1

Filed 6/1/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S076337

v. )

)

EDWARD CHARLES III, )

) Orange County

Defendant and Appellant. ) Super. Ct. No. 94NF2611

____________________________________)

Defendant Edward Charles III was convicted at 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 the 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

STATEMENT OF FACTS

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 on the evening of November 6, 1994, defendant went 

to 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 choked 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. Defendant returned to his 

parents‘ house in the early morning hours of November 7, where he strangled his 

mother and beat his father to death with a blunt object. After cleaning up, he 

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 parking lot and set it on fire. He 

confessed his crime to his martial arts instructor, 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 inmate, 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 them.

The defense, in essence, was that defendant had neither the character 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 Sunny 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, Bernard Severino, 

did. His room was at the opposite 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, who 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 

defendant. About 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 awaiting Danny‘s call. 

Severino went to bed. 

Gina Simms lived on Lakeside Drive in Fullerton around the corner from 

the Charleses‘ house. About 9:30 p.m. on November 6, she was accompanying

her friend Susan Poladin and Poladin‘s daughter from her house to their car. As 

they walked down the 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 Simms‘s house to call the police but by the time the police arrived, the 

car was gone. At trial, the women 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 defendant 
4

drive before. Defendant told 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 gold Impala and a 

red Mustang, neither of which had a clutch. She also 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. and 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, went 

out to pick up the newspaper and saw defendant using a towel or a rag to rub the 

Charleses‘ 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. James 

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 Danny 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. 

Defendant left. 

According to Jeanne Bowen, defendant arrived at the Bowen residence 

about 7:00 p.m. At around 9:00 p.m., he asked Ty Bowen, Jeanne‘s son, to give 
5

him a ride to the Chevron station. Defendant had been driving Tiffany Bowen‘s 

truck, and it was at the residence, but Ty Bowen 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-tenths of a mile from El Camino High 

School in La Mirada where, 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 looked 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. 

An autopsy revealed that Danny had been stabbed twice in the back and 

was then either choked 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 force to fracture his skull. The cause of death was blunt force 

injury to the head. 

Edward‘s autopsy revealed that his chest, back, neck, and head had been

repeatedly struck, fracturing his ribs, spinal column, neck, jaw, cheek, 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 or 
6

a blow 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 industrial area in Fullerton looking for 

items to sell. She found a 30-gallon garbage pail that held clothes and a towel 

soaked with 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 for, 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 Dowell, a criminalist with the Los Angeles coroner‘s office 

whose 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. He 

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 symbol 

―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 Angeles County Sheriff‘s Sergeant Curt Royer, the lead investigator, 

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. 

Defendant 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. Defendant 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 hands or feet. At 
8

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 ―What‘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 right 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 reported the conversation. 

Axelson testified further that he and defendant had had a close relationship 

while defendant trained with him. Defendant 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 

were also negative; he thought that her smoking showed a lack of regard for his 

health. As to his father, Axelson testified there was ―no love there.‖ Defendant 

complained his father 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 10, 1994, Heidi Robbins, a serologist with the Los Angeles 

County Sheriff‘s Department crime lab, went to the Charleses‘ residence. Robbins 

took samples of blood she found at the entrance and in the foyer, and in the master 

bedroom on a nightstand, a computer, the headboard, the wall above the 
9

headboard, the mattress and the box spring. A pair of sparring gloves found in the 

dining 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 Edward‘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 

his blood. 

Sometime in late November, defendant 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 fiancée Tiffany Bowen was pregnant 

and defendant had his life to lead. 

On November 23, 1994, an agitated defendant asked to speak to one of his 

jailers at Orange County Jail, Deputy Sheriff Gene Hyatt. Defendant told Hyatt 

his grandfather had committed the murders. He told Hyatt that on the night of the 

murders his grandfather was upset because defendant‘s parents were bickering 

with Danny. Defendant said he left his parents‘ house before Danny did but 

returned around 11:30 p.m. Upon his return, he found a bloody ballpeen hammer 

in the kitchen, the bodies of the three victims in his parents‘ 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 grandfather, 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 inmate named Cezar Pincock approached 

Sergeant Royer with a letter Pincock claimed defendant had written to him. He 
10

offered the letter to Royer in exchange for Royer‘s help in two cases, one in which 

Pincock had been sentenced 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, with 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 an article in the newspaper on January 

3, 1995, that 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 pages 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 the 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 

could 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 did not admit killing his family. Defendant wrote he 

arrived at 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 said if I 
11

went to cops [sic], they would kill Tiffany [Bowen] and her family.‖ He described

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, poured gasoline in the trunk and inside the car and set it on fire. 

Elsewhere, he suggested it would ―look[] better‖ and deflect 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 proposed 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 thing 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 defendant 

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 

defendant, he told her not to do it. 
12

C. Defense Guilt Phase Case

Defendant called a number 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. William 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 police 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 murders. 

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, there 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 Orange County Jail, 

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, onto the shower floor. The inmate sustained injuries that required 

five stitches. A second deputy sheriff, James Gagen, testified that he searched 

defendant‘s cell and found two grinding disks, two hacksaw blades, and a nineinch piece of metal. 

