## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE
Plaintiff and Respondent,

v.
RYAN JAMES HOYT

, Defendant and Appellant.

S 113653

Santa Barbara County Superior Court

1014465

__________________________________________________________

January 30 , 20 20

Justice Kruger authored the opinion of the C ourt, in which Chief
Justice Cantil

- Sakauye and Justices Chin, Corrigan, Liu, Cuéllar,
and Groban concurred

.

___________________________________________________________

.PEOPLE v. HOYT

S 113653

Opinion of the Court by Kruger, J.

D efendant Ryan James Hoyt was convicted of the kidnap
and murder of Nicholas Markowitz and sentenced to death

. W e affirm the judgment.

I. BACKGROUND
On October 30, 2000, defendant was charged by g rand j ury i ndictment with kidnap ping 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 Ru gge, Graham Pressley, and William Skidmore were charged with the same crimes, but t h e 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 o f kidnap ping 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

re turned 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

T he events that led to Nick’s kidnap and murder stemmed
from a feud between Jesse James Hollywood and Nic k ’s half

brother , Ben , over a drug debt

. Ben was supposed to have sold illegal drugs for Hollywood but failed to do s o. As a result, Ben owed Hollywood $1,200 , and their relationship had soured over
th is 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 testif ied 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 d ays 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 fri ends described defendant as the “low man on the totem pole” in their circle

. To pay for the drugs he purchased from Hollywood for resale, d efendant 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

. D efendant agreed to carry out the killing

, along with two accomplices, in exchangePEOPLE 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 peop le knew where he lived. When Sheehan arrived at Hollywood’s home, defendant, Skidmore, and one other friend were there, drinking beer and smok ing marijuana. S ome hours later, Sheehan, Hollywood, and Skidmore met again at Sheehan’s apartment, where Hollywood and Skidmore t alked
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 ho ur. 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 s aw 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. W hen the assailants w ere 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 . Affront i 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 a nd do anything irrational.”
When the men arrived in Santa Barbara, they stopped at

a n 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

. T elephone 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 Affro nti entered after parking the van , he saw Nick in a bedroom wit h hi s 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 arrivedPEOPLE 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 boun d 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
barbe c ue. 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 forgot te n his cell phone and returned to Hoefling er’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
S kidmore returned the van to its own er

. Defendant and Skidmore walked back to Hollywood’s ho us e , 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

. Adams

Young had been spen ding 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 th ey, 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 m et Hollywood the week
before and knew that Hollywood , Rugge, and Pressley were involved with selling marijuana. Adams

- Young understood t hat 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 ni ght 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 CarpenterPEOPLE v. HOYT Opinion of the Court by Kruger, J.

7 uncomfortable. Carpenter and Adams

- Young left Rugge’s house shortly thereafter

. b

. Hollywood Confesses t he Kidnapping to Sheehan

Sheeh an testified that Hollywood and Lasher socialized at Sheehan’s apartment later on the night of August 7

, drinking
alcohol and smok ing marijuana with him

. Sheehan conceded he was “probably” “pretty wasted” and d id 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 w as walking down the street. Sheehan d id 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 reach ing 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 the re 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 andPEOPLE v. HOYT Opinion of the Court by Kruger, J.

8 offered him money to kill Nick Markowitz.” Adams

- Young
recal led “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. Press ley’s mo ther 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, t hey 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. A round 11:00 or 11:30 p.m. , Rugge asked Adams

- Young

, Appleton, and Carpenter to leave for the night

. b

. Hollywood ’s Activ ities 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, J ohn

. Hollywood explained to Hogg that acquaintances had picked upPEOPLE 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
advic e. When Hogg suggested Hollywood go to the police, Hollywood said he cou ld not do that. Hogg d escri bed to Hollywood the penalties for kidnap ping 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 fi ve minutes of Hogg ’s explaining the potential penalties for kidnap ping . Hogg tried to page Hollywood several times
after Hollywood left, but Hollywood did not respond

