IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN HEATH THOMAS,

Defendant and Appellant.

S161781

Riverside County Superior Court

RIF086792

January 26, 2023

Justice Cantil-Sakauye* authored the opinion of the Court, in 

which Chief Justice Guerrero and Justices Corrigan, Liu, 

Kruger, Groban, and Jenkins concurred.

* Retired Chief Justice of California, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California 

Constitution.
1

PEOPLE v. THOMAS

S161781

Opinion of the Court by Cantil-Sakauye, J.

Defendant Justin Heath Thomas shot and killed Rafael 

Noriega in Riverside County in September 1992. Defendant was 

not immediately apprehended. He moved to Texas in 1994 and, 

less than one year later, stabbed and killed Regina Hartwell. He 

was convicted in a Texas court of Hartwell’s murder and 

sentenced to life in prison. California law enforcement officials 

later identified defendant as a suspect in Noriega’s death. In 

2001, the Riverside County District Attorney filed an 

information charging defendant with Noriega’s murder. 

A Riverside County jury subsequently convicted 

defendant of the first degree murder of Noriega (Pen. Code, 

§ 187, subd. (a)),1 and found true the special circumstance 

allegation that the murder was committed while defendant was

engaged in the commission of a robbery (§ 190.2, subd. 

(a)(17)(A)). In a bifurcated proceeding, the jury also found true 

the special circumstance allegation that defendant was 

previously convicted of Hartwell’s murder. (§ 190.2, subd. 

(a)(2).) The jury returned a verdict of death. Defendant moved 

for modification of his sentence to life without the possibility of 

parole. (§ 190.4, subd. (e).) The trial court denied the motion 

1 All further statutory references are to the Penal Code 

unless otherwise indicated. 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

2

and sentenced him to death. Defendant’s appeal is automatic. 

(§ 1239, subd. (b).) We affirm the judgment in its entirety.

I. FACTS AND PROCEDURAL BACKGROUND

A. Guilt Phase Evidence

1. Prosecution evidence

a. The killing of Rafael Noriega

In 1992, defendant was involved in distributing crystal 

methamphetamine in Moreno Valley, California. He obtained 

the narcotics from Rafael Noriega and supplied them to Dorothy 

Lee Brown, who in turn sold the drugs.

2

 Defendant’s uncle, 

Andy Anchondo, managed a ranch outside Moreno Valley. 

Defendant kept his methamphetamine supply at the ranch and 

stayed there on occasion.

On September 14, 1992, Noriega received a call on his 

pager when he was at home. After Noriega responded to the 

page, he had a discussion with his roommates Robert Manzano

and Michelle Barajas. Both warned Noriega not to deal with the 

person who paged him; Manzano suggested that Noriega bring 

a revolver for protection. Barajas tried to stop defendant from 

leaving. Noriega said he would return, and left.

Defendant planned to meet Noriega in the foothills of 

Moreno Valley early the following morning. Defendant drove in 

2 Brown testified during defendant’s Texas trial for 

Hartwell’s murder. Brown was later shot and killed by police 

during a vehicle pursuit in 2004. Brown’s testimony from the 

Texas trial was read into the record during defendant’s 

California trial.
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

3

a truck with Kelly Smith to the foothills around 3:00 a.m.

3

Brown, driving her own car, met defendant there. Defendant

told Brown they were going to meet Noriega. He asked Brown 

to follow defendant in her car to make sure defendant was not 

ambushed. On a trail near Anchondo’s ranch, defendant told 

Brown to park and wait; defendant drove further into the 

foothills. As Brown was waiting, an older couple approached her

and told her it was dangerous for her to be there alone. Brown 

informed the couple she was waiting for her boyfriend and that

she would be leaving soon.

After the couple left, Brown exited her car and ran to 

where defendant had stopped his truck. Brown saw defendant’s 

truck parked behind Noriega’s car, with the truck’s headlights 

illuminating the rear of Noriega’s car. Brown watched as 

defendant got out of his truck and yelled something in Spanish. 

Noriega walked to the back of his car, opened his trunk, and 

removed a green duffel bag. Defendant picked up a handgun 

from the seat of his truck and shot at Noriega several times in 

rapid succession. Brown saw that Noriega had been shot and 

had fallen to the ground, but she could not tell how many times 

he had been shot. Brown ran back to her car.

Defendant approached Brown and asked if she heard the 

gunshots. Brown said she had. Defendant instructed Brown to 

get out of her car and to follow him back to Noriega’s car. Brown 

saw Noriega lying on the ground and saw Smith drive Noriega’s

car away. Defendant told Brown to get into his truck, and he 

3 An investigator asserted Smith was the individual with 

defendant, although no independent evidence was presented at 

trial identifying Smith.
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

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threw Noriega’s body into the back of the truck. Brown also saw 

the green duffel bag in the back of the truck. Defendant ordered

Brown to drive. To Brown, it seemed that he was directing her 

to drive in a large circle. When she stopped, defendant told her 

she was close to her car. Brown got out of defendant’s truck, ran 

to her own car, and drove home.

About two hours later, defendant arrived at Brown’s 

home, showered and clean-shaven. He returned a broken shovel 

that he had taken from Brown without her knowledge. He also 

gave Brown a large amount of methamphetamine and told her 

that he was going to leave town.

Later that day, three individuals driving in the foothills 

discovered Noriega’s car near Anchondo’s ranch. There was a 

pile of burned debris on the driver’s side floorboard and a loaded 

.22-caliber handgun under the driver’s seat.4

In mid-October 1992, a group of individuals horseback 

riding in the foothills discovered Noriega’s body near where 

Noriega’s car had been found. The body was positioned 

facedown in the dirt under a wooden pallet and was in a state of 

decomposition. Law enforcement officials who responded to the 

scene believed the pallet had been moved onto the body from a 

pile of dirt nearby.5

4 Authorities destroyed the gun in August 1996 because it 

had not been claimed and they were not aware it was connected 

to the investigation regarding Noriega’s killing.

5 Officers discovered a .45-caliber bullet casing under 

Noriega’s body, although an investigator opined that the casing 

did not appear connected to Noriega’s death and that it was 

common for people to fire guns in the area.
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

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Officials at the coroner’s office searched Noriega’s body 

and found jewelry, a watch, and a jacket containing four small 

baggies of methamphetamine. Dr. Robert Ditraglia, the forensic 

pathologist who performed an autopsy on Noriega’s body, 

described the body as “[s]everely decomposed” and “partially 

skeletonized.” The autopsy revealed a hole in the center of 

Noriega’s sternum, multiple holes in his chest, two fractured 

ribs, and fractures to his sacrum and coccyx. Ditraglia opined 

these injuries were consistent with gunshot wounds. Bullet 

fragments collected from Noriega’s body were consistent with 

medium caliber ammunition such as a nine-millimeter, .32-

caliber, or .38-caliber bullets. Although the trajectory of the 

bullets could not be determined, the injuries were consistent 

with Noriega being shot from the front. The wound to Noriega’s 

sternum would have been potentially fatal on its own.

Defendant left town within weeks of Noriega’s killing. In 

January 1993, law enforcement suspended the investigation 

into Noriega’s death because they had no leads. Defendant 

enlisted in the Army in February 1993. He was discharged in 

September 1994 and returned to California. He then moved to 

Austin, Texas, in late 1994, where he started dating Kimberley 

Reeder. In May or June 1995, defendant told Reeder he had 

killed a man in California named “Rafa” because Rafa was a 

“narc.” Defendant told Reeder that he put the body in the back 

of his truck and then hid it in or near some caves.6 He told 

Reeder that when coworkers asked him about blood in the back 

6 Three caves were located less than a mile from where 

Noriega’s body was found.
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

6

of his truck, he told them it came from deer hunting. Defendant 

never told Reeder that he killed Rafa in self-defense.

John Sams, an acquaintance of Reeder’s, testified that he 

overheard defendant stating that he shot someone in California 

for drugs and took a bag of speed from the person. Sams heard 

defendant say he was from California, where “we kill people for 

things like” “[g]etting out of line, money, drugs, things of that 

nature.” Sams believed defendant was bragging or trying to 

impress people. Sams did not hear defendant assert he shot 

anyone in self-defense.7

Investigator Martin Silva interviewed defendant in Texas 

in January 2000.8 Silva told defendant that he believed 

defendant killed Noriega. Silva confronted defendant with 

statements from Brown and Reeder implicating defendant. He 

said (apparently as a ruse) that Smith and defendant’s ex-wife 

had implicated him as well. Silva suggested that defendant may 

have shot Noriega in self-defense, and that the shooting 

occurred after a drug transaction went poorly. Defendant

admitted to engaging in methamphetamine and firearm 

transactions with Noriega but denied killing him. He also 

claimed that he was not living in Moreno Valley when the killing 

7

It was introduced at trial that Sams had been convicted of 

two misdemeanor assaults in Texas and was previously arrested 

for aggravated robbery but later released without being 

charged. Sams’s brother supplied Regina Hartwell with cocaine 

for drug transactions.

8 Defendant was advised of his rights under Miranda v. 

Arizona (1966) 384 U.S. 436 and waived them prior to the 

interview.
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

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took place. Defendant referred to Noriega as “Rafa” and said 

they spoke Spanish to each other.

As the interview progressed, defendant told Silva that he 

was getting nervous. He stated, “[W]hen I had left I thought 

that shit was dead,” and he asked “how involved” Silva believed 

that defendant was. Defendant claimed he was in Texas when 

Noriega was killed, and that his family and former boss could 

verify his alibi. Silva told defendant the District Attorney’s 

Office was seeking to extradite defendant to California. 

Defendant said, “See and in order for that, that means . . . you 

guys pretty much know that I did this.” Defendant also asked 

whether the others involved would be charged and whether 

Smith “ever sa[id] he got something out of it.”

Silva again suggested that defendant killed Noriega in 

self-defense or because defendant was high. Defendant 

maintained that he knew nothing about Noriega’s killing, and

he claimed that Brown and Smith were lying about his 

involvement.

b. Evidence of other acts

i. Threat to kill Mike Aguon and “Christine”

In 1991, defendant was living in California with

Maximillian Garcia, Mike Aguon, and a woman named 

Christine. One day, defendant became paranoid that Aguon and 

Christine were going to turn him in to the police. Defendant 

placed a shotgun behind the front door and told Garcia he was 

going to shoot Aguon and Christine when they returned. Garcia 

warned Aguon and Christine to stay away from the residence 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

8

until defendant calmed down. Defendant eventually did calm 

down, and no violence occurred.9

ii. Threat to shoot police officers

In 1992, defendant was living with his ex-wife in Norco, 

California. The two argued when defendant came home drunk, 

and she said she was going to call the police. Defendant said, “I 

got something for them,” and went to his bedroom to retrieve 

and load a shotgun. Defendant’s cousin tried to wrestle the gun 

away from defendant, and the gun discharged into the wall. 

Defendant eventually left the residence when police arrived. He 

was not charged with any offense.

iii. Murder of Regina Hartwell

Defendant moved from California to Texas in late 1994, 

and began dating Reeder in 1995. Through Reeder, defendant 

met Hartwell; Hartwell and Reeder had previously dated. 

Defendant and Hartwell had a contentious relationship.

In June 1995, Hartwell threatened to tell police that 

defendant was selling drugs. In response, defendant stabbed 

and killed Hartwell. He then placed Hartwell’s body in the back 

of her car and drove it to a rural area, doused it in gasoline, and 

set it on fire. Additional details regarding Hartwell’s murder 

are discussed in section II.B.1., post.

2. Defense evidence

Defendant recalled Investigator Silva as a witness. Silva

had interviewed Reeder approximately three years after 

9 At trial, Garcia claimed not to recall the incident, which 

he had previously described to an investigator. Garcia had 

informed another investigator that he was reluctant to testify 

because he did not want to be labeled a snitch.
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

9

defendant’s 1996 trial in Texas and had interviewed Brown 

when she was in prison in 1998. Silva testified that Reeder had 

said that her statement to the Texas authorities had been taped, 

and that defendant had told her he had hidden “Rafa” in some 

caves. Reeder never told Silva that defendant threatened her, 

hit her, or forced her to do anything.

Silva also recounted that Brown told him she was addicted 

to methamphetamine at the time Noriega was killed and that 

she was heavily intoxicated on methamphetamine at the time of 

the shooting. Brown also told Silva that she and defendant had 

used speed prior to the shooting, that defendant did not need 

money, that defendant and Noriega were arguing in Spanish

prior to the shooting, that she was not certain what was in the 

green duffel bag, that defendant used a 9-millimeter Glock to 

shoot Noriega,10 and that she lied to another detective about the 

shooting because she was on drugs.

B. Penalty Phase Evidence

1. Prosecution’s case in aggravation

The prosecution’s case in aggravation included evidence

presented during the guilt phase regarding the killing of

Noriega, the evidence underlying defendant’s conviction for 

Hartwell’s murder, and the 1992 incident when defendant 

threatened to shoot police. 

The prosecution also presented victim impact evidence 

from Armida R., Noriega’s sister who was approximately 13 

10 Silva clarified that Brown told him that defendant brought 

a Glock to Brown’s apartment on the morning of the shooting, 

but that she never expressly said the Glock was used to shoot 

Noriega.
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

10

years old when Noriega was killed. She described her warm and 

affectionate relationship with Noriega and that he had taken 

care of her. She recounted the suffering she and her parents 

experienced when they learned of Noriega’s death.

The prosecution presented additional evidence regarding 

several prior acts. A correctional officer testified that in 

September 2005 he searched defendant’s cell and found a fourinch metal shank. The officer testified the shank was capable of 

cutting people in a “pretty brutal” way, and that he had seen 

people seriously injured with similar weapons. Although he was

unaware of defendant stabbing anyone in prison, he knew of two 

incidents when defendant had been stabbed.

Another correctional officer testified that he removed 

defendant from his cell in December 2006, conducted a pat-down 

search, and felt a hard object in defendant’s boxer shorts. The 

officer found a broken plastic toothbrush with two razor blades 

attached to the tip. He opined that the toothbrush was designed 

to be a weapon.

Dawn Bothof, defendant’s ex-wife, testified concerning a 

number of incidents with defendant, describing their marriage 

as “on and off,” “volatile,” and “violent.” They often argued about 

defendant’s drinking and drug use. Bothof described the 

incident involving defendant’s threat to shoot police officers. 

She stated that defendant had pushed her against the wall, 

slapped her in the face, brandished a rifle, and told her that he 

was going to make her “pay.” When Bothof called the police, 

defendant pulled the phone cord from the wall.

Bothof described another incident several months later 

when defendant confronted a bouncer who kicked him out of a 

bar. Later that night when he was highly intoxicated, defendant 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

11

told Bothof that he was going to kill the bouncer and he left their 

home with a gun. When defendant returned home the following 

morning, he was still drunk and began arguing with Bothof 

while she was in bed. Defendant got on top of Bothof and started 

choking her. Bothof struggled with defendant and tried to kick 

him away; she felt she was blacking out and was going to die. 

Bothof’s sister came into the bedroom and yelled at defendant to 

stop. Defendant released Bothof, who fled to a friend’s house. 

When she returned, defendant was sitting on a toilet with a gun 

to his own head. Bothof and her sister took the gun from 

defendant and drove him to his uncle’s house. On the way there, 

defendant jumped out of the car and ran, saying people were 

watching him.

Bothof testified that defendant left California suddenly in 

1992 and went to Texas. When defendant returned about one 

month later, he told Bothof that he knew how to kill people and 

where to dump bodies so they would not be found. He said he 

would show her, that he had killed before, and that he could kill 

her. He would tell Bothof he was just trying to scare her, and

he alternated between telling Bothof that a man named Kelly 

murdered someone and that defendant had murdered someone.

Bothof and defendant separated in late 1992 because of 

defendant’s drug use and erratic behavior. After defendant 

joined the Army in 1993 his behavior improved, and Bothof 

moved with him to Hawaii. However, defendant eventually 

resumed using drugs and becoming violent again.

On one occasion in Hawaii, defendant took Bothof’s keys 

and drove her car while he was intoxicated. Bothof was able to 

get defendant to stop and tried to take the keys from the car. 

Defendant grabbed the keys from her hand, threw her to the 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

12

ground, and drove away. Bothof’s neck and back hurt for several 

days. 

On another occasion, defendant became “hysterical” and 

picked up a knife after Bothof told defendant she was going to 

leave him. Bothof locked herself and their child inside a 

bathroom. Defendant stabbed the door until the door broke. 

Defendant forced Bothof to stay in their home for three days, 

making her sit on the couch while he held her at knife point. 

When Bothof asked to leave or got up, he pushed her down, 

threatened to kill her, and ordered her not to move. On the third 

day, defendant’s father called and defendant explained what 

was happening. Defendant allowed Bothof to speak with his 

father, who told Bothof to call the police. Bothof did so. When 

she told defendant she had called the police, he came toward her 

with the knife but began stabbing his own foot, which was in a 

cast. Officers eventually arrived and the incident ended.

Bothof also testified that when she was pregnant with 

their second child, defendant kicked her in the stomach and 

threw her to the ground.

2. Defense case in mitigation

The defense case in mitigation included testimony from 

defendant, defendant’s family members, and a drug and alcohol 

addiction specialist.

Defendant testified about his upbringing. His parents 

separated when he was three years old, but his extended family 

took good care of him. He reported that he first drank alcohol 

when he was three years old, and he was allowed to drink during 

fishing trips and family get-togethers. When defendant was 

seven years old, his father taught him how to smoke marijuana. 

This led to defendant’s father showing him how to snort and 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

13

inject methamphetamine. Defendant’s father would supply him 

with drugs. When defendant was 13 years old, his drug use 

included cocaine and LSD.

Defendant testified that he was not addicted to drugs and 

that he stopped using them for a time when he was 16 years old, 

although he continued to sell drugs to classmates. Defendant 

did well in school but he did not go to college because Bothof was 

pregnant. He played semi-professional football after high school 

and began using methamphetamine. By the time he was 20 

years old, he was addicted to methamphetamine and stopped 

playing football.

Defendant testified that he would fight with Bothof when 

he was high. He admitted that he “man-handled” Bothof during 

arguments to get her off of him, and he admitted that he may 

have slapped her once or twice. He denied harming her 

otherwise, saying he was able to control himself even when 

under the influence. He acknowledged that he had retrieved a 

shotgun and threatened to shoot police after a fight with Bothof.

Defendant stated he met Noriega when selling drugs in 

Riverside; he declined to say whether Noriega was a drug dealer. 

Defendant denied any involvement in Noriega’s death, and he

clarified that he did not “physically commit” the killing. He said 

he had agreed to facilitate one more drug transaction for Brown 

before leaving Moreno Valley, although he later denied setting 

up any transaction between Brown and Noriega.

Defendant acknowledged that he had previously claimed 

he was enlisted in the Army and in Hawaii at the time Noriega 

was killed. He admitted that his “recollection was misplaced,” 

that he had received a traffic citation in Texas three days after 

Noriega disappeared, and that he actually began serving in the 
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Opinion of the Court by Cantil-Sakauye, J.

14

Army in February 1993. He was discharged from the Army for 

failure to rehabilitate and moved back to Southern California 

where he resumed selling drugs before eventually moving to

Austin, Texas.

Defendant admitted that he was involved in Hartwell’s 

murder but maintained that he did not kill her. He claimed 

other individuals were involved but that he did not know who 

killed Hartwell because he was not present when she died. 

Defendant admitted that Hartwell had threatened to turn him 

in to the police the night before she was killed, and that he told 

Hartwell to leave him and Reeder alone. Defendant also 

admitted that he had burned Hartwell’s body in the back of her 

car. He denied telling Reeder, Sams, or Bothof that he had 

killed someone in California.

Defendant conceded that he possessed shanks in prison, 

but he asserted they were for protection only and that he had 

never stabbed anyone while in custody. He stated that other 

inmates paid him for protection, and that although he was 

involved in many fights, some of which he instigated, he was 

always acting in self-defense.

Defendant read a statement to the jury that he had chosen 

a path for himself while in custody as that of a warrior who 

“embraces death as part of the struggle.” He stated he made his 

own life choices, and they had nothing to do with drugs, alcohol, 

or any predisposition. He asserted he was no longer addicted to 

drugs, and that he could have stopped his drug use at any point 

except when he was about 20 years old. He also told the jury 

that he refused his attorney’s requests that defendant submit to 

an MRI or a mental health evaluation. Defendant did not 

believe he suffered from brain damage or from any learning 
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Opinion of the Court by Cantil-Sakauye, J.

15

deficiencies, and he disagreed with a doctor who had opined that 

he had an addictive personality and a predisposition to use 

drugs. He said, “I chose the path that I lived and I’m here 

because of it.”

Defendant further stated that his strategy during the guilt 

phase was to be acquitted, but that at the penalty stage he 

wanted to receive a death verdict, although he did not want to 

be put to death. He said a death verdict would be in his best 

interest because it “enriches and enhances certain areas of postconviction remedies that I’m definitely seeking.” He complained 

about the court’s rulings, a lack of funds, and his attorney’s 

refusal to follow defendant’s strategy.

Defendant maintained that he was framed for the 

murders of Noriega and Hartwell. He said that he was reluctant 

to answer certain questions about his drug use because it might 

make the jury believe he deserved a sentence of life without the 

possibility of parole. He told the jury he did not want any 

mitigation evidence presented on his behalf, and that he had 

insisted on testifying during the penalty phase against his 

attorney’s advice.

Defendant’s uncle, Anchondo, also testified during the 

penalty phase. He said that defendant’s mother drank wine 

when she was pregnant with defendant, although she was never 

“falling down” drunk. He related that defendant’s mother told 

him she used drugs while pregnant. Anchondo stated that 

defendant’s mother had boyfriends who were physically abusive 

and that defendant’s mother attempted suicide four times, 

although Anchondo did not believe defendant was aware of 

those attempts. Anchondo surmised that defendant had a 
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Opinion of the Court by Cantil-Sakauye, J.

16

difficult childhood because of his parents’ drug and alcohol use 

and his mother’s suicide attempts.

