1

Filed 8/26/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S042346

v. )

)

BRYAN MAURICE JONES, )

) San Diego County

Defendant and Appellant. ) Super. Ct. No. CR 136371

____________________________________)

A jury in San Diego County Superior Court convicted defendant Bryan 

Maurice Jones in 1994 of the first degree murders of JoAnn Sweets and Sophia

Glover (Pen. Code, §§ 187, 189; all further statutory references are to this code 

unless otherwise indicated), attempting to murder Maria R. and Karen M. 

(§§ 664/187), and committing forcible rape, sodomy and oral copulation against 

Karen M. (§§ 261, subd. (a)(2), 286, subd. (c), 288a, subd. (c)). The jury further 

sustained an allegation that defendant used a deadly weapon when attempting to 

murder Maria R. (§ 12022, subd. (b).) Finally, the jury sustained three special 

circumstance allegations rendering defendant eligible for the death penalty: that 

he murdered both Sweets and Glover during the commission or attempted 

commission of the crime of sodomy (§ 190.2, subd. (a)(17)), and that he 

committed multiple murders (§ 190.2, subd. (a)(3)). Although defendant was also 

charged with murdering two additional victims, one with special circumstances, 

the jury failed to return a verdict on those counts, and they were not retried. On 
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April 6, 1994, following a penalty trial, the jury set the punishment at death under 

the 1978 death penalty law. (§ 190.1 et seq.) This appeal is automatic. (§ 1239, 

subd. (b).) We affirm the judgment in all respects.

I. GUILT PHASE

A. Facts

In 1985 and 1986, defendant lived with his mother, Ann Jones, in an 

apartment on 51st Street in San Diego. Ann Jones worked 24 hours a day, five 

days a week, as an in-home nurse tending to the needs of an elderly woman named 

Tillie Wilsie, who lived on Mississippi Street, also in San Diego. Defendant 

would often spend weekends at the Wilsie home, including time when his mother 

was not present. He had a key to the Wilsie home. 

At the time of the crimes, defendant was six feet five inches tall, weighed 

approximately 300 pounds, and was familiar with the martial art of karate. He 

occasionally borrowed his sister‘s car, a 1980 Datsun ―280Z‖ with faded blue twotone paint. 

1. Maria R.

Maria R. testified that on August 15, 1985, she was homeless and living on 

the street. She used heroin two or three times a week but was not high that day. 

She struck up a conversation with defendant, and he offered her $20 for sex. She 

did not usually engage in prostitution but would occasionally do so. She agreed,

and they took the bus to defendant‘s apartment on 51st Street. Maria R. had sex 

with defendant in the apartment, he paid her, and she took a shower. When she 

emerged from the shower, defendant had a rope in his hand. He forcibly placed 

the rope around her neck, jumped on her back and started choking her with his 

hands and the rope. She blacked out; when she awoke, defendant attacked her 

again, and she again blacked out. When she awoke a second time, defendant told 
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her she would have to orally copulate him if she wanted him to let her go. She 

complied because she ―wanted [her] life‖ and had no choice. Defendant released 

her after first taking back his $20.

Although Maria R. had had problems with the police before, she reported 

the crime to them. She accompanied police to the apartment building where she 

had been assaulted and hid while they brought defendant outside. Defendant was 

taken into custody but after his release a few days later, she returned to the 

apartment with some people from a church, who apparently tried to dissuade 

defendant from attacking her again. 

The jury found defendant guilty of attempting to murder Maria R. using a 

deadly weapon, i.e., a rope. (§§ 664/187, 12022, subd. (b).) 

2. Tara Simpson

Two weeks later, on August 29, 1985, police and firefighters responded to a 

report of a fire in a dumpster in the alley behind defendant‘s apartment on 51st

Street. The fire had been set intentionally using an accelerant. After dousing the 

fire, responders found in the dumpster the body of Tara Simpson, an 18-year old 

African-American prostitute, burned almost beyond recognition. Although the 

severity of the burning made forensic examination difficult, an autopsy revealed a

traumatic injury to her nose that was not caused by the fire, an incised injury like a

knife wound in her abdomen, and evidence of asphyxia (small petechial 

hemorrhages on the surface of the heart), but no trauma to her throat or airway. 

Swabs revealed the presence of acid phosphatase in her mouth, vagina and rectum, 

suggesting seminal fluid. There being no aspirated soot in her lungs, she had died 

before being burned, probably of alcohol and cocaine poisoning. Although 

defendant was charged with murdering Simpson, the jury hung eight to four in 

favor of guilt. 
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3. Trina Carpenter

Five and one-half months later, on February 11, 1986, firefighters 

responded to another dumpster fire in the same alley, about one block away from

where they found Simpson‘s body. It also was started with an accelerant. After 

dousing the fire, they found inside the dumpster the body of Trina Carpenter, a 22-

year old African-American prostitute. Her body bore evidence of bruising and 

other injuries around her neck, and tests showed she had cocaine and/or cocaine 

metabolites in her body when she died. An autopsy concluded she died from 

asphyxia caused by strangulation. 

Carpenter‘s body had been placed in a duffel bag before being put in the 

dumpster and set alight. The bag contained two cotton balls, one in her hand and 

one inside the duffel bag. The cotton balls bore evidence of spermatozoa and 

epithelial cells. In addition, vaginal swabs indicated the presence of spermatozoa 

as well as a high concentration of acid phosphatase, indicating the presence of 

seminal fluid. Swabs from Carpenter‘s mouth and rectum were negative for 

evidence of sexual activity. Genetic testing of the cotton balls found sperm 

contributed by more than one man to be present, but the predominant contributor 

was someone of defendant‘s genotype. A population frequency analysis shows 

this genotype appears in approximately 15 percent of the African-American 

population. 

On the evening Carpenter was killed, a witness heard a ―very loud thunk‖ 

emanating from the alley where Carpenter‘s body was eventually found. The 

witness looked out her window and saw an older car with blue oxidized paint near

the dumpster where Carpenter‘s body was later found. When firefighters arrived, 

the car was gone. Although defendant was charged with Carpenter‘s murder, the 

jury hung 11 to one in favor of guilt. 
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4. JoAnn Sweets

Two and one-half months later, on May 9, 1986, police found the body of 

JoAnn Sweets. She was in a dumpster behind defendant‘s apartment, just one 

block from where police had found Carpenter‘s body and steps from where Maria 

R. was assaulted. She was unclothed except for a bra and blouse. Sweets, a 34-

year old African-American woman, had been killed by manual strangulation and 

had severe injuries to her face and neck. She also had a broken neck, clavicle and 

rib. Cocaine was detected in her body. Her body was wrapped in a bed sheet and

a mattress pad and then placed in two plastic garbage bags sealed with tape. 

Everything in the dumpster was covered by an afghan blanket. 

Defendant‘s sister, L.A., told police she was almost 100 percent sure her 

mother had crocheted the blanket, although she backtracked somewhat at trial. 

Carpet fibers found on Sweets‘s blouse, the mattress pad and the afghan blanket 

matched the carpet in defendant‘s apartment on 51st Street. Using a process called 

vacuum metal deposition, police also discovered defendant‘s fingerprints and one 

of his palm prints on the plastic garbage bags. They also found his fingerprint on 

the dumpster. 

Oral and vaginal swabs of Sweets‘s body tested negative for spermatozoa. 

Some sperm was detected on rectal swabs, but not enough to test. The bed sheet 

in which Sweets was wrapped was stained with semen, and a genetic test 

determined that more than one man had produced the stains. Defendant‘s 

genotype was represented in the stains, and epithelial cells found on the unstained 

portion of the sheet were also consistent with defendant‘s genotype.

The jury convicted defendant of the first degree murder of Sweets and 

sustained a special circumstance allegation that he killed her while engaged in the 

commission or the attempted commission of a forcible sodomy. (§§ 187, 189, 

190.2, subd. (a)(17).) 
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5. Sophia Glover

On August 15, 1986, about three months after police found JoAnn Sweets‘s

body, police discovered the lifeless body of Sophia Glover rolled in a blanket and 

placed on the grassy area between the sidewalk and the street, about a block from 

the Wilsie home on Mississippi Street. Glover, a 37-year-old African-American 

woman, was living on the streets at the time she was killed and may have been a 

prostitute. Her body bore severe trauma to the head, neck and chest, and she had 

cocaine in her system when she died. An autopsy determined she died of asphyxia 

due to manual strangulation. One of Wilsie‘s neighbors found Glover‘s clothes 

neatly folded and stacked in a nearby alley. 

A small amount of spermatozoa was found on a vaginal swab taken from 

Glover‘s body, and both spermatozoa and acid phosphatase, indicative of seminal

fluid, were found on an anal swab. The amount of genetic material on the vaginal 

swab was deemed insufficient for testing, but the spermatozoa on the anal swab 

was consistent with defendant‘s genotype and subject to the same population 

statistics, i.e., 15 percent of the African-American population has that genotype.

The jury convicted defendant of the first degree murder of Glover and 

sustained a special circumstance allegation that he did so while engaged in the 

commission or attempted commission of a forcible sodomy. (§§ 187, 189, 190.2, 

subd. (a)(17).) 

6. Bertha R.

Evidence of defendant‘s crimes against Bertha R. was admitted as tending 

to prove his identity, motive, and intent in the charged crimes. Bertha, an AfricanAmerican woman, testified that on October 16, 1986, about two months after 

Glover was killed, she was in a telephone booth on El Cajon Boulevard looking up 

the address of a check-cashing store so she could cash a check. Bertha was 

employed as a cook and was not a prostitute, although El Cajon Boulevard was a 
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street where many prostitutes worked. Defendant pulled up in a blue Datsun 

280Z, engaged her in conversation, told her he knew the location of the checkcashing place, and offered her a ride. Bertha thought he seemed nice so she 

agreed, and he drove her to the store. The computers were down at the checkcashing store, however, so defendant suggested she hang out with him and she 

agreed. He drove her to a home she later identified as the Wilsie home on 

Mississippi Street. Once inside, they smoked a marijuana cigarette. 

As they sat on the sofa watching television, he asked her if he would ―be 

too forward if he asked me to kiss [him].‖ She declined the kiss. They continued 

to watch television but he suddenly grabbed her neck very tightly from behind. 

He had a knife in the other hand and told her that if she did not do what he said, he 

would kill her. He then forced her to disrobe and attempted to sodomize her. 

When he was unsuccessful at achieving penetration, he raped her. As she got 

dressed, he went through her purse and took $65 in cash. After she was dressed, 

he said, ―I have got to find someplace to put you.‖ He took her back to his car and 

they drove to Fiesta Island. Once there, he told her he knew where she lived and 

he would kill her family if she reported the crime. He then forced her to orally 

copulate him in the car. From there they drove around the San Diego area, but 

when she told him she was about to vomit he let her out of the car and she 

escaped.

Defendant was tried separately for these crimes, convicted of several 

felonies and sentenced in 1987 to 22 years in prison. 

7. Karen M. 

On October 20, 1986, just four days after assaulting Bertha R., Karen M., 

an admitted drug addict and prostitute, was on the street near 29th Street and 

Imperial Avenue when defendant pulled up in a blue/gray Datsun 280Z. He 
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solicited her for an act of prostitution and she agreed. Although her preference 

was to have a ―car date,‖ defendant said he had a house and took her to the Wilsie 

house on Mississippi Street. Once there, she remarked that she had a bottle of 

Jack Daniel‘s whiskey and offered him some, so he went into the kitchen to get a 

glass while she disrobed. When she asked about her payment, he placed her in a

choke hold from behind, completely lifting her off the floor by her neck. He told 

her to do as he said or he would kill her. She was beginning to black out, so she 

agreed. 

After defendant released her from the choke hold, he forced her to drink a 

large glass of whiskey, which made her sick. She told him she would do whatever 

he wanted and pleaded with him not to hurt her. She then orally copulated him; he 

attempted to sodomize her but was unsuccessful. Defendant attempted several 

more sex acts and continued to force the victim to drink whiskey. She eventually 

passed out and was discovered by Marjorie Wilsie, who had come to the house to 

clean up following her mother-in-law‘s death two weeks earlier. The police 

responded to the scene and although Karen M. protested that she was guilty of 

nothing more than prostitution, she was arrested for burglary and sent to a 

detoxification center. She told police she had been raped, but they did not then 

believe her. 

With regard to the crimes involving Karen M., the jury convicted defendant 

of attempted murder and three forcible sex crimes: rape, sodomy and oral 

copulation. (§§ 664/187, 261, subd. (a)(2), 286, subd. (c), 288a, subd. (c).) The 

jury also sustained a multiple-murder special-circumstance allegation. (§ 190.2, 

subd. (a)(3).) 
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B. Pretrial Issues 

1. Dismissal of Prospective Juror Based Solely on His Written 

Responses on the Jury Questionnaire

Defendant contends his penalty judgment must be reversed because the trial 

court improperly excused Prospective Juror A.M. for cause based on his views on 

capital punishment, solely as expressed in his written responses on the jury 

questionnaire. As we explain, although we reject respondent‘s contention that 

defendant forfeited this claim, the record nevertheless suggests that defense 

counsel acquiesced in the juror‘s excusal. In any event, the record shows the court 

could properly exclude the identified juror for cause without undertaking a further 

in-person exploration of the juror‘s views concerning capital punishment. 

The record reveals the trial court was interested in streamlining the jury 

selection process and informed the parties that if, after reading the jury 

questionnaires, the court strongly believed a particular juror was biased and thus 

unsuitable to sit on the jury, it intended to excuse the juror without any oral voir 

dire. The prosecutor objected to this proposal and asked the court to follow 

―statutory procedure‖ in which the two sides alternate challenging jurors for cause, 

but the court overruled the objection, explaining its proposed procedure would 

save time. Defendant joined the prosecutor‘s objection. 

After the trial court questioned the suitability of one juror and excused him 

when neither party objected, the prosecutor suggested that counsel for both sides 

could simply list the jurors they believed could be excluded for cause based on the 

jurors‘ questionnaire answers. Counsel could see if both sides listed some of the 

same jurors, and then the court could suggest others. The court agreed. Defense 

counsel then listed several prospective jurors they felt were excludable for cause

and the parties discussed those jurors. Some were retained (at least temporarily, 

pending further inquiry) and some were excused for cause. The prosecutor then 
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identified jurors he believed were excludable for cause. The first on the 

prosecution‘s list was Prospective Juror A.M., about whose exclusion defendant 

now complains. The prosecutor explained why, based on A.M.‘s questionnaire 

answers, he believed ―the juror‘s views would  ̳prevent or substantially impair the 

performance of his duties as a juror in accordance with his instructions and his 

oath.‘ ‖ (Wainwright v. Witt (1985) 469 U.S. 412, 424.) The prosecutor noted that 

based on his answers, A.M. ―quite candidly comes out and tells us he can‘t kill 

anyone.‖ The trial court suggested it tended to agree and asked defense counsel to 

comment on the merits of the prosecutor‘s assertion. Defense counsel replied: 

―With regard to—well, he indicates that he—we will submit it on this one, your 

honor.‖ (Italics added.) The court then excused Prospective Juror A.M. for cause.

We reject respondent‘s contention that defendant forfeited the claim, for 

when this pretrial proceeding occurred in 1994, an objection was not necessary to 

preserve this type of error for appeal. (People v. Velasquez (1980) 26 Cal.3d 425, 

443 [discussing Witherspoon1 error]; see People v. Bivert (2011) 52 Cal.4th 96, 

112 [recognizing the Velasquez rule].) We recently reexamined the Velasquez ―no

forfeiture‖ rule and unanimously overruled it for cases tried in the future. (People 

v. McKinnon (2011) 52 Cal.4th 610, 637-643; id., at p. 699 (conc. & dis. opn. of 

Werdegar, J.) [expressly agreeing with the majority on this point].)

Although we find no forfeiture on this record, we also find no error. Under 

Wainwright v. Witt, supra, 469 U.S. 412, ―  ̳[a] prospective juror who would 

invariably vote either for or against the death penalty because of one or more 

 

1 Witherspoon v. Illinois (1968) 391 U.S. 510 was the precursor to 

Wainwright v. Witt, supra, 469 U.S. 412, which explains the federal standard for

removing prospective jurors in a capital case due to their views on capital 

punishment.
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circumstances likely to be present in the case being tried, without regard to the 

strength of aggravating and mitigating circumstances, is . . . subject to challenge 

for cause . . . .‘ ‖ (People v. Ledesma (2006) 39 Cal.4th 641, 671.) ―[N]ot all who 

oppose the death penalty are subject to removal for cause in capital cases; those 

who firmly believe that the death penalty is unjust may nevertheless serve as 

jurors in capital cases so long as they state clearly that they are willing to 

temporarily set aside their own beliefs in deference to the rule of law.‖ (Lockhart 

v. McCree (1986) 476 U.S. 162, 176.)

―  ̳[A] prospective juror in a capital case may be discharged for cause based 

solely on his or her answers to the written questionnaire if it is clear from the 

answers that he or she is unwilling to temporarily set aside his or her own beliefs 

and follow the law.‘ ‖ (People v. Wilson (2008) 44 Cal.4th 758, 787, quoting 

People v. Avila (2006) 38 Cal.4th 491, 531.) The juror‘s written answers need not, 

however, dispel ―all possible or theoretical doubt‖ regarding the juror‘s fitness to 

serve (People v. McKinnon, supra, 52 Cal.4th at p. 647), and on appeal we 

evaluate the question of a juror‘s fitness to serve de novo (id., p. 648).

Prospective Juror A.M.‘s jury questionnaire shows that although he was 

generally pro-prosecution, he held strong, religion-based views against capital 

punishment. Answering question 76, he wrote: ―I have a real problem with the 

death penalty. Life comes [from] God. I don‘t feel I could be [a] party to killing 

another person regardless of the justification.‖ Answering question 91, he wrote: 

―God gives life [and] only God should take life.‖ Asked in question 93(c) whether 

his opposition to the death penalty would ―substantially impair‖ his ability to vote

for the death penalty, he gave this terse response: ―There are no appropriate 

circumstances to kill.‖ 

Because those who oppose capital punishment may still serve on a capital 

jury, the key questions were questions 103 and 104, which concerned the guilt and 
12

penalty phases, respectively. Question 103 asked in pertinent part: ―[S]hould you 

be selected to sit as a juror on this case, do you feel you are able and willing to 

completely put aside any thought or concern relating to penalty issues while you 

deliberate the question of guilt on these charges?‖ (Italics added.) Prospective 

Juror A.M. did not check the box for either ―Yes‖ or ―No,‖ and instead wrote: 

―Possibly.‖ Question 104 asked: ―Having heard the Court‘s orientation and 

procedures for a death penalty trial, can you follow the instructions of the Court 

given to you in this case?‖ (Italics added.) Prospective Juror A.M. wrote: ―[N]ot 

in the penalty part.‖ By these answers, A.M. made clear that he could not, and 

would not, consider the death penalty as a possible punishment in this case. 

Because his views would thus ―  ̳prevent or substantially impair the performance 

of his duties as a juror in accordance with his instructions and his oath‘ ‖

(Wainwright v. Witt, supra, 469 U.S. at p. 424), the trial court properly excluded 

him without orally questioning him.

2. Wheeler/Batson

During jury selection, after the prosecution used peremptory challenges to 

excuse two African-American prospective jurors, Y.J. and C.G., defendant moved 

to quash the venire, citing People v. Wheeler (1978) 22 Cal.3d 258. The trial court 

found defendant had made a prima facie showing of group bias, whereupon the 

prosecutor stated his reasons for his challenges. The court proclaimed it was 

―completely satisfied‖ with those reasons and denied the motion. Defendant 

renewed his Wheeler motion when the prosecutor challenged and excused another 

prospective juror, N.S.2 As to N.S., the trial court found no prima facie showing 

 

2 Defendant also cited the excusal of a fourth prospective juror, an AfricanAmerican man, in this second motion but does not renew the claim on appeal.
13

had been made. Defendant renews these claims on appeal, arguing these three 

jurors were excused based on their race.

Under both People v. Wheeler, supra, 22 Cal.3d 258, and its federal 

constitutional counterpart, Batson v. Kentucky (1986) 476 U.S. 79, a party who 

believes his opponent is using peremptory challenges animated by a prohibited 

discriminatory purpose must first make a prima facie showing of such group bias. 

(People v. Lenix (2008) 44 Cal.4th 602, 612; Johnson v. California (2005) 545 

U.S. 162, 168.) ―In order to make a prima facie showing,  ̳a litigant must raise the 

issue in a timely fashion, make as complete a record as feasible, [and] establish 

that the persons excluded are members of a cognizable class.‘ ‖ (People v. Gray

(2005) 37 Cal.4th 168, 186.) The objecting party must then produce evidence 

―  ̳sufficient to permit the trial judge to draw an inference that discrimination has 

occurred.‘ ‖ (Ibid., quoting Johnson v. California, supra, at p. 170.) This prima 

facie assessment is sometimes called ―the first stage of a Batson inquiry.‖ (People 

v. Mills (2010) 48 Cal.4th 158, 174.)

If the defendant succeeds in establishing a prima facie case, the burden 

shifts to the prosecutor to justify the challenges. (People v. Lenix, supra, 44 

Cal.4th at p. 612.) The court then evaluates the prosecutor‘s responses to 

determine whether purposeful discrimination has been proven. At this so-called 

third stage of the Batson inquiry, the trial court often bases its decision on whether 

it finds the prosecutor‘s race-neutral explanations for exercising a peremptory 

challenge are credible. ―  ̳Credibility can be measured by, among other factors, 

the prosecutor‘s demeanor; by how reasonable, or how improbable, the 

explanations are; and by whether the proffered rationale has some basis in 

accepted trial strategy.‘ ‖ (Lenix, at p. 613, quoting Miller-El v. Cockrell (2003) 

537 U.S. 322, 339.)
14

―Review of a trial court‘s denial of a Wheeler/Batson motion is deferential, 

examining only whether substantial evidence supports its conclusions.‖ (People v. 

Lenix, supra, 44 Cal.4th at p. 613.) We have explained that ―  ̳the trial court must 

evaluate not only whether the prosecutor‘s demeanor belies a discriminatory 

intent, but also whether the juror‘s demeanor can credibly be said to have 

exhibited the basis for the strike attributed to the juror by the prosecutor,‘ ‖ that 

―  ̳these determinations of credibility and demeanor lie ―  ̳peculiarly within a trial 

judge‘s province,‘ ‖ ‘ ‖ and that, thus, ―  ̳ ―in the absence of exceptional 

circumstances, we would defer to [the trial court].‖ ‘ ‖ (Id., at p. 614, quoting 

Snyder v. Louisiana (2008) 552 U.S. 472, 477.) 

Here no dispute exists that defendant made a prima facie case with regard 

to Jurors Y.J. and C.G. He objected and made his record. Respondent concedes 

both women were African-Americans and thus were members of a cognizable 

class. We then turn to the trial court‘s evaluation of the prosecutor‘s reasons for 

excusing the women. ―The proper focus of a Batson/Wheeler inquiry . . . is on the 

subjective genuineness of the race-neutral reasons given for the peremptory 

challenge, not on the objective reasonableness of those reasons.‖ (People v. 

Reynoso (2003) 31 Cal.4th 903, 924.) ―  ̳[E]ven a ―trivial‖ reason, if genuine and 

neutral, will suffice.‘ [Citation.] A prospective juror may be excused based upon 

facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic 

reasons.‖ (People v. Lenix, supra, 44 Cal.4th at p. 613.) 