. On t he 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 1 7

, 2000

a

. Hollywood’s Father Rushes Home Hollywood’s father, J ohn

, testified that on the evening of August 8, he contacted Hogg and learned that Hollywood had “a problem” or was “in trouble.” J ohn was on vacation in Big Sur
but left for home after learning his son might be in trouble. J ohn
tried unsuccessfully to reach his son nume rous times on his way
home. J ohn finally reached Hollywood via Lasher, and Hollywood directed him to Lasher’s home. J ohn 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.” J ohn understood that Hollywood believed his life was in some danger, t hat Hollywood and Ben had been in a feud for some time, and thatPEOPLE 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, J ohn paged defendant a nd asked to meet at a park. J ohn 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.’ ” D efendant
told him that “he didn’t ha ve control of the situation. And he, you know he was trying to find out, but he wasn’t having any
luck.” J ohn 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 J ohn to call defendant. Defendant
told J ohn he did not know those details either, but “would see
what he could find out.” J ohn 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.
D efendant told Sheehan that “a problem was taken care of.”
Sheehan understood this to refer to Nick. When S heehan asked defendant to elaborate, defendant i nitially 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. D efendant assured Sheehan that the debt to Hollywood “was taken c are 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 bir thday 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 defen dant again discussed Nick’s killing. Defendant told Sheehan they killed Nick somewhere in Santa Barbara. Defendant described picking Nick up from a m otel 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 beyon d the point where vehicles can go no further . The group saw brush piled high

, and whenPEOPLE v. HOYT Opinion of the Court by Kruger, J.

12 they began removing it

, they realized a human might b e 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 vide o. While Wikstrom was filming there, a man pointed out an area

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

, initially not ing 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 call e d . 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 th e scene

. Nick’s body was only lightly and partially covered with dirt. The weather that day and for a few days before wa s warm, resulting in significant decomposition. Law enforcement officials
removed c artridge casings and a bullet f rom the first few i nches 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 mouthPEOPLE v. HOYT Opinion of the Court by Kruger, J.

13 had been duct

- taped. D uct tape was also wrapped around Nick’s
hands and head

. 2
An autopsy reveal ed 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, d efendant 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 d efendant 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 th e 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.

Defendan t 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 woul d “mind if I go back to my cell and think about [it] tonight an d 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 urg ing defendant to tell his story

. D efendant told them Ben owed Hollywood significant sums of money, as did he

. De fendant 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. A fter his assertion to detectives that he had nothing to do with the kidnappin g, 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 m otel 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 spe aking to them at any point. Detective West offered to let defendant “collect [his] thoughts

, ” and defendant said he wished “more than anythin g” that he had a cigarette. Sergeant Reinstadler reminded defendant, “You wanted to talk to us, man.” D efendant asked whether he had been helpful, and
the detectives urge d 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 say ing, ‘Please. Please.’ ” The detectives asked if that was what the duct tape ar ound the victim’s mouth was for , and d efendant repli ed, “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 ; Pr essley, who m 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

D efendant testified on his own behalf. H e 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 hi s 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 o ff the last $200 of his debt by delivering a package to Rugg e 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. De fendant 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 Holly wood’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,

presu ming 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,

retur ning 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 testifi ed that he did not hear of Nick’s death until the evening of August 12, when Skidmore told him that “Ben’s brothe r had been found murdered.” Several days later,
defendant learned Skidmore had been arrested. Defendant began calling mutual friends, includi ng Sheehan, who told defendant “he didn’t want [him] at his house.” Defendant did not heed Sheehan’s request. Defendant receive d several pages from a number he did not recognize, and believed police were trying to reach him. Defendant asked Sheehan to t ake him to a pay phone so he could call the police

. H e was arrested shortly
thereafter

. Following his arrest, he was eventually taken to Santa Barbara, although he d id not recall events with specificity. He
recall ed throwing up and kn ew he called his mother but claim ed to have no memory of the content of the phone call

. In fact,
defendant testified that h e recalled nothing from the time of his arrest on August 16 until he woke up alone in a jail cell four days later. H e did not remembe r his confession to detectives on August 17.PEOPLE v. HOYT 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 propo sed 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 assume d defendant suffered from amnesia, including the characteristics
of amnesia. But t he 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 th at 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

. ” H e had low self

- esteem, wa s willing to endure “unpleasant conditions” to rem ain near the person on whom he

wa s dependent

, and wa s uncomfortable acknowledging his feelings. None of these features, in Dr. Glaser’s opinion, madePEOPLE v. HOYT Opinion of the Court by Kruger, J.

