1

Filed 6/1/15



## IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE , ) ) Plaintiff and Respondent, ) ) S 076337
v. ) ) EDWARD CHARLES III , ) ) Orange County Defendant and Appellant. ) Super. Ct. No. 94NF2611

________________________________ ____ )

Defendant Edward Charles III was convicted a t trial of one count of first degree murder and two counts of second degree murder (Pen. Code, § 187, subd. (a).) 1 The jury also found true multiple

- murder special

- circumstance allegations

. (§ 190.2, subd. (a)(3).) Following a fourth penalty trial, the jury returned a verdict
of death. The trial court denied the automatic application to modify t he verdict (§ 190.4, subd. (e)) and sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

1 All further unspecified statutory references are to the Penal Code.2 S TATEMENT OF F ACTS
1. Guilt Phase A. Summary Defendant was charged with killing his father, Edward Charles II, his mother, Dolores Charles, and his 19

- year

- old younger brother, Daniel Charles. 2 The prosecution showed that o n the evening of November 6, 1994, defendant went

t o his parents‘ home around dinner time when his parents and brother were all present . Sometime later, defendant abducted Danny, stabbed him , and forced him
into the trunk of Danny‘s car . He either chok ed or hit Danny in the neck with
sufficient force to break his hyoid bone before killing him by striking him repeatedly in the head with a 16

- inch crescent wrench

. D efendant returned to his parents‘ house in the early morning hours of November 7, where he strangled his
mother and beat his father to death wi th a blunt object. After cleaning up, h e carried his parents‘ bodies to his mother‘s car, where he had placed Danny‘s body in the trunk, and went to his job at a service station , where he worked a full day

. That night, he drove the car to a high school p arking lot and set it on fire. H e confessed his crime to his martial arts instruct or , but he also attempted to persuade
his 73

- year

- old grandfather to take the blame for the murders. In a conversation with one of his jailers and in a letter to a fellow i nmate , defendant, while denying he had committed the murders, admitted he had cleaned up the murder scene at his parents‘ house, placed the victims‘ bodies in a car , and attempted to burn the m. The defense, in essence, was that defendant had neither the c haracter nor the motive to kill his parents and brother.

2 Because all the victims have the same last name we refer to them as Edward, Dolores and Danny, as Daniel was universally known.3 B. Prosecution Case

- in

- Chief Defendant is the elder son of Edward and Dolores. In November 1994, defendant was 22 years old and his brother Danny was 19. Defendant worked as a
mechanic at the Sunn y Hills Chevron station in Fullerton; Danny was a sophomore at the University of Southern California (USC). Neither lived at his parents‘ home
on Terraza Place in Fullerton , but their maternal grandfather, Berna r d Severino,
did. His room was at the o ppos ite end of the house from the master bedroom where Edward and Dolores slept. Danny lived at USC and defendant was living with the family of his fiancée , Tiffany Bowen, wh o was away at school

. On Sunday, November 6, all the members of the Charles family, except defendant, had dinner together. At some point, defendant arrived. There were no arguments among the family. Severino, the sole eyewitness to the events of that evening, told police Danny left first, at about 8:00 p.m., followed shortly by
defend ant. A bout 9:00 p.m., Dolores expressed concern to Severino that Danny had not called to report he had arrived safely at USC , as was his habit. Severino last spoke to his daughter at 11:30 that night. She was still a waiting Danny‘s call.
Severino went to bed.
Gina Simms lived on Lakeside Drive in Fullerton around the corner from
the Charles es ‘ house

. A bout 9:30 p.m. on November 6, she was accompanying
her friend Susan Poladi n and Poladi n‘s daughter from her house to their car. As they walked down th e driveway the two women heard someone calling for help. The call appeared to come from the trunk of a car parked across the street

. They
returned to Sim m s‘s house to call the police but by the time t he police arrived, the car was gone. At trial, the wo men identified Danny‘s Honda as similar to the car they saw that evening. About 9:50 p.m., Bryan Poor, defendant‘s coworker at the Chevron station,
saw defendant arrive in a small, light

- colored sedan he had never seen d efendant4

drive before. Defendant t old him the car belonged to Tiffany Bowen‘s mother, Jeanne, and he was testing the clutch or brakes. Defendant parked the car in a poorly lit area of the station. Ordinarily , he parked in front. Jeanne Bowen testified that on November 6, she owned a go ld Impala and a red Mustang, neither of which had a clutch. She a lso testified that, although defendant was living at her home in November 1994 , he did not spend the night of
November 6 there. On Monday, November 7, 1994, Severino woke about 5:30 a.m. a nd went out to walk the family dog. He noticed a three

- foot

- long trail of blood drops in front of the steps to the house. He also observed that Dolores‘s car was not parked in its usual spot. About 6:10 a.m., Jerry Kuhn, who lived across the street , wen t out to pick up the newspaper and saw defendant using a towel or a rag to rub the
Charles es ‘ driveway. Defendant stopped when he saw Kuhn watching him . He
resumed when Kuhn went back into his house , where Kuhn continued to watch
defendant from a window. Defendant threw the towel or rag into the back of a truck parked in the driveway. Defendant reported for work at the Chevron station about 8 a.m. J a mes Burchit, the owner, said defendant was unshaven and looked like he had been up all night.
Defendant worked until 4:00 p.m. Sometime before 7:00 p.m., he returned

to his parents‘ residence . By now Severino was concerned because his daughter
and son

- in

- law had not been home all day. He asked defendant if he knew where they were. Defendant told him Dan ny had had a clutch problem with his car and his parents had gone to pick him up. Severino said he was going to call the police.
D efendant left. According to Jeanne Bowen, defendant arrived at the Bowen residence
about 7 :00 p.m. At around 9:00 p.m., h e asked Ty Bowen, Jeanne‘s son, to give5

him a ride to the Chevron station. Defendant had been driving Tiffany Bowen‘s truck, and it was at the residence, but Ty B owen drove him to the station. At about 10:00 p.m., Jeanne Bowen received a phone call from someone named

― Rob ‖ who asked for Ty. She gave the phone to her son. It was defendant , and he asked Ty to pick him up at a softball field. Ty again complied.
The softball field was about sixth

- tenth s of a mile from El Camino High
School in La Mirada w here, about 10:00 p.m., Los Angeles County Sheriff‘s Deputy James Rifilato was dispatched to investigate a car fire. Rifilato found a gray Honda Civic smoldering in the school‘s parking lot. The vehicle was registered to Edward and Dolores. Rifilato loo ked inside the car and saw the nude, badly burned bodies of a man and a woman in the rear passenger seat. In the trunk, Rifilato found a clothed male body, less burnt than the other two. The
bodies in the back seat were identified as Edward and Dolores. The body in the trunk was Danny. An arson investigator who arrived at the scene shortly after Rifilato determined the fire had been intentionally set in three locations, with gasoline used as the accelerant. Police also recovered a knife, a blue T

- shirt , and a purple sweatshirt from the car.
A n a utops y revealed that Danny had been stabbed twice in the back and

was then either chok ed or struck in the neck with sufficient force to break his hyoid bone, which is located under the jaw. He was then struck in the head four
times with sufficient for ce to fracture his skull. T he cause of death w as blunt force injury to the head. Edward‘s autopsy revealed that his chest, back, neck , and head had been repeatedly struck , fractur ing his ribs, spinal column, nec k, jaw , che e k , and skull. The cause of his death was blunt force injuries to his head and neck. The autopsy on Dolores‘s body revealed the cause of death was asphyxia due to neck compression. The medical examiner attributed this to strangulation or6

a b low to her neck. An examination of the victims‘ stomach contents indicated Danny was killed first and then his parents , several hours later. Sometime between 3:00 a.m. and 4:00 a.m., Leann Pollaccia was ―dumpster diving‖ behind a business in an industri al area in Fullerton looking for
items to sell . She found a 30

- gallon garbage pail that held clothes and a towel
soaked w i th blood. Pollaccia kept digging and found a wrench engraved with the yin

- yang symbol. 3 There was hair and blood on the wrench but she took it anyway, leaving the clothes except for a pair of jeans , which she washed. Later , when she read newspaper accounts about the murders that identified defendant as
a mechanic , she concluded the wrench was probably the weapon police were looking f or, so she turned it over to the police. Kimberly Speare, defendant‘s former girlfriend, testified she and defendant had engraved all of his tools with the yin

- yang symbol and identified the wrench as part of the set of tools they had engraved. Steve Dow ell, a criminalist with the Los Angeles coroner‘s office
who se specialties included tool mark analysis, compared the wrench to Danny‘s and Edward‘s skull injuries

. He concluded an injury to Danny‘s skull bore marks
consistent with the class of wrenches to which defendant‘s wrench belonged. H e could not exclude it as the object that produced the injuries to Edward‘s skull. Heidi Robbins, the prosecution‘s serologist, testified that blood found on the
wrench was consistent only with Danny‘s blood.