With regard to Prospective Juror Y.J., the prosecutor stated numerous 

reasons why he excused her. He explained the prosecution had devised a 

numerical score for each prospective juror based on their desirability, and Y.J. 

rated very poorly. She had worked at the Job Corps, and because defendant had 

attended there, the prosecutor thought some mitigating evidence related to that 

organization might be introduced at the penalty phase. He did not ―want to take 
15

the chance that [it] will and that [Y.J.] will have a link to this man because of her

employment and his connection to the Job Corps.‖ In addition, Y.J. was twice 

divorced, and both her children were either separated or divorced. ―That shows 

me some instability that I am not comfortable with.‖ Additionally, she expressed 

interest in being a counselor, ―a helping person, someone to get everyone better. I 

see that as . . . contrary . . . towards what I will be asking them to do; that is, to kill 

this defendant.‖ She was a loner; she expressed the view that the police 

sometimes ―shoot too quickly,‖ suggesting some hostility to law enforcement; she 

was seeing a psychiatrist; her support for the death penalty was ―weak‖ and ―she 

says she dislikes making this very crucial decision.‖

Defendant attacks each of these explanations separately as pretextual, but 

he did not raise these arguments below. Moreover, even assuming a suspicion of 

pretext could be raised as to one or two of these reasons, the persuasive power of 

all of them, taken together, convinces us that our usual deference to the trial 

court‘s assessment of the prosecutor‘s sincerity is appropriate. Here, the 

prosecutor‘s expressed apprehension about the Job Corps connection between 

defendant and Y.J. seems a legitimate concern unrelated to race. In addition, other 

matters that can justify a peremptory challenge are a prospective juror‘s ―negative 

views of the police‖ (People v. Guerra (2006) 37 Cal.4th 1067, 1102), ―a juror‘s 

experience in counseling or social services‖ (People v. Clark (2011) 52 Cal.4th 

856, 907 [juror was a ―licensed pastoral counselor‖]; People v. Landry (1996) 49 

Cal.App.4th 785, 790-791 [work in youth services might suggest bias in a 

defendant‘s favor]), and a juror‘s experience with psychology (People v. DeHoyos

(July 8, 2013, S034800) __ Cal.4th ___, ___ [p. 37] [juror‘s ―educational 

background, interest, and experience in the field of psychology was a race-neutral 

reason justifying his excusal‖]; Clark, supra, at p. 907 [juror had taken college 

courses in psychology]). Finally, ―[a] prospective juror‘s reluctance to vote for a 
16

penalty verdict of death is a permissible, race-neutral reason for exercising a 

peremptory challenge.‖ (People v. Elliott (2012) 53 Cal.4th 535, 561.)

With regard to Prospective Juror C.G., the prosecutor stated that he had 

also rated her very low because she exhibited ―liberal tendencies.‖ He based his 

views on her involvement with the restoration of wetlands in the Famosa Slough, 

along with her involvement with the ―San Diego Environmental Project, [and the] 

Equal Employment Opportunity [Commission].‖ In addition, she did not read the 

newspaper, she was dissatisfied about a police response to a burglary, her 

questionnaire suggested she would apply a ―shadow of a doubt‖ standard rather 

than a beyond a reasonable doubt standard, she had doubts about the 

persuasiveness of circumstantial evidence, and she was seeing a therapist for 

depression. Defendant criticizes some of these reasons (for example, the 

prosecutor may have exaggerated her negative views about police, and her views 

on reasonable doubt and circumstantial evidence were expressed before the court 

educated her on the law) and argues they were pretextual. We defer, however, to 

the trial court‘s assessment of the prosecutor‘s reasons as being subjectively 

genuine. (People v. Reynoso, supra, 31 Cal.4th at p. 924.) 

For example, we need not debate whether the policies of certain 

organizations are liberal or not; the prosecutor‘s subjective distrust of jurors 

affiliated with such organizations—if genuine—is sufficient to support the juror 

challenge. (People v. Ward (2005) 36 Cal.4th 186, 202, citing People v. Wheeler, 

supra, 22 Cal.3d at p. 275 [subjective mistrust of a juror‘s objectivity is 

sufficient].) That the prosecutor was genuinely concerned about C.G.‘s views on 

the People‘s burden of proof and the power of circumstantial evidence is shown by 

his specific questioning of her on these topics. As with Prospective Juror Y.J., her 

psychological issues (she admitted she had been very depressed and had been 

seeing a therapist periodically) could legitimately raise red flags for the 
17

prosecutor. The trial court declared itself ―very satisfied that the reasons stated are

substantial and do not relate to color whatsoever. [¶] I will indicate that I noticed 

[Prospective Juror C.G.] almost looked like she was in tears when she was 

explaining the tragedies she has personally gone through over the last few years 

and it‘s pretty heart-breaking.‖ We defer to this conclusion that the prosecutor‘s 

reasons for excusing C.G. were not based on group bias.

Defendant further argues the prosecutor excused Prospective Juror N.S. 

based on her race. Unlike with the excusals of Prospective Jurors C.G. and Y.J.,

the trial court declined to find defendant had satisfied his burden of demonstrating 

a prima facie case with regard to N.S.; therefore, this is a Batson first-stage issue

and we have no explanation by the prosecutor to evaluate. In addition, the record 

reveals the trial court was uncertain what standard to apply in determining whether 

defendant had carried his prima facie burden.3 Under such circumstances, 

 

3 Earlier in the voir dire, when discussing defendant‘s Wheeler/Batson

motion in connection to Prospective Juror C.G., the following colloquy occurred:

―[THE COURT:] I am going to ask you to state your reasons, in any event. 

This is not an issue that is very clear to me. I do not feel that the case law gives a 

lot of help [in]this regard with respect to when that prima facie case has been

made.

―And I am just going to be very frank. I think that the trial court does not 

have enough guidance to be real firm. The first time around I have no problem 

whatsoever. There absolutely was nothing on which to do it. This time I just 

don‘t know. I am not clear. And I am going to ask you to, for that reason, to state 

your reasons why you would . . . exercise a peremptory as to [Prospective Juror 

C.G.].

―[THE PROSECUTOR]: If I may, I think the law is clear that there must 

be a substantial showing that the challenges are being exercised for race and race 

alone.

―I don‘t think that showing has been made, and I haven‘t heard the court 

say that,  ̳yes, I think there is a prima facie showing.‘ ‖ (Italics added.) 

As the United States Supreme Court made clear in Johnson v. California, 

supra, 545 U.S. 162, however, Batson requires only that the objector state facts 

(footnote continued on next page)
18

deference to the trial court‘s ruling is inappropriate and we instead review the 

record independently. (People v. Hartsch (2010) 49 Cal.4th 472, 487; People v. 

Bonilla (2007) 41 Cal.4th 313, 342.) 

Assessing the record independently, we find ample evidence to support the 

trial court‘s ruling that defendant failed to establish a prima face case of group bias 

with regard to Prospective Juror N.S. The prospective juror revealed in her 

questionnaire that she had been married to a man who had been convicted of 

murder. ―[A] prosecutor may reasonably surmise that a close relative‘s adversary 

contact with the criminal justice system might make a prospective juror 

unsympathetic to the prosecution.‖ (People v. Farnam (2002) 28 Cal.4th 107, 

138.) Accordingly, our independent review of the record reveals adequate support 

for the trial court‘s decision not to find a prima facie case of group bias with 

regard to Prospective Juror N.S. 

3. Speedy Trial

The People alleged defendant assaulted Maria R. on August 15, 1985. 

Although the victim‘s complaint led to defendant‘s arrest shortly thereafter, he 

was not then prosecuted, probably because the victim did not appear in the district

attorney‘s office for an interview, and she later called the police department to say 

she did not intend to pursue the matter. The police nevertheless knew the facts of 

the Maria R. incident, as they were mentioned in the 1987 sentencing documents 

 

(footnote continued from previous page)

giving rise to a reasonable inference of discrimination in order to satisfy the prima 

facie burden. Language in some California state cases requiring a showing of a 

―  ̳strong likelihood‘ ‖ of discrimination, or that a peremptory challenge was 

―  ̳more likely than not’ ‖ motivated by group bias, incorrectly articulated the 

applicable standard. (See People v. Gray, supra, 37 Cal.4th at pp. 186-187.)
19

for the Bertha R. case. Although the statute of limitations for any potential sex 

crimes committed against Maria R. expired after six years, or around mid-August 

1991, defendant was eventually charged with attempting to murder Maria R. in a 

complaint filed on January 7, 1993. An information charging that attempted 

murder, along with the murders of Simpson, Carpenter, Sweets and Glover, and 

the sexual assault and attempt to murder Karen M., was filed on January 14, 1993,

and then amended twice in January 1994.

Defendant moved to dismiss all charges on state and federal due process 

and speedy trial grounds. The trial court denied the motion, finding the delay had 

not prejudiced defendant. Although the court noted that defendant could raise the 

issue again following trial, when the extent of any possible prejudice would be

more apparent, the court reiterated its ruling when defendant raised the issue again 

in a motion for a new trial. Now on appeal, defendant renews his state and federal 

due process and speedy trial claims, but raises only the delay in charging him with 

attempting to murder Maria R. (That was the oldest of the crimes charged, with a 

delay of nearly seven years.)

We recently set forth the law applicable to this claim: ―A defendant‘s state 

and federal constitutional speedy trial rights (U.S. Const., 6th Amend.; Cal. 

Const., art. I, § 15, cl. 1) do not attach before the defendant is arrested or a 

charging document has been filed. (People v. Nelson (2008) 43 Cal.4th 1242, 

1250.) Nonetheless, a defendant is not without recourse if a delay in filing charges 

is prejudicial and unjustified. The statute of limitations is usually considered the 

primary guarantee against overly stale criminal charges (People v. Archerd (1970) 

3 Cal.3d 615, 639), but the right of due process provides additional protection, 

safeguarding a criminal defendant‘s interest in fair adjudication by preventing 

unjustified delays that weaken the defense through the dimming of memories, the 

death or disappearance of witnesses, and the loss or destruction of material 
20

physical evidence (Nelson, at p. 1250).

―A defendant seeking relief for undue delay in filing charges must first 

demonstrate resulting prejudice, such as by showing the loss of a material witness 

or other missing evidence, or fading memory caused by the lapse of time. (People 

v. Archerd, supra, 3 Cal.3d at pp. 639-640.) Prejudice to a defendant from 

precharging delay is not presumed. (People v. Nelson, supra, 43 Cal.4th at 

p. 1250; People v. Catlin (2001) 26 Cal.4th 81, 107.) In addition, although  ̳under 

California law, negligent, as well as purposeful, delay in bringing charges may, 

when accompanied by a showing of prejudice, violate due process. . . . If the 

delay was merely negligent, a greater showing of prejudice would be required to 

establish a due process violation.‘ (Nelson, at pp. 1255-1256.) If the defendant 

establishes prejudice, the prosecution may offer justification for the delay; the 

court considering a motion to dismiss then balances the harm to the defendant 

against the justification for the delay. (Nelson, at p. 1250.) But if the defendant 

fails to meet his or her burden of showing prejudice, there is no need to determine 

whether the delay was justified. (Serna v. Superior Court (1985) 40 Cal.3d 239, 

249; Scherling v. Superior Court (1978) 22 Cal.3d 493, 506.)‖ (People v. Abel

(2012) 53 Cal.4th 891, 908-909, fn. omitted.) Although defendant frames his 

claim as one under both the federal and state Constitutions, ―[b]ecause the law 

under the California Constitution is at least as favorable to defendant as federal 

law, we apply California law to defendant‘s claim.‖ (Abel, at p. 909, fn. 1.) 

―We review for abuse of discretion a trial court‘s ruling on a motion to 

dismiss for prejudicial prearrest delay [citation], and defer to any underlying 

factual findings if substantial evidence supports them [citation].‖ (People v. 

Cowan (2010) 50 Cal.4th 401, 431.) In evaluating the correctness of a trial court‘s 

denial of a defendant‘s speedy trial motion, we consider all evidence that was 

before the court at the time the trial court ruled on the motion. (Ibid.) Thus, 
21

evidence presented at trial may be used to support or reject defendant‘s posttrial 

assertion of his speedy trial rights.

We begin with the question of prejudice because it is dispositive. 

Defendant‘s case for prejudice hinges on his claim the delay in charging interfered 

with his ability to present exculpatory evidence of Maria R.‘s alleged apology for 

falsely accusing him. (Post, pt. I.C.4.) Arguing in favor of the speedy trial motion

before trial, defense counsel asserted defendant‘s ability to contest the Maria R. 

charges had been hampered because her memory had faded over the years: 

―When questioned at the preliminary hearing, [Maria R.] acknowledged having 

gone back to the defendant‘s house after this incident with some preacher, but 

denied even remembering who the individual was or how she got there or really 

what was discussed at that time. [¶] These kinds of things, when they were left to 

be investigated until two, three, four years later and as much as five years later, 

certainly the lapse of time affects the ability of the defense to present any kind of 

response to the charges.‖ 

The trial court found no prejudice. While admitting the delay may have 

caused some memories to fade, the court noted that in a large case with many 

witnesses, some delay, and thus the possibility that some memories may fade, is 

inevitable. But considering defendant‘s showing, the court noted, ―Most of what 

has been offered to the court is purely speculative.‖ ―[W]hat‘s being proffered to 

the court is this person might have been able to help the defendant, but you can‘t 

put your finger on it. [¶] And I recognize that‘s the dilemma the defense faces, but 

the law looks at that and says not good enough, and so I can‘t find that it‘s good 

enough.‖ The court also observed that because some of the witnesses were drug

users, some memory loss on their part could be expected even if the case had been 

brought promptly. Finally, the court suggested it did not view the defense‘s 

assertions of lost evidence favorably because many of defense counsel‘s other 
22

claims of lost evidence—unrelated to the crimes against Maria R.—proved to be 

false.4 

We find no abuse of discretion. (People v. Cowan, supra, 50 Cal.4th at 

p. 431.) Although defendant contends he lost two ―important‖ witnesses 

(presumably the two people who came to his mother‘s home and delivered Maria 

R.‘s alleged apology for falsely accusing him) and that the memories of two more 

witnesses (Maria R. and defendant‘s mother) had faded as a result of the delay, we 

agree with the trial court‘s assessment that this evidence of prejudice is 

speculative. Maria R. was a habitual drug user, and the trial court reasonably 

concluded her memory would not have been the best in any case. Although 

defendant‘s pretrial motion briefly mentioned his mother, Ann Jones, and claimed 

her lack of memory of the alleged apology incident was due to the delay, defense 

counsel‘s voluminous declaration in support of the pretrial motion makes scant 

mention of either Maria R.‘s or Ann Jones‘s faded memory. Regarding counsel‘s 

asserted inability to find the couple who allegedly came to Jones‘s door, neither 

defendant‘s pretrial motion nor counsel‘s supporting declaration mentions this 

point. A defense investigator‘s extensive declaration, submitted in support of the 

pretrial motion, briefly mentions the alleged apology incident but it does not say 

he attempted to locate either of the two persons who came to the Jones home, let 

alone that he was unsuccessful.

Regarding defendant‘s posttrial speedy trial motion, we conclude the trial 

 

4 For example, defense counsel claimed under penalty of perjury that the 

following evidence could not be found due to the passage of time: defendant‘s 

school records, defendant‘s sister‘s car (a distinctive blue Datsun 280Z) and 

garbage company records indicating when the dumpster in which one of the 

victims was found was last emptied. The prosecution showed these claims were 

false.
23

testimony supports the trial court‘s conclusion that any potential prejudice flowing 

from the delay was speculative. Although Ann Jones testified at trial and 

suggested she could not say with assurance the woman who came to the door (and 

allegedly apologized) was Maria R., the trial court reasonably discounted this 

evidence because Maria R.‘s testimony describing the crime against her ―was 

strikingly similar to Karen [M.‘s] and Bertha [R.‘s]. She had no motive to lie, and 

her immediate report to the police about the rope was very significant because the 

rope was found in the apartment. [¶] So it was . . . an extremely strong case.‖ 

The court found similarly speculative defendant‘s claim that his asserted inability 

to locate the two people who allegedly visited Ann Jones‘s home was traceable to 

the passage of time. Although defense counsel argued he had acted reasonably 

and diligently in looking for the man described as a preacher,5 the trial court found 

―that it would be completely speculative as to whether that minister could have 

been located, even had this case proceeded within a few months of the crime 

itself.‖ 

―Under the abuse of discretion standard,  ̳a trial court‘s ruling will not be 

disturbed, and reversal of the judgment is not required, unless the trial court 

exercised its discretion in an arbitrary, capricious, or patently absurd manner that 

resulted in a manifest miscarriage of justice.‘ ‖ (People v. Hovarter (2008) 44 

Cal.4th 983, 1004.) We cannot say on this record that the trial court acted in such 

 

5 Counsel Varela explained: ―We have tried every church thing. I mean, I 

went walking up and down, up and down El Cajon [Boulevard]. I went to a Praise 

the Lord Fellowship on 51st; tried to contact a bunch of them. I walked to 

anything that looked like it was there. Nobody remembered anything about 

anything at that time. [¶] And then I tried looking and seeing if I could find 

anybody that had Spanish-speaking evangelical services that did outreach 

programs, and, you know, I was running into walls everywhere. There was just—

nobody remembered. Nobody knows.‖
24

a manner in denying defendant‘s pretrial and posttrial speedy trial motions. 

Because we conclude the trial court acted within its broad discretion in finding 

defendant was not prejudiced by the delay in charging him with attempting to 

murder Maria R., we need not address defendant‘s further argument challenging 

the prosecutor‘s multiple justifications for the delay or the trial court‘s acceptance 

of those reasons.

4. Severance 

Defendant was charged jointly with murdering four women (Tara Simpson, 

Trina Carpenter, JoAnn Sweets, Sophia Glover) and attempting to murder 

Maria R. and Karen M. He moved before trial to sever the murder counts from the 

attempted murder counts, citing section 954 and his right to due process under 

both the state and federal Constitutions. After discussing the various factors for 

and against joinder, the trial court denied the severance motion, explaining: 

―Overall, in looking at this, first I have to say that the charges are initially properly 

joined under [section] 954 because they are offenses of the same class and they are

connected together by common elements of substantial importance, and I believe 

that severance is not warranted because I do not believe that this appears to be an

unjustified negative impact by a joinder against the defendant. The probative 

value is extremely high, and the negative impact is not unfair, in my estimation, in 

looking at this overall.‖ 

Section 954 governs the issue of joinder of counts and it provides in 

pertinent part: ―An accusatory pleading may charge two or more different 

offenses connected together in their commission, . . . or two or more different 

offenses of the same class of crimes or offenses, under separate counts, . . . 

provided, that the court in which a case is triable, in the interests of justice and for 

good cause shown, may in its discretion order that the different offenses or counts 
25

set forth in the accusatory pleading be tried separately or divided into two or more 

groups and each of said groups tried separately.‖ (Italics added.) As defendant 

concedes, murder and attempted murder are of the same class of crimes within the 

meaning of section 954. (People v. Jenkins (2000) 22 Cal.4th 900, 947.) The 

statutory requirements for joinder thus being satisfied, defendant ―  ̳can predicate 

error in denying the motion only on a clear showing of potential prejudice. 

[Citation.] We review the trial court‘s ruling on the severance motion for abuse of 

discretion.‘ [Citations.]‖ (People v. Vines (2011) 51 Cal.4th 830, 855.) 

―  ̳Refusal to sever may be an abuse of discretion where: (1) evidence on 

the crimes to be jointly tried would not be cross-admissible in separate trials; 

(2) certain of the charges are unusually likely to inflame the jury against the 

defendant; (3) a ―weak‖ case has been joined with a ―strong‖ case, or with another 

―weak‖ case, so that the ―spillover‖ effect of aggregate evidence on several 

charges might well alter the outcome of some or all of the charges; and (4) any one 

of the charges carries the death penalty or joinder of them turns the matter into a 

capital case.‘ [Citations.]‖ (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)

Defendant presents three reasons he claims show the joinder of claims

prejudiced him. First, he argues evidence supporting the four murder counts 

would not have been cross-admissible in a separate trial of the two attempted 

murder counts. But ―  ̳cross-admissibility is not the sine qua non of joint trials.‘ ‖ 

(People v. Geier (2007) 41 Cal.4th 555, 575.) Section 954.1 makes this clear, 

directing that, ―[i]n cases in which two or more different offenses of the same 

class of crimes or offenses have been charged together in the same accusatory 

pleading . . . , evidence concerning one offense or offenses need not be admissible 

as to the other offense or offenses before the jointly charged offenses may be tried 

together before the same trier of fact.‖ 
26

In any event, the trial court considered the cross-admissibility issue, noting 

―the overwhelming marked distinctiveness of the m.o. [modus operandi] in all the 

cases.‖ We agree. Evidence that a person has committed other crimes is not 

rendered inadmissible by Evidence Code section 1101, subdivision (a) if relevant 

to prove such facts as ―motive, opportunity, intent, preparation, plan, knowledge, 

identity, absence of mistake or accident‖ (id., subd. (b)), and we understand the 

trial court‘s reference to proving an offender‘s ―m.o.‖ (i.e., modus operandi) to 

mean proof of intent, plan or identity. (See People v. Maury (2003) 30 Cal.4th 

342, 393 [―the similarities of the offenses . . . were sufficient to establish a 

common modus operandi, raising a strong inference [of identity]‖]; People v. 

Kraft (2000) 23 Cal.4th 978, 1062 [commonality and distinctiveness of certain 

features of the various crimes suggested the killer‘s modus operandi, and were 

relevant to prove his identity]). 

Evidence of other crimes can be admitted to prove the offender acted 

according to a certain plan, or acted with a particular motive, if a degree of 

similarity exists between the past and present crimes so as to permit a reasonable 

inference that the offender must have entertained the same intent in both instances. 

But to use evidence of prior crimes to prove the identity of the offender in the 

present crime requires the highest degree of similarity between the past and 

present crimes. ―For identity to be established, the uncharged misconduct and the 

charged offense must share common features that are sufficiently distinctive so as 

to support the inference that the same person committed both acts. [Citation.] 

 ̳The pattern and characteristics of the crimes must be so unusual and distinctive as 

to be like a signature.‘ ‖ (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) 
27

We cannot say the trial court abused its discretion by finding a common 

modus operandi sufficient to deny severance. In this case, in the space of a few 

months,6 someone began attacking lone women, often prostitutes, along or near El 

Cajon Boulevard in San Diego, a street known to be populated by women 

engaging in prostitution. With one exception,

7 the victims were all AfricanAmerican. Defendant attacked Maria R. at his 51st Street apartment and attacked 

Karen M. at the Mississippi Street home where his mother worked. The bodies of 

all four murder victims were found in close proximity to one of those two 

residences. All victims were sexually molested. Three of the murder victims were 

found in dumpsters; the body of the fourth victim (Glover) was rolled in a blanket 

and discarded on the area between the sidewalk and the street, like garbage. Maria 

R. and Karen M. were attacked after consenting to have sex for money; as the four 

murder victims were all prostitutes, it is likely they were lured to their deaths by a 

perpetrator using the same ruse. All victims were either choked or strangled; none 

was shot. Under these circumstances, that the crimes would have been crossadmissible in separate trials to establish a common and distinctive modus operandi

is likely. ―To be admissible to demonstrate a distinctive modus operandi, the 

evidence must disclose common marks or identifiers, that, considered singly or in 

combination, support a strong inference that the defendant committed the crimes.‖ 

(People v. Maury, supra, 30 Cal.4th at p. 392.) 

 

6 The first attack was against Maria R. on August 15, 1985. The ensuing 

crimes occurred on August 29, 1985 (Tara Simpson), February 11, 1986 (Trina 

Carpenter), May 9, 1986 (JoAnn Sweets), August 15, 1986 (Sophia Glover), 

October 16, 1986 (Bertha R.), and October 20, 1986 (Karen M.).

7 Maria R. has a Hispanic surname.
28

Defendant next contends joinder permitted the prosecution to bolster the 

allegedly weaker murder counts (JoAnn Sweets, Sophia Glover) with the stronger 

attempted murder counts, both by inflaming the jury and by allowing it to 

aggregate evidence of identity. The trial court explicitly considered this point but 

rejected it after carefully considering the argument. We find no abuse of 

discretion. At the threshold, we question the premise, that is, that the evidence 

was so weak as to some counts and so strong as to others that the stronger counts 

would fill in the gaps in the evidence for the weaker counts. Although both Maria 

R. and Karen M. identified defendant as their assailant, the evidence of those 

counts was not necessarily exceptionally strong, as both victims were subject to 

impeachment on the grounds they were prostitutes and drug addicts. Maria R., 

moreover, had dropped the initial prosecution. Further, the evidence of 

defendant‘s involvement in the Sweets murder, although circumstantial, was quite 

strong. Police discovered seminal fluid at the scene consistent with his genotype, 

his fingerprints were on the garbage bag containing the victim‘s body, and carpet 

fibers on the victim matched those in his apartment. Only as to Glover was the 

evidence somewhat weak, but as the trial court reasoned, clear evidence of a 

consistent modus operandi justified joinder.

Nor is there merit to defendant‘s claim that joinder allowed the jury to 

aggregate the evidence. That the jury was able to consider each case on its 

individual merits is shown by its failure to reach a unanimous verdict on the 

counts involving Simpson and Carpenter. Where the jury returns a guilty verdict 

of a lesser crime, or, as here, fails to convict at all on some charges, we are 

confident the jury was capable of, and did, differentiate among defendant‘s crimes. 

(People v. Ruiz (1988) 44 Cal.3d 589, 607.) 

Finally, citing Williams v. Superior Court (1984) 36 Cal.3d 441 in support, 

defendant argues the trial court ―failed to acknowledge its duty of heightened 
29

scrutiny as compelled by the presence of the capital charges.‖ We indeed stated in 

Williams that ―the court must analyze the severance issue with a higher degree of 

scrutiny and care than is normally applied in a noncapital case.‖ (Id., at p. 454.) 