C. Defense Case

Defendant called a number of witnesses who testified to his good 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 relationship with him, notwithstanding the crimes of which he had been 

convicted. Norman 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 that, 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 defendant‘s non-legal mail was inspected 

before it reached defendant. 

DISCUSSION

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 adoptive 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. 

Const., art. I, § 2, subd. (b); Evid. Code, § 1070) 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 violated 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 standards 

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 California Constitutions. To that extent, defendant‘s new constitutional 

arguments are not forfeited on appeal. [Citations.] 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 asserts 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 wrote 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 contents, 

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 letter. 

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 discovery of the bodies, the cleanup 

efforts and the attempted disposal of the bodies by burning them. These 

descriptions largely tallied with what defendant 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 

Saavedra obtained it. They stipulated further that the defense‘s handwriting 

 

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 exclude 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 defendant‘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, you 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 similarities 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 defense 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 there was no 

evidence defendant had given the letter to Pincock or anyone else. Defense 
17

counsel conceded, however, 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,‘ it 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 prejudice 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 to 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 the 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. [Citation.] 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 manifest 

miscarriage of justice.‖ ‘ ‖ (People v. DeHoyos (2013) 57 Cal.4th 79, 132.) 

Because the adoptive admission issue involved only the authorship of the 

letter, not its contents, we are concerned only with whether the trial court ruled 

correctly that defendant‘s conduct in response 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 normally would call for a response; 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 words‘ 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 415, 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 Saavedra did not directly ask defendant if he had written the letter, 

he showed him pages of the letter and queried him about it with language that 

plainly attributed the letter to defendant, e.g., ―You said here,‖ ―Well, you wrote 

here.‖ That defendant responded to Saavedra‘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 not 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 defendant heard and 

understood Saavedra was implicitly asserting defendant had authored the letter 

and, by responding to Saavedra‘s substantive questions regarding the contents of 

the letter, implicitly admitted authorship.

Moreover, in concluding defendant wrote the letter, the trial court did not 

rely solely on its conclusion defendant‘s conduct constituted an adoptive 

admission. The trial court also found the entire document had been written by a 

single person and implicitly found, as the prosecutor argued, that statements in the 

letter regarding the aftermath of the murders largely corroborated defendant‘s 

statements to Deputy Hyatt to which Hyatt had testified at an earlier evidentiary 

hearing.

We note further that at trial Kimberley Speare testified 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 party 
20

admissions. (Evid. Code, § 1220 [―Evidence of a statement is not made 

inadmissible 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 on 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 inadequate 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 that the copy Saavedra showed defendant 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 supports 

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 single person and in a single hand. The trial court concluded that 

person was defendant.

Third, defendant argues the letter did not constitute an adoptive admission 

because he did not admit he committed the crimes, 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 did not constitute a confession; his sole argument 
21

was that he did not write the letter at all.8 Accordingly, the argument is 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 authorship, and it did not abuse its discretion in admitting the letter into 

evidence.

Finally, defendant complains that Saavedra‘s invocation of the 

newsperson‘s shield law (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070) 

prevented him from properly challenging 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. 

Article I, section 2 of the California Constitution provides, as relevant to 

this case, 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 for communication to the public.‖ The constitutional provision is 

incorporated in the language of section 1070 of the Evidence Code. Termed ―the 

newsperson‘s shield law‖ (Delaney v. Superior Court (1990) 50 Cal.3d 785, 792), 

these provisions protect ―a newsperson 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 admission 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 yield 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 

nonconfidential, eyewitness observations of an occurrence in a public place.‖ 

(Delaney v. Superior Court, supra, 50 Cal.3d at p. 805.) We also set forth a 

number of factors to guide the trial court in balancing the interests of a criminal 

defendant seeking to overcome the immunity granted by the shield law with the 

newsperson‘s interests. Those factors are: (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. 810–811.) 

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 obtained 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 article 

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 Delaney factors, overruled the objection. Accordingly, 

the trial court was clearly 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 belying 

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. He 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 pretrial hearing. At oral argument, he directed us to two passages in the 

transcript of the hearing that he claims support his argument that invocation of the 

shield law thwarted his lawyer‘s cross-examination of Saavedra. Neither passage 

does so. The first 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 approached 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 means.‖ 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 defense 
24

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. Tellingly, Grossberg did 

not object when the question was asked at the first penalty trial. 

Finally, defendant 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 this 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 invocation 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 sentence. 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 

criminal 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 misconduct 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 misconduct 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 Pincock 
26

forged the letter. The argument is forfeited because defendant failed to make 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 aware 

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 argument—that Pincock forged the letter—

was rebutted by the prosecution‘s evidence, specifically Saavedra‘s testimony 

regarding his interview with defendant in which defendant implicitly 

acknowledged the letter was his and the testimony of defendant‘s former 

girlfriend, Kimberly 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 misconduct 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 

wrote the letter, ―[w]hen . . . the prosecution has doubts as to the truth of a 

statement it intends to present 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 present 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 committing 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. The defense did not, however, ask the jury be admonished 

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 either 

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 comment 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 impropriety here.