3 Philip Axelson , defendant‘s martial arts teacher, explained this s ymbol ―depicts two fish, one usually dark and one usually white,‖ that are ―juxtaposed like two shoes in a [shoe] box‖ ―like they are chasing each other,‖ and ―suggests positive/negative, light and dark, and basically a balance.‖ He testified further that it was a significant symbol in martial arts and one with which defendant could have been familiar.7

Los An geles County Sheriff‘s Sergeant Curt Royer , the lead inves tigator , first spoke to defendant at the Bowens‘ residence at 6:15 a.m. on Tuesday,
November 8. Defendant told Royer he had last seen his brother and parents on Sunday night around 8:00 p.m. , when Danny left to return to USC. Defendant said he left shortly afterwards and spent the night at the Bowen residence. As to his whereabouts on Monday night, he told Royer he had arrived at the Bowen residence at 8:00 p.m. and remained there until Royer had awakened him. Royer asked defendant why , if his brother had left his parents‘ residence while his parents remained there, they had been found in the same vehicle

. D efendant said his brother ‘s car had had clutch problems , so he had probably
returned home and had his parents drive him to college. When Royer observed that defendant had not asked him why he was inquiring about his parents, defendant asked, ―Well, why? What happened?‖ Royer told him his parents and
brother had been found dead in a car. De fendant said he warned them not to go to the college at night. He dropped to the ground and appeared to sob but, when Royer told defendant he knew he was faking, defendant stopped. Later that day, Royer spoke to defendant again. He told defendant that Jeanne Bowen had informed him defendant had not spent Sunday night at the Bowen residence. Defendant then remembered he had gone back to his parents‘ house and slept there without anyone having seen him arrive or leave. Around 5:50 p.m. on the same day, Tuesday, defendant called Philip Axelson. Axelson had been defendant‘s martial arts teacher for three years , until
March 1994

. Defendant referred to Axelson as ―sensei,‖ the Japanese word for
teacher. Under Axelson‘s tutelage defendant had risen to the green belt level. To achieve that level, defendant had had to be able to break two one

- inch

- thick boards
with his feet and three with his hands. Axelson had seen defendant break as many as five boards, although he did not say whether this was with his h ands or feet. At8

that level, defendant would have been capable of inflicting a severe blow to another person‘s body.
Axelson was at the health club where he worked when he was told he had an emergency call. The employee who answered it told Axelson the caller had identified himself as ―Eddie,‖ and ―sound[ed] really upset.‖ When Axelson took the phone, defendant was crying. Axelson asked him ― W hat‘s going on ?‖ He told Axelson he had ―done a terrible thing.‖ Axelson asked what it was and defendant
said , ―I killed my family.‖ Axelson said, ―What?‖ and defendant said, ―I think I killed my family.‖ Axelson said, ―What are you telling me? What are you saying to me?‖ Defendant replied, ―I think I killed my family. I need to come down and talk to you rig ht away.‖ Axelson, concerned about the safety of other club members and employees should defendant be armed, asked for defendant‘s number and told him he would call him back. After getting off the phone with defendant, Axelson called the police and repor ted the conversation. Axelson testified further that he and defendant had had a close relationship
while defendant trained with him. D efendant conveyed the impression he hated
his brother Danny , who he thought might become a homosexual because of Danny‘ s interest in opera and theater . Defendant‘s feelings toward his mother

w ere also negative; he thought that her smoking showed a lack of regard for his health. As to his father, Axe lson testified there was ―no love there.‖ Defendant complained his fathe r was distant and did not listen to him. Axelson testified that
defendant demonstrated no regard for any member of his family.
Defendant was arrested for the murders on November 9, 1994.
On November 1 0, 1994, Heidi Robbins , a serologist with the Los A ngeles County Sheriff ‘s Department crime lab, went to the Charles es‘ residence. Robbins

t ook samples of blood she found at the entrance and in the foyer, and i n the master bedroom on a night stand, a computer, the headboard, the wall above the9

headboard, t he mattress and the box spring. A pair of sparring gloves found in the
dini ng room also had blood on them. Robbins analyzed some, but not all, of the samples she collected in the house. She concluded that blood on the nightstand
was consistent with Edwa rd ‘s . The blood on the sparring gloves was consistent
with defendant ‘s . Robbins was also given the knife recovered from the trunk of the car where Danny‘s body was found. Blood on the knife was consistent with
hi s blood. Sometime in late November, def endant called his grandfather from jail and
told him he should take the blame for the murders because he was 74 years old and
had already lived his life. (Severino was actually 73.) Severino hung up on him.
Defendant called back and told him that his fi ancée Tiffany Bowen was pregnant
and defendant had his life to lead. On November 23, 1994, an agitated defendant asked to speak to one o f his jailers at Orange County J ail, Deputy Sheriff Gene Hyatt. Defendant told Hyatt his grandfather had committed th e murders. He told Hyatt that on the night of the murders his grandfather was upset because defendant‘s parents were bickering
with Danny . Def

endant said he left his parents‘ house before Dan ny did but returned around 11:30 p.m. Upon his return, he foun d a bloody ball peen hammer in the kitchen, the bodies of the three victims in his parent s ‘ bedroom, and his 73

- year

- old grandfather in his bedroom covered with blood. Defendant decided to cover up for his grandfather. He showered the blood off his grandf ather, put him into bed, and cleaned blood from the house. He put the bodies in a car parked in the driveway and then went to bed. The next evening, after working a full day, he drove the bodies to the high school parking lot, doused them with gasoline, set the
car on fire and walked home.
On December 7, 1994, an i n mate name d Cezar Pinco c k approached Sergeant Royer with a letter Pincock claimed defendant had written to him. He10

offered the letter to Royer in exchange for Royer‘s help in two cases, one i n which
Pincock had been sentence d and the other of which was pending. Royer rejected Pincock‘s request for help and seized the letter as evidence. Although the letter
does not contain a date or defendant‘s name, his former girlfriend, Kimberly Speare, w ith whom he had lived for a year and a half, testified the writing in the
letter was his. Tony Saavedra, a reporter with the Orange County Register newspaper, obtained a copy of the letter and published a n article in the newspaper on January 3, 1995, tha t quoted extensively from it. Before writing and publishing the piece
he interviewed defendant about the letter . Saavedra held the first page of the letter
up to the glass partition that separated him from defendant , and either read or held up other page s of the letter, while asking him questions about specific passages. Saavedra prefaced his questions with remarks like ―You wrote here,‖ or ―You said here.‖ At no point did defendant deny authorship of the letter. In fact, defendant
clarified some of th e passages that Saavedra did not understand. For example, he explained what was meant in the letter by the term ―monkey boots.‖ Saavedra also asked defendant about passages in the letter discussing the burning of the bodies. Defendant explained that he couldn‘t bury them , but if he burned them ― it

c ould be like cremating them.‖ Defendant also told Saavedra that, as the bodies burned, defendant ran to a nearby baseball field and called his fiancée‘s brother for
a ride home. Appended to the letter was a diagram of the layout of the Charles residence in which furniture was accurately positioned. It also contained information that was not in any of the police reports.
Defendant in the letter d id not admit killing his family. Def e ndant wr ote he
arrived a t his parents‘ house about 11:30 p.m. and found his parents dead. He

wrote he ―know[s] who did this and they left a typed note in an envelope with
threats and telling me to clean up or I would go to jail for murder. They sa i d if I11

went to cops [ sic ], the y would kill Tiffany [Bowen] and her family.‖ He describe d removing the bodies, cleaning up the house, including the blood on the driveway , consistent with what his neighbor Jerry Kuhn observed . He also wrote that on the Monday night after the killings , he drove the car with the bodies to the high school, pour ed gasoline in the trunk and inside the car and set it on fire. Elsewhere, he suggest ed it would ―look[] better‖ and deflec t suspicion from him if

someone

— ―X‖

—

went back to his parents‘ residence and got ―caught in the act of something. Weather [ sic ] it be M. [murder?] or steal [ ing ]

. . . . Someone could call pigs [ sic ] and tell them X is there and is going to finish the job. X could say he missed gramps.‖ Defendant also propose d a possible alibi for himself for the night the murders occurred. ―How about this. Sunday night I was with a girl from 7:30 pm on til 7:30 am Monday when she dropped me off at my house. She picked me up the night before at my house in a blue four door car. The only thin g is who was this girl, where did you meet her, why didn‘t you say anything about it before .