19 defendant more likely to f alsely confess. Dr. Glaser also
evalu ated 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 ane sthesia 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

su sceptible to falsely confessing. Dr. Chidekel determined
defendant suffer ed from “avoidance [ sic ] personality disorder,
with self

- defeati ng and dependent features.” Based on the tests administered, Dr. Chidekel was unable to diagnose defendant with any o ther 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 th at 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. V ictoria 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 abu sive” 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 , des pite 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
defend ant 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. H er family w as 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 wa s a “sweet kid

, ” and she viewed him

— the middle
child

— as a mediator.
Victoria’s mother, Carol Stendel, testified about Victoria’s early childhoo d. 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 hosp italized due to depression . The familyPEOPLE v. HOYT Opinion of the Court by Kruger, J.

21 decided against treatment. Defe ndant’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 th e 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 adu lt. 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 t hat 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

D efendant ’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 placePEOPLE v. HOYT Opinion of the Court by Kruger, J.

22 in a national forest

, the case f a ll s 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.
Be tts (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. A s this court explained more than a century ago, federa l 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

. ) W hether 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 e nclave c lause of the federal C onstitution (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 po ints to no authority indicating that the feder al 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 hi story. 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 land s 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 whe n 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. T he 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 Developer s v. County of Inyo (2004) 122 Cal.App.4th 1512, 1522

– 1523; accord, Martin
v. Clinton Constr uction Co. (1940) 41 Cal.App.2d 35, 46 ; see generally F

or t 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 na me 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 uniq ue to California ( s ee Van Brocklin v. State of Tennessee (1886) 117 U.S. 151, 164 ) , and it offers no support for defendant’s argument

. S uffice it to say, a prohibition on interfering with federal title is not the same as a prohibition on prosecuting c rime . (See Coso Energy

, at pp. 1522

– 1523, citing
U.S. v. Bateman (N.D.Cal. 1888) 34 F. 86, 8 8

– 90.)
In the alternative, defendant argues that California relinquished its prosecutorial power to the federal government
in an 1891 act ceding “exclusive jurisdicti on 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 s hall be or remain the owner thereof, for all purposes except the administration of the criminal laws of thi s 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 s tate’s

acce ptance 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.) D efendant asserts
that this exception “has been uniformly interpreted as limitedPEOPLE v. HOYT Opinion of the Court by Kruger, J.

25 to the right to serve process

, ” but th at 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 p artial cession of jurisdiction. (See S. R. A.

, Inc. v. Minnesota ( 1946) 327 U.S. 558, 563.) A s particularly relevant here, only a few years later Congress explicitly recognize d 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 i n 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 land s comprising
the Los Padres National Forest to the United States

, California
also retained jurisdiction to administer its criminal laws on the
ceded land s

. 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 R e quest for S equestered V oir D ire

Defendant first points to the trial court’s decision to deny defendant’s request for sequestered voir dire. B efore juryPEOPLE 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 regar ding 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 w as 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 un necessary ; jurors’ attitudes and exposure to p retrial 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 clai m 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 42 1, 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 juro rs in all criminal cases, including death penalty cases.” ’ ” ( Perez

, at

p. 443, quoting Code Civ. Proc., § 223.) Here

, d efendant has not shown that group voir dire was impracticable

. H e soughtPEOPLE 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 act ual, 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 Q uestions f rom J uror Q uestionnaire 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 pa nels of prospective jurors. B efore
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 ? ” Q uestion number 79 inquired whether a prospectivePEOPLE v. HOYT Opinion of the Court by Kruger, J.

28 juror’s “ feelings about the issue of kidna pping and murder [ wer e ] such that” the juror “could not be fair and impartial in relation to the defendant” or “to [a] complaining witness,” or alternatively if “[n]e ither statement applie[d].” Q uestion 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 ? ” Q uestion number 120 inquired, “During this trial you may hear detailed descriptions of kidnap p ing 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 h arbored disqualifying biases concerning the commission of such a crime

. We disagree.

A t rial 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, i n 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 kidn apping. 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[] prospecti ve jurors to prejud ge 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 omit ted .)PEOPLE v. HOYT Opinion of the Court by Kruger, J.

30 c. Conduct of V

oir D ire

D efendant next argues that v oir 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 : “Si x 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

, “ S uch general inquiries are insufficient under long

- standing United States Supreme Court ca se law

. ” ( See Morgan v. Illinois (1992) 504 U.S. 719, 73 4

– 73 5

. ) 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
individua l jurors raised “particular concerns about impartiality” that were not adequately explored in voir dire because the trial court imper missibly restricted questioning . But c ontrary toPEOPLE v. HOYT Opinion of the Court by Kruger, J.