But we have since qualified Williams, explaining that ―the subsequent enactment 

of section 790, subdivision (b)—which, as noted, specifically provides for joinder 

of capital cases such as these—makes it clear that such a heightened analysis is no 

longer called for.‖

8 (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn. 

19.) In any event, because the Maria R. and Karen M. charges did not elevate the 

Sweets and Glover murders into capital offenses, any concern over the unfairness 

of joining capital and noncapital charges is minimal. (People v. Vines, supra, 51 

Cal.4th at p. 855.)

C. Trial Issues 

1. The Bertha R. Evidence 

Prior to trial, the prosecution moved to present evidence that on October 16, 

1986, defendant assaulted, and forcibly raped and sodomized Bertha R. under 

circumstances similar to the charged crimes against JoAnn Sweets, Sophia Glover, 

Tara Simpson, Trina Carpenter, Maria R. and Karen M. The prosecution argued 

 

8 Section 790, subdivision (b) provides: ―If a defendant is charged with a 

special circumstance pursuant to paragraph (3) of subdivision (a) of Section 190.2, 

the jurisdiction for any charged murder, and for any crimes properly joinable with 

that murder, shall be in any county that has jurisdiction pursuant to subdivision (a) 

for one or more of the murders charged in a single complaint or indictment as long 

as the charged murders are ‘connected together in their commission,’ as that 

phrase is used in Section 954, and subject to a hearing in the jurisdiction where the 

prosecution is attempting to consolidate the charged murders. If the charged 

murders are not joined or consolidated, the murder that was charged outside of the 

county that has jurisdiction pursuant to subdivision (a) shall be returned to that 

county.‖ (Italics added.)
30

in its written motion that the evidence was admissible under Evidence Code 

section 1101 ―to prove the following issues in dispute: ―A. the identity of 

defendant; [¶] B. the intent of the defendant as demonstrated by: [¶] 1. Motive; 

[¶] 2. a common plan, scheme and modus operandi.‖ In support of its motion, the 

prosecution attached a transcript of Bertha R.‘s preliminary hearing testimony. 

Opposing the motion, the defense argued, ―The factual dissimilarities between 

these unrelated cases are apparent.‖ Defendant highlighted four aspects of his 

crimes against Bertha R. that differed from the charged offenses: she was not a 

prostitute; he approached her and offered her a ride without requesting an act of 

prostitution; one of the forcible sex acts occurred in his car rather than in the 

apartment; and he threatened her with a knife. The trial court announced its 

tentative position was to grant the prosecution‘s motion and admit the evidence, 

but invited final argument from defense counsel. Counsel then reiterated many of 

the points in his written opposition.

The trial court ruled Bertha R.‘s testimony was admissible to prove 

defendant‘s motive, intent and identity, reasoning, ―the marks of distinction 

outweigh those that would be dissimilarities. And, again, the clear mark of 

distinction that stands out in this case, the Bertha [R.] case, is the force used on an

otherwise willing sexual partner. [¶] She may not have been a prostitute, but she 

was willing to go with the defendant to the house on Mississippi Street four days 

before the [Karen M.] case.‖ ―I think these distinctive common marks tie it into 

[the Karen M. case] and tie it into the rest of the cases, and, therefore, it is 

probative. It‘s highly probative and goes to the question of identity, motive, 

intent, which is all at issue in this case.‖ 
31

At trial, prior to Bertha R.‘s testimony, the trial court gave the jury a 

limiting instruction applicable to her testimony.

9 The witness then testified. She 

related how defendant engaged her while she was walking on El Cajon Boulevard, 

how she agreed to ―hang out‖ with him, how he drove her in his blue Datsun 280Z 

to the Wilsie home on Mississippi Street, how when she refused to kiss him he put 

his arm around her neck from behind and strangled her, threatened her with a 

knife, attempted to forcibly sodomize and then raped her, stole money out of her 

purse, forced her to drive around with him, and forced her to orally copulate him 

in his car before she escaped. Prior to the jury‘s guilt phase deliberations, the trial 

court again gave the jurors a limiting instruction.

 

9 ―Ladies and gentlemen, please pay attention. This is one of the instructions 

that I will be giving you at the end of the trial also. It‘s called a limiting

instruction. It means that some evidence may come in and you may consider it for 

certain purposes, but not for other purposes. 

―Evidence may be introduced for the purpose of showing that the defendant 

committed a crime other than that for which he is on trial. 

―Such evidence, if believed, will not be received and may not be considered 

by you to prove that the defendant is a person of bad character or that he has a 

disposition to commit crimes.

―Such evidence may be received and may be considered by you only for the 

limited purpose of determining if it tends to show the existence of the intent, 

which is a necessary element of the crime charged, the identity of the person who 

committed the crime, if any, of which the defendant is accused, or a motive for the 

commission of the crime charged.

―For the limited purpose for which you may consider such evidence, you 

must weigh it in the same manner as you do all other evidence in the case.

―You are not permitted to consider such evidence for any other purpose. 

This would be circumstantial evidence and will be also subject to other 

instructions on circumstantial evidence, as well.‖
32

a. Challenge to the Admission of the Evidence 

Defendant renews his argument the trial court erred under Evidence Code 

section 1101 by admitting Bertha R.‘s testimony. As noted (ante, at p. 26), 

subdivision (a) of that section provides a general evidentiary rule of exclusion, 

providing that ―evidence of a person‘s character . . . in the form of . . . evidence of 

specific instances of his or her conduct . . . is inadmissible when offered to prove 

his or her conduct on a specified occasion.‖ (Italics added.) The scope of that rule 

is clarified in subdivision (b): ―Nothing in this section prohibits the admission of 

evidence that a person committed a crime . . . when relevant to prove some fact 

(such as motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake or accident . . .) other than his or her disposition to commit 

such an act.‖ (Italics added.)10

The rules governing the admissibility of evidence under this section are 

well settled. ―  ̳ ―Evidence of the defendant‘s commission of a crime other than 

one for which the defendant is then being tried is not admissible to show bad 

character or predisposition to criminality but it may be admitted to prove some 

material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because 

evidence of other crimes may be highly inflammatory, its admissibility should be 

scrutinized with great care. [Citation.]‖ [Citation.] In cases in which the 

 

10 Shortly after defendant was tried in 1994, the Legislature added section 

1108 to the Evidence Code. (Stats. 1995, ch. 439, § 2, p. 3429.) This new statute 

―loosened the restrictions on the admissibility of other-crimes evidence in cases 

involving sex crimes‖ (People v. Hovarter, supra, 44 Cal.4th at p. 1002, fn. 7), by 

creating an explicit exception to the restrictions of Evidence Code section 1101. 

Because the Legislature intended ―to expand the admissibility of disposition or 

propensity evidence in sex offense cases‖ (People v. Falsetta (1999) 21 Cal.4th 

903, 911), had section 1108 existed at the time of defendant‘s trial, the statute 

likely would have justified the admission of evidence of defendant‘s sexual crimes 

against Bertha R.
33

prosecution seeks to prove the defendant‘s identity as the perpetrator of the 

charged offense by evidence he had committed uncharged offenses, admissibility 

―depends upon proof that the charged and uncharged offenses share distinctive 

common marks sufficient to raise an inference of identity.‖ ‘ [Citation.] A 

somewhat lesser degree of similarity is required to show a common plan or 

scheme and still less similarity is required to show intent. (People v. Ewoldt

(1994) 7 Cal.4th 380, 402-403.) On appeal, we review a trial court‘s ruling under 

Evidence Code section 1101 for abuse of discretion.‖ (People v. Roldan (2005) 35 

Cal.4th 646, 705.)

As noted, ante, in contrast to using evidence of other crimes to prove 

―motive, opportunity, intent, preparation, [or] plan‖ (Evid. Code, § 1101, subd. 

(b)), the admissibility of Bertha R.‘s testimony to prove defendant‘s identity as the 

assailant of JoAnn Sweets, Sophia Glover, Maria R. and Karen M. requires a 

higher degree of distinctiveness and commonality between the Bertha R. crimes 

and the crimes against the other victims. ―The greatest degree of similarity is 

required for evidence of uncharged misconduct to be relevant to prove identity. 

For identity to be established, the uncharged misconduct and the charged offense 

must share common features that are sufficiently distinctive so as to support the 

inference that the same person committed both acts. [Citation.]  ̳The pattern and 

characteristics of the crimes must be so unusual and distinctive as to be like a 

signature.‘ [Citation.]‖ (People v. Ewoldt, supra, 7 Cal.4th at p. 403.) 

Accordingly, we first consider whether the evidence could be admitted to prove 

defendant‘s identity, because if it was admissible for that purpose, it necessarily 

would also have been admissible to prove defendant‘s intent and motive, which 

require a lesser degree of distinctiveness.

The key issue in this case was identity. No witness came forward to 

identify defendant as the person who killed JoAnn Sweets or Sophia Glover. 
34

Substantial forensic evidence linked defendant to Sweets (fingerprints on the trash 

bag, DNA evidence, the afghan blanket, carpet fibers), however, making that case 

stronger than the one involving Glover. From Glover‘s body police had obtained 

DNA evidence that was only moderately incriminating, placing the donor of that 

semen sample—and defendant‘s sample—within 15 percent of the AfricanAmerican population. But a pattern emerged among the cases. Someone was 

preying on African-American women in a certain area of San Diego in 1985 and 

1986. All the victims were lone women, encountered, or likely encountered, on 

the street. All were, or likely were, contacted on or around El Cajon Boulevard in 

San Diego, an area frequented by prostitutes. All save Maria R. were AfricanAmerican and all save Bertha R. were, or likely were, prostitutes or homeless 

women living on the streets. Three victims who survived the attacks — Maria R., 

Karen M., and Bertha R. — identified defendant and described how they were 

taken to either his apartment on 51st Street or the Wilsie home on Mississippi 

Street (to which he had access). That the surviving victims were able to identify 

the apartments where they were brutalized is significant because the women who 

were killed were all found in close proximity to one of these residences. All of the 

women were manually strangled. All of the women were forced into brutalizing 

sex acts. Several of the victims testified to, or their bodies bore evidence of, anal 

sex. Drugs and alcohol were also a theme. The bodies of the women who lost 

their lives were treated like trash, found discarded in a dumpster or, in Glover‘s 

case, rolled in a blanket and placed curbside as if she were a piece of refuse. For 

the victims who were or likely were prostitutes (Maria R., Tara Simpson, Trina 

Carpenter, JoAnn Sweets, Sophia Glover, Karen M.), we may assume they went 

with defendant of their own free will. We may also assume they were willing to 

have sex with defendant, albeit for money. Although Bertha R. was not a 

prostitute and denied she was willing to have sex, defendant encountered her 
35

walking alone on a street known for its prostitutes and he may have believed she 

was a prostitute. She admitted she went with defendant to the Wilsie home 

willingly. 

Given these other common and distinctive facts, we must ask: Did the trial 

court abuse its discretion in concluding these crimes bore such common and 

distinctive marks that the person who committed one of them likely committed all

of them? Viewing the evidence in a light most favorable to the trial court‘s ruling 

(People v. Carter (2005) 36 Cal.4th 1114, 1148), we conclude in the negative. 

That some distinctions exist, as defendant contends, is true, but ―[t]o be highly 

distinctive, the charged and uncharged crimes need not be mirror images of each 

other.‖ (Ibid.) 

Defendant emphasizes that unlike the other victims, Bertha R. was neither a 

prostitute nor a homeless person. But that she was walking alone on El Cajon 

Boulevard, known as a place where prostitutes gathered, and accepted a ride from 

defendant, a total stranger, tends to blunt the importance of the fact she was not a 

prostitute. As the trial court explained, ―[s]he may not have been a prostitute, but 

she was willing to go with the defendant to the house on Mississippi Street.‖ 

Defendant also argues that—contrary to the trial court‘s expressed justification for 

admitting the evidence—Bertha R. was not a willing sex partner because she told 

defendant she did not want to kiss him. But defendant may have believed she was 

a compliant partner, as she agreed to come to a strange house with a strange man 

and smoke marijuana with him. She also otherwise fit the pattern of lone AfricanAmerican women defendant encountered along El Cajon Boulevard, took to one of 

his residences, and then choked and forced to have sex in multiple and brutalizing 

ways. Further, that Maria R., Karen M., and Bertha R. were not deposited in a 

dumpster or treated like garbage is of no moment because they managed to escape 

with their lives. 
36

Defendant also argues no evidence showed Sweets and Glover were also 

willing sex partners, but inferences from the evidence suggested both women were 

prostitutes. Indeed, in arguing against the persuasiveness of the prosecution‘s

DNA evidence, defense counsel admitted all of the victims were prostitutes. In 

any event, at the time the trial court ruled on the pretrial motion, defendant‘s own 

moving papers described Sweets and Glover as ―known drug user[s] and 

prostitute[s].‖ Nothing defense counsel said in arguing the motion before the trial 

court contradicted this. We cannot fault the court for proceeding on the 

understanding that Sweets and Glover had been willing sex partners. 

Defendant further contends the court erred by considering the use of force 

on a willing sex partner to be a distinctive feature of the crimes. He notes violence 

against prostitutes is now and was in fact at the time common in San Diego. But 

he did not make this argument to the court below, so we cannot fault the court for 

failing to consider it. The same is true of defendant‘s further claim that the 

existence of copycat killers undermines the persuasiveness of the People‘s 

argument that the Bertha R. crimes were similar to the charged crimes. 

For a number of other reasons, defendant seeks to distinguish the Bertha R. 

crimes from those against the other victims. For example, Bertha R. alone was 

threatened with a knife. But that she was also strangled tends to diminish the 

importance of that fact. That defendant drove her around the city and forced to 

commit a sex act in his car distinguishes her case somewhat from the others, but 

by the time defendant assaulted Bertha R., he may have decided to stop discarding 

his victims‘ bodies in dumpsters behind his own apartment, prompting his chilling 

comment to her that ―  ̳I have got to find someplace to put you.‘ ‖ Although 

defendant‘s crimes against Bertha R. were not wholly identical to those against 

Maria R., Karen M., JoAnn Sweets and Sophia Glover, we find the trial court did 
37

not abuse its discretion in admitting her testimony. (People v. Rogers (2006) 39 

Cal.4th 826, 862; People v. Roldan, supra, 35 Cal.4th at p. 705.)

The relative distinctiveness of the Bertha R. crimes aside, defendant 

contends the trial court erred in admitting evidence of them because, although his 

identity was in issue, his intent and motive in the Sweets and Glover crimes were 

not. We disagree. The prosecution was required to prove not only that defendant 

was the killer, but that he killed intentionally while committing the charged sex 

crimes. (People v. Kipp (1998) 18 Cal.4th 349, 371-372.) Bertha R.‘s evidence 

was thus relevant and its admission did not contravene defendant‘s due process 

rights.

Defendant also contends the trial court erred in admitting the evidence 

because identity, intent and motive were not at issue in the Maria R. or Karen M. 

crimes. We disagree. Assuming without deciding defendant objected on this 

specific ground, we find the court properly admitted the evidence. To be sure, 

both Maria R. and Karen M. identified defendant as their assailant. But in proving 

the culprit‘s identity, the People were entitled to bolster the victims‘ in-court 

identifications with additional evidence. Moreover, because defendant was 

charged with attempting to kill both victims, Bertha R.‘s evidence was relevant to 

demonstrate his probable intent and motive; that is, that he intended to kill them. 

Intent to kill is, of course, an element of the offense of attempted murder. (People 

v. Osband (1996) 13 Cal.4th 622, 683.)

Defendant also contends admission of evidence of the crimes against 

Bertha R. violated his federal right to due process of law. It does not appear 

defendant moved to exclude the evidence on this ground below. Assuming 

without deciding we may reach this constitutional issue, we reject it because 

defendant fails to persuade us the admission of the Bertha R. evidence ―rendered 
38

his trial so fundamentally unfair that it violated his due process rights.‖ (People v.

Roldan, supra, 35 Cal.4th at p. 705, fn. 23.)

b. Challenge to the Jury Instructions 

Defendant next argues the trial court‘s jury instruction on the subject of 

Bertha R.‘s evidence was erroneous and requires reversal. We disagree. The trial 

court delivered this basic instruction to the jury: ―Evidence has been introduced in 

this trial for the purpose of showing that the defendant committed crimes against 

Bertha [R]. Defendant is not charged in this trial with crimes relating to Ms. [R]. 

[¶] Such evidence, if believed, was not received and may not be considered by you 

to prove that the defendant is a person of bad character or that he has a disposition 

to commit crimes. [¶] Such evidence was received and may be considered only 

for the limited purpose of determining if it tends to show: [¶] The existence of the 

intent, which is a necessary element of crimes charged; [¶] The identity of the 

person who committed the crimes, if any, of which the defendant is accused; [¶] 

A motive for the commission of the crimes charged; [¶] And for the limited 

purpose for which you may consider such evidence, you must weigh it in the same 

manner as you do all other evidence in the case. [¶] You are not permitted to 

consider such evidence for any other purpose.‖ 

Defendant contends that ―[w]ithout at least proof that Sophia Glover and 

JoAnn Sweets were prostitutes, there was no evidence that either was a willing 

sexual partner. Thus, applying the court‘s reasoning, the jury had no basis for 

determining that the Bertha [R.], Sophia Glover, and JoAnn Sweets offenses all 

[bore] the same signature.‖ This argument, though framed as a challenge to the 

jury instruction, merely reprises the issue of whether the evidence was admissible, 

a claim we have previously rejected in connection with defendant‘s challenge to 

the trial court‘s denial of his severance motion. (See pt. B.4, ante.) Once the 
39

court ruled on that motion and admitted the evidence, the court was obliged to 

instruct the jury on its proper consideration. That the court instructed the jury that 

―[s]uch evidence was received and may be considered only for the limited purpose 

of determining if it tends to show‖ intent, identity or motive (italics added), also 

undermines defendant‘s argument, for if the jury had found the crimes too 

dissimilar, we presume it would have found the evidence did not tend to prove 

intent, identity or motive. Because the instruction correctly stated the applicable 

law, we also reject defendant‘s argument the instruction violated his due process 

rights.

Defendant next argues the jury instructions on other crimes evidence 

violated his right to due process under the state and federal Constitutions because 

no rational way existed for the jury to make the connection between defendant‘s 

guilt of the other crimes and his guilt of the present crimes. (Ulster County Court

v. Allen (1979) 442 U.S. 140, 157.) That is, he contends the jury instructions 

allowed the jurors to rely improperly on a permissive presumption to establish his 

identity as the killer under circumstances in which it cannot be said ―  ̳with 

substantial assurance that the presumed fact is more likely than not to flow from 

the proved fact on which it is made to depend.‘ ‖ (Id., at p. 166, fn. 28; see People 

v. Pensinger (1991) 52 Cal.3d 1210, 1243-1244 [rejecting the same argument in 

connection with the pattern instruction on the inference of a consciousness of guilt 

arising from flight].) We reject the argument, because ―reason and common sense 

amply justified the suggested conclusion‖ that the person who committed the 

Maria R., Karen M, and Bertha R. crimes likely committed the very similar 

Simpson, Carpenter, Sweets and Glover crimes. (People v. Yeoman (2003) 31 

Cal.4th 93, 131 [rejecting the same argument in connection with CALJIC No. 2.06 

(attempt to suppress evidence indicates a consciousness of guilt)].)
40

2. Admission of DNA Evidence 

a. The Evidence

Dr. Edward Blake testified as an expert for the prosecution and related the 

results of his testing of genetic material found at three of the crime scenes. 

Regarding sperm and epithelial cells on two cotton balls found with Trina 

Carpenter‘s body, the evidence suggested two different sperm donors. Dr. Blake 

analyzed the sample‘s deoxyribonucleic acid (DNA) with a process known as 

polymerase chain reaction, or PCR. His examination of the gene known as DQAlpha indicated someone belonging to a population group consistent with 

defendant‘s DNA had deposited the greater amount of sperm. According to Dr. 

Blake, a population frequency analysis of the 21 different DQ-Alpha genotypes

has shown that defendant‘s genotype appears in approximately 6 percent of the 

African-American population, 5 percent of the Caucasian population, and slightly 

more than 2 percent of the Mexican-American population. 

On rebuttal, Dr. Blake testified that he also subjected the genetic material 

on the cotton balls to a different kind of PCR test called polymarker analysis. This 

method compared five different genes rather than the single gene used in the DQAlpha test and was thus more precise. Because the defense argued that Carpenter 

was likely killed by Randy Lockwood, La-Jon Van Reed, or Prince Johnson,

individuals who were involved in the drug trade milieu of which the victim was a 

part, Dr. Blake used the polymarker analysis to test samples from those three men 

as well as defendant. The results of this second round of testing showed defendant 

could not be eliminated as the donor of the sperm found on the cotton balls, and 

that neither Lockwood, nor Reed, nor Johnson was the donor.

Although no sperm was found on oral or vaginal swabs taken from JoAnn 

Sweets‘s body, and the amount of sperm on the rectal swab was too small to test 

for DNA, five areas of the bed sheet in which Sweets‘s body was wrapped showed
41

signs of semen and were tested for genetic markers. Dr. Blake found a mixed 

sample of semen (i.e., from more than one donor) on the bed sheet and his analysis 

on cuttings from the sheet using the PCR DQ-Alpha technique showed the sperm 

was deposited by someone belonging to a population group consistent with 

defendant, as judged by the same frequency statistics as above. On rebuttal, Dr. 

Blake testified the results of the polymarker DNA test showed he could not 

eliminate defendant as the donor of the semen found on the bed sheets. Although 

defendant had suggested Sweets‘s erstwhile boyfriend, Ike Jones, was responsible 

for her death, Dr. Blake concluded that a DNA comparison of the bed sheet stain 

with a genetic sample from Ike Jones showed he was not one of the donors.

Sperm and seminal fluid were found on a swab taken from Sophia Glover‘s 

rectum and Dr. Blake‘s PCR DQ-Alpha analysis of that swab showed the sperm 

cells were consistent with defendant‘s DNA, as judged by the same population 

frequency statistics. On rebuttal, Dr. Blake testified that his polymarker analysis

suggested the sperm from the swab was ―fairly evenly balanced‖ between two 

donors of sperm, and that possibly the sperm from a third donor was also present. 

In light of this new evidence, Dr. Blake revised his estimate of how frequently the 

particular genetic pattern appeared, saying that 15.1 percent of the AfricanAmerican population (including defendant) matched the possible genotypes found 

on the swab. In other words, Dr. Blake could not eliminate defendant as the 

donor, but defendant was not the only contributor to the sample drawn from 

Glover‘s body. 

b. PCR Analysis of the DQ-Alpha Gene

Defendant moved before trial to exclude Dr. Blake‘s intended testimony,

citing People v. Kelly (1976) 17 Cal.3d 24. Kelly was the genesis of a rule,
42

previously called the ―Kelly/Frye rule,‖

11 that governs the admissibility of 

evidence derived from new scientific techniques. ―Under Kelly, the proponent of 

evidence derived from a new scientific technique must establish that (1) the 

reliability of the new technique has gained general acceptance in the relevant 

scientific community, (2) the expert testifying to that effect is qualified to give an 

opinion on the subject, and (3) the correct scientific procedures were used.

[Citation.]‖ (People v. Doolin (2009) 45 Cal.4th 390, 445.) After considering 

what it characterized as ―mounds of material‖ that both the defense and the 

prosecution submitted, the trial court ruled Dr. Blake‘s intended testimony 

satisfied the Kelly test. 

Defendant does not specifically argue that PCR analysis of the DQ-Alpha 

gene itself fails the Kelly test. Rather, he launches a more specific, four-part 

challenge to the trial court‘s ruling. We note that since the time of defendant‘s 

trial, ―[c]ourts have applied the Kelly three-pronged approach to various 

techniques used in forensic DNA testing‖ (People v. Henderson (2003) 107 

Cal.App.4th 769, 777), including PCR, the method used in this case. PCR ―takes 

small pieces of DNA and copies or amplifies them[, and] is used when the DNA 

sample is too small or degraded to perform the [restricted fragment length 

polymorphism] method.‖ (Id., at p. 778.) ―PCR analysis of DQ alpha involves 

three general steps. First, DNA is extracted from the nucleus of cells present in an 

unknown bloodstain. Second, the DQ Alpha is replicated or amplified by a 

process which involves combining the DNA with a commercially available 

 

11 See Frye v. United States (D.C. Cir. 1923) 293 F. 1013, 1014, superseded 

by statute as explained in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 

509 U.S. 579.
43

solution or  ̳cocktail‘ and then subjecting the solution to a series of controlled 

temperature cycles. Finally, the amplified gene is typed in order to identify the 

alleles[12]present in the amplified DNA.‖ (People v. Morganti (1996) 43 

Cal.App.4th 643, 662, fn. omitted.) PCR testing of the DQ-Alpha gene also works 

for semen stains. (People v. Reeves (2001) 91 Cal.App.4th 14, 24-25.)