Anchondo’s wife, Cynthia, also testified. She stated she 

never saw defendant engage in violence or drug use, and she

thought he was a very happy person. She believed his 

relationship with his grandparents was a positive one.

Finally, Dr. Alex Stalcup, a drug and alcohol addiction 

specialist, testified regarding addiction and its effect on an 

individual’s behavior and ability to make decisions. He stated 

that methamphetamine use can alter decision-making and 

permanently damage the brain, and that alcohol use as a child 

can also harm the brain’s development. Stalcup interviewed 

defendant for about two hours and reviewed materials related 

to the case (but not any materials related to Hartwell’s murder). 

Defendant had denied killing Noriega or being present when 

Noriega was killed, but he refused to discuss the incident 

further. Defendant told Stalcup about his drug and alcohol use 

as a child. Stalcup testified that defendant presented one of the 

worst cases for genetic predisposition to addiction that he had 

ever seen.

Stalcup opined that, based on defendant’s 

methamphetamine use, defendant was a “late-stage addict” by 

the age of 14. Stalcup also believed defendant suffered damage 

to his brain that inhibited his ability to make decisions. He 

stated that defendant faced significant risk factors for fetal 

alcohol syndrome and brain damage. He testified that it was 

common for addicts to sell drugs to support their habit; he called 

this “[p]art of the disease process driven by craving” rather than 

a choice by the individual.
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Opinion of the Court by Cantil-Sakauye, J.

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3. Prosecution rebuttal evidence

A law enforcement deputy testified regarding an incident 

that took place in March 2004 when he was delivering mail to 

defendant’s cell. Defendant asked the deputy where some of his 

magazines were. The deputy said they were being scanned for 

offensive content. Defendant replied, “Don’t you know who I 

am? I’m running things.” He added, “I’m running things here, 

and that’s no secret.”

II. GUILT PHASE ISSUES

A. Adequacy of Court Funding

Defendant asserts the trial court effectively denied his 

right to self-representation by denying him adequate funding 

during the period of time when he represented himself. He 

contends that, as a result of the court’s rulings, he was forced to 

request appointed counsel. He alleges this amounted to a 

violation of his Sixth and Fourteenth Amendment rights and his 

rights under article I, section 15 of the California Constitution. 

We conclude that the trial court did not err in ruling on 

defendant’s funding requests, and thus it did not deny 

defendant his right to represent himself.

1. Factual background

In February 2007, defendant was represented by 

appointed counsel Darryl Exum and Peter Scalisi. That month, 

defendant filed a motion to represent himself pursuant to 

Faretta v. California (1975) 422 U.S. 806. During the Faretta

hearing, defendant explained that one reason he wanted to 

represent himself was because he did not believe appointed 

counsel had obtained sufficient funding to investigate his case. 

Defendant stated he believed he would be more successful than 

counsel at obtaining those funds. The trial court granted 
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Opinion of the Court by Cantil-Sakauye, J.

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defendant’s motion and appointed Exum as stand-by counsel. 

As of February 28, 2007, defendant (through appointed counsel) 

had received approval for $57,290 in investigation funds;

$1,647.95 of that remained available and the remainder had 

been spent.

Following the grant of his Faretta motion, defendant 

immediately filed a request for $2,500 in additional 

investigation funds.11 The request stated the funds were 

required for investigator services such as contacting witnesses, 

reviewing discovery, preparing reports, and other general 

investigation. Defendant did not list the witnesses or explain 

their relevance to his case, nor did he explain the nature of the 

investigation required. The court approved the request but 

noted the funds could not be used to pay for a phone card, as 

defendant had also requested.

In March 2007, defendant submitted a request for $6,000 

in investigation funds to locate, interview, and subpoena 50 

witnesses and for other investigation. Defendant did not list the 

witnesses or explain their relevance to his case, nor did he 

explain the nature of the investigation required. The court 

denied the request, noting it was vague and that defendant’s 

investigator needed to provide additional details.

Defendant filed another request in April 2007, seeking 

$18,000 for general investigation funds. The request did not 

refer to any witnesses or describe any areas of potential 

investigation. At a hearing on the request, the court informed 

defendant, “[Y]ou need to write a specific request . . . to us, to 

11 The Riverside County Superior Court refers funding 

requests made in capital cases to a panel of three judicial officers 

to independently review and rule on the requests.
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Opinion of the Court by Cantil-Sakauye, J.

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this panel, identifying who these people are and why they’re 

necessary to the defense of your case, whether it be guilt phase 

or penalty phase.” The court further said that before funds 

would be provided for the investigator to locate witnesses, “you 

need to convince us that they’re relevant and important enough 

that we’re going to expend the money to have him go track them 

down.” Defendant’s investigator, Jerry Monahan, informed the 

court he had approximately $700 of existing funds remaining at 

the time of the hearing. The court approved $2,000 for 

investigation expenses and informed defendant it would 

reconsider his request if he submitted additional information.

Defendant’s next request, filed in May 2007, sought 

$48,600, nearly $35,500 of which was related to investigation 

expenses for Monahan. The request listed 54 potential 

witnesses but did not describe their relevance beyond classifying 

them as civilian or military. Monahan included a memorandum 

with the request that provided some details regarding these 

witnesses. The memorandum listed 30 potential witnesses —

including former teachers, coaches, coworkers, and correctional 

staff — who “would be used in penalty phase litigation” or 

“penalty phase mitigation.” The memorandum also listed 14 

military personnel who “were all affiliated with [defendant] in 

the Army at various locations and would be used in the penalty 

phase mitigation. Also some of these same individuals might be 

used in the guilt[] phase to confirm [defendant’s] whereabouts 

during the years 1992 through 1994.” The request stated, “[I]t 

is unknown what they might testify to.”

At a hearing, the court asked whether defendant had 

obtained his military records “to prove where you were on a 

certain date.” Defendant indicated he had obtained part of those 

records, but he needed “specific information on the witnesses 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

20

that are involved in that.” The court stated, “you may want 

other people to add to that [the records], and I understand that.” 

The court noted, however, that “we have to know specifically 

who [the investigator] is going to contact and what the relevance 

is, what you expect them to testify to help or assist you in the 

defense of your case.”

At the close of the hearing, defendant stated, “Is it my 

understanding that we’re going to come back another day and 

time with clarity on specific defense strategy for the witnesses.” 

The court replied: “Right. We told you exactly what to do, and 

it depends on how long it takes you to do that. [¶] It depends 

on [the investigator] making a lot of calls and tracking down 

people. [¶] Get started and as you find you need more, then you 

can come back to us.” At the time the trial court denied the 

motion, there were approximately $2,000 remaining in 

investigator funds. 

In June 2007, defendant filed a request for $4,200 to cover 

additional investigator funds. The request noted that Monahan 

had attempted to contact military personnel to support 

defendant’s alibi defense and was informed “it might not be 

possible to locate these soldiers.” Defendant also requested 

funds to review and redact audiotapes provided by the 

prosecution. The court did not hold a hearing regarding the 

request. Two judges on the panel noted they did not wish to 

approve the request, stating, “[I]t appears [the district attorney] 

will redact the tapes” and “it seems that the defendant’s military 

records can establish exactly where he was stationed in 1992–

1993, [and] so you don’t need any witnesses.” 

Defendant did not subsequently seek additional funds or 

provide the court any additional information regarding the 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

21

witnesses he intended to contact and what the relevance of their 

testimony would be. Instead, in July 2007, he moved to 

withdraw his self-representation and the court subsequently 

reappointed Exum and Scalisi as counsel. It is not apparent

whether the court formally denied the June 2007 request for 

funds before defendant withdrew his request to represent 

himself, but it is clear the court did not grant the request.

2. Analysis

“ ‘[T]he right to counsel guaranteed by both the federal 

and state Constitutions includes, and indeed presumes, the 

right to effective counsel [citations], and thus also includes the 

right to reasonably necessary defense services. [Citations.]’ ” 

(People v. Blair (2005) 36 Cal.4th 686, 732; see also People v. 

Clark (2016) 63 Cal.4th 522, 630.) “But ‘the right to ancillary 

services arises only when a defendant demonstrates such funds 

are “reasonably necessary” for his or her defense by reference to 

the general lines of inquiry that he or she wishes to pursue.’ ” 

(People v. Clark, supra, 63 Cal.4th at p. 630.) “[T]he crucial 

question . . . is whether [defendant] had reasonable access to the 

ancillary services that were reasonably necessary for his 

defense.” (People v. Blair, supra, 36 Cal.4th at p. 734.) 

Requests for funds for an indigent defendant in a capital 

case are governed by section 987.9. “ ‘ “Section 987.9 commits to 

the sound discretion of the trial court the determination of the 

reasonableness of an application for funds for ancillary 

services.” . . . .’ ” (People v. Clark, supra, 63 Cal.4th at pp. 630–

631.) A court “should view a motion for assistance with 

considerable liberality, but it should also order the requested 

services only upon a showing they are reasonably necessary.” 

(People v. Guerra (2006) 37 Cal.4th 1067, 1085.) Further, 
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Opinion of the Court by Cantil-Sakauye, J.

22

defendant “has the burden of demonstrating the need for the 

requested services.” (Ibid.; see also People v. Hajek and Vo

(2014) 58 Cal.4th 1144, 1256; People v. Gonzales and Soliz

(2011) 52 Cal.4th 254, 286; § 987.9.) Defendant also must 

establish a likelihood that the evidence sought to be procured by 

the funds would be admissible, as “ ‘there is no point in spending 

money to obtain inadmissible evidence.’ ” (People v. Clark, 

supra, 63 Cal.4th at p. 631.) “ ‘An appellate court reviews a trial 

court’s ruling on an application for authorization to incur 

expenses to prepare or present a defense for abuse of 

discretion.’ ” (Ibid.)

We conclude the trial court did not abuse its discretion 

when it determined defendant had not established a reasonable 

necessity for the requested funds. Defendant broadly asserts 

that the trial court’s funding decisions hampered his ability to: 

“(1) secure exhibits; (2) obtain the attendance of witnesses at 

trial; (3) dress properly during the trial; (4) obtain assistance 

during the trial itself; (5) transcribe witness testimony during 

the trial; and (6) assist with diagrams and exhibits during the 

trial.” Beyond these general assertions, defendant focuses on 

the denial of funds related to two issues: his alibi defense (that 

he was serving in the Army in Hawaii at the time of Noriega’s 

murder); and his preparation of mitigation evidence for the 

penalty phase (through contacting former teachers and 

coaches). He further contends that the denial of funds for his 

investigator “was exacerbated by the trial court’s refusal to fund 

phone card privileges so [he] could communicate with his 

investigator.”

These contentions are unavailing. Despite several 

directives from the court that defendant’s requests must include 

specific information regarding the purpose of contacting the 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

23

listed witnesses and conducting the requested investigation, 

defendant’s requests were vague and only generally identified 

how the expenditures might contribute to the preparation of his 

defense. For example, in listing more than 50 witnesses and 

requesting nearly $35,000 for investigation, travel, and trial 

preparation related to those witnesses, defendant conceded “it 

is unknown what they might testify to.” Although defendant 

identified several military personnel as potential witnesses, he 

never identified which of those witnesses would serve as alibi 

witnesses. Defendant’s June 2007 request for funds related to 

his alibi defense asserted additional funds would be needed “if a 

response is received” from the Army providing additional 

information regarding those individuals.12 And, as defendant 

conceded when he testified during the penalty phase, any such 

additional investigation would have been fruitless because he 

did not enter the Army until several months after Noriega’s 

killing. Further, although defendant listed a number of 

witnesses he stated would be used during the penalty phase, he 

failed to describe their anticipated testimony in any detail.

These general assertions are not sufficient to meet the 

statutory requirement for a showing of reasonable necessity 

before funds are disbursed. The sparse nature of defendant’s 

descriptions provided no basis for the court to determine 

whether the potential testimony would be irrelevant, 

12 Defendant emphasizes that the court denied his request 

because it believed his military records obviated the need for any 

witnesses. It is true one judge on the panel reviewing 

defendant’s funding requests made that observation. But the 

court also observed that it would be appropriate for defendant 

to obtain witnesses to corroborate those records — and it simply 

asked for more information regarding those alleged witnesses. 
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Opinion of the Court by Cantil-Sakauye, J.

24

cumulative, or otherwise inadmissible. (See People v. Clark, 

supra, 63 Cal.4th at p. 631.) And, as the court noted, there was 

potential for duplicating earlier investigative efforts given that 

defendant indicated he wanted the investigator to “reinterview” 

certain witnesses. (See People v. Hajek and Vo, supra, 58 

Cal.4th at p. 1256 [upholding denial of funds for counsel’s 

request to “ ‘reinterview every witness’ ” for the penalty phase 

when counsel’s stated reason was simply that “ ‘it’s a death 

penalty case’ ”]; People v. Guerra, supra, 37 Cal.4th at pp. 1085–

1086.) The trial court did not abuse its discretion by requiring 

a more detailed showing from defendant before providing funds. 

Because the court did not err, we also reject defendant’s 

claim that the court’s “refusal to fund phone card privileges” 

exacerbated the alleged error. Notably, the court ordered the 

sheriff to allow defendant to call his investigator, and defendant 

has provided no evidence that his ability to direct his case was 

otherwise hampered.

Finally, as defendant acknowledges, the court did not 

withhold all requested funds. Before the court granted 

defendant’s Faretta motion, the court had approved more than 

$57,000 in funds for investigative purposes. During the time 

defendant represented himself, he had access to $6,147.95 for 

investigation: $1,647.95 that remained available when he 

began representing himself, and $4,500 the court approved 

when defendant was representing himself. Additionally, the 

court granted defendant’s funding request for legal materials 

and advisory counsel to investigate the validity of his Texas 

conviction. Given the totality of the circumstances, the court’s 

actions did not constitute an abuse of discretion, did not 

effectively force defendant to withdraw his self-represented 
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Opinion of the Court by Cantil-Sakauye, J.

25

status, and did not violate defendant’s state or federal 

constitutional rights.

B. Claims Regarding Admission of Evidence

1. Hartwell’s murder

Defendant asserts the trial court erred by admitting 

evidence of Hartwell’s murder. He asserts doing so ran afoul of 

Evidence Code sections 350, 352, and 1101. Although we find 

the question somewhat close, we conclude that the trial court 

did not abuse its discretion in admitting this evidence.

a. Factual background

As discussed in section I.A.1.b.iii, ante, the prosecution 

introduced evidence of defendant’s murder of Hartwell. 

Additional facts regarding Hartwell’s murder are relevant to 

defendant’s claim of error.

In May 1995, defendant met Reeder and they soon began 

dating and using drugs together. When dating defendant, 

Reeder continued to socialize with Hartwell, with whom Reeder 

had a prior romantic relationship. Defendant was selling drugs 

at the time, and Hartwell convinced defendant that he could sell 

drugs through her at clubs. Reeder believed that Hartwell and 

defendant did not like each other; she testified that the two 

occasionally argued, that Hartwell was jealous of defendant, 

and that the relationship between Hartwell and defendant was 

“[o]dd” and “different.”

On June 28, 1995, Hartwell and Reeder argued at 

Hartwell’s apartment over Reeder’s plan to move in with her 

parents. Reeder eventually left, and Hartwell talked with her 

friend, Jeremy Barnes, at his apartment. Hartwell told Barnes 

that she still loved Reeder and asked Barnes whether she should 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

26

report defendant to the police so that defendant would be out of 

their lives.

Later that evening, Hartwell called Reeder. Defendant 

was sitting near Reeder during the call. Hartwell asked Reeder 

to come back to Hartwell’s apartment. Reeder refused, which 

made Hartwell angry. Hartwell asked to speak with defendant, 

and Reeder gave him the phone. Defendant listened to Hartwell 

for a few minutes; Reeder could hear that Hartwell’s voice 

sounded upset.

Defendant “seemed very seriously upset” after the call. 

Defendant said Hartwell had threatened to turn him in to the 

police for selling drugs and told him that she had a contact with 

the police. He told Reeder that he “wasn’t going to let anybody 

send him to prison.” Reeder believed defendant was planning to 

kill Hartwell.

Reeder drove defendant to a restaurant to meet a few 

friends. Over dinner, defendant told his friends, including 

Michael Mihills, that Hartwell was going to turn him in to the 

police for selling drugs. Reeder picked defendant up at the 

restaurant after about an hour, and the two returned to Reeder’s 

apartment. Reeder took Valium and fell asleep. She stated she 

did not know what defendant did or whether he got into bed with 

her.13

Meanwhile, Hartwell called her friend Sylvia Leal. Leal 

testified that Hartwell sounded furious and frightened. 

Hartwell told Leal that defendant had been involved in a 

13 Reeder had previously testified that she and defendant 

both awoke the next morning, she saw defendant getting 

dressed, and she fell back asleep.
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

27

murder and that he dealt firearms. Hartwell wanted to “bust” 

defendant, explained that defendant would be receiving a 

methamphetamine shipment, and she asked Leal to contact a 

narcotics investigator. Leal told Hartwell she would get a phone 

number for Hartwell.

The next morning, Reeder was awakened by defendant 

knocking on her door. He “seemed upset, disturbed, anxious” 

and was bleeding from a serious cut between the thumb and 

index finger of his hand. Defendant undressed, put his clothes 

in a garbage bag, and took a shower. Reeder noticed that 

Hartwell’s wallet was in the apartment. Defendant told Reeder 

that he was cut during a struggle with Hartwell, who he said 

was much stronger than he had anticipated. Defendant said the 

fight occurred when he walked into Hartwell’s apartment. He 

told Reeder that he stabbed Hartwell when she was on her 

couch, that he dragged Hartwell to the bathtub, and that he 

wrapped her in a bed comforter. He then carried her downstairs 

to the back of her jeep, which he drove to Reeder’s apartment.

Defendant discussed cutting Hartwell’s body into pieces 

and buying cement, chains, and garbage cans to sink the body 

parts into a river. Reeder and defendant drove to a hardware 

store, where they purchased a garbage can, cement, a chain, and 

a padlock using Hartwell’s ATM card. Defendant then drove to 

his house in Hartwell’s jeep; Reeder followed in her own car. 

Eventually, defendant told Reeder he could not cut up 

Hartwell’s body because there were people who might see him.

Defendant’s father came home and told defendant to take 

Hartwell’s jeep off the property. Defendant drove the jeep to a 

rural area and parked it off the road in a wooded location; 

Reeder again followed in her car. Reeder and defendant drove 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

28

to a gas station in Reeder’s car, filled a container with gasoline, 

and returned to Hartwell’s jeep. Reeder parked her car some 

distance away from the jeep and waited while defendant poured 

gasoline on the jeep and lit it on fire. Defendant ran back to 

Reeder’s car, and the two drove to a hotel in Austin, where 

Reeder checked in using a former name. There, defendant dyed 

and cut his hair. He told Reeder that he was going back to 

California.

About 9:45 p.m., fire officials responded to the vehicle fire, 

which they described as “[v]ery hot and very intense.” The jeep 

was completely burned and the area smelled strongly of 

gasoline. Hartwell’s remains were found in the back seat, 

burned beyond recognition. She was identified using dental 

records. A folding knife wrapped in a blue cloth was discovered 

near the body.

Dr. Robert Bayardo, the medical examiner who performed 

the autopsy on Hartwell’s body, described the body as “partially 

cremated” with large portions burned to ash. Bayardo located a 

stab wound above Hartwell’s collarbone, which perforated her 

lung, extended into her back, and severed a large vein and 

artery. He opined the wound would have been fatal, that the 

knife found near Hartwell’s body was capable of inflicting such 

a wound, and that there was an 80 percent chance that Hartwell 

was in a seated position when she was stabbed. Because there 

was no soot or smoke in Hartwell’s airways or carbon monoxide 

in her blood, Bayardo concluded Hartwell was already dead 

prior to being burned. He noted that he would not expect the 

stab wound to cause extensive external bleeding.

Several days after the killing, Barnes and Leal filed a 

missing person report regarding Hartwell. Reeder and 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

29

defendant were contacted by police and taken to the police 

station. An officer observed the cut on defendant’s hand, which 

was healing but still looked “[f]airly serious.” Officers took 

photographs of the wound. Defendant was subsequently 

arrested.

Reeder gave a sworn statement to police. At the time she 

gave the statement she had used drugs about 12 hours earlier 

and was either high or experiencing withdrawals. She 

implicated herself in Hartwell’s killing but withheld some 

details to protect defendant. Reeder was later charged with 

Hartwell’s murder but the charges were dropped due to a 

violation of her rights under Miranda v. Arizona, supra, 384 

U.S. 436. Reeder later agreed to testify at defendant’s trial for 

Hartwell’s murder under a grant of immunity.

Law enforcement searched defendant’s home and 

Hartwell’s apartment. At defendant’s home, officers found the 

receipt from the hardware store, the hotel receipt, Hartwell’s 

ATM card, a chain, and a trash can. DNA from blood samples 

taken at Hartwell’s apartment matched Hartwell and 

defendant. Defendant was eventually convicted of Hartwell’s 

murder.

b. Analysis

Only relevant evidence is admissible at trial. (Evid. Code, 

§ 350.) “Relevant evidence is broadly defined as that having a 

‘tendency in reason to prove or disprove any disputed fact that 

is of consequence’ to resolving the case.” (People v. Bryant, 

Smith and Wheeler (2014) 60 Cal.4th 335, 405 (Bryant), quoting 

Evid. Code, § 210.) Evidence Code section 1101 states that 

although evidence of a person’s character is inadmissible when 

offered to prove conduct on a specific occasion, “evidence that a 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

30

person committed a crime, civil wrong, or other act [is 

admissible] when relevant to prove some fact (such as motive, 

opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake or accident . . . ) other than his or her 

disposition to commit such an act.” (Evid. Code, § 1101, subd. 

(b).) In other words, the statute allows the admission of 

evidence of criminal activity other than the charged offense 

“ ‘when such evidence is relevant to establish some fact other 

than the person’s character or disposition.’ ” (People v. Johnson

(2022) 12 Cal.5th 544, 610.)

