1

Filed 8/2/12

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S035190

v. )

) 

ERIC CHRISTOPHER HOUSTON, )

) Napa County

Defendant and Appellant. ) Super. Ct. No. CR 14311

___________________________________)

A jury convicted defendant Eric Christopher Houston of the first degree murders of 

Robert Brens, Judy Davis, Beamon Hill, and Jason White (Pen. Code, §§ 187, subd. (a), 

189; further undesignated statutory references are to the Penal Code), and found true a

multiple-murder special-circumstance allegation (§ 190.2, subd. (a)(3)). The jury also 

convicted defendant of the attempted murders of Wayne Boggess, Patricia Collazo, 

Danita Gipson, Donald Graham, Thomas Hinojosai, John Kaze, Sergio Martinez, Jose 

Rodriguez, Rachel Scarberry, and Mireya Yanez (§§ 187, subd. (a), 664); and found true 

allegations that the attempted murders were willful, deliberate, and premeditated (§ 664); 

that defendant personally used a firearm in committing the murders and attempted 

murders (§ 12022.5); and that, except as to Graham, defendant personally inflicted great 

bodily injury in committing the attempted murders (§ 12022.7). The jury further 

convicted defendant of assault with a firearm on Joshua Hendrickson, Bee Moua, and 

Tracy Young (§ 245, subd. (a)(2)), and false imprisonment for the purpose of protection 

from arrest (§ 210.5). After a sanity trial, the jury found defendant to be sane; after a
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penalty phase, the jury returned a verdict of death. The trial court denied defendant‟s 

motion to dismiss the special circumstance finding and the automatic motion to modify 

the penalty verdict (§ 190.4, subd. (e)), and sentenced him to death on the murder counts, 

life imprisonment on the attempted murder counts, and a determinate sentence on the 

remaining counts and enhancements.

Appeal to this court is automatic. (§ 1239, subd. (b).) We affirm the judgment.

I.

A. Guilt Phase

On May 1, 1992, while armed with a shotgun and a rifle, defendant entered the high 

school he had last attended in 1989, shot and killed four people, and wounded several 

others. Defendant then held approximately 80 to 90 students hostage for about eight 

hours before surrendering. Defendant attacked the school because one of his former 

teachers had given him a failing grade, which, according to defendant, caused him to not 

graduate and to lose his job, and also caused his girlfriend to leave him. At trial, 

defendant also accused this former teacher of having molested him.

1. Prosecution Evidence

In early 1992, defendant on several occasions told his best friend, David Rewerts, 

that he would like to go to Lindhurst High School and shoot a couple of people. 

Defendant read to Rewerts passages from a book on military tactics and police 

procedures. Defendant owned a shotgun, two .22-caliber semiautomatic rifles, and 

another firearm. Rewerts had gone target shooting with defendant. According to 

Rewerts, defendant could cock his pump-action shotgun with one arm.

Defendant lived with his mother and older half brother. On the morning of May 1, 

1992, defendant waited outside his home for the mail carrier to deliver his unemployment 

check and left after the check arrived. Between 11 a.m. and 1 p.m., defendant went to 

three different stores looking for a specific type of shotgun ammunition, and he 
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ultimately purchased No. 4 buckshot ammunition for a shotgun, .22-caliber ammunition, 

and an ammunition pouch. A clerk testified that defendant had a shopping list with him.

Although the precise sequence of the day‟s events is somewhat unclear, about 1:50 

p.m., a teacher at Lindhurst High School saw someone, later identified as defendant, 

walking “with a determined stride” toward building C. Defendant wore a camouflage 

vest with pockets full of shotgun shells, two bandoliers full of ammunition, and a full 

ammunition belt. He carried a 12-gauge shotgun, had slung over his back a .22-caliber 

rifle with the butt sawed off, and wore a canteen on his belt. The teacher asked defendant 

if he had a permit for the shotgun he was carrying. He looked at her, did not respond, and 

continued walking toward the building. 

Defendant entered building C, walked into classroom C-108, pointed his shotgun at 

Rachel Scarberry, a student, and shot her in the chest. Defendant then shot Robert Brens, 

a teacher, who ultimately died of chest wounds. Defendant walked towards Brens‟s 

fallen body, turned around, and shot student Judy Davis in the face and upper chest, 

killing her. Defendant then shot at Thomas Hinojosai, a student, as he dove away; the 

blast hit him in the ear and the shoulder. Tracy Young, a student, dove to the floor after 

defendant‟s first shot, but was hit in the foot by one of the shots.

Defendant left the classroom, continued down the hallway, and fired three times into

classroom C-105, injuring three students: Jose Rodriguez was struck in the feet; Patricia 

Collazo was struck in the right knee; and Mireya Yanez was struck in the knees. 

Defendant then went to the doorway of classroom C-107 and shot and killed Jason White, 

a student. Defendant at some point passed by classroom C-109, saw student Sergio 

Martinez hiding in the corner, and shot at him. Martinez attempted to move away but 

was hit in the left arm.

At some point during the shootings, Joshua Hendrickson, a student in classroom 

C-204 on the second floor, heard the shots, left the classroom, looked over the railing, 
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and saw defendant on the first floor. Defendant saw Hendrickson and shot at him. 

Hendrickson retreated into the classroom.

Around this time, Danita Gipson, a student in classroom C-110, heard the shots and 

left the classroom to investigate. John Kaze, a substitute teacher, followed her. Gipson 

walked down the hallway and saw defendant. Defendant saw Gipson and aimed at her. 

She attempted to run away but was shot in the buttocks. Gipson fell to the ground, got 

up, and then ran back to classroom C-110. Defendant walked toward Kaze with “a slight 

smile on his face and a spring to his step.” Kaze attempted to return to classroom C-110, 

but before he could do so, defendant shot him in the face, shoulder, and neck. Kaze 

retreated into the classroom. Wayne Boggess, a student in classroom C-110, started to 

leave the classroom but failed to respond to a cry for everyone to get down and instead 

stood in the doorway as if “in a daze.” Defendant shot Boggess in the face. Defendant 

then walked toward classroom C-102.

The teacher in classroom C-102 heard the shots, went to the hallway, and yelled to 

Donald Graham, the teacher in classroom C-101, “911. Man with a gun. Shots fired.” 

Graham leaned out the doorway and asked the other teacher to repeat himself. Defendant 

shot at Graham and hit him in the forearm, and Graham retreated into classroom C-101. 

Defendant reloaded, went to classroom C-102, and made eye contact with a female 

student inside. Beamon Hill, another student in the classroom, yelled, “No,” and pushed 

her to the floor. Defendant shot Hill in the head, killing him, and walked away.

At some point during the shootings, Bee Moua, a student in classroom C-104, tried 

to leave the room. As Moua was getting up from his desk, defendant fired two shots into 

the classroom from the hallway. Moua and the other students in the room dropped to the 

floor and stayed there.

Defendant headed up a stairway, entered classroom C-204, told the teacher to leave, 

and ordered the approximately 24 students to get to one side of the room. Defendant 

ordered the students to barricade the doorway with a bookshelf. At defendant‟s 
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command, a student went to classroom C-104 and told the students in that room to join 

the others in classroom C-204, promising that if they did, defendant would not shoot 

them. They complied. Students hiding in the library and other classrooms were similarly 

ordered to classroom C-204. The teachers were ordered to leave the building. Eventually 

there were 80 to 90 students in classroom C-204. Defendant assigned four to six students 

to different positions in the building to act as lookouts.

Using the school‟s intercom system, defendant contacted law enforcement personnel 

and threatened to shoot people if the school bells were not turned off. Defendant told law 

enforcement personnel that Brens had flunked him and that he had been fired from his 

job because he did not have a high school diploma. Defendant made similar statements 

to the students in the room, saying Brens had “ruined his life” and he was going to make 

Brens “pay.” Defendant also said his girlfriend had left him. Defendant blamed Brens 

and the school system, and wanted to “make a point” and ensure that other teachers did 

not repeat this mistake.

Defendant told the students he had previously reconnoitered the school. Defendant 

also said he had placed gasoline around the building and would ignite it if his plan did not 

work. Defendant told the students that he had studied police tactics as well as the Penal 

Code, so he was aware of the potential sentence he faced. 

Defendant sent a student to retrieve a radio. Defendant appeared relieved when the 

radio newscast announced no one had been killed, but he appeared surprised when it 

reported that he had shot people. Defendant later admitted that he had shot Brens “in the 

ass,” and then smiled. Defendant told the students he had not intended to kill anyone.

Defendant asked the students if they had to use the restroom, and many responded 

that they did. Defendant allowed the students to go downstairs to the restroom in pairs, 

threatening to kill everyone in the classroom if they did not return. The second pair of 

students sent to the restroom did not return. A third student was sent to look for the pair,

but he did not return either.
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Later in the afternoon, law enforcement personnel delivered to classroom C-204 a 

portable telephone system, which permitted them to monitor and record the sounds in the 

classroom even when the device was not in use. Law enforcement personnel recorded 

the hostage situation, and the jury later listened to the audiotapes. 

At some point, defendant demanded that law enforcement personnel deliver a key to 

the faculty restroom, which could be seen from the classroom, and threatened to kill 

people if it was not delivered in a timely manner. Defendant later fired a warning shot, 

shattering a library window. After law enforcement personnel delivered the key, 

defendant allowed the students to go to the faculty restroom in pairs, again threatening to 

kill everyone in the classroom if they did not return. Two pairs of students who left to 

use the restroom did not return.

Hendrickson told defendant that he was not feeling well and was allowed to leave.

Defendant also released a student who was crying hysterically and another who claimed 

to be pregnant. A short while later, defendant released 10 to 15 more hostages as a sign 

of good faith. At law enforcement personnel‟s request, the remaining students wrote

their names and telephone numbers on a piece of paper so that their parents could be 

informed. As the students became hungry, defendant released 15 to 30 hostages in 

exchange for pizza, soda, and some ibuprofen for the students complaining of headaches.

Defendant asked law enforcement personnel about the condition of the people he 

had shot. They lied and said no one had been killed. Defendant inquired whether he

could receive a light sentence and sought assurances that they would not “double-cross 

him.” At defendant‟s insistence, law enforcement personnel sent him a purported 

contract guaranteeing that he would serve no more than five years in a minimum security 

facility that had education and employment opportunities. Representatives of the Yuba 

City Police Department and Yuba County Sheriff‟s Department had signed the document.

Sixteen of the hostages also signed the document as witnesses.
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Defendant eventually released the remaining students, with the final group leaving

at about 10 p.m. Defendant then left his weapons, ammunition, and a pair of thumb cuffs 

in the classroom, left the building, and was taken into custody. 

At some point during the hostage situation, law enforcement personnel obtained 

consent from defendant‟s mother to search defendant‟s bedroom in her house and 

recovered a handwritten supply list, which included quantities of ammunition, lighter 

fluid, and a rifle sling. They also recovered empty ammunition boxes, including boxes 

for No. 4 buckshot for a shotgun and a handwritten note addressed “to my family,” which 

read in part, “I know parenting had nothing to do with what [happens] today. It [seems] 

my sanity has slipped away and evil [took its] place. The mistakes the loneliness and the 

failure have built up [too] high. Also I just want to say I love my family very very 

much.” Officers, pursuant to a search warrant, later recovered additional papers, 

including one captioned “Mission Profile” consisting of a hand-drawn diagram of 

building C. Officers recovered pieces of a torn-up sheet of paper, on which had been 

handwritten in part, “What I did today at the school . . . . [¶] [I‟ve] been [fascinated] 

with weapons and death . . . . [S]et on killing. [¶] My [hatred toward] humanity forced 

me . . . what I did.” Officers also found two magazines that focused on law enforcement 

weapons and tactics and a copy of an abridged version of the Penal Code. Police 

recovered the sawed-off butt of defendant‟s .22-caliber rifle.

Defendant‟s vehicle was discovered parked directly in front of building C. Inside 

the vehicle was a book entitled Modern Law Enforcement Weapons and Tactics. Text in 

portions of the book concerning lethal shotgun ammunition had been circled or 

underlined, and the first page of a chapter entitled Special Weapons and Tactics had been 

turned down.

Defendant submitted to a videotaped interrogation, which the jury later watched. 

After being advised of his rights under Miranda v. Arizona (1966) 384 U.S. 436 and 

waiving them, defendant said he did not decide to commit the shootings until the teacher 
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asked him about having a gun permit. Defendant acknowledged he had created a 

shopping list and drawn up plans, but claimed he did not intend to go through with them. 

