IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE

Plaintiff and Respondent,

v.

RYAN JAMES HOYT,

Defendant and Appellant.

S113653

Santa Barbara County Superior Court

1014465

__________________________________________________________

January 30, 2020

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. HOYT

S113653

Opinion of the Court by Kruger, J.

Defendant Ryan James Hoyt was convicted of the kidnap 

and murder of Nicholas Markowitz and sentenced to death. We 

affirm the judgment.

I. BACKGROUND

On October 30, 2000, defendant was charged by grand jury 

indictment with kidnapping 15-year-old Nicholas Markowitz 

(who was known as Nick) for ransom or extortion and for 

murdering him, as well as a personal firearm use enhancement. 

(Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(B), 209, subd. 

(a).) Codefendants Jesse James Hollywood, Jesse Rugge, 

Graham Pressley, and William Skidmore were charged with the 

same crimes, but the cases were severed and defendant stood 

trial first. A jury convicted defendant of one count of first degree 

murder in violation of Penal Code section 187 and one count of 

kidnapping committed with the personal use of a firearm in 

violation of Penal Code sections 207 and 12022.5, respectively. 

The jury also found true the special circumstance allegation that 

the murder was committed during the course of a kidnapping 

under Penal Code section 190.2, subdivision (a)(17)(B). The jury 

returned a verdict of death. This appeal is automatic. (Id., 

§ 1239, subd. (b).)
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

2

A. Guilt Phase Prosecution Case

The events that led to Nick’s kidnap and murder stemmed 

from a feud between Jesse James Hollywood and Nick’s halfbrother, Ben, over a drug debt. Ben was supposed to have sold 

illegal drugs for Hollywood but failed to do so. As a result, Ben 

owed Hollywood $1,200, and their relationship had soured over 

this debt. On one occasion, Hollywood retaliated against Ben by 

running up a tab in the restaurant where Ben’s girlfriend 

worked and leaving a note saying Ben could pay the bill from 

the debt he owed Hollywood. For his part, Ben took revenge on

Hollywood by telling Hollywood’s insurance company that 

Hollywood had falsely reported a vehicle stolen. Ben later broke 

windows in Hollywood’s home. Although there was conflicting 

testimony about precisely when the windows were broken, one 

prosecution witness testified the event occurred on August 4, 

2000. The next day, Hollywood would inform others that he 

needed to move because his windows had been “busted out” and 

people knew where he lived. The day after that, Hollywood 

arranged to have Nick kidnapped. A few days later, worried 

about the serious penal consequences if that crime was 

discovered, Hollywood decided to eliminate Nick. 

Hollywood enlisted defendant’s help. Defendant, like Ben,

sold drugs for Hollywood, and he also owed Hollywood money. 

Mutual friends described defendant as the “low man on the 

totem pole” in their circle. To pay for the drugs he purchased 

from Hollywood for resale, defendant performed—and was often 

teased for doing—menial, odd jobs for Hollywood, including yard 

work, pet care, and housework. According to Brian Affronti, a

friend of both defendant and Hollywood, defendant did whatever 

Hollywood asked of him, without complaint. Defendant agreed 

to carry out the killing, along with two accomplices, in exchange 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

3

for financial compensation including the forgiveness of his debt 

to Hollywood. 

Timeline

1. August 5, 2000

The events leading up to the crimes began on Saturday, 

August 5, 2000, when Casey Sheehan, who also sold marijuana 

for Hollywood, delivered a van to Hollywood’s West Hills home.1 

Hollywood had told Sheehan that Hollywood needed to move 

because people knew where he lived. When Sheehan arrived at 

Hollywood’s home, defendant, Skidmore, and one other friend 

were there, drinking beer and smoking marijuana. Some hours 

later, Sheehan, Hollywood, and Skidmore met again at 

Sheehan’s apartment, where Hollywood and Skidmore talked 

about driving to Santa Barbara for a local party known as 

Fiesta. 

That same evening, Nick returned home a half hour before 

his midnight curfew. His parents noticed he looked “glazed,” his 

speech was slurred, and he had a bulge in his pocket. When they 

confronted him, he ran out of the house and did not return for 

an hour. When he returned, he agreed to speak with his parents 

in the morning. Nick’s parents worried that he had been getting

involved with drugs, in part because Ben was a drug user. 

2. August 6, 2000

On the morning of Sunday, August 6, two passersby saw a 

dark-haired teenager being beaten by four other similar-aged 

boys in West Hills. Both the assailants and their victim 

appeared to be Caucasian. When the assailants were done 

 

1 As the jury was informed, Sheehan testified under a grant 

of immunity, which would be void if he failed to be truthful.
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

4

hitting and kicking the dark-haired boy, they threw him into a 

white van. 

Affronti testified that at about 2:00 that afternoon, 

Hollywood, Skidmore, and their friend Jesse Rugge picked him 

up in a white van to drive to Santa Barbara for Fiesta. When 

Affronti entered the van, he saw Nick in the back. Affronti knew

Ben, but he did not initially realize Nick was Ben’s younger 

brother. Affronti did not know anything was out of the ordinary 

until Hollywood told Nick “that his brother was going to pay up 

his money” and “for Nick not to run or anything like that, not to 

try and do anything irrational.” 

When the men arrived in Santa Barbara, they stopped at 

an apartment belonging to Richard Hoeflinger, a longtime 

friend of Rugge’s. Hollywood asked Affronti to park the van and 

directed Rugge to make calls from Affronti’s cell phone to 

unknown recipients. Telephone records also showed that two 

phone calls were placed that afternoon from Hoeflinger’s home 

to defendant’s home phone number. Hollywood and Skidmore 

then went into the apartment with Nick. When Affronti entered 

after parking the van, he saw Nick in a bedroom with his hands 

duct-taped in front of him and his shins also taped. Hollywood 

and Rugge then left for a time; when Hollywood returned,

Affronti and Skidmore left in the van. 

Hoeflinger, the apartment’s primary tenant, had not seen 

his friend Rugge for a while before Rugge stopped by on August 

6. Rugge asked if he could come in and Hoeflinger readily 

agreed, but Hoeflinger was surprised when a group—which 

included Nick—came in with Rugge. Emilio Jelez, Jr., 

Hoeflinger’s roommate at the time, and their friend Gabriel 

Ibarra were also at the house when Rugge and others arrived 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

5

with Nick. Jelez and Ibarra saw Nick sitting in a bedroom of 

the house with his wrists and ankles bound with duct tape. 

Ibarra had never met Hollywood, but testified he did not call the 

police or tell anyone what he had seen because he was afraid of 

Hollywood after Hollywood walked up to Ibarra, intimated he 

had a gun, “and pretty much threatened [Ibarra], told [him] that 

[he] better keep [his] F’ing mouth shut.” 

At some point that evening, Hoeflinger walked into his 

bedroom and saw Rugge and Skidmore removing duct tape from 

Nick’s wrists. Skidmore assured Hoeflinger that everything was 

“ ‘cool’ ” and they were “ ‘just talking’ ” to Nick. Reassured, 

Hoeflinger left his house less than a half hour later to attend a 

barbecue. Hoeflinger returned home at dusk to find Nick and 

Rugge drinking alcohol together in his living room with Nick 

still unbound. Nick and Rugge then left Hoeflinger’s home

together a few hours later. 

In the meantime, Affronti and Skidmore drove back to Los 

Angeles in the white van. Affronti realized en route that he had 

forgotten his cell phone and returned to Hoeflinger’s home to 

retrieve it; there he saw Nick and Hollywood still spending time 

together. Back in Los Angeles, Skidmore dropped Affronti off at 

home and continued to Hollywood’s house, where he met 

defendant. Skidmore did not mention Nick. Defendant and 

Skidmore returned the van to its owner. Defendant and 

Skidmore walked back to Hollywood’s house, where defendant 

left Skidmore. 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

6

3. August 7, 2000

a. Nick Spends the Day in Santa 

 Barbara

On the morning of August 7, Natasha Adams-Young, then 

age 17, met Nick at Rugge’s house in Santa Barbara. AdamsYoung had been spending time with Rugge that summer. After 

meeting Nick, Adams-Young spoke with Pressley, a mutual 

friend of hers and Rugge’s. Pressley told her “that they, quote 

unquote, kidnapped this kid [Nick] and brought him back up 

here to Jesse Rugge’s house.” The group then caravanned to 

Adams-Young’s house. Adams-Young, feeling concerned for 

Nick’s welfare, spoke with Nick, and suggested he was free to 

leave. Nick declined, explaining to Adams-Young that he 

planned “to stick around” “to help out his brother and that he 

was fine.” 

The group eventually returned to Rugge’s home. 

Hollywood and his girlfriend, Michele Lasher, met up with the 

group there. Then-16-year-old Kelly Carpenter, another mutual 

friend of Adams-Young and Rugge, had met Hollywood the week 

before and knew that Hollywood, Rugge, and Pressley were 

involved with selling marijuana. Adams-Young understood that 

Nick’s presence in Santa Barbara and at Rugge’s home was 

related to Hollywood in some fashion. 

At Rugge’s home, Nick remained in a separate bedroom 

talking to Rugge. Carpenter overheard Hollywood speaking to 

his girlfriend about their plans that night and also heard

Hollywood talking to others about what he would do with Nick. 

Hollywood said he might tie Nick up, throw him in the backseat 

of the car, and then get something to eat. Although it was said 

in a joking manner, the comment made Carpenter 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

7

uncomfortable. Carpenter and Adams-Young left Rugge’s house 

shortly thereafter. 

b. Hollywood Confesses the

 Kidnapping to Sheehan

Sheehan testified that Hollywood and Lasher socialized at 

Sheehan’s apartment later on the night of August 7, drinking

alcohol and smoking marijuana with him. Sheehan conceded he 

was “probably” “pretty wasted” and did not recall whether 

Hollywood and Lasher spent the night. Sheehan did recall 

Hollywood telling him he had taken Nick to Santa Barbara on 

Sunday, August 6. Hollywood, Rugge, Affronti, and Skidmore

“pulled over” and “picked up” or “grabbed” Nick while he was 

walking down the street. Sheehan did not believe anyone other 

than those four men were involved in Nick’s capture. Hollywood 

told Sheehan that Nick was still staying with Rugge in Santa 

Barbara on August 7. 

4. August 8, 2000

Nick’s parents reported their son missing on Tuesday 

morning, August 8, after finally reaching Ben and realizing Nick 

was not with him. 

a. Nick’s Time in Santa Barbara

Adams-Young testified that Nick was still at Rugge’s

house when she returned there the morning of August 8. 

Adams-Young was concerned with Nick’s continued presence in 

Santa Barbara when “he wasn’t supposed to be” there and

discussed the issue with Pressley and Carpenter. Pressley told 

Adams-Young he was not sure what he planned to do “but that 

they weren’t going to hurt [Nick] in any way and that they were 

just waiting to get a call from Jesse Hollywood.” Pressley also 

told Adams-Young that “Hollywood had called Jesse Rugge and 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

8

offered him money to kill Nick Markowitz.” Adams-Young

recalled “being shocked and appalled,” and Pressley assured her 

he had no plans to kill Nick but also confessed he was not sure 

what should be done with Nick. Pressley believed they were all 

in danger.

Adams-Young returned to Rugge’s home and confronted 

him. Rugge told Adams-Young he was not sure what he should 

do, but “knew he was going to take Nick home” and planned to 

provide him with a bus ticket, though he feared Nick would tell 

someone about the kidnap when he returned home. Rugge 

expressed concern about going to jail. Nick, who was present 

during this conversation, assured Rugge he would not tell 

anyone when he got home. 

Shortly thereafter, Rugge suggested the group go to a 

motel for the evening. Pressley’s mother drove Pressley, 

Carpenter, Rugge, and Nick to the Lemon Tree Inn, where the 

group stayed from 7:00 p.m. until 11:30 p.m. Rugge selected and 

paid for the motel. Once there, they were joined by a friend, 

Nathan Appleton, and Adams-Young met up with the group 

later. The mood was celebratory, as Adams-Young and 

Carpenter believed Nick would be going home that evening. 

Nick spoke happily about what he would do once he returned 

home. Around 11:00 or 11:30 p.m., Rugge asked Adams-Young, 

Appleton, and Carpenter to leave for the night. 

b. Hollywood’s Activities on the 

 Evening of August 8, 2000

On August 8, Hollywood visited the home of Stephen 

Hogg, a criminal defense attorney who had a professional 

relationship with both Hollywood and his father, John. 

Hollywood explained to Hogg that acquaintances had picked up 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

9

the brother of the man who had damaged his home and had 

taken the brother to Santa Barbara. Hollywood sought Hogg’s 

advice. When Hogg suggested Hollywood go to the police, 

Hollywood said he could not do that. Hogg described to 

Hollywood the penalties for kidnapping as eight years, or—if 

ransom was sought—life. Hollywood made clear that this was 

something other people had done and that he was personally 

uninvolved. Hollywood became agitated and left Hogg’s home 

within five minutes of Hogg’s explaining the potential penalties 

for kidnapping. Hogg tried to page Hollywood several times 

after Hollywood left, but Hollywood did not respond. 

On the evening of August 8, Hollywood and Lasher went 

to Sheehan’s apartment to borrow Sheehan’s car. Hollywood 

ran an errand in the car while Lasher stayed at the apartment. 

Hollywood then returned without the car, and all three went out 

to dinner to celebrate Lasher’s birthday. 

5. August 9, 2000–August 17, 2000

a. Hollywood’s Father Rushes Home

Hollywood’s father, John, testified that on the evening of 

August 8, he contacted Hogg and learned that Hollywood had “a 

problem” or was “in trouble.” John was on vacation in Big Sur 

but left for home after learning his son might be in trouble. John

tried unsuccessfully to reach his son numerous times on his way 

home. John finally reached Hollywood via Lasher, and 

Hollywood directed him to Lasher’s home. John arrived at

Lasher’s Calabasas home at 2:00 a.m. on the morning of August 

9 to find his son looking “nervous and rattled.” John understood 

that Hollywood believed his life was in some danger, that 

Hollywood and Ben had been in a feud for some time, and that 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

10

Hollywood’s agitation was related to the kidnapping of Ben’s 

younger brother. 

b. Hollywood’s Father Contacts 

 Defendant

Later that day, John paged defendant and asked to meet 

at a park. John asked defendant what was “ ‘going on with this 

situation, you know, this kid’ ” and suggested they go “ ‘find out 

where he is,’ ” “ ‘go get him and take him home.’ ” Defendant 

told him that “he didn’t have control of the situation. And he, 

you know he was trying to find out, but he wasn’t having any 

luck.” John told defendant that when he asked his son where 

Nick was and who was holding him, Hollywood had not provided 

those details and instead told John to call defendant. Defendant 

told John he did not know those details either, but “would see 

what he could find out.” John and defendant agreed this was “a 

bad situation,” and defendant indicated that “he wasn’t involved 

in this thing from the start, and he was kind of irritated that he 

was even being dragged into it.” 

c. Sheehan and Defendant Spend 

 Time Together

When Sheehan came home from work on the afternoon of 

August 9, he noticed the car he had loaned to Hollywood the day 

before had been returned. That evening, Hollywood, Affronti, 

Skidmore, Lasher, and defendant were at Sheehan’s home. 

Defendant told Sheehan that “a problem was taken care of.” 

Sheehan understood this to refer to Nick. When Sheehan asked 

defendant to elaborate, defendant initially said it was “best that 

[he] left things unsaid,” but eventually confessed that “Nick had 

been killed.” 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

11

After this conversation, Sheehan drove defendant to a 

store where defendant purchased shirts, pants, and shoes 

totaling a “couple hundred dollars,” paying in cash. Sheehan did 

not believe defendant was working at the time, and he had 

known that defendant was in debt to Hollywood. Defendant 

assured Sheehan that the debt to Hollywood “was taken care of.” 

In fact, Hollywood had given defendant “three or four hundred 

bucks” the day before his birthday and told defendant, “[W]e’re 

straight. No more debt.” Defendant spent the night at 

Sheehan’s house that evening and celebrated his 21st birthday 

the next day. After enjoying a party with between 20 and 30 

guests at Sheehan’s home, defendant again spent the night 

there. 

A few days later, Sheehan and defendant again discussed 

Nick’s killing. Defendant told Sheehan they killed Nick 

somewhere in Santa Barbara. Defendant described picking 

Nick up from a motel and taking him to a site where they “shot 

him and put him in a ditch,” and covered him with a bush. 

Sheehan and defendant were together when defendant was 

arrested; Sheehan was also arrested and released that same 

evening. 

d. Nick’s Body Is Discovered

On August 12, 2000, a group of hikers, including witness 

Darla Gacek, were hiking in the Los Padres National Forest in 

Santa Barbara County. They were passing through an area 

known as Lizard’s Mouth, which is situated approximately three 

and one-half miles from Highway 154. The hikers heard what 

they thought was a swarm of bees coming from a location 

approximately one-quarter mile beyond the point where vehicles 

can go no further. The group saw brush piled high, and when 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

12

they began removing it, they realized a human might be buried 

beneath it. The group of hikers left the site to find a cell phone 

to call the police. They encountered a group filming nearby. 

Lars Wikstrom, a film video editor, had gone to the 

Lizard’s Mouth area that day to help friends film a music video. 

While Wikstrom was filming there, a man pointed out an area 

to him about 20 to 30 yards away. Wikstrom followed the man,

initially noting a strong odor similar to that of a dead animal by 

a roadside. As the two got closer, Wikstrom could see and hear

numerous flies near the ground. Wikstrom saw fine powder on 

the ground, and then noted what appeared to be Levi’s denim 

jeans and part of a shirt. Because Wikstrom was unsure 

whether what he saw was a person, he decided to call the police. 

Wikstrom waited for the police to come, directing hikers away 

from the area. 

Law enforcement arrived about an hour and a half after 

Wikstrom called. Detective William Michael West, one of the 

first detectives at the scene, observed cut brush along the entire 

trail, from the trail head at West Camino Cielo all the way to 

the location of the shallow grave. Detective West testified that 

“[i]t looked like somebody had cleared the trail,” both at the 

gravesite and all along the trail. 

Criminalist George Levine also responded to the scene.

Nick’s body was only lightly and partially covered with dirt. The 

weather that day and for a few days before was warm, resulting 

in significant decomposition. Law enforcement officials 

removed cartridge casings and a bullet from the first few inches 

of the shallow grave. After the body was removed from the site, 

a TEC-9 weapon, modified to be fully automatic, was found 

under the area where Nick’s feet had been resting. Nick’s mouth 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

13

had been duct-taped. Duct tape was also wrapped around Nick’s 

hands and head.

2

 

An autopsy revealed Nick had suffered a total of nine 

gunshot wounds. Several of the gunshots would have 

independently been fatal, but due to the level of decomposition 

the medical examiner was unable to state which of the injuries 

caused Nick’s death. 

e. Pressley Confesses to Digging the 

 Gravesite

Detective Jerry Cornell testified that he interviewed

Pressley on August 16, and Pressley admitted digging a grave 

in the trail area off San Marcos Pass known as Lizard’s Mouth 

in the early morning hours of August 9. 

f. Defendant Confesses to the Killing 

On August 16, defendant was arrested, taken to a Santa 

Barbara jail, and advised of his Miranda rights.

3 According to 

Detective West, defendant said that he decided to speak to 

detectives after seeing a television broadcast regarding the case 

and speaking to his mother. After defendant informed jail 

officials he wished to be interviewed, detectives met with 

defendant in the sheriff headquarters in Goleta, where they 

audio- and video-recorded their encounter with him. Defendant 

 

2 Once the tape was removed at the morgue, Nick was seen 

to be wearing a ring. Nick also wore a distinctive belt buckle. 

The parties stipulated to the identification of the deceased at 

trial. 

3 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

14

was re-Mirandized and asked to explain why he was involved in 

the crime. 

Defendant told Detective West and Sergeant Ken 

Reinstadler, “I’m going down. I, I just realized that.” The 

detectives asked defendant to explain “how this went down,” and 

defendant asked if they would “mind if I go back to my cell and 

think about [it] tonight and talk to you guys tomorrow because 

I know my arraignment is Monday.” Defendant expressed 

concern that what he said would be repeated in court, but then 

requested water and continued the conversation with the 

detectives, explaining, “I had nothing to do with the 

kidnapping.” Defendant asked why he was charged with that 

crime.4 The detectives responded by urging defendant to tell his 

story.

