IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MICHAEL WILLIAM FLINNER,

Defendant and Appellant.

S123813

San Diego County Superior Court

SCE211301

November 23, 2020

Justice Kruger authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, 

Cuéllar, Groban, and Greenwood*concurred.

* Administrative Presiding Justice of the Court of Appeal, 

Sixth Appellate District, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
1

PEOPLE v. FLINNER

S123813

Opinion of the Court by Kruger, J.

A jury convicted defendant Michael William Flinner of the 

first degree murder of Tamra Keck and found true financial-gain 

and lying-in-wait special-circumstance allegations. (Pen. Code, 

§ 187, subd. (a); id., § 190.2, subd. (a)(1), (15).) The jury also 

convicted Flinner of conspiracy to commit murder and grand 

theft (id., § 182, subd. (a)(1); id., § 187, subd. (a); id., § 487, subd. 

(a)); mingling a harmful substance with food or drink (id., § 347, 

subd. (a)); and solicitation to commit murder (id., § 653f, subd. 

(b)). The jury could not reach a verdict on a second count of 

solicitation to commit murder. Following a penalty phase trial, 

the jury returned a death verdict and the trial court entered a 

judgment of death. The court also sentenced Flinner to an 

indeterminate term of 25 years to life for the conspiracy 

conviction, a determinate term of four years for the mingling a 

harmful substance with food or drink conviction, and a 

determinate term of six years for the solicitation to commit 

murder conviction. The court imposed but stayed the 

indeterminate and determinate sentences pending the 

resolution and execution of the death judgment.

This appeal is automatic. (Cal. Const., art. VI, § 11, subd. 

(a); Pen. Code, § 1239, subd. (b).) We affirm the judgment. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

2

I. FACTUAL BACKGROUND

A. Guilt Phase

The trial evidence showed that on June 11, 2000, Flinner 

called his fiancée, Tamra Keck, while she was out shopping. He 

directed her to meet his former employee, Haron Ontiveros (also 

known as Juan de la Torre), at a local gas station so that she 

could help jump start Ontiveros’s car. Keck picked Ontiveros up 

from the gas station and drove to a nearby cul-de-sac where 

Ontiveros’s car was parked. As Keck was propping the hood of 

her car open, Ontiveros approached her from behind and shot 

her in the back of the head, killing her. 

1. Prosecution Evidence

Flinner met Keck in 1999. At the time, Keck was 18 years 

old and had just started her senior year of high school. Flinner

was 31 or 32 years old and was operating a landscaping business 

after being paroled from prison earlier that year. Flinner and 

Keck developed a romantic relationship. Keck moved into 

Flinner’s apartment in Alpine, California, and the two made 

plans to marry. 

On December 29, 1999, Flinner and Keck met with an 

Allstate Insurance agent and applied for a $500,000 term life 

insurance policy for Keck, naming Flinner as the primary

beneficiary. At the meeting, Flinner introduced Keck as his 

fiancée and represented that she was an employee of his 

landscaping business with an annual income of $30,000 per 

year. Flinner explained to the Allstate agent that they were 

taking out the life insurance policy because Keck was an 

important part of his landscaping business and that he would 

suffer financially were something to happen to her. This 

explanation was false. Keck was not, in fact, a regular employee 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

3

of Flinner’s business; Keck occasionally purchased office 

supplies for Flinner, who then reimbursed her, but those 

payments were irregular and relatively small. Although Flinner

did not provide verification of Keck’s employment or salary, the 

agent issued the insurance policy. Flinner and Keck paid for the 

first insurance premium payment that day, and Flinner paid for 

the next two premium payments in March and April 2000.

The prosecution sought to show that Flinner’s business

was suffering financially in the months leading up to the murder 

and that he accumulated an increasing amount of debt. After 

Keck’s death, Flinner attempted to collect on the insurance 

policy, attempted to make large purchases on credit with the 

promise of payment out of his forthcoming insurance proceeds, 

and continued even in custody to tell fellow inmates that he 

expected to receive a substantial payout plus interest from the 

life insurance policy.

The prosecution also presented evidence that Flinner’s 

relationship with Keck was strained. Flinner took another 

teenage girl, Tiffany Faye, out for meals several times and told 

her that although Keck thought they were going to get married, 

he could get rid of Keck and date Faye. In December 1999, while 

Faye was visiting Flinner and Keck at their apartment, Flinner

proposed a “threesome,” which prompted Faye to break off her

relationship with Flinner. Various witnesses testified that 

Flinner treated Keck poorly, said Keck was just after his money, 

and referred to her by derogatory names. Two days before the 

murder, Keck called her mother, crying, to report the wedding 

was going to be postponed. 

Around the time Flinner and Keck took out the life 

insurance policy, Flinner began asking associates what it would 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

4

cost to have someone killed and whether they would kill 

someone on his behalf. Robert Johnston, one of Flinner’s 

employees, testified that sometime between December 1999 and 

January 2000 Flinner asked whether Johnston would kill 

somebody for him. Charles Cahoon, who worked briefly for 

Flinner, testified that in January 2000, Flinner asked Cahoon

how much it would cost to have somebody killed and whether 

$10,000 would be enough. When Cahoon asked Flinner what he 

was talking about, Flinner said that he had gotten Keck insured 

for $1,000,000. Juan Morales testified that in April 2000, while 

paying Flinner for a car Morales had bought from him, Flinner

asked Morales if he knew where to get a gun. 

A few days before the murder, Flinner obtained the car

that codefendant Haron Ontiveros, one of Flinner’s landscaping 

employees, would use on the day of the murder.1 Flinner visited 

an auto dealership that he had done business with before and 

signed a borrower agreement for a small white Nissan NX car. 

Amir Bahador, an employee at the auto dealership, testified that 

when Flinner came to pick up the Nissan NX, he was 

accompanied by a “Hispanic gentleman, kind of short, kind of 

stocky,” though Bahador could not say for sure that it was 

Ontiveros. Flinner told Bahador that he was getting the car for 

his employee, the man who was with him at the dealership. 

1 Ontiveros was tried jointly with Flinner before a separate 

jury, which found Ontiveros guilty of first degree murder and 

conspiracy to commit murder and found true the lying-in-wait 

and financial-gain special circumstances. At the penalty phase, 

Ontiveros’s jury returned a verdict of life in prison without the 

possibility of parole, and the court sentenced Ontiveros to life in 

prison without the possibility of parole for the murder conviction 

and a concurrent term of 25 years to life for the conspiracy 

conviction. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

5

After the murder, Flinner also gave Ontiveros a forged check for 

$7,000 in payment for his role. 

On the morning of the murder, at about 10:45 a.m., video 

surveillance showed Flinner driving his white Ford pickup to 

the Ultramar gas station in Alpine. Flinner was also placed at 

that location through his cell phone records and the testimony 

of Phillip Finch, who drove by Flinner while he was pulled over 

on the road near the gas station to make a call. The clerk at a 

nearby Shell station testified that around 10:30 a.m. Flinner

purchased gas and milk and asked the clerk to hurry ringing up 

the purchase because he “was late to meet his friend down the 

street.” 

At about the same time, video surveillance showed the

white Nissan NX driving into the Ultramar gas station. Shortly 

thereafter, video showed both Flinner’s Ford pickup and 

Ontiveros’s Nissan NX leaving the Ultramar station and 

heading toward a cul-de-sac down the street. Flinner later 

admitted to detectives that he entered the cul-de-sac sometime 

between 10:00 a.m. and 11:00 a.m. on the morning of the 

murder. Suzanne Scanlan, who volunteered at a veterans’ 

organization that had a view of the cul-de-sac, testified that in 

this timeframe she saw two white cars parked next to each other 

in the cul-de-sac. Video footage picked up the two white cars 

exiting the cul-de-sac road about 15 minutes after they entered. 

Flinner arrived at his parents’ house at about 11:30 a.m.

on the day of the murder. Shortly thereafter, at around 

11:45 a.m., Keck and Flinner left Flinner’s parents’ house 

separately — Flinner to go shopping and to a car wash with his 

son and Keck to go to Walmart and Vons. Walmart’s video 

surveillance showed Keck entering and shopping in the store. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

6

While Keck was at Walmart, phone records show she received 

two calls from Flinner, at 12:08 p.m. and 12:15 p.m., and Flinner

confirmed in a police interview that he called Keck while she 

was at Walmart. Video then showed Keck leaving the Walmart 

and, instead of driving to Vons, entering the Ultramar gas 

station.

In the meantime, surveillance video showed the white

Nissan NX driving back into the cul-de-sac at 12:02 p.m. A man 

left the cul-de-sac by foot at 12:08 p.m. and headed toward the 

Ultramar gas station, where he arrived and waited in front of 

the station. At 12:32 p.m., video showed Keck’s white Mustang 

coming into the Ultramar station and pulling up to where the 

man was waiting (although he was no longer visible in the 

surveillance video), and it then showed the Mustang leaving the 

station and heading toward the cul-de-sac. About three minutes 

after the Mustang entered the cul-de-sac, video showed the 

white Nissan NX speeding out of it.2

Shortly after the murder, a motorist discovered Keck’s 

body and called the police. Keck’s body was found lying in front 

of her car. The car’s engine was running, the hood was ajar and 

the passenger side door open. Keck had been shot once in the 

back of the head. This and other circumstantial evidence 

indicated that, once she had parked in the cul-de-sac, Keck left 

her car running and exited the vehicle. While she was opening 

2 We consider the details of the evidence concerning the 

events in the cul-de-sac during these three minutes in further 

depth below, in connection with Flinner’s claim that insufficient 

evidence supports the lying-in-wait special-circumstance 

finding. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

7

the hood of her car, she was shot in the head from behind. She 

died within a minute of being shot. 

Flinner attempted to cast the responsibility for Keck’s 

murder on others. In the days before the murder, Flinner had 

told two sheriff’s deputies that one of his landscaping customers 

was “after him” and had tried to run him off the road, though he 

dismissed the deputies’ suggestion that Flinner file a police 

report. During an interview with lead detective Rick Scully on 

the night of the murder, Flinner denied being near the cul-desac that day and said he had never been to the cul-de-sac. He 

again brought up the disgruntled customer and said that one of 

the customer’s associates had recently threatened his life and 

initiated a physical altercation with him. 

Later that night, the police searched Flinner and Keck’s 

apartment. During the search, Detective Scully told Flinner

that in his experience people who are found in isolated areas, as 

Keck was, are usually there for a drug deal or to meet a love 

interest. At the time, Flinner rejected this theory of Keck’s 

death and police found no evidence suggesting Keck was using 

drugs. But days later, Flinner contacted police to say he and his 

mother had found drugs and syringes while going through 

Keck’s possessions, and they turned them over to Detective 

Scully. Within a week of the shooting, Flinner also reported he 

had received threatening phone calls from a Hispanic man with 

whom he had been in an altercation a decade before.

Later in the investigation, Flinner attempted to frame or 

cast blame for Keck’s murder on various employees and business 

associates. Flinner invited employee Martin Baker to dinner at 

his house about a month after the murder and spiked Baker’s 

chili with Xanax. While Baker was passed out on Flinner’s 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

8

couch, Flinner called his friend Gilberto Lopez and asked Lopez 

to call Flinner’s home number from a pay phone. Flinner then 

called the police and said that he had just received a call from a 

woman who claimed Baker had confessed to Keck’s murder and 

that Baker was currently asleep on his couch. 

Next, Flinner apparently tried to frame employee Charles 

Cahoon by planting a sock that contained bullets matching the 

bullet that killed Keck in Cahoon’s car. DNA on the sock 

matched Keck’s and Flinner’s, but not Cahoon’s. An anonymous 

letter accusing Cahoon of murder was also placed on a police car. 

Flinner also told detectives that his friend and business 

associate Rick Host said on his deathbed that Keck was killed 

due to her knowledge of a casino software scheme Host was 

involved with that also involved the North Korean government 

and mobsters in the United States. 

Finally, while in custody, Flinner claimed that his 

codefendant Ontiveros killed Keck after having an affair with 

her and that Ontiveros had put out a contract on Flinner’s life. 

Flinner also attempted to make it look like he was being 

targeted, planting bullets with his and Keck’s names on them 

on his parents’ property.

Flinner also made several attempts to derail his trial. 

Flinner attempted to taint the witnesses in his case by mailing 

them letters containing information deemed inadmissible by the

trial court so that the witnesses’ testimony would be rendered 

suspect and impeachable. Flinner asked a fellow jail inmate, 

Gregory Sherman, to use his library privileges to look up the 

addresses of witnesses, detectives, the prosecutor, and the trial 

judge in his case. Flinner told Sherman that he intended to 

sabotage his trial by sending witnesses letters with confidential 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

9

information that would preclude them from testifying. He 

indicated that he would make it look like his former attorney or 

a detective in the case sent the letters and would then have an 

associate “take out” the fall guy. Flinner then sent these names 

and addresses to a former girlfriend, Catherine McLarnan, 

along with a cover letter that he directed her to send to all of the 

witnesses. He instructed her to use the address of his former 

defense attorney as the return address for the letters. 

McLarnan instead turned the information over to a defense 

investigator. 

Flinner had a backup plan to sabotage his trial: He told 

Sherman that he planned to ensure that only property owners 

with unique names were impaneled as jurors so that he could 

easily look up their addresses through property records searches

and send them similar letters with inadmissible evidence. 

Flinner said he would frame the prosecutor for sending this set 

of letters by using the prosecutor’s address as the return 

address. 

Flinner also made various threats intended to obstruct the 

prosecution of his case. He asked fellow inmate James 

Theodorelos and another inmate to kill his codefendant 

Ontiveros. When these inmates began cooperating with the 

prosecution, Flinner tried to intimidate them or pay them off. 

Finally, Flinner tried to intimidate the prosecutor by sending 

letters conveying threats against the prosecutor to Flinner’s 

family and other inmates, knowing the letters were being 

photocopied and read by the authorities. 

Flinner made a number of statements after Keck’s death 

that suggested he was complicit in her murder. Robert Pittman, 

a former employee of Flinner, testified that the morning after 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

10

the murder Flinner called him and said that Keck had been shot 

in the back of the head, even though this information was not 

public at the time and the pathologist had not yet determined 

whether Keck was shot in the face or in the back of the head. 

Flinner described other details about the crime at times when 

they were not publicly known, such as that Keck’s car was 

running when found. 

A few days after the murder, Flinner went out to dinner 

and drinks with his friend Gilberto Lopez and Lopez’s girlfriend 

Marie Locke. According to Lopez, Flinner got “tipsy” at the meal

and became upset about Keck’s death, stating either “I shouldn’t 

have killed her” or “I should not have had her killed.” On 

another occasion after Keck’s murder, and after Flinner had 

taken several sleeping pills, Flinner again said to Lopez, “I 

shouldn’t have killed her.” In custody, Flinner told fellow 

inmate Theodorelos that Keck’s murder stemmed from an illfated business transaction with “some overseas Asians.” But 

Flinner subsequently told Theodorelos that he was sure to make 

credit card purchases at the time of Keck’s murder to create an 

alibi for himself and that he had bullets planted on his parents’ 

property and an anonymous note accusing Cahoon of killing 

Keck left on a police car.

2. Defense Evidence

The defense argument was that Flinner had nothing to do 

with Keck’s murder. Flinner presented evidence that he was 

loving and kind toward Keck. He also put on evidence intended 

to bolster several exculpatory theories Flinner had raised during 

the investigation and before trial. According to Donald Landon, 

a business partner of Flinner’s friend Rick Host, Host was at the 

same Walmart as Keck the morning she was killed. Landon also 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

11

testified about Host’s gambling ventures. Flinner’s father 

testified that Flinner had received threatening phone calls after 

the murder and that Flinner’s parents had received anonymous 

calls as well. The defense also presented evidence that there 

was a tunnel near the crime scene big enough for an adult to 

pass through that people used to pass under the nearby 

highway. 

Flinner sought to discredit some of the People’s evidence. 

A forensic accountant testified that while the prosecution had 

calculated Flinner’s debt at the time of the murder to be

$194,000, the accountant calculated it to be about $94,000. A 

custodian of records for a local news channel produced 

recordings of news broadcasts about the murder and testified 

that the channel publicized that Keck was shot in the head the 

morning after the murder, which could have explained how 

Flinner was able to report this information to Pittman on the 

same day; on cross-examination, however, the witness clarified 

that at no time did the broadcasts say that Keck was shot in the 

back of the head, as Pittman had testified Flinner told him. 

Prison inmate James Baggett testified that inmate Theodorelos 

said he intended to fabricate the statements from Flinner about

the murder. Flinner’s DNA expert challenged the prosecution 

expert’s conclusion that DNA found on the sock in Cahoon’s car 

belonged to Flinner. A defense investigator testified that 

Martin Baker, one of the employees Flinner had tried to frame 

for Keck’s murder, had been prescribed Xanax after receiving 

treatment at the county mental health hospital, and defense 

counsel elicited Baker’s testimony on cross-examination that at 

the time of trial Baker was living in an assisted care facility and 

taking several antipsychotic medications. A defense 

investigator testified that after reviewing of the gas station 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

12

surveillance tapes, he was unable to identify the driver of the 

white Ford pickup truck.

B. Penalty Phase

The prosecution introduced the testimony of Keck’s family 

members, who described her early life and the impact that losing 

Keck had on them. The prosecution also introduced the

testimony of four women, including Flinner’s former wife, who 

described being sexually assaulted by Flinner after he drugged 

them, or other forms of physical and emotional abuse. Finally, 

the prosecution introduced evidence of Flinner’s prior felony 

convictions for forgery, possession of stolen property, rape by a 

foreign object, three counts of grand theft, and failure to appear 

while on bail. 

The defense called Flinner’s mother and father, who 

testified about Flinner’s troubled childhood, including 

hyperactivity, various head injuries, behavioral problems, and 

psychiatric hospital admissions. The defense introduced expert 

psychiatric evidence that Flinner suffered brain dysfunction

from early childhood, possibly exacerbated by the use of illegal 

drugs and head injuries, which contributed to his criminal and 

antisocial behaviors. Prison officers testified that Flinner had 

previously attempted suicide after he was returned to prison. A 

correctional consultant testified about the security measures 

that would be in place if Flinner was sentenced to life without 

the possibility of parole. Flinner’s friend and a fellow inmate 

testified about Flinner’s efforts to help them during previous 

emergency situations. Flinner’s son testified that he loved his 

father, who had kept in touch since he was arrested. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

13

II. DISCUSSION

A. Pretrial Issues

1. Pretrial Detention

Flinner raises four claims of error stemming from 

Flinner’s pretrial relocation from a downtown San Diego jail 

facility to a more remote jail facility in Vista, which is in the 

northern part of San Diego County. We conclude these claims 

lack merit.

a. Background

Flinner was detained in San Diego County facilities while 

awaiting trial. In January 2002, defense counsel requested that 

Flinner remain in the downtown jail and not be moved to the jail 

in Vista. The court entered a “request[],” but not an order, to 

that effect. 

As explained in greater detail above, while in jail Flinner

sought to disrupt his upcoming trial. With the help of Gregory 

Sherman, a fellow jail inmate with library privileges, Flinner

obtained personal information about the prosecutor and trial 

judge, including their home addresses. Sherman later gave his 

account of their activities to the San Diego County District 

Attorney’s Office. The information was passed to the San Diego 

County Sheriff’s Department, as well as the trial judge, Allan J. 

Preckel. 

At a January 17, 2003, ex parte hearing, the prosecutor 

discussed this information with Judge Preckel. Immediately

afterward, Judge Preckel held a security meeting with sheriff’s

department personnel, the supervising judge of the courthouse, 

and the prosecutor, but not defense counsel. The supervising 

judge requested Flinner be moved to a more secure housing unit 

to prevent him from gathering further information and 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

14

attempting to manipulate events outside the jail. The assistant 

sheriff proposed the Vista facility as having the most secure cells

but noted that if Flinner were moved to Vista the court would be 

“hearing from the defense attorney.” Judge Preckel agreed

Flinner’s attorneys would be displeased, but the supervising 

judge indicated he approved of the move. No order was issued. 

Later in January 2003, the sheriff transferred Flinner to 

Vista and placed him in administrative segregation, restricting 

his visitation and telephone privileges. At a conference with all 

parties and counsel on February 28, 2003, the trial court 

summarized Flinner’s custodial status as related by the sheriff’s 

office: Flinner was housed in an isolation cell and allowed no 

contact with other inmates; he was permitted three 20-minute 

telephone calls per week to Sandra Resnick, one of his two 

attorneys, and 45-minute personal visits with Resnick or John 

Mitchell, his other attorney, if they gave a day’s notice. The 

court added that Flinner was permitted visits with the defense 

investigator. The court emphasized that it had not ordered 

these restrictions and was generally not inclined to interfere 

with the sheriff’s decisions on jail operations. Attorney Resnick 

complained that the distance to Vista and the limits on 

communications would slow down the defense team’s 

preparation for trial; in particular, Resnick expressed 

frustration at the inability of defense team members other than 

herself to arrange telephone conversations with Flinner. In 

response, the court stated it was willing to consider making 

orders to allow increased contact “as they are presented to me.”