. . . [¶] [1] Who

— I don‘t know, find someone who will say they were the girl? [¶] [2] Where

— I met her at the station getting gas. [¶] [3] Why

— Because I didn ‘t want my old lady to find out. [¶] What

— Well like I said I couldn‘t let my old lady find out.‖
Jill Roberson testified she had known defendant before he was arrested and had corresponded with him in jail

. She testified she was going to claim defendan t was with her the night of the murders. She said the false alibi was her idea. After some equivocation, she testified that, although she had discussed the idea with
defendan t, he told her not to do it.12 C. Defense Guilt Phase Case
Defendant called a n umber of witnesses who testified to his good character
and his nonviolent nature. These witnesses also testified to the absence of any animosity by defendant toward his family that would have provided him with a motive to kill his parents and brother. Wi lliam Hatch, a handwriting comparison expert, compared the jailhouse letter to exemplars of defendant‘s handwriting and opined that defendant had not written the letter. (The defense would argue
Pincock had forged the letter based on media stories and pol ice reports he obtained
from defendant

. ) Three witnesses, including Jill Roberson‘s father, testified she
was untruthful. Two witnesses testified they saw defendant driving out of the parking lot of the Chevron station at 9 :00 p.m. on the night of the mu rders. Benjamin Romero, a Fullerton police officer, testified that when Severino was being interviewed he had trouble remembering and answering questions.

D. Prosecution Rebuttal In rebuttal, Sergeant Royer testified Officer Romero did not participate in Severino‘s interview but was simply standing nearby during the interview. 2. Penalty Phase A. Summary For reasons set forth below, t here were four penalty trials in this case. (See pt. 2.A , p . 31 .) The fourth penalty trial jury returned the death verdict under
review here.

B . Prosecution Case The prosecution‘s case in aggravation was based on the circumstances of
the crimes and defendant‘s use or attempted use of force or violence. (§ 190.3, factors (a), (b)) as well as victim impact evidence.13

Because the fourth penalty jury had not heard the guilt phase evidence, the prosecution presented the same evidence it had presented at that phase as evidence going to the circumstances of the crime. We do not repeat that evidence here.
Bernard Severino provided brief victim impact testimony. He testified to the character of his daughter, son

- in

- law , and grandson Danny , and that he missed
them and suffered from loneliness as a result of their deaths. Deputy Sheriff Frank Tomeo, who worked in the Orang e County J ail, testified that, on May 5, 1995, he saw defendant come up behind another inmate, put him in a chokehold , drag him into the shower area , and then drop him , unconscious, on to the shower floor. The inmate sustained injuries that required
five s titches. A second deputy sheriff, James Gagen, testified that he searched defendant‘s cell and found two grinding disks, two hacksaw blades, and a nine

inch piece of metal.

C. Defense Case Defendant called a number of witnesses who testified to his goo d character,
his status as a role model to the boys he coached in soccer, his nonviolent nature, and the absence of anything in defendant‘s past or character that had prepared the
witnesses for his commission of the murders. Roberta Prindiville, defendant ‘s maternal aunt, and Joanne Irene, his second cousin, both testified that they and other members of defendant‘s extended family still loved him and wanted to
maintain a r elationship with him, notwithstanding the crimes of which he had been
convicted. Nor man Morein, a sentencing consultant, testified that defendant‘s
skills as a mechanic would make him a valuable asset if he were sentenced to life in prison without possibility of parole. William Hatch, the handwriting comparison expert, again testified th at, in his opinion, defendant had not authored the jailhouse letter to Cezar Pincock. Ron Klar, defendant‘s former attorney,14

testified that he had gained permission for defendant to keep legal documents related to his case in jail and that all of defendan t‘s non

- legal mail was inspected
before it reached defendant.
D ISCUSSION
1. Guilt Phase Claims A. Admission of Defendant’s Jailhouse Letter
Defendant contends the trial court abused its discretion when it admitted his jailhouse letter under the adoptiv e admission exception to the hearsay rule (Evid. Code , § 1221) and because the prosecution failed to establish the chain of custody. Additionally, he asserts application of the newsperson ‘ s shield law ( Cal.
Co n st., art. I, § 2 , subd. (b) ; Evid. Code, § 10 70) limited his ability to effectively challenge the testimony of Tony Saavedra, the Orange County Register reporter, which was the basis of the court‘s admission of the letter into evidence. Defendant contends the improper admission of the letter violate d his Fifth, Sixth, Eighth and Fourteenth Amendment rights

. 4 We reject his claims.

4 ―As to this and virtually all other appellate claims, defendant contends that an issue raised and decided in the trial court resulted in constitutional violations, but he did not present those constitutional theories below. In such instances, it appears that (1) the appellate claim is the kind that required no trial court action to preserve it, or (2) the new arguments do not invoke facts or legal stand ards different from those the trial court was asked to apply, but merely assert that the trial court‘s act or omission, in addition to being wrong for reasons actually presented to that court, had the legal consequence of violating the United States and Ca lifornia Constitution s . To that extent, defendant‘s new constitutional arguments are not forfeited on appeal. [Citation s .] In the latter case, no separate constitutional discussion is required or provided where rejection of a claim that the trial court erred on the issue presented to that court necessarily leads to rejection of any constitutional theory or  ̳gloss‘ raised for the first time here.‖ ( People v. Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We apply this principle here and elsewhere where defendant assert s on appeal constitutional claims not advanced below.15 1. Evidence Code Section 402 Hearing Before trial, the court conducted a hearing on defendant‘s motion to exclude from evidence the jailhouse letter defendant allegedly wr ote to his fellow inmate, Cezar Pincock, about which Tony Saavedra, the reporter for the Orange County Register , later questioned defendant . The prosecutor explained that at his request, Saavedra, who had become aware of the letter and some of its content s, had held off writing a story about it until after the police had investigated whether, as the letter suggested, a ―hit‖ had been planned against defendant‘s grandfather. In gratitude for his cooperation, the prosecutor gave Saavedra a copy of the lette r. The prosecutor represented that Saavedra questioned defendant about the letter on his own and not at the prosecutor‘s instigation. Although, as noted, the author of the letter denied having killed Edward, Dolores and Danny Charles, he described his d iscovery of the bodies, the cleanup efforts and the attempted disposal of the bodies by burning them. These descriptions largely tallied with what defendan t told Deputy Sheriff Hyatt. 5 The issue at the pretrial hearing was not the content of the letter but, as defense counsel put it, ―whether [defendant] confessed to writing‖ the letter. At the outset of the hearing, the parties stipulated that the letter was received by Sergeant Royer from inmate Pincock as well as to the circumstances under which
Saav edra obtained it. They stipulated further that the defense‘s ha ndwriting

