1

Filed 7/12/18

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

 )

Plaintiff and Respondent, )

 ) S057242

v. )

 )

CHRISTOPHER ALAN SPENCER, )

 ) Santa Clara County

Defendant and Appellant. ) Super. Ct. No. 155731

____________________________________ )

A jury convicted defendant Christopher Spencer of murdering James 

Madden. (Pen. Code § 187; all further undesignated references are to this code.) 

It also found true the special circumstance allegations that Spencer murdered 

Madden while robbing him and burglarizing his place of business. (§ 190.2, subd. 

(a)(17).) The jury returned a verdict of death, prompting this automatic appeal. 

(Cal. Const., art. VI, § 11; Pen. Code § 1239, subd. (b).) We affirm the judgment

in its entirety.

I. FACTS

On January 24, 1991, four days before Madden was fatally stabbed, a group 

of men robbed Ben Graber outside of a liquor store in San Jose. One of the men 

shocked Graber with a stun gun. The use of this weapon, along with tips from an 

informant, eventually led the police to Daniel Silveria, John Travis, Matthew 

Jennings, Troy Rackley, and defendant Spencer. By the time police located and 

arrested the men, they had murdered Madden — a crime for which three of the 
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four adult defendants, Silveria, Travis, and Spencer, were convicted and sentenced 

to death.1

A. Robbery of Graber at the Gavilan Bottle Shop

On the evening of January 24, 1991, a group of men stopped Ben Graber as 

he was leaving his job at the Gavilan Bottle Shop located in San Jose. One of the 

men shocked Graber on his hip with a stun gun. They robbed Graber and took 

cash from the store.

1. The Stun Gun Robbery Investigation

John Boyles, a detective with the San Jose Police Department, investigated 

the Gavilan Bottle Shop robbery and another robbery at a Quik Stop convenience 

store that also involved the use of a stun gun. During his investigation, Detective 

Boyles learned that Troy Rackley and Matthew Jennings had been identified as 

suspects in the robberies. Detective Boyles disseminated this information 

generally via a broadcast “over all our channels within the City of San Jose” and 

specifically to Officer Brian Hyland, an officer assisting Detective Boyles with the 

investigation.

At approximately 5:00 p.m. on January 28, 1991, Detective Boyles received 

a phone call from a female informant. The informant named “Danny, John, Matt, 

Chris and Troy” as the perpetrators of the stun gun robberies. Later that night, 

Detective Boyles had another phone conversation with a woman identifying 

herself as “Cynthia.” Based on her voice and the information she provided, 

Detective Boyles identified Cynthia as the female informant with whom he had

 

1 Rackley was a minor at the time of the murder. He pleaded guilty and 

received a sentence of 25 years to life. Jennings, who did not stab Madden, was 

sentenced to life without the possibility of parole. (Jennings v. Runnels (9th Cir. 

2012) 493 Fed. Appx. 903.)
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spoken earlier. Cynthia provided the detective with additional information about

the robbers.

Officer Hyland tracked down the suspects’ addresses. In speaking to 

various family members of the group, Officer Hyland corroborated specific 

aspects of the tip provided by Cynthia. Because Officer Hyland had learned from 

the message of the informant that the group was planning to commit another 

robbery, he told everyone with whom he spoke to call 911 if they saw any of the 

suspects.

2. The Arrest

At approximately 6:45 p.m. on January 29, 1991, an unidentified male 

called the San Jose police to alert them that the stun gun robbery suspects were at 

the Oakridge Mall. Officers arrived at the mall and, at the direction of Officer 

Hyland, stopped two vehicles matching descriptions given by the caller — a 

Datsun Z and a Honda Civic. Silveria was driving the Honda, and Travis was 

driving the Datsun with Rackley as a passenger. The police arrested all three 

individuals. A search of the vehicles yielded over $2,500 in cash from the Datsun,

$694.40 from the Honda, and a stun gun and a roll of duct tape in the Honda’s

hatchback.

Officer Hyland soon arrived at the scene of the Oakridge Mall arrests. He 

spoke with Silveria, who gave Officer Hyland a description of the cars Jennings 

and Spencer were driving and told the officer that the two were planning to leave 

town. Officer Hyland had Silveria page Jennings, who called back. Jennings said 

that he and Spencer were at a friend’s house. Because Silveria knew the location 

but not the address of the friend’s place, the police brought Silveria along to direct 

them. Silveria brought the officers to Alice Gutierrez, Christopher Wagner, and 
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John Durbin’s shared apartment and pointed out Spencer’s newly acquired 1979 

Triumph Spitfire in the parking lot.

Officer Hyland went up the stairs and saw Durbin in the apartment. Durbin 

said that Jennings and Spencer had gone to the store but would return. When the 

police searched the apartment, they discovered two packages containing $282 and 

$721 in cash.

Officer Larry Esquivel waited downstairs for Jennings and Spencer to 

return. When a red Chevrolet pickup truck pulled up, matching the description of 

the vehicle that Officer Esquivel had been expecting, police officers arrested its 

occupants, who turned out to be Jennings and Spencer.

B. Murder of Madden at Leewards

Madden worked as a manager at a Leewards craft store in Santa Clara. On 

the night before the robbery suspects were arrested, Madden was the last to leave 

work. At 10:53 p.m., an alarm went off at Leewards. A dispatcher from the alarm 

company spoke to someone at the store, but did not summon the police as the 

person on the other end gave the correct passcode. When Leewards employees 

arrived at the store the next morning, they discovered Madden’s body.

1. The Murder Investigation

Detective Sergeant Ted Keech of the Santa Clara Police Department and his 

partner responded to the crime scene at Leewards at approximately 8:15 a.m. on 

January 29, 1991. Sergeant Keech observed Madden’s body lying on the floor 

next to a tipped-over chair. Madden’s hands and feet were bound with duct tape, 

and he had duct tape wrapped around his face. His body showed numerous 

puncture wounds, later counted to be 32 in total. In the office where Madden’s 

body was found, Sergeant Keech observed empty register trays and ripped-open 

plastic bags on top of an empty safe.
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After reviewing the scene and interviewing the assistant manager, Sergeant

Keech concluded that whoever committed the robbery must have had some 

familiarity with Leewards’s procedures. He then looked through personnel files 

and noted that Silveria and Travis were recently terminated from the store. 

Sometime thereafter, Sergeant Keech learned that Silveria and Travis, along with 

the other suspects, were in the custody of the San Jose Police Department. He 

made his way to the station and arrived shortly after midnight.

2. The Interrogation

About an hour before Sergeant Keech arrived, or at around 11:30 p.m. on 

January 29, Detective George De La Rocha of the San Jose Police Department 

began questioning Spencer. Detective De La Rocha advised Spencer of his 

Miranda rights, which Spencer waived. As Detective De La Rocha was unaware 

of the Leewards murder when he conducted the interview, his questions centered 

on the Gavilan Bottle Shop incident. Spencer admitted to driving the getaway car 

during this robbery and getting paid $70 for his participation. He also said that on

the night of January 28 — when Madden was killed — he was with Silveria, 

Travis, Jennings, and Rackley.

At about 4:00 a.m. the next morning, or less than five hours after waiving 

his Miranda rights, Spencer began talking to Sergeant Keech and his partner, the 

officers investigating the Leewards break-in. Sergeant Keech took charge of the 

interview and interrogated Spencer about Madden’s murder. While Spencer

initially denied any involvement, he eventually confessed and gave a detailed 

account of what had happened two nights earlier.

According to Spencer, the plan to rob Leewards was Silveria’s idea, and it 

was Silveria and Travis who called the shots at the scene. As they were planning 

the robbery, Silveria and Travis mentioned the possibility of killing Madden 
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because he could identify them as former employees. When Silveria, Travis, 

Jennings, Rackley, and Spencer arrived at the Leewards parking lot, they saw 

Madden’s vehicle parked in the lot. Silveria told Spencer to slash Madden’s tires, 

which Spencer did. Spencer, along with Silveria and Travis, accosted Madden as 

he exited Leewards. While Jennings and Rackley remained outside as lookouts, 

Silveria, Travis, and Spencer went with Madden back to the store. The three took 

Madden to his office and bound him with duct tape. When the alarm company 

called, Spencer took the tape off Madden’s face so he could give the passcode to 

the dispatcher.

Spencer stated that as they were getting ready to leave, Travis told Silveria 

and Spencer to kill Madden. Spencer stabbed Madden three or four times in the 

chest — admitting that he was the first to stab the victim — while Silveria 

shocked him with the stun gun. Silveria and Travis subsequently also stabbed 

Madden. All five perpetrators then left in Spencer’s Dodge Charger.

The men obtained between $9,000 and $10,000 from the robbery. Spencer 

used his share of the money to buy a Spitfire (trading in his Charger) and new 

clothes. He also said that he gave the shoes that he was wearing during the 

robbery to a Foot Locker store in Oakridge Mall to throw away.

The interrogation ended at approximately 5:30 a.m. on January 30, about an 

hour and a half after it began.

C. Prosecution of Spencer

The People charged Spencer with the murder and robbery of Madden, the 

burglary of Leewards, and the robbery of Graber at the Gavilan Bottle Shop. The 

indictment also alleged several special circumstances, although the trial court later 

granted the prosecutor’s motion to strike the lying-in-wait and torture allegations. 

Spencer’s trial, severed from his codefendants’, commenced on June 10, 1996.
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1. Guilt Phase

During the guilt phase of the trial proceeding, the prosecution introduced 

Spencer’s confession, as well as corroborating evidence from various sources. For 

example, the prosecution elicited the testimonies of Gutierrez and Wagner, two of 

the roommates at the apartment complex where Spencer was arrested. Gutierrez

testified that two weeks before the murder, she had seen Jennings waving around a 

stun gun with the other members of the group (Silveria, Travis, and Spencer) 

present. She further testified that on January 29, 1991 — the day after Madden’s 

murder — Jennings and Spencer came to the apartment wearing new clothes and 

Spencer had a package of money and a suitcase. Spencer said he wanted to leave 

California to go to Kentucky. Wagner corroborated some of Gutierrez’s account

and testified that Spencer asked him to listen to a police scanner Wagner owned

because Spencer thought “the police were looking for him.”2 Likewise, the facts 

that Silveria, Travis, Jennings, and Spencer bought cars and made payments in 

cash on January 29 were corroborated by the testimonies of salespeople at the car 

dealerships.

The prosecution also introduced into evidence a pair of shoes recovered 

from the dumpster at the Oakridge Mall — the mall where Spencer said he left the 

shoes he wore during the Leewards robbery. An expert in shoe prints testified that 

one of those shoes matched a footprint at the Leewards crime scene. Finally, the 

prosecution presented testimony from a Santa Clara County Coroner’s Office

medical examiner. Doctor Parviz Pakdaman testified that Madden suffered 32 

stab wounds: 5 to the neck, including 1 that severed his trachea; 24 to the chest, 

causing multiple penetrations of his lungs and heart; and 3 to the abdomen, 2 of 

which penetrated the liver. Madden also had some abrasions on his thigh, 

 

2 Wagner provided some inconsistent testimony, later saying that Spencer did 

not tell him why he wanted him (Wagner) to turn on the scanner.
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presumably from the stun gun. Doctor Pakdaman opined that the cause of death 

was stab wounds to the neck, chest, and abdomen.

The defense did not present an affirmative case. Instead, it focused on 

attacking the prosecution’s case-in-chief, primarily by challenging police 

procedures used in the investigation and interrogation.

On August 21, 1996, the jury returned guilty verdicts on all counts. It also 

found true the special circumstances that Spencer committed first degree murder 

while engaged in robbery and burglary.

2. Penalty Phase

During the penalty phase, the prosecution presented three types of 

evidence: testimonies regarding how Madden died; testimonies from witnesses 

who observed the immediate response of Madden’s wife and child upon learning 

of his death; and victim impact statements from members of Madden’s family. 

The medical examiner, Doctor Pakdaman, gave testimony indicating how 

much Madden was likely to have suffered before he died. He opined that Madden 

was breathing when his lungs or trachea were penetrated and that he was alive 

when he toppled from the chair. Doctor Pakdaman “guesstimated” that Madden 

died 15 to 30 minutes after the first wound. During the examiner’s testimony, the 

prosecution displayed on a mannequin the shirt Madden had been wearing at the 

time of the murder. The shirt was obviously bloodied, and markers had been 

attached to it to identify punctures and cuts in the fabric. Sergeant Keech, who 

authenticated the item, admitted on cross-examination that additional bloodstains 

got on the shirt when Madden’s body was transported to the coroner’s office. 

Doctor Pakdaman likewise confirmed that there was a difference between the 

amount of blood on Madden’s shirt as observed at the murder scene and when the 

body was delivered to the coroner’s office.
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Shirley “Sissy” Madden was the victim’s wife. Two of her coworkers 

testified about Sissy’s behavior when she arrived at work on the morning of 

January 29, 1991. According to Susan Thuringer, Sissy was visibly upset. Sissy 

told Thuringer and Kay House, another coworker, that her husband did not come 

home the previous night. Thuringer then learned from the police that Madden had 

died. She and House broke the news to Sissy. Sissy “reacted like . . . a wounded 

animal,” “screamed,” “flail[ed] around,” and had to be “restrained” while her 

coworkers tried to comfort her. Thuringer and House, along with police officer 

Brian Lane, accompanied Sissy home, where they witnessed Sissy telling her 

seven-year-old daughter, Julie, that her father had died. Thuringer recalled Julie 

screaming. Thuringer’s account was confirmed by House, who further stated that 

Sissy still had a lot of trouble handling her husband’s death. Officer Lane also 

testified briefly about his interaction with Sissy.

Four members of Madden’s family gave victim impact statements. These 

included Madden’s wife, his mother, sister, and brother-in-law. The gist of the 

testimonies was Madden’s relationship with his family and the impact his death 

had on their lives.

In mitigation, the defense put on testimony from Spencer’s grandmother, 

mother, father, sister, half-sister, half-brother, and middle school teacher. The 

witnesses testified to Spencer’s difficult upbringing, marred by poverty, a 

dysfunctional family, and drug use. They emphasized that Spencer was a 

follower, not a leader.

On September 19, 1996, the jury returned a recommendation of death. The 

trial court sentenced Spencer accordingly, and this appeal followed.