After the February 28 conference, the trial court issued an 

order providing information Sherman had supplied to Flinner’s 

attorneys but prohibiting them from revealing the information 

to Flinner or other members of the defense team. On March 11, 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

15

defense counsel, in an ex parte hearing, complained about the 

restrictions on their communication with and access to Flinner.

3

 

Counsel’s primary concern was that their relationship with 

Flinner would be disrupted by their inability to tell him about 

Sherman’s disclosure. Attorney Mitchell stated that the 

restriction “requires me to lie to my client, at least by omission 

and possibly by commission.” Attorney Resnick explained that 

Flinner had been asking why he had been moved to Vista and 

had his telephone privileges restricted. By not telling him the 

reasons these security measures had been taken, Resnick 

“almost began to feel as though [she] was lying to [her] client by 

omission.”

Attorney Mitchell also elaborated on the difficulties with 

the Vista location and the telephone restrictions. Driving to and 

from Vista meant each visit took half a day. In order to prepare 

for trial and maintain their relationship with a sometimes 

difficult client, Mitchell and Resnick each tried to visit Flinner

once a week, while their investigator did so twice a week. The 

telephone restrictions prevented Mitchell or the investigator

from talking to Flinner by phone. When Mitchell visited 

Flinner, jail officers searched his briefcase.

In response, the trial court repeated that it was not 

inclined to second-guess the sheriff’s department as to the 

appropriate housing for Flinner or, at least “here and now,” as 

to telephone privileges. Attorney Mitchell suggested that, given 

3

In the interim, the trial court had, at defense request, 

issued three orders allowing increased contact between Flinner 

and the defense team: Counsel and the investigator were given 

access to Flinner in the holding area before and after court 

appearances, and two defense trial consultants were permitted 

contact visits with him.
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

16

the security measures in place, the court could relax the 

prohibition on counsel telling Flinner and their investigator 

about the information Sherman had provided. The court found 

Mitchell’s suggestion “well taken” and proposed discussing it 

further at an upcoming conference with all counsel. 

On March 14, 2003, after an additional brief ex parte with 

Flinner’s attorneys, the trial court conferred with counsel for all 

parties, with neither defendant present. The court explained 

that with Flinner now securely housed at Vista and a mail cover 

and telephone restrictions in place, the court tentatively 

planned to lift its previous prohibition on defense counsel 

discussing Sherman’s disclosure with Flinner and members of 

the defense team, with the proviso that the written materials 

would still not be provided to Flinner. The court noted that its

previous order would remain in place for a reasonable period so 

that Sherman could be provided whatever additional security 

was deemed necessary. 

Asked for comment, Attorney Mitchell said that the court’s 

proposal to lift the prohibition on talking to Flinner about 

Sherman’s disclosure “makes good sense.” He expressed the 

hope that this “resolution” would allow defense counsel to 

“finesse” their previous concealments from their client and 

“move on in terms of the attorney/client relationship. We’re 

going to be together for a while in this matter.” As to Flinner’s 

housing and telephone restrictions, Mitchell “assume[d]” that 

the defense was “stuck with that,” that as the court had said 

earlier, “You run the courtroom and they run the jail, and you’re 

not going to get involved unless it fouls up your courtroom.” 

Mitchell went on to observe that a time might come when the 

defense needed greater access to Flinner, for example to have an 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

17

expert consult by telephone, “but we may be able to do that on a 

case by case basis, so I’ll kind of leave that aside.” 

The prosecutor raised no objection to the court’s tentative 

order but requested a few days to alert Sherman’s current 

confinement facility and allow them to take necessary security 

measures. The court set a further conference for March 19, five 

days later. At that hearing, the prosecutor confirmed necessary 

measures had been taken, and the court issued the order. 

b. Discussion

i. Interference with Attorney-Client 

Relationship

Flinner contends that the trial court, prosecutor, and 

sheriff interfered with his attorney-client relationship by 

moving him to the Vista detention facility and restricting his 

telephone and visiting privileges, in violation of his 

constitutional rights to due process and the assistance of 

counsel. Flinner maintains the imposition of these restrictions 

“greatly interfered with the preparation of [his] defense by 

requiring a time-consuming 82 mile round trip for each visit, 

barring visits from members of the defense team other than 

appointed counsel, and sharply limiting the time counsel had to 

confer with their client.” The trial judge, Flinner argues, also 

violated his constitutional rights by permitting the sheriff to 

impose these restrictions without a contested evidentiary 

hearing to determine the credibility of Sherman’s disclosure, 

and by ordering defense counsel to “lie” to their client by 

concealing the disclosure from him. 

At the threshold, we agree with the Attorney General that 

these claims were forfeited by Flinner’s failure to raise them 

below. Although defense counsel complained of the 
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Opinion of the Court by Kruger, J.

18

inconvenience of visiting Flinner at the Vista facility and of his 

limited telephone privileges, counsel never asserted these 

conditions infringed on Flinner’s right to counsel or, for that 

matter, any other legal right. Nor did Flinner or his attorneys 

demand an evidentiary hearing on whether he could be kept in 

administrative segregation based on Sherman’s report.

4

 Having 

made no objection or request on these grounds, Flinner failed to 

preserve his due process and right to counsel claims.

Nor do the claims have merit. Visiting Flinner at the Vista 

facility was undoubtedly inconvenient for the defense team, but

nothing in the record suggests Flinner’s housing or telephone 

restrictions prevented counsel from effectively communicating 

with Flinner in order to prepare for trial. The trial court, at 

defense request, permitted increased communication with 

members of the defense team (see fn. 3, ante) and the court said 

nothing to preclude further accommodations as needed “on a 

case by case basis,” as Attorney Mitchell put it. Trial counsel’s 

4 Attorney Mitchell initially stated he was “concerned by the 

acceptance of what this individual [Sherman] said as being the 

truth.” But he never asked for an evidentiary hearing to 

determine that point. After Judge Preckel explained that he 

was inclined to substantially credit Sherman’s information —

because the informant had “provided a lot of detail,” much of 

which rang true, and he “knows too much to simply be creating 

this out of whole cloth” — Mitchell did not raise the point again.

At oral argument, defense counsel asserted that further 

defense complaints or requests would have been futile because 

the trial judge had disavowed any authority over jail 

confinement conditions. The record does not support this 

assertion: Though the judge indicated he would generally defer 

to the sheriff’s department, he also agreed to make changes after 

defense complaints, and did not close the door to additional 

accommodations. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

19

principal concern, the court’s order prohibiting them from 

telling Flinner about Sherman’s report, was in place less than 

three weeks before being resolved by the trial court’s revised 

order on March 19, 2003. At the March 14 hearing, Mitchell 

expressed the hope this would allow any damage to the attorneyclient relationship to be repaired over the long pretrial and trial 

period to come, and Flinner points to nothing in the record 

suggesting it did not. 

Had Flinner requested a hearing on his placement in 

administrative segregation, and done so in an appropriate 

forum, he might have been entitled to one. (See In re 

Davis (1979) 25 Cal.3d 384, 390–391 [where state prison 

regulations set out “specific circumstances under which 

administrative segregation may be imposed,” “ ‘the inmate has 

an interest, conferred by statewide regulation and protected by 

due process, in not being confined in maximum security

segregation unless he is found, for clearly documented reasons, 

to come within the standard set by the rules’ ”].) But without 

any such request at the time, and with no indication in the 

record that Flinner’s housing placement deprived him of any 

trial right or prejudiced the result of his trial, he is not entitled 

to a reversal on this ground.

ii. Violation of Right to be Present at All 

Critical Stages of Proceedings

Flinner next asserts that the trial court violated his right 

to be present all critical stages of proceedings, pointing to the ex 

parte discussions with jail personnel and the in camera 

discussions with the attorneys. Contrary to the Attorney 

General’s argument, Flinner had no effective opportunity to 

object to proceedings at which he was not present, and therefore 

did not forfeit his due process claim. The claim fails on the 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

20

merits, however, because none of these pretrial proceedings, 

which concerned only the circumstances of Flinner’s

confinement in jail, were critical to the determination of guilt or 

penalty. 

A defendant has the constitutional right to be personally 

present in court “where necessary to protect the defendant’s 

opportunity for effective cross-examination, or to allow him to 

participate at a critical stage and enhance the fairness of the 

proceeding.” (People v. Carasi (2008) 44 Cal.4th 1263, 1299.) It 

does not extend to “in camera discussions on matters bearing no 

reasonable, substantial relation to the defense of the charge.” 

(Ibid.) And while ex parte proceedings are generally disfavored, 

“the trial court retains discretion to conduct in camera, ex parte 

proceedings to protect an overriding interest that favors 

confidentiality.” (Ibid.) The same standard for requiring the 

defendant’s personal presence applies under California law, and 

to prevail on such a claim under federal or state law the 

defendant bears the burden of showing “that his absence 

prejudiced his case or denied him a fair trial.” (People v. 

Bradford (1997) 15 Cal.4th 1229, 1357; accord, People v. 

Blacksher (2011) 52 Cal.4th 769, 799.)

The ex parte proceedings in this case were occasioned by 

the revelations of a jailhouse informant, Sherman, that while in 

jail Flinner had been engaging in investigative activities aimed 

at disrupting his upcoming trial, including obtaining personal 

information about the prosecutor and trial judge. The trial court 

acted within its discretion in excluding Flinner, and initially his 

attorneys, from these proceedings until Flinner had been placed 

in a more secure housing unit where his communication with 

other inmates could be controlled. Most important, Flinner fails 

to demonstrate that his absence from the hearings on his 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

21

housing and telephone privileges resulted in any actual 

prejudice to his defense. The ex parte hearings did not concern 

the conduct of the trial, but only pretrial security measures. 

And as observed above, despite the inconvenience caused by 

Flinner’s housing in Vista and the discomfort defense counsel 

felt about temporarily concealing Sherman’s disclosure from 

Flinner, the record gives no indication the defense team was 

ultimately prevented from effectively preparing for trial. 

iii. Prosecutorial Bias

Flinner argues that the prosecutor was biased against him 

after the prosecutor learned of Flinner’s death threats against 

him. Flinner asserts that this bias is manifest in the decision to 

have Flinner transferred to the Vista jail, a decision for which,

he asserts, the prosecutor was at least in part responsible.

During a February 28, 2003, status conference, Defense 

Attorney Resnick told the court that a sheriff’s captain at the 

Vista facility said the security of Flinner’s confinement was 

being monitored by Deputy District Attorney Paul Morley, a 

division chief within the district attorney’s office. Based on that 

apparent involvement by the prosecutor’s office, Flinner asserts 

the trial prosecutor, Deputy District Attorney Rick Clabby, 

misrepresented his influence in assuring defense counsel, “I 

have absolutely no control over what the jail does.”

Flinner forfeited this claim by failing to raise it below. Once 

the information provided by Sherman became available to 

defense counsel, any claim of prosecutorial bias could and 

should have been raised by a motion under Penal Code section 

1424 to disqualify Prosecutor Clabby for a claimed conflict of 

interest. Counsel neither moved for disqualification nor 

asserted by any other means that Clabby harbored a 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

22

disqualifying bias against their client. “Defendant’s failure to 

move to disqualify the district attorney in the trial court bars 

appellate review of the claim.” (People v. Maury (2003) 30 

Cal.4th 342, 438.) 

In any event, nothing in the record indicates that Flinner’s 

threats and insults aimed at Prosecutor Clabby created a bias 

that threatened the fairness of the proceedings. If the existence 

of threats were sufficient by itself to require disqualification, a 

disruptive scheme like Flinner’s could easily succeed. “[W]ere it 

possible for a defendant charged with serious crimes to 

disqualify the prosecutors trying the case from proceeding with 

the prosecution by threatening them, willful defendants would 

be handed a powerful weapon to disrupt the course of justice.” 

(Millsap v. Superior Court (1999) 70 Cal.App.4th 196, 204.) The 

fact that the district attorney’s office was monitoring Flinner’s 

housing status and communications restrictions does not show 

that Clabby or any other member of the office acted improperly. 

Having learned from Sherman of Flinner’s plans to disrupt the 

trial, prosecutors had a legitimate interest in seeing that 

security measures were taken to prevent those plans from being 

executed. 

iv. Judicial Bias

Flinner also argues Judge Preckel was biased after he was 

warned that Flinner had made a threat against him. Flinner

infers bias from Judge Preckel’s “refus[al] to become involved in 

the unconstitutional restrictions the prosecutor and jailer had 

arranged, which improperly limited appellant’s access to his 

counsel.” Flinner argues it was therefore a due process violation 

for Judge Preckel to preside over his trial. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

23

The Attorney General argues this claim was forfeited by 

Flinner’s failure to move for Judge Preckel’s recusal. Flinner

responds that his codefendant had already used a peremptory

challenge (Code Civ. Proc., § 170.6) against the judge previously 

assigned. He concedes, however, that he could have requested 

recusal on grounds of bias (id., § 170.3, subd. (c)(1)), though he 

insists that would have “run the risk of further alienating” 

Judge Preckel. We agree with the Attorney General that if 

Flinner believed his threat had resulted in a bias against him 

on Judge Preckel’s part, he should have requested the judge 

recuse himself on that basis, either via the statutory procedure

cited above or by a nonstatutory motion invoking Flinner’s right 

to due process. Instead, according to Attorney Mitchell, Flinner

said he “feels he’s very comfortable” having Judge Preckel 

preside over his trial. Flinner cannot now ask for reversal on 

the basis of a claimed error he accepted without complaint 

below.5

We also reject Flinner’s due process claim on its merits. A 

due process claim of this type requires a showing that “under 

the ‘extreme facts’ of the case, ‘the probability of actual bias rises 

to an unconstitutional level.’ ” (People v. Freeman (2010) 47 

Cal.4th 993, 1001.) Here there are no extreme facts and no 

probability of actual bias. Although Sherman had reported that 

Flinner raised the possibility of trying to kill his prosecutor and 

trial judge, there was no indication of imminent or severe 

5 Flinner cites Arizona v. Fulminate (1991) 499 U.S. 279, 

310, for the proposition that a structural defect like trial by a 

biased judge cannot be forfeited. The cited passage, however, 

states only that such structural defects are not subject to 

harmless error analysis; it says nothing about forfeiture.
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

24

danger to Judge Preckel or anyone else. When first discussing 

Sherman’s information with the court, the prosecutor 

summarized the general threat level from Flinner as justifying 

“concern[]” and “aware[ness],” but did not “assess[] it much 

higher than that.” The record provides nothing to support 

Flinner’s assertion that the judge “likely feared” Flinner.

As for the court’s deference to the sheriff’s department on 

details of Flinner’s housing and communications restrictions, 

such deference creates no inference of fear or bias. It is as

consistent, or more so, with Judge Preckel’s repeated 

explanation that he respected the lines between judicial and law 

enforcement authority and expertise, and therefore would no 

more tell the sheriff how to run the jail than he would expect 

that officer to tell him how to run his courtroom. 

Nor, finally, did Judge Preckel display indifference to 

Flinner’s rights and interests. To the contrary, he showed a 

willingness to make and change orders as defense counsel 

convinced him was necessary for the attorney-client relationship 

and the defense team’s trial preparation. No probability of 

unconstitutional bias appears from the record.

2. Denial of Flinner’s Severance Motions 

Flinner contends that he was denied the right to due 

process and a fair trial when the trial court declined to fully 

sever his case from that of his codefendant Ontiveros and 

instead empaneled two separate juries for a joint trial.

“Penal Code section 1098 provides, in relevant part: 

‘When two or more defendants are jointly charged with any 

public offense, whether felony or misdemeanor, they must be 

tried jointly, unless the court order[s] separate trials.’ ‘Joint 

trials are favored because they “promote [economy and] 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

25

efficiency” and “ ‘serve the interests of justice by avoiding the 

scandal and inequity of inconsistent verdicts.’ ” ’ [Citation.] 

‘When defendants are charged with having committed “common 

crimes involving common events and victims,” as here, the court 

is presented with a “ ‘classic case’ ” for a joint trial.’ [Citation.] 

We review a trial court’s denial of a severance motion for abuse 

of discretion, based on the facts at the time of the trial court’s 

ruling. [Citation.] ‘Even if a trial court abuses its discretion in 

failing to grant severance, reversal is required only upon a 

showing that, to a reasonable probability, the defendant would 

have received a more favorable result in a separate trial.’ ” 

(People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 819

(Daveggio).) “Conversely, even if a trial court acted within its 

discretion in denying severance, ‘ “the reviewing court may 

nevertheless reverse a conviction where, because of the 

consolidation, a gross unfairness has occurred such as to deprive 

the defendant of a fair trial or due process of law.” ’ ” (People v. 

Thompson (2016) 1 Cal.5th 1043, 1079 (Thompson).) 

“Defendants bear the burden of establishing that the trial was 

grossly unfair and denied them due process of law, and ‘a 

judgment will be reversed on this ground only if it is “reasonably 

probable that the jury was influenced [by the joinder] in its 

verdict of guilt.” ’ ” (Daveggio, at p. 821.)

Before trial, the prosecution conceded that dual juries 

were appropriate but contended that the cases should proceed 

in a single trial. Flinner’s counsel moved to sever the cases 

completely on the ground that Flinner and Ontiveros intended 

to present antagonistic defenses. Flinner planned to argue that 

he was not involved at all in Keck’s killing, while Ontiveros

intended to show that Flinner was the mastermind of the 

murder and manipulated Ontiveros into participating. As we 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

26

have explained, “ ‘[m]utually antagonistic defenses are not 

prejudicial per se.’ ” (Thompson, supra, 1 Cal.5th at p. 1081, 

quoting Zafiro v. United States (1993) 506 U.S. 534, 538.) In 

Daveggio, for example, we rejected an antagonistic-defense 

argument similar to the one raised here, in which one 

codefendant’s defense was that her codefendant “controlled her 

and was the instigator of their joint crimes.” (Daveggio, supra, 

4 Cal.5th at p. 819.) 

Flinner posits that the conflict here rises beyond mere 

antagonism; he claims that the two positions are “completely 

irreconcilable” because “[i]f the jury believed Ontiveros, it would 

have to convict [Flinner].” We have explained that “antagonistic 

defenses require severance only when ‘ “ ‘the conflict is so 

prejudicial that [the] defenses are irreconcilable, and the jury 

will unjustifiably infer that this conflict alone demonstrates that 

both are guilty.’ ” ’ [Citation.] ‘If the moving party’s guilt can be 

established by sufficient independent evidence, “it is not the 

conflict alone that demonstrates . . . guilt,” and severance is not 

required.’ ” (Daveggio, supra, 4 Cal.5th at pp. 819–820.) 

We made the statements above in the context of a joint 

trial before a single jury. Whether antagonistic defenses ever 

require severance in the context of separately empaneled juries

is unclear, but we need not decide that general question here. 

Flinner cannot show, in any event, that in this case the conflict 

between the two defenses alone established guilt, given the 

overwhelming independent evidence against him, including the 

video surveillance evidence showing Flinner and Ontiveros 

meeting shortly before the murder near the scene of the crime 

and the inculpatory statements Flinner made to Lopez. The 

nature of Flinner’s and Ontiveros’s defenses would not have 

compelled severance even in a single-jury trial. A fortiori, they 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

27

did not do so in a dual-jury trial, where evidence properly 

admitted solely for or against one defendant could be excluded 

as to the other.

6

Nor did the existence of Ontiveros’s incriminating

confession require the trial court to grant Flinner’s severance 

motion. The existence of an “ ‘ “incriminating confession” ’ ” is 

one of many “[f]actors that may bear on a trial court’s decision 

to order separate trials.” (People v. Gomez (2018) 6 Cal.5th 243, 

274.) But it is settled that a trial court may resolve admissibility 

problems posed by a codefendant’s confession by empaneling 

dual juries at a single trial, as the court did here, instead of 

ordering separate trials. (See People v. Anderson (2018) 5 

Cal.5th 372, 387; Thompson, supra, 1 Cal.5th at p. 1085 [“ ‘[W]e 

have upheld the use of separate juries for jointly tried 

defendants, as an alternative to outright severance’ ”].)

Flinner argues that the single trial raised issues under

Bruton v. United States (1968) 391 U.S. 123 (Bruton) and 

6

In Zafiro v. United States, supra, 506 U.S. at page 539, the 

high court explained that when defendants have been properly 

joined, antagonistic defenses call for severance “only if there is 

a serious risk that a joint trial would compromise a specific trial 

right of one of the defendants, or prevent the jury from making 

a reliable judgment about guilt or innocence.” As examples, the 

court pointed to the possibility that “evidence that the jury 

should not consider against a defendant and that would not be 

admissible if a defendant were tried alone is admitted against a 

codefendant” or that “[c]onversely, a defendant might suffer 

prejudice if essential exculpatory evidence that would be 

available to a defendant tried alone were unavailable in a joint 

trial.” (Ibid.) The dual-jury procedure appears to solve most or 

all such evidentiary problems, suggesting that antagonistic 

defenses do not require severance where the defendants have 

separately empaneled juries.
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

28

Crawford v. Washington (2004) 541 U.S. 36 (Crawford) because 

the prosecution was permitted to introduce parts of Ontiveros’s 

postarrest confession through Detective Scully before Flinner’s 

jury. As we explain in detail below, no Bruton issue arose 

because Flinner and Ontiveros were tried by separate juries. 

