1

Filed 7/7/11 

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S076175

v. )

)

ELOY LOY, )

) Los Angeles County

Defendant and Appellant. ) Super. Ct. No. NA 029308

____________________________________)

A jury convicted defendant Eloy Loy of the first degree murder of Monique 

Arroyo under the special circumstance of a murder committed while engaged in 

the commission of a lewd and lascivious act on a child under the age of 14. (Pen. 

Code, §§ 187, 190.2, subd. (a)(17).) After a penalty trial, the jury returned a 

verdict of death. The court denied the automatic motion to modify the verdict and 

sentenced defendant to death. (Pen. Code, § 190.4.) This appeal is automatic. 

(Pen. Code, § 1239, subd. (b).) We affirm the judgment.

I. THE FACTS

A. Guilt Phase

The evidence showed that during the night of May 8-9, 1996,1 defendant 

entered the bedroom of his 12-year-old niece, Monique Arroyo, while she was 

 

1 All dates are in the year 1996 unless otherwise indicated.
2

sleeping. He assaulted her sexually, killed her, and dumped her body in a nearby 

vacant lot, where it was discovered four days later.

1. Prosecution Evidence

On the afternoon of May 8, defendant went to the Wilmington home of his 

sister, Rosalina Arroyo, and her family. Rosalina‟s 12-year-old daughter, 

Monique Arroyo, also lived at that house. Monique shared an upstairs bedroom 

with her older sister, Josette. Previously, defendant had lived at that home for a 

while. At this time, however, he was residing with his brother and sister-in-law, 

Leonard and Maria Loy, who lived about five to 10 miles from the Arroyo home. 

Some of the witnesses testified that defendant had not been at the Arroyo house 

for several weeks before that day, and that he normally was not allowed to go 

upstairs.

That afternoon, a movie location manager arrived and spoke with Rosalina. 

The manager arranged to use the Arroyo house in a movie project. Monique was 

to have an opportunity to appear as an extra in the project. She arrived home from 

school around 2:45-3:00 p.m., and was excited about the movie opportunity.

Defendant helped Monique‟s brother, Jose Arroyo, Jr. (Jose), work on a 

sprinkler system in the front yard. When they finished, defendant and Jose went 

out drinking beer, using defendant‟s car, a red Cadillac. After various stops, 

including one where they put about one dollar‟s worth of gasoline in the tank, all 

they could afford at the time, they returned to the Arroyo home. Defendant parked 

his car on the street. Initially, Jose, who had become intoxicated, refused to get 

out of the car. Defendant pleaded, “Get out. I have to be at work at six o‟clock 

sharp.” Defendant repeatedly said he had to go to work at 6:00 a.m. Around this 

time, Jose saw his brother Gabriel. Defendant told Gabriel that Jose was drunk 

and asked for help getting Jose out of the car. Eventually, defendant, Jose, and 
3

Gabriel entered Jose‟s bedroom on the second floor. Normally, defendant was not 

permitted to go upstairs. By this time, Jose was “really drunk.” He lay down and 

asked Gabriel and defendant to leave his bedroom. It was around 11:45 p.m. 

They left and Jose fell asleep. To get downstairs from Jose‟s bedroom, one has to 

pass by Monique‟s bedroom.

Gabriel testified that he went downstairs to his bedroom and defendant 

went downstairs with him. He thought defendant was leaving the house by the 

front door, but he did not actually see him leave or hear a door close. Gabriel 

went to bed around midnight. He looked to see that the doors to the outside were 

closed. The lights were off in the house. Defendant‟s car was still in front. 

Gabriel did not hear it leave.

Josette spent that night at her boyfriend‟s house, so Monique was alone in 

her bedroom. Monique had occasionally locked her bedroom door, but she 

stopped doing so because of Josette‟s complaints. Around 10:00 p.m., Rosalina 

told Monique to go to bed. Jose Arroyo, Sr., Monique‟s father, testified that when 

he went to bed around 9:30 to 10:00 p.m., Monique was already asleep. Rosalina 

herself went to bed around 12:20 a.m., May 9. Before she did so, she twice 

checked on Monique, who was asleep in her bedroom. Monique‟s bedroom door 

was not locked. Rosalina testified that Monique was wearing blue shorts and what 

she described as a “tank top” or a “sweater.” Jose, Sr., described Monique‟s 

clothing as “jeans and a dark sweater or shirt.”

Around 1:00 a.m. that morning, Rosalina was awakened by a creak in the 

stairway that sounded like “footsteps coming up.” She “jumped up,” went to her 

door, and yelled out, “Joey [Jose], Gabe, is that you downstairs?” She listened by 

the door for about three minutes but heard nothing else. Thinking it might have 

been her imagination, she went back to sleep. The door to Monique‟s door was 

still closed.
4

The next morning, Monique was missing. Her father awoke around 5:30 

a.m. and, around 6:05 to 6:10 a.m., noticed that her bedroom door was open and 

that she was not in the room. He told Rosalina that Monique was not there but 

then went to work around 6:30. The side door to the house had an inner and an 

outer door. When Jose, Sr., left, the inner door was open and the outer door 

unlocked. Members of the Arroyo family looked for Monique but could not find 

her. Her brother Jose looked in her bedroom. He observed Monique‟s sheets on 

the floor in the middle of the bedroom, as if they had been thrown there. Later, 

Jose found in Monique‟s closet on the bottom of a pile of clothes the shirt that 

Rosalina testified Monique was wearing when she went to bed.

Josette arrived home around 7:20 that morning. She observed a sheet from 

Monique‟s bed on the driveway. She went upstairs, where Monique‟s alarm clock 

was going “full blast.” No sheets were on Monique‟s bed. Some were on the 

floor. That morning, Josette called the home where defendant was living. 

Defendant told her that he had gone straight home after leaving the Arroyo house 

the night before. Josette testified that she checked and determined that none of 

Monique‟s clothes or shoes were missing. There was no sign of a forced entry 

into the house.

On May 12, Monique‟s nude body was found in a vacant lot about one-half 

to three-fourths mile from the Arroyo home. The body was badly decomposed 

and covered with maggots. It had to be identified by dental records. When found, 

the body was covered by a comforter that had been on Monique‟s bed, identical to 

another comforter belonging to Josette. The comforter was not in Monique‟s 

room the morning she was discovered missing.

Leonard Loy, with whom defendant was living at this time, testified that the 

night before Monique was discovered missing, he went to bed around 11:30 p.m. 

Defendant was not home. Sometime later, Leonard got up and noticed that 
5

defendant was not home then either. Maria Loy testified that at 5:35 a.m. that 

morning, the alarm clock defendant used to wake up in the morning went off. She 

waited for someone to turn it off. When no one did so, she turned it off herself. 

Defendant was not home at the time, and his car was not parked in its usual spot. 

Maria went back to bed, reawakening shortly before 7:00 a.m. This time 

defendant was home.

Howard Wilson, who lived about two houses from where defendant was 

living at the time, testified that around 2:30 a.m. on May 9, he observed defendant 

driving his red Cadillac. Defendant looked at him and drove by very slowly. 

Defendant‟s car turned around and passed by a second time, then a third time. 

Then Wilson observed defendant walking away from his house.

Dr. Lisa Scheinin performed the autopsy. In her opinion, the cause of death 

was “asphyxia due to compression of the face and/or the neck and/or the body.” 

She testified that asphyxia is “the most common sex-associated way of killing 

people.” Visually, Dr. Scheinin did not observe any obvious signs of injury to the 

genitalia, but an injury could not be ruled out because the body was badly 

decomposed. Microscopically, she found bleeding in various areas of the vagina, 

which was consistent with sexual penetration. No semen was found on the body 

or the comforter covering it, but that did not rule out sexual activity.

A criminalist compared fibers taken from the comforter that had covered 

Monique‟s body with fibers from the carpet in defendant‟s car. Twenty fibers 

from the comforter were similar to carpet fibers from the car “in microscopic 

characteristics and fiber type, the color, and color variation being the fading of the 

carpet.”

A small bloodstain was found on the inside of the trunk lid of defendant‟s 

car. Erin Riley, a serologist, performed deoxyribonucleic acid (DNA) analysis of 

the bloodstain, using the polymerase chain reaction method. She determined that 
6

the bloodstain could have been Monique‟s blood but not defendant‟s. One person 

in about 125,000 would match that blood‟s DNA profile. Blood found on the 

comforter was consistent with Monique‟s blood. The comforter also contained 

faint DNA markers consistent with defendant‟s DNA. Defendant‟s left palm print 

was found on the outside portion of the doorframe of Monique‟s bedroom.

David Faulkner, an entomologist, examined maggots collected from the 

body. Based on the development of the maggots, he could estimate how long they 

had been associated with the body. In his opinion, they had been associated with 

the body between 3.5 and 3.7 days, meaning that they were deposited on the body 

sometime between around 10:00 a.m. to 2:00 p.m. on May 9. Because most 

insects do not fly at night, the body could have been left in that location the 

previous night.

Several family members testified about the strained relationship between 

defendant and Monique. Maria Loy, defendant‟s sister-in-law, testified that about 

a month before Monique was discovered missing, defendant spoke with her 

concerning Monique. He was upset about comments Monique had made about 

him and told Maria, “But you just wait and see. That little brat, I‟ll get to her. I 

don‟t know how, but I‟ll get to her.”