II. DISCUSSION

Spencer raises a number of issues on appeal, most of which focused on 

purported errors made by the trial court. These include: erroneous exclusion of a 
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venireman; admission of Spencer’s confession despite the lack of probable cause 

to arrest, Miranda advisement, and voluntariness of the confession; admission of 

inflammatory evidence, including excessive victim impact statements, unduly 

prejudicial physical evidence, and comments by the prosecutor amounting to 

misconduct; and erroneous jury instructions given during the penalty phase with 

regards to the robbery of Graber at the Gavilan Bottle Shop. Spencer also 

complains of this court’s decision not to supplement the appellate record with his 

codefendants’ trial transcripts. Finally, Spencer brings the usual challenges 

against the constitutionality of California’s death penalty scheme. We consider 

these claims in turn below.

A. Exclusion of Prospective Juror

1. Background

Spencer contends that the trial court erroneously dismissed prospective 

juror C-67 (Juror C-67) and that the error requires the judgment of death to be set 

aside. The trial court dismissed Juror C-67 for cause owing to his views on capital 

punishment. Indeed, Juror C-67 expressed strong — though not absolute — views 

on the death penalty in both the jury questionnaire and during oral examination. 

In the questionnaire, Juror C-67 gave the following responses to questions 

designed to gauge his attitude on capital punishment:

“Q50. Do you have any personal, philosophical, moral or religious 

beliefs that would affect in some way your ability or willingness to 

serve as a juror in this case?

A. I don’t know. Religiously I would find it very difficult to ask for 

death sentence.

“Q120. What are your general feelings regarding the death penalty?

A. I have a religious bias against the death penalty.

“Q121. Which would you say most accurately states your views 

regarding the death penalty?
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A. [Juror checked the boxes indicating ‘Strongly against’ and

‘Moderately against’ and wrote the word ‘to’ in between the boxes.]

“Q122. What are the reasons you either support or oppose the death 

penalty?

A. It is irreversible. I prefer life without parole, even castration, to 

death.

“Q132. If a defendant was found guilty of intentional, deliberate 

first degree murder and at least one of the ‘special circumstances’ 

was found to be true, would you always vote for Life Without the 

Possibility of Parole, and reject Death, regardless of the evidence 

presented at the penalty phase of the trial?

A. [Juror checked the ‘No’ box.]

“Q142. Do you feel the death penalty should never be imposed for 

murder?

A. [Juror checked the ‘No’ box.]

“Q140. Under what circumstances, if any, do you believe that the 

death penalty is appropriate?

A. Perhaps torture or child victims.

“Q149. Given the fact that you will have two options available to 

you, can you see yourself, in the appropriate case, rejecting life in 

prison without the possibility of parole and choosing the death 

penalty?

A. I don’t know. [Juror also circled the phrase ‘in the appropriate 

case.’]

“Q150. In a capital case, the factors in aggravation and mitigation 

upon which a penalty decision must rest are set forth in law which 

will be given the jury by the judge. Can you set aside any

preconceived notions you may have about the death penalty, and 

make any penalty decision in this case based upon the law as it is 

given by the judge?

A. No. My true beliefs are not ‘preconceived notions to be set 

aside.’

“Q155. Could you set aside your personal feelings, if any, and 

follow the law as the court explains it to you?

A. Yes, with the possible exception of the death penalty.
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“Q163. Please mention anything which you believe may affect your 

ability to be a juror or which may affect your participation as a juror 

in this trial?

A. My reluctance about the death penalty.”

Juror C-67 offered further insight into his views during oral examination. 

In person before the trial court, the judge and juror had the following exchange:

“Q. Do you think you would automatically vote for one of those 

penalties [life without the possibility of parole versus death] simply 

because you might favor it over the other one?

A. Well, in the questionnaire there were — there was a lot of 

discussion about the death penalty.

Q. Right.

A. And I suppose I have a lot of reservations about that, as my 

answers probably indicate.

“Q. All right. With your reservations about the death penalty in 

mind, do you think in a penalty-phase determination during 

deliberations, do you think you would always vote against the death 

penalty despite any aggravating or negative evidence that may have 

been presented?

A. I don’t know. I’ve never had to be in that situation before.

“Q. All right. Let me ask you another assumption type of question. 

. . . Do you think you would always vote for life without parole and 

reject death despite any of this negative evidence that may have been 

presented during the course of trial?

A. Well, this is obviously the hardest single thing in that whole 

thing for me and I don’t know.

“Q. All right. Let me ask you this: Assume that . . . in your own 

mind based on the evidence and the law you believe the death 

penalty is appropriate in this case, would you vote for it?

A. Well, if I believed the death penalty was warranted in the case 

then I would vote for it, but for me to believe that the death penalty 

is warranted is the whole issue.

“Q. Do you think the death penalty would ever be warranted in any 

kind of case?

A. Yes.
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Q. Do you think that it would be possible for you to vote for the 

death penalty in a given case without going into what that case might 

be?

A. I can imagine things horrible enough to get me to vote for the 

death penalty, I suppose.”

The trial judge then conducted a sidebar with the attorneys. The court 

ultimately found that Juror C-67 was “substantially impaired and would not be 

able to follow his oath as a juror in this case.” The court acknowledged that the 

juror “can think of a situation where he could impose the death penalty, and, of 

course, we can’t get into what that is.” The judge noted, however, that Juror C-67

“thought a long time” before giving this answer. Immediately before finding Juror 

C-67 to be substantially impaired, the judge remarked, “If you go to Question 150, 

which is, you know, ‘Can you set aside any preconceived notions that you have 

about the death penalty,’ he says, ‘No. My true beliefs are not preconceived 

notions to be set aside.’ ” Spencer’s attorney urged that “that 150 answer [] may 

be worth further inquiry,” to which the court replied, “I don’t think it is, not based 

on what he said.” The court thereafter stated for the record that he found Juror C67 to be substantially impaired and excused the juror.

2. Analysis

The standard for determining when a prospective juror may be excused for 

cause because of his or her views on capital punishment was initially articulated 

by the United States Supreme Court. In Wainwright v. Witt (1985) 469 U.S. 412, 

424 (Witt), the court held that such a juror may be excused if the juror’s views 

would “ ‘prevent or substantially impair the performance of his duties as a juror in 

accordance with his instructions and his oath.’ ” In announcing this standard, the 

court clarified that — despite language contained in the earlier case of

Witherspoon v. Illinois (1968) 391 U.S. 510, 515, fn. 9 — dismissal of a 

prospective juror may be proper even if the juror does not “‘unambiguously” state 
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that he or she “would automatically vote against the imposition of capital 

punishment no matter what the trial might reveal.” (Witt, supra, 469 U.S. at p. 

424; see also, e.g., Darden v. Wainwright (1986) 477 U.S. 168, 175 [stating that 

Witt “modified” the court’s opinion in Witherspoon]; People v. Kaurish (1990) 52 

Cal.3d 648, 697 [noting that the high court’s “position on death penalty exclusion 

was substantially modified in Wainwright v. Witt”].) The Witt court further 

explained that, because “many veniremen simply cannot be asked enough 

questions to reach the point where their bias [against the death penalty] has been 

made ‘unmistakably clear,’ ” “deference must be paid to the trial court who sees 

and hears the juror.” (Witt, supra, 469 U.S. at pp. 424–425, 426.) The high court 

has since “reinforced” this rule of deference. (Uttecht v. Brown (2007) 551 U.S. 1, 

7 (Brown).) Thus, “[e]ven when ‘[t]he precise wording of the question asked of 

[the venireman], and the answer he gave, do not by themselves compel the 

conclusion that he could not under any circumstance recommend the death 

penalty,’ the need to defer to the trial court remains because so much may turn on 

a potential juror’s demeanor.” (Id. at p. 8.)

California courts apply the same standard announced in Witt and its 

progeny in applying the corresponding provisions of the California Constitution. 

(E.g. People v. Ghent (1987) 43 Cal.3d 739, 767 (Ghent) [adopting the Witt 

standard]; People v. Gray (2005) 37 Cal.4th 168, 192 (Gray) [“We apply the same 

[Witt] standard under the state Constitution.”].) Like the United States Supreme 

Court, we emphasize the deference owed to the trial judge, stating that “where 

equivocal or conflicting responses are elicited regarding a prospective juror’s 

ability to impose the death penalty, the trial court’s determination as to his true 

state of mind is binding on an appellate court.” (Ghent, supra, 43 Cal.3d at p. 

768.) Accordingly, in such situations where the trial court has had an opportunity 

to observe the juror’s demeanor, we uphold the court’s decision to excuse the juror
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so long as it is supported by substantial evidence. (People v. Martinez (2009) 47 

Cal.4th 399, 426–427 (Martinez); People v. Zaragoza (2016) 1 Cal.5th 21, 37–39 

(Zaragoza).)

Applying this standard, we find the trial court did not err in excusing Juror 

C-67. Time and again, Juror C-67 expressed uncertainty as to whether he could 

set aside his personal antipathy to the death penalty and follow the law as 

instructed. For example, when asked in the questionnaire whether he could put 

aside his “personal feelings . . . and follow the law as the court explains it to you,” 

the juror answered “Yes,” but “with the possible exception of the death penalty.” 

The juror also mentioned his “reluctance about the death penalty” as something 

which may affect his ability to be a juror or his participation as a juror in this trial. 

He further stated that he did not know whether he could choose the death penalty

even “in the appropriate case.” Twice more when probed by the court during oral 

examination about whether he “would always vote against the death penalty 

despite any aggravating or negative evidence that may have been presented,” the 

juror answered “I don’t know.” Given the juror’s own recognition that he did not 

know whether he could follow the law or ever vote for the death sentence, the trial 

court did not commit Witherspoon/Witt error when it found the juror was 

substantially impaired. (People v. Wash (1993) 6 Cal.4th 215, 255 (Wash) 

[finding no error in a trial court’s decision to dismiss for cause when the 

venirewoman “consistently responded, ‘I don’t know’ in answer to the question 

whether she was capable of voting for death”].)

Both this court and the United States Supreme Court recognize that “those 

who firmly believe that the death penalty is unjust may nevertheless serve as 

jurors in capital cases” — but only “so long as they state clearly that they are 

willing to temporarily set aside their own beliefs in deference to the rule of law.” 

(Lockhart v. McCree (1986) 476 U.S. 162, 176; see, e.g., Martinez, supra, 47 
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Cal.4th at p. 431 [applying Lockhart to the facts of the case].) In this context, the 

crucial aspect of the trial court’s interaction with Juror C-67 was not the juror’s 

“reluctance about the death penalty,” but instead the absence of a clear statement

from the juror regarding his willingness and ability to temporarily set aside his

personal beliefs, if necessary, to follow the law’s requirements. In answering 

question 150 on the questionnaire, which asked whether the juror could suspend 

“any preconceived notions you may have about the death penalty, and make any 

penalty decision in this case based upon the law as it is given by the judge,” the 

juror wrote, “No. My true beliefs are not ‘preconceived notions to be set aside.’ ” 

Spencer argues that the juror’s answer merely expressed umbrage at his beliefs 

being called “preconceived notions.” That is one interpretation of the answer, but

not one the trial court was required to adopt. After considering the juror’s other

in-person responses, his demeanor, and the full text of question 150 (which 

prefaces the inquiry with the explanation that “a penalty decision must rest . . . in 

law”), the trial judge could have fairly interpreted the prospective juror’s answer 

to question 150 as conveying that he was not willing to set aside his beliefs to the 

extent required by law. In light of the record, we see no basis to conclude the trial 

court erred when it decided that Juror C-67’s views would prevent or substantially 

impair the performance of his duties. (Witt, supra, 469 U.S. at p. 434 [“the 

question is not whether a reviewing court might disagree with the trial court’s 

findings, but whether those findings are fairly supported by the record”].)

Despite ample evidence supporting the trial court’s decision, Spencer 

nonetheless contends that Juror C-67’s excusal was improper because the juror did 

not categorically reject the possibility of imposing death. Spencer argues that 

because Juror C-67 “recognized there were cases where the death penalty was 

warranted and . . . could imagine himself imposing such a punishment,” he was 

not substantially impaired. We find otherwise.
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A trial court may properly infer a prospective juror’s commitment to 

perform the juror’s role with integrity, even where some equivocation is initially 

present. (See People v. Stewart (2004) 33 Cal.4th 425, 447 (Stewart) [describing a 

qualified juror as someone who may initially express hesitation about imposing 

the death penalty and “yet, in response to brief follow-up questioning, 

persuasively demonstrate an ability to put aside personal reservations, properly 

weigh and consider the aggravating and mitigating evidence, and make that very 

difficult determination concerning the appropriateness of a death sentence”].) 

Nonetheless, the proper inquiry in determining whether Witherspoon/Witt error 

occurred is not whether some evidence exists that the prospective juror could vote

for the death penalty. The standard is instead whether substantial evidence exists 

to support the trial judge’s determination that the juror was substantially impaired

in terms of his ability to do so. The record provides support for the trial court’s 

decision. So, the fact that Juror C-67 also gave some responses indicating that he 

would not automatically vote against the death penalty is not grounds for reversing 

the death judgment. (Martinez, supra, 47 Cal.4th at pp. 431–432 [“When a 

prospective juror has made statements that tend to support the trial court’s 

conclusion that the juror is not qualified, ‘the fact that the juror also gave 

statements that might have warranted keeping [him] as a juror does not change the

conclusion’ that substantial evidence supports the trial court’s ruling.” (internal 

alteration marks omitted)].)

Indeed, the specific answers from Juror C-67 on which Spencer hinges his 

argument do not change the overall equivocal nature of the juror’s responses. 

Consider, for instance, the juror’s answer that “I can imagine things horrible 

enough to get me to vote for the death penalty, I suppose.” The response, coming 

only after Juror C-67 averred more than once that he did not know whether he 

could follow the court’s instructions, was itself qualified and uncertain. The 
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venireman “suppose[d]” he could “imagine” scenarios where he would vote for 

death. While the trial court felt it could not “get into what” those scenarios were, 

the juror’s questionnaire answer indicated that they involved circumstances not

present at Spencer’s trial — those featuring “torture or child victims.” The 

prosecution had withdrawn the torture special circumstance allegation before jury 

selection began, and the sole murder victim, age 35 when he died, was not a child. 

To excuse the juror under such circumstances does not constitute 

Witherspoon/Witt error. (People v. Jones (2017) 3 Cal.5th 583, 615 [affirming the 

excusal of a prospective juror for cause when the juror “articulated only a single 

hypothetical situation in which he could see himself voting for the death penalty 

. . . and that hypothetical situation was not applicable in this case”]; People v. 

