1

Filed 6/27/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S080054

v. )

)

DANIEL ANDREW LINTON, )

) Riverside County

Defendant and Appellant. ) Super. Ct. No. CR60158

____________________________________)

A jury convicted defendant Daniel Andrew Linton of the 1994 first degree 

murder of 12-year-old Melissa Middleton (Pen. Code, § 187)1 and found true the 

special circumstance allegations that the murder was committed during the 

commission of a first degree burglary, a forcible lewd act with a child under the 

age of 14 years, and the commission or attempted commission of rape (§ 190.2, 

former subd. (a)(17)(iii), (v), (vii), added by initiative, Gen. Elec. (Nov. 7, 1978), 

Prop. 7, now subd. (a)(17)(C), (E), (G)). The jury also convicted defendant of 

three offenses relating to a prior assault on Melissa — residential burglary (§ 459), 

attempted rape (§§ 664/261, subd. (a)), and a forcible lewd act on a child under the 

age of 14 years (§ 288, subd. (b)). The jury returned a verdict of death for 

Melissa‟s murder. 

 

1 All further statutory references are to the Penal Code unless otherwise 

indicated.
2

The trial court denied defendant‟s motion for new trial and his motion to 

modify the verdict. The trial court sentenced defendant to death. The court also 

imposed on defendant a determinate sentence of six years in prison for his 

conviction of a forcible lewd act on a child under the age of 14 and a concurrent 

term of four years for his conviction of attempted rape. The trial court imposed, 

but stayed pursuant to section 654, an 18-month sentence for defendant‟s 

conviction of burglary. This appeal is automatic. (§ 1239, subd. (b).) We affirm 

the judgment. 

I. FACTS

A. Guilt phase evidence

At trial it was undisputed that defendant strangled and killed 12-year-old 

Melissa Middleton. The defense theory was that defendant did so as a result of a 

panic attack, which was consistent with his cognitive psychological functioning, 

and as a result defendant lacked the specific intent necessary for the charged 

murder. Contending defendant was coerced into false admissions and confessions 

by his interrogators, the defense disputed the special circumstance allegations that 

defendant murdered Melissa during the commission of a burglary, a lewd act on a 

child or attempted rape, as well as the offenses charged in connection with the 

alleged prior assault involving Melissa. 

1. The prosecution’s case-in-chief

a. Background

In the fall of 1994, Linda and Robert Middleton lived with their 12-year-old 

daughter Melissa in a two-story home in San Jacinto, California.2 Carl and Jean 

 

2 References hereafter to the Middletons are to Linda and Robert Middleton 

together. When we refer to one of them individually, we will use their first names. 
3

Linton lived next door with their two children, 20-year-old defendant Daniel 

Linton and eight-year-old Stacey. The two families had been next door neighbors 

for about seven years and their daughters were close friends. 

The Middletons hired defendant to take care of their pets while they were 

away on vacation. After their last family vacation in April 1994, the Middletons 

forgot to retrieve from defendant the keys they had given him for their house. 

Defendant did not, however, have permission to be in the Middleton house 

anytime after their vacation. 

b. Prior attack: late September – early October 1994

Around 2:00 a.m. one night in late September or early October 1994, 

Melissa came into her parents‟ bedroom upset and crying. Melissa told her 

parents that a man had been on top of her in her bedroom, choking her with his 

hands. Melissa told them she did not know what the man looked like. 

While Linda comforted Melissa, Robert went to check the house. The 

doors were locked and there were no signs of a break-in. He walked around the 

neighborhood, looking for anything unusual. As Robert passed the Linton house, 

he noticed a light was on and he saw through a window Joseph Montero working 

on a computer. Montero was a friend of defendant‟s who lived with the Lintons 

for a month in the fall of 1994. Robert spoke with Montero and told him that 

Melissa thought someone had been in the Middleton house. Montero told Robert 

he had not seen anyone. According to Montero, defendant was not home when 

Montero spoke with Robert. Defendant returned home approximately 15 to 20 

minutes later, out of breath, and looking frightened. 

Melissa had already fallen back asleep by the time Robert returned to their 

home. Linda and Robert discussed the incident and concluded Melissa must have
4

had a nightmare. The next morning Melissa denied that it was a nightmare and 

said the man had been nude. 

Linda believed this incident occurred about two months prior to 

November 29, 1994. Robert also believed the attack occurred about that time, but 

in any event, he was certain there was only one such prior incident. 

c. The death of Melissa on November 29, 1994

Melissa was sick and stayed home from school on November 29, 1994. 

Linda told Melissa to stay in bed, sleep, and take her medicine. Linda locked the 

front door and left for work. Robert had already left. 

Around noon, Linda telephoned Melissa to check on her. There was no 

answer. This worried Linda, but she concluded Melissa was probably sleeping 

and did not hear the phone. 

Linda returned home from work around mid-afternoon, unlocked the door, 

and called for Melissa. There was no response, but everything looked normal. 

Linda went upstairs. Melissa was not in her bedroom. When Linda went to the 

master bedroom, she saw Melissa sitting on the floor at the foot of the bed with 

her legs crossed, her “arms kind of out,” and her head to one side. Melissa was 

wearing shorts, one sock, and the same shirt that she had been wearing that 

morning. Melissa‟s shorts were unbuttoned and unzipped. Linda called Melissa‟s 

name a couple of times, touched her, and realized she was dead. After an 

unsuccessful resuscitation attempt, Linda ran to the home of a neighbor, asked for 

help, and called 911. 

San Jacinto Police Detective Michael Lynn arrived at the Middleton home a 

short time later. He found no signs of forced entry into the house and no 

indication that the home had been burglarized. Lynn went up to the master 

bedroom, where Melissa had been placed on the floor. He observed red bruise 
5

lines on Melissa‟s neck, including a red line leading from the middle of her throat 

up to behind her right earlobe area. Believing the injuries were suspicious, Lynn 

declared the area a homicide crime scene. Lynn collected a pair of stereo 

headphones with a broken cord, which was located near Melissa at the bottom of 

the bed. Lynn believed the cord could have been used to cause the injury on 

Melissa‟s neck. 

Dr. Joseph Choi, a forensic pathologist working for the coroner‟s office, 

subsequently performed an autopsy of Melissa. He determined that Melissa died 

of asphyxiation due to strangulation. Melissa‟s body had signs of both ligature 

and manual strangulation. Choi opined that the linear abrasion on Melissa‟s neck 

could have been caused by a cable, cord, or headphone wire. Melissa‟s injuries 

were consistent with someone pulling on the ligature from behind, not someone 

putting the ligature around her neck, crossing it in front and pulling it. 

Alternatively, the linear marks on Melissa‟s neck could have resulted from a cord 

placed around Melissa‟s neck if her hair was between the cord and her neck and if 

the ligature was pulled from one side. In addition to the linear abrasion, Choi 

found a large bruise on Melissa‟s neck that could have been caused by a thumb or 

finger. Melissa also had signs of hemorrhaging that were consistent with 

strangulation. 

Swabs from Melissa‟s mouth, anus and vagina tested negative for sperm, 

and Choi found no injuries or abnormalities on her genitalia. The DNA profile 

found on two fragments of fingernail clippings from Melissa‟s left hand was 

consistent with defendant‟s profile. The DNA could have come from Melissa 

having scratched the defendant. 
6

d. Defendant’s statements to police

Shortly after 4:30 p.m. on November 29, Detective Glenn Stotz began to 

canvas neighbors regarding Melissa‟s death. His first stop was the Linton home, 

where defendant answered the door. Stotz introduced himself and asked defendant 

if he had heard what happened next door. Defendant indicated he had already 

heard Melissa had been killed. Defendant told Stotz that he had been home all 

day, but he did not see or hear anything out of the ordinary. He said he did not 

know Melissa well, although she was a good friend of defendant‟s sister. 

Defendant asked Stotz how Melissa was killed and Stotz told him that it appeared 

she was choked to death. Stotz did not provide any further information. 

After canvassing other residences, Detective Stotz went back with 

Detective Lynn to the Linton residence. Defendant and his sister Stacey answered 

the door. Defendant had changed his clothes. Stotz asked defendant to confirm 

that he did not know Melissa very well. Defendant responded that he hardly knew 

her. Stacey interjected, “Uh-huh. You used to fight with her all the time.” 

Defendant looked at Stacey and, according to the detectives, he appeared to be 

“shocked” and “appalled.” Stotz then spoke with defendant alone. 

Defendant continued to claim he did not know Melissa well. Detective 

Stotz asked defendant if he knew anything about an incident in which Melissa had 

told her parents that she had been attacked in her room in the middle of the night. 

Defendant initially denied any knowledge of the previous assault, but later told 

Stotz about an occasion when two or three weeks earlier he woke up in his front 

yard around midnight wearing jeans and underwear, but no shirt or socks. 

Defendant thought he might have been sleepwalking. Stotz asked to look at 

defendant‟s hands. When defendant held out his hands, Stotz noticed defendant 

had scratch and gouge marks on his lower right forearm. He was visibly nervous. 

His arms and hands were shaking and his palms were extremely sweaty. 
7

Defendant claimed he received the marks earlier in the day when playing with his 

cat. 

In the evening a few hours later, Detective Stotz returned to the Linton 

home, accompanied by Deputy District Attorney William Mitchell. Defendant 

agreed to speak with them and they went back to defendant‟s bedroom. 

Defendant spoke with Stotz and Mitchell for about a half-hour.3 Defendant 

claimed he was at home all morning and that he did not see Melissa that day. He 

had not been to the Middleton home since he last took care of their animals about 

three months earlier, and he had returned their keys at that time. When asked if he 

heard what happened to Melissa that day, defendant said that he heard she had 

been strangled with a cord and that she was found dead on the floor in her parent‟s 

room. Stotz had not told defendant these details. Stotz asked defendant if he had 

talked to anyone other than Stotz about Melissa‟s death. Defendant said he had 

not. Mitchell and Stotz asked defendant if he would agree to speak with 

investigators the next day and defendant agreed. 

Stotz telephoned defendant the next morning and defendant again agreed to 

speak with investigators. Detectives Stotz and Lynn picked defendant up from his 

home. During the drive to the police station, defendant said to the officers, “I‟m 

sorry I wasted your time. I wanted to turn myself in last night, but I couldn‟t do it 

in front of my parents.” Defendant also said, “I wasn‟t sure I could admit it.” 

Defendant was crying and shaking. He appeared remorseful and sad. The officers 

asked him if he was willing to go to the office for a formal interview and he said 

“Yeah. I‟ll tell you everything.” 

 

3 Stotz used a microcassette tape recorder given to him by Detective Lynn to 

record the interview of defendant in his bedroom without telling defendant that he 

was doing so. The tape was not played for the jury.
8

At the police station, defendant was advised of his rights pursuant to 

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and agreed to answer 

questions.4 He gave a simplified account of the killing. He told Stotz that he went 

to the Middleton house about 10:00 or 11:00 the previous morning and noticed the 

front door was unlocked. He said he did not know why he went over to the house 

and he denied he had a key for the house. He said he had given the key back two 

months earlier after he watched the family‟s pets. Defendant said that when he 

went inside the house, he heard a noise and thought Linda was home. He went 

upstairs and found Melissa instead. Melissa told defendant she was going to call 

the police and as he was getting ready to leave, she started screaming. Defendant 

grabbed her by the throat and she stopped screaming. He did not really notice 

“how far [he] had gone until it was, until it was too late.” 

After a long pause waiting for defendant to add anything further, Detective 

Stotz asked defendant if it would be easier for defendant if Stotz asked some 

questions. Defendant said, “Yeah.” Stotz proceeded to elicit additional details 

about the murder and the prior assault by further questioning of defendant. 

Defendant said when Melissa started screaming, she ran into her parents‟ 

room to call the police. Stotz asked defendant if he had any idea why Melissa 

started screaming as soon as she saw him and wondered whether Melissa was 

afraid of defendant. Defendant agreed that she might have been afraid of him 

because of the incident that happened a couple of weeks earlier. Defendant said 

that after Melissa started screaming, he followed her into her parents‟ bedroom,

pushed her onto the bed so that she could not reach the telephone, grabbed her 

 

4 The audiotape of defendant‟s interview at the police station was played for 

the jury. 
9

throat with both hands and started choking her. As Melissa struggled and gasped 

for air, defendant grabbed the headphones that were on the nightstand by the bed. 

He did not recall how he put the cord around Melissa‟s neck, although he was 

certain he was standing in front of her. He thought he may have put it around the 

back of her neck, crisscrossed it in front of her throat, and pulled. After a few 

seconds, the cord broke and defendant resumed choking Melissa with his hands. 

After she fell off the foot of the bed and was no longer “awake,” defendant sat her 

up against the bed. He then picked up a rag and wiped the headphone cord, the 

stair rail, and the doorknobs on the front door to get rid of fingerprints. 

Stotz returned several times to the question of why defendant went over to 

the Middleton house. At first defendant said he went into the house just to look 

around. Later he admitted going into the home to look for money. Defendant said 

he needed money because someone had taken $100 from him. He unsuccessfully 

searched the downstairs area of the Middleton home before going upstairs. 

Defendant said he had also gone to the Middleton house in the prior incident 

because he needed money then as well. 

Defendant repeatedly denied any sexual relationship with or sexual interest 

in Melissa as a motive for going over to the house. He specifically denied raping 

Melissa. Defendant denied trying to have sex with Melissa during the incident 

that he thought was two weeks prior to the killing, not two months earlier. He said 

he was half asleep at that time, although he did remember going up to Melissa‟s 

room and then choking her when it seemed like she was going to wake her parents. 

Asked to explain how Melissa‟s shorts came to be unbuttoned and unzipped on the 

day of her death, defendant initially suggested she might have been changing them 

and said that if he had noticed her zipper was down, he would have zipped it up. 

Later he suggested her pants may have been tight and that was why the zipper 

came undone. At another point, he speculated that she may have needed to use the 
10

toilet and that she saw him as she was on her way to or from the bathroom. 

Eventually, defendant admitted he had unzipped Melissa‟s shorts during the 

struggle and said the thought crossed his mind to have sex with her, but he claimed 

it was more to scare her so she would not say anything. Finally, during an 

afternoon interview with Detectives Stotz and Fred Rodriguez, defendant admitted 

he tried to rape Melissa during the previous incident “whenever it was.” He also 

admitted that on the day of the killing, the thought crossed his mind to rape 

Melissa, but after he undid her zipper, he changed his mind. 

Defendant said that after the killing, he returned home, took a shower, 

changed and washed his clothes. He also threw away the Middletons‟ keys, which 

he ultimately admitted to using in order to gain entry into the Middleton house on 

both the previous day and on the prior occasion. He told Stotz they were still in 

the trash can at his house. 

During a subsequent search of defendant‟s home, Stotz found the 

Middletons‟ house keys, one of Melissa‟s rings, and a pair of Melissa‟s soiled 

underpants in the kitchen trash can. Melissa‟s DNA was found on the crotch of 

the underpants. Defendant‟s DNA was found in sperm and semen on the front and 

back of the underpants. There was no semen on the clothes Melissa was wearing 

when she was murdered. 

2. The defense case

Defendant did not testify. To challenge the special circumstance 

allegations and the charges relating to the previous incident, the defense presented 

the testimony of several experts as well as a neighbor and the deputy district 

attorney who questioned defendant at the police station.

Dr. Werner Spitz, a forensic pathologist, reviewed autopsy photographs of 

Melissa and from them concluded Melissa was not strangled to death in the 
11

manner described by the prosecution. Spitz believed the marks on Melissa‟s neck 

were consistent with someone grabbing and twisting Melissa‟s shirt around her 

neck, thereby cutting off the blood flow to her brain. Spitz attributed the large 

bruise on her neck to a knuckle going into her neck as part of this twisting process. 

He theorized that Melissa may have lost consciousness and died within 20 to 30 

seconds. 

The defense called Deputy District Attorney John Chessell and questioned 

him regarding his participation with Detective Stotz in defendant‟s interrogation at 

the police station. Chessell denied that he tried to plant in defendant‟s mind the 

answers the prosecution wanted. Chessell admitted that, contrary to some of his 

previous testimony, there may have been some brief conversation with defendant 

that was not tape-recorded because it occurred while the cassette was being turned 

over. 

The defense called Dr. Craig Rath, a licensed clinical psychologist, to 

testify regarding his interview and psychological testing of defendant at the police 

station on November 30, 1994. Rath interviewed and tested defendant that day at 

the request of the prosecution for the purpose of determining defendant‟s mental 

functioning and mental status.5 According to Rath, defendant was generally alert 

and answered virtually all of Rath‟s questions, although Rath found defendant‟s 

affect to be flat. Rath and defendant discussed some of defendant‟s medical, 

school, and family history. They discussed some of the details regarding 

defendant‟s killing of Melissa and the previous incident occurring at her house. 

Rath found no indication defendant was insane, had brain damage, suffered any 

deficits in cognitive function or had any major mental illness. Defendant scored 

 

5 An audiotape of Rath‟s interview of defendant was played for the jury. 
12

high on social introversion and depression on the Minnesota Multiphasic 

Personality Inventory (MMPI) test administered by Rath. Defendant‟s MMPI 

responses indicated he had low energy, particularly for a 20-year-old man. His 

MMPI score was statistically elevated on the psychopathic deviant scale, but 

defendant did not meet the diagnostic criteria for a sociopath. 

Melody Morris, a nurse living next door to the Lintons, testified that

defendant was socially awkward and that she suspected defendant was physically 

abused by his father. 

Dr. Cecil Whiting, a licensed psychologist, performed a psychological 

evaluation of defendant in 1997, three years after Melissa‟s death. Whiting spent 

15 hours with defendant during six meetings and administered several 

psychological tests to him, including a version of the MMPI and the LuriaNebraska Neuropsychological Battery. Whiting listened to defendant‟s interviews 

with the detectives and Dr. Rath, reviewed Rath‟s written report and defendant‟s 

school and medical records, and spoke to some of defendant‟s family members. 

Dr. Whiting was critical of Dr. Rath‟s interview methods and results, 

although he felt Rath‟s testing supported his own diagnosis. Whiting concluded 

defendant had neuropsychological impairment and suffered from depression, 

social phobia (manic panic disorder with manic attacks based on right temporal 

lobe damage), and avoidant personality disorder featuring social phobia and panic 

attacks. The most prominent part of defendant‟s personality was self-isolation. 

According to Whiting, defendant‟s social introversion and low level of energy 

may have lowered his ability to withstand the pressures of interrogation and 

increased his suggestibility. 

Dr. Whiting opined defendant‟s statements during his interviews with 

police about his loss of perception of time and fear during the killing of Melissa, 

as well as his inability to fully recall the earlier incident at the Middleton home, 
13

were consistent with his suffering a panic attack during both the killing and the 

prior incident.6 Whiting testified that a person experiencing a panic attack rarely 

can describe everything that was happening at the time. Such a person may fill in 

the blank spaces of his or her memory with a description of what logically should 

have happened. 