Sara Minor, Monique‟s friend, testified that she called Monique on the 

telephone about a week before she disappeared. Monique said she was afraid of 

her uncle Eloy because he would “make weird looks at her and sneak up to her 

room and touch her . . . chest and . . . grab her crotch.” Monique told Sara not to 

tell anyone. When she was saying this, Monique “was crying, but not heavily. 

You could just hear her holding back tears.”

The prosecution presented evidence that in 1975 and again in 1981, 

defendant was convicted of rape, oral copulation, and sodomy. Both victims 

testified about the crimes. Ramona M. testified that in March 1975, when she was 
7

16 years old, she entered defendant‟s car. After driving a while, he stopped, 

locked the car doors, and proceeded to rape and sodomize her and force her to 

orally copulate him. In the process, he bit her, hit her, kicked her, and choked her 

with his hand around the front part of her neck. She suffered various injuries. 

L.S. testified that in November 1980, when she was 32 years old, she went with 

defendant to his apartment. There, he raped and sodomized her and forced her to 

orally copulate him. He hit and kicked her and choked her with his hand around 

the front part of her neck. She suffered broken ribs. 

2. Defense Evidence

Defendant presented his case both by cross-examining prosecution 

witnesses and by calling his own witnesses. The defense theory of the case was 

that defendant had nothing to do with Monique‟s death. Defendant was taken into 

custody in this matter sometime before 1:00 p.m. on May 9. Defense counsel 

suggested that Monique might have run away from home the night of May 8-9 and 

been killed sometime later, after defendant was in custody.

Defendant presented evidence that did not implicate him in the crime. Hair 

from the comforter and other items did not match defendant‟s hair. Two pubic 

hairs from the comforter did not match either Monique‟s or defendant‟s hair. No 

seminal fluid was found on any of the items of evidence. Tire tracks and shoe 

prints from the scene where the body was found, including shoe prints on the 

comforter, and metal scrapings from a nearby fence did not match some of 

defendant‟s shoes or his car. Defendant‟s fingerprints were not found inside 

Monique‟s bedroom. Other than the bloodstain inside the trunk of defendant‟s car, 

no evidence was found on the car or in Monique‟s bedroom connecting defendant 

to the crime. Certain foam samples taken from defendant‟s car did not match 

foam samples taken from the comforter.
8

Kathleen Ledesma, who had called the police to the scene where the body 

was found, testified that the vacant lot was not readily accessible due to a high 

fence surrounding it. She said that when the police arrived, they cut through the 

fence to gain access to the body. A mechanic testified that defendant‟s car 

contained only about a gallon of gasoline. It would get around 10-12 miles per 

gallon. Peter Barton, who owned a business near the vacant lot where the body 

was found, testified that over the weekend of May 11 to 12, he saw an “odd car” in 

the area. Other people were also in the area during this time. Barton noticed no 

unusual smells that weekend. After the body was found, but not before, he 

smelled the “smell of death” in the area.

Defendant presented evidence of prior statements of Jose and Gabriel 

Arroyo. Gabriel had told the police that “he believed [defendant] had exited the 

front door” the night Monique disappeared.

After Monique was discovered missing, her family showed members of the 

public a photograph of her. Two witnesses testified that they saw a girl who 

looked like, or could have been, the girl in that photograph — one at a minimart 

after midnight the night of May 8-9, and one at a Burger King around 6:00 to 6:30 

p.m., May 9.

Dr. Sharon Van Meter reviewed the autopsy report. In her opinion, the 

body was so badly decomposed that the cause of death could not be determined. 

She also believed the body contained no physical evidence of a sexual assault.

Defendant elicited testimony on cross-examination of Riley, the serologist, 

that she tested the bloodstain from defendant‟s car trunk for seven DNA markers. 

Monique‟s blood matched six of the markers. However, because the sample of 

Monique‟s blood was degraded, Riley could not confirm that her blood matched 

the seventh marker. Deleting that marker from the calculation reduced the odds of 

a random person other than Monique matching that blood sample to one person in 
9

5,100. Additionally, Riley testified that the odds “would be lower in related 

people.” She did not test the blood of Monique‟s relatives.

Sara Minor, Monique‟s friend, testified on cross-examination about other 

statements Monique had made to her in other conversations. Monique said some 

older boys, around 18 or 19 years old, often came to her house late at night trying 

to get her to come out of the house. 

Leonard Loy testified on cross-examination that defendant occasionally 

would sleep in his car, and that he was required to go outside to smoke.

Defendant also presented evidence concerning the collecting of the maggot 

samples that David Faulkner examined.

3. Other Evidence

On rebuttal, a police officer testified that a gap between two fence poles 

permitted access by foot onto the lot where the body was found. Another 

pathologist reviewed the autopsy report and disagreed with some of Dr. Van 

Meter‟s conclusions. Kathleen Ledesma testified that she had smelled an odor in 

the area for about three days before the body was found.

On surrebuttal, defendant elicited a stipulation that Ledesma had told the 

police that she had noticed a strange smell on May 11, but thought nothing of it.

B. Penalty Phase

1. Prosecution Evidence

Monique‟s parents testified about Monique‟s life and the impact her 

disappearance and death had on them and the rest of her family.

Gloria M., Ramona M.‟s sister, testified further about the 1975 incident in 

which defendant sexually assaulted Ramona. When Ramona did not return from 

her drive with defendant, the 19-year-old Gloria went out looking for her. At one 

point, defendant drove beside her and asked her to enter his car, saying, “You need 
10

to get in because if not, you‟re never gonna see your sister again.” When she 

entered the car, defendant drove her to a field, then told her she would not see her 

sister again because he had killed her. He tried to grab her, but she “opened the 

door and . . . rolled out of the car.” She got up and ran. Defendant drove towards 

her and tried to entice her back into the car, but she managed to escape.

The prosecution presented evidence that defendant was convicted of 

attempted burglary in 1972.

2. Defense Evidence

One of defendant‟s brothers, Leonard Loy, two of his sisters, Beatrice 

Montiel and Angela Hernandez, and a niece, Crita Stiles (Angela Hernandez‟s 

daughter), testified about defendant‟s troubled life, his prison history, his good 

qualities, and their positive feelings about him.

Yolanda Cabrera, defendant‟s friend and one of the persons defendant and 

Jose visited when they went drinking the night Monique disappeared, testified that 

defendant came to her home around 11:30 p.m. that evening. It appeared he “had 

had a little to drink.” He asked if he and his nephew could come in. She objected 

because it was late and he had been drinking. He apologized and left. About a 

half-hour later, defendant called her on the telephone and apologized again.

Anthony Casas, a former associate warden at San Quentin State Prison, 

testified regarding prison conditions and prison gangs. Once, while an associate 

warden at the California Men‟s Colony in San Luis Obispo, he made a movie 

about prison gangs that was intended to discourage inmates from joining them. 

Defendant, an inmate at the prison at the time, volunteered to participate. He was 

chosen to play the “main protagonist” because he appeared vulnerable. Defendant 

and the other inmates in the film did an “outstanding job” despite the difficulties 

and dangers inherent in the project.
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II. DISCUSSION

A. Comments to Prospective Jurors During Jury Selection

During jury selection, the prosecutor asked the court to explain the nature 

of the penalty phase to the prospective jurors. She was concerned that the juror 

questionnaires contained questions regarding the death penalty. She explained, “A 

lot of times they answer the questions without a real basis or understanding of the 

system. And, then, we like to lock them in and we‟re unforgiving.” The court 

asked the parties to try to agree informally on what it should tell the prospective 

jury members.

Later, the court explained the basic nature of the trial to the first panel of 

prospective jurors. It said that if, and only if, the jury found defendant guilty of 

murder with special circumstances, the trial would go to a penalty phase. It told 

the jury it would “tell you a little bit about the death penalty history of it just so 

you understand. Because some of you probably read a lot about it, talked about it, 

some of you haven‟t at all, and some of you may be a little of this here and there.” 

It then discussed the recent history of the death penalty in California. It said that a 

prior law had been invalidated, and that some people “no longer had the death 

penalty.” It then explained that the 1978 law “was tested, and it took a number of 

years for testing, to go up and down the appellate ladder, California Supreme 

Court, U.S. Supreme Court, and so forth, and [was] found constitutional. [¶] So a 

number of people have been convicted under that new law, and there are a number 

of people on death row in California right now, as well as other states in the 

United States.”

The court explained that if the case went to a penalty phase, “there are just 

two options for the jury to choose, death penalty or life without possibility of 

parole. You are instructed now that those two sentences and what I just said are 
12

meaningful and that‟s what they mean. That‟s what the person would get. [¶] 

The reason I said that is that some people have different ideas of what happens and 

when it happens. It‟s true that sometimes people have their appeals going for a 

long period of time; but you also know that it‟s also true that after those appeals, 

certain things have happened in California and around the United States on this 

issue insofar as executions being carried out.” The court also explained that “in a 

capital case the difference between that and another case which isn‟t a capital case 

is that the jury decides death penalty or life without possibility of parole if the 

defendant is convicted. [¶] . . . [¶] You would consider everything that you are 

entitled to consider, and you would be told what you can consider at the end of the 

case. And then you would make your decision based upon the additional 

information that was submitted to you.”

