Filed 7/2/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S051342

v. )

) 

JOHN LEE CUNNINGHAM, )

) San Bernardino County

Defendant and Appellant. ) Super. Ct. No. RCR 22225

___________________________________)

In a bench trial before the Superior Court of San Bernardino County, defendant 

John Lee Cunningham was convicted of the first degree murders of Wayne Sonke, David 

Smith, and Jose Silva. (Pen. Code, §§ 187, subd. (a), 189.

1) The trial court found true 

the special circumstance allegations that defendant committed multiple murders and that 

the murders of Sonke and Smith took place during the commission of a burglary and a 

robbery. (§ 190.2, subd. (a)(3), (17)(A) and 17(G).) The court also found defendant 

guilty of one count of second degree burglary (§ 459), three counts of second degree 

robbery (§ 211), one count of arson (§ 451, subd. (d)), and one count of possession of a 

firearm by a felon (former § 12021, subd. (a)). The court further found true various 

sentencing enhancement allegations—that defendant personally used a firearm in the 

commission of the murders, robberies, and burglary (former § 12022.5, subd. (a)), had 

previously been convicted of various felonies (§ 667), and had served prior prison terms 

for felony convictions (§ 667.5). 

 

1 All further statutory references are to the Penal Code, unless otherwise noted.
2

A jury was sworn for the penalty phase and returned a verdict of death. After 

conducting an automatic review and declining defendant‘s request to modify the jury‘s 

verdict (§ 190.4, subd. (e)), the trial court sentenced him to death for the three first degree 

murders with special circumstances, as well as to a determinate term of 16 years for the

remaining counts and allegations.

This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its 

entirety. 

I. FACTS

A. The Guilt Phase

Defendant went to Surplus Office Sales (SOS) in Ontario, California, around 

closing time on the afternoon of Saturday, June 27, 1992, and robbed the three remaining 

employees at gunpoint. He then bound the victims, herded them into a bathroom, and 

shot them each at least once in the head. Afterward, he set fire to the building before 

fleeing the scene. He was arrested a month later while on the run from police. Defendant 

subsequently confessed to the murders, burglary, and robberies, and participated in a 

videotaped reenactment of the crimes. 

Waiving his right to a jury, defendant‘s bench trial extended over 10 noncontiguous court days. In addition to the prosecution‘s guilt phase evidence, the trial 

court considered the evidence presented at the preliminary hearing and at pretrial 

proceedings concerning defendant‘s motion to suppress his multiple confessions. 

1. The prosecution’s case

a) The crimes

Around 4:00 p.m. on June 27, 1992, members of the Ontario Fire Department 

responding to a call at SOS found an inactive fire in the office portion of the building and 

three homicide victims in a hallway bathroom. An autopsy revealed that SOS employee 

Jose Silva died from two gunshot wounds to the head, assistant manager David Smith 
3

died from multiple gunshot wounds to the head and neck, and store manager Wayne 

Sonke died from a single gunshot wound to the head. More than $1,000 in cash had been 

taken from the store‘s cash register and petty cash box. 

Michael Ray, the owner of SOS, had employed defendant in the early and mid1980s at two other businesses. About a month before the murders, Ray returned a phone 

call from defendant asking about work. Ray had not heard from him for three or four 

years. Defendant also made unannounced visits to SOS on June 20 and 24, a week and a 

few days before the murders respectively. 

About 8:30 p.m. on the evening of the murders, defendant called SOS employee 

Evelyn Eriksen at home to ask how she was. Defendant told her he had been playing 

poker with some friends since about noon that day. Later, defendant took Alana Costello, 

his girlfriend at the time, to the movies and a motel room. Costello was surprised 

because defendant was not steadily employed and had been under ―stress‖ trying to find 

enough money for them to move into a bigger apartment. That evening, defendant was 

―much more close-mouthed‖ than usual and acting ―very stressed, very tense, very 

wrapped up in himself.‖ According to Costello, defendant generally was distant and 

removed, had difficulty sleeping, and would wake up in the middle of the night from bad 

dreams. He had borrowed her Ruger .22-caliber semi-automatic rifle and modified it by 

sawing off part of the stock and barrel. A few days after the murders, Costello noticed 

the rifle was missing.

b) Defendant’s subsequent flight and capture

On June 30, defendant called Diana Jamison, a former girlfriend. Jamison told 

defendant that his parole officer had come to her house looking for him. In a later 

telephone conversation, defendant told Jamison he was on the run because someone, 

perhaps the Mexican Mafia, was after him. Around the same time, defendant called 

Jamison upset and crying, saying ―something very terrible had happened‖ and he wanted 
4

to come back and ―do the right thing.‖ Jamison told defendant to turn himself in. 