3. The prosecution’s rebuttal case

Linda Middleton was recalled and testified that the button and zipper on 

Melissa‟s shorts were in working order when she last saw them and that Melissa 

did not have the habit of wearing clothes in disrepair. 

Robert Middleton was recalled and testified that the cord of his headphones 

was not damaged before Melissa‟s death. 

 

6 Dr. Whiting defined a panic attack as a discrete period of intense fear or 

discomfort during which four or more of the following symptoms develop 

abruptly and reach a peak within 10 minutes: (1) palpitations, pounding heart or 

accelerated heart rate; (2) sweating; (3) trembling or shaking; (4) sensations of 

shortness of breath or smothering; (5) feeling of choking; (6) chest pain or 

discomfort; (7) nausea or abdominal distress; (8) feeling of dizziness, being 

unsteady, lightheaded or faint; (9) derealization or depersonalization (being 

detached from oneself); (10) fear of losing control or going crazy; (11) fear of 

dying; (12) paresthesia (numbness or a tingling sensation); and (13) chills or hot 

flashes. Whiting acknowledged that Dr. Rath asked defendant during his 

interview on the day after the killing whether defendant had ever experienced what 

Rath described as “anxiety attacks,” listing trouble with breathing, heart pounding 

and sweating as typical symptoms. Defendant responded that previously he “had a 

couple of those, but not as hard, not that bad.” Defendant guessed the last time 

something like that happened to him had been three months earlier. Whiting 

criticized Rath, however, for not asking defendant followup questions after 

defendant described himself as being scared a number of times during the events 

leading to Melissa‟s death, inferentially suggesting such questions would have 

revealed defendant was experiencing symptoms of a panic attack at that time. 
14

B. Penalty phase evidence

1. The prosecution’s case

Both of Melissa‟s parents, Linda and Robert Middleton, testified about 

Melissa‟s sweet and friendly personality, musical talent, and interests in horseback 

riding, bicycling, Girl Scouts, camping, and dancing. They testified about how 

hard her death was on them, their son (Melissa‟s older brother), and Melissa‟s 

grandparents. They testified to a number of fond memories of Melissa and their 

regret that they will never see her graduate, marry, or become a teacher. They no 

longer celebrate Thanksgiving or Christmas. Robert lives with images of Melissa 

being hurt and pleading for her life. He feels guilty about not protecting her and 

thinking that the prior assault had been a nightmare. The Middletons sought 

psychiatric assistance for a year after the murder and tried different support groups 

until they found a group of parents of murdered children with whom they felt 

comfortable. Their son moved to Washington State and said he would never be 

able to live in California again. 

Two of Melissa‟s close school friends testified concerning the impact of her 

murder on them. They testified that Melissa was a very loving and cheerful 

person who always tried to make others feel better. They gave examples of the 

fun they had together. They testified to the shock and fear they felt when they 

learned of her murder, and said they still miss her. 

The Christmas parade at Melissa‟s middle school was dedicated to Melissa 

after her death. The school also recognized her with a memorial plaque beneath 

the school flagpole and an empty chair at graduation, on which students placed 

flowers. 

The prosecution presented 13 still photographs that showed Melissa at 

various stages of her life, the memorial plaque at her school, and the empty chair 

at graduation. 
15

2. The defense case

The defense presented the testimony of the two school psychologists who 

evaluated defendant when he was in kindergarten and when he was in third grade. 

Both described defendant‟s behavior and opined that defendant was a significantly 

emotionally disturbed child. They testified that children with such problems 

identified so early in life have a high probability of continuing to experience them

into adulthood. 

Defendant was in a special education class for emotionally disturbed 

children for both second and third grade. His teacher testified to defendant‟s 

withdrawn nature and social isolation. Defendant was one of the more disturbed 

children — in the top five — that she had encountered in her career. She related 

an incident of suspected physical abuse of defendant by his father. 

Although defendant was subsequently transferred to a private school and 

then to a regular classroom in public school, defendant finished high school in a 

continuation high school because he fell behind in credits. The lead teacher at the 

continuation high school testified that defendant continued to be a loner, his only 

friend being Montero. When defendant graduated, he was unprepared to go on to 

a four-year college. 

The defense established, through the testimony of defendant‟s father and 

other family members, that (a) from an early age defendant was subjected to harsh 

and inappropriate physical discipline from his father, who had a quick and fiery 

temper, (b) defendant was very shy, submissive and fearful, (c) although 

defendant‟s parents treated their daughter Stacey preferentially, defendant did not 

act resentfully of their favoritism, and (d) defendant was not aggressive or violent, 

but kind and loving. Defendant‟s grandmother testified that defendant had 

matured since his incarceration. She stated that he felt dreadful about Melissa.
16

The leader of a live action role-playing game club testified regarding 

defendant‟s participation in the club‟s weekly games for several years prior to his 

arrest. Defendant was shy and lacked confidence. He was a follower, who did not 

handle pressure well. Defendant could be talked into doing something he might 

not have wanted to do in the first place and then could become convinced it was 

his own idea. 

The custodian of records for the Riverside County Jail testified that the only 

disciplinary marker defendant received while in jail prior to and during trial in this 

case was for his possession of dice in violation of facility rules. 

II. GUILT PHASE ISSUES

A. The admissibility of defendant’s admissions and confessions 

Defendant unsuccessfully moved at his preliminary hearing to suppress his 

taped-recorded admissions and confessions on the ground that they were coerced 

by a promise of leniency. He later renewed his suppression motion, claiming his 

statements to police were involuntary under the totality of the circumstances, that 

the police and Dr. Rath failed to respect his invocation of his right to remain silent 

in violation of Miranda, supra, 384 U.S. 436, and that Rath failed to inform him of 

his rights in violation of Miranda. Defendant‟s motion was ultimately heard as a 

pretrial motion in limine and after an extended evidentiary hearing, it was denied. 

The trial court found defendant‟s statements were freely and voluntarily made and 

that there was no Miranda violation. The trial court denied defendant‟s motion for 

reconsideration made during the prosecution‟s case-in-chief and denied 

defendant‟s new trial motion, which included a claim that his statements were 

wrongly admitted. 

On appeal, defendant contends the trial court violated his rights to due 

process and against self-incrimination under the Fifth and Fourteenth 
17

Amendments to the United States Constitution and article I, section 7 of the 

California Constitution, when it overruled his legal challenges to the police 

interrogation tactics, which he claims vitiated his Miranda waiver, overbore his 

will and rendered his confessions involuntary. We reject defendant‟s contentions.

1. Defendant’s claim regarding the interview in his bedroom 

Defendant first contends his interrogation by Detective Stotz and Deputy 

District Attorney Mitchell in his bedroom on the evening of the killing was 

custodial and because he was not read and did not waive his Miranda rights, his 

responses should have been suppressed.

a. Additional factual background 

Detective Stotz first spoke with defendant on the day of the killing for 

about 10 minutes at defendant‟s front door. Stotz went on to canvass other 

neighbors. He learned that Melissa had confided in a 13-year-old neighbor that, 

two or three weeks before the murder, defendant had entered the Middleton home 

around midnight, tried to rape Melissa and then choked her. 

Detective Stotz returned to defendant‟s home with Detective Lynn, where 

they spoke with defendant and his sister Stacey. After defendant misrepresented 

the level of his acquaintance with Melissa, Lynn asked Stacey to step away from 

defendant so he could talk to her in private. Stotz stayed with defendant and 

continued to talk with him. Stotz again questioned defendant about his 

relationship with Melissa and asked defendant if he knew anything about the 

alleged prior attack on Melissa. Defendant initially denied any knowledge of the 

alleged prior attack, but later said he thought he knew what Stotz was referring to. 

Defendant told Stotz about an incident, which he thought occurred two or three 

weeks earlier, where he woke up in his front yard around midnight wearing jeans 

and underwear, but no shirt or socks. 
18

Detective Stotz returned to the Linton home around 8:00 p.m., 

accompanied by Mitchell, who was identified to defendant as a deputy district 

attorney. Mitchell was wearing a suit and tie. Stotz was in plain clothes. Stotz 

and Mitchell asked defendant to speak with them a little more, making it clear that 

defendant was not required to speak with them and that defendant was not under 

arrest. Defendant agreed to speak with them and invited them into his house. 

Defendant wanted to speak to Stotz and Mitchell away from his parents. 

Defendant led Stotz and Mitchell back into his bedroom, where all three sat, Stotz 

and Mitchell in chairs next to each other, and defendant in a chair facing them, 

four to five feet away. Defendant was not handcuffed or restrained. Stotz 

repeated that defendant was not under arrest and that he was not required to speak 

with them. 

During the ensuing interview, which Detective Stotz covertly tape-recorded 

by means of a microcassette recorder in his pocket, defendant denied seeing 

Melissa on the day of the killing. He denied any involvement in her death. When 

Stotz returned to the subject of the prior incident of sleepwalking that defendant 

had earlier recounted, defendant confirmed he had woken up outside of his house 

two or three weeks earlier, standing there in his pants and underwear. He stated 

that this occurred about the same time as he last saw Melissa. When Deputy 

District Attorney Mitchell asked defendant what he had heard happened to 

Melissa, defendant asserted Stotz had told him that Melissa was strangled with a 

cord, that she was found dead on the floor of her parent‟s bedroom, and that there 

were some fingerprints. Defendant denied speaking to anyone besides Stotz. The 

interview concluded after approximately a half-hour with defendant‟s agreement 

to take a polygraph test and to speak with investigators again the next day. 
19

b. Discussion

Defendant did not challenge the admissibility of the statements he made 

during the bedroom interview on the ground that the interview was custodial for 

purposes of Miranda. As a consequence, the theory was not litigated and no 

opportunity was presented to the trial court to resolve any material factual disputes 

and make necessary factual findings. In fact, defense counsel was not merely 

silent regarding this issue; in response to trial court comments about defendant 

being questioned in his bedroom, defense counsel affirmatively conceded

defendant was not in custody at the time. Accordingly, defendant has waived his 

claim that the interview of him in his bedroom constituted custodial interrogation 

in violation of Miranda. (People v. Cruz (2008) 44 Cal.4th 636, 669; People v. 

Combs (2004) 34 Cal.4th 821, 845.)

Defendant argues we should nevertheless consider the merits of his claim 

because it asserts a deprivation of his fundamental constitutional rights. (People v. 

Vera (1997) 15 Cal.4th 269, 277.) As we have recently explained, however, the 

dictum in Vera on which defendant relies “was not intended to provide defendants 

with an „end run‟ around the forfeiture rule,” but was limited to a narrow class of 

constitutional rights, none of which are involved here. (People v. Tully (2012) 54

Cal.4th 952, 980, fn. 9.) 

Defendant asserts that, if a waiver is found, his counsel‟s concession of the 

issue had no tactical basis and therefore amounted to ineffective assistance of trial 

counsel. To establish ineffective assistance, defendant must show both that his 

counsel‟s performance was deficient and that he suffered prejudice. (Strickland v. 

Washington (1984) 466 U.S. 668, 687; People v. Ledesma (1987) 43 Cal.3d 171, 

216-217.) Defendant fails to establish any deficient performance by his counsel 

on the record before us. 
20

“An interrogation is custodial, for purposes of requiring advisements under 

Miranda, when „a person has been taken into custody or otherwise deprived of his 

freedom of action in any significant way.‟ ” (People v. Moore (2011) 51 Cal.4th 

386, 394-395, quoting Miranda, supra, 384 U.S. at p. 444.) Whether a person is 

in custody is an objective test; the pertinent question being whether the person was 

formally arrested or subject to a restraint on freedom of movement of the degree 

associated with a formal arrest. (People v. Leonard (2007) 40 Cal.4th 1370, 

1400.) “[C]ustody must be determined based on how a reasonable person in the 

suspect‟s situation would perceive his circumstances.” (Yarborough v. Alvarado 

(2004) 541 U.S. 652, 662.) 

The record on appeal reflects that Detective Stotz spoke with defendant 

twice at his front door as part of a canvass of the neighborhood after Melissa was 

found dead in her parents‟ bedroom. Defendant appeared nervous, misrepresented 

his prior interaction with Melissa, had suspicious injuries on his arm, and 

connected himself to the prior nighttime incident with Melissa by offering his 

recollection of himself sleepwalking. Obviously Stotz‟s suspicions were aroused, 

but Miranda warnings are not required simply because a person has become a 

suspect in the officer‟s mind. (Oregon v. Mathiason (1977) 429 U.S. 492, 495; 

People v. Moore, supra, 51 Cal.4th at p. 402.) 

Detective Stotz returned with Deputy District Attorney Mitchell to the 

Linton home around 8:00 p.m. Stotz and Mitchell were not dressed in a manner 

that asserted official authority. After Mitchell identified himself to defendant, 

they asked to speak with him, making it clear that defendant did not have to do so 

and that he was not under arrest. Defendant invited them into his house, taking 

them into his bedroom. There is no evidence that either Stotz or Mitchell was 

armed, or if armed, that any weapon was visible to defendant. There is no 

evidence that they blocked defendant‟s exit from the bedroom to which defendant 
21

took them. Defendant was not restrained. All three of them sat in chairs. Stotz 

and Mitchell repeated that defendant was under no obligation to speak to them and 

that he was not under arrest. Stotz and Mitchell proceeded to talk with defendant 

for about a half-hour. The nature of their questioning does not appear to have 

been aggressive or particularly confrontational. (See People v. Stansbury (1993) 4 

Cal.4th 1017, 1050, revd. on other grounds in Stansbury v. California (1994) 511 

U.S. 318, 325-326; see also People v. Lopez (1985) 163 Cal.App.3d 602, 608 & 

fn. 4.) A reasonable person in defendant‟s situation would have understood he 

was free to stop the interview and ask Stotz and Mitchell to leave at any time. 

Defendant was not in custody.

Defendant‟s argument that the totality of the circumstances here is 

analogous to United States v. Craighead (9th Cir. 2008) 539 F.3d 1073 lacks 

merit. In Craighead, FBI agents obtained a warrant to search Craighead‟s home 

for child pornography. (Id. at p. 1078.) Eight law enforcement officers from three 

different agencies participated in the subsequent search. All of the officers were 

armed, some wore protective gear, and some unholstered their guns in Craighead‟s 

presence. (Ibid.) Although one of the FBI agents stated that they would like to 

talk with Craighead, “that he was not under arrest, that any statement he might 

make would be voluntary, and that he would not be arrested that day regardless of 

the information he provided,” she and another officer “directed” Craighead to a 

cluttered storage room at the back of the house for a private conversation while 

other officers proceeded with the search of his home. (Ibid.) The second officer, 

who was dressed in a flak jacket and was visibly armed, stood leaning against the 

wall near the storage room door, in such a manner as to block Craighead‟s exit 

from the room. (Id. at pp. 1078-1079.) The Ninth Circuit Court of Appeals found 

the totality of these circumstances “turned the otherwise comfortable and familiar 

surroundings of the home into „a police-dominated atmosphere‟ ” that amounted to 
22

custody for purposes of Miranda. (United States v. Craighead, supra, at p. 1083.) 

No similar police-dominated atmosphere was shown here.

Because there appears to have been no sound basis for counsel to have 

objected to the admission of defendant‟s bedroom statements on the grounds of a 

Miranda violation, no deficient performance by counsel has been established. 

(People v. Lewis (2001) 26 Cal.4th 334, 359 [“Where „there was no sound legal 

basis for objection, counsel‟s failure to object to the admission of the evidence 

cannot establish ineffective assistance.‟ ”].)

2. Defendant’s claim regarding his Miranda waiver at the police 

station 

Defendant contends Detective Stotz and Deputy District Attorney Mitchell 

made a false promise of leniency during their interview of him in his bedroom and 

that such promise vitiated his subsequent waiver of Miranda rights the next 

morning. Specifically, defendant claims his Miranda waiver at the police station 

was not knowing and intelligent and, therefore, was invalid, because it was based 

on the misrepresentation by Stotz and Mitchell on the previous evening that 

defendant would not get into trouble for admitting the prior assault on Melissa or 

admitting a sexual interest in or sexual conduct with Melissa. 

a. Additional factual background

During the course of the interview of defendant in his bedroom on the night 

of Melissa‟s death, defendant told Detective Stotz and Deputy District Attorney 

Mitchell that he had no recent fights or problems with Melissa, but that he had 

heard Melissa did not like him. Stotz asked defendant why, if Melissa did not like 

him, she would tell her friends that she and defendant had “messed around.” Stotz 

asked defendant if he and Melissa had ever kissed and defendant said “[n]o, I 

never.” Stotz continued, “or made out” and told defendant “you‟re not gonna get 

in trouble for that, y‟know, we just wanna know [that].” Defendant asked Stotz: 
23

“why wouldn‟t I get in trouble for that?” Stotz replied: “Well, because, frankly, 

because she‟s no longer living, y‟know. Nothing would happen to you if — if 

you had kissed her or grabbed her or touched her or even had sex with her. 

Y‟know, at this point she‟s — she‟s no longer the victim wouldn‟t be her. She‟s 

no longer with us. [S]o nothing would happen to you. We just need to know 

because — okay.” Defendant responded: “Okay. Of course you know I‟m not 

confessing to that.” Stotz and Mitchell both explained that they had a 

responsibility to inquire. 

Later in the interview, Mitchell asked defendant what he had heard 

happened to Melissa. Defendant provided details regarding the circumstances of 

Melissa‟s death that Stotz had not told him. Defendant denied speaking to anyone 

else.

Deputy District Attorney Mitchell informed defendant that in order to clear 

everybody from the neighborhood of suspicion, they were going to ask all the 

neighbors who were home at the time of the murder to take a polygraph test. 

When Mitchell started to ask defendant if he was willing to take the test, defendant 

expressed concern that if he was nervous, the polygraph would be “set off.” 

Asked if he had something to be nervous about, defendant said he was just very 

nervous. Detective Stotz assured defendant that he would be told all the questions 

in advance and have a chance to go over them. Defendant could tell the examiner 

if he had any concerns. 

Mitchell then stated: “Like, if — if you and Melissa had had some 

problems sexually in the past and you‟re trying to hide that, that might set if off, so 

you‟d have to tell us about that ahead of time. What we‟re interested in, the 

murder, of course, we don‟t care about anything else that happened, if you and 

Melissa, she stopped coming over here, ‟kay, that‟s something that‟s water under 

the bridge now. We‟re looking for only the murderer, if you didn‟t do that, take a 
24

polygraph and prove it with your background, with her as long as there isn‟t 

something you‟re hiding, worried about whether or not they‟re gonna ask 

questions about this one area, if you actually didn‟t do the murder but you‟re 

trying to hide this other information or problems that you‟ve had with her, that 

could kind‟a skew the results one way or the other.” 

