IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

SCOTT THOMAS ERSKINE,

Defendant and Appellant.

S127621

San Diego County Superior Court

SCD161640

May 23, 2019

Justice Liu authored the opinion of the court, in which Chief 

Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar, 

Kruger, and Groban concurred.
1

PEOPLE v. ERSKINE

S127621

Opinion of the Court by Liu, J.

Defendant Scott Thomas Erskine was sentenced to death 

in 2004 for the first degree murders of Charles Keever and 

Jonathan Sellers. This appeal is automatic. (Pen. Code, § 1239, 

subd. (b).) We affirm the judgment in its entirety.

I. FACTS

Erskine was charged with two counts of first degree 

murder and personal use of a deadly and dangerous weapon in 

the March 27, 1993 deaths of Charles Keever and Jonathan 

Sellers (referred to by the parties and herein as Charles and 

Jonathan). (Pen. Code, §§ 187, subd. (a), former § 12022, subd. 

(b).) With respect to Charles, Erskine was charged with the 

special circumstances that the murder was committed while 

engaged in the commission or attempted commission of the 

crimes of performance of a lewd and lascivious act upon a child 

under the age of 14 in violation of Penal Code section 288 and 

oral copulation in violation of former section 288a. (Pen. Code, 

§ 190.2, subd. (a)(17)(E), (F).) With respect to Jonathan, 

Erskine was charged with the special circumstances that the 

murder was committed while engaged in the commission and 

attempted commission of the crime of the performance of a lewd 

and lascivious act upon a child under the age of 14 in violation 

of section 288. (Pen. Code, § 190.2, subd. (a)(17)(E), (18).) As to 

both counts, Erskine was further charged with the special 

circumstances that the murder was intentional and involved the 
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Opinion of the Court by Liu, J.

2

infliction of torture, and that he has in this proceeding been 

convicted of more than one offense of murder in the first or 

second degree. (Id., § 190.2, subd. (a)(3), (18).)

Erskine pleaded not guilty to all allegations, and a jury 

trial commenced on August 29, 2003. Erskine did not present 

any evidence in defense. The jury found Erskine guilty of both 

counts of first degree murder and personal use of a deadly 

weapon, and found true each of the charged special 

circumstances. The jury deadlocked, however, at the penalty 

phase, and the court declared a mistrial. On retrial of the 

penalty phase, the second jury returned death verdicts on both 

counts. The court imposed a sentence of death on both counts

and further imposed a determinate term of two years, comprised

of a one-year term of enhancement on each count pursuant to 

former section 12022, subdivision (b) of the Penal Code, to be 

stayed pending execution of the death penalty. 

A. Guilt Phase

The morning of Saturday, March 27, 1993, nine-year-old 

Jonathan and thirteen-year-old Charles set out on a bike ride 

from which they never returned. Witnesses described seeing the 

two boys that morning at an arcade and pet adoption center, and 

at a Rally’s hamburger stand where they purchased lunch. Two 

other witnesses spoke briefly with the boys while biking in the 

Otay riverbed near a washed out bridge. One of those witnesses 

also recalled seeing a man driving a car across the field and 

blocking the bike path, which “seemed very unusual.” She

identified a photograph of a blue Volvo used by Erskine at the 

time of the murders as similar in color and shape to the one she 

saw that day. 
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When the boys failed to return home that evening, their 

families began to search the neighborhood. Jonathan’s brother 

told their mother about the riverbed trail where they liked to 

bike; he did not think to tell her about the “fort” in the riverbed 

that the boys would crawl into “like a little cave.” He and his 

mother went to the trail but stopped short of the fort. It rained 

that night and the following day while people continued to 

search for Jonathan and Charles. 

Two days later, Peter Winslow was biking and running on 

the path through the Otay riverbed when he stopped to look at 

a “camp-like thing” in the bushes. As he looked inside, he saw

two boys, one hanging from a rope by his neck on a tree branch, 

one lying on the ground, and both naked from the waist down 

save for socks. Both boys appeared deceased. 

Homicide Detective David Ayers described the “fort” 

where the bodies were found as an area approximately 10 feet 

wide, 12 feet long, and between five and six feet high, comprised 

of a trampled down floor covered with crushed tumbleweeds, a 

perimeter of tumbleweeds, and a canopy of castor bean plants

that formed a partial roof over the structure. The entrance was 

a two-foot opening located approximately 12 feet along a small 

path leading from the main bike path. 

Detective Ayers testified that Jonathan was found 

wearing a blue and white sweatshirt and socks but otherwise 

nude from the waist down. His body was suspended by a branch 

approximately three and a half feet above the ground via a rope 

tied around the neck, and with his knees and knuckles on the 

ground. A second rope was tied around his ankles, and there 

was a gag comprised of a towel and tape around his chin. Ayers 
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Opinion of the Court by Liu, J.

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described adhesive marks on his cheeks where the gag had been 

attached at some point over his mouth. Ayers also identified a 

white cord found lying free at the scene that appeared to have

been previously attached to Jonathan’s wrist. 

Charles was found lying facedown, wearing a hooded 

sweatshirt and socks but also otherwise nude from the waist 

down. The body had a yellow rope and a white cord around the 

neck, similar to those found on Jonathan. Ayers described what 

appeared to be dried blood on Charles’s genital area. Unlike the 

rope on Jonathan’s neck, which Ayers described as “somewhat 

loose,” the rope and cord on Charles’s neck were drawn up tight 

and the skin was swollen underneath. Ayers also described tape 

residue and adhesive marks on Charles’s cheeks. Underneath 

Charles’s head, officers found a pile of “neatly” folded clothing,

including the boys’ shirts, jeans, and shoes. 

Other evidence collected at the crime scene included two 

cigarette butts on the path connecting the fort to the main bike 

path. The two boys’ bicycles were found chained together and 

covered with tumbleweeds approximately 30 feet north of the 

fort. 

Dr. John Eisele, the pathologist who reported to the scene 

and performed both autopsies, testified that the two boys had 

been dead for at least one day and possibly up to two or three 

days before the bodies were found. His autopsy of Charles 

revealed evidence of premortem strangulation, injury to the 

anus consistent with penetration by a foreign object, and 

bruising and abrasions on the penis and scrotum. Dr. Eisele

testified that these injuries appeared to have occurred while 

Charles was still alive and would have been painful. Dr. Eisele 
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Opinion of the Court by Liu, J.

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concluded that the cause of death for Charles was asphyxia 

consistent with ligature strangulations, which he testified could 

have taken as long as five minutes.

The autopsy of Jonathan also revealed evidence of 

strangulation. Dr. Eisele described two different ligature marks 

on the neck: The first was accompanied by small vertical 

scratches consistent with a person trying to pull the ligature off 

his neck. The second was much darker and deeper because it 

resulted from the force of the top half of the body being 

suspended from the ligature from the time of death until the 

body was found. Dr. Eisele concluded that the cause of death for 

Jonathan was asphyxia consistent with ligature strangulation. 

The police collected sexual assault swabs from both bodies. 