5 Hyatt did not testify at the hearing regarding admissibility of the letter. He had, however, testified at an earlier Evidence Code section 402 hearing on the defense motion to exclud e defendant‘s statements to him. The court denied that motion in part, permitting admission of some statements that defendant had voluntarily made to Hyatt, but not later statements Hyatt solicited from defendant. In arguing the letter corroborated defen dant‘s statements to Hyatt, the prosecutor referred to Hyatt‘s testimony at this earlier hearing. Defendant did not object to the consideration of Hyatt‘s testimony by the trial court.16

expert, William Hatch, had he been called at the hearing, would have testified none of the writing was in defendant‘s hand. As he would at trial, Saavedra testified that he held up pages of the letter to the glass partition that separated him from defendant in the jail‘s visiting room and asked him questions about certain passages. In doing so, he used language like ―I have a letter that you wrote,‖ and ―You said here, ‖ or ―well, y ou wrote here.‖ In questioning defendant he ―hopscotched‖ around the letter. Saavedra testified that at no point did defendant admit or deny he wrote the letter , but he responded to Saavedra‘s questions about specific passages. Saavedra testified he was ―waiting‖ for defendant ―to disagree with what was in the letter,‖ to say, for example , ―I didn‘t burn my parents,‖ but ―it was quite the opposite.‖ The prosecutor argued that, in addition to Saavedra‘s testimony, the
similarities between what was in the letter and what defendant told Deputy Hyatt , which the deputy had testified to at an earlier Evidence Code section 402 hearing, provided further evidence defendant had written the letter. The defense argued
that the dissimilarities outweighed the similar ities and that the letter was disjointed , ―as though someone is getting police reports and getting more information and then writing more letters.‖ The trial court observed the entire letter appeared to have been written by a single person, a point defens e counsel did not dispute. In admitting the document into evidence the court said, ― [ T ] here has been no suggestion of tampering, other than speculation. Certainly, you would expect that if it is in the same handwriting, if [defendant] is shown the first page and he doesn‘t deny it is his handwriting, that that would include the whole document.‖ The court questioned whether , as the defense contended, there was a ―problem with the chain of custody.‖ Defense counsel replied ther e was no evidence defendant had given the letter to Pincock or anyone else. Defense17

counsel conceded, h owever, that the letter the prosecution gave Saavedra was the same letter Royer said Pincock had given him . The trial court rejected the chain of custody argument, concluding, ― If the handwriting is the same person for all the 18 pages and .

. . the defendant is shown one page of it by the reporter, and doesn‘t deny it under circumstances where a person ordinarily would say that,  ̳That not‘s true, I didn‘t write that,‘ or  ̳that‘s not my handwriting , ‘ i t seems that it is an implied admission as to the other 18 pages . [¶] Unless, you know, there is some
evidence that there has been some tampering with those 18 pages.‖ The court denied the motion to exclude the letter without prej udice to a further showing ―that would justify excluding it.‖

2. Analysis At the Evidence Code section 402 hearing, the admissibility of the jailhouse letter to Pincock hinged upon the preliminary factual question whether defendant
authored the letter. 6 In finding that defendant did , the trial court relied on the letter itself, which it concluded had been written by a single individual, similarities between defendant‘s statements to Deputy Hyatt and accounts in the letter regarding defendant‘s efforts t o clean up the murder scene and dispose of the bodies, and the testimony of Tony Saavedra about defendant‘s conduct when Saavedra questioned him about the letter. In the court‘s opinion, defendant‘s conduct constituted an adoptive admission of authorship. 7

6 As relevant here, Evidence Code section 402 provides for a hearing out of the presence of the jury ―[w]hen the existence of a preliminary fact is disputed

. . . .‖ ( Id. , § 402, subd. (a).) Evidence Code section 403 places upon the proponent of the evidence the burden of proving ― the existence of th e preliminary fact. ‖ ( Id. , § 403, subd. (a).) 7 The court‘s finding of authorship was preliminary; the jury was the final arbiter of this issue. ―  ̳[T]he judge‘s function on questions of this sort is merely to
(footnote continued on next page)18

Defendant challenges the trial court‘s conclusion that his conduct when questioned about the letter by Saavedra constituted an adoptive admission. ―We review the trial court‘s conclusions regarding foundational facts for substantial evidence. [Citati on. ] We review the trial court‘s ultimate ruling for an abuse of discretion [citations] , reversing only if  ̳ ―the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a ma nifest miscarriage of justic e.‖ ‘ ‖ ( People v. DeHoyos (2013) 57 Cal.4th 79, 132.)
Because t he a doptive admission issue involve d only the authorship of the letter, not its content s , we are concerned only with whether the trial court ruled correctly that defendant‘s conduct in respo nse to Saavedra‘s questioning constituted an adoptive admission that he wrote the letter. If so, then any incriminating statements in the body of the letter would become defendant‘s own statements and, as such, party admissions. (Evid. Code, § 1220.)

― In determining whether a statement is admissible as an adoptive admission, a trial court must first decide whether there is evidence sufficient to sustain a finding that: (a) the defendant heard and understood the statement under
circumstances that normal ly would call for a res ponse ; and (b) by words or conduct, the defendant adopted the statement as true.‖ ( People v. Davis (2005) 36 Cal.4th 510, 535.) ―For the adoptive admission exception to the hearsay rule to apply, no  ̳direct accusation in so many wo rds‘ is necessary. [Citation.] Rather, it is enough that the evidence showed that the defendant participated in a private
conversation in which the crime was discussed and the circumstances offered him

(footnote continued from previous page) determine whether there is evidence sufficient to permit a jury to decide the question.‘ ‖ ( People v. Lucas (1995) 12 Cal.4th 4 1 5, 467.)19

the opportunity to deny responsibility or otherwise dissociate himself from the crime, but that he did not do so.‖ ( Id. at p. 539.) In this case, Saavedra confronted defendant with the letter that, in part, described the author‘s efforts to clean up the murder scene and dispose of the
bodies. While Saaved ra did not directly ask defendant if he had written the letter,
he showed him pages o f the letter and queried him about it with language that plainly attributed the letter to def endant, e.g., ―You said here,‖ ―Well, you wrote here.‖ Tha t defendant respond ed to Saa vedra‘s queries is evidence defendant heard and understood Saavedra‘s remarks, thus fulfilling the first prerequisite for an adoptive admission. As to the second, that the defendant by words or conduct adopt the statement as true, defendant did n ot deny having written the letter or in any way dissociate himself from it and its incriminating contents. To the contrary, in response to Saavedra‘s questions, defendant explained or illuminated passages in the letter. Accordingly, substantial evidence showed def endant heard and
understood Saavedra was implicitly asserting defendant had authored the letter and, by responding to Saavedra‘s substantive questions regarding the content s of the letter, implicitly admitted authorship. Moreover, in concluding d efendant wrote the letter, the trial court did not rely solely on its conclusion defendant‘s conduct constituted an adoptive
admissio n. T he trial court also found the entire document had been written by a single person and implicitly found, as the prosecu tor argued, that statements in the letter regarding t he aftermath of the murders largely corroborated defendant‘s statements to Deputy Hyatt to which Hyatt ha d testified at an earlier evidentiary hearing. We note further that at trial Kimberley Speare test ified that the handwriting in the letter was defendant‘s. Thus authenticated as having been written by
defendant , any inculpatory statements in the letter were admissible as party20

admissions. (Evid. Code, § 1220 [―Evidence of a statement is not made
inad missible by the hearsay rule when offered against the declarant in an action to which he is a party .

. . ‖].) Accordingly, even if the trial court had erred in admitting the letter as an adoptive admission

— which it did not

— it would have
been admissible o n this alternative ground . ( People v. Geier (2007) 41 Cal.4th 555, 582 [a trial court‘s ruling, if correct on any ground, will be affirmed].) Defendant challenges the trial court‘s ruling on four grounds. First, he claims ―the chain of custody was inade quate to show that the letter was genuine or authored by [defendant].‖ The trial court appropriately rejected this claim. The parties stipulated that the letter was the same letter Pincock had given Sergeant Royer and t hat the copy Saavedra showed defend ant was a copy of that letter. There was no suggestion the letter was tampered with at any point in its passage from Pincock‘s hands to Royer to the hearing. Thus, as the trial court correctly observed, there is no chain of custody issue. (See People v. Catlin (2001) 26 Cal.4th 81, 134.) Defendant‘s claim that Pincock forged the letter after obtaining access to police reports in defendant‘s possession goes to the question of authorship , not to chain of custody. As already explained, the evidence suppor ts the conclusion that defendant wrote the letter. Second, defendant argues that the trial court erred in admitting the letter because Saavedra admitted he showed only parts, and not the entire document, to
defendant. But as earlier noted , the trial court found the entire document was written by a sing le person and in a single hand. The trial court concluded that person was defe ndant. Third, defendant argues the letter did not constitute an adoptive admission
because he did not admit he committed the crim es , but blamed them on a nameless third party. The argument is both forfeited and meritless. Defendant did not seek
to exclude the letter because it di d not constitute a confession; h is sole argument21

was that he did not write the letter at all. 8 Accordi ngly, the argument i s forfeited.
His argument is meritless because it goes not to its admissibility , but to the evidentiary weight of the letter, a matter for the jury. In sum, substantial evidence supports the trial court‘s foundational finding
of author ship, and it did not abuse its discretion in admitting the letter into
evidence.
F inally, defendant complains that S aavedra‘s invocation of the newsperson‘s shield law (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070) prevented him from properly ch allenging the admission of the letter by thwarting his ability to confront and cross

- examine Saavedra in violation of his Sixth
Amendment rights

. The claim is meritless.
A rticle I, section 2 of the California Constitution provides, as relevant to
this ca se, that ― [a]

. . . reporter

. . . shall not be adjudged in contempt by a judicial, legislative, or administrative body, .