Defendant eventually agreed to take a polygraph test and speak with 

investigators the next day, but asked that his parents not be told about it. He asked 

to be telephoned the next day after his parents left the house. Defendant continued 

to deny being at the Middleton house the day of the murder and asserted he had 

nothing to do with Melissa‟s death. 

Stotz telephoned defendant the next morning, as arranged, after defendant‟s 

parents left for work. Defendant agreed to meet with investigators. Detectives 

Lynn and Stotz retrieved defendant from his home in an unmarked car. As noted 

earlier, during the drive, defendant told the detectives that there was no need for a 

polygraph test and apologized for wasting their time. He said that he had wanted 

to turn himself in the previous night, but was not sure he could admit it and he did 

not want to confess in front of his parents. The officers asked defendant if he was 

willing to go to the office for a formal interview and he said “Yeah. I‟ll tell you 

everything.” 

At the police station, defendant was taken to Detective Lynn‟s office while 

Detective Stotz gathered the equipment necessary for a taped interview. When 

Stotz returned to the office, Lynn left. Stotz spent a few minutes answering 

defendant‟s questions, one of which was whether defendant would be getting the 

death penalty. Stotz told defendant that he only made recommendations to the 

district attorney‟s office, that the district attorney‟s office actually decided what 

charges to file and penalties to seek, and that the court determined the penalty. 

Stotz explained to defendant the interview procedure that would be followed. He 
25

then turned on the tape recorder and started the interview by advising defendant of 

his Miranda rights. Defendant indicated he understood his rights and agreed to 

answer questions. He signed an advisement of rights form indicating the same 

thing. 

b. Discussion

Defendant claims his Miranda waiver was neither knowing nor intelligent 

because it was based on the false promise by Detective Stotz and Deputy District 

Attorney Mitchell the previous night that what he said about the prior incident or 

any sexual interest in or sexual conduct with Melissa would not be used against 

him. Defendant failed to assert this claim of invalidity of his Miranda waiver as 

part of his suppression motion in the trial court, thereby forfeiting the issue on 

appeal. (People v. Guerra (2006) 37 Cal.4th 1067, 1094.) Defendant‟s claim is 

also meritless. 

The Fifth Amendment to the United States Constitution, which applies to 

the states by virtue of the Fourteenth Amendment, provides that no person may be 

compelled to be a witness against himself or herself. (Maryland v. Shatzer (2010) 

559 U.S. ___, ___ [175 L.Ed.2d 1045, 1052]; People v. Tate (2010) 49 Cal.4th 

635, 683.) In Miranda, supra, 384 U.S. 436, the United States Supreme Court 

“adopted a set of prophylactic measures to protect a suspect‟s Fifth Amendment 

right from the „inherently compelling pressures‟ of custodial interrogation.” 

(Maryland v. Shatzer, supra, at p. ___ [175 L.Ed.2d at p. 1052].) Pursuant to 

Miranda, a suspect “must be warned prior to any questioning that he has the right 

to remain silent, that anything he says can be used against him in a court of law, 

that he has the right to the presence of an attorney, and that if he cannot afford an 

attorney one will be appointed for him prior to any questioning if he so desires.” 

(Miranda, supra, 384 U.S. at p. 479.) 
26

It is well settled, however, that after the familiar Miranda advisements are 

given, a suspect can waive his or her constitutional rights. (People v. Tate, supra, 

49 Cal.4th at p. 683.) To establish a valid Miranda waiver, the prosecution bears 

the burden of establishing by a preponderance of the evidence that the waiver was 

knowing, intelligent, and voluntary under the totality of the circumstances of the 

interrogation. (People v. Williams (2010) 49 Cal.4th 405, 425.) 

The record here reflects that defendant connected himself to the prior 

nighttime attack reported by Melissa to her parents and a neighborhood friend 

when he told Detective Stotz during their second conversation at his front door 

about an incident in which he recalled waking up semiclothed outside his house. 

When Stotz and Deputy District Attorney Mitchell asked defendant about that

incident during their subsequent bedroom interview, defendant confirmed he woke 

up outside of his house two or three weeks earlier standing in his pants and 

underwear. When asked about a report that Melissa and defendant had “messed 

around,” defendant denied he had ever kissed or “made out” with Melissa. Stotz 

assured defendant that he was not going to get in trouble for what happened 

earlier. When defendant asked why not, Stotz explained the reason that he would 

not get in trouble — even if he kissed, grabbed, touched or had sex with Melissa 

— was because Melissa was no longer alive. Defendant responded: “Okay. Of 

course you know I‟m not confessing to that.” Mitchell later told defendant that 

“[w]hat we‟re interested in, the murder, of course, we don‟t care about anything 

else that happened, if you and Melissa, she stopped coming over here, ‟kay, that‟s 

something that‟s water under the bridge now. We‟re looking for only the 

murderer, if you didn‟t do that, take a polygraph and prove it . . . .” 

Even if defendant understood the comments of Stotz and Mitchell to 

unconditionally promise that he would not “get in trouble” for any prior assault, 
27

we conclude the record does not support defendant‟s claim that such comments 

invalidated his waiver of his Miranda rights the next morning. 

After Detectives Stotz and Lynn picked defendant up from his house the 

next morning, and during the subsequent ride, defendant tacitly confessed to 

killing Melissa by telling the officers he had wanted to confess when he was 

questioned the previous evening, but he was not sure he could admit it. He also 

explained that he did not want to confess in front of his parents. He said he would 

“tell them everything” at the police station. At the station, defendant demonstrated 

his understanding of the seriousness of the potential charges against him by asking 

whether he was going to be getting the death penalty. Nothing in Stotz‟s response 

promised defendant that he would not face such penalty. When Stotz started the 

formal interview, he advised defendant of his Miranda rights. That is, defendant 

was expressly told at that point without qualification that “anything he [said could]

be used against him in a court of law.” (Miranda, supra, 384 U.S. at p. 479, italics 

added.) Defendant indicated he understood his rights and agreed to answer 

questions. 

The totality of the circumstances reflects that defendant understood at the 

time of his waiver that one of the consequences of his decision to waive his rights 

and talk to police would be the availability of all of his statements for potential use 

by the prosecution. Indeed, when defendant subsequently expressed reluctance to 

talk on tape about the prior incident, Stotz assured defendant he understood, that 

this was just part of the interview, and that defendant was not going to get in 

trouble for what happened two weeks earlier. Defendant asked, “Why not?” Stotz 

replied, “Well because like I told you last night, that‟s water under the bridge.” 

Defendant‟s response is telling: he next said, “That‟s until today.” (See, post, 

p. 30.) That is, defendant had understood at the time of his Miranda waiver that 

he had not been promised any escape from the criminal consequences of the prior 
28

incident. He knew he had not been promised any leniency at all if he had 

murdered Melissa.

Thus, the record does not establish that at the time defendant waived his 

Miranda rights he was doing so based on an understanding that Stotz or Mitchell 

had earlier promised him that he would not be subject to the death penalty or that 

he would not face charges relating to the prior assault of Melissa. Therefore, in 

the absence of defendant‟s forfeiture of the issue, we would conclude on the merits 

that defendant‟s Miranda waiver was knowingly and intelligently given.

3. Defendant’s claim regarding the voluntariness of his admissions 

and confessions

Defendant does not challenge the voluntariness of his confession to killing 

Melissa.7 Defendant challenges the introduction of his statements admitting his 

sexual intent and conduct in connection with the murder, and confessing to the 

prior attempted rape. Defendant claims that he was coerced into making false 

admissions and confessions by false promises of leniency and by the length and 

nature of the interrogation given his personal characteristics. We uphold the 

finding of the trial court that defendant‟s statements were voluntary under the 

totality of the circumstances.

a. Additional factual background

When Detective Stotz questioned defendant at his front door on the day of 

Melissa‟s death, he noted that although defendant appeared physically immature 

 

7 Defendant also does not challenge the voluntariness of his admission that 

he was looking for money to take when he entered the Middleton home both on 

the day of the murder and during the prior incident. Defendant‟s entry into the 

home with the intent to steal on the day of the murder was argued as one of the 

possible bases for the jury to find true the burglary-murder special circumstance. 
29

for his age, he did not appear mentally immature. When defendant was brought to 

the police station the next morning, Detective Lynn sat with defendant while Stotz 

gathered the equipment necessary for a taped interview. According to Lynn, 

defendant did not appear intimidated or frightened. At one point, defendant 

accused Lynn of laughing at him when Lynn had not done so. Lynn described 

defendant as being almost the opposite of submissive. 

When Stotz returned to the office, Lynn left. As noted earlier, Stotz spent a 

few minutes answering defendant‟s questions, one of which was whether 

defendant would be getting the death penalty. Stotz explained his limited role in 

determining the charges and penalties defendant might face. Stotz then explained 

to defendant the interview procedure that would be followed. He turned on the 

tape recorder and started the interview about 9:45 a.m. by advising defendant of 

his Miranda rights. Defendant waived his rights and agreed to answer questions. 

At the beginning of the interview, defendant provided a brief description of 

entering the Middleton house, Melissa screaming, and his strangling her to death. 

In followup questioning, Stotz asked defendant if he had any idea why Melissa 

started screaming as soon as she saw him and speculated that Melissa was afraid 

of defendant because of the prior assault. Defendant agreed that she might have 

been afraid of him and that something had happened a couple of weeks earlier. 

Defendant expressed reluctance to talk about the prior assault on tape. 

Specifically, defendant responded to Stotz, “Yeah, you know about that [the prior 

assault], yeah, you don‟t need to record that do you? Stotz replied that he needed 

to know a little background on what happened. Defendant again asked why that 

needed to be recorded. Stotz told defendant that he needed to know because when 

they talked the night before, defendant said nothing happened during that incident. 

Defendant explained, “That‟s because my parents were home.” Stotz explained 

that his questions regarding the prior incident were part of the interview and 
30

repeated that defendant would not “get in trouble for what happened two weeks 

ago, okay?” When defendant asked why not, Stotz responded, “Well because like 

I told you last night, that‟s water under the bridge.” Defendant replied, “That‟s 

until today.” Stotz answered, “No, that‟s got nothing to do with it, I just need to 

know why she would see you and why she would run away from you screaming 

like that and it‟s kind of odd for a neighbor who lived there for six years. For 

instance, if my neighbor walked into my house that I‟ve known for six years, I 

wouldn‟t just run away screaming . . . .” Defendant responded that Melissa was 

just barely screaming when she ran into her parent‟s room. 

Detective Stotz continued to question defendant about the circumstances of 

Melissa‟s death. When he asked defendant if defendant raped Melissa, defendant 

denied doing so. Defendant suggested that if he had, they would have “found 

something in there,” provided “you didn‟t plant something.” Defendant also 

denied having sex or trying to have sex with Melissa during the prior incident two 

weeks earlier. Defendant was questioned a few minutes more before a 35-minute 

break was taken. 

Questioning resumed at 10:40 a.m. with Deputy District Attorney Chessell 

present in addition to Detective Stotz. Over the course of the next 40 minutes, 

defendant admitted that he went to the Middleton house to steal on the day of the 

killing and was looking for money when he went into the house in the prior 

incident. Defendant denied that he went into the house intending to sexually 

assault Melissa that day or during the prior incident. The officers confronted him 

multiple times with a request for an explanation of why Melissa‟s shorts were 

unzipped when she was found dead. After offering a number of possible 

explanations, defendant eventually admitted that when he went into the house and 

realized Melissa was home, the thought crossed his mind to have sex with her, and 

he unzipped her shorts. He claimed he did so just to frighten her. He denied 
31

sexually assaulting her. After multiple denials, defendant additionally admitted he 

used a key to get into the Middleton house both times. He said he threw the key in 

the trash after the killing. This segment of the interview ended at 11:20 a.m., with 

Stotz offering defendant another soda and Chessell offering him something to eat. 

Dr. Rath began his interview of defendant around 12:45 p.m. Rath 

explained that he had been asked by the prosecution to talk to defendant about his 

background and history in order “to figure out what was going on with you 

mentally at the time all of this happened.” Rath told defendant that the interview 

would be tape-recorded and that “[p]eople involved in your case will be listening 

to the tape to hear what you say later on.” Rath proceeded to ask defendant a 

number of questions about his medical, school, and family history. They 

discussed some of the details regarding defendant‟s killing of Melissa and the 

previous incident at her house. Defendant told Rath he went into the Middleton 

house both times looking for money. Asked by Rath how Melissa‟s shorts came 

to be unbuttoned and unzipped, defendant said he was trying to scare her into 

thinking he was going to do something, but he claimed he “wasn‟t gonna.” He 

denied he ever had sexual fantasies about Melissa or that he ever became sexually 

aroused when he had contact with her. 

After defendant finished taking the MMPI test given by Dr. Rath, Detective 

Stotz resumed his interview of defendant. Detective Rodriguez joined Stotz and 

defendant about five minutes later. Stotz took defendant through the description 

of the killing once again, eventually expressing dissatisfaction with defendant‟s 

continued claim that he went to the house looking for money, not sex, and that he 

did not have sex with Melissa. Stotz told defendant he thought defendant tried to 

rape Melissa during the prior assault and that was why Melissa was afraid when 

she saw defendant in her house on the day of the killing. Defendant equivocated, 

saying he had been under the influence of speed on the earlier occasion. 
32

Detective Stotz told defendant: “The sooner you tell me the truth, the 

sooner I‟ll turn this machine off and the sooner we‟ll all be on our way.” 

Detective Rodriguez added his belief that defendant would feel a lot better if he 

told the entire truth. After declining a glass of water and indicating he was not 

hungry, defendant asked, “So I have to say it?” Stotz responded, “I want [you] to 

tell me the truth.” Defendant asked, “Why with the tape on?” Stotz explained that 

he did not take notes well, to which defendant replied, “So I have to say it out 

loud?” Stotz answered, “Yes, you do.” Defendant then stated, “I tried to rape 

her.” He said this happened “the very first time like two months ago whatever 

whenever it was.” He also admitted the thought of raping Melissa crossed his 

mind when he unzipped her pants on the day of the killing, but he changed his 

mind. He “disdained” the thought. 

Just before the interview ended at 4:00 p.m., defendant acknowledged that 

he had not been threatened or coerced to speak with the police. Defendant said, “I 

thought I should report myself.” 

b. Discussion

According to defendant, the entire thrust of his interrogation was a 

prosecution effort to get him to admit a sexual motive that would support a special 

circumstances murder charge. To that end, defendant claims both Detective Stotz 

and Deputy District Attorney Mitchell falsely told him during the bedroom 

interview he would not face any criminal consequences for any prior sexual 

encounter with Melissa. Defendant contends Stotz repeated the assurance the next 

morning a short time into the police station interview by again stating the prior 

incident was “water under the bridge” and affirming that was still true when

defendant questioned whether circumstances had changed. Defendant contends 
33

Stotz‟s comments constituted promises of leniency that rendered his subsequent 

admissions and confession involuntary and inadmissible. 

Both the state and federal Constitutions bar the prosecution from 

introducing a defendant‟s involuntary confession into evidence at trial. (People v. 

Carrington (2009) 47 Cal.4th 145, 169 (Carrington); People v. Holloway (2004) 

33 Cal.4th 96, 114.) “ „A statement is involuntary if it is not the product of “ „a 

rational intellect and free will.‟ ” [Citation.] The test for determining whether a 

confession is voluntary is whether the defendant‟s “will was overborne at the time 

he confessed.” ‟ ” (People v. McWhorter (2009) 47 Cal.4th 318, 346-347

(McWhorter); accord, Carrington, supra, at p. 169.) 

“ „A confession may be found involuntary if extracted by threats or 

violence, obtained by direct or implied promises, or secured by the exertion of 

improper influence. [Citation.] Although coercive police activity is a necessary 

predicate to establish an involuntary confession, it “does not itself compel a 

finding that a resulting confession is involuntary.” [Citation.] The statement and 

the inducement must be causally linked. [Citation.]‟ [Citation].” (McWhorter, 

supra, 47 Cal.4th at p. 347.) A confession is not rendered involuntary by coercive 

police activity that is not the “motivating cause” of the defendant‟s confession. 

(People v. Williams (1997) 16 Cal.4th 635, 661.) 

“The prosecution has the burden of establishing by a preponderance of the 

evidence that a defendant‟s confession was voluntarily made.” (Carrington, 

supra, 47 Cal.4th at p. 169.) “Whether a confession was voluntary depends upon 

the totality of the circumstances.” (People v. Scott (2011) 52 Cal.4th 452, 480, 

accord, People v. Tully, supra, 54 Cal.4th at p. 993.) “On appeal, we conduct an 

independent review of the trial court‟s legal determination and rely upon the trial 

court‟s findings on disputed facts if supported by substantial evidence.” (People v. 

Williams, supra, 49 Cal.4th at p. 425.) The facts surrounding an admission or 
34

confession are undisputed to the extent the interview is tape-recorded, making the 

issue subject to our independent review. (McWhorter, supra, 47 Cal.4th at 

p. 346.) 

Detective Stotz‟s comments during the police station interview (ante, at 

p. 30) constituted implied promises of leniency concerning prosecution of 

defendant for the prior assault or capital murder. And, for purposes of this claim, 

we assume the statements made by Stotz and Deputy District Attorney Mitchell

during their earlier interview of defendant in his bedroom were understood by

defendant to be implied promises of leniency. (See ante, at pp. 22-24, 26-27.) 

Nevertheless, the evidence fails to show that they were the “motivating cause” of 

defendant‟s subsequent admissions and confession. (People v. Williams, supra, 16 

Cal.4th at p. 661.)

The record reflects that defendant wanted to tell Detective Stotz and Deputy 

District Attorney Mitchell about the killing and the prior assault when they were 

questioning him in his bedroom on the evening of the killing, but defendant was 

not sure he could make the admissions then and, in any event, did not want to 

confess in front of his parents. Defendant apologized the next morning for 

wasting the officers‟ time. He stated that a polygraph test was unnecessary; he 

would tell them everything. During the questioning that followed, defendant 

expressed reluctance to talk about the prior assault only because he did not want 

his statements tape-recorded. When Stotz promised leniency to defendant, 

defendant did not immediately respond by admitting his sexual interest in or 

sexual conduct with Melissa, which would have reflected his reliance on such 

promise. Defendant consistently denied any sexual interest in or conduct with 

Melissa. After a half-hour break, questioning resumed with Deputy District 

Attorney Chessell present; defendant then eventually admitted the thought crossed 

his mind to have sex with Melissa when he entered the house, but he vehemently 
35

denied that he acted on the thought, saying he unzipped her shorts only to frighten 

her. Defendant provided the same explanation to Dr. Rath and continued to deny 

any sexual interest in or conduct with Melissa. Only late that afternoon during 

further questioning by Detectives Stotz and Rodriguez, after defendant was unable 

to adequately explain why he went upstairs when he realized Melissa was home, 

why she ran screaming from him, and how her shorts came to be unbuttoned and 

unzipped, did defendant admit his prior attempt to rape Melissa and his thought to 

rape her on the day of the killing. Defendant‟s concern at that time still appeared 

to be having his confession tape-recorded — and not what additional punishment 

might result. The record does not substantiate the claim that defendant‟s 

admissions/confession and any promise of leniency were “ „causally linked.‟ ” 

(McWhorter, supra,47 Cal.4th at p. 347; accord, Carrington, supra, 47 Cal.4th at 

pp. 170-171.) 