Flinner does, however, establish that the trial court committed 

Crawford error in admitting parts of Ontiveros’s confession 

against Flinner. But it was not the nature of the single trial 

that produced this error: Before the high court decided 

Crawford, the trial court ruled portions of Ontiveros’s confession 

admissible against Flinner as statements against penal 

interest. The trial court’s error was in admitting Ontiveros’s 

statements in violation of the confrontation clause, not in 

denying Flinner’s severance motion. The basis for the trial 

court’s ruling — that Ontiveros’s statements were admissible 

against Flinner as statements against interest — would have 

permitted their introduction even at a separate trial. (See 

pt. II.B.7., post.)

Flinner moved to sever his case again midtrial after 

Ontiveros’s cross-examination of the state’s witness Charles 

Cahoon. Defense counsel argued that Cahoon’s testimony as 

elicited by Ontiveros’s counsel was “not quite character 

assassination, but . . . awful close to it.” The trial court denied 

the motion. Cahoon testified that he was afraid of Flinner, that 

Flinner was manipulative, and that Cahoon was not involved in 

the murder, contrary to the allegations in an anonymous letter 

left on a police sergeant’s windshield. Defense counsel appeared 

most concerned with the trial court’s admission, over Flinner’s 

objection, of Cahoon’s statement that Flinner “is a very bad man 

and he should be stopped” and that “he doesn’t deserve to even 

be with us here on Earth,” given in response to a question by 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

29

Ontiveros’s counsel about why Cahoon belatedly came forward 

to Detective Scully with information implicating Flinner. 

Flinner does not now argue that the trial court abused its 

discretion in denying this second severance motion; instead, he 

lists Cahoon’s testimony as one illustration of how the 

antagonistic defenses unfairly prejudiced him. We disagree. As 

we explain later, the trial court did not err in admitting 

Cahoon’s statements, which could with equal propriety have 

been elicited by the prosecution. (See pt. II.B.1.c., post.)

We also reject Flinner’s claim that reversal is required 

because the trial court’s failure to sever allowed Ontiveros to act 

as a “second prosecutor.” As we have previously explained in 

rejecting a similar argument, just “because the prosecution’s 

case will be stronger if defendants are tried together, or that one 

defense undermines another, does not render a joint trial 

unfair.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 

335, 379.)

Flinner argues that Ontiveros was permitted to introduce 

evidence damaging to his defense that the prosecution did not 

offer, but he does not establish that the prosecution would have 

been unable to offer the same evidence against him. Flinner’s 

argument focuses in particular on the admission of hearsay 

statements that he made to Gilberto Lopez that Flinner

“shouldn’t have killed her” or “should not have had her killed,”

referring to Keck. Although Flinner complains that Ontiveros 

and not the prosecution called Lopez and that Ontiveros’s 

counsel did not ask Lopez any question about Ontiveros, the fact 

remains that the prosecution could have offered the very same 

evidence against Flinner, regardless of whether the two 

defendants were jointly tried. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

30

Flinner complains that Ontiveros was responsible for the 

admission of other pieces of damaging evidence as well, but the 

evidence in question was in fact introduced by the prosecution, 

not Ontiveros. For example, Flinner notes that “[i]t was 

Ontiveros’[s] counsel who had a police sergeant read a portion of 

an anonymous letter found on the windshield of his patrol car,” 

but it was actually the prosecution that called the sergeant as a 

witness and projected the relevant portion of the letter for the 

jury to read. Similarly, Flinner complains that Ontiveros’s 

counsel attempted to impeach a mental health expert called by 

Flinner to challenge Martin Baker’s competency and that 

Ontiveros’s counsel elicited testimony from the state’s forensic 

computer examiner that Flinner used his computer to print 

fraudulent checks. But in each case, Ontiveros’s questioning 

largely replicated the prosecution’s earlier work. Flinner does 

not argue that any of this evidence was inadmissible, and the 

fact that it was first introduced by the prosecution rebuts the 

argument that its damaging effects stemmed from the joint 

nature of the trial. In any event, “no denial of a fair trial results 

from the mere fact that two defendants who are jointly tried 

have antagonistic defenses” and one offers evidence “that is 

damaging to the other and thus helpful to the prosecution.” 

(People v. Turner (1984) 37 Cal.3d 302, 313.) 

Flinner also points to a number of instances in the record 

where he claims that Ontiveros was permitted to ask 

inappropriate questions. In some of these instances, Flinner

simply misreads the record. He suggests that Ontiveros’s 

counsel was permitted to present damaging “innuendo” evidence 

against Flinner when Ontiveros’s counsel asked prosecution 

witness Robert Pittman whether he had ever heard that 

Flinner’s first wife “had died mysteriously.” In fact, it was 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

31

Flinner’s counsel, not Ontiveros’s, who posed this question to 

Pittman. In other instances, Flinner objects to questioning by 

Ontiveros that was substantially the same as a line of 

questioning first posed by Flinner or the prosecution. Flinner

objects to questions that Ontiveros’s counsel posed to witness 

Sterling Thomas about whether Flinner had asked Thomas to 

steal his Chevy SUV so that Flinner could file an insurance 

claim, whether Flinner had “hit on” Thomas’s fiancée, or 

whether Flinner said he wanted to “get rid of” his girlfriend

(even though Thomas denied some of these conversations ever 

took place and said that others were in jest). But it was Flinner

who called Thomas as a witness, and Flinner who first brought 

up the alleged conversation in which Flinner asked Thomas to 

steal his truck. As for Thomas’s testimony that Flinner said he 

wanted to “get rid of” his girlfriend, it was the prosecution that 

first elicited the testimony on cross-examination. In any event, 

regardless of whether Ontiveros was the first to ask the 

questions or merely followed up on the questions already asked 

by others, the jury was properly instructed that questions are 

not evidence, and we presume it followed the court’s 

instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) 

Flinner argues that Ontiveros’s defense strategy reduced

the People’s burden to prove Flinner’s guilt beyond a reasonable 

doubt, but we are not persuaded. “[T]his was not a case in which 

only one defendant could be guilty. The prosecution did not 

charge both and leave it to the defendants to convince the jury 

that the other was that person. Here the prosecution theory was 

that both defendants participated in, and were guilty of, the 

murder.” (People v. Cummings (1993) 4 Cal.4th 1233, 1287.) 

The prosecution put on substantial evidence of Flinner’s guilt, 

including evidence that Flinner met with Ontiveros the day of 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

32

the murder to run through the plan, that Flinner made 

incriminating statements before and after he was charged with 

Keck’s murder, and that he attempted to pay Ontiveros for his 

role in the crime.

Finally, Flinner argues that the trial court’s failure to 

sever his case produced gross unfairness because Ontiveros used 

the codefendants’ single peremptory challenge to dismiss the 

original judge, ostensibly preventing Flinner from dismissing

Judge Preckel for alleged bias. As we have explained

(pt. II.A.1.b.iv., ante), Ontiveros’s use of the single statutory 

peremptory challenge did not prevent the defense from raising 

a nonstatutory motion for recusal. Thus, any prejudice flowed 

from Flinner’s failure to object and not from the trial court’s 

failure to order severance. And, in any event, as we have 

explained, Flinner’s judicial bias claim fails on the merits; Judge 

Preckel’s presiding did not render Flinner’s trial unfair. 

B. Guilt Phase Issues

1. Admissibility of Consciousness of Guilt and 

Witness Fear Evidence

Flinner asserts that the trial court erred in admitting 

evidence that he obtained or planned to obtain the home 

addresses of persons connected to the trial, that he threatened 

the prosecutor, and that certain witnesses were afraid of or 

intimidated by him.

Under the Evidence Code, “[e]vidence must be relevant to 

be admissible. (Evid. Code, § 350.) Moreover, even if relevant, 

it may be excluded if the court determines that its prejudicial 

impact substantially outweighs any probative value. (Id., 

§ 352.) We afford trial courts wide discretion in assessing 

whether in a given case a particular piece of evidence is . . . more 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

33

prejudicial than probative.” (People v. Duff (2014) 58 Cal.4th 

527, 558.) 

Flinner argues that the challenged evidence was 

irrelevant and unduly prejudicial in violation of Evidence Code 

sections 350 and 352. He also argues that admission of the 

evidence violated his rights to due process and a reliable penalty 

determination under the Eighth and Fourteenth Amendments. 

We address each category of challenged evidence in turn.

a. Flinner’s Attempt To Obtain Addresses of 

Witnesses, Judge, Prosecutor, and Potential 

Jurors

Flinner first asserts that the trial court erred in admitting 

evidence that he obtained or planned to obtain the home 

addresses of various persons connected to his trial. Inmate 

Gregory Sherman, who was housed in the same area as Flinner

at the county jail, was called as a prosecution witness. As noted 

above, Sherman had special privileges at the jail’s law library —

including access to unmonitored phone calls and the internet —

because he represented himself pro se. He also had past 

experience tracking down people’s addresses through public 

record searches. Sherman testified that after Flinner learned 

about his library privileges and skills, Flinner asked him for 

help in obtaining the addresses of prosecution witnesses, as well 

as the prosecutor, the judge, and the bailiff in his case.

Flinner explained that he intended to sabotage the trial by 

flooding the witness pool with letters containing confidential 

information about the case; he expected this tactic would 

preclude the witnesses from testifying. He planned to make it 

look like the letters came from one of the lead detectives in his 

case or his prior defense attorney, and he told Sherman that he 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

34

knew some people who he would then direct to “take . . . out” the 

person he framed. If that plan failed, Flinner had a “plan B” 

that he shared with Sherman: Flinner would try to ensure that 

the jurors selected to serve in his case were homeowners with 

uncommon names, so that he could easily track down their home 

addresses. As with the witness pool plan, Flinner would then 

send the jurors packets of information about the case intended 

to disqualify the jurors from serving. For this scheme, Flinner

suggested to Sherman that he would make it look like the 

prosecutor sent the packets. 

The prosecution also called Catherine McLarnan, who 

previously dated Flinner. She testified that after she visited

Flinner in jail, he sent her a package containing a list of names 

and addresses of witnesses, a letter to send to those witnesses, 

and instructions on how to prepare the letters. Flinner asked 

her to type up the letter, wear latex gloves while preparing the 

letters and envelopes, and use the address of his former defense 

attorney as the return address. He explained that the letter 

included evidence deemed inadmissible by his trial judge and 

that, by sending it to all the witnesses, he would be able to “ ‘ruin 

the People’s case.’ ” McLarnan testified that she did not follow 

Flinner’s directions and instead turned the materials from 

Flinner over to his defense investigator. 

Flinner argues that this evidence about his efforts to 

tamper with the witnesses and the jury was irrelevant and 

unduly prejudicial, but he does not point to a specific trial 

objection to this evidence. We thus agree with the Attorney
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

35

General that the issue has been forfeited by lack of objection.7

We reject the claim for lack of merit in any event. As the jury 

was instructed (with a version of CALJIC No. 2.06), a 

defendant’s efforts to suppress harmful evidence can be 

probative of the defendant’s consciousness of guilt. Sherman’s 

and McLarnan’s testimony concerning Flinner’s plans to tamper 

with the witnesses and jury pool was relevant to show his 

consciousness of guilt. Nor was this evidence was unduly 

prejudicial: None of this testimony suggested that Flinner

intended to threaten or harm the jurors, as opposed to a 

detective or defense attorney, and we conclude that any

prejudice that may have arisen from jurors’ awareness that 

7

In response to the Attorney General’s forfeiture argument, 

Flinner points to an asserted trial court order that all defense 

objections are made on all relevant state and federal grounds. 

As we explain later in this opinion (see pt. II.B.3., post), the 

order in question did not operate to generally excuse Flinner 

from objection requirements. He also attempts to demonstrate 

that the trial court did, in fact, consider an objection to the 

evidence and overruled it. But there is nothing in the record to 

support the contention. Flinner invokes a “discussion regarding 

appellant’s alleged efforts to suppress or fabricate evidence,” but 

cites a transcript page that does not exist. Next, Flinner points 

to the trial court’s consideration of a pretrial motion which the 

court characterized as concerning “purported efforts by and on 

behalf of Mr. Flinner to fabricate and/or suppress evidence” but 

none of the documents (letters authored by Flinner) that the 

court went on to consider concern Sherman or McLarnan. 

Finally, Flinner points to a hearing in which, he says, the “court 

overrules defense objections to evidence regarding McLarnan.” 

But the record contains no indication that such a thing occurred 

at the hearing; instead, it appears from the record that the 

materials that McLarnan handed over to the defense 

investigator were first brought to the court’s attention at this 

hearing, and the court agreed to defense counsel’s request to 

consider the materials in camera at a later time.
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

36

Flinner sought out and may have discovered the jurors’

addresses was outweighed by the probative value of this 

testimony. 

b. Flinner’s Threats to the Prosecutor

Flinner also claims that the trial court erred in admitting 

portions of three letters he wrote expressing hatred toward the 

prosecutor and threats against the prosecutor or his family. The 

first is a letter that Flinner wrote to his mother, where he 

characterized the prosecutor as a “little maggot.” The letter goes 

on to state: “You’d think a guy who achieved as he is could afford 

more than a $263,000 mortgage. [¶] . . . [¶] . . . His wife must 

be unquestionably ill-bred, empty, and misguided being with 

him, either that or one hideous, sordid shrew with a back harrier 

[sic] than his own. . . . I hope he dies young. The Freedom of 

Information Act is a great thing. . . . Looking forward to getting 

out of here and moving to Chula Vista so I can hang out with all 

of my great friends.”

The second letter is one that Flinner wrote to an inmate 

at another prison with whom Flinner corresponded frequently. 

It reads, in part: “Have you ever heard of the Freedom of 

Information Act? Why is it okay for him to know all about me, 

and yet I’m not supposed to know anything about him? . . . One 

cannot be a true adversary without knowledge of his opponent 

and his critical position in life. . . . [¶] . . . [¶] . . . He has me 

locked away in solitary confinement so as not to be able to talk 

to the other convicts, et cetera. But I ride four busses [sic] when 

I go to court and can speak to whomever I wish. Many people 

know the things that I want them to know. One thing is for sure, 

this shit is a long way from over. [¶] Anyway, just thought I’d 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

37

put that out there in case this sorry piece of shit happens to read 

this, miserable mother fucker.”

The third letter Flinner points to is one he sent to another 

inmate. The court admitted only part of this letter, which 

included the following statement: “By the way, the dicks [on top 

of each page of the letter] are for the D.A.’s memory. He’s [sic] 

trying to send him a subliminal message, actually a series of 

them. First, I will fuck him in front of his wife and kids when 

I’m free.” 

Before trial, the prosecution had sought to admit these 

and several other letters written by Flinner disparaging the 

prosecutor, illustrating Flinner’s knowledge of personal details 

about the prosecutor like his home address and wife’s name, 

disclosing such information to other inmates, and threatening 

harm to the prosecutor and his family. The prosecution argued 

that this evidence was relevant to showing Flinner’s efforts to 

intimidate the prosecutor and thereby hinder the prosecution of 

the case. Although these letters were sent to third parties and 

not directly to the prosecutor, the prosecution asserted that 

Flinner knew his letters were being photocopied and monitored

by the authorities. Defense counsel objected to the admission of 

the letters, arguing that Flinner was merely “venting his 

frustrations regarding his situation rather than attempting to 

hinder the prosecution of this case” and was just trying to “get[] 

a rise out of” the prosecutor. To the extent the letters were 

relevant, Flinner urged, they should be excluded as unduly 

prejudicial. The court agreed with the prosecution that these 

letters supported the inference that Flinner was trying to alter 

the course of the prosecution by intimidating the prosecutor, but

it carefully walked through the letters and excluded many

entirely and others in part under Evidence Code section 352.
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

38

We conclude the trial court did not err in admitting the 

portions of the three letters of which Flinner now complains. We

agree with the trial court that these letters contained not-soveiled threats against the prosecutor and his family, which were

relevant to whether Flinner attempted to suppress evidence by 

obstructing the prosecution of his case and thus tend to 

demonstrate consciousness of guilt. (See People v. Hamilton 

(1985) 41 Cal.3d 408, 429 [where the defendant knew his 

jailhouse letter would be copied and read by authorities, his 

reference to threats against the prosecutorial team made by an 

acquaintance, which were to be carried out if the defendant was 

convicted, constituted a form of “subtle attempt at 

intimidation”].) We also conclude that the court acted within its 

discretion in admitting under an Evidence Code section 352 

analysis the portions of the letters that Flinner points to here. 

We do not think the jury would be biased by the derogatory 

characterizations of the prosecutor as a “little maggot” or a 

“miserable mother fucker,” especially in light of the evidence of 

the actual crimes at issue in this case. The probative value of 

Flinner’s pointed references to details about the prosecutor’s 

personal life outweighs any prejudice that might have arisen 

from the jurors’ knowledge that Flinner was targeting the 

prosecutor. We cannot say the trial court abused its wide 

discretion in admitting these threats. 

Finally, Flinner suggests that it was unduly prejudicial to 

expose the jurors to both the violent threats Flinner made 

against the prosecutor and his attempts to collect the jurors’ own 

addresses. He reasons that the jurors might have inferred that 

he would retaliate against them or their families, too, and they 

would be prejudiced against him as a result. We conclude the 

trial court did not abuse its discretion by admitting either 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

39

category of evidence. As we have already explained, the 

probative value of Flinner’s attempts to obtain jurors’ addresses 

and his threats against the prosecutor was significant, and we 

are not convinced that any additional prejudice arising from the 

synergy of these two strains of evidence substantially 

outweighed that probative value. 

c. Witnesses’ Fears of Flinner

Flinner argues that the trial court erred in admitting the 

testimony of three witnesses in which each expressed fear of 

Flinner. The Attorney General argues that, in each instance, 

the witness’s fear of Flinner was relevant to the witness’s 

credibility and therefore admissible. We consider each witness’s 

testimony in turn. 

Witness Charles Cahoon testified about Flinner’s attempt 

to frame him for Keck’s murder. The prosecution sought to show 

that Flinner was responsible for planting a sock with bullets 

inside it in Cahoon’s car. Cahoon testified that he saw Flinner

break into his apartment shortly before Cahoon found the sock 

in his car, and that Cahoon realized his car keys were missing 

shortly after the apartment break-in. On cross-examination, 

Flinner’s attorney elicited testimony that, when Cahoon first 

reported the incident to the police, Cahoon said the intruder 

looked like a Mexican person and resembled Flinner’s friend, 

Gilberto Lopez. During later cross-examination by Ontiveros’s 

counsel and redirect examination by the prosecution, Cahoon 

explained that he had always thought the intruder was Flinner

but had been reluctant to name him because Cahoon was afraid 

of Flinner. Over Flinner’s objection, the trial court permitted 

Cahoon to explain why he ultimately chose to come forward and 

name Flinner: “Because I think he is a very bad man and he 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

40

should be stopped. And I think he doesn’t deserve to even be 

with us here on Earth.”

On recross-examination, Flinner’s counsel attempted to 

impeach Cahoon by portraying Cahoon as a biased witness who 

was trying to ensure Flinner’s conviction. Defense counsel 

elicited Cahoon’s testimony that Cahoon had been trying to find 

out what he “could do to go ahead and help to get [Flinner] off 

the street and away from the public eye and so he couldn’t hurt 

or kill anybody else.” And Cahoon confirmed, upon defense 

counsel’s followup, that this was his “angle” — that he did not 

like Flinner and did not think he “should be with us here.” At 

defense counsel’s request, the trial court struck other portions 

of Cahoon’s testimony as nonresponsive, including Cahoon’s 

statement that he was still scared of Flinner and thought “what 

he’s doing to [codefendant Ontiveros] is ridiculous.”

We conclude the trial court properly admitted this 

testimony. Cahoon’s description of his initial fear in response to 

questioning by the prosecution and by Ontiveros’s counsel were

relevant to Cahoon’s credibility: His fear of Flinner provided an 

explanation for why he did not immediately name Flinner as the 

home intruder. Cahoon did express strong negative feelings 

about Flinner alongside his fear; some of his statements held a 

potential for prejudice within the meaning of Evidence Code 

section 352. But the trial court did not abuse its broad discretion 

to balance that potential against the statements’ probative 

value in showing how Cahoon overcame his fear of testifying. 

