1 

Filed 5/15/14 P. v. Peterson CA3 

NOT TO BE PUBLISHED 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

MICHAEL J. PETERSON, 

 Defendant and Appellant. 

C072521 

(Super. Ct. No. 09F01628) 

 The jury found defendant Michael J. Peterson guilty of first degree murder and 

found true an allegation he used a deadly weapon (a knife), but not true a robbery-murder 

special circumstance, and the trial court found he had two prior serious felony 

convictions (both first-degree burglaries). (Pen. Code, §§ 187, subd. (a), 190.2, subd. 

(a)(17); 459, 667, subd. (a); 12022, subd. (b)(1).) The trial court sentenced defendant to 

prison for 25 years to life for murder, consecutive to 11 years for the enhancements, and 

he timely appealed. 
2 

 On appeal, defendant challenges two evidentiary claims. One was the admission 

of his statement to a nurse a few months after the killing to the effect that he had killed 

before. The other was the introduction of evidence of defendant’s relationship to White 

supremacist groups. We find no prejudicial error and shall affirm the judgment. 

FACTS 

 This was a cold case murder, solved by a DNA match. 

 On November 5, 1992, police arrived at John Arana’s house, to find his body in 

the bedroom, with blood in various locations in the house. The kitchen sinks were filled 

with reddish water and contained items including knives, sexual lubricant, and 

homosexual pornographic magazines with Nazi symbols apparently drawn on them. The 

toilet had discarded bandages in it. There were no signs of forced entry. 

A friend of Arana’s testified he knew Arana sometimes combined cocaine use 

with sexual behavior. Arana’s tenant, in a house behind Arana’s, reported hearing blunt 

noises like something hitting the wall. Arana’s TV, VCR, answering machine, wallet, 

and truck were missing. The truck was found three days later, wiped clean. 

The pathologist found 28 stab wounds, from a knife five inches long or greater, 

but no hilt marks, which are typically caused when a knife with a hand guard is plunged 

fully into a body. In stabbings where a knife with no hand guard is used, the assailant’s 

hand can easily slip off the handle and he or she is then cut with his or her own knife. A 

criminalist and a detective testified in accord. The pathologist and detective each 

described defensive cuts on Arana’s hands and fingers. Arana’s own sperm was found in 

his mouth and anus. 

 On the evening of November 4, 1992, defendant went to a hospital emergency 

room with injuries to his left wrist and a joint of his right index finger, claiming his wife 

had cut him with a butcher knife. 

Marjorie Evert testified she was working as a nurse and peace officer at Deuel 

Vocational Institution, a state prison, on February 13, 1993, in the hospital, where 
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defendant was a patient. Some patients were psychiatric cases, but she could not recall 

whether defendant in that group. Defendant became very upset and angry when told it 

was not time for him to exercise, and he broke windows and said he was going to kill 

Evert when he got out, adding, “You’re not the first and you won’t be the last.” She had 

previously said the threat was made to staff consisting of herself and another nurse, not 

necessarily herself personally. However, she took defendant’s threat seriously. 

 Ultimately, a DNA match linked defendant to the crime scene. 

On January 20, 2009, Sergeant Keller and Detective Jason went to Missouri to talk 

to defendant in a prison there. When asked if he knew about any Sacramento murders, 

defendant said he had been a member of the “Nazi Low Riders” and witnessed two gang 

murders in 1990 or 1991, which he described. One man was hit with a crowbar and put 

in a refrigerator because he had molested someone’s niece, and a woman was choked for 

being a “rat.” He showed Keller a “bird” tattoo on his shoulder and said it was a Nazi 

Low Rider emblem. He said that in 1991, the gang kidnapped and tortured him. He 

denied homosexual activity. He denied knowing Arana or anything about his killing. 

At trial, defendant testified a White man named Terry Rae Cooper, whom he met 

at Loaves and Fishes--a services provider to homeless people--went with him to the 

parking lot of a bar on Broadway, where they first saw Arana. Cooper suggested 

defendant could “turn a trick” with Arana to get money for cocaine. After Cooper 

approached Arana, he drove Cooper and defendant to Arana’s house, where defendant 

fell asleep on a couch. Something woke him up, he went into the bedroom, and Cooper 

told him to “get the hell out of here” or “get back” and cut defendant with a knife. 