Defendant nevertheless claims coercive police interrogation tactics resulted 

in his admissions and confession, emphasizing the repetitive nature of the 

questions asked about his sexual interest in and sexual conduct with Melissa, the 

length of the interview from morning until late afternoon, and his personal 

psychological characteristics. We find no improper police conduct.

As we previously noted, defendant connected himself to the prior reported 

assault on Melissa when he was questioned the second time at his front door. It 

was natural and appropriate for the officers to seek clarification from defendant as 

to what happened. Because the prior assault would logically help explain 

defendant‟s conduct on the day of the killing, there was nothing improper about 

the officers continuing to explore the subject when defendant was unable to 

adequately explain the motivation for his acts. We see nothing improper in the 

officers asking defendant a number of times and in a number of different ways 

about his sexual motivation and conduct, especially given defendant‟s pattern of 
36

evasive answers and his lies about the possession of the Middletons‟ house keys. 

There was nothing coercive in the officers urging defendant to tell the truth and 

informing defendant of the obvious point that the sooner he told the truth, the 

sooner the interview would finish. (People v. Davis (2009) 46 Cal.4th 539, 600.) 

Moreover, our review of the tapes of defendant‟s interviews at the police station 

reveals that no one questioning defendant used any aggressive, hostile, or 

threatening tone in questioning defendant. Although there were repeated 

questions regarding defendant‟s possible sexual interest in and sexual conduct 

with Melissa, the overall approach of the officers remained low key. There is 

nothing to indicate Dr. Rath was employed, as defendant suggests, as part of an 

overall strategy to “soften him up.”

With respect to the length of the interviews, the record reflects that 

defendant was questioned for a total of two and a quarter hours and spent an hour 

and 25 minutes completing the MMPI testing. Multiple breaks were taken. He 

was offered both food and drink. He accepted at least one soda, but declined any 

food. When he was asked if he was tired, he responded that he just did not like 

being questioned. These circumstances hardly reflect the kind of continuous, 

prolonged interrogation that has been found to render a resulting confession 

involuntary. (See Reck v. Pate (1961) 367 U.S. 433, 441; Ashcraft v. Tennessee 

(1944) 322 U.S. 143, 153-154.) 

Defendant emphasizes, however, that his personal characteristics rendered 

him more vulnerable to improper coercion. He notes that he was 20 years old, but 

looked 15. He still lived with his parents. He was not employed outside the 

home. He did not have a driver‟s license. He had a history of learning disabilities 

and had been in special education classes in elementary school. He had graduated 

high school, but was not going to college. He had no experience in the criminal 

justice system. Defendant claims he suffered from depression, anxiety, and 
37

headaches. According to defendant, he had been diagnosed with attention deficit 

disorder and may have had a dissociative disorder. He had suffered physical abuse 

from his father. Additionally, defendant argues, he had a history of 

methamphetamine and marijuana use. 

“Insofar as a defendant‟s claims of involuntariness emphasize that 

defendant‟s particular psychological state rendered him open to coercion, this 

court has noted that „[t]he Fifth Amendment is not “concerned with moral and 

psychological pressures to confess emanating from sources other than official 

coercion.” ‟ ” (People v. Smith (2007) 40 Cal.4th 483, 502; accord, People v. 

Dykes (2009) 46 Cal.4th 731, 753.) There is no indication here of coercive tactics 

by the individuals interviewing defendant, including any evidence that they 

exploited any personal characteristics of defendant in order to obtain his 

admissions and confession. Indeed, defendant expressly acknowledged at the end 

of the interview that he had not been threatened or coerced. He said he thought he 

should report himself.

The trial court properly concluded defendant‟s admissions and confession 

were voluntarily made and, therefore, admissible. 

B. Exclusion of evidence relevant to defendant’s claim that he was 

coerced into making false admissions and confession 

Defendant contends the trial court unfairly frustrated defense efforts to 

present a defense establishing defendant was coerced into making false admissions 

and his confession. Defendant claims the trial court‟s rulings violated his 

constitutional rights to due process and the confrontation of witnesses under the 

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and 

article 1, section 7 of the California Constitution. We reject defendant‟s claims.
38

1. The proffered expert testimony of Dr. Richard A. Leo 

a. Procedural background

Prior to trial, defendant filed a motion to introduce the expert testimony of 

social psychologists Dr. Richard Ofshe or Dr. Richard Leo regarding police 

interrogation techniques and false confessions. (See Ofshe & Leo, The Decision 

to Confess Falsely: Rational Choice and Irrational Action (1997) 74 Denv.U. 

L.Rev. 979, 1117.) Defendant asserted such testimony was relevant to determine 

the voluntariness and trustworthiness of the statements he made at the police 

station. At trial, defendant sought to introduce the testimony of Dr. Leo. 

In a declaration submitted by defendant to the trial court in connection with 

his efforts to introduce this testimony, Dr. Leo averred that “[c]ontrary to public 

myth and mis-perception, it is well documented that police interrogators can and 

do elicit false confessions in response to common, psychological methods of 

interrogation.” According to Leo, research has established that “certain police 

interrogation techniques are correlated with the likelihood of a false confession” 

and such “research findings are beyond the common understanding of the lay 

person.” Leo‟s proposed trial testimony would address “the following general 

topics: the use of influence, persuasion and coercion during interrogation; how 

certain police interrogation techniques affect the decision-making of custodial 

suspects; why certain psychological techniques are coercive and their likely 

effects; how and why contemporary police interrogation techniques can lead guilty 

suspects to make the decision to confess; how and why contemporary police 

interrogation techniques can lead the innocent to make the decision to confess; and 

how to apply generally accepted principles to evaluate the reliability of 

confessions statements.” 

The prosecutor opposed the defense motion, arguing there was no 

foundation for such testimony because defendant had not recanted his confession 
39

and because there was no other evidence that his confession was false. The 

prosecutor also contended that the defense had failed to show the subject matter 

was a valid, accepted area of expertise or that the testimony would assist the jury. 

The defense countered that a recantation was unnecessary before an expert 

could be called, that it would be unconstitutional to require defendant to testify his 

confession was false before the testimony could be admitted, that there was 

sufficient evidence of falsity in the testimony from both pathologists that Melissa 

could not have been strangled with the headphone cord in the manner defendant 

described, and that testimony regarding the general factors that might lead to a 

false confession was beyond the knowledge of an average person. The defense 

repeated the claims that express promises of leniency had been made to defendant 

and that the interviewers‟ questioning was coercive in light of defendant‟s 

personal characteristics. 

The trial court ultimately excluded Dr. Leo‟s testimony under Evidence 

Code section 352. Specifically, the court concluded the proffered testimony was 

“extremely speculative” because there was no “basis or foundation” to indicate 

defendant‟s confession was false. The court noted defendant was not required to 

testify, but there was no evidence defendant had otherwise recanted his confession 

and the pathologists‟ testimony and the physical evidence did not establish any 

falsity of defendant‟s interview statements because the testimony and evidence 

were not incompatible with defendant‟s explanation of how he choked Melissa. 

Therefore, the probative value of Leo‟s testimony, “if any,” was substantially 

outweighed by its undue consumption of time. 

Defendant subsequently challenged the trial court‟s ruling in his new trial 

motion. The trial court reaffirmed its ruling and denied the motion. 
40

b. Discussion

Defendant contends the trial court erred in excluding his proffered expert 

testimony regarding false and coerced confessions. The Attorney General 

counters that the testimony was properly excluded under Evidence Code section 

352. 

A trial court has broad discretion to exclude relevant evidence under 

Evidence Code section 352 “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.” (Evid. Code, § 352; accord, People v. Lee (2011) 51 Cal.4th 

620, 643.) Such “discretion extends to the admission or exclusion of expert 

testimony.” (People v. Richardson (2008) 43 Cal.4th 959, 1008; accord, People v. 

Curl (2009) 46 Cal.4th 339, 359.) We review rulings regarding relevancy and 

Evidence Code section 352 under an abuse of discretion standard. (People v. Lee, 

at p. 643.) 

We conclude the trial court did not abuse its discretion in this case by 

excluding defendant‟s proffered evidence. 

At trial, defendant did not contend his confession to killing Melissa or 

admission of entering the Middleton house with the intent to steal were false. 

Defendant offered the expert testimony of Dr. Leo to assist the jury in evaluating 

only the truthfulness of his admissions of sexual intent and sexual conduct with 

Melissa and his commission of the prior offenses. As was his right, defendant did 

not testify and thus did not deny the truth of his interview statements. There was 

no other evidence offered that logically called into question the veracity of his 

admissions. The only evidence that defendant pointed to as showing he made any

false statements during his police station interview was the testimony of the two 

pathologists that Melissa was not likely strangled from the front in the manner 
41

described by defendant. And yet Dr. Choi testified that the linear marks on 

Melissa‟s neck could have resulted from a cord placed around Melissa‟s neck if 

her hair was in between the cord and her neck and if the ligature was pulled from 

one side or another, a scenario not wholly unlike defendant‟s uncertain 

recollection of his precise actions. Choi‟s opinion accounted for the finding of the 

headphones with a broken cord near Melissa‟s body, whereas Dr. Spitz‟s version 

of the strangulation did not. 

Not only was there a dearth of evidence indicating a false admission or 

confession, a multitude of corroborative evidence had been introduced at the time 

of the trial court‟s ruling that suggested defendant‟s admissions and confession 

were true. Melissa‟s parents both testified regarding the prior assault on Melissa 

by a nude man, although they thought the incident was a nightmare. Defendant‟s 

friend Montero also testified regarding the prior assault, stating that defendant 

returned home out of breath and looking frightened approximately 15 to 20 

minutes after Montero spoke with Melissa‟s father, Robert. When Melissa was 

found dead, her shorts were unbuttoned and unzipped. And, a pair of her 

underpants was found in the trash can along with the keys to the Middleton home, 

which defendant described discarding after the killing. The fact that defendant‟s 

semen was found on that underwear suggests an obvious sexual interest in 

Melissa. We also note both our earlier conclusion that defendant‟s interrogators 

did not act improperly in their questioning of him and the circumstance that 

defendant never claimed his interview confession to killing Melissa or his 

admission to entering the Middleton home looking for money to steal was false. 

Under these facts, it fell within the trial court‟s broad discretion to 

determine that Dr. Leo‟s proffered testimony had, at most, minimal probative 

value, which was substantially outweighed by its likely undue consumption of 
42

time. (People v. Ramos (2004) 121 Cal.App.4th 1194, 1206-1207; People v. Son

(2000) 79 Cal.App.4th 224, 241; cf. People v. Page (1991) 2 Cal.App.4th 161.) 

Our conclusion that the trial court did not abuse its discretion under 

Evidence Code section 352 is consistent with United States v. Hall (7th Cir. 1996) 

93 F.3d 1337 (Hall), the case on which defendant primarily relies.8 In Hall, the 

federal district court rejected the proffer of Dr. Ofshe‟s testimony in its entirety 

because “in the final analysis, Dr. Ofshe‟s testimony would add nothing to what 

the jury would know from common experience.” (Id. at p. 1341.) The Seventh 

Circuit Court of Appeals reversed based on its inability to be confident that the 

district court had applied the correct legal framework in making its ruling. (Id. at 

p. 1342.) It stated that the district court‟s ruling that Ofshe‟s testimony had no 

potential usefulness because it was within the jury‟s knowledge “overlooked the 

utility of valid social science.” (Id. at p. 1345.) “Properly conducted social 

science research often shows that commonly held beliefs are in error. Dr. Ofshe‟s 

testimony, assuming its scientific validity, would have let the jury know that a 

phenomenon known as false confessions exists, how to recognize it, and how to 

decide whether it fit the facts of the case being tried.” (Ibid.) 

In contrast to the ruling of the district court in Hall, the trial court here did 

not exclude the testimony of Dr. Leo based on a conclusion that this type of expert 

testimony was inadmissible per se. The trial court acknowledged that the 

expertise of Dr. Ofshe or Dr. Leo might be helpful to a jury in certain factual 

situations, but concluded that under the specific facts here the proffered evidence 

was “highly speculative” and should be excluded under Evidence Code section 

 

8 We are not bound, of course, by decisions of the lower federal courts, even 

on federal questions, but they may be considered for their persuasive weight. 

(Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58.)
43

352. This ruling is consistent with the observation in Hall that even if expert 

testimony will assist the jury, it is still subject to “the normal controls on scope of 

testimony and relevance.” (Hall, supra, 93 F.3d at p. 1344.) 

Our conclusion leads us to reject defendant‟s claim that the trial court‟s 

ruling violated his right to present a defense. (Crane v. Kentucky (1986) 476 U.S. 

683, 688-691; Chambers v. Mississippi (1973) 410 U.S. 284, 302 (Chambers).) 

Although a defendant has the general right to offer a defense through the 

testimony of his or her witnesses, “a state court‟s application of ordinary rules of 

evidence — including the rule stated in Evidence Code section 352 — generally 

does not infringe upon this right.” (People v. Cornwell (2005) 37 Cal.4th 50, 82, 

overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421; see 

Crane v. Kentucky, at pp. 689-690.) The ruling excluding the testimony of 

Dr. Leo under Evidence Code section 352 did not result in the blanket exclusion of 

evidence concerning the circumstances of defendant‟s admissions and confession, 

which would have been necessary in order for defendant to claim undue influence. 

The jury listened to tape recordings of defendant‟s interviews at the police station, 

heard the testimony of Detectives Lynn and Stotz, Deputy District Attorney 

Chessell, and Dr. Rath regarding the circumstances of those interviews, and heard 

the expert testimony of Dr. Whiting regarding defendant‟s particular personality 

traits that may have lowered his ability to withstand the pressures of interrogation 

and increased his suggestibility. The jury had the testimony of both pathologists 

regarding the manner in which Melissa was strangled to consider against 

defendant‟s description of his actions. Defendant was able to and did strenuously 

argue this evidence established his admissions and confession were false, as the 

stress-compliant result of coercive and suggestive questioning. 
44

2. The trial court’s refusal to allow the defense to call Mitchell as a

witness 

Defendant claims the trial court denied him his federal constitutional right 

to present a defense and confront a critical percipient witness when it refused to 

allow the defense to call as a witness Deputy District Attorney Mitchell, who was 

the prosecutor in this case. We disagree.

a. Background

Mitchell was the “on-call” deputy district attorney the week of Melissa‟s 

death and as such, responded to the crime scene on November 29 in order to assist 

law enforcement in the investigation. He accompanied Detective Stotz to 

defendant‟s home and was present during the bedroom interview of defendant on 

the evening of the killing. 

Prior to that interview, Mitchell had advised Stotz to keep the interview 

“low-key” and directed him to turn on the microcassette recorder Stotz had in his 

pocket so that the interview would be tape-recorded. The tape turned out to be 

difficult to hear. Initially, the comments by Stotz that defendant would not get 

into trouble for previous sexual conduct with Melissa and Mitchell‟s comments 

regarding such conduct, if any, being “water under the bridge” if defendant was 

not her killer, were inaudible during a 28-second gap on copies of the tape 

provided to both the prosecution and the defense. With the assistance of a defense 

expert in audiology, however, a transcript was later produced from the original 

tape reflecting such statements. 

Deputy District Attorney Mitchell was not present for any other interview 

of defendant. He was, however, in telephone contact with the police at various 

times throughout the next day. He was apprised of what was happening in the 

interviews with defendant at the police station and made suggestions as to possible 

areas of enquiry. Mitchell arranged for Dr. Rath to evaluate defendant. 
45

Prior to trial, defendant moved to exclude evidence claiming that the 

prosecution had tampered with the bedroom interview tape. The trial court denied 

the motion after hearing the testimony of the defense audio expert and the case 

investigator for the district attorney. It found “no credible evidence of police or 

district attorney misconduct or gross negligence in providing to defense counsel 

the defective copy of the tape recording.” The trial court determined that 

defendant failed to establish there had been any tampering with the tape. 

Defendant also filed a pretrial notice of intent to call Deputy District 

Attorney Mitchell as a percipient witness to the bedroom interview and as the 

person who retained the services of Dr. Rath. In light of defendant‟s intent to call 

Mitchell as a witness, defendant objected to Mitchell‟s continuing as the trial 

prosecutor. Deeming defendant‟s objections to constitute a recusal motion, the 

prosecution filed opposition. After hearing testimony from Mitchell regarding his 

role in the interviewing of defendant by law enforcement, the trial court denied 

defendant‟s motion to recuse Mitchell. Defendant‟s petition for writ of mandate 

or prohibition, which sought to overturn the trial court‟s denial of the recusal 

motion, also was denied. 

During trial, near the close of its case, the defense again sought to call 

Deputy District Attorney Mitchell as a witness. Defendant argued that Mitchell 

was the best witness of defendant‟s demeanor and the circumstances of the alleged 

promises of leniency made to defendant during the bedroom interview. Defendant 

claimed Mitchell could provide information settling the question of when 

Detective Stotz obtained the tape recorder he used during the bedroom interview. 

Further, defendant pointed out that Mitchell made suggestions to the interrogators 

throughout the next day, hired Dr. Rath, and directed questions designed to 

support a felony-murder charge. 
46

Deputy District Attorney Mitchell responded that defense counsel‟s offer of 

proof was fraught with unfounded speculation and misstatements of the evidence. 

He claimed his testimony would be cumulative to the tape-recording of the 

bedroom interview and to the testimony of Detective Stotz. Mitchell argued that 

any suggestions he later made to defendant‟s interviewers were irrelevant; what 

was relevant was what actually happened during the interviews of defendant at the 

police station. 

The trial court agreed with Mitchell‟s position and confirmed that he could 

not be called as a witness. 

b. Discussion

Defendant asserts the trial court‟s refusal to allow him to call Deputy 

District Attorney Mitchell denied him his federal constitutional right to present a 

defense and confront a critical percipient witness. (Davis v. Alaska (1974) 415 

U.S. 308, 317; Chambers, supra, 410 U.S. at p. 302.) We are not persuaded. 