An initial analysis in April 1993 revealed a single sperm cell 

from a swab of the skin on Jonathan’s scrotum but did not yield 

any other material inconsistent with the victims. A subsequent 

analysis in 2001 using more advanced differential extraction 

revealed sperm samples on the scrotum and anal exterior swab 

from Jonathan, and the oral swab from Charles. Profiles of the 

sperm samples were transmitted to California’s Department of 

Justice for a search against Combined DNA Information 

System, which returned a match to a known sample from 

Erskine. Further analysis by the San Diego crime lab, and 

confirmed by an outside analyst, concluded that Erskine was 

very likely the source of the predominant DNA from the sperm 

fraction of the oral swab sample from Charles and the epithelial 

sample from one of the cigarette butts found at the scene. 

In March of 1993, Erskine was living in San Diego. His

roommate, Lori Behrens, confirmed that Erskine carried a four-
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Opinion of the Court by Liu, J.

6

to five-inch buck knife at that time, smoked, and drove two 

different cars, one of which was an older model blue Volvo 

consistent with the description of the car observed at the crime 

scene the day the boys disappeared. She testified that she and 

Erskine had at times visited his mother’s home in Imperial 

Beach and a nearby bar — locations that were approximately 

two and a half and two miles from the crime scene, respectively. 

Evidence of two other crimes was introduced: the October 

1993 sexual assault of Jennifer M. in San Diego and the June 

1989 sexual assault and murder of Renee Baker. This evidence 

is discussed below.

Erskine did not offer any evidence in defense at the guilt 

phase. 

B. Penalty Phase

1. Prosecution Evidence

After the first jury hung at the penalty phase, the 

prosecutor presented a second penalty phase jury with the same 

evidence regarding the circumstances of the crime as was 

presented at the guilt phase. In addition, the prosecutor 

presented the following evidence of other criminal activity 

involving force or violence and evidence of victim impact.

a. Criminal Activity Involving Force or 

Violence

Erskine’s younger sister, Judy C., testified that on more 

than one occasion when she was seven years old and Erskine 

was ten, Erskine and two of his friends took Judy C. and her 

friends of a similar age to the loft of the barn behind their home 

and forced the girls through threats or blackmail to perform oral 

copulation. Approximately four years later, when she was 11
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

7

years old, she woke up during the night to find Erskine touching 

her breasts and vagina. 

Barbara G. met Erskine when she became friends with his 

sister, Judy C., in the fifth grade. In March or April of that year, 

Erskine invited her to see a fort he made, which Barbara

described as “like an igloo” built out of foliage, with an entrance 

that you had to crawl through. Once inside the fort, Erskine 

threatened her with a knife, pulled off her shorts and 

underpants, penetrated her vagina and anus with his finger and 

then with sticks or twigs, and then forced her to orally copulate 

him. 

Randi C. testified that Erskine was her boyfriend when 

she was 11 or 12 years old. One day, Erskine asked Randi to 

“prove [her] love to him” by having sex. When she said no, 

Erskine hit her on the side of her head with a closed hand, hard 

enough to make her stagger back. 

Colleen L. testified that in 1978, when she was 12 years 

old and Erskine was 15, Erskine was walking her home when 

put a knife to her throat and forced her into a drainage ditch. 

He forced her to take off their clothes and to orally copulate him; 

he sodomized her, again made her orally copulate him, and then 

vaginally raped her. Afterward, he walked her home, still 

holding his knife to her neck. 

V.M. testified that on the day after Colleen L. was 

attacked, she went for a morning jog in the same area. A man 

whom she later identified as Erskine tapped her on the back, 

pointed a knife at her abdomen, and then pulled her toward the 

drainage ditch. She escaped, and Erskine was arrested. 
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Opinion of the Court by Liu, J.

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Robert M. was 14 years old in June 1980 when Erskine 

approached him outside of his school, asking where the restroom 

was. As they walked behind the main school building on the 

way to the restroom, Erskine became “very angry” and pushed 

Robert against the wall. Erskine violently threatened Robert

with sexual assault, slapped his penis, and punched him in the 

face “over 20” times. He then sat on top of Robert and choked 

him until he passed out. Robert woke up to see Erskine shaking

him and asking if he was all right, “as though he had just found” 

Robert. Erskine was arrested at the scene. 

Michael A. was arrested in January 1981 and placed in a 

holding cell where he encountered Erskine, whom he described 

as “running the cell” and as “the shot caller.” Following a 

dispute about purchasing items from the commissary, Erskine 

hit Michael in the face, knocking him down. Erskine then 

ordered Michael to orally copulate him and two other men, or he 

would have all of the men in the cell assault Michael. When 

Michael refused, Erskine “went into a frenzy,” slamming 

Michael’s head into the concrete. Michael complied with 

Erskine’s demand. A guard saw what was happening and

brought Michael out of the cell. Michael identified the 

perpetrator as Erskine. 

Deborah Erskine met Erskine in 1988 when he was 

working at her brother’s flower and fireworks stand in Palm 

Beach, Florida. They began dating and soon married. Their 

arguments occasionally became physical, and Erskine hit her. 

When Deborah was six months pregnant, Erskine choked her 

and kicked her in the stomach. Erskine then chased Deborah 

down the street, yelling that he had a gun. 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

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Erskine’s younger brother, Douglas, testified about 

multiple physical altercations with Erskine as adults. In April 

1992, Erskine threatened Douglas with a broken pool cue during 

an argument at their mother’s home; Douglas grabbed the pool 

cue and beat Erskine “pretty bad.” During the next incident, 

Erskine choked Douglas to the point that he passed out and lost 

control of his bladder and bowels. Then, in December of 1992, 

the two men got into a fight; after Douglas hit Erskine, Erskine 

ran outside to his car and took out a rifle, loaded it, and pointed 

it at Douglas, saying, “ ‘This is for you, Doug.’ ” 

Phillis Serrano worked with Erskine at a car moving 

company in the early 1990s. She and Erskine began dating 

during this time, and he moved into her home in January or 

February of 1993. On March 11, 1993, she and Erskine had 

their first and only physical altercation during which Erskine 

pulled the phone out of the wall and then put his hands around 

Serrano’s neck, making it difficult for her to breathe. He was 

arrested but never charged. Serrano later married Erskine.

b. Victim Impact Evidence

Jonathan’s mother, Milene Sellers, described giving 

Jonathan a kiss and telling him “bye” when he left with Charles

for their bike ride on March 27, 1993. She described her struggle 

to continue taking care of herself and her children after 

Jonathan’s death. Jonathan’s twin sister, Jennifer Sellers, 

recalled her mother screaming and falling on the floor when the 

police came to the house to say they found the bodies. She 

testified that she felt alone going through life without her twin 

and that every birthday was “like a memorial day for my 

brother.” 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

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Charles’s mother, Maria Keever, described going down to 

the crime scene “for years and years.” She testified that she had 

been “consumed” with finding her son’s killer; at some point, she 

bought a gun and went down to the crime scene because she 

“wanted to die at the same place [her] son died.” She called the 

police “every day[,] sometimes twice a day,” for eight years. 

Charles’s sister talked about the billboards the family 

purchased, her mother’s visits to psychics, and other efforts to 

find the perpetrator — efforts that she said “just took over” her 

mother’s life. Charles’s older brother was in the military, 

stationed in New York, when Charles died. He went home to be 

with his family and to bury his brother, but said he would never 

come back to live in San Diego, where there are “too many bad 

memories.” 