. . for refusing to disclose any unpublished
information obtained or prepared in gathering, receiving or processing of
information fo r communication to the public.‖ The constitutional provision is incorporated in the language of section 1070 of the Evidence Code. Termed ― the

new s person‘s shield law ‖ ( Delaney v. Superior Court (1990) 50 Cal.3d 785, 792), these provisions protect ―a new sperson from being adjudged in contempt for refusing to disclose either: (1) unpublished information, or (2) the source of

8 On a related note, defendant complains Saavedra‘s guilt phase trial testimony that in his opinion defendant wrote the letter usurped the jury‘s exclusive prerogative to determine that issue. Defendant did not advance this argument either at the pretrial evidentiary hearing or when Saavedra testified. Accordingly, the claim is forfeited. Even if it were not, the jury was instructed that it alone was to determine whether an admis sion had been made. ― We presume the jury understood and followed the instruction. ‖ ( People v. Homick (2012) 55 Cal.4th 816, 873.)22

information , whether published or unpublished.‖ ( Id. at p. 797.) The immunity is not absolute, however, and may in some instances y ield to a criminal defendant‘s constitutional right to a fair trial. ( Id. at p. 805.)
The current case involves unpublished information. In Delaney , we defined the term ―  ̳ unpublished information ‘ ‖ as encompassing ―a newsperson‘s
nonconfident i al, eyewi tness observations of an occurrence in a public place.‖ ( Delaney v. Superior Court, supra , 50 Cal. 3d at p. 805.) W e also s et forth a number of factors to guide the trial court in balancing the interests of a criminal defendant seeking to overcome the imm unity granted by the shield law with the
newsperso n‘s interests. Those factors a re: (a) ― whether the unpublished
information is confidential or sensitive ‖ ; (b) whether ― the interests sought to be protected ‖ by the law would be thwarted by disclosure; (c) ― the importance of the
information to the criminal defendant ‖ ; and (d) ―[ w ] hether there is an alternative source for the unpublished information. ‖ ( Id. at p. 813; see id . at pp. 8 1 0

– 81 1 .) The relative weight of these factors in a particular case is for the trial court to decide . ( Id. at p. 813.) At the pretrial hearing and at trial , Saavedra was represented by counsel, Mr. Grossberg . Grossberg sought to invoke the shield law to prevent defense counsel from asking Saavedra about any information he obtai ned from defendant
about the murders that did not appear in Saavedra‘s published article. For example, when defense counsel asked Saavedra at the hearing whether defendant denied authorship of the letter, Grossberg objected on the grounds that ―the articl e does not state anywhere, one way or the other, that [defendant] did or did not deny anything.‖ The trial court overruled the objection. At another point, Grossberg objected when defense counsel asked Saavedra at the hearing if he inquired of
defendant when and where the letter was written. Grossberg again argued the answer called for information not published in the article. The trial court,23

specifically referencing the Delan e y factors, overruled the objection. Accordingly,
the trial court was clearl y attuned to its obligation to weigh the competing interests
in ruling on Grossberg ‘s objections that defense counsel‘s questions called for unpublished information in violation of the shield law. Defendant does not discuss the actual procedure used at the pretrial evidentiary hearing or the trial court‘s rulings regarding the shield law. He also fails to acknowledge that the trial court specifically referred to the Delaney factors in weighing Grossberg‘s objections to defense counsel‘s questioning, thus b elying defendant‘s claim the court was unaware of its duty to balance the requirements of the shield law against defendant‘s right to disclosure

. Instead, he globally claims Saavedra‘s invocation of the shield law prevented him from obtaining information that would have impeached Saavedra‘s credibility. H e fails to direct us to a single question by defense counsel, as to which the trial court sustained an objection by Grossberg, that impeded defendant‘s ability to challenge Saavedra‘s credibility at the p retrial hearing. At oral argument, he directed us to two passages in the transcript of the hearing that he claim s support his argument that invocation of the shield law thwarted his lawyer‘s cross

- examination of Saavedra. Neither passage
does so

. The fi rst passage involves a conversation between the court and counsel regarding the shield law in which the court said, ―I am trying to focus on what it is that the defense might want to ask [Saavedra] which would cause [the newspaper
to invoke the shield law ] , if that‘s the case.‖ Defense counsel responded he was interested in ―how they approac hed each other, what was said .

. . you know we are going to try to find out whether [defendant] confessed to writing or didn‘t, and
how that came about and what that m eans.‖ He concluded by saying, ―So I am really not going outside the four corners of that document [e.g., the newspaper article], from what I can gather in my own mind.‖ Thus, far from restricting defense counsel‘s cross

- examination, the trial court was simply soliciting defense24

counsel‘s view of whether anything in his cross

- examination might cause Grossberg to object under the shield law , to which defense counsel replied he did
not believe so. The second passage follows two objections by Grossberg when defense
counsel asked Saavedra whether defendant ―confirmed‖ writing the letter that the
trial court overruled. Defense counsel then asked, ―[W]hat did you do right before he supposedly confirmed he wrote these things? Tell us what you did.‖ Grossberg objected ―that that question requests information what was not published, the question of  ̳what did you do.‘ ‖ The trial court sustained the objection. Defense counsel made no argument or offer of proof. Defendant does not explain, nor is it at all self

- evident, how this exchange violated his right to
confront and cross

- examine Saavedra or deprived him of evidence relevant to Saavedra‘s credibility. Defendant also cites a fragment of testimony by Saavedra during the first penalty trial as illustrative of the type of question that application of the shield law prevented him from asking at the pretrial hearing : ―the defense was able to elicit the fact that [defendant‘s] responses to Saavedra‘s questions did not show authorship of the letter, but were in fact just general comments completely independent of the letter.‖ But since defense counsel did not ask the same question at the pretrial hearing, we have no way of knowing whether Grossberg would have objected or how the court would have ruled. Tellingl y, Grossberg did not object when the question was asked at the first penalty trial. Finally, d efendant directs us to a passage of Saavedra‘s testimony during the third penalty trial when, he asserts, application of the shield law was relaxed

. He argues t his passage demonstrates how restricted his cross

- examination of
Saavedra was at the guilt phase. Defense counsel asked Saavedra, ―Can you distinguish in your mind whether or not the conversation you had with [defendant]25

in January of 1995, can be split, if you will, into portions which related to this [letter] you brought with you and portions which did not relate to the [letter ] , but were just conversations about the case?‖ Grossberg, who was present, made no objection

. Saavedra answered, ―I think so.‖ Saavedra then testified, ―It was all together. There wasn‘t a definitive talk about one and then talk about the other. It was all together.‖ Again, we fail to see, and defendant fails to explain , what bearing this exchange has on his claim that invoca tion of the shield law prevented
him from effective cross

- examination of Saavedra. Accordingly, we reject his
claim.
B. Prosecutorial Misconduct
Defendant contends three instances of prosecutorial misconduct require
reversal of his convictions and senten ce . We disagree.

―  ̳ ―A prosecutor‘s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a

cr iminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. ‖

. . . To preserve a claim of prosecutorial miscond uct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument.‘ ‖ ( People v. Linton (2013) 56 Cal.4th 1146, 1205.) Defendant first contends the prosecutor committed mi sconduct by presenting false evidence. Citing discrepancies between details in the jailhouse letter and the facts of the case as they emerged at trial, defendant argues the prosecutor committed misconduct by failing to investigate the possibility Pincock26

forged the letter. The argument is forfeited because defendant failed to mak e this objection to the letter in the trial court

. It is also meritless.