Tate (2010) 49 Cal.4th 635, 666 (Tate) [“a prospective juror may be excused if his 

or her views on capital punishment would cause him or her invariably to vote

either for death, or for life, in the case at hand”].)

The equivocality of prospective jurors’ responses may be further 

compounded by their demeanor, which trial judges can readily observe. (Witt, 

supra, 469 U.S. at p. 428, fn. 9 [“ ‘[The] manner of the juror while testifying is 

oftentimes more indicative of the real character of his opinion than his words. 

That is seen below, but cannot always be spread upon the record.’ ”]; Stewart, 

supra, 33 Cal.4th at p. 451 [“a trial judge who observes and speaks with a 

prospective juror and hears that person’s responses (noting, among other things, 

the person’s tone of voice, apparent level of confidence, and demeanor), gleans 

valuable information that simply does not appear on the record”].) In this case, the 

record affirmatively discloses that Juror C-67’s demeanor contributed to the trial 

court’s decision to excuse him for cause. In discounting Juror C-67’s answer that 

he “could imagine things horrible enough to get [him] to vote the death penalty”

— a crucial response on which Spencer rests his case — the court noted that Juror 
19

C-67 “thought a long time” before giving that answer. (See People v. Abilez

(2007) 41 Cal.4th 472, 498 [finding that “the trial court was well within its broad 

discretion” when it excused a juror for cause based on the juror’s answers and 

“[m]ore significantly” her hesitation before answering].)

We defer to trial courts when they dismiss potential jurors based on their

equivocation and demeanor. (E.g., Zaragoza, supra, 1 Cal.5th at p. 42 [“We defer 

to the trial court’s resolution of these conflicting responses, because that court had 

the opportunity to assess the juror’s tone, apparent level of confidence, and 

demeanor.”]; People v. Moon (2005) 37 Cal.4th 1, 15–16 [deferring to the trial 

court’s evaluation of a prospective juror’s state of mind when the juror “was less 

than consistent in her answers”]; Gray, supra, 37 Cal.4th at p. 194 [“In light of her 

equivocal answers on voir dire, we defer to the trial court’s implicit determination 

regarding Juror C.B.’s state of mind and conclude substantial evidence supports 

the court’s ruling . . . .”].) Indeed, we have upheld such a decision even when a 

prospective juror gave responses somewhat more indicative of her willingness to 

vote for the death penalty than what Juror C-67 provided. (Martinez, supra, 47 

Cal.4th at pp. 427–430, 433, 466 [affirming the decision to dismiss a juror who,

among other things, stated “I have some very strong views against the death 

penalty. And I feel I could listen to the evidence and make a determination based 

on the evidence”].)

Finally, although trial courts have a responsibility to probe ambiguous juror 

responses that may initially evince a reluctance to consider imposing the death

penalty (e.g., Stewart, supra, 33 Cal.4th at pp. 445–447), the court here made a 

meaningful effort to engage with the questions raised by Juror C-67’s responses. 

Given the circumstances of this case, we reject Spencer’s assertion that the trial 

court had an obligation to engage in even “further questioning, as defense counsel 

suggested” to the extent that Juror C-67’s answers revealed lingering ambiguity. 
20

While it is true that “[i]f the trial court remained uncertain as to whether [a 

venireman’s] views concerning the death penalty would impair his ability . . . the 

court [i]s free . . . to follow up with additional questions” (People v. Heard (2003) 

31 Cal.4th 946, 965), it is not true that, once the court has formed a definite 

impression, it still must ask more questions. (See Witt, supra, 469 U.S. at pp.

424–425 [noting that “many veniremen simply cannot be asked enough questions 

to reach the point where their bias has been made ‘unmistakably clear’ ”]; Brown, 

supra, 551 U.S. at p. 8 [reiterating that excusal of a juror may be appropriate even 

when “ ‘[t]he precise wording of the question asked of [the venireman], and the 

answer he gave, do not by themselves compel the conclusion that he could not 

under any circumstance recommend the death penalty’ ”]; Tate, supra, 49 Cal.4th 

at p. 678 [finding that the trial court did not err by denying the defense’s request 

for further questioning when “the court could reasonably conclude that further voir 

dire would not change its impression of [the prospective juror’s] state of mind”].)

We find the trial court did not commit Witherspoon/Witt error. Because the 

record supports the conclusion that a trial court could reasonably conclude Juror 

C-67 was substantially impaired, the trial court did not err in dismissing the

prospective juror.

B. Probable Cause to Arrest

1. Background

Spencer complains the police lacked probable cause to arrest him and, as 

such, the trial court erred in refusing to suppress his confession as the unlawful 

“fruit” of his purportedly illegal arrest. To address this argument, we survey the 

facts known to the San Jose Police Department at the time its officers apprehended 

Spencer.
21

By the time the police arrested Spencer, they had taken into custody 

Silveria, Travis, and Rackley. From the search of the vehicles that Silveria and 

Travis were driving when arrested, officers recovered large sums of cash, duct 

tape, and a stun gun. They had also identified Rackley and Jennings as suspects in 

robberies at the Gavilan Bottle Shop and another location involving the use of a 

stun gun.

Upon being arrested, Silveria offered to help the police track down 

Jennings and Spencer, the remaining suspects at large whose names the police 

already knew through the tip provided by Cynthia and the investigation done by 

Officer Hyland. At a motion hearing conducted some months before the 

beginning of trial, Sergeant George McCall, the police officer who took the call 

when “Cynthia” phoned the station the evening of January 28, 1991, testified. He 

stated that the caller indicated the suspects were driving a Dodge Charger, and 

they said they “were going to be leaving town and they were going to pull another 

robbery that night.” She also provided a last name of “Silveras” or “Silveria” for 

“Danny.”

Sergeant McCall passed the information along to Detective Boyles and 

Officer Hyland. Detective Boyles then spoke to Cynthia. Detective Boyles 

testified that Cynthia provided a last name of Jennings for Matt and Silveria for 

Danny during this conversation. She also provided Jennings’s address and said 

Jennings was driving a vehicle that was possibly a Charger.

Officer Hyland corroborated crucial details from Cynthia’s account when 

he went to the suspects’ residences. For instance, one of Jennings’s brothers 

informed Officer Hyland that Jennings, Rackley, Travis, Silveria, and Spencer 

hung out as a group and that Jennings had packed a suitcase and left with the 

others. The brother also confirmed that Spencer had a Charger. Silveria’s brother 

likewise told the officer that Silveria had packed a suitcase and left. So Officer 
22

Hyland’s work revealed that Silveria, Travis, Rackley, Jennings, and Spencer hung 

out as a group, and that members of the group had packed suitcases and left with 

one another. These facts matched the information provided by Cynthia ––

including her information that the group was planning to skip town.

When Silveria was arrested, he further cooperated with law enforcement. 

He contacted Jennings, then directed the officers to the apartment where Jennings 

and Spencer were staying and pointed out Spencer’s newly acquired vehicle to 

them. The police then arrested Spencer when he and Jennings arrived back at the 

apartment together.

2. Analysis

Probable cause to arrest exists where facts known to the arresting officer 

would be sufficient to persuade a person of “reasonable caution” that the 

individual arrested committed a crime. (People v. Celis (2004) 33 Cal.4th 667, 

673.) Information provided by an anonymous informant can constitute a sufficient 

basis for finding probable cause –– but only when “the informant’s statement is 

reasonably corroborated.” (Jones v. United States (1960) 362 U.S. 257, 269.) In 

examining whether police obtained such reasonable corroboration of an 

informant’s tip, we apply a totality of the circumstances determination in which an 

informant’s “ ‘veracity,’ ” “ ‘reliability,’ ” and “ ‘basis of knowledge’ ” are 

“relevant considerations.” (Illinois v. Gates (1983) 462 U.S. 213, 230, 233

(Gates).) An informant’s veracity or reliability may be established by her having 

provided tips that proved true. (See, e.g., Draper v. United States (1959) 358 U.S. 

307, 309 (Draper) [noting that the informant Hereford “from time to time gave 

information to [agent] Marsh regarding violations of the narcotic laws . . . [and]

Marsh had always found the information given by Hereford to be accurate and 

reliable”].) An informant’s basis of knowledge –– the grounds upon which the 
23

informant believes or knows something to be true –– is also important, since the 

tip supplied is more trustworthy if the informant has first-hand knowledge of the 

criminal activity. (See, e.g., Gates, supra, 462 U.S. at pp. 277–280 [discussing 

various cases where the court focused on whether the informant spoke with 

personal knowledge].) What the court in Gates clarified, however, is that 

“veracity,” “reliability,” and “basis of knowledge” are not rigid, “independent 

requirements” which must all be present. (Id. at p. 230.) The focus instead is on 

the “overall reliability” of the informant’s tip. (Id. at p. 233.)

In this case, information known to Detective Boyles and Officer Hyland at 

the time of Spencer’s arrest would indeed likely persuade someone “ ‘of 

reasonable caution in the belief’ ” to conclude Spencer had committed a felony. 

(Wong Sun v. United States (1963) 371 U.S. 471, 479.) During her first call to the 

police, Cynthia informed Detective Boyles that “Danny, John, Matt, Chris and 

Troy” were perpetrators of the stun gun robberies. Detective Boyles already knew 

that Matthew Jennings and Troy Rackley — individuals identified by their full 

names — were suspects. The detective thus was immediately able to corroborate 

part of Cynthia’s information. Cynthia later also provided some of the suspects’ 

last names — Silveria for “Danny” and Jennings for “Matt” — and so solidified 

the fact she had accurately named at least one person known to the police to be a 

suspect (Matthew Jennings).

Further corroboration of Cynthia’s information emerged from Officer 

Hyland’s subsequent investigation. By speaking with the suspects’ family 

members, Officer Hyland confirmed that they indeed hung out as a group, and that 

some of them had packed suitcases and left with others in the group. While these 

details may seem trifling, they lend credence to Cynthia’s tip that the men 

committed the robberies together and were planning to leave town. As “innocent 

behavior frequently will provide the basis for a showing of probable cause,” the 
24

pertinent question is not whether the activities corroborated by the police are 

criminal in nature but rather, “the degree of suspicion that attaches to particular 

types of noncriminal acts.” (Gates, supra, 462 U.S. at p. 244, fn. 13; see also, e.g.,

Draper, supra, 358 U.S. 307 at pp. 312–313 [a “classic case on the value of 

corroborative efforts of police officials” (Gates, supra, 462 U.S. at p. 242) where 

the court affirmed that the police had probable cause even though all the details 

corroborated from an informant’s tip were of innocuous behavior]; People v. 

Costello (1988) 204 Cal.App.3d 431, 446 [“Even observations of seemingly 

innocent activity suffice alone, as corroboration, if the anonymous tip casts the 

activity in a suspicious light.”]; People v. Ramirez (1984) 162 Cal.App.3d 70, 73–

75 [same].)

That the five men hung out as a group is an innocent detail. It nonetheless 

takes on a suspicious cast in light of Cynthia’s information linking all five together 

as stun-gun robbers, and the knowledge that two of them were already suspects. 

(See People v. Medina (1985) 165 Cal.App.3d 11, 19–20 [finding it “inappropriate 

to conduct a piecemeal examination” of an informant’s tip on different suspects 

“when the informant’s information linked these suspects and their houses together 

and this link was also corroborated” (italics omitted)].) Likewise, that the men 

were planning to leave town is a corroborated piece of information “relating not 

just to easily obtained facts and conditions existing at the time of the tip, but to 

future actions of third parties ordinarily not easily predicted.” (Gates, supra, 462 

U.S. at p. 245.) This last piece of information — along with the nugget that the 

men “were going to pull another robbery” on the same night Cynthia contacted the 

police — imparted an urgency to the police investigation and, given the rest of the 

corroborated details, gave rise to a fair inference that Cynthia gleaned her 

information “either from the [suspects themselves] or someone they trusted.” (Id. 

at p. 246.) So the details corroborated go beyond mundane facts that remain
25

innocuous even in light of a tip. (Contra People v. Fein (1971) 4 Cal.3d 747, 752–

753 [finding no probable cause when the police corroborated only the 

“defendant’s first name, his presence at the apartment, and the presence of the 

[defendant’s vehicle]”].)

By the time Silveria, Travis, and Rackley were under arrest, then, the police 

had verified sufficient details of Cynthia’s tip to render them reasonably persuaded 

that she was right about some things and so was “ ‘probably right about other 

facts.’ ” (Gates, supra, 462 U.S. at pp. 244–245 [stating that such an inference 

“suffices for the practical, common-sense judgment called for in making a 

probable-cause determination”]; People v. Medina, supra, 165 Cal.App.3d at p. 18

[“ ‘corroboration of information to establish the veracity of the informer . . . is 

based on the premise that if it can be shown that part of the information provided 

by an informer is correct, this gives credibility to the remainder of the 

information’ ”].) Such “other facts” include, in this context, Cynthia’s claim about

Spencer’s involvement in the robberies.

The evidence recovered from the initial arrests further enhanced Cynthia’s 

credibility. From a search of Silveria’s and Travis’s vehicles, the police recovered

substantial sums of cash and a stun gun — evidence highly corroborative of the tip 

that the men committed robberies with the use of such a weapon. Silveria then 

directed the officers to Jennings and Spencer’s location and pointed out Spencer’s 

new car, a purchase that looks suspicious given the tip that Spencer had 

participated in robberies in which the perpetrators got away with cash. The 

officers then arrested Spencer when he arrived back at the apartment with 

Jennings.

Taking into account the totality of these circumstances, we conclude that 

the arrest was made with probable cause, and the trial court did not err when it 

refused to suppress Spencer’s confession on this basis. Nothing Spencer says
26

persuades us otherwise. Spencer argues that Cynthia was not a “citizeninformant” and therefore the information she provided could not be treated as 

“presumptively reliable.” (See Gates, supra, 462 U.S. at pp. 233–234 [“if an 

unquestionably honest citizen comes forward with a report of criminal activity —

which if fabricated would subject him to criminal liability — we have 

found rigorous scrutiny of the basis of his knowledge unnecessary”]; People v. 