PCR analysis of the DQ-Alpha gene is now firmly established as a 

scientific technique that satisfies the Kelly test. (People v. Doolin, supra, 45 

Cal.4th at p. 448; People v. Morganti, supra, 43 Cal.App.4th at p. 669.)13 ―Once a 

published appellate decision has affirmed admission of a scientific technique, the 

technique‘s general acceptance is established as a matter of law. Further hearings 

on general acceptance are unnecessary  ̳at least until new evidence is presented 

reflecting a change in the attitude of the scientific community.‘ [Citations.]‖ 

(Doolin, supra, at p. 447.) 

Apparently accepting the scientific community‘s approval of PCR testing in 

general, defendant argues that, by admitting Dr. Blake‘s testimony, the trial court 

 

12 ―Because there is no practical way to sequence all three billion base pairs in 

a person‘s DNA, forensic scientists seek to identify individuals through variations 

in their base-pair sequences at polymorphic DNA locations (loci). Each variation 

in sequence is called an  ̳allele.‘ ‖ (People v. Venegas (1998) 18 Cal.4th 47, 59, 

fn. omitted.) ―In genetics,  ̳allele‘ usually means an alternate form of gene on one 

of a pair of chromosomes at a particular locus. In forensic analysis, the term is 

expanded to include an alternate form of any base-pair sequence.‖ (Id., at p. 59, 

fn. 10.)

13 Defendant suggests Morganti is distinguishable because it was ―not a 

mixed sample case.‖ Subsequent to Morganti, however, published cases have held 

that because PCR has attained a consensus in the scientific community as a valid 

procedure, its use for mixed-source samples does not constitute a new scientific 

procedure separately subject to Kelly. (See, e.g., People v. Stevey (2012) 209 

Cal.App.4th 1400, 1411; People v. Smith (2003) 107 Cal.App.4th 646, 665.)
44

nevertheless erred in four specific ways: (1) Dr. Blake‘s use of something called 

―dot intensity‖ analysis to determine the genotypes present in a mixed-donor 

sperm sample was not admissible because this method was not generally accepted 

in the scientific community; (2) Dr. Blake used incorrect scientific procedures to 

identify possible genotypes present in the samples tested; (3) Dr. Blake‘s use of 

population frequency statistics was flawed; and (4) Dr. Blake‘s conclusions from 

conducting a polymarker analysis were inadmissible because he failed to follow 

proper scientific procedures. As we explain, admission of Dr. Blake‘s testimony 

did not result in reversible error.

c. Dot Intensity Analysis

The PCR DQ-Alpha method tests for the presence or absence of six 

common identifiable alleles at the DQ-Alpha genetic marker. An individual‘s 

genotype for the DQ-Alpha marker is composed of a pair of alleles. ―The six DQAlpha alleles can be paired to form 21 distinct genotypes, meaning the human 

population can be divided into 21 population groups. Ultimately, the DQ-Alpha 

genotype of the sample is determined by the presence of blue dots on test strips 

that indicate an allele of the sample DNA bonded with a specific DNA sequence 

or  ̳primer‘ on the test strip.‖ (People v. Doolin, supra, 45 Cal.4th at pp. 446-447.) 

When a sample being tested has more than one donor, scientists compare 

the intensity of the blue color of the dots on the resulting test strip to identify the 

genotype of the alleles from the primary contributor of the sample. (People v. 

Doolin, supra, 45 Cal.4th at pp. 446-447.) The dots of a ―  ̳minor‘ contributor to 

the mixed DNA sample, for example, [have]  ̳significantly less‘ color intensity 

than [those] of a  ̳major‘ contributor.‖ (Id., at p. 447.) As Dr. Blake testified, ―if 

you have an unequal mixture, . . . the sample that is there at the lowest level will 

produce relatively faint typing dots relative to the sample that‘s present at a higher 
45

level, and that‘s reflected in the typing result.‖ Moreover, the ―density of the 

color‖ of the resulting dots further indicates which alleles belong together in a 

mixed-donor sperm sample. Dr. Blake testified at the preliminary hearing that 

comparing the dots‘ color intensities to determine the alleles of the primary and 

secondary donors was a valid technique, citing an article he cowrote and another 

authored by two other experts.

14 He was unaware of any other articles on the 

subject, although he was sure there were some. 

Defendant objected to this methodology, arguing: ―None of the other 

material provided, and in particular the [National Research Council] report does 

not support Dr. Blake‘s conclusion that you can tell a primary from a secondary 

donor, if you will, nor that you can even tell which alleles go together in a 

situation where maybe you have four as opposed to which you would expect to 

find two. You can‘t really tell which of those go together based on the kind of 

testing, and all that is, in fact, available.‖ After considering all the evidence and 

argument, the trial court concluded: ―I think that Blake‘s procedures have been 

substantiated as correct scientific procedures. They are [a] little bit different, but 

substantiated.‖ Although the court made no specific or separate ruling on Dr. 

Blake‘s use of the dot intensity analysis, and defendant did not press the court for 

 

14 See Blake, et al., Polymerase Chain Reaction (PCR) Amplification and 

Human Leukocyte Antigen (HLA)-DQ⍺ Oligonucleotide Typing on Biological 

Evidence Samples: Casework Experience (May 1992) 37 J. Forensic Sciences 

700. Dr. Blake asserts in the article that ―the resulting dot intensity‖ from a PCR 

DQ-Alpha analysis can be used to distinguish the genotypes present in a mixed 

sample. 

See also Comey & Budowle, Validation Studies on the Analysis of the HLA 

DQ⍺ Locus Using the Polymerase Chain Reaction (Nov. 1991) J. Forensic 

Sciences 1633 (reaching the same conclusion).
46

a specific ruling (see People v. Ramos (1997) 15 Cal.4th 1133, 1171 [party 

seeking to preserve a claim for appeal must ―secure an express ruling from the 

court‖]), we assume the trial court‘s reference to Dr. Blake‘s ―procedures‖ is broad 

enough to encompass a ruling on the dot intensity analysis.

We have previously encountered a claim that the dot intensity analysis 

associated with PCR DNA testing fails the Kelly test. We noted that ―[w]hether 

 ̳dot-intensity analysis‘ is a novel technique requiring its own proof of general 

acceptance has not been addressed in a California published opinion.‖ (People v. 

Doolin, supra, 45 Cal.4th at p. 448.) We declined to address the merits of the 

claim in Doolin because, inter alia, any error was harmless. (Ibid.) Here, too, we 

need not address the merits of defendant‘s claim because even were we to assume 

the dot intensity analysis performed by Dr. Blake constitutes a new scientific 

technique and not merely an expert‘s opinion based on observable scientific data 

(see People v. Stoll (1989) 49 Cal.3d 1136, 1157 [―absent some special feature 

which effectively blindsides the jury, expert opinion testimony is not subject to 

Kelly . . . .‖]), and if we further assume the People‘s showing concerning the dot 

intensity analysis was deficient under Kelly, defendant suffered no prejudice. 

Dr. Blake‘s testimony describing his DNA analysis played no role in 

defendant‘s convictions for attempting to murder Maria R. and Karen M., and the 

jury did not reach a verdict on the murder counts involving Trina Carpenter and 

Tara Simpson. Therefore, Dr. Blake‘s evidence is significant on appeal only to the 

murder counts involving Sophia Glover and JoAnn Sweets. But with regard to the 

Glover counts, Dr. Blake‘s initial testimony, which was based on his use of the dot 

intensity technique in connection with the PCR DQ-Alpha test and identified 

defendant‘s genotype on the anal swab drawn from Glover‘s body, was superseded 

by his testimony on rebuttal, in which he described the results of his later, more 

precise polymarker analysis. Thus, even assuming for argument the People‘s 
47

Kelly showing for the dot intensity technique was deficient, because of the 

witness‘s own re-evaluation of the sperm sample using a later test that was both 

more accurate and not reliant on the dot intensity technique, it is not reasonably 

probable the verdict would have been more favorable absent the challenged 

portion of Dr. Blake‘s evidence. (See People v. Doolin, supra, 45 Cal.4th at 

p. 448.)

We reach the same conclusion with regard to the counts involving JoAnn 

Sweets. Dr. Blake testified he tested a semen stain on a bed sheet found with 

Sweets‘s body and identified a genotype with alleles 1.2, 2, consistent with that of 

defendant. Dr. Blake admitted, however, that the sperm was a mixed sample, and 

the stain could have been deposited by someone with the alleles 1.2, 1.2. Because 

defendant presented evidence suggesting a third party named Ike Jones, whose 

genotype included the 1.2, 1.2 alleles, could have been Sweets‘s killer, Dr. Blake 

could not rule him out at that earlier period. On rebuttal, however, Dr. Blake 

described the results of his polymarker testing and concluded that Ike Jones could 

be excluded as a possible donor of the bed sheet stain, but that defendant‘s 

―genotypes in each one of these genetic marker systems is compatible with the 

type found in the sperm [sample].‖ As with Dr. Blake‘s testimony concerning 

Sophia Glover, his rebuttal evidence reflecting the more accurate polymarker 

testing rendered harmless any deficiency in the People‘s Kelly showing regarding 

the dot intensity analysis in connection with the initial PCR DQ-Alpha testing.15

We thus conclude that, even assuming for argument that the People failed 

to demonstrate the scientific community had generally accepted the dot intensity 

 

15 To the extent defendant also challenges the testimony based on the 

polymarker test as to the crimes against Sweets, even if we accepted that challenge 

any error would be nonprejudicial, as discussed, post, at page 52.
48

technique at the time of defendant‘s trial, any error in admitting Dr. Blake‘s 

testimony was harmless under any standard in light of his rebuttal testimony 

describing the results of his polymarker DNA testing.

d. Kelly’s Third Prong: Relevance 

Defendant next argues the trial court erred in admitting Dr. Blake‘s 

testimony because ―[t]he prosecution . . . failed to carry its burden under Kelly‘s 

third prong, which requires proof that Dr. Blake used proper scientific procedure 

to determine that [defendant‘s] DNA and the perpetrator‘s DNA matched.‖ He 

claims Dr. Blake used an incorrect scientific procedure to identify possible 

genotypes present in the samples he tested because, having found two donors in 

the samples swabbed from Glover, Carpenter and Sweets, it was equally possible 

that instead of finding a donor matching defendant‘s genotype (by pairing two of 

the four alleles identified in the sample) and a second, unknown donor (whose 

genotype was identified by pairing the remaining two alleles in the sample), a 

different combination of the four alleles would have revealed two donors, neither 

of whose genotype matched defendant‘s. According to defendant, ―[i]f the 

prosecution could not establish which genotype the perpetrator possessed at that 

locus [i.e., at the DQ-Alpha locus], there was no relevant evidence to admit from 

that locus‖ (citing People v. Pizarro (2003) 110 Cal.App.4th 530, 600-601), and 

the DNA evidence was just as likely to exonerate as inculpate him. Under such 

circumstances, he argues, the trial court should have excluded the evidence as 

irrelevant.

The gist of this argument seems to be one of relevance rather than a 

complaint about Kelly‘s third prong, but whether defendant objected on either of 

these grounds is not clear. Assuming for argument that he did and the issue was 

preserved for our review, we reject it. ―The Kelly third-prong inquiry involves 
49

further scrutiny of a methodology or technique that has already passed muster 

under the central first prong of the Kelly test, in that general acceptance of its 

validity by the relevant scientific community has been established. The issue of 

the inquiry is whether the procedures utilized in the case at hand complied with 

that technique. Proof of that compliance does not necessitate expert testimony 

anew from a member of the relevant scientific community directed at evaluating 

the technique‘s validity or acceptance in that community. It does, however, 

require that the testifying expert understand the technique and its underlying 

theory, and be thoroughly familiar with the procedures that were in fact used in 

the case at bar to implement the technique.‖ (People v. Venegas, supra, 18 

Cal.4th at p. 81, italics added.) ―Where the prosecution shows that the correct 

procedures were followed, criticisms of the techniques go to the weight of the 

evidence, not its admissibility.‖ (People v. Brown (2001) 91 Cal.App.4th 623, 

647.)

No real question exists that Dr. Blake was an expert in the field of DNA 

testing and that he fully understood the theory and procedures used to test the 

sperm samples for their genetic markers. Moreover, he was well aware that more 

than one man had produced the samples he tested, and his testimony regarding the 

procedures he used to analyze the samples, including the dot intensity analysis, 

explained why he paired certain alleles to others to conclude defendant‘s genotype 

was present in the samples. We thus reject defendant‘s argument that the DNA 

evidence failed Kelly‘s third prong and conclude defendant‘s criticism of Dr. 

Blake‘s procedures go to the weight, not the admissibility, of that evidence. 

To the extent defendant argues the DNA evidence was irrelevant because 

Dr. Blake‘s test results were as likely to exonerate as inculpate him, we reject the 

argument because the trial court did not abuse its broad discretion when it 

implicitly concluded Dr. Blake‘s evidence had a ―tendency in reason to prove or 
50

disprove [a] disputed fact that [was] of consequence to the determination of the 

action.‖ (Evid. Code, § 210.) Defendant‘s further reliance on the reasoning in 

People v. Pizarro, supra, 110 Cal.App.4th 530, is unpersuasive; Pizarro was 

decided many years after the trial court‘s Kelly hearing in this case, and, in any 

event, that case involved a type of DNA testing (restriction fragment length 

polymorphism) different from the PCR testing used in this case.

e. Use of Population Frequency Data

Defendant next argues the trial court erred in admitting Dr. Blake‘s 

testimony that he relied on population frequency statistics. Again citing People v.

Pizarro, supra, 110 Cal.App.4th 530, defendant argues the proper scientific 

procedure where the perpetrator‘s race is unknown is to present the most 

conservative frequency statistic without mentioning any further refinement based 

on ethnic groups. Whether defendant objected on this ground and preserved the 

issue for appeal is unclear, but assuming for argument that he did, we reject the 

claim because this court disapproved Pizarro on this point in People v. Wilson

(2006) 38 Cal.4th 1237. ―  ̳Thus, there is no cogent reason to preclude testimony 

of a range of ethnic or racial genetic profile frequencies when the race of the 

perpetrator is unknown, so long as the data is not presented in a manner that 

assumes that the race of the perpetrator is the same as the race of the defendant. 

Since the testimony in the present case made no such assumptions, it was relevant, 

nonprejudicial, and properly received . . . .‘ ‖ (Wilson, at p. 1250.)

f. Polymarker Evidence

Defendant finally argues the trial court erred by admitting Dr. Blake‘s 

testimony on rebuttal regarding his conclusions from conducting the PCR 

polymarker analysis on the Carpenter and Sweets sperm samples because the 

witness failed to follow proper scientific procedures. According to defendant, 
51

because no sensitivity dot (known as an ―s‖ dot) appeared on the test strip for 

those samples, Dr. Blake should have aborted the test because ―the manufacturer

of the polymarker kit used by Dr. Blake[] recommends against typing a DNA 

sample unless the sensitivity dot is visible.‖ Because Dr. Blake did not follow 

correct scientific procedures, defendant argues, his polymarker evidence on 

rebuttal failed Kelly‘s third prong.

As previously noted, we agree with respondent that a challenge to the Kelly

third prong goes to the weight, not the admissibility, of the evidence. (People v. 

Brown, supra, 91 Cal.App.4th at p. 647.) We thus reject at the outset any 

suggestion the trial court erred by admitting the evidence. 

We also reject the argument that Dr. Blake‘s rebuttal evidence failed to 

satisfy Kelly‘s third prong. Although defendant argues the kit‘s manufacturer 

recommends against using results when no sensitivity dot is visible on the test 

strip, his characterization of such user instructions is inaccurate. Dr. Blake read 

the manufacturer‘s directions into the record: ―  ̳To read the developed amplitype 

PM DNA probe strip, begin by examining the ―s‖ dot. It is recommended that a 

DNA probe strip with no visible ―s‖ dot not be typed for any locus. . . . [¶] . . . [¶] 

However, individual laboratories may choose to type all loci for which a band was 

observed on the amplitype PM PCR product gel. Those dots that appear either 

darker than or equivalent to the ―s‖ dot are . . . considered positive. . . . Dots that 

are lighter than the ―s‖ dot should be interpreted with care.‘ ‖ Thus, the

manufacturer did not state categorically that the absence of a sensitivity dot 

rendered the resulting test strip unreliable.

Dr. Blake explained why he reported his results despite the absence of an 

―s‖ dot on some test strips: He ran two test strips on a reference sample of 

defendant‘s DNA; one had a visible ―s‖ dot and one did not. Because the typing 

in both was identical (as they should have been, because they were both taken 
52

from defendant), he felt confident in reporting results from the test. Similarly, Dr. 

Blake ran two polymarker tests on the sample from the Sweets case. One had a 

faint ―s‖ dot and the other had no dot visible, but ―the typing results from both 

specimens [were] identical,‖ suggesting the absence of a visible sensitivity dot was 

of less importance.

In addition, defendant‘s experts did not categorically proclaim that a 

missing ―s‖ dot rendered a polymarker test result invalid per se. When defense 

expert Marc Taylor was asked whether ―genotype results can be interpreted on 

unknown samples where no  ̳s‘ dot is visualized on the test strip?‖ he replied: ―I 

think under certain circumstances that there are some interpretations that can be 

made. I think there are some very big dangers of misinterpretations when there 

isn‘t an  ̳s‘ dot.‖ And defense expert Patrick O‘Donnell, when asked about a test 

strip with a missing ―s‖ dot, responded: ―I would attach . . . a very conservative 

interpretation to any sample in which an  ̳s‘ dot was not visible,‖ but later admitted 

there were other ways of compensating for the lack of a visible ―s‖ dot. 

Finally, any error with regard to the missing sensitivity dot was harmless 

under any standard. First, with regard to evidence implicating defendant in Trina 

Carpenter‘s killing, any error was harmless because the jury did not reach a verdict 

on that charge, and the People elected not to retry it. Second, with regard to 

evidence suggesting defendant killed JoAnn Sweets, the evidence against 

defendant was very strong even aside from Dr. Blake‘s PCR polymarker rebuttal 

testimony: Defendant‘s fingerprints were found on the plastic garbage bag in 

which Sweets‘s body was wrapped, she was found with a blanket made by 

defendant‘s mother, and carpet fibers on her body matched those in defendant‘s 

apartment. 

In sum, we find the court did not prejudicially err in admitting the DNA 

evidence.
53

3. Admission of Dr. Meloy’s Testimony

Defendant moved before trial for an evidentiary hearing to discover the 

nature of the testimony the prosecution intended to present from witness Dr. John 

Reid Meloy. The trial court held an Evidence Code section 402 hearing at which 

Dr. Meloy testified and described the basis of his expertise and the nature of his 

expected testimony. At the end of the hearing, the trial court ruled Dr. Meloy 

could testify as an expert on sexual homicides but could not express the opinion 

that defendant himself fell into the category of a being a perpetrator of sexual 

homicides. The court also emphasized its ruling was a tentative one. When 

defendant later formally moved to exclude Dr. Meloy‘s testimony, the court 

affirmed its earlier tentative ruling, noting the witness‘s testimony would be 

limited to ―intent and motive at the time [of the crime].‖ In other words, the court 

allowed the witness to testify and ―to dispel . . . what may be misperceptions by 

the jury that nobody would kill for sex when you have got a prostitute there.‖ 

The court revisited its tentative ruling twice more, each time reaffirming its 

previous ruling, noting the ruling‘s limits and affirming that it would exclude all 

other parts of Dr. Meloy‘s anticipated evidence under Evidence Code section 352. 

In light of the limits the court placed on Dr. Meloy‘s trial testimony, it was 

brief, spanning only 16 pages in the trial transcript. He explained that he was a 

forensic psychologist and, on a parttime basis, the chief of court services for the 

San Diego County forensic mental health division. In the latter capacity, he was, 

among other things, ―administratively responsible for the outpatient psychiatric 

treatment program for individuals that have been found not guilty by reason of 

insanity, have then gone to the state hospital, usually for a number of years, and 

then are released by the court back to the community.‖ In addition to having 

received a number of degrees, Dr. Meloy also was board certified as a forensic 

psychologist and had worked in the criminal law field for many years. He had 
54

particular experience studying the field of ―sexual homicide,‖ which he defined as 

―  ̳the intentional killing of another human being during which there is evidence of 

sexual activity by the perpetrator.‘ ‖ He had conducted research and published 

papers on that subject and had been retained as an expert in numerous criminal 

cases. 

Asked by the prosecutor how sexual homicide differs from more common 

homicide, Dr. Meloy explained: ―Generally in most homicides there is not any 

sexual arousal involved. Generally most people who kill somebody else 

intentionally, it is usually somebody they know; actually, quite well. And they are 

usually very frightened or very angry when they do it, and there is no sexual 

component to it at all.‖ Asked whether ―a motivation or desire [or] intent . . . 

drives‖ the perpetrator of a sexual homicide, Dr. Meloy replied: ―The intent in 

sexual homicide, and the reason that sexual homicides exist, is that the person who 

does this, his rage toward women, his violence toward women, and the woman‘s 

suffering under his domination is his biggest sexual turn-on‖; that is, the 

perpetrator of such a crime ―is sexually aroused by the act of violence toward the 

victim, who is usually a woman, and he [will desire to reach a sexual climax] 

before, during, or after the killing.‖ On cross-examination by defense counsel, Dr. 

Meloy affirmed that his definition sexual homicide ―is not a legal definition of any 

kind‖ and that it is not included in any diagnostic literature such as the ―DSMIII.‖16 

 

16 Known by the acronym ―DSM,‖ the ―Diagnostic and Statistical Manual of 

Mental Disorders [is published] by the American Psychiatric Association.  ̳The 

DSM–IV is recognized by the courts as a standard reference work containing a 

comprehensive classification and terminology of mental disorders.‘ ‖ (People v. 

Mills, supra, 48 Cal.4th at p. 205, fn. 17.)
55

Defendant raises a number of arguments challenging the admission of Dr. 

Meloy‘s testimony. 

a. Bledsoe

Defendant first contends, as he did below, that admission of Dr. Meloy‘s 

testimony was contrary to the principles set forth in People v. Bledsoe (1984) 36 

Cal.3d 236. Bledsoe addressed the admissibility of expert evidence describing 

rape trauma syndrome. Such psychological evidence, we recognized, may explain 

why some rape victims delay reporting the crime, or even recant an accusation, 

and thus ―may play a particularly useful role by disabusing the jury of some 

widely held misconceptions about rape and rape victims, so that it may evaluate 

the evidence free of the constraints of popular myths.‖ (Id., at pp. 247-248.) In 

Bledsoe, however, ―the evidence was not admitted for any such purpose‖ (id., at 

p. 248), as the victim in the case reported the crime immediately and never 

wavered in her story, nor did the defendant argue the victim‘s postcrime behavior 

indicated she had not been raped. Under those circumstances, we concluded that 

―expert testimony that a complaining witness suffers from rape trauma syndrome 

is not admissible to prove that the witness was raped.‖ (Id., at p. 251.)

In denying defendant‘s motion to exclude Dr. Meloy‘s testimony in the 

instant case, the trial court explained: ―[W]hen considering Bledsoe, the relevance 

of [Dr. Meloy‘s] testimony is not to prove that a sexual homicide did or did not 

occur here, nor to prove that the defendant committed any of these crimes. . . . [¶] 

His testimony is simply to give the jury insight into the motive and intent that may 

go behind a sexual homicide, and such testimony is highly relevant where lay

persons will probably find it incomprehensible why a prostitute would be 

murdered for sex when the sex could be obtained voluntarily.‖ The court later 

reiterated the limits of its ruling, saying: ―Dr. Meloy‘s testimony would be limited 
56

to just that portion that would dispel any confusion on the jury‘s part concerning 

the intent of somebody where there is the killing of a willing prostitute for sex. So 

I think the people are entitled to dispel that confusion, and the rest of it would be 

out under [Evidence Code section] 352 or lack of foundation.‖

Although the court did not admit Dr. Meloy‘s testimony as evidence 

defendant committed the charged crimes, defendant nevertheless contends the rule 

permitting admission of such psychological evidence is inapplicable here. He 

argues the prosecution presented no evidence of a commonly held misconception 

that Dr. Meloy‘s evidence might serve to contradict. But Dr. Meloy testified 

extensively at the Evidence Code section 402 hearing about what his research into 

the area showed, and it was reasonable for the trial court to find that jurors might 

not understand why a person would kill a consensual sexual partner. Dr. Meloy‘s 

description of the unusual psychological urges of those who commit sexual 

homicides was thus relevant to the jury‘s proper assessment of the evidence. ―The 

trial court has broad discretion in deciding whether to admit or exclude expert

testimony [citations], and its decision as to whether expert testimony meets the 

standard for admissibility is subject to review for abuse of discretion.‖ (People v. 