It is generally prohibited for a prosecutor to act as both an advocate and a 

witness. (Rules Prof. Conduct, rule 5-210.) “Within the criminal justice system, 

the prohibition against a prosecutor‟s acting as both advocate and witness 

addresses „the concern that jurors will be unduly influenced by the prestige and 

prominence of the prosecutor‟s office and will base their credibility determinations 

on improper factors.‟ ” (People v. Donaldson (2001) 93 Cal.App.4th 916, 928-

929, quoting United States v. Edwards (9th Cir. 1998) 154 F.3d 915, 921.) “Only 

in extraordinary circumstances should an attorney in an action be called as a 

witness, and before the attorney is called, defendant has an obligation to 

demonstrate that there is no other source for the evidence he seeks.” (People v. 

Garcia (2000) 84 Cal.App.4th 316, 332.) In this case there were other sources for 

the evidence defendant sought. 
47

Detective Stotz was present with Deputy District Attorney Mitchell for the 

interview of defendant in his bedroom on the night of the murder. Stotz testified 

at trial and was subject to vigorous questioning regarding the circumstances of the 

bedroom interview. There was also independent evidence of what took place at 

that interview in the form of the audiotape recording contemporaneously made by 

Stotz with the microcassette recorder in his pocket. The original audiotape did not 

have any gap in the recording and there was no dispute about the words spoken by 

Stotz and Mitchell to defendant on the tape. Defendant does not challenge the 

ruling that there was no tampering with the tape.

The record does not reflect any offer of proof by defendant that Mitchell 

would have been able to provide testimony concerning defendant‟s demeanor and 

the circumstances of the interview that would not be cumulative of what could be 

shown either by introducing the audiotape, which defendant chose not to do, or by 

examining Stotz, which defendant did extensively. 

With respect to defendant‟s claim that Mitchell could have impeached 

Stotz‟s testimony regarding when he was given the microcassette recorder by 

Lynn, defendant failed to establish that Mitchell had any knowledge of the matter. 

But even if Mitchell could have offered some comment about Stotz‟s possession 

of the tape recorder, such potential impeachment would not appear to have added 

significantly to the other instances in which the defense was able to show 

inconsistencies or inaccuracies in Stotz‟s testimony. Mitchell‟s testimony on such 

a minor point did not justify calling him as a witness.

Nor do we agree with defendant that it was necessary to call Mitchell so 

that the defense could explore what suggestions Mitchell made to those 

interviewing defendant at the police station and otherwise delve into Mitchell‟s 

motivation for making those suggestions and for hiring Dr. Rath. Such areas of 

inquiry would not have revealed anything legally significant regarding defendant‟s 
48

claim that he was being pressured into making false statements during the 

interviews. What mattered to defendant‟s claim was what actually occurred, what 

was communicated to him, and how he was questioned during the interviews. The 

totality of the circumstances of the interviews, and not what the interviewing 

officers or Dr. Rath had been told outside of defendant‟s presence, provided the 

factual context for defendant‟s claim of coercion. 

In arguing the trial court erred in refusing his request to call Mitchell as a 

witness, defendant relies on United States v. Edwards, supra, 154 F.3d 915 

(Edwards), claiming that case was based on a set of circumstances “remarkably 

similar to those here.” We disagree. In Edwards, the prosecutor discovered a 

receipt with the defendant‟s name on it at the bottom of the bag in which crack 

cocaine had been found. The receipt was critical to linking defendant to the bag. 

Over objection, the prosecutor proceeded to introduce the receipt as evidence in 

trial through essentially a reenactment of his discovery and then elicited testimony 

from two officers who were present when he made the discovery that, among other 

things, the evidence had not been planted. Closing arguments focused on the issue 

of whether or not the evidence was planted. (Id. at pp. 918-921.) The Ninth 

Circuit Court of Appeals reversed the defendant‟s conviction based on the 

conclusion “that when a prosecutor is personally involved in the discovery of a 

critical piece of evidence, when that fact is made evident to the jury, and when the 

reliability of the circumstances surrounding the discovery of the evidence is at 

issue, the prosecutor‟s participation in the trial of the defendant constitutes a form 

of improper vouching.” (Id. at p. 923.)

Edwards, supra, 154 F.3d 915, concerns the necessity for recusal of a 

prosecutor who has discovered critical evidence, rendering the prosecutor a silent 

witness against the defendant. Defendant, however, has not challenged the trial 

court‟s ruling on his recusal motion, rather he challenges the court‟s denial of his 
49

motion to call the prosecutor as a witness. To the extent Edwards informs the 

issue defendant has raised, we find it distinguishable. Mitchell did not discover 

critical evidence analogous to the prosecutor‟s discovery in Edwards, there was no 

dispute about what was said during the bedroom interview, and evidence of the 

circumstances of the bedroom interview was available to the jury through the 

testimony of Stotz and the audiotape made at the time. 

The trial court properly exercised its discretion and did not violate 

defendant‟s constitutional rights when it precluded defendant from calling 

Mitchell as a witness. 

3. Curtailment of defense cross-examination of Stotz 

Defendant contends the trial court violated his constitutional rights when it 

restricted his attempt to fully cross-examine Stotz by sustaining various objections 

made by the prosecutor. Defendant claims the trial court‟s rulings improperly 

restricted him from eliciting testimony in five areas of inquiry: (1) Stotz‟s 

understanding of proper interrogation technique; (2) the directions and instructions 

Stotz received from Mitchell during the interviews conducted at the police station; 

(3) Stotz‟s conversation with defendant at the police station before the tape 

recorder was turned on; (4) untruths and misrepresentations made to defendant to 

elicit admissions; and (5) the prosecution‟s strategy to persuade defendant to admit 

that he intended to rape or sexually assault Melissa either at the time of her death 

or in the prior assault. We find no abuse of discretion in the trial court‟s rulings. 

a. The applicable law

The law on this issue is well settled. “ „[A] criminal defendant states a 

violation of the Confrontation Clause by showing that he was prohibited from 

engaging in otherwise appropriate cross-examination designed to show a 

prototypical form of bias on the part of the witness, and thereby, “to expose to the 
50

jury the facts from which jurors . . . could appropriately draw inferences relating to 

the reliability of the witness.” ‟ [Citations.] However, not every restriction on a 

defendant‟s desired method of cross-examination is a constitutional violation. 

Within the confines of the confrontation clause, the trial court retains wide latitude 

in restricting cross-examination that is repetitive, prejudicial, confusing of the 

issues, or of marginal relevance. [Citations.] California law is in accord. 

[Citation.] Thus, unless the defendant can show that the prohibited crossexamination would have produced „a significantly different impression of [the 

witnesses‟] credibility‟ [citation], the trial court‟s exercise of its discretion in this 

regard does not violate the Sixth Amendment. [Citation.]” (People v. Frye (1998) 

18 Cal.4th 894, 946 (Frye), disapproved on another ground in People v. Doolin, 

supra, 45 Cal.4th at p. 421, fn. 22.) 

b. Questions regarding interrogation techniques 

Detective Stotz was working as a plainclothes narcotics officer for the San 

Jacinto Police Department when he was called to assist with the investigation of 

Melissa‟s death. During cross-examination, defendant brought out that this was 

Stotz‟s first and only homicide investigation. Stotz testified that he had no 

specific training in homicide investigations. The only training he had in 

interrogating suspects was in the police academy, which he had attended 11 years 

prior to Melissa‟s murder. 

When defendant asked Stotz what he learned in the academy about 

interrogating suspects in custody, the prosecution objected that the question called 

for irrelevant information. Noting that the question was also overbroad and vague, 

the trial court sustained the objection. Defendant complains that the trial court 

sustained the objection on the ground that the question was overly broad and 

vague, but then proceeded to disallow four follow-up questions that attempted to 
51

narrow the area of inquiry. Defendant asserts the court thereby denied him the 

right to lay the necessary and proper foundation for challenging his confession as 

involuntary or false.9 

The authorities defendant cites (Missouri v. Seibert (2004) 542 U.S. 600, 

611; Miller v. Fenton (1985) 474 U.S. 104, 109; Arizona v. Mauro (1987) 481 

U.S. 520, 532, fn. 1 (dis. opn. of Stevens, J.); Orozco v. Texas (1969) 394 U.S. 

324, 328-329 (dis. opn. of White, J.)) do not support his assertion that in order to 

challenge a confession as involuntary or false, it is necessary to lay a foundation as 

to a police officer‟s experience and training in interrogation techniques. The trial 

court did not err in its rulings. Moreover, the jury here learned this was Stotz‟s 

first and only homicide investigation. The jury learned that he had only basic 

training in interrogation and that such training occurred more than a decade 

earlier. Under these circumstances, even if we were to assume error, the trial 

court‟s sustaining of the objections to the further questions regarding Stotz‟s 

training was harmless. Assuming the questions posed would have adduced further 

evidence of Stotz‟s lack of training and experience, it would not “have produced „a 

significantly different impression‟ ” of Stotz. (Frye, supra, 18 Cal.4th at p. 946; 

accord, People v. Hines (1997) 15 Cal.4th 997, 1047.)

 

9 The four followup questions asked Stotz if he had (1) “any training on the 

job as well from any officers”; (2) “any training in — in how to avoid eliciting 

false confessions”; (3) “any training in the techniques of proper interrogation”; 

and (4) “any training either at the academy or in your experience as a police 

officer in recognizing false confessions.” The prosecutor objected to each 

question that it was irrelevant and assumed a fact not in evidence. The trial court 

sustained the objections without comment. 
52

c. Questions regarding directions and instructions from Mitchell 

Defendant claims the actions of Deputy District Attorney Mitchell were 

critical to his contention that his admissions and confession were not reliable. 

Defendant complains that he was neither allowed to call Mitchell nor allowed to 

question Detective Stotz about Mitchell‟s involvement in directing the 

interrogation process. We conclude the court did not abuse its discretion in its 

rulings. (People v. Avila (2006) 38 Cal.4th 491, 578.) 

Stotz testified that he spoke with Mitchell for 10 to 15 minutes before he 

began the taped interview of defendant at the police station. Stotz testified that 

Mitchell gave him advice on how to proceed with the interrogation of defendant. 

Mitchell advised Stotz to make sure the interview was tape-recorded and told him 

to read defendant his Miranda rights and obtain a waiver of them. Because 

defendant was obviously willing to talk, Stotz explained, Mitchell advised him to 

keep defendant comfortable and just to speak with him about the incident. Stotz 

testified that he spoke with Mitchell again in the afternoon just before the final 

interview of defendant that day, which began at 3:40 p.m. The trial court, 

however, sustained relevancy objections to additional questions that sought to 

elicit testimony as to whether Mitchell suggested particular areas of questioning or 

strategies for the interview. 

As we have already explained, Mitchell‟s suggestions of possible questions 

or topics for inquiry and his suggestions of strategy, if any, were irrelevant to 

defendant‟s claim of being pressured into making false statements. What matters 

to defendant‟s claim were the statements made to him by those interviewing him, 

the actual questions posed, the form, order and number of the questions, and the 

tone and circumstances of the questioning, all of which were fully presented to the 

jury through the audiotapes of the interviews and the testimony of Detectives Lynn

and Stotz, Deputy District Attorney Chessell, and Dr. Rath. 
53

d. Questions regarding defendant’s conversation with officers 

before the start of the tape 

Defendant attempted to question Detective Stotz regarding his prior 

testimony concerning the limited conversation he had with defendant before the 

start of the taped interview at the police station. The trial court sustained 

objections to two questions as being vague. Defense counsel withdrew a third 

question. 

Defendant does not offer any argument as to why the court‟s rulings were 

legally incorrect, but simply avers “the court allowed Mitchell to orchestrate what 

the defense was, and was not, allowed to elicit” from Stotz. We find no error.

e. Questions regarding alleged untruths and misrepresentations 

made to defendant 

Defendant argues the trial court erred in sustaining objections to questions 

that asked Detective Stotz (1) whether he made it clear to defendant that “the 

promises [he] made the night before were still in effect”; (2) whether Deputy 

District Attorney Mitchell ever told Stotz to make sure defendant understood such 

promises would not be in effect if he confessed to killing Melissa; (3) whether 

Stotz was “honestly truthful” in making comments to defendant about any sexual 

conduct being “water under the bridge”; (4) what Stotz told defendant was the 

purpose of tape-recording the interview; (5) whether Stotz agreed that during the 

interviews defendant had denied over 40 times any sexual interest in Melissa 

between November 29 and November 30; (6) whether telling a suspect he will feel 

better if he confesses is a time-honored interrogation technique used when a 

suspect is about to crack; (7) whether Stotz thought Detective Rodriguez was 

“honestly concerned” that defendant would feel better if he confessed, and (8) 

whether faking concern for a suspect is part of the process of catching a criminal. 

Such questions, however, called for speculation, were cumulative to the 

introduced tape-recording, were argumentative, and/or were irrelevant. The trial 
54

court properly sustained the prosecutor‟s objections and we find no impairment, 

thereby, of defendant‟s ability to thoroughly cross-examine Stotz. (People v. 

Hines, supra, 15 Cal.4th at p. 1047.) 

f. Questions regarding the prosecution’s alleged strategy to 

persuade defendant to admit that he intended to rape or 

sexually assault Melissa 

Finally, defendant contends the trial court erred in sustaining objections to a 

series of more than 50 questions he posed to Detective Stotz about the closing 

moments of the interrogation — a time when defendant claims the audiotape 

reflects that he was tired and hungry. According to defendant, these questions 

were designed to demonstrate the interrogators‟ strategy to persuade defendant to 

admit that he intended to rape or sexually assault Melissa. We have reviewed the 

record and conclude, however, that many of the questions simply asked Stotz to 

repeat what he said to defendant, — testimony that was cumulative to the 

audiotape played for the jury. Many other questions asked Stotz why he asked 

particular questions and failed to ask others. The trial court correctly ruled that 

questions seeking Stotz‟s undisclosed motivation or purpose were irrelevant. 

Stotz‟s personal belief and concerns regarding what defendant was telling him 

were similarly irrelevant. Likewise, the questions that were directed to 

establishing the alleged primacy of Deputy District Attorney Mitchell‟s role in the 

bedroom interview and his behind-the-scenes role in the police station 

interrogation were cumulative or irrelevant. Other questions were simply 

argumentative in form or called for speculation. The trial court did not abuse its 

discretion in sustaining objections to these questions. 

C. The trial court’s failure to excuse Juror No. 1 

Defendant contends Juror No. 1 committed misconduct by discussing the 

case with her husband and prejudging it, and that the trial court‟s failure to excuse 
55

her violated the Sixth and Fourteenth amendments of the United States 

Constitution, as well as sections 7 and 16 of article I of the California Constitution. 

Because substantial evidence in the record supports the trial court‟s factual 

findings regarding Juror No. 1‟s conduct, we conclude there was no misconduct. 

Therefore, the trial court did not err in failing to excuse Juror No. 1.

1. Background

On the second day of guilt phase jury deliberations, the trial court received 

a note from the jury foreperson reporting that another juror had discussed a 

specific aspect of the case with her husband. 

The court met with counsel and the foreperson in the presence of defendant. 

The foreperson explained that while the jury was discussing Melissa‟s reaction of 

screaming when defendant came upstairs, Juror No. 1 stated that she had discussed 

the issue with her husband and that if somebody came into her house that she 

knew, she would not automatically scream. According to the foreperson, Juror 

No. 1 told the other jurors: “I‟m the first to admit that I discussed this with my 

husband and we were talking about the case.” The foreperson said Juror No. 1 did 

not indicate she received any feedback or comments from her husband. It sounded 

to the foreperson as if she was telling her husband that this is what she would have 

done. The other jurors told Juror No. 1 that they “didn‟t want to go there” and 

there was no further discussion of Juror No. 1‟s conversation with her husband. 

The foreperson did not tell the other jurors about his note to the court regarding 

Juror No. 1. 

Defense counsel expressed concern that Juror No. 1‟s statement to the other 

jury members indicated a cavalier attitude toward the court‟s instructions, that she 

may have discussed other aspects of the case with her husband, and that they had 

no way of knowing if she was relying on her husband‟s opinions in her evaluation 
56

of the evidence. The trial court shared defense counsel‟s concern and instructed 

the bailiff to call Juror No. 1 into the courtroom. 

When Juror No. 1 was brought into court, she admitted making one 

comment to her husband, but claimed she did not disclose to him any “facts or 

events going on in the case.” Juror No. 1 said she simply told him she did not 

understand something that was going on and that she was confused because if this 

had happened to her, she would not react the way this person did. Juror No. 1 

claimed she was thinking about the prosecutor‟s opening statement about Melissa 

screaming when defendant was standing at the top of the stairs when she made the 

comment to her husband. Juror No. 1 explained that she thought that she would 

not “freak out” this way if her neighbor walked in. But, Juror No. 1 testified, she 

did not say this to her husband. She said only that she was confused and did not 

understand. She claimed that if anyone had been standing in the room, her 

statements to her husband “would have made no sense at all.” She said her 

husband just sat there and did not respond. According to Juror No. 1, her 

husband‟s reaction was consistent with Juror No. 1‟s previous instructions to him 

upon her selection as a juror. She had warned her husband that she might need to 

vent about the case, but she told him that if she did so, he was not to ask her 

questions or let her continue. He was just to “kind of sit there and say „Okay. 

Enough.‟ ” Juror No. 1 told the court that she and her husband did not discuss her 

comment or the case at all. She said that she did not “vent” to her husband again 

during the remainder of the trial. 

After both counsel indicated they had no questions, the court confirmed 

with Juror No. 1 that she understood the court‟s admonishments and reminded her 

that they applied until the case was finished. The court said that it sounded as if 

she had vented, but had not discussed the case. The trial court told Juror No. 1 

that her action was right on the edge of what is appropriate and that she should not 
57

repeat it. The court asked Juror No. 1 if she felt “there‟s anything that‟s happened 

here, or even the fact that we called you in, that would affect your ability to either 

now be a fair and impartial juror or . . . be able to deliberate rationally with the 

other jurors?” Juror No. 1 responded: “No. Not at all.” The court then instructed 

Juror No. 1 to continue deliberating. 

Defense counsel asked that Juror No. 1 be excused, arguing that her claim 

that she merely vented to her husband and that her husband provided no feedback 

was disingenuous, if not an outright lie. Defense counsel argued that Juror No. 1 

wanted to bring her husband‟s opinion into deliberations and that there was a real 

danger she was influenced by her husband‟s opinions. 

The trial court found nothing inconsistent between what Juror No. 1 said 

and what the foreperson said. The court, therefore, credited Juror No. 1‟s 

statements. Although it was “on the edge of propriety” for Juror No. 1 to have 

said anything at all, the court emphasized that there was no indication anything 

was said back to her. Indeed, the court observed that nothing suggested Juror 

No. 1 or any other member of the jury had received any outside information. 

Noting that it had admonished her to refrain from such conduct in the future, the 

court concluded it was not necessary or appropriate to excuse her. The court 

denied defendant‟s motion for excusal. 