Defendant also admitted he had visited the school a few weeks before and had sawed off 

the butt of the .22-caliber rifle before the shootings to make it more maneuverable. 

Defendant said he intended to “wing[] a couple of people” to get the media‟s attention, 

but not to kill anyone. Defendant insisted he used No. 4 buckshot, rather than less lethal 

ammunition, because that was what he used when he went target shooting. Defendant 

described the assault and said that once he went upstairs he realized what he was doing 

was wrong.

Autopsies revealed Brens, Davis, Hill, and White were all killed by multiple shots 

of No. 4 buckshot that caused extensive external and internal injuries. A sheriff‟s deputy 

testified that No. 4 buckshot contained approximately 24 projectiles per shell and 

described them as “[antipersonnel] type rounds” with “devastating” impact power. The 

diameter of the spread of multiprojectile ammunition fired from a shotgun expanded 

approximately one inch for every yard traveled.

2. Defense Evidence

Defendant called as witnesses four of the students whom he had taken hostage. 

They testified that defendant had said he did not know he had killed anyone, was not 

“aiming to kill anybody,” and did not want any of the injured students to die. Defendant

expressed shock at his actions and apologized to the final four hostages.

Defendant‟s half brother, Ronald Caddell, testified about their experiences together. 

Caddell explained defendant had been fascinated with military equipment and firearms 

since the age of 12 or 13. Defendant often practiced shooting, and they had gone target 

shooting together two or three times. Defendant worked for a temporary agency that had 

a contract with Hewlett-Packard, but his contract had expired a few months before the 

shootings. Defendant could have obtained a job at Hewlett-Packard if he had had a high 
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school diploma or equivalency certificate. Caddell had argued with defendant about his 

not looking for work. In the weeks leading up to the shootings, defendant ate little, 

stayed up late, and was heard handling his firearms. Caddell and defendant were fans of 

action movies, especially The Terminator (Hemdale Film Corp., 1984).

C. Jess Groesbeck, an associate professor at the University of California, Davis 

Medical School (UC Davis Medical School) who was board certified in psychiatry, 

psychoanalysis, and forensic psychiatry, evaluated defendant. Dr. Groesbeck reviewed 

the police reports, other doctors‟ reports, and defendant‟s medical and school records. He 

also interviewed defendant on different occasions. In his testimony, Dr. Groesbeck 

described several traumatic events in defendant‟s family: His mother had been abused by 

several family members; a maternal uncle had killed three people in a fight; his maternal 

grandmother had committed suicide; and his father, who was an alcoholic, had 

abandoned the family when defendant was a young child. According to Dr. Groesbeck, 

defendant suffered from spinal meningitis and severe asthma as an infant. As a child, 

defendant had problems learning in school, paying attention, and controlling his 

behavior; he had been classified as “learning handicapped.” Defendant‟s IQ had dropped 

from 95 to 84 around the age of 16. Defendant had twice attempted to commit suicide, 

once in 1988 and once while in custody awaiting trial.

Dr. Groesbeck noted defendant felt guilty about “quasi-homosexual seeking 

behavior” he had with Rewerts, his best friend. As a young child, defendant had been 

photographed wearing a dress, which, in Dr. Groesbeck‟s opinion, contributed to 

defendant‟s sexual identity confusion and caused his fascination with firearms. 

Dr. Groesbeck related defendant‟s claim that Brens, the teacher he shot and killed, had 

molested him at least twice in 1989. 

Dr. Groesbeck diagnosed defendant as suffering from “organic brain syndrome,” 

that is, chronic, permanent brain damage. According to Dr. Groesbeck, defendant also 

suffered from “a developmental disorder, as well as a hyperactivity syndrome, which he 
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had as a child, most likely.” Dr. Groesbeck also diagnosed defendant as suffering from 

dependent personality disorder, as well as borderline personality disorder, manifested by 

extreme mood swings, and suggested that defendant‟s contact with reality was unstable. 

Dr. Groesbeck further diagnosed defendant as suffering from post-traumatic stress 

disorder (PTSD), which could have been caused by having been molested. 

Dr. Groesbeck suggested defendant had a dissociative reaction to the shootings and 

screened out the memories or did not see himself as involved in what happened.

In Dr. Groesbeck‟s opinion, defendant also suffered from psychotic 

schizophreniform disorder, “the most serious of all mental illnesses,” in which the mind 

“literally disorganizes at all levels.” During the shootings, Dr. Groesbeck believed 

defendant was “dissociated, [detached], living in an unreal world,” and identifying with 

the self-sacrificing protagonists in his favorite action movies. Dr. Groesbeck 

characterized defendant‟s preshooting writings as examples of his internal struggles 

overwhelming his ability to maintain contact with reality.

Helaine Rubinstein, Dr. Groesbeck‟s associate and a psychologist who specialized 

in neuropsychology and diagnosing and treating mental disorders of youth, also evaluated 

defendant. Dr. Rubinstein reviewed police reports, defendant‟s medical and school 

records, some of his writings, interviews of his mother and brother, his interrogation by 

the police, and the audiotapes of the hostage situation. She also spent about 50 hours 

interviewing him and administering tests. Dr. Rubinstein found defendant to be 

significantly disoriented, dissociative, delusional, and suffering from auditory and visual 

hallucinations.

Dr. Rubinstein diagnosed defendant as suffering from “Specific Developmental 

Disorder, Not Otherwise Specified, Chronic,” specifically, brain damage on the left 

hemisphere that impaired his ability to understand orally conveyed information. Such a 

disorder could be the result of physical abuse or a childhood illness such as spinal 

meningitis. Dr. Rubinstein also diagnosed defendant as suffering from “Attention 
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Deficits, Hyperactivity Disorder, Residual Phase,” that is, childhood hyperactivity 

marked by an inability to concentrate. Dr. Rubinstein agreed with Dr. Groesbeck that 

defendant suffered from PTSD, which she opined was caused by his claimed molestation, 

and explained that his inability to recall certain facts of the shootings was consistent with 

PTSD. Like Dr. Groesbeck, Dr. Rubinstein diagnosed defendant as suffering from a 

paranoid type of a schizophreniform disorder. In Dr. Rubinstein‟s opinion, the onset of 

defendant‟s disorder occurred approximately a month before the shootings and had 

escalated since then.

Dr. Rubinstein also detected that defendant had a “Savior Syndrome,” which is a 

delusion of grandeur involving the belief that he was a special servant of a higher power. 

Defendant had told Dr. Rubinstein that he intended to take Brens hostage and disclose all 

the wrongdoings of the school system.

Defendant‟s friend, Ricardo Borom, testified that in 1989, defendant had told him 

that he had permitted a high school teacher named Robert to fondle him and then orally 

copulate him in exchange for a passing grade.

3. Prosecution Rebuttal Evidence

Rewerts, defendant‟s best friend, admitted that they had had sexual contact once in 

1991. Rewerts and defendant were very close and discussed sexual matters, but 

defendant never told Rewerts about Brens‟s claimed acts of molestation. On crossexamination, Rewerts admitted defendant and he at one point had had a falling out 

because defendant had started to date an ex-girlfriend of Rewerts‟s, and Rewerts wanted 

to have an exclusive sexual relationship with defendant.

Lindhurst High School‟s records indicated that during his senior year (1988-1989) 

defendant had taken two classes taught by Brens: civics and economics. Defendant 

passed civics but failed economics. Following his senior year, defendant attended a 
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summer school session for nongraduating seniors and again failed economics; Brens did 

not teach the summer school class.

B. Sanity Trial

1. Defense Evidence

Dr. Groesbeck reviewed his notes from his interviews of defendant, defendant‟s 

interrogation by the police, another doctor‟s report, and a number of other documents, 

and interviewed defendant two more times. Dr. Groesbeck reaffirmed his opinion that 

defendant suffered from permanent brain damage, a developmental disorder, 

hyperactivity syndrome, dependent personality disorder, borderline personality disorder, 

PTSD, and psychotic schizophreniform disorder. According to Dr. Groesbeck, testing 

indicated that defendant was detached and suffered from diminished ability to abstract, 

conflicted feelings, and poor impulse control. He also suffered from hallucinations that 

would command him to do unrealistic things. Dr. Groesbeck said his diagnosis would 

have remained the same even assuming defendant had fabricated the molestation 

allegations. Although defendant had told the hostages that Brens had flunked him, 

Dr. Groesbeck thought defendant‟s failure to also mention the molestations to them did

not indicate that he had made up the allegations.

In Dr. Groesbeck‟s opinion, defendant was aware of the nature and quality of his 

acts during the shootings, and his awareness grew during the hostage situation.

Dr. Groesbeck testified, however, that defendant was in a dissociated, depersonalized 

state and was not capable of distinguishing right from wrong.

2. Prosecution Evidence

Captane Thomson, a clinical professor at UC Davis Medical School who is board 

certified in psychiatry and forensic psychiatry, also interviewed defendant. After 

reviewing Dr. Groesbeck‟s and Dr. Rubinstein‟s testimony, defendant‟s medical and 

school reports, and interviews of defendant‟s family members, Dr. Thomson disagreed
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that defendant suffered from schizophreniform psychosis. He believed defendant‟s 

symptoms were indicative of a mood disorder such as psychotic depression.

In Dr. Thomson‟s opinion, at the time of the crimes, defendant understood the 

nature and quality of his acts, and knew what he did was legally and morally wrong. 

Dr. Thomson explained that even a psychotic person may understand the nature and 

quality of his or her actions. Dr. Thomson believed defendant‟s preshooting writings 

were evidence that he was planning to do something he knew was both legally and 

morally wrong.

Charles Schaffer, a board-certified psychiatrist and former professor at UC Davis 

Medical School, interviewed defendant and reviewed the police reports and materials, 

interviews of witnesses, defendant‟s psychiatric and medical records, and his 

psychological test results. He diagnosed defendant as suffering from major depression 

with psychotic features and possibly bipolar disorder. Dr. Schaffer believed defendant 

also probably suffered from an unspecified personality disorder. Dr. Schaffer noted 

defendant showed symptoms of PTSD and possible caffeine intoxication on the day of 

the shootings based upon defendant‟s claim that he had taken eight or nine caffeine pills 

and drunk four or five cups of coffee before the shootings. In Dr. Schaffer‟s opinion, 

during the shootings defendant was capable of understanding the nature and quality of his 

acts and could distinguish right from wrong. Dr. Schaffer did not diagnose defendant as 

suffering from a schizophrenic disorder, but even assuming that diagnosis was correct, 

Dr. Schaffer said it would not alter his opinion that defendant understood the nature and 

quality of his acts and was able to distinguish right from wrong.
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C. Penalty Phase

1. Prosecution Evidence

The prosecutor introduced into evidence seven photographs taken during the four 

autopsies. The jury also viewed a videotape, played without sound but narrated by a 

detective, that depicted the crime scene; it included images of the four dead bodies.

2. Defense Evidence

During the penalty phase, defendant‟s mother testified about his difficult 

upbringing. His former supervisor testified about his excellent work habits. Defendant 

testified about the shootings and his relationship with Brens, the teacher he killed.

Defendant‟s mother, Edith Houston, testified about his physical illnesses as a child, 

the breakup of her marriage, his social and mental problems, and his difficulties in 

school. Defendant had an older sister as well as an older half brother, Caddell, from 

Edith‟s prior marriage. As a child, defendant suffered from encephalitis or meningitis 

and severe pneumonia, which delayed his development. Defendant‟s father drank and 

was unfaithful, and he and Edith fought. When defendant was a year old, his father left 

and thereafter visited only infrequently. Edith had suicidal thoughts.

Defendant did not do well in school. Defendant‟s elementary school classified him 

as a “slow learner” and placed him in special classes. Defendant continued in special 

education classes during junior high and high school.

During high school, Edith had difficulty controlling defendant, so she sent him to 

live with his father and stepmother in Arkansas. Defendant soon begged to return, 

claiming his father was very strict with him and was drinking and “into a lot of heavy 

drugs.”

During high school, defendant attempted to commit suicide. But he also talked 

other students out of committing suicide.

After leaving high school, defendant attempted to work. Donna Mickel, defendant‟s 

supervisor at Hewlett-Packard, testified she considered defendant an ideal employee 
15

whom she wanted to hire after his contract had expired. According to Edith, defendant 

started to change after his contract at Hewlett-Packard ended. He spent much of his time 

alone; he was depressed and quick to start an argument.