31 defendant’s contention, the trial court’s decision to remove the
four def ense

- proposed questio ns 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

conce rns about impartiality that were not adequately explored
in voir dire. Defendant asserts that Juror No. 9184 ’s questionnaire suggests s he was biased against defendant
because she responded affirmatively to the question

, “Do you have any feelings against t he 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 tha t the defendant is more likely to be guilty than not guilty.” But d uring voir dire, d efense 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] belie ve[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 notPEOPLE 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 Juro r No. 8919’s questionnaire responses raised particular concerns because Juror No. 8919 “[d]isagree[d] somewhat” with the statement

, “ ‘ A nyone 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

, “ ‘ A nyone who intentionally kills another person should never get the death penalty,’ ” adding, “should vs.
shall.” Taken together, these respo nses 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
inte ntionally 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 indi cate that the j uror 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 deat h 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 res ponses 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, c ounsel then clarified that the q uestion 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
determin ing “life imprisonment without parole to be the most appropriate se ntence.” 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 deter mine 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
P rospective J uror 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 healthPEOPLE v. HOYT Opinion of the Court by Kruger, J.

34 depa rtment and the c ounty s heriff’s department. During voir
dir e , the trial court asked F.G. whether any o f 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 ha d received life sentences, he “would be inclined to consider the potential sentence in determining the issue of guilt or innocence” and whether tho se 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 deliberat e 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 tha t no matter what I did, that would be a factor.” T he 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 juror s on its own motion . ( Peop le 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

. T he court engaged in a colloquy with F.G. , probing hi s response s 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.

wo uld be unable to follow the trial court’s instructions and evaluate the evidence of defendant’s guilt without co nsidering the potential penalty, and for that reason determined dismissal was warranted. Substantial evidence supports the trial court’s
determ ination. ( 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, d efendant argues it was improper for the trial court to excuse F.G. absent a request from one of the partie s. 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 de ath 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 p p. 49

– 50 .)
This case presents no comparable circumstances. Although defendant argues otherwise, in this case the trial court
reasonab ly 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 D efendant also attempts to analogize this case to People v.
Heard (2003) 31 Ca l.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 fa ctor 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 e xtortion. 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 maintain ed
that defendant had taken no part in the charged kid napping, because that kidnap, which began on August 6, had ended before
defendant drove to Santa Barbara. Specifically, counsel argued that the kidnap en ded 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
Jess e 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, defen dant, 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
kidna p concluded when Nick could have fle d , 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 m otel, 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 th ere 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 kidna p based on movement of the victim from
the m otel 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?

“ M R . 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 coun t that covers the entirety of his mo vement 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 th e 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. ( Peo ple 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 pro of 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 subst antial 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 clos ing 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 b ecause 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 defendantPEOPLE 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 w ell. 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 60 6, 615

– 616 ; U

. S

. v. Tsinhnahijinnie (9th Cir. 199 7) 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, d efendant argues that the trial court erred by admitting various out

- of

- court statements by Hollywood, Rugge, Skidmore, and Pressley, as testifi ed 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 C oconspirators’ hearsay stat ements 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, t he 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 fail ed to object on the base s 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 th is issue on appeal is close and dif ficult, we assume that defendant[] .

. . preserved the[] right, and proceedPEOPLE v. HOYT Opinion of the Court by Kruger, J.

44 to the merits. ” ( People v. Champion ( 1995 ) 9 Cal.4th 879, 908,
fn. 6.) Hav ing done so, we conclude the trial court committed no error in admitting the hearsay statements recounte d 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, w ere relevant to demonstrating this overarching conspiracy

, and were made in furtherance of the conspiracy.

iii. Jury Q uestion s
D efendant 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 special

circumstance ch arges. 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 IPEOPLE v. HOYT Opinion of the Court by Kruger, J.

45 gave y ou an instruction when a kidnapping terminates, and there was some, the defense

— there was some argume nt that the initial kidnap p ing 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 tha t 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 on g oing when this happened. And there

w as 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

. T he 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.”