2. Discussion

Section 1122 requires the trial court to instruct the jury after it is sworn and 

before opening arguments regarding “its basic functions, duties, and conduct,” 

including that they “shall not converse among themselves, or with anyone else, . . . 

on any subject connected with the trial.” (§ 1122, subd. (a).) “The jury shall also, 

at each adjournment of the court before the submission of the cause to the jury, 

. . . , be admonished by the court that it is their duty not to . . . converse among 
58

themselves, or with anyone else, on any subject connected with the trial, or to 

form or express any opinion about the case until the cause is finally submitted to 

them.” (§ 1122, subd. (b).) 

A juror who violates his or her oath and the trial court‟s instructions is 

guilty of misconduct. Thus, it is misconduct for a juror to discuss a case with a 

nonjuror during the course of a trial. (People v. Lewis (2009) 46 Cal.4th 1255, 

1309.) It is misconduct for a juror to even inadvertently receive information about 

a party or the case from a nonparty. (People v. Nesler (1997) 16 Cal.4th 561, 578-

579 (Nesler).) Of course it is misconduct for a juror “to communicate with anyone 

associated with the case.” (People v. Jones (1998) 17 Cal.4th 279, 310; accord, 

People v. Loker (2008) 44 Cal.4th 691, 754; People v. Stewart (2004) 33 Cal.4th 

425, 509-510.) Inasmuch as section 1122, subdivision (b) requires the court to 

admonish the jurors not “to form or express any opinion about the case until the 

cause is finally submitted to them,” a juror who prejudges a case and so fails to 

deliberate is also guilty of misconduct. (See People v. Wilson (2008) 44 Cal.4th 

758, 840-841; People v. Leonard, supra, 40 Cal.4th at pp. 1410-1411.) “ „When a 

person violates his oath as a juror, doubt is cast on that person‟s ability to 

otherwise perform his duties.‟ ” (In re Hitchings (1993) 6 Cal.4th 97, 120; accord, 

Nesler, supra, at p. 578.) 

“In determining whether juror misconduct occurred, „[w]e accept the trial 

court‟s credibility determinations and findings on questions of historical fact if 

supported by substantial evidence.‟ ” (People v. Schmeck (2005) 37 Cal.4th 240, 

294; accord, People v. Pride (1992) 3 Cal.4th 195, 260.) Here the trial court found 

Juror No. 1‟s explanation of her actions credible. Although the trial court 

concluded it was “on the edge of propriety” for Juror No. 1 to have said anything 

at all to her husband, it found no indication that anything was said back to her or 
59

that anything was passed back to the other members of the jury. We accept these 

findings because, as we explain, they are supported by substantial evidence. 

Although Juror No. 1 admitted making one comment to her husband 

expressing her confusion over something in the case, she said the comment did not 

disclose to him any facts or events relating to the case. Juror No. 1 told the trial 

court that her husband did not respond to the comment she made, which was so 

general that it “would have made no sense at all” to someone standing in the room. 

This was not contradicted by the jury foreperson, even though his note to the court 

and initial in-court description of Juror No. 1‟s comment to the jury indicated 

Juror No. 1 had “discussed” an aspect of the case with her husband. In later 

questioning the jury foreperson told the court he received the impression that Juror 

No. 1 informed her husband she would have done something different, but that she 

did not receive any feedback or comments from her husband in return. Thus, the 

record reflects there was no actual back and forth “discussion” or “conversation” 

between Juror No. 1 and her husband in violation of section 1122. The evidence 

supports the court‟s implicit finding that Juror No. 1 did not commit misconduct 

by “venting” to her husband. In this regard, Juror No. 1‟s expression of her 

confusion to her husband regarding an unspecified reaction by an unspecified 

person that differed from what she would have done, while unwise, is analogous to 

the conduct of Juror K.A. in People v. Danks (2004) 32 Cal.4th 269, whose 

expression to her husband of her stress in making a decision in the case did not 

amount to misconduct. (Id. at p. 304.)

Having rejected the claim that Juror No. 1‟s comment to her husband 

exposed her to extraneous facts, information or opinion from her husband, we 

likewise reject defendant‟s tacit suggestion that Juror No. 1‟s internal mental 

comparison of her own reaction to the reaction of Melissa constituted the use of 

extraneous information outside of the evidence admitted at trial. “Jurors‟ views of 
60

the evidence . . . are necessarily informed by their life experiences . . . .” (In re 

Malone (1996) 12 Cal.4th 935, 963.) A juror‟s application of his or her everyday 

life experience to the evaluation of evidence is not misconduct. (People v. Allen 

and Johnson (2011) 53 Cal.4th 60, 76-77; People v. Steele (2002) 27 Cal.4th 1230, 

1265-1266; see also People v. Fauber (1992) 2 Cal.4th 792, 838-839.) 

Nor does the fact that Juror No. 1 considered the prosecutor‟s opening 

statement and expressed to her husband a lack of understanding and confusion 

because she thought she would react differently establish that she prejudged the 

case. (See People v. Allen and Johnson, supra, 53 Cal.4th at pp. 73, 75.) Jurors 

are allowed to reflect about the case during the trial and at home. (People v. 

Ledesma (2006) 39 Cal.4th 641, 729-730.) In fact, it is unrealistic to expect them 

not to do so. (Ibid.) Juror No. 1‟s comment to her husband indicates only such 

thought. It does not suggest Juror No. 1 would not or did not listen to the evidence 

introduced at trial and the arguments of counsel. It does not indicate she was 

unwilling to fairly deliberate when it came time to do so. During the course of 

deliberations, Juror No. 1 commented to the other members of the jury that she 

would not automatically scream if somebody she knew came into her house. But 

such comment simply reflects Juror No. 1 continued to be concerned about this 

point. It does not reflect a refusal to consider other opinions or to deliberate. 

The trial court did not err in denying defendant‟s motion for excusal.

D. The trial court’s failure to instruct the jury that defendant’s 

unrecorded oral admissions should be viewed with caution 

Defendant contends it was constitutional error for the trial court not to 

instruct the jury with the portion of CALJIC No. 2.70 that directs the jury to view 

with caution evidence of an out-of-court oral confession or oral admission of the 

defendant. Defendant claims such error was prejudicial because Detective Stotz‟s 

unrecorded second interview of him at his front door on the afternoon of the 
61

killing contained the first purported mention by defendant of his prior 

sleepwalking incident, which incident became the foundation for the prosecution‟s 

prior assault charges and sexual assault special-circumstance allegations. 

Defendant, however, invited any error. 

The record reflects that both defense counsel and the prosecution requested 

the trial court to instruct the jury on confessions and admissions with CALJIC 

No. 2.70. As relevant here, the prosecutor requested omission of the portion of the 

instruction that admonishes the jury to view with caution evidence of defendant‟s 

out-of-court oral admissions or confession because defendant‟s statements had 

been tape-recorded. (People v. Mayfield (1997) 14 Cal.4th 668, 776 [“cautionary 

instruction is inapplicable, and should not be given, if the oral admission was taperecorded”].) Defense counsel countered that not all of defendant‟s out-of-court 

statements were tape recorded, including his conversations with Stotz at his front 

door. 

The trial court offered to keep the cautionary language in the instruction, 

but add language limiting it to defendant‟s statements that were not tape-recorded. 

Defense counsel objected that such limiting language would in effect tell the jury 

not to critically view the rest of defendant‟s statements. Defense counsel argued 

the jury should be instructed to view confession evidence with caution, whether or 

not it was recorded. The court disagreed and stated that it was either going to 

insert language limiting the cautionary instruction to defendant‟s unrecorded 

statements or take the admonition out. Defense counsel replied, “Well, then, in 

light of that, take the whole thing out.” The trial court confirmed that defendant 

wanted to omit the cautionary language. Defense counsel indicated this was 

correct, but asked that the defense objection be noted for the record. 

“ „When evidence is admitted establishing that the defendant made oral 

admissions, the trial court ordinarily has a sua sponte duty to instruct the jury that 
62

such evidence must be viewed with caution. [Citation.] We have explained, 

however, that “the purpose of the cautionary instruction is to assist the jury in 

determining if the statement was in fact made. [Citation.]” [Citation.] 

Accordingly, we also have held that this cautionary instruction should not be given 

if the oral admission was tape-recorded and the tape recording was played for the 

jury.‟ [Citation].” (People v. Williams (2008) 43 Cal.4th 584, 639.) 

The trial court‟s proposal — to include the cautionary admonition in the 

instruction, but limit it to defendant‟s unrecorded statements — was consistent 

with this authority. The record reflects defense counsel made a deliberate, tactical 

choice to have the court omit the cautionary instruction altogether, rather than 

have it limited. As a consequence, defendant‟s challenge on appeal to the 

omission of the cautionary language is barred by the doctrine of invited error. 

(People v. Lewis (2001) 25 Cal.4th 610, 667.)

E. Asserted cumulative guilt phase error 

Defendant contends the cumulative prejudicial effect of the trial court‟s 

guilt phase errors violates his right to due process, warranting reversal. We have 

rejected defendant‟s claims of error, concluding they were waived, forfeited, 

invited or are meritless. Where we assumed the trial court erred by sustaining 

objections to further questioning of Detective Stotz regarding his training, we have 

found the error to be harmless. We conclude there is no cumulative prejudicial 

effect of error. Reversal is not required.

III. PENALTY PHASE ISSUES

A. The trial court’s refusal to allow defendant to call Dr. Leo and 

Deputy District Attorney Mitchell and its restriction of the 

proffered testimony of Dr. Whiting 

Defendant contends the trial court unconstitutionally deprived him of his 

ability to present a penalty phase defense and to establish lingering doubt as a 
63

mitigating factor under section 190.3, factor (k), when the court refused to allow 

him to call Dr. Leo and Deputy District Attorney Mitchell as witnesses for the 

penalty phase and restricted the proffered testimony of Dr. Whiting. We disagree.

1. The proffered testimony of Dr. Leo

Relying on his offer of proof during the guilt phase of trial, defendant 

sought to call Dr. Leo to testify during the penalty phase of trial regarding factors 

that may have caused defendant to give a false confession of sexual interest in and 

conduct with Melissa as relevant to the issue of lingering doubt under section 

190.3, factor (k). 

The trial court again excluded Dr. Leo‟s testimony on the ground that there 

was insufficient foundational evidence that defendant‟s confession was false. The 

trial court repeated that defendant would not have to testify in order for Leo‟s 

testimony to become admissible, but if he chose not to testify there must be some 

other evidence of falsity. The trial court rejected defendant‟s argument that the 

testimony of the pathologists regarding the method of strangulation was sufficient 

evidence of falsity. 

Defendant contends the trial court‟s ruling prevented him from presenting 

material evidence relevant to establishing lingering doubt as a legitimate defense 

and valid mitigating factor at the penalty phase of his trial. Defendant claims the 

exclusion of such vital evidence constituted a denial of a fair trial in violation of 

due process. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15, & 

17.) 

A capital defendant has no constitutional right to have the jury consider 

lingering doubt in choosing the appropriate penalty (People v. Gay (2008) 42 

Cal.4th 1195, 1220; People v. Stitely (2005) 35 Cal.4th 514, 566), but evidence of 

the circumstances of the offense, “including evidence that may create a lingering 
64

doubt as to the defendant‟s guilt,” is statutorily admissible in the penalty phase of 

trial as a factor in mitigation under section 190.3. (People v. Hamilton (2009) 45 

Cal.4th 863, 912.) 

This does not mean a defendant has a “right to introduce evidence not 

otherwise admissible at the penalty phase for the purpose of creating a doubt as to 

his or her guilt. [Citations.] „ “The test for admissibility is not whether the 

evidence tends to prove the defendant did not commit the crime, but, whether it 

relates to the circumstances of the crime or the aggravating or mitigating 

circumstances.” [Citation.]‟ [Citation.] The evidence must not be unreliable 

[citation], incompetent, irrelevant, lack probative value, or solely attack the 

legality of the prior adjudication [citations].” (People v. Hamilton, supra, 45 

Cal.4th at p. 912.) “Evidence that is inadmissible to raise reasonable doubt at the 

guilt phase is inadmissible to raise lingering doubt at the penalty phase.” (People 

v. Stitely, supra, 35 Cal.4th at p. 566.)

For the same reasons we rejected defendant‟s guilt phase argument, we 

conclude that the trial court did not abuse its discretion by denying defendant‟s 

penalty phase request to have Dr. Leo testify. (See ante, pt. II.B.1.b., pp. 39-43.)

The exclusion of this evidence did not deprive defendant of the opportunity 

to present his penalty phase defense or establish mitigating factors. Defendant 

was still able to and did present evidence supporting his claim of lingering doubt 

as to whether he truthfully confessed to sexual interest in and conduct with 

Melissa. The jury was allowed to consider the guilt phase evidence regarding the 

circumstances of defendant‟s interviews with authorities through the audiotapes of 

the interviews and the testimony of Deteceives Lynn and Stotz, Deputy District 

Attorney Chessell, and Dr. Rath. The jury could consider these circumstances in 

light of the guilt phase testimony it heard from Dr. Whiting about defendant‟s 

physical and mental condition and likely panic attack at the time of the murder. In 
65

addition, at the penalty phase of his trial, defendant called as a witness Robert 

Osborne, the game leader of the live action role-playing game club that defendant 

attended for several years prior to the murder. As noted earlier, Osborne testified 

that defendant was easy to lead into doing something he might not want to do in 

the first place and defendant could be convinced by other game players that it was 

his own idea. The jury could consider such testimony as support for defendant‟s 

claim that he was persuaded to make false statements during his interviews with 

authorities.

2. The proffered testimony of Deputy District Attorney Mitchell

Defendant also requested he be allowed to call the prosecutor to testify at 

the penalty phase of trial, contending Deputy District Attorney Mitchell was a 

necessary percipient witness to defendant‟s interrogation, that Mitchell was the 

person who first told defendant any prior encounter with Melissa was “water under 

the bridge,” and that Mitchell retained Dr. Rath to extract a confession from 

defendant. The trial court denied the request. 

As with the testimony of Dr. Leo, the trial court did not abuse its discretion 

in denying defendant‟s request to call Mitchell as a witness. As we explained in 

rejecting defendant‟s guilt phase argument (ante, pt. II.B.2.b., pp. 46-48), 

Mitchell‟s proposed testimony was either irrelevant or cumulative to other 

admitted evidence. The other evidence was available for the jury‟s consideration 

at the penalty phase.

3. The proffered testimony of Dr. Whiting

Defendant requested permission to call Dr. Whiting to testify concerning 

defendant‟s psychological characteristics and how those correlated to the facts of 

the crimes. Defendant contemplated that Whiting would express an opinion that 

defendant was suffering a panic attack when he encountered Melissa and that he 
66

lacked the specific intent to rape, molest, or steal. Defendant wanted Whiting to 

be able to use as a basis for such opinion his 1997 interviews with defendant. The 

prosecution objected that this would allow the introduction of defendant‟s selfserving hearsay statements in the guise of an explanation of the basis for 

Whiting‟s expert opinion. The trial court agreed that it would be inappropriate for 

Whiting to testify to defendant‟s hearsay statements. The court ruled Whiting 

could testify, but with the same limitations it had imposed in the guilt phase, that 

is, Whiting could support his expert opinions with evidence already in the record 

and the results of his tests, but not rely on anything defendant said to him during 

interviews. Ultimately, the defense did not call Whiting to testify during the 

penalty phase. 

We conclude the trial court properly applied settled principles in restricting 

the testimony of Dr. Whiting. As we have explained, “[w]hen expert opinion is 

offered, much must be left to the trial court‟s discretion. [Citation.] „An expert 

may generally base his opinion on any “matter” known to him, including hearsay 

not otherwise admissible, which may “reasonably . . . be relied upon” for that 

purpose. [Citations.] On direct examination, the expert may explain the reasons 

for his opinions, including the matters he considered in forming them. However, 

prejudice may arise if, “ „under the guise of reasons,‟ ” the expert‟s detailed 

explanation “ „[brings] before the jury incompetent hearsay evidence.‟ ” 

[Citation.]‟ [Citation.] „. . . Evidence Code section 352 authorizes the court to 

exclude from an expert‟s testimony any hearsay matter whose irrelevance, 

unreliability, or potential for prejudice outweighs its proper probative value. 

[Citation.]‟ [Citation.] The discretion to exclude hearsay applies to defense, as 

well as prosecution, expert evidence.” (People v. Carpenter (1997) 15 Cal.4th 

312, 403; accord, People v. Whitt (1990) 51 Cal.3d 620, 644.) The discretion to 
67

exclude incompetent hearsay applies to evidence proffered on the issue of 

lingering doubt. (People v. Blair (2005) 36 Cal.4th 686, 750.)

Here defendant‟s hearsay statements to Dr. Whiting were “made under 

circumstances” indicating a “lack of trustworthiness.” (Evid. Code, § 1252.) 

Defendant‟s interviews with Whiting occurred three years after Melissa‟s death 

while his capital trial was pending. There was a clear incentive at that time for 

defendant to minimize his culpability in his statements. Under these 

circumstances, the trial court appropriately ruled Whiting could not rely on 

defendant‟s statements if Whiting testified. This did not preclude defendant from 

presenting his theory that he may have been suffering a panic attack at the time of 

the murder. At the penalty phase, the jury was allowed to consider Whiting‟s 

testimony at the guilt phase of trial that defendant was likely suffering such an 

attack. Defendant could have called Whiting to testify at the penalty phase if he 

felt that further explanation would be helpful. 

B. The trial court’s exclusion of asserted evidence of third party 

culpability 

Defendant contends the trial court unconstitutionally deprived him of due 

process, a fair trial, and the right to present a defense when it denied his request to 

present third party culpability evidence of a late-night home intrusion that 

occurred in defendant‟s neighborhood three years prior to defendant‟s crimes 

against Melissa. Although defendant initially phrases his argument in terms 

applicable to the exclusion of guilt phase evidence, we understand defendant‟s 

claim, consistent with later statements in his briefs, to be that the exclusion of this 

evidence at the penalty phase violated his right to present mitigating evidence. 

(See generally Kansas v. Marsh (2006) 548 U.S. 163, 174; Skipper v. South 

Carolina (1986) 476 U.S. 1, 4.)
68

1. Background

Defendant sought permission at the penalty phase of trial to introduce the 

testimony of his neighbor, Bettie Mercado, that she encountered an underwearclad male, who was between 25 and 30 years old, in the hallway of her home late 

one night about three years before the crimes against Melissa. 

At a hearing outside the presence of the jury, Mercado testified that she 

lived around the corner from the Lintons and that one night in late 1991 she heard 

her two young children talking. When she got up and walked down the hallway to 

investigate, she met a male intruder. She knew defendant and was sure the 

intruder was not defendant. The intruder ran back to Mercado‟s son‟s room and 

grabbed his clothes. Mercado‟s husband chased the intruder from their home. 