Defendant grabbed a rag to wrap his hand, ran away, and went to the emergency room, 

telling the staff his wife had stabbed him. He never heard from Cooper again and did not 

know about Arana’s murder. In 1993 he moved to Kansas City, where his mother lived. 

Defendant also testified that in 1991 he had been beaten and sexually tortured by 

Nazi Low Riders, with whom he had associated while at the state prison in Susanville, 
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after which he did not associate with them. He told Sergeant Keller that he “ran with” 

that gang, but did not say that he was a member. He claimed he had not witnessed the 

murders he described to Keller, he was relaying “secondhand” information to him. He 

admitted he had an “iron eagle” tattoo, a picture of which was shown to the jury. He 

admitted that tattoo “could be construed as a White Power Tattoo.” He also described the 

SS lightning bolts as reflecting Aryan ideology and in the prison system they pertained to 

White supremacy, which was the ideology of the Nazi Low Riders. Some of the symbols 

added to the homosexual magazines shown at trial were Nazi symbols, except a 

backwards swastika, but he denied drawing them, although he sometimes drew, and was 

good at art, stating he drew “much better than that.” 

Defendant did not remember threatening Evert, but he had been having bipolar 

“spikes,” and was on suicide watch at the time, during which he “said stupid things like 

that all the time.” He denied being homosexual, but admitted he had engaged in oral 

homosexual conduct between seven and nine years prior to 1992. When arrested on 

another matter in December 1992, defendant gave a false name and did not mention the 

stabbing incident. He had several convictions involving moral turpitude in California and 

Missouri, including first and second degree burglaries, forgery, misdemeanor and felony 

thefts, and robbery. 

In rebuttal, an experienced officer described fruitless efforts, via governmental and 

private databases, to find “Terry Rae Cooper,” and he eliminated all persons named 

“Terry Cooper” as not matching the gender, age, or race defendant had described. He 

also identified various photographs taken of the magazines found in the sinks, depicting 

men with Nazi symbols drawn on them. DNA from the scene matched Arana or 

defendant, but no third parties. A photograph of defendant’s chest tattoo was admitted 

into evidence. 

The People argued defendant wanted to steal from Arana and then tried to conceal 

evidence of having killed him by submerging evidence in water and the toilet. Defendant 
5 

lied about his wounds to hospital staff, and lied to Detective Keller about being in the 

house. His DNA--and no one else’s--was found in the house. Cooper never existed. 

Defendant was not comfortable with his homosexuality, which might be because of the 

Nazi Low Riders, yet he drew Nazi symbols on the pornographic images in the 

magazines and had a Nazi tattoo. 

The defense emphasized the People’s high burden of proof, and that defendant’s 

DNA had not been found in the bedroom with Arana’s body, but only in other areas of 

the house, and argued Arana was stabbed by Cooper, as defendant testified. 

The jury rejected the robbery-murder special circumstance, but found defendant 

guilty of first degree murder with use of a knife. 

DISCUSSION 

I 

Evert’s Testimony 

 The People moved in limine to introduce Evert’s testimony containing defendant’s 

admission that he had killed before. The People emphasized the close time between the 

killing (November 4-5, 1992) and the alleged threat (February 13, 1993). 

 The trial court agreed the evidence was admissible, referencing its closeness in 

time to the killing, and found it was substantially more probative than prejudicial, but 

cautioned the prosecutor to “limit the amount of detail” surrounding the incident. After 

Evert’s testimony, following another defense objection, the trial court reiterated its ruling, 

finding the closeness in time of the threat to the killing was highly probative, and whether 

defendant actually meant the words to be taken as true was for the jury to decide. 

 On appeal, defendant contends the evidence was unduly inflammatory under state 

law, and violated his right to due process. We disagree. 

