IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

JEFFREY SCOTT YOUNG,

Defendant and Appellant.

S148462

San Diego County Superior Court

SCD173300

July 25, 2019

Justice Kruger authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, 

Cuéllar, and Groban concurred.
PEOPLE v. YOUNG

S148462

Opinion of the Court by Kruger, J.

Defendant Jeffrey Scott Young was convicted of the first 

degree murders of Teresa Perez and Jack Reynolds (Pen. Code, 

§ 187, subd. (a)), the attempted murder of Daniel Maman (id., 

§§ 187, subd. (a), 664), and the carjacking of Jim Gagarin (id., 

§ 215, subd. (a)). The jury found true allegations that 

defendant had personally used a firearm (all counts; id., 

§§ 12022.5, subd. (a)(1), (a)(2), 12022.53, subd. (b)); that 

defendant had personally and intentionally discharged a 

firearm (the first degree murders and attempted murder; id., 

§ 12022.53, subd. (c)); and that the firearm discharge caused 

death (the first degree murders; id., § 12022.53, subd. (d)). The 

jury also found true the special circumstance allegations that 

the murders were committed during a robbery (id., §§ 190.2, 

subd. (a)(17), 211), and that defendant had been convicted of 

multiple murders in the same proceeding (id., § 190.2, subd. 

(a)(3)). The jury was unable to reach a verdict as to penalty, 

and the trial court declared a mistrial. After a penalty retrial, 

the jury fixed the penalty at death, and the trial court entered 

a judgment of death. This appeal is automatic. (Cal. Const., 

art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).) 

We affirm the judgment as to guilt. But we find the trial 

court erred at the penalty retrial by permitting the prosecution 

to make improper use of inflammatory character evidence for 

purposes unrelated to any legitimate issue in the proceeding. 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

2

Having carefully reviewed the record, we conclude the error 

was prejudicial. We therefore reverse the judgment as to the 

sentence of death and remand the matter for a new penalty 

determination.

I. BACKGROUND

A. Guilt Phase

On July 18, 1999, defendant and two other men robbed a 

Five Star Park, Shuttle & Fly (“Five Star”) parking lot near 

the San Diego International Airport. The three robbers were 

aided by a former Five Star employee, James Torkelson, who 

planned the robbery and assisted in it by pretending to be on 

duty. During the robbery, the robbers shot and killed Five 

Star employees Teresa Perez and Jack Reynolds. Then, while 

fleeing the scene, the robbers shot at bystander Daniel Maman

and stole the car of a second bystander, Jim Gagarin, at 

gunpoint.

Although the case initially went cold, subsequent 

investigation revealed the identities of the perpetrators. In 

2003, defendant was jointly charged with one of the other 

robbers, David Raynoha, but defendant was tried alone. 

Defendant did not contest his participation in the robbery or 

the carjacking, but argued that he did not fire the shots that 

killed Perez and Reynolds.

1. Prosecution Case

Around 12:30 a.m. on July 18, 1999, Kendrick Bowman 

began a shift in the toll booth at the Five Star parking lot, 

which was located at the intersection of Sassafras Street and 

Pacific Highway. Bowman relieved fellow employee Perez, 

whom he saw empty the cash drawer and head to the Five Star 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

3

temporary office in a nearby trailer. Shortly after he began his 

shift, Bowman encountered Torkelson. Bowman was surprised 

by Torkelson’s presence; he thought Torkelson, who had 

worked as a security guard at the parking lot, had been fired, 

and Torkelson was atypically early for his shift. Bowman also 

noticed Torkelson heading for a remote side of the parking lot, 

which differed from the usual starting point for Torkelson’s 

rounds. 

Immediately after Torkelson disappeared from Bowman’s 

line of sight, someone approached Bowman from behind and 

said, “Hey, you.” Bowman turned around and found a man 

pointing a gun at him. Although the gunman wore nylon 

stockings over his head, Bowman observed that the gunman 

was a White man in his twenties with a fair complexion and

short, reddish-blonde hair. The gunman ordered Bowman to 

lay facedown on the floor of the toll booth. Bowman used his 

hand-held radio to send a covert distress signal to the security 

guard, but received no response. Unbeknownst to Bowman, all 

of the security guards had left after Torkelson told each guard 

that he was there to relieve him or her. Bowman then 

complied with the gunman’s demand. The gunman stepped

down on Bowman’s back, emptied the cash drawer, and

expressed disappointment at its contents. The gunman 

remained in the toll booth and Bowman asked him why he did

not leave. The gunman responded, “I can’t leave. I’m waiting 

for my ride.” 

Bowman heard the door to the bathroom near the trailer 

open, and the gunman yelled at someone to go into the trailer. 

Bowman assumed the gunman was yelling at Perez, since she 

had been heading to the trailer. Bowman then heard one 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

4

gunshot, followed by a series of shots after a brief pause. The 

gunman standing over him then fled toward Pacific Highway. 

Bowman stood up and saw the gunman clearly; he also saw 

two other men running in the same direction. Bowman then 

called 911. 

Maman, who had plans to spend the night with Perez, 

arrived at the Five Star parking lot a few minutes after 12:30 

a.m. to pick her up. Maman was driving a green van. As 

Maman was parking the van near the trailer, he saw two men 

come out of the trailer. One of the men aimed a revolver at 

him and started firing. Maman immediately drove away.

Maman described the gunman as being approximately five feet 

seven inches tall, and wearing a stocking over his head. 

Around the same time, Gagarin was retrieving his car 

from Park & Ride, a parking lot across Pacific Highway from 

the Five Star parking lot. He stopped at the Park & Ride exit 

booth, which was manned by Michael Mackey. Gagarin and 

Mackey first heard noises coming from the Five Star parking 

lot that Mackey dismissed as firecrackers, followed by noises 

that sounded more like gunshots. Gagarin and Mackey then 

saw a dark van leave the Five Star parking lot, followed by 

three men running towards the Park & Ride parking lot from 

the Five Star parking lot. The first man to arrive at the Park 

& Ride parking lot was armed and ran past the exit booth. The 

second and third men fired shots behind them before running 

up to the exit booth. Gagarin and Mackey both testified that 

the men were White and wore dark clothing, dark caps and 

nylon stockings over their faces. The shorter of the two men 

pointed a gun at Mackey and demanded the car, while the 

taller man pointed a silver-colored gun at Gagarin. Both 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

5

Gagarin and Mackey raised their hands in surrender, and 

Gagarin told the assailants to take his car. The assailants 

then exited the lot, heading east on Sassafras Street. Just as 

they left, the dark van that Gagarin and Mackey had seen 

driving away from the Five Star parking lot pulled into the 

Park & Ride parking lot. The driver asked if they were all 

right and told them that there had been shots fired at the Five 

Star parking lot and he believed that the shots were aimed at

him. Mackey then called 911. At the preliminary hearing, 

Mackey “felt 75 percent sure” that defendant was the shorter 

gunman.

1

San Diego Police Department officers arrived within 

minutes of Bowman’s call. Before they arrived, Bowman had 

entered the trailer and discovered the bodies of Perez and 

Reynolds facedown on the ground with multiple gunshot 

wounds to the back of their heads. Bowman did not touch 

anything, having recognized that Perez and Reynolds were 

dead. When the officers arrived, they checked both victims for 

signs of life but found none.

A homicide investigation team from the San Diego Police 

Department also responded to the scene. Members of the team 

discovered that the telephone lines and computer power cord in 

 

1 At trial, the prosecution presented the evidence of the 

following physical characteristics of defendant and the other 

robbers: (1) defendant is five feet six inches or five feet seven 

inches, weighs 160 pounds, and has brown hair; (2) Max 

Anderson is six feet two inches, weighs 175 pounds, and has 

brown hair; and (3) David Raynoha is six feet, weighs 175 

pounds, and has red hair.
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

6

the trailer had been cut. They found two bullet casings fired 

by a Glock nine-millimeter semiautomatic firearm: one near 

Perez’s arms and another by Reynolds’s head. They also 

recovered four fired bullets: (1) a .38-caliber revolver round 

fired from inside the trailer, leaving a bullet hole in the trailer 

wall; (2) a .38-caliber revolver round near Perez’s body, and 

(3) two Glock rounds near Reynolds’s body. They also found 

bullet holes in the carpet under the victims’ heads, which 

indicated that the victims had been shot while lying facedown. 

There were no signs of a struggle, and the safe was open. 

Perez’s car was found inside the Five Star parking lot. A ninemillimeter Glock cartridge was found on the ground outside 

the car, and a Glock bullet, which was used to shatter the 

passenger window, was found lodged in the driver’s seat. A 

bank deposit bag containing $1,512 in cash and a deposit slip 

for a $2,457 deposit were recovered in the front seat. A roll of 

duct tape was also found. A strand of hair found on the tape 

was later tested; testing revealed the DNA belonged to Max

Anderson, who would later be identified as one of the robbers. 

Gagarin’s car was discovered less than a mile from the 

Five Star parking lot. A nine-millimeter bullet casing was 

found on the ground outside the car, and a Glock containing 12

live nine-millimeter cartridges was found on the front 

passenger seat. Ballistics testing confirmed that all of the 

nine-millimeter casings from the trailer matched the magazine 

in Gagarin’s car. Dr. Christopher Swalwell examined the 

bodies at the scene on the night of the robbery and performed 

autopsies the next morning. Dr. Swalwell concluded that both 

victims died from gunshot wounds to the back of the head. 

Perez had two gunshot wounds, one on each side of her head, 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

7

caused by a .357 magnum or a .38-caliber revolver. Reynolds 

had three gunshot wounds, one in his right arm and two to his 

head, caused by a nine-millimeter Glock handgun. Based on 

the nature of the wounds and position of the bodies, 

Dr. Swalwell concluded that both Perez and Reynolds had been 

shot in the back of the head while lying facedown with their 

arms over their heads. And based on a distinct star-shaped 

tearing around the entry point of each gunshot wound and the 

presence of soot within each wound, Dr. Swalwell also 

concluded that the gunshot wounds were contact wounds, 

meaning that the barrel of the gun was pressed against the 

victims’ skin at the time of discharge. Steve Simmonds, the 

operations manager of the Five Star parking lot, testified that 

he initially believed that approximately $3,400 was taken in 

the robbery. But with the bank deposit bag recovered from 

Perez’s car, Simmonds estimated that the total monetary loss 

was approximately $2,000. Simmonds also testified that it was 

company policy that all employees were to comply and not 

resist in the event of a robbery. 

Detective Stephen McDonald testified that the case went 

cold for three years until he contacted Paula Daleo, Torkelson’s 

girlfriend at the time of the robbery. Daleo disclosed two 

incidents that connected defendant to the robbery. First, the 

night before the robbery, Torkelson brought four men back to 

their home: a man known to her as “Li’l Jeff,” Raynoha, and 

two others. Daleo did not know Li’l Jeff’s last name, but 

recognized him from frequent hangouts with Torkelson. Li’l 

Jeff also had two distinct tattoos: one on his arm that said 

“Nigger Thrasher” and another on his neck that depicted the 

hammer of the Norse god Thor. After the robbery, Torkelson
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

8

and Li’l Jeff went to Tempe, Arizona to stay with a man named 

Jason Getscher. At trial, Daleo identified defendant as Li’l 

Jeff. 

The second incident occurred about a year after the 

robbery, when Daleo attended a party in Li’l Jeff’s home in 

June 2000. Daleo recalled a general discussion of the robbery, 

in which Torkelson was described as the organizer of the 

robbery, and Li’l Jeff and Raynoha were described as 

participants. Someone said the killings during the robbery 

took place because “Jeff got trigger happy.” Li’l Jeff responded, 

“No, I did not,” but did not deny involvement with the robbery.

Based on the information obtained from Daleo, Detective 

McDonald contacted Getscher. At the time, Getscher was 

serving a term in Arizona state prison for forgery. Getscher 

explained that he met defendant during an earlier prison term 

in 1996. Because he was 10 years defendant’s senior, Getscher 

sought to protect defendant inside prison and keep him out of 

trouble after they were released. Defendant, Anderson, and 

Torkelson stayed in Getscher’s house immediately before the 

robbery. During their stay, defendant, Anderson, and 

Torkelson discussed robbing a business where Torkelson 

worked as a security guard. Getscher was present when the 

three men discussed their plans and left to commit the robbery 

and when they all returned to Getscher’s home. Torkelson 

repeatedly warned defendant not to say anything. 

On a subsequent occasion, defendant told Getscher that 

the robbery had not gone well and that defendant had shot 

someone. Getscher also saw defendant attempting to lace his 

boots with red laces. Getscher explained that he and 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

9

defendant were skinheads in prison, and that in skinhead 

culture “red laces would indicate that you have drawn the 

blood of an enemy.” Defendant insisted that he had earned the 

laces, but Getscher disagreed because defendant had “killed an 

innocent victim and that he didn’t kill an enemy that was 

trying to get him.” Getscher also noticed a cut on defendant’s 

hand, which defendant explained was a burn from putting his 

hand over the barrel of the gun to silence the gunshots.

Getscher agreed to call defendant from prison and get 

him to talk about the robbery while Detective McDonald 

recorded the conversation. This arrangement resulted in two 

recorded conversations. In the first conversation, which took 

place on October 28, 2002, Getscher referred to the “stupid 

little stunt” and “escapade” that defendant, “James,” and 

“Max” had participated in two to three years earlier. 