Defendant told them Ben owed Hollywood significant 

sums of money, as did he. Defendant explained he was told he 

could erase his own debt in exchange for killing someone; the 

person was someone unknown to him. Defendant told detectives 

 

4 Defendant alleges the transcript used at trial contained 

two inaccuracies. After his assertion to detectives that he had 

nothing to do with the kidnapping, the transcript given to jurors 

indicated that there was some whispering before defendant 

asked why he was charged. A later-filed corrected transcript of 

the interview indicates that Reinstadler had responded to 

defendant’s initial assertion that he had nothing to do with the 

kidnapping by whispering, “We know that.” Defendant also 

claims the transcript used at trial contained an error in an 

exchange during which defendant indicated he met someone at 

the Lemon Tree Inn. At trial, the transcript read, “WEST: You 

met someone there? HOYT: Nick.” The corrected transcript 

reads, “WEST: You met someone there? HOYT: Yeah.” These 

discrepancies do not affect our evaluation of the issues in this 

case. 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

15

he drove Sheehan’s car to a motel in Santa Barbara. When 

asked what happened next, defendant said, “You guys know 

what happened. I think I’m going to stop there for now.” He 

again requested water, then expressed concern for his family’s 

well-being. 

Sergeant Reinstadler reminded defendant that he had the 

right to stop speaking to them at any point. Detective West 

offered to let defendant “collect [his] thoughts,” and defendant 

said he wished “more than anything” that he had a cigarette. 

Sergeant Reinstadler reminded defendant, “You wanted to talk 

to us, man.” Defendant asked whether he had been helpful, and 

the detectives urged him to fill in more “piece[s] of the puzzle.” 

Reinstadler asked him, “Who are you ultimately concerned 

with? Who, who do you feel sorry for here?” Defendant replied, 

“Not me,” continuing, “That kid I buried.” Reinstadler asked 

him if he was “[w]ak[ing] up thinking about someone saying, 

‘Please. Please.’ ” The detectives asked if that was what the 

duct tape around the victim’s mouth was for, and defendant 

replied, “Close.” 

Reinstadler asked defendant if he put the duct tape on 

Nick’s mouth, but defendant denied doing it. Reinstadler then 

asked whether Jesse did it, and defendant said Hollywood was 

not in Santa Barbara. Reinstadler clarified he meant Jesse 

Rugge, not Jesse Hollywood, and told defendant that Rugge had 

said that defendant placed the duct tape around Nick’s mouth. 

Defendant replied, “I love this one. The only thing I did was kill 

him.” Defendant added that he did not select the gravesite or 

dig the grave; Pressley, whom he had not previously known, 

handled both those tasks. The detectives asked defendant if he 

had any moments of feeling what he was doing was wrong, and 

he said he did think that, for a moment, “right before.” 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

16

B. Defense Case

1. Defendant’s Testimony

Defendant testified on his own behalf. He acknowledged 

that he was friends with, and sold drugs for, Hollywood. He was 

indebted to Hollywood and did odd jobs, including yard work, to 

reduce his debt. 

On August 5, 2000, defendant helped Hollywood pack up 

his house. Someone had broken the windows of the house, and 

Hollywood had received a voicemail that Ben, who sometimes 

sold marijuana for Hollywood, was the culprit. Defendant 

finished cleaning up the broken glass and went to his 

grandmother’s home around 10:00 p.m. that evening. 

On August 8, 2000, at around 2:30 p.m., defendant went 

to Hollywood’s home. He and Hollywood drove around for a 

while, and Hollywood seemed excited. Hollywood asked if 

defendant would like to work off the last $200 of his debt by 

delivering a package to Rugge in Santa Barbara. Defendant 

testified that Hollywood told him if he delivered the package, his 

debt would be “clear” by his birthday a few days later. 

Defendant was to drive Sheehan’s car. Defendant assumed 

Hollywood was not going himself because he was celebrating his 

girlfriend’s birthday. Defendant agreed, and Hollywood told 

him where Rugge was staying and gave him a phone number to 

reach Rugge. Defendant testified he then waited at Hollywood’s 

home for about three or four hours, at which point Hollywood 

picked up defendant and took him to Sheehan’s home to pick up 

Sheehan’s car. Hollywood gave defendant a bag to deliver to 

Rugge, and defendant testified that he did not look inside, 

presuming it to contain marijuana. No one mentioned anything 

about Nick to defendant. 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

17

Defendant drove to Santa Barbara. He called Rugge from 

a mini-market off the highway, and Rugge directed him to a 

room at the Lemon Tree Inn. Defendant delivered the bag, 

annoyed that Pressley was in the room because defendant had 

asked that Rugge be alone. Rugge asked defendant to drive him 

back to the San Fernando Valley in the morning, and defendant 

agreed. Rugge and Pressley borrowed the car for several hours, 

returning to the room about 2:30 a.m. Once they returned, 

defendant and Rugge drove back toward Los Angeles. 

Defendant dropped Rugge off at Rugge’s mother’s home. 

Defendant then drove to his grandmother’s house, where he was 

then living. 

Defendant testified that he did not hear of Nick’s death 

until the evening of August 12, when Skidmore told him that 

“Ben’s brother had been found murdered.” Several days later, 

defendant learned Skidmore had been arrested. Defendant 

began calling mutual friends, including Sheehan, who told 

defendant “he didn’t want [him] at his house.” Defendant did 

not heed Sheehan’s request. Defendant received several pages 

from a number he did not recognize, and believed police were 

trying to reach him. Defendant asked Sheehan to take him to a 

pay phone so he could call the police. He was arrested shortly 

thereafter. 

Following his arrest, he was eventually taken to Santa 

Barbara, although he did not recall events with specificity. He 

recalled throwing up and knew he called his mother but claimed

to have no memory of the content of the phone call. In fact, 

defendant testified that he recalled nothing from the time of his 

arrest on August 16 until he woke up alone in a jail cell four 

days later. He did not remember his confession to detectives on 

August 17.
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Opinion of the Court by Kruger, J.

18

Defendant’s taped confession was played for the jury. 

Defendant testified that none of the statements indicating he 

was responsible for Nick’s death were true. 

2. Dr. Kania’s Testimony

The defense proposed to call Dr. Michael Kania to testify 

that defendant’s confession was false. Following an Evidence 

Code section 402 hearing, the trial court ruled that Dr. Kania 

could testify in response to hypothetical questions that assumed

defendant suffered from amnesia, including the characteristics 

of amnesia. But the court ruled that Dr. Kania would not be 

permitted to “testify as to circumstances, the things that he was 

told by the defendant. The defendant can testify to those 

things.” 

Following the trial court’s ruling, Dr. Kania testified that 

he believed defendant’s claim of amnesia concerning his 

confession was credible. Defendant told Dr. Kania the only 

thing he recalled from the interrogation was walking into the 

room, being told to calm down, and to wait. Defendant told him 

the next thing he remembered was leaving the interrogation. 

C. Guilt Phase Rebuttal Case

Dr. David N. Glaser and Dr. Dana Chidekel testified for 

the prosecution in rebuttal. Dr. Glaser testified that after 

examining defendant and reviewing a great deal of case 

information, he concluded defendant suffered from “no current 

major mental illness.” Dr. Glaser opined that defendant 

suffered from an avoidant personality disorder “with dependent 

features.” He had low self-esteem, was willing to endure

“unpleasant conditions” to remain near the person on whom he 

was dependent, and was uncomfortable acknowledging his 

feelings. None of these features, in Dr. Glaser’s opinion, made 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

19

defendant more likely to falsely confess. Dr. Glaser also 

evaluated defendant for amnesia. Because defendant was 

unable to recall anything about his interview with police based 

upon cues given from the transcripts, and because total amnesia 

absent a traumatic event or general anesthesia is very 

uncommon, Dr. Glaser concluded that defendant was 

malingering. 

Dr. Chidekel testified that she evaluated defendant and 

administered numerous psychological tests to determine 

whether defendant had a psychological disorder rendering him 

susceptible to falsely confessing. Dr. Chidekel determined 

defendant suffered from “avoidance [sic] personality disorder, 

with self-defeating and dependent features.” Based on the tests 

administered, Dr. Chidekel was unable to diagnose defendant 

with any other neuropsychological condition that interfered 

with his “ability to see, to understand, or to be able to 

communicate effectively.” 

D. Penalty Phase

1. Aggravation

Nick’s mother, Susan Markowitz, testified about the 

impact the loss of her son had on her and on her relatives and 

friends. Nick was one of three children, and his sister had the 

comfort of knowing Nick held his niece before his death, but not 

his sister’s second child, who was not yet born at the time Nick 

died. Susan testified that she twice tried to commit suicide, 

“only to succeed in accumulating a twenty thousand dollar 

hospital bill.” She told the jury, “There is no meaning to life 

without Nick.” 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

20

2. Mitigation

Victoria, defendant’s mother, testified about defendant’s 

dysfunctional upbringing. Victoria was 19 years old when she 

married defendant’s father, James Hoyt, and 21 when she gave 

birth to defendant. Victoria testified that her husband was 

“extremely abusive” to her, and not nice or attentive to the 

children. James grabbed her by the hair and threw her against 

a car and to the ground when she was eight months pregnant 

with defendant, nearly resulting in miscarriage. When 

defendant was four years old, James threw Victoria to the 

ground in front of her children and beat her with a pipe wrench. 

James had to be physically restrained by Victoria’s brother. The 

couple divorced when defendant was five years old and, despite 

the physical abuse, James was awarded custody. Following 

their divorce, Victoria began using cocaine and drinking heavily. 

Victoria’s sister, Anne Stendel Thomas, testified that

defendant’s father and mother verbally abused and threatened 

defendant throughout his childhood. Thomas testified that 

Victoria abused drugs and alcohol from an early age, and her 

alcohol abuse continued and worsened throughout defendant’s 

childhood. Her family was dysfunctional, and Victoria had been 

a depressed child who would spend hours or days alone in her 

room without moving or talking. Thomas testified that 

defendant was a “sweet kid,” and she viewed him—the middle 

child—as a mediator. 

Victoria’s mother, Carol Stendel, testified about Victoria’s 

early childhood. When Victoria was in fourth grade, she would 

stand in class and walk around without being aware of her 

behavior, despite performing at or above grade level in her 

coursework. At age 14, Victoria began seeing a psychiatrist, who 

recommended she be hospitalized due to depression. The family 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

21

decided against treatment. Defendant’s grandfather also 

suffered from depression. 

Stendel made efforts to make her grandchildren feel 

welcome in her home. She worried the children would feel 

abandoned or abused by their parents. She testified that “in 

their young lifetime, nobody, I mean nobody really helped them 

to have safety and comfort.” Her eldest grandchild—defendant’s 

sister, Christina—was a heroin addict. Stendel testified that 

she loved defendant very much. 

At the time of defendant’s trial, his younger brother, 

Jonathan, was serving a 12-year prison sentence for armed 

robbery and conspiracy to commit home invasion. Jonathan 

committed the crimes as a 16 year old but was tried as an adult. 

Jonathan testified about their abusive family, particularly their 

abusive stepmother, and the physical abuse defendant suffered 

at their father’s hands. When asked how he would feel if 

defendant were to receive the death penalty, Jonathan 

responded that he could “hardly take him being in jail period.” 

He continued, “As far as putting him . . . on death row . . . , that’s 

pretty awful.” James, defendant’s father, was asked about the 

effect on him if his son was sentenced to death. He responded 

that “[i]t would be a living nightmare you can’t wake up from.” 

II. DISCUSSION

A. Jurisdictional Claim 

Defendant’s first claim on appeal concerns the superior 

court’s jurisdiction to hear the case. The evidence indicates that 

the murder took place at or near the location where Nick’s body 

was found in the area known as Lizard’s Mouth, which is 

situated within the boundaries of the Los Padres National 

Forest. Defendant contends that because the murder took place 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

22

in a national forest, the case falls within the exclusive territorial 

jurisdiction of the courts of the United States, and thus outside 

the jurisdiction of the superior court. 

Defendant did not raise this argument in the trial court, 

which would ordinarily bar him from raising it on appeal. (See

In re Sheena K. (2007) 40 Cal.4th 875, 880–881.) But if, as 

defendant contends, the superior court lacked territorial 

jurisdiction, then it was without authority to act in the matter 

and should not have entered judgment in the case. (People v. 

Betts (2005) 34 Cal.4th 1039, 1050.) A claim of fundamental 

jurisdictional defect is not subject to forfeiture or waiver. 

(People v. Lara (2010) 48 Cal.4th 216, 225.) We are therefore 

obligated to address the claim. It is, however, without merit.

The fact the murder was committed within the boundaries 

of a national forest does not necessarily mean that the federal 

government, and the federal government alone, was empowered 

to prosecute the crime. As this court explained more than a 

century ago, federal ownership of land does not necessarily 

establish “federal jurisdiction over crimes committed upon it, as 

that fact does not oust the jurisdiction of the state . . . .” (People 

v. Collins (1895) 105 Cal. 504, 509.) “[F]or many purposes a 

State has civil and criminal jurisdiction over lands within its 

limits belonging to the United States,” including the 

punishment of “public offenses, such as murder or larceny, 

committed on such lands.” (Utah Power & Light Co. v. United 

States (1917) 243 U.S. 389, 404; see People v. Rinehart (2016) 1 

Cal.5th 652, 660.) Whether the federal government has 

exclusive jurisdiction over crimes committed on federal lands 

depends on the terms on which the lands were acquired from the 

states. (See Kleppe v. New Mexico (1976) 426 U.S. 529, 542–543

[under enclave clause of the federal Constitution (U.S. Const., 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

23

art. I, § 8, cl. 17), state may cede either exclusive or limited 

jurisdiction to federal government].) Defendant points to no 

authority indicating that the federal government acquired the 

Los Padres National Forest on terms establishing exclusive 

federal jurisdiction to prosecute crimes committed therein.

Defendant’s argument against state criminal jurisdiction 

is rooted in an apparent misreading of California history. The 

Los Padres National Forest was first created by presidential 

proclamation in 1903, when it was known as the Santa Barbara 

Forest Reserve. (Pres. Proc. No. 14, 33 Stat. 2327, Dec. 22, 

1903.)5 As defendant notes, the national forest is made up of 

lands that had been ceded by Mexico in the Treaty of Guadalupe 

Hidalgo, under which title to lands not privately held passed to 

the United States. (Feb. 2, 1848, 9 Stat. 922; see Thompson v. 

Doaksum (1886) 68 Cal. 593, 596.) Defendant claims that 

Congress asserted exclusive jurisdiction over these lands when 

California was admitted to the Union two years later. (Act for 

the Admission of the State of Cal. into the Union, Sept. 9, 1850, 

ch. 50, § 3 (Act for Admission) 9 Stat. 452.)

Defendant is incorrect. The Act for Admission contains no 

provision reserving to the federal government exclusive 

jurisdiction over all public lands ceded by Mexico in the Treaty 

of Guadalupe Hidalgo. (See Coso Energy Developers v. County 

of Inyo (2004) 122 Cal.App.4th 1512, 1522–1523; accord, Martin 

v. Clinton Construction Co. (1940) 41 Cal.App.2d 35, 46; see 

generally Fort Leavenworth R. R. Co. v. Lowe (1885) 114 U.S. 

525, 539.) Defendant relies on the noninterference clause of the 

Act for Admission: “That the said State of California is admitted 

 

5 The Los Padres National Forest took its present name in 

1936. (Exec. Order No. 7501 (Dec. 3, 1936).)
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

24

into the Union upon the express condition that the people of said 

State, through their legislature or otherwise, shall never 

interfere with the primary disposal of the public lands within its 

limits, and shall pass no law and do no act whereby the title of 

the United States to, and right to dispose of, the same shall be 

impaired or questioned.” But this noninterference clause is not 

unique to California (see Van Brocklin v. State of Tennessee

(1886) 117 U.S. 151, 164), and it offers no support for 

defendant’s argument. Suffice it to say, a prohibition on 

interfering with federal title is not the same as a prohibition on 

prosecuting crime. (See Coso Energy, at pp. 1522–1523, citing 

U.S. v. Bateman (N.D.Cal. 1888) 34 F. 86, 88–90.)

In the alternative, defendant argues that California 

relinquished its prosecutorial power to the federal government 

in an 1891 act ceding “exclusive jurisdiction over such piece or 

parcel of land as may have been or may be hereafter ceded or 

conveyed to the United States, during the time the United 

States shall be or remain the owner thereof, for all purposes 

except the administration of the criminal laws of this State and 

the service of civil process therein.” (Stats. 1891, ch. 181, § 1, 

p. 262.) That statute was reenacted in 1943 as Government 

Code section 113, subsequently repealed, and eventually 

reenacted in its current form to provide for the state’s 

acceptance of the retrocession of jurisdiction from the federal 

government of “land within this state.” (Gov. Code, § 113; see 

Stats. 1943, ch. 134, p. 898 [1943 version].) 

The difficulty with this argument is that the cession 

provision on which defendant relies contains an explicit 

exception for “the administration of the criminal laws of this 

State.” (Stats. 1891, ch. 181, § 1, p. 262.) Defendant asserts

that this exception “has been uniformly interpreted as limited 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

25

to the right to serve process,” but that is not what the statute 

says, and defendant offers no support for his unlikely 

interpretation. Nor is there any evidence that Congress 

declined the terms of California’s partial cession of jurisdiction. 

(See S. R. A., Inc. v. Minnesota (1946) 327 U.S. 558, 563.) As 

particularly relevant here, only a few years later Congress 

explicitly recognized the states’ authority to reserve jurisdiction 

over national forest lands: In Title 16 United States Code

section 480, enacted in 1897, Congress provided that the states’ 

jurisdiction “over persons within national forests shall not be 

affected or changed by reason” of the creation of national forests. 

“By this enactment Congress in effect . . . declined to accept 

exclusive legislative jurisdiction over forest reserve lands . . . .” 

(Wilson v. Cook (1946) 327 U.S. 474, 487, italics added.)

In sum, although California ceded the lands comprising 

the Los Padres National Forest to the United States, California 

also retained jurisdiction to administer its criminal laws on the 

ceded lands. Defendant points to nothing in the history of the 

Los Padres National Forest to suggest it was an exception to this 

reservation of criminal jurisdiction. The superior court did not 

err in exercising jurisdiction in this matter.

B. Jury Selection Claims

1. Adequacy of Voir Dire 

Defendant argues the trial court committed several errors 

that resulted in inadequate voir dire of prospective jurors. 

Defendant’s claims lack merit.

a. Denial of Request for Sequestered 

 Voir Dire

Defendant first points to the trial court’s decision to deny 

defendant’s request for sequestered voir dire. Before jury 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

26

selection began, defendant had filed a motion seeking 

sequestered voir dire concerning prospective jurors’ attitudes 

toward the death penalty and regarding the extent of pretrial 

publicity. Defense counsel argued that sequestration would 

avoid the potential contamination of prospective jurors who 

might learn what others had seen or heard in the media. 

Defense counsel also argued sequestered voir dire was necessary 

to determine prospective jurors’ attitudes toward the death 

penalty “alone, separately,” and “face-to-face” with counsel. The 

prosecution opposed the motion on the ground that 

sequestration was unnecessary; jurors’ attitudes and exposure 

to pretrial publicity could be explored through juror 

questionnaires. The trial court denied the motion, agreeing with 

the prosecution that juror questionnaires would adequately 

respond to defendant’s concerns. 