―  ̳Under well

- established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is awar e in the evidence it presents .

. . .‘ ‖ ( People v. Harrison (2005) 35 Cal.4th 208, 242.) Defendant has not established that the prosecution presented evidence it
knew was false

. The premise of his a rgument

— that Pincock forged the letter

— was rebutt ed by the prosecution‘s evidence, specifically Saavedra‘s testimony regarding his interview with defe ndant in which defendant implicitly acknowledg ed the letter was his and the testimony of defendant‘s forme r girlfriend, Kim

berly Speare, that the letter was written in defendant‘s hand. This being the case, the prosecution was under no obligation to investigate whether the letter was forged and committed no miscon duct in failing to do so. Such investigation was a matter for the defense. Even assuming the prosecutor should have recognized the evidence was conflicting with respect to whether defendant

wr ote the letter , ―[w] hen

. . . the prosecution has doubts as to the truth of a statement it intends to presen t at trial, it must disclose to the defense any material evidence suggesting that the statement in question is false. But, notwithstanding those doubts, the prosecutor may still pr esent the statement to the jury

. . . . ‖ ( Ibid .) Here, defendant fails to identify any material evidence the prosecutor failed to disclose. Introducing the letter into evidence was not misconduct.
Next , defendant claims the prosecutor engaged in misconduct when, during closing argument, he suggested defendant‘s motive in commi tting the murders was to make himself sole heir to his parents‘ estate. The defense objected to the argument on the grounds it was unsupported by the evidence. The trial court sustained the objection. T he defense did not, however, ask the jury be admoni shed to disregard the evidence, a failure that forfeits the claim on appeal. ( People v.27

Linton, supra , 56 Cal.4th at p. 1205.) Even if not forfeited, the prosecutor‘s brief remark does not rise to the level of misconduct that requires reversal under eith er the federal or state standard. ( See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.) Finally, defendant asserts the prosecutor improperly denigrated defense counsel when, in closing argument, he said ―I tip my hat to the job the defense did in this case when they had no evidence that went their way. [¶] Trying to make chicken salad out of you know what, okay? ‖ Defendant‘s failure to object forfeits the claim. In any event, ― [i]t was clear the prosecutor‘s co mment was aimed solely at the persuasive force of defense counsel‘s closing argument, and not at counsel personally. We have found no impropriety in similar prosecutorial remarks.‖ ( People v. Zambrano (2007) 41 Cal.4th 1082, 1155.) Nor do we find any im propriety here.

C. Instructio ns
1. Motive Instruction The jury was instructed with CALJIC No. 2

. 51, regarding motive, as follows: ―Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish guilt. Absence of motive may tend
to establish innocence. You will therefore give its presence or absence, as the case may be, the weight to which you find it to be entitled.‖
De fendant contends the instruction is unconstitutional because it allows the jury to determine guilt based wholly on evidence of motive and also shifts the burden of proof to defendants to show absence of motive to establish innocence. ―Assuming that [the f

i r st ] claim affects defendant‘s substantial rights and therefore that we may address the claim on the merits despite defendant‘s failure to object at28

trial [citation], this court has consistently rejected the claim, and defendant presents no reason for us to adopt a different course here. [Citations.] Defendant also argues that the instruction reduced the prosecutor‘s burden of proof by requiring defendant to prove the absence of a motive in order to establish his innocence. Again, assuming that this cla im, which was not raised below, affects defendant‘s substantial rights and is therefore reviewable [citation], we reject the claim on the same basis that we have rejected it in the past.‖ ( People v.
Sattiewhite (2014) 59 Cal.4th 446, 474 , fn. omitted

. )

2 . Consciousness of Guilt Instruction Defendant asserts three instructions pertaining to consciousness of guilt given at his trial were ―constitutionally infirm‖ because they allowed the jury to

― convict him based on improper inferences ‖ and were also ―imp ermissibly argumentative.‖ 9 We have consistently rejected identical challenges to these

9 The instructions as given were as follows : ―If you find that a defendant attempted to persuade a witness to testify fal sely, such conduct may be considered by you as a circumstance tending to show a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any , are matters for your determination.‖ (CALJI C No. 2.04.) ―If you find that an effort to procure false or fabricated evidence was made by another person for the defendant‘s benefit, you may not consider that effort as tending to show the defendant‘s consciousness of guilt unless you also find that the defendant authorized such effort. [¶] If you find defendant authorized that effort, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your consideration.‖ (CALJIC No. 2.05

. ) ―If you find that a defendant attempted to suppress evidence against himself in any manner, such as by destroying the evidence, or by concealing evidence, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, s uch conduct is not sufficient by itself to prove guilt , and its weight and significance, if any, are matters for your consideration.‖ (CALJIC No. 2.06.)29

instructions. ( People v. Lopez (2013) 56 Cal.4th 1028, 1075, and cases cited.) Defendant provides us with no persuasive reason to reconsider the issue.

3. Adoptive Admission Instruction Defendant contends the trial court improperly instructed the jury on adoptive admissions because the jailhouse letter to which the i ns t ruction pertained was improperly admitted and also because, as a cautionary instruction for his
ben efit, it should not have been given over his objection. He asserts the instruction ―fo cused the jury‘s attention on .

. . the prosecution‘s highly improper yet highly influential letter from the informant.‖ Over defendant‘s objection, the jury was instr ucted with CALJIC No. 2.71.5 as follows: ―If you should find from the evidence that there was an
occasion when the defendant [ : ] one, under conditions which reasonably affor d ed him an opportunity to reply ; two , failed to make a denial in the face of an

acc usation, express ly direct ed to him or in his presence, charging him with the
crime for which such defendant now is on trial or tending to connect him with its commission; and three, that he heard the accusation and understood its nature, then
the circumsta nce of his silence and conduct on that occasion may be considered against him as indicating an admission that the accusation thus made was true. [¶] Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence and conduct of the accused in the face of it. Unless you find that the defendant‘s silence and conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard the statement.‖ Inasmuch as we have concluded the admission of the letter was proper, we necessarily reject defendant‘s claim , premised on the asserted inadmissibility of
the letter , that it was err or to give the instruction

. Defendant‘s remaining30

argument

— that a trial court cannot give CALJIC No. 2.71.5 should a defendant object to it

— misreads People v. Carter (2003) 30 Cal.4th 11 66 , on which he
relies

. In Carter , we rejected defendant‘s argument that trial courts have a sua sponte duty to give CALJIC No. 2.71.5 and he ld ―a trial court must give CALJIC No. 2.71.5 only when the defendant requests it.‖ ( Carter , at p. 11 98 , italics added.) Carter did not say that the trial court cannot give the instruction if the

court determines it is warranted. To the contrary, we spe cifically observed: ―Tria l courts may certainly [give CAL JIC No. 2.71.5] if they think it best to do so. But,

. . . courts are required to so instruct only at a defendant‘s request.‖ ( Ibid .) Accordingly, a trial court may give the instruction, whether o r not defendant requests it, if it believes the instruction will be helpful to the jury. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1268 [noting that this instruction and
the instruction on admissions are ―intended to help the jury

. . . determine‖

w hether such admissions were made].) Moreover, as we held in People v.
Richardson (2008) 4 3 Cal.4th 959, 1021, the court may do so even over a
defendan t‘s objection

. Given the letter was admitted into evidence and the jury would have to consider it, the tr ial court properly determined the instruction would guide the jury
in assessing its evidenti ary value, if any

. Had the court not giv en the instruction, the jury might well have been left at sea regarding the relevance and significance
of the letter. By i mplication, the trial court rejected defendant‘s argument that the instruction would be more prejudicial to him than beneficial t o the jury. We
conclude the trial court acted within its discretion in giving the instruction.31