“When reviewing the admission of other crimes evidence 

to show motive, ‘ “a court must consider: (1) the materiality of 

the fact to be proved or disproved, (2) the probative value of the 

other crime evidence to prove or disprove the fact, and (3) the 

existence of any rule or policy requiring exclusion even if the 

evidence is relevant.” ’ ” (People v. Johnson, supra, 12 Cal.5th 

at p. 610.) We review a trial court’s decision to admit evidence 

under Evidence Code sections 1101 and 352 for abuse of 

discretion. (People v. Johnson, supra, 12 Cal.5th at p. 610; see 

also People v. Fuiava (2012) 53 Cal.4th 622, 667–668.) We do 

not disturb the trial court’s ruling unless it was arbitrary, 

capricious, or made in a “ ‘patently absurd manner that resulted 

in a manifest miscarriage of justice.’ ” (People v. Powell (2018) 

6 Cal.5th 136, 162.)14

14 Defendant asserts de novo review is appropriate because 

“this Court can review the prosecutor’s offer of proof regarding 

Hartwell’s death, and assess its relevance as well as the trial 

court,” citing In re Jenkins (2010) 50 Cal.4th 1167. Jenkins

concerned the validity of a regulation from California’s 

Department of Corrections and Rehabilitation governing work 
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Opinion of the Court by Cantil-Sakauye, J.

31

Addressing the merits of defendant’s claim, we must 

consider two issues. First, defendant asserts the trial court 

admitted the challenged evidence only to demonstrate intent, 

and therefore that our review should be limited to whether the 

other acts evidence was properly admitted on that basis. 

Second, defendant asserts that, regardless of the purpose for 

which the trial court admitted the evidence, doing so was error 

under Evidence Code sections 1101 and 352. 

As discussed below, our analysis here relates to 

defendant’s blanket challenge to the admission of any evidence 

related to Hartwell’s murder. Because defendant did not raise 

objections to specific pieces of evidence (with certain narrow 

exceptions also discussed below) neither the trial court nor this 

court is in a position to parse the record independently and 

examine each piece of evidence under Evidence Code section 

352. Undertaking an analysis of defendant’s blanket challenge, 

we hold that the trial court did not abuse its discretion under

either Evidence Code sections 1101 or 352 by admitting the 

evidence related to Hartwell’s murder. 

i. Purpose of admission

The prosecution filed a pretrial motion seeking to admit 

evidence of Hartwell’s murder “to demonstrate intent, 

credits and is inapposite. (Id. at pp. 1171–1172.) We stated that 

“we have ‘allowed parties to “ ‘advance new theories on appeal 

when the issue posed is purely a question of law based on 

undisputed facts, and involves important questions of public 

policy.’ ” ’ ” (Id. at p. 1180.) Defendant provides no compelling 

reason why Jenkins, which is entirely unrelated to the 

admission of evidence under Evidence Code sections 352 and 

1101, should override our consistent application of the abuse of 

discretion standard to the evidentiary issues raised here.
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

32

premeditation and deliberation, motive, common plan or 

scheme, and lack of self-defense.” In that motion, the 

prosecution asserted the evidence was admissible because, 

among other reasons, it supported the conclusion that defendant 

had killed Noriega and Hartwell for the same motive — to avoid 

going to prison because defendant thought Noriega was “a 

snitch” and because Hartwell had threatened to report 

defendant to police. Judge Luebs granted the motion when 

defendant was representing himself. Judge Boren revisited the 

motion when defendant was represented by counsel. At the 

later hearing, defense counsel objected to the admission of 

evidence regarding Hartwell’s murder. The court granted the 

prosecution’s motion over defendant’s objection, finding “a 

sufficient basis under 1101(b) for that to come in. It . . . seems 

to me it has relevance to, and is probative on, the issue of the 

defendant’s state of mind, his intent, and that . . . under 352 the 

negative factors simply do not outweigh that probative value. 

So I would allow the 1101(b) evidence in.”

Defendant asserts that the trial court’s ruling admitted 

the evidence solely to prove intent, and that this court cannot 

consider other reasons for admitting the evidence under 

Evidence Code section 1101, subdivision (b). He contends that

“[t]he prosecutor’s failure to cite the theories of admissibility 

now offered by [the People] deprived [defendant] of the 

opportunity to argue to the trial court why the evidence was 

either not admissible under those theories or should be excluded 

under section 352.” This position is unavailing. 

As described above, the prosecution expressly relied on 

motive as one basis for admissibility in the trial court. Although 

the trial court stated it found the evidence relevant to 

defendant’s “state of mind” and “his intent,” the record does not 
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Opinion of the Court by Cantil-Sakauye, J.

33

support defendant’s assertion that the trial court admitted the 

evidence solely to show intent without any reference to motive. 

Rather, the court’s discussion of the issue with counsel, 

including its discussion of the jury instructions relevant to this 

evidence, indicates the court understood its ruling to be more 

broad than defendant contends. When Judge Boren considered 

the prosecution’s motion to admit the evidence, defense counsel 

requested clarification concerning the purpose for which the 

evidence would be offered. The court asked the prosecution if it 

wished to clarify, stating, “I think you did lay it out previously.” 

The prosecution agreed that it had done so, and further stated, 

“What I’d be happy to do is confer with counsel and let them 

know precisely what I intend to use it for and answer any 

questions they may have about what theories I intend to offer.” 

Defense counsel agreed to that approach. 

Later, after Reeder testified, the jury was instructed that 

it could consider evidence of Hartwell’s murder for the limited 

purpose of deciding, as relevant here, whether defendant 

intended to kill Noriega, had a motive to kill Noriega, or killed 

Noriega in self-defense or as the result of an accident. Although 

defendant objected generally at that point to the admission of 

the testimony under Evidence Code section 1101, subdivision 

(b), he did not assert the instruction should be narrowed to refer 

only to intent but agreed with the instruction as written. The 

court stated it would admit the evidence “for the reasons as 

previously stated.” The court also read the instruction to the 

jury at the close of trial. The instruction informed the jury that 

it could not consider evidence of uncharged conduct unless it 

found by a preponderance of the evidence that defendant had 

committed that conduct. It further instructed, “If you decide 

that the defendant committed the uncharged act or acts, you 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

34

may, but are not required to, consider that evidence for the 

limited purpose of deciding whether or not the defendant acted 

with the intent to kill Rafael Noriega in this case, or the 

defendant acted with the intent to permanently deprive Rafael 

Noriega of property of some value in this case, or the defendant 

had a motive to commit the offense alleged in this case, or the 

defendant’s alleged actions were not the result of accident in this 

case, or the defendant had a plan or scheme to commit the 

offense alleged in this case, or the defendant’s alleged actions 

were not the result of self-defense in this case, or the defendant 

acted with premeditation and deliberation in this case.” 

When discussing jury instructions, defendant did not 

object to the instruction on the basis he now raises; that is, he 

did not assert that the instruction should be limited to refer only 

to intent. Thus, the combination of the colloquy between the 

court and counsel regarding this evidence and the jury 

instructions provided make clear that the court did not admit 

the evidence of Hartwell’s murder solely to establish intent. 

Rather, the jury was clearly told it could consider the other acts

evidence on the issue of motive. 

Further, the prosecution relied on evidence of defendant’s 

motive for killing Hartwell in order to establish defendant’s 

motive and intent to kill Noriega. In this way, the evidence of 

motive was offered to prove the ultimate fact of defendant’s 

intent. (See People v. Demetrulias (2006) 39 Cal.4th 1, 14 

[“Motive, though not itself an ultimate fact put at issue by the 

charges or the defense in this case, was probative of two 

ultimate facts, intent and lack of justification”].) We therefore

decline to limit our consideration of the admission of the 
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Opinion of the Court by Cantil-Sakauye, J.

35

evidence under Evidence Code section 1101, subdivision (b) to 

the issue of intent, as defendant asserts we must.

15

 

ii. Abuse of discretion

As stated, we review a trial court’s decision to admit 

evidence under Evidence Code sections 1101 and 352 for abuse 

of discretion. (People v. Johnson, supra, 12 Cal.5th at p. 610.) 

We find there was no abuse of discretion. The prosecution’s 

theory of the case was, in relevant part, that defendant killed 

Noriega because defendant believed Noriega was a “narc” — i.e., 

that defendant believed Noriega was going to report him to the 

police. The prosecution sought to introduce evidence that 

defendant killed Hartwell because Hartwell threatened to have 

15 The current instruction regarding uncharged offenses 

directs the trial court to “select specific grounds of relevance and 

delete all other options.” (CALCRIM No. 375.) The parties here

primarily focus on the role of intent and motive, but they do not 

discuss the portion of the jury instruction referring to common 

plan. Although the Attorney General does not assert the other 

acts evidence was admissible to establish a common plan, 

defendant does not challenge this portion of the instruction (and 

in fact agreed at trial to the instruction as provided) and thus 

has forfeited any such claim. (People v. Hillhouse (2002) 27 

Cal.4th 469, 503.) Even if we were to consider the issue, we 

would find any error harmless because, as we have concluded, 

there existed an independent basis to admit the evidence under 

Evidence Code section 1101, subdivision (b), and there is no 

indication the jury relied on a common plan theory in reaching 

the verdict here. It is thus not reasonably probable that the 

outcome would have been different absent any error. (People v. 

Beltran (2013) 56 Cal.4th 935, 955 [applying test for harmless 

error articulated in People v. Watson (1956) 46 Cal.2d 818 —

that the error is harmless unless it is reasonably probable the 

outcome would have been different in the absence of the error —

to incorrect jury instructions that do not amount to federal 

constitutional error].) 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

36

defendant arrested for selling drugs. This is a sufficient basis 

to support the admission of the evidence under Evidence Code 

section 1101, subdivision (b). 

People v. Demetrulias, supra, 39 Cal.4th 1 is instructive. 

There, we stated that “the probativeness of other-crimes 

evidence on the issue of motive does not necessarily depend on 

similarities between the charged and uncharged crimes, so long 

as the offenses have a direct logical nexus.” (Id. at p. 15; see also

People v. Daniels (1991) 52 Cal.3d 815, 857, People v. Pertsoni

(1985) 172 Cal.App.3d 369, 374.) Thus, in Demetrulias we 

upheld the admission of evidence of the defendant’s motives for 

robbing and assaulting one individual in order to support the 

prosecution’s theory that the defendant had the same motive 

when he stabbed and killed the victim in the charged offense. 

(People v. Demetrulias, supra, 39 Cal.4th at p. 15.) Similarly, 

we have held that evidence that a defendant had previously 

“stalked, bound, and assaulted” women and admitted that he

“found his attacks sexually stimulating” was “relevant and 

admissible to prove his motive to sexually assault” a later 

victim. (People v. Davis (2009) 46 Cal.4th 539, 604–605; see also 

People v. Spector (2011) 194 Cal.App.4th 1335, 1381 [one theory 

that supports admission is when “ ‘the uncharged act evidences 

the existence of a motive, but the act does not supply the 

motive . . . . [T]he motive is the cause, and both the charged and 

uncharged acts are effects. Both crimes are explainable as a 

result of the same motive’ ”], quoting 1 Imwinkelried, Uncharged 

Misconduct Evidence (2009) § 3:18, pp. 128–129.) 

Here, too, the prosecution offered evidence of Hartwell’s 

murder based on the theory that her murder and the killing of 

Noriega were explainable as a result of the same motive: 

defendant killed Hartwell because she threatened to report him 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

37

to police, and defendant killed Noriega because he believed

Noriega was a “narc.” This conclusion was further supported by 

additional evidence of other crimes presented at trial. The 

prosecution introduced evidence that defendant planned to kill 

Aguon and Christine because he believed they were going to 

report him to police for dealing drugs. And the prosecution 

introduced evidence that defendant armed himself with a 

shotgun when he believed police had been called following an 

incident of domestic violence. Each of these incidents involved 

defendant reacting to a belief that he had been or would be 

reported to police, and his committing or preparing to commit 

violence in order to avoid arrest. As the prosecution argued in 

its motion in limine, defendant “repeatedly planned to kill 

people to avoid arrest, over a period of a few years, and under 

the similar circumstances that the defendant believed his 

targeted victims were going to turn him in to police for his 

criminal behavior.” The trial court did not abuse its discretion 

in admitting the evidence under Evidence Code section 1101, 

subdivision (b) based on this theory. 

We next turn to whether the trial court abused its 

discretion when concluding that the probative value of evidence 

related to Hartwell’s murder was not outweighed by any 

potential for prejudice under Evidence Code section 352. 

Although this presents a closer question, we conclude the trial 

court did not abuse its discretion. 

Prejudice under Evidence Code section 352 refers to 

“ ‘ “evidence which uniquely tends to evoke an emotional bias 

against the defendant as an individual and which has very little 

effect on the issues.” ’ ” (People v. Williams (2013) 58 Cal.4th 

197, 270.) In this context, “ ‘ “ ‘prejudicial’ is not synonymous 

with ‘damaging.’ ” ’ ” (People v. Virgil (2011) 51 Cal.4th 1210, 
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Opinion of the Court by Cantil-Sakauye, J.

38

1249.) “ ‘Evidence is not prejudicial, as that term is used in a 

section 352 context, merely because it undermines the 

opponent’s position or shores up that of the proponent. The 

ability to do so is what makes evidence relevant. The code 

speaks in terms of undue prejudice. Unless the dangers of 

undue prejudice, confusion, or time consumption “ ‘substantially 

outweigh’ ” the probative value of relevant evidence, a section 

352 objection should fail.’ ” (People v. Doolin (2009) 45 Cal.4th 

390, 438–439.) 

Defendant raises several arguments in support of his 

claim that the evidence regarding Hartwell’s killing was unduly

prejudicial. First, he asserts the evidence “simply portrayed 

[defendant] as an evil and out of control person” because “[t]here 

was no relationship between the incidents.” Not so. As 

explained above, Hartwell’s murder demonstrated defendant’s 

motive to kill in order to avoid being arrested or “snitched” on. 

It was directly connected to the prosecution’s theory of the case. 

Further, any potential for undue prejudice was mitigated by the 

instruction provided to the jury that specifically prohibited the

jury from concluding based on the other acts evidence that “the 

defendant has a bad character or is disposed to commit crime.” 

Additionally, the jury was informed that defendant had been 

convicted of Hartwell’s murder. As the trial court here observed, 

this reduced the potential for undue prejudice because it 

ensured that “the jury was not tempted to convict defendant of 

the charged offenses, regardless of his guilt, in order to assure 

that he would be punished for” Hartwell’s murder. (People v. 

Balcom (1994) 7 Cal.4th 414, 427.) 

Second, defendant contends the main issue with regard to 

the killing of Noriega was the identity of the perpetrator, not the 

perpetrator’s motive or intent. Thus, he claims, the Hartwell
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Opinion of the Court by Cantil-Sakauye, J.

39

evidence was irrelevant. Again, Hartwell’s murder was relevant 

to establish motive under Evidence Code section 1101, 

subdivision (b). Defendant pleaded not guilty, placing all 

elements of the offense at issue. Defendant cannot now claim 

that, because he did not contest intent or premeditation, the 

prosecution was barred from introducing this evidence. (People 

v. Bryant, supra, 60 Cal.4th at p. 407; see also People v. Scott

(2011) 52 Cal.4th 452, 470–471.) 

Third, defendant asserts the evidence of Hartwell’s 

murder “required lengthy and prejudicial testimony.” The 

Attorney General concedes that the testimony regarding 

Hartwell’s murder “consumed a considerable amount of time.” 

Indeed, the record demonstrates that a substantial portion of 

the prosecution’s opening argument and about half of the trial 

testimony related to Hartwell’s murder. And the details of 

Hartwell’s murder included disturbing photographs and 

testimony regarding her stabbing and the gruesome condition of 

her body.16 The extent of evidence presented regarding the 

uncharged offense, coupled with the graphic nature of some of 

the evidence, is what makes this a close case. We nonetheless

conclude that defendant has not established error under the 

highly deferential standard applicable here. (See People v. Miles

(2020) 9 Cal.5th 513, 587 [trial court’s decision to admit evidence 

under Evidence Code section 352 will not be disturbed unless

the court exercised its discretion in an arbitrary, capricious or 

patently absurd manner that resulted in a manifest miscarriage 

of justice].) 

16 We discuss defendant’s specific objection to the 

photographs and testimony related to Hartwell’s body in section 

II.B.3, post. 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

40

The prosecution was required to prove by a preponderance 

of the evidence that defendant murdered Hartwell in order for 

that act to be considered under Evidence Code section 1101, 

subdivision (b). (People v. Foster (2010) 50 Cal.4th 1301, 1346.) 

The prosecution’s testimony thus focused on defendant’s 

behavior in Texas, including his statements made to other 

individuals relevant to Noriega’s murder (i.e., statements to 

Reeder that he had killed a “narc,” and statements overheard by 

Sams that he killed someone in California for drugs), 

defendant’s relationship with Hartwell that led to their falling 

out, and defendant’s decision to kill Hartwell after she told 

defendant she would report him to police. 

The prosecution’s main witness implicating defendant in 

Hartwell’s killing was Reeder. Reeder provided evidence that 

defendant killed Noriega because he was a “narc,” and she 

provided additional testimony regarding defendant’s 

statements about killing Noriega (that he put Noriega’s body in 

the back of a truck and hid the body in or near some caves). She 

described defendant’s plan to kill Hartwell because Hartwell 

had threatened to turn defendant in to the police, defendant’s 

statements to Reeder about killing Hartwell, and their disposal 

of Hartwell’s body. Reeder’s testimony thus not only supported 

the prosecution’s state of mind argument but also was central to 

its assertion that defendant killed Noriega.

Defendant vigorously cross-examined Reeder and

attacked her credibility. During closing arguments, defense 

counsel pointed to alleged inconsistencies in Reeder’s testimony 

and emphasized to the jury that Reeder had been given 

immunity for her testimony. Counsel stated that Reeder “told 

you she would be admitting to the murder, the murder of Regina 

Hartwell without immunity. And why did she walk? Why did 
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Opinion of the Court by Cantil-Sakauye, J.

41

she skate? Some technical loophole, some technicality and she 

walks. . . . Meanwhile she’s buying the gasoline to burn the 

body.” At one point, defense counsel asserted Reeder’s 

testimony that defendant had killed Noriega because he was a 

“narc” was not supported by any other evidence. At another 

point, counsel questioned whether it was Reeder who killed 

Hartwell, saying, “Do I know if she killed Regina Hartwell? I 

don’t know. She certainly had motive. She had way more 

motive than Justin Thomas.”17 

The prosecution bolstered Reeder’s credibility by 

providing testimony from other witnesses. Leal, Barnes, and 

Mihills all corroborated Reeder’s statement that Hartwell 

planned to report defendant to the police. Law enforcement 

officials described the chain of custody regarding relevant 

evidence (including a knife consistent with the wound to 

Hartwell’s body) and corroborated other details from Reeder’s 

story including, for example, the cut to defendant’s hand and 

that he had purchased a chain and a trash can when planning 

to dispose of Hartwell’s body. The medical examiner described 

the knife wound found during Hartwell’s autopsy as being 

consistent with Reeder’s reported account that defendant had 

stabbed Hartwell when she was in a seated position. The 

prosecution emphasized to the jury that these other witnesses 

corroborated Reeder’s testimony: “The real issue in the case is 

the credibility of the People’s witnesses, right; Dorothy Brown, 

17 When considering an objection to testimony from the

medical examiner during trial, the court observed that, “there 

has been some cross-examination of some evidence that suggests 

perhaps that someone other than Mr. Thomas did it [killed 

Hartwell], or that Ms. Reeder had a greater role in it, perhaps, 

than she announced.” 
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Opinion of the Court by Cantil-Sakauye, J.

42

Kim [Reeder], Michael Mihills, John Sams, right. . . . [¶] Rather 

than just saying, you know what, I choose to believe Kim 

[Reeder], which you can do, you don’t have to, though. Because 

you can look at all the other witnesses and all the other 

evidence, and you’ll see that it corroborates them.”

Understood in this context, we cannot say that it was an 

abuse of discretion for the trial court to admit the extensive

evidence regarding Hartwell’s murder, that the amount of time 

necessary to present it was excessive, or that the nature of the 

evidence was unduly prejudicial. Although another trial court 

might have reasonably reached a different conclusion, that is 

insufficient to demonstrate an abuse of discretion. (See Mercer 

v. Perez (1968) 68 Cal.2d 104, 114 [abuse of discretion cannot be 

found simply because a different decision “could have been 

reached”].) 

Next, defendant contends the strength of the evidence 

implicating him in Hartwell’s murder improperly bolstered the 

comparatively weak evidence connecting him to Noriega’s 

murder. We cannot agree with defendant’s characterization of 

the evidence implicating him in Noriega’s killing as “weak.” The 

jury heard testimony from Brown, who was an eyewitness to the 

killing. Reeder’s testimony corroborated Brown’s by providing 

details defendant conveyed to Reeder regarding his shooting of 

“Rafa,” and that defendant put the body in the back of his truck 

and then hid it in or near some caves. Sams also testified that 

defendant admitted to killing someone in California. Although 

defendant attacks the credibility of these witnesses and the 

reliability of the evidence generally, it was for the jury to 

determine whether they found the testimony credible and 

reliable. Given this evidence, it was not an abuse of discretion 

for the trial court to determine that the probative value of the 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

43

evidence related to Hartwell’s murder would outweigh the 

potential for undue prejudice. (See People v. Ewoldt (1994) 

7 Cal.4th 380, 406.) 

Finally, defendant asserts that other evidence used by the 

prosecution to connect him with Noriega’s death was unreliable. 

He focuses on testimony from Barajas and her sister, Brown’s 

testimony from the Texas trial, and defendant’s statements to 

third parties that he had killed someone in California. Other 

than the objections to Brown’s testimony discussed in section 

II.B.4, post, defendant does not challenge the admission of this 

other testimony. It was for the jury to evaluate the evidence and 

to reach a conclusion regarding defendant’s guilt. To the extent 

defendant asserts the admission of evidence related to 

Hartwell’s murder was prejudicial given this other allegedly 

unreliable evidence, that assertion is not compelling in light of 

our above evaluation of the claim under Evidence Code section 

352.