McDowell (2012) 54 Cal.4th 395, 426.) Applying that standard here, we find no 

abuse of discretion.

Defendant raises a number of subsidiary claims. Assuming for argument he 

properly preserved them below, we similarly find them nonmeritorious. 

Defendant first contends that because Dr. Meloy and the trial court agreed that 

sexual homicides were rare, there could be no commonly held misconception about 

such killings or the murders in this case. This was a matter for the trial court to 

weigh in exercising its discretion and we perceive no abuse of discretion in that

regard. Second, defendant observes the jury questionnaire included questions 

concerning protection of prostitutes, and whether they can be victims of rape, and 
57

the jurors‘ answers to these questions showed they harbored no such 

misconceptions about prostitutes. But Dr. Meloy testified that some persons 

appear to suffer from a mental disorder that leads them to kill willing sexual 

partners in order to experience heightened sexual pleasure. The jury questionnaire 

did not give the jurors this information. 

Third, defendant argues Dr. Meloy‘s evidence was not targeted to refuting 

the specific misconception that people do not kill willing sexual partners to 

achieve increased sexual pleasure. He contends, for example, that none of the 

studies on which Dr. Meloy relied involved victims who were prostitutes. The 

trial court reasonably considered the issue in more general terms: the killing of 

any willing sexual partners, not simply prostitutes. Fourth, defendant argues Dr. 

Meloy‘s evidence was inadmissible because the defense introduced no contrary 

evidence to be refuted; that is, defendant never claimed that willing sexual 

partners were never killed for psychological reasons. But the court did not admit 

Dr. Meloy‘s testimony because defendant had somehow opened the door to it by 

his own evidence. (See, e.g., People v. Coffman and Marlow (2004) 34 Cal.4th 1, 

74 [defendant‘s testimony opened the door to questioning about other crimes].) 

Nor was Dr. Meloy‘s testimony tantamount to rebuttal evidence, which is subject 

to certain restrictions. (See People v. Young (2005) 34 Cal.4th 1149, 1199

[rebuttal evidence ―  ̳is restricted to evidence made necessary by the defendant‘s 

case in the sense that he has introduced new evidence or made assertions that were 

not implicit in his denial of guilt‘ ‖].) Instead, the court admitted the evidence 

because it was ―[r]elated to a subject that is sufficiently beyond common 

experience that the opinion of an expert would assist the trier of fact.‖ (Evid. 

Code, § 801, subd. (a).) We thus reject these subsidiary claims.
58

b. Relevance, Evidence Code Section 352, and Due Process

Defendant next contends Dr. Meloy‘s testimony should have been excluded 

because it was irrelevant and violative of both Evidence Code section 352 and his 

right to state and federal due process of law. Of course, only relevant evidence is 

admissible (Evid. Code, § 350), and relevance is defined as ―having any tendency 

in reason to prove or disprove any disputed fact that is of consequence to the 

determination of the action‖ (id., § 210). The trial court has broad discretion to 

determine the relevance of evidence (People v. Gurule (2002) 28 Cal.4th 557, 

614), and we will not disturb the court‘s exercise of that discretion unless it acted 

in an arbitrary, capricious or patently absurd manner (People v. Rodrigues (1994) 

8 Cal.4th 1060, 1124-1125).

As he did in the trial court, defendant argues Dr. Meloy‘s evidence was so 

speculative that it was irrelevant. ―  ̳The test of relevance is whether the evidence 

tends ―logically, naturally, and by reasonable inference‖ to establish material facts 

such as identity, intent, or motive.‘ [Citations.]‖ (People v. Bivert, supra, 52 

Cal.4th at pp. 116-117.) Here the trial court admitted the evidence to show 

motive. As the court explained, Dr. Meloy‘s ―testimony would be offered to

provide insight into the motive or intent involved in the perpetration of the sexual 

homicide,‖ likening it to another case in which an expert was allowed to give 

evidence on Munchausen‘s syndrome by proxy. (People v. Phillips (1981) 122 

Cal.App.3d 69, 78-79.)

The record shows the trial court carefully, even meticulously, considered 

the proper limits on Dr. Meloy‘s anticipated testimony. Under the circumstances, 

we find no abuse of discretion. Although defendant attacks Dr. Meloy‘s evidence 

because it was based on a small sample, incorporated the use of Rorschach inkblot 

testing, and used surveys that included offenders who did not kill prostitutes, such 

alleged discrepancies do not demonstrate Dr. Meloy‘s testimony was so 
59

speculative as to render it inadmissible. (See People v. Horning (2004) 34 Cal.4th 

871, 900-901 [inability of expert to say bullets were unquestionably fired from a 

particular gun did not render evidence inadmissibly speculative].) To the extent 

defendant argues Dr. Meloy‘s testimony was inadmissible because defendant‘s

intent and motive were not in dispute, we reject that claim as well. ―  ̳Motive is 

not a matter whose existence the People must prove or whose nonexistence the 

defense must establish. [Citation.] Nonetheless, ―[p]roof of the presence of 

motive is material as evidence tending to refute or support the presumption of 

innocence.‖ ‘ ‖ (People v. Roldan, supra, 35 Cal.4th at p. 707.) Finally, we reject 

defendant‘s argument that Dr. Meloy expressed an opinion on the ultimate fact of 

defendant‘s state of mind in violation of section 29.

17 The witness offered no such 

opinion; he merely agreed that in a sexual homicide, the perpetrator‘s motivation, 

desire or intent ―drives‖ the activity, and that ―[t]he intent in sexual homicide, and 

the reason that sexual homicides exist, is that the person who does this, his rage 

toward women, his violence toward women, and the woman‘s suffering under his 

domination is his biggest sexual turn-on.‖ The jury was left to decide whether 

defendant had committed a sexual homicide and so had acted with that intent. 

Defendant also reprises his pretrial claim that the court abused its discretion 

in denying his motion to exclude Dr. Meloy‘s testimony as being more prejudicial 

than probative. (Evid. Code, § 352.) ―. . . Evidence Code section 352 requires the 

exclusion of evidence only when its probative value is substantially outweighed 

 

17 ―In the guilt phase of a criminal action, any expert testifying about a 

defendant‘s mental illness, mental disorder, or mental defect shall not testify as to 

whether the defendant had or did not have the required mental states, which 

include, but are not limited to, purpose, intent, knowledge, or malice aforethought, 

for the crimes charged. The question as to whether the defendant had or did not 

have the required mental states shall be decided by the trier of fact.‖ (§ 29.)
60

by its prejudicial effect.  ̳Evidence is substantially more prejudicial than probative

[citation] [only] if, broadly stated, it poses an intolerable ―risk to the fairness of the 

proceedings or the reliability of the outcome‖ [citation].‘ ‖ (People v. Tran (2011) 

51 Cal.4th 1040, 1047.) The trial court was well aware of the danger Dr. Meloy‘s 

evidence posed and therefore limited the scope of his testimony severely. The trial 

court has broad discretion under Evidence Code section 352 to exclude evidence

(People v. Mills, supra, 48 Cal.4th at p. 195), and we cannot say it abused its 

discretion in this case. Nor did defendant suffer any prejudice; although he 

contends Dr. Meloy‘s testimony must have created a ―deep loathing‖ for him and 

instilled ―an emotional bias‖ against him, the facts are otherwise. By failing to 

come to a verdict on two of the four alleged murders, the jury showed it had 

considered each count separately and thoughtfully and was not overcome by bias 

against, or hatred for, defendant.

Many of these same considerations lead us to reject defendant‘s claim that 

his right to due process under the state and federal Constitutions was violated by 

the admission of Dr. Meloy‘s testimony, which rendered his trial fundamentally 

unfair. ―The admission of relevant evidence will not offend due process unless the 

evidence is so prejudicial as to render the defendant‘s trial fundamentally unfair.‖

(People v. Falsetta, supra, 21 Cal.4th at p. 913.) The trial court‘s careful pruning 

of Dr. Meloy‘s anticipated evidence and the ultimate brevity of his testimony 

underscore the fairness of the process, and defendant‘s ability to call witnesses to 

impeach Dr. Meloy, as well as the jury‘s inability to return verdicts on two of the 

four charged murders, demonstrate the trial was not fundamentally unfair.

c. Evidence Code Section 720

One of the grounds on which defendant relied for his pretrial motion to 

exclude Dr. Meloy‘s testimony was that the witness was not qualified under 
61

Evidence Code section 720 to testify as an expert regarding sexual homicide. On 

appeal, defendant has reframed his argument: he contends Dr. Meloy‘s testimony 

was inadmissible because no such subfield of psychology known as ―sexual 

homicide‖ exists, ―or at the very least, the prosecution failed to show its 

existence.‖ Although respondent argues defendant failed to preserve this precise 

claim by raising it in this form below, we take defendant‘s consistent reliance on 

Evidence Code section 720 to mean he contends the prosecution failed to show Dr. 

Meloy ―has special knowledge, skill, experience, training, or education sufficient 

to qualify him as an expert on the subject to which his testimony relates.‖ (Evid. 

Code, § 720, subd. (a).) As so construed, we reject it.

A trial court‘s decision that a proposed witness qualifies as an expert under 

Evidence Code section 720 is a matter within the court‘s broad discretion and will 

not be disturbed on appeal unless the defendant demonstrates a manifest abuse of 

that discretion. (People v. Castaneda (2011) 51 Cal.4th 1292, 1336.) When a 

preliminary showing is made that the proposed witness has sufficient knowledge 

to qualify as an expert under the Evidence Code, questions about the depth or 

scope of his or her knowledge or experience go to the weight, not the 

admissibility, of the witness‘s testimony. (People v. Eubanks (2011) 53 Cal.4th 

110, 140.) Here, an extensive hearing pursuant to Evidence Code section 402 was 

held before trial in which Dr. Meloy related his educational history, his study of 

the subject of sexual homicide, his personal interviews and observations of 

subjects, his published papers, and his conclusions regarding sexual homicide. At 

trial, he candidly admitted on cross-examination that the definition he was using of 

sexual homicide was not contained in the DSM. Defendant was free to call his 

own witness to dispute Dr. Meloy‘s conclusions, but the trial court‘s decision to 

permit Dr. Meloy to testify as an expert was well within its discretion.
62

d. Evidence Code Section 801

As he did before trial, defendant contends Dr. Meloy‘s testimony regarding 

sexual homicides amounted to a legal conclusion in violation of Evidence Code 

section 801, subdivision (a). Although that provision permits an expert to ―assist 

the trier of fact‖ by testifying to any subject ―that is sufficiently beyond common 

experience,‖ such testimony is limited in an important way. ―[Although] opinion 

evidence which is otherwise admissible is not made inadmissible simply because it 

embraces the ultimate issue to be decided by the trier of fact . . . [t]he cited rule 

does not . . . authorize an  ̳expert‘ to testify to legal conclusions in the guise of 

expert opinion. Such legal conclusions do not constitute substantial evidence.‖ 

(Downer v. Bramet (1984) 152 Cal.App.3d 837, 841, cited with approval in 

Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 884; see 1 Witkin, 

Cal. Evidence (5th ed. 2012) Opinion Evidence, § 98, pp. 745-748.)

Contrary to defendant‘s argument, Dr. Meloy‘s testimony at trial did not 

run afoul of this rule. The witness neither provided a legal conclusion nor defined

a crime for the jury. He merely described the phenomenon, noted by other 

experts, called ―sexual homicide.‖ He did not offer a legal conclusion that all 

sexual homicides are intentional and purposeful, nor did he say that such crimes 

were tantamount to deliberate and premeditated murder. Although Dr. Meloy 

agreed with the prosecutor that sexual homicides involve ―goal-oriented 

behavior,‖ he did not go further to say that the goal of the perpetrators of such 

homicides was always to kill. In any event, defendant did not object to this 

testimony and he thus forfeited the issue. 

Defendant also contends Dr. Meloy‘s testimony contravened subdivision 

(b) of Evidence Code section 801. That provision states in pertinent part: ―If a 

witness is testifying as an expert, his testimony in the form of an opinion is limited 

to such an opinion as is: [¶] . . . [¶] (b) Based on matter . . . that is of a type that 
63

reasonably may be relied upon by an expert in forming an opinion upon the 

subject to which his testimony relates . . . .‖ We addressed that subject in People 

v. Gardeley (1996) 14 Cal.4th 605, where we explained that expert testimony can 

be based on a wide variety of information so long as it is reliable. ―For  ̳the law 

does not accord to the expert‘s opinion the same degree of credence or integrity as 

it does the data underlying the opinion. Like a house built on sand, the expert‘s 

opinion is no better than the facts on which it is based.‘ ‖ (Id., at p. 618.) A trial 

court enjoys broad discretion when ruling on foundational matters such as 

qualifying a witness under Evidence Code section 801, subdivision (b), and such 

decisions will not be disturbed on appeal absent a showing of a manifest abuse of 

discretion. (People v. Mickey (1991) 54 Cal.3d 612, 688.)

Although an expert witness‘s opinion may not be based on guess or 

conjecture (People v. Moore (2011) 51 Cal.4th 386, 405), such was not the case 

here. In the foundational hearing held before trial, Dr. Meloy carefully described 

his 18 years of experience with sexual homicides, his research, his methodology, 

the publications he had read, and the cases involving sexual homicide in which he 

had been a consultant. Defendant criticizes this foundation of Dr. Meloy‘s 

opinions as unreliable within the meaning of Evidence Code section 801, 

subdivision (b), arguing that his opinions were self-contradictory and tentative, 

that the methodology of using Rorschach inkblot tests had not been peer reviewed, 

that other cases in the literature had not involved prostitutes as victims, that Dr. 

Meloy had not personally interviewed other perpetrators of sexual homicide and 

asked them about their motives, and that his definition of sexual homicide was 

―unworkable and unreliable.‖ On this record, however, we cannot say the trial 

court abused its broad discretion in finding Dr. Meloy was qualified as an expert 

under the Evidence Code, especially as the court carefully limited the scope of Dr. 

Meloy‘s testimony to describing the phenomenon of sexual homicide without 
64

tying it specifically to defendant. Defendant was free to try to impeach Dr. Meloy 

by calling his own expert witness to make these points. 

e. Evidence Code Section 1101

Defendant also argues Dr. Meloy‘s testimony constituted impermissible 

character evidence that the court should have excluded pursuant to Evidence Code 

section 1101. As respondent observes, however, defendant never moved to 

exclude the evidence under that section and has thus forfeited the claim for appeal. 

Defendant responds that because the trial court made comments suggesting it was 

aware that Dr. Meloy‘s anticipated testimony could potentially transgress the rule 

against bad-character evidence, we should find the issue was before the court—

and therefore preserved for appeal—despite his failure to object. We decline his 

invitation because the purpose of the rule requiring a timely and specific objection 

is not only ―  ̳to alert the trial court to the nature of the anticipated evidence and 

the basis on which exclusion is sought, [but also] to afford the People an 

opportunity to establish its admissibility.‘ ‖ (People v. Partida (2005) 37 Cal.4th 

428, 435, italics added.) Although the trial court may have made some comments 

about character evidence, defendant never placed the prosecution on notice that it 

needed to justify the admissibility of Dr. Meloy‘s evidence under Evidence Code 

section 1101. Accordingly, he did not preserve the claim for appeal.

Were we to address the merits of the claim despite the absence of an 

objection below, we would find no error and no prejudice. Under Evidence Code 

section 1101, subdivision (b), evidence of a person‘s prior bad act—evidence that 

might incidentally tend to show the person‘s disposition to commit such an act—is 

nevertheless admissible, if relevant, to raise an inference of (and hence prove) his 

motive or intent when he committed his crimes. So even assuming for argument 

that defendant is correct in his characterization of Dr. Meloy‘s testimony as 
65

showing defendant‘s bad character, it could still be admissible to show defendant‘s 

motive. In any event, Dr. Meloy never connected defendant to his psychological 

theory; that is, he never testified that defendant was in fact a perpetrator of sexual 

homicide. Accordingly, because Dr. Meloy did not testify to or describe 

defendant‘s past bad acts, Evidence Code section 1101 is simply inapposite.

f. Kelly

Defendant next contends the trial court erred by admitting Dr. Meloy‘s 

testimony without first assessing the reliability of his methodology under the Kelly

rule. (People v. Kelly, supra, 17 Cal.3d 24.) As noted, ante, at pages 41-42, Kelly

directs that the proponent of expert testimony based on a new scientific technique

or procedure demonstrate both the new technique‘s reliability and that the witness 

is qualified to give an opinion on the subject. Caution with evidence involving 

new scientific techniques is justified because ―[l]ay jurors tend to give 

considerable weight to  ̳scientific‘ evidence when presented by  ̳experts‘ with 

impressive credentials. We have acknowledged the existence of a  ̳. . . misleading 

aura of certainty which often envelops a new scientific process, obscuring its 

currently experimental nature.‘ [Citations.]‖ (People v. Kelly, supra, at pp. 31-32.)

No such concerns are present in this case. Like the proposed expert 

evidence regarding the psychological factors that might affect the accuracy of 

eyewitness identifications at issue in People v. McDonald (1984) 37 Cal.3d 351, 

or the proposed expert evidence (that the defendant‘s psychological test results did 

not suggest sexual deviancy) at issue in People v. Stoll, supra, 49 Cal.3d 1136, the 

evidence here was not a new scientific technique or procedure but merely expert 

opinion evidence. ―It is important to distinguish in this regard between expert 

testimony and scientific evidence. When a witness gives his personal opinion on 

the stand—even if he qualifies as an expert—the jurors may temper their 
66

acceptance of his testimony with a healthy skepticism born of their knowledge that 

all human beings are fallible. But the opposite may be true when the evidence is 

produced by a machine: like many laypersons, jurors tend to ascribe an 

inordinately high degree of certainty to proof derived from an apparently 

 ̳scientific‘ mechanism, instrument, or procedure. Yet the aura of infallibility that 

often surrounds such evidence may well conceal the fact that it remains 

experimental and tentative.‖ (McDonald, supra, at pp. 372-373.)

―[A]bsent some special feature which effectively blindsides the jury, expert 

opinion testimony is not subject to Kelly[].‖ (People v. Stoll, supra, 49 Cal.3d at 

p. 1157.) ―  ̳We have never applied the Kelly[] rule to expert medical testimony, 

even when the witness is a psychiatrist and the subject matter is as esoteric as the 

reconstitution of a past state of mind or the prediction of future dangerousness, or 

even the diagnosis of an unusual form of mental illness not listed in the diagnostic 

manual of the American Psychiatric Association.‘ ‖ (Stoll, supra, at p. 1157, 

quoting People v. McDonald, supra, 37 Cal.3d at p. 373, italics added.) Our 

conclusion in Stoll applies fully to this case: ―The psychological testimony 

proffered here raises none of the concerns addressed by Kelly[]. The methods 

employed are not new to psychology or the law, and they carry no misleading aura 

of scientific infallibility.‖ (Stoll, supra, at p. 1157.)

Defendant‘s attempt to distinguish Stoll and McDonald is unpersuasive. He 

primarily argues that prior cases such as People v. Coogler (1969) 71 Cal.2d 153,

that permitted an expert witness‘s reliance on Rorschach test results, also involved 

other factors as well, such as results from the Minnesota Multiphasic Personality 

Inventory. (Id., at p. 165.) But without passing on whether an expert opinion 

based solely on Rorschach tests would be inadmissible under Kelly, we note that 

Dr. Meloy‘s opinions were based not only on Rorschach test results, but also on 

his broad knowledge and experience with the subject matter in question. Such 
67

knowledge came from his familiarity with research and published studies in the 

area of sexual homicide, his treatment of a patient in Chicago, his employment as 

an expert evaluating criminal defendants charged with sex-related homicides, his 

own research, which included personally interviewing subjects, his cooperation 

with an individual who worked with the Federal Bureau of Investigation in 

establishing a training seminar on the subject, his participation in lectures and 

workshops around the country on the subject, and his publication of nine papers 

and parts of two books dedicated to the subject.

To the extent defendant challenges Dr. Meloy‘s qualifications on the 

grounds that he was not an impartial witness, or that he did not personally 

interview all 18 subjects in one study, we reiterate that the trial court did not abuse 

its discretion in finding he qualified as an expert under the Evidence Code. 

Accordingly, the matters raised go simply to the weight, not the admissibility of 

Dr. Meloy‘s testimony. We further reject defendant‘s claim that Dr. Meloy‘s 

testimony ―blindside[d] the jury‖ within the meaning of People v. Stoll, supra, 49 

Cal.3d at page 1157. After the lengthy Evidence Code section 402 hearing, Dr. 

Meloy‘s actual testimony before the jury was surprisingly short: after he 

explained his background and experience, his description of sexual homicides 

comprises barely five pages in the trial transcript. As a result, it likely had little 

impact with the jury.

4. Exclusion of Maria R.’s Alleged Apology 

Defendant contends the trial court abused its discretion, and also committed 

federal constitutional error, by excluding evidence that sometime after defendant 

assaulted Maria R., she returned to the apartment on 51st Street to apologize for 

falsely accusing him. We reject the claim because defendant fails to demonstrate 
68

the trial court abused its broad discretion when it determined that he failed to lay a 

proper foundation for this proposed evidence.

Maria R. testified that after she was assaulted, she met some people from a 

church and told them she was afraid defendant might harm her again. She then 

returned to the Jones apartment with some of these people but stayed in the car 

while they went to speak with defendant at the apartment. When defense counsel 

asked the witness what these people told defendant, the prosecutor successfully 

interposed a hearsay objection, although the court allowed defense counsel to ask 

her if she knew what was said. She replied, ―No, only what they told me.‖

Later in the trial, the defense called defendant‘s mother, Ann Jones (Jones), 

to the stand. While questioning Jones, defense counsel asked her whether, in 

August 1985, someone came to her door. She replied that a Hispanic man and a 

woman came to her door, that the man identified himself as a preacher of a church 

the witness did not recognize, and that he translated for the woman, who spoke 

Spanish only. When the witness began recounting what the Hispanic man and 

woman said, the prosecutor objected on hearsay grounds, arguing the defense had 

not laid a foundation as to the identity of the two persons who came to Jones‘s

apartment. At a sidebar conference, defense counsel argued the Hispanic woman 

whom Jones saw on her doorstep was in fact Maria R., although counsel admitted 

that when shown a photo of Maria R., Jones did not identify her but merely noted 

that she remembered the woman as thinner. The trial court suggested that because 

Maria R. testified in English but Jones said the woman spoke Spanish only and 

needed the preacher to translate, perhaps there was ―an identification problem.‖ 

Defense counsel speculated that because nine years had elapsed between the 

assault and the trial, Maria R.‘s English proficiency might have improved. 

Counsel admitted that, despite some effort, the defense had not been able to locate 

the man Jones described as a preacher.
69

The court tentatively found the doubts about the evidence went to its 

weight, not its admissibility, and was of a mind to admit it, but defense counsel, 

apparently for tactical reasons, asked for a hearing out of the jury‘s presence to 

establish the foundation for the evidence, ―because if there is not enough, I don‘t 

want to set up a situation where [the jury] really consider[s] it a straw man type of 

situation. I [would] just as soon have it out.‖ The court obliged and held a 

hearing out of the jury‘s presence to determine whether a foundation existed for 

the proposition that Maria R. spoke to Jones and apologized for claiming that 

defendant had assaulted her. Jones testified at the hearing that the Spanishspeaking woman, as interpreted by the preacher, told her that ―[s]he‘s here to say 

she‘s sorry. And I said  ̳sorry about what?‘ And he said she was upset. She had 

been beaten up by her husband. She didn‘t know why she did this. She didn‘t 

know why she did that. And she was just confused. [¶] And I said—by that time I

think I called [defendant], you know, called him out because I think he was in the

back and he came to the door. [¶] And basically this woman was, you know, 

talking very quickly and the man would translate and she would talk, and she was 

just—and I am like  ̳you‘re sorry about what? What happened? What happened?‘ 

And then I asked my son and he said,  ̳well, I gave her some food, you know. I 

tried to help her out.‘ ‖ Jones said she had never seen the Hispanic woman before 

and denied the police had ever shown her pictures of her. 

On the foundational question of the mystery woman‘s identity, Jones 

testified that she had attended the first day of trial and observed Maria R. testify. 