We note as well that Cahoon’s later statements against Flinner

— that Cahoon was testifying in order to get Flinner “off the 

street and away from the public eye and so he couldn’t hurt or 

kill anybody else” and that he did not think Flinner “should be 

with us here” — were elicited by Flinner’s own attorney, 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

41

presumably believing these statements useful to show Cahoon’s

bias. Flinner cannot claim error in admission of evidence he 

elicited. (See People v. Gutierrez (2002) 28 Cal.4th 1083, 1139 

[if there was error, it was invited]; People v. Escobar (1996) 48 

Cal.App.4th 999, 1022, fn. 4 [rejecting defendant’s claim of 

inadmissibility of evidence where defendant “not only failed to 

object to the admission of the evidence, but . . . sought its 

admission”].) 

Next, Flinner argues that the trial court erred in 

admitting prosecution witness Ronald Millard’s statement that, 

although Flinner had never threatened or harmed him, Millard 

felt intimidated by Flinner. Millard, who had worked for 

Flinner, testified to aspects of the relationship between Flinner

and Ontiveros. On cross-examination, Flinner’s attorney asked 

the following questions:

“Q: Did Mr. Flinner ever threaten you personally?

“A: No.

“Q: Did Mr. Flinner ever touch you physically?

“A: No.

“Q: Did Mr. Flinner ever do anything to make you 

personally afraid of him where he said something to you 

concerning anything.

“A: He’s a very intimidating man.”

As with Cahoon’s later statements of fear, defense counsel 

initiated this line of questioning and did not ask the trial court 

to strike Millard’s answer that Flinner is “a very intimidating 

man,” the only portion of Millard’s testimony to which he now 

objects. Under these circumstances, his claim of error is not 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

42

cognizable on appeal. (People v. Gutierrez, supra, 28 Cal.4th at 

p. 1139.) 

Finally, Flinner returns to McLarnan’s testimony. The 

prosecutor asked McLarnan what she did upon receiving the 

letter from Flinner asking her to send letters to witnesses in his 

case. When she said that, at first, she “didn’t do anything with 

it” and ultimately turned it over to the defense investigator, the 

prosecutor asked whether she ever contacted police or the 

district attorney’s office to tell them about Flinner’s letter. She 

said she had not. The prosecutor proceeded to ask her whether 

she had been concerned about her family’s safety should Flinner

find out about her decision not to help him. Over Flinner’s 

objection on grounds of relevance and undue prejudice, the trial 

court allowed McLarnan to answer that she “was concerned 

about Michael’s reaction” and she “was concerned for [her] son.” 

The prosecutor also introduced portions of a letter she sent to 

the defense investigator in which she wrote, “I’m seriously 

concerned for my family’s safety should Michael find out about 

this,” and queried, “Do you think we’ll need protection?” 

We conclude that this evidence was relevant. “Evidence 

that a witness is afraid to testify or fears retaliation for 

testifying is relevant to the credibility of that witness and is 

therefore admissible.” (People v. Burgener (2003) 29 Cal.4th 

833, 869.) McLarnan’s explanation of why she was afraid was 

“likewise relevant to her credibility” and its admission “well 

within the discretion of the trial court.” (Ibid.) McLarnan did 

not initially tell anyone about the letter that she received from 

Flinner and never handed the information over to the 

authorities; her fears of what Flinner would do if he found out 

about her actions were relevant to why she held this information 

so closely and did not come forward immediately with it, despite 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

43

her understanding that the letter could be seen as tampering 

with witnesses and hampering Flinner’s trial. (People v. 

Mendoza (2011) 52 Cal.4th 1056, 1085 [“a trial court has 

discretion, within the limits of Evidence Code section 352, to 

permit the prosecution to introduce evidence supporting a 

witness’s credibility on direct examination, particularly when 

the prosecution reasonably anticipates a defense attack on the 

credibility of that witness”].) And this evidence was not unduly 

prejudicial: Though McLarnan’s statements suggest she feared 

some kind of retaliation from Flinner, she did not testify that

Flinner had ever threatened or harmed her, including during 

their prior relationship or when she visited him in prison. The 

trial court did not abuse its discretion under Evidence Code 

section 352 in admitting evidence of her concern. 

2. Flinner’s Derogatory Statements About Keck

Flinner argues that the trial court improperly admitted 

derogatory and callous comments he made about Keck before 

and after her death. Tiffany Faye testified about a visit that 

Flinner made to the flower shop where she worked to purchase 

flowers for Keck’s funeral. During the visit, Flinner yelled at a 

woman driving by in a car, “Hey baby, I’m single now,” and 

laughed. In declining to add a message to accompany the 

flowers he purchased, Flinner told Faye, “Tammy is dead. It’s 

not like she can read it anyway,” and laughed again. David 

Pemberton, a contractor who met Flinner at their local Chamber 

of Commerce meetings, testified that Flinner referred to Keck 

as a “bitch,” “cunt,” and “slut” in front of her and others. Flinner

contends that these statements should have been excluded as 

irrelevant or, even if relevant, as substantially more prejudicial 

than probative. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

44

Before trial, the prosecution filed a motion in limine to 

introduce this and other evidence concerning Flinner’s strained 

relationship with Keck. The prosecution argued that this 

evidence was admissible in part because it “clearly rebuts 

[Flinner’s] claim that he ‘loved’ Tamra and therefore could not 

have killed her.” Flinner opposed the admission of much of this 

evidence, arguing that it was highly prejudicial and irrelevant, 

but acknowledged that some evidence of Flinner’s lack of grief

after Keck’s death might properly come in. The trial court 

concluded that evidence of the strained nature of Flinner’s and 

Keck’s relationship was relevant and admissible to establish 

motive, identity, and state of mind, reasoning in part that 

“defendant is not entitled to have the jury determine his guilt or 

innocence on a false presentation of their relationship.” But the 

court restricted the evidence that the prosecutor could present 

to the jury based on an analysis under Evidence Code section 

352.

We conclude the trial court properly admitted the 

contested testimony of Faye and Pemberton. Flinner’s

derogatory characterizations of Keck, made both in Keck’s 

presence and as well as in front of others, are relevant to proving 

his strained relationship with Keck and thus his relative 

willingness to have her killed in furtherance of his own material 

gain. His callous remarks in Faye’s presence shortly after 

Keck’s death are relevant to establishing his lack of sorrow, thus 

refuting the defense’s theory that Flinner was in love with Keck 

and therefore would not have been involved in her murder. And 

the probative value of these statements was not substantially 

outweighed by any prejudicial impact. These disparaging 

remarks were not particularly inflammatory considering the 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

45

other evidence that Flinner arranged and facilitated a coldblooded murder for financial gain.

8

3. Admissibility of Series of Writings Allegedly 

Authored by Flinner or at His Direction

Flinner argues that the trial court erred in admitting a 

series of letters, a telephone call recording, and two bullet 

casings with “Tammy” and “Mike” written on them, all allegedly 

authored by Flinner or made at his direction. He asserts that 

none of these writings was properly authenticated, in violation 

of Evidence Code section 1401, as well as his right to confront 

the witness against him under the Sixth and Fourteenth 

Amendments. Flinner also contends that this evidence was 

irrelevant and substantially more prejudicial than probative,

and that its admission thus violated Evidence Code sections 350 

and 352, as well as his rights to a fair trial and a reliable penalty 

determination under the Eighth and Fourteenth Amendments. 

With respect to a majority of these pieces of evidence,

Flinner has forfeited his objection based on lack of 

authentication. Flinner argues that he preserved all his 

authentication claims for our review. Without fully explaining 

his argument on this point, he points to a pretrial ruling in 

which he claims the court granted his request that all objections 

by the defense be regarded as having been made on all relevant 

state and federal grounds. But this ruling was not a sweeping 

8 Flinner briefly suggests that his comments about Keck 

were inadmissible hearsay. But he fails to explain how these 

comments were offered for the “truth of the matter stated” (Evid. 

Code, § 1200), as opposed to showing Flinner’s state of mind. 

Nor does he explain why, if considered hearsay, they would not 

fall within the exception for statements of a party opponent. 

(Id., § 1220.) 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

46

authorization to remain silent at trial and raise objections for 

the first time on appeal. Instead, the trial court granted, 

without objection from the prosecution, what the court described 

as “a rather standard motion in a capital case” filed on behalf of 

codefendant Ontiveros and joined by Flinner: that defense 

objections as raised on the record may be deemed, without 

otherwise being expressly stated, to be objections based on 

California state constitutional as well as United States 

constitutional grounds. We have held that “[w]hen ‘new 

arguments do not invoke facts or legal standards different from 

those the trial court itself was asked to apply, but merely assert 

that the trial court’s act or omission, insofar as wrong for the 

reasons actually presented to that court, had the additional 

legal consequence of violating the Constitution . . . [a] 

defendant’s new constitutional arguments are not forfeited on 

appeal.’ ” (People v. Redd (2010) 48 Cal.4th 691, 730, fn. 19; see 

also People v. Yeoman (2003) 31 Cal.4th 93, 117 [explaining that, 

“[a]s a general matter, no useful purpose is served” by declining 

to consider such constitutional claims on appeal].) The trial 

court’s order did nothing more than confirm that a defendant 

does not forfeit an argument on appeal that is “merely a 

constitutional ‘gloss’ ” upon an objection properly raised below. 

(Redd, at p. 730, fn. 19.) But it is still generally the case that a 

defendant forfeits an argument on appeal where he fails to 

object at all to the evidence in the trial court or when he objects 

on substantively distinct grounds. (See, e.g., People v. Partida 

(2005) 37 Cal.4th 428, 433–434 [“ ‘[W]e have consistently held 

that the “defendant’s failure to make a timely and specific 

objection” on the ground asserted on appeal makes that ground 

not cognizable’ ”].) The trial court did not rule otherwise. And 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

47

here, Flinner failed to adequately object to most of the writings 

he now complains about. 

Under the Evidence Code, authentication of a writing —

including documents, audio recordings, and “every other means 

of recording upon any tangible thing” (Evid. Code, § 250) — is 

required before the writing may be admitted in evidence (id., 

§ 1401). “Authentication is to be determined by the trial court 

as a preliminary fact ([id.,] § 403, subd. (a)(3)) and is statutorily 

defined as ‘the introduction of evidence sufficient to sustain a 

finding that it is the writing that the proponent of the evidence 

claims it is’ or ‘the establishment of such facts by any other 

means provided by law’ ([id.,] § 1400). The statutory definition 

ties authentication to relevance. As explained by the California 

Law Revision Commission’s comment to section 1400, ‘[b]efore 

any tangible object may be admitted into evidence, the party 

seeking to introduce the object must make a preliminary 

showing that the object is in some way relevant to the issues to 

be decided in the action. When the object sought to be 

introduced is a writing, this preliminary showing of relevancy 

usually entails some proof that the writing is authentic.’ ” 

(People v. Goldsmith (2014) 59 Cal.4th 258, 266 (Goldsmith).) 

“The proponent’s assertion as to why the writing is relevant 

determines what the proponent claims the writing is, typically 

that it has some specific connection to a person or organization, 

whether through authorship or some other relation. It is this 

connection that must be proved to authenticate the writing.” (2 

McCormick, Evidence (7th ed. 2013) § 221, pp. 82–83, fns. 

omitted; Goldsmith, at p. 267 [“The first step is to determine the 

purpose for which the evidence is being offered. The purpose of 

the evidence will determine what must be shown for 

authentication, which may vary from case to case”].) 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

48

“The foundation requires that there be sufficient evidence 

for a trier of fact to find that the writing is what it purports to 

be, i.e., that it is genuine for the purpose offered. [Citation.] 

Essentially, what is necessary is a prima facie case. ‘As long as 

the evidence would support a finding of authenticity, the writing 

is admissible. The fact conflicting inferences can be drawn 

regarding authenticity goes to the document’s weight as 

evidence, not its admissibility.’ ” (Goldsmith, supra, 59 Cal.4th 

at p. 267.) We review a trial court’s finding that sufficient 

foundational facts have been presented to support a writing’s 

admissibility for abuse of discretion. (People v. Lucas (1995) 12 

Cal.4th 415, 466.) 

Here, the prosecution introduced the challenged writings 

for the purpose of showing that Flinner attempted to derail the 

investigation of Keck’s death by framing others for her murder

while making himself appear innocent or, indeed, another target 

of her killer(s). Flinner argues that the prosecution failed to 

properly authenticate these writings because the prosecution 

did not make a sufficient preliminary showing that Flinner was 

the author of these writings or that he directed others to create 

them. The Attorney General responds that a preliminary 

showing that Flinner authored these writings was unnecessary

because these writings were not offered for the truth of their 

contents but rather “for the jury to specifically consider whether 

Flinner authored or caused their production.” The Attorney 

General asserts that “when the content of the writing or the 

truthfulness of the assertions in the writing are not at issue, 

authentication as to authorship is largely unnecessary,” citing 

People v. Adamson (1953) 118 Cal.App.2d 714, 720 (Adamson).

As an initial matter, the Attorney General’s interpretation 

of Adamson is flawed and his reliance on the case is misplaced. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

49

Adamson stands for a narrower proposition: namely, that

preliminarily establishing the author of a writing is not 

necessary if the authorship of the writing is irrelevant. In 

Adamson, the prosecution had introduced a letter a witness 

received in order to establish that the witness had acted 

pursuant to the letter. (Adamson, supra, 118 Cal.App.2d at 

p. 720.) The court concluded the prosecution was not required 

to make a preliminary showing that the letter was genuinely 

written by the alleged author, because “[w]hether it be genuine 

or a forgery, it was merely offered to show that [the witness] was 

motivated by it in his actions.” (Ibid.) In such instances, where 

authorship is irrelevant and the sole issues are whether a 

witness “receive[d] th[e] material, and if so what effect, if any, 

did it have on [his] mind[],” we have confirmed that establishing 

authorship is not necessary to properly authenticate a writing.

9

 

(People v. Marsh (1962) 58 Cal.2d 732, 740 [discussing 

Adamson].) Here, unlike in Adamson, the prosecution 

introduced the series of writings at issue precisely for the 

purpose of establishing that Flinner wrote them or directed 

their production. Authorship was not irrelevant; it was, rather, 

the central purpose for which the writings were introduced. For 

9 The Adamson court’s conclusion that authentication is 

“not necessary” under these circumstances, however, is 

inaccurate as stated. (See Assem. Com. on Judiciary com., 29B 

pt. 5 West’s Ann. Evid. Code (2015 ed.) foll. § 1401, p. 203.) 

Although proof of genuineness was unnecessary in Adamson, 

“[u]nder the Evidence Code, the requirement of authentication 

would require a showing that the letter offered in evidence was 

in fact the one received and acted upon; and this is the 

preliminary showing that was found sufficient in the Adamson

case.” (Assem. Com. on Judiciary com., 29B pt. 5 West’s Ann. 

Evid. Code, supra, foll. § 1401, p. 203.) 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

50

that reason, and contrary to the Attorney General’s contention, 

the prosecution was required to make a preliminary showing 

that these writings were what the prosecution claimed them to 

be: writings created by Flinner or at his direction. 

That said, we conclude that the writings at issue here were 

properly authenticated or could have been authenticated had an 

objection been timely raised. “ ‘[A] writing can be authenticated 

by circumstantial evidence and by its contents’ ” (People v. 

Landry (2016) 2 Cal.5th 52, 87 (Landry)), and we agree with the 

Attorney General that “the prosecutor presented circumstantial 

evidence sufficient to enable the jury to ascertain that [Flinner]

was responsible for the writings.” We address each of the 

challenged writings in turn. 

a. Anonymous Letter Implicating Cahoon

A few weeks after Keck was killed, a police officer found 

an anonymous letter left on the windshield of his police car. The 

letter claimed that Charles Cahoon had killed Keck. Flinner did 

not object to the introduction of this evidence on authentication 

grounds, and his claim is thus forfeited.

Even if Flinner had objected, we conclude it was not an 

abuse of discretion to admit the letter. The prosecution 

introduced circumstantial evidence that provided a sufficient 

preliminary showing for the prosecution to put the letter before 

the jury, which then had to make the ultimate factual 

determination of whether Flinner did indeed author it. During 

the trial, the prosecution introduced other evidence tending to 

prove that Flinner attempted to frame Cahoon for Keck’s 

murder. Cahoon testified that Flinner broke into his apartment 

and that shortly after the break-in, Cahoon realized that his car 

keys were missing. Around the time the police officer found the 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

51

anonymous letter framing Cahoon, Cahoon found a sock with 

bullets inside it hidden in his car, which he turned over to 

Detective Scully. A criminalist specializing in DNA typing 

testified that he analyzed DNA found on the sock and concluded 

that it contained a mixture of DNA from Keck and a man. The 

male DNA matched Flinner’s profile in many respects and the 

criminalist concluded that it was quite likely that the DNA was 

in fact from Flinner. He also concluded that the male DNA could 

not have come from Cahoon. Although this circumstantial 

evidence of Flinner’s other attempts to frame Cahoon is not 

conclusive of the letter’s authorship, it was sufficient to admit

the letter. “ ‘The fact conflicting inferences can be drawn 

regarding’ ” the letter’s authorship “ ‘goes to the document’s 

weight as evidence, not its admissibility.’ ” (Goldsmith, supra, 

59 Cal.4th at p. 267.) 

b. Anonymous Letter Implicating Software 

Developer

In February 2001, Flinner’s mother received an 

anonymous letter posted from New York and made up of letters 

cut out of a magazine. The letter’s contents made little sense 

but included the following passage: “My continuing professional 

work is on improving the reliability of software. . . . We have got 

a head start of 100 years. Forced to kill the fiancé[e]. She knew 

too much.” The letter also said, “Keep him quiet.” Flinner failed 

to object to the admission of the letter; he therefore has forfeited 

his appellate claim that the letter should not have been 

admitted. The claim also fails on the merits. In the months 

leading up to the letter’s delivery, Flinner shared a theory that 

Keck was killed due to her knowledge of a scheme in which the 

North Korean government was seeking to have special gambling 

software delivered to mobsters in the United States. Flinner
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

52

said that a friend and business partner, Rick Host, was involved 

in the scheme. Host passed away after Keck’s death, but Flinner

claimed that just before Host’s death, Host told Flinner that 

Keck was killed because she had too much information about the 

gambling software. In light of this circumstantial evidence, one 

plausible inference is that Flinner had someone send the 

anonymous letter to Flinner’s mother to buttress Flinner’s story

that Keck was killed due to her connection with the North 

Korean gambling software scheme, and not by Flinner. 

c. First Letter Implicating Host and Ontiveros

Shortly after a press release announced that the police had 

taken Ontiveros into custody, police intercepted a letter 

addressed to Ontiveros. The letter was signed “Eli” and blamed

Ontiveros for ruining a hit on “the target” and “Mike.” It reads, 

in part, “What were you doing? ICSC with Rick [Host] were 

acting on behalf of Kwan and they selected the target for a 

reason. . . . [Y]ou need to keep your mouth shut. If things go 

bad, blame everything on Mike.” The letter also expressed

concern “that Rick may have told Mike all that was going on 

before his death,” and purported to remind Ontiveros that he

was “instructed not to call or see Rick after . . . giving him back 

his car.” Flinner failed to object to this letter in the trial court 

and has thus forfeited the claim that it should not have been 

admitted. And, as with the letter to Flinner’s mother, it was not 

an abuse of discretion to admit this letter. The other 

circumstantial evidence that Flinner was trying to pin blame on 

Ontiveros, Host, and the North Korean government supports 

the inference that Flinner forged this letter. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

53

d. Second Letter Implicating Host and Ontiveros

Before trial, Judge Preckel received a letter written in 

broken English from a person claiming to know Ontiveros. The 

letter asserted that “a man named Rick” paid Ontiveros “to kill 

the girl.” It explained that Keck’s boyfriend — who “never know 

about this” — lent a car to Rick, who then lent it to Ontiveros. 

Rick told Keck to pick up Ontiveros, who then shot her in the 

head. The letter was signed “A.” Flinner did not object to the 

admission of the letter and has forfeited his challenge on 

authentication grounds. The challenge is also meritless. As 

discussed above, the prosecution introduced other evidence 

tending to prove that Flinner tried to implicate Rick Host in 

Keck’s death. And the prosecution also introduced other 

evidence that Flinner attempted to pin the blame for Keck’s 

death on Ontiveros: Flinner sent a series of letters to religious 

organizations claiming that Ontiveros killed Keck. He also sent 

a letter to United States Representative Duncan Hunter 

(discussed below) claiming that Ontiveros killed Keck and that 

her death was related to the gambling software scheme. In light 

of this other evidence making it possible to infer that Flinner

caused this letter to be sent as part of his plan to shift blame 

from himself to Host and Ontiveros, it was not an abuse of 

discretion to admit the letter. 

e. Anonymous Phone Call Implicating “Ernesto”

A few days after Keck’s murder, the sheriff’s department 

received a phone call from a Spanish-speaking woman who 

declined to identify herself. She claimed that a man named 

Ernesto told her that he killed Keck because he wanted to take 

revenge on Flinner. The woman explained that Ernesto “had 

had some problems with Mike like . . . like 10 years ago.” And 

she said that Ernesto told her that Keck had been driving a 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

54

white Mustang the day of the murder, that Ernesto went to Vons 

or a gas station to pick her up, and that they went to a dead-end 

street where Ernesto “killed her with a 45.” The Attorney 

General concedes that Flinner objected to the introduction of 

this phone call on authenticity grounds. 