We find it significant that defendant’s challenges under 

Evidence Code sections 1101, subdivision (b) and 352 are to the 

admission of any evidence related to Hartwell’s murder; both in 

the trial court and in this court, he did not raise any specific 

objection to particular testimony or pieces of evidence (aside 

from certain photographs and related testimony discussed in 

section II.B.3, post). Thus, the trial court generally ruled that 

evidence related to Hartwell’s murder was admissible. It did 

not, however, parse the proffered testimony to determine the 

potential for undue prejudice nor did it consider how particular 

testimony might be tailored to avoid alleged undue prejudice.

Although a more nuanced analysis of the proffered

evidence might have been beneficial, it was not incumbent on 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

44

the trial court to undertake such an endeavor absent a specific 

objection and request from counsel. Evidence Code section 353, 

subdivision (a) requires counsel to “make clear the specific 

ground of the objection or motion.” Specific objections serve the 

important purpose of “fairly inform[ing] the trial court, as well 

as the party offering the evidence, of the specific reason or 

reasons the objecting party believes the evidence should be 

excluded, so the party offering the evidence can respond 

appropriately and the court can make a fully informed ruling.” 

(People v. Partida (2005) 37 Cal.4th 428, 435). “A party cannot 

argue the court erred in failing to conduct an analysis it was not 

asked to conduct.” (Ibid.) 

We have previously held the type of general objection 

defendant made here is not sufficient to preserve a claim as to 

specific pieces of evidence. (People v. Cowan (2010) 50 Cal.4th 

401, 477.) In Cowan, the defendant objected before trial to the 

introduction of any postmortem photographs of the victim. (Id. 

at p. 476.) The court overruled the objection, but “left open the 

possibility that, upon proper objection, it might later conclude 

that any particular photograph was irrelevant.” (Id. at p. 477.) 

The defendant did not later renew his objection as to specific 

photographs and we held that this failure to object “forfeited any 

claim that the trial court erred by failing to weigh each 

photograph’s individual probative value against its individual 

prejudicial effect.” (Ibid.) For the same reason, we decline to 

attempt to parse the evidence here given defendant’s lack of a 

specific objection in the trial court or in this court to any 

particular evidence related to Hartwell’s murder.

At oral argument in this court, defense counsel asserted 

that objections to specific portions of the evidence at trial once 

the trial court had made its initial ruling to admit evidence of 
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Opinion of the Court by Cantil-Sakauye, J.

45

Hartwell’s murder were not required and would have served 

only to annoy the trial court. To the extent this might be 

understood as an assertion that specific objections would have 

been futile, such an assertion is inconsistent with the record. 

When ruling on the prosecution’s motion to admit the evidence, 

the court stated, “I think that that very probative value as I 

understand it from the offer of proof and the information 

available is not substantially outweighed by any undue 

prejudicial effect or any other negative aspect of [Evidence Code 

section 352].” (Italics added.) As in Cowan, supra, 50 Cal.4th 

at page 477, this indicated that the court’s ruling was based on 

a preview of the evidentiary representations made by counsel at 

the time it ruled on the pretrial motion and that the court was 

not foreclosing further rulings as the evidence developed. 

Indeed, the trial court did consider and rule on later objections 

to specific evidence, including evidence related to Hartwell’s 

murder. For example, after the trial court generally admitted 

evidence of Hartwell’s murder it considered the prosecution’s 

motion to admit photographs of Hartwell’s autopsy and 

defendant’s related objections. The trial court conducted an 

evaluation of the evidence in light of that specific objection and

admitted, excluded, or deferred ruling on photographs of 

Hartwell’s autopsy. When defense counsel raised the objection 

to the autopsy photographs and the pathologist’s testimony

again during trial, the trial court conducted another analysis of 

the relevance and potential for prejudice before admitting the

evidence. This is precisely the process the Evidence Code calls 

for in order to fairly present and preserve a challenge to 

proffered evidence.

Considering, then, defendant’s objection to the admission 

of any evidence related to Hartwell’s murder, we conclude that 
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Opinion of the Court by Cantil-Sakauye, J.

46

the trial court did not abuse its discretion under Evidence Code 

sections 1101, subdivision (b) or 352. Because there was no 

statutory error, defendant’s constitutional claims likewise fail. 

(See People v. Fuiava, supra, 53 Cal.4th at p. 670; People v. 

Foster (2010) 50 Cal.4th 1301, 1335.)

2. Defendant’s alleged plan to kill Aguon and 

Christine

Defendant asserts the admission of evidence regarding his 

alleged plan to kill Aguon and Christine also violated Evidence 

Code sections 1101, subdivision (b), and 352. The Attorney 

General contends the claim is forfeited and without merit. Even 

if we were to find the claim was not forfeited, we agree with the 

Attorney General that the trial court did not err in admitting 

this evidence.

a. Forfeiture

The Attorney General contends defendant forfeited any 

claim related to the admission of evidence of a plan to kill Aguon 

and Christine by failing to object at trial. The prosecution 

moved before trial to admit the evidence under Evidence Code 

section 1101. The trial court considered the prosecution’s 

motion on two occasions. First, Judge Luebs granted the 

prosecution’s motion to admit the evidence at a hearing in April 

2007 when defendant was representing himself. In October 

2007, when defendant was represented by counsel, Judge Boren 

allowed defendant to reargue motions that Judge Luebs had 

previously ruled on, including the admission of other acts 

evidence under Evidence Code section 1101, subdivision (b).

Defendant acknowledges that although defense counsel 

objected at the October 2007 hearing to the introduction of 

evidence regarding Hartwell’s murder, counsel did not raise any 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

47

objection regarding the plan to kill Aguon and Christine. 

Defendant maintains, however, that he preserved the issue

when he was representing himself at the April 2007 hearing by 

stating: “I believe that would be prejudicial because there is no 

police reports [sic] indicating threats were made in that 

manner.” The transcript of the hearing, however, reveals that 

defendant did not raise a proper objection to preserve his claim. 

During the April 2007 hearing, the court initially raised 

the prosecution’s motion to admit evidence under Evidence Code 

section 1101, subdivision (b) and asked defendant if he objected 

to the motion. Defendant stated, “At this time no, your Honor.” 

The prosecution and the court then discussed several incidents 

that the prosecution sought to introduce at trial: the murder of 

Hartwell; defendant’s threat to kill police officers; and 

defendant’s plan to kill Aguon and Christine. Regarding the 

threat to police, the prosecution stated that defendant told 

Investigator Silva that “he got the gun because he thought the 

police were coming and he was ready to use it with the police.” 

Regarding the threat to Aguon and Christine, the prosecution 

stated it would rely on testimony from Maximilian Garcia. After 

further discussion, the court inquired again of defendant 

whether he had any objections. The following exchange then 

occurred:

“[Defendant]: Your Honor, I wasn’t aware. I haven’t 

had a chance to review the tapes of the Silva 

interview. I was not aware.

“[Court]: It was in the moving papers, essentially 

the description of it. But do you want to — you 

heard what he said, right?

“[Defendant]: Yes, sir.
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Opinion of the Court by Cantil-Sakauye, J.

48

“[Prosecution]: It is also in the transcripts that were 

turned over.

“[Court]: Okay.

“[Defendant]: I believe that would be prejudicial 

because there is no police reports [sic] indicating 

threats were made in that manner.

“[Court]: This case — you apparently said it 

yourself. You told Mr. Silva. He has it on tape, 

apparently.

“[Defendant]: I haven’t agreed to that evidence.

“[Court]: So your only objection is you haven’t 

reviewed the evidence. [¶] Assuming it is there, sir, 

is there some reason I should not grant the motion 

under 1101 of the Evidence Code? You have to give 

me legal basis, because [the prosecution] made a 

compelling argument.

“[Defendant]: I cannot, your Honor.” 

This exchange makes clear that defendant’s objection was 

related to his statements to Silva regarding the alleged threat 

to police officers, and in any event was not made under Evidence 

Code section 1101. Defendant’s objection thus was not sufficient 

to preserve a challenge under Evidence Code sections 1101 and 

352 to the evidence of a plan to kill Aguon and Christine. (People 

v. Valdez (2012) 55 Cal.4th 82, 130 [objection must fairly inform 

the court and the party offering the evidence of the specific 

reasons the evidence should be excluded so the party offering 

the evidence can respond and the court can make an informed 

ruling]; Evid. Code, § 353 [verdict may not be set aside based on 

erroneous admission of evidence absent a timely and specific 

objection on the record, or the error resulted in a miscarriage of 

justice].) 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

49

b. Analysis

Even assuming defendant preserved his claim regarding 

the admission of evidence related to his threat to kill Aguon and 

Christine, we conclude there was no error in admitting that 

evidence.

As stated above, we review the trial court’s decision to 

admit evidence under Evidence Code sections 1101 and 352 for 

abuse of discretion. (People v. Johnson, supra, 12 Cal.5th at 

p. 610.) We find no abuse of discretion. 

The evidence regarding the threat to kill Aguon and 

Christine was admissible to establish motive under Evidence 

Code section 1101, section (b). Like the evidence regarding 

Hartwell’s murder, the threat to Aguon and Christine bolstered 

the prosecution’s theory of the case by providing an additional 

example of a situation when defendant planned lethal violence 

when he believed he would be reported to police by Aguon and 

Christine. 

Neither did the admission of this evidence constitute an 

abuse of discretion under Evidence Code section 352. Defendant 

makes similar assertions regarding undue prejudice as he does 

regarding the evidence of Hartwell’s murder, including that the 

evidence of his threats to Aguon and Christine was irrelevant 

and portrayed him as “an evil and out of control person.” Those 

claims are no more availing in this context. Indeed, the 

testimony regarding the threat to Aguon and Christine was 

relatively brief and defendant points to no aspect of that 

testimony that contained potentially inflammatory information

such that the evidence was more prejudicial than it was 

probative. And, as with the evidence of Hartwell’s murder, the 

relevant jury instruction specifically prohibited the jury from 
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Opinion of the Court by Cantil-Sakauye, J.

50

considering the incident as evidence of defendant’s “bad 

character.” We hold there was no statutory or constitutional 

error. (See People v. Fuiava, supra, 53 Cal.4th at p. 670; People 

v. Foster, supra, 50 Cal.4th at p. 1335.)

3. Photographs of Hartwell and Noriega and related 

testimony

Defendant challenges the admission of testimony related 

to Hartwell’s autopsy as well as photographs of Noriega and 

Hartwell as unduly prejudicial under Evidence Code section 

352. He contends that the admission of this evidence deprived 

him of his federal right to due process and a fair trial, and that 

the admission of the photographs prejudiced him at the guilt 

and penalty phases. We conclude that the trial court did not err 

by admitting some of the challenged evidence. As to the 

remaining evidence, we find that any error was harmless.

The prosecution sought to introduce a number of 

photographs related to Noriega. The court admitted seven 

photographs of the field where Noriega’s body was found; five of 

those showed (entirely or in part) Noriega’s decomposed body. 

The court also admitted two photographs of Noriega’s 

decomposed body lying on a body bag in a laboratory setting. 

The court excluded as cumulative two other similar 

photographs. The court deferred a final ruling regarding a 

photograph showing the sternum of Noriega’s body with an

apparent bullet hole, but it ultimately admitted the photo. The 

prosecution also sought to introduce three photographs of 

Noriega taken while he was alive. The court indicated it would 

allow the prosecution to use one of those photographs for 

witnesses to identify Noriega, and the prosecution selected a 

photograph of Noriega taken at a restaurant where he worked. 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

51

The prosecution also moved to admit various photographs 

related to Hartwell’s murder. The court admitted one 

photograph of Hartwell talking on the telephone to be used for 

witnesses to identify her. The prosecution also sought to admit 

photographs of the burned car inside which Hartwell’s body was 

found. The court admitted five such photographs (two of which 

showed the area where the car was found, but not the car or 

Hartwell’s body) and excluded another that depicted Hartwell’s 

burned remains inside the car. Finally, the prosecution sought 

to admit five photographs from Hartwell’s autopsy. The court 

admitted two of those, both of which showed a probe pointing to 

a stab wound in Hartwell’s torso. Bayardo, who performed the 

autopsy of Hartwell’s body, testified that it had been “partially 

cremated” and described the stab wound depicted in the 

photographs. 

Defendant objects to the admission of the photographs of 

Noriega and Hartwell depicting them when they were alive, 

asserting these photographs were irrelevant and evoked undue 

emotional sympathy. We review the trial court’s decision to 

admit the photographs for abuse of discretion. (People v. Scully

(2021) 11 Cal.5th 542, 590.) “ ‘To determine whether there was 

an abuse of discretion, we address two factors: (1) whether the 

photographs were relevant, and (2) whether the trial court 

abused its discretion in finding that the probative value of each 

photograph outweighed its prejudicial effect.’ ” (People v. Lewis

(2009) 46 Cal.4th 1255, 1282.) Although we have “repeatedly 

cautioned against the admission of photographs of murder 

victims while alive unless the prosecution can establish the 

relevance of such items,” we have also held that such 

photographs can be relevant “to establish the witnesses’ ability 

to identify the victims as the people about whom they were 
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Opinion of the Court by Cantil-Sakauye, J.

52

testifying.” (People v. DeSantis (1992) 2 Cal.4th 1198, 1230; see 

also People v. Tully (2012) 54 Cal.4th 952, 1020; People v. 

Martinez (2003) 31 Cal.4th 673, 692.) Here, the photographs of 

Noriega and Hartwell were used in this permissible manner. 

Moreover, the photographs were sufficiently neutral and 

detached such that they were not likely to produce any 

prejudicial impact. (People v. Suff (2014) 58 Cal.4th 1013, 1072–

1073.) The trial court did not err by admitting these 

photographs.

Defendant also objects to the admission of photographs of

Noriega’s decomposed body and the field where Noriega’s body 

was found. He asserts the photographs were unduly prejudicial, 

irrelevant, and “unnecessary” because the prosecution could 

have introduced details regarding Noriega’s autopsy by way of 

testimony rather than photographic evidence. He notes, for 

example, that it was not disputed at trial that Noriega was shot 

and that the prosecution’s witness could have expressed an

opinion regarding the cause of death without showing the 

photographs. 

“ ‘This court is often asked to rule on the propriety of the 

admission of allegedly gruesome photographs. [Citations.] At 

base, the applicable rule is simply one of relevance, and the trial 

court has broad discretion in determining such relevance. 

[Citation.] “ ‘ [M]urder is seldom pretty, and pictures, testimony 

and physical evidence in such a case are always unpleasant’ ” 

[citation], and we rely on our trial courts to ensure that relevant, 

otherwise admissible evidence is not more prejudicial than 

probative [citation]. A trial court’s decision to admit 

photographs under Evidence Code section 352 will be upheld on 

appeal unless the prejudicial effect of such photographs clearly 

outweighs their probative value.’ ” (People v. Scully, supra, 11 
PEOPLE v. THOMAS

Opinion of the Court by Cantil-Sakauye, J.

53

Cal.5th at p. 590.) “In a prosecution for murder, photographs of 

the murder victim and the crime scene are always relevant to 

prove how the charged crime occurred . . . .” (People v. Pollock

(2004) 32 Cal.4th 1153, 1170.) “The prosecution is not obliged 

to prove its case solely from the testimony of live witnesses; ‘the 

jury is entitled to see details of the victims’ bodies to determine 

if the evidence supports the prosecution’s theory of the case.’ ” 

(People v. Scully, supra, 11 Cal.5th at p. 590.)

The photographs of the field where Noriega’s body was 

found were relevant to corroborate and illustrate the testimony 

of the witnesses who discovered and recovered the body. (See 

People v. Scully, supra, 11 Cal.5th at pp. 590–591; People v. 

Heard (2003) 31 Cal.4th 946, 973–974.) The manner in which 

defendant disposed of Noriega’s body — leaving it in a field 

under a pallet where he would decompose over time — was 

certainly callous. But it cannot be said that the photographs of 

the field (one of which shows Noriega’s body in its entirety) were 

unduly prejudicial. 

We likewise conclude that the photographs of Noriega’s 

decomposed body were not unduly prejudicial. We have stated 

that “the absence of a defense challenge to particular aspects of 

the prosecution’s case or its witnesses does not render victim 

photographs irrelevant.” (People v. Lewis (2001) 25 Cal.4th 610, 

641.) Defendant’s assertion that a witness could have testified

regarding Noriega’s cause of death without the photographs 

does not alter our analysis. “That the challenged photographs 

may not have been strictly necessary to prove the People’s case 

does not require that we find the trial court abused its discretion 

in admitting them.” (People v. Mills (2010) 48 Cal.4th 158, 191; 

see also People v. Morales (2020) 10 Cal.5th 76, 104; People v. 
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Opinion of the Court by Cantil-Sakauye, J.

54

Pride (1992) 3 Cal.4th 195, 243 [prosecution need not “accept 

antiseptic stipulations in lieu of photographic evidence”].)

The photographs of Noriega’s remains were relevant to 

prove the circumstances of his death and to support the 

prosecution’s case. Further, the photographs assisted the jury 

in understanding the testimony regarding the manner of death. 

Ditraglia testified that the hole in Noriega’s sternum was 

consistent with a gunshot wound, corroborating Brown’s 

testimony that defendant shot Noriega. It is true that these 

photographs and the related testimony are unpleasant and 

gruesome. But, as we have often said, such photographs are 

“ ‘ “ ‘seldom pretty’ ” ’ ” and “ ‘ “ ‘always unpleasant’ ” ’ ” (People 

v. Scully, supra, 11 Cal.5th at p. 590.) In light of their relevance 

to the issues here, we cannot say that the photographs were so

unduly gruesome or inflammatory such that the trial court 

abused its discretion in admitting them. (Id. at pp. 591–592; see 

also People v. Morales, supra, 10 Cal.5th at p. 103; People v. 

Montes (2014) 58 Cal.4th 809, 862; People v. Howard (2010) 51 

Cal.4th 15, 33.) 

Finally, defendant objects to the admission of photographs 

of Hartwell’s burned car, photographs of Hartwell’s body, and

Bayardo’s testimony regarding Hartwell’s autopsy. We 

acknowledge that this evidence, perhaps even more than the 

photographs of Noriega’s body, was unpleasant and gruesome.

However, even assuming the trial court abused its discretion by 

admitting the photographs and related testimony, we find any 

error harmless under People v. Watson, supra, 46 Cal.2d 818. 

(See People v. Carter (2005) 36 Cal.4th 1114, 1170 [applying 

Watson to alleged error under Evidence Code section 352 in 

admitting photographs of victim].) “Under the Watson

standard, the erroneous admission of a photograph warrants 
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55

reversal of a conviction only if the appellate court concludes that 

it is reasonably probable the jury would have reached a different 

result had the photograph been excluded.” (People v. Scheid

(1997) 16 Cal.4th 1, 21.) We find no such reasonable probability 

here. Evidence and testimony — including Reeder’s testimony 

and defendant’s DNA found in Hartwell’s apartment — directly 

implicated defendant in Hartwell’s murder. And, although the 

challenged photographs corroborated the incriminating 

evidence, the photographs were not central to the prosecution’s 

case or the jury’s ultimate determination of the issues. Thus, 

even were we to assume there was error in admitting the 

autopsy photographs and related testimony, we would conclude 

that there is no reasonable probability that the exclusion of this 

evidence would have led to a different result at either the guilt 

or penalty stage. 

4. Brown’s testimony from defendant’s Texas trial

Defendant contends the trial court erred when it admitted 

into evidence Brown’s testimony from defendant’s Texas trial for 

Hartwell’s murder. He maintains the testimony was not 

admissible under Evidence Code section 1291 because his 

interest and motive in cross-examining Brown at the Texas trial 

was not similar to that which he had at his California trial, and 

that the admission of the testimony violated his rights to 

confront witnesses, to due process, to an accurate jury 

determination, and to the protection against cruel and unusual 

punishment. We conclude the trial court did not err, and that 

defendant’s constitutional rights were not violated.

a. Factual background

Before defendant’s trial for the killing of Noriega, the 

prosecution moved to admit Brown’s testimony from defendant’s 
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Texas trial for Hartwell’s murder, citing Evidence Code section 

1291. The Texas trial consisted of a guilt phase and a penalty 

phase; during the penalty phase a jury considered evidence and 

made a sentencing recommendation to the court. Brown 

testified under oath first outside the presence of the jury at a 

hearing to determine whether her testimony would be 

admissible during the penalty phase and later in front of the 

jury during the penalty phase. Defendant’s Texas counsel crossexamined Brown during those proceedings, questioning her 

about her criminal history, drug use, and prior inconsistent 

statements to law enforcement about Noriega’s death. The 

prosecution in the Texas case relied on Brown’s testimony as a 

factor in aggravation that warranted a life sentence. Brown 

died in 2004, before defendant’s trial in California.

Defendant objected at his California trial to the admission 

of Brown’s testimony on hearsay and constitutional grounds, 

asserting that defense counsel in the Texas trial did not have a 

similar interest and motive to cross-examine Brown. The trial 

court admitted Brown’s testimony, finding that “the motive was 

actually more than similar. It seemed to me it was darn near 

identical to what is at issue here, that is, proving that — or at 

least indicating to the trier of fact there that this witness was 

not believable.” A transcript of Brown’s testimony from the 

Texas case was read to the California jury. Defendant asserts 

this was error.

b. Analysis

Evidence Code section 1291 provides an exception to the 

hearsay rule and permits the admission of evidence of former 

testimony if the declarant is unavailable as a witness and, as 

relevant here, “[t]he party against whom the former testimony 
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57

is offered was a party to the action or proceeding in which the 

testimony was given and had the right and opportunity to crossexamine the declarant with an interest and motive similar to 

that which he has at the hearing.” (Evid. Code, § 1291, subd. 