Hogan (1969) 71 Cal.2d 888, 890–891; Humphrey v. Appellate Division (2002) 29 

Cal.4th 569, 575–576.) Yet whether or not Cynthia fits the precise parameters of a 

citizen informant is immaterial to our analysis. Neither we nor the police 

presumed her information to be reliable. Instead the police substantiated her tip ––

and garnered sufficient corroboration to establish a substantial basis for crediting 

her information. That proves sufficient. (Gates, supra, 462 U.S. at pp. 244–245

[“It is enough, for purposes of assessing probable cause, that ‘[corroboration] 

through other sources of information reduced the chances of a reckless or 

prevaricating tale,’ thus providing ‘a substantial basis for crediting the 

hearsay.’ ”].)

C. Necessity of Miranda Readvisement

1. Background

Spencer next argues that, even if he had been lawfully arrested, his 

confession to Madden’s murder must be suppressed because Sergeant Keech did 

not advise him of his rights under Miranda v. Arizona (1966) 384 U.S. 436

(Miranda). Spencer concedes that Detective De La Rocha — who interrogated 

him about the robberies — advised him of his rights and that he knowingly and 

intelligently waived those rights. He thus concedes that the confession to the 

robberies “would stand on its own.” Nonetheless, he contends that Sergeant 
27

Keech was under an obligation to readvise him of his Miranda rights when he 

interrogated him about the murder.

Spencer does not dispute that less than five hours passed between the time 

when he waived his Miranda rights and when Sergeant Keech began his 

interrogation. He also does not dispute that the following exchange took place 

after Sergeant Keech introduced himself and his partner:

“Keech: We’re from Santa Clara Police Department. Okay, uh, 

I understand you already talked to one of the San Jose 

detectives. Is that correct?

“Spencer: Yes, I have.

“Keech: Okay. And I understand you . . .

“Spencer: I’ve admitted to being involved in a robbery.

“Keech: Okay. And he read you, uh, your rights?

“Spencer: Yes.

“Keech: Did you understand your rights?

“Spencer: Yes.

“Keech: Okay. And you waived your rights.

“Spencer: Yes.”

After some further back and forth which, when transcribed, took about a 

page, Sergeant Keech started the questions bearing on the murder. The sergeant

asked, “Where did you spend the night last night? First of all, you understand 

your rights. You’re willing to talk to us. Is that correct?” to which Spencer 

answered, “Yes.” The interrogation continued apace from there, with Spencer 

eventually confessing to participating in the robbery and stabbing Madden 

multiple times on the way out the door. After getting the details to the crime, 
28

Sergeant Keech once more brought up the Miranda rights. Spencer again 

confirmed he was read “[his] Miranda rights,” that “I know my Miranda rights,” 

and that he understood those rights. The interrogation terminated shortly 

thereafter.

2. Analysis

Where a subsequent interrogation is “ ‘reasonably contemporaneous’ ” with 

the prior waiver, and the prior waiver was “knowing and intelligent,” police need 

not undertake a Miranda readvisement. (People v. Mickle (1991) 54 Cal.3d 140, 

170 (Mickle).) In determining whether a subsequent interrogation is reasonably 

contemporaneous, we consider the totality of the circumstances. Relevant 

considerations include: “1) the amount of time that has passed since the initial 

waiver; 2) any change in the identity of the interrogator or location of the 

interrogation; 3) an official reminder of the prior advisement; 4) the suspect’s 

sophistication or past experience with law enforcement; and 5) further indicia that 

the defendant subjectively understands and waives his rights.” (People v. 

Smith (2007) 40 Cal.4th 483, 504 (Smith).)

We conclude that the subsequent interrogation conducted by Sergeant 

Keech and his partner was indeed reasonably contemporaneous with Spencer’s

waiver of his Miranda rights. Only five hours had passed between the time of the 

waiver and the interrogation; there was no change in the location of the 

interrogation and Spencer remained in custody in the interim; Sergeant Keech 

officially reminded Spencer of his prior advisement; and Spencer unambiguously 

indicated that he understood the advisement and waived his rights.

Under similar circumstances, this court has more than once found that a 

Miranda readvisement is not required. In Mickle, supra, 54 Cal.3d at p. 171, for 

instance, we held that that no Miranda violation occurred when, among other 
29

things, the subsequent interrogation took place 36 hours after the last advisement, 

the suspect remained in official custody, and “[n]othing in the record indicate[d]

that defendant was mentally impaired or otherwise incapable of remembering the 

prior advisement and deciding to answer a few more questions.” Likewise, in 

Smith, supra, 40 Cal.4th at pp. 504–505, we ruled that no readvisement was 

necessary when the second interrogation occurred “less than 12 hours after the 

first interrogation ended,” the defendant remained in custody, and “[t]he same 

officers conducted the interrogation, in the same office, and asked defendant 

whether he remembered the Miranda warnings.” We came to the same conclusion 

in People v. Williams (2010) 49 Cal.4th 405, 435 (Williams), in which we 

determined that the second interrogation — “having occurred approximately 40 

hours later in the same location as the first, and was conducted by one of 

the previous interrogators” — was reasonably contemporaneous with the waiver.

True: not all of the relevant factors tend to cut in the People’s favor. In 

particular, different officers interrogated Spencer about the murder and the 

robberies, and Spencer — 21 years old at the time and having an “ ‘insignificant 

record of criminal conduct’ ”

3 — can be presumed not to have much

“sophistication or past experience with law enforcement.” (Smith, supra, 40 

Cal.4th at p. 504.) Nonetheless, we find that these factors do not persuade us to a

different conclusion.

The Miranda court itself confronted a situation in which two different law 

enforcement authorities interrogated a suspect for two different crimes. What it 

concluded is that “[a]lthough the two law enforcement authorities are legally 

distinct and the crimes for which they interrogated [defendant] Westover were 

different, the impact on him was that of a continuous period of questioning.” 

 

3 The prosecution noted that at the time of his arrest, Spencer had four prior 

misdemeanor convictions and three jail sentences.
30

(Miranda, supra, 384 U.S. at p. 496; see also People v. Pettingill (1978) 21 Cal.3d 

231, 245 [observing in a different context that “the large majority of suspects . . .

see the uniform only as a symbol of police authority, [and] neither know nor care 

about the precise jurisdictional competence of their interrogators”].) Of course, 

the “continuous period of questioning” in Miranda meant that the failure to 

provide the necessary advisement at the first interrogation tainted the subsequent 

questioning –– during which warnings were given. (Miranda, supra, 384 U.S. at 

p. 496.) Yet the same logic runs in reverse, at least barring a gap in time between 

portions of the interrogation sufficiently long to establish that the second segment 

should be treated as an entirely separate session. (Accord People v. Duff (2014) 

58 Cal.4th 527, 555 [“We have permitted as ‘reasonably contemporaneous’ the 

resumption of interrogation without a readvisement even a day or two after the 

initial waiver.”].) Here, Spencer was advised of his rights at the initial 

interrogation by Detective De La Rocha of the San Jose Police Department, and 

was later reminded of them by Sergeant Keech of the Santa Clara Police 

Department. Despite the fact these departments are legally distinct and “the 

crimes for which [the officers] interrogated” Spencer were different (Miranda, 

supra, 384 U.S. at p. 496), Sergeant Keech’s interrogation may be reasonably 

contemporaneous with Detective De La Rocha’s questioning. Readvisement 

therefore was unnecessary.

This conclusion is not affected by Spencer’s youth or the fact that his 

criminal record consisted only of misdemeanors. (See People v. Stallworth (2008) 

164 Cal.App.4th 1079, 1089 [ruling that the police were not obligated to readvise 

an 18-year-old suspect with an 11th grade education even though the record does 

not establish whether the suspect’s “juvenile proceedings gave him experience 

with Miranda warnings”].) Moreover, the importance of Spencer’s relative 

inexperience and the different identities of his interrogators is overshadowed by 
31

the presence of clear indicia that Spencer understood his Miranda rights –– and

chose to waive them.

At the beginning of the interrogation, Sergeant Keech not only reminded 

Spencer of his prior Miranda warnings, but also confirmed Spencer understood 

and waived his rights. Before asking Spencer about the circumstances 

surrounding the murder, the Sergeant again asked whether Spencer understood his 

rights and was willing to talk — to which Spencer again unambiguously answered 

yes. Finally, near the end of the interview –– when Sergeant Keech once more

brought up the Miranda warnings — Spencer repeated some of the rights verbatim 

back to the officer. While a belated advisement cannot render admissible a prior 

confession, we do not think that this exchange constitutes an after-the-fact 

Miranda warning. Rather, coming at the end of the interview, the exchange

confirms that Spencer knew his rights throughout the interrogation and waived 

them when he willingly talked to the officers.

Taking into account the totality of relevant circumstances, we find the 

officers interrogating Spencer on Madden’s murder were not required to readvise 

him of his Miranda rights.

D. Voluntariness of Confession

1. Background

Separate from his Miranda-focused argument, Spencer contends that his 

confession was involuntary. His argument is based on a long statement Sergeant 

Keech made, laying out what he believed happened the night Spencer and his 

cohort killed Madden. After giving the facts of the case as he believed them to be, 

Sergeant Keech exhorted Spencer to tell his “side of the story.” The Sergeant 

continued, “You don’t take this chance right now, you may never get it again. 

And if you don’t think I can’t prove this case, if you don’t think I can’t fry you, 
32

you’re sadly mistaken, Chris. Now, don’t let these guys lay it all on you ’cause 

that’s what’s happening. You get a chance to lay some back and say exactly what 

happened. Whose idea was it?”

Spencer responded by attempting to negotiate. The attempt was cut short 

by Sergeant Keech, who said, “If you tell me the whole story, it’s because you 

want to tell me the whole story.” After some inaudible comments, the Sergeant 

reiterated, “. . . don’t ask me to make you any promises. I can’t make you any 

promises, Chris. All I can tell you is that I’ll put this down as accurately as you 

tell me what, what really happened, and that’ll be your story.” At this point, the 

interrogation proceeded with Spencer providing many of the details about what 

happened the night of Madden’s murder and the morning after.

Towards the end of the interview, Sergeant Keech asked Spencer a series of 

questions regarding the statement Spencer just gave.

“Keech: The statement that you gave us tonight, was that free 

and voluntarily given?

“Spencer: Yes.

“Keech: Did we make you any promises?

“Spencer: No.

“Keech: Did we coerce you in any way?

“Spencer: What does that mean?

“Keech: Did we threaten you?

“Spencer: [Laughs] No.”

2. Analysis

Spencer is of course correct that “[a]n involuntary confession may not be 

introduced into evidence at trial.” (People v. Carrington (2009) 47 Cal.4th 145, 
33

169 (Carrington).) In determining whether a confession is involuntary, we 

consider the totality of the circumstances to see if a defendant’s choice to confess 

was not “ ‘essentially free’ ” because his will was overborne by the coercive 

practices of his interrogator. (Ibid.) We have found a confession not “essentially 

free” when a suspect’s confinement was physically oppressive, invocations of his 

or her Miranda rights were flagrantly ignored, or the suspect’s mental state was 

visibly compromised. (People v. Neal (2003) 31 Cal.4th 63 (Neal); People v. 

McClary (1977) 20 Cal.3d 218 (McClary); People v. Hogan (1982) 31 Cal.3d 815

(Hogan).) We are not persuaded the circumstances of Spencer’s interrogation are 

comparable.

We begin by noting certain factual predicates missing from Spencer’s 

involuntariness claim. Spencer makes “no claim of physical intimidation or 

deprivation” and “no assertion of coercive tactics other than the contents of the 

interrogation itself.” (People v. Holloway (2004) 33 Cal.4th 96, 114 (Holloway).) 

(Contra Neal, supra, 31 Cal.4th at p. 84 [a case in which we held the confession 

involuntary, in part, because the defendant “was placed [overnight] in a cell 

without a toilet or a sink,” “did not have access to counsel or to any other 

noncustodial personnel,” “was not taken to a bathroom or given any water until the 

next morning,” and “was not provided with any food until some time following the 

third interview, after more than 24 hours in custody and more than 36 hours since 

his last meal”].) Nor does Spencer dispute that, prior to the interview by Sergeant 

Keech, he received Miranda warnings and waived his rights.4 (See Holloway, 

supra, 33 Cal.4th at p. 114 [a voluntary confession case where suspect was “fully 

advised of his rights and voluntarily waived them”]; Williams, supra, 49 Cal.4th at 

p. 442 [another voluntary confession case where “Defendant understood his right 

 

4 Spencer does argue that he should have been readvised of those rights by 

Sergeant Keech, but we have rejected that claim.
34

to counsel and to remain silent, but waived those rights”].) (Contra People v. 

Hinds (1984) 154 Cal.App.3d 222, 230–231 [a case of coercion in which the 

detective “spoke softly and indistinctly” while reading the defendant his Miranda

rights and did not ask if the defendant wished to waive his rights].) Despite his 

advisement, Spencer did not attempt to invoke any of these rights during the 

interview. (Contra Neal, supra, 31 Cal.4th at p. 74 [the suspect invoked both his 

right to remain silent and his right to counsel — the latter “ ‘ probably’ ‘7 to 10 

times’ ” — only to be deliberately ignored so that the detective could “obtain a 

statement”]; McClary, supra, 20 Cal.3d at pp. 222–226 [“The People concede that 

the officers violated defendant’s Miranda rights when they ignored her repeated 

requests for an attorney to assist her . . . .”].) These missing elements distinguish 

Spencer’s case from those where we have found the confession to be involuntary. 

(See People v. Winbush (2017) 2 Cal.5th 402, 454 (Winbush) [“This flagrant 

violation of Miranda weighed heavily in our conclusion that the interrogation [in 

Neal] was coercive.”]; Holloway, 33 Cal.4th at p. 117 [distinguishing McClary

where “we have no such insistent overriding of a defendant’s invocation of rights, 

no false representation regarding the death penalty, and no promise of a particular 

charge or other particular lenient treatment in exchange for cooperation”].)