Asked whether she recognized her at that time, Jones replied: ―No. I thought she 

looked kind of heavy, to me. About the same height, but then I am tall. So she 

didn‘t seem very tall to me, but she looked kind of chunky or—but then it was at 

night. I don‘t—you know, it was kind of hard to say.‖ (Italics added.) Later, she 

was asked: ―Did you recognize her from having been one of the people at your 
70

door other than the difference in weight?‖ She replied: ―The only thing I can say 

is I thought maybe that was her.‖ (Italics added.) On cross-examination by the 

prosecutor, Jones could not identify the month, day or even year when the alleged 

encounter occurred. On redirect, defense counsel asked her whether there was 

―anything else about the woman you saw testify that caused you to believe it was 

[Maria R.]?‖ She replied: ―When she walked in, when I turned my head and I 

saw her, and I thought, gee, she‘s gained a lot of weight. I still don‘t know why I

said that, but I just—you know, I just felt like I knew her. From where I don’t 

know.‖ (Italics added.) Following this testimony, the trial court sustained the 

prosecutor‘s hearsay objection for lack of foundation.

―Evidence of a statement made by a witness is not made inadmissible by 

the hearsay rule if the statement is inconsistent with his testimony at the hearing

. . . .‖ (Evid. Code, § 1235.) Had there been evidence from which a reasonable 

jury could have concluded the Hispanic woman who came to Ann Jones‘s home 

was Maria R., then the alleged apology could be considered a statement that was 

inconsistent with her accusations of assault and thus admissible under Evidence 

Code section 1235. But a trial court‘s decision to admit or exclude a hearsay 

statement under this hearsay exception will not be disturbed on appeal absent a 

showing of abuse of discretion. (People v. Cowan, supra, 50 Cal.4th at p. 462.) 

When the admissibility of evidence turns on the existence of a preliminary fact

(see Evid. Code, § 403), the trial court may, as here, hold a hearing outside the 

jury‘s presence to determine whether that preliminary fact exists. ―The court 

should exclude the proffered evidence only if the  ̳showing of preliminary facts is 

too weak to support a favorable determination by the jury.‘ [Citations.] The 

decision whether the foundational evidence is sufficiently substantial is a matter 

within the court‘s discretion.‖ (People v. Lucas (1995) 12 Cal.4th 415, 466.)
71

Because Jones could not say the Hispanic woman was in fact Maria R., 

there is no reason to think the speaker‘s statements were a prior statement of 

Maria R., inconsistent or otherwise. Defendant contends he presented sufficient 

evidence from which a reasonable jury could have found Maria R. was the 

Hispanic woman who accompanied the preacher to Jones‘s home, observing that 

―  ̳the judge‘s function on questions of this sort is merely to determine whether 

there is evidence sufficient to permit a jury to decide the question. The ―question 

of admissibility . . . merges imperceptibly into the weight of the evidence, if 

admitted.‖ ‘ ‖ (Quoting Legis. Com. com., 29B pt. 1 West‘s Ann. Evid. Code

(1995 ed.) foll. § 403, p. 361, quoted with approval in People v. Lucas, supra, 12 

Cal.4th at p. 467.) The flaw in this argument is that defendant never presented 

sufficient evidence to allow the jury to find that the woman who came to Jones‘s

home was in fact Maria R. The victim testified that she went to the home with 

some ―church people‖ she met, that ―some church lady‖ went to the house, but that 

she (Maria) stayed in the car. Jones did not contradict this testimony, admitting 

that she did not recognize Maria R. when she testified at trial, and that she knew 

her from somewhere but could not say where. Jones testified that ―maybe‖ the 

woman was Maria R. Defense counsel acknowledged that Jones did not identify 

Maria R. when shown her photograph, and that the preacher could not be located 

for corroboration. Under the circumstances, the trial court did not abuse its broad 

discretion by excluding the evidence because defendant failed to present evidence 

that, if believed by the jury, would have shown it was Maria R. who came to speak 

to defendant at Jones‘s home. 

Defendant further argues the evidence of the alleged apology for a false 

accusation was admissible because the unidentified ―church people‖ were acting 

as a Maria R.‘s agents. This claim fails because no evidence establishes such 

agency. Maria R. testified she told the ―church people‖ that she was afraid 
72

defendant would hurt her again, so one may infer they went to warn defendant not 

to do so. Maria R. never said she asked them to apologize for a false accusation. 

Indeed, she disclaimed any knowledge of what these people told Jones and 

defendant until they returned and related to her what they said. 

There being no abuse of discretion in excluding the evidence under 

Evidence Code section 1235, we also reject defendant‘s additional claim that the 

trial court‘s ruling deprived him of his federal constitutional right to present a 

defense. (See, e.g., Crane v. Kentucky (1986) 476 U.S. 683.) As we have 

explained, the routine application of provisions of the state Evidence Code law 

does not implicate a criminal defendant‘s constitutional rights. (People v. Mills, 

supra, 48 Cal.4th at p. 194.) Instead, because the trial court merely excluded some 

evidence that could have impeached a complaining witness and did not preclude 

defendant from presenting a defense, any error would be one of state evidentiary 

law only. (People v. McNeal (2009) 46 Cal.4th 1183, 1203.) 

5. Admission of Expert Fingerprint Evidence

Defendant next argues the trial court erred by permitting an expert to testify 

that she used a vacuum metal deposition device in Ottawa, Canada, assisted by the 

Royal Canadian Mounted Police, to discover and preserve fingerprints on the 

plastic garbage bags in which JoAnn Sweets‘s body was found. After a hearing, 

the trial court overruled defendant‘s objection for lack of foundation and admitted 

the evidence. As we explain, the trial court did not abuse its discretion.

Dianne Donnelly testified that at the time of defendant‘s trial, she worked 

for the San Diego Police Department as a latent fingerprint examiner. She was 

asked in 1992 to determine if there were any identifiable fingerprints on the plastic 

trash bags in which police found JoAnn Sweets‘s body. Although Sweets‘s body 

was found in 1986, the plastic bags had not yet been processed for prints. 
73

Donnelly testified she carefully transported the bags to Ottawa, Canada, because it 

was determined that the best way to process old fingerprints on plastic bags was 

by the vacuum metal deposition method and the United States did not have the 

machinery necessary to conduct the procedure. ―The Royal Canadian Police 

generously assisted us in allowing me to come up and learn about this method and 

to try to obtain prints from these bags.‖ When Donnelly began describing the 

process, defense counsel objected on the ground that the witness was testifying 

―outside of her expertise.‖ After discussing the matter at sidebar, the trial court 

provisionally overruled the defense objections, provided the prosecutor would lay 

a proper foundation ―as to what training she had . . . in this machinery.‖18 It was 

acknowledged the evidence would be subject to a continuing objection by the 

defense.

Donnelly admitted she was not familiar with the vacuum metal deposition 

process ―since we don‘t have a chamber here in San Diego or in the U.S.,‖ but that 

she learned the process from two Canadians when she arrived there. Once in 

Canada, she familiarized herself with the process, doing ―several trial runs‖ so that 

she could ―observe it and learn the process.‖ She had done a lot of background 

reading about the process before going to Canada and later wrote and presented a 

 

18 The trial court told the parties: ―I think that [Donnelly] should talk about 

the kinds of literature that she read about it, go a little more deeply into exactly 

what it was that she read, what she observed, the whole process, how the thing was 

preserved when she went up [to Canada].‖ Later, it opined: ―Here‘s what I

require. The foundation—the objection is foundation, and it seems to me that the

foundation is lacking and the thoroughness with which she is describing her 

knowledge of the machinery and how it works exactly and exactly how the bags 

were treated while they were in her custody and what was done with them. [¶] So 

those are the two areas I ask you to cover is all. I think that that will do it. And 

other issues might require other witnesses.‖ 
74

paper to the California division of the International Association for Identification 

on her experiences using the Canadian device.

Donnelly then testified to the condition of the plastic bags and the 

precautions she took to preserve them from contamination or alteration. She said 

the process was first developed in the United Kingdom in 1976, but technicians in 

other countries, such as Canada, also use it. As to why her office chose that 

method, she explained that ―[v]acuum metal deposition‘s strength[] is in the

detection of older prints, which in this case is what we had. We knew that the 

print had to be at least six years old. From the time of the occurrence of the death 

to the time that I came in custody of these bags there was a six year difference, and 

this—the strength of vacuum metal is also on these polyethylene type bags. [¶] It 

can‘t be used—this type of process on every type of evidence. This is its strength: 

plastic bags and on older prints. That‘s why we chose it.‖ 

The process, which she personally observed, involved placing the bag in a 

chamber and subjecting it to vaporized zinc and gold. Those metals are absorbed 

by the fats and lipids in any existing prints on the bag and settle into the valleys 

between the ridges of the print. The process does not add fingerprints not already 

present on the tested material, nor remove or alter prints already deposited.19 

Fingerprints made visible by the process are then photographed to preserve them 

and are compared to fingerprints on file. Donnelly matched the fingerprints found

on the bag to those of defendant on file with the San Diego police.

 

19 As the trial court commented: ―Nobody would even think in their wildest

imagination that if you put something into a machine that it‘s going to put prints 

on it. So you probably don‘t have to know what the intricacies are of what 

happens inside the machine. The questions are whether it goes in and comes out

with something showing.‖
75

On cross-examination, Donnelly testified that she did not attempt to process 

the bags before going to Canada and was not aware that anyone else had either. 

Had someone done so, the bags would have been contaminated and the vacuum 

metal deposition process would not have worked. Had the bags not been so old, 

she would have processed them in a cyanoacrelate fuming chamber using 

superglue fumes, stained them with a florescent dye and then used a laser to 

examine the florescence. Asked whether she was ―aware of how the process 

actually worked,‖ she replied, ―[n]ot all the functions of the machine, no. I was

just aware of how the latent print reaction would work, that general process. As 

far as how all the machinery works, I really don‘t care. As long as it develops the 

latent prints on my evidence, that‘s what I care about.‖ Asked whether she made 

―any kind of investigation regarding whether the machine was working properly,‖ 

she said she did ―only what [the Canadian authorities] did. I mean, the system is 

very idiot proof, if I can use that term. It will stop a procedure or it won‘t let you 

continue if there is something wrong.‖

In further describing the process, Donnelly said the reason they had to do so 

many applications—14 in all—was because the bag was so large, and the zinc and 

gold evaporation dishes would only work on a small area. She revealed that the 

fingerprints she found were all on the outside of the bag.

As noted, ante, part I.C.3.c., a trial court has broad discretion to find a 

proposed witness qualifies as an expert under Evidence Code section 720 and that 

decision will not be disturbed on appeal absent a showing of manifest abuse of that 

discretion. (People v. Castaneda, supra, 51 Cal.4th at p. 1336.) Defendant cites 

People v. Williams (2002) 28 Cal.4th 408, 412, and Davenport v. Department of 

Motor Vehicles (1992) 6 Cal.App.4th 133, 140, to argue the prosecution failed to 

establish a foundation for Donnelly‘s testimony by showing that ―(1) the testing 

device was in proper working order, (2) the test was properly administered, and 
76

(3) the operator was competent and qualified.‖ (Williams, at p. 412.) Respondent 

counterargues that those cases ―and the three-step test are inapposite because they 

specifically involve blood-alcohol testing devices (Davenport) and preliminary 

alcohol screening (PAS) testing devices requiring compliance with Title 17 of the 

California Code of Regulations (Williams).‖ Respondent further argues that no 

authority exists applying this three-step analysis to fingerprint analysis.

We need not resolve the point because the record demonstrates the trial 

court did not abuse its broad discretion. Although Donnelly arguably did not 

demonstrate she was a renowned expert in the workings of the vacuum metal 

deposition device, she expressed sufficient expertise—reading ―books from 

different authors‖ about the process, being trained by Canadian law enforcement 

officials, undertaking several trial runs—to adequately support the trial court‘s 

conclusion that she demonstrated ―special knowledge, skill, experience, training, 

or education sufficient to qualify [her] as an expert on the subject to which [her] 

testimony relates.‖ (Evid. Code, § 720.) 

There being sufficient evidence to conclude the trial court did not abuse its 

broad discretion in finding Donnelly‘s testimony was not outside of her expertise 

within the meaning of Evidence Code section 720, questions about the depth or 

scope of her knowledge or experience go to the weight, not the admissibility, of 

her testimony. (People v. Eubanks, supra, 53 Cal.4th at p. 140.)

8. Alleged Insufficient Evidence

Defendant contends the evidence underlying his murder convictions and the 

sodomy-murder special-circumstance allegations was insufficient, requiring we 

reverse those convictions and findings and vacate the imposition of the death 

penalty. ―The law is clear and well settled.  ̳On appeal we review the whole 

record in the light most favorable to the judgment to determine whether it 
77

discloses substantial evidence—that is, evidence that is reasonable, credible, and 

of solid value—from which a reasonable trier of fact could find the defendant 

guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578; 

see also Jackson v. Virginia (1979) 443 U.S. 307, 317-320.)‘ ‖ (People v. Abilez

(2007) 41 Cal.4th 472, 504.)

As defendant emphasizes, little or no direct evidence connects him to some 

of the crimes; the prosecution instead relied on circumstantial evidence. But 

―  ̳[t]he standard of review is the same in cases in which the People rely mainly on 

circumstantial evidence. (People v. Bean (1988) 46 Cal.3d 919, 932.) ―Although 

it is the duty of the jury to acquit a defendant if it finds that circumstantial 

evidence is susceptible of two interpretations, one of which suggests guilt and the 

other innocence [citations], it is the jury, not the appellate court which must be 

convinced of the defendant‘s guilt beyond a reasonable doubt.  ̳ ―If the 

circumstances reasonably justify the trier of fact‘s findings, the opinion of the 

reviewing court that the circumstances might also reasonably be reconciled with a 

contrary finding does not warrant a reversal of the judgment.‖ ‘ [Citations.]‖ 

[Citation.] ―  ̳Circumstantial evidence may be sufficient to connect a defendant 

with the crime and to prove his guilt beyond a reasonable doubt.‘ ‖ ‘ [Citation.]‖ 

(People v. Abilez, supra, 41 Cal.4th at p. 504.)

a. JoAnn Sweets 

Ample evidence supports defendant‘s conviction for murdering JoAnn 

Sweets. Her partially nude body was found in a dumpster on May 9, 1986, placing 

the crime within the timeframe in which someone was preying on AfricanAmerican women—often prostitutes, but also other poor denizens of the street, 

such as homeless women and drug addicts—in and around El Cajon Boulevard in 
78

San Diego.20 The dumpster was just behind defendant‘s apartment on 51st street 

in San Diego. Like the other victims, Sweets had been beaten and manually 

strangled. Her body was partially wrapped in a bed sheet and covered with a 

colorful, homemade afghan blanket, placed in plastic garbage bags that were taped 

shut with masking tape, and deposited in a dumpster. Defendant‘s sister, L.A., 

admitted she ―might have‖ told police she was ―100 percent sure‖ her mother had 

crocheted the afghan, although she backtracked somewhat at trial. Using the 

vacuum metal deposition technique, police found defendant‘s fingerprints on the 

plastic garbage bags. Further forensic investigation found fibers on the victim‘s 

blouse that matched the carpet in defendant‘s apartment. Semen stains on the bed 

sheet were consistent with defendant‘s genetic profile, although a DNA analysis 

could not positively identify defendant as the donor to the exclusion of all others. 

Defendant suggests problems with this evidence: L.A.‘s hesitant and 

equivocal testimony about the afghan, alleged unreliability of the testing of the 

plastic bags for fingerprints, the possibility the carpet fibers were fairly common 

and not unique to defendant‘s apartment, failure to show the semen stains could 

have been only from defendant. The whole of the evidence nevertheless 

comprises solid and substantial circumstantial evidence which, when combined 

with the other evidence of similar crimes that occurred within the relevant 

timeframe, including three in which the victims survived and identified defendant 

as their assailant (Maria R., Bertha R., Karen M.), could have persuaded a 

reasonable jury beyond a reasonable doubt that defendant was guilty of murdering 

JoAnn Sweets on either a premeditation or a felony-murder theory. Significantly, 

although defendant presented evidence suggesting Ike Jones, Sweets‘s one-time 

 

20 The timeframe is relevant. See ante, page 27, footnote 6.
79

boyfriend, may have been the killer, genetic testing eliminated him as a donor of

the semen stain.

Defendant further argues the evidence was insufficient to sustain the special 

circumstance that he killed Sweets while committing the crime of forcible 

sodomy. A rectal swab taken from Sweets‘s body revealed the presence of sperm,

but not enough on which to conduct a DNA test. From this evidence, the manner 

of Sweets‘s violent murder, the location of her body, and the evidence of 

defendant‘s intent and modus operandi as shown by his similar crimes, the jury 

reasonably could have found defendant forcibly sodomized Sweets before killing 

her. 

b. Sophia Glover 

We also reject defendant‘s claim that insufficient evidence supported his 

conviction for the crimes against Sophia Glover. Although the evidence of 

defendant‘s guilt of murdering Glover was less than the evidence of Sweets‘s

murder (there being no fingerprints, blanket, or carpet fibers linking the body to 

defendant), Glover fit the profile of defendant‘s victims: she was an AfricanAmerican woman, she was likely a prostitute, she was killed during the 14-month

period defendant was known to be preying on such women, she had been beaten 

about the head, she died of manual strangulation, and her body was discarded like 

garbage in close proximity to a home defendant was known to use. An analysis of 

an anal swab found sperm consistent with defendant‘s genotype, which appeared 

in approximately 15 percent of the African-American population. 

Defendant challenges the force of this evidence, emphasizing the presence 

of another man‘s sperm in the swab sample. He also notes that although police 

found three hairs on the blanket in which Glover‘s body was wrapped, experts 

could not match them to him. Despite these circumstances, a reasonable jury 
80

considering all the evidence, including the evidence of other similar crimes that 

occurred within the relevant timeframe in three of which the victims survived and 

identified defendant (Maria R., Bertha R., Karen M.), could have found beyond a 

reasonable doubt that defendant was guilty of murdering Sophia Glover.

Defendant also argues insufficient evidence supported the special 

circumstance allegation that he killed Glover while engaged in the commission or 

attempted commission of a felony, i.e., forcible sodomy. Critically, a rectal swab 

from the victim revealed the presence of sperm consistent with defendant‘s 

genotype. Glover‘s clothes were found neatly folded in an alley near to where her

body was found, which was consistent with defendant‘s attacks on Maria R., 

Bertha R., and Karen M. He apparently convinced women to engage in 

consensual sex but turned suddenly violent, beating and strangling them and then 

forcing them to engage in additional sex acts. The jury could reasonably infer he 

committed a forcible sodomy from the presence of sperm, the DNA evidence

linking him to the victim, the manner of Glover‘s violent murder, the location of 

her body (she was found near the Wilsie home on Mississippi Street where 

defendant‘s mother worked), and the evidence of defendant‘s intent and modus 

operandi in committing similar crimes against several other victims within the 

same timeframe and general location. Because sufficient evidence supports the 

felony-murder special circumstance, the jury necessarily found defendant guilty of 

first degree murder on a felony-murder theory, so we need not address his further 

claim there was insufficient evidence of premeditation and deliberation.

c. Karen M.

Defendant contends insufficient evidence supports his conviction for the 

crimes involving Karen M. The victim testified that on October 20, 1986,

defendant drove up to her on the street in a blue/gray Datsun 280Z and solicited an 
81

act of prostitution. She agreed, and he took her to the Wilsie home on Mississippi 

Street. Once there, he began choking her and said he would kill her if she did not 

comply with his demands. She had with her a bottle of liquor, and he forced her to 

drink it before sexually assaulting her. She passed out due to the alcohol and was 

found later by Mrs. Wilsie‘s daughter-in-law, Marjorie Wilsie, who called police. 

Karen M. testified she told police she had been raped but they did not believe her. 

Karen M. admitted she was a prostitute and had several convictions for 

prostitution. She was hoping to obtain favorable treatment in another case by 

testifying against defendant but was unsuccessful in doing so. 

Noting her criminal history, her intoxication, and inconsistencies in her 

story, defendant contends Karen M. was ―inherently unreliable‖ and her testimony 

―lacked credibility.‖ But it is not for us to say on appeal whether she was worthy 

of the jury‘s belief. Nothing to which she testified was physically impossible or 

even implausible. ―If the verdict is supported by substantial evidence, we must 

accord due deference to the trier of fact and not substitute our evaluation of a 

witness‘s credibility for that of the fact finder.‖ (People v. Koontz (2002) 27 

Cal.4th 1041, 1078.) ―Resolution of conflicts and inconsistencies in the testimony 

is the exclusive province of the trier of fact. [Citation.] Moreover, unless the 

testimony is physically impossible or inherently improbable, testimony of a single 

witness is sufficient to support a conviction.‖ (People v. Young, supra, 34 Cal.4th 

at p. 1181.) As is standard, the jury was instructed: ―You should give the 

testimony of a single witness whatever weight you think it deserves. However, 

testimony by one witness, which you believe, concerning any fact is sufficient for 

the proof of that fact.‖ (See CALJIC No. 2.27.) We assume that because the 

jurors convicted defendant of the charges involving Karen M., they found her a 

credible witness. Accordingly, sufficient evidence supports the jury‘s verdict on 

those counts.
82

d. Motion for Acquittal (Section 1118.1)

Following the close of the prosecution‘s case-in-chief at the guilt phase, 

defendant moved for acquittal on count two, the murder charge involving Tara 

Simpson, claiming the prosecution had failed to present sufficient evidence of 

guilt. As counsel argued: ―[T]here is nothing which connects [defendant] to that 

murder at all but for where he lives; just the opportunity portion that I am sure 

the—they will argue. [¶] There was some acid phosphatase that [was] recovered, 

but there is nothing to indicate at all that those are—were either identified or 

anything of that nature.‖ The trial court denied the motion, saying: ―With respect 

to Tara Simpson, there is no question in the court‘s mind that this will pass muster 

under 1118.1.‖ Defendant now argues the trial court erred by denying the motion 

because no solid and reliable evidence tied him to the crime.

Section 1118.1 provides in pertinent part: ―In a case tried before a jury, the 

court on motion of the defendant or on its own motion, at the close of the evidence 

on either side and before the case is submitted to the jury for decision, shall order 

the entry of a judgment of acquittal of one or more of the offenses charged in the 

accusatory pleading if the evidence then before the court is insufficient to sustain a 

conviction of such offense or offenses on appeal.‖ As we explained in People v. 

Coffman and Marlow, supra, 34 Cal.4th 1, 89: ―The test applied by the trial court 

in ruling on a motion for acquittal is the same test applied by the appellate court in 

reviewing a conviction for sufficiency of the evidence, namely, to determine 

whether from the evidence then in the record, including reasonable inferences to 

be drawn therefrom, there is substantial evidence of the existence of every element 

of the offense charged.‖

At the threshold, it is unclear how the trial court‘s denial of defendant‘s 

motion of acquittal of Simpson‘s murder prejudiced defendant because the jury 

failed to convict him of that charge. Defendant suggests he was prejudiced 
83

because the trial court specifically allowed the jury to consider Simpson‘s murder 

as an aggravating circumstance under section 190.3, factor (b), which authorizes a 

capital jury to weigh ―[t]he presence or absence of criminal activity by the 

defendant which involved the use or attempted use of force or violence or the 

express or implied threat to use force or violence.‖ But the court also instructed 

the jury it must find defendant committed that act beyond a reasonable doubt (see 

People v. Avena (1996) 13 Cal.4th 394, 429-430), eliminating any unfairness, for 

we assume no jurors considered the facts of Simpson‘s murder unless they found 

those facts true beyond a reasonable doubt. 

Assuming without deciding that the trial court‘s denial of defendant‘s 

section 1118.1 motion could be prejudicial, we find the court did not err. 

Simpson‘s murder occurred during a timeframe in which African-American 

prostitutes or homeless women using El Cajon Boulevard in San Diego as a base 

were being sexually assaulted, beaten and strangled, often causing their death. 

None was shot with a gun. The victims were usually drug users. Simpson‘s body, 

like those of Glover, Sweets and Carpenter, was found discarded like garbage in 

close proximity to one of two residences defendant was known to use. DNA 

evidence linked defendant to some, but not all, of the victims. Three surviving 

victims largely fitting the pattern (Maria R., Bertha R., and Karen M.) identified 

defendant as their assailant. Accordingly, at the time the defense made its motion 

for acquittal, the evidence and the reasonable inferences the jury could have drawn 

from it comprised substantial evidence that defendant killed Simpson. (People v. 

Coffman and Marlow, supra, 34 Cal.4th at p. 89.)

Defendant also argues the trial court should have entered a judgment of 

acquittal on count three, which charged him with murdering Trina Carpenter. 