According to Jamison, defendant had trouble sleeping; he would often wake up in the 

middle of the night in a cold sweat, and mentioned dreams of being tortured by women 

and children from his time in Vietnam. Defendant had tried to seek counseling at a 

veteran‘s center. 

On July 1, Costello received a telephone call from defendant asking her to join 

him in Nevada. Meeting up at the Las Vegas airport, the two traveled by car to Atlantic 

City, New Jersey, then drove southwest through Arkansas before heading north. Along 

the way, defendant placed an Ohio license plate on the car and registered under false 

names at motels. He never discussed why he had left California and when Costello

asked, he did not want to talk about it. After seeing how anxious defendant became when 

police cars passed them, she concluded that he was running from the law. 

On July 23, law enforcement officers stopped defendant‘s car in Deadwood, South

Dakota after being advised he was in the region and wanted as a murder suspect. 

Defendant and Costello were both taken into custody and defendant was arrested for 

violating his parole. Police seized a Ruger .22-caliber semi-automatic rifle, a box 

containing 31 cartridges for a .22-caliber long rifle, and a magazine loaded with 10 

rounds of .22-caliber ammunition.

c) Defendant’s statements to law enforcement officers and videotaped 

reenactment of the crimes

Over the following two days, Ontario Police Department Detectives Gregory 

Nottingham and Pat Ortiz interrogated defendant four times. Each interrogation was 

audiotaped or videotaped. On each occasion, the recording equipment was in plain view.

At their first meeting the morning of July 24, after approximately six minutes of 

preliminary introductions and questions, Detective Nottingham read defendant his rights

pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). After defendant

confirmed that he understood these rights, Nottingham proceeded to ask defendant about 
5

his relationships with Costello and Jamison, as well as about his military and employment 

background and his prior robbery arrest. In discussing these subjects, defendant

recounted working for Michael Ray at a facility in Long Beach in 1979 and going to SOS

in Ontario in early June 1992 to visit Eriksen and to look for a job. 

Defendant then volunteered, ―I know what you guys are getting at. . . . I also want 

you to know that the reason why I‘m so calm is because I‘m where I belong. . . . I know 

why you‘re here in my dreams and that‘s all.‖ When asked to clarify, defendant replied, 

―You know as well as I do that I committed an armed robbery in Ontario‖ at ―Mike‘s

company.‖ When asked for further clarification, defendant reiterated, ―I committed an 

armed robbery,‖ and asked, ―Should I have somebody here talking for me, is this the way 

it‘s supposed to be done?‖ Detective Nottingham reread defendant his Miranda rights 

and asked if he understood them. Defendant stated, ―I do understand.‖

In response to the detectives‘ subsequent questions, defendant gave an 

occasionally rambling account of his activities on June 27, describing how he chose to 

rob SOS, how the robbery, murders, and arson occurred, and his subsequent actions. He 

admitted entering SOS with the intention to steal money, binding the hands of the three 

victims with duct tape, returning to the bathroom to shoot them, and then using gasoline 

to set the building on fire. These confessions were interspersed with references to 

defendant‘s dreams, things he claimed to have done during his military service in 

Vietnam, and expressions of relief at being caught. 

The detectives interrogated defendant two more times the afternoon of July 24, 

and again the following morning. No additional Miranda advisements were given. 

Defendant told the detectives he had altered two military personnel forms found in his car 

because he was looking for work and wanted to ―look[] better‖ and ―cover‖ for time 

when he had been incarcerated. He also indicated he had ―ripped off a shipment‖ as a 

narcotics courier and asked at one point to be placed in protective custody. One of the 
6

detectives also made references to the victims‘ families, stating that once lawyers got 

involved in a case, it would get ―a lot more complicated.‖

Between July 27 and July 31, the detectives spoke with prosecutors working on 

the case and played the interview tapes for them. Because the quality of the tapes was 

poor, the prosecutors suggested a videotaped reenactment at the crime scene and told the 

detectives that the reenactment should be done before an arrest warrant was filed. On 

July 31, Wesley Lewis, a correctional sergeant at Folsom Prison where defendant was 

being held on his parole violation, interviewed defendant to determine whether he would 

be willing to participate in the reenactment. Defendant indicated that he would be 

―happy‖ to cooperate ―if it would get me out of here any sooner or quicker.‖ 

On August 2, defendant conducted a reenactment of the crimes, which two 

detectives observed and videotaped. Defendant was advised of his Miranda rights before 

starting the reenactment, and affirmed that he understood these rights and wished to talk 

to law enforcement officers. 

