simmons South Carolina 512 Citing [129 was 2187], response defendant contends the trial court’s 114 S.Ct. of that life without possibility it did not inform the jury because inadequate if so not be for eligible parole “meant that would parole [defendant] sentenced.” to the jury’s request. the trial court’s response

Defense counsel agreed inad- that the was not now Accordingly, may complain response defendant (1994) 8 Cal.4th (See People Rodrigues equate. and consented as defendant both suggested 885 P.2d 1] [“Inasmuch , waived.”].) has Here . claim of error been . . given responses the record forfeiture asserting avoid attempts

elsewhere was agreed conference at which the response the bench because incomplete But defense following day. memorialized only upon unreported agreed” that “it has been the court stated object did not when counsel record, that there defendant’s assertion as it did. On this court would respond fails. an objection have been may unreported Simmons, the South Carolina In where

The claim is also meritless. life a death sentence and choice was between told that its simply jury from the defendant held that court high “prohibiting imprisonment, without life in prison ‘life meant informing jury imprisonment’ law.” to due of right a violation process resulted in possibility parole Smithey, supra, (Smithey).) Cal.4th at have “[W]e Simmons that under distinguished ground statutory California’s scheme, is informed the defendant’s ineligibility expressly the instruction that it must between death or ‘confinement parole by choose the state for life without an prison instruction possibility parole’; (Id. such a sentence be inexorably ‘will carried out’ would be incorrect.” at 1009.) Such an ignores instruction is incorrect because it both the p. superior 190.4, court’s to “reduce a sentence of power death on review under section (People (e) . commutation.” subdivision . . power Governor’s of [and] Thompson 86, 245, (1988) 37].) 45 Cal.3d 130 P.2d 753 Cal.Rptr. [246

If the court would have erred that by initially instructing jury out, sentence would be carried it inexorably would likewise have erred by Thus, so in to the doing no response jury’s query. we find error. Smithey, that,

Defendant argues unlike in in this case was not jury (Smithey, supra, concern about the expressing 20 at appellate process. Cal.4th “ court, 1007 asked trial [jury death penalty overthrown—would ‘[I]f life life get ”].) without parole[?]’ in the Implicit jury’s request [defendant] for a definition” of “legal life without was a possibility parole question about whether some future result in eventuality might defendant’s earlier release. The trial court’s directing to from such response, desist any (Id. speculation, correct. at p. 1009 court address may properly [“[T]he jury to assume such confusion by instructing whatever it penalty selects will be out.” (original italics)].) carried

R. Allocution

Defendant contends that the trial court denied his various federal constitutional rights and violated section 1200 when rejected request section, defendant, allocution. Under that the trial court must ask a before sentence, imposing whether there is legal cause show “any why judgment should not be (§ 1200.)39 pronounced against him.” have repeatedly “[W]e rejected similar arguments. We have held generally capital [Citations.] [f] sentences are not noncapital similarly situated for purposes equal With protection. regard to allocution we ex [Citations.] have specifically, sentencees have plained no other noncapital right themselves express sentence, about the while appropriate defendants take the stand may capital (Zambrano, supra, on that testify 1182-1183.) issue.” 41 at Cal.4th pp. legal parlance, “In the term traditionally ‘allocution’ has meant the trial court’s inquiry any a defendant as to why judgment whether there is pronounced. reason should be not however, years, In recent mitigating the word [Citations.] ‘allocution’ has often been used for ‍‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌​​‌​​​​​‌‌‌‌​​‌​‌‌​‌​​​​​‌​​‍a statement response made in inquiry.” (People the court’s v. Evans 590, 592, 1010], Cal.4th fn. 2 omitted.) 187 P.3d italics [80 Evans, Moreover, we held that People Any do have a to allocate under section 1200. defendants not noncapital right be “must be made under oath and statement wish to make in they mitigation Thus, 598.) (Evans, at addition p. cross-examination.” subjeсt defendants, the basic premise of the two classes of noncomparability de right defendants have claim—noncapital defendant’s equal protection observed, Evans, we no valid. In also longer nied to defendants—is capital claim, that a noncapital to the defendant’s due process permitting with respect “affords to cross-examination subject defendant to make a sworn statement to be heard and thus does violate the defendant a meaningful opportunity (Id. under federal Constitution.” rights of the defendant’s who, in the This is true of defendants capital penalty phase, also “[are] evidence as well as take stand address allowed present (1988) 45 Cal.3d Cal.Rptr. sentencer.” v. Robbins our on this authority defendant’s invitation to revisit settled We decline remaining arguments. and we are not his point persuaded S. Absence remorse of erred when it allowed the prosecu- contends that the trial court

Defendant as a not demonstrated remorse. cast Though to that defendant had argue tor error, a our includes criticism of argument claim of trial court also lack of remorse a circumstance decisions allowing prosecutor argue 190.3, (a). argues factor Defendant of the crime for of section purposes of into a converted lack remorse argument impermissibly the prosecutor’s he asserts the trial court failed to give in Finally, distinct factor aggravation. are absence of remorse. His claims instruction regarding the jury proper without merit. remorse argument regarding way background, prosecutor’s of

By First, had failed produce he that defendant argued double pronged. a could as mitigating and thus the not consider evidence of remorse Second, at the failure to show remorse that defendant’s argued factor. with the aggravating considered in connection of the crime could be scene 190.3, (a). factor Both the crime under section of the circumstances of factor were permissible. arguments under the 1978 death of mitigating penalty remorse is

“The presence however, v. absence, (People is generally aggravating.” Its law. [Citation.] P.2d 820 (1991) 54 Cal.3d Ashmus [2 demonstrating Nonetheless, of the crime or statements at scene “[c]onduct circumstance of as a aggravation of remorse bemay lack considered] Pollock, 190.3, (People (a). crime under section factor capital [Citation.]” statutory is Cal.4th at “Overt remorselessness sentenc . . (a) factor . of the sentencer ing because factor section 190.3 allows crime all evaluate aggravating mitigating aspects capital itself. Moreover, there is inherent in the issue of remorse which makes it nothing toward only. defendant’s overt indifference or callousness mitigating misdeed bears on the moral whether greater decision significantly punish ment, lesser, rather than a be should imposed. [Citation.]” Gonzalez 1159], (1990) 51 Cal.3d original Cal.Rptr. italics.) of criticizes our decisions consideration absence of permitting 190.3,

remorse as within the (a) section factor because it is not a purview factor separate statutory aggravation under 1978 death law. He penalty also asserts argue absence remorse permitting with the determine duty interferes relevant jury’s weigh factors to penalty renders death law We appropriate unconstitutional. penalty are not persuaded by arguments adhere to the reasoning that, our decisions cited above. Defendant because decisions have argues our remorse,” failed to a definition of or provide “remorselessness” “absence “the defense is notice no of what facts provided may argument draw an lacked technical remorse.” Neither has a phrase specialized Moreover, so as to meaning warrant definition. particular facts that show either or might remorse absence of remorse will necessarily from vary case to case and at a any definition would global be attempt inadequate.