2. Penalty Phase Claims
A. Pe rmitting a Fourth Penalty Trial Defendant contends the trial court abused its discretion when, pursuant to section 190.4, subdivision (b), the trial court granted the prosecution‘s motion for

a fourth pen alty trial. We see no abuse of discretion

. Section 190.4, subdivision (b) provides in pertinent part: ―If the trier of fact [at the penalty trial] is a jury and has been unable to reach a unanimous
verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impanel ed to try the issue as to what the penalty shall be. If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison f or a term of life without the possibility of parole.‖
Preliminar il y, we note that, although there were four penalty trials in this case, only two of them were either required by or granted as a matter of discretion under the provisions of section 190.4, s ubdivision (b). Defendant‘s first penal ty phase jury deadlocked, divid ing 11 to one in favor of a death verdict. Under the statute, the prosecution was entitled to a second penalty phase trial as a matter of right. ( Ibid

. [providing that, if first penal ty phase jury is unable to reach a verdict, the court ―shall order a new jury impaneled to try the issue as to what the penalty shall be‖].) Consequently, a mistrial was declared and a second penalty phase jury impanelled. The second penalty phase jury d id not result in a hung jury. Rather , it
returned a death verdict , but that verdict was reversed by the trial court and a new trial granted based on defendant‘s allegation of juror misconduct. The third penalty phase jury, required after the new trial mo tion was granted , deadlocked ,

a lso divid ing 11 to one in favor of a death verdict. The prosecution moved for a fourth penalty trial. Although it was the fourth penalty trial sought, for purposes of section 190.4, subdivision (b), it would32

have been only the secon d retrial of the penalty phase. 10 Def e ndant opposed the motion, arguing that a fourth penalty trial was unprecedented; life in prison without parole was sufficient punishment for defendant; the prosecution‘s case was not ―going to get any be tter‖ if a new penalty trial were granted , while the defense case would improve ; and the court should consider the testimony of defendant‘s relatives at the prior penalty trial, which defense counsel characterized as a plea to ― End this. Let us go on with our lives

. ‖ The prosecutor responded that the nature of defendant‘s crimes justified the death penalty and a new penalty trial. He also pointed out that, of the 36 jurors who had sat in the three penalty trials, 34 had voted for death. In ruling on the mot ion, the trial court acknowledged that section 190.4, subdivision (b) called upon it to exercise its discretion. The court stated it was guided by the concept of whether a new trial would be ― in furtherance of justice , ‖ which required it to balance ―the c onstitutional rights of the defendant with the interests of society as a whole as represented by the People. It also necessitates an examination of the nature of the offense, a weighing of the evidence, consideration of the possible harassment and burdens imposed upon the defendant, and the likelihood that additional evidence will be presented at trial.‖ The court rejected economic considerations as a factor in deciding whether to grant a new penalty trial because ―[i]t is the decision of the District At torney to allocate public resources,‖ and if either side requested a trial by jury, ―it is the constitutional duty of the court to provide a proper forum.‖ The court found that consideration of the number of jurors that had voted for t he death penalty

— 34 out

10 Thus, we do not reach, and express no opinion regarding, whether a fourth penalty trial could be g ranted under the statute where the three earlier trials had resulted in deadlocked juries.33

of 36

— was proper

. The court observed that the only significant evidence in mitigation was that defendant had no prior criminal record. Regarding the circumstances of the crime, the court ―determine[d] that there is substantial evidence on which a jur y could base a verdict of death.‖ The court acknowledged neither side had represented it would present new or additional evidence in a new penalty trial. It found defendant would not be prejudiced by a new penalty trial
be cause ―[h]e is not going anywher e. He will either receive the death penalty or be in prison for the rest of his life.‖ On bala n ce, the court concluded ―legally there is no justification to deny the People‘s request to retry the penalty phase of the case,‖ but cautioned, ―[i]n the words of Mick Jagger,  ̳This could be the last time.‘ ‖
Under the standard applicable to the court‘s ruling on the motion under section 190.4, subdivision (b) , ―  ̳a trial court does not abuse its discretion unless its decision is so irrational or arbitrary tha t no reasonable person could agree with it.‘ ‖ ( People v. McDowell (2012) 54 Cal.4th 395, 430.) Here, the trial court‘s decision was neither irrational nor arbitrary. The

court carefully laid out the factors that guided its exercise of discretion, consid ered each one and determined, on balance, a retrial was warranted. The factors it
considered were both weighty and relevant to the exercise of its discretion : whether, for example, evidence of the circumstances of the crime supported imposition of the dea th penalty, the numerical breakdown of jurors voting for and against the death penalty, the absence of defense evidence of more than a single factor in mitigation , and the absence of prejudice to defendant. In sh ort, the trial
court found a jury would be warranted in returning a death verdict for this horrendous crime as to which defendant offered little in the way of mitigation and
as to which the overwh elming number of prior jurors had voted for death

. We find no abuse of discretion in the court‘s rulin g.34

On appeal, defendant contends the trial court gave undue weight to the numerical breakdown of jurors voting for the death penalty. This is not accurate. As our recitation of the trial court‘s ruling shows, th is was simply one of several
factors the co urt considered , and one to which it did not assign dispositive or even particular weight. More broadly, defendant asserts the trial court failed to give sufficient weight to his constitutional right ―to be free from undue harassment resulting from repeate d or vexatious litigation.‖ D efendant did not expressly make this argument to the trial court

. Ordinarily it would be forfeited , except that the court specifically stated it had considered harassment of defendant as part of its balancing of interests. W e presume that in finding no prejudice to defendant in granting the request for a fourth penalty trial, the trial court impliedly found it
would not constitute harassment. Defendant‘s argument to the contrary is without merit. Defendant seeks to import in to section 190.4‘s abuse of discretion standard limitations from section
1387. ― S ection 1387 .

. . establishes that two d ismissals pursuant to section 1385, 859b, 861, 871 or 995, bar retrial on felony charges except in limited circumstances.‖ ( People v. Hatch (2000) 22 Cal.4th 260, 270 [noting the statute is
sometimes denominated the ―  ̳ two

- dismissal rule ‘ ‖].) Under that statute, retrial is permitted when, for example, ―substantial new evidence has been discovered by the prosecution which would not hav e been known through the exercise of due diligence at, or prior to, the time of termination of the action.‖ (§ 1387,
subd. (a)(1).) Defendant argues the ―failure to offer new evidence is par ticularly important in the weighing process , ‖ as if to suggest t he absence of new evidence by the prosecution should have precluded a fourth penalty trial. We reject defendant‘s attempt to limit the trial court‘s discretion under section 190.4 with standards imposed in an entirely different statute. In the
circumsta nces here, n either a charge nor a special circumstance finding had been35

or would have been dismissed. Moreover, section 1387 was first enacted in 1872
while section 190.4 was first enacted in 197 8 . Certainly, had the Legislature wished to import standard s from the former statute into the latter it could have done so, but it did not. A s the trial court noted, defendant was not going anywhere, unlike a noncapital defendant who might well regain his or her liberty under the dismissal provisions of section 1 387. We fail to see, and defendant fails to persuasively explain, in what manner a penalty phase retrial in the
circumstances of this case constituted harassment. We affirm the trial court‘s ruling. B. Limitations on Testimony by Defendant’s Family Rega rding Penalty
Defendant contends the trial court erroneously excluded testimony from his
relatives that his family did not wish to have the death penalty imposed upon
him. 11 He asserts the evidence was admissible under section 190.3 because it
related to h is character. (§ 190.3 [at penalty phase evidence may be presented by either side ―relevant to aggravation, mitigation , and sentence including , but not limited to‖ evidence of ―the defendant‘s character, background, history, mental condition and physical condition‖].) Additionally, he argues the evidence should
have been admitted as ―execution impact evidence‖ admissible to counter the prosecution‘s vict im impact evidence. Regarding defendant‘s second argument , w e have consistently held that the ―impact of a defendant‘s execution on his or her family may not be considered by the jury in mitigation. ‖ ( People v. Bennett (2009) 45 Cal.4th 577, 601, and case s cited there.) In Bennett , we also rejected any construction of section 190.3 that

11 The testimony was excluded before his second penalty trial. When the issue arose again before his fourth penalty trial, the trial court adopted the prior ruling

.36

would permit adm ission of such execution impact testimony , an argument defendant revives

. ( Bennett , at p. 602.) He fails to persuade us to reconsider our
conclusions. Regarding defendant‘s argument that the evidence related to his character , we have held ―evidence that a family member or friend wants the defendant to live is admissible to the extent it relates to the defendant‘s character, but not if it merely relates to the impact of the execution on the witness.‖ ( People v. Smith (2005) 35 Cal.4th 334, 367.) Thus, in Smith we concluded the trial court erred when it excluded testimony by the defendant‘s tutor that death was not appropriate
because , in her assessment , the defendant was essentially a child and the execution of children was inappropriate. We explained: ―Because Foster had .