The court made comparable comments to the second and final panel of 

prospective jurors.

Defendant contends that these comments violated the rule “that it is 

constitutionally impermissible to rest a death sentence on a determination made by 

a sentencer who has been led to believe that the responsibility for determining the 

appropriateness of the defendant‟s death rests elsewhere.” (Caldwell v. 

Mississippi (1985) 472 U.S. 320, 328-329.) Although he did not object to the 

comments at trial, the contention is cognizable because the trial predated the 

finality of our decision in People v. Cleveland (2004) 32 Cal.4th 704, 762. (See 

People v. Moon (2005) 37 Cal.4th 1, 17-18.) The contention, however, lacks 

merit.

Defendant claims the court‟s statement that the prior death penalty had been 

invalidated and a number of people “no longer had the death penalty” reduced the 

jury‟s sense of responsibility. We disagree. The court also stated unequivocally 

that the current death penalty law had been held valid. Defendant also challenges 
13

the court‟s reference to the appellate process. Although mention of the appellate 

process is usually unnecessary and inadvisable, it is generally known that there is 

an appeal from a judgment of death. “Certainly the mere mention of the appellate 

process, while ill-advised, does not — standing alone — necessarily constitute 

reversible Caldwell error.” (People v. Moon, supra, 37 Cal.4th at p. 18.)

In deciding whether Caldwell error occurred, we do not consider the 

challenged statements in isolation but in the context in which they occurred. 

(People v. Hinton (2006) 37 Cal.4th 839, 905.) Moreover, “Caldwell is relevant 

only to certain types of comment — those that mislead the jury as to its role in the 

sentencing process in a way that allows the jury to feel less responsible than it 

should for the sentencing decision.” (Darden v. Wainwright (1986) 477 U.S. 168, 

183, fn. 15; see People v. Harris (2005) 37 Cal.4th 310, 356.)

Viewing the comments in context, they did not mislead the jury or diminish 

its sense of responsibility. They were made during jury selection to explain the 

basic process to prospective jurors, not during the penalty phase itself when the 

jury‟s sentencing responsibility was the main focus. (People v. Morris (1991) 53 

Cal.3d 152, 182.) At the penalty phase, the court instructed the jury that it “should 

assume in your deliberations and decision that life without possibility of parole 

means the defendant will be in prison for the rest of his life, and the death sentence 

means the defendant would be executed”; and that “[i]t will be your duty to 

determine which of the two penalties, death or confinement in the state prison for 

life without possibility of parole, should be imposed on the defendant.” These 

instructions made clear it was the jury’s responsibility to determine the appropriate 

sentence. We see no reasonable likelihood the court‟s mention of appellate review 

during jury selection reduced the jury‟s sense of responsibility for its verdict. 

(People v. Hinton, supra, 37 Cal.4th at p. 906; People v. Mendoza (2000) 24 

Cal.4th 130, 186-187.)
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B. Admission of “Other Crimes” Evidence

Before trial began, the prosecutor moved to admit under Evidence Code 

section 1108 (section 1108) evidence of defendant‟s sexual assaults on Ramona 

M. and L.S. Defendant filed an opposition and the prosecutor a reply to that 

opposition. The matter was heard at trial. After hearing argument, the court 

admitted the evidence. It found that the evidence would not “mislead the jury,” 

“confuse the issues,” or “necessitate undue consumption of time,” and that it was 

not unduly prejudicial.

Thereafter, Ramona M. and L.S. testified about the sexual assaults. Before 

they testified, and again at the end of the guilt phase, the court instructed the jury 

on the use it could make of this evidence. (See pt. II. E., post.)

Defendant contends the court erred in admitting the evidence. We disagree.

Section 1108, enacted in 1995, provides in subdivision (a), “In a criminal 

action in which the defendant is accused of a sexual offense, evidence of the 

defendant‟s commission of another sexual offense or offenses is not made 

inadmissible by [Evidence Code] Section 1101, if the evidence is not inadmissible 

pursuant to Section 352.” (See generally People v. Falsetta (1999) 21 Cal.4th 

903.) Defendant does not dispute that section 1108 applies to this case. The prior 

assaults, both involving rape, sodomy, and oral copulation, were clearly sexual 

offenses. Moreover, defendant was charged with murder during the commission 

of a lewd and lascivious act on a child under the age of 14. Section 1108, 

subdivision (d)(1), defines “sexual offense” as including a crime that involves any 

conduct proscribed by Penal Code section 288, the statute that proscribes a lewd 

and lascivious act on a child under the age of 14. Hence, defendant was accused 

of a sexual offense under section 1108. (See People v. Story (2009) 45 Cal.4th 

1282, 1290-1291.) 
15

Defendant contends, however, that section 1108 is unconstitutional. We 

found it constitutional in People v. Falsetta, supra, 21 Cal.4th at pages 910-922. 

Defendant asks us to reconsider this decision but provides no good reason to do 

so. Indeed, the Ninth Circuit Court of Appeals has since held constitutional a 

similar federal rule. (U.S. v. LeMay (9th Cir. 2001) 260 F.3d 1018, 1024-1027 

[upholding Fed. Rules Evid., rule 414, 28 U.S.C.]) We adhere to Falsetta.

Defendant also contends the court erred by not excluding the evidence 

under Evidence Code section 352, which gives the trial court discretion to exclude 

evidence if its probative value is substantially outweighed by the probability that 

its admission will necessitate undue time consumption or create substantial danger 

of undue prejudice, confusing the issues, or misleading the jury. In exercising this 

discretion as to a sexual offense, “trial judges must consider such factors as its 

nature, relevance, and possible remoteness, the degree of certainty of its 

commission and the likelihood of confusing, misleading, or distracting the jurors 

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

impact on the jurors, the burden on the defendant in defending against the 

uncharged offense, and the availability of less prejudicial alternatives to its 

outright admission, such as admitting some but not all of the defendant‟s other sex 

offenses, or excluding irrelevant though inflammatory details surrounding the 

offense.” (People v. Falsetta, supra, 21 Cal.4th at p. 917.) The court‟s ruling 

under section 1108 is subject to review for abuse of discretion. (People v. Story, 

supra, 45 Cal.4th at p. 1295.) We see no abuse of discretion. Indeed, little reason 

existed to exclude the evidence.

Defendant had been convicted of both previous assaults, which strongly 

supports their admission. His commission of those crimes had already been 

established and was thus certain, and defendant bore no new burden of defending 

against the charge. The jury would not be tempted to convict him of the charged 
16

crime to punish him for the earlier crimes. (People v. Balcom (1994) 7 Cal.4th 

414, 427.) Additionally, the convictions meant there was little danger of 

confusing the issues or requiring an inefficient mini-trial to determine defendant‟s 

guilt of the previous crimes. (See People v. Falsetta, supra, 21 Cal.4th at p. 916.) 

The evidence was presented quickly, with only the victim of each assault 

testifying. Indeed, the prosecution presented additional evidence regarding one of 

the assaults only at the penalty phase.

Defendant argues that admission of the evidence distracted the jurors from 

their main inquiry. We disagree. The Legislature has determined that this 

evidence is “ „particularly probative‟ ” in sex cases. (People v. Story, supra, 45 

Cal.4th at p. 1293.) The main inquiries in this case were whether defendant was 

the person who killed Monique, and whether he did so while committing a lewd 

and lascivious act. Rather than distracting the jury, this evidence assisted it in 

these inquiries. “The central issue in these cases commonly involves not just 

whether the conduct took place as the victim described it, but whether the 

defendant was the one who perpetrated it. Section 1108 assists the jury‟s task by 

allowing the accused‟s sexual misconduct history to be considered for whatever 

light it might shed on these issues, including a defendant‟s claim of mistaken 

identity.” (People v. Britt (2002) 104 Cal.App.4th 500, 506.) Here, Monique, the 

victim, was unable to describe the conduct that lead to her death. But, if anything, 

this circumstance makes the evidence all the more necessary. “The necessity for 

admitting this particularly probative evidence that exists when the alleged victim‟s 

credibility might be questioned can be no greater than the necessity that exists 

when the victim was killed and thus cannot even tell her story.” (People v. Story, 

supra, at p. 1293.)

Defendant argues the evidence was substantially more prejudicial than 

probative, thus compelling its exclusion. The trial court acted within its discretion 
17

in concluding otherwise. Evidence of previous criminal history inevitably has 

some prejudicial effect. But under section 1108, this circumstance alone is no 

reason to exclude it. “[S]ection 1108 affects the practical operation of [Evidence 

Code] section 352 balancing „ “because admission and consideration of evidence 

of other sexual offenses to show character or disposition would be no longer 

treated as intrinsically prejudicial or impermissible. Hence, evidence offered 

under [section] 1108 could not be excluded on the basis of [section] 352 unless 

„the probability that its admission will . . . create substantial danger of undue 

prejudice‟ . . . substantially outweighed its probative value concerning the 

defendant‟s disposition to commit the sexual offense or offenses with which he is 

charged and other matters relevant to the determination of the charge. As with 

other forms of relevant evidence that are not subject to any exclusionary principle, 

the presumption will be in favor of admission.” ‟ (Historical Note, 29B pt. 3, 

West‟s Ann. Evid. Code [(1998 pocket supp.)] foll. § 1108, p. 31.)” (People v. 