Defendant drank some and had tried marijuana, and Edith thought he had tried other 

drugs. Defendant had no prior trouble with law enforcement.

Edith described defendant as shy, not comfortable in groups of people, and more 

comfortable with children than with people his own age. Other than perhaps occasionally 

hitting his sister, defendant was not violent and did not pick on other people.

Edith loved defendant and wanted him to live. Defendant was artistic, and Edith 

believed he could contribute to society by creating works of art. Defendant expressed to 

Edith remorse for the problems he had caused his family.

Defendant testified about his childhood and upbringing. In particular, he testified 

that during the second semester of his junior year, Brens was his United States history 

teacher. His relationship with Brens was “pretty good,” but they did get into some 

arguments. Defendant said Brens sometimes had “snotty attitudes” but was “pretty 

professional” and a “good teacher.”

In his senior year, defendant took Brens‟s economics class. According to defendant, 

there were some out-of-control students who agitated Brens, who in turn took out his 

frustrations on the rest of the class. In December or January of his senior year, defendant 

went to talk to Brens about a paper for the class. While they were alone, defendant 

claimed, Brens rubbed his hands on the crotch of defendant‟s pants. Defendant did not 

report the incident. After that, defendant and Brens had some arguments. Toward the 

end of the school year, defendant again went to talk to Brens about a paper. Defendant 

claimed that while he and Brens were alone in the classroom, Brens reached into his 

pants, grabbed his penis, and twisted it, causing excruciating pain.

Defendant said he felt unable to report these incidents, and he believed that if he had 

done so, Brens would not have gotten in trouble. Although Borom, defendant‟s friend, 
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testified that defendant told him that a teacher named Robert had orally copulated him, 

defendant could not recall either the incident or telling Borom about it because, he said, 

he was intoxicated while talking to Borom.

After these incidents, Brens rebuffed defendant‟s attempt to discuss his failing 

grade. Brens failed defendant, and he did not graduate. Defendant attempted to retake 

the class during summer school but said he failed due to the “mental strain of the 

molestation.”

Defendant testified that he was “laid off” in early 1992 because he lacked a high 

school diploma and that he did not understand why a diploma was required for his job. 

During the month leading up to the shootings, defendant‟s thoughts were “very 

distorted.” When both awake and asleep, defendant heard Brens‟s voice. When 

defendant was asleep, he would see people laughing at him and hear people telling him to 

go to the high school.

Defendant said that although he drew up his plans a few days before the shootings, 

he did not intend to go through with it until he heard voices nagging him to go to the high 

school. Defendant admitted that the night before the shootings, he sawed off the stock of 

the .22-caliber rifle to “make it smaller and more versatile.”

Defendant recounted the events on the day of the shootings. Throughout the day, he 

heard voices encouraging him. Defendant claimed he did not intend to shoot people but 

rather “just start blowing stuff up.” By the time he entered the second story of the school, 

the voices in defendant‟s head were silent.

Since his incarceration, defendant continued to have auditory and visual 

hallucinations. Medication lessened the hallucinations.

Defendant expressed remorse for his actions. He apologized to the living victims 

and to the families of those who had died. Defendant did not see a value in his execution

but felt a fair punishment would be whatever the victims‟ families wanted.
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II.

A. Pretrial Claims

1. Composition and Conduct of the Grand Jury

Defendant contends that his September 15, 1992 indictment was defective because 

the grand jury members were selected with “constitutionally impermissible methods” and 

its proceedings were “prejudicially flawed.” Before the start of his trial, defendant 

moved to set aside the indictment, asserting four distinct challenges, all of which the trial 

court rejected. On appeal, defendant renews three of these challenges, which we address 

in turn below.

As preface to our discussion, we note that in these claims and most others on appeal, 

defendant contends that the asserted error or misconduct he raises infringed his state and 

federal constitutional rights to a fair and reliable trial. What we stated in People v. Boyer

(2006) 38 Cal.4th 412, 441, footnote 17 (Boyer), applies in the present case: “In most 

instances, insofar as defendant raised the issue at all in the trial court, he failed explicitly 

to make some or all of the constitutional arguments he now advances. In each instance, 

unless otherwise indicated, it appears that either (1) the appellate claim is of a kind (e.g., 

failure to instruct sua sponte; erroneous instruction affecting defendant‟s substantial 

rights) that required no trial court action by the defendant to preserve it, or (2) the new 

arguments do not invoke facts or legal standards different from those the trial court itself 

was asked to apply, but merely assert that the trial court‟s act or omission, insofar as 

wrong for the reasons actually presented to that court, had the additional legal 

consequence of violating the Constitution. To that extent, defendant‟s new constitutional 

arguments are not forfeited on appeal. [Citations.] [¶] In the latter instance, of course, 

rejection, on the merits, of a claim that the trial court erred on the issue actually before 

that court necessarily leads to rejection of the newly applied constitutional „gloss‟ as well.
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No separate constitutional discussion is required in such cases, and we therefore provide 

none.” (Italics in original.)

a. Failure to maintain a record of the entire grand jury proceedings

Defendant contends that the transcript of the grand jury proceedings is incomplete 

and therefore violated his statutory right to have all proceedings in his death penalty case 

conducted with a court reporter present. (§ 190.9, subd. (a)(1) [in any case in which the 

death penalty may be imposed, “all proceedings” must be conducted on the record with a 

court reporter present].) The record indicates that four times during the grand jury‟s 

proceedings, the prosecutor went “off the record” by requesting that the court reporter not 

transcribe the proceedings. These instances occurred during the prosecutor‟s opening 

statement, during his closing argument, during a recess in which a juror‟s unspecified 

question was addressed, and during a discussion that occurred after a witness finished 

testifying.

The Attorney General concedes that some of the grand jury proceedings were 

improperly conducted without a court reporter present. The parties disagree, however, on 

whether a showing of prejudice is necessary for us to reverse the judgment based on this 

error. Defendant relies on Dustin v. Superior Court (2002) 99 Cal.App.4th 1311 

(Dustin), in which the prosecutor ordered the court reporter to leave the grand jury room 

during his opening statement and closing argument. Based on this irregularity, the 

defendant filed a pretrial motion to dismiss the indictment. When the trial court denied 

the motion, the defendant filed a petition for a writ of mandate in the Court of Appeal. 

The Court of Appeal, citing section 190.9, agreed that the defendant was entitled to have 

these remarks transcribed. (Id. at pp. 1321-1323.) The court presumed that the defendant 

was prejudiced by this omission from the transcript, granted the defendant‟s mandate 

petition, and directed the trial court to dismiss the indictment without prejudice to the 
19

filing of a complaint or another indictment. (Id. at pp. 1325-1328.) The Attorney 

General contends that Dustin was incorrectly decided.

We need not address the Attorney General‟s concerns about Dustin because 

defendant‟s reliance on it is misplaced. In People v. Booker (2011) 51 Cal.4th 141 

(Booker), which was, like this case, an automatic appeal from a death judgment, we 

rejected a complaint about an irregularity that occurred during the grand jury 

proceedings. We explained that postconviction challenges to irregularities during grand 

jury proceedings are generally reviewed for prejudice. (Id. at p. 156.) In contrast, 

pretrial challenges to grand jury proceedings, such as those raised by way of a petition for 

writ of mandate filed before trial, may warrant relief without a showing of prejudice. 

(Ibid.; Dustin, supra, 99 Cal.App.4th at pp. 1325-1326.) As the Attorney General notes, 

Dustin involved a pretrial challenge to the grand jury proceedings. Because defendant 

here did not seek pretrial relief in the Court of Appeal for the denial of his motion to set 

aside the indictment, he is entitled to a postconviction reversal only if the error prejudiced 

him.

Assuming the failure to transcribe all of the grand jury proceedings implicated 

defendant‟s federal constitutional rights, he is entitled to relief unless the prosecution can 

show beyond a reasonable doubt that the irregularity did not affect the outcome of the

trial. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); see Booker, supra, 

51 Cal.4th at p. 158.) We conclude defendant here is not entitled to relief because the 

record shows that the evidence presented to the grand jury was sufficient to support an 

indictment and because defendant “has failed to identify anything other than mere 

speculation to support his contention that he has suffered prejudice, i.e., that the grand 

jury‟s decision to indict may have been in some way influenced by the alleged unreported 

communications.” (People v. Bennett (2009) 45 Cal.4th 577, 591-592; cf. Vasquez v. 

Hillery (1986) 474 U.S. 254 [racial animus may have affected grand jury‟s decision 

whether and how to charge the defendant].)
20

b. Failure to provide requested evidence

Section 939.7 provides, in pertinent part, that when the grand jury “has reason to 

believe that other evidence within its reach will explain away the charge, it shall order the 

evidence to be produced, and for that purpose may require the district attorney to issue 

process for the witnesses.” Defendant contends that the prosecutor violated section 939.7 

by refusing to provide the grand jury with evidence it requested. As we explain, 

defendant‟s contention lacks merit.

As noted, law enforcement personnel videotaped defendant‟s interrogation and 

made audiotapes of the hostage situation. During the proceedings, the prosecutor 

indicated to the grand jury that one or more jurors had asked if they would be able to 

review the audio and video recordings. The prosecutor explained to the grand jury that 

the recordings were obtainable, but that he did not intend to present them. The 

prosecutor added, “However, if the jury so wishes, then we will do that.” He then 

suggested that the grand jury meet outside the presence of the prosecution to discuss 

whether it needed any additional evidence. The prosecutor expressly said, “[I]f you feel 

you need more evidence . . . we‟re willing to serve whatever the needs of the [grand jury] 

feels are necessary.” The grand jury, however, at no time actually asked the prosecutor to 

present the recordings. The prosecutor, therefore, did not violate section 939.7 by not 

presenting them.

Defendant nonetheless contends that the prosecutor‟s statements dissuaded the 

grand jury from requesting the evidence and improperly implied that the recordings had 

no exculpatory value. We are not persuaded that the statements had such an effect. The 

grand jury was aware that it had the authority to request additional evidence and that the 

prosecutor was willing to produce the recordings if requested. Hence, defendant suffered 

no prejudice. (See Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1029-1034 

[prosecutor did not mislead the grand jury into believing it could not request additional 

evidence].) In addition, defendant has failed to identify anything other than speculation 
21

that, had the grand jury considered the recordings, they would have affected its decision 

to indict.

c. Underrepresentation of minorities on the grand jury

Defendant contends that the grand jury that indicted him was not a “fair crosssection” of the community because it did not contain anyone from the African American, 

Native American, Asian Indian, or Hmong communities, all of which, according to 

defendant, comprised a substantial portion of Yuba County. Although defendant 

successfully moved to have his cased tried in Napa County, he committed his crimes in 

Yuba County and was indicted there.

This underrepresentation in Yuba County, defendant contends, violated his right to 

an impartial jury under the Sixth Amendment to the federal Constitution and article I, 

section 16 of the California Constitution. Defendant relies upon the rule that a violation 

of the requirement that a petit jury be drawn from a fair cross-section of the population is 

established by showing “(1) that the group alleged to be excluded is a „distinctive‟ group 

in the community; (2) that the representation of this group in the venires from which 

juries are selected is not fair and reasonable in relation to the number of such persons in 

the community; and (3) that this underrepresentation is due to systematic exclusion of the 

group in the jury-selection process.” (Duren v. Missouri (1979) 439 U.S. 357, 364.)

In support of his motion in the trial court, defendant introduced evidence that 

African Americans constituted 4.2 percent of the population of Yuba County, Native 

Americans constituted 2.9 percent, Asian Indians constituted 0.7 percent, and Hmongs 

constituted 3.7 percent, whereas Whites accounted for 78.2 percent of the population. 

The Superior Court for Yuba County had no data regarding the racial or ethnic identity of 

its grand jury venire members. The grand jurors served for a term of one year, with their 

term of service starting on July 1, and the parties stipulated that an Asian American 
22

served on the 1989-1990 grand jury and that an Asian American and two African 

Americans served on the 1986-1987 grand jury.

Bonita Marqua, the jury commissioner who presided over the selection of the grand 

jury that indicted defendant, explained how grand jurors were selected in Yuba County. 

The Superior Court randomly selected approximately 10,000 people from DMV and 

voter registration records, and sent juror questionnaires that were to be returned to the 

court. The grand jury venire was created from those who responded. Returned responses 

were randomly selected and then added to the previous term‟s venire. In addition, any 

member of the public could volunteer or be nominated; such an applicant would be added 

to the grand jury venire if the presiding judge consented. The venire was capped at 200 

people. No special effort was made to encourage racial or ethnic minorities to volunteer 

for grand jury service.