(a)(2).) The interest and motive for cross-examining the witness 

required under the Evidence Code “ ‘ “need not be identical, only 

‘similar.’ ” ’ ” (People v. Harris (2005) 37 Cal.4th 310, 333.)18 We 

review the trial court’s decision to admit Brown’s prior 

testimony for abuse of discretion. (People v. Sanders (1995) 11 

Cal. 4th 475, 525.)19

Defendant does not contest that Brown was unavailable 

as required by the statute. His sole contention is that the 

motives and interests concerning cross-examination at the 

Texas trial and the California trial were not sufficiently similar. 

He bases his claim on two points, neither of which is persuasive. 

First, defendant asserts that counsel in his Texas case did 

not vigorously cross-examine Brown because defendant had 

already been convicted of Hartwell’s murder, and Brown’s 

testimony likely would have had a “minimal” impact on 

defendant’s sentence. This assertion is unavailing. We have 

described a defendant’s interest and motive in cross-examining 

18 We recently considered the scope of the interest and 

motive exception in the civil context. (Berroteran v. Superior 

Court (2022) 12 Cal.5th 867.) That decision, however, expressly 

notes that it has no application to criminal cases. (Id. at p. 897, 

fn. 25.)

19 Defendant asserts de novo review is appropriate because 

we are applying the law to undisputed facts. However, 

defendant acknowledges our precedent requires application of

an abuse of discretion standard in this context and he provides 

no reason for us to revisit that determination.
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58

a witness during a preliminary hearing to discredit the witness’s 

testimony establishing the defendant’s guilt as “identical” to 

that which he would have had to cross-examine the witness 

during trial. (People v. Zapien, supra, 4 Cal.4th at p. 975; see 

also People v. Carter (2005) 36 Cal.4th 1114, 1173; People v. 

Wharton (1991) 53 Cal.3d 522, 590.) Here, too, defendant had 

an interest at both proceedings in discrediting Brown’s 

testimony because it implicated him in Noriega’s death. In the 

Texas proceeding, Noriega’s death was used as a factor in 

aggravation during sentencing; the prosecution in the Texas 

case urged the jury to impose a life sentence, whereas 

defendant’s counsel sought probation. Thus, defendant had a 

sufficiently similar interest and motive in cross-examining 

Brown during the Texas trial: to discredit her testimony in 

order to avoid a life sentence. The trial court did not abuse its 

discretion in reaching this conclusion.

Second, defendant contends counsel likely wanted to avoid 

a lengthy cross-examination of Brown in the Texas proceeding 

to avoid inflaming the jury, and that the alleged brevity of crossexamination supports that position. But the requirement that 

a defendant have a similar interest and motive to cross-examine 

is satisfied even when the cross-examination that actually 

occurred “might have been more effective.” (People v. Samayoa

(1997) 15 Cal.4th 795, 851; People v. Carter, supra, 36 Cal.4th 

at pp. 1173–1174.) As explained below, the cross-examination 

that took place in defendant’s Texas prosecution further 

supports the conclusion that there was no error here. 

In an attempt to avoid a term of life in prison, defendant’s 

counsel in Texas cross-examined Brown by attacking her 

credibility and seeking to impeach her testimony. Counsel 

probed Brown’s criminal history, her admitted involvement in 
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59

selling narcotics, and her status on parole. Counsel elicited 

testimony from Brown that she had made prior inconsistent 

statements about Noriega’s death, and that she was likely under 

the influence of methamphetamine when Noriega was killed. 

Counsel attempted to impeach Brown by asking whether she 

received any promises of leniency from law enforcement in 

exchange for her testimony, and elicited an admission from 

Brown that she lied to one detective to “beef up the story 

enough” to avoid jail and that she “conjured up some of” her prior 

statements. Although defendant contends the amount of time 

counsel spent cross-examining Brown was “meager,” counsel’s 

areas of inquiry illustrate that the interest and motive in crossexamining Brown was sufficiently similar to support the 

admission of Brown’s testimony at the California trial. 

Defendant’s constitutional claims fare no better. He 

asserts the admission of Brown’s testimony violated his state 

and federal right to due process and rendered his trial 

fundamentally unfair, violated his right to an accurate jury 

determination under the Sixth and Fourteenth Amendments, 

resulted in cruel and unusual punishment, and violated his 

right to confrontation under the Sixth and Fourteenth 

Amendments. Having concluded that the trial court properly 

admitted Brown’s testimony, we cannot say there was any 

violation of defendant’s constitutional rights. (See People v. 

Fuiava, supra, 53 Cal.4th at p. 670 [proper admission of 

evidence under state law does not violate constitutional right to 

fair trial]; People v. Lindberg (2008) 45 Cal.4th 1, 26 [application 

of rules of evidence generally does not impermissibly infringe on 

a defendant’s constitutional rights]; People v. Wilson (2005) 36 

Cal.4th 309, 340 [Evidence Code section 1291 codifies the 

traditional exception to the Sixth Amendment regarding 
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60

unavailable witnesses when the defendant has had a prior 

opportunity to cross-examine]; People v. Carter, supra, 36 

Cal.4th at p. 1172, citing United States v. Owens (1988) 484 U.S. 

554, 559.)

C. Claims Regarding Special Circumstance 

Allegations

1. Robbery-murder special circumstance

Defendant contends the robbery-murder special 

circumstance, and therefore the guilt and penalty phase 

judgments, must be reversed because there was insufficient 

evidence to support the jury’s finding that defendant harbored 

an independent felonious purpose to rob Noriega. We conclude 

there was sufficient evidence to support the jury’s finding. 

“ ‘To determine whether sufficient evidence supports a 

jury verdict, a reviewing court reviews the entire record in the 

light most favorable to the judgment to determine whether it 

discloses evidence that is reasonable, credible, and of solid value 

such that a reasonable jury could find the defendant guilty 

beyond a reasonable doubt.’ ” (People v. Hardy (2018) 5 Cal.5th 

56, 89.) “ ‘This standard of review applies when the evidence is 

largely circumstantial and to review of special circumstance 

findings.’ ” (Ibid.)

“When reviewing the sufficiency of evidence to support a 

special circumstance, the relevant inquiry is ‘ “whether, after 

viewing the evidence in the light most favorable to the People, 

any rational trier of fact could have found the essential elements 

of the allegation beyond a reasonable doubt.” ’ [Citation.] We 

presume in support of the judgment the existence of every fact 

the trier of fact reasonably could infer from the evidence.” 

(People v. Lindberg, supra, 45 Cal.4th at p. 27.) “ ‘ “ ‘If the 
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61

circumstances reasonably justify the trier of fact’s findings, the 

opinion of the reviewing court that the circumstances might also 

be reasonably reconciled with a contrary finding does not 

warrant a reversal of the judgment.’ ” ’ ” (People v. Valdez (2004) 

32 Cal.4th 73, 104.) “A reviewing court neither reweighs the 

evidence nor reevaluates a witness’s credibility.” (People v. 

Lindberg, supra, 45 Cal.4th at p. 27.) Reversal is not warranted 

“unless it appears ‘that upon no hypothesis whatever is there 

sufficient substantial evidence to support [the conviction.]’ ” 

(People v. Bolin (1998) 18 Cal.4th 297, 331.)

A robbery-murder special circumstance requires a finding 

that the “murder was committed while the defendant was 

engaged in, or was an accomplice in, the commission of, 

attempted commission of, or the immediate flight after 

committing, or attempting to commit” a “[r]obbery in violation 

of Section 211 or 212.5.” (§ 190.2, subd. (a)(17), (a)(17)(A).) “[I]f 

the murder furthers the robbery or attempted robbery, the 

special circumstance is satisfied. But, if the robbery or 

attempted robbery simply furthers or facilitates the murder, it 

is not, because the robbery’s ‘sole object is to facilitate or conceal 

the primary crime.’ ” (People v. Mora and Rangel (2018) 5 

Cal.5th 442, 490–491.) “[T]he special circumstance . . . requires 

that the murder be committed ‘in order to advance [the] 

independent felonious purpose’ of robbery . . . .” (People v. 

Burney (2009) 47 Cal.4th 203, 253.) In other words, “[t]he 

robbery must not be ‘merely incidental’ to the commission of the 

murder.” (People v. Clark (2011) 52 Cal.4th 856, 947.) A 

concurrent intent to rob and to kill will support the special 

circumstance allegation: “The question is ‘whether the 

defendant had a “purpose for the [robbery] apart from 
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62

murder.” ’ ” (People v. Hardy, supra, 5 Cal.5th at p. 89; see also 

People v. Davis, supra, 46 Cal.4th at p. 609.) 

“ ‘ “[W]hen one kills another and takes substantial 

property from the victim, it is ordinarily reasonable to presume 

the killing was for purposes of robbery.” [Citation.] And, 

significantly, we have observed that “[i]f a person commits a 

murder, and after doing so takes the victim’s wallet, the jury may 

reasonably infer that the murder was committed for the purpose 

of obtaining the wallet, because murders are commonly 

committed to obtain money.” ’ ” (People v. Hardy, supra, 5 

Cal.5th at p. 91; see also People v. Thompson (2010) 49 Cal.4th 

79, 126 [upholding robbery murder special circumstance when 

defendant planned to rob victim “as part of a larger plan to 

obtain his possessions after killing him”].) 

Applying these principles here, we conclude that sufficient 

evidence supports the jury’s true finding concerning the 

robbery-murder special circumstance. Brown’s testimony 

revealed that defendant and Noriega exchanged words in 

Spanish, Noriega retrieved a green bag from the trunk of his car, 

and defendant shot Noriega. Defendant retrieved the green bag, 

and then he hid Noriega’s body. Sams testified that, when 

defendant lived in Texas years later, defendant bragged that he 

had shot someone in California “[f]or drugs,” and that he had 

taken a “bag” of speed.

In short, defendant and Noriega spoke before Noriega 

retrieved the drugs from his trunk; defendant then shot him and 

took the drugs. The jury could reasonably infer from this series 

of events that defendant intended to rob Noriega independent of 

any intent to kill him. Unlike in People v. Green, when the 

defendant “took his victim’s clothing for the purpose of burning 
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63

it later to prevent identification,” and we held the “sole object [of 

the robbery was] to facilitate or conceal the primary crime” 

(People v. Green (1980) 27 Cal.3d 1, 61), there is no evidence here 

that defendant took the drugs to facilitate or conceal Noriega’s 

murder. 

Defendant asserts that sufficient evidence does not 

support the robbery-murder special circumstance because the 

prosecutor argued, and the evidence supported, that defendant 

killed Noriega because he believed Noriega was a “narc, a 

snitch.” Defendant emphasizes that Brown denied that the 

purpose of meeting Noriega was to rob and kill him, and that 

Reeder testified that defendant said he killed Noriega because 

Noriega was a “narc.” Thus, defendant contends, “[t]he 

overwhelming weight of the evidence established that 

[defendant] shot Noriega to silence him. The motive for the 

crime was clearly not robbery.”

As defendant acknowledges, the prosecution argued both

that defendant killed Noriega because defendant believed 

Noriega was a “narc” and that defendant had “dual motives, 

murder and robbery, pain and profit, freedom and financial 

gain.” If defendant harbored a concurrent intent to rob Noriega 

and to kill him because he was a narc, that is sufficient to 

support the robbery-murder special circumstance. (People v. 

Clark, supra, 52 Cal.4th at pp. 947–948 [“evidence that 

defendant harbored concurrent intents to rape and kill [does

not] render the robbery merely incidental to the murder”]; 

People v. Michaels (2002) 28 Cal.4th 486, 518 [upholding 

robbery-murder special circumstance when defendant killed 

victim to protect defendant’s girlfriend from abuse and for 

independent purpose of stealing victim’s property].) It is true 

that Brown denied that the purpose of meeting Noriega was to
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64

rob and kill him. But the jury could have concluded from the 

evidence that defendant intended to rob and kill Noriega even if 

the jury concluded Brown did not intend to do so. And, in any 

event, the jury was free to evaluate Brown’s testimony and to 

deem it credible or not. As a reviewing court, our role is not to 

reweigh the evidence. (People v. Lindberg, supra, 45 Cal.4th at 

p. 27.) And although defendant asserts the motive “was clearly 

not robbery,” Brown’s description of the murder — including 

that defendant waited to shoot Noriega until after Noriega had 

produced the bag of drugs, and then defendant took the drugs —

and defendant’s later statements recounted by Sams that he 

shot someone “for drugs” provided ample evidence to support the 

jury’s verdict. We therefore conclude sufficient evidence 

supported the jury’s true finding.

2. Use of Texas conviction to support prior murder 

conviction special circumstance

Defendant contends the special circumstance finding 

based on his prior murder conviction must be reversed because 

the Texas conviction did not meet the requirements of section 

190.2, subdivision (a)(2). That statute requires a defendant to 

have been “convicted previously of murder in the first or second 

degree.” (§ 190.2, subd. (a)(2).) A conviction from another 

jurisdiction meets the requirements for the prior murder 

conviction special circumstance if the offense would be 

punishable in California as first or second degree murder. 

(Ibid.) Defendant was convicted of murder in Texas. The jury 

in that case returned a general verdict of guilty on an indictment 

charging defendant with murder under a theory that he either 

“intentionally or knowingly cause[d] the death of an individual” 

or “intend[ed] to cause serious bodily injury and commit[ted] an 
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65

act clearly dangerous to human life that cause[d] the death of 

an individual.” (Tex. Pen. Code Ann. § 19.02(b)(1), (b)(2).)

Defendant asserts that because the Texas jury was 

instructed on both theories, the California special circumstance 

statute demands that the least adjudicated elements of the 

Texas conviction required a showing equal to California’s 

implied malice second degree murder. He claims that burden 

has not been met here because he could have been convicted 

under the Texas murder statute if the jury believed he had 

intended to cause serious bodily injury without also finding he 

subjectively knew he was committing an act dangerous to 

human life, whereas under California law implied malice 

requires a showing that a defendant acted with conscious 

disregard of the danger to human life. Although we have held 

that a conviction under Texas Penal Code section 19.02(b)(1) 

constitutes at least implied malice second degree murder under 

California law and thus satisfies the prior murder special 

circumstance (People v. Martinez, supra, 31 Cal.4th at pp. 687–

688), we have not previously addressed Texas Penal Code 

section 19.02(b)(2). 

We decline to address the merits of defendant’s claim 

because it is apparent that any error was undoubtedly 

harmless.20 Defendant asserts that the California jury would 

not have returned a death verdict absent evidence he had been 

20 One Court of Appeal has held that a conviction under 

Texas Penal Code section 19.02(b)(2) does not necessarily 

require a subjective awareness of the risk of death, whereas a 

conviction under California law for implied malice murder does. 

(People v. Carothers (2017) 13 Cal.App.5th 459, 467–468.) We 

express no view regarding whether Carothers was correctly 

decided.
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convicted of murder in Texas. But defendant’s prior murder 

conviction would have been admissible during the penalty phase 

as a factor in aggravation, even if the prior conviction could not 

support a prior murder special circumstance. (§ 190.3, factor (b) 

[“criminal activity by the defendant which involved the use or 

attempted use of force or violence”].) That is because defendant 

does not challenge the admissibility of his prior conviction 

generally, nor does he challenge the fact that he was convicted 

of murder under Texas law. Rather, he contends that the Texas 

conviction would not have amounted to first or second degree 

murder in California, and therefore it could not support the 

prior murder conviction special circumstance. “As the United 

State Supreme Court recognized in Brown v. Sanders (2006) 546 

U.S. 212, the invalidation of a special circumstance does not 

require reversal of the death sentence under California’s 

statutory scheme if ‘one of the other sentencing factors enables 

the sentencer to give aggravating weight to the same facts and 

circumstances.’ ” (People v. Hajek and Vo, supra, 58 Cal.4th at 

p. 1186.) 

The prosecution here relied on the prior murder conviction 

during the penalty phase not simply to show that defendant had 

been convicted of a murder that would have been classified as a 

murder in California, but also to explain and give context to the 

underlying nature of defendant’s behavior when he stabbed 

Hartwell. “Because the [allegedly] invalid [prior murder] 

special circumstances ‘did not alter the universe of facts and 

circumstances to which the jury could accord . . . weight’ 

[citation], and because ‘[t]here is no likelihood that the jury’s 

consideration of the mere existence of the [prior murder] special 

circumstance tipped the balance toward death’ [citation], the 

invalidity of the [prior murder] special circumstances does not 
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warrant reversal of the death sentence.” (People v. Hajek and 

Vo, supra, 58 Cal.4th at pp. 1186–1187, fn. omitted.) 

Further, even if we were to set aside the prior murder 

conviction special circumstance finding, the error would not 

require reversal of defendant’s guilt verdict or penalty 

determination. The jury also found true the robbery-murder 

special circumstance, which (as discussed in section II.C.1, ante) 

was supported by sufficient evidence and provides an 

independent basis to support defendant’s guilt verdict and death 

judgment. (See People v. Hajek and Vo, supra, 58 Cal.4th at 

p. 1186 [reversal of lying-in-wait special circumstance did not 

require reversal of judgment when, as relevant here, a valid 

special circumstance for torture murder remained].)

D. Claims Regarding Jury Instructions

1. Instruction regarding second degree murder

Defendant contends the trial court erred when instructing 

the jury by failing to adequately define second degree murder. 

He asserts the provided instructions did not tell the jury that an 

intentional killing committed with express malice could 

constitute second degree murder, and that the provided 

instructions thus were “the functional equivalent of failing to 

instruct at all on second degree murder.” We conclude there was 

no error. 

As an initial matter, the Attorney General asserts 

defendant’s claim is forfeited because he did not object to the 

instructions at trial nor did he request that the instructions be 

modified. (See People v. Hillhouse, supra, 27 Cal.4th at p. 503 

[“A party may not argue on appeal that an instruction correct in 

law was too general or incomplete, and thus needed clarification, 

without first requesting such clarification at trial”].) A failure 
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to object, however, does not prevent a defendant from 

challenging an instruction on appeal if the asserted error 

affected the defendant’s substantial rights. (People v. Ramirez

(2021) 10 Cal.5th 983, 1000, citing § 1259.) Assuming the claim 

was preserved, we conclude that it fails on its merits. 

We review a claim of instructional error de novo. (People 

v. Posey (2004) 32 Cal.4th 193, 218.) Defendant’s claim requires 

an evaluation of “ ‘ “the entire charge of the court, not from a 

consideration of parts of an instruction or from a particular 

instruction.” ’ [Citations.]” (People v. Solomon (2010) 49 Cal.4th 

792, 822.) “ ‘A defendant challenging an instruction as being 

subject to erroneous interpretation by the jury must 

demonstrate a reasonable likelihood that the jury understood 

the instruction in the way asserted by the defendant. 

[Citations.]’ ” (Ibid.) “Jurors are presumed able to understand 

and correlate instructions and are further presumed to have 

followed the court’s instructions.” (People v. Sanchez (2001) 26 

Cal.4th 834, 852.) Applying these principles, we hold that the 

instructions provided an adequate instruction concerning 

second degree murder and that there was no error. 

The prosecution did not pursue a theory of implied malice 

murder. Accordingly, the jury was instructed on only express 

malice and felony murder theories. The instruction defining 

murder provided that defendant was guilty of murder if he acted 

with “express malice aforethought,” requiring that defendant 

“unlawfully intended to kill.” The jury thus was told that 

defendant committed murder if he acted with express malice —

an unlawful intent to kill. The instructions further defined the 

degrees of murder, stating that first degree murder required 

“that [defendant] acted willfully, deliberately, and with 

premeditation.” And, crucially, the jury was instructed that 
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“[a]ll other murders except felony murder are of the second 

degree.”

Defendant’s position — that the jury would not have 

understood that if defendant acted with express malice and 

intended to kill Noriega he could be guilty of second degree 

murder as well as first degree murder — is unavailing in light 

of the instructions provided. The jury was told that express 

malice and intent to kill were required to support a murder 

conviction, and if the jury concluded murder had occurred it 

must also consider whether the murder was first or second 

degree. This was sufficient to inform the jury that if it found 

defendant acted with express malice it could convict him of first 

degree murder (if it also concluded he acted willfully, 

deliberately, and with premeditation) or second degree murder 

(if the jury concluded he did not act willfully, deliberately, and 

with premeditation).

Defendant’s reliance on People v. Rogers (2006) 39 Cal.4th 

826 is misplaced. In Rogers, the jury was instructed on first 

degree murder, second degree murder, and voluntary 

manslaughter. (Id. at p. 866.) The instructions explained that 

murder could be supported by express or implied malice, that 

first degree murder required the defendant to act willfully, 

deliberately, and with premeditation, and that murder with 

implied malice could “also” constitute second degree murder. 

(Ibid.; see id. at pp. 866–867.) The trial court did not, however, 

explain that a murder committed with express malice could 

constitute second degree murder. (Id. at p. 867.) We held this 

to be error because it “created an obvious gap in the instructions

that was not filled by any of the other instructions given.” (Ibid.) 
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No such gap exists here. Unlike Rogers, the jury in 

defendant’s case was not instructed on implied malice as a

theory of murder generally, or on implied malice as a theory of 

second degree murder specifically. The jury was therefore not 

presented with instructions that explained one theory of 

liability for second degree murder but not another. Considering 

the instructions as a whole, there is no basis to conclude that 

the jury misunderstood or misapplied these instructions, let 

alone a reasonable likelihood that any error occurred. We 

conclude that the trial court did not err in providing the given 

instructions.

2. Instruction on provocation

Defendant contends the trial court erred by failing to 

instruct the jury, on its own motion, that provocation is relevant 

to determine whether a murder is committed willfully, 

deliberately, and with premeditation. He asserts that Brown’s 

testimony that defendant and Noriega had a “heated argument” 

preceding the shooting would support a finding of provocation 

here that would reduce defendant’s culpability from first degree 

murder to second degree murder.

Defendant is correct that provocation may reduce murder 

from first degree to second degree. (People v. Rivera (2019) 7 

Cal.5th 306, 328.) As we have stated, however, “an instruction 

that provocation may be sufficient to raise reasonable doubt 

about premeditation or deliberation, such as CALJIC No. 8.73 

or CALCRIM No. 522, is a pinpoint instruction to which a 

defendant is entitled only upon request where evidence supports 

the theory.” (People v. Rivera, supra, 7 Cal.5th at p. 328.) 