C. Instructions

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.‖ 

Defendant 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 first] claim affects defendant‘s substantial rights and therefore 

that we may address the claim on the merits despite defendant‘s failure to object at 
28

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 claim, 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 ―impermissibly 

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 

falsely, 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.‖ 

(CALJIC 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, such conduct is not sufficient by itself to prove 

guilt, and its weight and significance, if any, are matters for your consideration.‖ 

(CALJIC No. 2.06.) 
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 instruction pertained 

was improperly admitted and also because, as a cautionary instruction for his 

benefit, it should not have been given over his objection. He asserts the 

instruction ―focused the jury‘s attention on . . . the prosecution‘s highly improper 

yet highly influential letter from the informant.‖ 

Over defendant‘s objection, the jury was instructed 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 afforded 

him an opportunity to reply; two, failed to make a denial in the face of an 

accusation, expressly directed 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 circumstance 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 error to give the instruction. Defendant‘s remaining 
30

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 1166, 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 held ―a trial court must give CALJIC 

No. 2.71.5 only when the defendant requests it.‖ (Carter, at p. 1198, 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 specifically observed: ―Trial 

courts may certainly [give CALJIC 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 or 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‖ 

whether such admissions were made].) Moreover, as we held in People v. 

Richardson (2008) 43 Cal.4th 959, 1021, the court may do so even over a 

defendant‘s objection.

Given the letter was admitted into evidence and the jury would have to 

consider it, the trial court properly determined the instruction would guide the jury 

in assessing its evidentiary value, if any. Had the court not given the instruction, 

the jury might well have been left at sea regarding the relevance and significance 

of the letter. By implication, the trial court rejected defendant‘s argument that the 

instruction would be more prejudicial to him than beneficial to the jury. We 

conclude the trial court acted within its discretion in giving the instruction.
31

2. Penalty Phase Claims

A. Permitting 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 penalty 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 impaneled 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 for a term of life without the possibility of parole.‖ 

Preliminarily, 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, subdivision (b). Defendant‘s first penalty 

phase jury deadlocked, dividing 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 penalty 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 did 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 motion was granted, deadlocked,

also dividing 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 would 
32

have been only the second retrial of the penalty phase.10 Defendant 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 better‖ 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 motion, 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 constitutional 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 Attorney 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 the death penalty—34 out 

 

10 Thus, we do not reach, and express no opinion regarding, whether a fourth 

penalty trial could be granted 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 jury 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 

because ―[h]e is not going anywhere. He will either receive the death penalty or 

be in prison for the rest of his life.‖ On balance, 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 that 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, considered 

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 death 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 short, 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 overwhelming number of prior jurors had voted for death. We find 

no abuse of discretion in the court‘s ruling.
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, this was simply one of several 

factors the court 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 repeated or vexatious litigation.‖ Defendant 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. We 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 into section 190.4‘s abuse of discretion standard limitations from section 

1387. ―Section 1387 . . . establishes that two dismissals 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 have 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 particularly

important in the weighing process,‖ as if to suggest the 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 

circumstances here, neither a charge nor a special circumstance finding had been 
35

or would have been dismissed. Moreover, section 1387 was first enacted in 1872 

while section 190.4 was first enacted in 1978. Certainly, had the Legislature 

wished to import standards from the former statute into the latter it could have 

done so, but it did not. As 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 1387. 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 Regarding 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 his 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 victim impact evidence. 

Regarding defendant‘s second argument, we 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 cases

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 admission 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 admissible.‖ 

(Ibid.) Unlike Smith, defendant fails to explain to what aspect of his character 

testimony by family members regarding the death penalty would have applied. 

Trial 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 volumes about who the defendant is,‖ and was 

―reflective of the kind of person they saw [him] as.‖

Nevertheless, even 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 

testimony 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 a 
37

continuing relationship would 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 testimony 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 

addresses 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 does 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 731, 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, this claim, which does not implicate the validity of the death 

judgment itself, but a process which may or may not exist when defendant‘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 delay between his sentence and its execution 

attributable to the process of postconviction review violates the Eighth 

Amendment‘s proscription against cruel and unusual punishment as well as 
38

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

reconsider 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 conceivable 

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 raises a number of challenges to the death 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). (People 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 appropriate 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 (2002) 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 findings by the jury regarding aggravating 

factors. (Id. at pp. 724–725.)
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 defendant‘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 adjectives, such as ―extreme‖ and ―substantial,‖ 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 defendants are not similarly situated to noncapital 

defendants, California‘s death penalty law does not deny capital defendants equal 

protection by providing certain procedural protections to noncapital defendants 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 agree 

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 of errors occurring at his trial—

particularly the admission of the jailhouse letter, the instruction concerning motive 
40

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 infirmities of the death penalty statute—require reversal of his 

convictions and sentence. We have rejected all these claims of error with the sole 

exception of his argument regarding limitations on family member testimony at 

the penalty phase where, assuming error, we found no prejudice. Accordingly,

there is neither individual nor cumulative prejudice that requires reversal. 

CONCLUSION

The judgment is affirmed.

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, 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

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S076337

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 Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys 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 Plaintiff 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