 A. Forfeiture

 To the extent that defendant contends the evidence violated due process, rather 

than state-law evidentiary rules, the People contend the point is forfeited for lack of trial 
6 

objection. Evidence Code section 353, subdivision (a)1 requires “timely” and “specific” 

objections to evidence. “The reason for the rule is clear--failure to identify the specific 

ground of objection denies the opposing party the opportunity to offer evidence to cure 

the asserted defect.” (People v. Holt (1997) 15 Cal.4th 619, 666; see People v. Williams

(1997) 16 Cal.4th 153, 250 [due process claim not preserved due to lack of trial 

objection].) 

 But the trial court granted a request that all trial objections be deemed 

“Federalized[.]” The granting of this inappropriate request muddies the record regarding 

the timeliness and specificity of any of the many objections voiced during this trial; 

accordingly, we shall reach the merits of defendant’s due process claim. 

 B. Due Process

 As defendant concedes in his reply brief, he has preserved only the claim that the 

trial court committed state law error, which had the additional legal effect of violating 

due process. (People v. Partida (2005) 37 Cal.4th 428, 433-439 (Partida).) “Only if 

there are no permissible inferences the jury may draw from the evidence can its 

admission violate due process. Even then, the evidence must ‘be of such quality as 

necessarily prevents a fair trial.’ [Citation.] Only under such circumstances can it be 

inferred that the jury must have used the evidence for an improper purpose.” (Jammal v. 

Van de Kamp (9th Cir. 1991) 926 F.2d 918, 920; see People v. Kelly (2007) 42 Cal.4th 

763, 787; People v. Steele (2002) 27 Cal.4th 1230, 1246; cf. Partida, supra, 37 Cal.4th at 

p. 439 [even if evidence should be excluded under state law, its admission “results in a 

due process violation only if it makes the trial fundamentally unfair”].) 

_____________________________________________________________________ 

1 Undesignated statutory references are to the Evidence Code. 
7 

 Here, the evidence was admissible under state law, and because there were 

permissible inferences the jury could but was not compelled to draw from it, it did not 

violate due process or render defendant’s trial fundamentally unfair. 

 Relevant evidence has “any tendency in reason” of proving or disproving a 

material disputed fact. (§ 210.) Contrary to defendant’s view, Evert’s testimony meets 

this threshold standard, because the jury could, but was not required to, construe 

defendant’s statement as an admission that he killed before, and that he was referring to 

Arana’s death, not merely blustering or referring to a Nazi Low Rider killing, as 

defendant’s briefing speculates. 

 Nor was this evidence unduly inflammatory so as to require exclusion. Section 

352 provides in full: “The court in its discretion may exclude evidence if its probative 

value is substantially outweighed by the probability that its admission will (a) necessitate 

undue consumption of time or (b) create substantial danger of undue prejudice, of 

confusing the issues, or of misleading the jury.” 

 “The two crucial components of section 352 are ‘discretion,’ because the trial 

court's resolution of such matters is entitled to deference, and ‘undue prejudice,’ because 

the ultimate object of the section 352 weighing process is a fair trial.” (People v. Harris

(1998) 60 Cal.App.4th 727, 736 (Harris).) “ ‘Prejudice’ does not mean a result which is 

unfavorable, it means a result which is unfair.” (Zellerino v. Brown (1991) 

235 Cal.App.3d 1097, 1109; see People v. Yu (1983) 143 Cal.App.3d 358, 

377[“ ‘Prejudicial’ is not synonymous with ‘damaging.’ ”] “ ‘The prejudice which 

exclusion of evidence under . . . section 352 is designed to avoid is not the prejudice or 

damage to a defense that naturally flows from relevant, highly probative evidence.’ 

[Citations.] ‘Rather, the statute uses the word in its etymological sense of “prejudging” a 

person or cause on the basis of extraneous factors.’ ” (People v. Zapien (1993) 4 Cal.4th 

929, 958.) 
8 

 As we have pointed out: “Evidence is not inadmissible under section 352 unless 

the probative value is ‘substantially’ outweighed by the probability of a ‘substantial 

danger’ of undue prejudice or other statutory counterweights.” (People v. Holford (2012) 

203 Cal.App.4th 155, 167.) Moreover, “Trial courts enjoy ‘broad discretion’ in deciding 

whether the probability of a substantial danger of prejudice substantially outweighs 

probative value. [Citations.] A trial court’s exercise of discretion ‘will not be disturbed 

except on a showing the trial court exercised its discretion in an arbitrary, capricious, or 

patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (Id. at 

pp. 167-168.) 