2. Defense Evidence

Erskine’s mother, Rita Erskine, described his father, Don,

as “sex crazy,” adding, “I hated it, but . . . he said it was my duty 

as his wife.” According to Rita, Don would spank her in front of 

the children but did not otherwise hit her when the children 

were young. Later, Don began punching Rita and throwing her 

around in the home, usually after the two of them had been 

drinking. Judy C. testified that she saw her father touch her 

mother “in a sexual manner” in front of the children “once or 

twice” when he had been drinking; he would also make sexual 

comments to their mother when drinking. When Judy asked her 

mother about it, her mother said, “That’s what you get for 

drinking.” 

Douglas denied that Don was ever physically abusive to 

him or Erskine as children or that Don ever “beat” their mother. 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

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But Douglas recounted an incident when he was 15 years old, 

during which Don choked Erskine after Erskine intervened in 

an argument between Douglas and Don. He further testified 

that on three or four occasions, his father punished the three 

younger children by linking them up and then “spanking” them 

with a belt 12 times each, and that there were times when his 

father would hit his mother while she was on the floor. 

When Erskine was five years old, he was hit by a car while 

attempting to cross the four-lane Pacific Coast Highway with his 

older sister. Hospital records showed that Erskine’s left femur, 

pelvis, and several ribs were fractured in the accident; he had 

lacerations on his face and elbow; and he had bruising in his 

lung and brain tissue. He spent six weeks in the hospital. Rita 

testified that Erskine began experiencing “violent headaches” 

after the accident, during which he would scream and bang his 

head on the wall. He began having sudden temper tantrums, 

hitting and pushing his brother with no warning. He started 

kindergarten the next fall but had trouble with muscle control 

and fine motor skills. 

Dr. James Grisolia, an expert in head trauma, reviewed 

Erskine’s hospital records and offered his opinion that Erskine 

had suffered a mild to moderate head injury and that any 

bleeding in the brain was mild to moderate only. It was 

significant to Dr. Grisolia, however, that Erskine sustained this 

injury as a child because many of the brain’s areas, including 

those relating to emotional reactions and understanding of 

others, had not yet developed and connected into the rest of the 

brain. He testified that such an injury could result in lasting 

dysfunction or ongoing signs of brain damage and could even 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

12

cause someone to become a sociopath, but the effects of head 

injuries would express themselves on a “continuum” and could 

be present either all of the time or situationally. 

By the time Erskine was 10, psychiatrists had prescribed 

Erskine both Haldol and Ritalin because he was “out of control,” 

according to Rita. But the medications were causing him to fall 

asleep at school, so Rita took him off them after two months. 

Around this time, Rita got a phone call reporting that Erskine 

and his friends had been taking Judy and other girls into the 

barn at the residence and “initiating them, taking off their 

clothes.” 

In 1975, at age 12, Erskine was placed in the Green Valley 

Ranch youth facility, where he was treated by Dr. Roy Resnikoff, 

who observed indications of organic brain dysfunction. Dr. 

Resnikoff noted that the family dynamic emphasized hostility 

and violence, and that Erskine would provoke the severe 

antagonism between his hostile father and “somewhat passive” 

mother to play the parents off against each other. Erskine’s 

therapy ended abruptly some months later after his father 

removed him from the ranch. At that point, Dr. Resnikoff 

believed Erskine’s prognosis was poor. 

In May 1976, at age 13, Erskine was referred by the county 

mental health division to Southwood Hospital in Chula Vista, 

where he was hospitalized for approximately two weeks in a 

locked ward. He was treated by Dr. Allan Rabin, who diagnosed 

Erskine with dissociative neurosis, organic brain syndrome with 

a history of trauma, and borderline psychosis. Erskine was 

referred for psychological testing, which showed that Erskine 

had low-average intellectual functioning and significant 
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Opinion of the Court by Liu, J.

13

impairments in memory. Erskine was diagnosed at that time as 

having an impulsive personality and hyperkinesis secondary to 

organic brain damage, and was prescribed medication for 

hyperactivity, agitation, rage episodes, and mood stabilization. 

Erskine was released from Southwood in June 1976 to his 

parents’ custody but then readmitted by court order in July 

following another sexual assault. Dr. Rabin resumed his 

treatment of Erskine through September 1977 and shared with 

Erskine’s defense lawyers at the time his diagnosis of neurotic 

tension discharge disorder, with no evidence of psychopathic 

personality; he did not indicate any evidence of brain damage or 

otherwise attribute Erskine’s behavior to organic impairment. 

At the conclusion of his treatment, Dr. Rabin noted that Erskine 

was seriously disturbed with impaired judgment, reasoning, and 

empathy, and that he required long-term treatment.

In December 1977, Erskine went to live in New 

Hampshire with his aunt, Janet Erskine. Janet told Erskine 

that he would be sent back to California for bringing a girl to the 

home. Erskine responded by overdosing on Valium and was 

hospitalized for a few days before returning to California. 

In April 1978, at age 15 and back in California, Erskine 

was arrested and later convicted for sexually assaulting Colleen 

L. and V.M., and sent to the California Youth Authority. An

expert on the California Youth Authority described the 

conditions at that time to include a high level of violence, an 

absence of treatment for sexual predators, and a high overall 

level of recidivism for individuals following release. Erskine’s 

records showed that he was found eligible for placement in a 

unit for the mentally ill, but was never admitted to that unit. 
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Opinion of the Court by Liu, J.

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Upon his release, Erskine was placed on parole and sent to live 

in a foster home. After six weeks, he left for a job at a residential 

camp; on the way to that job, Erskine was arrested for sexually 

assaulting Robert M. 

Following that arrest, Erskine was evaluated for what at 

the time was referred to as a mentally disordered sex offender

(MDSO) in relation to his criminal charges for the assault of 

Robert M. (The MDSO statutes have since been repealed.) An 

expert for the defense concluded that Erskine suffered from very 

severe conduct disorder, aggressive type, with evidence of sexual 

sadism — a condition which contributed to his predisposition to 

eruptive, explosive, aggressive, and violent sexual assaults —

and on that basis offered his opinion that Erskine qualified as 

an MDSO who might benefit from a state hospital treatment 

program. Two court-appointed psychiatrists from the county 

forensic department disagreed, and the trial court in 1981 

ultimately concluded Erskine was not an MDSO. At his 

sentencing, Rita told the judge, “ ‘Please give my boy some help. 

Otherwise, he’s going to kill somebody.’ ” She hoped Erskine 

would be sent to a psychiatric hospital. Instead, he was 

sentenced to four years in state prison.

While in custody in the San Diego County Jail and the 

Department of Corrections, Erskine was at various times 

diagnosed with personality disorder not otherwise specified, 

antisocial personality disorder, anxiety, and bipolar affective 

disorder and major depression, the latter two with paranoid and 

psychotic features, including hearing voices saying that people 

were out to get him. While in custody, Erskine was prescribed 

medications to reduce his psychotic symptoms, alleviate his 
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Opinion of the Court by Liu, J.