Defendant did not deny his involvement. In the second 

conversation, which took place on November 26, 2002, 

Getscher told defendant that he was building a small team for 

a bank heist and would allow defendant to join so long as 

defendant told him “what happened before,” so he could be 

sure “it ain’t happenin’ again.” Getscher also indicated that 

whoever “did it” on the last job would not be participating in 

the bank heist. Defendant identified the participants in the 

Five Star parking lot robbery as himself, Torkelson, and 

Anderson. Defendant described the robbery as poorly planned 

by Torkelson, but defendant also admitted that he had been 

affected by nerves and adrenaline. Defendant explained that 

the three men had “covered up” to hide their identities, but 

forgot to bring materials to tie up the victims. As the robbery 

got out of hand, “it happened.” Getscher asked who started the 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

10

gunfire, and defendant responded, “I, I was the first one that 

fired.” Defendant explained that panic and adrenaline led him 

to open fire and he was “thinkin’ they’re gonna get away, fuck, 

I don’t want to go down.” Getscher asked if Anderson had shot 

the woman during the robbery. Defendant responded, “Nah, 

that was me.” Defendant explained that “everything was just 

going wrong [and] the next thing I know I just did it. I don’t 

know. It just kind of happened.” Anderson fired his weapon 

after defendant fired his. As defendant and Anderson left the 

trailer, defendant also fired at someone in a car and at some 

man in a “box thing” in the parking lot because he thought one 

of them had seen him. Defendant explained that the escape 

plan fell apart when the key broke in the ignition of the 

getaway vehicle, and everyone scattered. The robbery yielded 

very little because “most of the stuff got left behind.” Getscher 

and defendant also discussed the red laces: Defendant told 

Getscher that he understood why he did not earn the laces 

during the robbery and assured Getscher that he would not 

overreact in a subsequent heist. 

After these recorded calls, defendant was arrested. 

While in custody, Detective McDonald played a portion of the 

second recorded call for defendant. When asked if he wanted 

to tell his side of the story, defendant responded, “You heard it 

all,” and “I ain’t gonna talk about it no more.”

2. Defense Case

Defendant did not call any witnesses and rested on the 

record. In closing argument, defense counsel conceded that 

defendant was in the trailer during the robbery and 

participated in carjacking Gagarin. Defense counsel argued 

that defendant did not shoot Perez and that Anderson instead 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

11

shot both Perez and Reynolds. Defense counsel acknowledged 

that defendant had claimed responsibility for shooting Perez in 

his second recorded conversation with Getscher, but argued 

that defendant was merely posturing to impress Getscher. 

Further, counsel argued, this conversation revealed that 

defendant acted out of panic, nerves, and adrenaline, and that 

he lacked the intent to kill. 

B. Penalty Phase

At the first penalty phase trial, the jury had been unable 

to reach a verdict and the trial court declared a mistrial on 

November 10, 2005. The penalty phase retrial began several 

months later, on June 19, 2006. 

1. Prosecution’s Case in Aggravation

The prosecution called witnesses from the guilt phase to 

describe the robbery, defendant’s role in the robbery murders, 

and the forensic evidence. The prosecution also presented 

evidence of defendant’s attitude following the robbery murders. 

Getscher testified about defendant’s attempt to put red laces in 

his boots as a mark of having “dr[awn] the blood of an enemy.” 

Getscher took the laces away, telling defendant that he had not 

earned them because the laces were only for killing non-White 

“enem[ies].” Defendant responded, “Oh, I earned them. . . . It 

was a Mexican.” 

The prosecution presented victim impact evidence from 

family, friends, and coworkers of Perez and Reynolds, who 

described how the victims’ deaths affected them. The 

prosecution presented evidence of defendant’s participation in 

three prior crimes: (1) an attempted theft at an Arizona bank 

in July 1999; (2) an attack on inmate Robert Harger while 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

12

defendant was incarcerated during trial; and (3) an assault on 

Lee Alvin committed during a robbery of an Arizona 

convenience store in 1992. 

2. Defense’s Case in Mitigation 

Members of defendant’s family, including his 

grandmother, aunts, uncle, and parents, testified about 

hardships defendant had encountered growing up. Defendant’s

parents separated when he was one year old, and defendant 

had no contact with his father until he was around 12 years 

old. Defendant struggled with learning and was placed in 

special education classes. When defendant was nine years old, 

he was sexually abused by his older cousin. Defendant’s father 

began giving him alcohol as an infant and later introduced him 

to drugs as an adolescent. Defendant spent some time in an 

adolescent psychiatric hospital and a drug rehabilitation 

center. Defendant was a nonviolent person and a loving and 

attentive father to his son and stepdaughter. Defendant 

accepted responsibility for the crimes he committed in Arizona. 

After the trial court ruled that this evidence of defendant’s 

good character opened the door for the prosecution to introduce 

evidence of defendant’s racist tattoos and affiliations in 

rebuttal, some family members testified they were “confused” 

by his racist tattoos because, to their knowledge, he was “never 

really racist.” Defendant obtained a GED while in prison in 

Arizona and subsequently learned welding to support his 

family. Defendant called two acquaintances who knew him in 

a professional capacity; they testified that defendant was a 

hard worker who had no problems with coworkers of other 

races. The founding director of the Center for Children of 

Incarcerated Parents testified about the ability of parents who 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

13

are incarcerated to have a meaningful role in their children’s 

lives. 

Aaron Beek, an inmate who participated in the attack on 

inmate Harger when defendant was awaiting trial, attested to 

being the only one who physically attacked Harger; defendant, 

Beek testified, was not present during the assault. But Beek 

acknowledged authoring a letter in which he said he pleaded

guilty to the assault to “take the charges off . . . [his] comrade 

Jeff.” At trial Beek explained, “I don’t feel comfortable letting 

[defendant] get charged with something I did.” On crossexamination, the prosecution presented Beek with another 

letter confiscated by jail officials and signed in defendant’s 

name that bragged about being a member of the “American 

Front” and the “shot-caller” for the Caucasian prisoners in jail. 

Beek claimed to have authored this letter as well. 

An officer who investigated the attack on Harger testified 

that although Harger identified defendant as being present 

during his assault, Harger misidentified defendant’s hair color 

and name. A family therapist characterized defendant as a 

“follower” who is “highly susceptible to the influence of others.” 

The therapist noted that the sexual molestation that defendant 

suffered, as well as his early exposure to alcohol, may have 

affected his development and led to later alcohol and drug 

abuse problems. The therapist testified that defendant became 

a skinhead for two reasons: (1) to achieve a sense of belonging 

as he felt like an outsider in his family, and (2) as a means of 

self-preservation in prison. In response to questioning about 

what values might have attracted defendant to “the skinhead 

philosophy,” the therapist testified that the values 

“incorporat[e] not only the negative ones that we associate with 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

14

it, but also ones that have to do with honor, respect, loyalty, 

fidelity to one’s group, a sort of misguided protection of the 

common man . . . and a lot of pride.”

3. The Prosecution’s Rebuttal

On rebuttal, the prosecution presented evidence in 

accordance with the trial court’s ruling that testimony by 

defendant’s grandmother supporting his good character could 

be rebutted with evidence of defendant’s racist tattoos and 

affiliations. Deputies investigating the assault on Harger 

testified that the day after the assault they found a Celtic rune 

above defendant’s cell door and a swastika outside his cell, 

both apparently drawn in blood. Police officers who had 

interacted with defendant in 1999 testified about defendant’s 

tattoos, which included the phrase “Nigger Thrasher,” a 

swastika, and the number “88.” Joanna Mendelson, the 

director of investigative research at the Southern California 

branch of the Anti-Defamation League, testified about the 

origins and ideology of skinheads generally and the American 

Front and Aryan Nations groups specifically. Mendelson 

explained that skinheads adhere to a religion known as 

Odinism, which provides skinheads in prison the “opportunity 

to congregate” in order to “conduct criminal activity and 

violence.” Mendelson reviewed defendant’s tattoos and 

symbols on letters he had written and explained their meaning

within skinhead culture, identifying several as “inherently 

racist symbol[s].” 

4. The Defense’s Surrebuttal

Two Hispanic inmates housed in the same jail as 

defendant testified that defendant never expressed any 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

15

support for racial violence and got along with inmates of other 

races. A sheriff’s department sergeant who investigated the 

assault on Harger testified that an informant identified Beek 

and an inmate named Britain as the “shot-caller[s]” for the 

Caucasian inmates. The informant witnessed Britain 

sharpening the shanks later recovered from the attack on 

Harger, Beek looking nervous outside his own jail cell when 

the attack occurred, and Beek washing his hands after the 

attack. 

II. DISCUSSION

A. Guilt Phase Claims

1. Admission of Statement Given in Response to 

Police Questioning

After defendant was arrested, he was interviewed by 

Detective McDonald. Deferring defendant’s repeated requests 

for “his rights,” Detective McDonald instead began the 

interrogation by playing the tape of defendant’s conversation 

with Getscher, in which defendant described the circumstances 

of the robbery and admitted to fatally shooting Perez. Then, 

after reading defendant his rights under Miranda v. Arizona

(1966) 384 U.S. 436 (Miranda), Detective McDonald asked if 

defendant wished to tell his side of the story. Defendant 

responded, “You heard it all,” before asking for an attorney and 

terminating the interrogation. Defendant argues this

statement should have been excluded under the Fifth and 

Fourteenth Amendments to the federal Constitution, as well as 

under state evidence law, and that the failure to exclude the 

statement calls for reversal. We find no reversible error.
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

16

a. Background

Detective McDonald interviewed defendant on March 20, 

2003. After confirming defendant’s name and address, 

Detective McDonald explained that defendant was in custody

“regarding a 1999 murder case we revisited” and asked if 

defendant knew “James Torkelson.” Defendant expressed 

uncertainty, and Detective McDonald responded that 

“[Torkelson]’s up in prison right now. He’s looking at thirty 

years and he’s looking for deals and he gave us some 

information regarding a murder case in 1999. It happened at 

[a] Park and Ride, Airport Park and Ride.” Defendant 

confirmed he knew Torkelson as “Woody.”

Detective McDonald explained that Torkelson and 

another individual had given law enforcement “some 

information,” and so “things are starting to fall apart on this 

whole operation you guys were . . . involved in.” Detective 

McDonald further explained that Torkelson was “doing thirty 

years” and “wants a deal,” but that “[w]e’re not sure we want to 

deal with him.” The conversation then continued as follows:

“MCDONALD: . . . But we want to hear, this would 

be your opportunity to tell us your side of the story. We

do have other evidence too. We have a tape here that I 

could play for you if you want to hear that. But I just 

want to know would you like to tell us your side of the 

story what happened at this lot? 

“YOUNG: After I get my rights. 

“MCDONALD: But only if this, yeah, I’m just 

letting you know if you, I can read your rights.
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

17

“YOUNG: (Unintelligible), that’s, one step at a 

time.

“MCDONALD: Okay. Like to go that route?

“YOUNG: It’s getting kind of weird. Cause, yeah, I 

know about that. Woody told me about it, you know, 

cause he’s working security there. 

“MCDONALD: Okay.

“YOUNG: Yeah, I’d like my rights.

“MCDONALD: Okay. Let me uh

“YOUNG: If you don’t mind. I don’t want to be, 

make like a dick or anything or make anything

“MCDONALD: No, but would you like to listen to a 

tape first?

“YOUNG: Uh

“MCDONALD: I won’t say nothing. I won’t ask 

you any questions. Would you like to listen after? 

“YOUNG: Yeah.

“MCDONALD: Okay. And then after we’re done, 

I’m not gonna ask you any questions, I’ll play a tape and 

then uh, after the tape, I’ll advise you of your rights and 

we can go on. 

“YOUNG: Okay.” 

Detective McDonald then attempted to play the 

tape but encountered technical difficulties. After twice 

leaving to retrieve new batteries, Detective McDonald 

successfully played defendant a portion of the second 

recorded call between defendant and Getscher, which 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

18

took place on November 26, 2002. In the recording, 

defendant admitted to participating in the robbery and to 

shooting Perez. Detective McDonald asked defendant if 

he wanted to hear the remainder of the recorded call, but 

defendant stated, “Nah, I heard about enough.” 

Detective McDonald then spoke about the 

importance of teaching one’s children to take 

responsibility for mistakes. Defendant agreed that he 

wanted his son to be raised that way. Detective 

McDonald reiterated that “sometimes we have to face up 

to our responsibilities of things that happen.” The 

conversation then continued as follows:

“MCDONALD: . . . A lot of people like want favors. 

But, uhm, so, let me, you know. 

“YOUNG: So you’re sure those guys don’t like 

Woody. So you

“MCDONALD: No, there’s, there’s people that 

don’t like Woody at all. 

“YOUNG: Yeah.

“MCDONALD: No, he doesn’t, there’s not too many 

friends. I don’t know why, uh . . . no one likes, I can’t 

find anyone that really likes him. But uh, now you can 

hear the tape in front of you.

“YOUNG: Nah-hu. He’s basically my, he’s 

basically my bitch boy. 

“MCDONALD: Yeah.

“YOUNG: Fucken be driving to go see girls. Cause 

I don’t have a car.
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

19

“MCDONALD: Yeah. Let me advise you of your 

rights and see if you’d like to continue on. Cause 

basically we got everything on, on tape but we’d just like 

some details from you. Okay. And I appreciate your 

honestly [sic] and it’d be something at least you can tell 

your son, that hey, I made a mistake and I faced up to it 

and you should too. If you do something wrong, you 

should tell your mother or something or just face up to 

your responsibilities. I mean, that’s something you got to 

think of as an adult, as a parent. Uhm, all right? 

“YOUNG: What am I looking at? Death? 

“MCDONALD: Let me, let me advise you of your 

rights okay. My job, my job is

“YOUNG: (Unintelligible).

“MCDONALD: Get evidence

“YOUNG: (Unintelligible).”

Detective McDonald then read defendant his Miranda

rights, and defendant indicated that he understood each one. 