Soto (1998) 64 Cal.App.4th 966, 984, italics added.)

Nothing about the evidence here required the trial court to find the 

presumption in favor of admissibility had been overcome. The facts of the 

previous offenses, although unpleasant, were not particularly inflammatory 

compared to the horrendous crime of this case. The evidence was presented 

quickly and without irrelevant detail. Judging from the dates alone, the 1975 and 

1981 crimes were somewhat remote from the charged 1996 crime, a factor that, 

although not itself dispositive, would normally weigh against admission. But 

defendant had been in prison, and thus had little or no opportunity to commit 

sexual crimes, for much of the time between the 1975 and 1981 crimes, and again 

between the 1981 crimes and the charged crime. Thus, the timing of the crimes 

provided no reason to exclude them.
18

Defendant cites the trial court‟s exercise of discretion in excluding other 

evidence the prosecutor had proffered as a reason why it also had to exclude this 

evidence. The prosecution had sought to admit evidence that defendant sometimes 

flirted with women much younger than he, although older than Monique was when 

she died. After a hearing, the court excluded the evidence, finding it more 

prejudicial than probative. Nothing about the court‟s exclusion of evidence of 

flirting compelled it to exclude evidence of sexual offenses under section 1108. 

Rather than being inconsistent, the court‟s rulings show it carefully exercised its 

discretion.

Defendant claims the court had to exclude evidence of the previous crimes 

because “they bore no similarity to the capital case.” Even if true, this 

circumstance, although relevant to the trial court‟s exercise of discretion, is not 

dispositive. Before section 1108 was enacted, Evidence Code section 1101 

governed the admission of prior criminal conduct, and a body of law developed 

concerning how similar the prior conduct had to be to the charged crime; the 

required degree of similarity varied depending on the use for which the evidence 

was offered. (See generally People v. Ewoldt (1994) 7 Cal.4th 380.) “All of that 

radically changed with respect to sex crime prosecutions with the advent of section 

1108. . . . [S]ection 1108 now „permit[s] the jury in sex offense . . . cases to 

consider evidence of prior offenses for any relevant purpose‟ (People v. James 

(2000) 81 Cal.App.4th 1343, 1353, fn. 7, italics added), subject only to the 

prejudicial effect versus probative value weighing process required by [Evidence 

Code] section 352.” (People v. Britt, supra, 104 Cal.App.4th at p. 505.) “In 

enacting Evidence Code section 1108, the Legislature decided evidence of 

uncharged sexual offenses is so uniquely probative in sex crimes prosecutions it is 

presumed admissible without regard to the limitations of Evidence Code section 

1101.” (People v. Yovanov (1999) 69 Cal.App.4th 392, 405.) Or, as another court 
19

put it, “[t]he charged and uncharged crimes need not be sufficiently similar that 

evidence of the latter would be admissible under Evidence Code section 1101, 

otherwise Evidence Code section 1108 would serve no purpose. It is enough the 

charged and uncharged offenses are sex offenses as defined in section 1108.” 

(People v. Frazier (2001) 89 Cal.App.4th 30, 40-41.)

Although the previous sexual offenses may not have been sufficiently 

similar to be admissible under Evidence Code section 1101, they were not entirely 

dissimilar. Ramona M. was only four years older when defendant assaulted her 

than Monique was when she died. Defendant choked both of his previous victims. 

Because Monique‟s body decomposed in a vacant lot for several days, exactly 

how she was sexually assaulted and how she died could not be determined 

forensically. But it appears she died by asphyxiation which, Dr. Scheinin testified, 

is the most common means of killing in cases of sexual assault. Thus, evidence of 

the choking was highly relevant, weighing in favor of admission.

Defendant complains the evidence bolstered an otherwise weak prosecution 

case. We disagree that the prosecution case was weak. The overall evidence of 

guilt was reasonably strong. But even if defendant were correct, the argument 

would not aid him. The supposed weakness of the rest of the case would be 

relevant to the question of prejudice if there were error, but it provides no reason 

to exclude this particularly probative evidence. Evidence of previous sexual 

offenses is relevant on the question of identity. (People v. Britt, supra, 104 

Cal.App.4th at p. 506.) This remains true whatever the strength of the rest of the 

evidence.

Defendant relies heavily on two decisions. In one, People v. Abilez (2007) 

41 Cal.4th 472, 501-502, we found no abuse of discretion in the trial court‟s 

exclusion of certain evidence under section 1108. That decision does not aid 

defendant. Because of the “broad discretion” trial courts have under section 1108 
20

(People v. Falsetta, supra, 21 Cal.4th at p. 919), a finding of no abuse of 

discretion in one court‟s exclusion of evidence has no bearing on whether a 

different court abused its discretion in admitting evidence in a different trial.

Defendant also cites People v. Harris (1998) 60 Cal.App.4th 727, where 

the Court of Appeal found an abuse of discretion in admitting evidence under 

section 1108. But Harris‟s facts were entirely different from those here. There, 

the prior offense was forcible and the evidence of it was “inflammatory in the 

extreme.” (Id. at p. 738.) The charged sexual offenses were, by contrast, not 

forcible but involved breaches of trust. Thus the charged offenses were “of a 

significantly different nature and quality than the violent and perverse attack on a 

stranger that was described to the jury.” (Ibid.) Moreover, “[t]he facts of the prior 

conduct were redacted to a point that the jury must have come away with a 

misleading impression of what happened . . . .” (Id. at p. 733.) The prior offense 

occurred 23 years before the charged offenses, a factor the Court of Appeal found 

weighed in favor of exclusion. (Id. at p. 739.) Those circumstances do not exist 

here. Nothing in Harris compels the conclusion that the court abused its 

discretion in admitting the evidence here.

C. Admission of Victim’s Statement

Defendant contends the court erred in admitting Sara Minor‟s testimony 

that Monique told her approximately one week before she disappeared about 

defendant‟s touching her. Defendant objected to the testimony on hearsay grounds 

and under Evidence Code section 352, and the court held a hearing outside the 

jury‟s presence. The prosecutor made an offer of proof and argued the testimony 

was admissible as a spontaneous statement under Evidence Code section 1240 and 

as a fresh complaint. After reviewing the case law, the court admitted the 

evidence. At defendant‟s request, it also ruled that if the prosecutor admitted the 
21

statements concerning defendant, defendant could elicit other statements Monique 

had made to Sara regarding older boys coming to the house. Defendant did elicit 

those statements.

The Attorney General argues, as did the prosecutor at trial, that the 

statement was admissible both as a spontaneous statement under Evidence Code 

section 1240 and under the fresh complaint doctrine as discussed in People v. 

Brown (1994) 8 Cal.4th 746. The second of these arguments clearly lacks merit. 

Brown held that evidence of a fresh complaint can sometimes be admitted for a 

relevant nonhearsay purpose. (Id. at pp. 749-750.) It is not readily apparent what 

relevant nonhearsay purpose for the statement existed here. In any event, Sara‟s 

testimony was not admitted for a nonhearsay purpose, but for the truth of the 

matter asserted — to show that what Monique described actually occurred. The 

court so instructed the jury.2 To be admissible for its truth, the statement must 

come within an exception to the hearsay rule. (People v. Brown, supra, at p. 749, 

fn. 1.) The only exception that may apply here is that for spontaneous statements.

Evidence Code section 1240 excepts from the hearsay rule a statement that 

“(a) Purports to narrate, describe, or explain an act, condition, or event perceived 

by the declarant; and [¶] (b) Was made spontaneously while the declarant was 

under the stress of excitement caused by such perception.” Monique‟s statements 

concerning defendant clearly satisfied requirement (a). They described events that 

 

2 The court instructed: “Evidence has been introduced for the purpose of 

showing [a] lewd or lascivious act between the defendant and the alleged victim 

on another occasion other than that charged in the case. [¶] If you believe this 

evidence, you may use it for the limited purpose only of tending to show the 

defendant‟s lewd disposition or intent towards the child. You must not consider 

the evidence for any other purpose.” (Italics added; see CALJIC No. 10.43.)
22

she perceived. Defendant contends, however, that requirement (b) was not 

satisfied because the statements were not spontaneous.

To be admitted under this exception, “ „ “(1) there must be some occurrence 

startling enough to produce . . . nervous excitement and render the utterance 

spontaneous and unreflecting; (2) the utterance must have been before there has 

been time to contrive and misrepresent, i.e., while the nervous excitement may be 

supposed still to dominate and the reflective powers to be yet in abeyance; and (3) 

the utterance must relate to the circumstance of the occurrence preceding it.” ‟ 

[Citations.] We review the trial court‟s ruling admitting statements as spontaneous 

for abuse of discretion.” (People v. Lynch (2010) 50 Cal.4th 693, 751-752.)

The second of these requirements is the one most at issue here. Some time 

had elapsed between the act Monique described and Sara‟s telephone call, 

although how much is not known. It is not clear that Monique‟s reflective powers 

were still in abeyance and that she had no time to contrive or misrepresent. (See 

People v. Gutierrez (2009) 45 Cal.4th 789, 808-812.) Rather than decide this 

difficult question, we will assume the court erred in admitting Sara‟s testimony.