We conclude the trial court acted within its discretion in 

overruling the defense objection and admitting the phone call. 

Days after the sheriff’s department received the anonymous call, 

Flinner passed along to Detective Scully a voicemail message 

that Flinner received from a man with a “strong, Hispanic 

accent.” The caller said, “Mike, I see your wife Sunday [the day 

of the murder]. I see you next. Bye.” Flinner explained to 

Detective Scully that “[t]he only time [he] ever had a problem 

with anybody that was Hispanic” was 10 years earlier, when he 

got into an argument with a group of “Mexican folks.” The police 

had not told Flinner about the anonymous call claiming that 

Ernesto had killed Keck in revenge for a decade-old problem. 

One possible inference in light of this evidence is that the 

anonymous caller was telling the truth about Ernesto. But 

another inference, in light of the other, substantial evidence that 

Flinner attempted to frame others for Keck’s death, is that 

Flinner arranged for the initial anonymous phone call to be 

placed to the sheriff’s department to deflect attention from 

himself. The factual determination of whether Flinner was 

responsible for the call was properly put to the jury. Again,

“ ‘[t]he fact conflicting inferences can be drawn regarding’ ” the 

call’s origin goes to the call’s weight and not its admissibility.

(Goldsmith, supra, 59 Cal.4th at p. 267.) 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

55

f. Bullets with “Mike” and “Tammy” Written on 

Them

During the investigation, Flinner’s father found a 

container on his property with two bullets in it, which he turned 

over to the police. One was a spent casing with “Tammy” 

written on it, and the other was a live bullet with “Mike” written 

on it. The bullets were of the same caliber and make as the 

bullet that killed Keck. James Theodorelos, a cooperating 

informant who met Flinner in prison, testified that Flinner told 

him that Flinner had “put a few bullets on his parents’ property, 

one had been spent, with the initial of [Keck’s] name and the 

other one was the initial of [Flinner’s] name.” Flinner did not 

object to the introduction of the bullets and has forfeited the 

claim that they were improperly admitted. In any event, in light 

of Theodorelos’s testimony linking Flinner to the bullet writings, 

the trial court acted within the bounds of its discretion in 

admitting evidence of the two bullets. 

g. Letters to John Martin

One of Flinner’s fellow inmates, John Martin, turned over 

to Detective Scully two letters that Flinner had allegedly 

written. In the first letter, the author claimed that Theodorelos 

turned on the author: “You see, [Theodorelos] has taken all of 

what I’ve shared about matters and twisted them up into his 

favor, saying that I told him that I sent the letter from the east 

to my parents, that I put . . . the casings on my dad’s property et 

cetera.” The letter also asks Martin to “remember the times . . . 

I had mentioned things like how my folks had received threats 

from the east coast and how my father found shell casings on his 

property and things about my business partner telling you that 

Asians were involved in that deal with my wife and things like 

that.” The second letter, which appears to respond to an 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

56

intermediate letter from Martin, laments that Martin has 

“decided to flip the script” and says that “the district attorney’s 

office will invariably find their way to you now because of this 

letter I just got from you.” The trial court overruled defense 

counsel’s objection to these letters on foundation and hearsay 

grounds, and the Attorney General does not argue that Flinner

forfeited his authentication objection to them.

We conclude the trial court did not err in admitting these 

letters because their contents and other circumstantial evidence 

presented by the prosecution sufficiently authenticated the 

letters. The content of the first letter connects it to Flinner: The 

letter discusses the bullet casings that Flinner’s father found, 

the letter that his mother received from New York (a threat from 

“the east coast”), and the theory that Keck was tied up in a “deal” 

with some “Asians” (similar to the North Korean gambling 

software scheme theory). It also faults Theodorelos, the same 

man who testified against Flinner at trial, for cooperating with 

the prosecution. (See Landry, supra, 2 Cal.5th at p. 87 [relying 

on the contents of a letter to support the letter’s authenticity, 

even where the information relayed in the letter may have been 

known by individuals other than the alleged author]; see also 

Evid. Code, § 1421 [“A writing may be authenticated by evidence 

that the writing refers to or states matters that are unlikely to 

be known to anyone other than the person who is claimed by the 

proponent of the evidence to be the author of the writing”]; id., 

§ 1410 [“Nothing in this article shall be construed to limit the 

means by which a writing may be authenticated or proved”].) 

Though the second letter does not contain similar references to 

personal information about Flinner and his case, the jury could 

reasonably infer from its contents that it was part of the same 

conversational chain; the letter reads as if it is a reply from 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

57

Flinner to a letter sent by Martin addressing Flinner’s first 

letter. (Cf. Evid. Code, § 1420 [“A writing may be authenticated 

by evidence that the writing was received in response to a 

communication sent to the person who is claimed by the 

proponent of the evidence to be the author of the writing”].)

h. Letter to Member of Congress 

While in jail before trial, Flinner wrote a letter to United 

States Representative Duncan Hunter. In the letter, Flinner

explained that his former employee was responsible for Keck’s 

murder, that “the Korean gaming industry” arranged the 

murder because Keck “was in possession of crucial software 

desired to promote and advance political payoffs,” and that 

Flinner had learned all of this from “a now deceased business 

associate . . . on his death bed.” Flinner did not raise an 

authentication objection in the trial court and has forfeited that 

claim. In any event, the letter was properly authenticated. 

Before the letter was introduced, the prosecution had Detective 

Scully explain how he had requested a mail cover for Flinner’s 

jail mail and that he had accordingly received photocopies of all 

Flinner’s incoming and outgoing mail, including the letter to 

Representative Hunter. (See, e.g., Landry, supra, 2 Cal.5th at 

p. 87.) 

Although Flinner lumps this letter in with the other 

writings to which he objects on authentication grounds, 

Flinner’s complaint about this letter is primarily based on other 

concerns. Specifically, Flinner claims that jail employees 

violated Penal Code sections 2600 and 2601 in reading his letter 

to Representative Hunter and asserts that the letter should 

have been suppressed on that basis. Penal Code section 2601, 

subdivision (b) lists a series of civil rights that a person 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

58

sentenced to prison retains, including the right “[t]o correspond, 

confidentially, with any member of the State Bar or holder of 

public office, provided that the prison authorities may open and 

inspect incoming mail to search for contraband.” (Italics added.) 

Penal Code section 2600, subdivision (a) provides that an inmate 

may be deprived of those rights only “as is reasonably related to 

legitimate penological interests.” Flinner did not object to the 

introduction of his letter to Representative Hunter on this or 

any other ground in the trial court and has thus forfeited this 

claim. Any error would also be harmless under any standard, 

given the wealth of similar evidence that Flinner attempted to 

place blame for Keck’s murder on the North Korean gambling 

industry and various employees and associates.

In sum, Flinner’s objections to these eight writings are all 

either forfeited or meritless. We also reject Flinner’s claim that 

these writings were irrelevant or substantially more prejudicial 

than probative (Evid. Code, §§ 350, 352): These writings 

supported the prosecution’s theory that Flinner attempted to 

obstruct the investigation and prosecution of the case, from 

which the jury could properly infer a consciousness of guilt. And 

none of the letters created a substantial risk of undue prejudice. 

4. Admissibility of Flinner’s Statements Suggesting 

He Killed Keck

Flinner contends that the trial court erred in admitting 

statements he made to his friend Gilberto Lopez, suggesting 

that Flinner killed Keck or had Keck killed. Flinner argues that 

these statements were hearsay and that they are insufficiently 

reliable to admit as statements against interest. Even if these 

statements were not inadmissible hearsay, he asserts, they 

should have been excluded as substantially more prejudicial 

than probative. He maintains that the admission of these 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

59

statements violated his rights to confrontation, a reliable 

penalty determination, and due process under the Sixth, Eighth, 

and Fourteenth Amendments. 

Lopez testified that a few days after Keck’s murder he 

went out to dinner with his girlfriend Marie Locke and 

Flinner.

10

 He recalled Flinner having two large drinks and 

described him as becoming “tipsy” and seeming “really sad, 

really down.” During the meal, Flinner stated, “I shouldn’t have 

killed her.” On cross-examination, Lopez acknowledged Flinner

may have just been “talking trash” that night, and that Lopez 

had thought at the time that Flinner was blaming himself but 

did not think Flinner was, in fact, responsible for Keck’s death. 

Lopez also testified about another occasion after the murder, in 

which Flinner had taken sleeping pills and was “acting all 

groggy, mumbling.” While Lopez was helping Flinner up to his 

bed, Flinner said, “I shouldn’t have killed her.”

Flinner’s hearsay objection to the admission of this 

testimony lacks merit. Hearsay is an out-of-court statement 

offered for the truth of the matter asserted and is generally 

10 Flinner made no objection to Lopez’s testimony. The 

hearing to which Flinner points as containing an objection 

instead concerned a defense request for a mistrial arising from 

a related, but significantly different, event: The subsequently 

stricken double-hearsay testimony (discussed further below) of 

Lopez’s girlfriend, Marie Locke, about Lopez’s relation to her of 

Flinner’s statement in the restaurant. In arguing for a mistrial, 

defense counsel at no point suggested that Lopez’s testimony 

about the statement would be inadmissible. The court denied 

the mistrial motion and a related motion to strike the testimony 

of an investigator but did not rule on any question regarding 

testimony by Lopez himself. Despite the lack of an objection, 

the Attorney General does not assert the claim is forfeited.
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

60

inadmissible. (Evid. Code, § 1200.) But there are a number of 

exceptions to this rule. One, the party-admission exception 

codified in Evidence Code section 1220, covers “[e]vidence of a 

statement . . . when offered against the declarant in an action to 

which he is a party . . . .” Flinner was of course a party to this 

action. The parties focus on another, related exception to the 

hearsay rule, the exception for statements against interest: 

“Evidence of a statement by a declarant having sufficient 

knowledge of the subject is not made inadmissible by the 

hearsay rule if the declarant is unavailable as a witness and the 

statement, when made . . . so far subjected him to the risk of 

civil or criminal liability . . . that a reasonable man in his 

position would not have made the statement unless he believed 

it to be true.” (Id., § 1230.) “The proponent of such evidence 

must show that the declarant is unavailable, that the 

declaration was against the declarant’s penal interest when 

made and that the declaration was sufficiently reliable to 

warrant admission despite its hearsay character.” (People v. 

Duarte (2000) 24 Cal.4th 603, 610–611 (Duarte).) “In 

determining whether a statement is truly against interest 

within the meaning of Evidence Code section 1230, and hence is 

sufficiently trustworthy to be admissible, the court may take 

into account not just the words but the circumstances under 

which they were uttered, the possible motivation of the 

declarant, and the declarant’s relationship to the defendant.” 

(People v. Frierson (1991) 53 Cal.3d 730, 745.) We review the 

application of the statement against interest exception to the 

particular facts of a case for abuse of discretion, but whether a 

trial court has correctly construed Evidence Code section 1230 

is a question of law that we review de novo. (People v. Grimes

(2016) 1 Cal.5th 698, 712.)
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

61

The trial court did not abuse its discretion in admitting 

Flinner’s statements to Lopez, regardless of whether we focus 

on the statement of party opponent exception in Evidence Code 

section 1220 or the statement against interest exception in 

Evidence Code section 1230. Although Lopez’s testimony was 

offered by codefendant Ontiveros rather than by the People, it 

was nonetheless “offered against” Flinner within the meaning of 

Evidence Code section 1220. As discussed earlier, Ontiveros’s 

defense was antagonistic to Flinner’s: Ontiveros sought to show 

Flinner manipulated him into participating in Keck’s killing, 

while Flinner denied all involvement. Lopez’s testimony that 

Flinner took responsibility for killing Keck clearly harmed 

Flinner’s case, as well as helping Ontiveros’s. (Cf. People v. 

Allen (1976) 65 Cal.App.3d 426, 433 [to be relevant under Evid. 

Code, § 1220, “the statement must assert facts which would 

have a tendency in reason either (1) to prove some portion of the 

proponent’s cause of action, or (2) to rebut some portion of the 

party declarant’s defense”].)

As for section 1230, Flinner does not dispute that he was 

“unavailable as a witness” within the meaning of Evidence Code 

section 1230, since he had asserted his Fifth Amendment right 

not to testify. And his statements that he should not have killed 

Keck are, on their face, clearly contrary to his penal interests as 

they admit culpability for her murder.

Flinner nevertheless argues that the circumstances 

surrounding the two statements establish that they are not 

sufficiently disserving of his interests nor sufficiently reliable to 

justify admission. Flinner notes that he was under the influence 

of alcohol or sleeping pills when he allegedly made these 

statements and that Lopez may not have taken them literally. 

He relies on Duarte, supra, 24 Cal.4th 603, in which the 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

62

declarant admitted shooting at a house, but did so by 

minimizing his own culpability, suggesting that the defendant 

bore a greater culpability for the crime than the declarant. The 

declarant’s statement was made to police shortly after he had 

been arrested and after he had learned that the police had 

evidence linking him to the crime. We held that not only were

portions of the declarant’s statement improperly admitted 

because they were not “ ‘specifically disserving’ ” of his penal 

interest (id. at p. 613), but also that under these circumstances

— “ ‘where a declarant in police custody seeks to exculpate 

himself by implicating another suspect’ ” — the statement 

“lacked sufficient indicia of trustworthiness” and was 

inadmissible as a whole (id. at p. 618).

11

 But here, by contrast, 

no portion of Flinner’s statements sought to shift blame for 

Keck’s death away from himself, and he made the statements to 

a close friend, first at an intimate dinner and then in the privacy 

of his home. While the statements were made under the 

influence of alcohol or sleeping pills, no testimony suggests that 

Flinner was unable to understand what he was saying. (Cf. U.S. 

v. Two Shields (8th Cir. 2007) 497 F.3d 789, 792–793 [where 

declarant made nonverbal statement at hospital with blood 

alcohol level of .389 and was described as “unintelligible” by 

doctor, he could not appreciate that the statement was against 

11 Flinner erroneously reads the Duarte court as including 

the declarant’s intoxication at the time of the statement as one 

of the circumstances undermining the reliability of the 

statement. But the declarant in Duarte had emphasized he was 

very drunk at the time of the shooting, as part of his effort to 

reduce his own culpability. (Duarte, supra, 24 Cal.4th at p. 615.) 

The Duarte declarant was not intoxicated at the time he made 

the disputed statement against interest to the police, and the 

case thus does not serve Flinner’s purposes. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

63

his interests and thus it lacked sufficient indicia of reliability 

and was inadmissible].) And finally, while the jury was 

certainly entitled to consider Lopez’s relatively innocuous 

interpretation of Flinner’s comments, Lopez’s interpretation 

could not have precluded the jury from drawing a more 

incriminating inference. Under these circumstances, the trial 

court did not abuse its discretion in admitting Flinner’s hearsay 

statements as statements against his penal interest.

Nor were these statements inadmissible under Evidence 

Code section 352 as substantially more prejudicial than 

probative. The prejudice contemplated by section 352 typically 

involves a potential for evoking an emotional bias against the 

defendant on legally irrelevant or improper grounds; it is not the 

“ ‘ “damage to a defense that naturally flows from relevant, 

highly probative evidence.” ’ ” (People v. Scott (2011) 52 Cal.4th 

452, 491.) Nothing in Flinner’s statements that he should not

have killed Keck would inflame the emotions of the jury in this 

way. 

In sum, we conclude the trial court properly admitted 

Flinner’s statements to Lopez. We thus reject Flinner’s

argument that the admission of these statements violated his 

Sixth, Eighth, and Fourteenth Amendment rights.

12

12 Having concluded that Lopez’s testimony was properly 

admitted, we reject Flinner’s argument that the improper 

admission of the testimony “aggravated” the harm caused by the 

stricken testimony of Lopez’s girlfriend, Marie Locke. Locke, 

who was at the dinner with Flinner and Lopez, testified about 

the dinner before Lopez did. She stated that Lopez told her that 

Flinner said, “I shouldn’t have killed her” that night, but that 

she had not personally heard the statement. The trial court 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

64

5. Admissibility of Evidence of Keck’s Pregnancy

Flinner argues that the trial court erred in admitting 

evidence that Keck may have been pregnant when she was 

killed. He asserts that evidence of Keck’s pregnancy was not 

relevant to any issue in dispute and that, even if relevant, its 

probative value was substantially outweighed by its prejudicial 

impact on the jury. Flinner also claims the admission of this 

evidence violated his rights to a reliable penalty determination 

and due process under the Eighth and Fourteenth Amendments. 

Before trial, the prosecution moved to admit evidence 

about Flinner’s strained relationship with Keck — including 

evidence of Flinner’s displeasure with her possible pregnancy —

as relevant to establishing his motive for her murder and

because it tended to refute Flinner’s claim that he was deeply in 

love with Keck, wanted to marry her, and wanted to father her 

child. Included in this motion was the prosecutor’s plan to 

introduce the testimony of Melissa Henderson and Nathalie 

Reed, who would each testify that Flinner discussed Keck’s 

pregnancy with her soon after Keck’s murder and expressed 

displeasure with the pregnancy. Flinner objected generally to 

evidence of his strained relationship with Keck, arguing it was 

irrelevant because the prosecution’s theory of the case was that 

Flinner had Keck killed in order to collect insurance money, not 

because of any relationship problems. Although the trial court 

excluded some of the evidence of the state of Keck’s and Flinner’s 

properly struck this portion of Locke’s testimony as inadmissible 

double hearsay and admonished the jury to disregard it. We 

presume the jury followed the court’s instructions as to Locke’s 

testimony (People v. Sanchez, supra, 26 Cal.4th at p. 852), and 

Lopez’s testimony clearly did not suffer from the same defect.
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

65

relationship as substantially more prejudicial than probative 

under Evidence Code section 352, it admitted much of it, 

including the planned testimony of Henderson and Reed. 

Defense counsel preserved the objection that this evidence was 

irrelevant and, even if relevant, should have been excluded 

under Evidence Code section 352. Also before trial, Flinner

objected to the planned expert testimony of the pathologist who 

conducted Keck’s autopsy that Keck’s ovaries and uterus 

suggested that she may have been in the early stages of 

pregnancy at the time of her death. 

At trial, the prosecutor introduced photos of a pregnancy 

test found in Keck’s truck at the scene of the crime, as well as a 

Walmart receipt showing that she had purchased the test just 

before she was killed. Henderson testified that she met Flinner

on a phone chat line in June 2000, shortly after Keck’s death, 

and that Flinner told her his fiancée had been pregnant and he 

was “dreading her being pregnant.” Reed testified that she 

worked at a casino that Flinner frequented and that after Keck’s 

death, Flinner said Keck was “lying” about the pregnancy “and 

she was trying to get him to marry her and he wasn’t going to 

do that.” Defense counsel renewed his objection on Evidence 

Code section 352 grounds, and the trial court again overruled 

the motion. Kim Milan then testified that she met Flinner

through Lopez and during one conversation asked Flinner if he 

had killed Keck. He replied, “I know they think I did it, but why 

would they want to believe that? She was pregnant with my 

baby and we were about to be married.” Gregory Sherman, who 

met Flinner in jail, testified that Flinner discussed his “wife” 

and said that she was pregnant when she was killed. Over 

Flinner’s objection, the prosecutor introduced letters that 

Flinner wrote to religious organizations from jail, blaming a 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

66

former employee for killing Keck after an affair. In these letters, 

Flinner references Keck’s pregnancy, speculating that she was 

having an affair with the former employee that led to the 

pregnancy. Finally, the pathologist testified that the state of 

Keck’s ovaries and uterus were suggestive of pregnancy but 

conceded on cross-examination that he could not say for sure 

that she was pregnant.

Although Flinner now claims error in the admission of all 

evidence concerning Keck’s pregnancy, he did not raise all of 

these objections at trial. In particular, he did not object to the 

relevant portions of the testimony of Milan and Sherman, nor to 

the photos of the pregnancy test and Walmart receipt. Flinner’s

objection as it applies to these pieces of evidence is thus 

forfeited. 

His objection to all evidence concerning Keck’s pregnancy 

as irrelevant or unduly prejudicial also fails on the merits. As 

at trial, Flinner argues that evidence of Keck’s pregnancy was 

irrelevant because the prosecution’s theory of the case was that 

Flinner arranged Keck’s death in order to collect on her life 

insurance policy, and there was no evidence suggesting that she 

was pregnant, or that Flinner believed she was, when he insured 

her life. As support for his argument, Flinner points to People 

v. Cash (2002) 28 Cal.4th 703, 729, where we held that an 

attempted murder victim’s pregnancy was “clearly irrelevant” to 

any issue in the case. There, the defendant shot the victim in 

the course of committing a robbery and had no personal 

relationship with the victim apart from renting a room in her 

boyfriend’s house. Neither the defendant’s relationship to the 

victim nor the victim’s pregnancy had any bearing on the case. 