We a reject defendant’s related claim that is special instruction required the to directing jury how assess consider the absence of remorse. Because the has no or phrase technical an as to specialized meaning, instruction its and what meaning it should or not be weight should In given unnecessary. case, this there was no would consider the of remorse danger jury absence to be a factor in in and aggravation of itself because it was specifically instructed that the of a absence not statutory mitigating factor did constitute an factor. aggravating made the same he told the when prosecutor point the absence of could be jury remorse considered in the of section only context 190.3, (a), factor the circumstances of the crime. We are not persuaded the instructions as given, light were insuffi- prosecutor’s argument, cient to direct the consideration of of absence of remorse jury’s evidence as 190.3, an (a). element section factor

Defendant asserts that the prosecutor remorse impermissibly argued was a “condition that must be fulfilled before the could precedent” jury We “grant sympathy have examined the mercy passage [defendant].” context, simply about which defendant In complains.40 prosecutor and, therefore, it that no had been shown stated evidence of remorse correctly remarks, a After defense to these was not factor. mitigating objected remorse, crime, a the commission of added: “The absence after prosecutor cannot be as an factor.” aggravating after crime has been used completed, that this defendant has “you He reiterated that haven’t heard evidence any remorse, it’s Viewing argument demonstrated so not here.” any present whole, not have subscribed to juror we do believe reasonable would Cox, supra, it. v. meaning (People that defendant seeks impose upon 960.) at Cal.4th p. com asserts further that the constituted an argument improper California,

ment on defendant’s failure violation testify, Griffin however, did not refer to defendant’s 380 U.S. 609. The supra, prosecutor, failure to v. Keenan Cal.3d testify. (People Cal.Rptr. where did not claim of error [rejecting prosecutor 1081] Griffin juror A would have refer to defendant’s failure reasonable testify].) to be reference to the absence of evidence of remorse directed understood his it did not. testimony the evidence the defense did present, at Cox, 30 Cal.4th at p. “created” factor in “based

Defendant contends the aggravation at the of the crime.” as to lack of remorse time alleged on speculation [his] First, “Another factor cites the statement: aggravating prosecutor’s and his failure to show remorse at is his callousness the scene was going crime. to what she Totally scene callous. [In]different noted, we have already prosecutor’s As through, totally completely.” crime be the scene of the can considered lack of remorse at argument—overt 190.3, (a)—was We have also concluded that under section factor proper. an factor could aggravating reference to callousness as passing prosecutor’s (See consider. fn. about the factors was to not have misled that as victim ante.) argument asserts the Defendant also prosecutor’s her her but going through purse defendant did not assist dying, lay evidence. We have already not the money supported by for was looking 1044-1045, short, ante.) In the (See claim and do so again. pp. this rejected argument by asserting not bounds of did exceed permissible of remorse. of the crime showed a lack conduct at the scene that defendant’s Second, by lack of remorse the jury that consideration of defendant argues to he allocute express because sought permission was impermissible law, know, something that precedent, has is we call it condition “You what in follows, you in something expect that would to see prerequisite, happen thing before another remorse, remorse, presence give you grant mercy, before you sympathy, existence before factor, present it’s not sorry you mitigating can be a but you’re that for what have done the fact in present here. It is not this case.”

remorse. He 486 U.S. L.Ed.2d cites Johnson Mississippi Johnson, 108 S.Ct. reversed the In court high 1981]. death one sentence because of the three circumstances on which aggravating relied, had York assault with intent to jury a New conviction for commit was reversed New York courts after rape, Mississippi Supreme Court had death affirmed the sentence. That court denied subsequently court, relief. At the contended postconviction high Mississippi the defendant’s should be sentence affirmed “because when Mississippi [the conducted its review of the death on Supreme sentence proportionality Court] it did petitioner’s initial mention conviction appeal, petitioner’s prior (Id. at upholding sentence.” court p. high responded; “[T]he error here extended mere an invalidation of circumstance beyond aggravating evidence was supported by otherwise admissible. Here the jury allowed to consider evidence that has been revealed to be inaccu- materially (Id. rate.” omitted.) fn.

Johnson is This is not a case where evidence before the inapposite. jury its determination was penalty revealed have been subsequently materially inaccurate. There evidence was no of remorse because defendant elected not such evidence after allocute present any his request denied. properly The prosecutor was entitled to comment record on the as it existed and on that rely record.

Finally, defendant contends that the effect cumulative of the “absence of remorse” errors reversal. As we rejected have all of defendant’s requires error, claims of no there is cumulative effect reversal. requiring T. Cumulative error

Defendant contends the cumulative effect of error during penalty phase trial reversal. We have found requires defendant’s claims of many errors are forfeited because failed to timely lodge specific objection below. To the extent his claims were either not forfeited we have discussed forfeiture, their merits found notwithstanding we have either no error or no we prejudice. his claim cumulative error. Accordingly, reject U. Automatic modify motion to death verdict

Defendant contends the trial court’s automatic motion ruling , modification verdict death suffered defects. multiple from His claim without merit.

“In on defendant’s for modification of the verdict” ruling application 190.4, under (e), section court the subdivision “the trial must reweigh 1062 circumstances;

evidence; deter consider the and and aggravating mitigating whether, mine the of the evidence weight in its independent judgment, 547, the Cal.4th jury’s Brady (2010) verdict.” 50 588 supports (People [113 “ 458, 312].) must 236 P.3d ‘That is determine Cal.Rptr.3d say, judge] [the that all whether the decision death is under the circum appropriate jury’s ” Ashmus, 54 stances is Cal.3d at adequately (People supported.’ 1006.) The trial court’s role not to make an and de novo is p. independent 876, (2001) determination. v. Weaver (People 989 penalty [111 2, on an motion a modify P.3d “In automatic Cal.Rptr.2d ruling 29 verdict, of, need details identify, death trial court not recount all evidence or in The trial court’s mitigation aggravation. only presented [Citation.] that allows effective review.” obligation provide ruling appellate [is] 427 P.3d (2008) v. Romero Cal.4th Cal.Rptr.3d [79 56]; (2007) 42 Cal.4th People see v. DePriest ‘ ’ court need not describe detail” its “every supporting [“The 896] review, On the trial ruling court’s “is ruling.”].) subject independent review, penalty.” (Brady, we not make a de novo determination of do [but] Cal.4th trial that it understood clearly

The court’s remarks demonstrate preliminary cited its role. The court of its function and statutory description quoted an that the trial make by judge decisions this court “requiring independent death in light determination whether of the is [imposition] penalty appropriate relevant and the law . . . of the evidence . applicable [the [f] [W]hether the jury of evidence independent judgment weight supports court’s] further “the evidence which acknowledged only verdict.” court and, is to before the of the court review is which was jury,” part of “the is assess judgment, judge exercise required independent witnesses, force of the testimony determine credibility probative and evidence.” weigh review of the penalty