Defendant contends the error also violated his right to confront witnesses 

under the Sixth Amendment to the United States Constitution. Although he did 

not specifically invoke the federal Constitution at trial, he may raise this 

contention on appeal to the extent he argues that the erroneous overruling of the 

objection actually made also had the consequence of violating his federal 

confrontation rights. (People v. Gutierrez, supra, 45 Cal.4th at p. 809.)3 But the 

contention lacks merit.

 

3 In People v. Redd (2010) 48 Cal.4th 691, 730, we held that an objection on 

the ground of lack of foundation for a hearsay exception did not preserve an 

argument that admitting the evidence violated the defendant‟s Sixth Amendment 

(footnote continued on next page)
23

“Not all erroneous admissions of hearsay violate the confrontation 

clause. . . . Only the admission of testimonial hearsay statements violates the 

confrontation clause . . . .” (People v. Gutierrez, supra, 45 Cal.4th at p. 812, 

italics added; see also Michigan v. Bryant (2011) 562 U.S. __, __ [131 S.Ct. 1143, 

1153].) We held in Gutierrez that the statement in that case was not testimonial. 

“The court [in Crawford v. Washington (2004) 541 U.S. 36] explained that the 

confrontation clause addressed the specific concern of „[a]n accuser who makes a 

formal statement to government officers‟ because that person „bears testimony in a 

sense that a person who makes a casual remark to an acquaintance does not.‟ (Id. 

at p. 51.) The statement of a three-year-old declarant made to his aunt is more like 

a „casual remark to an acquaintance‟ and is therefore not a testimonial statement 

under Crawford. (See People v. Griffin (2004) 33 Cal.4th 536, 579, fn. 19 [out-ofcourt statement made to a friend at school does not constitute „testimonial hearsay‟ 

under Crawford].) Thus, admission of the child‟s hearsay statement did not 

violate defendant‟s Sixth Amendment right to confront witnesses.” (People v. 

Gutierrez, supra, at pp. 812-813.)

The same is true here. Monique‟s statement to Sara was not testimonial for 

these purposes. (See also Michigan v. Bryant, supra, 562 U.S. __ [131 S.Ct. 1143] 

[statements of mortally wounded shooting victim to police not testimonial for 

 

(footnote continued from previous page)

confrontation rights. That holding is consistent with our holding here. In Redd, 

we found no error in overruling the objection actually made. We additionally held 

that the defendant could not argue the evidence should have been excluded for a 

reason not asserted below, i.e., that the evidence should have been excluded due to 

the confrontation clause. Here, we have found the court did err in overruling the 

objection actually made. Accordingly, defendant may argue that the error also had 

the consequence of violating his federal confrontation rights.
24

confrontation clause purposes].) Admitting the statement did not violate 

defendant‟s right to confront witnesses.

Because there was no federal constitutional error, we analyze state law 

error “under the test articulated in People v. Watson (1956) 46 Cal.2d 818, 836 to 

„evaluate whether “it is reasonably probable that a result more favorable to 

[defendant] would have been reached in the absence of the error.” ‟ ” (People v. 

Gutierrez, supra, 45 Cal.4th at p. 813.) We conclude the assumed error was 

harmless under this test.

Sara‟s testimony was a small part of the prosecution case. Aside from her 

testimony, much evidence placed defendant inside the Arroyo house the very night 

Monique disappeared. He had a false alibi — his statement to Josette that he went 

straight home after leaving the Arroyo house — and a motive — his bad 

relationship with Monique and his threat, expressed to Maria Loy, that he would 

“get to her.” Other evidence strongly connected defendant to the murder. 

Additionally, the court instructed the jury that it could consider the evidence only 

as tending to show defendant‟s lewd disposition or intent towards Monique. But 

the properly admitted evidence clearly showed that whoever committed the 

murder, and especially if it was defendant, did so with a lewd and lascivious 

intent. The body was found nude in a vacant lot. Defendant‟s history of sexual 

assaults shows his lewd and lascivious intent far more strongly than Sara‟s rather 

vague testimony.

Moreover, if Sara‟s testimony for the prosecution was not admissible, the 

testimony defendant elicited from her concerning boys coming to Monique‟s 

house at night trying to get her to come out would also not have been admissible. 

If anything, the evidence of spontaneity was even weaker for the statements 

defendant elicited. But Sara‟s testimony was the only evidence defendant could 

point to that suggested a reason Monique would have left the house of her own 
25

accord the night she disappeared, which was defendant‟s theory of the case. Had 

Sara not testified, the defense case would have been even weaker than it was. 

Thus, it is not clear which side Sara‟s testimony helped the most. For all of these 

reasons, it is not reasonably probable the result would have been different had Sara 

not testified at all.

D. Admission of Expert Testimony

David Faulkner, the entomologist, testified as an expert regarding how long 

the maggots collected from Monique‟s body had been associated with the body. 

He testified (1) they had been associated with the body for about between 3.5 and 

3.7 days, and (2) they had been deposited on the body sometime between around 

10:00 a.m. and 2:00 p.m. on May 9. The second of these conclusions was based 

on his information regarding when the maggots were collected from the body.

Faulkner testified regarding two different samples of maggots that were 

supplied to him. When the prosecutor asked him to give the dates the samples 

were collected from the body, defendant objected on the basis of no foundation. 

The court asked the witness whether he had enough information to answer the 

question. When the witness said he did, the court overruled the objection. 

Faulkner then testified that he believed one sample had been collected on May 13 

and the other on May 14.

Dr. Scheinin had testified that she collected one of the samples between 

9:00 a.m. and noon on May 14, when she performed the autopsy. But the 

prosecution never established when the other sample had been collected. On 

cross-examination, Faulkner said he had received a letter from the medical 

examiner‟s office saying the samples had been collected on May 13 and May 14. 

Defendant called as a witness Gary Kellerman, an investigator with the coroner‟s 

office, who testified that he had been called to examine the body but he did not 
26

collect any of the maggots. An unknown person, not Kellerman, had written the 

date May 13 on one of the jars. Kellerman testified that he did not use the label 

form on that jar, but it was standard procedure for the “evidence people” to label a 

jar that way. As part of the defense case, the parties stipulated that another 

employee of the coroner‟s office also did not collect the samples or fill out the 

label on the jar.

Defendant contends the court erred in overruling his lack-of-foundation 

objection regarding the sample supposedly collected on May 13. We agree. The 

prosecution never established the foundational fact that that sample had been 

collected on May 13 (or, indeed, that it came from Monique‟s body, although 

defendant never questioned that fact). Faulkner‟s testimony that the sample was 

collected on May 13 — as well as his resultant conclusion that the maggots were 

deposited on the body on May 9 — was based on hearsay.

The Attorney General argues that Faulkner properly relied on this hearsay 

in forming his opinion. “Expert testimony may also be premised on material that 

is not admitted into evidence so long as it is material of a type that is reasonably 

relied upon by experts in the particular field in forming their opinions. [Citations.] 

Of course, any material that forms the basis of an expert‟s opinion testimony must 

be reliable.” (People v. Gardeley (1996) 14 Cal.4th 605, 618.) Faulkner‟s 

testimony regarding the date the samples were collected does not come within this 

rule.

We must examine exactly what expert testimony Faulkner was providing. 

“Under Evidence Code section 801, expert opinion testimony is admissible only if 

the subject matter of the testimony is „sufficiently beyond common experience that 

the opinion of an expert would assist the trier of fact.‟ ” (People v. Gardeley, 

supra, 14 Cal.4th at p. 617.) How long the maggots had been associated with the 

body was clearly a subject sufficiently beyond common experience that expert 
27

opinion would assist the jury. Faulkner could give his opinion regarding how long 

the maggots had been on the body and, no doubt, could also assist the jury with 

calculating back from the time the maggots had been collected, if the time of 

collection were otherwise established. But when the sample was collected was a 

simple question of fact that the jury could decide for itself without expert 

guidance. Similarly, an expert could give an opinion that two fingerprint samples 

were from the same person but, unless that expert had also collected the 

fingerprints, could not additionally testify where they came from. For example, 

the expert could not testify that the defendant had left the fingerprints at the crime 

scene. Or a serologist could testify that a bloodstain sample was consistent with 

another blood sample, but could not additionally testify about where the bloodstain 

had been found. These foundational facts were for others to establish.

Accordingly, the court should have required the prosecution to establish 

that the sample in question had been collected on May 13. It erred in overruling 

defendant‟s objection. As noted, we analyze state law error under the Watson

reasonable probability test. (People v. Watson, supra, 46 Cal.2d 818.) Defendant 

contends, however, that the error also violated his right to confront witnesses 

under the Sixth Amendment to the United States Constitution.

The Attorney General responds first that defendant forfeited his federal 

constitutional claim by not specifically asserting it at trial. We disagree for the 

reasons discussed above regarding Sara Minor‟s testimony. (Pt. II. C., ante.) 

Defendant may argue that the erroneous overruling of the objection also violated 

his federal confrontation rights. (See People v. Gutierrez, supra, 45 Cal.4th at p. 

809.) On the merits, it appears that overruling the objection did violate 

defendant‟s federal constitutional right to confront witnesses. (See Bullcoming v. 

New Mexico (June 23, 2011, No 09-10876) __ U.S. __ [2011 U.S. Lexis 4790].). 