Mercado checked on her children and then dialed 911. 

The prosecution objected that the proposed testimony was irrelevant. 

Defendant countered that the evidence of another nighttime intruder in the 

neighborhood who was wearing only his underwear was sufficient to raise a doubt 

about who Melissa saw, if she saw anyone, in the prior assault. The trial court 

sustained the objection. 

2. Discussion

Defendant argues the trial court erred because the Mercado incident was 

similar to the prior assault described by Melissa‟s parents, making it relevant to 

the issue of lingering doubt at the penalty phase of defendant‟s trial. We disagree.

“Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence that 

raises a reasonable doubt as to a defendant‟s guilt, including evidence tending to 

show that another person committed the crime, is relevant. But evidence that 

another person had a motive or opportunity to commit the crime, without more, is 

irrelevant because it does not raise a reasonable doubt about a defendant‟s guilt; to 

be relevant, the evidence must link this third person to the actual commission of 
69

the crime. [Citation.] Evidence that is relevant still may be excluded if it creates a 

substantial danger of prejudicing, confusing, or misleading the jury, or would 

consume an undue amount of time. (See Evid. Code, § 352.)” (People v. Brady

(2010) 50 Cal.4th 547, 558; accord, People v. Hamilton, supra, 45 Cal.4th at 

pp. 913-914; People v. Geier (2007) 41 Cal.4th 555, 581-582.) “Evidence that is 

inadmissible to raise reasonable doubt at the guilt phase is inadmissible to raise 

lingering doubt at the penalty phase.” (People v. Stitely, supra, 35 Cal.4th at 

p. 566; see People v. Hamilton, supra, at pp. 913-914.) 

Applying these principles, it is clear that the trial court did not err in 

excluding the proffered testimony of Mercado. Nothing was offered that 

connected the unidentified nighttime intruder into the Mercados‟ home years 

earlier with the first assault on Melissa. Given the substantial length of time 

between the incidents, the fact that they shared some relatively generic similarities 

(both involved males in some state of undress — one was partially clad, the other 

was nude, and both occurred at night) did not suffice to link the two incidents. 

Moreover, to the extent the Mercado incident had any probative value at all, it was 

certainly substantially outweighed by the risk of confusing or misleading the jury. 

(Evid. Code, § 352.) 

Because there was no error under state law, we reject defendant‟s 

constitutional claims. “ „[A]s a general matter, the ordinary rules of evidence do 

not impermissibly infringe on the accused‟s [state or federal constitutional] right 

to present a defense.‟ [Citations.]” (People v. Robinson (2005) 37 Cal.4th 592, 

626-627, quoting People v. Hall (1986) 41 Cal.3d 826, 834; see also Holmes v. 

South Carolina (2006) 547 U.S. 319, 326-327 [although the federal Constitution 

prohibits exclusion of defense evidence under state rules that serve no legitimate 

purpose or that are disproportionate to the ends they are asserted to promote, 

application of well-established rules of evidence is permissible].)
70

C. The admission of photographs and testimony as victim impact 

evidence 

Prior to trial, defendant moved for a ruling on the admissibility of the 

prosecution‟s proposed victim impact evidence, which consisted of testimony by 

Melissa‟s parents and several of her friends, plus a seven- or eight-minute video 

montage of 53 still photographs accompanied by music. After viewing the video, 

the trial court ruled the evidence was admissible. Prior to the penalty phase, 

however, the prosecution decided not to introduce the video. Instead, it presented 

the testimony of Melissa‟s parents and two of her school friends, and 13 still 

photographs depicting Melissa on various occasions of her life, the memorial 

plaque at her school, and the empty chair at graduation. 

Defendant tendered a continuing objection to the victim impact evidence 

during the examination of Melissa‟s father. After Melissa‟s father finished 

testifying, defendant complained that during the earlier testimony of Melissa‟s 

mother, two jurors had cried, two other jurors had wiped their eyes, and another 

juror was visibly upset. Defendant argued the testimony exceeded the bounds of 

appropriate victim impact evidence. The trial court overruled defendant‟s 

objection as well as his subsequent motion to strike the testimony of Melissa‟s 

parents. The trial court also overruled defendant‟s continuing objection to all of 

the photographic evidence. 

Defendant claims on appeal that the “gut-wrenching” victim impact 

evidence introduced in this case was so “voluminous, inflammatory and unduly 

prejudicial” as to constitute a deprivation of his right to due process, a fair trial and 

the right to present a defense under the federal and state Constitutions. We find no 

error.

As defendant recognizes, victim impact evidence, including photographic 

images of the victim while he or she was alive, may be introduced at penalty phase 
71

proceedings under the federal Constitution (Payne v. Tennessee (1991) 501 U.S. 

808) and under our state law. (People v. Russell (2010) 50 Cal.4th 1228, 1264-

1265; People v. Dykes, supra, 46 Cal.4th at p. 781.) “[T]he state has a legitimate 

interest in „ “counteracting the mitigating evidence which the defendant is entitled 

to put in, by reminding the sentencer that just as the murderer should be 

considered as an individual, so too the victim is an individual whose death 

represents a unique loss to society and in particular to [her] family.” ‟ ” (People v. 

Garcia (2011) 52 Cal.4th 706, 751, quoting Payne v. Tennessee, supra, 501 U.S. 

at p. 825; accord, People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1056.) 

“Unless it invites a purely irrational response, evidence of the effect of a capital 

murder on the loved ones of the victim is relevant and admissible under section 

190.3, factor (a), as a circumstance of the crime. [Citation.] The federal 

Constitution bars victim impact evidence only if it is so unduly prejudicial as to 

render the trial fundamentally unfair. [Citations.]” (People v. Booker (2011) 51 

Cal.4th 141, 190; People v. Zamudio (2008) 43 Cal.4th 327, 364.)

The evidence presented by the prosecution here was not excessive — the 

testimony of Melissa‟s mother occupies 18 pages of transcript, the testimony of 

her father occupies 13 pages, the testimony of Melissa‟s friend Jessica H. takes up 

five pages, and the testimony of Melissa‟s friend Lindsay B. covers just four 

pages. (People v. Dykes, supra, 46 Cal.4th at pp. 782-783.) Nor did the evidence 

go beyond the permissible scope of victim impact testimony. As mentioned 

earlier, the testimony described Melissa as a kind, loving, cheerful, and friendly 

person with multiple interests and talents, who was missed deeply by her parents 

and friends. She was mourned by them and her school community. Her parents 

described the continuing impact her death has on them and other members of their 

family. Melissa‟s father described the guilt he felt over his failure to protect 

Melissa and take seriously her report of the prior assault. (People v. McKinnon 
72

(2011) 52 Cal.4th 610, 690-691.) The prosecution introduced 13 still photographs 

of Melissa, showing her at various ages and on various occasions. (See People v. 

Zamudio, supra, 43 Cal.4th at pp. 363-368 [video montage containing 118 photos 

admissible]; People v. Edwards (1991) 54 Cal.3d 787, 832-836 [photos of victim 

while alive admissible].)

Like the evidence admitted in People v. Huggins (2006) 38 Cal.4th 175, 

this “testimony, though emotional at times, fell far short of anything that might 

implicate the Eighth Amendment. It was traditional victim-impact evidence, 

„permissible under California law as relevant to the circumstances of the crime, a 

statutory capital sentencing factor.‟ ” (Id. at p. 239; accord, People v. Zamudio, 

supra, 43 Cal.4th at pp. 364-368.) That some jurors may have reacted to the 

testimony by crying does not require a conclusion that the evidence invited a 

purely irrational response by the jury in deciding the appropriate penalty or 

otherwise rendered defendant‟s trial fundamentally unfair. (See People v. Booker, 

supra, 51 Cal.4th at p. 192; People v. Jurado (2006) 38 Cal.4th 72, 132-134.) 

Having reviewed the transcript, the photos, and the relatively minor role such 

evidence played in the prosecution‟s penalty phase argument, which emphasized 

the circumstances of defendant‟s crimes and urged the jury to decide the 

appropriate penalty based on reason and not emotion, we reject defendant‟s claim 

of constitutional error. 

D. Defendant’s claims of prosecutorial misconduct in closing argument

Defendant contends the prosecutor committed multiple acts of prejudicial 

misconduct in closing argument during the penalty phase, requiring reversal. 

Defendant failed to preserve his right to challenge much of the alleged misconduct 

and in any event his claims are meritless.
73

1. The applicable law

“ „A prosecutor‟s conduct violates the Fourteenth Amendment to the 

federal Constitution when it infects the trial with such unfairness as to make the 

conviction a denial of due process. Conduct by a prosecutor that does not render a 

criminal trial fundamentally unfair is prosecutorial misconduct under state law 

only if it involves the use of deceptive or reprehensible methods to attempt to 

persuade either the trial court or the jury.‟ [Citation.] When a claim of 

misconduct is based on the prosecutor‟s comments before the jury, as all of 

defendant‟s claims are, „ “the question is whether there is a reasonable likelihood 

that the jury construed or applied any of the complained-of remarks in an 

objectionable fashion.” ‟ [Citations.] To preserve a claim of prosecutorial 

misconduct for appeal, a defendant must make a timely and specific objection and 

ask the trial court to admonish the jury to disregard the improper argument. 

[Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.) A failure 

to timely object and request an admonition will be excused if doing either would 

have been futile, or if an admonition would not have cured the harm. (People v. 

Cole (2004) 33 Cal.4th 1158, 1201.)

2. Denigrating defense counsel

Defendant complains on appeal that various comments of the prosecutor in 

his final closing argument disparaged defense counsel. 

Defendant points to the prosecutor‟s statements that “[d]efense counsel will 

belittle the facts, accuse me of speculation. I didn‟t create this evidence . . .” and 

that “[t]he defense, in the People‟s position, has exaggerated the abuse the 

defendant has suffered in his childhood . . . .” Defendant also cites to the 

prosecutor‟s argument that “[t]he defense in this case has been designed to 

desensitize you to the crimes that the defendant committed. I want you to 

recognize, if you have not already, the language of manipulation. Her murder is 
74

referred to as a tragedy. It‟s not a tragedy, it‟s a murder. It‟s repeatedly said that 

Melissa died. Melissa didn‟t die, she was killed. . . . The defense has attempted to 

present evidence of his entire childhood to you, especially at the ages of five and 

eight, to attempt to humanize him, to divert attention away from the crime he 

committed and the reason why he‟s here. [¶] And perhaps the most glaring 

example of a technique used to divert attention away from the defendant, who is 

the focus of these proceedings, is to paint other people, other persons, as the bad 

guy, as the bad guy. It‟s been the big bad D.A. in this case who‟s overfiled it, 

who‟s overcharged it, who‟s made or tried to make it look, according to the 

defense, as if the defendant did more than he actually did, committed more crimes 

than he actually did. [¶] And [defense counsel] gets up here and tried to analogize 

the charges in this case to a [jail] disciplinary marker. . . .” 

In a similar vein, defendant claims misconduct in several other comments 

by the prosecutor that accused the defense of belittling the charges, the evidence, 

and the crimes, with the purpose of creating a diversion and presenting an 

argument for a more lenient sentence. Defendant complains about the 

prosecutor‟s argument that: “Particularly appalling is the audacity of defense 

counsel in calling or evoking Melissa‟s Middleton‟s name in an attempt to make a 

plea for the lesser sentence in this case. Not only appalling, it was offensive.”10

Defendant failed to object and request an admonition regarding these 

comments. Nothing suggests an objection and request for admonition would have 

been futile, given that defense counsel made other objections, some of which the 

 

10 Defense counsel had earlier argued Melissa was not the kind of person who 

would want the jury to kill defendant, her friend‟s brother, “for his mistake,” 

referring to testimony that she was the type of person who brought an injured wasp 

home to recover. 
75

trial court sustained. We conclude, therefore, that defendant forfeited his 

challenge to these comments. 

In any event, defendant‟s claim that the cited argument constituted 

misconduct lacks merit. The prosecutor‟s comments responded directly either to 

earlier arguments made by defense counsel or defense arguments the prosecutor 

reasonably anticipated being made based on prior defense arguments. When the 

comments are considered in context, there is no likelihood that the jury would 

have understood the comments as anything beyond criticism of defense counsel‟s 

tactical approach in argument and the defense view of the evidence in the case, as 

is allowed. (People v. Huggins, supra, 38 Cal.4th at p. 207; People v. Cole, supra, 

33 Cal.4th at p. 1203.) The comments did not constitute an improper argument or 

an attack on counsel‟s personal integrity. (People v. Chatman (2006) 38 Cal.4th 

344, 387; People v. Medina (1995) 11 Cal.4th 694, 758-759.) 

3. Improper vouching

Defendant contends a portion of the above quoted argument also 

constituted prosecutorial misconduct as impermissible “vouching.” Specifically 

defendant points to the comments by the prosecutor that defense counsel was 

trying to divert attention away from defendant by trying to paint other people, 

including the prosecutor, as the “bad guy” who was trying to make it seem as if 

defendant committed more crimes than he actually did. Defendant claims this 

argument implied the prosecutor “is the „good guy‟ who has evidence that the jury 

does not know about and that the jury should trust him, as the public prosecutor, to 

be doing the right thing.” 

The claim is forfeited for failure to object at trial. The claim also lacks 

merit. Impermissible vouching occurs when “prosecutors [seek] to bolster their 

case „by invoking their personal prestige, reputation, or depth of experience, or the 
76

prestige or reputation of their office, in support of it.‟ [Citation.] Similarly, it is 

misconduct „to suggest that evidence available to the government, but not before 

the jury, corroborates the testimony of a witness.‟ ” (People v. Bonilla (2007) 41 

Cal.4th 313, 336; People v. Zambrano (2007) 41 Cal.4th 1082, 1167.) The 

prosecutor‟s argument did neither of these things. In urging the jury not to be 

distracted by defense counsel‟s tactic of blaming others for the seriousness of the 

situation defendant faced, a strategy of making other people “the bad guy,” the 

prosecutor was referencing defense counsel‟s oft-repeated contention that 

defendant was coerced by authorities, at the instigation of the prosecutor, into 

making false admissions and a false confession of sexual interest in and conduct 

with Melissa. The prosecutor was criticizing this denial of culpability and 

minimization of the crimes. The prosecutor was not suggesting there was 

evidence the prosecutor knew outside of the record or that the jury should 

personally trust him because of his position. 

4. Argument of facts not in evidence

Defendant contends the prosecutor committed prejudicial misconduct 

during his closing argument by referring to facts not in evidence. “ „[S]tatements 

of facts not in evidence by the prosecuting attorney in his argument to the jury

constitute misconduct.‟ [Citations.]” (People v. Bolton (1979) 23 Cal.3d 208, 

212; accord, People v. Smith (2003) 30 Cal.4th 581, 617.) But we find no such 

misconduct here.

a. Defendant’s masturbation on Melissa’s underwear after the 

murder

Twice during his argument, the prosecutor argued that defendant took 

Melissa‟s underpants and masturbated into them after he killed her. Defendant 

objected that there was no evidence of that “whatsoever.” The trial court ruled 

that the prosecutor was discussing a reasonable interpretation of the evidence and 
77

that it was up to the jury to determine whether the prosecutor‟s interpretation was 

reasonable. 

We agree with the trial court. A pair of Melissa‟s underpants stained with 

defendant‟s semen was found in the trash at the Linton‟s home the day after 

Melissa‟s murder. The underpants were found with a ring belonging to Melissa 

and with the keys to the Middleton home that defendant said he threw out after the 

murder. Although there was no specific evidence indicating when defendant had 

masturbated on the underpants and defendant could have done so before the 

murder, it was within the range of reasonable inferences to suggest defendant had 

done so after the murder because he threw out the underpants, the ring and the 

keys together. 

b. Defendant’s remorse

The prosecutor argued that “[n]othing [defendant] did the next day, 

November 30, 1994, when the officer came to pick him up at his house to talk to 

him some more, nothing he did that day can erase or mitigate what he had done to 

Melissa and to her family the prior day. When you‟re looking for any sign of 

remorse that is important as a mitigating factor in this case, look at his actions on 

the day that it counts, on the day that it matters, on the day when one would be 

revolted.” The trial court overruled defense counsel‟s objection based on the Sixth 

Amendment to the federal Constitution and the lack of opportunity to crossexamine “this witness.” The prosecutor continued: “The day where one would be 

revolted by one‟s conduct if one had in him that human feeling, natural emotion, 

not the mentality of a killer. That‟s when it counts. Not after police suspicion has 

focused on you, not after they have been asking probing questions about a prior 

incident, not after they‟ve noticed scratches on your arm, and not after they‟ve 

asked you to come down to the police station to talk further about the case. It 
78

wasn‟t until the next day that [defendant] ever expresses any sorrow or grief.” 

The trial court again overruled defense counsel‟s objection based on defendant‟s 

Sixth Amendment right to confrontation. 

On appeal, defendant complains this argument improperly referenced facts 

outside the evidence. We reject the claim. The prosecutor‟s argument questioned 

the sincerity of defendant‟s expression of any remorse by arguing defendant 

expressed remorse only when it became obvious that the authorities suspected him 

of being Melissa‟s killer. For this purpose, the prosecutor asked the jury to look at 

defendant‟s actions on the day of the murder to consider whether defendant 

demonstrated any immediate remorse. The prosecutor forcefully argued defendant 

did not express any sorrow or grief until the next day, but nothing in the 

prosecutor‟s statements suggested the prosecutor was basing his argument on his 

personal knowledge of facts outside the record, i.e., that he was in effect speaking 

as a “witness.” There was no reasonable likelihood the jury construed the remarks 

as anything more than an argument that if the jury reviewed the evidence before it, 

it would conclude defendant had not expressed any remorse until the day after the 

murder when suspicion had focused on him and the authorities were bringing him 

in for official questioning. In making his argument, the prosecutor argued 

permissible inferences from the evidence. Defendant argued against such 

inferences in rebuttal, as he was entitled to do. It was up to the jury to determine 

the reasonableness of the inferences urged. (People v. Smith, supra, 30 Cal.4th at 

p. 617.) 

c. Conditions in prison if defendant were sentenced to life without 

parole

The prosecutor argued that life without the possibility of parole was not an 

appropriate punishment in this case. The prosecutor stated: “I suggest to you it‟s 

not enough in this case. The defendant will have a life, if you let him have life 
79

without parole. He will have a community of people that he deals with. He will 

have his friends. He will have money to buy things. He will have television. He 

will have books. He will have visits from his family.” The trial court overruled 

defendant‟s objection that there was no evidence to support this argument. 