Based its upon phase “personal[]” “careful[]” evidence,

members of the defendant’s who have family testified about his family activities and history, ... court further finds background independently that none of the evidence offered the defendant could in be any way conduct”; considered a moral or justification extenuation of his “there are no factors in which will extenuate and mitigation mitigate of gravity committed,” crimes “the of the defendant specifically, capacity appreciate of his conduct or to criminality conform his conduct to requirements [the] law, of was not aas result of mental disease or defect or the impaired effects intoxication,” “the offenses were not committed while defendant was distress,” under the influence of extreme mental or emotional and the “is not a age factor.” mitigating Further, the court considered and reviewed other independently “any circumstance which could crime extenuate the of the even it is gravity though not a legal excuse the crime . . . or other any sympathetic aspect defendant’s background^] character or record . .. whether or not related to trial, the offenses for which he was on and finds that there are none that extenuate the of the crimes or gravity these mitigate[] offenses.” The court concluded that in its assessment” “personal “factors in aggravation those in outweigh and “the mitigation,” evidence in aggravation is so substantial to the evidence in comparison mitigation that death is war- ranted and not life in without the prison possibility parole.” but, that the trial complains court failed to make written findings the court contrary, with the complied directive to “set forth statutory the reasons for his . . . and ruling direct that be entered on the they Clerk’s 190.4, (§ minutes.” (e).) subd. Defendant also that the court “failed complains evidence,” to mention any “did specific not assess the credibility witnesses, determine the force of the probative testimony, weigh evidence.” These claims are meritless.

Defendant asserts that the court’s were findings aggravation deficient because its discussion of the circumstances of the crime “was so that it vague does not basis for a provide any of evidence in finding The aggravation.” court the manner of the specified murder—“the defendant stabbed the brutally victim numerous times and exhibited a high degree callous- cruelty ness.” We have no difficulty understanding court’s or meaning subjecting this to our own finding review. we

Similarly, reject defendant’s claim that the trial court’s findings as were too mitigation vague allow meaningful review. court was not to set forth in detail all the required evidence presented mitigation Romero, aggravation. Cal.4th at do We not that, presume because it did not refer to all evidence in it did mitigation, Here, review and consider that evidence. the trial court referred specifically of members his testimony family regarding background, the record, intoxication, circum- age character and evidence of his other any crime, stance, it or to the and concluded that none of whether not related crimes these Fur- of the or offenses.” gravity mitigate[d] “extenuate[d] shows, thermore, as its statement trial court applied appropriate standard in its examination of the evidence in not mitigation, referring simply crime, but evidence related to all evidence circumstances 963, (1988) v. 46 Cal.3d mitigation. (See offered in 993-994 People Jennings 278, 475].) 760 P.2d Cal.Rptr. [251 that the trial court failed to properly analyze contends childhood, factors his lack an extensive “disadvantaged” his of

mitigating record, of to the criminal and his lack convictions. As felony violent prior factor, the trial in its discussion mitigation first court cited of specifically about of defendant’s members family background. evidence testimony that, factor, court did the second defendant asserts because the trial Regarding in in aggrava- not mention his altercations its discussion factors jailhouse tion, that the it must have discounted them. From this reasons premise, in of violent court should then have considered absence mitigation 190.3, (§ (b) to consider criminal defendant. factor activity by [sentencer or the defendant which by absence of criminal activity presence “[t]he. or or the use or use force or violence the express involved attempted an violence”].) threat to use or But the evidence did not show force implied rather, conduct; that defendant had engaged absence of such demonstrated did not err to consider the absence failing in such conduct. The court by as a factor in mitigation. such conduct event, “a not in rote recitation” engage

In court is required Osband, at factor 13 Cal.4th (People supra, v. every single mitigation. evidence “The trial mere failure to mention all 727.) expressly court’s p. the trial or ignored . . . does not mean court mitigation presented evidence, that the court did not consider such but indicates simply overlooked Samayoa weight.” (People such evidence have appreciable mitigating- 400, 795, P.2d an (1997) 860 938 [64 “[A]bsent ’ ‘ the mitigating overlooked” “ignored indication [citation] [the court] evidence, error, an no such indication of such we will find there The same (Osband, analysis here.” Cal.4th omission of felony trial mention absence expressly court’s failure applies convictions. the factors

Next, the trial ultimate finding defendant claims that court’s it failed deficient because those in mitigation in aggravation outweighed reject of this conclusion. We an record in support to make adequate assertion. The an understanding trial court’s statement demonstrated lengthy standards, of its function and the applicable legal supported references to the evidence. It bears at all to the summary no resemblance statements we found defective in the two on which defendant relies. cases v. Bonillas 48 Cal.3d 800-801 Cal.Rptr. [259 there, P.2d ‘I think the circumstances were aggravating they 844] [“ ” People did exceed (italics omitted)]; circumstances.’ mitigating Rodriguez (1986) 42 Cal.3d Cal.Rptr. 113] Court finds that the circumstances outweigh mitigat aggravating [“ ‘[T]he circumstances and that the of the evidence ing weight supports jury’s verdict ”].) of death.’

Defendant asserts that the trial court relied on its own notes. impermissibly verdict, “In on an ruling for modification of the the trial court application v. Navarette jury.” (People on evidence that was before the may only rely 458, (2003) 89, 30 Cal.4th 66 P.3d The trial Cal.Rptr.2d [133 court acknowledged this rule in its remarks. The use of court’s its prefatory because, notes did not violate rule this as the court those notes explained, Therefore, to the claim evidence received.” we reject defendant’s “relat[ed] that the court’s ruling based on “undisclosed and unknown information.” People v. Lewis and Oliver (See 970, (2006) 39 Cal.4th Cal.Rptr.3d [47 record, 140 P.3d on the the court consulted its private 775] [“Based 190.4, as to the no reason to reconsider our ruling[s] good presents the death impacts qualification California Constitution.’ [Citation.] [][] race, do not affect its the gender, religion jurors process violate a defendant’s Nor does process constitutionality. [Citations.] to be sub Amendment right rights, including Eighth constitutional an affording by to cruel and unusual jected punishment, a conviction. getting to increase the chances [Citations.] opportunity We have itself a biased jury. claims the voir dire process produces does not violate the Sixth Death held otherwise. qualification [f] [Citation.] a cross-section of the the functions of a jury Amendment by undermining Finally, of justice. in the administration community participating [Citations.] use were not violated rights prosecutor’s defendant’s constitutional about with reservations capital to exclude challenges jurors peremptory 26-27; Taylor, see v. (Howard, People 51 Cal.4th at pp. supra, punishment.” in these 602-603.) to the views expressed We adhere supra, pp. defendant’s claims. decisions and reject scheme and statute death regarding penalty Constitutional claims