Court staff and the presiding judge then interviewed the venire members to 

determine whether they were qualified and able to serve as grand jurors, and excused 

those who were not. Nineteen people were randomly selected from this smaller group to 

serve.

Peter Sperlich, a professor of political science at the University of California,

Berkeley, testified as an expert in grand jury selection processes. In Dr. Sperlich‟s 

opinion, from 1986 to 1993, there was significant underrepresentation of minorities on 

Yuba County grand juries that he attributed to flaws in the selection process, such as “the 

lack of follow-up” on those who did not return the initial questionnaire or make an 

appointment to be interviewed, the lack of a clear policy on granting excusals or 

deferments, lack of a true random selection of returned questionnaires, the ability of 

applicants to volunteer or be nominated for grand jury service, and the carrying over of 

grand jury venire members from term to term.

In denying the motion, the court acknowledged defendant had identified distinctive 

minority groups in the community. In light of the lack of evidence about the composition 
23

of the grand jury venires, however, the court ruled that defendant failed to prove that the 

representation of these groups on the venires was not fair and reasonable in relation to 

their numbers in the county. The trial court also noted defendant failed to identify any 

procedures that systematically excluded members of these groups.

Defendant contends the trial court‟s selection process for grand jurors systematically 

excluded various minority groups, which deprived him of a grand jury selected from a 

fair cross-section of the community. When addressing a similar claim in People v. 

Carrington (2009) 47 Cal.4th 145, 177, we preliminarily noted that neither the high court 

nor this court has held the fair cross-section rule applies to state grand juries. In rejecting 

a similar claim in Carrington, we cited People v. Corona (1989) 211 Cal.App.3d 529, 

534-536, which held that lack of a fair cross-section of the community in the grand jury, 

unlike a finding of intentional racial discrimination, does not compel automatic reversal. 

Citing the “general rule prohibiting reversal absent actual prejudice,” the court in Corona

rejected the fair cross-section claim. (Id. at p. 537.) We followed this process in 

Carrington and similarly rejected the fair cross-section claim in that case because there 

was no prejudice apparent in the record before us. (Carrington, supra, 47 Cal.4th at 

p. 179.)

We need not and do not resolve whether the Sixth Amendment right to a fair crosssection of the community applies to state grand juries because the record before us

supports the trial court‟s assessment that defendant failed to make a showing of 

underrepresentation of these groups on the venires in relation to their numbers in the 

county. (Cf. Castaneda v. Partida (1977) 430 U.S. 482, 487-488 [prima facie case of 

intentional discrimination against Mexican-Americans in grand jury selection process 

established by examining jurors‟ surnames].) Defendant contends the trial court‟s lack of 

records regarding the ethnicity of the grand jurors violated his due process rights, but he 

fails to supply any authority for this contention. Accordingly, we conclude defendant 
24

failed to demonstrate evidence of substantial underrepresentation over a significant 

period of time on the grand jury.

2. Administration of Oath to Prospective Jurors

Defendant notes the record fails to establish that the trial court questioned 

prospective jurors under oath. Defendant therefore contends that the trial court‟s failure 

to administer the oath to prospective jurors violated his rights to due process and an 

impartial jury as well as his right to have all proceedings transcribed. As noted, 

subdivision (a)(1) of section 190.9 requires that all proceedings in death penalty cases be 

transcribed.

In addition, Code of Civil Procedure section 232 requires all prospective jurors, 

before being examined and upon selection, to take an oath of truthfulness: “(a) Prior to 

the examination of prospective trial jurors in the panel assigned for voir dire, the 

following perjury acknowledgement and agreement shall be obtained from the panel, 

which shall be acknowledged by the prospective jurors with the statement „I do‟: [¶] „Do 

you, and each of you, understand and agree that you will accurately and truthfully 

answer, under penalty of perjury, all questions propounded to you concerning your 

qualifications and competency to serve as a trial juror in the matter pending before this 

court; and that failure to do so may subject you to criminal prosecution.‟ [¶] (b) As soon 

as the selection of the trial jury is completed, the following acknowledgment and 

agreement shall be obtained from the trial jurors, which shall be acknowledged by the 

statement „I do‟: [¶] „Do you and each of you understand and agree that you will well 

and truly try the cause now pending before this court, and a true verdict render according 

only to the evidence presented to you and to the instructions of the court.‟ ”

On June 8, 1993, the trial judge went to the jury assembly room and addressed on 

the record a panel of 172 prospective jurors. The prospective jurors were first given 

blank declarations to request excusal from jury duty due to the hardship of serving; these 
25

were signed under penalty of perjury. The parties stipulated to the dismissal of 40 

prospective jurors, and additional prospective jurors were granted hardship dismissals. 

Each remaining prospective juror was given a questionnaire, which sought to discover 

bias and views on the death penalty. Although the questionnaires indicated they were to 

be completed under penalty of perjury, they did not call for a signature, and the 

prospective jurors did not sign them.

The next morning, 35 prospective jurors were called into the courtroom. The trial 

court stated, “They have already been sworn for voir dire in the — by the jury 

commissioner, true, or — they‟re nodding yes. That‟s the usual procedure . . . .” These 

prospective jurors were examined, and successive groups of prospective jurors were 

called in until all remaining members of this panel had been examined. A second panel 

of approximately 120 additional prospective jurors were also similarly examined. The 

record is silent as to whether they were administered any oath. A jury ultimately was 

chosen. Only one seated juror was from the original group of 35 prospective jurors who 

affirmatively acknowledged taking an oath.

In 2003, the trial court conducted record correction proceedings and ordered the 

record to be settled to indicate that both panels of prospective jurors were administered 

the oath required by subdivision (a) of Code of Civil Procedure section 232 before the 

court conducted voir dire.

Defendant preliminarily contends that the trial court improperly settled the record. 

It is the trial court‟s duty to settle the record, not to make one. (Marks v. Superior Court

(2002) 27 Cal.4th 176, 195.) Although record settlement may be based on all available 

aids, including the memories of the trial judge and the attorneys (id. at pp. 195-196), none 

of the participants in the record correction proceedings had witnessed the jury 

commissioner swearing in the prospective jurors, and no court personnel testified at the 

record correction proceedings. Although the first group of prospective jurors indicated 

they had been sworn in while in the jury assembly room, and the trial court added that 
26

was “the usual procedure,” there is no record of who was sworn in, who administered the 

oath, or what oath was administered.

In settling the record to indicate that all of the prospective jurors were administered 

the correct oath, the trial court also relied on section 664 of the Evidence Code, which 

states in pertinent part, “It is presumed that official duty has been regularly performed.” 

As noted, the record shows the first panel of prospective jurors indicated that the jury 

commissioner administered an oath. (E.g., People v. Wader (1993) 5 Cal.4th 610, 661 

[official duty presumption includes actions by court clerks].) Defendant does not make a 

particularized showing that no oath was administered, that the wrong oath was 

administered, or that not all prospective jurors were administered the oath. (See Evid. 

Code, § 660 [evidentiary presumptions affect the burden of proof].) Although there is no 

record that all prospective jurors were administered the correct oath, this absence does 

not alter the presumption that the correct oath was administered. (See People v. Mello

(2002) 97 Cal.App.4th 511, 513-514, fn. 1 [despite its absence from the record, appellate 

court presumed the oath of truthfulness was properly administered to prospective jurors].) 

Thus, despite the trial court improperly “correcting” the record to indicate the prospective 

jurors were administered the oath of truthfulness, defendant is not entitled to relief 

because under Evidence Code section 664, it is presumed they were properly sworn in.

With respect to the trial court‟s failure to cause the court reporter to transcribe the 

administration of the oath, we cannot presume that the court reporter transcribed it 

because it is not in the record. (E.g., Mountain Lion Foundation v. Fish & Game Com.

(1997) 16 Cal.4th 105, 132 [reliance on official duty presumption is misplaced when the 

record discloses a duty was not properly performed].) Although the trial court failed to 

cause the administration of the prospective jurors‟ oath to be transcribed, defendant is not 

entitled to relief because any error was harmless. (See People v. Taylor (2010) 

48 Cal.4th 574, 659-660 (Taylor) [failure to conduct on-the-record discussions about the 

jury‟s questions to the court in a death penalty case was harmless error].)
27

Defendant‟s reliance on In re Smiley (1967) 66 Cal.2d 606 is misplaced. In Smiley, 

the petitioner claimed he was not advised of his right to a speedy trial, and he disputed 

the minute order that indicated he had “waived time.” (Id. at p. 611.) The applicable law 

required the trial court to explain to the petitioner his right to a speedy trial and the effect 

of his consent to the trial date set by the trial court, but the record did not indicate it had 

done so. (Id. at p. 629.) We declined to presume that the trial court had performed its 

official duty and advised the petitioner because the purpose of the law was to ensure that 

a defendant would not waive his or her rights through ignorance or oversight. (Id. at 

pp. 629-630.) Such a purpose would have been defeated if the petitioner had been 

required to prove that the trial court did not advise him about a right that he did not know 

he had. (Ibid.) Here, defendant‟s claim does not involve the advisement or waiver of any 

rights.

Even if we assume that some of the prospective jurors were not administered the 

oath required by subdivision (a) of Code of Civil Procedure section 232, defendant‟s 

claim does not warrant reversal in light of People v. Carter (2005) 36 Cal.4th 1114. In 

Carter, the trial court failed to administer the oath of truthfulness to two panels of 

prospective jurors, but it denied the defendant‟s motion to declare a mistrial or, 

alternatively, to excuse the prospective jurors who had not been given the oath before 

being examined. (Id. at pp. 1174-1176.) We rejected the defendant‟s argument that the 

failure to administer the oath to prospective jurors was a structural defect that compelled 

an automatic reversal. (Id. at p. 1175.) Rather, we noted that the properly sworn seated 

jurors were instructed to follow the trial court‟s instructions, and we presumed they did. 

(Id. at pp. 1176-1177; see Code Civ. Proc., § 232, subd. (b).) We also noted that those 

prospective jurors filled out a questionnaire that was signed under penalty of perjury, 

which impressed upon them the importance of being truthful, thus lessening the harm 

caused by failure to administer oath of truthfulness. (Carter, supra, 36 Cal.4th at 

p. 1177.) We therefore concluded that the failure to administer the oath to some of the 
28

prospective jurors was not prejudicial. (Ibid.) Here, as in Carter, any error in failing to 

properly swear in the prospective jurors was harmless under the applicable federal and 

state standards (Chapman, supra, 386 U.S. at p. 24; People v. Watson (1956) 46 Cal.2d 

818, 836 (Watson)) because the prospective jurors were instructed to complete the 

questionnaires under penalty of perjury and because the seated jurors were administered 

the proper oath. We reject defendant‟s contention that Carter and People v. Lewis (2001) 

25 Cal.4th 610, upon which Carter relied, should be reconsidered.

Defendant notes that the prospective jurors in Carter had signed their questionnaires 

under penalty of perjury. But we see no basis for concluding that defendant was 

prejudiced by the fact that here the prospective jurors did not sign their questionnaires. 

The questionnaire clearly instructed the prospective jurors that they were to complete it 

under penalty of perjury. Absent evidence to the contrary, and defendant has provided 

none, we presume the prospective jurors followed the instruction.

B. Guilt Phase Claims

1. Lack of Meaningful Appellate Review Due to an Incomplete Record

During his case-in-chief, the prosecutor introduced into evidence videotapes of 

defendant‟s interrogation by law enforcement personnel and audiotapes made during the 

hostage situation. Defendant contends that the trial court improperly allowed the 

prosecutor to play for the jury these audio and video recordings. Because the recordings 

were of poor quality and were not transcribed by the court reporter, defendant argues, the 

record is incomplete and violates his right to meaningful appellate review. As noted, 

subdivision (a)(1) of section 190.9 requires that all proceedings in death penalty cases be 

transcribed. Former rule 203.5 (now rule 2.1040) of the California Rules of Court 

required the party offering an audio or video recording into evidence to provide the court 

and opposing parties a transcript of the recording.
29

During the prosecutor‟s case-in-chief, the jury viewed two videotapes of law 

enforcement personnel interrogating defendant. Before the videotapes were played, the 

following colloquy occurred:

“THE COURT: The court reporter need not try to take down the audio portion of 

any videotape?