In the video, defendant described how on the day of the murders he first went to

SOS shortly after noon and stayed for about a half-hour talking with the three victims. 

He then left and returned after 3:00 p.m. ―to take all the money . . . so I could leave the 

state.‖ He reentered SOS with the shortened .22-caliber rifle concealed in a paper bag. 

At gunpoint, defendant ordered the three victims to follow him through the hallway to the 

front lobby, where he forced Sonke to give him the money from the cash register. 

When defendant asked Sonke where the rest of the money was, Sonke indicated it 

was in an office down the hall. Defendant made all the victims go with him to that 

location and Sonke opened a filing cabinet with some keys, but did not remove anything. 

Defendant took the keys and made the victims enter the women‘s bathroom, where he 

told them to lie down on the floor and be quiet. He left all three victims with their hands 

bound behind them with heavy duty tape he had purchased weeks before, but also 

claimed he had only planned the robbery earlier that day when he decided to return to 
7

SOS. Defendant then took the money from the cash drawer in the filing cabinet, returned 

to the bathroom, and shot the three men. 

Retrieving a can of gasoline from his car, defendant went back inside to set fire to

the building. When he reentered the bathroom, Silva and Sonke were not moving but 

Smith was attempting to break loose of his bonds. Defendant shot Smith again, poured 

gasoline along the hallway, and ignited it with a match. He then removed a key from 

inside the front door and exited, locking the door from the outside. He drove to a 

freeway overpass to watch the building for a minute or so until a fire truck arrived. 

2. The defense case

In his opening argument during the guilt phase, defense counsel described

defendant‘s experiences in Vietnam, stating that because of posttraumatic stress disorder, 

there were periods in his life when defendant ―lost time.‖ With respect to the murders, 

counsel claimed these were not crimes defendant wanted to commit, and that the only 

way law enforcement officers were able to connect defendant to them was by virtue of 

defendant‘s cooperation. Counsel cross-examined prosecution witnesses, but presented 

no guilt phase witnesses or other evidence on defendant‘s behalf. 

During closing argument, counsel contended defendant committed the charged 

offenses because he was experiencing a buildup of pressure caused by a mix of 

helplessness and fear. In conclusion, counsel argued, ―from everything we know John

Cunningham wished to take responsibility for this particular crime, and he did.‖

B. The Penalty Phase

Defendant‘s requests to absent himself from the penalty phase were denied. A 

jury was selected and heard evidence for 34 court days over the course of five months. 

The prosecution presented testimony relating to the circumstances surrounding the 

crimes, the effect of the murders on those connected to the victims, and defendant‘s prior 

felony convictions. Defendant presented extensive testimony to document his abusive 
8

childhood, his traumatic combat experiences in Vietnam, and the effects of posttraumatic 

stress disorder on Vietnam-era veterans. He also presented testimony that attempted to 

discredit some of the prior crimes evidence.

1. The prosecution’s case in aggravation

a) The circumstances surrounding the murders

The prosecution presented the testimony of many of the same witnesses who 

testified during the preliminary hearing and the bench trial to demonstrate the 

circumstances surrounding the burglary, robberies, murders, and arson. Also presented 

were the videotapes and transcripts of defendant‘s July 1992 interviews and August 1992 

reenactment and stipulations regarding the collection of crime scene evidence.

b) Prior crimes

On April 24, 1976, Herta Gill was a cashier at the Vineland Drive-In in the City of 

Industry, California, when at about 9:00 p.m., defendant robbed her at gunpoint of all the 

money in her register. He was apprehended a short time later while in possession of a 

firearm and the stolen cash. After pleading guilty to felony robbery and admitting to 

personally using a handgun, defendant was sentenced to one year in county jail and then

placed on probation. 