Although defendant now asserts that the trial court erred 

in denying the motion, he offers no substantive argument to 

support the claim and has therefore forfeited it. But even if the 

claim were properly presented for review, we would find no 

error. “ ‘[I]n reviewing a trial court’s denial of a defendant’s 

motion for individual sequestered jury selection, we apply the 

“abuse of discretion standard,” under which the pertinent 

inquiry is whether the court’s ruling “falls outside the bounds of 

reason.” ’ ” (People v. Perez (2018) 4 Cal.5th 421, 443, quoting 

People v. Famalaro (2011) 52 Cal.4th 1, 34.) We remain mindful 

that “ ‘[i]ndividual sequestered jury selection is not 

constitutionally required, and jury selection is to take place 

“where practicable . . . in the presence of the other jurors in all 

criminal cases, including death penalty cases.” ’ ” (Perez, at 

p. 443, quoting Code Civ. Proc., § 223.) Here, defendant has not 

shown that group voir dire was impracticable. He sought 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

27

sequestered voir dire because of concerns about potential juror 

bias, but he has not shown that group voir dire resulted in any 

actual juror bias. (Cf. People v. Vieira (2005) 35 Cal.4th 264, 288 

[“group voir dire may be determined to be impracticable when, 

in a given case, it is shown to result in actual, rather than 

merely potential, bias”].) The trial court acted within its 

discretion in concluding defendant’s concerns could be 

adequately addressed by means other than individual 

sequestered voir dire.

b. Exclusion of Questions from 

 Juror Questionnaire

Defendant next complains that the trial court erred in 

excluding certain questions from the juror questionnaire. The 

parties exchanged proposed juror questionnaires in early 

October 2001. The trial court warned the defense that its 

proposed questionnaire, which was twice as long as the 

prosecution’s, ran the risk of alienating prospective jurors. The 

court explained that the questionnaire “looks pretty formidable 

. . . and the [jurors] may get in a hurry to finish, and you don’t 

really get the kind of answers you want; whereas, if they see 

they’ve got a more limited question[naire] then they’ve got some 

time.” The parties eventually settled on a questionnaire, which 

was provided to four panels of prospective jurors. Before 

distribution, a number of questions, including four that had 

been proposed by the defense to examine jurors’ attitudes 

toward an intentional kidnap murder of a minor (proposed 

questions 78, 79, 98, and 120), were excluded from the 

questionnaire. 

Excluded question number 78 inquired, “What was your 

first reaction when you heard this was a ‘kidnapping murder’ 

case?” Question number 79 inquired whether a prospective 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

28

juror’s “feelings about the issue of kidnapping and murder 

[were] such that” the juror “could not be fair and impartial in 

relation to the defendant” or “to [a] complaining witness,” or 

alternatively if “[n]either statement applie[d].” Question 

number 98 inquired, “During the course of the trial, the 

prosecution may present evidence that includes pictures of 

Mr. Markowitz after he died, and a gun that was used in the 

killing. The prosecution may even display the gun itself. How 

do you think this type of evidence would affect your judgment of 

the case as a whole?” Question number 120 inquired, “During 

this trial you may hear detailed descriptions of kidnapping and 

murder. Would that effect [sic] your ability to be fair and 

impartial?” followed by a short blank line. The question 

continued, “If so, please explain.” 

Defendant argues it was error to exclude these questions. 

Without the ability to question jurors about their attitudes 

toward the death penalty in a case involving the intentional 

kidnap murder of a minor, he argues, the defense had no 

adequate means of determining whether the jurors harbored 

disqualifying biases concerning the commission of such a crime. 

We disagree.

A trial court has “ ‘wide latitude’ ” in the conduct of voir 

dire, including with respect to the questions to be asked and 

their format. (People v. Landry (2016) 2 Cal.5th 52, 83; see Code 

Civ. Proc., § 223.) Voir dire must be “ ‘ “ ‘reasonably sufficient 

to test the jury for bias or partiality.’ ” ’ ” (Landry, at p. 83.) But 

“[i]t is not the purpose of voir dire to ‘ “educate the jury panel to 

the particular facts of the case, to compel the jurors to commit 

themselves to vote a particular way, to prejudice the jury for or 

against a particular party, to argue the case, to indoctrinate the 

jury, or to instruct the jury in matters of law.” ’ ” (Ibid.)
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

29

Here, although defendant suggests otherwise, the 

prospective jurors were informed of the nature of defendant’s

alleged crime. Before adjourning for one week on October 17, 

2001, the court briefly described the case to the prospective 

jurors. The court explained that the crime involved “the alleged 

kidnapping of the 15 year old Nicholas Markowitz, and resulted, 

allegedly, in the killing of Mr. Markowitz.” The court explained 

that the series of events at issue occurred over a period of four 

days and that defendant was charged with kidnapping, first

degree murder, and a special circumstance allegation that the 

murder occurred during the commission of a kidnapping. The 

juror questionnaire then sought to evaluate prospective jurors’ 

attitudes toward the death penalty in such a case, by asking 

jurors whether they would always vote guilty as to first degree 

murder and true as to the special circumstance, so as to 

guarantee a penalty phase, and whether jurors would 

automatically vote for death. 

The additional questions on the subject proposed by 

defendant—which asked, for example, for the jurors’ “first 

reaction” to hearing “this is a ‘kidnapping murder case’ ”—were 

not well-tailored to meaningful further exploration of the jurors’ 

views on the death penalty in this context. And to the extent 

defendant sought the jurors’ predictions about how their 

judgment would be affected by “detailed account[s]” of the crime 

or other prosecution evidence, it is well established that a 

defendant has “no right to ask specific questions that invite[] 

prospective jurors to prejudge the penalty issue . . . [or] to 

educate the jury as to the facts of the case.” (People v. Burgener

(2003) 29 Cal.4th 833, 865, citations omitted.)
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

30

c. Conduct of Voir Dire

Defendant next argues that voir dire was inadequate 

because the questioning was insufficient to determine whether 

any of the jurors held disqualifying views concerning the 

automatic application of the death penalty for the intentional 

kidnap murder of a minor. Defendant argues: “Six jurors, fully 

half the panel, were not questioned at all except [as to] whether 

they could volunteer a basis for their own disqualification.” 

Defendant contends, “Such general inquiries are insufficient 

under long-standing United States Supreme Court case law.” 

(See Morgan v. Illinois (1992) 504 U.S. 719, 734–735.) In 

Morgan, the high court held that the petitioner “was entitled, 

upon his request, to inquiry discerning those jurors who . . . had 

predetermined . . . whether to impose the death penalty.” (Id.

at p. 736.) 

As an initial matter, defendant’s claim that these six 

jurors were not questioned “at all” is inaccurate. The court 

questioned these jurors with some care and permitted the 

parties to do the same. To the extent defendant took issue with 

the nature of the trial court’s questioning, he made no mention 

of it before the court. It is now too late to complain that the 

court’s questioning was inadequate. (People v. Salazar (2016) 

63 Cal.4th 214, 236 [“We have held that ‘a defendant may not 

challenge on appeal alleged shortcomings in the trial court’s voir 

dire of the prospective jurors when the defendant, having had 

the opportunity to alert the trial court to the supposed problem, 

failed to do so.’ ”].)

Defendant contends that the questioning of four 

individual jurors raised “particular concerns about impartiality” 

that were not adequately explored in voir dire because the trial 

court impermissibly restricted questioning. But contrary to 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

31

defendant’s contention, the trial court’s decision to remove the 

four defense-proposed questions from the juror questionnaire is 

not reasonably interpreted as precluding counsel from asking 

follow-up questions regarding prospective jurors’ attitudes 

toward the death penalty in a kidnap-murder case. It appears 

from the record that the defense could have asked additional 

questions of the prospective jurors but did not do so. 

Nor, in any event, does the record support defendant’s 

assertion that the prospective jurors’ answers raised particular 

concerns about impartiality that were not adequately explored 

in voir dire. Defendant asserts that Juror No. 9184’s 

questionnaire suggests she was biased against defendant 

because she responded affirmatively to the question, “Do you 

have any feelings against the defendant solely because the 

defendant is charged with this particular offense?” She also 

responded affirmatively to the question inquiring whether “the 

mere fact that an information was filed against the defendant 

cause[d her] to conclude that the defendant is more likely to be 

guilty than not guilty.” But during voir dire, defense counsel 

asked her to explain these responses. She indicated that she 

initially made a “natural” or “snap judgment” but after “sitting 

here for a while, [she] believe[d] that there’s a due process that 

people should go through now, and [she] underst[ood] a little bit 

more about the situation.” Defense counsel probed further 

whether she meant that her position on these two questions had 

“changed somewhat” in that she “now . . . realize[d] that just 

because someone is charged with an offense, or [had] been 

arrested for an offense that isn’t evidence of anything.” Juror 

No. 9184 agreed with defense counsel that she had “changed 

[her] feelings somewhat on that.” Juror No. 9184 also confirmed 

to the trial court that she had “no reason to think” she could not 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

32

give both sides a fair trial, that she was prepared to follow the 

law, and that she would accord defendant the presumption of 

innocence. 

Defendant argues that Juror No. 8919’s questionnaire 

responses raised particular concerns because Juror No. 8919 

“[d]isagree[d] somewhat” with the statement, “ ‘Anyone who 

intentionally kills another person should always get the death 

penalty.’ ” Juror No. 8919 added that “self defense can be seen 

as ‘intentional.’ ” Juror No. 8919 also “[d]isagree[d] somewhat”

with the statement, “ ‘Anyone who intentionally kills another 

person should never get the death penalty,’ ” adding, “should vs. 

shall.” Taken together, these responses do not indicate, as 

defendant argues, that Juror No. 8919 would vote for the death 

penalty for all intentional murders other than self-defense. Nor 

did voir dire raise such concerns; on the contrary, the juror 

responded affirmatively to questions as to whether he could deal 

“fairly and impartially” with the question of penalty. 

Defendant similarly argues that Juror No. 0555’s 

questionnaire responses raised concerns because she indicated 

she “[a]gree[d] somewhat” with the statement, “Anyone who 

intentionally kills another person should always get the death 

penalty” and “[s]trongly disagree[d]” with the statement,

“Anyone who intentionally kills another person should never get 

the death penalty.” But Juror No. 0555 also stated she would 

consider both possible penalties if the case reached the penalty 

phase and that she would vote for life imprisonment in an 

appropriate case. Defendant elected not to question Juror 

No. 0555 on these subjects, and he points to nothing in her voir 

dire responses to indicate that the juror would not be impartial. 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

33

Finally, defendant asserts that Juror No. 6619 raised 

particular concerns because, among other things, she wrote in 

her juror questionnaire that, philosophically, she was strongly 

in favor of the death penalty and “agreed somewhat” that 

anyone who kills intentionally should always receive the death 

penalty. But Juror No. 6619 also said she was amenable to 

either punishment, depending on the evidence, and affirmed 

that she would vote for life imprisonment in an appropriate case. 

During voir dire, defense counsel probed some of Juror No. 

6619’s responses concerning her views on the death penalty. 

Although Juror No. 6619 had initially offered “self-defense” and 

“automobile accidents” as examples of intentional killings where 

the death penalty would not be warranted, counsel then clarified 

that the question was whether there would be a situation in 

which the juror could envision reaching the penalty phase of a 

trial, after finding defendant “guilty of first-degree murder,” and 

determining “life imprisonment without parole to be the most 

appropriate sentence.” Juror No. 6619 responded affirmatively, 

at which point defense counsel passed for cause, thereby 

waiving any claim of juror bias. (People v. Zaragoza (2016) 1 

Cal.5th 21, 59.) To the extent defendant now argues voir dire 

was inadequate to determine whether Juror No. 6619 was 

capable of serving as an impartial juror, we see no merit to the 

claim.

2. Excluding Prospective Juror F.G. for 

 Cause 

Defendant contends the trial court erred by excluding 

Prospective Juror F.G. for cause. We hold the court acted within 

its discretion.

F.G. was a musician who had performed at many prisons 

and who had also worked on antidrug programs with the health 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

34

department and the county sheriff’s department. During voir 

dire, the trial court asked F.G. whether any of these experiences 

would preclude him from being a fair juror, “knowing what the 

juror’s job is.” F.G. replied, “No, I don’t think so. The only caveat

I would put on that is that I have . . . witnessed firsthand the 

results of the sentencing. And I have spoken with people who 

have been, for instance, sentenced for life, with no chance of 

parole and stuff like that. And that—it’s a very heavy burden 

to judge someone. So that’s all I can say.” The trial court 

explained to F.G. that the concept of punishment and penalty 

had no place in the determination of a defendant’s guilt and 

asked whether F.G. understood those distinctions. F.G. 

indicated his assent. 

The court inquired whether, in light of F.G.’s experience 

working with people who had received life sentences, he “would 

be inclined to consider the potential sentence in determining the 

issue of guilt or innocence” and whether those experiences 

“would influence [his] view of the facts.” F.G. replied that he 

“would like to think it wouldn’t, but it hangs on me very heavily, 

morally.” The court clarified that “the question is, if you wind 

up on this jury, are you going to deliberate with the other jurors, 

consider the facts, decide the facts based on the evidence, 

without consideration of any potential sentence that may be 

imposed, if you get to that phase of the case. That’s the 

question.” F.G. responded, “I would have to say that no matter 

what I did, that would be a factor.” The court excused the 

prospective juror. 

Criminal defendants are constitutionally entitled to a trial 

before an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal. 

Const., art. I, § 16; see Duncan v. Louisiana (1968) 391 U.S. 145, 

149–150; see also Turner v. Louisiana (1965) 379 U.S. 466, 471;
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

35

People v. Black (2014) 58 Cal.4th 912, 916.) But the state also 

has a vital interest in ensuring cases are tried before juries able

to make decisions concerning punishment “within the 

framework state law prescribes.” (Uttecht v. Brown (2007) 

551 U.S. 1, 9.) “[I]n determining whether the removal of a 

potential juror would vindicate the State’s interest without 

violating the defendant’s right, the trial court makes a judgment 

based in part on the demeanor of the juror, a judgment owed 

deference by reviewing courts.” (Ibid.) “When the prospective 

juror’s answers on voir dire are conflicting or equivocal, the trial 

court’s findings as to the prospective juror’s state of mind are 

binding on appellate courts if supported by substantial 

evidence.” (People v. Duenas (2012) 55 Cal.4th 1, 10.) A trial 

court has the power, though not the obligation, to excuse biased 

prospective jurors on its own motion. (People v. Cunningham

(2001) 25 Cal.4th 926, 981 [upholding sua sponte excusal of a 

prospective juror for cause]; People v. Bolin (1998) 18 Cal.4th 

297, 315–316 [no duty to excuse on court’s own motion].) 

Although this was a capital trial, here it was F.G.’s views 

toward a life sentence, not the death penalty, that raised 

concerns about his ability to serve as a juror. The court engaged 

in a colloquy with F.G., probing his responses to questions 

suggesting an inability to put aside considerations of 

punishment in determining guilt. F.G. unequivocally explained 

that the potential penalty of life imprisonment “would be a 

factor” in determining guilt. The trial court concluded F.G. 

would be unable to follow the trial court’s instructions and 

evaluate the evidence of defendant’s guilt without considering 

the potential penalty, and for that reason determined dismissal 

was warranted. Substantial evidence supports the trial court’s 

determination. (People v. Duenas, supra, 55 Cal.4th at p. 10.) 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

36

Defendant raises several challenges to this conclusion, but 

none is persuasive. First, defendant argues it was improper for 

the trial court to excuse F.G. absent a request from one of the 

parties. Our cases, however, do not forbid a trial court from 

excusing a juror for cause on its own motion (see People v. 

Cunningham, supra, 25 Cal.4th at p. 981), and defendant offers 

no persuasive reason for us to create such a bar.

Defendant next argues the excusal was improper under 

Adams v. Texas (1980) 448 U.S. 38, which held that the federal 

Constitution prohibits the exclusion for cause of a potential 

juror because he or she is unable to state under oath that the 

mandatory sentence of death or life imprisonment “ ‘will not 

affect his [or her] deliberations on any issue of fact.’ ” (Id. at 

p. 42, quoting Tex. Pen. Code Ann. § 12.31.) The court explained 

the effect of the requirement was to exclude from the jury pool 

those who stated “they would be ‘affected’ by the possibility of 

the death penalty, but who apparently meant only that the 

potentially lethal consequences of their decision would invest 

their deliberations with greater seriousness and gravity or 

would involve them emotionally.” (Adams, at pp. 49–50.) 

This case presents no comparable circumstances. 

Although defendant argues otherwise, in this case the trial court 

reasonably understood F.G. to say not merely that his prior 

experiences and views would cause him to perform his duties as 

a juror with a particular sense of seriousness and gravity, but 

that they would undermine his ability to impartially evaluate 

the evidence of defendant’s guilt. Adams does not bar the 

excusal of such a juror. (See People v. Ashmus (1991) 54 Cal.3d 

932, 963 [Adams does not forbid excusal of juror who admitted 

that his views on the death penalty would cause him to apply a 

standard of proof higher than proof beyond a reasonable doubt].) 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

37

Defendant also attempts to analogize this case to People v. 

Heard (2003) 31 Cal.4th 946, in which we held that a 

prospective juror was dismissed without adequate basis after

assuring the court he would be able to follow the law. (Id. at 

p. 964.) The analogy is inapt; here, F.G.’s responses to voir dire

indicated he would be unable to perform the duties of a juror 

insofar as he informed the court he could not follow the court’s 

instructions to determine guilt without taking into account the 

possible penalty. Substantial evidence supports the trial court’s 

dismissal, and we are presented with no reason to upset that 

decision on appeal. (People v. Duenas, supra, 55 Cal.4th at 

p. 10.) 6

C. Guilt Phase Claims

1. “Second Kidnap” Theory 

Defendant contends there was a material variance 

between the kidnap alleged in the indictment and the 

prosecutor’s argument regarding his actual offense, rendering 

him unable to defend against the charge in violation of his rights 

 

6 At oral argument, defense counsel also contended 

Prospective Juror F.G.’s responses to the questionnaire 

indicated his willingness to follow the court’s instructions in 

general. He contended that dismissal was not warranted 

because, in their oral exchange, the court did not specifically 

advise F.G. that the court’s instructions would include an 

instruction to decide guilt based on the evidence presented, 

without allowing the potential penalty to factor into the jurors’ 

evaluation of the facts of the case. Based on our review of the 

record, we see no genuine potential for confusion on this point. 

It was not necessary for the trial court to explicitly advise F.G. 

that a juror’s determination of the facts should be based solely 

on the evidence presented.
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

38

under the Fifth and Sixth Amendments to the United States 

Constitution. We reject the argument.

a. Background

Defendant, along with Skidmore, Rugge, Pressley, and 

Hollywood, was charged by indictment with kidnapping for 

purposes of ransom or extortion. Specifically, the charging 

document stated that “[o]n or about August 6, 2000 through 

August 9, 2000, in the county of Santa Barbara, the said 

defendants . . . did willfully, unlawfully, and forcibly detain, 

take, carry away, and kidnap NICHOLAS SAMUEL 

MARKOWITZ, age 15, for purposes of ransom or to commit 

extortion, or to extract money from another person, in violation 

of Penal Code section 209(a).” Five special allegations were 

charged along with the kidnapping count, including that the 

victim suffered death in the course of the kidnapping and that 

defendant intentionally discharged a firearm resulting in Nick’s 

death.

7

 

During his closing argument, defense counsel maintained 

that defendant had taken no part in the charged kidnapping, 

because that kidnap, which began on August 6, had ended before 

defendant drove to Santa Barbara. Specifically, counsel argued 

that the kidnap ended when the victim could have fled his 

captors—but did not—at several points during his captivity. 

“[T]his kidnapping . . . ended before Mr. Hoyt ever spoke with 

Jesse Hollywood on the 8th [of August, 2000] to take a bag up to 

Santa Barbara. The kidnapping was done.” In response, the 

 

7 Of the three remaining special allegations, two related to 

Pressley’s age and the last stated that Skidmore, Rugge, 

Pressley, and Hollywood were principals in a felony in which a 

coprincipal, defendant, possessed an assault weapon.
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

39

prosecutor argued that even if the defense was correct that the 

kidnap concluded when Nick could have fled, defendant was 

guilty of kidnap because “independent of the kidnapping that 

took place on the 6th where [the victim] was brought from Los 

Angeles County to Santa Barbara, there is as well the 

kidnapping that took place in the late evening hours of the 8th, 

into the early morning hours of the 9th of August, where he’s 

taken from the motel, perhaps taken as well to Rugge’s house at 

some point, we’ll never know, and then taken up to the location 

on West Camino Cielo and there he was killed. That we know 

is an independent kidnapping. And certainly, he would be guilty 

of that offense.” 

The prosecutor pointed out before the jury that defense 

counsel’s argument never addressed whether defendant would 

be guilty of the kidnap based on movement of the victim from 

the motel to the murder site. Defense counsel objected at this 

point, noting that only one count of kidnapping was charged. 

The following colloquy occurred:

“THE COURT: He said the count, the kidnapping for—

count, relates only to the incident of the—I’ll have to look. Isn’t 

that your point?