“[¶] . . . [¶]

“[DEFENSE COUNSEL]: Well, I‟m afraid I would get in trouble if I said 

otherwise.

“THE COURT: I don‟t want you to be intimidated in the diligent exercise of your 

duty as defense counsel. If you wish to say otherwise, you may.

“[DEFENSE COUNSEL]: No, we have no objection.”

The prosecutor later introduced into evidence a transcript, presumably created by 

law enforcement personnel, of the videotapes. Defense counsel stated, “We have no, no 

vigorous objection to the introduction of that as an exhibit. With the understanding that 

the Court will instruct the jury that the tape is the evidence and not the transcript.” The 

trial court instructed the jury that the transcript was an aid to understanding the 

interrogation, but if there was a conflict between the videotapes and the transcript, the 

videotapes controlled.

As noted, during the hostage situation, law enforcement personnel delivered to 

defendant a portable telephone system that could record sounds even when not being 

used as a telephone. Seven audiotapes of what it recorded were introduced into evidence 

without objection. The audiotapes were played for the jury, and the parties stipulated that

the court reporter was excused from transcribing the audio recordings. No transcript of 

the audiotapes was provided to the jury.

Because defendant agreed that the court reporter need not transcribe the audio and 

video recordings, he cannot now complain of such errors on appeal. (People v. Rogers

(2006) 39 Cal.4th 826, 856-858 [defendant‟s stipulation to not transcribe certain death 
30

penalty proceedings forfeited the claim on appeal]; see also Taylor, supra, 48 Cal.4th at 

pp. 659-660 [failure to conduct death penalty proceedings on the record regarding 

questions posed by the jury was harmless error where the trial court summarized the 

unreported discussions and defendant did not object to the summation].) That the trial 

court rather than defendant raised the transcription issue is not determinative: the trial 

court invited defendant to object to the court reporter not transcribing the audio and video

recordings, and he expressly declined to do so. We similarly reject defendant‟s assertion 

that the trial court coerced him into agreeing to forgo the transcription.

To the extent defendant contends that these recordings and the transcript were 

improperly admitted into evidence, this claim is forfeited on appeal because defendant 

did not object on this ground at trial. (Evid. Code, § 353, subd. (a) [judgment will not be 

reversed due to the erroneous admission of evidence unless “an objection to or a motion 

to exclude or to strike the evidence . . . was timely made and so stated as to make clear 

the specific ground of the objection or motion”]; People v. Zamudio (2008) 43 Cal.4th 

327, 354.) Defendant did not object to the lack of a transcript of the audiotapes or to the 

fact that he was not given a transcript of the videotapes in a timely manner. To the extent 

defendant contends that the transcript of the videotapes lacked foundation and was thus 

inadmissible, he has forfeited this claim, too, by not objecting at trial. Similarly, 

defendant may not argue that the poor quality of the video and audio recordings rendered 

them inadmissible because he did not object on that ground at trial. And because 

defendant failed to request that the trial court review the recordings and the transcript 

before admitting them into evidence, he has also forfeited these claims on appeal. 

(Cf. People v. Polk (1996) 47 Cal.App.4th 944, 951 [defendants twice moved to exclude 

an audiotape and a transcript of disputed accuracy].)

Even assuming that the trial court improperly admitted these recordings and the 

transcript, defendant fails to demonstrate prejudice because the other properly admitted 

evidence of his guilt was overwhelming. Some of defendant‟s statements on the 
31

audiotapes and videotapes did indicate his attack on the school was a premeditated and 

deliberate act, but that was not the only evidence of his state of mind. His extensive 

preparations such as his study of police tactics, his purchase of lethal ammunition, and his 

letter to his family were all evidence from which the jury could have inferred that his 

actions were part of a preconceived plan.

Defendant contends that the record of what the jury actually heard is so inaccurate 

and incomplete that meaningful appellate review is impossible. In support of this claim, 

defendant notes that when the parties prepared a revised version of the transcript of the 

videotapes during record correction proceedings, there were substantial differences 

between the original and revised transcripts. However, notwithstanding the alleged 

inaccuracy of the original transcript, the trial court specifically instructed the jury that the 

videotapes and not the transcript were the relevant and controlling evidence. Absent 

evidence to the contrary, and defendant has provided none, we presume the jury followed 

this instruction. (See, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1115 (Guerra), 

overruled on another point by People v. Rundle (2008) 43 Cal.4th 76, 151.)

In the end, it is true that we do not have a court reporter‟s transcript of the audio and 

video recordings, and we cannot recreate the conditions under which they were played for 

the jury. However, it is sufficient that the record contains these recordings and defendant 

had access to them. Defendant did in fact review them. Although the recordings were 

made some time ago, our independent review of them discloses that they are sufficiently 

clear. Accordingly, defendant‟s right to meaningful appellate review has not been 

jeopardized.

2. Sufficiency of the Evidence

At the close of the prosecutor‟s case-in-chief, defendant moved pursuant to section 

1118.1 to dismiss the first degree murder and attempted murder counts. Section 1118.1 

provides in pertinent part: “In a case tried before a jury, the court on motion of the 
32

defendant or on its own motion, at the close of the evidence on either side and before the 

case is submitted to the jury for decision, shall order the entry of a judgment of acquittal 

of one or more of the offenses charged in the accusatory pleading if the evidence then 

before the court is insufficient to sustain a conviction of such offense or offenses on 

appeal.” The trial court denied the motion, and defendant argues the court erred in so 

ruling.

An appellate court reviews the denial of a section 1118.1 motion under the standard 

employed in reviewing the sufficiency of the evidence to support a conviction. (People v. 

Whisenhunt (2008) 44 Cal.4th 174, 200.) “In reviewing a challenge to the sufficiency of 

the evidence, we do not determine the facts ourselves. Rather, we „examine the whole 

record in the light most favorable to the judgment to determine whether it discloses 

substantial evidence — evidence that is reasonable, credible and of solid value — such 

that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.‟ 

[Citations.] We presume in support of the judgment the existence of every fact the trier 

could reasonably deduce from the evidence. [Citation.] [¶] The same standard of review 

applies to cases in which the prosecution relies primarily on circumstantial evidence and 

to special circumstance allegations. [Citation.] „[I]f the circumstances reasonably justify 

the jury‟s findings, the judgment may not be reversed simply because the circumstances 

might also reasonably be reconciled with a contrary finding.‟ [Citation.] We do not 

reweigh evidence or reevaluate a witness‟s credibility.” (Guerra, supra, 37 Cal.4th at 

p. 1129.) Review of the denial of a section 1118.1 motion made at the close of a 

prosecutor‟s case-in-chief focuses on the state of the evidence as it stood at that point. 

(People v. Cole (2004) 33 Cal.4th 1158, 1213.)

As we explain below, this claim lacks merit, as does defendant‟s related contention 

that the totality of the evidence presented during the guilt phase was insufficient to 

sustain these convictions.
33

a. First degree murder counts 

Defendant contends that the evidence at trial demonstrated that he killed Brens, 

Davis, Hill, and White as a result of an “unconsidered or rash impulse” rather than with 

the premeditation and deliberation required for first degree murder. (See §§ 187, 

subd. (a), 189.)

“In the context of first degree murder, „ “premeditated” means “considered 

beforehand,” and “deliberate” means “formed or arrived at or determined upon as a result 

of careful thought and weighing of considerations for and against the proposed course of 

action.” [Citation.]‟ [Citation.] „The process of premeditation and deliberation does not 

require any extended period of time. “The true test is not the duration of time as much as 

it is the extent of the reflection. Thoughts may follow each other with great rapidity and 

cold, calculated judgment may be arrived at quickly . . . .” [Citations.]‟ [Citation.] „In 

[People v. Anderson (1968) 70 Cal.2d 15], we “identified three categories of evidence 

relevant to resolving the issue of premeditation and deliberation: planning activity,

motive, and manner of killing.” [Citation.] However, these factors are not exclusive, nor 

are they invariably determinative. [Citation.] “ „Anderson was simply intended to guide 

an appellate court‟s assessment whether the evidence supports an inference that the 

killing occurred as the result of preexisting reflection rather than unconsidered or rash 

impulse.‟ ” ‟ ” (People v. Lee (2011) 51 Cal.4th 620, 636 (Lee).) The evidence here 

supports each of the identified factors.

The prosecutor presented overwhelming evidence of planning. Defendant 

reconnoitered the school and created a diagram of the school entitled “Mission Profile.” 

He studied law enforcement tactics. He wrote a “goodbye” letter to his family telling 

them they should not blame themselves for his actions. He purchased the necessary 

supplies before heading to the school. And he brought two different loaded firearms, 

including the .22-caliber rifle whose stock he had sawed off the night before, and spare 
34

ammunition to the school. This evidence indicated that he had considered the possibility 

of not only a violent encounter but an encounter involving multiple targets.

Similarly, the prosecutor presented ample evidence of defendant‟s motive. 

Defendant told the hostages and law enforcement personnel that Brens had ruined his life 

by flunking him. Defendant blamed the school system for allowing this to happen and 

wanted to “make a point” to ensure it did not happen again. Although defendant 

appeared to have harbored no personal animosity toward Davis, Hill, and White, a 

reasonable trier of fact could have concluded he believed that killing students would draw 

attention to himself and his plight, or that they were simply innocent targets of his 

misdirected anger.

The prosecutor‟s evidence also showed that defendant‟s demeanor during the 

killings appeared to be controlled. For example, Kaze described him, in the midst of the 

carnage, as having “a slight smile on his face and a spring to his step.” This evidence 

supports the conclusion that defendant‟s actions were the result of preexisting thought 

and reflection rather than an unconsidered rash impulse.

Defendant nonetheless contends that the evidence showed that he planned only to 

kill himself at the school but then changed his mind at the last instant and decided instead 

to shoot off his firearms or perhaps wound people or take hostages in an effort to get 

attention. While such a scenario might be possible, we presume in support of the verdict 

the existence of every fact that can be reasonably inferred from the evidence. Given the 

extensive evidence of defendant‟s preparations for his assault, a reasonable trier of fact 

could have found defendant guilty of four counts of first degree murder on a 

premeditation and deliberation theory.

To the extent defendant contends that the “the quality and quantum of proof 

distinguishing deliberate premeditated murder from second degree murder” is “undefined 

and undecipherable,” we disagree. Killing resulting from preexisting reflection is readily 

distinguishable from a killing based on an unconsidered or rash impulse (People v. 
35

Solomon (2010) 49 Cal.4th 792, 812-813), and the evidence in this case allowed a 

reasonable trier of fact to find the former beyond a reasonable doubt.

b. Attempted murder counts

Defendant contends that the evidence at trial failed to demonstrate that he shot at 

Boggess, Collazo, Gipson, Graham, Hinojosai, Kaze, Martinez, Rodriguez, Scarberry, 

and Yanez with the specific intent to kill necessary for attempted murder. (§§ 187, 

subd. (a), 664.)

“Attempted murder requires the specific intent to kill and the commission of a direct 

but ineffectual act toward accomplishing the intended killing. [Citation.] Attempted 

murder requires express malice, that is, the assailant either desires the victim‟s death, or 

knows to a substantial certainty that the victim‟s death will occur.” (Booker, supra, 

51 Cal.4th at pp. 177-178.)

Defendant contends that the evidence at trial did not demonstrate that he intended to 

kill the attempted murder victims, none of whom he knew. Defendant notes that, for 

some of the attempted murder victims, there was no evidence that he specifically aimed 

at them. Also, for some of the victims, the evidence showed that although they were 

clearly alive after they had been shot, defendant made no further attempt to kill them.

Defendant relies on People v. Murtishaw (1981) 29 Cal.3d 733 (Murtishaw)

overruled on another point by People v. Boyd (1985) 38 Cal.3d 762, 772-773, in which 

we examined the jury instructions for the defendant‟s conviction of assault with intent to 

commit murder. There, the jury was instructed that the crime required evidence of a 

specific intent to commit murder, but the jury was also given definitions of murder that 

did not require an intent to kill, that is, implied malice murder or felony murder. (Id. at 

p. 763.) Defendant here, however, does not contend the jury was improperly instructed 

about the necessary intent. Instead, he contends that the evidence at trial did not 

demonstrate an intent to kill.
36

The act of shooting a firearm toward a victim at close range in a manner that could 

have inflicted a mortal wound had the shot been on target is sufficient to support an 

inference of an intent to kill. (People v. Smith (2005) 37 Cal.4th 733, 741 (Smith).) 