Immediately after, Detective McDonald asked defendant, “Do 

you want to tell us your side of the story on this?” Defendant 

responded, “You heard it all.” Detective McDonald explained 

that “there’s a lot of holes” because “it wasn’t me asking you 

these questions” in the recording. Defendant then responded, 

“I ain’t gonna talk about it no more.” 

Detective McDonald expressed “respect” for defendant’s 

decision not to speak further about the incident, but noted that 

“there’s other people that are spilling names out left and 

right.” Detective McDonald encouraged defendant to “[j]ust 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

20

say, I did this, I did that. That’s that all you have to do 

through it, okay.” Defendant acknowledged that others were 

disclosing information, but responded, “I’m gonna have to ask 

for an attorney.” Defendant explained his decision to request 

an attorney, and Detective McDonald responded, “We’re, we’re 

done.” Detective McDonald asked no further questions, and 

the conversation ended shortly thereafter. Before trial, the 

parties disputed whether the prosecution was entitled to use 

defendant’s statement “You heard it all.” In a written 

suppression motion, defendant argued that he “had asserted 

his rights and this statement comes in violation of his Miranda

rights and 5th Amendment rights.” He also argued the 

statement was irrelevant, unduly confusing, and cumulative 

under Evidence Code section 352. At a hearing on the motion, 

defense counsel further contended that Detective McDonald: 

(1) deliberately pressured defendant into listening to the tape 

of the second recorded conversation despite defendant’s 

invocation of his rights, and (2) improperly held out the 

possibility of a deal for defendant. The prosecutor responded 

that defendant had expressed a willingness to speak with 

detectives when Detective McDonald asked, “[W]ould you like 

to tell us your side of the story, what happened?” and 

defendant responded, “After I get my rights.” The prosecutor 

acknowledged that “there’s some concern with using preMiranda statements,” but explained that “[i]t’s not the People’s 

intention to use any of [those] statements . . . .” The prosecutor 

argued that the single statement at issue “came after a full 

advisal of the Miranda advisements,” and that there was no 

“heavy-handedness” in defendant’s interrogation. 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

21

The trial court denied the motion. The trial court 

explained that “[t]here are a series of statements in [the

interrogation] that would have made this a far more 

interesting and esoteric hearing, but the People’s decision not 

to use those obviates the need for that.” The court “d[id] not 

see a Miranda problem” with using the statement “You’ve 

heard it all.” 

b. Discussion

“To safeguard a suspect’s Fifth Amendment privilege 

against self-incrimination from the ‘inherently compelling 

pressures’ of custodial interrogation (Miranda, supra, 384 U.S. 

at p. 467), the high court adopted a set of prophylactic 

measures requiring law enforcement officers to advise an 

accused of his right to remain silent and to have counsel 

present prior to any custodial interrogation.” (People v. 

Jackson (2016) 1 Cal.5th 269, 338–339.) “Failure to administer 

Miranda warnings creates a presumption of compulsion. 

Consequently, unwarned statements that are otherwise 

voluntary within the meaning of the Fifth Amendment must 

nevertheless be excluded from evidence under Miranda.” 

(Oregon v. Elstad (1985) 470 U.S. 298, 307 (Elstad).) “Miranda

safeguards come into play whenever a person in custody is 

subjected to either express questioning or its functional 

equivalent. That is to say, the term ‘interrogation’ under 

Miranda refers not only to express questioning, but also to any 

words or actions on the part of the police (other than those 

normally attendant to arrest and custody) that the police 

should know are reasonably likely to elicit an incriminating 

response . . . .” (Rhode Island v. Innis (1980) 446 U.S. 291, 

300–301.)
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

22

After Miranda warnings are administered, “ ‘if the 

suspect indicates that he wishes to remain silent, the 

interrogation must cease. [Citation.] Similarly, if the suspect 

states that he wants an attorney, the interrogation must cease 

until an attorney is present. [Citation.] Critically, however, a 

suspect can waive these rights. [Citation.] To establish a valid 

waiver, the State must show that the waiver was knowing, 

intelligent, and voluntary under the “high standar[d] of proof 

for the waiver of constitutional rights [set forth in] Johnson v. 

Zerbst [1938] 304 U.S. 458 . . . .” ’ ” (People v. Williams (2010) 

49 Cal.4th 405, 425.) “On review of the trial court’s ruling, ‘we 

accept the trial court’s resolution of disputed facts and 

inferences, and its evaluations of credibility, if supported by 

substantial evidence. We independently determine from the 

undisputed facts and the facts properly found by the trial court 

whether the challenged statement was illegally obtained.’ ” 

(People v. Case (2018) 5 Cal.5th 1, 20.)

Defendant argues, and the Attorney General concedes, 

that Detective McDonald violated Miranda by failing to advise 

defendant of his rights at the outset of the interrogation. But 

none of defendant’s unwarned statements was admitted at 

trial. Our inquiry here instead focuses on the prosecution’s use 

of a statement elicited after defendant received the required 

advisements. Case law makes clear that an initial Miranda

violation does not necessarily require the exclusion of 

statements following proper advisements. Indeed, we have 

explained, “[e]ven when a first statement is taken in the 

absence of proper advisements and is incriminating,” a 

subsequent voluntary confession made after proper 

advisements “is not tainted simply because it was procured 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

23

after a Miranda violation.” (People v. Williams, supra, 49 

Cal.4th at p. 448.) “ ‘The relevant inquiry’ ” is whether the 

statement was “ ‘voluntarily made’ ” following proper 

warnings. (Ibid., quoting Elstad, supra, 470 U.S. at p. 318.)

Defendant makes essentially two arguments for 

excluding his postwarning statement. As an initial matter, he 

argues that the statement was involuntary because Detective 

McDonald employed improper psychological tactics to induce 

him to waive his right to remain silent. In particular,

defendant argues that after deferring defendant’s request for 

“his rights,” Detective McDonald impermissibly attempted to 

soften him up by suggesting that he might be able to make a 

deal and by playing on his responsibility as a father. 

Defendant relies on People v. Honeycutt (1977) 20 Cal.3d 

150, 160 for this “softening-up” argument, but Honeycutt does 

not help him. In Honeycutt, we held that a Miranda waiver 

obtained “from a clever softening-up of a defendant through 

disparagement of the victim and ingratiating conversation” 

was involuntary, and the subsequent confession was therefore 

inadmissible. (Ibid.) But this case lacks what we have 

described as “the two salient features of Honeycutt.” (People v. 

Scott (2011) 52 Cal.4th 452, 478.) In Honeycutt, the 

interrogating officer had a long-standing acquaintance with 

the suspect and sought to ingratiate himself by engaging in a 

“half-hour unrecorded discussion” of “unrelated past events 

and former acquaintances” before turning to the topic at hand. 

(Honeycutt, at p. 158.) The record in this case, which does not 

reveal any past relationship between Detective McDonald and 

defendant, also does not reveal any similarly improper efforts 

at “ingratiating conversation” concerning unrelated topics or 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

24

“disparagement of the victim[s].” (Id. at p. 160; accord, People 

v. Gurule (2002) 28 Cal.4th 557, 602; People v. Kelly (1990) 51 

Cal.3d 931, 954.) 

Nor do we otherwise perceive any impropriety in 

Detective McDonald’s supposed suggestion that defendant 

might obtain a deal or the exhortation that defendant set a 

good example for his son. Detective McDonald informed 

defendant that Torkelson and another individual were seeking 

deals in exchange for their cooperation, but Detective 

McDonald neither expressly nor impliedly promised defendant 

a deal should he confess before Torkelson or the other 

individual. (See People v. Holloway (2004) 33 Cal.4th 96, 115 

[“ ‘mere advice or exhortation by the police that it would be 

better for the accused to tell the truth when unaccompanied by 

either a threat or a promise does not render a subsequent 

confession involuntary’ ”].) Nor can we say that Detective 

McDonald’s reference to setting a good example for his son was 

designed to overbear defendant’s free will by exploiting a 

particular psychological vulnerability; certainly the reference 

appeared to have no such effect. (See People v. Kelly, supra, 51 

Cal.3d at p. 952 [asking the suspect whether he was aware 

that he had violated his “ ‘Christian upbringing’ ” and asking 

how his mother was going to feel were not impermissibly 

coercive].)

Defendant’s second and more substantial argument 

concerns Detective McDonald’s delay in giving the required 

Miranda advisements. Defendant focuses on the fact that 

Detective McDonald put off defendant’s request for “his rights.” 

Defendant argues the delay requires suppression of his 

statement because it constituted part of an impermissible “two-
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

25

step” or “question-first” tactic of the sort disapproved in 

Missouri v. Seibert (2004) 542 U.S. 600. In Seibert, the 

defendant was arrested and “questioned . . . without Miranda

warnings for 30 to 40 minutes,” which resulted in the 

defendant’s confession. (Id. at pp. 604–605 (plur. opn.).) The 

defendant was then given a 20-minute break, after which the 

interrogating officer “turned on a tape recorder, gave 

[defendant] the Miranda warnings, and obtained a signed 

waiver of rights from her.” (Id. at p. 605.) The interrogating 

officer then confronted the defendant with her prewarning 

statements, and the defendant reaffirmed the substance of 

those statements. (Id. at p. 606.) At a later suppression 

hearing, the interrogating officer “testified that he made a 

‘conscious decision’ to withhold Miranda warnings, thus 

resorting to an interrogation technique he had been taught: 

question first, then give the warnings, and then repeat the 

question ‘until I get the answer that she’s already provided 

once.’ ” (Id. at pp. 605–606.) The high court concluded in 

Seibert that the statements so procured were inadmissible,

though no single rationale commanded a majority of the court. 

“A plurality of the Court reasoned that ‘[u]pon hearing 

warnings only in the aftermath of interrogation and just after 

making a confession, a suspect would hardly think he had a 

genuine right to remain silent, let alone persist in so believing 

once the police began to lead him over the same ground again.’ 

[Citation.] JUSTICE KENNEDY concurred in the judgment, 

noting he ‘would apply a narrower test applicable only in the 

infrequent case . . . in which the two-step interrogation 

technique was used in a calculated way to undermine the 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

26

Miranda warning.’ ” (Bobby v. Dixon (2011) 565 U.S. 23, 30–31

(per curiam).) 

The Attorney General argues that the interrogation 

technique at issue here differs in relevant ways from the one 

condemned in Seibert: Rather than engage in sustained 

prewarning interrogation, Detective McDonald advised 

defendant he would read him his rights after he played the 

tape of his conversation with Getscher. Whether this 

distinction makes a difference—and more to the point, whether 

this or any other part of the exchange preceding the giving of 

Miranda warnings affected the voluntariness of defendant’s 

later, postwarning statement—is an issue we need not decide 

because any error in introducing the challenged statement 

would be harmless in any event.

The prosecution argued the statement in question—“You 

heard it all”—was an adoptive admission of the contents of the 

second recorded conversation between defendant and Getscher. 

Its probative value was thus to bolster the veracity of 

defendant’s confessions made therein, including his confession 

that he shot Perez in the course of the robbery. But the 

veracity of the tape itself, which was properly admitted at trial, 

was never contested. The substance of this recorded 

conversation provided decisive evidence of defendant’s guilt: 

Defendant identified himself as one of the participants in the 

robbery, admitted that he shot Perez and fired at two other 

witnesses in the parking lot, and discussed the red laces he 

had donned to take credit for the murder. 

Defense counsel did argue that defendant was merely 

“posturing” in this conversation. But no reasonable juror 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

27

would have believed this explanation. Getscher had initiated 

the conversation under the guise of recruiting defendant for a 

bank heist and demanded that defendant explain how the Five 

Star parking lot robbery had gone so poorly. Defendant

admitted to Getscher that the robbery had been botched and 

described the many mistakes that he and his accomplices 

made. These mistakes included forgetting materials to tie up 

the victims, shooting Perez and Reynolds out of panic, and 

leaving behind most of the money. No reasonable juror could 

conclude from defendant’s candid description of his own errors

that defendant was “trying to put himself in the best light” in 

this conversation. Thus, if there was any constitutional error 

in admitting the statement “You heard it all,” the error was 

harmless beyond a reasonable doubt. (Chapman v. California 

(1967) 386 U.S. 18, 24.) 

There is no merit in defendant’s alternative argument 

that the statement should have been excluded under state 

evidence law. (Evid. Code, §§ 210, 350, 352.) Defendant 

contends that the challenged statement was inadmissible 

because it was “ambiguous and equivocal” and “only an 

acknowledgment of the prosecution’s evidence.” Defendant is 

correct that the statement is ambiguous, but the ambiguity 

does not render it inadmissible; it is enough that a reasonable 

juror could understand it, as the prosecution argued, to suggest 

that the contents of the second recorded conversation between 

defendant and Getscher were accurate. Defendant’s contention 

that the challenged statement was ambiguous and equivocal 

“concerns only the weight of this evidence, not its admissibility, 

which does not require complete unambiguity.” (People v. 

Ochoa (2001) 26 Cal.4th 398, 438.)
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

28

Defendant asserts that the challenged statement was 

also unduly prejudicial, and therefore should have been 

excluded under Evidence Code section 352, because the 

statement “severely compromised” his argument that 

defendant was posturing in the conversation with Getscher 

and that Getscher was lying or confabulating. But 

“ ‘prejudice’ ” for purposes of Evidence Code section 352 “does 

not mean damage to a party’s case that flows from relevant, 

probative evidence.” (People v. Cortez (2016) 63 Cal.4th 101, 

128.) “Rather, it means the tendency of evidence to evoke an 

emotional bias against a party because of extraneous factors 

unrelated to the issues.” (Ibid.) The introduction of 

defendant’s statement created no risk of evoking such a bias. 