T he jury a lso a sked 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, “ S o being a coconspirator has nothing to do with it ? ” The court reminded the jury that defendant was not charged withPEOPLE 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 n ot 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

argume nt that the trial court’s responses worked to direct a verdict on the kidnap count and kidnap

- murder special

circumstance charges is without merit.

iv

. Instruction al Issues

D efendant argues that a unanimity instruction was
warranted or could have cured whatever error the court created through its responses to juror questions. Such instructionsPEOPLE v. HOYT 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 disagreem ent. 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
defe ndant’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, 8 setting 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 Nic k

, which he claims were involuntary and were obtained in violation
of his Miranda rights. T he trial court did not err in admitting defendant’s confession

.

a. Background

W hile housed at the Santa Barbara jail, defendant s poke
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 t hen 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 fo rth 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’mPEOPLE 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 u nderstood 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

reques t 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 a n overnight
break

. The d etectives 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 anymor e, 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 affordPEOPLE 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

respon ded, “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 n ot 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, d efendant sought to suppress the confession, arguing that it was coerced and obtained in violation of
Miranda

. Defense counsel argued that Sergeant Reinstadler
and Dete ctive West threatened defendant with the death penalty and urged him to correct the impression that he was a “stone

- cold killer.” The trial court conclud ed the confession was
not coerced , explaining the detectives ’ reference to the deathPEOPLE v. HOYT Opinion of the Court by Kruger, J.

51 penalty “was actually in res p onse 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

- betwe en,’ 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 l ogic: 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 . R ather,
the court concluded

, it was somewhat factual and therefore was
not c oercive

. 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 h e 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] int o further discussions.
I don’t thin k they attempted to question him until after it was obvious that he wanted to resume the discussion. So, I don’t findPEOPLE v. HOYT 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, a nd 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 Mi randa 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 followin g defendant’s invocation was admissible because the prosecution agreed to terminate the tape at that point, and the court acknowledged this evidence, the so

called “Side

- B” evidence

, was not going to be admitted unless defendant elected to testify, which h ad 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 Amendme nt provides

, “ N o 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 aPEOPLE v. HOYT Opinion of the Court by Kruger, J.

53 set of prophylactic measures r equiring law enforcement officers to advise an accused of his right to remain silent and to have counsel present prior to any custodial interrogation ( i d. at

pp. 444

– 445)

. ” ( People v. Jackson (2016) 1 Cal.5 th 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. Sa nchez (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 defendan t’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
confinem ent 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 case

in

- 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 determi ne 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 he aring 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 d efendant did initiate further contact by requesting an audience with Detective West and Sergeant
Reinstadler , who then renewed Miranda warning s 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 thatPEOPLE v. HOYT Opinion of the Court by Kruger, J.

55 he now wanted to make a statement t o law enforcement.
Defendant said he did.

D efendant 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. Th is claim is utterly devoid of merit

. Defendant points

to no evidence suggest ing that the police had anything to do with
the conversation w ith defendant’s mother , except insofar as they facilitated the conversation by allowing defendant to make a
collect call. There is nothing coercive about a llow ing a detained suspect to call his mother.

D efendant 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
d efendant points to nothing else in the record , including his age (21 at the ti me of the interview), that w ould have raised questions about his ability to understand his rights as they had been explained to him. T he state satisfied its burden of demonstrating by a preponderance of the evidence that defendant’s waiver was knowing, in telligent, 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.PEOPLE v. HOYT 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 hi s 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 thin g 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 ne ver 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 repe atedly 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

. atPEOPLE v. HOYT Opinion of the Court by Kruger, J.

57 p. 74. ) Here, by contrast, defendant volu ntarily 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 learn ed he
could erase his debt to Hollywood in exchange for traveling to Santa Barbara to kill a person unknown to him. W hen the
detectives asked defendant what happened next, defendant said, “ Y ou guys know what happened

. I think I’m going to stop
there for no w. 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. T he detectives accommodated his request for

water
, and defendant told the m a number of things: H e 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 depen dency 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.” T he 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.PEOPLE v. HOYT Opinion of the Court by Kruger, J.

58 Sergeant Reinstadler t old 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 expl ained 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 conversat ion
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’ s tatements 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 decep tion 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 h e took a break and spoke with a lawyer; represented suspects can, of course, speak with law enforcement offi cials if they choose. It is unclear
whether the detectives intended to deceive defendant on this point; what the detectives may have meant to conve y is that a lawyer would likely advise against speaking with detectives

— meaning that, from their perspective, they almost certainlyPEOPLE v. HOYT 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
detec tives 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 spea k 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 supp ort 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. 5 th 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 influe nce.” ’ ”] .) 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. Wi lliams

, 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 defendantPEOPLE v. HOYT Opinion of the Court by Kruger, J.