W. Jury unanimity

1. because scheme” is unconstitutional “the death penalty Defendant contends that a reasonable doubt to find beyond “the was not required jury existed, aggravated unanimously proven that any circumstance aggravating

1067 or that circumstances outweighed mitigating substantially circumstances Thus, asserts, under rights death penalty.” appropriate Fifth, Sixth, to the federal Constitution and Fourteenth Amendments Eighth I Constitution were violated. and article of California as to unanimity specific “The need not make written achieve findings, jury circumstances, doubt an beyond aggravat find reasonable aggravating 190, (b) (c)), circumstance & find beyond factors ing (except proved § circum outweigh mitigating doubt that circumstances aggravating reasonable stances, doubt that death is or find reasonable beyond appropriate Moreover, to any need not be instructed as penalty. jury [Citations.] The United burden of to be selecting penalty imposed. proof [Citation.] the Sixth Amendment’s States Court’s recent decisions interpreting Supreme 270 (2007) U.S. (Cunningham trial v. 549 guarantee California 856]; U.S. (2005) States v. Booker L.Ed.2d 127 S.Ct. United [166 738]; (2004) v. 542 U.S. Blakely L.Ed.2d 125 S.Ct. Washington [160 Arizona, 584; 403,124 ]; L.Ed.2d S.Ct. 2531 536 U.S. Ring 296 [159 466) conclu v. New U.S. have not altered our Apprendi Jersey, supra, 530 sions in this regard. [Citations].” Gonzales Soliz argu Cal.4th Defendant’s ments do not us otherwise. persuade challenges

2. Constitutional to the death statute penalty Defendant mounts to the death penalty various constitutional challenges have do consistently rejected. statute that we We so again, finding: a. law of murder “California’s death narrows class ‘adequately penalty ers and does not violate the Amendment.” Eighth death subject penalty’ 769, 191, (2011) v. Blacksher 52 Cal.4th 848 (People Cal.Rptr.3d [130 370].) 259 P.3d 190.3, consider, (a), choosing in

b. “Section factor which allows jury of the crime of which circumstances penalty, appropriate ‘[t]he defendant was convicted in the and existence of present proceeding 190.1,’ not to be does circumstances found true to Section special pursuant violate or to the United States Constitution Fourteenth Amendments Eighth case, or factor those circumstances differ from case to because merely because in these (a) not circumstances. guide jury weighing does [Citations.]” 191, 1053, 210 P.3d (2009) 46 Cal.4th 1133 (People Farley Cal.Rptr.3d v. [96 190.3, 361].) (a),... unconstitutionally arbitrary “Section factor is not vague, Cowan, 508.) Cal.4th at (People supra, or v. 50 capricious. p. [Citations.]” 1068

c. (a) “Factor of section . . 190.3 . does not result in impermissibly or ‘double-counting’ create a in automatically bias favor of a verdict. death v. Davis (People (2009) 539, 46 Cal.4th [Citations.]” 627 Cal.Rptr.3d [94 78].) d. “We also reject defendant’s contention that the California death penalty law violates the and Fourteenth Eighth Amendments because the jury is not instructed as to any burden of in proof to be selecting penalty As imposed. we have determination, explained, guilt “the ‘[u]nlike function sentencing normative, is moral inherently and, and not hence, factual” [citation] ato susceptible burden-of-proof quantification.’ The instructions as [Citation.] a whole adequately guide in jury out their carrying ‘moral and normative’ Jenkins, function.” (People v. supra, Cal.4th at 1053-1054.) pp. The death statute penalty is not unconstitutional because it fails “to a burden of impose on either proof even if party, only proof by preponderance evi dence, or, alternatively, to instruct failing on the jury absence of a burden of proof v. (People Vines (2011) [citations].” Cal.4th 891 [124 830, 251 P.3d Cal.Rptr.3d

e. “Defendant contends that the California death statute penalty violates Eighth Fourteenth Amendments of the United States Constitution because certain procedural safeguards are lacking: juries are not to make required written findings regarding circumstances aggravation, to achieve una- nimity as to aggravation circumstances. . . . Each of these contentions has Jenkins, been rejected, and we decline to reconsider them.” v. (People supra, 22 Cal.4th at 1053.) p.

f. The death statute penalty is not unconstitutional failing require “[i]n Vines, intercase review.” (People proportionality supra, 51 Cal.4th at Zambrano, 891; see supra, p. 41 Cal.4th at 1186.) p. “The

g. statutes are not invalid penalty] [death because they permit 190.3, to consider in aggravation, under section (b), factor evidence of a Tobin, (Letner offenses. unadjudicated [Citation.]” Cal.4th at 190.3,

h. “Consideration of both section (b) (criminal factors activity force or involving violence), (c) convictions) (prior felony permissible. Hillhouse [Citation.]” 40 P.3d “ statutes,

i. ‘The use in the instructions, and in the standard terms “extreme,” “substantial,” believed,” such as and “at the “reasonably time of the offense” in forth the setting factors does not mitigating impermissibly

1069 or arbitrary capricious in an result or otherwise evidence mitigation limit the ” Tobin, at Cal.4th supra, 50 v. Letner (People determination.’ penalty unconstitutionally is (k) factor of section 190.3 (i) factor nor 208.) Neither p. 1224; v. People at Cal.4th supra, v. Slaughter, p. 27 (See People vague. 485, 150].) The 6 P.3d 130, Cal.Rptr.2d 24 Cal.4th 192 [99 Mendoza identify does not because is not unconstitutional death statute penalty trial was the nor mitigating, and which are which factors are aggravating Box, 1217.) at 23 Cal.4th (People supra, p. v. instruct. court so required “ as a result of of the laws of the equal protection ‘There is no violation j. defendants some procedural for failure to capital the statutes’ asserted provide ” Tobin, (Letner supra, defendants.’ to noncapital afforded guarantees (Gregg unconstitutional se 208.) The death per Cal.4th at p. penalty 859, 2909]; 153, S.Ct. L.Ed.2d (1976) 428 U.S. Georgia [49 Zambrano, at supra, p. constitu- attacks on the and rejected have also considered

k. We repeatedly v. Moon (2005) 37 Cal.4th (People Nos. 8.85 and 8.88. of CALJIC tionality no 591].) Defendant provides persuasive 41^14 [32 claims. reasons to revisit those in California violates the death

l. “Defendant argues penalty Fourteenth Amendments and the Eighth California Constitution and capriciously arbitrarily because it is imposed United States Constitution [] n We have which the case is prosecuted. on the in county depending claims, ago over 20 concluding years similar substantially rejected repeatedly the death cases in which to select those eligible discretion that ‘prosecutorial of equal . . . offend principles does not sought will be actually penalty cruel and/or unusual punishment.’ [Citations.] [][] due protection, process, in Defendant, however, prior our decisions this court to reexamine urges decision Court’s voting rights States of the United light Supreme cases which, 525], 121 S.Ct. L.Ed.2d Bush v. Gore (2000) 531 U.S. 98 for asserts, counties prosecutorial California’s 58 among uniformity requires its court high explained, death But as seeking penalty. standards recount voting to Florida’s challenge protection consideration equal circumstances, of equal for the problem to the present was ‘limited process (Id. in election processes many complexities.’ generally presents protection therefore, our case, revisiting our does not warrant added.) italics That Vines, Cal.4th at issue.” the instant holdings prior 889-890.) pp.