The trial court therefore did not abuse its discretion in 

declining to exclude the challenged statement as unduly 

prejudicial. Of course, even if the trial court had erred, the 

admission of the statement was harmless for the reasons 

already explained.

2. Admission of Evidence of Racist Tattoos and 

Association with White Supremacist Groups

Defendant argues that the trial court committed 

prejudicial error by admitting evidence during the guilt phase 

that defendant had tattoos suggesting racist beliefs and that 

he was affiliated with White supremacist groups. We find no 

reversible error.

a. Background

Before trial, defendant filed a motion in limine to exclude 

all references to defendant’s “affiliation/membership with any 

White supremacy organization” as well as his “distinctive, 

racially identified/offensive tattoos.” Defendant argued that 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

29

this evidence was both irrelevant and improper character 

evidence with “highly inflammatory impact.” The prosecution 

responded that two of defendant’s tattoos—one featuring the 

phrase “Nigger Thrasher” and another depicting Thor’s 

hammer—were relevant to identification, because Daleo, who 

had observed defendant making admissions about the Five 

Star parking lot robbery and killings at a party in June 2000,

identified defendant by those tattoos.2 The prosecution also 

argued that defendant’s use of red laces, and its meaning 

within skinhead culture, was relevant to demonstrate

defendant’s consciousness of guilt. The prosecution contended 

that the prejudice from both categories of evidence did not 

outweigh their probative value. 

At a hearing on the motion, the trial court tentatively 

granted defendant’s motion as to evidence of defendant’s 

membership in White supremacist groups. The prosecution 

reiterated that the red laces were relevant as an admission of 

guilt, and pointed out that some evidence of defendant’s White

supremacist beliefs would be necessary to explain the “very 

significant meaning” that red laces had to him. The trial court 

opined that the red laces “create[] a tremendous [Evidence 

Code section] 352 argument for the defense.” Because the 

prosecution had “a lot of evidence that [defendant] is the 

shooter,” the trial court found there was “not much” probative 

 

2 The prosecution’s opposition to defendant’s motion in 

limine identified a second witness who observed defendant’s 

admissions and identified defendant by his tattoos, but that 

witness ultimately did not testify at trial. 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

30

value to this evidence. The trial court clarified, however, that 

it was not ruling on the admissibility of the red laces and 

would do so closer to trial. 

With respect to the tattoos, the trial court found that 

their offensive nature was “not enough” to outweigh their 

relevance “to bolster the credibility of the witnesses” who 

identified defendant by those tattoos. The trial court offered 

defense counsel two options: stipulating that defendant had 

the tattoos, or allowing the prosecution witnesses to use 

photographs of the tattoos to identify defendant. Defense 

counsel asked the trial court if it would entertain a stipulation 

that defendant “has certain tattoos which the witnesses have 

recognized, . . . without specification of the tattoos and without 

showing them to the jury.” The trial court indicated that it 

would entertain any stipulation agreed upon by the parties as 

well as any proposed curative instructions from the defense. 

Before trial, defense counsel reiterated its objection to 

photographs of defendant’s “Nigger Thrasher” and Thor’s 

hammer tattoos prepared by the prosecution as a trial exhibit. 

Defense counsel offered to stipulate that defendant had 

distinctive tattoos through which Daleo identified him, but the 

prosecution did not respond to this offer. The trial court ruled 

that the photographs were admissible. 

On direct examination, Daleo testified that the man she 

knew as “Li’l Jeff” had a tattoo reading “Nigger Thrasher” on 

his upper arm and a tattoo depicting Thor’s hammer on his 

Adam’s apple. Daleo identified defendant as “Li’l Jeff,” and 

also identified the photographs as accurate depictions of 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

31

defendant’s tattoos. The photographs were admitted and 

published to the jury over defendant’s continued objection. 

During a break in Daleo’s testimony, the prosecution 

asked for “clarification” of the trial court’s ruling on evidence of 

defendant’s membership in White supremacist groups. The 

trial court expressed the view that this evidence was still 

irrelevant. Defense counsel responded that the relevance of 

this evidence would depend on Daleo’s testimony, particularly 

if Daleo mentioned the red laces. The prosecution indicated 

that it did not plan to elicit any testimony about the red laces 

from Daleo, although that evidence “may become relevant 

later.” The trial court responded that the red laces were “likely 

going to become relevant in a number of ways,” and stated, “I 

believe we have already resolved [t]hat was going to come in.” 

The trial court also noted (without further elaboration) that 

defendant’s “alleged status as a skinhead . . . may become 

pertinent” if defendant suggested that his statements in the 

second recorded conversation with Getscher had been mere 

posturing. Defense counsel then requested permission to 

question Daleo about defendant’s use of red laces, even if the 

prosecution did not, to “find out exactly what her particular 

biases are, how she knew this particular group.” The trial 

court granted this request. 

When direct examination resumed, Daleo testified that 

both Torkelson and defendant were skinheads. Torkelson was 

involved with “several groups that would talk about activism 

for the White power movement; rallying things together, 

sometimes political; getting involved to make a difference for 

the movement.” Daleo, defendant, and Raynoha would often 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

32

attend meetings for these groups with Torkelson. The 

prosecution did not ask Daleo about the red laces.

On cross-examination, defense counsel asked Daleo if she 

wore red laces to the party in June 2000 where defendant 

admitted his involvement in the Five Star parking lot robbery 

and killings. Daleo denied doing so, but admitted that she and 

other skinheads occasionally wore red laces for fashion 

reasons. On redirect examination, the prosecution asked Daleo 

if red laces had a specific meaning for defendant’s skinhead 

group. Daleo responded that it could mean “hav[ing] shed 

blood for the cause.” Daleo also confirmed that “earning your 

laces” was a type of “initiation” for skinhead groups that 

“might mean you have spilled the blood of somebody.” 

Getscher testified that he and defendant were “both 

skinheads, good buddies, [who] kind of looked after each other” 

while in prison together in 1996. Getscher explained that

“[r]ed laces would indicate that you have drawn the blood of an 

enemy. I guess a proud standing in the skinhead culture.” 

Getscher testified that after the Five Star parking lot robbery, 

defendant told him that “things went really bad” and that 

defendant had shot someone. Defendant purchased red laces

on his way back to Getscher’s house from the Five Star parking 

lot robbery and tried to lace his boots with them. Getscher 

took the red laces from defendant and “explained to him that 

he did not earn his red laces” because “he killed an innocent 

victim and . . . he didn’t kill an enemy that was trying to get 

him.” 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

33

b. Discussion

On appeal, defendant renews his argument that evidence 

of his racist tattoos and his use of red laces should have been 

excluded because they were irrelevant and because their

prejudicial impact substantially outweighed their probative 

value. Defendant argues that introduction of evidence of his 

“Nigger Thrasher” tattoo, in particular, was unnecessary for 

Daleo’s identification because Daleo was acquainted with 

defendant and could have identified him by his face alone. 

Defendant also contends that the red laces had little probative 

value in light of the prosecution’s other evidence establishing 

that defendant shot Perez. Given that neither the robbery nor 

the killings were motivated by racial animus, defendant 

argues, the primary effect of admitting this evidence was 

simply to call the jury’s attention to his inflammatory White

supremacist views in violation of Evidence Code section 352. 

Under the Evidence Code, all relevant evidence is 

admissible unless prohibited by statute. (Evid. Code, § 351.) 

“ ‘Relevant evidence is defined in Evidence Code section 210 as 

evidence “having any tendency in reason to prove or disprove 

any disputed fact that is of consequence to the determination of 

the action.” The test of relevance is whether the evidence 

tends “logically, naturally, and by reasonable inference” to 

establish material facts such as identity, intent, or motive.’ ” 

(People v. Bivert (2011) 52 Cal.4th 96, 116–117.) But under 

Evidence Code section 352, the trial court retains the 

discretion to exclude relevant evidence if “its probative value is 

substantially outweighed by the probability that its admission 

will” either “necessitate undue consumption of time” or “create 

substantial danger of undue prejudice, of confusing the issues, 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

34

or of misleading the jury.” “We review a trial court’s decision 

to admit or exclude evidence ‘for abuse of discretion, and [the 

ruling] will not be disturbed unless there is a showing that the 

trial court acted in an arbitrary, capricious, or absurd manner 

resulting in a miscarriage of justice.’ [Citation.] When 

evidence is erroneously admitted, we do not reverse a 

conviction unless it is reasonably probable that a result more 

favorable to the defendant would have occurred absent the 

error.” (People v. Powell (2018) 5 Cal.5th 921, 951.)

Although defendant contends otherwise, his tattoos were 

clearly relevant because the tattoos had a tendency in reason 

to prove defendant’s identity as “Li’l Jeff,” the man Daleo 

heard discussing his involvement in the robbery murders at a 

party in June 2000. (See People v. Medina (1995) 11 Cal.4th 

694, 749.) The red laces were likewise relevant because 

defendant’s efforts to claim what he understood to be a badge 

of honor for the killing tended to demonstrate consciousness of 

guilt. (See People v. Ochoa, supra, 26 Cal.4th at pp. 437–438.) 

But as the trial court recognized, the evidence did carry with it 

the potential to evoke an emotional response against the 

defendant unrelated to the issues before the jury. We need not 

address the propriety of the trial court’s ultimate decision to 

admit the evidence under Evidence Code section 352, however, 

because any error in its admission at the guilt phase was 

harmless in any event. The evidence of defendant’s guilt was 

overwhelming. The jury at trial heard recordings in which 

defendant himself confessed to planning and committing the 

robbery with Torkelson and Anderson, shooting the female 

victim so that she would not be able to identify him, and 

shooting at a male victim in the parking lot. There is no 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

35

reasonable probability that the jurors’ negative reaction to 

defendant’s racist tattoos, associations, and beliefs would have 

affected their evaluation of this evidence. (People v. Watson

(1956) 46 Cal.2d 818, 836–837.) Here, as in Powell, “[c]oncerns 

about the possible ‘inflammatory impact’ of this type of 

evidence [citation] were . . . alleviated by the nature of the 

evidence of defendant’s guilt.” (People v. Powell, supra, 5 

Cal.5th at p. 952.)

Defendant also claims for the first time on appeal that 

the admission of evidence of his racist tattoos, affiliations, and 

beliefs at the guilt phase violated the First Amendment to the 

federal Constitution. Defendant did not object on this ground 

before the trial court, and the claim is therefore forfeited. 

(People v. Fuiava (2012) 53 Cal.4th 622, 689.) But even if the 

claim had been preserved, “the relevance of the challenged 

evidence defeats his constitutional objection.” (People v. 

Monterroso (2004) 34 Cal.4th 743, 773; accord, People v. 

Quartermain (1997) 16 Cal.4th 600, 629; see Dawson v. 

Delaware (1992) 503 U.S. 159, 164 (Dawson) [“evidence of 

racial intolerance” has been held admissible “where such 

evidence [i]s relevant to the issues involved”].) And even if we 

were to assume constitutional error, the overwhelming 

evidence of defendant’s guilt would render the error harmless 

beyond a reasonable doubt. (Chapman v. California, supra,

386 U.S. at p. 24.)

3. Prosecutor’s Closing Argument 

Defendant contends that the prosecutor committed 

misconduct in closing argument by vouching for the victims’

feelings and urging the jury to view the crime through the eyes 

of the victims. We find no grounds for reversal in the 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

36

prosecutor’s closing argument. Defendant’s claim of 

misconduct concerns the following portion of the prosecutor’s 

closing argument to the jury: “We know that Teresa Perez and 

Jack Reynolds were completely compliant with the robbers’

demands [and that] they laid down with their faces to the 

carpet, ultimately, I’m certain, very fearful . . . .” Defense 

counsel objected to the phrase “I’m certain” as “a form of 

vouching.” In response, the trial court opined that counsel 

“should at no time ever use the word ‘I’ in a closing argument,”

but explained that this was “more of a personal preference of 

the Court than it is some rule of law which says that you can’t 

do that.” The trial court concluded that the prosecutor’s use of 

the first person “wasn’t in terms of vouching” and was instead 

conveying “what [the prosecutor] believed the inferences would 

have shown.” The trial court found no misconduct. 

“A prosecutor’s conduct violates a defendant’s 

constitutional rights when the behavior comprises a pattern of 

conduct so egregious that it infects ‘ “the trial with unfairness 

as to make the resulting conviction a denial of due process.” 

[Citation.]’ [Citation.] The focus of the inquiry is on the effect 

of the prosecutor’s action on the defendant, not on the intent or 

bad faith of the prosecutor. [Citation.] Conduct that does not 

render a trial fundamentally unfair is error under state law 

only when it involves ‘ “ ‘the use of deceptive or reprehensible 

methods to attempt to persuade either the court or the 

jury.’ ” ’ ” (People v. Mendoza (2007) 42 Cal.4th 686, 700.) “ ‘A 

defendant’s conviction will not be reversed for prosecutorial 

misconduct, however, unless it is reasonably probable that a 

result more favorable to the defendant would have been 

reached without the misconduct. [Citation.] Also, a claim of 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

37

prosecutorial misconduct is not preserved for appeal if 

defendant fails to object and seek an admonition if an objection 

and jury admonition would have cured the injury.’ ” (People v. 

Tully (2012) 54 Cal.4th 952, 1010.)

It is misconduct for a prosecutor to refer to facts not in 

evidence. (People v. Hill (1998) 17 Cal.4th 800, 828.) It is also 

misconduct for the prosecutor at the guilt phase of a criminal 

trial to “appeal to the jury to view the crime through the eyes 

of the victim.” (People v. Mendoza, supra, 42 Cal.4th at p. 704.) 

Here, we agree with the trial court that the prosecutor did not 

improperly refer to facts not in evidence by arguing the victims 

were, “I’m certain, very fearful” before they were fatally shot. 