60 was charged, and it do es not appear that the mention of the death penalty prompted defendant’s confession. Nor is u rging 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 an d dug the grave, which caused defendant to blurt out, “[T]he only thing I
did was kill him.” As d efendant acknowledges , however, “the use of deceptive comments does not necessarily render a statement involuntary. Deception does not undermine the
voluntar iness 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.) D efendant 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 ass ertion 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 thou ght, you know I shouldn’t do this? This is wrong. Because I haven’tPEOPLE v. HOYT 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 a n effective limiting
instru ction 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 Harri s 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
instr uction 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 Reinsta dler’s interview with defendant.PEOPLE v. HOYT 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
f orfeited 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 Amendment s 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 i s 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 do esn’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: “Th e 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 defe ndant out of the presence and hearing of the jury if any party so requests.”PEOPLE v. HOYT Opinion of the Court by Kruger, J.

63 there was uncertainty about whether or wh en 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
b e asked questions about it.” The court further r ejected 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

. D efense
counsel responded : “We understand your ruling. We object to
it on state and federal due process grounds

, but we a ccept it.”

Defendant now claims that he testified at trial only
because the court compelled him to do so on pain of forfeit ing
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 lai d 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 didPEOPLE v. HOYT 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 foundation al 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 op inion 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 defendan t. (Evid. Code, § 1200.) An adequate foundation was, in fact, required

. Despite defendant’s arguments to the contrary, n othing 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 defense

proffered evidence about the circumstances of a confession, without regard to the ordinary rules of evidence

.PEOPLE v. HOYT Opinion of the Court by Kruger, J.

65 Defendant also argues that the trial court violated his constitutional rights by effectively requir ing 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 d eprived “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 as sumed 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 wh at he meant at the time hePEOPLE v. HOYT 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 defendan t’s absolute right to testify cannot be foreclosed or censored based on

content

. ” B ut 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

D efendant 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 w as admissible for nonhearsay purposes. He alleges the court erred by prohibiting
Dr. Kania from explaining that accept ing telephone calls from
his mother provoked anxiety in defendant . He also alleges
Dr. Kania was prohibited from describ ing 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 make s no assertion that he made contemporaneous objections

, and we have not located any passage showing that defendant attemptedPEOPLE v. HOYT 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 c laims 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 t o testify for the prosecution whether, in his opinion,
defen dant’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.” T here 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 su bject as Dr. Glaser, testifying that he believed defendant’s claim of amnesia was credible.
Finally, defendant contend s 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 o r 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 thatPEOPLE v. HOYT Opinion of the Court by Kruger, J.

68 de fendant’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 ( Wa tson ) .)

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 d efendant

. We agree

. Before trial, t he 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

. A fter 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 w h ich the prosecution can do that is to be
entit led 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 an d 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 wa s willing to suffer “unpleasant conditions” to remain near th e person onPEOPLE v. HOYT Opinion of the Court by Kruger, J.

69 whom he wa s 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 giv en cues from the transcripts.

Dr. Chidekel evaluated defendant

, administer ing numerous psychological tests, and determined defendant
suffer ed from “avoidance [ sic ] personality disorder, with self

defeating 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 t o 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), whic h 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 85 6 , 939 , fn.

o mitted ( 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. (SeePEOPLE v. HOYT 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
i n 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 [d efendant] 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.) Th e Attorney General urges, however, that the se

error s w ere harmless under the relevant standard articulated in
Watson

, supra , 46 Cal.2d at p age 836. We agree

. I n Clark

, supra , 52 Cal.4th at p age 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 de cision “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. 94 0 .) “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 exami nations by” prosecution

retained 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

- retainedPEOPLE v. HOYT 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 memor y 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 disc redited 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

requ iring 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 a ll such instances and has therefore forfeited

t he se 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 admonishPEOPLE v. HOYT Opinion of the Court by Kruger, J.

72 the jury to disregard the impropriety.” ’ [Cit ation.] 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 signific ance 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 met hods 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 c ourt or jury.

Defendant first contends that the prosecutor argued “ facts
not in evidence ” when he stated in closing argument that
defendant did “ ‘ considera bly 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 toPEOPLE v. HOYT Opinion of the Court by Kruger, J.

73 relay certain statements implicating defendant in the grave

digging and burial. When Detective Cornell nevertheless testified that Pressley had said “they”

— presumably m eaning 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 M outh and dug t he 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 wit h the evidence of where and how hikers found Nick’s body. The prosecutor’s reference to
defendant “probably” doing more than shooting the victim wa s 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 tha t 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 opin ion as to whether or not a false confession was given in this

case ; the question was instead one for the jury to decide

. BothPEOPLE v. HOYT 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. (Se e ibid. )

D efendant also argues that the prosecutor referred in
clo sing 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 .)