Although he moved for acquittal on count two (Tara Simpson), defendant did not 

include count three in his motion and thus forfeited the claim for appeal. (People 
84

v. Smith (1998) 64 Cal.App.4th 1458, 1464.) Were we to overlook defendant‘s 

omission and find the claim properly before us, and were we further to assume he 

could possibly have been prejudiced (for the jury hung on count three), we would 

reject his claim on the merits for the same reasons we stated with regard to the 

Tara Simpson murder; that is, sufficient evidence, along with inferences drawn 

from that evidence, supported the conclusion that defendant was responsible for 

killing Trina Carpenter due to the pattern of behavior and similarity of crimes, the 

interlocking circumstances among the various victims, the DNA evidence, and the 

eyewitness testimony from the surviving victims.

D. Assorted Instructional Claims

Defendant contends the trial court committed several errors when 

instructing the jury at the guilt phase. As we explain, post, none of these claims 

has merit.

1. First Degree Murder 

a. Omission of Malice Aforethought

When instructing the jury, the trial court declined to use either CALJIC No. 

8.10, the standard pattern instruction defining first degree murder, or CALJIC No. 

8.11, the standard instruction defining malice. Instead, the trial court chose to use 

its own restated modification of the standard instructions, explaining that ―my 

instruction, as you see, takes exactly this definition [from CALJIC No. 8.10] and it 

just substitutes  ̳the killing was intentional‘ as opposed to  ̳the killing was done 

with malice aforethought.‘ ‖ Defendant objected to the court‘s proposed 

instruction because it excised the definition of malice aforethought, but the court 

overruled his objection. The instruction the court eventually read to the jury failed 

to require it to find, as a condition of returning a verdict of first degree 

premeditated murder, that defendant acted with the intention unlawfully to take the 

victim‘s life. 
85

Defendant contends the failure to instruct specifically on malice 

aforethought as set forth in the standard CALJIC instructions requires reversal. 

We need not resolve this point because any instructional error was harmless. With 

regard to Sophia Glover, the jury was instructed that it could convict of first 

degree murder on either of two theories: premeditation and deliberation, or felony 

murder. The jury was also instructed on the sodomy-murder special-circumstance 

allegation and the jury sustained this allegation. This latter finding demonstrates

the jury necessarily found by a unanimous vote that defendant killed Glover while 

he was ―engaged in the commission or attempted commission of . . . sodomy, or 

that the murder was committed during the immediate flight after the commission 

or attempted commission of . . . sodomy by the defendant,‖ and that he intended to 

kill while doing so. This finding demonstrates the jury necessarily found beyond a 

reasonable doubt the facts supporting first degree murder on a felony-murder 

theory for Glover. Thus, even assuming for argument the malice instructions were 

faulty, any error was necessarily harmless under any standard.

People v. Boyd (1985) 38 Cal.3d 762 is illustrative. In Boyd, the defendant 

argued the trial court erred by instructing the jury on premeditation because the

evidence was insufficient to support that theory. We found any instructional error 

did not require reversal because ―the jury [that] found defendant guilty of first 

degree murder simultaneously returned a verdict finding as a special circumstance 

that defendant committed that murder during the commission of an attempted 

robbery. It also found defendant guilty of the crime of attempted robbery. Those 

findings make it clear that whatever the jurors thought about premeditation, they 

agreed upon all of the elements necessary for a verdict of first degree murder 

based on a felony-murder theory.‖ (Id., at p. 770, italics added.) Here, as in Boyd, 

―we can conclude that, at the very least, the jury reached its verdict of first degree 

murder [as related to Sophia Glover] under one legally proper theory. Under such 
86

circumstances, there is no miscarriage of justice under article VI, section 13 of the 

state Constitution and reversal is not required.‖ (People v. Sanders (1990) 51 

Cal.3d 471, 510.) For the same reasons, no federal constitutional error occurred 

because any instructional error with regard to Glover would be harmless beyond a 

reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) 

For the crimes committed against JoAnn Sweets, a slightly different 

analytical path applies but it leads to the same destination. Although it did not do 

so for the murder charge involving Glover, for the Sweets murder charge the trial 

court instructed the jury ―to consider only one theory of first degree murder, to 

wit: deliberate and premeditated murder.‖ Because the jury was not given the 

option of convicting defendant of first degree felony murder for the Sweets 

murder, we cannot rely on the special circumstance findings to conclude the jury 

necessarily sustained all the elements of that theory of first degree murder. But 

any instructional error was rendered harmless by the jury‘s unanimous decision to 

sustain the sodomy-murder special-circumstance allegation for Sweets‘s murder. 

In doing so, the jury necessarily found, per the jury instructions, that defendant 

―intended to kill and killed to carry out or advance the rape or sodomy or to

facilitate the escape therefrom or to avoid detection.‖ Thus, the jury found 

defendant unlawfully killed her while harboring the intent to kill. That is what 

CALJIC No. 8.11 would have required the jury to find in any event. (CALJIC No. 

8.11 [―Malice [aforethought] is express when there is manifested an intention 

unlawfully to kill a human being.‖].) Any error is thus harmless under both the 

state and federal Constitutions.

b. Alleged Inapplicability of Premeditation and Felony-murder 

Defendant next contends we must reverse his two murder convictions 

because the language in the information was inadequate to charge him with first 
87

degree murder under a theory of either premeditation and deliberation or felony 

murder. Because the charging language was inadequate, he claims, the trial court 

lacked jurisdiction to try him for murder in the first degree. He also argues his 

trial for first degree murder violated his constitutional right to due process and to a 

fair trial and reliable penalty determination under our state and federal 

Constitutions. As we explain, the legal basis of his contention is flawed.

Count four of the information charged defendant as follows: ―On or about 

May 9, 1986, BRYAN MAURICE JONES did willfully, unlawfully murder 

JOANN SWEETS, a human being, in violation of PENAL CODE SECTION 

187(a).‖ The language in count five (Sophia Glover) was the same except for the 

date. Following the presentation of evidence, the jury was instructed on first 

degree murder and told to consider only one theory—premeditation and 

deliberation—for count four (JoAnn Sweets), but that it could consider both 

premeditation and deliberation and felony murder (rape) for count five (Sophia 

Glover). With regard to both Sweets and Glover, the court also instructed the jury 

on the sodomy-murder special circumstance, i.e., whether those two killings were 

committed during the commission or attempted commission of a forcible sodomy. 

The jury returned first degree murder verdicts on both counts and sustained the

special circumstance as to both Sweets and Glover. 

Defendant first contends the information‘s failure to include any mention of 

willfulness, premeditation or deliberation means he was charged with second 

degree murder only. But ―it has long been the law in this state that an accusatory 

pleading charging murder need not specify degree or the manner in which the 

murder was committed. . . . Neither is it necessary to specifically plead the 

charged murder was wilful, deliberate, and premeditated. [Citation.] So long as 

the information adequately alleges murder, the evidence adduced at the 

preliminary hearing will adequately inform the defendant of the prosecution‘s 
88

theory regarding the manner and degree of killing.‖ (People v. Thomas (1987) 43 

Cal.3d 818, 829, fn. 5.)

To the extent defendant argues the information was faulty for mentioning 

section 187 and not section 189, we disagree. ―[A] valid accusatory pleading need 

not specify by number the statute under which the accused is being charged. 

[Citations.] Section 952, which governs how an offense should be stated in an 

accusatory pleading, merely provides in pertinent part that  ̳[i]n charging an 

offense, each count shall contain, and shall be sufficient if it contains in substance, 

a statement that the accused has committed some public offense therein specified. 

Such statement may be made in ordinary and concise language without any 

technical averments or any allegations of matter not essential to be proved. It may 

be in the words of the enactment describing the offense or declaring the matter to 

be a public offense, or in any words sufficient to give the accused notice of the 

offense of which he is accused.‘ ‖ (People v. Thomas, supra, 43 Cal.3d at p. 826.)

Defendant also argues the information, by referencing section 187 but not 

section 189, failed to adequately charge first degree murder on a felony murder 

theory. Although he concedes People v. Witt (1915) 170 Cal. 104 held that ―it is 

sufficient to charge the offense of murder in the language of the statute defining 

it,‖ and that such charging language ―includes both degrees of murder‖ (id., at 

pp. 107-108), he argues Witt‘s rationale has been ―completely undermined‖ by this 

court‘s reasoning in People v. Dillon (1983) 34 Cal.3d 441, that section 189 is the 

―statutory enactment of the first degree felony-murder rule in California.‖ (Dillon, 

supra, at p. 472.) But as defendant concedes, ―subsequent to Dillon, supra, 34 

Cal.3d 441, we have reaffirmed the rule of People v. Witt, supra, 170 Cal. 104, 

that an accusatory pleading charging a defendant with murder need not specify the 

theory of murder upon which the prosecution intends to rely. Thus we implicitly 

have rejected the argument that felony murder and murder with malice are 
89

separate crimes that must be pleaded separately.‖ (People v. Hughes (2002) 27 

Cal.4th 287, 369.) Although defendant further contends that Hughes ―never 

explained how the reasoning of Witt can be squared with the holding of Dillon,‖ 

he is mistaken, for we explained that ―  ̳generally the accused will receive 

adequate notice of the prosecution‘s theory of the case from the testimony 

presented at the preliminary hearing or at the indictment proceedings.‘ ‖ (Hughes, 

supra, at pp. 369-370.) We reject his further argument that we should reexamine 

our precedents because he presents no persuasive reason to do so.

2. Consideration of Other Crimes Evidence

Defendant argues the instruction addressed to the jury‘s consideration of 

other charged crimes requires reversal because it was ―awkward,‖ ―hopelessly 

confusing‖ and ―deeply flawed,‖ largely because of the many victims and the 

interlocking nature of the evidence. We reject the argument. The instruction was 

essentially consistent with CALJIC No. 2.50, and, contrary to defendant‘s 

argument, it was not erroneous for failing to mention the prosecution‘s burden of 

proof. Nor was the instruction flawed for failing to guide the jury on how to use 

evidence of the other charged crimes to prove intent and motive. In addition to 

giving the basic instruction, the court instructed the jury that ―[y]ou may also 

consider other counts‘ evidence together with the count under consideration to 

determine whether there existed in the mind of the perpetrator an intent which is a 

necessary element of the count under consideration, or a relevant motive. You 

should consider whether any intent or motive is the same, different, or absent in 

some or all of the offenses considered.‖ Due to the similarity of the other charged 

crimes and the Sweets and Glover crimes, the jury, considering the instructions as 

a whole, would have understood how to weigh the former crimes in proving 

motive and intent in the latter crimes. To the extent the instruction was 
90

incomplete, defendant may not be now heard to complain because he did not 

request clarifying language. ―A party may not complain on appeal that an 

instruction correct in law and responsive to the evidence was too general or 

incomplete unless the party has requested appropriate clarifying or amplifying 

language.‖ (People v. Andrews (1989) 49 Cal.3d 200, 218, quoted with approval 

in People v. Hart (1999) 20 Cal.4th 546, 622.)

Defendant also complains about the further instruction that ―[i]f you should 

find a unique or highly distinctive method, plan, or scheme shared among other 

counts and the count under consideration, such that an inference of a single 

perpetrator for all offenses may be drawn, then you should consider whether it 

may be logically concluded that if the defendant committed one or more of the 

other crimes, he also committed the crime under consideration. Or, conversely, if 

he did not commit one or more of the other crimes, then it may be logically 

concluded that he did not commit the crime under consideration.‖ This instruction 

was erroneous, he contends, because, as we stated in People v. Ewoldt, supra, 7 

Cal.4th at page 394, ―[e]vidence of a common design or plan, therefore, is not 

used to prove the defendant‘s intent or identity but rather to prove that the 

defendant engaged in the conduct alleged to constitute the charged offense.‖ That 

he reads Ewoldt out of context is clear, for we go on in that case to explain: 

―Evidence of identity is admissible where it is conceded or assumed that the 

charged offense was committed by someone, in order to prove that the defendant 

was the perpetrator.‖ (Id., at p. 394, fn. 2.) There having been evidence Sweets 

and Glover were sexually assaulted and murdered, the jury could consider 

evidence of other crimes demonstrating the existence of a common plan or 

scheme, such as defendant‘s crimes against Maria R. and Karen M., and the trial 

court did not err in so instructing.
91

Defendant next argues the jury instructions impermissibly allowed the jury 

to aggregate the evidence, finding him guilty of just one crime and then parlaying 

that finding to find him guilty of the remaining crimes without consideration of 

any other evidence. ―For example, the instruction meant that if the jury found that 

[he] attempted the murder of Maria [R.] or Karen [M.], it could logically conclude 

from this finding alone that [he] committed the first degree murders of Sophia 

Glover and JoAnn Sweets.‖ We disagree, for the court specifically instructed the 

jury on the need to find beyond a reasonable doubt that defendant had committed 

each individual crime. The jury showed it understood this instruction by its 

inability to reach a verdict on the Tara Simpson and Trina Carpenter counts.21

Finally, we reject defendant‘s contention that the jury instructions ―would 

have permitted the jury to find [he] committed a murder based on evidence short 

of proof beyond a reasonable doubt.‖ Because the jury was also instructed that 

―[e]ach fact which is essential to complete a set of circumstances necessary to 

establish the defendant‘s guilt or a special circumstance must be proved beyond a 

reasonable doubt,‖ we are confident the jury applied the reasonable doubt standard 

before returning a guilty verdict.

3. CALJIC. No. 2.03 (Consciousness of Guilt) 

The trial court instructed the jury with CALJIC No. 2.03, the standard 

instruction informing the jury it may infer a consciousness of guilt from 

 

21 Defendant further argues that the ―jurors who did not vote guilty on the 

Carpenter and Simpson murder counts could have used those counts to determine 

identity in the Glover and Sweets [charges] without first finding that the 

prosecution had proved the Carpenter and Simpson counts by a preponderance of 

the evidence.‖ That any jurors did so, however, is mere speculation. To the extent 

the instruction, which was otherwise correct, was vague, defendant cannot now 

complain as he did not ask the court to modify the instruction. (People v. 

Holloway (2004) 33 Cal.4th 96, 154.)
92

defendant‘s willfully false or misleading statements. Defendant contends this 

instruction was duplicative, argumentative, ―unfairly partisan,‖ and permitted the 

jury to draw unwarranted or even irrational inferences about his state of mind. He 

also contends these alleged state-law violations transgressed several of his state 

and federal constitutional rights. Assuming without deciding defendant preserved 

this issue for appellate review, we conclude the claim lacks merit. We have 

rejected defendant‘s exact claims many times (see, e.g., People v. Moore, supra, 

51 Cal.4th at pp. 413-414), as defendant concedes. Although he urges this court to 

reconsider these past decisions, arguing they are based on the mistaken analysis 

first set forth in People v. Crandell (1988) 46 Cal.3d 833, we have rejected that 

precise claim as well. (People v. Page (2008) 44 Cal.4th 1, 51.) We thus have no 

reason to disavow Crandell‘s assessment that a reasonable juror instructed with 

CALJIC No. 2.03 ―would understand  ̳consciousness of guilt‘ to mean 

 ̳consciousness of some wrongdoing‘ rather than  ̳consciousness of having 

committed the specific offense charged.‘ ‖ (Crandell, at p. 871.) As defendant 

fails to persuade us that a reexamination of these precedents is warranted, we 

reject his state law and constitutional claims of error.

4. CALJIC No. 2.51 (Motive)

Defendant argues the standard jury instruction on motive, CALJIC No. 

2.51, which states that motive is not an element of the crime but is a circumstance 

the jury can consider, violated his state and federal constitutional rights by 

allowing the jury to determine his guilt based on proof of motive alone, by 

improperly lightening the prosecution‘s burden of proof, and by shifting the 

burden of proof such that defendant was required to prove his innocence. We 

have many times rejected these exact claims (see, e.g., People v. Whalen (2013) 56

Cal.4th 1, 71; People v. Kelly (2007) 42 Cal.4th 763, 792), and we find no reason 

to reexamine those prior decisions. 
93

5. Reasonable Doubt

Defendant argues various instructions addressing the concept of reasonable 

doubt (CALJIC Nos. 2.90, 2.01, 2.02, 8.83, 8.83.1) violated his state and federal 

constitutional rights to due process, trial by jury, and a reliable penalty 

determination, both by (a) allowing the jury to convict him ―using a standard [of 

proof] lower than proof beyond a reasonable doubt‖ by stating the jury ―must‖ 

draw an incriminatory inference if it appeared reasonable, and by (b) creating an 

impermissible mandatory presumption ―that required the jury to accept any 

reasonable incriminatory interpretation of the circumstantial evidence.‖ 

We reject the argument. As we have explained: ―Examination of the full 

instructions shows defendant‘s concern to be groundless. Two of the instructions 

defendant complains of (CALJIC Nos. 2.01, 8.83) explicitly told the jury that 

every fact necessary to circumstantial proof of an offense or a special 

circumstance must be shown beyond a reasonable doubt. All the instructions 

complained of explicitly told the jury that if two possible inferences, both 

reasonable, could be drawn from the circumstantial evidence, the jury was 

required to reject the inference pointing to guilt or the presence of a required 

mental state and accept only the inference pointing to innocence or the lack of a 

required mental state. The instructions told the jurors they must accept a 

reasonable inference pointing to guilt only where any other inference that could be 

drawn from the evidence was unreasonable. That direction is entirely consistent 

with the rule of proof beyond a reasonable doubt, because an unreasonable

inference pointing to innocence is, by definition, not grounds for a reasonable

doubt. The circumstantial evidence instructions are thus correct.‖ (People v. 

Brasure (2008) 42 Cal.4th 1037, 1058.)

Defendant further argues seven other jury instructions (CALJIC Nos. 1.00, 

2.21.1, 2.21.2, 2.22, 2.27, 2.51, and 2.52) ―individually and collectively diluted the 
94

constitutionally mandated reasonable doubt standard.‖ According to defendant, 

―[e]ach of these instructions, in one way or another, urged the jury to decide 

material issues by determining which side had presented relatively stronger 

evidence,‖ thereby reducing the prosecution‘s high burden of proof beyond a 

reasonable doubt. As defendant concedes, we have previously rejected these 

claims in other cases, but he argues this court should reexamine our prior 

precedents because they are ―fundamentally flawed,‖ in that prior cases have 

relied on the plain meaning of an instruction‘s language rather than considered 

how a reasonable juror would have applied the instruction. (Estelle v. McGuire

(1991) 502 U.S. 62, 72 [―in reviewing an ambiguous instruction . . . , we inquire 

 ̳whether there is a reasonable likelihood that the jury has applied the challenged 

instruction in a way‘ that violates the Constitution‖]; People v. Lewis (2009) 46 

Cal.4th 1255, 1298 [same].) 

Defendant‘s argument is untenable. For example, we explained in People 

v. Jennings (1991) 53 Cal.3d 334, 386, that ―[t]he plain meaning of these 

instructions merely informs the jury to reject unreasonable interpretations of the 

evidence and to give the defendant the benefit of any reasonable doubt. No 

reasonable juror would have interpreted these instructions to permit a criminal 

conviction where the evidence shows defendant was  ̳apparently‘ guilty, yet not 

guilty beyond a reasonable doubt.‖ (Italics added.) Accordingly, we conclude, 

consistent with past authority (People v. Watkins (2012) 55 Cal.4th 999, 1030), 

that none of the identified pattern jury instructions violated defendant‘s 

constitutional rights.

6. Unanimity

The jury was instructed on two theories of first degree murder: 

premeditated murder and felony murder. Defendant argues the trial court erred by 

instructing the jury that it need not conclude either theory was true by a unanimous 
95

vote, so long as it was unanimous in concluding defendant was guilty of first 

degree murder on some theory.

22 Again claiming that malice murder and felony 

murder are different crimes with different elements, he argues the trial court‘s 

failure to require the jury unanimously to support a single theory of first degree 

murder is structural error requiring reversal. 

We have rejected this precise claim in previous cases (People v. McKinzie

(2012) 54 Cal.4th 1302, 1354; People v. Benavides (2005) 35 Cal.4th 69, 100-

101), and defendant presents no persuasive reason to reexamine our precedents. 

We thus reject the claim.

II. PENALTY PHASE

A. Facts

1. Aggravation

The prosecution called four witnesses who presented aggravating evidence. 

The first, defendant‘s sister L.A., testified that when defendant was 11 or 12 years 

old, he several times forced her to have sex against her will. 

Tracy Davison testified that she met defendant when they both attended the 

Job Corps in San Diego. She was 15 years old and he was 17, and she eventually 

became pregnant by him. She thereafter lived with him and his mother on 51st 

Street for three years but never married him. Once, when he was jealous, he 

placed both his hands on her neck and choked her until she passed out. She left 

him and eventually married another man. She related an incident that occurred on 

October 1, 1985, which was about one month after police found Tara Simpson‘s 

 

22 The jury was instructed: ―A finding of guilt of first degree murder in 

counts three and five may be based upon either one or both of the proposed 

theories. The jury does not have to agree unanimously as to which theory has 

been proved, but all twelve jurors must be convinced beyond a reasonable doubt 

that defendant is guilty under one or the other, or both theories.‖ 
96

burned body, in which her then husband, David Entzminger, and defendant got 

into a fight. Defendant picked Entzminger up by the neck and threw him against a 

van. Davison estimated her husband was five feet seven inches tall and weighed 

130 or 140 pounds. By contrast, she estimated defendant was six feet six inches 

tall and weighed about 300 pounds. Her husband later obtained a restraining order 

against defendant. On another occasion, defendant assaulted Davison and chipped 

her tooth. She admitted she worked as a prostitute. 

Sometime between September 1985 and July 1986, Davison saw defendant 

with a prostitute near the 51st Street apartment. He told the woman in a ―[v]ery 

hostile and aggressive‖ voice: ―Bitch, get my money.‖ She identified the 

prostitute as murder victim Trina Carpenter. 

Aida L. testified she worked as a prostitute in San Diego in 1986 and 

admitted she had a prior felony conviction for theft. She was also addicted to 

heroin at the time. On February 13, 1986, two days after police found Trina 

Carpenter‘s body in a dumpster, the witness testified she was walking alone late at 

night on El Cajon Boulevard when defendant attacked her. He grabbed her arm, 

took her down an alley and into an underground parking lot, and forced her to 

orally copulate him. He then raped her, and after he was finished he grabbed her 

neck and choked her. He told her: ―  ̳You better not say anything. You better not 

scream. You better not tell the police or I am going to kill you.‘ ‖ She reported 

the crime but police did not believe her.

Bertha R. testified to the effect of her victimization by defendant. She said 

that after defendant sexually assaulted her, she starting drinking heavily and 

abusing cocaine and crystal methamphetamine. Her boyfriend showed little 

compassion towards her and began treating her differently. When she told him she 

did not want to have sex, he cruelly replied that she deserved to be raped. She 

began secluding herself in her room to drink, and she sent her son to her sister‘s 
97

home ―so I wouldn‘t have to be bothered with him.‖ She lost her job and began 

working the streets as a prostitute to make money for alcohol and drugs. Although 

she had been seeing a therapist, she stopped therapy because she ―was too 

ashamed of what I was doing.‖ At the time of trial, more than seven years after 

defendant assaulted her, she had turned her life around and was again employed 

and no longer abused alcohol and drugs, although her son was now living ―on the 

streets.‖ 

2. Mitigation

Defendant presented several witnesses who testified as to his character and 

background. His mother, Ann Jones, related defendant‘s upbringing near Barstow

and how he did not do well in school and spent two weeks in juvenile hall after 

being caught burglarizing homes when he was 13 years old. When her husband 

returned from Okinawa after a tour of duty with the Marines, family life changed. 

Her husband was a changed man, suspicious of everything she did. Once, when 

she refused to give him any money, he tried to kill her by choking her until 

defendant intervened. Her husband also beat her daughter, L.A., and once broke 

defendant‘s arm. When her husband gambled away their savings, she sold the 

house and moved to San Diego. Jones was unaware of defendant‘s arrests or that 

he had been convicted of crimes against Bertha R. She believed him when he told 

her he had been falsely accused and did not believe defendant ever molested his 

sister because he denied it.

Tracy Davison‘s older sister, Linda Tate, testified defendant was a good 

father. His son, now being raised by Jones, testified that he loved his father, who 

encourages him by phone and in letters to do well in school and practice sports 

and music. He would feel ―horrible‖ and ―really sad‖ if his father was not around 

to speak with him. 
98

People who knew defendant in the Job Corps testified he did well in that 

structured environment, posed no behavioral problems, and in fact helped to 

defuse problems. He completed the welding program and was considered a good 

welder with marketable skills. People who knew defendant in county jail and in 

prison testified to his positive qualities and diligence in work programs.

B. Issues

1. Victim Impact Evidence

Defendant raises several arguments against the admission of Bertha R.‘s 

penalty phase testimony, but none has merit. Although defendant‘s crimes against 

Bertha R. were committed at a time when victim impact evidence was 

inadmissible (Booth v. Maryland (1987) 482 U.S. 496), the law had changed by 

the time he was tried in 1994 (Payne v. Tennessee (1991) 501 U.S. 808). 