The prosecution presented uncontroverted evidence that Perez 

and Reynolds were shot while lying facedown on the ground 

with their hands behind their heads, that the barrel of the gun 

was pressed against their heads when the shots were fired and 

that there were no signs of a struggle. Despite the prosecutor’s 

use of the first person, the prosecutor cited this evidence to ask 

the jury to draw the logical inference that Perez and Reynolds 

felt fear. (People v. Lewis (1990) 50 Cal.3d 262, 283 [explaining 

that a prosecutor “has the right to fully state his views as to 

what the evidence shows and to urge whatever conclusions he 

deems proper”].) Nor do we discern prejudicial misconduct in 

the prosecutor’s invitation to draw this limited inference. The 

prosecutor did not ask the jury to reach this conclusion by 

putting themselves in the victims’ shoes, nor did the prosecutor 

otherwise make an improper appeal to the jurors’ sympathy for 

the victims. (See People v. Seumanu (2015) 61 Cal.4th 1293, 

1344 [“ ‘an appeal for sympathy for the victim is out of place 

during an objective determination of guilt’ ”].) There is, in any 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

38

event, no reasonable probability that the prosecutor’s fleeting 

remark had any effect on the jury, particularly given the 

overwhelming evidence of defendant’s guilt. (See, e.g., ibid.; 

People v. Young (2005) 34 Cal.4th 1149, 1189–1190.)

4. Use of Courtroom Restraints During Trial

Defendant argues that the trial court violated his rights 

under the federal Constitution’s Sixth, Eighth, and Fourteenth 

Amendments by ordering him restrained with a leg chain at 

trial. The claim lacks merit.

a. Background

Before trial, defendant filed a motion requesting 

permission to appear in court without any physical restraints 

attached to his person. The prosecution filed a response 

agreeing with defendant that there was currently no manifest 

need for physical restraints. At a hearing, however, the trial 

court stated it was “vehemently opposed” to defendant’s 

motion. The trial court explained that defendant and 

Raynoha, who at the time was still a codefendant, “had 

numerous problems while in custody involving other inmates 

and threats and weapons in other cases. To me, they are—

they pose a security threat. They have a problem with 

authority.” Defense counsel argued that defendant “ha[d] not 

been involved in any real altercations” and downplayed the 

allegations as “not that serious.” Defense counsel conceded 

that a shiv was found in defendant’s possession, but argued 

that defendant used it to run a piercing and tattoo business in 

jail. The trial court conceded that “there’s nothing to indicate 

that [defendant] ha[s] acted in any way except respectfully to 

the court proceedings.” But the trial court reiterated that its 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

39

“ruling is based upon what I perceive to be conduct that’s 

taken place, allegations of conduct, some I think that can 

easily be proven, that would lead me to the conclusion that 

they are a potential danger with regard to authority.” The 

trial court thus ordered that defendant be restrained with a leg 

chain attached to the floor that would leave defendant’s hands 

free and permit him to stand and sit. The trial court also had 

the defense table draped so the jury would not see the leg 

chain.

b. Discussion

“Under California law, ‘a defendant cannot be subjected 

to physical restraints of any kind in the courtroom while in the 

jury’s presence, unless there is a showing of a manifest need 

for such restraints.’ [Citation.] Similarly, the federal 

‘Constitution forbids the use of visible shackles . . . unless that 

use is “justified by an essential state interest”—such as the 

interest in courtroom security—specific to the defendant on 

trial.’ ” (People v. Virgil (2011) 51 Cal.4th 1210, 1270.) We 

have held that a showing of manifest need can be made with 

“ ‘evidence that the defendant has threatened jail deputies, 

possessed weapons in custody, threatened or assaulted other 

inmates, and/or engaged in violent outbursts in court. 

[Citations.] [¶] The trial court’s decision to physically restrain 

a defendant cannot be based on rumor or innuendo. [Citation.] 

However, a formal evidentiary hearing is not required. 

[Citation.]’ [Citation.] The trial court’s determination is 

reviewed for abuse of discretion.” (People v. Williams (2015) 61 

Cal.4th 1244, 1259.)

The record does not reveal the specific basis for the trial 

court’s conclusion that defendant had “numerous problems 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

40

while in custody involving other inmates and threats and 

weapons in other cases.” The trial court did not provide any 

identifying details about these incidents nor indicate the 

source of this knowledge. But the Attorney General cites 

evidence supporting the trial court’s assessment: (1) defendant 

had been found with multiple weapons while in custody 

awaiting trial; (2) defendant was required to wear green 

clothing in custody, which denotes a “high risk” inmate who 

requires more supervision; (3) defendant was placed in 

administrative segregation multiple times for disruptive 

behavior; and (4) defendant participated in an attack on fellow 

inmate Robert Harger. As defendant correctly points out, 

much of the evidence the Attorney General cites was presented 

during the second penalty phase trial, and it is not clear how 

much of this evidence was before the trial court at the time it 

issued its ruling. But the trial court’s reference to defendant’s 

“numerous problems” demonstrates the trial court was aware 

of at least some of the incidents the Attorney General 

describes, and defense counsel, too, acknowledged that 

defendant was found in possession of a shiv while in custody 

awaiting trial. Based on the record before us, we cannot say 

the trial court abused its discretion in concluding there was a

manifest need for restraints. 

But even if the trial court had abused its discretion in 

ordering that defendant be restrained by a hidden leg chain, 

defendant cannot demonstrate prejudice. “ ‘[W]e have 

consistently held that courtroom shackling, even if error, [is] 

harmless if there is no evidence that the jury saw the 

restraints, or that the shackles impaired or prejudiced the 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

41

defendant’s right to testify or participate in his defense.’ ” 

(People v. Williams, supra, 61 Cal.4th at p. 1259.)

There is no evidence that the jury saw defendant’s leg 

chain in the courtroom. Defendant argues that the jurors were 

nevertheless aware that defendant was restrained in the 

courtroom because they were instructed with CALJIC No. 1.04, 

which states: “The fact that physical restraints have been 

placed on defendant [] must not be considered by you for any 

purpose. They are not evidence of guilt, and must not be 

considered by you as any evidence that [he] is more likely to be 

guilty than not guilty. You must not speculate as to why the 

restraints have been used. In determining the issues in this 

case, disregard that matter entirely.” The prosecution initially 

requested CALJIC No. 1.04 as a precautionary measure in case 

any juror had seen defendant’s restraints. The trial court then 

expressed an “inclination [] not to give” CALJIC No. 1.04 

because it didn’t “think there’s anything that indicated that 

[defendant]’s been restrained to [the jury].” In response, 

defense counsel informed the trial court that defendant “tells

me that some of the jurors did see him when he was brought 

up one day” in restraints, apparently outside the courtroom. 

The trial court then decided that “in an abundance of caution,” 

the jury would be instructed with CALJIC No. 1.04. The trial 

court explained that “it’s probably a good idea to give it” in 

light of defense counsel’s disclosure, and the jurors “certainly 

must conclude that Mr. Young is in custody considering the 

type of charges he’s facing.” Defense counsel responded, 

“Right.” Because he did not object, defendant has forfeited any 

challenge to the instruction on appeal. And even if we assume 

one or more jurors saw defendant in shackles outside the 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

42

courtroom, “ ‘[s]uch brief observations have generally been 

recognized as not constituting prejudicial error.’ ” (People v. 

Rich (1998) 45 Cal.3d 1036, 1084.

Defendant also argues that the trial court’s decision to 

impose a leg restraint prejudiced him by “coerc[ing]” him into 

waiving his presence for jury selection, thereby impairing his 

ability to participate in his defense. Defendant’s claim does 

not accurately reflect the record. Defendant waived his 

presence only for an initial stage of jury selection during which

the juror questionnaire was handed out and prospective jurors 

were excused for hardship. Because of the large jury pool 

needed for this case, this initial stage of jury selection was 

scheduled to take place in the jury lounge. The trial court 

explained that it would have limited means of concealing 

defendant’s leg restraint in the jury lounge, and the sheriff’s 

department was also likely to assign “an inordinate number” of 

officers to the jury lounge. The trial court suggested that 

defendant consider waiving his presence because these 

circumstances “may leave an impression [with the prospective 

jurors] that your clients don’t want to start out with in this 

trial.” But the trial court expressly stated that it would 

“adhere to [defendant’s] wishes” and presume defendant’s 

attendance unless informed otherwise. Defendant chose not to 

attend. The trial court indicated that defendant would be 

present for the questioning of individual jurors, and there is 

nothing in the record that suggests that defendant did not 

attend this subsequent stage of jury selection. Defendant does 

not explain how his absence at an initial, nonsubstantive stage 

of jury selection impaired his ability to participate in his 

defense. 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

43

5. Exclusion of Third Party Culpability Evidence 

Defendant argues that the trial court erred by barring 

him from presenting evidence suggesting that victim Reynolds 

himself had participated in the Five Star parking lot robbery. 

Defendant contends the trial court’s ruling violated his rights 

under the Sixth and Fourteenth Amendments to the federal 

Constitution. The claim lacks merit. 

a. Background

Before trial, the prosecution filed a motion in limine to 

exclude evidence of Reynolds’s criminal history, including facts 

and charges relating to three cases in the 1970’s and 1980, as 

well as his alleged attendance at Aryan Nations (or similar) 

meetings. The prosecution argued that evidence of the former 

was irrelevant and improper character evidence, and that 

evidence of the latter was irrelevant and speculative. 

Defendant opposed the motion in limine on the ground that 

this evidence was relevant to the possibility that the Five Star 

parking lot robbery was “an inside job.” Without further 

elaboration, the trial court granted the “motion to exclude the 

victim’s criminal record.” 

Defendant later requested clarification as to whether the 

trial court’s ruling excluded all evidence suggesting that 

Reynolds was a participant in the Five Star parking lot 

robbery. At a hearing on the motion, defendant made the 

following offer of proof: (1) at the time of his death, Reynolds 

had only $6 in his bank account and a number of pawn tickets; 

(2) Reynolds promised his mother that he would send her to 

the Cayman Islands; (3) Reynolds had racist beliefs and had a 

skinhead tattoo; (4) Reynolds was seen talking to Torkelson 

the evening of the robbery; (5) Reynolds instructed Five Star 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

44

employees not to resist in the event of a robbery; and 

(6) sometime in the 1970’s or in 1980, Reynolds had been 

convicted of a crime involving “a male and female being put on

the ground, bound, and held.” The trial court found this 

proffer to be “not nearly enough to make [the] suggestion” that 

Reynolds was a participant in the robbery, and ruled that, 

“absent something more,” the evidence was inadmissible.

b. Discussion

“ ‘[T]o be admissible, evidence of the culpability of a third 

party offered by a defendant to demonstrate that a reasonable 

doubt exists concerning his or her guilt, must link the third 

person either directly or circumstantially to the actual 

perpetration of the crime. In assessing an offer of proof 

relating to such evidence, the court must decide whether the 

evidence could raise a reasonable doubt as to defendant’s guilt 

and whether it is substantially more prejudicial than probative 

under Evidence Code section 352.’ ” (People v. McWhorter

(2009) 47 Cal.4th 318, 367–368.) In other words, courts treat 

third party culpability evidence “ ‘like any other evidence: if 

relevant it is admissible,’ ” provided it is not otherwise 

rendered inadmissible by statute, and “ ‘unless its probative 

value is substantially outweighed by the risk of undue delay, 

prejudice, or confusion.’ ” (People v. Lewis (2001) 26 Cal.4th 

334, 372.) We review the trial court’s ruling for abuse of 

discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1242.) 

We perceive no abuse of discretion in the trial court’s 

decision to exclude evidence that one of the victims of the 

robbery murders may have started out as a participant in the 

crime. The parties dispute whether some of the proffered 

evidence—specifically, Reynolds’s criminal history, alleged 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

45

affiliation with racist organizations, and alleged racist 

beliefs—was inadmissible character evidence under Evidence 

Code section 1101, subdivision (a), which generally renders 

such evidence inadmissible to prove a person’s conduct on a 

particular occasion. But even assuming this evidence was not 

barred by any other statutory provision, the trial court 

reasonably concluded that any probative value was outweighed 

by the prejudicial impact, the consumption of time, and 

potential for confusing the issues. (See Evid. Code, § 352; 

People v. Lewis, supra, 26 Cal.4th at p. 372.)

Defendant’s proffered evidence could lead only to 

speculative inferences concerning Reynolds’s participation in 

the crime. Reynolds’s prior convictions were remote in time, 

and defendant offered scant basis for concluding that the Five 

Star robbery fit a “pattern” established by Reynolds’s past 

misconduct. (See People v. Lewis, supra, 26 Cal.4th at p. 373.) 

Defendant offered no evidence connecting Reynolds to the 

perpetrators of the Five Star robbery, other than the conjecture 

that they must have been acquainted by virtue of shared racist 

affiliations and beliefs. Reynolds’s actions on the day of the 

robbery had little, if any, probative value. Although Reynolds 

had instructed Five Star employees not to resist in the event of 

a robbery, the evidence established that it was, in fact, Five 

Star company policy for employees to comply in the event of a 

robbery. And although Reynolds was seen speaking with 

Torkelson on the night of the crime, the evidence showed that 

Torkelson interacted with many individuals that night while

pretending to be an on-duty security guard. Finally, evidence 

that Reynolds had spoken of taking his mother on a vacation

does little to suggest that Reynolds intended to finance the 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

46

vacation by means of the armed robbery that resulted in his 

death.

What is more, the inferences defendant would draw from 

this evidence are unsupported by any other evidence in the 

record. Reynolds was a victim of the robbery murders; like 

Perez, he was shot in the back of the head while lying 

facedown with his arms over his head. The circumstances of 

the shooting do not suggest willing participation in the crime. 