D efendant 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 innoc ent because otherwise Sheehan would have been harboring a friend

, not a fugitive. Defendant objected, claiming the prosecution’s argument was speculative

. T he court sustained the objection and admonished the jury to disregard the prosecutor’s remarks

. D efendant now renews hisPEOPLE v. HOYT 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 d efendant
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, d efendant argues that the prosecutor committed misconduct by spending six transcript pages describing the “original” kidnap, in which defendant was not involved. In fact,
th e prosecutor spent less than two transcript pages describing the kidnapping, and some of t he 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 t o 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. 3.1 6 , concerning accomplice testimony, andPEOPLE v. HOYT 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 me rely 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 acco mplice is given.” ( Ibid. ; People v. Gomez (2018) 6 Cal.5th 243, 307 ; see id. at p. 3 08.)
On November 2, 2001, defendant submitted his list of proposed jury instructions, which included CALJIC No. 3.16, Witness Accomplice as Matter of Law. D efendant list ed 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 r ecord 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 confer ence was not settled or recorded . Defendant argues he should not bePEOPLE v. HOYT 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 h as 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 a lthough 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 subs tantive evidence of guilt which are made under suspect circumstances

. ” ’ ” ( People
v. Williams

, supra , 16 Ca l .4th at p. 682.) “ ‘ The most obvious suspect circumstances occur when the accomplice has been arrested or is questioned by the police. ’ [Citatio n.] ‘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. )PEOPLE v. HOYT 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 an d 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 Ho llywood 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 ins truction 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.PEOPLE v. HOYT 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. I n 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, t he jury was instructed with CALJIC No. 2.20 concerning the “believability of a witness.” The instruction told jurors to “consider any thing 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 contendsPEOPLE v. HOYT 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 wit h “ ‘ care and
caution. ’ ”
At trial, d efendant made no request to identify any
declarant other than Sheehan who testified under a grant of immunity and thus forfeited th at claim

. But the claim fails regardless

. T here 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 view ed 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 t he trial court did not err by failing to convey to the jury, via modification of CALJIC No. 2.2 0, 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
whe n 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 wi tnesses’ “bias, interest, or other motive” for testifying. (CALJIC No. 2.20.) I t is not reasonably probable defendant
would have achieve d 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.)PEOPLE v. HOYT Opinion of the Court by Kruger, J.

81 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. Brook s (2017) 3 Cal.5th 1, 62

– 63 ; id. at p. 117 ; see People v. Brents

, supra , 53 Cal.4th at pp. 608

– 609.) Th e 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 unneces sary 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.)PEOPLE v. HOYT Opinion of the Court by Kruger, J.

82 satisfied, we need not decide here whether the kidn ap

- 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 .)

T he 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 evidenc e, 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 tr ue 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 th e 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 incident al 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.PEOPLE v. HOYT Opinion of the Court by Kruger, J.

83 found [this] element[] of the crime beyond a reasonable doubt.” ’ [Citation.] ‘Substantial evidence’ is eviden ce 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 [defend ant] 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 t his ‘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 th e evidence in the light most favorable to the prosecution

. As already noted, t he 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. A s previously discussed, there w as 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 toPEOPLE v. HOYT 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 detectio n.” 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 ev idence
from which t he 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 Constitu tion were violated by the prosecutor’s prejudicial misconduct during penalty phase closing argument. We hold d efendant’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
includ ed “ ‘[a]ny other circumstances which extenuate [] the

g ravity 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, th at that would be considered a matter in mitigation forPEOPLE v. HOYT 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?” T he 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 considere d “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 characterization s

. 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.” BecausePEOPLE v. HOYT 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

current ly 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
lik e he had before.” If d efendant 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 conc lude this was insuff icient 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 preparatio n 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 o nly if an admonition would not have cured the harm caused by the
misconduct.” ’ ” ( People v. Dykes (2009) 46 Cal.4th 731, 786.)PEOPLE v. HOYT 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.

T he 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

urg ed the jury to consider that question while del iberating. How the jury ultimately weighed the se fact s 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” ].) T he prosecutor urged the jury not to consider
d efendant’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; c ontra
, 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.)PEOPLE v. HOYT Opinion of the Court by Kruger, J.