Moreover, attempted murder does not necessarily require a specific target. We have held 

that an indiscriminate would-be killer who fires into a crowd is just as culpable as one 

who targets a specific victim. (E.g., People v. Perez (2010) 50 Cal.4th 222, 230.) The 

totality of the evidence established that defendant repeatedly and intentionally discharged 

a shotgun loaded with antipersonnel, multiprojectile ammunition at close range toward 

his victims in a manner that could have inflicted a mortal wound. This is sufficient to 

sustain these convictions.

In addition, motive is not an element of the crime of attempted murder. (E.g., Smith, 

supra, 37 Cal.4th at pp. 740-741.) That defendant did not know his victims or bear them 

any ill will does not demonstrate that he lacked the intent to kill. Although motive is 

often probative of an intent to kill, the absence of a clear motive does not demonstrate the 

lack of an intent to kill. Moreover, as with Davis, Hill, and White, a reasonable trier of 

fact could have concluded that the attempted murder victims were simply targets of 

defendant‟s misdirected anger or part of his scheme to draw attention to his plight. That 

defendant did not shoot even more people does not mean he lacked a motive or the 

specific intent to kill those whom he did shoot.

Similarly, it is not dispositive that defendant did not kill some of his wounded 

victims. That defendant may have fired once and then abandoned his efforts does not 

compel the conclusion he lacked the intent to kill in the first instance. (E.g., Smith, 

supra, 37 Cal.4th at p. 741.) Defendant may not have finished off these victims for any 

number of reasons, such as the desire to continue his rampage.

Defendant contends that the evidence showed he intended only to wound or disable 

these victims. Again, while such a scenario might be possible, we presume in support of 

the verdict the existence of every fact that can be reasonably inferred from the evidence. 
37

Given the evidence of defendant‟s behavior both before and during the carnage, coupled 

with his choice of lethal ammunition, the annotated book recovered from his car, and the 

torn-up note expressing his interest in death and killing, a reasonable trier of fact could 

have concluded that defendant harbored the specific intent to kill these 10 victims and 

thus could have found him guilty on the attempted murder counts.

3. Judicial Misconduct

Defendant contends that the trial court was biased against mental health 

professionals and the study of psychology in general, thus violating his right to a fair 

trial. A court commits misconduct if it creates the impression that it is denigrating the 

defense or otherwise allying itself with the prosecution. (People v. Blacksher (2011) 

52 Cal.4th 769, 824 (Blacksher).)

During defendant‟s examination of his psychologist, Dr. Rubinstein, the following 

colloquy occurred:

“[DEFENSE COUNSEL]: You were asked yesterday about the relative number of 

criminal cases that you had examined or patients that you had examined as opposed to 

[noncriminal] cases. [¶] Does that — is that significant or is it for your purposes a 

matter of a brain is a brain is a brain?

“[DR. RUBINSTEIN]: A brain is a brain is a brain. I don‟t believe a heart surgeon 

needs to know whether his patient has been accused of a crime or not to perform the 

procedures that he‟s been trained to perform.

“THE COURT: Is that Gertrude Rubinstein? I‟m sorry. Go ahead with your 

answer, Doctor.”

This exchange was apparently a play on the words of Gertrude Stein‟s famous line 

in her poem “Sacred Emily”: “Rose is a rose is a rose is a rose.” (Stein (1922) 

Geography and Plays.)
38

Almost immediately after this exchange, defense counsel asked Dr. Rubinstein, 

“There is oft times a criticism of psychiatry and psychology that contends that 

psychology and psychiatry [are] nothing more than Freud and Freud is nothing more than 

saying people have problems because they hate their mother or their father. [¶] You may 

have heard different forms. How do you respond to that?”

The prosecutor objected to the question as leading and implied that it was confusing 

as well. The trial court responded, “Well, I‟m going to overrule the objection. It is 

proper to ask an expert a leading question. And I think it‟s an understandable question. 

It’s really all the psychology stuff is mumbo jumbo stuff.” (Italics added.) During his 

penalty phase closing argument, the prosecutor belittled the evidence of defendant‟s state 

of mind, calling it “mumbo jumbo.”

Defendant did not object to either of the trial court‟s remarks. Ordinarily, the lack 

of an objection at trial forfeits the claim on appeal. (Blacksher, supra, 52 Cal.4th at 

p. 825.) However, a failure to object to judicial misconduct does not preclude appellate 

review when an objection could not have cured the prejudice or would have been futile. 

(People v. Sturm (2006) 37 Cal.4th 1218, 1237 (Sturm).) In Sturm, we ruled the 

defendant had not forfeited his claim of judicial misconduct, despite his lack of 

objections, because the hostility between the trial court and defense counsel was evident. 

(Ibid.) Moreover, Sturm involved numerous, extensive disparaging remarks. (Id. at 

pp. 1233-1236.) Neither of those circumstances is present here. Accordingly, defendant 

has forfeited this claim because a timely admonition could have cured any potential 

prejudice.

Even if we considered this claim on the merits, it would fail. “[T]his court has 

repeatedly stated that a trial court must avoid comments that convey to the jury the 

message that the judge does not believe the testimony of the witness.” (Sturm, supra, 

37 Cal.4th at p. 1238.) The trial court‟s reference to “Gertrude Rubinstein” did not do so 
39

and was simply an ill-advised attempt to interject some levity into the proceedings, 

“always a risky venture during a trial for a capital offense.” (Ibid.) 

This remark is unlike those found improper in People v. Geier (2007) 41 Cal.4th 

555 (Geier), overruled on another point by Melendez-Diaz v. Massachusetts (2009) 557 

U.S. 305. The trial judge in Geier facetiously associated one defense witness with 

Forrest Gump, “a dim-witted fictional character,” and made a reference to “Oprah” to

suggest that the personal life of another defense witness “was the stuff of tabloid 

television.” (Geier, supra, 41 Cal.4th at p. 614.) We held that these remarks “could have 

been perceived by jurors as derogatory comments on the credibility of those witnesses.” 

(Ibid.) That is not the case here. The trial court‟s apparent reference to the poet Gertrude 

Stein did not denigrate the expert witness.

Neither would the trial court‟s use of the phrase “mumbo jumbo” in overruling an 

objection to the prosecutor‟s question to the expert require us to reverse the judgment. 

The court did not express the opinion that psychiatry and psychology were “mumbo 

jumbo.” It simply restated a common criticism in colloquial but ill-advised terms in 

explaining why the question was proper.

The jury heard extensive testimony, offered by both parties, from a total of four 

mental health professionals. Although defendant contends that the trial court harbored a 

“scornful” opinion of his case, the remarks in context do not show that the court was no 

longer an impartial arbiter. Even if improper, these two brief remarks “ „fall short of the 

intemperate or biased judicial conduct [that] warrants reversal.‟ ” (Geier, supra, 

41 Cal.4th at p. 614.) Accordingly, we also reject defendant‟s contention that the trial 

court‟s remarks prejudiced him during the sanity trial and penalty phase.

4. Admission of Lay Opinion

Defendant contends that the trial court erred by allowing Rewerts to testify that if 

defendant had been molested by Brens, he believed defendant would have told him about 
40

it. Under section 800 of the Evidence Code, a witness may provide an opinion if it is 

rationally based on what he or she perceived and if it is helpful to a clear understanding 

of the testimony.

During the prosecutor‟s rebuttal case, the following colloquy occurred:

“[PROSECUTOR]: In your opinion based upon the relationship and the type of 

relationship you had with [defendant], is that the type of thing, having sexual contact with 

Mr. Brens, that the defendant would have talked to you about had it occurred?

“[REWERTS]: Yeah. We were friends. I believe that he would have told me such 

a thing about Mr. Brens touching him or doing anything else. I believe that he would 

have told me.”

The Attorney General preliminarily contends that defendant has forfeited this claim 

by failing to object at trial. (See Evid. Code, § 353, subd. (a).) Before Rewerts testified, 

however, defendant requested an offer of proof as to the substance of his proposed 

testimony. The prosecutor summarized Rewerts‟s proposed testimony, and defendant 

raised various objections, including an objection that the offer of proof indicated that 

Rewerts intended to speculate about what information defendant would choose to reveal 

to him. The trial court permitted Rewerts to testify on this subject, and he did so. 

Defendant therefore properly preserved this issue for appeal.

Defendant contends that the trial court improperly allowed Rewerts to testify about 

defendant‟s veracity. Defendant is correct that generally a lay witness may not express 

an opinion about the veracity of another person‟s statement because the statement‟s 

veracity is for the jury to decide. (E.g., People v. Melton (1988) 44 Cal.3d 713, 744; but 

see People v. Chatman (2006) 38 Cal.4th 344, 379-384.) However, Rewerts did not

provide an opinion about the veracity of any of defendant‟s statements. Although 

Rewerts‟s belief about what information defendant would have shared with him, coupled 

with the fact that defendant did not share such information, might have implied that 
41

Rewerts thought defendant‟s molestation allegations were false, he did not actually offer 

an opinion on this ultimate issue of fact.

Rewerts‟s testimony that he and defendant often discussed sexual matters was 

relevant and admissible. The same is true for Rewerts‟s testimony that defendant never 

discussed with him the claimed molestation by Brens. It also would have been proper for 

Rewerts to express his opinion that it would be normal for them to discuss such personal 

matters, as such testimony would shed light on the nature of their relationship. But in the 

testimony at issue, Rewerts went a step farther. He did not say it would have been 

normal for defendant to discuss with him the alleged molestation by Brens. Instead, he 

specifically testified that defendant “would have told me such a thing.” This statement 

was speculative and not based on anything Rewerts might have perceived through his 

physical senses, and his opinion on the matter did not help the jury understand the rest of 

his testimony. (See Blacksher, supra, 52 Cal.4th at p. 808 [lay witness may testify about 

objective behavior but may not give an opinion about another‟s state of mind].) 

Although it is reasonable to infer that, in light of the nature of their relationship, 

defendant would have told Rewerts about the alleged molestation by Brens, it is the role 

of the trier of fact, not the witness, to make such an inference. The trial court should not 

have permitted Rewerts‟s specific testimony about what defendant would have told him.

Given the overwhelming evidence of defendant‟s guilt, however, he is not entitled 

to relief based on this error under the applicable federal or state standard of review. 

(Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.) We similarly 

reject defendant‟s contention that this error prejudiced him during the sanity trial and 

penalty phase.

5. Prosecutorial Misconduct During the Guilt Phase

“A prosecutor commits misconduct when his or her conduct either infects the trial 

with such unfairness as to render the subsequent conviction a denial of due process, or 
42

involves deceptive or reprehensible methods employed to persuade the trier of fact.” 

(People v. Avila (2009) 46 Cal.4th 680, 711 (Avila) [applying both federal and state 

standards].)

During his guilt phase closing argument, the prosecutor stated, “And if you‟ve 

noticed throughout this trial, during defense counsel‟s opening statement and during their 

argument, the defendant cried. But when we talked about [the victims, there] was no 

emotion. Because all [defendant] cares about is [defendant]. And [defendant] can do no 

wrong, because everybody else has screwed it up for him.” Defendant contends that the 

prosecutor committed misconduct during his closing argument by this comment on his 

demeanor.

As the Attorney General correctly notes, this claim is forfeited because defendant 

failed to object or request a curative admonition in the trial court. (E.g., Avila, supra, 

46 Cal.4th at pp. 710-711.) Even were we to consider the claim on the merits, we are not 

persuaded. Defendant is correct that a prosecutor may not comment on a defendant‟s 

demeanor or behavior during the guilt phase unless it is to tell the jury to ignore a 

defendant‟s demeanor or behavior. (E.g., People v. Boyette (2002) 29 Cal.4th 381, 434.) 

To the extent the prosecutor asked the jury to ignore defendant‟s crying, there was no 

misconduct. We agree with defendant, however, that it was misconduct for the 

prosecutor to ask the jury to note defendant‟s lack of crying, which in this context 

implied a lack of remorse. But given the overwhelming evidence of defendant‟s guilt, he 

is not entitled to relief based on this comment under the applicable federal or state 

standard of review. (Chapman, supra, 386 U.S. at p. 24; Watson, supra, 46 Cal.2d at 

p. 836.)