. . a significant relationship [with defendant], and her opinion was based on a feature of defendant‘s character that she had personally observed ( his emotional and social immaturity ) , we conclude that her opinion was relevant and adm issible.‖ ( I bi d. ) Unlike Smith , defendant fails to explain to what aspect of his character testimony by family members regarding the death penalty would have applied.
T rial counsel merely argued that the fact members of defendant‘s family, who
were also members of the victims‘ family, were willing to testify why they did not want defendant executed ―speaks vol umes about who the defendant is, ‖ and was ―reflective of the kind of person they saw [him] as.‖ Nevertheless, e ven assuming the trial court erred in excluding the testimony, any error was harmless beyond a reasonable doubt. ( People v

. Smith,

supra , 35 Cal.4th at p. 368 [applying the federal harmless error test , pursuant to Chapman v. California , supra , 368 U.S. 18, to the erroneous exclusion of

tes timony that the defendant should not receive the death penalty].) Both defendant‘s aunt and cousin testified they, and the rest of his family, wanted to maintain a relationship with him in the future. Obviously, a prerequisite to such a37

continuing relati onship w ould be that defendant remain alive

. As one of defendant‘s attorneys observed about the scope of the trial court‘s ruling regarding permissible testimony by family members, ―anybody with a relatively low I.Q. would be able to figure out from the t estimony that the ultimate conclusion is that they don‘t want him to be executed.‖ Accordingly, any error in excluding additional testimony was not prejudicial.

C. CALJIC No. 8.88 Defendant launches familiar challenges to CALJIC No. 8.88 , which
address e s the jury‘s function in weighing the circumstances in mitigation and aggravation and in deciding the appropriate penalty. As we have consistently held with respect to these claims, the instruction is not impermissibly broad, vague or misleading, and doe s not fail to properly advise the jury how to determine when death is the appropriate penalty. ( People v. McCurdy (2014) 59 Cal.4th 1063, 1111; People v. Dykes (2009) 46 Cal.4th 7 3 1, 816

– 817.)

D. Lethal Injection Defendant contends execution by lethal injection violates the Eighth Amendment‘s proscription against cruel and unusual punishment. As we have previously explained , th is claim , which does not implicate the validity of the death judgment itself, but a process which may or may not exist when def endant‘s sentence is carried out, is premature and therefore not cognizable on appeal. ( People v. Dykes , supra , 46 Cal.4th at p. 820; People v. Abilez (2007) 41 Cal.4th 472, 536.) E. Delay Between Death Sentence and Execution
Defendant contends the dela y between his sentence and its execution attributable to the process of postconviction review violates the E ighth
A mendment‘s proscription against cruel and unusual punishment a s well as38

international law. We have consistently rejected this claim and see no reason to

re consider our earlier precedents. ―  ̳One under judgment of death does not suffer cruel and unusual punishment by the inherent delays in resolving his appeal. If the appeal results in reversal of the death judgment, he has suffered no concei vable prejudice, while, if the judgment is affirmed, the delay has prolonged his life. ‘ ‖ ( People v. Richardson , supra , 43 Cal.4th at p. 1037.)

F. Constitutional Challenges to the Death Penalty Statute
Defendant raise s a number of challenges to the dea th penalty statute we have consistently rejected. He fails to persuade us to reconsider our previous precedents. Thus we again conclude: ―The death penalty statute does not unconstitutionally fail to adequately narrow the class of murderers eligible for the death penalty.‖ ( People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 468.) The death penalty statute is not unconstitutional because it allows the jury to consider the circumstances of a defendant‘s crime under section 190.3, factor (a). ( Peop le v. Bryant, Smith and Wheeler, supra , 60 Cal.4th at p. 469.) The death penalty statute is not unconstitutional ―for failing to require proof beyond a reasonable doubt that aggravating factors exist, outweigh the mitigating factors, and render death the a ppropriate penalty. [Citations.]  ̳The federal Constitution is not violated by the failure to require a penalty phase jury to reach unanimity on the presence of aggravating factors

. . . . [Citation.]‘ [Citation.] The high court‘s decisions in Apprendi v

. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (200 2) 536 U.S. 584 do not change this result.‖ ( People v. Boyce (2014) 59 Cal.4th 672, 723

– 724.) Moreover, defendant‘s constitutional rights were not violated by the absence of written finding s by t he jury regarding aggravating factors. ( Id. at pp. 7 24

– 725.)39

―The federal Constitution does not require intercase proportionality review.‖ ( People v. Boyce, supra , 59 Cal.4th at p. 725.)

―  ̳At the penalty phase, the jury properly may consider a defendan t‘s unadjudicated criminal activity and need not agree unanimously or beyond a reasonable doubt that the defendant committed those acts.‘ ‖ ( People v. Banks (2014) 59 Cal.4th 1113, 1207.)

―  ̳The use of restrictive adjective s , such as ―extreme‖ and ―substa ntial,‖ in the statute‘s list of potential mitigating factors does not render it unconstitutional.‘ ‖ ( People v. Banks, supra , 59 Cal.4th at p. 1207.) ―The court need not instruct the jury that mitigating factors can be considered only in mitigation, or to omit mitigating factors that do not apply to defendant‘s case.‖ ( People v. Boyce, supra , 59 Cal.4th at p. 724.) ―Because capital defend ants are not similarly situated to noncapital defendants, California‘s death penalty law does not deny capital defen dants equal protection by providing certain procedural protections to noncapital defenda nts but not to capital defendants.‖ ( People v. Williams (2013) 58 Cal.4th 197, 295.) Consequently, the law is not unconstitutional for failing to require jurors to ag ree on what facts are true or important, or what aggravating circumstances apply, or to articulate reasons for selecting a death sentence. ( People v. McCurdy , supra , 59
Cal.4th at pp. 1110

– 1111.) ―The death penalty as applied in this state is not rendered unconstitutional through operation of international law and treaties.‖ ( People v. Williams, supra , 58 Cal.4th at p. 295.)

G. Cumulative Error Defendant contends the cumulative weight o f errors occurring at his trial

— particularly the admission of the jail house letter , the instruction concerning motive40

at the guilt phase , the granting of the fourth penalty trial , and imposition of
limitations on family member testimony at the penalty phase , combined with the
constitutional infirmiti es of the death penalty s tatute

— require reversal of his
convictions and sentence. W e have rejected all these claims of error with the sole exception of his argument regarding limitations o n family member testimony at the penalty phase where, assuming error, we found no prejudice. Accordingly,
there is neither individual n or cumulative prejudice that requires reversal.
C ONCLUSION T he judgment is affirmed.
W ERDEGAR , J.

W E C ONCUR :

C ANTIL - S AKAUYE , C. J. C HIN , J. C ORRIGAN , J. L IU , J. C UÉLLA R , J. K RUGER , J.1

See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Charles

__________________________________________________________________________________ Unpublished Opinion Original Appeal XXX Origin al Proceeding Review Granted Rehearing Granted

__________________________________________________________________________________ Opinion No. S 076337 Date Filed: June 1 , 2015

_______________________________________________________________________________ ___ Court: Superior County: Orange Judge: Everett W. Dickey and William R. Froeberg

__________________________________________________________________________________ Counsel: R. Clayton Seaman, Jr., under appointment by the Supreme Court, for Defendan t and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorney s General, Dane R. Gillette , Chief Assistant Attorney General, Gary W. Schons , Assistant Attorney General, Adrianne S. Denault and Peter Quon, Jr., Deputy Attorneys General, for Plaintif f and Respondent.2

Counsel who argued in Supreme Court (not intended for publication with opinion): R. Clayton Seaman, Jr. P.O. Box 12008 Prescott, AZ 86304 (928) 776

- 9168
Peter Quon, Jr. Deputy Attorney General 110 West A Street, Suite 1100 San Diego, CA 92186

- 5266 (619) 645

- 2038