Here, by contrast, Flinner’s displeasure with Keck’s pregnancy 

provides an additional motive for her murder and is probative of 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

67

why he decided to have her killed at the time he did. Flinner’s 

belief that Keck was pregnant is also relevant to the financial 

motivations for Keck’s murder, insofar as Flinner had expressed 

irritation with the financial strain that Keck placed on him, 

which might be expected to increase with the arrival of a new 

baby. Keck’s own belief that she may have been pregnant, as 

evidenced by the pregnancy test found in her car, and the 

pathologist’s testimony that Keck may have been pregnant, are 

relevant because they tend to corroborate Flinner’s belief that 

Keck was pregnant. 

We also reject Flinner’s claim that this evidence is 

substantially more prejudicial than probative. The kind of 

evidence that Evidence Code section 352 excludes is that which 

“ ‘ “uniquely tends to evoke an emotional bias against the 

defendant as an individual and which has very little effect on 

the issues.” ’ ” (People v. Scott, supra, 52 Cal.4th at p. 491.) We 

recognize that in some instances, as in Cash, a victim’s 

pregnancy may have little or no relevance to the guilt phase of 

a trial and may serve only to inflame the emotions of the jury. 

But here, Keck’s possible pregnancy was probative of Flinner’s 

motive for her murder, and — against the backdrop of evidence 

that he hired a hitman to kill his teenage fiancée for insurance 

money — we do not think this evidence was so uniquely 

damaging as to require its exclusion. Flinner also argues that 

the pathologist’s testimony, even if relevant, was too speculative 

to present to the jury in light of its prejudicial impact. The 

pathologist properly presented his expert opinion based on the 

autopsy; that he could not say for sure that Keck was pregnant 

goes to the weight a reasonable juror would assign it, not its

admissibility. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

68

We conclude the trial court did not abuse its discretion in 

admitting evidence of Keck’s possible pregnancy and reject 

Flinner’s statutory and constitutional claims to the contrary. 

6. Martin Baker’s Competence to Testify

Through the testimony of Martin Baker and other 

witnesses, the prosecution sought to show Flinner had 

attempted to frame Baker for Keck’s murder. Flinner contends 

that Baker was incompetent to testify under Evidence Code 

section 701, subdivision (a) and lacked the requisite capacity to 

perceive and recollect in order to testify under Evidence Code 

section 702, subdivision (a). He argues that the trial court’s 

failure to disqualify Baker as a witness and refusal to strike 

Baker’s incoherent testimony violated his Sixth, Eighth, and 

Fourteenth Amendment rights to cross-examination, due 

process, and a reliable penalty determination. 

When a witness’s competency to testify at all, or to testify 

as to a particular matter, is questioned, we start from the 

general rule that “[e]xcept as otherwise provided by statute, 

every person, irrespective of age, is qualified to be a witness and 

no person is disqualified to testify to any matter.” (Evid. Code, 

§ 700.) A person is completely disqualified from testifying under 

Evidence Code section 701, subdivision (a) if he or she is 

“(1) [i]ncapable of expressing himself or herself concerning the 

matter so as to be understood . . . or [¶] (2) [i]ncapable of 

understanding the duty of a witness to tell the truth.” “Capacity 

to communicate, or to understand the duty of truthful 

testimony, is a preliminary fact to be determined exclusively by 

the court, the burden of proof is on the party who objects to the 

proffered witness, and a trial court’s determination will be 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

69

upheld in the absence of a clear abuse of discretion.” (People v. 

Anderson (2001) 25 Cal.4th 543, 573 (Anderson).) 

Here, the record does not support the claim that Baker 

lacked the capacity to communicate so as to be understood or 

that he was unable to understand the duty of truthful testimony.

Baker worked for Flinner’s landscaping business. The 

prosecution called Baker as a witness to testify that Flinner

tried to frame Baker for Keck’s death and to establish the 

independent poisoning charge. When the prosecution first 

called Baker, the court held a preliminary Evidence Code 

section 402 hearing in front of the jury to “assess Mr. Baker’s 

apparent condition and circumstances,” asking the prosecution 

to first “inquire of Mr. Baker as to who he is and what he’s been 

doing presently and in the recent past,” without “get[ting] into 

any substantive matters.” Baker demonstrated his ability to 

communicate when he testified as to his early life, his education, 

and his family. Flinner points out that Baker initially refused 

to answer questions concerning his siblings’ ages, saying, “I 

plead the 5th,” but this does not establish that Baker did not 

understand his duty to testify truthfully. His reluctance to 

respond stemmed from his sense that the question was “pretty 

personal” and that the case “has nothing to do with [his] family,” 

but he acquiesced as soon as the court admonished him that as 

a witness, he must answer questions honestly and to the best of 

his ability. We are satisfied that the trial court did not abuse its 

discretion in concluding that, although Baker may be “a bit 

different,” he was nevertheless qualified to testify. (See People 

v. Lewis (2001) 26 Cal.4th 334, 361 [witness diagnosed as having 

intellect of a seven year old was not disqualified from testifying 

even though he “often responded in incomplete, sometimes 
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70

nonsensical, sentences,” and testified that he “ ‘heard’ ” blood 

and knew how money “ ‘sounds’ ”].) 

Even if a witness is not disqualified as incompetent under 

Evidence Code section 701, subdivision (a), his or her testimony 

on a particular matter (other than expert opinion testimony) is 

inadmissible “unless [the witness] has personal knowledge of 

the matter.” (Id., § 702, subd. (a).) “In order to have personal 

knowledge, a witness must have the capacity to perceive and 

recollect.” (People v. Lewis, supra, 26 Cal.4th at p. 356.) “A 

witness challenged for lack of personal knowledge must 

nonetheless be allowed to testify if there is evidence from which 

a rational trier of fact could find that the witness accurately 

perceived and recollected the testimonial events. Once that 

threshold is passed, it is for the jury to decide whether the 

witness’s perceptions and recollections are credible.” (Anderson, 

supra, 25 Cal.4th at p. 574.)

Our review of the record confirms that, although Baker 

departed on odd and incoherent digressions during his 

testimony, there was substantial evidence from which a rational 

trier of fact could conclude that Baker perceived and recollected

the events of the night that Flinner poisoned him and attempted 

to frame him for Keck’s murder. Flinner points to isolated 

portions of Baker’s testimony that Flinner claims show that 

Baker’s mental illness or drug use rendered him unable to 

perceive and recollect the events of that night. For instance, 

when asked at what time he began to feel less groggy after 

eating the chili provided by Flinner, Baker responded: “A few 

days after that. It was like a reoccurring of a myth is what I felt 

like. [¶] . . . [¶] . . . Something like in a previous livelihood 

specting [sic] him reincarnated, someone getting reincarnated 

in a certain fashion. It would never work, say for instance, 
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Opinion of the Court by Kruger, J.

71

Adol[f] Hitler, he would never want to come back to life. But 

people would want him to come back to life, so people would have 

to use certain individuals.” In another instance, when asked 

about what kinds of problems he reported having to the County 

Mental Health Hospital (CMH) a few months after the chili 

incident, Baker replied: “It put me in a state of mind like they 

wanted my backbone for this. It started off like as a quote of a 

price, like it started off at $35,000. And as my ride went into 

CMH, after sedation you could hear they were going for like a 

bid. But it was like a music box going off. You know, it was 

premeditated. So I just went along with it. The highest price 

was like 87 million dollars. I just went with it.” 

As Flinner points out, the jury also heard Baker’s testimony 

that he had used methamphetamine a few days before the 

evening at Flinner’s house, as well as Baker’s testimony about 

his broader past drug usage and mental health issues, including 

“delusions” that caused him to check into CMH a few months 

after the evening in question. The jury was presented with 

evidence that Baker tested positive for methamphetamine, 

THC, and Xanax after being taken from Flinner’s apartment to 

the sheriff’s substation. And the jury heard the expert 

testimony of a psychiatrist, who reviewed Baker’s medical 

records from his time at CMH and testified that Baker was 

“having a very severe problem with psychosis, with 

hallucinations and psychotic delusions” and who conveyed his 

expert opinion that such a person’s “ability to accurately 

perceive what’s going on in the real word [sic] is severely 

impaired.” 

But “ ‘[t]he fact that a witness has made inconsistent and 

exaggerated statements does not indicate an inability to 

perceive [or] recollect . . . .’ [Citation.] Nor does a witness’s 
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Opinion of the Court by Kruger, J.

72

mental defect or insane delusions necessarily reflect that the 

witness lacks the capacity to perceive or recollect.” (People v. 

Lewis, supra, 26 Cal.4th at p. 356.) Despite these isolated 

digressions, Baker was consistently brought back to the relevant 

events by the prosecutor’s and defense counsel’s questioning. 

He was able to testify coherently about his work for Flinner’s 

landscaping business, about how Flinner invited him to dinner 

and offered him a bowl of chili, that Flinner also ordered a pizza 

for himself and did not have any of the chili, and about how he 

became drowsy five to 10 minutes after he ate the bowl of chili. 

He recalled being awoken in the early hours of the morning by 

sheriff’s deputies who were responding to a complaint that he 

had been running around the pool and yelling and related how 

he was taken to the sheriff’s substation to have his blood drawn 

and urine sample taken. Thus, “[a]lthough [Baker’s] testimony 

may have consisted of inconsistencies, incoherent responses, 

and possible hallucinations, delusions and confabulations,” he 

“ ‘presented a plausible account’ ” of his relationship with 

Flinner and the evening’s events. (Lewis, at p. 357; see 

Anderson, supra, 25 Cal.4th at pp. 574–575 [trial court properly

allowed witness’s testimony about murder despite her delusion 

that her imaginary son was present at the murder].) Nor were 

the deficiencies in Baker’s capabilities as a witness hidden from 

the jury, which was given an “ample basis upon which to judge 

the reliability of [Baker’s] observations.” (Anderson, at p. 575.)

In sum, the trial court did not err in permitting Baker to 

testify or in failing to strike his testimony on these matters. We 

reject Flinner’s argument to the contrary and his related 

constitutional claims.
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Opinion of the Court by Kruger, J.

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7. Admissibility of Portions of Codefendant’s 

Confession to Police

Flinner contends that the trial court erred in admitting 

portions of his codefendant Ontiveros’s confession to police and 

that the admission of these statements violated his 

confrontation clause rights under the Sixth and Fourteenth 

Amendments to the United States Constitution. We agree there 

was error but conclude that it was harmless beyond a reasonable 

doubt. 

Before trial, the prosecution conceded that two juries were 

appropriate in this case but sought to establish that certain 

parts of Ontiveros’s confession to police would be admissible 

before Flinner’s jury. Flinner moved in limine to exclude all of 

Ontiveros’s statements to police as inadmissible hearsay whose 

admission would violate Flinner’s confrontation clause rights. 

The trial court determined that certain portions of Ontiveros’s 

confession that inculpated Ontiveros alone and did not explicitly 

or implicitly refer to Flinner were sufficiently trustworthy to be 

admitted against Flinner as statements against the declarant’s 

interest.

At trial, Ontiveros did not testify. With only Flinner’s jury 

present, the prosecution offered the approved statements 

against interest through Detective Scully, who interviewed 

Ontiveros after his arrest. To ensure that the jury heard only 

the narrow, approved statements from Ontiveros’s confession, 

the prosecutor read verbatim portions of the interview 

transcript and asked Detective Scully whether the answers in 

the transcript were the ones that Ontiveros gave him. By this 

means, the prosecutor introduced Ontiveros’s admissions that 

on the day of Keck’s killing he was driving the white Nissan NX 

car by himself, and that Keck picked him up, drove him to the 
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Opinion of the Court by Kruger, J.

74

cul-de-sac, and parked her car facing the Nissan in the cul-desac. 

After the jury returned the guilt verdicts but before 

sentencing, the high court issued its decision in Crawford,

supra, 541 U.S. 36, where it held that the admission of 

testimonial hearsay statements against a criminal defendant

violates the confrontation clause unless the witness is 

unavailable and the defendant had a prior opportunity for crossexamination. Flinner moved for a new trial, arguing that 

Ontiveros’s statements were inadmissible against Flinner under 

Crawford. The trial court agreed that the admission of 

Ontiveros’s statements fell afoul of Crawford but ruled that 

their admission was subject to harmless error review under 

Chapman v. California (1967) 386 U.S. 18, and was harmless 

beyond a reasonable doubt. It accordingly denied Flinner’s 

motion for a new trial. 

Flinner renews his trial arguments that the introduction 

of Ontiveros’s statements through Detective Scully’s testimony 

violated the confrontation clause under Crawford and that the 

error necessitates a new trial. The Attorney General responds

that Ontiveros’s statements are admissible under pre-Crawford

case law concerning the introduction of a codefendant’s 

confession in a joint trial — namely, Bruton, supra, 391 U.S. 

123, and Richardson v. Marsh (1987) 481 U.S. 200 (Richardson). 

And he argues that Crawford does not bar the admission of 

Ontiveros’s statements because Ontiveros’s statements neither 

accused Flinner of anything nor mentioned the involvement of 

anyone other than Ontiveros in Keck’s murder. 

The Attorney General’s reliance on Bruton and 

Richardson is misplaced. “In Bruton, the United States 
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Opinion of the Court by Kruger, J.

75

Supreme Court held that the admission into evidence at a joint 

trial of a nontestifying codefendant’s confession implicating the 

defendant violates the defendant’s right to cross-examination 

guaranteed by the confrontation clause, even if the jury is 

instructed to disregard the confession in determining the guilt 

or innocence of the defendant. [Citation.] The high court 

reasoned that although juries ordinarily can and will follow a 

judge’s instructions to disregard inadmissible evidence, ‘there 

are some contexts in which the risk that the jury will not, or 

cannot, follow instructions is so great, and the consequences of 

failure so vital to the defendant, that the practical and human 

limitations of the jury system cannot be ignored.’ [Citation.] 

Such a context is presented when ‘the powerfully incriminating 

extrajudicial statements of a codefendant, who stands accused 

side-by-side with the defendant, are deliberately spread before 

the jury in a joint trial.’ ” (People v. Lewis (2008) 43 Cal.4th 415, 

453 (Lewis).) As we explained in Lewis, “[t]he high court limited 

the scope of the Bruton rule in Richardson . . . . The court 

explained that Bruton recognized a narrow exception to the 

general rule that juries are presumed to follow limiting 

instructions, and this narrow exception should not apply to 

confessions that are not incriminating on their face, but become 

so only when linked with other evidence introduced at trial. 

[Citation.] That is because, ‘[w]here the necessity of such 

linkage is involved, it is a less valid generalization that the jury 

will not likely obey the instruction to disregard the evidence.’

[Citation.] Accordingly, the high court held, ‘the Confrontation 

Clause is not violated by the admission of a nontestifying 

codefendant’s confession with a proper limiting instruction 

when . . . the confession is redacted to eliminate not only the 
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Opinion of the Court by Kruger, J.

76

defendant’s name, but any reference to his or her existence.’ ” 

(Lewis, at p. 454, italics omitted.) 

The Attorney General argues that under Richardson, 

Ontiveros’s statements were admissible because nothing in 

Ontiveros’s statements expressly inculpates Flinner. But the 

codefendants in Bruton and Richardson, unlike those here, were 

jointly tried in a case before a single jury, and both cases rested 

on the premise that the nontestifying defendant’s confession 

was inadmissible against the codefendant. In each case, the 

trial court imposed a limiting instruction to the jury that it could

only consider the confession as evidence against the declarant 

and not against the codefendant. (See Bruton, supra, 391 U.S. 

at p. 125; Richardson, supra, 481 U.S. at pp. 204–205.) The high 

court had to decide whether the limiting instruction sufficed to 

protect the codefendant’s confrontation rights. In other words, 

the question in these cases was not whether a nontestifying 

defendant’s confession is admissible against his codefendant; 

the opinions assumed that it was not. The question, instead, 

was whether — given that the defendant’s confession was only 

admissible against him and not his codefendant — a limiting 

instruction by the court is sufficient to protect the codefendant’s 

confrontation rights. Here, Flinner and Ontiveros were jointly 

tried but before two separate juries. No limiting instruction was 

given — indeed, the relevant testimony by Detective Scully was 

offered only to Flinner’s jury — because the trial court expressly 

determined that Ontiveros’s statements were admissible 

against Flinner as statements against interest. For these 

reasons, Bruton and Richardson are simply irrelevant here. 

(See also People v. Brown (2003) 31 Cal.4th 518, 537 [Bruton

rule inapplicable where defendants are not jointly tried].) 
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Opinion of the Court by Kruger, J.

77

The Attorney General’s Crawford argument fares no 

better. Crawford held that the admission of testimonial hearsay 

statements violates a criminal defendant’s confrontation rights 

unless the declarant is unavailable, and the defendant had a 

prior opportunity to cross-examine the declarant. (Crawford, 

supra, 541 U.S. at p. 68.) Because Ontiveros invoked his right 

not to testify and Flinner had no prior opportunity to crossexamine him, the introduction of Ontiveros’s statements to 

Detective Scully violated the confrontation clause if those 

statements are “testimonial.” In Crawford, the high court held 

that “[w]hatever else th[at] term covers, it applies at a minimum 

to prior testimony at a preliminary hearing, before a grand jury, 

or at a former trial; and to police interrogations,” for these are 

“the modern practices with closest kinship to the abuses at 

which the Confrontation Clause was directed.” (Crawford, at 

p. 68, italics added.) Here, the statements the trial court 

admitted are ones that Ontiveros made after his arrest, while in 

custody, in response to questioning by Detective Scully, and as 

part of his confession to playing a role in Keck’s murder. There 

can be no doubt that these statements are testimonial, and the 

Attorney General does not seriously contend otherwise. 

The Attorney General argues instead that the “chief evil” 

that Crawford sought to prevent is the introduction of 

“accusatory testimonial statements.” Because Ontiveros’s 

statements did not explicitly or implicitly accuse Flinner of 

anything, the Attorney General reasons that Flinner’s 

confrontation rights were not implicated by their admission. 

But the high court has already rejected a similar argument. In 

Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, the high 

court concluded that the affidavits of crime lab analysts 

certifying that a substance found in the defendant’s possession 
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Opinion of the Court by Kruger, J.

78

was cocaine “were testimonial statements” and that “the 

analysts were ‘witnesses’ for purposes of the Sixth Amendment.” 

(Melendez-Diaz, at p. 311.) In so doing, the high court rejected 

Massachusetts’ argument that “the analysts are not subject to 

confrontation because they are not ‘accusatory’ witnesses, in 

that they do not directly accuse petitioner of wrongdoing; rather, 

their testimony is inculpatory only when taken together with 

other evidence linking petitioner to the contraband.” (Id. at 

p. 313.) The court rejected this distinction between accusatory 

and nonaccusatory witnesses: “The text of the [Sixth] 

Amendment contemplates two classes of witnesses — those 

against the defendant and those in his favor. . . . Contrary to 

respondent’s assertion, there is not a third category of 

witnesses, helpful to the prosecution, but somehow immune 

from confrontation.” (Melendez-Diaz, at pp. 313–314.) 

Similarly, in Williams v. Illinois (2012) 567 U.S. 50, 135, a 

majority of the court rejected the plurality’s reasoning that a 

statement must be “ ‘prepared for the primary purpose of 

accusing a targeted individual’ ” in order to be testimonial, 

pointing to the high court’s reasoning in Melendez-Diaz. 

(Williams, at p. 135 (dis. opn. of Kagan, J.), quoting id. at p. 84 

(plur. opn. of Alito, J.); accord, U.S. v. Duron-Caldera (5th Cir. 

2013) 737 F.3d 988, 994–996.)

We conclude the Attorney General’s argument fails for the 

same reason. The prosecution offered the approved portions of 

Ontiveros’s confession before Flinner’s jury out of the presence 

of Ontiveros’s jury, presumably because these statements 

corroborated the prosecution’s theory that Flinner had hired 

Ontiveros to kill Keck. The fact that the selected statements do 

not explicitly mention Flinner does not render Ontiveros any 
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Opinion of the Court by Kruger, J.

79

less a “witness[] against” Flinner within the meaning of the 

Sixth Amendment. 

The Attorney General suggests we have held otherwise in 

People v. Stevens (2007) 41 Cal.4th 182 and Lewis, supra, 43 

Cal.4th 415, where we reasoned that “[t]he same redaction that 

‘prevents Bruton error also serves to prevent Crawford error.’ ” 

(Stevens, at p. 199; accord, Lewis, at p. 506.) But as with Bruton

and Richardson, Stevens and Lewis have no application here:

Both concerned the admission of a codefendant’s statement at a 

joint trial before a single jury. The codefendant in Stevens also 

testified at the joint trial and was thus available for crossexamination, obviating any confrontation clause problem. 

(Stevens, at p. 199.) 