Defendant also contends that the prosecutor‟s comment improperly highlighted his 

exercise of his constitutional right to remain silent in the face of criminal charges (Griffin 

v. California (1965) 380 U.S. 609), but nothing in the prosecutor‟s comment either 
43

directly or indirectly implicated the decision not to testify. (E.g., People v. Combs (2004) 

34 Cal.4th 821, 866-867 (Combs).)

6. Jury Instruction Regarding Accomplice Testimony

Defendant contends that the trial court erred by failing to instruct the jury to view 

the testimony of Rewerts, his best friend, with caution because it could have found that 

Rewerts was an accomplice. Section 1111 provides in pertinent part: “A conviction can 

not be had upon the testimony of an accomplice unless it be corroborated by such other 

evidence as shall tend to connect the defendant with the commission of the offense . . . .”

When a jury receives substantial evidence that a witness who has implicated the 

defendant was an accomplice, a trial court on its own motion must instruct it on the 

principles regarding accomplice testimony. (Boyer, supra, 38 Cal.4th at pp. 466-467.) 

This includes instructing the jury that an accomplice‟s testimony implicating the 

defendant must be viewed with caution and corroborated by other evidence. (Ibid.; see 

CALJIC Nos. 3.11, 3.18; CALCRIM Nos. 334, 335.)

Rewerts testified that, a few months before the shootings, he had told defendant 

about his own desire to “destroy[] things,” and defendant responded by saying he wanted 

to go to the high school and “shoot[] a couple of people.” Rewerts initially thought to 

himself, “ „No, it can‟t be. If he is, that‟s stupid.‟ It‟s so stupid of him to go through with 

such a bizarre idea.” The pair discussed, two or three times after that initial conversation, 

going to the school and “shoot[ing] a couple rounds.” One scenario involved them 

“using robots.” Rewerts described these conversations as “passé talk,” “just idle talk” 

“between two friends,” and “stupid.” He explained “[e]verybody says that they‟re going 

to go out and in anger that they‟re going to kill a person, but they don‟t.” Rewerts also 

testified defendant had read to Rewerts passages from a book on military tactics and 

police procedures. Rewerts further testified that he and defendant had gone target 

shooting together.
44

During his interrogation, defendant told law enforcement personnel that Rewerts 

had not helped him. Defendant also said his initial conversation with Rewerts about this 

topic was about a dream he had had and not about an actual plan or desire to attack the 

school.

An accomplice is someone subject to prosecution for the charged crimes by reason 

of aiding and abetting or being a member of a conspiracy to commit the charged crimes. 

(§ 1111; e.g., People v. Slaughter (2002) 27 Cal.4th 1187, 1201-1202.) “ „An accomplice 

must have “ „guilty knowledge and intent with regard to the commission of the 

crime.‟ ” ‟ ” (Boyer, supra, 38 Cal.4th at p. 467.) In People v. Beeman (1984) 35 Cal.3d 

547, we explained what is required for aiding and abetting liability. In Beeman, the 

defendant was convicted of robbery and other crimes on an aider and abettor theory of 

liability. We reversed the defendant‟s convictions because the jury instructions did not 

explain that an aider and abettor must act “with knowledge of the criminal purpose of the 

perpetrator and with an intent or purpose either of committing, or of encouraging or 

facilitating commission of, the offense.” (Id. at p. 560, italics in original.) In other 

words, an aider and abettor of a specific intent crime shares the perpetrator‟s specific 

intent when he or she knows of the perpetrator‟s criminal purpose and aids, promotes, 

encourages, or instigates the perpetrator with the intent of encouraging or facilitating the 

commission of the crime. (Ibid.; see CALJIC No. 3.01; CALCRIM No. 401.)

Moreover, if an accomplice aids, promotes, encourages, or instigates a confederate 

to commit a crime, but the confederate instead commits another, more serious crime, the 

accomplice may be liable for the more serious crime if it was a “natural and probable 

consequence” of the crime that the accomplice intended to aid and abet. (E.g., People v. 

Prettyman (1996) 14 Cal.4th 248, 259-263; see CALJIC No. 3.02; CALCRIM No. 402.) 

Thus, defendant contends, if Rewerts aided and abetted his “shooting a couple [of] 

people” or even just “shoot[ing] a couple of rounds” while inside the school, then 

Rewerts was an aider and abettor to the natural and probable consequences of those 
45

crimes, that is, murder, attempted murder, and assault with a deadly weapon. Defendant 

therefore concludes Rewerts was an accomplice as a matter of law because he knew of 

defendant‟s criminal purpose and encouraged him to act, which resulted in defendant 

attacking the school.

There was no evidence indicating that Rewerts intended to aid, facilitate, or 

encourage defendant‟s actions, or that Rewerts even knew what defendant intended to do. 

Moreover, defendant admitted that Rewerts had not helped him. Although on multiple 

occasions they discussed going to the school, the record shows that Rewerts thought the 

two of them were engaging in an idle fantasy, not planning a crime. There was no 

evidence, let alone substantial evidence, that Rewerts was an accomplice such that the 

trial court was required to instruct the jury on accomplice liability. Similarly, that the 

two went shooting together is not dispositive because there was no evidence those 

excursions were in any way related to defendant‟s crimes.

Even if we were to agree that substantial evidence showed Rewerts actually was an 

accomplice and that the trial court erred by failing to properly instruct the jury, the error 

was harmless under any applicable standard because the corroborating evidence of 

defendant‟s guilt, including his state of mind, was overwhelming. (Boyer, supra, 

38 Cal.4th at p. 467.)

7. Life Sentences for the 10 Attempted Murder Counts

Defendant contends that he was improperly sentenced to life imprisonment for each 

count of attempted murder because the indictment failed to allege that the attempted 

murders were willful, deliberate, and premeditated. At the time of defendant‟s 1992 

indictment, former subdivision 1 (now subdivision (a)) of section 664 stated in pertinent 

part, “[I]f the crime attempted is willful, deliberate, and premeditated murder, as defined 

in Section 189, the person guilty of that attempt shall be punishable by imprisonment in 

the state prison for life with the possibility of parole; provided, further that if the crime 
46

attempted is any other one in which the maximum sentence is life imprisonment or death 

the person guilty of the attempt shall be punishable by imprisonment in the state prison

for a term of five, seven, or nine years. The additional term provided in this section for 

attempted willful, deliberate, and premeditated murder shall not be imposed unless the 

fact that the attempted murder was willful, deliberate, and premeditated is charged in the 

accusatory pleading and admitted or found to be true by the trier of fact.” (§ 664, subd. 

1, as amended by Stats. 1986, ch. 519, § 2, p. 1859.)

The indictment in this case alleged, with respect to each of the 10 attempted murder 

victims, that defendant violated “Section 664/187 . . . , to wit: did willfully and 

unlawfully attempt to commit the crime of murder in violation of Section 187 . . . in that 

he did willfully and unlawfully, and with malice aforethought, attempt to murder [the 

victim], a human being.” It did not allege that the attempted murders were deliberate and 

premeditated.

At the end of the first day of defendant‟s presentation of his case, the trial court 

presented the parties with a preliminary draft of the verdict forms, which indicated that 

the court would ask the jury to determine whether the attempted murders were willful, 

deliberate, and premeditated. The trial court stated:

“And the final thing that is not completely clear in the verdict form, because I don‟t 

think I had it clear in my mind when I was putting it together, is the distinction between 

the two kinds of attempted murder, and if I understand what the prosecution is doing in 

[the attempted murder counts], I believe the prosecution is intending to charge 

premeditated attempted murder.

“If that’s not right, you should tell me now, or as soon hereafter as you are able to, 

because it would help me.

“In other words, the type of attempted murder [that is] punished by life 

imprisonment rather than five, seven, nine.” (Italics added.)
47

One week later, the trial court announced its intent to have the attempted murder 

verdict form list deliberate and premeditated attempted murder as “a special finding.” 

Then, after the close of evidence, the trial court instructed the jurors on the definition of 

attempted murder and further instructed them to determine whether the attempted 

murders were willful, deliberate, and premeditated. Defendant did not object before the 

court submitted the case to the jury or at sentencing. As noted, the jury found beyond a 

reasonable doubt that the 10 attempted murders were willful, deliberate, and 

premeditated.

The Attorney General concedes that the indictment failed to allege that the 

attempted murders were deliberate and premeditated, but contends defendant has 

forfeited this claim. We agree.

It is uncontested that the indictment failed to comply with the requirements of 

section 664. People v. Bright (1996) 12 Cal.4th 652 (Bright), overruled on another point 

by People v. Seel (2004) 34 Cal.4th 535, however, is instructive. In Bright, the jury 

found the defendant guilty of attempted murder, but was unable to agree on whether the 

attempted murder was willful, deliberate, and premeditated. (Bright, supra, 12 Cal.4th at 

p. 658.) The defendant argued double jeopardy prevented the prosecution from retrying 

him on the premeditation allegation, reasoning premeditated attempted murder was a 

greater degree of the offense of attempted murder. (Id. at pp. 658-660.) As part of our 

rationale in rejecting the defendant‟s claim that premeditated attempted murder was a 

greater degree of the offense of which he was convicted, we noted the charging document 

and jury instructions adequately apprised the defendant that he was charged with a single 

offense, rather than one of degrees. (Id. at p. 670.) “Under these circumstances, where 

defendant failed to object at trial to the adequacy of the notice he received, any such 

objection is deemed waived.” (Id. at p. 671.) Due to the high court‟s subsequent 

decision in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), we have since 

concluded that the federal double jeopardy clause does bar retrial of a premeditation 
48

allegation following a determination that the evidence was insufficient. (Seel, supra, 

34 Cal.4th at p. 550, fn. 6.) But neither Apprendi nor Seel is helpful to defendant. Those 

cases did not discuss whether the defendant received adequate notice, but rather whether 

the facts alleged were established beyond a reasonable doubt. (See People v. Famalaro

(2011) 52 Cal.4th 1, 37.) In the present case, it was established beyond a reasonable 

doubt that the attempted murders were deliberate and premeditated.

A defendant has a due process right to fair notice of the allegations that will be 

invoked to increase the punishment for his or her crimes. (E.g., People v. Mancebo

(2002) 27 Cal.4th 735, 747 (Mancebo).) To the extent defendant contends he was not 

provided adequate notice of the punishment he faced, we are not persuaded. During the 

defense‟s presentation of its case, the trial court expressly noted that defendant, if 

convicted, would be sentenced to life imprisonment, and the court asked the parties to say 

if there was a problem with the proposed jury instructions and verdict forms. One week 

later, the court said the attempted murder verdict form would include deliberate and 

premeditated attempted murder as a special finding. At the close of evidence, the trial 

court instructed the jury to determine whether the attempted murders were willful, 

deliberate, and premeditated, and indicated that a special finding on this question 

appeared on the verdict form. Had defendant raised a timely objection to the jury 

instructions and verdict forms at any of these stages of the trial on the ground that the 

indictment did not allege that the attempted murders were deliberate and premeditated, 

the court could have heard arguments on whether to permit the prosecutor to amend the 

indictment. (See § 1009 [trial court may permit amendment of an indictment at any stage 

of the proceedings].) If the trial court was inclined to permit amendment, defendant 

could have requested a continuance to permit him to prepare a defense. (See Murtishaw, 

supra, 29 Cal.3d at p. 751, fn. 11.) On the facts here, defendant received adequate notice 

of the sentence he faced, and the jury made an express finding that the attempted murders 

were willful, deliberate, and premeditated. A timely objection to the adequacy of the 
49

indictment would have provided an opportunity to craft an appropriate remedy. Because 

defendant had notice of the sentence he faced and did not raise an objection in the trial 

court, he has forfeited this claim on appeal. (See People v. Memro (1995) 11 Cal.4th 

786, 869 [claim of inadequate notice of intent to seek a felony-murder conviction 

forfeited on appeal because the defendant failed to move to reopen after prosecutor 

requested the applicable jury instruction on this particular theory of murder].)

Defendant‟s case is similar to People v. Arias (2010) 182 Cal.App.4th 1009, which 

in turn relied upon our decision in Mancebo. In Arias, the defendant was convicted of 

two counts of attempted murder but the charging document failed to allege that the 

attempted murders were willful, deliberate, and premeditated. (Id. at p. 1017.) The trial 

court proposed a set of jury instructions and verdict forms to which neither party 

objected. (Id. at p. 1017, fn. 4.) The trial court instructed the jury that if it found the 

defendant guilty of attempted murder, then it must make a separate finding whether the 

attempted murder was done willfully and with premeditation and deliberation. (Id. at 

p. 1017.) The verdicts did not include any special findings with regard to premeditation 

and deliberation, but rather found “first degree attempted murder” as to both victims, 

even though attempted murder is not divided into degrees (Bright, supra, 12 Cal.4th at 

p. 668). On that basis, the trial court imposed life imprisonment for the convictions. 