15

depression, and help him to cope with anxiety, panic, and 

insomnia. He was never hospitalized for these conditions. 

In 2003, an expert on educational and disability issues 

reviewed Erskine’s records and met with him at the jail to 

measure his learning skills, attention, and memory. She 

measured his IQ as 88 and observed that he performed poorly 

on an attention test and tests with memory components. 

Dr. Thomas Wegman, a psychologist with a board 

certification in neuropsychology, reviewed Erskine’s records and 

interviewed him in March 2004 over the course of about eight 

hours on two days to perform a neurological assessment. Dr. 

Wegman found that Erskine had mildly impaired executive 

function with otherwise average intelligence, though he 

acknowledged that the facts of the charged crimes required 

some level of planning. He also noted that Erskine had total 

anosmia (loss of the sense of smell), which is associated with 

frontal lobe damage. Dr. Wegman agreed with the diagnosis of 

antisocial personality disorder with features of sexual sadism, 

which in his view was the result of brain injury as well as a “sick 

family environment,” and that these factors combined to 

predispose Erskine to sexual predation but did not preclude him 

from knowing right from wrong. He noted that Erskine’s 

tendency to minimize or make excuses for his behavior was 

“characteristic” for someone with antisocial personality 

disorder. 

Dr. Judith Becker, a professor of psychology and 

psychiatry, met with Erskine in December 2002 and July 2003 

to ascertain why he engaged in sexually violent behavior. Dr. 

Becker noted that Erskine exhibited several “risk factors,” 
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Opinion of the Court by Liu, J.

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including the head injury he sustained as a child, a 

dysfunctional family environment that included his father’s 

violence toward Erskine’s mother and Erskine himself, prior 

diagnosis of and medication for attention deficit disorder, a 

history of running away, and early sexual behavior. Dr. Becker 

concluded that Erskine exhibited several mental disorders: 

intermittent explosive disorder, paraphilia of sexual sadism,

paraphilia not otherwise specified, and antisocial personality 

disorder. She opined that Erskine acted out sexually in part 

because his sexual pathology started at an early age and went 

untreated, consistent with a lack of real treatment options for 

sex offenders in the 1970s. Dr. Becker identified a theme 

running through Erskine’s crimes of selecting vulnerable 

victims, luring them away from the public, and gaining control

of them using drugs, alcohol, or weapons. She testified that 

Erskine would have been sexually aroused by the pain and fear 

that he caused to Jonathan and Charles, but would nevertheless 

have known that what he was doing was wrong. 

The parties stipulated that Erskine was arrested for the 

crimes against Jennifer M. on November 3, 1993, sentenced to 

70 years for that crime, and has remained in custody 

continuously from that date. The parties further stipulated that 

no charges were filed and Erskine was never prosecuted for the 

1981 sexual assault of Michael A., the 1992 arrest for possession 

of firearms by a felon, the 1992 assault with a firearm on 

Douglas, or the 1993 domestic violence incident against Serrano. 

The Department of Corrections had no records indicating that 

Erskine was written up, prosecuted, or disciplined for any act of 

violence, crime, assault, gang affiliation, weapon or drug 
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Opinion of the Court by Liu, J.

17

possession or transportation, or any act of aggression or 

intimidation. 

3. Rebuttal

On rebuttal, Erskine’s roommate at the time of the 

murders described him as “very smart” and confirmed that she 

never saw him act out in frustration or lose his temper with 

teachers or fellow students. She confirmed that Erskine 

understood general social norms, including right from wrong, 

and was able to conform his behavior to those standards even in 

stressful situations. A coworker at the time described Erskine 

as “controlling” and agreed with the prosecutor that he “liked to 

be in charge” and had “a quick wit.” She never observed him to 

read social cues incorrectly, act inappropriately with coworkers, 

or “lose control.” 

Dr. David Griesemer, a professor of neurology with a 

specialty in pediatric neurology, met with Erskine to conduct a 

mental status examination, which revealed some difficulty with 

memory but no physical impairment on his cranial nerve exam, 

asymmetry between his right and left side, visual impairment, 

or evidence of spasticity or seizure activity. He found Erskine 

to be normal in terms of executive function and concluded that 

Erskine did not have any neurologic impairment that would 

force certain behavior or make him irresponsible for directing 

his behavior. 

Sergeant Holmes returned to the stand on rebuttal to 

testify about his March 13, 2001, interview with Erskine. He 

described Erskine during that interview as “calm, fairly friendly 

and conversant.” The prosecutor then played the tape of the 

interview. 
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Dr. Park Dietz reviewed Erskine’s records and testified 

that he found four diagnoses proffered by Erskine’s experts to 

be supported by evidence: attention deficit hyperactivity 

disorder, polysubstance abuse, sexual sadism, and antisocial 

personality disorder. He agreed that Erskine had experienced a 

number of factors associated with criminality, including 

evidence that Erskine had moved often as a child, suffered a 

significant head injury, experienced alcohol abuse by his 

parents, witnessed his father beat his mother, and experienced 

emotional and physical abuse as a child. Dr. Dietz disagreed 

with the diagnosis that Erskine suffered from intermittent 

explosive disorder and found no evidence that Erskine showed 

any symptom of mental disease at the time of his crimes. 

Neither sexual sadism nor antisocial personality disorder, 

according to Dr. Dietz, would impair an individual’s volitional 

control over his or her actions. 

II. GUILT PHASE ISSUE

Evidence of Other Crimes

1. Background

Before trial, the prosecutor filed a motion in limine to 

admit evidence of 14 incidents of criminal activity involving 

force or violence, including those described above in the 

prosecution evidence on penalty. Over Erskine’s objection, the 

trial court admitted evidence of two of these prior incidents —

the sexual assault of Jennifer M. and the rape and murder of 

Renee Baker — under Evidence Code sections 1101, subdivision 

(b), and 1108 (all undesignated statutory references are to this 

code). During the presentation of this evidence, the trial court 

admonished the jury: “Evidence concerning the crimes 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

19

involving Jennifer M[.] and Renee Baker has been admitted. 

This evidence, if believed, may not be considered by you to prove 

that defendant is a person of bad character.” At the close of the 

case, the jurors were instructed with a modified version of 

CALJIC No. 2.50 regarding the proper consideration of “othercrimes” evidence in general and with CALJIC No. 2.50.01 

regarding the proper consideration of evidence of other sexual 

offenses, as well as a pinpoint instruction regarding the 

evidence concerning Jennifer M. and Renee Baker. The court 

also instructed the jurors that the prosecution had the burden 

to prove prior crimes by a preponderance of the evidence and 

defined that standard. 

a. Sexual Assault of Jennifer M. 

In accordance with the parties’ stipulation, the February 

1994 sworn testimony of Jennifer M. was read to the jury. 