 In determining whether uncharged act evidence will be unfairly prejudicial, we 

typically consider: (1) the probative value of the evidence, (2) the comparatively 

inflammatory nature of the evidence, (3) the probability of jury confusion about how to 

use the evidence, (4) remoteness, and (5) consumption of trial time. (See, e.g., Harris, 

supra, 60 Cal.App.4th at pp. 737-741.) We consider each of these points in turn. 

 First, we note there is no challenge to the trustworthiness of the statement. (See, 

e.g., People v. Cudjo (1993) 6 Cal.4th 585, 607.) Evert testified she took the threat 

seriously. This made the evidence of defendant’s statement highly probative of the fact 

that he had killed someone in the past. 

 Second, compared to the gruesome evidence surrounding the murder itself, this 

testimony was not comparatively shocking, such that it would tend to skew the jury’s 

assessment of all of the other evidence of defendant’s guilt. (Cf. Harris, supra, 

60 Cal.App.4th at pp. 737-738 [jury’s assessment of testimony about comparatively 

minor charged conduct was skewed by evidence of brutal, speculative, and extremely 

inflammatory uncharged conduct].) The threat evidence was comparatively benign. 

 Third, the evidence was not confusing: Assuming the jury credited Evert, it would 

either conclude defendant was boasting to frighten her, spoke out of a mental lapse, or 
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was making a sincere statement that he had killed. Deciding which inference to draw 

from his statement would not be difficult or confusing for the jury. 

 Fourth, the prior incident, although “remote” as viewed from the time of trial, was 

very close in time to the murder, as the trial court pointed out. 

 Fifth, the evidence was not time-consuming, occupying less than 10 full pages of 

transcript, including cross-examination. 

 All of these factors militated in favor of admission of this evidence. 

 We also note that the prosecutor’s argument emphasized the abundant other

evidence of defendant’s guilt, including his DNA in the house, the fact he had cuts 

consistent with hurting himself while stabbing Arana, defendant’s prior record which cast 

doubt on his veracity, and the apparently missing items from the victim’s house, showing 

a motive to steal. Therefore this case is not one where strong evidence of a prior incident 

is used by the prosecution to leverage a weak case. In short, we see no abuse of 

discretion in the admission of this evidence. 

 C. Harmless Error

 Moreover, given the other evidence, any error was harmless. “As a general 

matter, the ‘[a]pplication of the ordinary rules of evidence’ ” does not amount to a due 

process violation, “[a]ccordingly, the proper standard of review is that announced in 

People v. Watson (1956) 46 Cal.2d 818, 836 [], and not the stricter beyond-a-reasonabledoubt standard reserved for errors of constitutional dimension [citation].” (People v. 

Fudge (1994) 7 Cal.4th 1075, 1102-1103 (Fudge).) In this case, the DNA matches, 

defendant’s recent cuts after the killing, and lies at the hospital about how he got those 

cuts, the lack of evidence that “Terry Rae Cooper” existed, and defendant’s flight to 

another state all show it is not reasonably probable the result would have been different 

had evidence of his statement to Evert been excluded. (See Cal. Const., art. VI, § 13; 

Watson, supra, at p. 836.) 
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II 

Evidence of White Supremacy 

 On appeal, defendant contends the trial was rendered unfair because of admission 

of evidence he was affiliated with White supremacist groups, had a swastika tattoo, and 

that Nazi symbols were found drawn on the magazines found in Arana’s kitchen sink. 

We disagree. 

 Defendant objected to the relevance of his tattoos, and his understanding of other 

White pride tattoos, and argued that references to the Aryan Brotherhood and White 

power would be prejudicial. The trial court found the fact the magazines were found 

submerged in the sink was highly probative, reflecting an effort to destroy evidence, and 

stated defendant opened the door to the disputed evidence by testifying to crimes 

committed by Nazi Low Riders, including his own beating by them. After viewing 

defendant’s tattoo outside the jury’s presence, the trial court found a photograph of it 

admissible, because it circumstantially linked defendant to the attempted destruction of 

similar symbols drawn on the magazines. 