In Lewis, redacted portions of the codefendant’s confession 

to police were read to the jury and the “jury was instructed to 

consider these statements against the speaker only and not 

against any other defendant.” (Lewis, supra, 43 Cal.4th at 

p. 452.) Although we agreed with the defendant that the 

admitted statements from his codefendant’s confession were “no 

doubt testimonial,” we reasoned that the statements were not

admitted “against” the defendant within the meaning of the 

confrontation clause because they did not facially implicate the

defendant. (Id. at p. 506.) We noted: “As the high court has 

explained, ‘[o]rdinarily, a witness whose testimony is introduced 

at a joint trial is not considered to be a witness “against” a 

defendant if the jury is instructed to consider that testimony 

only against a codefendant.’ [Citation.] The only exception to

this rule is the narrow class of statements . . . that powerfully 

incriminate the defendant on their face because they directly 

implicate the defendant by name or do so in a manner the jury 

could not reasonably be expected to ignore. [Citations.] 
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Opinion of the Court by Kruger, J.

80

Accordingly, redacted codefendant statements that satisfy 

Bruton’s requirements are not admitted ‘against’ the defendant 

for Crawford purposes.” (Lewis, at p. 506.) By contrast, as we 

have already explained, Ontiveros’s statements were expressly 

admitted against Flinner. 

For these reasons, we agree with the trial court that the 

admission of Ontiveros’s statements against Flinner violated 

Flinner’s confrontation clause rights. The question remains, 

however, whether the error was harmless beyond a reasonable 

doubt. (See Lilly v. Virginia (1999) 527 U.S. 116, 139–140.) On 

this question, too, we agree with the trial court. Nothing elicited 

from Ontiveros directly implicated Flinner, whose involvement 

in the scheme to kill Keck was proven by independent evidence. 

And even as to the manner in which Ontiveros implemented the 

final phase of that scheme, the killing itself, other evidence 

illuminated most of the details: Photos and videos from nearby 

surveillance cameras showed Keck’s and Ontiveros’s 

movements into and (in Ontiveros’s case) out of the cul-de-sac, 

and the crime scene and forensic evidence showed Keck was shot 

in the back of her head while opening the hood of her car, which 

was still running. As we conclude in the next discussion section, 

there was ample evidence, independent of Ontiveros’s 

statement, that he accompanied Keck to the cul-de-sac and 

waited until she was occupied opening her hood before shooting 

her in the back of the head. As to both first degree murder and 

the lying-in-wait special circumstance, therefore, Ontiveros’s 

statement that Keck drove him to the cul-de-sac and parked her 

car facing his was cumulative of other prosecution evidence

regarding the manner of Keck’s killing. For that reason, and 

because the portion of Ontiveros’s statement admitted in 
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Opinion of the Court by Kruger, J.

81

Flinner’s trial did not directly inculpate Flinner, its admission 

was harmless beyond a reasonable doubt. 

8. Sufficiency of the Evidence for the Lying-in-Wait 

Special-Circumstance Finding and the Lying-inWait First Degree Murder Conviction 

Flinner contends there was insufficient evidence to 

support his conviction for lying-in-wait first degree murder, as 

well as insufficient evidence to support the lying-in-wait specialcircumstance finding. 

“We often address claims of insufficient evidence, and the 

standard of review is settled. ‘A reviewing court faced with such 

a claim determines “whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a 

reasonable doubt.” [Citations.] We examine the record to 

determine “whether it shows evidence that is reasonable, 

credible and of solid value from which a rational trier of fact 

could find the defendant guilty beyond a reasonable doubt.” 

[Citation.] Further, “the appellate court presumes in support of 

the judgment the existence of every fact the trier could 

reasonably deduce from the evidence.” ’ ” (People v. Moon (2005) 

37 Cal.4th 1, 22.) 

The capital murder in this case occurred in June 2000, 

shortly after Proposition 18 amended the lying-in-wait specialcircumstance statute. (Stats. 1998, ch. 629, § 2, pp. 4163–4166, 

enacted as Prop. 18, approved by voters, Primary Elec. (Mar. 7, 

2000) eff. Mar. 8, 2000.) We consider the effect of that 

amendment below (pt. II.B.9., post), in addressing Flinner’s 

argument that the amendment rendered the special 

circumstance unconstitutional. As relevant here, however, 
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“[l]ike the former version, the amended lying-in-wait special 

circumstance requires ‘ “ ‘an intentional murder, committed 

under circumstances which include (1) a concealment of 

purpose, (2) a substantial period of watching and waiting for an 

opportune time to act, and (3) . . . a surprise attack on an 

unsuspecting victim from a position of advantage . . . .’ ” ’ ” 

(People v. Johnson (2016) 62 Cal.4th 600, 629 (Johnson).) The 

lying-in-wait special circumstance (Pen. Code, § 190.2, subd. 

(a)(15)) includes the elements of first degree lying-in-wait 

murder (id., § 189, subd. (a)), but requires the additional 

element that the killing was intentional, not merely committed 

with implied malice. (See, e.g., People v. Moon, supra, 37 Cal.4th

at p. 24, fn. 1.) Thus, we focus here on whether substantial 

evidence supports the special circumstance, for if it does, it 

necessarily supports the theory of first degree lying-in-wait 

murder. (See, e.g., People v. Carpenter (1997) 15 Cal.4th 312, 

388.) 

Flinner concedes that the concealment element of the 

statute is satisfied here, where Flinner and Ontiveros concealed 

their purpose from Keck when they summoned her to the culde-sac on the pretense of jumpstarting Ontiveros’s car. And 

Flinner does not argue that he or Ontiveros lacked the intent to 

kill. But Flinner maintains that the evidence was insufficient 

to establish a “substantial period of watching and waiting” and 

a “surprise attack from a position of advantage.” 

First, Flinner contends that the mere three minutes that

elapsed between the time Keck’s Mustang entered the cul-de-sac 

to the time Ontiveros drove away from the scene of the murder 

could not constitute a substantial period of watching and 

waiting. But as we have repeatedly explained, the purpose of 

the watching and waiting element “ ‘ “is to distinguish those 
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Opinion of the Court by Kruger, J.

83

cases in which a defendant acts insidiously from those in which 

he acts out of rash impulse. [Citation.] This period need not 

continue for any particular length ‘ “of time provided that its 

duration is such as to show a state of mind equivalent to 

premeditation or deliberation.” ’ ” ’ ” (People v. Cage (2015) 62 

Cal.4th 256, 278.)

Here, viewing the evidence in the light most favorable to 

the verdicts, we conclude that the prosecution presented 

sufficient admissible evidence from which a trier of fact could 

find beyond a reasonable doubt that Ontiveros watched and 

waited for an opportune moment to launch a surprise attack on 

Keck. The prosecution’s theory of the murder was that Flinner

called Keck and asked her to pick up Ontiveros from a nearby 

gas station and drive to a cul-de-sac where Ontiveros’s car had 

broken down in order to give him a jumpstart. While Keck was 

facing her Mustang and opening its hood, Ontiveros shot her in 

the back of the head. The prosecution’s evidence of how the 

actual killing occurred consisted largely of surveillance videos 

and stills from gas stations, stores, and businesses in the area, 

as well as forensic evidence of Keck’s injuries and the state in 

which her car was found at the crime scene.

13

 Video shows 

13 As we have explained, the trial court erred in admitting 

portions of codefendant Ontiveros’s custodial confession. (See 

pt. II.B.7., ante.) Due to that error, the jury heard Ontiveros’s 

statements that he drove the white Nissan NX car on the day of 

the murder and was alone in the car that day, that Keck picked 

him up and drove him to the cul-de-sac, and that Keck parked 

her car nose-to-nose with the Nissan in the cul-de-sac. Our past 

case law suggests that it would not be improper to consider these 

statements in assessing Flinner’s sufficiency-of-the-evidence 

claim. (See People v. Shirley (1982) 31 Cal.3d 18, 70–71.) But 
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84

Keck’s Mustang leaving the Ultramar station where she met 

Ontiveros and then heading towards the cul-de-sac road. 

Approximately three minutes and 15 seconds after her white 

Mustang enters the cul-de-sac, video shows the Nissan NX 

speeding out of it.

Deputy Sheriff Troy Doran testified that Keck’s Mustang 

was found with the keys still in the car, the engine running, and 

the passenger door open. Photos of the crime scene showed that 

the hood of Keck’s Mustang was ajar, though not propped open 

with the hood rod. And photos showed blood stains on the front 

bumper of the car, the underside of the hood, and on the hood 

rod, which was out of place. Robert Whitmore, who performed 

the autopsy, testified that he found a “textbook entrance wound” 

on the back of Keck’s head, and that the lack of soot on the 

wound indicated that the gun was some distance away from her 

head when it was fired. He also testified that Keck sustained 

facial abrasions before she died, which he opined were 

consistent with her face hitting the engine compartment of the 

Mustang after she was shot. And he testified that he found no 

evidence of evasion by Keck, suggesting that she never saw the 

gunshot coming. The bullet thus passed through Keck’s brain, 

exited through her right cheek, and finally lodged in the firewall 

of her car in the engine compartment. David Cornacchia, a blood 

spatter expert, testified that blood on Keck’s leg and on the 

engine of the car were consistent with Keck being shot while 

holding open the hood and leaning over the engine. And even

before the autopsy was performed, at a point when the 

even without Ontiveros’s confession, sufficient evidence 

supports the lying-in-wait special circumstance, and we do not 

rely on that confession here.
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Opinion of the Court by Kruger, J.

85

pathologist at the scene of the crime could not determine 

whether Keck had been shot in the back of the head or in the 

face, Flinner told witness Robert Pittman that Keck had been 

shot in the back of the head. In light of this substantial 

evidence, a reasonable jury could conclude that Ontiveros 

watched and waited at the cul-de-sac for the opportune moment 

to shoot Keck from behind: when Keck was facing her Mustang 

in order to lift the hood of the car to provide a jump start. 

Flinner also argues that there is insufficient evidence that 

Ontiveros shot Keck from a position of advantage. He reasons 

that the fact that Keck was shot in the back of the head “does 

nothing to distinguish this case from any other such ‘ordinary 

premeditated murder,’ ” quoting our decision in People v. 

Morales (1989) 48 Cal.3d 527, 557. As we explained in Morales, 

“a mere concealment of purpose” is not sufficient to establish 

lying in wait, since “many ‘routine’ murders are accomplished 

by such means, and . . . constitutional considerations . . . might 

well prevent treating the commission of such murders as a 

special circumstance.” (Ibid.) Were there only evidence 

suggesting, for example, that Ontiveros drove up behind Keck 

while she had the hood of her car open and shot her from behind, 

we might agree with Flinner that the evidence could not 

distinguish the killing from an ordinary premediated murder 

not subject to a lying-in-wait special-circumstance finding. (Cf. 

People v. Nelson (2016) 1 Cal.5th 513, 551 [insufficient evidence 

for lying-in-wait special circumstance where evidence only 

showed the defendant “came up behind his victims on foot to 

take them by surprise” and no evidence showed that he “arrived 

before the victims or waited in ambush for their arrival”].) But 

here, as discussed above, the evidence tends to show that 

Ontiveros left the Nissan NX in the cul-de-sac in advance of 
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Keck’s arrival, waited for Keck at the gas station, and drove with 

her back to the cul-de-sac. The evidence further shows that 

Keck was shot while facing her car and opening the hood. In 

light of this evidence, a jury could reasonably conclude that 

Ontiveros “ ‘ “ ‘watch[ed] and wait[ed] for an opportune time to 

act’ ” ’ ” on the drive from the gas station to the cul-de-sac, while 

Keck parked and got out of the car, and while she proceeded to 

open the hood of the car, before launching “ ‘ “ ‘a surprise 

attack’ ” ’ ” on Keck from an advantageous position: from behind 

her as she was otherwise preoccupied with opening the hood. 

(Johnson, supra, 62 Cal.4th at p. 629.)

9. Constitutionality of Lying-in-Wait Special 

Circumstance 

Flinner argues that Proposition 18 rendered the lying-inwait special circumstance indistinguishable from lying-in-wait 

first degree murder, and that the special circumstance is 

therefore unconstitutionally vague and fails to adequately 

narrow the class of death-eligible defendants, creating an 

arbitrary and capricious application of the death penalty in 

violation of the Eighth and Fourteenth Amendments. We 

recently rejected this argument in Johnson, supra, 62 Cal.4th at 

pages 634 to 637, and Flinner offers no reason to reconsider that

decision here.

“In assessing defendant’s challenge to the amended lyingin-wait special circumstance, we are guided by the following 

constitutional principles. The Eighth and Fourteenth 

Amendments prohibit a sentence of death ‘imposed under 

sentencing procedures that create a substantial risk that the 

punishment will be inflicted in an arbitrary and capricious 

manner.’ [Citation.] To satisfy this constitutional command, 

‘the trier of fact must convict the defendant of murder and find 
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one “aggravating circumstance” (or its equivalent) at either the 

guilt or penalty phase. [Citations.] . . . [T]he aggravating 

circumstance must meet two requirements. First, the 

circumstance may not apply to every defendant convicted of a 

murder; it must apply only to a subclass of defendants convicted 

of murder. [Citation.] Second, the aggravating circumstance 

may not be unconstitutionally vague.’ [Citation.] The lying-inwait special circumstance is an ‘aggravating circumstance[]’

subject to these constitutional requirements.” (Johnson, supra, 

62 Cal.4th at pp. 634–635.)

As we explained in Johnson, “in March 2000, the voters 

passed Proposition 18, which changed the definition of the lyingin-wait special circumstance from a killing while lying in wait to 

a killing by means of lying in wait, mirroring the language of the 

first degree murder statute.” (Johnson, supra, 62 Cal.4th at 

p. 634.) “[T]he voters’ purpose in amending the lying-in-wait 

special circumstance was to eliminate the temporal distinction 

between the special circumstance and lying-in-wait first degree 

murder . . . thereby expand[ing] the class of cases in which the 

special circumstance could be found true . . . .” (Id. at p. 636.) 

Nevertheless, we concluded that the amended lying-in-wait 

special circumstance comports with the Eighth Amendment 

because it “adequately distinguishes itself from other murders 

and does so in terms that are not so vague as to permit arbitrary 

determinations regarding the truth of the special circumstance 

allegation.” (Johnson, at p. 636.) As we have long held, the 

“factual matrix” presented by the lying-in-wait special 

circumstance — an intentional murder coupled with the 

elements of concealment, watching and waiting, and a surprise 

attack from a position of advantage — sufficiently distinguish it 

from “ ‘ordinary’ premeditated murder” (People v. Morales,
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supra, 48 Cal.3d at p. 557), such that it is “neither applicable to 

all murderers nor impermissibly vague” (Johnson, at p. 636). 

And, in Johnson, we reasoned that even if Proposition 18 had 

rendered the special circumstance identical to lying-in-wait first 

degree murder, the special circumstance would pass 

constitutional scrutiny because lying-in-wait murder 

“historically has been viewed as ‘ “a particularly heinous and 

repugnant crime,” ’ ” which “provides ‘a rational basis for 

distinguishing those murderers who deserve to be considered for 

the death penalty from those who do not.’ ” (Johnson, at p. 637.)

Johnson likewise forecloses Flinner’s as-applied 

constitutional challenge to the special circumstance. Like the 

defendant in Johnson, Flinner here contends that “because his 

liability for lying-in-wait first degree murder as an aider and 

abettor required a showing of intent to kill, there was no 

meaningful distinction between that theory of first degree 

murder and the lying-in-wait special circumstance in his case.” 

(Johnson, supra, 62 Cal.4th at p. 637.) This “is simply another 

way to state his facial attack on the statute” (Lewis, supra, 43 

Cal.4th at p. 517), which we have rejected in part because —

even were the special circumstance identical to the lying-in-wait 

first degree murder statute, as Flinner claims it is as applied to 

him in this case — it would not offend the Constitution. 

10. Juror Misconduct

Based on information received from jurors after the penalty 

verdict was returned, Flinner moved for a new trial, alleging 

several instances of juror misconduct. The trial court held a 

multiday evidentiary hearing, at which numerous jurors 

testified, and denied the motion on the ground that no 

misconduct had occurred. On appeal, Flinner contends the 
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evidence showed reversible misconduct on the parts of Jurors 

No. 1 and No. 10. We review the factual background and 

hearing evidence before considering both these aspects of the 

misconduct claim.

During trial, defendant Flinner’s jury was sometimes 

referred to as the “Red” jury and codefendant Ontiveros’s as the 

“Green” jury. In December 2003, after both juries had returned 

their penalty verdicts and had been excused, the trial court 

received an e-mail message from two members of the Green jury 

relaying assertions by Red Juror No. 1 about misconduct by Red 

Jurors No. 10 and No. 12.14 The messages also revealed that 

Juror No. 1 was interested in writing a book about the trial or 

her experiences as a juror and had been enlisting others in a 

possible group writing effort. The court provided the parties 

printouts of the e-mails in early January 2004. After 

investigation, Flinner filed a memorandum in support of his new 

trial motion alleging several instances of misconduct by Juror 

No. 1, Juror No. 10 and unspecified other jurors. The court set 

the matter for an evidentiary hearing in March 2004.

At the hearing, Juror No. 1 testified to the personal conflicts 

between her and Jurors No. 10 and No. 12 arising from what she 

saw as those jurors’ misconduct. Throughout the trial, Juror 

No. 1 asserted, Jurors No. 10 and No. 12 acted in a 

“manipulative” manner, “attempt[ing] on a daily basis to swing 

the other[,] older women over to their way of thinking.” During 

breaks in the courthouse hallway and cafeteria, they gave their 

opinion about the evidence the jury had just heard and, when 

anyone voiced a different view, “we were told how wrong we 

14 Red jurors will hereafter be identified by their numbers 

alone; Green jurors will be identified as such.
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were.” By the time of deliberations, “[t]hose two girls had [the 

older women] wrapped up. They knew that they were going to 

get a guilty verdict out of them.” 

Jurors No. 10 and No. 12 also put together a weekly 

invitational lunch group that eventually grew to include most of 

the jury. Juror No. 1 testified she was never invited but did not 

feel slighted because she knew that the group discussed the case 

over lunch and she did not want to violate the court’s admonition 

against such discussions. After a while during the trial, the 

group around Jurors No. 10 and No. 12 would stop talking 

whenever Juror No. 1 approached them; Juror No. 1 understood 

that to be because they knew that she was taking notes on what 

they said and “they were talking about things they shouldn’t be.” 

Juror No. 1 testified she twice overheard Juror No. 10 say 

she had driven past the home of Flinner’s parents on Harbison 

Canyon Road. The second time occurred after the wildfires in 

San Diego County in the fall of 2003; Juror No. 10 said she had 

to travel that road in order to visit relatives in the area.

Juror No. 1 also testified to remarks by Juror No. 10 

suggesting a prosecution bias on her part. Juror No. 10 

sometimes wore tight blouses and short skirts. Once, when 

Juror No. 1 and others told her the buttons on her blouse had 

popped open, she said she did not care, that she wanted her 

blouse open so that Flinner would look at her and she could tell 

him that she wanted him dead. Later in her testimony, Juror 

No. 1 said she actually observed Juror No. 10 mouthing “I want 

to kill you,” or “I want you dead,” at Flinner. “Many times 

during side bars, many times I would turn around,” Juror No. 1 

testified, “and [Juror No. 10] would be doing it and . . . [h]er and 

12 would be giggling about it.” Still later, Juror No. 1 testified 
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she only saw Juror No. 10 do this once, though she also saw her 

making throat cutting gestures at times, usually during a side 

bar. Juror No. 1 also testified to hearing Juror No. 10 refer to 

the lead police investigator, Detective Scully, as “our detective” 

and comment to other jurors on his “cute . . . rear end.” 

The tensions between Jurors No. 1 and No. 10 came to a 

head during guilt phase deliberations, when Juror No. 1 saw 

Juror No. 10 conferring privately with the foreperson. In what 

Juror No. 1 described as a “blowup,” she confronted them, and 

they said they had been strategizing about how to sway a

holdout juror. 

At the evidentiary hearing, Juror No. 1 acknowledged she 

had planned to write a book about her experience as a juror in a 

capital case. She kept extensive notes during the trial, in part 

with the book prospect in mind. She testified that she did not 

attempt to find a means of publication until after the trial, when 

she explored “tools on the internet that will allow you to do selfpublishing with their assistance.” She also testified, however, 

that in September 2003, during the trial, she e-mailed a selfpublishing service about the possibility of a loan, giving them an 

estimate of January 2004 as the date she would be ready to 

discuss further steps. She received a positive response from the 

company (her testimony was unclear as to the date), but she 

never actually received any money. 

After the trial, Juror No. 1 began drafting a book and 

discussed the idea with former Green jurors. But in January, a 

stranger in a mall parking lot approached her and threatened 

unspecified harm if she kept “testifying.” This threat, together 

with some unexplained events at her home (hang-up telephone 
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calls and banging on her door at night) prompted her to abandon 

the book project and destroy her notes and draft. 

Some of Juror No. 1’s assertions were corroborated by other 

jurors. Jurors No. 10 and No. 12 admitted that during the trial 

breaks they joked about Detective Scully having a nice butt. 