1070

X. International law

“Defendant’s death sentence violates neither international law nor his under the rights and Fourteenth Eighth Amendments to federal Constitu- tion, as no authority of ‘prohibits] sentence death rendered in accordance with state and federal constitutional and statutory requirements.’ [Citation.] Unless a defendant establishes his trial involved violations of state prejudicial law, or federal constitutional we need not consider the whether he question also suffered McKinnon, violations of international law. v. (People [Citation.]” 52 supra, 698.) Cal.4th at we p. “Finally, again the contention that reject law, death norms, violates international penalty is contrary international that these norms of the death require application penalty most only Blacksher, crimes. extraordinary (People v. 52 Cal.4th supra, at [Citation.]” 849.) p.

Y. Inadequate record

Defendant contends that missing render the record reporter’s transcripts inadequate meaningful review. His claim appellate is meritless. must,

“All 190.9, in a proceedings case under capital section be conducted on the record with a reporter present transcriptions prepared. ‘ arises from the presumption prejudice [Citation.] “[N]o absence of materials from the [citation], record and defendant appellate bears the burden that the record demonstrating is inadequate permit meaningful appellate ’ Cook, review Cal.4th (People supra, [citations].” 39 [Citations.]” 586.)41 “The record on is . . . if the appeal inadequate only complained-of is deficiency prejudicial ability his prosecute appeal. It defendant’s burden to show [Citation.] this sort. prejudice 155, 196, (1996) fn. [Citation.]” Alvarez “Moreover, P.2d 365].) in the irregularities preliminary are no basis for hearing reversal on unless defendant can demonstrate appeal unfairness in the resulting (Zambrano, trial. subsequent [Citations.]” Cal.4th at p. 41 A inadequacy begins defendant’s burden to show the of the record with an accurate case, representation alleged missing records. In this defendant claims that there were “ ” case,” ‘forty-four’ hearings, court proceedings or conferences “not transcribed in this “on 17 other occasions there is ‘no reporter’s transcript’ hearing.” of a He also asserts entitlement to the trial sixty court’s trial notes. He concludes: “In short a total of proceedings missing are from the record.” But 44 plus 17 is and the court trial notes would be 62. Defendant also double-counts a number of categories (e.g., dates under two different hearings “not transcribed” and occasions where there reporter’s transcript”). Finally, is “no he Attorney claims General failed to address the absence of proceedings 14 unrecorded unhelpfully but specify proceedings, carry fails to these 14 much less out burden showing allegedly missing meaningful that these prevented appellate records review. 14, for August allegedly missing transcript that the

Defendant concedes for fact, 1992, is, allegedly missing transcript, A second in in the record. brief, 1992, appears of defendant’s opening listed at January page 115 to 117. With respect at pages court transcript the augmented reporter’s from the notes are missing trial court’s claim that the personal defendant’s these notes record, demonstrate that he ever requested defendant does not v. Lewis them. event, been entitled to and, he would not have in any Oliver, augment not entitled at supra, p. [defendants the court’s own work “The notes were trial court’s notes: the record with to the judge.”].) and personal product, in the are for missing proceedings

Defendant contends that transcripts As to 11 and 1987. (former) September court for August municipal dates, in the settled statement defendant’s trial counsel indicated each of these is contained in the minute orders. hearings that his recollection of the a defense matter of the dates was subject August minute orders show others outright, granted motion. The trial court some items discovery granted modified, issue Defendant has neither raised any and denied others. so doing how he was from nor demonstrated regarding discovery precluded because of the missing transcripts. tran-

Defendant contends the record is missing transcripts preliminary 17, 18, 19, and and December for November 1987. script proceedings indicates that the chief of these subject The settled statement for these dates named Thomas Marshall. Marshall was a witness proceedings prosecution that he had at that defendant told him in hearing jail testified the preliminary at trial. Accord- murdered Olsson. Marshall did not Sandy testify at the testimony ingly, any missing proceedings involving preliminary defendant at trial. resulted in unfairness to examination could not have (Zambrano, refers to 41 Cal.4th at The settled statement also witnesses of a in camera the assertion involving by police proceedings Marshall’s work as a police records against disclosing involving privilege trial, cannot did not testify informant. because Marshall Again, show any prejudice. 24, 1987, off-the- for November indicates two

The settled statement of Sergeant discussions of defense involving questioning record scope Robertson, the murder A investigation. about the other leads and suspects Defendant asserts summary. review of the clerk’s this transcript supports evidence” that someone record “contains missing potentially exculpatory record” has he committed the murder and the “lack of other than have may him this evidence. This assertion fully completely from pursuing prevented without merit. record,

On the extant defendant’s trial counsel he had been acknowledged with the information other provided His concern was that regarding suspects. discussion, there be more. After an might noted on the record unreported that the had him agreed with additional material on the provide Thus, of other there subject is no for defendant’s claim that suspects. support the untranscribed involved proceedings missing “potentially exculpatory evidence.” To the the extant record indicates that the contrary, untranscribed involved the proceedings to turn over materials about prosecutor’s agreement other in addition to those in the suspects already defense’s None possession. this, event, fulfills defendant’s any obligation demonstrate that the untranscribed has review proceeding prevented meaningful appellate any claim he raised on appeal. 1, 1987,

The settled statement for December indicates there was an off-the-record discussion “the concerning of blood preservation samples other evidence.” This followed defendant refrigerated been held to having 15, 1987, answer ordered to for on December and an appear arraignment conversation about the whereabouts and ensuing of blood transportation Defendant fails demonstrate from the absence of samples. prejudice arising of this routine transcript matter. apparently housekeeping Next, defendant cites untranscribed and in limine pretrial proceedings 15, 1987; 15, 18, 6, 7, 1988; 17, December June and June April June April 23, 25, 1991; 27, 11, and November March September January February 10, 20, 17, 6, 9, March and June The settled statement April May 1992. 15, 1987, reveals that the for December and all of the missing transcripts matters, 1988 involved routine continuance of transcripts including arraign- ment, of a section motion that was then continued for filing hearing, 995 matters without because defendant was dropping pending prejudice absent, and the continuance of a motion to the record of settle the preliminary examination.42 Our review of the settled statement and the clerk’s transcript 9, 1992, for all of the dates and all of the June 1991 1992 dates except reveals on each of those occasions the court’s action was to only continue the case for trial The settled statement and clerk’s setting. transcript 2, 1992, However, reflect that June was the first of trial. counsel waived day chambers, conferred with the court in and continued reporter’s presence, .6, April proceedings contends 18 and June involved his suppression appeal motions and are therefore relevant to his claim on that these motions were However, erroneously reporter’s denied. certificate states that his shorthand notes “reflect dates, [defendant], that on both when the Court called the case of the defendant was not were if the matters present pending dropped in court and the matters from calendar.” Even motions, dropped suppression proceeding were defendant’s we fail to see how this routine claims, meaningful enlighten review of his nor does he us. Defendant’s prevented appellate something fortuity prejudice requires burden to demonstrate more than the that an untran tangential relationship to a claim he later raised on proceeding appeal. scribed had some 1992, 9, counsel waived again reporter’s to June On June