We will assume it did do so.
28

“Confrontation clause violations are subject to federal harmless-error 

analysis under Chapman v. California (1967) 386 U.S. 18, 24.” (People v. Geier

(2077) 41 Cal.4th 555, 608.) We ask whether it is clear beyond a reasonable doubt 

that a rational jury would have reached the same verdict absent the error. (Ibid.) 

For several reasons, the error was harmless under this test.

Faulkner analyzed two different samples of maggots. Dr. Scheinin‟s 

testimony established that one of the samples was in fact collected on May 14, the 

day she performed the autopsy. Faulkner‟s opinion was mainly based on the 

sample he believed was collected on May 13, which would have been the earlier 

of the two. His estimate that the maggots had been associated with the body for 

3.5 to 3.7 days, and his calculation back to arrive at the May 9 date as being when 

they were deposited, were based on the assumed May 13 sample. But presumably, 

the condition of the maggots collected on May 14 was consistent with this opinion. 

At least, the jury would have no reason to suppose otherwise. Defendant could 

have cross-examined Faulkner regarding any differences in the two samples that 

would cast doubt on Faulkner‟s opinion, or presented his own expert to question 

Faulkner‟s opinion. He did neither.

Additionally, Faulkner‟s testimony was substantially impeached and in 

some respects might have aided defendant. On cross-examination, defense 

counsel elicited that Faulkner‟s original report had been different from his trial 

testimony. The original report contained the estimate of May 9 as the date the 

maggots were deposited on the body. But it also inconsistently estimated that the 

maggots had been associated with the body for 2.5 to 2.7 days, not the 3.5 to 3.7 

days to which Faulkner testified. The 2.5-to-2.7-day estimate would have made 

the date the body was left at the scene May 10, a time when defendant was 

apparently already in custody. Thus, that estimate actually aided defendant. 

Faulkner testified that conversations with another expert, and the fact that both 
29

sides had subpoenaed him to testify, led him to discover that his original estimate 

of 2.5 to 2.7 days was a miscalculation. Shortly before trial, he recalculated his 

time estimate and prepared a new report that was consistent with his trial 

testimony. In light of these facts, defense counsel was able to imply that Faulkner 

changed his calculations to aid the prosecution, although Faulkner testified that he 

simply corrected his original miscalculation and that his second report, unlike his 

first, was internally consistent. Under these circumstances, it is not clear how 

much weight the jury would have given to the May 9 estimate, and how much to 

the original calculation of 2.5 to 2.7 days that would have aided defendant.

More fundamentally, Faulkner‟s testimony was not particularly important 

to the prosecution case. If he had not testified at all, that would simply have meant 

there was no scientific evidence regarding when the body was placed in the vacant 

lot. But such evidence was not critical for the prosecution. Without Faulkner‟s 

testimony, the jury would have heard that Monique disappeared the night of May 

8-9, and her body was found four days later on May 13. It would also have heard 

that when found the body was badly decomposed — so badly that it could not 

even be identified visually as Monique‟s body; it took dental records to make the 

identification. This meant the body had been there for quite some time. The jury 

would have had no reason to doubt that the body had been there since the night of 

May 8-9.

Other evidence compellingly showed that Monique had been taken forcibly 

from her bedroom the night she disappeared. Her body was covered with a 

comforter taken from her bed. It was nude and, her sister testified, none of her 

clothes or shoes were missing. A sheet from her bed was found on the Arroyo 

driveway and other sheets were found in the middle of her bedroom floor as if 

they had been thrown there. The clothes she was wearing when she went to bed 

were found in her closet under a pile of other clothes. Her alarm clock was 
30

sounding when Josette entered the bedroom the morning Monique was discovered 

to be missing. All this evidence shows that Monique left her bedroom 

involuntarily, not that she ran away on her own, as the defense suggested.

The absence of scientific testimony regarding the time that the body was 

left in the vacant lot would not have weakened any of this evidence or caused the 

jury to doubt that the body had been there since the night of May 8-9. The error in 

overruling defendant‟s lack-of-foundation objection was harmless beyond a 

reasonable doubt.

E. Instructions Regarding the Other Crimes Evidence

The court gave this instruction at the close of evidence in the guilt phase: 

“If you find the defendant committed a prior sexual offense or sexual offenses, 

you may, but are not required to, infer that the defendant had a disposition to 

commit the same or a similar type sexual offense. If you find that the defendant 

had this disposition, you may, but are not required to, infer he was likely to 

commit and did commit the crime of which he‟s accused.” (Italics added; see 

CALJIC No. 2.50.01 (6th ed. 1996).) It gave a similar instruction just before the 

prosecution introduced the testimony of Ramona M. and L.S. The court also 

instructed at the close of the evidence that the prosecution bore the burden of 

proving by a preponderance of the evidence that defendant had committed the 

prior sexual offense and told the jury not to “consider the evidence for any purpose 

unless you find by a preponderance of the evidence” that defendant had committed 

it. (See CALJIC No. 2.50.1 (6th ed. 1996).) The court did not further define 

“preponderance of the evidence.”

Defendant contends these instructions were erroneous in three respects. 

His main contention is that the 1996 version of CALJIC No. 2.50.01, including 

especially the language “and did commit,” erroneously told the jury it could 
31

convict him of Monique‟s murder based solely on the evidence of his previous 

sexual crimes. This error, he argues, violated the constitutional requirement that 

the prosecution must prove its case beyond a reasonable doubt. The prosecution 

does, indeed, have to prove all necessary elements of the crime beyond a 

reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5; In re Winship (1970) 

397 U.S. 358, 364.) As a matter of logic, evidence that a defendant committed a 

prior sexual crime, standing alone and supported by no evidence connecting the 

defendant to the charged crime, can never constitute proof beyond a reasonable 

doubt that the defendant committed the charged crime. Accordingly, an obvious 

specific application of the general rule requiring proof beyond a reasonable doubt 

is that a jury may not convict the defendant based solely on evidence of a prior 

sexual crime. (See People v. Reliford (2003) 29 Cal.4th 1007, 1013 (Reliford); 

People v. Falsetta, supra, 21 Cal.4th at pp. 920, 923.) But, as we explain, the jury 

instructions as a whole did not violate this constitutional requirement.

In Reliford, supra, 29 Cal.4th 1007, we rejected a similar challenge to an 

instruction that contained substantially the same language from CALJIC No. 

2.50.01 that the court here used, including the language “and did commit.” But 

the overall instruction in Reliford differed from the one given here in a significant 

respect. The Reliford instruction included a sentence added in a 1999 revision to 

CALJIC No. 2.50.01 that postdated the trial of this case. Specifically, the 

challenged instruction in Reliford, but not the one here, was followed by this 

sentence: “ „[I]f you find by a preponderance of the evidence that the defendant 

committed a prior sexual offense . . . , that is not sufficient by itself to prove 

beyond a reasonable doubt that he committed the charged crime.‟ ” (Reliford, 

supra, at p. 1013; see CALJIC No. 2.50.01 (1999 rev.) (6th ed. pocket pt.).) We 

must decide, therefore, whether the sentence added to the standard instruction in 

1999 admonishing the jury that evidence of the prior sexual offense is not 
32

sufficient by itself to convict was critical; that is, whether the instruction was 

constitutionally deficient without it.

Cases predating Reliford, supra, 29 Cal.4th 1007, that involved the pre1999 version of the standard instruction, i.e., cases on point here, divided badly on 

this question. The cases arose in two different but functionally identical situations. 

Some involved evidence admitted under Evidence Code section 1108 and 

instructions similar to the one given here. Others involved equivalent instructions 

concerning evidence of domestic violence admitted under Evidence Code section 

1109. (See CALJIC No. 2.50.02 (6th ed. 1997).) “Because there is no material 

difference between CALJIC No. 2.50.01 and 2.50.02, cases decided with respect 

to these instructions are — at least for present purposes — interchangeable.” 

(People v. Escobar (2000) 82 Cal.App.4th 1085, 1097, fn. 7.)

Some of the cases have found instructions similar to the one given here 

unconstitutional. (People v. Frazier, supra, 89 Cal.App.4th at pp. 34-40 [CALJIC 

No. 2.50.01]; People v. Younger (2000) 84 Cal.App.4th 1360, 1379-1385 

[CALJIC No. 2.50.02]; People v. James, supra, 81 Cal.App.4th at pp. 1349-1365 

[error, but harmless, to give CALJIC No. 2.50.02]; People v. Orellano (2000) 79 

Cal.App.4th 179, 184-186 [CALJIC No. 2.50.01]; People v. Vichroy (1999) 76 

Cal.App.4th 92, 98-101 [CALJIC No. 2.50.01]; Gibson v. Ortiz (9th Cir. 2004) 

387 F.3d 812, 820-825 [CALJIC No. 2.50.01].)

People v. Orellano provides a typical explanation. It noted that the trial 

court had also instructed the jury that it could not consider the evidence of the 

prior sexual offense for any purpose unless the jury found by a preponderance of 

the evidence that the defendant had committed the offense, and that the court had 

defined what preponderance of the evidence means. (People v. Orellano, supra, 

79 Cal.App.4th at p. 183 [citing CALJIC Nos. 2.50.1 and 2.50.2].) The court then 

explained: “In combination, CALJIC Nos. 2.50.01 (pre-1999), 2.50.1, and 2.50.2 
33

permitted the jury to find by a preponderance of evidence that appellant committed 

the prior crimes, to infer from such commission of the prior crimes that appellant 

had a disposition to commit such crimes, and to infer from such disposition that 

appellant „did commit‟ the charged crimes, without necessarily being convinced 

beyond a reasonable doubt that appellant committed the charged crimes. If the 

jury followed these instructions literally and arrived at a guilty verdict in that 

manner, appellant was denied his due process right to require proof beyond a 

reasonable doubt of every fact necessary to constitute the charged crimes. 