“MR. CROUTER [Defense]: That there is only one count 

charged.

“MR. ZONEN [Prosecution]: Well, you have to look at the 

date on the pleading there, and the time, and whether or not it 

governs an entire period of time. And I believe in an Indictment 

you’ll find that it covers the period of time from the 6th through 

the 9th.

“THE COURT: Let’s see. That’s the way the count is 

drawn. August 6th through August 9th.
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

40

“MR. ZONEN: See, a kidnapping can go over a period of 

time, and in this case it did. That kidnapping took place from 

the 6th through the 9th. It is one count, but it’s one count that 

covers the entirety of his movement from the time he left at the 

location near his residence in that area, I think near Ingomar 

and Platt in San Fernando Valley, to the point where he was 

killed up in Santa Barbara County. That’s all covered in the

pleading in that one count as a kidnapping.” 

Defense counsel raised no further argument or objection, 

and the prosecutor continued his rebuttal. 

b. Discussion

i. Material Variance

“ ‘Both the Sixth Amendment of the federal Constitution 

and the due process guarantees of the state and federal 

Constitutions require that a criminal defendant receive notice 

of the charges adequate to give a meaningful opportunity to 

defend against them.’ ” (People v. Williams (2013) 56 Cal.4th 

630, 681.) Notice is supplied in the first instance by the 

accusatory pleading. (E.g., People v. Jones (1990) 51 Cal.3d 294, 

317.) But a variance between the pleading and proof at trial will 

be disregarded if it is not material. (People v. LaMarr (1942) 20 

Cal.2d 705, 711.) “The test of the materiality of a variance is 

whether the indictment or information so fully and correctly 

informs the defendant of the criminal act with which he is 

charged that, taking into consideration the proof which is 

introduced against him, he is not misled in making his defense, 

or placed in danger of being twice put in jeopardy for the same 

offense.” (Ibid.; accord, People v. Maury (2003) 30 Cal.4th 342, 

427–428; People v. Arras (1891) 89 Cal. 223, 226.)
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

41

Here, the indictment alleged defendant and his 

codefendants committed an aggravated kidnap (Pen. Code, 

§ 209, subd. (a)) by forcibly abducting Nick on August 6, 2000,

and detaining him until he was murdered on August 9, 2000. 

The jury was instructed on the elements of aggravated kidnap

and on the lesser included offense of simple kidnap. The 

aggravated kidnap statute provides in pertinent part, “Any 

person who . . . kidnaps or carries away another person by any 

means whatsoever with intent to hold or detain . . . that person 

for ransom, reward or to commit extortion or to exact from 

another person any money or valuable thing, or any person who 

aids or abets any such act, is guilty of a felony . . . .” (Pen. Code, 

§ 209, subd. (a).) Simple kidnap, in turn, requires proof of three 

things: “that (1) the defendant took, held, or detained another 

person by using force or by instilling reasonable fear; (2) using 

that force or fear, the defendant moved the other person, or 

made the other person move a substantial distance; and (3) the 

other person did not consent to the movement. ([Pen. Code,]

§ 207, subd. (a).)” (People v. Burney (2009) 47 Cal.4th 203, 232.)

Defendant argues the prosecution crafted a new theory of 

kidnap during the rebuttal phase of closing argument for the 

dual purposes of surprise and to have the last word. This new 

theory was that there were two distinct kidnap offenses in this 

case, the first one commencing on August 6, 2000, and the 

second on August 8, 2000. Defendant argues that because he 

was charged with a single kidnap offense in the indictment, the 

“second” kidnap constitutes a material variance from the 

charged offense in violation of his Fifth and Sixth Amendment 

rights. 

The argument lacks merit. As the prosecution correctly 

explained in the trial court, the indictment charged defendant
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

42

and his codefendants with a continuing kidnapping offense that 

extended over a period of time. That period included the time 

the victim left his home and was taken to Santa Barbara, the 

time he spent in Santa Barbara, and the time he was taken from 

locations within Santa Barbara to the site of his murder. True, 

defense counsel theorized that the kidnapping was interrupted 

by a period during which Nick could have eluded his captors at

some point before defendant became involved on August 8, 2000. 

But the indictment put defendant on notice that the prosecution 

intended to prove kidnapping based on the events of August 8 

and 9, 2000, as well. Defendant could not have been misled by 

his own “interruption” theory into believing otherwise. There 

was no fatal variance between indictment and proof, and cases 

finding fatal variances under dissimilar circumstances do not 

help defendant’s case. (Cf. U.S. v. Adamson (9th Cir. 2002) 291 

F.3d 606, 615–616; U.S. v. Tsinhnahijinnie (9th Cir. 1997) 112 

F.3d 988, 990.) 

ii. Alleged Hearsay

A corollary of defendant’s “two kidnap” theory is that there 

were also two distinct conspiracies, the first involving the 

August 6 to 8 kidnapping of Nick and the second involving a 

separate and unrelated agreement to kidnap and murder Nick. 

Under this theory, defendant argues that the trial court erred 

by admitting various out-of-court statements by Hollywood, 

Rugge, Skidmore, and Pressley, as testified to by various 

witnesses at trial, because the statements were not admissible 

as statements of coconspirators in the only conspiracy and 

kidnapping defendant participated in, and therefore constituted 

inadmissible hearsay.
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

43

Coconspirators’ hearsay statements may be admitted if 

there is independent evidence of a conspiracy and the party 

seeking to admit the hearsay shows the speaker was involved in 

the conspiracy when the hearsay statement was made, the 

statement was made in furtherance of the conspiracy, and the 

person against whom the statement is being offered either was 

participating in, or later would participate in, the conspiracy. 

(Evid. Code, § 1223; In re Hardy (2007) 41 Cal.4th 977, 995–

996.) Here, the trial court permitted introduction of hearsay 

statements testified to by Affronti, Hoeflinger, Carpenter, 

Adams-Young, Sheehan, and Hogg regarding Nick’s time in 

Santa Barbara. As generally set forth above, these witnesses

testified about Nick’s kidnap and captivity. Although defendant 

alleges these statements were not in furtherance of the 

conspiracy to kidnap Nick, the trial court reasonably concluded 

otherwise. We find no error.

As an initial matter, it is unclear that defendant has 

preserved his objections to the introduction of the statements: 

When the statements in question were introduced, defendant 

generally failed to object on the bases he now raises on appeal. 

For example, although he raised a “hearsay upon hearsay” 

objection at trial to Adams-Young’s testimony regarding a 

statement made by Pressley after she had expressed concern to 

him about Nick’s continued presence in Santa Barbara, defense 

counsel stated, “And I don’t disagree with the . . . in furtherance 

of the conspiracy” theory of admission, “but I still have the 

problem that there appears to be a second level of hearsay.” The 

court overruled defendant’s objection.

“Because the question whether defendant[] . . . preserved 

the[] right to raise this issue on appeal is close and difficult, we 

assume that defendant[] . . . preserved the[] right, and proceed 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

44

to the merits.” (People v. Champion (1995) 9 Cal.4th 879, 908, 

fn. 6.) Having done so, we conclude the trial court committed no 

error in admitting the hearsay statements recounted by these 

witnesses. Defendant argues that the conspiracy he entered 

into with Hollywood to murder Nick was a wholly separate 

enterprise from the one Rugge and others entered into to kidnap 

Nick, and the statements admitted regarding Nick’s capture 

were therefore inadmissible with regard to Nick’s murder and 

defendant’s involvement therewith. The trial court was not 

compelled to so finely parse this case. The evidence showed that 

Hollywood, the mastermind, had his friends kidnap Nick to 

exact a ransom from Nick’s brother. When Hollywood learned 

that the potential penalty for Nick’s kidnap was too high a price 

for him to pay, he asked defendant to kill Nick. The hearsay 

statements that were admitted, which tell the story of Nick’s 

initial capture and subsequent captivity, were relevant to 

demonstrating this overarching conspiracy, and were made in 

furtherance of the conspiracy.

iii. Jury Questions

Defendant also argues the court’s responses to juror 

inquiries regarding whether one or two kidnaps were alleged, 

and the relevance of conspiracy, ultimately worked to direct a 

verdict on the kidnap count and kidnap-murder specialcircumstance charges. 

During the second day of deliberations, the jury posed a 

question about whether one or two kidnapping events occurred 

and asked about the relevance of the conspiracy instruction. 

The jury asked whether “the kidnapping [is] a continuous, single 

event” and “what are the correct dates” of the kidnapping. The 

court explained, “[T]hat was one of the issues in the case that I 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

45

gave you an instruction when a kidnapping terminates, and 

there was some, the defense—there was some argument that the 

initial kidnapping had already terminated and he was free to go, 

remember that, and then there was some subsequent argument 

that the facts supported a second kidnapping based upon what 

you found there, and so that’s really one of the issues that you 

have to decide. I can’t answer that question for you. I can just 

point out to you that that was one of the disputed issues in the 

case. One, was the kidnapping that happened in the San 

Fernando Valley still ongoing when this happened. And there 

was argument about that. And then, even if it wasn’t, was there 

another kidnapping. Those were the issues that were presented 

to the jury. And I can only remind you of what those issues were. 

I can’t answer that question for you, because I’d be stepping in 

and I’d have to send all of you home because I’d be taking over 

your responsibility.” The foreperson responded, “[T]hat’s 

helpful in itself.” Defense counsel was present and raised no 

objection. 

The court also responded to the jury’s question regarding 

the dates of the kidnapping offense, noting that the dates the 

jury had to keep in mind were August 6 and 9, 2000. The court 

noted, “[A]gain, whether or not the kidnapping was ongoing 

through that period or there were two kidnappings or there was 

only one that had terminated, those are the dates that you have 

to keep in mind, the 6th through the 9th.” 

The jury also asked about the lesser included offense of 

simple kidnap under Penal Code section 207. The court 

reminded the jury to consider defendant’s involvement only 

when considering the elements of the offense. The jury then 

asked, “So being a coconspirator has nothing to do with it?” The 

court reminded the jury that defendant was not charged with 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

46

conspiracy, and the jury was instructed regarding 

coconspirators to give context to certain statements made. The 

jury thanked the court and indicated its question had been 

resolved. 

Defendant argues the trial court’s responses were faulty

insofar as they instructed the jury they could convict on the 

basis of the prosecution’s “second kidnap” theory; failed to 

clarify that the jury could not convict defendant of the kidnap if 

the movement of the victim during this kidnapping was 

incidental to the murder (People v. Brents (2012) 53 Cal.4th 599, 

612); and failed to clarify that defendant could not be held 

“strictly liable” for an earlier kidnap by other participants. To 

the extent, if any, the court’s response caused confusion, 

defendant’s failure to object forfeits any claim of error on appeal. 

(See People v. Tully (2012) 54 Cal.4th 952, 1061.) In any event, 

there was no significant risk of confusion. The trial court 

correctly advised the jury it could convict defendant of 

kidnapping based on his own involvement in the transportation 

of the victim to the site where he was murdered. Under the

circumstances of the case, there was no danger the jury would 

misunderstand the trial court as advising that it could hold 

defendant “strictly liable” for the earlier abduction of Nick on 

August 6; no such argument was raised at trial. Defendant’s 

argument that the trial court’s responses worked to direct a 

verdict on the kidnap count and kidnap-murder specialcircumstance charges is without merit.

iv. Instructional Issues

Defendant argues that a unanimity instruction was 

warranted or could have cured whatever error the court created 

through its responses to juror questions. Such instructions 
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Opinion of the Court by Kruger, J.

47

“generally appl[y] to acts that could have been charged as 

separate offenses, and . . . must be given ‘ “only if the jurors 

could otherwise disagree which act a defendant committed and 

yet convict him of the crime charged.” ’ ” (People v. Seaton (2001) 

26 Cal.4th 598, 671.) Here, for reasons already explained, there 

was no realistic possibility of disagreement. The indictment 

charged a continuous course of conduct—albeit one involving 

various actors at different times—that began with Nick’s 

abduction on August 6, 2000, and culminated with his murder 

on August 9, 2000. The evidence at trial showed that 

defendant’s involvement began on August 8 when he took and

transported Nick to the location where he was killed. The trial 

court advised the jury that it was to evaluate only defendant’s 

involvement when determining defendant’s guilt. The trial 

court was not obligated to give a unanimity instruction. 

Finally, we note that while defendant argues the jury 

should have been instructed with CALJIC No. 9.56,8setting 

forth the asportation-by-fraud defense, he neither requested the 

instruction nor objected to the trial court’s failure to give the 

instruction. The trial court had no sua sponte duty to give the 

instruction because the instruction was inconsistent with the 

 

8 CALJIC No. 9.56 provides: “When one consents to 

accompany another, there is no kidnapping so long as the 

condition of consent exists. [¶] To consent, a person must: [¶] 

1. Act freely and voluntarily and not under the influence of 

threats, force, or duress; [¶] 2. Have knowledge that [he] [she] 

was being physically moved; and [¶] 3. Possess sufficient 

mental capacity to make an intelligent choice whether to be 

physically moved by the other person [or persons]. [¶] [Being 

passive does not amount to consent.] Consent requires a free 

will and positive cooperation in act or attitude.”
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

48

theory of the defense. There was thus no error in connection 

with this instruction.

2. Admission of Custodial Confession at 

 Trial 

Defendant contends the trial court erred by admitting the 

audio and videotapes of his custodial confession to killing Nick, 

which he claims were involuntary and were obtained in violation 

of his Miranda rights. The trial court did not err in admitting 

defendant’s confession.

a. Background

While housed at the Santa Barbara jail, defendant spoke 

twice with his mother. Evidently believing her son to be 

innocent and taking the blame for someone else’s crime, she 

suggested he talk to the detectives to “spill [his] guts and get 

out.” Defendant apparently heeded her advice and asked to 

speak with a detective. 

Defendant then spoke with Detective West and Sergeant 

Reinstadler, who began by confirming that defendant had 

initiated the conversation and reminding him of his Miranda

rights. Defendant waived his Miranda rights orally and in 

writing. After conversing back and forth about the crime, Hoyt 

told the detectives that he had asked to speak with them to “say 

that this picture that everybody’s painting of me is not me.” 

Detective West responded, “Well, tell us who you are. Tell us 

how this went down.” Hoyt told them he could not do that and 

instead asked, “Do you mind if I go back to my cell and think 

about tonight and talk to you guys tomorrow because I know my 

arraignment is Monday?” The detectives responded by telling 

defendant, “Once you’re arraigned, we can’t talk to you. That’s 

the bottom line. I mean, if you want to tell us something, I’m 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

49

being honest with you, this is your opportunity to do it. This is 

it.” Defendant replied, “There’s no way I can talk to you 

tomorrow?” Sergeant Reinstadler explained, “No. I know why,” 

continuing, “you won’t want to talk to us tomorrow because 

somebody’s gonna get to you, telling you not to talk to us.” 

When the detectives asked if he was okay, defendant 

responded: “I mean, I’m going down for life.” Sergeant

Reinstadler replied: “There’s a difference between life and the 

death penalty. And everything else in between. All we want is 

the truth.” The interview continued, and after additional 

discussion, defendant explained how he had become involved in 

the crimes. Defendant explained to the detectives he was 

indebted to Hollywood and was told by an intermediary (whom 

defendant did not name) that he could erase his debt if he went 

to “take care of somebody,” which defendant understood to mean

killing him. The intermediary did not tell defendant the name 

of his intended victim but relayed a location—Santa Barbara. 

Defendant drove Sheehan’s car to the Lemon Tree Inn in Santa 

Barbara, where he found a gun waiting. 

When the detectives asked what happened next, 

defendant said, “I think I’m going to stop there for now,” and 

asked for a glass of water. The detectives complied with the 

request for water and asked defendant whether he was asking 

to take a break or “telling us you don’t want to talk anymore, 

period.” Defendant replied that he would like an overnight 

break. The detectives responded that that would be “[t]oo late,” 

and told defendant that “[o]nce a lawyer contacts you, we are 

precluded from speaking with you anymore, period.” Defendant 

asked whether a lawyer would be contacting him the next day, 

and the detectives replied, “Oh, I’m sure. It’s normal. It’s their 

job.” Defendant told the detectives his mom was unable to afford 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

50

an attorney for him, so he would have to work with a public 

defender. While the detectives assured him “[t]hat’s fine,” 

defendant worried aloud, “[A] public defender, I’m going 

nowhere with that one.” The detectives then reminded 

defendant, “You wanted to talk to us, man.” Defendant 

responded, “And have I helped you out at all?” The detectives 

told him that there were still pieces of the puzzle to fill in, and 

the conversation continued. 

Defendant admitted to feeling sorry for “[t]hat kid that I 

buried.” He told the detectives he had not put the duct tape on 

Nick’s mouth. When the detectives said Rugge had told them 

otherwise, defendant responded: “I love this one. The only thing 

I did was kill him.” 

After answering additional questions about Pressley’s 

involvement, defendant said: “All right. You guys I think I want 

to stop there. I think you guys got a pretty good picture.” 

Detective West agreed: “Yeah, I’ve got a good picture, and it’s 

pretty grim for you . . . . I’m sorry, uh, that that’s what you 

painted for me.” Sergeant Reinstadler asked defendant whether 

there was “ever a time when right before you pulled the trigger 

that you just thought, you know, I shouldn’t do this? This is 

wrong.” Defendant replied: “Hell, yes. Right before.” The 

conversation ended not long thereafter.

Before trial, defendant sought to suppress the confession, 

arguing that it was coerced and obtained in violation of 

Miranda. Defense counsel argued that Sergeant Reinstadler 

and Detective West threatened defendant with the death 

penalty and urged him to correct the impression that he was a 

“stone-cold killer.” The trial court concluded the confession was 

not coerced, explaining the detectives’ reference to the death 
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Opinion of the Court by Kruger, J.

51

penalty “was actually in response to the defendant’s initiation of 

the subject of penalty. He said something about the fact that he 

was looking at life and then the detective said, ‘Well, that’s 

better than death or what’s in-between,’ or something like that, 

this was not a subject that was pursued after that. And it 

doesn’t appear to me that that reference was anything that 

resulted or led to Mr. Hoyt’s confession.” 

The trial court also examined whether defendant’s 

admission was coerced because he was called “a stone-cold 

killer” during the interrogation. The court reasoned that use of 

that phrase, “in and of itself” was not sufficient to conclude his 

admission was coercively obtained. The court acknowledged the 

argument’s logic: that if a person is truly a killer, that person 

would receive the death penalty and would be required to 

demonstrate facts in mitigation in order to avoid that 

consequence. The court did not find the detectives’ use of the 

phrase “stone-cold killer” to have been used as a threat. Rather, 

the court concluded, it was somewhat factual and therefore was

not coercive. 

The superior court next examined defendant’s invocation 

of his right to remain silent, concluding that the transcript as a 

whole reflected defendant’s desire to continue talking. The court 

explained that defendant “was not expressing a wish to 

terminate the interview, to terminate his colloquy with the 

police, he was temporizing it. He didn’t quite know what he 

wanted to do, and he was sort of postponing the inevitable, but 

he didn’t really want to stop talking because he didn’t quit 

talking.” (Italics added.) The court continued, “I don’t think the 

officers ever tried to coerce [defendant] into further discussions. 

I don’t think they attempted to question him until after it was 

obvious that he wanted to resume the discussion. So, I don’t find 
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Opinion of the Court by Kruger, J.

52

that there’s been any violation of Miranda as far as [defendant] 

is concerned.” 

The court concluded that defendant’s statement to the 

detectives was admissible because he did not “ever vent[] any 

real interest in terminating [his] interview.” The court noted 

that when defendant sought an overnight break, the detectives 

correctly informed him that he would be provided with an 

attorney, and that attorney might advise him not to continue 

speaking to the detectives. Because defendant continued 

talking despite having a basis to cease doing so and because 

nothing the detectives told defendant was misleading, the court 

concluded defendant’s Miranda rights were not violated. Later 

in the colloquy, the parties acknowledge that defendant says, 

“Yeah, I think I want to stop there, I think you guys got a pretty 

good picture.” The court did not explicitly rule on whether any 

statement made following defendant’s invocation was 

admissible because the prosecution agreed to terminate the tape 

at that point, and the court acknowledged this evidence, the socalled “Side-B” evidence, was not going to be admitted unless 

defendant elected to testify, which had not yet been determined 

at the time the court evaluated this statement. Accordingly, the 

trial court did not expressly rule on whether the statement that 

followed this third invocation was admissible under Miranda. 

b. Discussion

The Fifth Amendment provides, “No person . . . shall be 

compelled in any criminal case to be a witness against himself

. . . .” (U.S. Const., 5th Amend.) “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 
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Opinion of the Court by Kruger, J.