Crucially, a “trial court is not required to give such an 

instruction sua sponte.” (Ibid.) Here, as defendant 
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acknowledges, he did not request such an instruction. Thus, like 

in Rivera, the trial court did not err by failing to instruct the 

jury concerning provocation. (Id. at p. 329.)

Defendant acknowledges our precedent on this point but 

asserts we should overrule Rogers and hold that there is a duty 

to instruct on provocation because the absence of provocation is 

effectively an element of first degree murder. He contends 

Rogers is inconsistent with the high court’s decision in Mullaney 

v. Wilbur (1975) 421 U.S. 684, a case that he characterizes as 

holding that one element of first degree murder is a lack of 

provocation.

Defendant misreads Mullaney. That decision held that a 

defendant’s due process rights are violated when the jury is 

instructed that, if the prosecution established a homicide was 

intentional and unlawful, malice would be implied unless the 

defendant proved by a preponderance of the evidence that he or 

she “acted in the heat of passion on sudden provocation.” 

(Mullaney, supra, 421 U.S. at p. 686, fn. omitted.) But Mullaney

did not hold that there is a duty to instruct on provocation in all 

cases. Rather, the high court held the error in that case occurred 

because the jury instructions shifted the burden of proof to the 

defendant to prove that the killing occurred in the heat of 

passion. (Id. at p. 701; see also Francis v. Franklin (1985) 471 

U.S. 307, 317 [Mullaney “held unconstitutional a mandatory 

rebuttable presumption that shifted to the defendant a burden 

of persuasion on the question of intent”]; Patterson v. New York

(1977) 432 U.S. 197, 215 [“Mullaney surely held that a State 

must prove every ingredient of an offense beyond a reasonable 

doubt, and that it may not shift the burden of proof to the 

defendant by presuming that ingredient upon proof of the other 

elements of the offense”].)
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Mullaney thus is not inconsistent with Rogers or our 

subsequent cases holding that instructions on issues such as 

provocation or accident amount to pinpoint instructions that are 

“ ‘required to be given upon request when there is evidence 

supportive of the theory, but they are not required to be given 

sua sponte.’ ” (People v. Jennings (2010) 50 Cal.4th 616, 675.) 

We therefore hold, consistent with Rogers and Rivera, that the 

trial court here did not err by failing to provide an instruction 

on provocation when one was not requested by defendant at 

trial.

3. Instruction on self-defense, heat of passion, and 

unreasonable self-defense

Defendant contends the trial court erred by denying his 

requests to instruct the jury on perfect self-defense, imperfect 

self-defense, and voluntary manslaughter based on heat of 

passion. He asserts this error violated his state and federal 

constitutional rights to due process, as well as the Eighth and 

Fourteenth Amendments. We conclude the trial court did not 

err by refusing to give the requested instructions because there 

was not substantial evidence to support a theory of self-defense 

or heat of passion.

Defendant requested instructions on self-defense, 

imperfect self-defense, and voluntary manslaughter based on 

heat of passion. He asserted: “One possible interpretation in 

Dorothy Brown’s testimony could be sort of that there was some 

provocation, there was . . . either a drug deal gone bad, or 

[Noriega] pulled a firearm, something like that. There’s an 

insinuation of the statements of [defendant] and Mr. Silva. 

They’re primarily from Mr. Silva, obviously.” The court declined 

to give the instructions, noting that the evidence in the record 

did not support them. The court also stated that it would 
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reconsider its ruling if defendant presented additional evidence 

to support his theory.

“[A] trial court must instruct on general principles of law 

relevant to the issues raised by the evidence and necessary for 

the jury’s understanding of the case.” (People v. Martinez (2010) 

47 Cal.4th 911, 953.) “ ‘To justify a lesser included offense 

instruction, the evidence supporting the instruction must be 

substantial — that is, it must be evidence from which a jury 

composed of reasonable persons could conclude that the facts 

underlying the particular instruction exist.’ ” (People v. Burney, 

supra, 47 Cal.4th at p. 250.) “Speculative, minimal, or 

insubstantial evidence is insufficient to require an instruction 

on a lesser included offense.” (People v. Simon (2016) 1 Cal.5th 

98, 132.) “We review independently whether the trial court 

erred in rejecting an instruction on a lesser included offense.” 

(People v. Steskal (2021) 11 Cal.5th 332, 345.) 

Murder is the unlawful killing of a human being with 

malice aforethought. (§ 187, subd. (a).) A killing in perfect selfdefense is justifiable homicide. (People v. Randle (2005) 35 

Cal.4th 987, 994, disapproved on another ground in People v. 

Chun (2009) 45 Cal.4th 1172, 1201.) Perfect self-defense 

requires that “one must actually and reasonably believe in the 

necessity of defending oneself from imminent danger of death or 

great bodily injury.” (People v. Randle, supra, 35 Cal.4th at 

p. 994; see also People v. Simon, supra, 1 Cal.5th at p. 132.) “To 

satisfy the imminence requirement, ‘[f]ear of future harm — no 

matter how great the fear and no matter how great the 

likelihood of the harm — will not suffice. The defendant’s fear 

must be of imminent danger to life or great bodily injury.’ ” 

(People v. Trujeque (2005) 61 Cal.4th 227, 270.) “ ‘ “[T]he peril 

must appear to the defendant as immediate and present and not 
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74

prospective or even in the near future. An imminent peril is one 

that, from appearances, must be instantly dealt with.” ’ ” (In re 

Christian S. (1994) 7 Cal.4th 768, 783.)

Imperfect self-defense, on the other hand, “occurs when a 

defendant acts in the actual but unreasonable belief that he or 

she is in imminent danger of great bodily injury or death.” 

(People v. Simon, supra, 1 Cal.5th at p. 132.) Imperfect selfdefense reduces an intentional, unlawful killing to voluntary 

manslaughter, a lesser included offense of murder, by negating 

a defendant’s malice. (Ibid.)

Finally, “ ‘[h]eat of passion is a mental state that precludes 

the formation of malice and reduces an unlawful killing from 

murder to manslaughter.’ [Citation.] Heat of passion killing is 

distinct from malice murder because thought in some form is 

necessary ‘to form either an intent to kill or a conscious 

disregard for human life.’ [Citation.] A heat of passion killing, 

we have explained, is one caused by an unconsidered reaction to 

provocation rather than the result of rational thought. If reason 

‘ “ ‘was obscured or disturbed by passion’ ” ’ to so great a degree 

that an ordinary person would ‘ “ ‘act rashly and without 

deliberation and reflection,’ ” ’ we have concluded that killing 

arose from ‘ “ ‘passion rather than from judgment.’ ” ’ ” (People 

v. Vargas (2020) 9 Cal.5th 793, 827–828.)

Defendant focuses on three facts to support his position 

that self-defense and manslaughter instructions were required: 

a loaded gun was found in Noriega’s vehicle; Noriega was a drug 

dealer known to be armed; and Investigator Silva testified that 

Brown told him there was a “heated argument” between Noriega 

and defendant before the shooting. None of these circumstances 
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nor any others in the record amount to substantial evidence 

requiring the instructions.

As an initial matter, defendant errs in relying on Brown’s 

statement to Silva that there was a heated argument between 

Noriega and defendant prior to the shooting. As discussed in 

section II.D.6, post, the jury was instructed that it could use 

Brown’s statements to Silva only “in deciding whether to believe 

the testimony of Dorothy Brown that was read here at trial.” 

The jury was instructed it “may not use those other statements 

as proof that the information contained in them is true, nor may 

you use them for any other reason.” Defendant therefore cannot 

rely on Brown’s statements to Silva to establish the requisite 

substantial evidence to support the requested instructions. 

Further, Brown’s testimony in the Texas trial did not describe 

any argument between defendant and Noriega. Rather, she 

testified at various points that: defendant got out of his truck 

and “yelled something over to” Noriega; that defendant “said 

something to him”; that “[Noriega] got out and moved to the 

back of the vehicle and opened the trunk”; and that defendant 

and Noriega were “speaking in Spanish” and “exchanged words 

in Spanish.”

There was no evidence defendant actually believed —

reasonably or unreasonably — that he was in imminent fear of 

death or great bodily injury. Although Noriega carried a loaded 

firearm in his car, there is no evidence Noriega reached for the 

gun at any point or that defendant knew about the gun or 

believed Noriega had a gun on his person. Nor is there evidence 

defendant believed Noriega was an imminent threat that he 

needed instantly to deal with. Defendant did not testify and 

“there is no evidence he ever told anyone that he had acted out 

of fear.” (People v. Simon, supra, 1 Cal.5th at p. 134; see also 
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People v. Steskal, supra, 11 Cal.5th at p. 346.) Simply put, there 

was not substantial evidence to support instructions on selfdefense. 

Nor is there evidence that defendant shot Noriega in the

heat of passion. Again, defendant relies on Brown’s statement 

to Silva that a “heated argument” preceded the shooting. But 

Brown’s statements, at most, established that after the verbal 

exchange Noriega went to the trunk of his car and produced a 

duffel bag of narcotics. Only then did defendant retrieve his 

firearm and shoot Noriega. This does not constitute substantial 

evidence that defendant acted in the heat of passion when he 

shot Noriega. 

We rejected a similar claim in People v. Landry (2016) 

2 Cal.5th 52. There, the defendant stabbed and killed another 

inmate at a prison. (Id. at p. 63.) The trial court denied the 

defendant’s request for instructions on imperfect self-defense 

and heat of passion. (Id. at p. 97.) In support of the instructions, 

the defendant pointed to a witness’s testimony that the 

defendant and victim were “ ‘having words’ just before” the 

attack. (Id. at p. 98.) We noted, however, that the witness’s 

belief that the defendant and victim were arguing was “based 

solely on the tone of defendant’s voice, which ‘sounded angry.’ ” 

(Ibid.) The witness “did not hear what the two men were saying 

to each other.” (Ibid.) And although the defendant relied on a 

letter he had written stating the victim had threatened him, 

that letter “did not identify when the alleged threat occurred.” 

(Ibid.) We held that “[t]his evidence, even if credited, does not 

begin to demonstrate either provocation for purposes of heat of 

passion voluntary manslaughter or imminence of danger of 

death for purposes of imperfect self-defense voluntary 

manslaughter.” (Ibid.) 
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Like in Landry, the only evidence supporting a selfdefense or heat of passion theory was Brown’s statement that 

an argument occurred between defendant and Noriega. But 

that evidence was inadmissible for the truth of the matter. 

Further, Brown’s characterization of the exchange was based 

solely on the tone of voices involved; Brown did not testify that 

she understood Spanish, and she did not testify further about 

the content of the exchange. Although the verbal exchange in 

Landry occurred “just before” the attack (People v. Landry, 

supra, 2 Cal.5th at p. 98), the conversation and the shooting in 

this case were separated somewhat by Noriega retrieving the 

bag from his trunk. The evidence of provocation here is thus 

even weaker than the facts we considered in Landry. 

We therefore conclude the trial court did not err when it 

denied defendant’s requests to instruct the jury on self-defense, 

imperfect self-defense, or voluntary manslaughter in heat of 

passion.

4. Failure to instruct on theft as a lesser included 

offense of robbery

Defendant contends the robbery-murder special 

circumstance allegation and his murder conviction based on a 

theory of felony murder must be reversed because the trial court 

failed to instruct the jury that theft was a lesser included offense 

of robbery. He asserts the trial court had a duty to instruct the 

jury on theft as a lesser included offense even though robbery 

was not charged as a separate offense. We have repeatedly 

rejected similar claims, and we do so again here.

Defendant was charged with first degree murder. A 

robbery-murder special circumstance was alleged. The 

prosecution argued that the murder was premeditated and that 
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Opinion of the Court by Cantil-Sakauye, J.

78

it also constituted felony murder. Although both the felony 

murder theory and the robbery-murder special circumstance 

were based on the theory that defendant robbed Noriega, 

robbery was not charged as a separate felony offense. Defendant 

did not request any instruction at trial related to theft. He 

contends on appeal that the trial court had a sua sponte duty to 

instruct the jury that theft was a lesser included offense of 

robbery.

As defendant acknowledges, we have repeatedly rejected 

his position. A trial court has a duty to instruct on lesser 

included offenses that “find substantial support in the 

evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 162.) 

However, we have held that a court’s duty to instruct on lesser 

included offenses “does not extend to uncharged offenses 

relevant only as predicate offenses under the felony-murder 

doctrine.” (People v. Silva (2001) 25 Cal.4th 345, 371.) In 

Valdez, we stated that “when robbery is not a charged offense 

but merely forms the basis for a felony-murder charge and a 

special circumstance allegation, a trial court does not have a sua 

sponte duty to instruct the jury on theft.” (People v. Valdez, 

supra, 32 Cal.4th at pp. 110–111; see also People v. Gonzalez

(2018) 5 Cal.5th 186, 204–205 [same]; People v. Brooks (2017) 3 

Cal.5th 1, 77 [same]; People v. Kelly (2007) 42 Cal.4th 763, 792

[same].) 

Defendant acknowledges these precedents but asserts 

that the United States Supreme Court’s decision in Beck v. 

Alabama (1980) 447 U.S. 625 requires a different result. At 

issue in Beck was Alabama’s death penalty statute, which 

prohibited a trial court from providing an instruction regarding 

a lesser included offense, thus allowing a jury only to impose the 

death penalty or to acquit the defendant. (Beck, supra, 477 U.S. 
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at pp. 627–628.) The high court held that instructing the jury 

on a lesser included offense is required if the failure to do so 

would leave the jury without a third option (i.e., to convict the 

defendant of a lesser offense), enhancing the risk of an 

unwarranted conviction as a result. (Id. at p. 645.) The Court 

explained that “if the unavailability of a lesser included offense 

instruction enhances the risk of an unwarranted conviction, 

Alabama is constitutionally prohibited from withdrawing that 

option from the jury in a capital case.” (Id. at p. 638, fn. 

omitted.) 

We have previously held that Beck does not require the 

instruction defendant now seeks. (People v. Valdez, supra, 32 

Cal.4th at pp. 118–119.) Unlike the Alabama statute at issue in 

Beck, “California does not preclude a trial court from giving 

instructions on lesser included offenses in capital cases.” (Ibid.) 

Thus, Beck is not implicated “because the ‘jury was not forced 

into an all-or-nothing choice between a conviction of murder 

that would legally compel it to fix the penalty at death, on the 

one side, and innocence, on the other: Even if it found [the 

defendant] guilty of [felony murder under the special 

circumstance allegations], it was not legally compelled to fix the 

penalty at death, but could fix it instead at a term of 

imprisonment for life without possibility of parole.’ ” (People v. 

Valdez, supra, 32 Cal.4th at p. 119; see also People v. Cash

(2002) 28 Cal.4th 703, 738.) Defendant presents no compelling 

reason to revisit these decisions. 

Defendant further alleges that a lesser included offense 

instruction for an uncharged felony used as the basis for a 

felony-murder charge and a special circumstance allegation is 

required by Alleyne v. United States (2013) 570 U.S. 99, 

Apprendi v. New Jersey (2000) 530 U.S. 466, and related cases. 
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In Alleyne, the high court stated that “[w]hen a finding of fact 

alters the legally prescribed punishment so as to aggravate it, 

the fact necessarily forms a constituent part of a new offense 

and must be submitted to the jury.” (Alleyne, supra, 570 U.S. at 

pp. 114–115.) Essentially, defendant asserts that these cases 

stand for the proposition that facts which increase a defendant’s 

punishment must be found by a jury, that special circumstance 

allegations which make a defendant eligible for the death 

penalty are elements of a capital murder charge, and therefore 

that a special circumstance allegation should be treated as the 

“functional equivalent” of an aggravating factor. Thus, 

defendant asserts, because a court is required to provide a lesser 

included offense instruction on a charged offense it should also 

be required to provide a lesser included offense instruction on 

an uncharged offense supporting a felony murder charge or 

special circumstance allegation. Stated differently, defendant’s 

position is that: (1) charged offenses require the provision of 

lesser included offense instructions; (2) Alleyne held that a fact 

which aggravates punishment forms “a constituent part of a new 

offense”; (3) a special circumstance aggravates punishment and 

thus forms a constituent part of a charged offense (even if the 

offense itself is uncharged); and (4) therefore a special 

circumstance allegation requires the provision of a lesser 

included offense instruction.

Defendant overreads the high court’s decisions in this 

area. The court explained in Alleyne that the Sixth Amendment 

“provides that those ‘accused’ of a crime have the right to a trial 

‘by an impartial jury,’ ” and “[t]his right, in conjunction with the 

Due Process Clause, requires that each element of a crime be 

proved to the jury beyond a reasonable doubt.” (Alleyne, supra, 

570 U.S. at p. 104.) “Other than the fact of a prior conviction, 
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any fact that increases the penalty for a crime beyond the 

prescribed statutory maximum” constitutes an element of the 

crime that “must be submitted to a jury, and proved beyond a 

reasonable doubt.” (Apprendi, supra, 530 U.S. at p. 490.) 

Alleyne went further, holding that any fact which increases a 

mandatory minimum also “constitutes an ‘element’ or 

‘ingredient’ of the charged offense” and thus must be submitted 

to the jury and proved beyond a reasonable doubt. (Alleyne,

supra, 570 U.S. at p. 107.) 

Consistent with Alleyne, the question of whether 

defendant committed robbery was submitted to the jury and 

found true by the jury beyond a reasonable doubt. But neither 

Apprendi, Alleyne, nor any of the cases defendant cites require 

a trial court to instruct on a lesser included offense in these 

circumstances. Nor does such a conclusion logically follow from 

Alleyne. Defendant cites to no authority that has extended or 

applied Alleyne in this manner, and we decline to do so in the 

first instance. 

Finally, defendant contends the equal protection clause 

required the trial court to instruct the jury on the lesser included 

offense of theft. He asserts that a trial court has a sua sponte 

duty to instruct on a lesser included offense in a non-capital 

prosecution, and therefore that the same requirement should 

extend to defendants in capital trials. He is mistaken. As we 

stated in Cash, “California requires a sua sponte instruction on 

lesser included charged offenses regardless of whether the case 

is a capital, or a noncapital, one.” (People v. Cash, supra, 

28 Cal.4th at p. 738.) Similarly, there is no equal protection 

violation resulting from the rule that a lesser included offense 

instruction need not be provided when an uncharged offense 
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82

forms the basis for a felony-murder charge and a special 

circumstance allegation. (Id. at pp. 737–738.)

5. Instruction regarding corroboration of accomplice 

testimony

Defendant contends the instruction regarding accomplice 

testimony (a modified version of CALCRIM No. 334) improperly 

lowered the prosecution’s burden of proof in violation of his right 

to due process and a fair jury trial. The instruction directed the 

jury that if it determined Brown was an accomplice, her 

testimony could be used to convict defendant only if: it was 

“supported by other evidence that you believe”; that the 

“supporting evidence is independent of the accomplice’s 

testimony”; and the “supporting evidence tends to connect the 

defendant to the commission of the crime.” The instruction 

further provided:

Supporting evidence, however, may be slight. It 

does not need to be enough, by itself, to prove that 

the defendant is guilty of the charged crime, and it 

does not need to support every fact about which the 

accomplice testified. On the other hand, it is not 

enough if the supporting evidence merely shows that 

a crime was committed or the circumstances of its 

commission. The supporting evidence must tend to 

connect the defendant to the commission of the 

crime.

Defendant contends the language in the instruction 

indicating that “slight” evidence which “tend[s] to connect the 

defendant to the commission of the crime” impermissibly 

undermined the general reasonable doubt instruction and 

allowed for the jury to convict him based on a standard lower 

than proof beyond a reasonable doubt.
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83

As defendant acknowledges, we have consistently rejected 

his position. In Bryant, we stated that a similar instruction “did 

not convey to the jury that it ‘could convict if there was slight 

corroboration.’ Instead, the instruction properly explained the 

corroboration requirement as it related to the jury’s 

consideration of accomplice testimony. The challenged 

instruction in no way lowered the prosecution’s burden of proof.” 

(People v. Bryant, supra, 60 Cal.4th at p. 434; see also People v. 

Frye (1998) 18 Cal.4th 894, 968.) Here, too, the jury was 

instructed that it was required to find defendant guilty beyond 

a reasonable doubt. The accomplice testimony instruction 

described for the jury how it was to evaluate Brown’s testimony 

but it did not address, modify, or undermine the general 

instruction regarding reasonable doubt. Defendant presents no 

compelling reason for us to revisit the issue.

6. Instructions regarding Brown’s extrajudicial

statements

Defendant contends the trial court erred when instructing 

the jury regarding how to evaluate Brown’s prior testimony and 

her statements to Silva. He asserts CALCRIM No. 318, which 

instructed the jury it could use a witness’s prior statements to 

evaluate their subsequent testimony, failed to tell the jury it was 

free to disbelieve Brown’s prior testimony. He further asserts 

CALCRIM No. 319, which instructed the jury it could consider 

Brown’s statements to Silva only to evaluate Brown’s prior 

testimony, improperly precluded the jury from considering 

Brown’s statements to Silva as true. We conclude there was no 

error in providing the instructions. 

As an initial matter, the Attorney General asserts 

defendant’s claim is forfeited because he did not object to either 

instruction at trial nor did he request the instructions be 
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84

modified. As observed above, however, failure to object does not 

prevent a defendant from challenging an instruction on appeal 

if the asserted error affected the defendant’s substantial rights. 

(People v. Ramirez, supra, 10 Cal.5th at p. 1000; § 1259.) 

Assuming the claim was preserved, we conclude that it fails on 

its merits. 

As previously noted, Brown was deceased at the time of 

defendant’s trial. Her testimony from defendant’s Texas murder 

trial was read into the record during defendant’s trial in 

California. Defendant also introduced testimony from Silva 

regarding statements Brown made to him during a custodial 

interview in 1998.