Juror No. 3 and members of the Green jury corroborated Juror 

No. 1’s testimony that Juror No. 10 sometimes wore short skirts 

and tight blouses. Green Juror No. 11 testified to seeing Juror 

No. 10 use a water bottle to mime oral sex during a court 

session, and Green Juror No. 10 testified that Juror No. 10 

parted her legs so that Detective Scully could see up her skirt. 

On cross-examination, though, Green Juror No. 10 admitted he 

could not actually see up Juror No. 10’s skirt and did not know 

whether Detective Scully could. 

Generally, however, Juror No. 1’s assertions of misconduct 

by her fellow jurors were not corroborated. Jurors No. 10 and 

No. 12 denied discussing the evidence at breaks or lunch during 

the trial; when they did talk about witnesses who had appeared, 

it was only to comment on their dress or speculate on how long 

they would testify. Other jurors agreed the hallway and lunch 

conversations did not involve the evidence, though Juror No. 7 

recalled one occasion, early in the trial, when she began to talk 

about a witness in the hallway but stopped when Juror No. 1 

reminded her of the admonition. Juror No. 10 denied having 

ever attempted to communicate with Flinner across the 

courtroom, and no other juror corroborated Juror No. 1’s 

account. Juror No. 10 also denied having deliberately parted 

her legs in the direction of Detective Scully or anyone else in the 

courtroom or having made any sexual gesture with her water 

bottle. Juror No. 10 also denied having deliberately visited the 
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home of Flinner’s parents; she had to drive on their road to reach 

her children during the fire emergency. 

The trial court denied Flinner’s new trial motion on factual 

grounds. Were Juror No. 1’s assertions of misconduct correct, 

the court opined, Flinner would be entitled to a new trial. But 

those misconduct claims were “[a]lmost in their entirety . . . 

rejected, countered, rebutted and/or innocently explained by the 

rest of the jurors.” The court concluded Juror No. 1’s antipathy 

for Juror No. 10, and her desire for the spotlight, had led her to 

engage in “grandiosity, puffery, hyperbole, gross exaggeration, 

speculation, flights of fancy, unsupported assumptions” and, 

where there was no more innocent explanation, “outright 

fabrication to further her own personal agenda.” The court 

based its credibility determination on the hearing evidence and 

the court’s observations of the jury during trial. Had there been 

juror misconduct as frequent and severe as Juror No. 1 had 

asserted, “it would not and it could not have escaped notice by 

the court, court personnel, counsel for the parties and the 

spectators.” There had been “isolated violations” by the jurors 

of the court’s admonitions, the court concluded, but none of a 

nature that “singly or in combination” substantially prejudiced 

the trial’s fairness. 

a. Asserted Misconduct by Juror No. 1

Jury misconduct serious and extensive enough to impair the 

fairness of the trial or deliberations may warrant granting a new 

trial motion. (Pen. Code, § 1181, subd. 3; People v. Collins (2010) 

49 Cal.4th 175, 242.) Where the trial court has heard evidence 

and made findings of historical fact regarding the alleged 

misconduct, we accept those findings if they are supported by 

substantial evidence. (People v. Weatherton (2014) 59 Cal.4th 
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94

589, 598; People v. Pride (1992) 3 Cal.4th 195, 260.) Whether 

those facts constitute misconduct is, however, a legal question 

we review independently. (Collins, at p. 242.)

Flinner contends Juror No. 1’s exaggerations and 

fabrications about her fellow jurors, viewed in the context of her 

plan to write a book about her jury experience, demonstrate a 

bias on her part. Her efforts to make her contemplated book 

more “entertaining,” he argues, show that “her literary project 

compromised her objectivity.” Moreover, Juror No. 1’s lack of 

credibility, Flinner maintains, shows she misconducted herself 

in deliberations: “She exaggerated various claims of juror 

misconduct, and for the same reason would likely have 

exaggerated the evidence.” Finally, in a later section of his brief, 

Flinner argues alternatively that: (a) Juror No. 10 committed 

misconduct, as Juror No. 1 asserted; but (b) “if this court accepts 

the trial court’s factual finding that Juror No. 1 fabricated her 

testimony, it must reverse because of Juror No. 1’s perjury.” 

We accept the trial court’s findings regarding Juror No. 1’s 

credibility. The contrary testimony of other jurors, as well as 

the tenor of Juror No. 1’s own testimony, amply supports the 

conclusion that her assertions of misconduct by other jurors 

were the product of speculation, gross exaggeration, and 

perhaps conscious fabrication. We note, however, that the trial 

court did not specifically find any particular part of Juror No. 1’s 

testimony to be deliberately false. No finding of perjury was 

made, and Flinner does not demonstrate by argument from the 

record that any such finding was compelled. 

Although Juror No. 1 made unwarranted accusations of 

misconduct against others after the trial’s conclusion, we 

conclude the facts do not demonstrate she committed 
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misconduct during the trial or deliberations. Flinner himself 

engages in speculation by assuming that because Juror No. 1 

gave exaggerated accounts of other jurors’ behavior, she must 

similarly have distorted the trial evidence. There was no 

evidence at the new trial hearing that Juror No. 1 said or did 

anything in deliberations to distort the evidence bearing on guilt 

or penalty. To the contrary, other jurors, including the 

foreperson and Juror No. 10, found her contributions, many 

based on detailed notes of the evidence, appropriate and helpful.

Flinner’s assertion that Juror No. 1’s book idea led her 

make her unfounded and exaggerated claims of misconduct is 

also unsupported by the hearing evidence. Rather, as the trial 

court found, Juror No. 1’s claims appear to have been generated 

by her “palpable” antipathy to Jurors No. 10 and No. 12 and by 

her desire to be the center of attention.15 As far as the 

evidentiary hearing record discloses, Juror No. 1’s plan to write 

15 The confrontation during deliberations that resulted from 

Juror No. 1’s dislike of Juror No. 10 was unfortunate and 

disturbing to the participants — Juror No. 10 testified Juror 

No. 1 called her a “bitch” and screamed at her, reducing her to 

tears — but it did not derail the deliberations. Juror No. 10 also 

testified that after the incident, which occurred “at the very, 

very end of all of our decisions,” the jury completed its 

deliberations and returned its verdicts; later, Juror No. 1 

apologized for her “inappropriate” conduct, though Juror No. 10 

did not feel the apology was sincere. Nor does the fact of an 

emotional confrontation between jurors necessarily indicate 

misconduct; it is not extraordinary for feelings among jurors to 

run high, especially in the context of disagreements during 

deliberations. (See People v. Keenan (1988) 46 Cal.3d 478, 541–

542 [that one juror may have made an angry threat against 

another does not show reversible jury misconduct].)
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a book about her jury experience did not cause her to misconduct 

herself in any other manner. 

Flinner cites no authority suggesting that by itself a juror’s 

plan to write a book about the case or the jury experience 

constitutes misconduct warranting reversal, and we have found 

none. It has been hypothesized that a juror’s profit motive could 

lead the juror into controversial behavior “for the sake of making 

a story worth telling,” or into “strong-arming the other members 

of the jury into an inequitable result that makes for good copy 

or a profitable film deal.” (Note, Capote in the Jury Box:

Analyzing the Ethics of Jurors Writing Books (2006) 19 Geo. J. 

Legal Ethics 643, 645; see Sims v. Brown (9th Cir. 2005) 425 

F.3d 560, 577 [juror who discussed writing a book during trial 

did not commit prejudicial misconduct where “there is no 

suggestion that she had a financial interest in any particular 

outcome”].) In response to such dangers, California law 

prohibits offering or accepting a payment to a juror in exchange 

for information about a criminal case during trial or for 90 days 

after discharge (if the payment is greater than $50). (Pen. Code, 

§ 116.5.) The hearing evidence, however, did not show any 

agreement to write a book for profit: Juror No. 1 testified 

without contradiction that while she had received a positive 

response to her book proposal and was hoping to borrow money 

to complete the project, she never obtained an agreement for 

payment of any amount.

Flinner compares Juror No. 1 to the hypothetical juror 

discussed in dictum in Dyer v. Calderon (9th Cir. 1998) 151 F.3d 

970, 982, footnote 19, who “lies his way on [to the jury] because 

he secretly plans to write a memoir of the experience” and who, 

the court suggested, might then “vote differently to provide 

drama, or . . . inject personal prejudice into the jury room in an 
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97

attempt to jazz up the deliberative process.” But while Juror 

No. 1 wrote on her questionnaire that she was “excited to be 

summoned” for jury service and that she thought Flinner’s case 

would be “very interesting,” there was no evidence she lied in 

order to be selected.

16

 

b. Asserted Misconduct by Juror No. 10

Flinner contends Juror No. 10 “exhibited a clear bias by 

telling appellant she wanted him dead and by her personal 

infatuation with the lead detective.” He acknowledges that the 

trial court found untrue Juror No. 1’s allegations in this regard 

but maintains that finding was unsupported by the record.

We disagree. The trial court’s finding was supported by 

substantial evidence and was based on the court’s assessment of 

the witnesses’ credibility. As such, it is entitled to deference. 

(People v. Nessler (1997) 16 Cal.4th 561, 582.) Juror No. 10 

denied making hostile gestures or expressions to Flinner, and 

no other juror corroborated Juror No. 1’s account. Juror No. 10 

admitted making remarks about Detective Scully’s anatomy, 

16 Flinner faults Juror No. 1 for failing to disclose on her 

questionnaire that she had been among the persons protected 

by a protective order her sister had obtained against an abusive 

former boyfriend. But no question on the questionnaire 

specifically called for such information. Juror No. 1 did disclose 

her sister’s history of drug addiction and related crime, which 

included an incident in which “[t]he group she hung with 

actually burned down her home.” At the new trial hearing, she 

acknowledged she also should have referenced that incident in 

answer to the question whether she or members of her family 

had ever been victims of crime. The trial court made no finding 

that Juror No. 1 was deceptive regarding the protective order or 

her sister’s former boyfriend, and we find nothing in the record 

that compels such a finding.
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but denied any acts that would suggest an “infatuation,” much 

less a “fixation.” As for Green Juror No. 10’s claim that he saw 

Juror No. 10 expose herself to Scully, cross-examination showed 

that to be mere speculation on his part. 

Juror No. 10 may not have conducted herself with perfect 

decorum throughout the trial. But the trial court found she did 

not commit the misconduct Juror No. 1 attributed to her, and 

we uphold that finding as supported by substantial evidence.

C. Penalty Phase Issues

1. Competence to Stand Trial

Flinner contends the court erred, after the guilt verdicts 

were returned, in declining to suspend trial proceedings under 

Penal Code section 1368 in order to determine his competence 

to stand trial.

Defendant Flinner’s jury returned its guilt-phase verdicts 

on October 16, 2003, but those verdicts were ordered sealed 

while codefendant Ontiveros’s jury continued deliberating. In 

the early morning of Sunday, October 19, jail personnel found 

Flinner, in his cell, in what the trial court, paraphrasing the jail 

records, described as “an apparent state of physical distress.” 

Flinner was hospitalized and was discharged on the morning of 

Tuesday, October 21. Declaring that he had been told Flinner

had attempted suicide, defense counsel moved to initiate 

competency proceedings under Penal Code section 1368. In 

opposition, the prosecutor asserted Flinner’s apparent conduct 

on this occasion was consistent with his record of previous failed 

“ ‘attempts’ ” at suicide, other instances of malingering, and 

“manipulation and deceit,” and did not suggest an inability to 

proceed with the penalty phase. The court heard and denied the 

motion on Thursday, October 23. 
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At the hearing, the court and counsel reviewed Flinner’s 

recent medical records. The court asked Attorney Mitchell 

whether, with the additional information in those records, he 

wished to give his view as to Flinner’s present competency to 

stand trial. Although Mitchell and cocounsel Resnick had met 

with Flinner the day before the hearing, Mitchell did not 

indicate Flinner acted or spoke in a manner suggesting 

incompetence. Mitchell believed himself “on the horns of a 

dilemma” as both Flinner’s attorney and an officer of the court; 

although he made no representations as to Flinner’s mental 

condition, he believed the examination and hearing 

requirements of Penal Code section 1368 had been triggered.

The prosecutor observed that the medical records showed 

Flinner’s blood pressure and pulse at the time of his 

hospitalization, while elevated, were within the range that 

might be seen for a man of his age doing an intense physical 

activity and that when interviewed on October 21 by a sheriff’s 

department employee, Flinner denied any suicidal thoughts and 

stated, “ ‘I don’t really know what happened to me.’ ”

Summing up the record, the trial court added that when 

interviewed, Flinner denied taking any drug, prescription or 

nonprescription, to excess, and that the court’s own observations 

at the October 23 hearing showed Flinner to be apparently alert, 

not in physical distress, and conversing with counsel in an 

apparently normal manner. The court found scant evidence 

Flinner’s condition on Sunday was the result of a suicide 

attempt, but even if it was, the evidence did not indicate 

incompetence to stand trial. 

“The constitutional guarantee of due process forbids a court 

from trying or convicting a criminal defendant who is mentally 
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incompetent to stand trial. [Citations.] Section 1367 of the 

Penal Code, incorporating the applicable constitutional 

standard, specifies that a person is incompetent to stand trial 

‘if, as a result of mental disorder or developmental disability, the 

defendant is unable to understand the nature of the criminal 

proceedings or to assist counsel in the conduct of a defense in a 

rational manner.’ (Id., subd. (a); see Dusky v. U.S. (1960) 362 

U.S. 402 [4 L.Ed.2d 824, 80 S.Ct. 788] [competence requires 

‘ “sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding” ’ and ‘ “a rational 

as well as factual understanding of the proceedings against 

him” ’].)” (People v. Rodas (2018) 6 Cal.5th 219, 230–231.)

“Penal Code section 1368 requires that criminal 

proceedings be suspended and competency proceedings be 

commenced if ‘a doubt arises in the mind of the judge’ regarding 

the defendant’s competence (id., subd. (a)) and defense counsel 

concurs (id., subd. (b)). This court has construed that provision, 

in conformity with the requirements of federal constitutional 

law, as meaning that an accused has the right ‘to a hearing on 

present sanity if he comes forward with substantial evidence 

that he is incapable, because of mental illness, of understanding 

the nature of the proceedings against him or of assisting in his 

defense.’ (People v. Pennington (1967) 66 Cal.2d 508, 518 [58 

Cal.Rptr. 374, 426 P.2d 942], discussing Pate v. Robinson (1966) 

383 U.S. 375, 385–386 [15 L.Ed.2d 815, 86 S.Ct. 836].) ‘Once 

such substantial evidence appears, a doubt as to the sanity of 

the accused exists, no matter how persuasive other evidence —

testimony of prosecution witnesses or the court’s own 

observations of the accused — may be to the contrary.’

(Pennington, at p. 518.) As we have explained in more recent 

cases, substantial evidence for this purpose is evidence ‘that 
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raises a reasonable or bona fide doubt’ as to competence, and the 

duty to conduct a competency hearing ‘may arise at any time 

prior to judgment.’ ” (People v. Rodas, supra, 6 Cal.5th at 

p. 231.) 

We agree with the trial court that there was insufficient 

evidence of incompetence to call for suspension of criminal 

proceedings and a formal inquiry into competence to stand trial. 

The exact nature and cause of the medical crisis Flinner suffered 

on October 19 was unknown. After Flinner’s release from the 

hospital, he denied having suicidal thoughts or overdosing on 

any drug. Even assuming Flinner did try to kill himself in jail, 

it is not clear that was the result of any mental disorder; defense 

counsel pointed to nothing in the medical records so indicating. 

(See People v. Ramos (2004) 34 Cal.4th 494, 509 [preference for 

receiving the death penalty and hoarding of medication for 

possible suicide attempt do not indicate incompetence].) 

Counsel said nothing to suggest Flinner was experiencing any 

difficulty understanding the proceedings or communicating with 

the defense team; nor did the court’s own observations give any

indication Flinner was having problems following the 

proceedings or communicating with counsel. In the absence of 

substantial evidence of incompetence, the court properly denied 

Flinner’s Penal Code section 1368 motion.

2. Cumulative Impact of Errors 

Flinner contends the errors and misconduct committed in 

his trial, considered cumulatively, deprived him of due process 

and a fair trial. We have found harmless the erroneous 

admission against Flinner of Ontiveros’s statements detailing 

Ontiveros’s killing of the victim (pt. II.B.7., ante) and the 

possibly erroneous admission of Flinner’s letter to 
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Representative Hunter (pt. II.B.3.h., ante). Examining their 

potential impact together, we find them cumulatively harmless 

as well. Though both evidentiary issues, they went to different 

factual aspects of the prosecution case; their potential prejudice 

would not have a strong tendency to accumulate.

3. Constitutionality of California’s Death Penalty 

Law

Flinner contends several aspects of California’s death 

penalty scheme violate the United States Constitution. We have 

considered and rejected these claims before, and we decline to 

revisit the following holdings. 

“[T]he California death penalty statute is not impermissibly 

broad, whether considered on its face or as interpreted by this 

court.” (People v. Dykes (2009) 46 Cal.4th 731, 813.) Penal Code 

section 190.3, factor (a), which permits a jury to consider the 

circumstances of the offense in sentencing, does not result in 

arbitrary or capricious imposition of the death penalty in 

violation of the Fifth, Sixth, Eighth, or Fourteenth Amendments 

to the United States Constitution. (People v. Simon (2016) 1 

Cal.5th 98, 149; see Tuilaepa v. California (1994) 512 U.S. 967, 

975–976, 978.)

“The death penalty statute does not lack safeguards to avoid 

arbitrary and capricious sentencing, deprive defendant of the 

right to a jury trial, or constitute cruel and unusual punishment 

on the ground that it does not require either unanimity as to the 

truth of aggravating circumstances or findings beyond a 

reasonable doubt that an aggravating circumstance (other than 

Pen. Code, § 190.3, factor (b) or factor (c) evidence) has been 

proved, that the aggravating factors outweighed the mitigating 

factors, or that death is the appropriate sentence.” (People v. 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

103

Rangel (2016) 62 Cal.4th 1192, 1235; accord, People v. McDowell 

(2012) 54 Cal.4th 395, 444; People v. Demetrulias (2006) 39 

Cal.4th 1, 40–41.) We have held that the Supreme Court’s 

recent Sixth Amendment decisions (e.g., Hurst v. Florida (2016) 

577 U.S. ___ [136 S.Ct. 616]; Cunningham v. California (2007) 

549 U.S. 270; Blakely v. Washington (2004) 542 U.S. 296; Ring 

v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000) 

530 U.S. 466) do not affect our conclusions in this regard. 

(Rangel, at p. 1235.)

“Intercase proportionality review, comparing defendant’s

case to other murder cases to assess relative culpability, is not 

required by the due process, equal protection, fair trial, or cruel 

and unusual punishment clauses of the federal Constitution.” 

(People v. Winbush (2017) 2 Cal.5th 402, 490.) Flinner also 

refers in passing to the lack of “intra-case” proportionality 

review, but he does not argue his death sentence was grossly 

disproportionate to the offense committed or to the treatment of 

other participants in the capital crime. (See People v. Clark

(2016) 63 Cal.4th 522, 642.) Given the evidence that Flinner, a

mature man acting on his own initiative, organized and

participated in a callous and cold-blooded killing of his fiancée

purely for his financial gain, we would not, were the claim made,

conclude his sentence is grossly disproportionate to his

individual culpability.

Finally, “California’s use of the death penalty does not 

violate international law either by punishing certain first degree 

murders with death or by employing the procedures defendant 

complains of above.” (People v. Rhoades (2019) 8 Cal.5th 393,

456.) “Defendant’s argument that the use of capital punishment 

‘as regular punishment for substantial numbers of crimes’

violates international norms of human decency and hence the 
PEOPLE v. FLINNER

Opinion of the Court by Kruger, J.

104

Eighth Amendment to the United States Constitution fails, at 

the outset, because California does not employ capital 

punishment in such a manner. The death penalty is available 

only for the crime of first degree murder, and only when a special 

circumstance is found true; furthermore, administration of the 

penalty is governed by constitutional and statutory provisions 

different from those applying to ‘regular punishment’ for 

felonies.” (People v. Demetrulias, supra, 39 Cal.4th at pp. 43–

44.)

III. DISPOSITION

The judgment of the superior court is affirmed. 

 KRUGER, J. 

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.

GREENWOOD, J.*

* Administrative Presiding Justice of the Court of Appeal, 

Sixth Appellate District, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Flinner

__________________________________________________________________________________

Unpublished Opinion 

Original Appeal XXX

Original Proceeding 

Review Granted 

Rehearing Granted

__________________________________________________________________________________

Opinion No. S123813

Date Filed: November 23, 2020

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: Allan J. Preckel

__________________________________________________________________________________

Counsel:

Patrick M. Ford, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Theodore Cropley and 

Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Patrick M. Ford

1901 First Ave., Suite 400

San Diego, CA 92101

(619) 236-0679

Christopher P. Beesley

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9161