53

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 (id. at 

pp. 444–445).” (People v. Jackson (2016) 1 Cal.5th 269, 338–

339.) During such an interrogation, if a defendant invokes 

either the right to remain silent or the right to counsel, “ ‘ “the 

interrogation must cease.” ’ ” (Id. at p. 339.) “ ‘[A]n accused . . . 

having expressed his desire to deal with the police only through 

counsel, is not subject to further interrogation by the authorities 

until counsel has been made available to him, unless the accused 

himself initiates further communication, exchanges, or 

conversations with the police.’ (Edwards v. Arizona (1981) 451 

U.S. 477, 484–485.” (Jackson, at p. 339.) “[W]hen, as in this 

case, a defendant has waived his Miranda rights and agreed to 

talk with police, any subsequent invocation of the right to 

counsel or the right to remain silent must be unequivocal and 

unambiguous.” (People v. Sanchez (2019) 7 Cal.5th 14, 49

(Sanchez).) 

“An involuntary confession may not be introduced into 

evidence at trial.” (People v. Carrington (2009) 47 Cal.4th 145, 

169 (Carrington).) It is the prosecution’s burden to establish by 

a preponderance of the evidence that the defendant’s confession

was voluntary. (Ibid.) “In determining whether a confession is 

involuntary, we consider the totality of the circumstances to see 

if a defendant’s choice to confess was not ‘ “ ‘ “essentially 

free” ’ ” ’ because his will was overborne by the coercive practices 

of his interrogator.” (People v. Spencer (2018) 5 Cal.5th 642, 

672.) A “confession [is] not ‘essentially free’ when a suspect’s 

confinement was physically oppressive, invocations of his or her 

Miranda rights were flagrantly ignored, or the suspect’s mental 

state was visibly compromised.” (Ibid.)
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

54

A confession obtained in violation of Edwards and 

Miranda is likewise inadmissible during the prosecution’s casein-chief. (People v. Peevy (1998) 17 Cal.4th 1184, 1204–1205.) It 

is the prosecution’s burden to establish by a preponderance of 

the evidence that the defendant’s waiver of his Miranda rights 

was knowing, voluntary, and intelligent. (People v. Jackson, 

supra, 1 Cal.5th at p. 339.) In reviewing a trial court’s denial of 

a suppression motion, we accept its resolution of factual 

disputes when supported by substantial evidence and determine 

independently whether, on those facts, a challenged statement 

was obtained illegally. (Ibid.)

Defendant raises several challenges to the admission of 

his confession to the detectives. Preliminarily, he argues that 

the trial court erred by failing to hold an evidentiary hearing 

before denying his motion to suppress his confession. Defendant

concedes the trial court asked if he wanted such a hearing and 

he declined. The trial court accordingly decided the suppression 

issue based on the transcripts and tapes the parties had 

submitted to the court. We find no abuse of discretion on this 

score.

Defendant argues that his confession is inadmissible 

under Edwards v. Arizona, supra, 451 U.S. 477, because he 

requested counsel on arrest and did not voluntarily initiate 

further contact with the detectives. The record is to the 

contrary: It shows defendant did initiate further contact by

requesting an audience with Detective West and Sergeant 

Reinstadler, who then renewed Miranda warnings before 

proceeding with the interview. Indeed, West reminded 

defendant before the interview began in earnest that defendant 

had initially asked to speak with an attorney and confirmed that 
PEOPLE v. HOYT

Opinion of the Court by Kruger, J.

55

he now wanted to make a statement to law enforcement. 

Defendant said he did. 

Defendant claims, however, that police coerced him into 

reinitiating contact through the medium of his mother, who had 

cajoled him over the phone to talk to detectives to secure his 

release. This claim is utterly devoid of merit. Defendant points 

to no evidence suggesting that the police had anything to do with 

the conversation with defendant’s mother, except insofar as they 

facilitated the conversation by allowing defendant to make a 

collect call. There is nothing coercive about allowing a detained 

suspect to call his mother.

Defendant also contends he did not act knowingly, 

intelligently, and voluntarily when he waived his Miranda and 

Edwards rights, due to substantial memory deficits as well as 

his limited experience, education, young age, and below average 

intelligence. Defendant did not present any evidence of mental 

or other impairments at the suppression hearing, so he cannot 

now claim the trial court erred in failing to consider them. And 

defendant points to nothing else in the record, including his age 

(21 at the time of the interview), that would have raised 

questions about his ability to understand his rights as they had 

been explained to him. The state satisfied its burden of 

demonstrating by a preponderance of the evidence that 

defendant’s waiver was knowing, intelligent, and voluntary. 

(See People v. Nelson (2012) 53 Cal.4th 367, 375; People v. 

Williams (2010) 49 Cal.4th 405, 425, 428.)

Defendant contends that even if he voluntarily reinitiated 

contact with the detectives and waived his Miranda rights, the 

detectives later improperly failed to honor his requests to cut off 

questioning. Defendant points to two episodes in particular. 
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Opinion of the Court by Kruger, J.

56

The first episode occurred when defendant asked detectives: 

“Do you mind if I go back to my cell and think about tonight and 

talk to you guys tomorrow . . . .” Defendant contends that at this 

point, detectives should have stopped questioning him. But 

after a suspect has waived his Miranda rights, officers are not 

required to cease questioning unless the suspect invokes his 

rights unambiguously and unequivocally. (Sanchez, supra, 7 

Cal.5th at p. 49.) Defendant’s question did not amount to an 

unambiguous and unequivocal invocation of the right to cut off 

questioning. Nor did the colloquy that followed. Sergeant

Reinstadler told defendant that once he was “arraigned, we can’t 

talk to you. That’s the bottom line. I mean, if you want to tell 

us something, I’m being honest with you, this is your 

opportunity to do it. This is it.” Defendant reiterated his 

request to speak with the detectives the next day and was told 

“No. I know why. [¶] [Y]ou won’t want to talk to us tomorrow 

because somebody’s going to get to you, telling you not to talk to 

us. Play the games that we know people play. And then, the 

next thing you know, you’re looking at you being triggerman.” 

Defendant asked clarifying questions of the detectives about 

whether he could speak to them with anonymity, and they 

answered his questions. The conversation continued from there. 

Because defendant never unambiguously invoked his right to 

stop the interview, the detectives were under no obligation to do 

so.

Defendant invokes People v. Neal (2003) 31 Cal.4th 63 in 

support of his argument, but that case is easily distinguished. 

There, the defendant repeatedly and clearly invoked his rights 

to silence and counsel without waiving his rights under 

Miranda, only to be ignored by the questioning officer, who 

hoped to obtain evidence for impeachment purposes. (Id. at 
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Opinion of the Court by Kruger, J.

57

p. 74.) Here, by contrast, defendant voluntarily waived his 

Miranda rights at the outset of the conversation and did not 

unambiguously invoke his right to stop the interview.

The second episode occurred after defendant had spoken 

to the detectives for some time about how he had learned he 

could erase his debt to Hollywood in exchange for traveling to 

Santa Barbara to kill a person unknown to him. When the 

detectives asked defendant what happened next, defendant

said, “You guys know what happened. I think I’m going to stop 

there for now. Can I get some more water, please?” Defendant 

argues that even if the detectives were not obligated to stop 

before, they were obligated to stop questioning him at this point. 

But once again, defendant never unambiguously invoked his 

right to silence. The detectives accommodated his request for 

water, and defendant told them a number of things: He thought 

the quality of water he had been given was poor; he described 

the love he had for his eight-year-old brother; he discussed his 

mother and her dependency upon him, his incarcerated brother, 

and his drug-addicted sister, all to justify his hesitancy to add 

to the story he had thus far provided to the detectives regarding 

the crime. Sergeant Reinstadler reminded defendant about his 

right to remain silent. Detective West offered to let defendant 

“collect [his] thoughts,” and then, to clarify defendant’s 

meaning, asked whether defendant wanted only a short break 

or to cut off the conversation altogether. Defendant asked for a 

cigarette, saying, “I’d love just to take a break. Do some more 

thinking.” The detectives and defendant discussed whether 

defendant wanted a break overnight or just for a few moments, 

and defendant indicated the break he had in mind would be 

overnight. 
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Opinion of the Court by Kruger, J.

58

Sergeant Reinstadler told defendant a break between 

“now and tomorrow” would be “too late” because “[o]nce the 

lawyer contacts you, we are precluded from speaking with you 

anymore, period.” Defendant asked whether a lawyer would 

contact him the next day, and the detective explained it was 

“normal” and “their job” to do so. Defendant then asked the 

detectives whether he had been helpful to them, and Reinstadler 

explained that defendant had an opportunity to be of more help, 

to fill in more “pieces of the puzzle.” The conversation 

continued. At no time did defendant unambiguously signal a 

desire to end the interview, even though the detectives gave him 

ample opportunity to do so.

Defendant contends that the detectives improperly 

coerced him into continuing the conversation when they told 

him they would be “precluded” from talking to him again if he 

chose to take a break until the next day. Defendant contends 

that the detectives’ statements were deceptive and that their 

deception undermined the voluntariness of his statements. 

“While the use of deception or communication of false 

information to a suspect does not alone render a resulting 

statement involuntary [citation], such deception is a factor 

which weighs against a finding of voluntariness.” (People v. 

Hogan (1982) 31 Cal.3d 815, 840–841.) Here, it was certainly 

an exaggeration for the detectives to tell defendant they would 

not be able to speak with him again, “period,” if he took a break 

and spoke with a lawyer; represented suspects can, of course, 

speak with law enforcement officials if they choose. It is unclear

whether the detectives intended to deceive defendant on this 

point; what the detectives may have meant to convey is that a 

lawyer would likely advise against speaking with detectives—

meaning that, from their perspective, they almost certainly 
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Opinion of the Court by Kruger, J.

59

would not have another opportunity to speak with defendant. 

But in any event, insofar as they spoke in absolutes, the 

detectives overstated the case. Regardless, we are not 

persuaded the statements rendered defendant’s statement 

involuntary. Just before the challenged exchange, the 

detectives had reminded defendant that he had the right to 

remain silent and the right to speak with a lawyer. Defendant 

responded to the exchange by asking for clarification about 

when a lawyer would contact him, then went on to ask whether 

he had been helpful to the detectives, and the conversation 

continued from there. The record does not support defendant’s 

claim that he was coerced into continuing to speak with 

detectives after he had asked for a break.

Defendant next contends the detectives employed other 

coercive interrogation tactics that rendered his confession 

involuntary. (See People v. Jackson, supra, 1 Cal.5th at p. 340

[“ ‘ “A confession may be found involuntary if extracted by 

threats or violence, obtained by direct or implied promises, or 

secured by the exertion of improper influence.” ’ ”].) In 

particular, he argues that Detective West and Sergeant 

Reinstadler impliedly threatened him by mentioning the death 

penalty and that they improperly induced his confession by 

exaggerating the evidence against him. 

“ ‘In assessing allegedly coercive police tactics, “[t]he 

courts have prohibited only those psychological ploys which, 

under all the circumstances, are so coercive that they tend to 

produce a statement that is both involuntary and unreliable.” ’ ” 

(People v. Williams, supra, 49 Cal.4th at p. 436.) As the trial 

court found, there was nothing coercive about the detectives’

brief—and accurate—acknowledgment that the death penalty 

was a potential punishment for the crimes with which defendant 
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Opinion of the Court by Kruger, J.

60

was charged, and it does not appear that the mention of the 

death penalty prompted defendant’s confession. Nor is urging a 

defendant to tell his story before matters go any further an 

impermissible law enforcement tactic. (Id. at pp. 438–439, 443; 

Carrington, supra, 47 Cal.4th at p. 171.) 

As for defendant’s claim that the detectives improperly 

exaggerated the strength of the evidence against him, defendant 

points to an exchange in which detectives said others had told 

them that defendant gagged and shot the victim and dug the 

grave, which caused defendant to blurt out, “[T]he only thing I 

did was kill him.” As defendant acknowledges, however, “the 

use of deceptive comments does not necessarily render a 

statement involuntary. Deception does not undermine the 

voluntariness of a defendant’s statements to the authorities 

unless the deception is ‘ “ ‘of a type reasonably likely to procure 

an untrue statement.’ ” ’ ” (People v. Williams, supra, 49 Cal.4th 

at p. 443.) Defendant fails to explain why, in his view, the 

detectives’ questioning fits that description. The only element 

of deception in the relevant exchange was the detectives’ 

assertion that others had told them defendant had dug Nick’s 

grave, but defendant fails to explain how the assertion 

undermined the voluntariness of defendant’s claim to have 

“only” killed Nick. 

Defendant’s final challenge to the admission of his 

confession concerns the introduction of the last exchange that 

took place between the detectives and defendant after defendant 

told the detectives, “I think I want to stop there. I think you 

guys got a pretty good picture.” In the colloquy that followed, 

Reinstadler asked defendant if “there ever [was] a time when 

right before you pulled the trigger that you just thought, you 

know I shouldn’t do this? This is wrong. Because I haven’t 
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Opinion of the Court by Kruger, J.

61

heard that from you.” Defendant asked if the detectives wanted 

his “honest[]” response and when they answered in the 

affirmative, he told them, “Hell, yes. Right before.” Defendant 

now argues that this exchange—what he refers to as “side B”

9

evidence—should have been excluded, or an effective limiting 

instruction should have been given. 

The Attorney General does not dispute that defendant had 

unequivocally invoked his right to remain silent before this 

exchange. Nonetheless, we conclude defendant’s claim lacks 

merit. As the high court made clear in Harris v. New York

(1971) 401 U.S. 222, 225–226, “although statements elicited in 

violation of Miranda are generally not admissible, statements 

that are otherwise voluntarily made may be used to impeach the 

defendant’s trial testimony.” (People v. Case (2018) 5 Cal.5th 1, 

18.) Defendant argues that the trial court should have excluded 

the evidence altogether as a sanction for the detectives’ 

deliberate violation of defendant’s right to remain silent. But 

even if defendant’s characterization were correct, the “side B” 

evidence would nevertheless be admissible as impeachment 

evidence. (People v. Peevy, supra, 17 Cal.4th at p. 1188; People 

v. Nguyen (2015) 61 Cal.4th 1015, 1076.) 

As for defendant’s argument about jury instructions, the 

jury was, in fact, instructed that it was to consider the “side B”

evidence only for purposes of impeachment, and not as evidence 

of guilt. To the extent defendant would have preferred for the 

instruction be phrased differently to make it more effective, it 

was his obligation to request a correction of the instruction given 

 

9 This exchange was captured on the second side, or “side B” 

of the audiotape used to record Detective West’s and Sergeant 

Reinstadler’s interview with defendant.
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Opinion of the Court by Kruger, J.

62

or seek a new, more specific instruction. (People v. Chism (2014) 

58 Cal.4th 1266, 1308.) Having done neither, defendant has 

forfeited the claim on appeal. Accordingly, we conclude no error 

arose from the introduction of the “side B” evidence for 

impeachment purposes.

3. Defendant’s Testimony

Defendant argues the court violated his rights under the 

Fifth and Sixth Amendments to the United States Constitution 

by compelling him to testify as a foundation for testimony by his 

expert, Dr. Michael Kania, that his confession was false. We

conclude his claim is forfeited and lacks merit in any event.

The defense proposed calling Dr. Kania to testify that 

defendant’s confession was false. The trial court held a hearing 

under Evidence Code section 402 to determine the admissibility 

of that testimony.

10

 During the hearing, the court and parties 

discussed the possibility of defendant testifying before 

Dr. Kania to provide a foundation for Dr. Kania’s testimony. 

Specifically, the court indicated its assumption that “defendant 

is going to testify that he doesn’t remember giving that 

interview” to police to contextualize Dr. Kania’s opinion about 

anxiety causing amnesia of the sort defendant alleges he 

suffered. The defense did not object at this juncture or indicate 

 

10 Evidence Code section 402, subdivision (a) provides: 

“When the existence of a preliminary fact is disputed, its 

existence or nonexistence shall be determined as provided in 

this article.” Subdivision (b) provides: “The court may hear and 

determine the question of the admissibility of evidence out of the 

presence or hearing of the jury; but in a criminal action, the 

court shall hear and determine the question of the admissibility 

of a confession or admission of the defendant out of the presence 

and hearing of the jury if any party so requests.”
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Opinion of the Court by Kruger, J.

63

there was uncertainty about whether or when defendant 

planned to testify. The court “made it clear that I don’t believe 

that [Dr. Kania] can get on the stand and testify to things that 

he was told [while interviewing defendant] and, in effect, 

present the defendant’s defense, the defendant’s own testimony 

through the interview, I’ve said he can’t do that.” Defendant 

raised no objection to the court’s characterization. The court 

informed counsel that Dr. Kania’s testimony would be limited to 

his opinion about defendant’s anxiety and amnesia, not the 

content of Dr. Kania’s interview with defendant. The court 

explained, “I’m not going to let him [Dr. Kania] testify as to 

circumstances, the things that he was told by the defendant. 

The defendant can testify to those things and he [defendant] can 

be asked questions about it.” The court further rejected defense 

counsel’s argument that Dr. Kania should be permitted to 

testify as to whether or not defendant gave a false confession, 

concluding the issue was one for the jury to decide. Defense 

counsel responded: “We understand your ruling. We object to 

it on state and federal due process grounds, but we accept it.” 

Defendant now claims that he testified at trial only 

because the court compelled him to do so on pain of forfeiting

the ability to present Dr. Kania’s expert testimony. This 

compulsion, he argues, violated his Fifth and Sixth Amendment 

rights. The record does not support the claim. It is true that 

the trial court observed that an adequate foundation would need 

to be laid for the expert’s testimony. It is also true that the trial 

court at various times appeared to assume—without 

contradiction from defense counsel—that defendant would 

supply the necessary foundation through his testimony. But the 

trial court did not rule that Dr. Kania’s testimony would be 

permitted if and only if defendant took the stand, nor did 
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Opinion of the Court by Kruger, J.

64

defendant object on the ground that the trial court had, in effect, 

issued such a ruling. Nor has defendant established it would 

have been futile to raise such an objection; had he objected, the 

court could have considered whether, as he now claims, 

defendant’s testimony was in fact unnecessary to lay the 

foundation for Dr. Kania’s opinion. By failing to object in the 

trial court, defendant has forfeited the claim on appeal. 

To the extent defendant argues it was error for the court 

to make admission of Dr. Kania’s testimony contingent on the 

introduction of foundational evidence, the claim lacks merit. 

Defendant sought to present expert testimony that he suffered 

anxiety-induced amnesia and did not recall confessing. But 

without some foundational evidence that defendant did not 

remember the confession, Dr. Kania’s opinion would lack 

relevance. Dr. Kania could not be the source of the evidence that 

defendant did not remember his confession because that 

information would be the product of inadmissible hearsay, 

having originated from Dr. Kania’s interviews with defendant. 

(Evid. Code, § 1200.) An adequate foundation was, in fact, 

required.

Despite defendant’s arguments to the contrary, nothing in 

that conclusion contradicts the high court’s teachings in Crane 

v. Kentucky (1986) 476 U.S. 683, 689. In that case, the high 

court held that when the prosecution’s case was based on the 

defendant’s confession, it was error to preclude the defendant 

from introducing evidence about the manner in which his 

confession was obtained as part of his defense. (Id. at p. 691.) 

But Crane does not require the admission of any and all defenseproffered evidence about the circumstances of a confession, 

without regard to the ordinary rules of evidence.
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Opinion of the Court by Kruger, J.