88 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 con cerning 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 un der either the federal
Constituti on or [ Penal Code ] section 190.3, factor (k). ” ( People
v. Martinez

, supra , 47 Cal.4th at p. 963. ) But d efendant 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 s ection 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 FourteenthPEOPLE v. HOYT Opinion of the Court by Kruger, J.

89 Amendments to the United States Constitution. ( People v.
Simon (2016) 1 Cal.5th 98, 1 49.)
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’ ” ; Appre ndi 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 reasona ble 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

— o r establish a standard of proof

— for finding
the ex istence 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 provide s the jury with sufficient guidance to administer the death penalty and meet

cons titutional minimum standards. “More s pecifically, 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 CALJICPEOPLE v. HOYT Opinion of the Court by Kruger, J.

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 ag gravation outwei ghs 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 Fourt eenth 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 Sixt h, 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, 121 6 .)
“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 Constituti on.” ( 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 deathPEOPLE v. HOYT Opinion of the Court by Kruger, J.

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 th e subpoena on grounds that the request for “any and all” records was overbroad and that the information sought was privileged and confidential. In response, d efendant’s counsel argued that in camera review of all State Bar complaints related to Owen was n ecessary to ascertain whether Owen performed deficiently for client s 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 th e 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 ofPEOPLE v. HOYT Opinion of the Court by Kruger, J.

92 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, B usiness and Professions Code section 6086.1, subdivision (b) provides that
S tate B ar disciplin ary 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. T he 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 o f 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.PEOPLE v. HOYT 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 cou rt’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 evid ence 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

represen tation 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

D efendant 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.PEOPLE v. HOYT Opinion of the Court by Kruger, J.

94 1

. Background
On March 19, 2002, defendant filed motion s for new guilt and penalty phase trial s via Keenan 14 counsel Richard V.
Crouter

. Numerous decla rations 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 A ttorney 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 claim s of
ineffective assistance of counsel.

2

. Discussion
Defendant raises several challenges to the trial court’s
d enial of the new trial motion. “ ‘ “ ‘We review a trial court’s ruling on a motion for a new trial under a deferential abuse

- of

discretion standard.’ [Citations.] ‘ “A trial court’s ruling on a motion for new trial is so completely within that court’s
d iscretion 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.)PEOPLE v. HOYT 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, d e fendant c ontends 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 in effective 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 evi dentiary 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
rush ed to dispose of the motion without thoroughly considering
its merits . On the contrary, the court granted n umerous extensions to allow defense counsel the opportunity to augment the new trial motion and to allow the prosec utor 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 c omprises 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, d efendant 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

co unsel claims are ] more appropriately decided in a habeasPEOPLE v. HOYT 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

– 58 3

. )
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 rea sonable 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 de fendant 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 ha d 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. Rule s of
C our t, rule 4.117.)PEOPLE v. HOYT 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 resign ation 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 m ost of the trial (a s 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 pe rformance 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
in effective 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 invest igation 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 impairmen t. In s upport of the argument, defendant introduced the opinion of Dr. Albert Globus, a psychiatrist. Based on a social and medical historyPEOPLE v. HOYT 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 Nic k 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 suffi cient 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 cou rt’s central point: T here 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 accepte d 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 alreadyPEOPLE v. HOYT Opinion of the Court by Kruger, J.

99 been dug ; then shot Nick several times and buried him

. This

account strongly point s 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 t he 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 inherentl y risks inviting damaging cross

- examination.” ( People v. Rodriguez (2014) 58 Cal.4th 587, 62 4, 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 tha t 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 neutralize d the prosecution’s rebuttal witness, who opined that an individual would not falsely confess
and claim amnesia without suff ering 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 t he opinion of the defense expert. And once again, defendant hasPEOPLE v. HOYT Opinion of the Court by Kruger, J.

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
conf ession while suffering from temporary amnesia, as he
testified at trial.
Turning to the question of mitigation, t he 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 phas e. In making an independent determination of the propriety of the penalty, the trial court reweighed the mitigating circumstances that had be en 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 mitigatin g 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.

Defen dant’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 disagree d, and we do as well.PEOPLE v. HOYT Opinion of the Court by Kruger, J.

101 A s 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 agreemen t 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 resig nation 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.

Th e 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 s hows that Owen labored under a potentialPEOPLE v. HOYT Opinion of the Court by Kruger, J.

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 divert ed 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 Jud ge: 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