Although there was some testimony from members of defendant‟s family 

regarding their contact with defendant in person and by telephone while he was in 

jail and their sending of money to him, which defendant used to purchase things 

for his fellow inmates, defendant is correct that there was no evidence of the 

conditions defendant would live in if he was sentenced to state prison for a life 

term without the possibility of parole. However, even assuming the trial court 

should have sustained defendant‟s objection on such basis (see People v. Redd

(2010) 48 Cal.4th 691, 753), we conclude that there is no reasonable possibility 

the jury would have reached a more favorable verdict in the absence of this 

argument. The comments were brief and minor in the context of the argument as a 

whole. The prosecutor acknowledged that life in prison without the possibility of 

parole is a “severe, severe punishment,” “a hard and severe punishment” and the 

defense countered the prosecutor‟s argument with its own argument regarding the 

conditions defendant would face in prison. 

5. Appeal to public passion and sentiment

The prosecutor argued “that a death verdict, ladies and gentlemen, is the 

ultimate validation of what we hold and value most dear in our community and as 

individuals: Our life, our children, and the sanctity of our home. And if you were 

to find that death is the appropriate sentence for [defendant], you are doing no 

more than affirming in the loudest voice possible those values in our community.” 

The trial court sustained defendant‟s objection that these comments improperly 

argued community and public sentiment. The prosecutor then stated: “A death 
80

verdict is the ultimate validation of our community values. Let the punishment fit 

the crime. A death verdict says we will not tolerate this type of crime.” The trial 

court overruled defendant‟s objection, stating that it did not think the prosecutor 

“stepped over the line at that point.” 

Defendant now contends the prosecutor‟s argument constituted an improper 

appeal to the jury‟s passion or prejudice. (People v. Pitts (1990) 223 Cal.App.3d 

606, 694, 702.) 

“It is, of course, improper to make arguments to the jury that give it the 

impression that „emotion may reign over reason,‟ and to present „irrelevant 

information or inflammatory rhetoric that diverts the jury‟s attention from its 

proper role, or invites an irrational, purely subjective response.‟ [Citation.]” 

(People v. Padilla (1995) 11 Cal.4th 891, 956-957, overruled on other grounds in 

People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) However, defendant did not 

object to the prosecutor‟s statements on this basis, and therefore has forfeited this 

claim. (People v. Redd, supra, 48 Cal.4th at pp. 742-743.) And to the extent 

defendant‟s argument encompasses the objection he made at trial, we conclude the 

brief comment ultimately allowed by the trial court fell within the bounds of 

permissible argument we have recognized. (People v. Zambrano, supra, 41 

Cal.4th at pp. 1177-1179.)

E. Instructing the jury pursuant to CALJIC No. 8.85 

CALJIC No. 8.85 instructs the jury regarding the aggravating and 

mitigating factors listed in section 190.3, factors (a) through (k), which the jury 

must consider in deciding the penalty to be imposed on a capital defendant. 

Defendant claims the trial court erred by instructing the jury pursuant to CALJIC 

No. 8.85 without deleting the six factors that defendant contended were 

inapplicable to his case. Defendant also asserts the trial court erred by failing to 
81

delete the modifier “extreme” from the description of a defendant‟s mental or 

emotional disturbance that the jury is to consider as a factor under factor (d) of 

CALJIC No. 8.85. We have repeatedly rejected both of these claims. (See, e.g., 

People v. Thomas (2011) 51 Cal.4th 449, 505; McWhorter, supra, 47 Cal.4th at 

pp. 378-379; People v. Lindberg (2008) 45 Cal.4th 1, 50-51.) Not being 

persuaded we should reconsider our prior decisions, we likewise reject defendant‟s 

claims.

F. Instructing the jury with CALJIC No. 8.88 

Defendant contends the penalty phase concluding instruction used at his 

trial, a slightly modified version of CALJIC No. 8.88,11 violated his rights under 

the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal Constitution 

and the corresponding sections of the state Constitution. As defendant concedes, 

we have previously considered and rejected his arguments. We do so again 

because defendant fails to persuade us that our prior decisions were erroneous. 

Accordingly, we conclude CALJIC No. 8.88 is not unconstitutional for 

failing to inform the jury that if the mitigating circumstances outweigh those in 

aggravation, it is required to return a sentence of life without the possibility of 

parole. (People v. Lomax (2010) 49 Cal.4th 530, 595; People v. Lindberg, supra, 

45 Cal.4th at p. 52.) We once again reject the argument that our decision in 

People v. Duncan (1991) 53 Cal.3d 955, 978, erroneously concluded such an 

instruction was unnecessary. (People v. Page (2008) 44 Cal.4th 1, 57.) 

 

11 The trial court modified CALJIC No. 8.88 to include an additional sentence 

instructing the jury that “[t]here is no need for you as jurors to unanimously agree 

to the presence of a mitigating or aggravating factor before considering it.” 
82

We conclude CALJIC No. 8.88 is not constitutionally defective for failing 

to inform the jury that it has the discretion to impose a sentence of life without the 

possibility of parole even in the absence of mitigating circumstances. (People v. 

Lindberg, supra, 45 Cal.4th at p. 52; People v. Moon (2005) 37 Cal.4th 1, 43.)

CALJIC No. 8.88‟s statement that jurors may impose a death sentence only 

if the aggravating factors are “so substantial” in comparison with the mitigating 

circumstances that death is warranted is not unconstitutionally vague. 

(Carrington, supra, 47 Cal.4th at p. 199; People v. Page, supra, 44 Cal.4th at 

pp. 55-56.) 

CALJIC No. 8.88 is not constitutionally flawed because it “uses the term 

„warrants‟ instead of „appropriate.‟ ” (People v. Rogers (2009) 46 Cal.4th 1136, 

1179; People v. Page, supra, 44 Cal.4th at p. 56.) 

G. The trial court’s inquiry into allegations of juror misconduct 

during penalty phase deliberations 

Defendant claims the trial court deprived him of due process, a fair trial and 

the right to an unbiased and impartial jury when it failed to make further inquiries 

into possible juror misconduct during the jury‟s penalty phase deliberations. We 

agree with the trial court that no juror misconduct was shown and further find no 

abuse of discretion by the trial court in refusing to conduct further investigation.

1. Background

On the third day of penalty phase deliberations, the trial court received a 

note from the jury foreperson stating that the foreperson had received two emails 

from “individuals on the jury regarding the conduct of other jurors. (1) One juror 

was upset at another for saying they did not have compassion. (2) One juror was 

upset at another for saying they were having too much fun in the deliberation 

room, and not taking this case serious.” The foreperson‟s note asked the court 

whether this was “appropriate” or “a problem.” 
83

At the time when the court was considering how to respond to the note, the 

jury sent another note indicating it had reached a verdict. The trial court agreed to 

question the foreperson about the initial note before receiving the verdict. 

The jury foreperson was brought into the courtroom to respond to the 

inquiry of the court outside the presence of the other members of the jury. The 

foreperson told the trial judge that the two emails were directed to him and that he 

did not “see any cc‟s in the headers.” Thus, to his knowledge, the emails were 

sent to him only. The foreperson said that both emails complained about 

comments, as described in the foreperson‟s note, which had been made during 

deliberations in front of all the jurors. According to the foreperson, it appeared to 

him that the sender of each email was offended by the comments and was 

basically venting to the foreperson. Apparently, the foreperson added, the 

individuals who sent the emails did not want to directly confront the jurors who 

made the statements. The foreperson knew who made the complained-of 

statements because the comments were made during deliberations. The foreperson 

could not determine, however, who sent the emails because the sender was not 

identifiable from the emails themselves and the statements were made to all the 

jurors, not to an individual. The foreperson told the court that he deleted the 

emails without responding. Further, the foreperson stated, he mentioned his 

receipt of the emails to the jury as a whole in deliberations that morning, but no 

one admitted sending the emails. None of the jurors made any follow-up comment 

regarding the content of the emails. According to the foreperson, one juror stated 

some concern and suggested that “we should let the court decide whether this was 

an appropriate act or not.” Asked by the court whether they had any further 

questions for the jury foreperson, defense counsel and the prosecutor said “no.” 

After the foreperson left the courtroom, defense counsel argued to the trial 

court that the two emailing jurors violated the trial court‟s express instructions not 
84

to deliberate outside the jury room and that those jurors should be identified. 

Defense counsel added that it was unknown what other notes and messages the 

jurors may have sent among themselves. Counsel expressed concern that an 

attempt was being made outside the jury room “to still [the] voice of a particular 

juror.” 

The trial court found that there was no jury misconduct, noting that all of 

the comments reflected in the emails occurred within the jury deliberation room 

and that a couple of jurors were simply venting to the foreperson about things that 

were said because “their feelings might have been hurt or something [to] that 

effect.” The court found the emails did not amount to discussing the case or 

deliberating outside the jury room. The trial court declined to make any further 

inquiries, concluding it would be inappropriate to inquire whether the jurors had 

violated the court‟s admonitions without information suggesting that they may 

have done so. The trial court proceeded to receive the penalty verdict. 

2. Discussion

Defendant argues the above described actions of the jurors and jury 

foreperson constituted misconduct because there was an “exchange” of emails 

“between themselves [that] clearly violated their oaths and the court‟s 

instructions.” Defendant contends there was a strong possibility that the 

misconduct was prejudicial and hence separate questioning of the jurors was 

needed to resolve the conflict in the information provided by the foreperson. 

Defendant claims the trial court erred by not identifying the errant jurors and 

questioning them further. 

“ „When a trial court is aware of possible juror misconduct, the court “must 

„make whatever inquiry is reasonably necessary‟ ” to resolve the matter.‟ 

[Citation.] Although courts should promptly investigate allegations of juror 
85

misconduct „to nip the problem in the bud‟ [citation], they have considerable 

discretion in determining how to conduct the investigation. „The court‟s discretion 

in deciding whether to discharge a juror encompasses the discretion to decide what 

specific procedures to employ including whether to conduct a hearing or detailed 

inquiry.‟ [Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 274; accord, 

People v. Virgil (2011) 51 Cal.4th1210, 1284.)

Here the trial court chose, upon receipt of the note regarding the two 

emails, to directly question the recipient of the emails — the jury foreperson. 

Based on the information provided by the foreperson, the trial court properly 

found there was no misconduct. Contrary to defendant‟s characterization of the 

matter, the questioning of the jury foreperson did not reveal any “exchange” of 

emails between jurors. The foreperson alone merely received two emails, which 

complained to him about things said during deliberations. At most this was an 

attempt to have a conversation outside the deliberation room, but the foreperson 

did not reply and could not even identify the senders. The foreperson mentioned 

his receipt of the emails to the whole jury when deliberations continued. No one 

admitted sending the emails and there was no discussion of them. A concern 

regarding the appropriateness of sending the emails was expressed and the court‟s 

input was sought. The questioning conducted by the court, thus, uncovered no 

evidence of any discussion or deliberations, electronic or otherwise, occurring 

outside the presence of the entire jury that constituted misconduct. (See § 1122.) 

We further conclude the trial court acted well within its considerable 

discretion in deciding that no further inquiry was necessary. (People v. Virgil, 

supra, 51 Cal.4th at p. 1284.) There was no conflict in the information provided 

by the foreperson. Nothing suggested other emails were being or were likely to be 

exchanged between jurors. Defense counsel‟s expressed concern that there might 

have been other notes and messages sent among the jurors was entirely 
86

unsubstantiated. Defendant is not entitled to conduct a “ „ “fishing expedition” ‟ ” 

for possible misconduct. (People v. Avila, supra, 38 Cal.4th at p. 604.)

H. Challenges to California’s death penalty scheme 

Defendant raises a number of challenges to the constitutionality of 

California‟s death penalty scheme under the Fifth, Sixth, Eighth and Fourteenth 

Amendments of the United States Constitution. We are not persuaded to 

reconsider the conclusions we have previously reached on such claims and reject 

them again as follows: 

“Section 190.2 is not impermissibly overbroad in violation of the Fifth, 

Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. 

Specifically, the various special circumstances are not so numerous as to fail to 

perform the constitutionally required narrowing function, and the special 

circumstances are not unduly expansive, either on their face or as interpreted by 

this court. [Citation.] Nor did the 1978 death penalty law — enacted by the voters 

by way of initiative in November 1978 — have the intended or practical effect of 

making all murderers death eligible. [Citation.]” (People v. Jennings (2010) 50 

Cal.4th 616, 688 (Jennings).)

“Section 190.3, factor (a), does not, on its face or as interpreted and 

applied, permit arbitrary and capricious imposition of a sentence of death in 

violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United 

States Constitution. (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1066; see 

also Tuilaepa v. California (1994) 512 U.S. 967, 976 [„The circumstances of the 

crime are a traditional subject for consideration by the sentencer, and an 

instruction to consider the circumstances is neither vague nor otherwise improper 

under our Eighth Amendment jurisprudence.‟].) „Defendant‟s argument that a 

seemingly inconsistent range of circumstances can be culled from death penalty 
87

decisions proves too much. What this reflects is that each case is judged on its 

facts, each defendant on the particulars of his offense. Contrary to defendant‟s 

position, a statutory scheme would violate constitutional limits if it did not allow 

such individualized assessment of the crimes but instead mandated death in 

specified circumstances.‟ (People v. Brown (2004) 33 Cal.4th 382, 401 

(Brown).)” (Jennings, supra, 50 Cal.4th at pp. 688-689.)

“Neither the federal nor the state Constitution requires that the penalty 

phase jury make unanimous findings concerning the particular aggravating 

circumstances, find all aggravating factors beyond a reasonable doubt, or find 

beyond a reasonable doubt that the aggravating factors outweigh the mitigating 

factors. (E.g., [People v.] Fairbank [(1997) 16 Cal.4th [1223,] 1255.) The United 

States Supreme Court‟s recent decisions interpreting the Sixth Amendment‟s jurytrial guarantee (see Cunningham v. California (2007) 549 U.S. 270; United States 

v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring 

v. Arizona (2002) 536 U.S. 584; Apprendi [v. New Jersey (2000)] 530 U.S. 466) 

do not alter these conclusions. (E.g., People v. Bramit (2009) 46 Cal.4th 1221, 

1249 & fn. 22.)” (Jennings, supra, 50 Cal.4th at p. 689; accord, People v. 

Castaneda (2011) 51 Cal.4th 1292, 1355.)

Neither the cruel and unusual punishment clause of the Eighth Amendment, 

nor the due process clause of the Fourteenth Amendment, requires that jurors in a 

capital case be instructed that they must find beyond a reasonable doubt that 

aggravating circumstances exist or that aggravating circumstances outweigh 

mitigating circumstances or that death is the appropriate penalty. (People v. 

D’Arcy (2010) 48 Cal.4th 257, 300; People v. Blair, supra, 36 Cal.4th at p. 753.) 

Indeed, trial courts “should not instruct the jury regarding any burden of proof or 

persuasion at the penalty phase.” (People v. Lee, supra, 51 Cal.4th at p. 655.) 

“ „Unlike the guilt determination, “the sentencing function is inherently moral and 
88

normative, not factual” [citation] and, hence, not susceptible to a burden-of-proof 

quantification.‟ ” (People v. Avila (2009) 46 Cal.4th 680, 724, quoting People v. 

Hawthorne (1992) 4 Cal.4th 43, 79.) 

The lack of written or other specific findings by the jury regarding 

aggravating factors did not deprive defendant of his federal due process and 

Eighth Amendment rights to meaningful appellate review, violate equal protection 

of the laws or violate defendant‟s Sixth Amendment right to trial by jury. (People 

v. Romero (2008) 44 Cal.4th 386, 428-429; People v. Parson (2008) 44 Cal.4th 

332, 370.)

“Review for intercase proportionality is not constitutionally required. 

[Citations.] Defendant fails to support his assertion that this court has 

categorically forbidden such review; in the only case to which he refers, we 

considered the showing of alleged disproportionality and found it insufficient. 

[Citation.]” (People v. Harris (2008) 43 Cal.4th 1269, 1322-1323; accord, People 

v. Romero, supra, 44 Cal.4th at p. 429.)

“Section 190.3, factor (b) does not violate the federal Constitution by 

permitting the use of unadjudicated criminal activity as an aggravating factor, nor 

must such factors be found true beyond a reasonable doubt by a unanimous jury. 

[Citations.]” (People v. Harris, supra, 43 Cal.4th at p. 1323.)12

The use of the words “ „extreme‟ ” in section 190.3, factors (d) and (g), and 

“ „substantial‟ ” in factor (g), does not act as a barrier to the consideration of 

 

12 The prosecutor did not rely on any unadjudicated criminal conduct by 

defendant as an aggravating circumstance. It was undisputed that defendant had 

no prior criminal background. Assuming without deciding that defendant‟s claim 

could have an impact on this case, we consider and repeat our previous rejection 

of the claim.
89

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

Amendments. (Jennings, supra, 50 Cal.4th at p. 690.)

We continue to conclude there is no constitutional error in failing to instruct 

the jury that statutory mitigating factors were relevant only in mitigation and that 

the instruction to the jury to consider “whether or not” certain mitigating factors 

were present did not invite the jury to improperly aggravate the sentence upon the 

basis of nonexistent or irrational aggravating factors in violation of both state law 

and the Eighth and Fourteenth Amendments. (People v. Parson, supra, 44 Cal.4th 

at p. 369.) 

“California‟s capital sentencing procedures do not violate principles of 

equal protection of the law on the ground they provide safeguards different from 

those found in noncapital cases.” (People v. Williams, supra, 43 Cal.4th at 

p. 650.)

California‟s use of the death penalty is not unconstitutional on the ground

that it assertedly violates international norms of humanity and decency. (People v. 

Romero, supra, 44 Cal.4th at pp. 428-429; People v. Williams, supra, 43 Cal.4th at 

p. 650.)

I. Cumulative penalty phase error 

Defendant contends the cumulative effect of the asserted errors committed 

by the trial court at the penalty phase requires reversal. We have identified only 

one possible error — the trial court‟s failure to sustain defendant‟s objection to the 

prosecutor‟s closing argument comments concerning the prison conditions an 

inmate sentenced to a life term without the possibility of parole would experience 

— and have found such error harmless. There is no cumulative effect of errors to 

consider. Reversal is not required. 
90

IV. CONCLUSION

The judgment is affirmed.

CANTIL-SAKAUYE, C. J.

WE CONCUR:

KENNARD, J.

BAXTER, J.

WERDEGAR, J.

CHIN, J.

CORRIGAN, J.

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

Name of Opinion People v. Linton

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S080054

Date Filed: June 27, 2013

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: Gordon R. Burkhart

__________________________________________________________________________________

Counsel:

Diane E. Berley, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Gary W. Schons, Assistant Attorney General, Anne Featherman Fraser and Lise S. 

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

Diane E. Berley

6520 Platt Avenue, PMB 834

West Hills, CA 91307-3218

(818) 716-6504

Lise S. Jacobson

Deputy Attorney General

110 West A Street, Suite 1100

San Diego, CA 92101

(619) 645-2293