Neither Daleo nor Getscher, who initially identified the 

perpetrators during Detective McDonald’s investigation, 

identified Reynolds as a participant in the robbery. Nor did 

defendant identify Reynolds as a participant in the robbery in 

either of the two recorded calls with Getscher, including the 

one in which he admitted to personally shooting Perez. Having 

concluded this speculative third party culpability evidence was 

properly excluded, we also reject defendant’s claim that his 

constitutional rights were violated by the exclusion. (See 

People v. Lewis, supra, 26 Cal.4th at pp. 373–374.)

6. Cumulative Error 

Defendant contends that the cumulative effect of the

guilt phase errors requires reversal of his convictions. (See 

People v. Hill, supra, 17 Cal.4th at p. 844.) We have assumed 

two unrelated errors—the admission of defendant’s statement 

“You heard it all” and the admission of certain evidence of his 

racist tattoos, affiliations, and beliefs—and concluded that 

neither error was prejudicial, given the strength of the 

evidence of defendant’s guilt. We reach the same conclusion 

after considering the errors together. We accordingly reject 

defendant’s claim of guilt phase cumulative error.
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

47

B. Penalty Phase Claims

1. Retrial of the Penalty Phase 

Penal Code section 190.4, subdivision (b) directs a trial 

court to empanel a second jury to decide the penalty in a 

capital case if the first jury deadlocks, as it had in defendant’s 

case. (Pen. Code, § 190.4, subd. (b).) Defendant argues that 

mandatory retrial of the penalty phase violates the Eighth 

Amendment to the federal Constitution because such a retrial

violates evolving standards of decency, as demonstrated by the 

differing practices of other states, and “sends a message to the 

community that the individual moral judgment of each juror is 

not trusted or valued.” Defendant also raises several more 

specific challenges to the conduct of the penalty retrial.

We have repeatedly rejected the Eighth Amendment

claim defendant now raises, holding that “a penalty retrial 

following jury deadlock does not violate the constitutional 

proscription against double jeopardy or cruel and unusual 

punishment.” (People v. Jackson, supra, 1 Cal.5th at p. 356, 

citing People v. Taylor (2010) 48 Cal.4th 574, 634; accord, 

People v. Peoples (2016) 62 Cal.4th 718, 751; People v. Gonzales 

and Soliz (2011) 52 Cal.4th 254, 311; see also People v. Trinh

(2014) 59 Cal.4th 216, 237–238 [reaching the same conclusion 

as to a second penalty retrial held pursuant to Pen. Code, 

§ 190, subd. (b), which provides trial courts with the discretion

to empanel additional juries in the event of additional 

deadlocks].) In so holding, we have responded to arguments 

that California is out of step with other jurisdictions that 

mandate a sentence of life without parole if the penalty jury 

deadlocks, reasoning that the fact that California stands 

“among the ‘handful’ of states that allows a penalty retrial 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

48

following jury deadlock on penalty does not, in and of itself, 

establish a violation of the Eighth Amendment or ‘evolving 

standards of decency that mark the progress of a maturing 

society.’ ” (Taylor, supra, at p. 634.)

Defendant argues we should reconsider this precedent 

because our prior cases have failed to acknowledge just how 

unique California’s practices are; California, he notes, is one of 

only two states that requires, rather than merely permitting, 

an initial retrial of the penalty phase when the first jury 

deadlocks. (Pen. Code, § 190.4, subd. (b); see also Ariz. Rev. 

Stat. § 13–752(J).) Defendant does not, however, attempt to 

explain why the difference between mandatory retrial and 

permissive retrial is constitutionally significant, and identifies 

no authority that has so held. Defendant’s argument does not 

persuade us to revisit the holdings of our prior cases.

We also find no merit to defendant’s argument that 

permitting a second jury to impose the death penalty after the 

first jury deadlocks devalues the decisionmaking autonomy of 

the first jury. The cases cited by defendant require only that 

“ ‘the individualized assessment of the appropriateness of the 

death penalty [be] a moral inquiry into the culpability of the 

defendant, and not an emotional response to the mitigating 

evidence.’ ” (Saffle v. Parks (1990) 494 U.S. 484, 492–493.) 

That different juries may disagree on the answer to that moral 

inquiry does not disrespect the first jury’s opportunity to 

undertake the moral inquiry in the first instance. 

Finally, defendant claims that the retrial of the penalty 

phase unfairly conferred several advantages on the 

prosecution. Specifically, defendant contends that: (1) many of 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

49

the prosecution witnesses added “flourishes and 

amplifications” to their retrial testimony; (2) witnesses 

impermissibly testified as to the emotional stress caused by a 

second penalty phase; and (3) the prosecution referenced 

evidence in her closing statement that was presented during 

the first penalty phase but not the second phase. None of these 

claims has merit. First, defendant does not identify any 

misrepresentations in the retrial testimony, and both parties 

had the opportunity to elicit additional testimony from 

witnesses who testified at the initial trial. Second, the trial 

court instructed the jury to disregard “[t]he impact of the 

judicial process” on the witnesses, and we may “assume that 

the jurors followed the trial court’s instructions” (People v. 

Leonard (2007) 40 Cal.4th 1370, 1413). Finally, there is no 

reasonable probability that the prosecutor’s brief erroneous 

reference to evidence that was only presented during the first 

penalty phase—specifically, that a detective had become 

emotional when describing the crime scene—had any impact 

on the jury’s penalty verdict. (See, e.g., People v. Brady (2010) 

50 Cal.4th 547, 578.)

2. Admission of White Supremacist Beliefs

At the guilt phase of the trial, as discussed above, the 

trial court admitted (over defense objection) limited evidence 

relating to defendant’s association with White supremacist 

groups and two tattoos, used for purposes of identification, that 

reflected this association. At the penalty retrial, the jury 

heard considerably greater detail about the nature and content 

of defendant’s White supremacist beliefs, his multiple White

supremacist tattoos, and the beliefs of the groups to which he 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

50

belonged. The central issue in this appeal concerns the 

admission and use of this evidence.

Defendant argues that the evidence of his racist beliefs 

was both inflammatory and irrelevant to any legitimate issue 

before the jury at the penalty phase and that the prosecution’s 

improper use of the evidence undermined the fairness and 

reliability of the proceedings. Although we conclude some of 

the evidence of defendant’s racist beliefs was relevant to the 

jury’s determination of the appropriate penalty for defendant’s 

crime, we agree with defendant that much of this evidence was 

admitted and used for an improper purpose. On close review of 

the record, we conclude this error was prejudicial.

a. Background

At the first penalty trial, the trial court had admitted, 

over defense objection, extensive evidence concerning 

defendant’s skinhead beliefs and his tattoos, including expert 

testimony expounding on each subject. Before the penalty 

retrial, defendant again objected to the admission of this 

evidence, filing a motion in limine to exclude all references to 

“affiliation/membership with any White supremacy 

organization, in whatever form as well as reference to 

distinctive, racially identified/offensive tattoos” worn by 

defendant. Opposing the motion, the prosecution argued that 

the “Nigger Thrasher” and “Thor’s hammer” tattoos and 

defendant’s use of red laces were admissible as circumstances 

of the crime. (See Pen. Code, § 190.3, factor (a).) The 

prosecution also argued that additional evidence of defendant’s 

White supremacist beliefs might become relevant if defendant 

introduced evidence of his good character. (Id., factor (k).) 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

51

Ruling on the motion in limine, the trial court 

determined that the prosecution could use the following 

evidence in its case-in-chief: (1) defendant’s association with 

White supremacist groups to explain the basis of his affiliation 

with the other perpetrators of the Five Star parking lot 

robbery, (2) defendant’s use of the red laces, and (3) the “Thor’s 

hammer” tattoo. Although evidence of the “Nigger Thrasher” 

tattoo had been admitted at the guilt phase, the trial court

excluded it for purposes of the penalty retrial; evidently 

concerned about its inflammatory impact, the trial court ruled 

it could be referred to only as a “unique tattoo.” But the trial 

court also agreed with the prosecution that other evidence of 

defendant’s White supremacist tattoos, beliefs, and 

associations would become admissible as rebuttal evidence if 

defendant chose to present evidence of his good character. The 

court explained that once defendant “do[es] anything to 

suggest that” he has a good character and sympathetic family 

life, “that to me opens the door under the they-get-to-see-thewhole-person theory.”

During the prosecution’s case in aggravation, Daleo 

testified that she had seen defendant at Aryan Nations 

meetings. Daleo testified that the Aryan Nations group had a 

religious component based on the belief that “God’s chosen 

people were white people,” and that the meetings also served 

as social gatherings. Daleo also testified that she had 

identified defendant to law enforcement as having two tattoos:

one of “Thor’s hammer,” which she described as a reference to 

“the Aryan Nations Christianity thing,” and another “unique 

tattoo.”
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

52

The jury also heard the testimony of Getscher, who 

explained that he and defendant became friends in prison 

because they “were both skinheads” who had a shared belief in 

“[w]hite supremacy.” Shortly after the Five Star parking lot 

robbery, Getscher saw defendant trying to put red laces in his 

boots. Getscher explained that in skinhead culture, red laces 

“means you drew the blood of an enemy.” 

Defendant began his case in mitigation by calling his 

grandmother Fern Vinatieri as his first witness. Vinatieri 

testified that defendant was devoted to his family, had 

completed a GED and learned a trade to support his family, 

and accepted full responsibility for the robbery and assault 

committed in Arizona in 1999.

After Vinatieri concluded her testimony and before the 

next witness was called, the trial court notified the parties 

that, consistent with its earlier ruling on defendant’s motion in 

limine, the court would permit the prosecution to introduce 

evidence of defendant’s racist beliefs, tattoos, and associations. 

The trial court explained that Vinatieri’s testimony had “put 

[defendant]’s overall character” at issue, thereby opening the 

door for the prosecution to introduce this evidence. 

Following the trial court’s ruling, defendant called 

additional witnesses who testified that he was a good father,

“kind,” and “not a violent person.” Defendant also called fellow 

inmate Beek to rebut the prosecution’s evidence that defendant 

participated in an assault on inmate Robert Harger; Beek 

testified that defendant was not involved in the assault. 

During cross-examination, Beek admitted that he was a 

skinhead and described the American Front group, to which 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

53

defendant purportedly belonged, as “a group of working-class 

individuals” with White supremacy being a nonexclusive focus 

of the group. Defendant also called a family therapist who 

testified that defendant became a skinhead for two reasons: 

(1) to achieve a sense of belonging as he felt like an outsider in 

his family, and (2) as a means of self-preservation in prison. 

The therapist acknowledged that skinhead philosophy had 

negative values, but explained that it also had positive ones 

such as “honor, respect, loyalty, fidelity to one’s group, [and] a 

sort of misguided protection of the common man.” 

On rebuttal, the prosecution introduced substantial 

additional evidence of defendant’s White supremacist beliefs, 

tattoos, and associations. Prison deputies testified that shortly 

after the assault of Harger, they discovered a rune above 

defendant’s cell door and a swastika in a common area near 

defendant’s cell, both painted with what appeared to be blood. 

Police officers who interacted with defendant in 1999 testified 

about the White supremacist tattoos they had seen on 

defendant in 1999 and identified new tattoos that defendant 

had acquired by the time of his arrest in 2003. One officer had 

encountered defendant in September 1999 and observed that 

defendant was wearing “typical gang attire for a skinhead,” 

consisting of a shaved head, red suspenders, and red laces in 

his boots. On the basis of this attire, the officer opined that 

defendant was still involved with skinheads at the time. 

Finally, the prosecution called Joanna Mendelson, the 

director of investigative research at the Southern California 

branch of the Anti-Defamation League, as an expert witness to 

testify about the origins and ideology of skinheads. Mendelson 

explained that neo-Nazis believed that “what Hitler had 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

54

achieved . . . was a good start” and sought to “carry out Hitler’s 

vision.” Skinheads are a subset of neo-Nazis, so “all skinheads 

are neo-Nazis.” Mendelson described the Aryan Nations 

organization as “a Christian identity organization that has 

some elements of neo-Nazi beliefs.” Their beliefs included:

(1) “white Europeans, not the Jews, [] can draw their descent 

from the lost tribes of Israel”; (2) “Abel and his offspring are 

actually the white race” and “Cain and his offspring,” the Jews, 

“are the spawns of the Devil”; and (3) “everyone else who is a 

minority who is not” a descendant of either Cain or Abel are 

“mud people.” Mendelson described the American Front group 

as a “racist” and “neo-Nazi, white supremacist organization.” 

Mendelson explained that skinheads adhere to a religion 

known as Odinism, which provides skinheads in prison the 

“opportunity to congregate” in order to “conduct criminal 

activity and violence.”