We also find significant Sergeant Keech’s conduct, and Spencer’s response

to it. While Sergeant Keech confronted Spencer and gradually gleaned from him

ever more incriminating details, the record does not indicate that the officer made 

vituperative statements. The officer engaged in no name-calling, no obvious 

strong-arm tactics, and no base appeals to Spencer’s deeply held beliefs. (Contra

People v. Esqueda (1993) 17 Cal.App.4th 1450, 1468, 1478, 1485–1486 [a case in 

which the police officers “got in [the defendant’s] face,” “yelled,” “screamed,” 

“made accusations about him not being a man or not having any balls,” and 

“appealed to his manhood, his religion, and his Hispanic heritage”].) For his part, 
35

Spencer gave coherent, responsive answers and did not appear excessively fearful 

or distressed. (See Carrington, supra, 47 Cal.4th at p. 175 [a case where we found 

the confession to be voluntary because, among other things, “[t]here is no 

indication that defendant was induced by fear to make a statement. She appeared 

lucid and aware throughout the entire interrogation session and never asked the 

police officers to terminate the interview. Defendant spoke with confidence, and 

her answers were coherent”].) (Contra Hogan, supra, 31 Cal.3d at p. 828 [an 

involuntary confession case in which the defendant gave a statement while 

“sobbing,” “weeping” and “eventually [becoming] so upset that he vomited”].) 

Spencer also had the wherewithal to articulate –– time and again –– a version of 

events that minimized his involvement. Along the way, he changed his story from 

one emphasizing that he knew nothing about the offense, to one admitting he was 

at the scene but maintaining he had not participated in the killing, to finally 

admitting that he stabbed the victim. (See Williams, supra, 49 Cal.4th at pp. 442, 

444 [crediting the fact that “defendant continued to deny responsibility in the face 

of the officers’ assertions” as evidence that the defendant’s will was not 

overborne].)

In addition, Spencer acknowledged at the end of the interview that 

his confession was “free and voluntarily given.” He confirmed that the 

officers made him no promises and that they did not threaten him. Indeed, 

he was comfortable enough so that he could laugh when responding “no” to 

the question whether he was threatened.

Given these circumstances, we do not find a basis here to conclude that the 

interrogation techniques Spencer complains of amounted to coercion. These 

complained-of tactics include “repeated expressions that appellant was lying, an 

implication that the death penalty would be imposed, fabricated evidence against 

appellant, and implied promises of leniency” in combination with “appellant’s 
36

physical state and personal characteristics.” That Sergeant Keech told Spencer, 

even repeatedly, that “the police knew he was lying about the extent of his 

involvement” does not rise to the threshold necessary to taint the interrogation as 

unlawful. Spencer did lie — artlessly — and the sergeant confronted him with 

inconsistencies in his story. This is not an improper interrogation technique, as an 

interrogation may include “ ‘exchanges of information, summaries of evidence, 

outline of theories of events, confrontation with contradictory facts, even debate 

between police and suspect.’ ” (Holloway, supra, 33 Cal.4th at p. 115.)

Insofar as Spencer is suggesting that Sergeant Keech engaged in 

impermissible tactics amounting to “brainwashing” when laying out a narrative of 

what he believed happened on the night of Madden’s murder, we note it was 

Spencer himself who supplied many of the details. An example: while Sergeant 

Keech stated that Spencer and his coconspirators got to Leewards early and waited 

to ambush Madden, Spencer added the fact that he and his friends had waited 

about “two, two and a half hours” until Madden exited the building and that, while 

waiting, he saw janitors who drove a “white van” and were “waxing the floors.” 

On the more crucial aspects of the crime, Spencer, again, confessed to details not 

suggested by Sergeant Keech. For instance, after much prevarication, Spencer 

admitted that he stabbed Madden “[t]hree or four times” before handing the knife 

to Travis. Sergeant Keech, in contrast, advanced the theory that Spencer “and 

Danny and John, you guys, all three of you, stabbed that dude” without suggesting 

the order in which each perpetrator stabbed Madden or how many times they did 

it.

Sergeant Keech’s “outline of theories of events” did not come near the kind 

of scenario that was the basis for our finding of unconstitutional “brainwashing” in

a previous case. (Holloway, supra, 33 Cal.4th at p. 115.) In Hogan, supra, 31 

Cal.3d at p. 843, we acknowledged that coercion may include “ ‘the brainwashing 
37

that comes from repeated suggestion and prolonged interrogation.’ ” What the 

police had done in Hogan, however, was to “repeatedly suggest[] to appellant that 

he was unquestionably guilty and that he suffered from mental illness.” (Ibid.) 

Moreover, “[t]he question of appellant’s mental illness” was not only “raised by 

the interrogating officers” but also “reinforced by appellant’s wife and her 

communication to him that yet another police officer thought he had gone berserk 

and committed the homicides.” (Ibid.) These suggestions, combined with 

prolonged interrogations, resulted in the defendant himself eventually expressing

doubts as to his own sanity. (Id. at pp. 835–838.) No circumstance suggesting 

that such a brainwash occurred presents itself here.

We likewise dispose of the rest of Spencer’s arguments regarding Sergeant 

Keech’s conduct in the interrogation room. Although Sergeant Keech brought up 

the death penalty — remarking that “if you don’t think I can’t fry you, you’re 

sadly mistaken” — the statement was made in isolation and Spencer did not 

appear cowed by the remark. In any event, “ ‘a confession will not be invalidated 

simply because the possibility of a death sentence was discussed.’ ” (Holloway, 

supra, 33 Cal.4th at p. 115–116 [finding the confession voluntary despite the 

detective stating “We’re talking about a death penalty case here”]; Williams, 

supra, 49 Cal.4th at pp. 437–438 [same, despite the detectives referring to the “gas 

chamber” more than once].) Instead, a constitutional violation will be found “only 

where the confession results directly from the threat such punishment will be 

imposed if the suspect is uncooperative, coupled with a ‘promise [of] leniency in 

exchange for the suspect’s cooperation.’ ” (Holloway, supra, 33 Cal.4th at pp.

115–116.) Here, Sergeant Keech made no promise of leniency. Contrary to what 

Spencer argues, the Sergeant’s suggestion that Spencer did not mean to kill the 

victim but only to “cut” him did not amount to an implied promise of leniency. 

(Williams, supra, 49 Cal.4th at p. 444 [holding that “the suggestions made by the 
38

interrogating officers that defendant may not have been the actual killer, or may 

not have intended that the victim die” were a permissible interrogation tactic]; 

Carrington, supra, 47 Cal.4th at p. 171 [similar].) Indeed, Sergeant Keech

expressly told Spencer that he “can’t make [him] any promises” and that Spencer

should not ask for them.

Along the same line, we find no error in Sergeant Keech’s false 

representation that the police had found Spencer’s fingerprints at the crime scene. 

(People v. Farnam (2002) 28 Cal.4th 107, 182 (Farnam) [stating that “[w]here the 

deception is not of a type reasonably likely to procure an untrue statement, a 

finding of involuntariness is unwarranted” and that “the deception concerning 

defendant’s fingerprints was unlikely to produce a false confession”]; People v. 

Musselwhite (1998) 17 Cal.4th 1216, 1241 [finding the confession admissible 

because “it does not follow that [falsely] telling a murder suspect in the course of 

questioning that his prints had been lifted from the neck of the homicide victim 

‘caused’ him to confess”]; People v. Watkins (1970) 6 Cal.App.3d 119, 124–125

[similar]; accord Smith, supra, 40 Cal.4th at pp. 505–506 [listing cases where 

“[c]ourts have repeatedly found proper interrogation tactics” both “intimidating 

and deceptive”].)

Finally, Spencer’s “physical state” and “personal characteristics” do not 

strike us as sufficient bases to disturb the trial court’s decision to admit his 

confession. (See People v. Dykes (2009) 46 Cal.4th 731, 753 (Dykes) [rejecting 

the defendant’s claim that “his decision to confess was based upon his youth and 

his absence of experience with the criminal justice system” since “there was no 

indication of police exploitation of these circumstances”].) It is true that Spencer 

was coughing during the interrogation and stated that he had bronchitis. There is 

no evidence, however, that the cough diminished Spencer’s mental faculties or 

made him especially vulnerable to Sergeant Keech’s questioning. Indeed, the 
39

activities that Spencer admitted to engaging in the night before and the morning of 

his arrest indicated a rather robust constitution; however bad his bronchitis may 

have been, it did not keep him from driving around with his friends, enjoying a 

night at a hotel, or going shopping for a new car, new clothes, and new shoes in 

the morning.

In light of this analysis and the circumstances of Spencer’s interrogation, 

we conclude that his confession was voluntary.

E. Propriety of Victim Impact Statements

1. Background

Four members of Madden’s family gave victim impact statements at the 

penalty phase of the trial. In addition, three witnesses testified as to how 

Madden’s wife received the news of his death. Spencer complains that the number 

of witnesses, the presentation of their testimonies, and the content of their 

statements were “excessive, irrelevant and highly prejudicial.” In particular, he 

complains that too many witnesses discussed the impact of Madden’s death on his 

wife; that they discussed too extensively the effect of his death on individuals who 

did not testify — including Madden’s daughter, who was seven years old at the 

time of her father’s death; that they talked about Madden’s life at points in time far 

removed from his death; and that photographs of Madden should not have been

introduced into evidence.

2. Analysis

Evidence relating to a murder victim’s personal characteristics and the 

impact of the crime on the victim’s family is relevant to show the victim’s 

“ ‘uniqueness as an individual human being’ ” and thereby “the specific harm 

caused by the defendant.” (Payne v. Tennessee (1991) 501 U.S. 808, 823, 825.) 

Under California law, such evidence is admissible as a circumstance of the crime 
40

under section 190.3, factor (a). (People v. Edwards (1991) 54 Cal.3d 787, 835; 

People v. Russell (2010) 50 Cal.4th 1228, 1264 (Russell).) Victim impact 

statements are, by their nature, emotional. They merit exclusion only if they 

constitute such “inflammatory rhetoric” as to elicit “purely emotional or irrational 

responses from the jury.” (People v. Simon (2016) 1 Cal.5th 98, 138 (Simon).) 

We review a trial court’s decision to admit victim impact evidence for abuse of 

discretion. (Ibid.)

With the exception of the photographs, Spencer does not appear to have 

objected to the introduction of the victim impact evidence.5 To preserve a claim 

of error regarding the admission of evidence, a party must object to its admission. 

(People v. Pollock (2004) 32 Cal.4th 1153, 1181 (Pollock)); Simon, supra, 1 

Cal.5th at p. 139 [stating that it was “incumbent” upon the defendant “to monitor 

the victim impact evidence on an ongoing basis during the penalty phase and raise 

any specific objections at that time”].) The absence of such an objection from 

Spencer forfeits any claim on appeal that the testimonies were erroneously 

admitted.

Even if Spencer had objected, his argument still fails on the merits. The 

number of witnesses that testified in this case, the content of their testimonies, and 

the decision to admit four of the victim’s photographs are all within the limits of 

what we found proper in prior cases. In Simon, supra, 1 Cal.5th at pp. 135–139,

for example, we affirmed the trial court’s decision to allow six witnesses to give

victim impact statements, which described “the nature of their relationships with 

the victims, how they learned about the crimes, and how the crimes impacted their 

lives.” This was precisely the nature of the testimonies offered in Spencer’s case, 

 

5 Indeed, in raising an objection to the photographs, trial counsel stated, “I’m 

not going to bother to stand up and object to things that I know the law permits 

. . . .”
41

where family members testified about their relationship with the deceased, how 

they learned about his death (with Sissy’s narrative given special emphasis 

through the testimonies of those who saw how she reacted to the news that her 

husband had died), and how his murder affected their lives. Like in Simon, the 

testimonies painted a picture of emotional devastation, “but that is to be expected 

when loved ones have been brutally murdered.” (Simon, supra, 1 Cal.5th at p. 

140.) And as in Simon, our independent review of the record indicates the 

evidence was not so emotional — even when accompanied with pictures (id. at pp. 

135–136) — “that the trial court’s failure to exclude it amounted to an abuse of 

discretion or rendered [the] trial fundamentally unfair.” (Id. at p. 140.)

Focusing on the specific facets of the victim impact evidence Spencer 

challenges does not persuade us otherwise. Seven people offered victim impact 

statements in this case, with testimonies spanning about 73 pages. Spencer calls

our attention to a case where the evidence introduced was more limited. While it

is true that in People v. Roldan (2005) 35 Cal.4th 646, 732–733, only one family 

member testified and her “time on the stand was relatively short and subdued,”

Spencer advances no persuasive reason for why Roldan should be treated as 

setting the upper limit on victim impact evidence. Having reviewed the statements 

from four members of Madden’s family and three unrelated persons who testified 

to Sissy’s reaction upon learning of her husband’s death, we believe the evidence 

— while somewhat cumulative — was not excessive. (See Winbush, supra, 2 

Cal.5th at p. 464 [discussing cases where more than seven people offered 

testimony, which was found to be “not unfairly excessive”].)

Nor was it improper that the witnesses discussed the impact of the victim’s 

death on their own lives, as well as the lives of other family members ––

irrespective of whether these family members themselves testified. (People v. 

Panah (2005) 35 Cal.4th 395, 495 [“There is no requirement that family members 
42

confine their testimony about the impact of the victim’s death to themselves, 

omitting mention of other family members.”].) No authority supports Spencer’s 

suggestion that because somebody testified, others must not talk about the

testifying person’s experience. The same goes for his contention that because 

somebody — like Madden’s young child and aged great-grandmother — did not 

take the stand, the number of witnesses who may properly discuss the impact of 

the murder on those individuals must be kept to “at most, one.” Our precedent, in

fact, is to the contrary. (E.g. Russell, supra, 50 Cal.4th at p. 1265 [“Though the 

victims’ wives did testify about the impact of their husbands’ deaths on their 

families, we reject defendant’s claims that the victims’ children were precluded 

from providing testimony regarding their personal experiences resulting from the 

deaths of their fathers.”]; id. at p. 1264 [finding no abuse of discretion in the trial 

judge’s decision to allow at least two witnesses to talk about how a father’s death 

affected his son Christopher even though Christopher himself did not take the

stand].)

Spencer also contends Madden’s family may testify only about events close 

to the time of his death. We disagree. (People v. Garcia (2011) 52 Cal.4th 706, 

751–752 (Garcia) [“The People are entitled to present a ‘ “complete life histor[y] 

[of the murder victim] from early childhood to death.” ’ [Citation.] Such 

evidence, which typically comes from those who loved the murder victim, shows 

‘how they missed having [that person] in their lives.’ ”].) As long as the events 

relayed are not otherwise unduly prejudicial, they may include anecdotes culled 

from a lifetime of shared experiences between the victim and those he left behind. 

(People v. Brown (2004) 33 Cal.4th 382, 398 [“To the extent [those who give 

victim impact statements] also recollected past incidents or activities they shared

with [the victim], their testimony simply served to explain why they continued to 
43

be affected by his loss and to show the ‘victim’s “uniqueness as an individual 

human being” ’ ”].)