65

Defendant also argues that the trial court violated his 

constitutional rights by effectively requiring him to testify 

before Dr. Kania. Defendant relies on Brooks v. Tennessee

(1972) 406 U.S. 605, in which the United States Supreme Court 

struck down a Tennessee statute requiring a defendant to testify 

first or not at all because it deprived “the accused and his 

lawyer” of the “opportunity to evaluate the actual worth of their 

evidence” and make tactical decisions after observing the 

testimony of other defense witnesses. (Id. at p. 612.) Here, the 

trial court placed no comparable restrictions on defendant. The 

court and parties both appear to have simply assumed that 

defendant would testify before Dr. Kania, so that Dr. Kania’s 

testimony could be properly contextualized. But defendant 

never gave any indication that he planned or hoped to testify 

after Dr. Kania. Because defendant raised no concerns, we

conclude this objection is forfeited on appeal. (See, e.g., People 

v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 371

(Bryant).)

Defendant also claims that the court improperly limited 

his own direct testimony in a few instances. In some of these 

instances, review of the record reveals defendant is simply 

incorrect. For example, he claims he was not permitted to 

answer whether he would have been willing to go to prison for

life in Hollywood’s place at the time he was arrested. Although 

there was an objection, the question was rephrased, and 

defendant was given an opportunity to, and did, respond. As for 

the claim that defendant was improperly precluded from 

explaining what he meant by certain words he used in his 

confession, there was nothing improper in this ruling. The trial 

court permitted defendant to testify as to the truthfulness of his 

incriminating statements, but not what he meant at the time he 
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Opinion of the Court by Kruger, J.

66

said them, since he claimed not to recall having uttered the 

words in the first place. The trial court did not abuse its 

discretion by ruling that defendant could not speculate about 

what he might have meant by words he claimed not to remember 

saying. (See People v. Riggs (2008) 44 Cal.4th 248, 289 [trial 

court has discretion to determine the relevance of evidence].) 

Defendant claims the ruling violates People v. Webb (1993) 6 

Cal.4th 494, 535, in which we said that “a defendant’s absolute 

right to testify cannot be foreclosed or censored based on 

content.” But Webb concerns a defendant’s right to testify 

against the advice of counsel, where such testimony will have a 

deleterious effect necessitating special jury instructions. Webb

neither holds nor suggests that a testifying defendant is entitled 

to speculate about matters of which he or she claims no direct 

knowledge. 

4. Expert Witness Testimony

Defendant argues that the trial court erred by limiting 

Dr. Kania’s and Dr. Glaser’s testimony. With regard to 

Dr. Kania, defendant contends the trial court categorically 

excluded testimony regarding defendant’s statements during 

certain interviews, which defendant claims was admissible for 

nonhearsay purposes. He alleges the court erred by prohibiting 

Dr. Kania from explaining that accepting telephone calls from 

his mother provoked anxiety in defendant. He also alleges 

Dr. Kania was prohibited from describing the effects of 

defendant’s personality disorders, his relationship with 

Hollywood, his sleep deprivation, and drug intoxication on his 

alleged false confession. Defendant fails to provide any citation 

to the record for these alleged prohibitions and makes no 

assertion that he made contemporaneous objections, and we 

have not located any passage showing that defendant attempted 
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Opinion of the Court by Kruger, J.

67

to offer this testimony but was precluded from so doing. Both 

by failing to interject contemporaneous objections and by failing 

to support his appellate arguments with record citations, 

defendant has forfeited any claim of error on appeal. (See People 

v. Tully, supra, 54 Cal.4th at p. 1061; People v. Stanley (1995) 

10 Cal.4th 764, 793.) In any event, whatever errors defendant 

now claims occurred could not have affected the outcome of the 

case; Dr. Kania testified at length about defendant’s alleged 

anxiety-inducted amnesia based on his evaluation of defendant. 

Defendant also claims the trial court erred by permitting 

Dr. Glaser to testify for the prosecution whether, in his opinion, 

defendant’s claimed amnesia was a fabrication, while 

“Dr. Kania was not permitted to share his opinion that 

[defendant’s] confession was false in most respects.” There is, 

however, no inconsistency in the court’s treatment of the two 

experts. Dr. Kania was permitted to offer his opinion on 

precisely the same subject as Dr. Glaser, testifying that he 

believed defendant’s claim of amnesia was credible. 

Finally, defendant contends the court erred by denying his 

request to recall Dr. Kania for purposes of responding to the 

prosecutor’s experts’ reports and their testimony. We review for 

abuse of discretion a trial court’s decision to exclude surrebuttal 

evidence, and we see none here. (People v. Marshall (1996) 13 

Cal.4th 799, 836.) Defendant does not explain what it was, 

precisely, about the experts’ reports or testimony that required 

a further response via additional testimony from Dr. Kania, nor 

did defendant offer such an explanation to the trial court. The 

claim is therefore forfeited on appeal. Defendant also argues 

that Dr. Kania should have been permitted to testify in 

surrebuttal as to the content of defendant’s interviews with him

in order to respond to the prosecution’s evidence that 
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Opinion of the Court by Kruger, J.

68

defendant’s claimed amnesia was a fabrication. The trial court 

did not abuse its discretion in ruling that this was largely 

territory that had already been covered and did not require 

additional surrebuttal evidence. If any error occurred, it was 

not prejudicial. (See Chapman v. California (1967) 386 U.S. 18, 

24; People v. Watson (1956) 46 Cal.2d 818, 836–837 (Watson).)

5. Psychiatric Examination 

Defendant argues the trial court erred by compelling him 

to undergo a prosecution-conducted psychiatric examination. 

The Attorney General concedes the compelled examination was 

error but argues it did not prejudice defendant. We agree.

Before trial, the prosecution moved to compel defendant to 

undergo a psychiatric examination by prosecution experts. In 

support of the motion, the prosecution argued defendant had 

placed his mental state at issue by claiming he gave a false 

confession induced by various psychological factors. The defense 

objected. After hearing argument, the court granted the motion. 

The court opined that when “a defendant presents expert 

psychological or psychiatric evidence” explaining his conduct, 

“the prosecution is entitled to rebut that evidence, and the only 

realistic manner in which the prosecution can do that is to be 

entitled to have a psychiatric evaluation of its own in order to 

prepare an expert to testify.” 

The prosecution retained Drs. Glaser and Chidekel, both 

of whom testified for the prosecution in rebuttal. Dr. Glaser 

testified that after examining defendant and reviewing a great 

deal of case information, he concluded defendant suffered from 

“no current major mental illness,” but had low self-esteem, was 

uncomfortable acknowledging his feelings, and was willing to 

suffer “unpleasant conditions” to remain near the person on 
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Opinion of the Court by Kruger, J.

69

whom he was dependent. Defendant had no disorders rendering 

it more likely that he would falsely confess. Dr. Glaser also 

evaluated defendant for amnesia and concluded defendant was 

malingering because he recalled nothing even after being given 

cues from the transcripts. 

Dr. Chidekel evaluated defendant, administering

numerous psychological tests, and determined defendant 

suffered from “avoidance [sic] personality disorder, with selfdefeating and dependent features.” Based on the tests 

administered, Dr. Chidekel was otherwise unable to diagnose 

defendant with any neuropsychological condition that interfered 

with his “ability to see, to understand, or to be able to 

communicate effectively.” 

We have previously described the shifts in the law 

governing court-ordered psychological examinations like the one 

ordered in this case. “At the time of defendant’s trial in [2001], 

decisional law authorized trial courts to order a defendant who 

placed his or her mental state in issue to submit to mental 

examination by prosecution experts. [Citation.] This court later 

held that after the 1990 passage of Proposition 115 (the Crime 

Victims Justice Reform Act), which resulted in the enactment of 

the criminal discovery statutes, the courts ‘are no longer free to 

create such a rule of criminal procedure, untethered to a 

statutory or constitutional base.’ (Verdin v. Superior Court 

(2008) 43 Cal.4th 1096, 1116 (Verdin).) We have applied Verdin

retroactively.” (People v. Clark (2011) 52 Cal.4th 856, 939, fn. 

omitted (Clark).)

“Shortly after Verdin, the Legislature amended [Penal 

Code] section 1054.3 to expressly authorize courts to compel a 

mental examination by a prosecution-retained expert. (See
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Opinion of the Court by Kruger, J.

70

[Pen. Code,] § 1054.3, subd. (b), as amended by Stats. 2009, ch. 

297, § 1.)” (People v. Banks (2014) 59 Cal.4th 1113, 1193.) But 

in Banks, we concluded that Verdin continues to apply to cases 

predating that amendment. (Banks, at p. 1193.) This is such a 

case. For that reason, the Attorney General concedes that

“Verdin compels the conclusion that it was error under state law 

to require [defendant] to submit to mental examinations by 

prosecution experts.” It follows that it was also error for the 

trial court to admit testimony by the prosecution’s experts based 

on their interviews with defendants. (Clark, supra, 52 Cal.4th 

at p. 940.) The Attorney General urges, however, that these

errors were harmless under the relevant standard articulated in

Watson, supra, 46 Cal.2d at page 836. We agree.

In Clark, supra, 52 Cal.4th at page 940, we rejected the

argument that errors in mandating examination by prosecution 

experts are subject to review under the more demanding 

standard for federal constitutional error set forth in Chapman 

v. California, supra, 386 U.S. 18. We explained that we were 

aware of no decision “holding that the Fifth Amendment or any 

other federal constitutional provision prohibits a court from 

ordering a defendant who has placed his or her mental state in 

issue to submit to a mental examination by a prosecution 

expert.” (Clark, at p. 940.) “We thus assess the errors for 

prejudice under the standard for state law error, inquiring 

whether there is a reasonable probability that the outcome of 

trial would have been more favorable to defendant had the court 

not ordered him to submit to examinations by” prosecutionretained experts. (Id. at pp. 940–941.)

We conclude it is not reasonably probable that the outcome 

of the trial would have been more favorable had defendant not 

undergone examinations conducted by prosecution-retained 
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Opinion of the Court by Kruger, J.

71

experts. Defendant gave his friend Casey Sheehan a detailed 

confession to Nick’s murder and confessed to the detectives that

“the only thing he did was kill” Nick. The details of defendant’s 

confession to Sheehan were corroborated by witnesses who 

spent time with Nick at the Lemon Tree Inn before he was killed 

and those who found his body in a shallow grave covered by a 

bush. On the other hand, defendant’s claim of amnesia was a 

highly selective one: He claimed that although he remembered 

enough of the events surrounding the crimes to exonerate 

himself and shift blame to his codefendants, he experienced a 

brief lapse in memory that happened to coincide with the period 

during which he confessed to police detectives. It is not 

reasonably probable that, had the prosecution’s experts not 

testified to their findings based on their examination of 

defendant, the jury would have discredited defendant’s 

confessions and instead credited his claim of amnesia. Under 

the circumstances, we conclude there is no reasonable 

probability that the jury would have reached a result more 

favorable to defendant had the court not issued an order 

requiring him to submit to mental examination by Drs. Glaser 

and Chidekel and had these experts not testified against 

defendant based on those examinations.

6. Prosecutorial Misconduct During the 

 Guilt Phase Closing Argument 

Defendant alleges the prosecutor engaged in numerous 

instances of misconduct during his closing argument. He failed 

to object to nearly all such instances and has therefore forfeited 

these claims on appeal. In any event, no misconduct occurred.

As we have explained, to preserve a claim of prosecutorial 

misconduct for appeal, “ ‘ “a criminal defendant must make a 

timely and specific objection and ask the trial court to admonish 
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Opinion of the Court by Kruger, J.

72

the jury to disregard the impropriety.” ’ [Citation.] The lack of 

a timely objection and request for admonition will be excused

only if either would have been futile or if an admonition would 

not have cured the harm.” (People v. Powell (2018) 6 Cal.5th 

136, 171.) “ ‘ “A prosecutor’s misconduct violates the Fourteenth 

Amendment to the United States Constitution when it ‘infects 

the trial with such unfairness as to make the conviction a denial 

of due process.’ [Citations.] In other words, the misconduct 

must be ‘of sufficient significance to result in the denial of the 

defendant’s right to a fair trial.’ [Citation.] A prosecutor’s 

misconduct that does not render a trial fundamentally unfair 

nevertheless violates California law if it involves ‘the use of 

deceptive or reprehensible methods to attempt to persuade 

either the court or the jury.’ ” ’ ” (Id. at p. 172.) To the extent 

the alleged instances of misconduct were not forfeited by 

defendant’s failure to object, we conclude none infected the trial 

with unfairness or deceived the court or jury.

Defendant first contends that the prosecutor argued “facts 

not in evidence” when he stated in closing argument that 

defendant did “ ‘considerably more’ ” than shoot the victim and 

was “ ‘probably involved in the taping and the burial process, if 

not digging the grave.’ ” Defendant did not object to this 

argument at trial and does not argue that objection would have 

been futile. The claim is therefore forfeited. (See People 

v. Powell, supra, 6 Cal.5th at p. 171.)

But the claim lacks merit in any event. Defendant’s 

argument presumes that the only basis for the prosecutor’s 

argument was certain statements conveyed by Pressley to 

Detective Jerry Cornell. Detective Cornell testified to some of 

Pressley’s out-of-court statements at trial, but because Pressley 

himself did not testify, Detective Cornell was not permitted to 
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Opinion of the Court by Kruger, J.

73

relay certain statements implicating defendant in the gravedigging and burial. When Detective Cornell nevertheless 

testified that Pressley had said “they”—presumably meaning 

both Pressley and defendant—had buried the victim, the trial 

court admonished the jury to ignore the use of the pronoun 

“they” and to consider only that portion of Detective Cornell’s 

statement relaying that Pressley went to Lizard’s Mouth and 

dug the grave. Defendant argues that the prosecution violated 

the court’s ruling by referring to Pressley’s statements in closing 

argument.

Pressley’s statements were not, however, the only basis for 

the argument. Sheehan told the jury that defendant came to 

him asking for advice and told him Nick had been shot

“somewhere in the middle of nowhere.” Defendant also told 

Sheehan that after shooting the victim, he put a bush over him. 

This testimony was consistent with the evidence of where and 

how hikers found Nick’s body. The prosecutor’s reference to 

defendant “probably” doing more than shooting the victim was 

a reasonable commentary on the evidence and does not 

constitute misconduct. (See People v. Farnam (2002) 28 Cal.4th 

107, 168.)

Defendant next argues that the prosecutor committed 

misconduct by telling the jury that none of the experts, including 

Dr. Kania, testified that defendant gave a false confession. 

Defendant objected to the argument on the ground that the 

prosecution was “arguing the Court’s restriction on the 

evidence.” In response, the trial court clarified for the jury that 

none of the experts had so testified because the court had 

previously ruled that no expert would be permitted to give an 

opinion as to whether or not a false confession was given in this 

case; the question was instead one for the jury to decide. Both 
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Opinion of the Court by Kruger, J.

74

the prosecutor and defense counsel thanked the court for the 

clarification, and the prosecutor resumed the closing argument. 

To the extent defendant now believes the trial court’s 

clarification was insufficient, he has forfeited the objection. 

(People v. Powell, supra, 6 Cal.5th at p. 171.) But even were his 

claim preserved, we would find no error. The prosecutor’s 

remarks were accurate, if susceptible to misunderstanding. The 

court cleared up any possible misunderstanding with its 

clarification. (See ibid.)

Defendant also argues that the prosecutor referred in 

closing argument to “side B” of defendant’s confession, during 

which defendant was asked whether it occurred to him that 

what he was doing was “wrong” and defendant replied, 

“Honestly? [¶] Hell yes. Right before.” Defendant has forfeited 

any challenge to the prosecutor’s argument regarding “side B” 

of defendant’s confession by failing to object. (People v. Powell, 

supra, 6 Cal.5th at p. 171.) 

Defendant argues that the prosecutor committed 

misconduct during the guilt phase closing argument by making 

improper remarks about witness Sheehan, who had testified 

under a grant of immunity. First, the prosecutor argued the jury 

could be assured that Sheehan would be even more truthful 

than other witnesses because he was subject to greater 

consequences for lying. Second, the prosecutor argued the jury 

could infer that Sheehan would not have needed immunity if 

defendant were innocent because otherwise Sheehan would 

have been harboring a friend, not a fugitive. Defendant 

objected, claiming the prosecution’s argument was speculative. 

The court sustained the objection and admonished the jury to 

disregard the prosecutor’s remarks. Defendant now renews his 
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Opinion of the Court by Kruger, J.

75

objection to the prosecutor’s remarks, arguing the prosecutor 

impermissibly vouched for Sheehan based on the prosecutor’s 

own personal beliefs (and decisions about how and why to grant 

witness immunity), rather than evidence in the record. (See 

People v. Martinez (2010) 47 Cal.4th 911, 958.) But defendant 

offers no persuasive reason to believe the trial court’s 

admonition to disregard the prosecutor’s brief, passing remarks 

was insufficient to cure any unfairness. We see no basis for 

reversal. 

Finally, defendant argues that the prosecutor committed 

misconduct by spending six transcript pages describing the 

“original” kidnap, in which defendant was not involved. In fact, 

the prosecutor spent less than two transcript pages describing 

the kidnapping, and some of the events described involved 

defendant. The prosecutor referred to the victim’s abduction 

from West Hills, his time in Santa Barbara, and his murder, 

arguing “there is a kidnapping at the very beginning, there’s a 

kidnapping at the very end. Is there a kidnapping in between? 

Okay.” The defense did not object to this discussion. Assuming 

for the sake of argument that this claim is not forfeited despite 

the lack of specific, contemporaneous objection (see People v. 

Seumanu (2015) 61 Cal.4th 1293, 1339), we find no misconduct 

because the prosecutor has “wide latitude to comment on the 

evidence during closing argument.” (People v. Peoples (2016) 62 

Cal.4th 718, 797.) Discussion of a significant aspect of the 

criminal endeavor that culminated in the victim’s death during 

closing argument constitutes a reasonable comment. (Ibid.)

7. Instructional Error Concerning

 Accomplices and Immunity 

Defendant argues the trial court erred by failing to modify 

CALJIC No. 3.16, concerning accomplice testimony, and 
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Opinion of the Court by Kruger, J.

76

CALJIC No. 2.20, concerning witness credibility. Defendant 

also argues the court erred by failing to give CALJIC No. 3.19,

concerning the determination whether a corroborating witness 

is an accomplice. We find no grounds for reversal.

a. CALJIC No. 3.16

Penal Code section 1111 provides that an accomplice’s 

testimony cannot support a conviction without corroboration by 

other evidence “as shall tend to connect the defendant with the 

commission of the offense; and the corroboration is not sufficient 

if it merely shows the commission of the offense or the 

circumstances thereof.” The statute defines an accomplice as 

“one who is liable to prosecution for the identical offense charged 

against the defendant on trial in the cause in which the 

testimony of the accomplice is given.” (Ibid.; People v. Gomez

(2018) 6 Cal.5th 243, 307; see id. at p. 308.)

On November 2, 2001, defendant submitted his list of 

proposed jury instructions, which included CALJIC No. 3.16, 

Witness Accomplice as Matter of Law. Defendant listed Rugge, 

Pressley, Hollywood, Sheehan, and Affronti among the 

witnesses to be included in the instruction. But when the jury 

was ultimately instructed with CALJIC No. 3.16, the 

instruction named only two of these individuals: “If the crimes 

charged were committed by anyone, Jesse Rugge and Graham 

Pressley were accomplices as a matter of law and their 

testimony is subject to the rule requiring corroboration.” 

The record does not reveal why the instruction named only 

Rugge and Pressley. Defendant explains that the trial court 

conducted an “ ‘informal’ ” conference with the attorneys to 

address jury instructions, and the content of that conference was 

not settled or recorded. Defendant argues he should not be 
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Opinion of the Court by Kruger, J.

77

faulted for the lack of recorded proceedings and contends the 

denial of his request to name Skidmore, Hollywood, and 

Sheehan in CALJIC No. 3.16 should be deemed preserved for 

appeal. 

Even assuming the claim has been adequately preserved, 

the claim lacks merit. Although the informal conference may 

not have been recorded, defense counsel conceded on the record 

that Sheehan was not an accomplice and was therefore not an 

appropriate person to include among those listed in CALJIC 

No. 3.16. And although Skidmore and Hollywood “meet [Penal 

Code] section 1111’s definition of an accomplice” in that “[e]ach 

was liable to prosecution . . . for the identical offenses charged 

against defendant” (People v. Williams (1997) 16 Cal.4th 635, 

682), neither Skidmore nor Hollywood provided statements 

requiring corroboration, which is the concern of CALJIC 

No. 3.16.