Jennifer testified that, on October 22, 1993, a man she later 

identified as Erskine waved her over while she was waiting for 

the bus and invited her into his home for a beer. While in the 

home, Jennifer observed Erskine snort methamphetamine; she 

did as well. Erskine then choked her to the point of passing out 

and defecating herself. When she came to, Erskine told her to 

remove her clothes, tied her hands behind her back with a yellow 

rope, placed duct tape over her mouth, cleaned her off, and 

shaved her genitals. He then threatened her with a shotgun and 

forced her to engage in repeated oral copulation and vaginal 

penetration using both his penis and a vibrator. After the 

assault, Erskine gave Jennifer clothes to wear and cooked her a 

steak, and then drove her to a meeting with a classmate at the 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

20

Hyatt Regency Hotel. She waited five days before calling the 

police. 

The detective who interviewed Jennifer M. testified that 

she was “emotionally extremely shaken” and appeared to have 

been injured, noting hemorrhage in both eyes and bruising.

Erskine was arrested returning to his apartment later that day. 

Police seized a shotgun and ammunition from the apartment, 

along with yellow rope, duct tape, narcotics, and other items 

consistent with Jennifer’s description of the assault. A search 

of Erskine’s car, a blue Volvo, yielded black electrical tape, a roll 

of adhesive tape, and more yellow rope. 

b. Renee Baker Homicide

Robin Smith was a patrol officer for the Palm Beach Police 

Department on June 23, 1989, when she responded to a 

pedestrian who spotted a body — later identified that of Renee 

Baker — lying on the ground atop an oyster bed on the 

intercoastal waterway. Officer Smith observed a “neat” pile of 

clothing with a purse and a necklace placed on top near the body, 

which was naked. There were drag marks leading from an area 

of bushes through the sand to the location of the body. A

cigarette butt was found approximately nine feet from the 

clothing. 

Baker’s autopsy revealed signs of asphyxia, manual 

strangulation, and snapped ligaments in the back of the neck 

consistent with hyperflexion. Tissue analysis suggested that 

the manual injuries to the neck occurred at least an hour before 

death and would have required significant force. The cause of 

death was determined to be drowning, with blunt neck trauma 

as a contributory cause of death. The pathologist explained that 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

21

either Baker was repeatedly assaulted culminating in being 

held underwater; or she was left injured at the scene to drown 

face down in the tidal current. DNA analysis conducted in 2000 

of epithelial cells from the cigarette butt and sperm cells from 

an oral swab of Baker were found to match Erskine.

2. Analysis

Erskine argues as he did below that the evidence did not 

satisfy the criteria for admissibility under either section 1101 or 

section 1108 and, moreover, should have been excluded under 

section 352 as more prejudicial than probative. Erskine further 

argues that the evidence was cumulative and unnecessary, as 

evidenced by the prosecutor’s closing arguments referring to 

uncontested or inarguable evidence of guilt. Finally, he argues 

the error here violated his right to due process and therefore 

cannot be regarded as harmless. 

“Evidence Code section 1101, subdivision (a) sets forth the 

‘ “strongly entrenched” ’ rule that propensity evidence is not 

admissible to prove a defendant's conduct on a specific occasion.” 

(People v. Jackson (2016) 1 Cal.5th 269, 299 (Jackson).) “At the 

same time, ‘other crimes’ evidence is admissible under Evidence 

Code section 1101, subdivision (b) ‘when offered as evidence of a 

defendant’s motive, common scheme or plan, preparation, 

intent, knowledge, identity, or absence of mistake or accident in 

the charged crimes.’ ” (Id. at p. 300.) “In this inquiry, the degree 

of similarity of criminal acts is often a key factor, and ‘there 

exists a continuum concerning the degree of similarity required 

for cross-admissibility, depending upon the purpose for which 

introduction of the evidence is sought: “The least degree of 

similarity . . . is required in order to prove intent . . . .” By 
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Opinion of the Court by Liu, J.

22

contrast, a higher degree of similarity is required to prove 

common design or plan, and the highest degree of similarity is

required to prove identity.’ ” (Ibid.)

Section 1108 “carves out an exception to section 1101.” 

(People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823

(Daveggio and Michaud).) Section 1108, subdivision (a)

provides that “[i]n a criminal action in which the defendant is 

accused of a sexual offense, evidence of the defendant’s 

commission of another sexual offense or offenses is not made 

inadmissible by Section 1101, if the evidence is not inadmissible 

pursuant to Section 352.” (See People v. Story (2009) 45 Cal.4th 

1282, 1294 [“section 1108 applies . . . when the prosecution 

accuses the defendant of first degree felony murder with rape 

(or another crime specified in section 1108, subdivision 

(d)(1)).”].) Section 352 articulates the general rule that “[t]he 

court in its discretion may exclude evidence if its probative value 

is substantially outweighed by the probability that its admission 

will (a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, 

or of misleading the jury.” (See Daveggio and Michaud, at 

p. 823.) “It follows that if evidence satisfies the requirements of 

section 1108, including that it is not inadmissible under section 

352, then the admission of that evidence does not violate section 

1101.” (Ibid.) The trial court’s ruling admitting evidence under 

these provisions is reviewed for an abuse of discretion. (Id. at 

p. 824; see also id. at p. 827 [admission of prior crimes evidence 

pursuant to § 1108 does not violate due process].)

In this case, Erskine was accused of a sexual offense;

under section 1108, evidence of the other two crimes was 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

23

therefore not inadmissible under section 1101 to show Erskine’s

propensity to commit the sexual offenses upon which the murder 

charge and the special circumstance allegations were based, so 

long as the evidence was not inadmissible under section 352. It

is not necessary to assess the trial court’s separate finding that 

common characteristics between the charged acts and the prior 

incidents were probative as to identity, deliberation or 

premeditation, and intent to commit the charged crimes and 

therefore also admissible under section 1101, subdivision (b).

(See People v. Merriman (2014) 60 Cal.4th 1, 40 (Merriman).)

As to admissibility under section 352, evidence of past 

sexual offenses proffered under section 1108 requires the court 

to “undertake[] a careful and specialized inquiry to determine 

whether the danger of undue prejudice from the propensity 

evidence substantially outweighs its probative value.” 

(Merriman, supra, 60 Cal.4th at p. 41.) Among the factors to 

consider are the “ ‘nature, relevance, and possible remoteness 

[of the evidence], the degree of certainty of its commission and 

the likelihood of confusing, misleading, or distracting the jurors 

from their main inquiry, its similarity to the charged offense, its 

likely prejudicial impact on the jurors, the burden on the 

defendant in defending against the uncharged offense, and the 

availability of less prejudicial alternatives to its outright 

admission, such as admitting some but not all of the defendant’s 

other sex offenses.’ ” (Ibid., quoting People v. Falsetta (1999) 21 

Ca1.4th 903, 917; see People v. Ewoldt (1994) 7 Cal.4th 

380, 404–407 [conducting similar analysis under § 1101, 

subd. (b)].)
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

24

Erskine argues that this evidence was not relevant to any 

contested issue before the jury in light of the uncontested 

biological evidence establishing that Erskine killed Jonathan 

and Charles. But it is the prosecutor’s burden to establish every 

element of the crime, regardless of whether the defendant offers 

a defense or not (see, e.g., People v. Roldan (2005) 35 Ca1.4th 

646, 705–706; People v. Catlin (2001) 26 Ca1.4th 81, 146), and it 

would not have been unlikely, in 2003, for one or more jurors to 

be leery of convicting for capital crimes based principally on the 

scientific DNA evidence in this case. Here, the other-crimes 

evidence helped fill in the picture, especially considering the 

common characteristics between the incidents, including 

evidence of strangulation and oral copulation, the presence of 

cigarette butts and neatly stacked clothing near Baker’s body, 

and the use of ropes and tape to restrain Jennifer M. The case 

for admission was especially strong with respect to the assault 

of Jennifer M., for which Erskine had been convicted. (See 

Daveggio & Michaud, supra, 4 Cal.5th at p. 825 [“the fact that 

defendants had been convicted [of similar crimes] weighed 

heavily in favor of admission”].) Moreover, we agree with the 

trial court that although the prior incidents involved “egregious 

conduct,” the charged crimes “involve[d] far more inflammatory 

conduct.” Accordingly, we conclude the trial court did not abuse 

its discretion by admitting this evidence.