The trial court instructed the jury with CALCRIM No. 318 

and No. 319. As modified by the court with agreement of the 

parties, CALCRIM No. 318 provided:

“You have heard evidence of statements that a 

witness made before trial. Except as otherwise 

instructed, if you decide that the witness made those 

statements, you may use those statements in two 

ways:

1. To evaluate whether the witness’s testimony 

in court is believable;

AND

2. As evidence that the information in those 

earlier statements is true.”21 

21 The agreed upon modification added the phrase “except as 

otherwise instructed.”
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85

The trial court also instructed the jury with a modified 

version of CALCRIM No. 319. As modified and agreed upon by 

the parties, the instruction stated:

“Dorothy Brown did not testify in this trial, but her 

testimony, taken at another time, was read for you. 

In addition to this testimony, you have heard 

evidence that Dorothy Brown made other 

statements. I am referring to the statements about 

which Martin Silva testified.

“If you conclude that Dorothy Brown made those 

other statements, you may only consider them in a 

limited way. You may only use them in deciding 

whether to believe the testimony of Dorothy Brown 

that was read here at trial. 

“You may not use those other statements as proof 

that the information contained in them is true, nor 

may you use them for any other reason.”

Defendant asserts there is a reasonable likelihood the jury 

interpreted these instructions to mean that it was compelled to 

accept Brown’s out-of-court statements as true. He maintains 

that CALCRIM No. 318 was “one sided” and effectively deprived 

him of a fair trial because it directed the jury to accept Brown’s 

testimony from the Texas trial as fact. At the same time, he 

contends the instructions were confusing and contradictory 

because CALCRIM No. 318 allowed the jury to consider Brown’s 

statements to Silva for their truth, but CALCRIM No. 319 told 

the jury it could not consider Brown’s statements to Silva for 

their truth. Further, defendant claims the instructions 

prevented the jury from considering Brown’s statements to Silva 

that defendant and Noriega were arguing in Spanish before the 

shooting occurred. This limitation, he insists, prevented the 
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Opinion of the Court by Cantil-Sakauye, J.

86

jury from fairly considering defendant’s claim that the killing 

occurred out of provocation and thus constituted second degree 

murder.

Defendant’s contentions are unpersuasive. As a 

preliminary matter, CALCRIM No. 318 did not pertain to 

Brown’s statements to Silva. As the prosecutor noted, the 

language “[e]xcept as otherwise instructed” was added to 

CALCRIM No. 318 to avoid implying that the instruction 

referred to Brown’s statements to Silva: “The only thing I might 

suggest is adding at the very beginning, ‘except as otherwise 

instructed,’ because the next instruction is going to give 

different information concerning Dorothy Brown.” CALCRIM 

No. 319 was specific to Brown’s statements to Silva, and it

instructed the jury how it was to consider those statements; 

CALCRIM No. 318 dealt with prior statements given by other 

witnesses, and the court instructed the jury that Brown’s 

testimony from the Texas trial was to be evaluated by the same 

standards applied to other witnesses. CALCRIM No. 317 

provided: “The testimony that Dorothy Brown has given under 

oath was read to you because she is not available. You must 

evaluate this testimony by the same standards that you apply 

to a witness who testified here in court.” 

We have previously rejected claims that an instruction 

informing the jury it may consider whether testimony is true is 

improper if it does not also tell the jury it may consider whether 

the testimony is false. (See People v. Friend (2009) 47 Cal.4th 

1, 41–42.) This is equally true in the context of CALCRIM No. 

318, and particularly so when the jury was instructed, as it was 

here with CALCRIM No. 226, to consider factors indicating that 

testimony was not trustworthy and instructed that it could 

“believe all, part, or none of any witness’s testimony.” Moreover, 
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87

as previously noted, the jury was instructed in CALCRIM No. 

317 to consider Brown’s prior testimony from Texas “by the 

same standards” applicable to other witnesses. We evaluate the 

jury instructions as a whole, “not from a consideration of parts 

of an instruction or from a particular instruction.” (People v. 

Burgener (1986) 41 Cal.3d 505, 538, disapproved on another 

ground in People v. Reyes (1998) 19 Cal.4th 743, 753–756.) 

Considering the totality of the instructions provided to the jury, 

we conclude that defendant has not established error or a 

reasonable likelihood that the jury applied CALCRIM No. 318 

in an improper manner. 

We further hold that CALCRIM No. 319 properly limited 

the jury’s consideration of Brown’s statements to Silva. That 

instruction informed the jury that it could consider those 

statements to evaluate Brown’s testimony at the Texas trial but 

it could not consider those statements for their truth. Defendant 

asserts Brown’s statements to Silva should have been 

considered for their truth. He acknowledges, however, that 

defense counsel indicated to the court that Silva would testify 

“on some impeachment issues.” This makes sense, given that 

Brown’s statements to Silva amounted to hearsay and were thus 

governed by Evidence Code section 1202. That statute states: 

“Evidence of a statement or other conduct by a declarant that is 

inconsistent with a statement by such declarant received in 

evidence as hearsay evidence is not inadmissible for the purpose 

of attacking the credibility of the declarant though he is not 

given and has not had an opportunity to explain or to deny such 

inconsistent statement or other conduct.” (Evid. Code, § 1202.) 

Accordingly, Brown’s hearsay statements to Silva could not be 

considered for their truth. 
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88

Defendant identifies no plausible basis for admitting 

Brown’s statements for their truth. He simply asserts, quoting 

People v. Chism (2014) 58 Cal.4th 1266, 1305: “ ‘Unless 

evidence is admitted for a limited purpose, or against a specific 

party, evidence admitted at trial may generally be considered 

for any purpose.’ ” As noted, however, counsel stated Silva’s

testimony would serve as impeachment. As such, defendant 

cannot now assert it was admitted for its truth, particularly in 

light of the rules limiting hearsay. CALCRIM No. 319 was 

therefore a correct instruction.

III. PENALTY PHASE ISSUES

A. Defendant’s Request to Represent Himself 

During the Penalty Phase

One day before the penalty phase was scheduled to 

proceed, defendant filed a Faretta motion seeking to represent 

himself. The trial court found the motion to be untimely, 

reviewed it using the factors articulated in People v. Hardy

(1992) 2 Cal.4th 86, and denied the motion. Defendant contends 

this amounted to reversible error. We hold the trial court’s 

ruling was a proper exercise of its discretion to deny an untimely 

Faretta motion.

1. Factual background

The Faretta motion at issue was the culmination of a long 

history of defendant’s attempts to replace his attorneys. In 

November 2006, well before trial began in October 2007, 

defendant submitted a document the court deemed a motion to 

appoint new counsel pursuant to People v. Marsden (1970) 2 

Cal.3d 118. Defendant ultimately withdrew the motion, and he

instead moved to be appointed as co-counsel for purposes of 
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challenging the validity of his Texas conviction if advisory 

counsel was appointed for that issue.

In February 2007, defendant filed a Marsden motion and 

a Faretta motion. As discussed in section II.A, ante, the court 

granted defendant’s Faretta motion and appointed Exum as 

stand-by counsel. Defendant withdrew his Marsden motion.

In May 2007, defendant requested advisory counsel for 

purposes of assisting him in attacking the validity of his Texas 

murder conviction. In considering the motion, the court stated, 

“this all looks like just an effort of delay.”

In July 2007, defendant filed a motion to withdraw his 

waiver of counsel and asked the court to reappoint counsel. The 

court granted defendant’s motion and reappointed Scalisi and 

Exum as counsel.

In September 2007, defendant filed another Marsden

motion. During a closed proceeding, defendant asserted he 

needed the assistance of an attorney barred in Texas; counsel 

also noted that defendant and counsel were having 

disagreements regarding trial strategy. The court denied the 

Marsden motion.

In October 2007, defendant filed a fourth Marsden motion. 

He asserted irreconcilable differences with counsel and asked 

the court to replace Scalisi. At the Marsden hearing, Scalisi and 

Exum asked to withdraw as counsel, stating defendant insisted 

they present an alibi defense that “would be a subordination of 

perjury and at a minimum fraud.” The trial court denied the 

Marsden motion as well counsel’s requests to withdraw.

In November 2007, counsel informed the court (and 

defendant confirmed) that defendant was instructing counsel 

not to argue for life without the possibility of parole during the 
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penalty phase. Instead, defendant wished to testify that he 

sought a death verdict in order to obtain additional resources on 

appeal.

Later that month, and prior to the closing arguments in 

the guilt phase, defendant filed another Marsden motion — his 

fifth. Defendant asserted that trial counsel had failed to 

interview alibi witnesses and had not sufficiently attacked his 

Texas conviction. The court denied the Marsden motion, noting 

that counsel’s representation had been “more than adequate.”

In December 2007, after the guilt phase had concluded and 

on the date of the bifurcated hearing on the prior-murder special

circumstance, defendant indicated that he intended to file 

Marsden and Faretta motions if counsel did not move for a new 

trial following the penalty phase. Defense counsel also 

discussed with the court defendant’s request that counsel not 

present any evidence in mitigation during the penalty phase. 

Defendant again stated that he intended to request that the jury 

impose the death penalty. Earlier that day, defendant had, 

despite counsel’s advice, refused to dress in civilian clothes when 

appearing in front of the jury.

After the jury returned its verdict in the bifurcated 

hearing — and one day before the penalty phase was scheduled 

to begin — defendant asserted he wanted to represent himself. 

The court directed defendant to complete a standard form 

describing the disadvantages of representing himself, his 

understanding of the charges against him, and the court’s advice 

against self-representation. The court then held a hearing to 

consider defendant’s request.

Defendant informed the court he wished to represent 

himself for “the enrichment of appellate resources. I do not 
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agree with the defense counsel’s strategy in the penalty phase, 

as I did not agree with them in the [guilt] trial phase. I feel that 

what I’m seeking to do in the penalty phase is in my best 

interest. I’m not seeking any delays or continuances. If this is 

granted we can move forward as scheduled.” The trial court 

concluded the motion was untimely, considered the relevant 

factors, and denied the motion. 

2. Analysis

A defendant has a federal constitutional right to selfrepresentation if he or she voluntarily and intelligently so 

chooses. (Faretta, supra, 422 U.S. at pp. 835–836.) When a 

defendant makes a timely and unequivocal request for selfrepresentation, and does so knowingly, voluntarily, and 

intelligently, a trial court must grant the defendant’s request. 

(People v. Windham (1977) 19 Cal.3d 121, 127–128.) When a 

defendant’s motion is untimely, the motion is “based on 

nonconstitutional grounds” (id. at p. 129, fn. 6) and it is “within 

the sound discretion of the trial court to determine whether such 

a defendant may dismiss counsel and proceed pro se” (id. at 

p. 124; see also People v. Bloom (1989) 48 Cal.3d 1194, 1220 

[stating a “midtrial motion for self-representation did not have 

a constitutional basis”].) 

“We have long held that a Faretta motion is timely if it is 

made ‘within a reasonable time prior to the commencement of 

trial.’ ” (People v. Johnson (2019) 8 Cal.5th 475, 499.) In 

evaluating whether a Faretta motion is timely, we have 

contrasted motions “made long before trial” with motions 

“ ‘made on the eve of trial.’ ” (Ibid.) The former are timely; the 

latter are not. (See id. at pp. 499–500.) When a motion falls 

“outside these two extreme time periods,” a trial court must 
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evaluate whether it is timely based on “pertinent considerations 

[that] may extend beyond a mere counting of the days between 

the motion and the scheduled trial date.” (People v. Lynch

(2010) 50 Cal.4th 693, 723.) In the context of a capital case, we 

have held that a Faretta motion made after the guilt phase 

verdicts have been returned is untimely. (People v. Hardy, 

supra, 2 Cal.4th at pp. 193–195 [motion made seven days prior 

to commencement of penalty phase]; see People v. Bradford

(1997) 15 Cal.4th 1229, 1365 [“a motion made between trial of 

the two phases [of a capital trial] is untimely”]; People v. 

Hamilton (1988) 45 Cal.3d 351, 369 [“the penalty phase has no 

separate formal existence but is merely a stage in a unitary 

capital trial”].)

Here, defendant filed his Faretta motion after the guilt 

phase verdicts had been returned and the day before the penalty 

phase was scheduled to begin. The motion falls squarely into 

the category of motions we have deemed to be untimely. (People 

v. Lynch, supra, 50 Cal.4th at p. 722; People v. Hardy, supra, 

2 Cal.4th at pp. 193–194.)22

Nevertheless, defendant asserts his motion was timely 

because he did not request a continuance and was prepared to 

22 The parties do not address what standard a reviewing 

court should apply in evaluating a trial court’s determination 

that a defendant’s Faretta motion was untimely. We have not 

directly addressed the issue. (See People v. Johnson, supra, 8 

Cal.5th at p. 501.) As was the case in Johnson, “[w]e need not 

decide whether de novo review or a more deferential standard is 

appropriate, however, because defendant’s claim fails under 

either standard.” (Ibid.)
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proceed with the penalty phase as scheduled. He contends that 

we have never explicitly held that a Faretta motion filed 

between the guilt and penalty phases is necessarily untimely, 

and he asks us to adopt a rule that a self-representation request 

is assumed to be timely if the defendant does not request a 

continuance or cause future delay.

We do not agree. The mere fact that a defendant does not 

request a continuance when filing a Faretta motion does not 

render the motion timely. We recently rejected the assertion 

that “even a belated [Faretta] request must be granted unless it 

would entail undue delay or interfere with the orderly 

administration of justice.” (People v. Bloom (2022) 12 Cal.5th 

1008, 1057.) We have repeatedly held that a Faretta motion 

made on the eve of trial or after commencement of the guilt 

phase is untimely, without regard to whether the defendant 

requested a continuance. (See, e.g., People v. Wright (2021) 12 

Cal.5th 419, 280; People v. Johnson, supra, 8 Cal.5th at p. 499; 

People v. Lynch, supra, 50 Cal.4th at p. 722; People v. Valdez, 

supra, 32 Cal.4th at p. 102; People v. Horton (1995) 11 Cal.4th 

1068, 1110; People v. Clark (1992) 3 Cal.4th 41, 99–100; People 

v. Frierson (1991) 53 Cal.3d 730, 742.)

23

23 Defendant cites People v. Nicholson (1994) 24 Cal.App.4th 

584 for the proposition that his motion was timely. The Court 

of Appeal stated in Nicholson that it had found “only two 

reported decisions in which the trial courts denied Faretta

motions when the defendants were ready to proceed without a 

continuance,” and that in both cases “the denials resulted in 

reversals.” (People v. Nicholson, supra, 24 Cal.App.4th at 

p. 593.) Nicholson is readily distinguishable. There, the 

appellate court concluded that the Faretta motion in that case 
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Having concluded that defendant’s Faretta motion was 

untimely, we evaluate the trial court’s decision to deny 

defendant’s motion for abuse of discretion. (People v. Buenrostro

(2018) 6 Cal.5th 367, 427; see People v. Hamilton, supra, 

45 Cal.3d at p. 369.) In exercising its discretion, “the trial court 

should inquire into the defendant’s reasons for the requests” and 

should consider factors including “ ‘the quality of counsel’s 

representation of the defendant, the defendant’s prior proclivity 

to substitute counsel, the reasons for the request, the length and 

stage of the proceedings, and the disruption or delay which 

might reasonably be expected to follow the granting of such a 

motion.’ ” (People v. Hardy, supra, 2 Cal.4th at p. 195.) “A court 

abuses its discretion if it acts ‘in an arbitrary, capricious, or 

patently absurd manner’ ” (People v. Boyce (2014) 59 Cal. 4th 

672, 687) or “when its ruling ‘falls outside the bounds of reason’ ” 

(People v. Osband (1996) 13 Cal. 4th 622, 666).

The trial court here properly considered the relevant 

factors when it denied defendant’s untimely Faretta motion. 

The court found defendant’s reasons for wanting to represent 

himself — to ask the jury to impose the death penalty in order 

to gain additional resources for his appeal — were not 

“compelling[,] . . . overwhelming or clearly pivotal.” The court 

further found that counsel’s representation of defendant was 

“excellent” and “well above the norm.” It noted regarding 

was untimely but that the trial court abused its discretion in 

denying the untimely motion because the defendants had not 

“asked for a continuance or otherwise suggested or expressed an 

intent to delay the proceedings . . . .” (People v. Nicholson, 

supra, 24 Cal.App.4th at p. 592.) Nicholson thus does not 

support defendant’s assertion that a Faretta motion is timely so 

long as a defendant does not request a continuance.
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defendant’s “prior proclivity to substitute counsel” that he had 

represented himself during the proceeding “only one time 

previous, but it did last for quite some time.”24 It also found that 

the stage of the proceeding weighed against self-representation 

because although it was “not an overwhelming length, it’s 

certainly a pivotal stage of the proceedings as far as, obviously, 

the penalty that the jury will impose.” Finally, the court stated 

that it was “not a huge concern” but that if defendant needed to 

move or use exhibits there would be a “minor disruption” of the 

proceedings because defendant was restrained. The court 

acknowledged defendant’s claim that there would be no 

disruption to the proceedings because he would not offer 

witnesses or exhibits or cross-examine any prosecution 

witnesses. Still, the court found there was “the portent of some 

disruption simply because of where we are in the nature of the 

proceedings.” Taking all of these factors into account, the court 

denied defendant’s Faretta motion.

We conclude the trial court did not abuse its discretion in 

denying defendant’s untimely Faretta motion. The court 

considered the pertinent factors and reasonably concluded that 

they weighed against granting defendant’s request. Defendant 

again asserts that the court abused its discretion because he did 

not request a continuance when he moved to represent himself. 

24 As the Attorney General points out, and as described 

above, defendant had filed Marsden motions on five prior 

occasions, and he threatened to do so on another. Defendant’s 

“proclivity to substitute counsel” was thus an even stronger 

factor in support of denying his Faretta motion than the trial 

court appears to have believed. (See People v. Hardy, supra, 

2 Cal.4th at p. 195.) 
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But although “the potential for delay and disruption is an 

important factor in the analysis,” it is not “the only factor the 

court may consider. We see no reason why a court may not also 

consider, for example, whether the potential disruption is likely 

to be aggravated, mitigated, or justified by the surrounding 

circumstances, including the quality of counsel’s representation 

to that point, the reasons the defendant gives for his request, 

and the defendant’s proclivity for substituting counsel.” (People 

v. Buenrostro, supra, 6 Cal.5th at p. 426; see also People v. Smith

(2018) 4 Cal.5th 1134, 1182–1183.) Those are the precise factors 

the trial court considered here. 

Although the court acknowledged defendant was not 

requesting a continuance, it also observed that defendant’s 

counsel was “excellent,” that defendant had some proclivity to 

substitute counsel (indeed, more of a proclivity than the trial 

court expressly acknowledged), that defendant’s stated reason 

for representing himself — to seek the death penalty — was not 

“overwhelming,” and that defendant’s self-representation 

carried with it some potential for disruption based on the stage 

of the proceedings. We therefore conclude that the trial court’s 

determination was not arbitrary, capricious, or so outside the 

bounds of reason as to render its ruling an abuse of discretion.

B. Claims Regarding Jury Deliberations

1. Trial court’s direction to jury to continue 

deliberations

Defendant asserts the trial court erred when it instructed 

the jury to continue deliberating during the penalty phase after 

the jury indicated it was deadlocked. Defendant contends the 

court’s actions coerced a death verdict and violated section 1140 

and his state and federal constitutional rights to due process, a 
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fair trial, and against cruel and unusual punishment. We hold

the trial court did not err.

a. Factual background

The jury retired to begin penalty phase deliberations on 

December 19, 2007, at about 2:30 p.m. Shortly after 3:00 p.m., 

the jury requested that Stalcup’s direct examination and 

defendant’s personal statement be read back. The jury was 

dismissed for the remainder of the day. The reading was 

provided the following day from 10:10 a.m. until shortly after 

11:00 a.m. The jury resumed deliberations but recessed for the 

day at 12:05 p.m. due to a juror’s illness. The next day, the jury 

deliberated from 9:30 a.m. until noon, at which time it broke for 

lunch and submitted a note stating, “We are deadlocked 11 to 1. 

What do we do from here?” 

Outside of the jury’s presence, the trial court stated it 

intended to bring the jury into the courtroom and inquire as to 

the number of ballots taken and the numerical breakdown of 

each ballot without referring to the verdicts represented. 

Defense counsel asked the court if it would inquire of the jurors 

whether they believed further deliberations would be 

productive. The court agreed, noting the jury had not 

deliberated very long.

The jury was brought into the courtroom and the judge 

inquired about the reported deadlock. The foreperson stated the 

jury had taken four ballots with splits of six-to-six, eight-to-four, 

ten-to-two, and eleven-to-one. The foreperson also reported that 

deliberations were “thick and heated.” The court asked each 

juror whether further deliberations would be productive. The 

foreperson said, “I really don’t think so.” Six jurors responded 

“no.” Another said “absolutely not.” Three stated “probably 
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not.” One juror answered “maybe.” The court then excused the 

jury from the courtroom.

Defense counsel requested a mistrial, arguing the jury was 

deadlocked. The prosecutor requested that deliberations 

continue because the jury had not been deliberating long, and 

because some jurors indicated they believed that continued 

deliberations would “maybe” (or “probably not”) be productive. 

The court denied defense counsel’s mistrial motion, stating the 

jury had not spent sufficient time deliberating, especially 

compared to the one week it took the jury to reach a verdict in 

the guilt phase. Accordingly, the court ordered the jury to 

return on January 3, 2008.

The jury resumed deliberations on January 3. After 

deliberating for about two hours, the jury returned a verdict of 

death.

b. Analysis

Defendant asserts the trial court violated section 1140 and 

coerced the jury into returning a death verdict when it directed 

the jury to continue deliberating. Neither contention has merit.

i. Section 1140

Section 1140 states: “Except as provided by law, the jury 

cannot be discharged after the cause is submitted to them until 

they have agreed upon their verdict and rendered it in open 

court, unless by consent of both parties, entered upon the 

minutes, or unless, at the expiration of such time as the court 

may deem proper, it satisfactorily appears that there is no 

reasonable probability that the jury can agree.” Defendant 

contends the trial court violated section 1140 by instructing the 

jury to continue deliberations after the jury reported a deadlock, 
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by ignoring the poll of the jurors indicating a deadlock, and by 

inquiring into the numerical division of the jury.