[Citations.] A „constitutional infirmity arises‟ because taken literally these 

instructions authorized a conviction of the current charges based „solely‟ upon a 

finding that appellant committed the prior crimes. (People v. Vichroy, supra, 76 

Cal.App.4th at pp. 99, 101.) In Vichroy the trial court did not instruct the jury 

about the preponderance of evidence standard for proof of the prior crimes. The 

appellate court found error because, even assuming the prior crimes were proved 

beyond a reasonable doubt, „[w]e do not believe proof beyond a reasonable doubt 

of a basic fact, that appellant committed prior sexual offenses, may act as “proxy” 

or substitute for proof of the ultimate fact, i.e., appellant‟s guilt of the currently 

charged offenses.‟ (Id. at p. 99.) The „constitutional infirmity‟ is even greater 

where, as here, the jury was also instructed that the prior crimes need only be 

proved by a preponderance of evidence.” (People v. Orellano, supra, at pp. 184-

185.)

Other cases, although sometimes recognizing that the pre-1999 version of 

CALJIC No. 2.50.01 could be improved, have held that it (or the comparable 

instructions regarding evidence of domestic violence) did not violate the 

defendant‟s constitutional rights. (People v. Jeffries (2000) 83 Cal.App.4th 15, 

21-25 [CALJIC No. 2.50.01]; People v. Escobar, supra, 82 Cal.App.4th at pp. 

1097-1102 [CALJIC No. 2.50.02]; People v. Waples (2000) 79 Cal.App.4th 1389, 
34

1396-1398 [CALJIC No. 2.50.01]; People v. O’Neal (2000) 78 Cal.App.4th 1065, 

1076-1079 [CALJIC No. 2.50.01]; People v. Regalado (2000) 78 Cal.App.4th 

1056, 1060-1063 [CALJIC No. 2.50.01]; People v. Van Winkle (1999) 75 

Cal.App.4th 133, 139-149 [CALJIC No. 2.50.01].)

At least under the facts and overall instructions of this case, we believe the 

cases finding no constitutional infirmity in the pre-1999 version of CALJIC No. 

2.50.01 (or No. 2.50.02) have the better view. It is no doubt useful to admonish 

the jury specifically that evidence of the prior sexual offense alone is not sufficient 

to convict, as the current standard instructions do. (CALJIC No. 2.50.01 (7th ed.); 

CALCRIM No. 1191.) But doing so is not critical. “[O]mission of the 

admonishment is not fatal to the instruction that was given.” (People v. Regalado, 

supra, 78 Cal.App.4th at p. 1061.) The Regalado court made the point rather 

colorfully but, we believe, correctly, when it said that the CALJIC committee, by 

adding the admonishment, “added air bags to an instruction already equipped with 

seat belts.” (People v. Regalado, supra, at p. 1060, fn. 2.)

Although our opinion in Reliford, supra, 29 Cal.4th 1007, relied in part on 

the admonition that was not given in this case to uphold the instructions of that 

case, its analysis is relevant here. We explained that a reviewing court must 

consider the instructions as a whole to determine whether there is a reasonable 

likelihood the jury applied the instructions in an unconstitutional manner. (Id. at 

p. 1013.) As applied to the issue here, we must determine whether it is reasonably 

likely the jury understood the instructions as a whole to mean it could convict 

defendant of Monique‟s murder based solely on the evidence of the prior sexual 

offenses. But, as in Reliford, the instructions never told “the jury it may rest a 

conviction solely on evidence of prior offenses.” (Id. at p. 1013.) We concluded 

that, because of the instructions the jury heard concerning the reasonable doubt 

standard of proof, “[n]o reasonable juror would believe those requirements could 
35

be satisfied solely by proof of uncharged offenses.” (Id. at pp. 1013-1014.) 

Indeed, we said, the concept that proof of the prior crime is not enough to convict 

is a “ „truism,‟ ” and that basing a conviction solely on uncharged conduct is “ „a 

logical impossibility.‟ ” (Id. at p. 1014.) Specifically, we said it is not possible 

“to find each element of the charged crimes, as the jury was instructed to do before 

returning a guilty verdict, based solely on the [prior] offense. Nor is it possible to 

find a union or joint operation of act or conduct and the requisite intent for each 

charged crime, as the jury was also instructed to do. Hence, no reasonable jury 

could have been misled in this regard.” (Id. at p. 1015.)

The O’Neal court pointed out that the defendant “urges us to read the 

instruction as if it had said: „If you find that the defendant had this disposition, 

you may, but are not required to, infer solely from this evidence of a prior sexual 

offense that the defendant is guilty beyond a reasonable doubt of the crime[s] of

which he is presently accused.‟ We think this is a strained and untenable reading 

of CALJIC No. 2.50.01. In order to make this inference, a juror would have to 

conclude that a defendant could be found guilty beyond a reasonable doubt of the 

currently charged crime even if no evidence whatsoever had been presented to 

prove the elements of the charged offense.” (People v. O’Neal, supra, 78 

Cal.App.4th at p. 1078.) Indeed, such a reading of the instruction would mean that 

any sex offender could be convicted of every sexual crime committed anywhere in 

California even if no evidence whatever connected the defendant with any of those 

crimes — an obviously absurd proposition.

The instruction merely told the jury it could “infer” from defendant‟s prior 

sexual crimes that he committed the charged crime. It did not say such an 

inference itself constituted proof beyond a reasonable doubt. The jury was also 

instructed that “an inference is a deduction of fact that can logically and 

reasonably be drawn from another fact or group of facts established by the 
36

evidence.” (See People v. Jeffries, supra, 83 Cal.App.4th at p. 22 [quoting a 

similar instruction].) But a logical deduction is not the same as proof beyond a 

reasonable doubt. No reasonable jury would assume that this inference, i.e., this 

logical deduction, substituted for proof beyond a reasonable doubt. The 

instructions given “provide only that an inference of guilt may be drawn from 

prior offenses that have been proved by a preponderance of evidence. They do not

suggest that an inference so drawn is sufficient for a finding of guilt.” (Id. at p. 

23.) The jury still had to find that the facts of the charged crime had been proved 

beyond a reasonable doubt. (Id. at pp. 23-24.)

Reviewing the instructions in this case as a whole bolsters this conclusion. 

The jury was told to consider the instructions as a whole and, as noted, were told 

what an inference is. Additionally, the court instructed repetitively and in detail 

on the reasonable doubt standard. It repeated again and again, both in general and 

in stating the elements of the charged crime and special circumstance, as well as 

the lesser included offense of second degree murder, that the prosecution bore the 

burden of proof beyond a reasonable doubt, and that the jury must give the 

defendant the benefit of any reasonable doubt at every step of the way. As in 

Reliford, supra, 29 Cal.4th at page 1013, the court also instructed the jury there 

had to be a union or joint operation of act or conduct and the required intent. 

Additionally, nothing in the arguments of counsel suggested the jury could convict 

defendant of Monique‟s murder solely because of the prior sexual offenses. 

Indeed, even the prosecutor began her argument by emphasizing the reasonable 

doubt standard. Both the prosecutor and defense counsel discussed all of the 

evidence in detail, including, but far from limited to, the prior sexual offenses.

Reviewing the overall instructions and arguments of counsel, we, like the 

Regalado court, “are convinced the jurors would have realized that disposition 

evidence, while probative of defendant‟s guilt, must be assessed along with all the 
37

other evidence to determine whether every element of the offense was proven 

beyond a reasonable doubt. [Citation.] They need not have been legal scholars to 

do so. They knew [defendant] was not charged with the [prior offense]. 

Reasonably intelligent people would — on the instructions given here — merely 

have put the prior offense into the deliberative mix as a factor to be considered. 

They would not have stopped after evaluating the prior and started signing verdict 

forms . . . .” (People v. Regalado, supra, 78 Cal.App.4th at pp. 1062-1063.)

For these reasons, we find no reasonable likelihood the jury would view the

instructions as permitting it to find defendant guilty of Monique‟s murder based 

solely on his prior sexual offenses. (Reliford, supra, 29 Cal.4th at p. 1013.)

Defendant also argues that the instructions allowed him “to be convicted 

based on the preponderance of the evidence standard applicable to the 

predisposition evidence, rather than on the proof beyond a reasonable doubt 

standard.” We disagree. The court merely told the jury it could not consider the 

evidence of the prior sexual crimes for any purpose unless it found he had 

committed them by a preponderance of the evidence. Nothing in that instruction 

canceled the reasonable doubt instructions the jury also received. “We do not find 

it reasonably likely a jury could interpret the instructions to authorize conviction 

of the charged offenses based on a lowered standard of proof. Nothing in the 

instructions authorized the jury to use the preponderance-of-the-evidence standard 

for anything other than the preliminary determination whether defendant 

committed a prior sexual offense . . . . The instructions instead explained that, in 

all other respects, the People had the burden of proving defendant guilty „beyond a 

reasonable doubt.‟ ” (Reliford, supra, 29 Cal.4th at p. 1016; see also People v. 