III. PENALTY PHASE ISSUES

A. Alleged Witt Error

Erskine contends that the trial court violated his right to 

an impartial penalty phase jury under the federal and state 

Constitutions by erroneously excusing Prospective Juror 
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Opinion of the Court by Liu, J.

25

No. 154 for cause because of her views on the death penalty. 

(See Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).) “A 

prospective juror may be challenged for cause based upon his or 

her views regarding capital punishment only if those views 

would ‘ “prevent or substantially impair” ’ the performance of 

the juror’s duties as defined by the court’s instructions and the 

juror’s oath.” (People v. Cunningham (2001) 25 Cal.4th 926, 975

(Cunningham), quoting Witt, at p. 424.) 

1. Background

On her juror questionnaire, Prospective Juror No. 154 

stated that she is “not in favor of the death penalty in general” 

but is “fair and honest about following the judges [sic] direction.” 

She added, “I believe the [United States] should outlaw the 

death penalty as I do not believe ‘an eye for an eye,’ ” while life 

imprisonment without the possibility of parole “is the 

appropriate direction of punishment society should take.” When 

asked for what kinds of crimes, if any, she believed the death 

penalty should be imposed, she answered “none”; she stated that 

the death penalty is imposed “too often,” explaining, “I do not 

believe it should be done.” She answered that life without the 

possibility of parole is a worse punishment than death, 

explaining that “taking away a persons [sic] freedom” is 

“sufficient[] punish[ment]” and that “[i]t is, I feel, important in 

some cases to do this without possibility of them ever being 

returned to society — But not to take their life.” She answered 

“yes” to whether her opposition was so strong that it would 

substantially affect her ability to impose the death penalty 

regardless of the facts and “yes” to whether she had any moral, 

religious, or philosophical opposition to the death penalty so 
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Opinion of the Court by Liu, J.

26

strong that it would substantially affect her ability to impose the 

death penalty regardless of the facts. She explained, “I am not 

positive that I will not feel responsible should the decision be 

the death penalty. I would need to discuss further (after the 

case) w[ith] my Rabbi.” She stated she did not know whether 

she could be open-minded about the penalty in this case 

explaining: “I thought myself to be open minded however going 

through this questionnaire I’m not positive I can be a deciding 

vote in taking a person’s life.” She concluded, “I feel as though 

I have maybe contradicted myself about my attitude against the 

death penalty and my ability to be open and nonjudgmental 

about deciding the case. But it’s kind of like my being highly 

pro-choice but I couldn’t imagine having an abortion when I 

found I was pregnant. Attitudes change upon circumstance and 

life experience. I do feel I can follow the laws laid out by the 

judge.” 

During voir dire, Prospective Juror No. 154 agreed that 

she was open to returning a death verdict if she “was convinced 

that that was the appropriate sentence in accordance with the 

laws of the state of California” and that she could follow the laws 

that the judge would provide, but added, “I don’t know how I 

would feel should the case be that this gentleman was, you 

know, sentenced to death. I’m not positive that I could handle 

that afterwards.” In response to questions from the prosecutor, 

she clarified that her moral, religious, or philosophical 

opposition to the death penalty would affect how she “would feel 

personally after” the verdict, but that it would not substantially 

affect how she would judge or view this case. But she confirmed 

her response on the questionnaire that she felt so strongly 

against the death penalty that it would substantially affect her 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

27

ability to vote for the death penalty no matter what evidence 

was presented, although she said this response reflected “the 

emotional state, in consideration, that I was in at that time . . . 

having not considered it in the past.” She also confirmed she 

still felt “I’m not positive I can be a deciding vote in taking a 

person’s life,” as stated on her questionnaire. 

The prosecutor challenged Prospective Juror No. 154 for 

cause. The trial court offered a tentative view based on its 

“observations and reading the questionnaire” that the juror was 

not death qualified. The prosecutor argued that her 

questionnaire as well as her responses on voir dire indicated 

that “her feelings on the death penalty would substantially 

affect her ability to return a death verdict.” The prosecutor 

explained, “The fact that she wants to intellectualize that she 

would realistically consider both penalties is not the standard. 

The standard is, would her opposition to the death penalty 

substantially affect her decisionmaking process? She has 

repeatedly said, yes, it would. Let’s take this juror at her word.” 

The trial court found that Prospective Juror No. 154 was 

not qualified to be a juror, citing her questionnaire responses 

“that she feels so strongly against the death penalty that it 

would substantially affect her ability to vote for the death 

penalty, no matter what evidence was presented.” The trial 

court added, “As a matter of fact, this was one of my ones that I 

had checked off after reading the questionnaires. So I believe 

that she is unable to vote for death.”

2. Analysis

As an initial matter, we agree with Erskine that the 

prosecutor was not correct in stating that “[t]he standard is, 
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Opinion of the Court by Liu, J.

28

would her opposition to the death penalty substantially affect 

her decision-making process?” A juror is permitted to consider 

the aggravating and mitigating evidence in light of his or her 

own views regarding punishment; the appropriate question for 

the court is whether the juror’s views would “ ‘ “prevent or 

substantially impair” ’ the performance of the juror’s duties as 

defined by the court’s instructions and the juror’s oath.” 

(Cunningham, supra, 25 Cal.4th at p. 975, quoting Witt, supra, 

469 U.S. at p. 424.) 

“The proper standard for determining when a prospective 

juror may be excluded for cause because of his or her views on 

capital punishment” “does not require that a juror’s bias be 

proved with ‘unmistakable clarity.’ ” (Witt, supra, 469 U.S. at 

p. 424.) Many prospective jurors have never been called upon to 

publicly articulate their views regarding the death penalty, and 

Prospective Juror No. 154 acknowledged that whether she could 

vote for the death penalty in a criminal trial was not a question 

she had considered in the past. In this case, we find apt the 

high court’s observation that “many veniremen simply cannot be 

asked enough questions to reach the point where their bias has 

been made ‘unmistakably clear’; these veniremen may not know 

how they will react when faced with imposing the death 

sentence, or may be unable to articulate, or may wish to hide 

their true feelings.” (Id. at pp. 424–425.) Even when the record 

contains equivocal or ambiguous responses, “there will be 

situations where the trial judge is left with the definite 

impression that a prospective juror would be unable to faithfully 

and impartially apply the law.” (Id. at p. 425–426; see People v. 