Mendelson identified and explained the meaning of the

following symbols that appeared on letters that defendant had 

written: (1) “14” refers to a 14-word mantra about 

perpetuating the White race; (2) “88” signifies “Heil Hitler”; 

and (3) a Celtic cross is the “most common white supremacist 

and neo-nazi symbol[].” Mendelson similarly identified and

explained the meaning of the following symbols found on 

defendant’s tattoos: (1) a swastika; (2) a variation of the Nazi 

flag; (3) a Confederate flag; (4) the Celtic cross and runic 

symbols; (5) Thor’s hammer, a symbol significant in Odinism;

(6) “Blood and Honor,” the name of a White supremacist

organization started by Ian Donaldson; (7) an eagle with a 

stylized “S,” which refers to a White power band founded by 

Donaldson called Skrewdriver; (8) “Farewell, Ian,” a tribute to 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

55

Donaldson after his death; (9) a Totenkopf, a symbol worn by a 

division of the SS in Nazi Germany; (10) a skinhead crucified 

on a cross; (11) a Nazi eagle clutching a schutzstaffel, which 

was worn by Nazi leader Heinrich Himmler and the SS;

(12) “California Skinhead,” in red and black ink, the colors of 

the flag of Nazi Germany; (13) Dr. Martens boots, a popular 

type of boot among skinheads; (14) a caricature of Nazi general 

Joseph Dietrich; (15) “SWP,” an acronym for supreme White

power; (16) a Viking warrior; (17) “14 Words”; (18) “Nigger 

Thrasher”; (19) faceless skinheads wielding bats and machetes;

(20) a triskele, “a takeoff of the swastika”; (21) a tree with a 

noose hanging from it; (22) “Waffen SS,” the weapons division 

of the SS; (23) a wolfsangel, a Celtic image worn on SS 

uniforms in Nazi Germany; and (24) “Weiss Macht,” which 

means “White power” in German. In response to the 

prosecution’s questions about the racist content of these 

tattoos, Mendelson identified most of the tattoos as “inherently 

racist.” Photographs of these symbols and tattoos were 

published to the jury.

Before deliberations, the trial court instructed the jury as 

follows: “Certain evidence was admitted during the course of 

the trial with regard to the defendant’s beliefs, allegiance, and 

tattoos. This was done in rebuttal to the presentation by the 

defense of evidence of the defendant’s good character. Such 

beliefs, allegiance, and tattoos are constitutionally protected by 

the First Amendment of the United States Constitution. Such 

evidence may be considered by you only for the limited purpose 

of evaluating the credibility or strength of witnesses who were 

asked about the defendant’s character. Such evidence cannot 

be considered by you as an aggravating circumstance.” 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

56

In her closing argument, the prosecutor argued that 

defendant’s racist beliefs, tattoos, and associations rebutted 

defendant’s mitigating character evidence. The prosecutor 

argued that instead of making good choices, defendant chose to 

become a skinhead who “very, very strongly embraced this 

White supremacy ideology”; that he chose to get racist tattoos 

in prison rather than “renounc[ing] his views”; and that 

defendant’s evidence of being a good family member was 

refuted by evidence that his letters to his grandmother 

contained “offensive racial symbols” and that he was conveying 

his racist beliefs to his children.

b. Discussion

Defendant argues the trial court erred in permitting the 

prosecution to use what he describes as a “mountain” of 

irrelevant evidence of his racist beliefs, tattoos, and 

associations at the penalty retrial. The Constitution, 

defendant emphasizes, protects even deeply offensive and 

hateful beliefs. (See, e.g., National Socialist Party v. Skokie

(1977) 432 U.S. 43 (per curiam); see also, e.g., Snyder v. Phelps

(2011) 562 U.S. 443, 458 [“ ‘If there is a bedrock principle 

underlying the First Amendment, it is that the government 

may not prohibit the expression of an idea simply because 

society finds the idea itself offensive or disagreeable.’ 

[Citation.] Indeed, ‘the point of all speech protection . . . is to 

shield just those choices of content that in someone’s eyes are 

misguided, or even hurtful.’ ”].) Defendant argues the trial 

court erred in permitting the jury to weigh the offensiveness of 

his beliefs in deciding whether to impose the death penalty.

Defendant likens his case to Dawson, supra, 503 U.S. 

159, in which the United States Supreme Court confronted 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

57

questions concerning the use of evidence of racist beliefs and 

associations in capital sentencing. Dawson was a prison 

escapee who, during his flight, invaded a stranger’s home and 

brutally murdered her before stealing her money and car. At 

the penalty phase of the capital murder trial, the prosecution 

introduced evidence that Dawson had tattooed the words 

“Aryan Brotherhood” on his hand. The prosecution also read 

into the record a stipulation explaining that the reference was 

to “ ‘a White racist prison gang that began in the 1960’s in 

California in response to other gangs of racial minorities.’ ” 

(Id. at p. 162; see id. at pp. 160–161.) The court held this was 

error. (Id. at p. 167.)

The high court explained that while “the Constitution 

does not erect a per se barrier to the admission of evidence 

concerning one’s beliefs and associations at sentencing simply 

because those beliefs and associations are protected by the 

First Amendment” (Dawson, supra, 503 U.S. at p. 165), it also

does not permit the prosecution to ask the jury to return a 

particular penalty judgment because the defendant holds 

offensive beliefs or associates with others who hold the same 

beliefs (id. at p. 167). Rather, the beliefs and associations must 

have some “bearing on the issue being tried.” (Id. at p. 168.) 

For example, evidence of the defendant’s racist beliefs and 

associations may be admitted to show the defendant’s racial 

motives for committing the crime. (Id. at pp. 164, 166, 

discussing Barclay v. Florida (1983) 463 U.S. 939.) Similarly, 

evidence that a prison gang is associated with drugs and 

violent escape attempts at prisons, or advocates the murder of 

fellow inmates, might be relevant to show the defendant’s 

future dangerousness. (Dawson, at p. 165; see id. at p. 166 [“A
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

58

defendant’s membership in an organization that endorses the 

killing of any identifiable group, for example, might be 

relevant to a jury’s inquiry into whether the defendant will be 

dangerous in the future.”].)

In Dawson’s case, however, there was no argument that 

the crime was motivated by racial hatred, and the narrowness 

of the Aryan Brotherhood stipulation meant that the only 

possible relevance of the evidence was simply to demonstrate 

that Dawson associated with persons holding racist beliefs. 

(Dawson, supra, 503 U.S. at pp. 165–166.) The state argued 

that the very fact Dawson held racist beliefs was admissible at 

the penalty phase because it was relevant to show Dawson’s 

“character”—a legitimate sentencing consideration under state 

law—as well as to rebut Dawson’s own mitigating character 

evidence. (Id. at pp. 167–168.) The high court rejected the 

argument, explaining that evidence that goes to show “nothing 

more than [a defendant’s] abstract beliefs” is irrelevant even if 

labeled “character” evidence (id. at p. 167): Evidence of 

abstract beliefs “cannot be viewed as relevant ‘bad’ character 

evidence in its own right” (id. at p. 168).

As relevant here, Dawson stands for two central 

propositions. First, “[e]vidence of a defendant’s racist beliefs is 

inadmissible in the penalty phase of a capital trial if it is not 

relevant to an issue in the case.” (People v. Powell, supra, 5 

Cal.5th at p. 960.) This is because “a defendant’s abstract 

beliefs, however obnoxious to most people, may not be taken 

into consideration by a sentencing judge” or jury. (Wisconsin v. 

Mitchell (1993) 508 U.S. 476, 485.) Second, evidence of a 

defendant’s racist beliefs is not relevant if offered merely to 

show the moral reprehensibility of the beliefs themselves—
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

59

which is to say, evidence of the defendant’s abstract beliefs is 

not competent general character evidence. (Dawson, supra, 

503 U.S. at pp. 167–168; accord, e.g., Flanagan v. State (Nev. 

1993) 846 P.2d 1053, 1056 [evidence of a defendant’s racist or 

antisocial beliefs “is admissible only if it is used for something 

more than general character evidence”].) 

This case, unlike Dawson, does not involve a bare 

stipulation that the defendant has been associated with White

supremacist groups. Far from it. But defendant argues that 

the same result should obtain because the evidence of his 

White supremacist beliefs and associations was nonetheless 

irrelevant to any legitimate issue in the case. As in Dawson, 

no one argues that defendant’s racist beliefs were relevant to 

explain his motive for the robbery murders. (Cf., e.g., People v. 

Powell, supra, 5 Cal.5th at pp. 960–961 [trial court reasonably 

ruled that the defendant’s tattoos and gang membership were 

relevant to explain the racial motivation for his attack on

victim].) Defendant argues that the evidence of his beliefs and 

associations therefore should have been excluded.

This argument is too broad. It is true that the challenged 

evidence shed no light on defendant’s motivation for his crime

(and the People have not argued otherwise), but some of the 

evidence was clearly relevant to other legitimate 

considerations for the jury at the penalty phase. For example, 

as the trial court ruled at the outset of the penalty retrial, 

defendant’s use of the red laces and the meaning of the red 

laces in skinhead culture were relevant to establish the 

circumstances of the crime under Penal Code section 190.3, 

factor (a), inasmuch as they tended to demonstrate defendant’s 

consciousness of guilt. (See People v. Jackson (2014) 58 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

60

Cal.4th 724, 753–754 [postcrime evidence of a defendant’s 

consciousness of guilt is admissible as a circumstance of the 

crime].) As such, there was no bar to admission of the 

evidence.

Evidence of a rune and swastika appearing somewhere 

near defendant’s cell shortly after the attack on Harger was 

also relevant, and therefore admissible, to connect defendant to 

the assault. This evidence tended to corroborate Harger’s 

testimony that the assault was committed by a White inmate 

group and that defendant was in some way involved in this act 

of violence. This evidence concerning the circumstances of 

defendant’s unadjudicated violent conduct was relevant 

evidence under Penal Code section 190.3, factor (b), and it was 

therefore admissible. (Accord, People v. Merriman (2014) 60 

Cal.4th 1, 104 [evidence of White prison gang participation 

relevant to show circumstances of prior violent criminal 

activity]; People v. Gurule, supra, 28 Cal.4th at pp. 653–654 

[evidence of prison gang activity]; see also Dawson, supra, 503 

U.S. at p. 166.)

But the central difficulty here is that the trial court also 

permitted the prosecution on rebuttal to introduce a large 

quantity of additional evidence concerning defendant’s racist 

beliefs—not for purposes of illuminating the circumstances of 

his crime or past acts of violence, but simply for the light the 

offensiveness of those beliefs shed on his character. The trial 

court ruled that because defendant chose to present evidence of 

his good character—that he was a good family man, kind, and 

so on—the prosecution was entitled to rebut that evidence with 

testimony regarding defendant’s racial ideology. The court

explained: “Can’t [a] general member of society make a 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

61

determination that, you know what, if someone is a White

supremacist, has been engaged in these type of activities, has 

those types of tattoos, those are not things of good character[?] 

I’m not going to walk away saying that’s a good person.” 

Defense counsel argued against the constitutionality of this 

approach, stating, “The People are trying to demonize 

[defendant’s] beliefs that are protected under our constitution 

in such a way that the jury will be inflamed to the point of 

giving him the death penalty.” The court responded: “Without 

using the pejorative sounding rhetoric you used in your last 

statement, I think it’s absolutely and wholly accurate,” and “I 

think [the prosecutor is] entitled to do that. [¶] Motion is 

denied.”

In this the trial court was mistaken. When a defendant 

chooses to present mitigating evidence of his good character 

during the penalty phase, the prosecution is certainly entitled 

to present rebuttal evidence and argument of the defendant’s 

bad character. (People v. Loker (2008) 44 Cal.4th 691, 709.) 

But we have “firmly rejected the notion that ‘any evidence 

introduced by defendant of his “good character” will open the 

door to any and all “bad character” evidence the prosecution 

can dredge up. As in other cases, the scope of rebuttal must be 

specific, and evidence presented or argued as rebuttal must 

relate directly to a particular incident or character trait 

defendant offers in his own behalf.’ ” (Ibid.) Even when the 

defendant’s good character evidence is not limited to “ ‘any 

singular incident, personality trait, or aspect of [his]

background,’ ” the scope of proper rebuttal is limited by the 

scope of good character evidence offered. (Ibid.)
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

62

Here, the mitigating evidence that prompted the trial 

court’s ruling was the testimony of defendant’s grandmother, 

who spoke to his commitment to his family and children, his 

academic achievement in earning his GED, and his personal 

accountability for previous crimes. As Dawson makes clear, 

evidence of a defendant’s abstract beliefs is not relevant to 

rebut this variety of good character mitigation. (Dawson, 

supra, 503 U.S. at pp. 167–168.) In the face of similar 

mitigating character evidence, including testimony about the 

defendant’s “kindness to family members,” the high court held 

that evidence of racist beliefs, without more, is not admissible 

to show the defendant’s bad character for purposes of 

sentencing. (Id. at p. 167; see id. at p. 168.) “Whatever label is 

given to the evidence presented,” the court explained, the state 

may not ask the jury to render a penalty judgment based on 

the expression of an abstract belief—even one that is deeply 

offensive or morally repugnant. (Id. at p. 167.) 

We do not suggest that evidence of a defendant’s racist 

beliefs is never relevant to rebut a defendant’s evidence of his 

own good character. A defendant who seeks to portray an 

image of racial tolerance during his case in mitigation, for 

example, might well open the door to contrary evidence of his 

racist beliefs and associations. In such a case, such evidence 

would tend to show more than the reprehensibility of the 

defendant’s abstract beliefs; it would tend to show that the 

defendant lacks a specific positive character trait that he 

claims to have. (Cf. People v. Siripongs (1988) 45 Cal.3d 548, 

576–578 [the defendant was not entitled to elicit testimony 

suggesting that he was honest and simultaneously preclude 

the prosecution from introducing contrary evidence].) But that 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

63

case is quite different from the one before us, in which the 

reprehensibility of defendant’s beliefs was treated as probative 

in its own right.3 

The Attorney General asks us to uphold the trial court’s 

evidentiary ruling on other grounds, arguing the challenged 

evidence could instead have been admitted to show defendant’s 

violent tendencies. As already noted, the jury in this case was 

not merely presented with a bare stipulation that the 

defendant was a member of a racist group, as in Dawson. The 

jury also heard evidence that defendant had claimed credit for 

the killing of Perez, claiming a badge of honor with particular 

significance in skinhead culture. It heard evidence that 

defendant was a member of a White prison gang that had, at 

least on one occasion, orchestrated violence against a fellow 

White inmate.4 And it heard a reference from a prosecution 

expert to the propensity of White supremacist groups to 

 

3

 After the trial court had already ruled (over his objection) 

that his grandmother’s testimony opened the door to the 

challenged evidence, defendant did present testimony seeking 

to show his racially tolerant nature and to downplay his White

supremacist beliefs. But this testimony, which appears to have 

been presented in an attempt to blunt the force of the 

prosecution’s anticipated rebuttal evidence, could not have 

justified the trial court’s initial ruling, nor did it render 

otherwise inadmissible evidence admissible.