(Arias, supra, 182 Cal.App.4th at p. 1017.) The Court of Appeal struck the sentences, 

rejecting the Attorney General‟s argument that the defendant had forfeited his claim that 

the indictment was inadequate and reasoning that this court had “rejected this same 

argument in materially indistinguishable circumstances” in our decision in Mancebo. 

(Arias, supra, 182 Cal.App.4th at p. 1017.)

In Mancebo, the jury had found that the defendant personally used a firearm in the 

commission of the offense, but the prosecution was forced to choose between using that 

fact to impose an enhancement under section 12022.5, subdivision (a), or a life term 

under the One Strike Law (§ 667.61, former subd. (e)(4)). (Mancebo, supra, 27 Cal.4th 
50

at pp. 742-743.) Although the prosecution had intended to rely on the defendant‟s gun 

use to impose an enhancement under the One Strike Law, for the first time at sentencing 

the prosecutor sought to dismiss the gun-use allegation under the One Strike Law and 

substitute a multiple-victim circumstance (§ 667.61, former subd. (e)(5)) so that both the 

determinate-term enhancement and the life term could be imposed. We ruled that section 

667.61, subdivision (f) “precluded the trial court from striking those circumstances in 

order to free up gun use as a basis for imposing lesser enhancement terms under section 

12022.5(a)” and held that the defendant did not forfeit the claim by failing to object at the 

sentencing hearing. (Mancebo, supra, 27 Cal.4th at pp. 749-750, fn. 7.)

We need not and do not decide whether the Arias court erred in ruling that the 

defendant there did not forfeit his claim that the indictment was inadequate. The Arias

jury was instructed that if it found the defendant guilty of attempted murder, it must 

determine whether the attempted murder was willful, deliberate, and premeditated, and 

the defendant did not object to that instruction. But it is unclear when the trial court 

issued its proposed jury instructions and verdict forms to the parties and whether this 

issue was discussed. In contrast, the trial court here actually notified defendant of the 

possible sentence he faced before his case was submitted to the jury, and defendant had 

sufficient opportunity to object to the indictment and request additional time to formulate 

a defense. In addition, the jury was properly instructed and made an express finding that 

the attempted murders were willful, deliberate, and premeditated. On these facts, we 

conclude that defendant forfeited his claim that the indictment did not comply with 

section 664.
51

C. Sanity Trial Claim: Assertedly Incorrect Jury Instructions Defining Insanity

Defendant contends that the trial court improperly instructed the jury on the 

definition of insanity. When considering a claim of instructional error, we view the 

challenged instruction in the context of the instructions as a whole and the trial record to 

determine whether there is a reasonable likelihood the jury applied the instruction in an 

impermissible manner. (E.g., People v. Jablonski (2006) 37 Cal.4th 774, 831 

(Jablonski).)

At the end of the sanity trial, the court instructed the jury with CALJIC No. 4.00 in 

pertinent part as follows: “A person is legally insane by reason of mental disease or 

mental defect [if] he was incapable of knowing or understanding the nature and quality of 

his act or incapable of distinguishing right from wrong at the time of the commission of 

the crime.” Defendant asked the trial court to instruct the jury on the definition of 

“wrong” and provided a proposed instruction. After a slight modification, the following 

was read to the jury: “Wrong refers to both legal wrong and moral wrong. Wrong in the 

sanity phase of a trial means the violation of generally accepted standards of moral 

obligation. A person who understands that his act is against the law but is incapable of 

distinguishing whether it is morally right or morally wrong is legally insane.” (Italics 

added.)

Defendant first contends that these instructions impermissibly required him to prove 

that at the time of the crimes he could not generally distinguish between right and wrong. 

Defendant correctly notes that the M’Naghten test‟s definition of insanity (M’Naghten’s 

Case (1843) 10 Clark & Fin. 200, 210 [8 Eng. Rep. 718, 722]), from which CALJIC 

No. 4.00 is derived, requires the defendant to be incapable of distinguishing right from 

wrong in relation to the crimes. (E.g., Jablonski, supra, 37 Cal.4th at p. 831.) Because 

of this claimed variance between the M’Naghten test and CALJIC No. 4.00, defendant 

contends that it would have been possible for the jury to believe he did not know his 
52

actual shooting of people was wrong but nonetheless had the general ability to distinguish 

right from wrong and to conclude, on that basis, that he was legally sane.

We rejected a nearly identical claim in Jablonski. There we noted that the jury 

received, in addition to CALJIC No. 4.00, the instruction that if “ „during the 

commission of the crime the defendant was incapable of understanding that his act was 

morally wrong or was incapable of understanding that his act was unlawful, then he is not 

criminally liable.‟ ” (Jablonski, supra, 37 Cal.4th at p. 831, italics in original.) Although 

we disagreed with the defendant‟s claim that CALJIC No. 4.00 was ambiguous, we 

concluded that any assumed ambiguity was clarified by the additional instruction because 

it explained to the jury that it was to focus on the defendant‟s capacity to distinguish right 

from wrong at the time of the commission of the crimes. (Jablonski, supra, 37 Cal.4th at 

p. 832.) 

Defendant contends that Jablonski did not resolve the problem with CALJIC 

No. 4.00 because the instructions as a whole still failed to focus the jury‟s attention on the 

nature of the incapacity. Even were we to agree with defendant that CALJIC No. 4.00 is 

ambiguous or incomplete, the instructions as a whole adequately explained to the jury 

that it was to decide whether he had the capacity to distinguish right from wrong in 

relation to his criminal conduct. The additional instruction given here, like the additional 

instruction given in Jablonski, eliminates any reasonable likelihood that the jury was told 

to focus on defendant‟s ability to generally distinguish between right and wrong as 

opposed to his ability to discern whether “his act” at the time of the commission of the 

crimes was right or wrong.

Defendant also contends that CALJIC No. 4.00‟s use of the phrase “by reason of 

mental disease or mental defect” precluded the jury from finding him insane due to a 

combination of mental diseases and mental defects. We rejected this contention in 

People v. Kelly (1992) 1 Cal.4th 495, 535-536, and see no reason to revisit that 

conclusion here.
53

D. Penalty Phase Claim: Prosecutorial Misconduct in Argument

Defendant contends that the prosecutor improperly referred to his lack of remorse. 

“ „A prosecutor may properly comment on a defendant‟s lack of remorse, as relevant to

the question of whether remorse is present as a mitigating circumstance, so long as the 

prosecutor does not suggest that lack of remorse is an aggravating factor.‟ ” (Combs, 

supra, 34 Cal.4th at p. 866.)

During his penalty phase closing argument, the prosecutor stated, “And [defendant] 

would like you to have sympathy for him. He didn‟t show very much sympathy for the 

people who were in building C on May the 1st, 1992. [¶] As a matter of fact he has 

shown absolutely no remorse during this entire trial as to what happened to those kids 

and teachers at Lindhurst High School on May the 1st, 1992. Not even when he took the 

stand yesterday and was given the opportunity did he show any real remorse. Any real 

I‟m sorry for what I did type attitude.”

Later in his argument, the prosecutor stated, “And to this day, [defendant] has not 

shown any remorse for any one of those individuals who were injured on May the 1st, 

1992. He has not shown any emotion about their loss of life. His whole concentration 

has been on [defendant] and [his] family. [¶] If you remember Edith Houston, when she 

testified yesterday, stated or was asked if [defendant] had ever talked about the victims, 

and her answer was he was just sorry for what he did to the family.”

As noted, defendant‟s mother, Edith, testified that he had apologized to her about 

the problems he had caused for his own family. She did not testify that he had ever 

expressed remorse about the pain he might have caused to anyone else. When defendant 

testified during the penalty phase, however, he apologized to the living victims and to 

families of those who had died.
54

As the Attorney General correctly notes, this claim is forfeited because defendant 

failed to object or request a curative admonition in the trial court. (E.g., Avila, supra, 

46 Cal.4th at pp. 710-711.) Even were we to consider the claim on the merits, given the 

circumstances of his crimes, defendant would not be not entitled to relief based on this 

comment under the applicable federal or state standard of review. (Chapman, supra, 

386 U.S. at p. 24; Watson, supra, 46 Cal.2d at p. 836.)

E. Constitutional Challenges to the Death Penalty

Defendant reiterates various constitutional challenges to California‟s death penalty 

law that we have previously rejected. Adhering to precedent, we reject defendant‟s 

arguments that (1) a broad application of section 190.3, factor (a) is unconstitutional; 

(2) the jury must make written findings; (3) the jury must achieve unanimity as to the 

existence of aggravating circumstances; (4) the jury‟s entire verdict must be premised on 

findings made beyond a reasonable doubt; (5) the jury must be instructed that the 

aggravating circumstances must outweigh the mitigating circumstances beyond a 

reasonable doubt, or alternatively, the court was required to instruct that there is no 

burden of proof; (6) the jury must be instructed to determine whether death is an 

appropriate punishment; (7) intercase proportionality review is required; (8) use of terms 

such as “extreme” or “substantial” impermissibly limit the consideration of mitigation 

evidence; (9) the trial court was required to instruct the jury that certain statutory factors 

were relevant only in mitigation; (10) California‟s sentencing scheme violates the right to 

equal protection; and (11) California‟s death penalty violates international law and 

norms. (People v. Jones (2011) 51 Cal.4th 346, 380-381, and cases cited therein.)

Moreover, we have held that the jury may consider evidence of unadjudicated 

criminal activity under section 190.3, factor (b). (Lee, supra, 51 Cal.4th at p. 653.) 

Further, neither Apprendi, supra, 530 U.S. 466, its progeny, nor Cunningham v. 

California (2007) 549 U.S. 270 render the death penalty statutes invalid. (People v. 
55

Alexander (2010) 49 Cal.4th 846, 938.) The death penalty statutes adequately narrow the 

classes of murderers eligible for the death penalty and do not result in “arbitrary and 

capricious” or “wanton and freakish” determinations. (Ibid.) A death sentence that 

comports with state and federal statutory and constitutional law does not violate the 

Eighth Amendment to the United States Constitution. (Id. at pp. 938-939.) 

In addition, we agree with Murtishaw v. Woodward (9th Cir. 2001) 255 F.3d 926, 

960-961, that the enactment of article I, section 27 of the California Constitution did not 

violate the due process, equal protection, or guarantee clauses of the United States 

Constitution. (See also People v. Weaver (2012) 53 Cal.4th 1056, 1093 [rejecting claim 

that California‟s death penalty was unconstitutional because the special circumstances 

were enacted by voter initiative].) We decline defendant‟s invitation to revisit People v. 

Frierson (1979) 25 Cal.3d 142, 186-187, in which the lead opinion of this court reasoned 

that article I, section 27 was a permissible amendment to the California Constitution. 

(See Strauss v. Horton (2009) 46 Cal.4th 364, 429-430 & fn. 21 [“resolution of the issue 

is now a firmly settled determination”]; People v. Jackson (1980) 28 Cal.3d 264, 315, 

overruled on another point by People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.)

Even when these contentions are considered collectively, there is no violation of the 

state or federal Constitutions. (People v. Lucero (2000) 23 Cal.4th 692, 741.)

F. Cumulative Error

Defendant contends that the cumulative effect of the errors during the guilt phase, 

sanity trial, and penalty phase mandates reversal. We disagree. No reasonable possibility 

exists that the jury would have reached a different result absent any of the acknowledged 

or asserted errors under the applicable federal or state standard of review. (Chapman, 

supra, 386 U.S. at p. 24; People v. Hill (1998) 17 Cal.4th 800, 844-845, overruled on 

another point by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
56

III.

For the reasons stated above, we affirm the judgment.

LIU, J.

WE CONCUR: CANTIL-SAKAUYE, C. J.

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Houston

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S035190

Date Filed: August 2, 2012

__________________________________________________________________________________

Court: Superior

County: Napa

Judge: W. Scott Snowden

__________________________________________________________________________________

Counsel:

David H. Schwartz, 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, Michael P. Farrell, Assistant Attorney General, Harry Joseph Colombo and Julie A. Hokans, Deputy 

Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

David H. Schwartz

Law Offices of David H. Schwartz

601 California Street, Suite 1800

San Francisco, CA 94108

(415) 399-9301

Julie A. Hokans

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 324-5292