Lynch (2010) 50 Cal.4th 693, 733 [trial court’s assessment of 
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Opinion of the Court by Liu, J.

29

juror’s state of mind in the event of conflicting or equivocal 

responses is binding on appeal].)

Here, the trial court was attentive to Prospective Juror 

No. 154’s questionnaire responses, and the inconsistencies in 

those responses were not resolved through voir dire, despite 

efforts by defense counsel and the prosecutor. For example, the 

juror stated on voir dire that she was open to imposing the death 

penalty if appropriate under the law as provided by the court. 

But she also confirmed her questionnaire answer that she was 

“not positive [she] can be a deciding vote in taking a person’s 

life.” The trial court, based on its “observations and reading the 

questionnaire,” was left with the definite impression that 

Prospective Juror No. 154 was “unable to vote for death.” 

Although it was not necessary for the court to find the juror 

“unable” to vote for death in order to satisfy the Witt inquiry, 

such a finding is nevertheless a sufficient basis to excuse the 

juror for cause. We have no basis for second-guessing the trial 

court’s conclusion in the face of Prospective Juror No. 154’s 

equivocal answers.

B. Constitutionality of Penalty Phase Retrial 

Following a Hung Jury

Erskine argues, as general matter, that penalty retrial 

following a hung jury violates his rights to a fair jury trial, 

reliable penalty determinations, freedom from cruel and 

unusual punishment, due process and equal protection, as 

guaranteed under the federal and state Constitutions. We have 

consistently rejected this claim. (See, e.g., People v. Reed (2018) 

4 Cal.5th 989, 1016.) Erskine notes that the first set of jurors 

deliberated for four days on the issue of penalty before declaring 
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Opinion of the Court by Liu, J.

30

they were hopelessly deadlocked, while the second jury required 

just three hours of deliberation to return a death verdict. But 

he does not explain how this affects our analysis or offer any 

other reason to revisit our precedent.

C. Empirical Evidence Regarding Application of 

the Death Penalty and Alternative Remedies

1. Background

Erskine moved before trial to declare the death penalty 

unconstitutional in practice, citing to several social science 

studies purporting to show that capital jurors in various states 

do not follow the constitutional guidelines established in 

Furman v. Georgia (1972) 408 U.S. 238 and its progeny. In 

response to the prosecution’s opposition to the motion, Erskine 

proposed two alternative remedies if his motion were denied: (1) 

sequestered voir dire per Hovey v. Superior Court (1980) 28 

Cal.3d 1; or (2) asking prospective jurors whether they believed 

death to be the only appropriate punishment for certain crimes. 

The trial court denied the request for sequestered voir dire, 

denied the specific written questions, and deferred ruling on the 

motion itself until after the jury reached a verdict. 

After the penalty phase retrial and verdict, the trial court 

held a multiday hearing regarding the motion, including three 

days of testimony from Dr. William Bowers of the Capital Jury 

Project. Following the hearing and argument, the trial court 

denied Erskine’s motion to declare the death penalty 

unconstitutional in general or as applied in his case. The trial 

court explained: “A lot of the study doesn’t consider, if a juror 

has feelings or thoughts on a subject, whether those thoughts or 

feelings may be set aside and whether a juror may be able to 
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Opinion of the Court by Liu, J.

31

follow jury instructions. [¶] Throughout our courts — both the 

U.S. Supreme Court and the California Supreme Court, the 

Ninth Circuit — there always is the crucial assumption 

underlying our system that jurors understand and faithfully 

follow court instructions. [¶] I don’t believe the evidence that 

was produced in support of defendant’s motion rebuts that 

presumption in this case. [¶] There was a time lag from the 

time decisions were made by the jurors and the time they were 

interviewed. . . . The questioning of the Capital Jury Project, of 

course, doesn’t . . . allow the jurors to refer to . . . [their] 

instructions, [which were there] in the jury room with them to 

refer to during their deliberations. . . . [I]t seems to me that, in 

many of these cases, before we can come to broad, sweeping 

conclusions, I think we’ve got to go back and look at fact-specific 

cases and fact-specific jurisdictions. And I think there is some 

difficulty in lumping in the practices and procedures [in 

different states] and different wording of statutes in coming to 

broad, sweeping conclusions. . . . And for those reasons, 

including the fact that I think the court is bound by precedent, 

the defendant’s motion is denied.” 

2. Analysis

This court has rejected similar empirical evidence, albeit 

in cases where the evidence was not placed in the trial record or 

subject to cross-examination. (See, e.g., People v. Ervine (2009) 

47 Cal.4th 745, 798 [pattern instruction regarding life without 

the possibility of parole], citing People v. Lindberg (2008) 45 

Cal.4th 1, 53; People v. Abilez (2007) 41 Cal.4th 472, 527–528; 

People v. Boyer (2006) 38 Cal.4th 412, 487.) For many of the 

reasons cited by the trial court, Erskine’s evidence does not 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

32

rebut the presumption that jurors are presumed to understand 

and accept the court’s instructions. (People v. Mickey (1991) 54 

Cal.3d 612, 689, fn.17.) And, with the exceptions discussed 

below, Erskine does not challenge the sufficiency of the 

instructions in this case. Nor does Erskine offer any evidence 

that jurors in this instance failed to follow the law as set forth 

in the court’s instructions. 

In the alternative, Erskine argues the trial court erred by 

denying two proposed remedies: (1) individual, sequestered voir 

dire; or (2) questioning prospective jurors about whether they 

believed that death was the only appropriate punishment for 

specific types of crimes. The first argument has been rejected 

by this court. (See People v. Lewis (2008) 43 Cal.4th 415, 493–

494, disapproved on another ground in People v. Black (2014) 58 

Cal.4th 912, 919.) As to the second, the questionnaire in this 

case elicited similar information (for example, asking jurors,

“For what kinds of crimes, if any, do you believe the death 

penalty should be imposed?” and “Do you feel so strongly in favor 

of the death penalty that it would substantially affect your 

ability to vote for life imprisonment without possibility of parole, 

no matter what evidence was present?”). Erskine does not point 

to any instances in which the court precluded him from asking 

such a question directly on voir dire. We therefore reject this 

claim.

D. Error To Instruct Jury To Reach a Penalty 

Verdict “Regardless of the Consequences”

The trial court’s preliminary instructions to the jury at the 

second penalty phase trial included CALJIC No. 1.00, which 

instructs the jurors on the respective roles of the judge and jury 
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Opinion of the Court by Liu, J.

33

and concludes with the following admonition, to which Erskine 

objects: “Both the People and a defendant have a right to expect 

that you will conscientiously consider and weigh the evidence, 

apply the law, and reach a just verdict regardless of the 

consequences.” (Italics added.) We have repeatedly explained 

that this instruction should not be given at the penalty phase 

because the “ ‘consequences’ ” at the penalty phase — the choice 

between death and life imprisonment without the possibility of 

parole — “are precisely the issue that the jury must decide.” 

(People v. Brown (1985) 40 Cal.3d 512, 537, fn. 7, revd. on other 

grounds sub nom. California v. Brown (1987) 479 U.S. 538; see 

also People v. Kipp (1998) 18 Cal.4th 349, 379 (Kipp) [same].) 