4 The Attorney General also argues in its briefing that the 

jury heard evidence that defendant tattooed his body with the 

phrase “Nigger Thrasher” after beating an African-American 

man. The record contains no evidence to support the 

argument.
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

64

“conduct criminal activity and violence” in prison. According to 

the Attorney General, this evidence laid the foundation 

necessary to permit the jury to consider the challenged 

rebuttal evidence for purposes of evaluating defendant’s 

violent character and the danger he represents to society, 

which is a relevant consideration in the penalty phase. (See 

Dawson, supra, 503 U.S. at pp. 165–166.)

We agree that at least some of the challenged evidence 

might have been admitted for the purpose of showing the 

connection between defendant’s prior violent acts and his

propensity for violence. Had the trial court admitted the 

evidence for this purpose, it would be a different case. But the 

great bulk of the challenged evidence was neither admitted nor 

used for any such limited purpose. Had the trial court 

admitted the evidence solely to show defendant’s propensity for 

violence, it would then have considered whether to tailor the 

evidence to address the nature of defendant’s participation in 

prison gangs, for example, or the connection between the 

gangs’ shared beliefs and the attack on Harger, a fellow White 

inmate. No such consideration was given to that issue, 

however, because the trial court had ruled defendant’s abstract 

beliefs and associations admissible in their own right as 

general character evidence.

The consequence of this ruling was an evidentiary 

presentation and set of arguments that focused on the nature 

of defendant’s offensive racist beliefs for the very sake of 

highlighting their offensiveness, rather than what they showed 

about defendant’s propensity for violence or any other matter 

relevant to the jury’s penalty judgment. With the trial court’s 

permission, the prosecution detailed, at some length, the 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

65

controversial tenets of defendant’s religious views and racial 

ideology. Mendelson, the prosecution’s expert, testified that 

neo-Nazis believe that Jews “are the spawns of the Devil”; that 

other minorities are “mud people”; and that one “must be of 

pure descent in order to directly communicate with the Gods.” 

Mendelson proceeded to meticulously catalog and decode the 

symbols defendant had employed in his personal writings and 

contained in each of defendant’s multiple tattoos. Although 

some of the tattoos contained violent themes (e.g., the image of 

a noose), the expert was not asked to testify about whether 

defendant’s tattoos reflected a commitment to violent action. 

She was, however, asked whether they reflected a belief in 

White supremacy. She responded that they did. The central 

theme of Mendelson’s extensive testimony was not that 

defendant’s tattoos endorsed violence, but that they were 

“inherently racist.” 

The prosecutor returned to this theme in her closing 

argument, arguing at great length that defendant’s racist 

beliefs and his decision to cover his body in racist tattoos, in 

and of themselves, showed he was not the good person he 

claimed to be in his case in mitigation and was therefore 

undeserving of the jury’s mercy. She described defendant as “a 

walking billboard of hate” who has “very, very strongly 

embraced this White supremacy ideology.” She emphasized 

that defendant “continued having all of these White supremacy 

beliefs” after he committed the murders. And she told the jury

that defendant’s “very offensive” tattoos “go[] to who he is.” 

“[W]hat you permanently put on your body,” she argued, “says 

a whole lot about what you are thinking and about who you 

are.” The prosecutor made no effort to connect defendant’s 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

66

beliefs to his past acts of violence or even his propensity for 

violence. Much as in Dawson, the record leaves little doubt 

that the “evidence was employed simply because the jury 

would find these beliefs morally reprehensible,” and not 

because of the light the evidence shed on defendant’s moral 

culpability for his crime or the dangers he poses to his fellow 

inmates or other members of society. (Dawson, supra, 503 U.S. 

at p. 167.) 

The Attorney General also argues on appeal that the 

evidence of defendant’s beliefs could have been admitted to 

refute defense witness Beek’s misleading answers on crossexamination, in which he described the neo-Nazi group he and 

defendant belonged to as a “White club” and a “group of 

working-class individuals that band together [and] have 

barbecues.” But Beek also testified that White supremacy was 

a “focus” of the group, if not its “main” focus. The trial court 

did not admit the evidence concerning defendant’s beliefs and 

tattoos for the purpose of setting the record straight on this

particular point, and the detailed explication of skinhead 

beliefs and the racist content of defendant’s writings and 

tattoos certainly went far beyond whatever might have been 

necessary to accomplish that goal. It is, moreover, unclear why 

it would have been important to the prosecution to clarify as it 

did, other than to invite the jury to infer defendant’s bad 

character from a more precise understanding of the nature of 

the group’s highly offensive racist beliefs.

The Attorney General concedes that “[t]he simple fact 

that Young believed Caucasians to be superior to all other 

races” was “arguably inadmissible” for any purpose other than 

to reveal his violent propensities or to refute Beek’s 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

67

characterizations, but contends that the trial court correctly so 

instructed the jury. But the jury would not have gleaned this 

message from the instruction it was given. Once again, it was 

instructed: “Certain evidence was admitted during the course 

of the trial with regard to the defendant’s beliefs, allegiance, 

and tattoos. This was done in rebuttal to the presentation by 

the defense of evidence of the defendant’s good character. Such 

beliefs, allegiance, and tattoos are constitutionally protected by 

the First Amendment of the United States Constitution. Such 

evidence may be considered by you only for the limited purpose 

of evaluating the credibility or strength of witnesses who were 

asked about the defendant’s character. Such evidence cannot 

be considered by you as an aggravating circumstance.” The 

instruction did inform the jury that defendant’s beliefs, 

allegiance, and tattoos are entitled to First Amendment

protection. But it did not inform the jury that it was permitted 

to consider the evidence for certain purposes (for example, to 

evaluate defendant’s violent propensities) and not others (to 

conclude defendant has bad character because he holds 

morally reprehensible beliefs). This omission is unsurprising, 

given the trial court’s ruling that the prosecution was entitled 

to argue that defendant’s White supremacist beliefs in 

themselves undermined his claim to be “a good person”—which 

is precisely what the prosecution argued to the jury in its 

closing. There was nothing, in short, that would have alerted 

the jury that it was forbidden from considering evidence of 

defendant’s beliefs for this very purpose.

5

 

5 The Attorney General argues defendant failed to object to 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

68

Because the First Amendment prohibits the introduction 

of this evidence for the purpose for which it was used at the 

penalty retrial, we find error. And because we cannot say the 

error was harmless beyond a reasonable doubt, we must 

reverse the penalty judgment. (Chapman v. California, supra, 

386 U.S. at p. 24.)

It is true, as the Attorney General emphasizes, that the 

People presented a substantial case in aggravation—both at 

the original penalty phase trial, which had resulted in a hung 

jury, and the penalty retrial. This case included the tragic 

circumstances of the robbery murders, which involved the 

needless close-range shooting of two defenseless employees 

who appeared to be complying with the robbers’ demands; 

evidence that defendant sought to claim credit for the murder 

of his victim; evidence of prior felony convictions, including a 

conviction for assault of an elderly man; and evidence that 

 

the instruction at trial and therefore forfeited any claim the 

instruction was inadequate. But defendant had fully aired his 

First Amendment objection to the admission of the evidence 

concerning his beliefs, and in response the trial court ruled the 

evidence of his beliefs was admissible for the purpose of 

rebutting his evidence of good character. Defendant was not

further required to seek a limiting instruction that would have 

prohibited the jury from considering the evidence for the very 

purpose for which the court had admitted it. (See, e.g., Warner 

Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 298 

[party does not forfeit objection by failing to seek limiting 

instruction contrary to the basis on which trial court admitted 

the evidence]; People v. Penunuri (2018) 5 Cal.5th 126, 166 

[counsel is not required to proffer futile objections to preserve 

claim of error].) 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

69

defendant played a leadership role in a prison gang that was 

responsible for an attack on a fellow inmate in prison.

But for whatever reason, the prosecution chose not to 

rely on this evidence alone. Instead, in response to defendant’s 

general character evidence, the prosecution adduced testimony 

from seven different witnesses concerning his racist beliefs, 

tattoos, and associations, including an expert who testified at 

length about the nature of the beliefs and decoded the racist 

content of defendant’s writings to his family members and his 

tattoos—including his “Nigger Thrasher” tattoo, which the 

trial court had earlier ruled inadmissible during the 

prosecution’s case in aggravation precisely because of its 

potential to inflame the jury. 

In her closing argument, the prosecutor then repeatedly 

raised defendant’s decision to “espous[e] [White supremacist] 

views and this ideology,” and his “ch[oice] to put all these 

[tattoos] on his body,” explaining, “It goes to who he is.” Other 

representative excerpts from the prosecutor’s extensive 

emphasis on defendant’s racist beliefs include:

• “He chose to become a skinhead. He chose to become a 

skinhead before he ever went to Arizona prison. We saw 

from the Thunder Road records that he was even having 

some racist beliefs while he was fairly young. Those 

continued to grow until he very, very strongly embraced 

this White supremacy ideology.”

• “When you look at what he did after he committed these 

murders, what did he do? He continued having all of these 

White supremacy beliefs.”
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

70

• “We know [two months after the murders] he had a number 

of tattoos on him. But there were a number he got after 

this. During this period of time where he’s supposedly 

raising a family and being a good father, what’s he doing? 

He’s adding additional tattoos to his body, and very 

offensive ones at that. Adding a big German soldier on his 

side. Adding a tree with a noose on it on his side. That’s 

what he’s doing.”

• “How does he talk to his grandmother in these letters? 

Well, he signs off with the ‘love, Jeff, 14,’ celtic cross, ‘88.’ 

We know what that is. He’s writing to his grandma, and 

he’s putting these offensive racial symbols in his letters to 

her. [¶] Is he a good family man? Good grandson? This is 

what he’s doing. He’s saying ‘heil Hitler’ to his grandma.” 

• “You heard from his own mother that he is raising his son 

in a racist household, that he has not abandoned these 

beliefs. [¶] It was of some interest that he even named his 

child Odin. You heard from the mother that the kids are 

being raised in a home where a Nazi flag is being flown.”

• “But what kind of a role model does he serve? [¶] . . . [¶] 

He espouses all kinds of hateful views on his own body. He 

continues to add to those. Many of these tattoos came after 

September of 1999. He is a walking billboard of hate.” 

• “They want you to believe somehow that he has renounced 

his views. We know some of these tattoos that he got in 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

71

prison. That’s clear. But we know that many of them he 

did not. Many of them he got after September of 1999. 

This is two months after he’s committed the homicide. He 

adds this crucified skinhead to his arm, this crucified 

skinhead with the red suspenders.” 

• “What about the German soldier on his side? He got that—

and this is a professional tattoo. As offensive as it is, this 

was an expensive and professional tattoo. This is 

something that he chose to add to his body well after.” 

• “We know, too, that he adds this Nazi eagle with the 

Schutzstaffel on his chest again sometime after September 

of 1999. [¶] Is this somebody who has somehow renounced 

his views? [¶] There was a clear impression that was 

intended to be given to you by the defense that somehow 

the only reason he became a White supremacist was for 

protection in prison. That was absolutely not true. You 

know from the evidence that he is clearly espousing these 

views and this ideology after he gets out of prison. That’s 

how he meets James Torkelson, going to Aryan Nations 

meetings. This has nothing to do with protection in prison. 

Nothing at all. It goes to who he is.”

• “What you put on your body, what you permanently put on 

your body, says a whole lot about what you are thinking 

and about who you are. These were things—again, choices. 
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

72

He chose to put all these on his body. He chose to do many 

of these things well after he got out of prison.”

• “Again, that German soldier, that cost a lot of money. 

Instead of spending the money on his kids, that’s how he’s 

spending it. That’s the kind of choices he makes.”

In sum, the prosecutor openly and repeatedly invited the 

jury to do precisely what the law does not allow: to weigh the 

offensive and reprehensible nature of defendant’s abstract 

beliefs in determining whether to impose the death penalty. 

We cannot ignore the possibility that the jury accepted that 

invitation in returning its verdict on the penalty retrial. (Cf.

Dawson v. State (Del. 1992) 608 A.2d 1201, 1205 [concluding, 

on remand from the U.S. Supreme Court, that where state had 

woven evidence of Dawson’s Aryan Brotherhood membership 

into a “central theme that Dawson had an incorrigible 

character with his entire life showing repeated decisions to 

reject any redeeming paths,” it would be “impossible” to 

conclude that the error in admitting the evidence did not 

contribute to the death sentences].) The trial court’s error in 

allowing the prosecution to use evidence of defendant’s 

abstract beliefs in this fashion was prejudicial, and the 

resulting penalty judgment must therefore be reversed.
PEOPLE v. YOUNG

Opinion of the Court by Kruger, J.

73

III. DISPOSITION

We affirm the judgment as to guilt, reverse the judgment 

as to the sentence of death, and remand the matter for a new 

penalty determination.

KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Young

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S148462

Date Filed: July 25, 2019

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: John M. Thompson

__________________________________________________________________________________

Counsel:

Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief 

Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Arlene 

Aquintey Sevidal, Ronald A. Jakob, Stacy Tyler and Michael T. Murphy, Deputy Attorneys General, for 

Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathy R. Moreno

Law Office of Kathy R. Moreno

P.O. Box 9006

Berkeley, CA 94709-0006

(510) 717-2097

Michael T. Murphy

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92186-5266

(619) 738-9211