So too may a jury be shown pictures of the victim in happier times when it 

considers testimonies about the devastation brought about by his death. The 

prosecution here entered four such pictures into evidence, including two of 

Madden with his daughter around Christmas. These pictures did not create unfair 

prejudice. (See, e.g., Garcia, 52 Cal.4th at pp. 720–721, 752–754 [finding no 

error where the jury was shown an 11-minute 45-second videotape consisting of a 

photo montage of the victim depicting images of him “as a boy sleeping with a 

puppy” and as an adult “getting married, raising children, relaxing at home, and 

enjoying the outdoors”]; People v. Brady (2010) 50 Cal.4th 547, 579 (Brady) 

[finding no abuse of discretion in the trial judge’s decision to admit a videotape 

depicting the murder victim celebrating Christmas with his family].)

Perhaps recognizing the limitations of his argument concerning victim 

impact evidence under our case law, Spencer seeks to have us abandon it. He 

urges us to reconsider our prior rulings and adopt a narrower limit for victim 

impact evidence, in line with what he argues is the approach taken by other states. 

We have been extended such invitations before — and refused them. (E.g., 

Pollock, 32 Cal.4th at pp. 1182–1183.) We continue to do so now.

Under well-established California law, we find that the trial court did not 

abuse its discretion in admitting the victim impact evidence given in this case.

F. Admission of Potentially Inflammatory Evidence

1. Background

Although we find the victim impact evidence properly admitted, we 

nonetheless consider Spencer’s argument that “[t]he prosecution used physical 

evidence and expert testimony to compound the prejudicial effects of its victim 
44

impact presentation.” The physical evidence to which Spencer refers is two 

exhibits. One is a photograph of Madden’s thigh, showing four abrasions 

consistent with burns from a stun gun; the other is the shirt that Madden wore on 

the night of his death, displayed on a mannequin. The jury thus saw a bloodied 

shirt with multiple markers attached to it to show deformities left by the stabbing. 

The jury also heard testimony from the medical examiner, Doctor Pakdaman, who 

referred to the shirt and photograph during his examination. Spencer asserts that 

the doctor’s testimony was “entirely cumulative and unnecessary.” To the extent 

that the testimony introduced something new by focusing on how much Madden 

was likely to have suffered, says Spencer, it was unreliable and inflammatory.

2. Analysis

Spencer’s various arguments may be distilled to the contention that the trial 

court abused its discretion in admitting the physical evidence and expert testimony 

because their “probative value [was] substantially outweighed by the . . . danger of 

undue prejudice.” (Evid. Code, § 352.) He fails to appreciate, however, how 

circumscribed is the court’s discretion to exclude evidence at the penalty phase.

(People v. Box (2000) 23 Cal.4th 1153, 1201 (Box).) The contrast between the 

guilt and penalty phases of a capital trial is starkly evident in how certain 

testimony permissible at the penalty stage would be inappropriate during the guilt 

phase. (People v. Haskett (1982) 30 Cal.3d 841, 863 (Haskett) [stating that 

“appeals to the sympathy or passions of the jury are inappropriate at the guilt 

phase” but not so at the penalty stage].) Because “at the penalty phase the jury 

decides a question the resolution of which turns . . . on the jury’s moral 

assessment,” “[i]t is not only appropriate, but necessary, that the jury weigh the 

sympathetic elements of defendant’s background against those that may offend the 

conscience.” (Ibid.) At the penalty phase, therefore, the prosecution is entitled to 
45

introduce evidence “to place the capital offense and the offender in a morally bad 

light.” (Box, supra, 23 Cal.4th at p. 1201.)

The bloodstained shirt is admissible to show the brutality of the crime 

Spencer committed. (People v. Zambrano (2007) 41 Cal.4th 1082, 1138 

(Zambrano) [“The prosecution need not sap the force of its case by presenting 

only the most antiseptic evidence . . . .”].) Moreover, although the prosecution 

witnesses admitted that more blood got on the shirt as Madden’s body was being 

transported to the coroner’s office, the fact that the shirt did not look as it did 

when Spencer left Madden merely goes to the probative value of the evidence. 

What’s more, the shirt only became more bloody because law enforcement was 

trying to maintain the position of the body, found facedown, in transporting it to 

the coroner’s office, and blood seeped out from the already inflicted wounds in the 

process. So the probative value of the shirt was not much affected by the 

additional blood as the blood “all came from the wounds that were inflicted on Mr. 

Madden’s body.” And neither was the danger of undue prejudice, since Spencer’s 

trial counsel alerted the jury to the fact that the shirt had less blood on it when 

Madden’s body was found.

As to the balance between the two, we believe the trial court acted within 

its discretion in finding that the probative value of the shirt was not substantially 

outweighed by the risk of undue prejudice. Consistent with our holding in People 

v. Medina (1990) 51 Cal.3d 870, 898–899 — a case where the prosecution entered 

into evidence a mannequin wearing a victim’s bloodstained shirt — we find that 

“[t]he trial court was in a far better position than we to assess the potential 

prejudice arising from the display of such physical evidence.” Upon the record 

before us, we see no basis to upset its decision.

Spencer relies on two out-of-state cases in arguing to the contrary: People 

v. Blue (Ill. 2000) 724 N.E.2d 920 and U.S. v. Sampson (D.Mass. 2004) 335 
46

F.Supp.2d 166 (Sampson). Both cases are distinguishable. In Blue, supra, 724 

N.E.2d at p. 934, the court found that the victim’s police uniform, splattered with 

his blood and brain matter, was “probative of a material fact” but nonetheless 

should have been excluded because its “potential prejudice . . . outweighed its 

probative value.” Yet the standard applied in Blue does not appear to be the same 

as the standard governing the admissibility of evidence in this state. Our Evidence 

Code makes clear that a trial court has the discretion to exclude evidence if its 

probative value is substantially outweighed by the danger of prejudice. (Evid. 

Code, § 352.) That the potential prejudice of a piece of evidence simply 

outweighed its probative value is thus not enough for the trial court to refuse to 

admit the evidence. Moreover, the court in Blue identified a “a coalescence of 

facts that tip the evidentiary scale” in finding that the blood- and brain-stained 

shirt should have been excluded. (Blue, supra, 724 N.E.2d at p. 934.) That 

“coalescence” contained a number of facts not found in this case, such as: the 

challenged evidence was “not just bloody clothes, but the clothes of a police 

officer, which . . . are uniquely ‘charged with emotion’ ”; “the jury knew that the 

stains on the uniform were not only from the officer’s blood — a concept 

disturbing in and of itself — but also from the officer’s brains”; and “the trial 

court appeared to encourage the jury to engage in a tactile interaction with the 

uniform.” (Ibid.) In short, defendant’s emphasis on Blue –– a case concerning 

facts with “uniquely ‘charged with emotion’ ” –– does not persuade us. (Ibid.)

The same applies to Sampson. There, the District Court for the District of 

Massachusetts decided to exclude bloody shirts worn by the victims because of 

“unique considerations.” (Sampson, supra, 335 F.Supp.2d at pp. 184–185.) The

court in Sampson also applied a “more restrictive” standard for admissibility than

is demanded by our Evidence Code. (Id. at p. 177.) Furthermore, simply because 

a trial court exercised its discretion to exclude the shirts does not mean that it 
47

would be an abuse of discretion to do otherwise. (People v. Medina, supra, 51 

Cal.3d at p. 899 [“Although the court reasonably could have excluded the 

mannequins from the jury room, we find no abuse of discretion in the court’s 

contrary ruling.”].)

Spencer fares no better with his argument regarding photographs of the 

abrasions on Madden’s thigh. The prosecution introduced this picture to highlight 

the extent of Madden’s suffering. As he was being stabbed by Spencer, Madden 

was simultaneously shocked by Silveria and his body bore the wounds of both. 

The photograph is admissible for the same reasons as the shirt –– a conclusion that 

holds despite the fact that Silveria, and not Spencer, inflicted the stun gun injuries. 

As relevant evidence both of the nature of the crime and Spencer’s indifference to 

the victim’s suffering, the photograph was properly admitted. Its probative value 

was not substantially outweighed by the danger of undue prejudice — the former 

being relatively high since Spencer admitted to stabbing Madden at the same time 

that Silveria shocked him, and the latter being relatively low as the jury knew that 

it was Silveria who shocked Madden.

Finally, we find that the trial court did not abuse its discretion by allowing 

the medical examiner to testify. Doctor Pakdaman’s testimony during the penalty 

phase did not simply duplicate the statements he gave during the guilt portion. 

While there was some overlap, his testimony at the penalty phase focused more on 

how much Madden was likely to have suffered during his final moments (and less 

on the cause of death, as explained in technical detail during the guilt phase). For 

instance, Doctor Pakdaman testified that Madden’s hand was clenched when rigor 

mortis set in, a fact consistent with his having struggled mightily but fruitlessly 

against his bonds before he died. The doctor also testified that Madden did not die 

immediately from his injuries, as indicated by the foam found in his airways and 

the abrasion on his head. While Spencer got Doctor Pakdaman to say that the 
48

clenched hand was also consistent with something other than the victim having 

struggled and the estimated time of death was a guess, the doctor’s testimony was 

nonetheless based on evidence and reasonable inferences drawn therefrom. 

Simply because other inferences were possible does not make the testimony 

unreliable. Likewise, just because the testimony placed the killing in a “morally 

bad light” does not render it inflammatory, and therefore inadmissible. (Box, 

supra, 23 Cal.4th at p. 1201.)

Spencer resists this conclusion. He purports to find support for his position 

in People v. Love (1960) 53 Cal.2d 843. While Love is a case where this court

reversed the death judgment due to erroneous admission of evidence “designed to 

appeal to the passion of the jury” (id. at pp. 854–858), it is also a case whose 

continuing validity has been called into question. In Brady, supra, 50 Cal.4th at p.

575, we noted that “Love predates the high court’s ruling in Payne v. Tennessee, 

supra, 501 U.S. 808, and the enactment of section 190.3, both of which expressly 

allow the jury to consider the circumstances of the crime — including its 

immediate injurious impact.” Moreover, in the years since Love was decided, “we 

have upheld the admission of [evidence] similar to [that] at issue” in the case. (Id. 

at p. 575, fn. 13.) “Even assuming for argument that Love has not been overtaken 

by subsequent judicial decisions concerning the admissibility of victim impact 

evidence in capital trials, it has no bearing on the meaning of section 190.3, factor 

(a) as presently written.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1368

(Seumanu).)

We conclude that the introduction of the challenged physical evidence, 

expert testimony, and victim impact statements — considered individually and 

cumulatively — was not error.
49

G. Alleged Prosecutorial Misconduct

According to Spencer, the prosecutor made numerous comments amounting 

to misconduct during his penalty phase closing argument. To preserve such a 

claim, however, Spencer must have made “ ‘a timely objection at trial and 

request[ed] an admonition.’ ” (People v. Clark (2016) 63 Cal.4th 522, 577

(Clark).) Otherwise, his claim is reviewable “ ‘only if an admonition would not 

have cured the harm caused by the misconduct.’ ” (Ibid.) Spencer’s claims thus 

fail at the threshold since he did not object to the supposed improper comments at 

trial and has advanced no persuasive reason why an objection or request for an 

admonition would have been futile.

While Spencer generically asserts that the harm was done the moment the 

prosecutor “uttered his comments,” he supplies no plausible reason for why that is 

the case. Spencer complains of multiple instances of misconduct, each supposedly 

driven home by the prosecutor uttering multiple remarks on the theme, and yet 

objected to none of them. Had he objected at the first instance of any improper 

comment, the trial court could have instructed the prosecutor to abandon that line 

of argument and issued specific disapproving directives to the jury. He did not, 

and so cannot now be heard to complain. (E.g., Seumanu, supra, 61 Cal.4th at pp.

1340–1341 [listing numerous cases to show how well established is “the rule 

requiring claims of prosecutorial misconduct be preserved for appellate review by 

a timely and specific objection and request for admonition”].) (Contra People v. 

Hill (1998) 17 Cal.4th 800, 821 (Hill) [excusing the defendant from the obligation 

to “continually object” in the “unusual circumstances” when he was subjected to a 

“constant barrage” of the prosecutor’s unethical conduct and the trial court not 

only failed to rein in the excesses but sometimes contributed to it].)

Were we to reach the merits of Spencer’s claims, we would find them

deficient. To prevail, Spencer must show “ ‘a reasonable likelihood the jury 
50

understood or applied the complained-of comments in an improper or erroneous 

manner.’ ” (Dykes, supra, 46 Cal.4th at pp. 771–772.) This is not a low standard 

to meet, since “ ‘we “do not lightly infer” that the jury drew the most damaging 

rather than the least damaging meaning from the prosecutor’s statements.’ ” (Id.

at p. 772; Donnelly v. DeChristoforo (1974) 416 U.S. 637, 647.) Spencer 

consistently ignores this point of law and asks us to adopt the most damaging —

and far-reaching — interpretation of the prosecutor’s comments to find that he 

committed misconduct in the five areas discussed below.

1. Mischaracterization of Jurors’ Oath

Spencer first claims that the prosecution “mischaracterized the jurors’ oath 

and argued that society demanded a death verdict.” To support his claim, Spencer 

points to places in the closing argument where the prosecutor described the jury’s 

verdict as reflecting some external norms, e.g. the “conscience of the community” 

or society’s need for justice. He also highlights parts of the prosecutor’s argument 

in which the prosecutor purportedly said that to vote for life without the possibility 

of parole was to “take the easy way out.” Spencer argues that these comments 

“diminish[ed] the jurors’ sense of personal, moral responsibility for the penalty 

decision.” We disagree.

Far from diminishing the jury’s sober responsibility at the penalty stage, the 

prosecutor stated the correct standard jurors were to follow in deciding whether 

Spencer should live or die. The prosecutor thus told the jury: “Your 

responsibility as jurors is to weigh and consider all of the aggravating evidence, all 

of the mitigating evidence, and make your determination based on a moral 

evaluation.” Moreover, “[t]o return a judgment of death, you must be persuaded 

that the aggravating circumstances are so substantial in comparison with the 

mitigating evidence that it warrants death rather than life without parole.” 
51

Elsewhere the prosecution impressed upon the jury the weight and solemnity of its

decision, and the fact that each juror must participate in the moral weighing on 

which Spencer’s life hung. A fair reading of the prosecution’s closing statement

persuades us that it did not misstate the law applicable at the penalty stage.