the trial 9. chambers, the matter over and put conferred with the court presence, counsel waived presence. for trial. On both days, June 10 no memory proceedings Trial Counsel had Although Wagner specific of court reflects that majority of those the settled statement days, “[t]he mat- scheduling related to Wagner’s Mr. following appointment appearances Thus, more took the record indicates that nothing place ters . . . .” again, and defendant fails to than routine matters scheduling these dates other conducted the with which trial counsel vigor otherwise. Given persuade defense, waived defendant’s it is inconceivable that would have they appear- substantive matter would ance and the had they any reporter anticipated be discussed on of these dates. trial for the follow-

Defendant next directs us untranscribed proceedings 11, 11, 25, 1, 24, 4, June June ing July July August August 1992 dates: 3, 9, 20, 27, August August August August September September 2. (three times), and November September September September is sufficient to disclose The extant record of the on these dates proceedings nature and have contained they may their belies defendant’s assertion he information that review of meaningful any argument precludes appellate raised or him from an would otherwise advancing argument has prevented have made.

The extant record for June 11 that the court and counsel conferred shows during off the record for and to mark certain exhibits scheduling purposes The extant record for June 25 and 1 indicates that on July pretrial proceeding. and counsel off the record about juror both dates court conferred as the result of which the excused a number questionnaires, parties Defendant asserts there is an untranscribed prospective jurors by stipulation. 24, conference on but the to which he refers us in the July reporter’s page 16, an is for June and contains no such notation. There was transcript to use off-the-record discussion on July involving prosecutor’s request followed on July by certain at the trial. This was guilt phase photographs each that included the an on-the-record discussion of proposed photograph and the court’s objections rulings. 4, of defendant’s objection On there was an discussion August unreported to the to John Chandler about defendant’s employment prosecutor’s question the trial court memorialized Before for the history. recessing morning, record, the basis of defendant’s objection— discussion on the explaining cites an that it had overruled the objection. relevance—and an defense following objection by discussion on August unreported about whether Robertson Sergeаnt counsel prosecutor’s question Thomas,” Pillard, in the had come “Doubting up Thomas also known as to March investigation 1987. Before for the the trial prior recessing day, court memorialized for the record the basis of the objection—relevance—and its Defendant cites an ruling. discussion on unreported August regarding objection his criminalist the defense prosecutor’s questions DNA of hairs found in the regarding testing victim’s bedroom. The prosecu- tor withdrew the and the matter objection was resolved by stipulation.

record reveals that on there was an August discussion unreported regard- ing exhibits and instructions. to the settled guilt phase jury According statement, Defense Counsel Wagner conferring on guilt phase “recall[ed] instructions and the results of these were later put believe[d] discussion[s] fact, the record.” In there was a on-the-record lengthy hearing regarding admission of exhibits into evidence and instructions. Defendant guilt phase to an discussion on after the points had been sent unreported August jury out for deliberations. That discussion followed an on-the-record guilt phase discussion for regarding possible requests tapes transcripts record, stated, Just before off the the court “We have certain tapes. going forms,” matters to take which included a “review of the verdict “several up,” items evidence we’ve referred to as the and “the issue how we envelope,” will accommodate any these And once we request tapes transcripts. arrive at that determination we’ll that on the record.” These were put matters, none of which further on-the-record housekeeping required discussion. Defendant asserts there was an discussion on August unreported 27, but at the he cites the court refers to “a brief page merely scheduling conference.”

Defendant directs us to an discussion on 3. A review unreported September of the record reveals that this for a involved written request by parties of the court’s victim evidence This is confirmed copy ruling. by impact defense counsel’s recollection in the settled statement the discussion “concerned the of a written on court’s issuance victim evi- ruling impact dence.” An on occurred after discussion defendant’s unreported September brother finished and the defense he be excused. The testifying requested discussion, asked that he remain on call. After the the witness was confirmed defense counsel’s recollection in by excused. This is provisionally the settled statement the discussion involved or “holding excusing witness A second discussion involved defense Roger Tully.” unreported he and to the of defendant’s son about what objection question prosecutor’s had each Defense counsel defendant had done the last time seen other. they direct; was overruled. This it was objected beyond scope objection counsel’s recollection in the settled statement. is confirmed defense by the clerk’s an discussion on to According transcript, unreported September This is confirmed defense coun- by 10 involved instructions. penalty phase statement that the discussion involved “penalty sel’s recollection in the settled fact, there is an later on the record.” In instructions” and was “put phase on-the-record discussion of instructions. Defendant to penalty phase points three 15. The first two discussions unreported September unreported victim discussions involved defense objections prosecutor’s impact discussions, The trial court memorialized these arguments. subsequently concern, nature of the The third discussion involved defense’s its rulings. This is confirmed the recollections of Defense Counsel scheduling. in the Wagner settled statement. Defendant cites an discussion on unreported about the following court of September receipt by jury question definition of life without The next morning, possibility parole. September 17, the court had of the conference and counsel explained purpose to its agreed proposed response. 2, but,

Defendant cites an on November as defense discussion unreported confirms, counsel’s recollection in the settled statement it was simply put the case over to December 4 for the and sentencing. probation report brief,

In his defendant makes a opening merely global unsubstantiated claim that or missing unreported transcripts prevented meaningful appellate review, without the exact issues on which he rests this bothering specify case, claim. Our review of these belies his claim. In each missing transcripts either the record is sufficient for review involved routine proceedings matters. brief,

For the first time in his 11 claims reply attempts specify as to which the absence of review. meaningful transcripts prevented appellate It is axiomatic that made for the first time in a brief will not arguments reply event, be entertained because of the unfairness to the other In any party. does more than to link each specification nothing missing attempt to various without transcript arguments explaining why missing transcript had at all on his to raise the issue or on our impact ability ability review it. This is burden sustain his inadequate showing prejudice.