Carpenter (1997) 15 Cal.4th 312, 383 [rejecting a similar argument].)

Defendant finally contends the court erred in not defining “preponderance 

of the evidence.” Because the court told the jury it could not consider the 
38

evidence of the prior sexual offenses for any purpose unless it found he committed 

them by a preponderance of the evidence, it probably would have been better for 

the court to define the term, although it is unlikely the jury would have interpreted 

the term as imposing an even lighter burden of proof than it actually does. But the 

jury could not have been confused in any way prejudicial to defendant. He had 

been convicted of the prior sexual offenses, so the evidence that he committed 

them clearly satisfied the preponderance-of-the-evidence standard.

In short, although the instructions regarding the prior sexual offenses could 

have been better, they did not mislead the jury in any fashion prejudicial to 

defendant.

F. Cumulative Prejudice

Defendant contends the cumulative effect of the asserted errors was 

prejudicial. We have found two errors: (1) the assumed error in admitting Sara 

Minor‟s testimony, which was harmless under People v. Watson, supra, 46 Cal.2d 

818; and (2) error in overruling the lack-of-foundation objection to Faulkner‟s 

testimony, which was harmless beyond a reasonable doubt. Sometimes the 

cumulative effect of errors that are harmless in themselves can be prejudicial. But 

that is not the case here. The two items of evidence in question were directed 

primarily at different trial issues. Sara Minor‟s testimony was admitted on the 

question whether defendant committed a lewd and lascivious act on Monique. 

Faulkner‟s testimony was directed to when the body was deposited in the vacant 

lot, which was relevant to whether defendant was her killer. The effect of the two 

errors did not cumulate. We conclude the errors were harmless when considered 

together as well as when considered separately.
39

G. Validity of the Lewd-and-lascivious-act Special Circumstance

The lewd-and-lascivious-act special circumstance applies to any person 

who is the actual killer during the commission of a lewd and lascivious act on a 

child under the age of 14. (Pen. Code, § 190.2, subd. (a)(17)(E), (b); see People v. 

Anderson (1987) 43 Cal.3d 1104, 1146-1147.) Defendant contends that the Eighth 

Amendment to the United States Constitution and international law require at least 

a finding that he either intended to kill or acted with reckless indifference to 

human life. We recently rejected the constitutional contention and see no reason 

to revisit the question. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 191-

194.) Additionally, any death judgment that complies with state and federal 

constitutional and statutory requirements does not violate international law. 

(People v. Lewis (2008) 43 Cal.4th 415, 539.)

In response to defendant‟s argument that the current state of the law means 

a defendant might be death eligible even for an accidental killing, it is hard to 

imagine how the actual killer, who kills while committing a lewd and lascivious 

act on a child under the age of 14, can kill accidentally. Certainly Monique‟s 

death was no accident. Because defendant deposited her body in a vacant lot, 

leaving it to decompose for four days, the exact way he killed her could not be 

determined medically. But it appears defendant asphyxiated her, perhaps by 

choking her by the neck, as he had choked his two previous sexual assault victims. 

In any event, the evidence establishes that he acted with at least reckless 

indifference to her life when he killed her.

H. Challenges to California’s Death Penalty Law and Instructions

Defendant reiterates a number of challenges to California‟s death penalty 

law and the standard jury instructions that he recognizes we have repeatedly

rejected. (See People v. Schmeck (2005) 37 Cal.4th 240, 303-304.) None of the 

claims are meritorious, and we see no reason to reconsider our previous decisions.
40

Penal Code section 190.2 is not impermissibly broad. (People v. Schmeck, 

supra, 37 Cal.4th at p. 304.) Factor (a) of that section, allowing the jury to 

consider the circumstances of the crime, has not been applied impermissibly 

broadly. ((People v. Schmeck, supra, at p. 304.) Except regarding evidence of 

other crimes, the jury need not find aggravating factors true beyond a reasonable 

doubt, and no instruction on burden of proof is required. (People v. Mendoza

(2007) 42 Cal.4th 686, 707.) Other than the actual verdict, the jury need not make 

unanimous findings. (Ibid.) The instructions‟ use of the phrase “so substantial” is 

not impermissibly vague or ambiguous. (Ibid.) The instructions permissibly refer 

to whether the death penalty is “warranted” rather than “appropriate.” (Ibid.) The 

instructions do not impermissibly fail to inform the jurors that a life sentence is 

mandatory if mitigating factors outweigh aggravating factors. (Id. at p. 707-708.) 

The instructions do not impermissibly fail to inform the jurors that even if they 

determined that aggravating factors outweigh mitigating factors, they could still 

return a life sentence. (People v. Morgan (2007) 42 Cal.4th 593, 625-626.) The 

instructions do not impermissibly fail to inform the jurors regarding the standard 

of proof and lack of need for unanimity as to mitigating circumstances. (People v. 

Rogers (2006) 39 Cal.4th 826, 897.) The court need not instruct on a presumption 

of life. (People v. Morgan, supra, at p. 627.) The jury need not make written 

findings. (Ibid.) The use of restrictive adjectives “extreme” and “substantial” in 

defining some of the statutory mitigating factors is permissible. (People v. 

Schmeck, supra, at p. 305.) The court need not delete inapplicable sentencing 

factors. (People v. Mendoza, supra, at p. 708.) The court need not instruct the 

jurors that statutory mitigating factors are relevant solely in mitigation. (Ibid.) 

Intercase proportionality review is not required. (Id. at p. 706.) The California 

death penalty scheme does not violate equal protection by treating capital and 

noncapital defendants differently. (People v. Morgan, supra, at p. 627.) The use 
41

of the death penalty does not violate international law. (People v. Lewis, supra, 43 

Cal.4th at p. 539.) 

III. CONCLUSION

We affirm the judgment.

CHIN, J.

WE CONCUR:

CANTIL-SAKAUYE, C.J.

BAXTER, J.

WERDEGAR, J.

CORRIGAN, J.

HALLER, J.*

_____________________________

* Associate Justice of the Court of Appeal, Fourth Appellate District, Division 

One, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
1

CONCURRING AND DISSENTING OPINION BY KENNARD, J.

Defendant was charged with sexually molesting and murdering a 12-yearold girl. At trial, the prosecution presented evidence of defendant‟s two previous 

sexual assaults. The court instructed the jury that if it found that defendant had 

committed such offenses, it could infer that defendant “ „was likely to commit and 

did commit the crime of which he‟s accused.‟ ” (Maj. opn., ante, at p. 30.) The 

majority upholds this instruction. 

The majority concludes there is no reasonable likelihood that this 

instruction misled the jury: The trial court repeatedly reminded the jury that the 

prosecution had the burden of proving guilt beyond a reasonable doubt and that 

the jury had to resolve any reasonable doubt in favor of defendant; in addition, the 

prosecutor did not argue that the jury could convict defendant of the murder based 

solely on the prior sexual offenses. (Maj. opn., ante, at p. 36.) I agree that, in 

light of the other instructions, the prior sexual offense instruction at issue did not 

prejudice defendant. I disagree with the majority, however, that the instruction 

was proper. 

In People v. Reliford (2003) 29 Cal.4th 1007, 1009, 1012, a majority of this 

court upheld a prior sexual offense instruction telling the jury that if it found by a 

preponderance of the evidence that the defendant had committed such a prior 

offense, that finding would be insufficient by itself to prove beyond a reasonable 

doubt that the defendant was guilty of the sexual offense charged. The majority 
2

there held that the instruction would not have misled the jury as to the limited 

purpose for which the prior sexual crime evidence could be considered. (Id. at 

p. 1013.) I disagreed. In my view, the instruction was potentially misleading, 

because it implied that the jury could rely on the prior sexual offense as the sole 

basis for convicting the defendant of the sexual crime charged in that case, so long 

as the jury found the prior sexual offense allegations to be true under a standard of 

proof higher than a preponderance of the evidence. (Id. at pp. 1017-1018 (conc. & 

dis. opn. of Kennard, J.).) The instructional flaw is more serious in this case.

Here, the instruction told the jury that based on the existence of such prior 

offenses it could infer defendant‟s guilt of the sexual molestation charge in this 

case. The instruction as worded would permit a conviction of the crimes charged 

solely because of past sexual offenses. But a conviction of a crime must be based 

on evidence of that crime, not on prior offenses alone. (People v. Falsetta (1999) 

21 Cal.4th 903, 923.) Unlike the majority, therefore, I would not uphold the 

validity of the instruction given here. 

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

Name of Opinion People v. Loy

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S076175

Date Filed: July 7, 2011

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Charles D. Sheldon

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Marianne D.

Bachers, Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Sharlene A. Honnaka and Susan 

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

Marianne D. Bachers

Deputy State Public Defender

221 Main Street, 10th Floor

San Francisco, CA 94105

(415) 904-5600

Susan Sullivan Pithey

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 620-6344