“A court must instruct on the need for corroboration only 

for accomplice testimony ([Pen. Code,] § 1111); ‘ “ ‘testimony’ 

within the meaning of . . . [Penal Code] section 1111 includes all 

oral statements made by an accomplice or coconspirator under 

oath in a court proceeding and all out-of-court statements of 

accomplices and coconspirators used as substantive evidence of 

guilt which are made under suspect circumstances.” ’ ” (People 

v. Williams, supra, 16 Cal.4th at p. 682.) “ ‘The most obvious 

suspect circumstances occur when the accomplice has been 

arrested or is questioned by the police.’ [Citation.] ‘On the other 

hand, when the out-of-court statements are not given under 

suspect circumstances, those statements do not qualify as 

“testimony” and hence need not be corroborated under . . . 

section 1111.’ ” (People v. Williams (1997) 16 Cal.4th 153, 245.)
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Opinion of the Court by Kruger, J.

78

Here, neither Skidmore nor Hollywood testified at trial, 

but defendant identifies various out-of-court statements they 

made that were admitted through other witnesses. For 

example, defendant himself testified Skidmore had told him 

“Ben’s brother had been killed” several days before Nick’s body 

was found. Other witnesses testified to statements Hollywood 

made to his fellow codefendants and others about Nick’s kidnap. 

And witnesses reported statements Hollywood made to his 

father and Hogg in which Hollywood described the crime 

without owning up to his role in it. But none of these statements 

were made under “suspect circumstances” undermining their 

reliability. (People v. Williams, supra, 16 Cal.4th at p. 682 

[“[S]tatements made in the course of and in furtherance of the 

conspiracy were not made under suspect circumstances and 

therefore were sufficiently reliable to require no 

corroboration.”].) Accordingly, we find no error in the trial 

court’s decision not to name Skidmore and Hollywood in the jury 

instruction concerning corroboration of accomplice testimony.

b. CALJIC No. 3.19

Defendant also requested that the jury be instructed with 

CALJIC No. 3.19, entitled “Burden to Prove Corroborating 

Witness Is an Accomplice.” The instruction states: “You must 

determine whether the witness [blank] was an accomplice as I 

have defined that term. [¶] The defendant has the burden of 

proving by a preponderance of the evidence that [blank] was an 

accomplice in the crime[s] charged against the defendant.” 

(CALJIC No. 3.19.) Defendant now says he proposed filling the 

blank with witness Casey Sheehan and argues that whether 

Sheehan was an accomplice constituted a question of fact the 

jury should have been permitted to determine.
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Opinion of the Court by Kruger, J.

79

We conclude the claim of error fails because, as noted 

above, defense counsel agreed on the record that Sheehan—who 

was not charged with any of the same offenses as defendant or 

his codefendants—was not an accomplice. In any event, any

error would have been harmless because the jury was 

adequately instructed concerning the definition of accomplices

pursuant to CALJIC No. 3.10, which states that “[a]n 

accomplice is a person who [is] . . . subject to prosecution for the 

identical offense charged . . . against the defendant on trial by 

reason of . . . [being a member of a criminal conspiracy],” and the 

need for corroboration of accomplice testimony. It is not 

reasonably probable the jury would have returned a more 

favorable result had it also been instructed with CALJIC 

No. 3.19. (Watson, supra, 46 Cal.2d at p. 837 [setting forth 

standard for evaluating harmlessness of state law error]; see 

People v. Carpenter (1997) 15 Cal.4th 312, 393 [“Mere 

instructional error under state law regarding how the jury 

should consider evidence does not violate the United States 

Constitution”].) 

c. CALJIC No. 2.20

At trial, the jury was instructed with CALJIC No. 2.20 

concerning the “believability of a witness.” The instruction told 

jurors to “consider anything that has a tendency reasonably to 

prove or disprove the truthfulness” of witness testimony and 

listed numerous factors, including “demeanor,” whether the 

witness had “bias, interest, or other motive” to testify, and 

“[w]hether the witness is testifying under a grant of immunity.” 

Defendant argues that, unbeknownst to the jury, a number of 

witnesses in addition to Sheehan—namely, Adams-Young, 

Affronti, Carpenter, Hogg, John Hollywood, and Lasher—

received immunity in exchange for their testimony. He contends 
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Opinion of the Court by Kruger, J.

80

the court should have modified CALJIC No. 2.20 to specifically 

identify all of the witnesses testifying under a grant of immunity 

and to advise the jury to view their testimony with “ ‘care and 

caution.’ ” 

At trial, defendant made no request to identify any 

declarant other than Sheehan who testified under a grant of 

immunity and thus forfeited that claim. But the claim fails 

regardless. There is no duty to instruct a jury that the testimony 

of immunized witnesses must be viewed with care and caution. 

(People v. Daniels (1991) 52 Cal.3d 815, 867, fn. 20 [“Defendant 

points to no authority requiring the court to instruct the jury 

that immunized-witness testimony is to be viewed with distrust. 

We have held that the court has no such duty to instruct sua 

sponte.”]; see also People v. Leach (1985) 41 Cal.3d 92, 106.) It 

follows that the trial court did not err by failing to convey to the 

jury, via modification of CALJIC No. 2.20, which witnesses were 

testifying under a grant of immunity.

Finally, and in any event, the trial court’s failure to modify 

CALJIC No. 2.20 could not have prejudiced defendant. The role 

these six witnesses played in the prosecution’s case was minimal 

when compared with the substantial evidence of guilt presented 

at trial unrelated to their testimony, including defendant’s own 

detailed confession and Sheehan’s testimony that defendant 

killed the victim. Moreover, the jury was instructed to consider 

the witnesses’ “bias, interest, or other motive” for testifying. 

(CALJIC No. 2.20.) It is not reasonably probable defendant 

would have achieved a more favorable result if jurors viewed the 

testimony of these six peripheral witnesses with somewhat 

greater caution. (See People v. Lewis (2001) 26 Cal.4th 334, 371; 

Watson, supra, 46 Cal.2d at p. 836.) 
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D. Special Circumstances Claim 

At one time, proof of the kidnap-murder special 

circumstance required that the prosecution show a defendant 

had an independent felonious purpose, “ ‘that is, the commission 

of the [kidnapping] felony was not merely incidental to an 

intended murder.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 62–63; 

id. at p. 117; see People v. Brents, supra, 53 Cal.4th at pp. 608–

609.) The statute was amended to eliminate this independent 

felonious purpose requirement in 1998, five months before the 

crimes at issue here. (See Pen. Code, § 190.2, subd. (a)(17)(M), 

added by Stats. 1998, ch. 629, § 2, p. 4165, and approved by 

voters, Primary Elec. (Mar. 7, 2000); Brooks, at p. 63, fn. 8; 

Brents, at pp. 608–609, fn. 4.)11 Nonetheless, the jury in this 

case was instructed to find an independent felonious purpose to 

kidnap. Defendant now argues the evidence was insufficient to 

support the jury’s finding. And although he acknowledges that 

the statute then in force did not, in fact, require the jury to make 

such a finding, defendant contends that without the 

independent felonious purpose requirement, the kidnap-murder 

special circumstance is unconstitutional. We reject the first part 

of this argument, which makes it unnecessary to address the 

second: Because the jury was instructed on the independent 

felonious purpose requirement and because the evidence was 

sufficient to support the jury’s finding that the requirement was 

 

11 As amended in 1998, Penal Code section 190.2, 

subdivision (a)(17)(M) provides, “To prove the special 

circumstance[] of kidnapping[,] . . . if there is specific intent to 

kill, it is only required that there be proof of the elements of 

th[at] felon[y]. If so established, [the] special circumstance[] [is] 

proven even if the felony of kidnapping . . . is committed 

primarily or solely for the purpose of facilitating the murder.” 

(Italics added.)
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satisfied, we need not decide here whether the kidnap-murder 

special circumstance is constitutional in the absence of an 

independent felonious purpose requirement. (See, e.g., Loeffler 

v. Target Corp. (2014) 58 Cal.4th 1081, 1102 [“Our jurisprudence 

directs that we avoid resolving constitutional questions if the 

issue may be resolved on narrower grounds.”]; see id. at p. 1103.)

The jury here was instructed that, to find the special 

circumstance of kidnap felony murder true, “it must be proved, 

one, the murder was committed while the Defendant was 

engaged in the commission of a kidnapping; or, two, the murder 

was committed in order to carry out or advance the commission 

of the crime of kidnap, or to facilitate the escape therefrom, or 

to avoid detection. In other words, the special circumstance 

referred to in these instructions is not established if the kidnap 

was merely incidental to the commission of the murder.”12 

“ ‘In reviewing the sufficiency of the evidence, we must 

determine “whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have 

 

12 At oral argument, defendant argued for the first time that 

this instruction was defective because the “or” in the first 

sentence of the instruction would have conveyed to the jury that 

it could find the special circumstance true so long as it concluded 

that “the murder was committed while the Defendant was 

engaged in the commission of a kidnapping,” even if it did not 

find that defendant had an independent purpose to kidnap Nick. 

While it does appear the disjunctive “or” in the first sentence 

was included in error, we see no likelihood that the jury was 

confused by it. The second sentence of the instruction 

unambiguously informed the jury that “the special circumstance 

. . . is not established if the kidnap was merely incidental to the 

commission of the murder.” The instruction thus expressly told 

the jurors that they must find an independent felonious purpose 

to find the special circumstance true.
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Opinion of the Court by Kruger, J.

83

found [this] element[] of the crime beyond a reasonable doubt.” ’ 

[Citation.] ‘Substantial evidence’ is evidence which is 

‘ “reasonable in nature, credible, and of solid value.” ’ ” (People 

v. Morgan (2007) 42 Cal.4th 593, 613–614.)

Defendant’s sufficiency of the evidence argument depends 

on the premise that the evidence established two separate 

kidnappings, only the second of which involved defendant. 

Defendant argues that “the jury may have applied an incorrect 

theory if it believed [defendant] committed the murder in order 

to assist Hollywood in avoiding detection for the August 6th 

completed kidnap.” And to the extent the jury instead focused 

on defendant’s later act of moving Nick to the gravesite at 

Lizard’s Mouth, defendant argues there was insufficient 

evidence to support a finding that defendant had an 

independent purpose to kidnap Nick: “[N]o properly-instructed 

rational trier of fact could have found that this ‘second kidnap’ 

(if it were a ‘kidnap’) was not merely incidental to the murder, 

with the murder being the defendant’s primary purpose.” 

Defendant’s argument suffers from an overly narrow view 

of the kidnap, one inconsistent with our duty to view the 

evidence in the light most favorable to the prosecution. As 

already noted, the indictment charged defendant and his 

codefendants with a continuing kidnapping offense that 

extended over the period of time from when the victim left his 

home and was taken to Santa Barbara, to the time he spent in 

Santa Barbara, and the time he was taken from locations within 

Santa Barbara to the site of his murder. As previously 

discussed, there was evidence from which a jury could conclude 

defendant moved Nick against his will as part of that single, 

continuous kidnapping. In addition, there was evidence from 

which the jury could conclude the murder was committed to 
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Opinion of the Court by Kruger, J.

84

“advance the commission of the crime of kidnap, or to facilitate 

the escape therefrom, or to avoid detection.” The jury could 

conclude that Nick was murdered to silence him and eliminate 

the risk the kidnappers—including defendant, who belatedly 

joined in the kidnapping—would be caught and that defendant 

shared that purpose. In short, there was substantial evidence 

from which the jury could conclude the kidnap was more than 

incidental to the murder—indeed, that the kidnap was the 

reason for the murder and not the other way around. 

E. Penalty Phase Claims

1. Prosecutorial Misconduct During the 

 Penalty Phase Closing Argument

Defendant argues his rights to due process, a fair trial, 

and a reliable penalty determination under the Fifth, Sixth, and 

Eighth Amendments to the United States Constitution were 

violated by the prosecutor’s prejudicial misconduct during 

penalty phase closing argument. We hold defendant’s claims of 

prosecutorial misconduct are forfeited and lack merit in any 

event.

a. Background

During penalty phase closing argument, the prosecutor 

described the various factors in aggravation and mitigation

under Penal Code section 190.3, including factor (k). 

Specifically, the prosecutor explained that factor (k) evidence 

included “ ‘[a]ny other circumstances which extenuate[] the 

gravity of the crime.’ ” The prosecutor continued, “This is the 

part where you can really consider just about anything you 

want, and this is the part where the defense will ask you to 

consider the fact that he had a childhood that was less than 

stellar, that that would be considered a matter in mitigation for 
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Opinion of the Court by Kruger, J.

85

your consideration.” The prosecutor described defendant’s 

“dysfunctional family,” including defendant’s sister, a 23- or 24-

year-old “life-long heroin addict”; defendant, the second child, 

who “manages to commit a horrific murder before the age of 21”;

and defendant’s younger brother who, at age 16 “commits a 

crime so scary and so horrible that he’s not only tried as an adult 

in this home invasion armed robbery at age 16, but he’s given a 

sentence of 12 years in state prison. I mean, that’s a remarkable 

sentence for a teenager to receive, that is to believe that there’s 

nothing redeemable about this person at all.” The prosecutor 

also described defendant’s home as “dysfunctional,” his mother 

as neurotic, his father as heavy-handed, and argued “they 

batted zero with the accomplishments of all three of the children 

in this family.” 

The prosecutor suggested to the jury that the defense was 

“effectively saying,” with the Penal Code section 190.3, factor (k) 

evidence, “that the consequence of this childhood has created 

somebody who really lacks any notion of empathy at all for other 

people. And aren’t they really saying that that is in effect a 

violent person?” The prosecution described defendant as “a 

person whose childhood was so completely lacking in morality 

that he’s missed that part of his education and his development,” 

which “speak[s] to his dangerousness.” The prosecutor asked 

how that could be considered “a matter in mitigation as against 

any matter in aggravation,” leaving it for the jury to “consider 

during your deliberation.” Defendant raised no objection to 

these characterizations. The prosecutor also addressed Penal 

Code section 190.3, factor (i), “[t]he age of the defendant at the 

time of the crime,” explaining that if defendant had been 17 as 

had been “one of the co-defendants, Mr. Pressley, then maybe 

that would be a factor to give a lot of consideration to.” Because 
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Opinion of the Court by Kruger, J.

86

defendant was 20 years old, within days of turning 21, at the 

time he committed the offense, the prosecutor argued, the 

amount of consideration owed his age was “minimal.” The 

prosecutor noted that defendant’s age was the same as most 

college seniors and “among the older ones” of “our fighting force 

currently in Afghanistan.” Defendant raised no objection. 

Finally, the prosecutor focused heavily on the alternative 

to a death sentence, urging the jury to conclude that “three 

meals every single day” was better than the life defendant had 

prior to imprisonment, other than the “freedom of movement 

like he had before.” If defendant faced a life sentence, he would 

be given a warm bed, friends, possibly a girlfriend, hot meals 

every day, and the ability to play basketball, “to feel the rush of 

running to a basket and being able to score.” The prosecutor 

urged the jury to conclude this was insufficient punishment for 

“the worst” type of crime, an “intentional killing of a child for no 

more reason than because it improved his temporary status, his 

moment of comfort at that moment in time,” committed with 

“planning and preparation and premeditation and thought and 

deliberation.” Defendant did not object. 

b. Discussion

Defendant argues that the prosecutor committed 

prejudicial misconduct by suggesting that defendant’s family 

history and age were factors in aggravation. As an initial 

matter, the claim is forfeited because defendant failed to object. 

“In order to preserve any claim of prosecutorial misconduct, 

there must be a timely objection and request for admonition. 

[Citation.] ‘ “[O]therwise, the point is reviewable only if an 

admonition would not have cured the harm caused by the 

misconduct.” ’ ” (People v. Dykes (2009) 46 Cal.4th 731, 786.) 
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Opinion of the Court by Kruger, J.

87

Although defendant alleges that an objection would have been 

futile, he fails to demonstrate there were prior efforts to object 

that were overruled.

The claim lacks merit in any event. The prosecutor argued

that defendant’s age and family background must be considered 

under Penal Code section 190.3, factors (i) and (k), read the 

language of those factors, and described the relevant facts. The 

prosecutor referenced defendant’s family history, questioning 

how “a childhood . . . completely lacking in morality” was “a 

matter in mitigation against any matter in aggravation,” and 

urged the jury to consider that question while deliberating. How 

the jury ultimately weighed these facts is of no moment provided 

the jury was properly instructed, and here they were. 

(Cf. People v. Sims (1993) 5 Cal.4th 405, 464 [where prosecutor 

“did not imply that the jury should disregard the evidence of 

[the] defendant’s background, but rather that, in relation to the 

nature of the crimes committed, it had no mitigating effect,”

prosecutor’s remarks “fall within the bounds of proper 

argument”].) The prosecutor urged the jury not to consider 

defendant’s age as a factor in mitigation, explaining that were 

defendant 17 years old like codefendant Pressley, the jury might 

give greater weight to his age. At the time of trial, defendants 

as young as 16 could receive the death penalty. (Stanford 

v. Kentucky (1989) 492 U.S. 361; contra, Roper v. Simmons

(2005) 543 U.S. 551 [declaring the death penalty for 16- and 17-

year-olds unconstitutional].) A jury could rationally 

differentiate between the culpability of a 17 year old and 

someone nearly 21. It was not misconduct for the prosecutor to 

urge the jury to give defendant’s age little weight as a factor in 

mitigation. (See People v. Dykes, supra, 46 Cal.4th at p. 787.)
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Defendant also argues that the prosecutor committed 

misconduct by presenting evidence concerning conditions of 

confinement under a life sentence. Defendant contends such 

evidence is not relevant under Penal Code section 190.3, factor 

(k). “[E]vidence concerning conditions of confinement for a 

person serving a sentence of life without possibility of parole is 

not relevant to the penalty determination because it has no 

bearing on the defendant’s character, culpability, or the 

circumstances of the offense under either the federal 

Constitution or [Penal Code] section 190.3, factor (k).” (People 

v. Martinez, supra, 47 Cal.4th at p. 963.) But defendant failed 

to object to the prosecutor’s argument concerning conditions of 

confinement; accordingly, any claim of error is forfeited. (Ibid.) 

Even if preserved, any error in admitting the statement was 

harmless, as the prosecutor’s comment did not so “infect[] the 

trial with . . . unfairness as to make the conviction a denial of 

due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.)

2. Challenges to California’s Death Penalty 

 Statute 

Defendant raises a number of challenges to California’s 

death penalty law, each of which we have previously rejected. 

“ ‘[T]he California death penalty statute is not 

impermissibly broad, whether considered on its face or as 

interpreted by this court.’ ” (People v. Edwards (2013) 

57 Cal.4th 658, 767, quoting People v. Dykes, supra, 46 Cal.4th 

at p. 813.)

Penal Code section 190.3, factor (a), which permits a jury 

to consider the circumstances of the offense in sentencing, does 

not result in arbitrary or capricious imposition of the death 

penalty in violation of the Fifth, Sixth, Eighth, or Fourteenth 
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89

Amendments to the United States Constitution. (People v. 

Simon (2016) 1 Cal.5th 98, 149.)

The “death penalty statute ‘is not invalid for failing to 

require . . . unanimity as to aggravating factors [and] proof of all 

aggravating factors beyond a reasonable doubt’ ”; Apprendi v. 

New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 

U.S. 584, do not alter that conclusion. (People v. Lopez (2018) 

5 Cal.5th 339, 370; see People v. Lewis (2008) 43 Cal.4th 415,

533 [aggravating factors need not be found beyond a reasonable 

doubt].) Nor is the death penalty statute unconstitutional for 

“permitting jury consideration of a defendant’s unadjudicated 

violent criminal activity under [Penal Code] section 190.3, factor 

(b).” (Bryant, supra, 60 Cal.4th at p. 469.)

Defendant’s claims concerning the burden of proof are 

identical to those we considered and rejected in People v. 

Mendoza (2011) 52 Cal.4th 1056, 1096: “ ‘ “The death penalty 

scheme is not unconstitutional because it fails to allocate the 

burden of proof—or establish a standard of proof—for finding 

the existence of an aggravating factor.” ’ ” “Nor was the trial 

court required to instruct the jury that there is no burden of 

proof at the penalty phase. [Citation.] The federal Constitution 

does not require that the state bear some burden of persuasion 

at the penalty phase, and the jury instructions were not 

deficient in failing to so provide.” (Ibid.)