We have before us an 18-volume over reporter’s transcript comprising 3,900 as well as and a 51-volume pages supplemental reporter’s transcripts 15,500 clerk’s almost brief in this transcript comprising pages. opening volumes, case is in two brief separate coming pages, reply while adds another 522 The Attorney to defendant’s General’s brief pages briefing. 1,600 is 375 total to long; briefing over “With pages comprises pages. respect issue raised on we every have found record sufficient to appeal, permit discretion, review. It is in this context we must find abuse of existed, it was not because the record is assuming prejudicial, clearly Pinholster, for review.” adequate meaningful appellate Cal.4th at we defendant’s claim. Accordingly, reject

III. Conclusion

We affirm the in its judgment entirety. Liu, J., J., J., Chin, J., J., and Corrigan, C.

Cantil-Sakauye, Werdegar, concurred.

KENNARD, J., Concurring. in affirming judgment join majority —I however, address the merits of defendant’s of death. I write to separately, claim by using that the committed misconduct at the penalty phase prosecutor in his statement to the closing jury, subject majority biblical quotations the claim by it that defendant forfeited does not address because concludes to failing object.

I trial, at the phase capital During closing argument penalty entitled “The Bible Sanctions chart large showed prosecutor four from The chart contained these quotations Punishment.” Capital shed, man shall his blood be for (1) “Who sheds the blood of man by Bible: die, man”; he (2) “He that smiteth a man so that in his did God make image death”; an (3) “And if he strike him instrument shall be surely put w[ith] die, be The murderer shall surely put of iron so that he he is a murderer: death”; for the soul of a murderer (4) “And shall not take you reparations he shall be to death.” who deserves to die but put talk said: we jury,1

In his initial argument “[W]hen all, that is to be used something aggravation it is not religion, about that is thing but the one has to say, or the Koran or anything what Bible are to be is this idea that murderers all throughout religions universal it is appropriate. is sanctioned and that and that the death penalty punished, ... saying who lies awake at night And so there isn’t just anybody . . . thing? to do this sort of religion under my [T]hat permissible And there is question of beforehand. you thought we something hoped beliefs: Is that about your religious in various forms that asks you that effect Well, to this times people get point, in the way? many to stand going FH] does, fact, Bible sanction capital about that.... start they thinking [T]he strikes ‘He who point: that is so just right There is one [f] punishment. murderer, die, and the he is a so that him with an instrument iron death. And take no be shall surely put murderer will you reparations be to death. die, put but he shall [¶] a murderer who deserves the soul of arguments. phase two penalty and the defense prosecution allowed both the The trial court man, He who sheds the blood of man shall his blood be shed. For in his by did God make man. His blood or his life will be shed man.’ image [f] Now, said, as I is not to be the factor in religion guiding finding supposed but I aggravation, want to clear the air there that does not stand just religion in the (Italics and that’s not to enter evaluation.” way, your into supposed added.) that,

Defense counsel then to the to the argued contrary jury prosecutor’s death, Also, claim all religions Buddhism does not. permit punishment by said, defense counsel under ancient Jewish law such was almost punishment never imposed—once to one scholar in the every years according quoted Talmud; once to another. He then from the every years according quoted mine, New Testament: said the Lord.” “Vengeance The prosecutor began his final statement with these words: jury process we here a lot different than it go through was in the “[T]his [is] Testament, Old Testament. The Old when God he made it clear. spoke, very Veryclear. Murderers shall die. And God also made it clear that it very man who was going to impose penalty. clear, Paul makes it very [][]... God, ‘the ruler bears not the sword in vein [sic\ vain] for he is the minister in to execute wrath revenger him that do with upon evil.’ [sic: doeth] [][]... clear, God made it when man into the act he starts gets softening up [but] rules a little bit and (Italics added.) that’s okay.” statement,

In a final defense counsel told the “God did not sentence jury: Cain to death for his brother. He killing banished him.” Counsel also noted that “the major in . . religious groups this . have taken country rigorous stands the death against penalty.”

II said, As this court has in a case the capital prosecution may rely biblical death, authority to return a verdict urging jury as this would “create and an encourage intolerable risk that the will jury abandon logic reason and instead condemn an offender for reasons no having our place v. Roldan 646,743 judicial system.” (2005) 35 Cal.4th Cal.Rptr.3d 360, v. Williams People 289]; 405, 110 P.3d see 465 [111 (Williams).) Federal courts too have said 1000] Romine v. Head (See (11th this. 2001) Cir. 253 F.3d 1358 [prosecutor committed reversible error by “Biblical law to the as a arguing basis Sandoval v. Calderon it to . . . urging death”]; sentence (9th [the defendant] 111 [“[R]eligious 2000) Cir. 241 F.3d have been condemned arguments by virtually federal and state court to their every consider challenge. [Cita- Bennett v. Angelone tions.]”]; (4th 1996) Cir. F.3d 1346 [“Federal argu- . . . religiously charged and state courts have condemned universally federal As one inflammatory.”].) appel- ments confusing, unnecessary, as statements, the worthy profoundest late court has explained, “[biblical] contexts, courts and no in our non-ecclesiastical in have place respect proper (Ibid.) not be tolerated there.” may I, ante,

Here, the jury large in the showed as discussed part prosecutor Punishment,” “The Bible Sanctions Capital chart the bearing heading murderers; and the death for four biblical containing passages requiring that shall the that God “made it clear” very told jury “[m]urderers prosecutor the religion-based does not decide whether prosecutor’s die.” majority Instead, his claim that defendant forfeited it concludes argument proper. trial, the committed at and that even if prosecutor of error by failing object ante, 1049, 1052-1053.) at resulted. (Maj. opn., pp. misconduct no prejudice view, the authority beyond reliance on went religious In my prosecution’s argument. of permissible parameters Williams, supra, 405. In here is this court’s decision

Pertinent case, state- several at penalty phase quoted that capital prosecutor “ words, that, ‘unambiguously the Bible in the prosecutor’s ments from ” (Id. Therefore, 465.) be to death.’ p. that murderers put command[] have some the Bible for those of who you may “even argued, prosecutor own moral your that should not use you does not say religious scruples (Ibid.) in Williams determination This court here.” beliefs in making [the] . . . “Although argument improper, explaining: held that the prosecutor’s as an ostensible exhortation framed her comments religious the prosecutor deciding against religious death based upon penalty to refrain from jurors about have “religious scruples” imposing not to telling jurors views” communicated “the content of her remarks emphatically death penalty, the Bible supports imposition that the Bible ‘urged of the death She penalty. action, framed Similarly but demands it.’ such not only permits [Citation.] (Id. at p. have been held improper. arguments [Citations.]” Williams, supra, here Cal.4th prosecutor Like the prosecutor tried, jury He ways. correctly explained to have it both put colloquially, But he also enter into evaluation.” your . . . “religion supposed [is] that murderers be put that the Bible required reminded repeatedly instance, the prosecutor statement to the jury, in his initial death. For (one of several the biblical statement so right point” described “just “ an of iron so him with instrument who strikes to the jury), shown ‘[h]e murderer, and knife)], he is a with a victim was killed [(here that he die ” Then, in his final statement death.’ be surely put the murderer will Very clear. very he made God spoke, said: jury, “[W]hen shall die.” clear. Murderers Williams,