On April 5, 1982, Michelle I. was 14 years old and alone at her home in La 

Mirada, California, when defendant sexually assaulted her. Defendant, then a family 

friend, entered the home on the pretense his car had broken down, but after appearing to 

use the phone asked Michelle to give him a ―blow job.‖ When she refused, defendant 

forced her onto her knees. When she began screaming, defendant struck her in the face 

with a closed fist, threatened further physical violence if she continued to scream, and 

dragged her by the hair to the sofa, where he forced her to perform oral sex on him for 

approximately 10 minutes. Before leaving, defendant said he had killed his ex-wife and 

her lover and warned he would ―come back‖ to do the same to Michelle if she told 
9

anyone what had happened. Michelle nonetheless reported the incident to her family and 

the police and testified at the subsequent trial. Defendant was convicted of felony 

forcible oral copulation with a minor and sentenced to state prison. 

In April 1987, Samira S. was 15 years old and living with her mother and younger

sister in Paramount, California, when defendant, a family friend, moved in. Within two 

or three weeks, he began fondling and kissing Samira when they were alone. She would 

tell him to stop, but defendant would continue touching different parts of her body. 

Subsequently, defendant forced Samira to perform oral sex on him, slapping her when 

she did not perform to his satisfaction. Samira thereafter engaged in oral sex with 

defendant once or twice a week between April and September of 1987. If she resisted,

defendant would get angry and slap her. Defendant repeatedly tried to convince Samira 

to have sexual intercourse with him but she refused. Nevertheless, he would put Vaseline 

or baby oil on his penis and partially penetrate her vagina. Defendant also asked to take 

naked photographs of Samira, but she refused. Sometimes defendant would give Samira 

money and buy her gifts. He also caused her to be truant from her summer school 

courses. In September or October of 1987, Samira told a friend from church and a school 

counselor about defendant‘s sexual assaults. He was convicted of two counts of oral 

copulation with a minor and sentenced to state prison.

c) Victim impact evidence

The prosecution introduced the testimony of family members of the victims who

testified about qualities of their loved one and how each learned about the murders. Jose 

Silva was the youngest of 10 children and was raised by his older sister Josefina after 

their mother died. He regularly attended family functions and had a one-year-old son at 

the time of his death. David Smith had been married to his wife Mimi for 10 years when 

he died and had a daughter named Tiffany. His half brother described Smith as someone 

who loved the outdoors and as ―a very gentle soul.‖ Wayne Sonke had five adult 
10

children and five grandchildren at the time of his death. His daughter Lois Backe 

described being at her mother‘s house waiting for Sonke to return home from work when 

the fire department called asking for Sonke and saying that the alarms had gone off at 

SOS. After her father still had not returned or called home, Backe drove to SOS. A 

police officer on the scene told her there had been a triple homicide and asked Backe to 

describe her father. She later had to give the news of his murder to her youngest brother 

and mother. 

2. The defense’s case in mitigation

a) Family and social history

Ronald Forbush, a defense investigator, researched defendant‘s personal and 

social history and interviewed various relatives. Defendant‘s parents Vivian and Maurice 

Cunningham divorced when defendant was approximately two years old. Vivian had a 

prior marriage at age 14, two subsequent marriages, and apparently worked at some point 

as a prostitute. Maurice subsequently remarried as well. As a result, defendant had two 

older brothers, Sam and W.C., and several half siblings and stepbrothers and stepsisters. 

At the time of the trial, defendant‘s parents were deceased, and his brother Sam was in

Huntsville State Prison in Texas. 

Vivian‘s younger half sister Carolyn M. testified that Vivian was dishonest; at 

various times she had lied about a brother having died, about being in a car accident, and 

about her middle son (W.C.) having died. Carolyn also recounted one evening when she 

was in seventh grade and Vivian and Maurice were living in the same house as the rest of 

the family when Carolyn awoke to find Maurice sexually molesting her. 

Defendant‘s brother W.C. testified their mother and father both had problems with 

alcohol. One time, when W.C. was under 10 years old, Vivian, intoxicated, called him 

into her bedroom and sexually fondled him. After he left, she called the other two 

brothers into the room one by one. Vivian‘s sexual abuse may have been recurring. 
11

Maurice and Gene Collins, a stepfather, physically abused the boys. One time, after a 

violent confrontation with Collins in which Vivian stabbed him with a fork, she 

abandoned her three sons (then ages five, seven, and nine) for several weeks and they 

were forced to steal food to survive. Eventually, the boys were placed in an orphanage

for approximately a year. Later they were flown to California to live with Maurice, his 

second wife Betty, and her children from a previous marriage. W.C. believed that his 

father sexually abused his stepsister, although Maurice never molested W.C. or, to the 

best of W.C.‘s knowledge, defendant or their brother Sam. 