 Defendant later objected to the admission of photographic exhibits depicting 

homosexual pornography and White supremacy symbols. The trial court found sufficient 

evidence linked defendant to the magazines and the attempt to destroy them, which was 

probative on the issue of identity, and did not find they were unduly prejudicial. 

However, the trial court suggested giving the jury only photographs of the pages of the 

magazines bearing symbols, to lessen the impact. The trial court found defendant’s own 

tattoo was relevant and “far outweighs any prejudicial effect,” and offered to give a 

limiting instruction that defendant’s association with White supremacy groups was not to 

be used to find he was a person of bad character or was predisposed to commit murder or 

robbery. The court gave the instruction, and defendant does not claim it was improper. 

Further, the prosecutor’s argument emphasized that the jury should not consider 

defendant’s beliefs as evidence of guilt. 
11 

On appeal, defendant faults trial counsel for not pressing further objections, 

specifically to Sergeant Keller’s testimony about defendant claiming affiliation with the 

Nazi Low Riders, and in any event claims the admission of evidence of the Nazi symbols 

found on the magazines and defendant’s own tattoo should have been excluded. We elect 

to reach the merits of his claims, and we find them unpersuasive. 

Someone at the scene of the crime placed magazines with Nazi symbols drawn on 

photographs of men contained within them in the kitchen sink, along with other items of 

evidence, under water, in an arguable effort to destroy evidence.2 The fact that defendant 

had some affiliation with a Nazi group, an admitted ability to draw, and a tattoo similar to 

those drawn on the magazines, tended to link him to the crime scene. Defendant’s 

beliefs, which were never elicited in any detail, regarding the Nazi and White power 

movements, in and of themselves, were not relevant to the question of his guilt. But his 

affiliations and his markings were highly probative of his presence at the murder scene, 

and his participation in the murder and subsequent effort to hide evidence of the killer’s 

identity in a manner highly inconsistent with that passive presence to which he testified. 

Under these circumstances, the probative value of the evidence exceeded its prejudicial 

effect, particularly given the limiting instruction to the jury. (See People v. Lindberg

(2008) 45 Cal.4th 1, 50.) Contrary to defendant’s view, we see no reason why the jury 

would not follow this instruction as to this evidence. “ ‘In the absence of evidence to the 

_____________________________________________________________________ 

2 The record shows photographs from the magazines. One is a cover picture depicting a 

shirtless muscular man on with an “SS” (Schutzstaffel) lightning bolt runic symbol drawn 

on his upper right arm. Another is this same picture, with the man holding what appears 

to be a whip or other similarly shaped device. Another picture shows a different openshirted, naked and muscular man, holding what appears to be a baton, also with “SS” 

bolts drawn on his upper left arm. A fourth shows a close-up view of a muscular left 

arm, possibly holding a baton, showing an anticlockwise swastika. A photograph of 

defendant depicts a standard Nazi party symbol, with an eagle over a swastika, near and 

above his left nipple. 
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contrary, the presumption [that the jury adhered to the limiting instructions] will 

control.’ ” (People v. Zack (1986) 184 Cal.App.3d 409, 416.) 

Nor, as stated in part I, ante, would any error be prejudicial. Defendant was in the 

house, and cut his hand in the manner consistent with a killer using the type of unguarded 

knife found at the murder scene, then sought medical attention, lying to hospital staff 

about how he became injured. He then fled the state, without reporting the alleged 

“Terry Rae Cooper” incident. No third-party DNA was found at the scene, only 

defendant’s and the victim’s DNA. In such circumstances, it is not reasonably probable 

any error in the admission of this evidence caused actual prejudice. (See Fudge, supra, 

7 Cal.4th at pp. 1103-1104.)

DISPOSITION 

 The judgment is affirmed. 

 DUARTE , J. 

We concur: 

 HULL , Acting P. J. 

 HOCH , J.