Defendant contends application of Payne to his case violates the ex post facto 

clauses of both the state and federal Constitutions and is unconstitutionally vague. 

We disagree. ―We have rejected claims that section 190.3, factor (a), is 

unconstitutionally vague insofar as it permits introduction of victim impact 

evidence as a circumstance of the crime [citations], and that use of victim impact 

evidence in trials for capital crimes committed before the United States Supreme 

Court‘s decision in Payne v. Tennessee, supra, 501 U.S. 808, violates federal 

constitutional principles of ex post facto and due process [citation]. Defendant 

does not persuade us to reconsider these decisions.‖ (People v. Jurado (2006) 38 

Cal.4th 72, 132.) We have reached the same result concerning the state 

constitutional claim. (People v. Hamilton (2009) 45 Cal.4th 863, 926.)

Defendant also contends the trial court erred by overruling his objection to 

the admission of Bertha R.‘s testimony on grounds it was not related to the 

circumstances of the capital crimes. We reject the argument, for the evidence of 
99

prior violent acts admitted under section 190.3, factor (b), may include the effect 

of noncapital crimes on the surviving victim. ―At the penalty phase, the 

prosecution may introduce evidence of the emotional effect of defendant‘s prior 

violent criminal acts on the victims of those acts.‖ (People v. Price (1991) 1 

Cal.4th 324, 479.) ―The foreseeable effects of defendant‘s prior violent sexual 

assaults upon the victims — ongoing pain, depression, and fear — were thus 

admissible as circumstances of the prior crimes bearing on defendant‘s 

culpability.‖ (People v. Mickle (1991) 54 Cal.3d 140, 187.) We recently cited 

Mickle with approval and declined an opportunity to reconsider it. (People v. 

Jones (2012) 54 Cal.4th 1, 73; see People v. Demetrulias (2006) 39 Cal.4th 1, 39.)

Defendant next contends that even if some of Bertha R.‘s evidence was 

admissible as victim impact evidence, it was much too extensive to withstand 

constitutional scrutiny. Even assuming he preserved this issue, it lacks merit, for 

the trial court acted well within its discretion in admitting the evidence, which was 

extremely brief, comprising but seven pages in the trial transcript.

Defendant next contends the prosecutor ―exceeded the boundaries of 

permissible victim impact argument to the jury in commenting on victims not 

directly related to JoAnn Sweets and Sophia Glover.‖ Defendant did not object to 

this argument and thus forfeited the issue for appeal. (People v. Brown (2004) 33 

Cal.4th 382, 398-399.) In any event, it was permissible to reference Bertha R.‘s 

penalty phase testimony in closing argument. (People v. Gamache (2010) 48 

Cal.4th 347, 390 [prosecutor has wide latitude in closing argument].)

2. Incest Evidence 

Defendant argues the trial court erred by permitting his sister, L.A., to 

testify that when he was 11 and 12 years old he forced her to have sex with him. 

Analogizing to Thompson v. Oklahoma (1988) 487 U.S. 815, wherein the high 
100

court found the Eighth Amendment prohibits imposing the death penalty on those 

who committed their capital crimes when they were less than 16 years old, 

defendant argues that allowing the jury to consider, as aggravating evidence, 

events that occurred before he attained the age of majority similarly violates his 

constitutional rights. 

Although defendant moved to exclude L.A.‘s testimony, he did not raise 

this specific ground for exclusion. ―Evidence Code section 353, subdivision (a) 

requires that an objection to evidence be  ̳timely made and so stated as to make 

clear the specific ground of the objection or motion . . . .‘ As we have explained: 

 ̳ ―Specificity is required both to enable the court to make an informed ruling on 

the . . . objection and to enable the party proffering the evidence to cure the defect 

in the evidence.‖ ‘ ‖ (People v. Mills, supra, 48 Cal.4th at p. 207.) Under the 

circumstances, we agree with respondent that defendant forfeited this issue for 

appeal. 

Were we to conclude defendant properly preserved this claim for our 

review, we would find it meritless. As defendant recognizes, we rejected this 

precise claim in People v. Raley (1992) 2 Cal.4th 870. In Raley, the defendant, 

also relying on Thompson v. Oklahoma, supra, 487 U.S. 815, argued, ―the 

admission of evidence of juvenile misconduct violates the Eighth Amendment of 

the United States Constitution because it permits aggravation of sentence for the 

capital crime for conduct not considered criminal when it occurred.‖ (Raley, 

p. 909.) We rejected the argument because the analogy to Thompson was inapt: 

the defendant‘s death penalty sentence ―  ̳is attributable to [his] current conduct, 

i.e., murder with a special circumstance finding, not his past [juvenile] criminal 

activity.‘ ‖ (Ibid., quoting People v. Cox (1991) 53 Cal.3d 618, 690.) As 

defendant was not a minor when he committed his crimes against JoAnn Sweets, 

Sophia Glover, Maria R. and Karen M., Thompson is inapplicable.
101

Defendant argues Roper v. Simmons (2005) 543 U.S. 551, in which the high 

court found the Eighth Amendment prohibited imposing the death penalty on 

those under 18 years old at the time of their crimes, supports reconsideration of 

Raley. We disagree. Although Roper increased the minimum age for the ultimate 

penalty under the Eighth Amendment, it does not undermine our reasoning in 

Raley that a capital offender‘s penalty is attributable to his present capital crimes, 

not his past criminal activity.

3. Instruction to Disregard Guilt Phase Instructions 

As is usual in capital cases, upon reaching the penalty phase the trial court 

instructed the jury with CALJIC No. 8.84.1 (1989 rev.), which in part instructs the 

jury it ―must determine what the facts are from the evidence received during the 

entire trial unless you are instructed otherwise. You must accept and follow the 

law that I shall state to you. Disregard all other instructions given to you in other 

phases of this trial.‖ (Italics added.) Defendant contends the last sentence of this 

instruction, and the failure to reinstruct the jury with approximately 40 different 

guilt phase instructions, was constitutional error requiring reversal because it was 

reasonably likely the omission of these instructions precluded the jury from 

considering relevant mitigating evidence. Defendant is correct that the challenged 

instruction presupposes the court will, at the penalty phase, reinstruct the jury with 

the guilt phase instructions applicable to the penalty phase. ―As we have held, if 

the court tells the jury to disregard the guilt phase instructions,  ̳it must later 

provide it with those instructions applicable to the penalty phase.‘ (People v. 

Moon[ (2005)] 37 Cal.4th [1,] 37.) We reiterate that trial courts should take pains 

to ensure that penalty phase juries are fully and properly instructed. (See People v. 

Carter (2003) 30 Cal.4th 1166, 1222; Moon, at p. 37, fn. 7.)‖ (People v. Harris

(2008) 43 Cal.4th 1269, 1319.)
102

To the extent defendant argues the trial court committed reversible error, 

however, he is incorrect because the trial court was not remiss in this area. It 

reinstructed the jury at the penalty phase with numerous guilt phase instructions 

dealing with how to consider the evidence, thereby satisfying the rule set forth in 

People v. Moon, supra, 37 Cal.4th 1, and subsequent decisions. To the extent 

defendant simply lists dozens of guilt phase instructions without explaining how 

they were pertinent to the penalty phase deliberations, his argument fails to 

persuade. For example, it is unclear how an instruction on corpus delicti was 

pertinent to the penalty determination. Although the jury may have benefited from 

reinstruction with some of the listed instructions, we can see no prejudice from the 

omission.

Defendant also contends that because one juror was excused after the guilt 

phase and an alternate inserted into the jury at the beginning of the penalty phase, 

the court‘s failure to reinstruct with all prior guilt phase instructions, and to further 

instruct the jury to set aside any previous discussion about defendant‘s guilt and to 

deliberate the issue of guilt anew, was prejudicial error. He is mistaken. The 

obligation to instruct the jury to begin deliberations anew following replacement 

of a juror with an alternate does not apply when the alternate joins the jury before 

the start of penalty phase deliberations. ―Neither does the United States 

Constitution demand such an instruction in the present situation.‖ (People v. 

Ashmus (1991) 54 Cal.3d 932, 1005.)

Defendant argues the court‘s failure to reinstruct with all the guilt 

instructions prevented the jury from considering any lingering doubt it may have 

had regarding his guilt for murdering and sodomizing JoAnn Sweets and Sophia 

Glover. We reject the claim because the jury was specifically instructed that ―[i]f 

you have any residual doubts about the circumstances attending the crimes as 

found in the guilt phase, you may consider such doubts in mitigation under factor 
103

 ̳a‘ of the penalty phase factors. [¶] Residual doubt is defined as that state of mind

between  ̳beyond a reasonable doubt‘ and  ̳beyond all possible doubt.‘ ‖ His 

additional claim the failure to reinstruct precluded the jury from questioning his 

guilt for killing Trina Carpenter and Tara Simpson is similarly misguided because 

the jury was also instructed that ―[b]efore a juror may consider any such criminal

act as an aggravating circumstance in this case, he or she must first be satisfied 

beyond a reasonable doubt that the defendant did, in fact, commit such criminal 

act and that the act involved the express or implied use of force or violence or the 

threat of force or violence.‖ (Italics added.) We find no error.

4. Challenges to the Death Penalty Law

Defendant raises several facial challenges to the constitutionality of this 

state‘s death penalty law, all of which this court has previously rejected in 

numerous decisions. As he presents no persuasive reason to reconsider our 

precedents, we reject his arguments:

a. ―  ̳Comparative intercase proportionality review of death sentences is not 

constitutionally required. [Citations.] ―Because capital and noncapital defendants 

are not similarly situated in the pertinent respects, equal protection principles do 

not mandate that capital sentencing and sentence-review procedures parallel those 

used in noncapital sentencing.‖ ‘ ‖ (People v. Lightsey (2012) 54 Cal.4th 668, 

732.)

b. Nothing in the state or federal Constitutions ―  ̳ ―require[s] that the 

prosecution carry the burden of proof or persuasion at the penalty phase, . . . or 

that the jury find beyond a reasonable doubt that (1) the aggravating factors have 

been proved, (2) the aggravating factors outweigh the mitigating factors, or 

(3) death is the appropriate sentence.‖ ‘  ̳The United States Supreme Court‘s 

recent decisions interpreting the Sixth Amendment‘s jury trial guarantee 
104

(Cunningham v. California (2007) 549 U.S. 270; United States v. Booker (2005) 

543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 

536 U.S. 584; Apprendi v. New Jersey [(2000)] 530 U.S. 466) have not altered our 

conclusions in this regard.‘ [Citation.]‖ (People v. Bivert, supra, 52 Cal.4th at pp. 

123-124.) 

c. CALJIC No. 8.88 is not impermissibly vague or ambiguous for using the 

phrase ―so substantial,‖ nor did it impermissibly fail to inform the jury that it must 

find death was an appropriate, not just an authorized, penalty. (People v. 

McDowell, supra, 54 Cal.4th at p. 444.) Nor is CALJIC No. 8.88 unconstitutional 

for failing to require the jury to return a verdict of life should it determine the 

mitigating circumstances outweigh the aggravating ones. (McDowell, at p. 444.) 

―Nor is the instruction defective because it fails to convey to jurors that defendant 

has no burden to persuade them that death is inappropriate.‖ (People v. Taylor

(2010) 48 Cal.4th 574, 658.)

d. The death penalty law is not unconstitutional ―[d]ue to the asserted 

overbreadth of section 190.3, factor (a), which permits the jury to consider the 

circumstances of the crime as an aggravating factor [citation].‖ (People v. Vines, 

supra, 51 Cal.4th at p. 891.)

e. ―The jury may properly consider evidence of unadjudicated criminal 

activity under section 190.3, factor (b)‖ (People v. Gonzales and Soliz (2011) 52 

Cal.4th 254, 334), and need not first decide the prior criminal activity was true 

beyond a reasonable doubt by unanimous vote (People v. Abilez, supra, 41 Cal.4th 

at p. 534). Further, permitting the jury to consider prior unadjudicated criminal 

activity as aggravating evidence did not unconstitutionally allow it to impose the 

death penalty on unreliable, undiscussed, or undebated evidence, especially 

because the jury was instructed that no juror could consider such evidence unless 
105

he or she found beyond a reasonable doubt that defendant had committed the 

crime or crimes. (People v. Avena, supra, 13 Cal.4th at p. 429.)

f. No rule of constitutional law requires the jury instructions to delete

inapplicable sentencing factors or to state that some factors are mitigating only. 

(People v. Mills, supra, 48 Cal.4th at p. 210.)

g. The jury instructions for section 190.3, factors (d) and (g) are not 

unconstitutional for including the adjectives ―extreme‖ and ―substantial.‖ (People 

v. Lightsey, supra, 54 Cal.4th at pp. 731-732.)

h. The jury instructions‘ failure to require specific written findings 

regarding which aggravating factors were found and considered in returning a 

death sentence did not violate defendant‘s constitutional rights to meaningful 

appellate review and equal protection of the law. (People v. Homick (2012) 55 

Cal.4th 816, 903.)

i. Assertedly denying some procedural protections to capital defendants 

that would apply to noncapital defendants does not violate equal protection. 

(People v. Bivert, supra, 52 Cal.4th at p. 124.)

5. International Law

Defendant contends the death penalty law in California contravenes 

―international treaties and fundamental precepts of international human rights . . . 

as incorporated into the Eighth Amendment.‖ In particular, he cites the 

International Covenant on Civil and Political Rights, ratified by the United States 

in 1992. We have rejected this precise claim (People v. Brasure, supra, 42 Cal.4th 

at p. 1072) and decline to reconsider it here.

6. Cumulative Error

Having found no legal error, we reject defendant‘s claim that the 

cumulative effect of all errors requires reversal.
106

III. CONCLUSION

The judgment is affirmed in its entirety.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

CHIN, J.

CORRIGAN, J.
1

CONCURRING OPINION BY LIU, J.

I write separately to offer brief comments on two issues in this case. First, 

consistent with the views I recently expressed in People v. Harris (Aug. 26, 2013, 

S081700) __ Cal.4th __, __ (Harris) (conc. opn. of Liu, J.), People v. Mai (Aug. 

26, 2013, S089478) __ Cal.4th __, __ (Mai) (conc. opn. of Liu, J.), and People v. 

Williams (2013) 56 Cal.4th 630, 699 (Williams) (dis. opn. of Liu, J.), I would 

analyze defendant‘s claim under Batson v. Kentucky (1986) 476 U.S. 79 and 

People v. Wheeler (1978) 22 Cal.3d 258 as follows.

With respect to Prospective Juror Y.J., the trial court said it was 

―completely satisfied . . . that [the prosecutor‘s] reasons [were] independent of 

color,‖ with no other findings or analysis. Although today‘s opinion gives the trial 

court‘s ruling the ―usual deference‖ (maj. opn., ante, at p. 15), deference to an 

unexplained Batson ruling is unwarranted. (See Mai, supra, __ Cal.4th at p. __ [at 

p. 2] (conc. opn. of Liu, J.); Williams, supra, 56 Cal.4th at pp. 710–713, 715 (dis. 

opn. of Liu, J.).) But an independent examination of the record confirms that 

defendant failed to establish purposeful discrimination with respect to the 

prosecutor‘s strike of Y.J. The prosecutor said he excused Y.J. because, among 

other reasons, she worked at the Job Corps defendant had attended nine years 

earlier. The prosecutor explained that he anticipated the defense might introduce 

information about defendant‘s history at Job Corps during the penalty phase, and 

he didn‘t want to ―take the chance that . . . [Y.J.] will have a link to [defendant] 
2

because of her employment and his connection to Job Corps.‖ There is no 

indication that any of the seated or alternate jurors had a similar connection to 

defendant. I conclude from the record that defendant has not shown it is more 

likely than not that the prosecutor‘s reference to Y.J.‘s employment at Job Corps 

was pretextual.

Prospective Juror C.G. said during voir dire that she was seeing a therapist 

for depression: ―The past four years have been pretty rough. I don‘t have — I 

don‘t have a husband. I don‘t have children. So I had a dog that was like a child 

to me. I had the dog for six years. In the past four years I have had to get rid of 

the dog of six years, I have lost a boyfriend of ten years, and I have had a stroke. 

So the past four years have been kind of depressing.‖ In explaining his reasons for 

excusing C.G., the prosecutor said: ―And the — a big factor is that she‘s seeing a 

therapist now regarding depression. No matter what she says, this will be a 

depressing case. I don‘t want the responsibility of harming this woman. I think 

she‘s going to be harmed based on what she has to hear in this case and what she 

has to do in this case. And I don‘t want that or someone with that background, 

that current background, sitting on a case of this magnitude.‖ The trial court 

declared itself ―very satisfied that the reasons stated are substantial and do not 

relate to color whatsoever.‖ It then said: ―I will indicate that I noticed 

[Prospective Juror C.G.] almost looked like she was in tears when she was 

explaining the tragedies she has personally gone through over the last few years 

and it‘s pretty heart-breaking.‖ This on-the-record finding makes it appropriate 

for us to ―defer . . . to the trial court‘s assessment of the prosecutor‘s reasons as 

being subjectively genuine.‖ (Maj. opn., ante, at p. 16.)

With respect to N.S., the trial court ruled that defendant had failed to make 

a prima facie showing of discrimination, stating: ―[I]t was very clear to me that 

. . . [N.S.] was [not] going to get past a prosecution peremptory, and it wouldn‘t 
3

have mattered what color [she was]. . . . [N.S.], of course, had the fact that she 

had married an individual who was convicted of murder, that she had that 

incredible experience behind her. . . . So, I — just in this case I am confident that 

there is no prima facie case.‖ We can confidently conclude that the reason the 

prosecutor struck N.S. was obvious: N.S. was married to a convicted murderer. 

None of the seated or alternate jurors had anything remotely similar in their 

backgrounds. This is a circumstance ―where the explanation for a prosecutor‘s 

strike of a particular juror is so obvious that there is little or no reason to think 

anything else could have motivated the strike.‖ (Harris, supra, __ Cal.4th at p. __ 

[at p. 14] (conc. opn. of Liu, J.).)

Second, I believe the trial court erred in admitting expert testimony derived 

from dot intensity analysis. Dr. Edward Blake testified as an expert for the 

prosecution and explained his conclusions regarding the genetic material found at 

three of the crime scenes. (Maj. opn., ante, at pp. 43–44.) Before trial, defendant 

moved to exclude Dr. Blake‘s intended testimony on the ground that his 

conclusions were derived, at least in part, from his use of dot intensity analysis, a

method defendant claimed was not generally accepted in the scientific community. 

(Id. at p. 47.) The trial court held a hearing pursuant to People v. Kelly (1976) 17 

Cal.3d 24 and determined from the evidence presented that that ―[Dr.] Blake‘s 

procedures have been substantiated as correct scientific procedures.‖ (Maj. opn., 

ante, at p. 49.) Today‘s opinion declines to reach the merits of defendant‘s 

argument, instead concluding that any error was harmless. (Id. at p. 51.) I agree 

with the finding of harmlessness, but I would further conclude that the trial court, 

in its crucial gatekeeping role, should not have admitted the portion of Dr. Blake‘s 

testimony derived from dot intensity analysis.

The proponent of evidence derived from a new scientific technique must 

establish, among other things, that ―the reliability of the new technique has gained 
4

general acceptance in the relevant scientific community.‖ (People v. Doolin (2009) 

45 Cal.4th 390, 445 (Doolin).) ―Whether a new scientific technique has gained 

general acceptance is a mixed question of law and fact. [Citation.]  ̳[W]e review the 

trial court‘s determination with deference to any and all supportable findings of 

―historical‖ fact or credibility, and then decide as a matter of law, based on those 

assumptions, whether there has been general acceptance.‘ ‖ (Id. at p. 447.) 

In this case, the evidence does not support a conclusion that dot intensity 

analysis had gained general acceptance in the scientific community at the time of trial. 

The Attorney General argues that Dr. Blake‘s testimony was supported by his own 

opinion as well as two articles submitted to the trial court as exhibits. However, one 

of the two articles, which was co-authored by Dr. Blake, included only a single page 

of discussion (plus two images labeled ―Figs. 1 and 2‖) regarding the analysis of 

mixed samples. (Blake et al., Polymerase Chain Reaction (PCR) Amplification and 

Human Leukocyte Antigen (HLA)-DQα Oligonucleotide Typing on Biological 

Evidence Samples: Casework Experience (1992) 37 J. Forensic Sci. 700, 706–707.)

That brief section of the article concluded that ―studies of experimental mixtures of 

different DNA samples in known proportions indicate that mixtures in which the 

concentration of the two components is sufficiently different can often be interpreted, 

and the contributing genotypes identified.‖ (Id. at p. 706, italics added.) This 

conclusion was apparently based on the authors‘ observation that when ―two purified 

DNA samples of different genotypes‖ were mixed in known ratios, ―the dots 

corresponding to the minor component [were] less intense than the C dot when that 

component [was] approximately less than 1 part in 16.‖ (Ibid.) The authors did not 

claim that dot intensity analysis had proven successful in typing mixed samples in 

which the ratio of the contributing samples was not known to researchers in advance. 

The second article, while somewhat more thorough, also failed to include a study in 

which dot intensity analysis was successfully used to type mixed samples of unknown 
5

proportions. (See Comey & Budowle, Validation Studies on the Analysis of the HLA 

DQα Locus Using the Polymerase Chain Reaction (1991) J. Forensic Sci. 1633.)

Further, Dr. Blake‘s opinion was contradicted by a 1992 publication authored 

by the National Research Council (NRC). (NRC, DNA Technology in Forensic 

Science (1992).) The NRC advised that ―[m]ixed samples can be very difficult to 

interpret, because the components can be present in different quantities and states of 

degradation. . . . Typically, it will be impossible to distinguish the individual 

genotypes of each contributor. If a suspect‘s pattern is found within the mixed 

pattern, the appropriate frequency to assign such a  ̳match‘ is the sum of the 

frequencies of all genotypes that are contained within (i.e., that are a subset of) the 

mixed pattern.‖ (Id. at p. 59.) The NRC explained that ―PCR can be qualitatively 

faithful but quantitatively unfaithful, because some alleles amplify more efficiently 

than others. A sample might contain a 50:50 mixture of two alleles and yield an 

amplified product with a 90:10 ratio.‖ (Id. at p. 64.) Accordingly, the NRC 

concluded that ―it is not possible to separate the DNA contributed by different persons 

in mixed bloodstains or in sexual-assault samples that involve two or more 

perpetrators. . . . Interpretations based on quantity can be particularly problematic —

e.g., if one saw two alleles of strong intensity and two of weak intensity, it would be 

improper to assign the first pair to one contributor and the second pair to a second 

contributor, unless it had been firmly established that the system was quantitatively 

faithful under the conditions used.‖ (Id. at p. 66.) Although Dr. Blake opined that 

certain of the NCR‘s findings were not applicable to PCR amplification involving 

DQα, the report‘s conclusions were categorical and included no such qualification.

If our task were to determine whether the trial court‘s ruling was supported 

by substantial evidence, I would conclude that Dr. Blake‘s testimony and the 

accompanying articles were sufficient. However, the pertinent question is whether 

dot intensity analysis ―ha[d] gained general acceptance in the relevant scientific 
6

community.‖ (Doolin, supra, 45 Cal.4th at p. 445, italics added.) Even when the 

trial court‘s ―findings of  ̳historical‘ fact [and] credibility‖ are accorded deference 

(id. at p. 447), the evidence presented was insufficient to establish general 

scientific acceptance of the dot intensity technique.

The circumstances here provide an occasion to emphasize that trial courts

play a vital gatekeeping role when it comes to expert testimony whose underlying 

conceptual or methodological basis has not been shown to be reliable. (See 

Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 

747, 769–772; see also Tellabs, Inc. v. Makor Issues & Rights, Ltd. (2007) 551 

U.S. 308, 327, fn. 8; Kumho Tire Co. v. Carmichael (1999) 526 U.S. 137, 141.) 

Given the particularly persuasive power of DNA evidence, trial courts must be 

vigilant to ensure that the proponent of such evidence has established its 

reliability.

In all other respects, I join the court‘s opinion. 

LIU, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jones

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S042346

Date Filed: August 26, 2013

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: Laura P. Hammes

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Joseph E. Chabot and 

Nina Wilder, Deputy State Public Defenders, and Lisa Anne D‘Orazio for Defendant and Appellant.

Bill Lockyer and Kamala D. Harris, Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, 

Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Karl T. Terp, Deputy Attorneys 

General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Joseph E. Chabot

Deputy State Public Defender

221 Main street, 10th Floor

San Francisco, CA 94105

(415) 904-5600

Karl T. Terp

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2194