As in here the reliance on authority prosecutor’s religious supports imposition communicated that the death the Bible “emphatically (Williams, 466), Cal.4th at penalty” “strayed beyond (ibid.). bounds of based permissible argument religion” upon III ante,

As I (see 1076), noted at the outset declines to decide p. majority whether the committed misconduct on author- by relying religious Instead, that, in his ity penalty phase arguments. concludes by failing trial, to the object at defendant has forfeited prosecutor’s argument his right below, it in challenge this As I appeal. explained reluctantly agree. cases, In concurring dissenting three I opinions previous capital that, concluded the defense failure notwithstanding attorney’s object, prosecutor’s reliance on improper penalty phase religious authority impo death, sition of the death reversal of the penalty of required judgment defense counsel’s failure to to the object prosecutor’s religion-based argu ment resulted in a denial of the defendant’s to effective right representation. v. Zambrano People (See 1082, (2007) 41 Cal.4th 1202-1203 Cal.Rptr.3d [63 297, (cone. Kennard, v. 163 P.3d People Slaughter & dis. J.); of opn. (2002) 4] 1187, 477, 27 Cal.4th (cone. 1225-1229 47 P.3d & dis. Cal.Rptr.2d [120 262] Kennard, v. Wash People of J.); 215, opn. (1993) 6 Cal.4th 279-283 [24 421, (cone. Kennard, 861 P.2d Cal.Rptr.2d & dis. of J.).) opn. 1107] It well may be that here defense counsel decided not to to the object prosecutor’s religion-based argument death for favoring murderers so defense could in turn cite religious authority view. But expressing contrary “ as I have said in the ‘A past: religious argument against death is penalty no more at the acceptable of a case than a penalty phase capital religious argument favor of the death ... It follows that penalty. defense counsel’s decision to respond prosecutor’s on religious argument by relying opposing religious authority cannot be considered a legitimate tactical choice that would excuse his failure to object prosecutor’s impermissible ” Zambrano, (People religious argument.’ v. 41 Cal.4th at 1203 p. Wash, Kennard, quoting People supra, 6 (cone. & J.), dis. of opn. v. Cal.4th at Kennard, v. People Slaughter, supra, (cone. 283 & p. J.); dis. opn. see 27 (cone. Kennard, Cal.4th at 1227 & dis. p. J.).) opn. view, however, v.

That has not been embraced this court. Slaughter, supra, 27 Cal.4th at 1210; v. Riel People (2000) see 22 Cal.4th 1153, 1, People Welch 969]; 1212-1213 (1999) 998 P.2d Cal.Rptr.2d [96 701, Also, Cal.4th here defendant Cal.Rptr.2d [85 does not on argue this that his appeal counsel’s failure to object ineffective religion-based constituted prosecutor’s argument representation, because he to raise that in a habeas perhaps plans argument petition seeking (See People Tello relief. 266-267 Mendoza corpus ineffective ... P.2d claim of assistance 1134] [“A more decided in a habeas For these appropriately proceeding.”].) corpus reasons, on this I with the attack on appeal agree majority be closing statement should prosecutor’s religion-based rejected of forfeiture.2 ground

LIU, J., Concurring. of the court also with join opinion agree I Kennard, Justice for the reasons stated in I and II of her parts persuasively ante, Kennard, J., (cone. 1076-1079), concurring opinion opn. pp. use in this authority case. prosecutor’s religious improper for a denied 2012. rehearing was Appellant’s petition September quotations even if the use of biblical majority prosecutor’s also concludes ante, (Maj. opn., defendant. closing argument prejudice the misconduct did not improper, issue, 1051-1053.) no need to right forfeited his to raise I see Because defendant pp. judgment would reversal of the of death. prosecutor’s require misconduct decide whether notes to the evidence received” “its own including personal relating (1) “the court . . . following specifically agrees the court made the findings: outweigh that the that the circumstances in jury’s aggravation assessment evidence”; (2) “the court circumstances in mitigation supported for the [P]eople with the the witnesses findings agrees implicit believable”; that the (3) “the court finds were credible and independently were Shirley first murder of Olsson surrounding degree circumstances the victim numerous The defendant stabbed brutally vicious pitiless. callousness”; (4) “there is no high degree cruelty times and exhibited a during Olsson was committed Shirley that the first murder degree question (5) no of a “there were commission burglary”; the commission or attempted crimes whether extenuated the gravity circumstances which [defendant’s] excuse”; “the evidence from be after considering or not they legal

Notes

notes for the only with the mandate purpose of section complying (e).”].) subdivision Defendant contends that the trial court relied on a improperly probation The court that it had report. acknowledged read the but only probation report for defendant purposes sentencing on the offenses and it noncapital stated that it “did not specifically consider in its probation ruling report] [the automatic Where a defendant application].” is convicted of both [the offenses, noncapital it is for the trial court “to defer capital “preferable” reading until after on the automatic probation report ruling for application Lewis, modification of verdict.” (People Here, 50 Cal.3d at however, there is in the record to nothing trial court did not limit suggest consideration of that offenses. report noncapital that the trial failed to make Finally, argues court an independent determination that the death claim His is belied penalty proper. by trial court’s statement in which it stressed the nature of its independent review and its conclusions. The fact that the said court with certain agreed witness findings by jury—regarding credibility, example—does Rather, context, mean the court deferred to those it is clear simply findings. that such agreement was of the court’s review. product independent the trial court’s on the automatic ruling applica- we conclude Accordingly, by of verdict was conducted in the manner prescribed tion for modification 190.4, (e). section subdivision V. Death voir dire qualification Fifth, Sixth, to the federal and Fourteenth Amendments Eighth Citing Constitution, defendant contends and article I of the California Constitution is unconstitutional. The that the death in California juries qualification it below. v. Howard claim is forfeited defendant’s failure raise (Howard).) It is (2010) 972] [118 also meritless. not rendered unconstitutional by empiri “The death process qualification that, automati it removes who would cal studies because concluding jurors life, the defense. it results in biased against vote for death or for cally juries L.Ed.2d McCree 476 U.S. 162 Lockhart v. [Citations.] [f] , the death remains 106 S.Ct. . . . which qualification process, approved 1758] review articles. ‘We may ‍‌​​‌‌‌​​​‌​‌​​‌​​‌‌‌​​‌​​​​​‌‌‌‌​​‌​‌‌​‌​​​​​‌​​‍law some criticism in law good despite [Citations.] Constitution, and from the court as to the United States ruling not depart high

Case Details

Case Name: People v. Tully

Court Name: California Supreme Court

Date Published: Jul 30, 2012

Citation: 145 Cal. Rptr. 3d 146

Docket Number: S030402

Court Abbreviation: Cal.