Spencer’s argument to the contrary depends on singling out individual 

comments, assigning the most damaging possible interpretation to them, and then 

claiming — in contradiction of the record and case law — that these comments

amount to prosecutorial misconduct. For example, Spencer uses the prosecutor’s

comment that the jury’s verdict reflected the “conscience of this community” to 

argue that it “told jurors that they were morally bound to return a death sentence.” 

Yet Spencer’s trial counsel also told the jury that it was acting as “the conscience 

of the community.” As the attorneys’ comments indicate and our precedent makes

clear, “[j]urors are the conscience of the community” and it is “not error to tell 

them so in closing argument.” (People v. Gamache (2010) 48 Cal.4th 347, 389

[listing cases].) More generally, not every reference to the victim’s family — an 

external institution — the “community,” or society at large constitutes an improper 

attempt to dissuade the jurors from making a personal decision. (E.g., Zambrano, 

supra, 41 Cal.4th at pp. 1177–1179.)

Nor did the prosecution denigrate the jury’s “solemn responsibility” by 

insisting that anything but a death sentence would be taking the easy way out. 

Instead, the prosecutor urged jurors not to forgo the punishment for the wrong 

reasons — because it would absolve them of the need to weigh the moral 

blameworthiness of Spencer’s conduct. Such comments fall within the scope of 

acceptable arguments advanced at the close of trial. (See, e.g., People v. Jones

(1997) 15 Cal.4th 119, 185 [“It was proper for the prosecutor to argue that 

determining the appropriate punishment in a capital case is a difficult decision that 

requires courage.”].)
52

In sum, we reject Spencer’s claim that the jurors were “browbeaten with the 

message that they owed it to the victim’s family, to the prosecutor, to the legal 

system, and to society to condemn Chris Spencer to death.”

2. Appeal to Emotion

Spencer next argues that the prosecution improperly appealed to the jurors’ 

emotion during the opening and closing arguments at the penalty phase. Much of 

his argument replays the contention that the victim impact evidence given in this 

case — previewed and recapped by the prosecution in its two statements — was 

unduly prejudicial. To the extent the opening statement contains any content not 

challenged elsewhere, we note that the prosecutor correctly stated the law when he 

emphasized that emotion has a role in the jury’s deliberation during the penalty 

phase. (Haskett, supra, 30 Cal.3d at p. 863.) Not much else is new, and there is 

no basis for us to treat the issues differently here than how we resolved them in the 

discussion of victim impact evidence and the prosecution’s closing argument.

Nor do we need to revisit our prior cases permitting the People to argue 

Spencer did not deserve mercy. Most of the prosecutor’s comments focused on 

the effect of Madden’s murder on his family and encouraged the jury to empathize

with the victim and his survivors — all of which is permissible during the penalty 

phase. (See, post, section II.G.3 [addressing the prosecutor’s appeal for the jury to 

empathize with the victim and his family].) Where the prosecutor came close to 

eliciting some sort of retribution — such as when he urged the jury to overcome 

any reluctance it might have in handing down the death penalty by considering 

how Spencer showed no such reluctance in “plung[ing]” a knife “again and again” 

into Madden — still such exhortations are not categorically inappropriate. (E.g. 

People v. Kennedy (2005) 36 Cal.4th 595, 636 [“We reject defendant’s additional 

claim that the prosecution committed misconduct during its closing argument in 
53

telling the jury that defendant deserved no less punishment than what he inflicted 

on the murder victim and that defendant did not show mercy or sympathy to the 

victim. The argument is permissible under California law.”].) Where, as here, the 

comments are brief, isolated, and “do not form the principal basis for advocating 

the imposition of the death penalty,” they do not constitute misconduct. (E.g., 

Ghent, supra, 43 Cal.3d at p. 771.)

3. Appeal to Empathy

Along the same line as his argument about the jury being asked to withhold 

its mercy, Spencer argues that it is “impermissible for an attorney to argue to 

jurors that they should place themselves in the position of the victim in assessing 

the sanction to be imposed against the defendant.” While Spencer claims that “[i]t 

has long been held” that such an argument is improper, our precedent is to the 

contrary. (E.g., Dykes, supra, 46 Cal.4th at pp. 793–794 [“it is not improper at 

th[e] [penalty] phase of the trial for the prosecutor to ‘invite the jurors to put 

themselves in the place of the victims and imagine their suffering’ ”]; Wash, 

supra, 6 Cal.4th at pp. 263–264 [similar]; People v. Jackson (2009) 45 Cal.4th 

662, 692 [“[t]he prosecutor did not commit misconduct by inviting the jurors to 

put themselves in the shoes of the victim’s family”]; People v. Stitely (2005) 35 

Cal.4th 514, 568 [“the prosecutor was free to ask penalty jurors to consider . . . the 

unique pain that either the victims or their families experienced as a result of the 

charged crimes”].)

Ignoring this line of authorities, Spencer instead calls our attention to Loth 

v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757. We fail to see how Loth is 

relevant, considering that the case dealt with the proper method for assessing 

money damages in a personal injury lawsuit. People v. Lopez (2008) 42 Cal.4th 

960, is likewise unilluminating, since it was not a capital case involving a separate 
54

punishment proceeding. Here, Spencer is challenging the prosecutor’s closing 

statement made at the end of the punishment phase, and as we have made clear,

“[a]lthough it is inappropriate at the guilt phase for a prosecutor to appeal to 

sympathy by inviting the jury to view the case through the victim’s eyes [citation], 

such appeals are entirely appropriate at the penalty phase.” (Winbush, supra, 2 

Cal.5th at pp. 485–486.)

4. Griffin Error

Spencer also fails to persuade us that the prosecution improperly 

commented on his silence, in contravention of the teaching of Griffin v. California

(1965) 380 U.S. 609. The prosecutor purportedly committed this error when he

argued that Spencer’s trial counsel “won’t be able to point to any remorse on the 

part of his client for what he has done, because there is none here before you.” 

Quoting from Spencer’s confession, the prosecutor continued, “No remorse, of 

course, unless it’s in his statement where he speaks of himself: ‘What am I 

looking at? How long am I going to have to serve? . . . Oh fuck. There went my 

life.’ ” The prosecutor then asked rhetorically, “Anywhere in there does he say 

that he’s sorry for what he’s done?”

We do not perceive in such remarks an oblique reference to Spencer’s 

decision to remain silent at trial. Instead, the prosecution’s emphasis is that there 

is no evidence that Spencer has expressed remorse. The lack of remorse is 

relevant, as its presence mitigates against the death penalty. (Wash, supra, 6 

Cal.4th at p. 265 [“It is proper to argue that remorse is lacking as a circumstance in 

mitigation.”]; Dykes, supra, 46 Cal.4th at pp. 798–799 [similar].) Moreover, 

calling attention to the fact that “there was no evidence that [the] defendant had 

ever expressed remorse” does not violate Griffin. (Zambrano, supra, 41 Cal.4th at 

p. 1174 [“The prosecutor did not comment that defendant had failed to take the 
55

stand to express remorse; he simply said there was no evidence that defendant had 

ever expressed remorse. We have consistently found such penalty phase argument 

permissible under Griffin . . . .” (italics omitted)]; Brady, supra, 50 Cal.4th at p.

585 [similar].) In this case, the prosecutor simply stressed that, during his 

confession, Spencer showed no sympathy to the victim and only expressed 

concerns about what would happen to himself. We find no constitutional violation 

in such remarks.

5. Bengal Tiger Story

Finally, Spencer claims that the prosecution dehumanized him by telling a 

story in which he is analogized to a vicious animal. The story goes something like 

this: two friends visit a zoo and see a Bengal tiger “lying in the sun,” “kind of fat 

and relaxed and comfortable.” One friend said to the other: “That’s not a Bengal 

tiger.” The two then fly to India, where, in the midst of the jungle, they encounter 

a creature “fifteen feet long,” standing “over its kill,” with “blood dripping from 

its mouth.” After the two friends made a narrow escape, they agreed that they 

now have seen a Bengal tiger. The prosecutor explained the parable this way: 

“The point of [the story] is this . . . . You’ve got Mr. Spencer in court. You’ve got 

a photo of him here. . . . [But] [t]he only one that saw the Bengal tiger, the real 

Bengal tiger, inside that man, Chris Spencer, was Jim Madden. In that setting that 

night the tiger came out and that’s the result. The boy shown in the photograph is 

not the tiger. The boy didn’t kill him. The defendant did, the man seated in 

court.”

Considered in context, the message conveyed by this aspect of the 

prosecutor’s closing argument was not categorically different from passages we 

have deemed acceptable in earlier capital cases. We have determined it was 

acceptable, as an example, for the People to convey in closing that jurors should 
56

not be “misled by defendant’s benign and docile appearance at trial, but to 

remember him as the murderer.” (People v. Duncan (1991) 53 Cal.3d 955, 976–

977.) Indeed, the Bengal tiger story has been told in California courtrooms before, 

and we have more than once found no impropriety in its use. (Ibid.; Brady, supra, 

50 Cal.4th at p. 585.) The People may comment on the evidence introduced to 

convey the viciousness of Madden’s murder, including by using a story that could 

be understood by some jurors to describe the murderer as a monster. (Zambrano, 

supra, 41 Cal.4th at p. 1172 [“Argument may include opprobrious epithets 

warranted by the evidence.”]; Farnam, supra, 28 Cal.4th at p. 168 [concluding 

that the prosecutor’s descriptions of the defendant as “ ‘monstrous, ’ ” “ ‘coldblooded, ’ ” and a “ ‘predator’ ” were fair comment on the evidence].)

So at the close of the penalty phase, the prosecutor has wide latitude and 

may argue his case with rigor. (Dykes, supra, 46 Cal.4th at p. 768; Seumanu, 

supra, 61 Cal.4th at p. 1331.) We conclude that the prosecutor here did not 

exceed the relatively wide scope the law affords him.

H. Consideration of Graber Robbery During Penalty Phase

Spencer contends that the trial court erred in its response to a question from 

the jury regarding how an aspect of the jury instructions related to the jury’s 

consideration of the robbery of Ben Graber at the Gavilan Bottle Shop. We find 

otherwise.

1. Background

At the end of the penalty phase, the court instructed the jury on the 

mitigating and aggravating elements that it may consider in deliberation. 

Specifically, the court instructed the jury on the various factors laid out in section 

190.3, including factors (a), (b), (j), and (k), the catchall factor. As laid out in the 

court’s instructions, these are:
57

“(a) The circumstances of the crime which the defendant was 

convicted in the present proceeding and the existence of any special 

circumstance found to be true.

“(b) The presence or absence of criminal activity by the defendant, 

other than the crimes for which the defendant has been tried in the 

present proceedings, which involved the use or attempted use of 

force . . . .

“(j) Whether or not the defendant was an accomplice to the offense 

and his participation in the commission of the offense was relatively 

minor. 

“(k) Any other circumstance which extenuates the gravity of the 

crime even though it is not a legal excuse for the crime and any 

sympathetic or other aspect of the defendant’s character or record 

that the defendant offers as a basis for a sentence less than death, 

whether or not related to the offense for which he is on trial.”

The court also instructed the jury that the robbery of Graber at the Gavilan 

Bottle Shop is an aggravating circumstance that it may consider under factor (b). 

The instruction was given over Spencer’s objection. Spencer argued that the 

robbery of Graber does not fall under factor (b) because that robbery and 

Madden’s murder were “indistinguishable.” As Spencer’s counsel stated, “what 

we got here is a course of conduct over the space of about a week . . . based more 

or less on the same motivation and culminating in the robbery and murder at 

Leewards.” The prosecution disagreed, pointing out that although the robbery and 

murder were “consolidated for purposes of this trial,” they were “two separate 

crimes,” committed four days apart. The court sided with the prosecution.

The jury then entered deliberation. Two days later, it sent a question to the 

trial judge, asking “Does Factor (j) apply to Factor (b), the robbery of Ben Graber, 

in regards to a mitigating factor, or does Factor (j) relate only to the robbery, 

burglary and murder of James Madden?” The court consulted with counsel for 

both sides, indicating that in its opinion, “Factor (j) only relates to the robbery, 

burglary and murder of James Madden.” Spencer objected, with the substance of 
58

his lengthy objection being that, under factor (j), the jury can consider his limited 

role in the robbery of Graber as a mitigating circumstance to the murder of 

Madden. He acknowledged, however, that he understood why “the defense, don’t 

have it coming to get strong endorsements from the bench.” After some delay, the 

court instructed the jury that “[t]he Factor (j) only relates to the robbery, burglary 

and murder of James Madden.” Three days later, the jury returned a verdict of 

death.

On appeal, Spencer argues that the court’s response to the jury’s question

constituted reversible error. He makes three independent arguments to support his 

claim. First, he asserts that the robbery of Graber was factor (a) and not factor (b) 

evidence. Second, he claims that, even if the robbery was factor (b) evidence, the 

burglary may be considered as a mitigating circumstance under factor (j). Finally, 

he says that even if the court’s answer was technically correct, it was misleading, 

as the court should have instructed the jury that it could consider Spencer’s limited 

participation in robbery of Graber as a mitigating circumstance under factor (k), 

the catchall factor.

2. Analysis

Spencer’s claim on this issue is, at its core, a contention that the court 

“misled the jury into believing that Appellant Spencer’s relative culpability in the 

Gavilan Bottle Shop robbery was irrelevant.” We reject this contention.

On appeal, whether the trial court erred in instructing the jury is determined 

by examining “ ‘ “the entire record, including the instructions and arguments” ’ ” 

to see if “ ‘ “the jury was misled to the prejudice of the defendant.” ’ ” (Dykes, 

supra, 46 Cal.4th at p. 795.) The record persuades us that the trial court did not 

mislead jurors into believing that the nature of Spencer’s participation in the

incident at the Gavilan Bottle Shop, in which he acted as the getaway driver and 
59

got $70 for his participation, was irrelevant. As part of its instructions before the 

jury retired to deliberate, the court told jurors that they may consider “[a]ny other 

circumstance which extenuates the gravity of the crime . . . and any sympathetic or 

other aspect of the defendant’s character or record that the defendant offers as a 

basis for a sentence less than death.” Spencer thus already got what he contends 

was his due: an instruction that the jury should consider “any other circumstance” 

— which includes Spencer’s limited participation in the robbery of Graber — as a 

mitigating circumstance under factor (k), the catchall factor.