Whether there is reasonable probability under section 

1140 that the jury can agree upon a verdict is left to the 

discretion of the trial court, which may consider the length of 

the trial, the amount of evidence, and the complexity of the 

issues. (People v. Rodriguez (1986) 42 Cal. 3d 730, 775; see 

People v. Rojas (1975) 15 Cal. 3d 540, 546.) A trial court “abuses 

its discretion if it acts ‘in an arbitrary, capricious, or patently 

absurd manner’ ” (People v. Boyce, supra, 59 Cal. 4th at p. 687) 

or “when its ruling ‘falls outside the bounds of reason’ ” (People 

v. Osband, supra, 13 Cal. 4th at p. 666). 

None of the factors defendant relies on indicate the trial 

court abused its discretion here. In People v. Sandoval (1992) 

4 Cal.4th 155, the jury spent “about three full days” deliberating 

before indicating that it believed it was deadlocked. (Id. at 

p. 195.) When the trial court asked whether it was possible for 

the jury to reach a verdict, each juror replied “no.” (Ibid.) The 

jury also informed the trial court, at the court’s request, that it 

had divided six-to-six on two counts and five-to-seven on a third 

count. (Ibid.) The court directed the jury to continue 

deliberating, noting that “a little more time would not be 

unreasonable in light of the fact that the trial had lasted five 

months.” (Ibid.) The defendant argued on appeal that the trial 

court had abused its discretion when it instructed the jury to 

continue deliberations. (Id. at p. 197.) We rejected that 

contention in light of the amount of time the jury had spent 

deliberating. (Id. at p. 198.) 

Here, the trial court directed the jury to continue 

deliberating, noting that the jury had “not put in sufficient 
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time.” Indeed, the record indicates the jury had deliberated for 

only about four hours over three days before it indicated it 

believed it was deadlocked. In light of the circumstances of this 

case, the trial court did not abuse its discretion by ordering the 

jury to continue deliberating after such a brief period. (See, e.g., 

People v. Sandoval, supra, 4 Cal.4th at pp. 194–197 [no abuse of 

discretion after jury deliberated for about three days]; People v. 

Sheldon (1989) 48 Cal.3d 935, 958–959 [no abuse of discretion 

after jury deliberated for about two days]; People v. Rodriguez, 

supra, 42 Cal.3d at pp. 774–777 [no abuse of discretion after jury 

deliberated for about 18 days].)

Nor do the jurors’ responses to the trial court’s inquiry 

about the utility of additional deliberations indicate the court 

abused its discretion. When asked whether they believed 

further deliberations could help to reach a verdict, six jurors 

answered “no,” one said “probably not,” one said “I really don’t 

think so,” three answered “probably not,” and one answered 

“maybe.” These responses did not foreclose the possibility of 

reaching a verdict, which was sufficient under section 1140 to 

support the trial court’s direction to the jury that it continue 

deliberating. (People v. Brooks, supra, 3 Cal.5th at p. 89 [seven 

jurors indicating additional assistance from the court regarding 

deliberations “would, or might, be helpful” provided “an ample 

basis” to support court’s determination under section 1140]; 

People v. Sheldon, supra, 48 Cal.3d at p. 959 [no abuse of 

discretion under section 1140 when “several” jurors “expressed 

the hope that further instructions from the court might assist in 

bringing about a verdict”].) Indeed, we have held that a trial 

court does not necessarily abuse its discretion in directing 

further deliberations even when all of the jurors believed further 

deliberations would not be productive. (People v. Sandoval, 
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supra, 4 Cal.4th at p. 196; People v. Breaux, supra, 1 Cal. 4th at 

pp. 317–320.) Considering the circumstances here, we cannot 

say the trial court abused its discretion under section 1140 when 

it directed the jury to continue deliberations.

Defendant’s additional assertion — that the trial court ran 

afoul of section 1140 by inquiring into the numerical division of 

the jury — similarly fails. A trial court does not violate section 

1140 by inquiring of the jury as to its numerical division. (People 

v. Carter (1968) 68 Cal.2d 810, 815.)

ii. Coercion

Apart from his claim under section 1140, defendant 

contends the trial court coerced a verdict by requiring 

deliberations to continue. He points to the length of time the 

jury deliberated, the trial court having required the jury to 

return to deliberate after the Christmas and New Year holidays, 

the jurors’ responses concerning whether they believed 

additional deliberations would be productive, and the court’s 

inquiry into the numerical division of the jury deadlock. Such 

coercion, defendant alleges, violated his state and federal 

constitutional right to due process, right to a fair trial, and the 

prohibition against cruel and unusual punishment.

Whether a trial court has improperly coerced a jury is a 

separate, albeit related inquiry from whether the court abused 

its discretion under section 1140. A court must exercise its 

power without coercion of the jury so as to avoid displacing the 

jury’s independent judgment “ ‘in favor of considerations of 

compromise and expediency.’ ” (People v. Rodriguez, supra, 

42 Cal. 3d at p. 775; see People v. Carter, supra, 68 Cal. 2d at 

p. 817.) Whether coercion occurred depends on the facts and 

circumstances of each case. (People v. Breaux, supra, 1 Cal. 4th 
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at p. 320.) Coercion involves “ ‘a judicial attempt to inject 

illegitimate considerations into the jury debates [and] . . . appeal 

to dissenting jurors to abandon their own independent judgment 

of the case against the accused,’ ” by exerting “ ‘excessive 

pressure on the dissenting jurors to acquiesce in a verdict.’ ” 

(People v. Bryant, supra, 60 Cal. 4th at p. 462.)

There was no coercion here. The court did not exert undue 

pressure on the jurors to reach a verdict or make any remarks 

that could be interpreted as coercive. Rather, the court properly

inquired of the jurors concerning their numerical division 

(People v. Brooks, supra, 3 Cal.5th at p. 92; People v. Carter, 

supra, 68 Cal.2d at p. 815) and whether further deliberations 

would be productive (People v. Brooks, supra, 3 Cal.5th at p. 89). 

The court determined the deliberations should continue given 

the amount of time that had elapsed and the individual jurors’ 

responses regarding the potential that further deliberations 

would be productive. As noted above, the jury had deliberated 

for the equivalent of only about four hours before declaring it 

was deadlocked. It was not coercive for the trial court to require 

additional deliberations after such a brief period. (See, e.g., 

People v. Sandoval, supra, 4 Cal.4th at pp. 194–197; People v. 

Sheldon, supra, 48 Cal.3d at pp. 958–959; People v. Rodriguez, 

supra, 2 Cal.3d at pp. 774–777.)

Defendant asserts the trial court’s direction to the jury to 

continue deliberating effectively told the jury the court would 

compel it to deliberate until a unanimous verdict was reached. 

Relying on a decision by the United States Court of Appeals for 

the Ninth Circuit, Jiminez v. Meyers (9th Cir. 1993) 40 F.3d 976, 

defendant contends the jury would have been pressured to reach 

a verdict in light of the trial court’s directions. He argues it was 

“especially coercive” for the court to continue deliberations, thus 
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forcing the jury to return after the Christmas and New Year 

holidays.

Federal appellate court decisions are not binding on this 

court, although we may consider them for any persuasive value. 

(People v. Brooks, supra, 3 Cal.5th at pp. 90–91.) In any event, 

Jiminez is distinguishable from the facts of this case. In 

Jiminez, the Ninth Circuit held the trial court had 

impermissibly coerced the jury “by expressing approval of the 

‘ “movement” ’ toward juror unanimity.” (People v. Brooks, 

supra, 3 Cal.5th at p. 91, quoting Jiminez, supra, 40 F.3d at 

pp. 980–981.) The trial court below did not communicate to the 

jury any approval of the jury’s progression toward unanimity. 

Nor was there anything inherently coercive about the trial 

court’s decision to adjourn deliberations over the holidays and 

have the jury return on January 3. The court advised the jury 

during voir dire that the case would recess over the holidays if 

it had not concluded — and counsel agreed with this approach. 

If anything, the court’s decision to have the jury return rather 

than pressuring it to reach a verdict immediately likely reduced 

the potential for any coercion. (Cf. People v. Anderson (1990) 52 

Cal.3d 453, 469.) Finally, as defendant acknowledges, we have 

held it is not improperly coercive for a trial court to inquire into 

the numerical division of a jury. (People v. Valdez, supra, 

55 Cal.4th at p. 160; People v. Carter, supra, 68 Cal.2d at p. 815.) 

We therefore conclude that the court’s directive to the jury 

that it continue deliberations did not coerce the jury’s verdict. 

For the same reasons, we also reject defendant’s claim that the 

trial court erred in denying defendant’s request for a mistrial 

when the jury declared it was deadlocked. (People v. Clark, 

supra, 52 Cal.4th at p. 990 [motion for mistrial should be 
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granted “ ‘only when a party’s chances of receiving a fair trial 

have been irreparably damaged’ ”]; People v. Valdez, supra, 

32 Cal.4th at p. 128 [trial court’s denial of mistrial motion is 

reviewed for abuse of discretion].)

2. Trial court’s inquiry into jury’s numerical division

during deliberations

In addition to asserting that the trial court’s inquiry into 

the numerical division of the jury amounted to improper 

coercion and violated section 1140, addressed above, defendant 

further contends the court’s inquiry itself requires reversal of 

the death judgment. 

As described, after a few hours of deliberations the jury 

sent the court a note that it was deadlocked; the note indicated 

the division was 11 to 1. The trial court stated that it intended 

to bring the jurors into the courtroom to “[f]ind out how many 

ballots they’ve taken over what time, and perhaps what the 

numbers are without asking them, of course, what number 

represents which side of the possible verdicts.” Defense counsel 

asked whether the court would also ask the jurors if they 

thought further deliberation would be beneficial, stating, “We 

were just wondering if it’s a hopeless situation, if they’re 

hopelessly deadlocked, if we can, kind of, get a read on that.” 

After an exchange with the prosecutor, the court stated, “[W]hy 

don’t I plan on getting the information, and then I’ll tell them to 

go back while I discuss it with the attorneys, and then we’ll have 

them come back in for whatever direction I give them. Is that 

agreeable?” Defense counsel responded, “Yeah. That’s fine.” As 

described above, the jury then entered the courtroom and the 

trial court asked the foreperson how many ballots the jury had 

taken and for the number of votes at each ballot.
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Defendant acknowledges that we have approved of a trial 

court’s inquiry into the numerical division of a jury. (People v. 

Valdez, supra, 55 Cal.4th at p. 100, People v. Carter, supra, 

68 Cal.2d at p. 815.) He asserts, however, that we should 

reconsider our precedent in light of the high court’s decision to 

forbid the practice in federal courts pursuant to its supervisory 

powers, citing Lowenfield v. Phelps (1988) 484 U.S. 231 at pages 

239 to 240 and Brasfield v. United States (1926) 272 U.S. 448 at 

page 450.

The Attorney General asserts the claim is forfeited 

because defense counsel failed to object. Defendant contends an 

objection was not required because it would have been futile 

given the case authority approving an inquiry into the 

numerical division of a deliberating jury. (People v. Hill (1998) 

17 Cal.4th 800, 820.) The claim does appear to have been 

forfeited. Defense counsel not only failed to object to the trial 

court’s inquiry of the jury, but affirmatively agreed with the 

court’s approach. (See People v. Lewis and Oliver (2006) 39 

Cal.4th 970, 1038 [finding defendant’s state and federal claims 

related to trial court’s scheduling of jury deliberations were 

forfeited because “[c]ounsel did not object to the court’s 

approach. Counsel on both sides said they had ‘no problem’ with 

it”].) 

Even assuming the claim was preserved, however, we 

reject it on the merits. As noted, we have previously considered 

and rejected the argument that it is error for a trial court to 

inquire into a jury’s numerical split during deliberations. (See, 

e.g., People v. Bryant, supra, 60 Cal.4th 335, 462–463; People v. 

Valdez, supra, 55 Cal.4th at p. 100; People v. Johnson (1992) 3 

Cal.4th 1183, 1254; People v. Breaux, supra, 1 Cal.4th at p. 319; 

People v. Carter, supra, 68 Cal.2d at p. 815.) Indeed, our 
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106

decisions have squarely addressed and rejected the federal cases 

on which defendant now relies. (People v. Valdez, supra, 55 

Cal.4th at p. 100 [discussing and rejecting similar claim in light 

of Brasfield v. United States, supra, 272 U.S. 448]; People v. 

Johnson, supra, 3 Cal.4th at p. 1254 [discussing and rejecting 

similar claim in light of Brasfield and Lowenfield v. Phelps, 

supra, 484 U.S. 231].) Defendant provides no compelling reason 

for this court to revisit the issue.

C. Instructions on Mercy and Lingering Doubt

Defendant asserts his state and federal rights to due 

process and the prohibition against cruel and unusual 

punishment were violated when the trial court denied defense 

counsel’s request to instruct the jury on the role of mercy and 

lingering doubt in its penalty phase deliberations. We find no 

error.

The requested mercy instruction stated, “In deciding the 

appropriate punishment, the jury may consider mercy for the 

defendant in weighing the factors in aggravation and 

mitigation.” The jury was instructed with CALCRIM No. 763, 

which incorporates section 190.3, factor (k) and directs the jury 

to consider “[a]ny other circumstance, whether related to these 

charges or not, that lessens the gravity of the crime even though 

the circumstance is not a legal excuse or justification. These 

circumstances include sympathy or compassion for the 

defendant or anything you consider to be a mitigating factor, 

regardless of whether it is one of the factors listed above.”

No additional instruction was required. Defendant’s 

assertion that “mercy” is a distinct concept from “sympathy” or 

“compassion” is unavailing. (See People v. Boyce, supra,

59 Cal.4th at p. 707.) “ ‘[W]e have repeatedly rejected the claim 
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107

that omission of “mercy” from the jury instructions constitutes 

error.’ ” (People v. Scully, supra, 11 Cal.5th at p. 609; see also 

People v. Silveria (2020) 10 Cal.5th 195, 301.) The instruction 

allowing for consideration of sympathy and compassion 

permitted the jury to consider mercy. (People v. Brown (2003) 

31 Cal.4th 518, 570; People v. Stanley (1995) 10 Cal.4th 764, 840 

[“a jury told it may sympathetically consider all mitigating 

evidence need not also be expressly instructed it may exercise 

‘mercy’ ”].) Defendant asks us to reconsider our prior decisions 

on this point. He offers no persuasive reason for doing so. 

We also hold that the trial court did not err in declining to 

give defendant’s requested instruction concerning lingering 

doubt. The proposed instruction stated:

“Each individual juror may consider as a mitigating 

factor residual or lingering doubt as to whether the 

defendant killed the victim. Lingering or residual 

doubt is defined as the state of mind between beyond 

a reasonable doubt and beyond all possible doubts.

“Thus if any individual juror has a lingering or 

residual doubt about whether the defendant killed 

the victim, he or she must consider this as a 

mitigating factor and assign it to the weight you 

deem appropriate.”

We have repeatedly held that a trial court is not required 

under state or federal law to give such an instruction. (People 

v. Ramirez, supra, 10 Cal.5th at p. 1030.) And “no such 

instruction is necessary when — as here — the court instructed 

the jury on section 190.3, factors (a) and (k) and defense counsel 

urged the jury to consider residual doubt in closing argument.” 

(Ibid.)
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Defendant’s assertion that People v. Gay (2008) 42 Cal.4th 

1195 compels a contrary result is unavailing. In that case, this 

court reversed a death judgment when the trial court instructed 

the penalty phase jury on lingering doubt but limited evidence 

the defense could offer during the penalty phase. (Id. at 

p. 1224.) We held that “[t]he combination of the evidentiary and 

instructional errors present[ed] an intolerable risk that the jury 

did not consider all or a substantial portion of the penalty phase 

defense, which was lingering doubt.” (Id. at p. 1226.) 

Here, the trial court refused to instruct the jury 

specifically on lingering doubt but allowed counsel to argue 

lingering doubt. We have previously found no error occurred on 

similar facts. (People v. Gonzales and Soliz, supra, 52 Cal.4th 

at p. 326 [“In Gay, the trial court instructed the jury on lingering 

doubt, but precluded the defendant from presenting that 

defense; in the present case, the trial court allowed defendants 

to present and argue their lingering doubt defenses, but refused 

to specifically instruct on lingering doubt. As we stated in Gay, 

our holding there was not based on any state or federal 

constitutional right to a lingering doubt instruction; rather, it 

was based on California’s death penalty statute, which 

authorizes the admission of evidence of innocence at a penalty 

retrial”].) Consistent with our prior approach, we find no error 

here.

D. Whether the Jury was Required to Find 

Aggravating Factors Outweighed Mitigating 

Factors Beyond a Reasonable Doubt

Defendant asserts his state and federal right to due 

process, right to an accurate jury determination, and the 

prohibition against cruel and unusual punishment were violated 

when the trial court denied defense counsel’s request to instruct 
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Opinion of the Court by Cantil-Sakauye, J.

109

the jury that it had to find the aggravating circumstances 

outweighed the mitigating circumstances beyond a reasonable 

doubt. In support, he relies on Apprendi v. New Jersey, supra, 

530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584.

As defendant acknowledges, we have consistently rejected 

the argument that Apprendi and its progeny require the jury to 

find that aggravating factors outweighed mitigating factors 

beyond a reasonable doubt. (See, e.g., People v. Merriman (2014) 

60 Cal.4th 1, 106; People v. Duff, supra, 58 Cal.4th at p. 569; 

People v. Griffin (2004) 33 Cal.4th 536, 595.) Defendant offers 

no persuasive reason for us to reconsider these precedents, and 

we decline to do so.

E. Constitutionality of California’s Death Penalty 

Law

Defendant advances several challenges to the 

constitutionality of California’s death penalty law that, he 

acknowledges, this court has previously considered and rejected. 

We decline his request to reconsider our prior precedent 

regarding the following holdings. 

“Section 190.2 provides a list of the special circumstances 

. . . which render a defendant eligible for the death penalty. 

These factors are not so numerous and broadly interpreted that 

they fail to narrow the class of death-eligible first degree

murders as required by the Eighth and Fourteenth 

Amendments.” (People v. Schultz (2020) 10 Cal.5th 623, 682.)

“Section 190.3, factor (a), directs the jury to consider as 

evidence in aggravation the circumstances of the capital crime. 

This has not resulted in the wanton imposition of the death 

penalty in violation of the Fifth, Sixth, Eighth, and Fourteenth 

Amendments by permitting prosecutors to argue that the 
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110

various features of the murder, even features that are the 

converse of those in other cases, are aggravating factors.” 

(People v. Schultz, supra, 10 Cal.5th at p. 683.)

Instructing the jury that a death verdict is “warrant[ed]” 

if the aggravating factors are “ ‘so substantial’ ” in comparison 

with the mitigating factors is not impermissibly broad or vague. 

(People v. Scully, supra, 11 Cal.5th at p. 611.)

“Use of adjectives such as ‘extreme’ and ‘substantial’ in 

section 190.3, factors (d) and (g), respectively, does not create a 

constitutionally impermissible barrier to the jury’s 

consideration of a defendant’s mitigating evidence.” (People v. 

Johnson, supra, 62 Cal.4th at p. 656.)

“Directing the jury to consider ‘ “whether or not” ’ certain 

mitigating factors were present does not invite the jury to use 

the absence of such factors as a factor in aggravation.” (People 

v. Schultz, supra, 10 Cal.5th at p. 684.)

“There is no federal constitutional requirement, either 

under the Fifth, Sixth, Eighth, or Fourteenth Amendments, that 

the jury make unanimous findings regarding the aggravating 

factors . . . .” (People v. Schultz, supra, 10 Cal.5th at p. 683; see 

also People v. Scully, supra, 11 Cal.5th at p. 611.)

The trial court need not instruct the jury during the 

penalty phase that it must impose life without the possibility of 

parole if it determines that mitigating factors outweigh 

aggravating factors. (People v. Scully, supra, 11 Cal.5th at 

p. 611; People v. Frederickson, supra, 8 Cal.5th at p. 1027; 

People v. Jones, supra, 54 Cal.4h at p. 78.)

“Jurors need not make written findings on the 

aggravating factors found.” (People v. Scully, supra, 11 Cal.5th 

at p. 612.)
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111

“Comparative intercase proportionality review by the trial 

or appellate courts is not constitutionally required.” (People v. 

Snow (2003) 30 Cal.4th 43, 126.)

“The imposition of the death penalty under California’s 

law does not violate international law or prevailing norms of 

decency.” (People v. Krebs (2019) 8 Cal.5th 265, 351.)

Defendant acknowledges that this court has previously 

rejected the challenges to California’s death penalty scheme 

that he presents here. He asserts, however, that our analysis of 

these issues is constitutionally defective because we have failed 

to consider their cumulative impact or to address the capital 

sentencing scheme as a whole. We have considered and rejected 

this identical cumulative impact argument in prior cases, and 

we do again here. (See, e.g., People v. Amezcua and Flores (2019) 

6 Cal. 5th 886, 928; People v. Johnson, supra, 62 Cal.4th at 

pp. 657–658.)
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Opinion of the Court by Cantil-Sakauye, J.

112

VI. CONCLUSION

We affirm the judgment in its entirety.

CANTIL-SAKAUYE, J.*

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

* Retired Chief Justice of California, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California 

Constitution.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Thomas

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal XX

Original Proceeding

Review Granted (published) 

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________

Opinion No. S161781

Date Filed: January 26, 2023

__________________________________________________________

Court: Superior

County: Riverside

Judge: Terrance R. Boren

__________________________________________________________

Counsel:

John L. Staley, under appointment by the Supreme Court, for 

Defendant and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Gerald A. 

Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant 

Attorney General, Holly D. Wilkens, Robin Urbanski, Ronald A. Jakob

and Michael D. Butera, Deputy Attorneys General, for Plaintiff and 

Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

John L. Staley

Attorney at Law

12463 Rancho Bernardo Road, No. 372

San Diego, CA 92128

(858) 613-1047

Michael D. Butera

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9054