CALJIC No. 8.88 provides the jury with sufficient

guidance to administer the death penalty and meet 

constitutional minimum standards. “More specifically, CALJIC 

No. 8.88’s use of the . . . term ‘warranted’ . . . does not render the 

instruction impermissibly vague or ambiguous. [Citations.] 

Where, as here, the jury is instructed in the language of CALJIC 
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90

No. 8.88, the court need not further instruct that life without 

parole is mandatory if mitigation outweighs aggravation, or that 

life without parole is permissible even if aggravation outweighs 

mitigation.” (People v. Mendoza, supra, 52 Cal.4th at p. 1097, 

fn. omitted.)

“The failure to instruct the jury that the prosecution bears 

some burden of persuasion regarding the jury’s penalty 

determination does not violate the Sixth, Eighth or Fourteenth 

Amendment.” (People v. Taylor (2010) 48 Cal.4th 574, 662.)

“Nor does the failure to instruct jurors they must unanimously 

agree on the existence of particular aggravating factors, but not 

on the existence of any mitigating factors, violate the Sixth, 

Eighth, or Fourteenth Amendment.” (Ibid.) “There is no 

constitutional requirement that a trial court instruct the jury on 

the ‘ “presumption of life.” ’ ” (Ibid., quoting People 

v. Whisenhunt (2008) 44 Cal.4th 174, 228.)

The lack of written jury findings during the penalty phase 

does not violate due process or the Eighth Amendment, nor does 

it “deprive a capital defendant of meaningful appellate review.” 

(People v. Winbush (2017) 2 Cal.5th 402, 490, citing People v. 

Linton (2013) 56 Cal.4th 1146, 1216.)

“Intercase proportionality review, comparing defendant’s 

case to other murder cases to assess relative culpability, is not 

required by the due process, equal protection, fair trial, or cruel 

and unusual punishment clauses of the federal Constitution.” 

(People v. Winbush, supra, 2 Cal.5th at p. 490.) “ ‘California’s 

death penalty law does not violate equal protection by treating 

capital and noncapital defendants differently.’ ” (People 

v. Anderson (2018) 5 Cal.5th 372, 425.) California’s death 
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91

penalty statute does not violate international law. (Ibid; 

see also People v. Sánchez (2016) 63 Cal.4th 411, 488.)

F. State Bar Motion to Quash Defendant’s

 Subpoena

On February 13, 2002, defendant’s retained counsel, Cheri 

A. Owen, submitted a tender of resignation, with charges 

pending, from the State Bar. She resigned from the State Bar, 

again with charges pending, on April 17, 2002. In July of that 

year, defendant subpoenaed Owen’s records from the State Bar. 

The State Bar moved to quash the subpoena, and the trial court 

granted the motion. Defendant contends this was error. We 

disagree.

Defendant’s subpoena sought “ ‘[a]ny and all documents 

pertaining to attorney CHERI A. OWEN, who was admitted to 

the California State Bar on June 9, 1999, with state bar number 

201893. The documents should include but are not limited to all 

notes, reports, complaints, and investigative notes and 

reports.’ ” The State Bar moved to quash the subpoena on 

grounds that the request for “any and all” records was overbroad 

and that the information sought was privileged and confidential. 

In response, defendant’s counsel argued that in camera review 

of all State Bar complaints related to Owen was necessary to 

ascertain whether Owen performed deficiently for clients other 

than defendant while defendant’s trial was ongoing. This 

would, he claimed, help determine whether Owen performed 

adequately during defendant’s trial. 

The trial court granted the State Bar’s motion to quash on 

grounds that the documents were privileged. And while the 

court acknowledged that due process might nevertheless require 

release if the requested information met a certain standard of 
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relevance, defendant had not made such a showing. The court 

explained the best lens through which to view whether or not 

Owen competently performed her duties while representing 

defendant was “looking at what Miss Owen did or did not do in 

connection with this case. If she didn’t make the proper 

investigation, if she didn’t talk to the witnesses she should have 

talked to, if she didn’t properly prepare her briefs or the legal 

issues in the case, if she didn’t properly present the case in trial, 

that’s what you look at, and that’s the proof of the pudding.” 

Looking at a complaint made by someone else would have no 

bearing on the adequacy of her performance in defendant’s case. 

The trial court also denied defendant’s request that the 

requested documents be produced to the court and sealed.13 

Contrary to defendant’s arguments, we see no error in the 

trial court’s ruling. Numerous provisions of law establish the 

privileged and confidential status of the information defendant 

sought from the State Bar. For example, Business and 

Professions Code section 6086.1, subdivision (b) provides that 

State Bar disciplinary investigations are confidential until 

charges are filed. Business and Professions Code section 6094 

further provides that complaints made to a disciplinary agency 

regarding attorney misconduct issues or incompetence are 

privileged. The State Bar Rules of Procedure, rules 2301 and 

2302(a), likewise state, respectively, “the files and records of the 

Office of the Chief Trial Counsel are confidential” and, with 

 

13 In record augmentation proceedings that took place in 

2009 in anticipation of briefing before this court, defendant’s 

counsel argued Owen’s State Bar records might have relevance 

to an eventual habeas corpus proceeding before this court. With 

that in mind, the trial court ordered the State Bar to preserve 

the records. 
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Opinion of the Court by Kruger, J.

93

exceptions, “information concerning inquiries, complaints or 

investigations is confidential.” 

Nor has defendant established that the ruling violated his 

due process rights. Defendant invokes the high court’s decision 

in Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57–58, in which 

the court ruled that a defendant accused of child sexual abuse 

was entitled to have a court conduct an in camera review of 

confidential case reports that might have contained evidence 

relevant to his defense. But here, by contrast, the information 

defendant sought to obtain from the State Bar was not relevant 

to defendant’s case. Defendant sought information about 

complaints made by others about Owen’s performance as a 

lawyer but failed to show how complaints made by others would 

bear on whether she committed prejudicial errors in her 

representation of defendant. (See Strickland v. Washington

(1984) 466 U.S. 668, 687.) Accordingly, we conclude the trial 

court’s decision granting the State Bar’s motion to quash 

defendant’s subpoena for Owen’s records was not in error.

G. Denial of Motion for New Trial 

Defendant also filed a motion seeking a new trial on 

numerous grounds, including, as relevant here, Owen’s deficient 

performance as defense counsel. The trial court denied the 

motion without holding a hearing. Defendant contends this was 

error. We conclude the trial court acted within its discretion in 

disposing of the new trial motion.
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1. Background

On March 19, 2002, defendant filed motions for new guilt 

and penalty phase trials via Keenan14 counsel Richard V. 

Crouter. Numerous declarations and memoranda of points and 

authorities followed, and the motion, initially set to be heard on 

March 25, 2002, was not heard until February 7, 2003. In the 

meantime, defendant retained new counsel, Robert Sanger, and 

Crouter was relieved. Sanger made supplemental arguments in 

support of the new trial motion, largely focused on the adequacy 

of defense counsel’s performance at trial. In support of the 

motion, counsel contended that Attorney Owen—who had been 

admitted to the State Bar just two years before the trial began 

and who would resign from the Bar before the proceedings were 

over—was “woefully inexperienced and fell short of the 

minimum standards of competence required of defense counsel 

in a capital case.” 

The trial court addressed and rejected each of the claims 

of error raised in the new trial motion, including the claims of 

ineffective assistance of counsel. 

2. Discussion

Defendant raises several challenges to the trial court’s 

denial of the new trial motion. “ ‘ “ ‘We review a trial court’s 

ruling on a motion for a new trial under a deferential abuse-ofdiscretion standard.’ [Citations.] ‘ “A trial court’s ruling on a 

motion for new trial is so completely within that court’s 

discretion that a reviewing court will not disturb the ruling 

 

14 Keenan v. Superior Court (1982) 31 Cal.3d 424. In Keenan, 

we held Penal Code section 987.9 funds may be used to appoint 

a second attorney for a defendant in a capital case. (Keenan, at 

p. 434.) 
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Opinion of the Court by Kruger, J.

95

absent a manifest and unmistakable abuse of that 

discretion.” ’ ” ’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 

1108.) We find no such abuse of discretion here.

As a procedural matter, defendant contends the trial court 

erred by ruling on the new trial motion without holding an 

evidentiary hearing that would have permitted him to adduce 

new evidence in support of his ineffective assistance claims. He 

further contends the trial judge’s consideration of the motion 

was rushed and inadequate due to the trial judge’s imminent 

retirement. These procedural arguments lack merit. The trial 

court was not required to hold an evidentiary hearing on the new 

trial motion; the court’s “only obligation is to ‘ “ ‘make whatever 

inquiry is reasonably necessary’ ” to resolve the matter.’ ” 

(People v. Mora and Rangel (2018) 5 Cal.5th 442, 517.) And the 

record does not support defendant’s claim that the trial court 

rushed to dispose of the motion without thoroughly considering 

its merits. On the contrary, the court granted numerous 

extensions to allow defense counsel the opportunity to augment 

the new trial motion and to allow the prosecutor an opportunity 

to respond. The motion, initially set to be heard in March 2002, 

was not heard until almost one year later, in February 2003. 

The trial court thereafter issued a thoroughly reasoned denial 

of the motion; its order alone comprises 23 pages of transcript, 

and the discussion spans dozens of pages on top of that. There 

is no basis for defendant’s suggestion that the trial court cut 

corners in considering the motion. 

On the merits, defendant contends that the trial court 

erred in rejecting his claim that he did not receive the effective 

assistance of trial counsel guaranteed by the United States and 

California Constitutions. Usually, “ineffective assistance [of 

counsel claims are] more appropriately decided in a habeas 
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Opinion of the Court by Kruger, J.

96

corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal.4th 

264, 266–267.) But we have also held that a defendant may 

raise the issue of counsel’s effectiveness as a basis for a new 

trial, and, to expedite justice, a trial court should rule “[i]f the 

court is able to determine the effectiveness issue on such 

motion.” (People v. Fosselman (1983) 33 Cal.3d 572, 582–583.) 

To make out a claim that counsel rendered constitutionally 

ineffective assistance, “the defendant must first show counsel’s 

performance was deficient, in that it fell below an objective 

standard of reasonableness under prevailing professional 

norms. Second, the defendant must show resulting prejudice, 

i.e., a reasonable probability that, but for counsel’s deficient 

performance, the outcome of the proceeding would have been 

different.” (People v. Mai (2013) 57 Cal.4th 986, 1009.) To make 

out an ineffective assistance claim on the basis of the trial 

record, the defendant must show “(1) the record affirmatively 

discloses counsel had no rational tactical purpose for the 

challenged act or omission, (2) counsel was asked for a reason 

and failed to provide one, or (3) there simply could be no 

satisfactory explanation. All other claims of ineffective 

assistance are more appropriately resolved in a habeas corpus 

proceeding.” (Ibid.)

Here, in support of his new trial claim, defendant 

emphasizes Owen’s remarkable lack of professional 

experience—she was a new lawyer who had never before worked 

on a capital case—and the cloud under which she abruptly 

exited the representation of defendant (and the profession as a 

whole). He notes that Owen did not satisfy the criteria for 

appointed trial counsel in a capital case. (See Cal. Rules of 

Court, rule 4.117.) 
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Opinion of the Court by Kruger, J.

97

But Owen was not appointed by the court; she was 

privately retained. And although defendant’s appellate counsel

suggested otherwise at oral argument, Owen’s brief history as a 

lawyer and the circumstances of her resignation from the bar do 

not establish that defendant was totally deprived of counsel 

during trial, requiring automatic reversal of the judgment. 

(United States v. Cronic (1984) 466 U.S. 648, 658–659.) 

Although defendant alleges Owen was absent for portions of 

jury selection and guilt phase testimony because she was 

meeting with a State Bar investigator, Owen was, in fact,

present during most of the trial (as was Keenan counsel, who 

was present during those portions of trial when Owen was 

absent). Owen made arguments and objections; she presented 

witnesses. The question before us, at this juncture, is whether

the trial record alone establishes that her performance fell below 

professional norms and that there is a reasonable probability 

that her deficient performance affected the result. Defendant 

has not made the necessary showing. The trial court therefore 

did not err in concluding it could not determine counsel was 

ineffective in the context of defendant’s new trial motion. 

(People v. Fosselman, supra, 33 Cal.3d at pp. 582–583.) 

Defendant contends that Owen did not adequately prepare 

a defense. This lack of preparation was demonstrated by Owen’s 

failure to interview witnesses and to develop a guilt phase case 

because she felt the police investigation was adequate and 

because defendant had confessed. But defendant’s primary 

argument regarding Owen’s deficient performance concerns her 

failure to develop and present evidence that defendant suffered 

from brain damage or a similar impairment. In support of the 

argument, defendant introduced the opinion of Dr. Albert 

Globus, a psychiatrist. Based on a social and medical history 
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Opinion of the Court by Kruger, J.

98

including an infantile skull fracture and febrile seizures, as well 

as postverdict neuropsychological testing, Dr. Globus opined 

that defendant suffered from organic brain syndrome. 

Defendant contends Owen was deficient for failing to develop 

and present such evidence of defendant’s impairments because 

such evidence was “the best defense” to charges that defendant 

killed Nick with premeditation and deliberation, as is required 

for first degree murder, as well as “the most compelling showing 

of mitigation” at the penalty phase.

The trial court reasonably ruled that defendant’s 

postverdict brain damage evidence was not a sufficient basis for 

granting a new trial. As to defendant’s first point, after hearing 

defendant’s evidence, the trial court concluded that competent 

counsel would not have presented a brain damage defense at the 

guilt phase “since it’s inconsistent with what the defense 

actually presented, which seems to me, under the 

circumstances, was a better shot,” given defendant’s confession 

to police. “That defense was that this was a false confession and 

somebody else was the killer.” The trial court noted that it had 

been presented with no cogent argument that the choice of this 

false confession strategy was itself the product of deficient 

performance.

Defendant criticizes the trial court’s reasoning but fails to 

grapple with the court’s central point: There are plausible 

reasons why competent counsel would choose not to present a 

brain damage defense in an attempt to negate the prosecution’s 

showing of premeditation and deliberation. By defendant’s own 

account to police, he accepted Hollywood’s assignment to kill 

Nick; traveled from Los Angeles to Santa Barbara armed with a 

handgun; picked up Nick from the Lemon Tree Inn and 

transported him to a remote location where a grave had already 
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Opinion of the Court by Kruger, J.

99

been dug; then shot Nick several times and buried him. This 

account strongly points to a conclusion that defendant acted 

with premeditation and deliberation when he killed Nick. As 

the trial court noted, competent counsel might reasonably 

determine that defendant’s “better shot” was to convince the 

jury that the entire confession was false, rather than attempting 

to argue that defendant did in fact commit the crime but without 

premeditating or deliberating. Further, as we have previously 

noted, “presenting expert mental health testimony inherently 

risks inviting damaging cross-examination.” (People v. 

Rodriguez (2014) 58 Cal.4th 587, 624, fn. 5.) At least on this 

record, we cannot say the choice not to pursue a brain damage 

defense was incompetent. Nor has defendant shown that the 

presentation of such a defense would likely have changed the 

outcome of the trial.

Insofar as defendant argues that competent counsel would 

have presented the brain damage evidence to bolster his claim 

that his confession was false, the trial court reasonably rejected 

that argument as well. Defendant argued that brain damage 

evidence would have neutralized the prosecution’s rebuttal 

witness, who opined that an individual would not falsely confess 

and claim amnesia without suffering serious mental illness or 

brain damage. But, the trial court noted, defendant’s own 

expert had not agreed that brain damage was an “essential 

precondition to the person’s predilection to give a false 

confession under certain circumstances,” and had not relied on 

evidence of brain damage in offering his opinion in support of 

the defense. Under the circumstances, we cannot say there is 

no plausible reason why competent counsel would choose not to 

develop a brain damage defense and instead to rely on the 

opinion of the defense expert. And once again, defendant has 
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100

not shown that the presentation of his brain damage evidence 

would likely have altered the jury’s view of whether to believe 

defendant’s confession or instead to believe that he gave the 

confession while suffering from temporary amnesia, as he 

testified at trial.

Turning to the question of mitigation, the trial court 

concluded that defendant’s newly presented evidence of mental 

defect or brain damage, even if available, would not have made 

a difference at the penalty phase. In making an independent 

determination of the propriety of the penalty, the trial court 

reweighed the mitigating circumstances that had been 

presented, including defendant’s lack of criminal record, lack of 

violent history, peacemaking role among his friend group, 

excessive use of alcohol and marijuana, dependent personality, 

and obedience to Hollywood. The court concluded that no 

mitigating circumstance “appear[ed] to significantly extenuate 

the crime.” The court concluded defendant’s newly presented 

evidence of brain damage would not likely have altered the 

relevant balance of factors. We see no error in the court’s 

determination.

Defendant’s next claim of ineffective assistance centers on 

a set of two agreements executed in February 2002, in which 

defendant agreed to give Owen an “exclusive grant” to the media 

and literary rights to his background and story and to waive 

attorney-client privilege to permit Owen to speak and write 

about his criminal case. Defendant contends that these 

agreements created a conflict of interest that “tainted the 

representation ab initio,” and that establish grounds for a new 

trial. The trial court disagreed, and we do as well.
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101

As the trial court acknowledged, these agreements 

“grant[ed] [Owen] exclusive rights to exploit her client’s story 

for her benefit,” creating the potential for a conflict of interest. 

But to establish a deprivation of his constitutional right to 

counsel, defendant must show more than a “ ‘theoretical division 

of loyalties’ ”; he must show that counsel “labored under an 

actual conflict of interest ‘that affected counsel’s performance.’ ” 

(People v. Doolin (2009) 45 Cal.4th 390, 417.) Or as the trial 

court put it, to succeed on the conflict claim, “there has to be 

some showing of cause and effect, in other words, that the act or 

omission of the lawyer in seeking the benefits of the agreement 

has placed her client’s defense in jeopardy.” As the trial court 

explained, no such showing had been made here. Indeed, the 

agreements were made some two months after the jury rendered 

its penalty verdict and just one day before Owen tendered her 

resignation to the State Bar. And contrary to defendant’s 

argument, nothing in the record shows that the parties had been 

operating under any comparable agreement previously, while 

Owen was still representing defendant at trial.

The case before us thus differs in critical respects from 

People v. Corona (1978) 80 Cal.App.3d 684, on which defendant 

relies. In that case, the record showed that trial counsel agreed 

to represent the defendant, who was facing 25 counts of first 

degree murder, in exchange for exclusive literary rights to the 

defendant’s life story, including the criminal proceedings 

against him. (Id. at p. 703.) Trial counsel went on to make 

decisions in the interests of “his own pocketbook” rather than 

“the best interests of his client” (id. at p. 720), including the 

abandonment of mental defenses central to the case (id. at 

pp. 721, 727). No comparable circumstances are present here. 

The record neither shows that Owen labored under a potential 
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102

conflict of interest during the course of her representation of 

defendant, nor shows that “the conflict of interest . . . resulted 

in obvious prejudice” to defendant’s case, as it had in Corona. 

(Id. at p. 720, fn. omitted.)

Finally, defendant asks us to compel the trial court to 

reconsider its handling of various other claims in the motion for 

new trial, including a claim that Owen was acting as an 

informant for the Los Angeles District Attorney and a claim that 

Owen instructed defense investigators not to investigate the 

case and instead diverted investigation funds to satisfy other 

obligations. The trial court rejected these arguments on the 

grounds that the claims were unsupported by the record and, 

even if true, would not have established that defendant was 

prejudiced by Owen’s deficient performance. The trial court did 

not abuse its discretion in concluding that none of these claims 

constituted a basis for granting defendant’s new trial motion.

III. DISPOSITION

The judgment of the superior court is affirmed.

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. Hoyt

________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding 

Review Granted

Rehearing Granted

________________________________________________________________________________

Opinion No. S113653

Date Filed: January 30, 2020

________________________________________________________________________________

Court: Superior

County: Santa Barbara

Judge: William L. Gordon

________________________________________________________________________________ 

Counsel:

Roger Teich, under appointment by the Supreme Court, for Defendant Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney 

General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster and David F. Glassman, Deputy 

Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Roger Teich

290 Nevada Street

San Francisco, CA 94110

(415) 948-0045

David F. Glassman

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 897-2355