Nothing the court conveyed in answering the jury’s question affected this 

instruction. The jury asked the court about factor (j) — not factor (k) — and the 

court gave a responsive answer as to factor (j). Contrary to what Spencer asserts, 

the court was not required to reinstruct the jury as to other evidentiary limits, 

including the wide-ranging scope of factor (k). (People v. Burton (1989) 48 

Cal.3d 843, 866–867 [“The trial court responded to the jury’s question; it was not 

required to do more.”].) The court’s answer itself could not have misled the jury 

because the content of the response — strictly relating to factor (j) — posed no bar 

to the jury’s ability to take into account mitigating circumstances under factor (k). 

(See Burton, supra, 48 Cal.3d at p. 867 [concluding that “the jury could not have 

been misled concerning the relevant scope of mitigating evidence” when the trial 

court properly instructed it with regard to factor (k) prior to answering a question 

that arose during deliberation].)

In addition, Spencer is mistaken that the court’s characterization of the 

Graber robbery as factor (b) evidence precluded the jury from considering his

“relative culpability” in that crime. Although the presence of criminal activity 

other than the capital crime is an aggravating factor, how much the Graber robbery 

aggravated the circumstances of Madden’s murder is an evaluation the jury was 

free to make. The court specifically instructed the jury as such, stating that 
60

“[e]ach individual juror may weigh and consider each and all of the various factors 

and circumstances on which relevant evidence has been offered in this case, being 

free to assign whatever value he or she deems appropriate to each factor and 

circumstance.” The jury thus could have considered the fact that Spencer “only” 

acted as a getaway driver in deciding the weight to attach to this crime. Again, 

Spencer got what he wanted from the court’s instruction: the jury indeed was able

to consider his “level of participation in the prior crime when assessing how much 

weight to assign to the 190.3(b) evidence.”

The court’s answer to the jury’s question did not do violence to this 

instruction. The answer only informed jurors that they could not consider 

Spencer’s participation in the robbery when debating whether Spencer’s 

involvement in the murder was minor under factor (j). Pursuant to factor (j), the 

jury considers “[w]hether or not the defendant[’s] . . . participation in the 

commission of the offense was relatively minor.” (§ 190.3, subd. (j).) We agree 

with the People that the singular reference to “the offense” in a statutory provision 

governing the life or death decision in a capital crime refers only to the capital 

crime. (See People v. Keenan (1988) 46 Cal.3d 478, 513, fn. 15 [characterizing 

factor (j) as “minor participation in the capital offense”].) It does not refer to any 

other offense, including a robbery committed four days earlier, targeted at a 

different victim at a different location.

Finally, the court correctly instructed the jury that the Graber robbery was 

factor (b) evidence. We said as much in People v. Prince (2007) 40 Cal.4th 1179. 

There, in the same proceeding where he was tried for murder, the defendant was 

tried for multiple burglaries of homes belonging to persons other than the murder 

victims. (Id. at p. 1188.) Citing the same authority as Spencer here principally 

relies on, the defendant in Prince argued that “noncapital crimes of which a 

defendant was convicted in the same proceeding [as the capital crimes] never may 
61

be considered at the penalty phase as evidence in aggravation under section 190.3, 

factor (b).” (Id. at p. 1292.) We rejected the claim, finding that the robberies of 

those who were not murder victims were admissible under factor (b) and did not 

become otherwise merely “because of a joinder with capital offenses.” (Ibid.) 

Moreover, although the burglaries of the homes of the murder victims and those 

who escaped unharmed featured the same modus operandi (id. at pp. 1192–1193), 

we had no trouble concluding that burglaries of homes not belonging to the 

murder victims were factor (b) evidence in the penalty phase of the murders. We 

come to the same conclusion here.

I. Completeness of Appellate Record

1. Background

In addition to his claims about errors committed by the trial court, Spencer 

asserts that this court also erred by refusing to supplement his appellate record 

with his codefendants’ trial transcripts. The argument hinges on comments that 

the prosecution made in its closing statement in the penalty phase.6 The 

prosecutor there highlighted the fact that Spencer — by his own confession — was 

the first to stab Madden. In response to the various testimonies elicited by the 

defense that Spencer was a follower, not the leader, and the emphasis on the same 

theme during closing argument, the prosecutor stated, “remember, when he says 

follows the lead there was no stabbing before Mr. Spencer started it. Under Mr. 

Spencer’s version, in effect, John Travis and Danny Silveria followed his lead. He 

led the stabbing.”

 

6 Spencer also mentions that certain materials from his codefendants’ trial, 

e.g., prospective juror questionnaires, were reused at his trial. Such materials, 

however, contribute nothing to Spencer’s claim (discussed below) that the 

prosecution employed inconsistent theories in his trial and his codefendants’ trials.
62

Spencer’s trial counsel, James Mantell, objected. What he conveyed is that 

he thought it was “not permissible” that the prosecution should try to reduce 

Silveria and Travis “to the position of stooges for Chris Spencer.” In a sidebar, 

Mantell argued that during Silveria and Travis’s trial, “they were the principals 

and Mr. Spencer was absent.” “But more importantly,” said Mantell, “there is on 

the record of this case evidence . . . which establishes very clearly the tertiary 

position of Chris Spencer in the planning and plotting of this entire operation.” 

The prosecutor riposted that he was referring to evidence on the record of this 

case. The court dealt with the objection by directing counsel for both sides to 

“stick . . . to what was brought out during the course of this trial.” Following this 

instruction, the prosecutor argued to the jury: “Don’t speculate. Don’t guess. . . . 

Look to the evidence. And I submit that you’re not going to find the evidence that 

Mr. Mantell is talking about when he says that Chris Spencer was just following 

the lead. Chris Spencer acted. He made choices and he is fully accountable 

therefor. He admits finally being the initial stabber and then passing the five [sic]

on to others so that they could continue with the stabbing that he began.” Relying 

on these comments, Spencer now claims that the prosecution used inconsistent 

theories at his trial and his codefendants’ trials and so arguably violated his due 

process rights.

The nub of Spencer’s contention, however, is not about what happened at 

trial, but rather what transpired afterwards. After current counsel was appointed to 

represent Spencer on appeal, he petitioned this court for an order augmenting the 

appellate record to include the transcripts of Silveria and Travis’s trial. We denied 

the motion. Spencer argues that this was a prejudicial error requiring reversal, 

with prejudice stemming from the fact that the fees to which his counsel is entitled

depend on the length of the record. Had we supplemented the record, counsel 

could have obtained “up to an additional $30,000.” Without this money, counsel 
63

was “handicap[ped]” since “[w]hatever the quantum of work Spencer’s counsel 

could perform, properly contemplated [sic] counsel could do more.” “This 

deficit” of money, says counsel, “potentially affects each and every aspect of 

Spencer’s case in the post conviction arena.” Spencer also contends that his 

inconsistent theories claim must be raised on appeal, because had he “chosen to 

pursue it via habeas corpus . . . the result would have been waiver of the issue” 

under In re Dixon (1953) 41 Cal.2d 756 (Dixon). We find no merit in his 

arguments.

2. Analysis

Under Spencer’s theory, whenever an appellate record omits any 

information that a defendant claims should have been included, prejudice 

necessarily ensues because counsel is handicapped by the lack of fees that “should 

have been forthcoming.” Prejudice, as Spencer tells it, occurs “regardless of the 

length of the missing record because any additional uncompensated work creates a 

handicap relative to other counsel to that extent.”

Spencer’s argument proves too much. Even taking the argument at face 

value, we are unclear what “additional uncompensated work” counsel claims to 

have done, since he does not assert that he reviewed the transcripts of Spencer’s 

codefendants’ trial despite their not being included in the appellate record. We 

also note that it is very much uncertain whether counsel would have received any 

additional fees even if the record were supplemented in the manner he requested. 

As Spencer concedes, his counsel was already being compensated at the highest 

level under the fixed fee system. Additional fees thus would have been available 

only “[i]n extraordinary and unique situations.” (Supreme Ct. of Cal., Guidelines 

for Fixed Fee Appointments, on Optional Basis, to Automatic Appeals and 

Related Habeas Corpus Proceeding in the Cal. Supreme Ct., guideline 3 [“In 
64

extraordinary and unique situations, the Court will entertain requests for additional 

fees based on exceptional circumstances (e.g., circumstances that were 

unforeseeable at the time of the appointment of counsel on a fixed fee basis). In 

such situations, counsel shall have the burden of proof to justify any additional 

fees.”].) We see no hints from counsel’s briefing that Spencer’s case presented 

such “extraordinary,” “unique,” or “exceptional circumstances.” (Ibid.)

In any event, we are not persuaded the appellate record here is inadequate. 

A criminal defendant “bears the burden of demonstrating that the record is not 

adequate to permit meaningful appellate review.” (People v. Young (2005) 34 

Cal.4th 1149, 1170.) In this case, Spencer claims that the prosecutor argued 

inconsistent and irreconcilable theories at his and his codefendants’ trials — an 

issue he would have brought up on appeal had the record been augmented to 

include materials from his codefendants’ trial. But our precedent makes clear that 

such an inconsistent theories claim should be brought — not on appeal — but in a 

habeas corpus petition. (People v. Sakarias (2000) 22 Cal.4th 596, 635 (Sakarias) 

[“Where, as here, the asserted inconsistencies in prosecutorial theory were not the 

subject of any proceeding in the trial court and, hence, neither the inconsistencies 

nor any explanations the prosecutor may have been able to offer appear in the 

appellate record, any due process claim defendant can state should be ‘presented 

by petition for writ of habeas corpus rather than by appeal.’ ”]; People v. 

Waidla (2000) 22 Cal.4th 690, 743–744 [same]; People v. Moore (2011) 51 

Cal.4th 1104, 1143 [same].)

Spencer attempts to undermine this conclusion by arguing that his trial 

counsel objected during the prosecution’s closing statement, and so did make the 

“asserted inconsistencies in prosecutorial theory” the subject of proceeding at trial.

(Sakarias, supra, 22 Cal.4th at p. 635.) The objection, however, centered on what 

the evidence introduced in Spencer’s trial showed. While Spencer’s trial counsel 
65

alluded to what the prosecutor argued in Silveria and Travis’s trial, counsel agreed 

that what mattered was the evidence “on the record of this case” and did not 

otherwise seek to introduce the record of that separate trial into Spencer’s trial

proceeding. As the inconsistent theories claim was not litigated below, it cannot

be litigated on this direct appeal.

Finally, since the claim properly belongs in a habeas petition, it is not 

barred by Dixon’s “general rule” that a claim which “could have been” raised on 

appeal cannot wait for habeas proceeding. (Dixon, supra, 41 Cal.2d at p. 759.) 

Spencer may make his inconsistent theory claim on habeas corpus without fear of 

a Dixon bar and suffers no prejudice because of his appellate record.

J. Constitutionality of California’s Death Penalty Statute

Spencer asserts that several aspects of California’s death penalty statute 

violate the United States Constitution. As Spencer concedes, we have previously 

considered and rejected each of his claims. We decline his request to here 

reconsider our prior conclusions and continue to hold that section 190.2, which 

enumerates a number of special circumstances making a defendant eligible for the 

death penalty, is not impermissibly broad. (People v. Wall (2017) 3 Cal.5th 1048, 

1072.) Likewise, section 190.3, factor (a), in allowing the sentencer to consider 

the “ ‘circumstances of the crime’ ” in a determination of whether to impose the 

death penalty, is not unconstitutionally vague, arbitrary or capricious. (Clark, 

supra, 63 Cal.4th at p. 643.) Nor do the California or federal Constitutions require 

the prosecution to bear the burden of proof or persuasion at the penalty phase of a 

capital trial, or compel the jury to find beyond a reasonable doubt matters such as 

the veracity of aggravating factors. (Seumanu, supra, 61 Cal.4th at p. 1376.)

Because capital defendants and noncapital defendants are not similarly 

situated, California does not deny capital defendants equal protection by providing 
66

certain procedural protections to noncapital defendants but not to capital 

defendants. (People v. Johnson (2016) 62 Cal.4th 600, 657 (Johnson).) In 

particular, written findings by a jury recommending a death sentence are not 

required. (People v. Salazar (2016) 63 Cal.4th 214, 256.)

The absence of a requirement for the court to consider intercase 

proportionality does not violate the federal Constitution. (Clark, supra, 63 Cal.4th 

at p. 644.) Nor does the jury’s reliance on unadjudicated criminal activity as a 

factor in aggravation under section 190.3, factor (b), without unanimously 

agreeing on its existence beyond a reasonable doubt, deprive a defendant of any 

rights guaranteed by the federal Constitution, including the Sixth Amendment 

right to jury trial. (Clark, supra, 63 Cal.4th at p. 644.)

The use of restrictive adjectives, such as “extreme” and “substantial” in 

section 190.3’s list of potential mitigating factors, does not bar consideration of 

constitutionally relevant evidence. (Simon, supra, 1 Cal.5th at p. 150.) There is 

no constitutional requirement that the jury be instructed concerning which of the 

sentencing factors are aggravating, which are mitigating, and which could be 

either aggravating or mitigating. (Clark, supra, 63 Cal.4th at p. 644.) 

International law does not render the death penalty unconstitutional as applied in 

this state. (People v. Nguyen (2015) 61 Cal.4th 1015, 1092.) And Spencer 

advances no other persuasive basis for us to find California’s capital sentencing 

scheme unconstitutional as a whole. (Johnson, supra, 62 Cal.4th at pp. 657–658.)
67

III. DISPOSITION

Because we find no reversible error, we affirm the judgment in its entirety.

CUÉLLAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

KRUGER, J.

HILL, J.*

 

* Administrative Presiding Justice of the Court of Appeal, Fifth Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Spencer

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S057242

Date Filed: July 12, 2018

__________________________________________________________________________________

Court: Superior

County: Santa Clara

Judge: Hugh F. Mullin III

__________________________________________________________________________________

Counsel:

Emry J. Allen, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief 

Assistant Attorneys General, Alice B. Lustre and Arthur P. Beever, Deputy Attorneys General, for Plaintiff 

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

Emry J. Allen

5050 Laguna Boulevard, Suite 112

Elk Grove, CA 95758

(916) 691-4118

Arthur P. Beever

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102-7004

(415) 510-3761