The Attorney General concedes the instruction was given in 

error and that the issue is cognizable on appeal even though 

Erskine did not object at the time, but argues the error was 

harmless as the instructions as a whole adequately conveyed the 

appropriate scope of the jurors’ duties. 

“[W]e have generally declined to find prejudice when the 

instruction is viewed as part of the entire charge, reasoning that 

the jury is almost certain to understand ‘that it was entitled to 

disregard only those “consequences” not constitutionally 

relevant to its sentencing decision, and that it bore the ultimate 

responsibility for choosing between death and life 

imprisonment without parole based on the particular 

circumstances of the case.’ ” (Kipp, supra, 18 Cal.4th at pp. 379–

380.) Erskine argues the error was not harmless in this instance 

because the prosecutor “indoctrinated” the jurors repeatedly 

from voir dire through closing argument “with the incorrect 

notion that they were required by law to impose the death 

penalty if they found that aggravating factors outweighed 
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Opinion of the Court by Liu, J.

34

mitigating factors.” But the jurors were correctly instructed as 

to the proper weighing of aggravating and mitigating factors 

and that “[i]f anything concerning the law said by the attorneys 

in their arguments or at any other time during the trial conflicts 

with my instructions on the law, you must follow my

instructions.” Erskine does not independently argue that the 

prosecutor’s comments rose to the level of misconduct; in any 

event, “[W]e presume the jury understood and followed the 

court’s instructions.” (Jackson, supra, 1 Cal.5th at p. 352.)

E. Miscellaneous Challenges to the Death 

Penalty 

Erskine raises a number of challenges to the 

constitutionality of California’s death penalty statute that we 

have consistently rejected. Erskine provides no persuasive 

reason to revisit the following precedent:

We have previously held that Penal Code section 190.2 

“ ‘ “adequately narrows the class of murderers subject to the 

death penalty” ’ ” and thus does not violate the Eighth 

Amendment to the federal Constitution. (People v. Masters

(2016) 62 Cal.4th 1019, 1077 (Masters); see also People v. 

Cunningham (2015) 61 Cal.4th 609, 671; People v. Ramos (2004) 

34 Cal.4th 494, 532–533.)

We have held that neither the Eighth Amendment nor the 

due process or equal protection guarantee of the federal or state 

Constitution precludes imposition of a death sentence against 

an individual with intellectual impairments short of intellectual 

disability or insanity. (People v. Boyce (2014) 59 Cal.4th 672, 

721–723.)
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Opinion of the Court by Liu, J.

35

“ ‘The alleged inconsistency between regular imposition of 

the death penalty and international norms of human decency 

does not render that penalty cruel and unusual punishment 

under the Eighth Amendment [citation]; nor does “regular” 

imposition of the death penalty violate the Eighth Amendment 

on the ground that “ ‘[i]nternational law is a part of our law.’ ” 

(Masters, supra, 62 Cal.4th at pp. 1077–1078, quoting People v. 

Lee (2011) 51 Cal.4th 620, 654.)

Both this court and the high court have held that the 

current application of Penal Code section 190.3, factor (a), is 

constitutional. (Tuilaepa v. California (1994) 512 U.S. 967, 976; 

People v. Johnson (2016) 62 Cal.4th 600, 655; People v. Rountree 

(2013) 56 Cal.4th 823, 860.)

“ ‘Nothing in the federal Constitution requires the penalty 

phase jury to make written findings of the factors it finds in 

aggravation and mitigation [or to] agree unanimously that a 

particular aggravating circumstance exists.’ ” (People v. 

Williams (2013) 58 Cal.4th 197, 295.) Nor is the death penalty 

statute unconstitutional for not requiring “findings beyond a 

reasonable doubt that an aggravating circumstance (other than 

Pen. Code, § 190.3, factor (b) or (c) evidence) has been proved, 

that the aggravating factors outweighed the mitigating factors, 

or that death is the appropriate sentence.” (People v. Rangel

(2016) 62 Cal.4th 1192, 1235.) 

“Neither intercase proportionality nor disparate sentence 

review is constitutionally compelled.” (Jackson, supra, 1 Cal.5th 

at p. 373, citing People v. Banks (2014) 59 Cal.4th 1113, 1207; 

People v. Eubanks (2011) 53 Cal.4th 110, 154.) “ ‘Moreover, 

“capital and noncapital defendants are not similarly situated 
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Opinion of the Court by Liu, J.

36

and therefore may be treated differently without violating” a 

defendant’s right to equal protection of the laws, due process of 

law, or freedom from cruel and unusual punishment.’ ” (People 

v. Gomez (2018) 6 Cal.5th 243, 316 [240 Cal.Rptr.3d 315, 381].)

“ ‘The jury may properly consider evidence of 

unadjudicated criminal activity under [Penal Code] section 

190.3, factor (b) (People v. Whisenhunt [(2008)] 44 Cal.4th [174,] 

228), [and] jury unanimity regarding such conduct is not 

required [citation].’ (People v. Lee (2011) 51 Cal.4th 620, 653).” 

(People v. Powell (2018) 6 Cal.5th 136, 193 (Powell).)

“ ‘ “The use of the words ‘ “extreme” ’ in [Penal Code] 

section 190.3, factors (d) and (g), and ‘ “substantial” ’ in factor 

(g), does not act as a barrier to the consideration of mitigating 

evidence in violation of the Fifth, Sixth, Eighth, and Fourteenth 

Amendments.” [Citation.]’ (People v. Cage (2015) 62 Cal.4th 

256, 296 . . . .)” (Powell, supra, 6 Cal.5th at p. 194.)

“ ‘ “ ‘ “ ‘[T]he statutory instruction to the jury to consider 

“whether or not” certain mitigating factors were present did not 

impermissibly invite the jury to aggravate the sentence upon the 

basis of nonexistent or irrational aggravating factors.’ ” ’ ” 

(People v. Edwards (2013) 57 Cal.4th 658, 766; accord, People v. 

Linton [2013] 56 Cal.4th [1146,] 1216.) “There is no 

constitutional requirement that the jury be instructed regarding 

which of the statutory factors in [Penal Code] section 190.3 are 

aggravating, which are mitigating, and which could be either 

aggravating or mitigating.” (People v. Merriman[, supra,] 60 

Cal.4th [at pp.] 106–107.)’ ” (Powell, supra, 6 Cal.5th at p. 194.) 

Nor was the trial court required to delete inapplicable factors 
PEOPLE v. ERSKINE

Opinion of the Court by Liu, J.

37

from CALJIC No. 8.85. (People v. Watson (2008) 43 Cal.4th 652, 

701.) 

IV. CONCLUSION

We affirm the judgment in its entirety.

LIU, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Erskine

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S127621

Date Filed: May 23, 2019

__________________________________________________________________________________

Court: Superior

County: San Diego

Judge: Kenneth K. So

__________________________________________________________________________________

Counsel:

Kimberly J. Grove, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Robin Urbanksi, Deputy 

Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kimberly J. Grove

P.O. Box 425

Ligonier, PA 15658

(724) 238-3497

Robin Urbanksi

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9115