One of defendant‘s stepbrothers testified that Maurice was a heavy drinker who 

often became violent with Betty and the children. Maurice also sexually molested the 

stepbrother so often he ―couldn‘t count the times.‖ Once when he was in seventh grade, 

the stepbrother told his mother Betty about the molestation. She cried but never did 

anything to stop it. 

Diana Jamison, one of defendant‘s former girlfriends, testified she got the 

impression from defendant that his mother, Vivian, was very promiscuous when he was a 

young boy and had many different men coming in and out of her life. Defendant also 

alluded to having been sexually molested by his father, but would not discuss any details 

with Jamison. 

Some of the sexual abuse detailed by the above witnesses was confirmed or 

alluded to by defendant in his interviews with Thomas Williams, one of the defense‘s 

penalty phase psychologists. 

b) Military background

After defendant graduated from high school, he enlisted in the United States 

Army. According to relevant military files and records, defendant was court-martialed

various times for being absent without leave (AWOL) between May 1969 and March 

1970. In May 1970, defendant was sent to Vietnam for approximately 11 months where 
12

he was promoted three times, ultimately to sergeant. As a result of his service in the 

Vietnam War, defendant received several commendations. 

While in Vietnam, defendant engaged in reconnaissance missions with units that 

would travel through the jungles for periods of five to 14 days scouting and securing 

areas believed to be infiltrated by the Viet Cong or North Vietnamese Army. The units

set up claymore mines for mechanical ambushes and engaged in several firefights in 

which enemy troops or sympathizers were killed or captured. Defendant at one time 

operated in a ―free fire zone,‖ meaning that the soldiers had permission to kill any enemy 

combatants in that area. Sometimes a unit would happen upon empty enemy bunkers or 

mass enemy graves; other times it found ―blood trails‖ left by the enemy dragging their 

wounded or dead soldiers away from combat scenes. If a unit encountered an enemy 

village in an uncontrolled area not authorized for settlement, standard operating 

procedure was to evacuate the people and set the buildings on fire. Once, defendant 

required medical attention due to heat exhaustion. Another time, he was hospitalized for 

a malaria infection. 

Nineteen veterans who served in defendant‘s reconnaissance platoons testified 

about their daily activities and various missions in Vietnam. Some of the veterans who 

testified characterized defendant as a ―good soldier‖ but also as a ―loner‖ who generally 

kept to himself. Others did not specifically remember defendant. Three veterans, 

including one who allegedly knew defendant the best, for various reasons were unable to 

attend the trial and testify. 

Many of the veterans who testified suffered from posttraumatic stress disorder 

(PTSD), flashbacks, depression, or other problems as a result of their service in Vietnam. 

These veterans explained they often had problems adjusting to life after Vietnam, and 

many of those adjustment problems remained with them throughout their lives. They had 

trouble sleeping, were regularly afflicted by nightmares, and experienced problems with 

anxiety, hypervigilance, and being easily startled by innocuous sounds (such as a car 
13

backfire or a motorcycle) or simple sights (like a tree stump). One witness compared the 

experience of suffering from PTSD to ―carrying a demon around at times.‖ However, 

none had committed any felonies or crimes of violence after they returned home. 

Cross-examination further revealed that other than the death of a medic from a

mortar accident on base, there were no casualties or fatalities in any of defendant‘s 

platoons. Defendant was never captured or tortured by the enemy, and none of his units 

ever destroyed a village in a manner that killed women and children. Defendant did not 

participate in long-range reconnaissance patrols or Special Forces. Although the 

reconnaissance platoons rarely took prisoners, on one occasion, defendant‘s unit took 30 

to 50 prisoners, including women and children who were sympathetic to the enemy, but 

none of the prisoners were bound or mistreated in any way. 

After Vietnam, defendant was stationed for the remainder of his three-year tour at 

Fort Hood, Texas, where he was court-martialed four different times for being AWOL. 

Ultimately, he was demoted from his sergeant rank and honorably discharged as a 

private. 

c) Psychological evidence concerning posttraumatic stress disorder

G. Robert Baker and Thomas Williams testified for the defense as experts on 

PTSD, among other topics. Baker was a psychologist with the Department of Veterans

Affairs and clinical coordinator for the National Center for Post-Traumatic Stress 

Disorder. Williams was a psychologist who specialized in working with trauma victims 

and training individuals involved in treating veterans. Both served in Vietnam in the 

Marines Corps. 

Baker and Williams described PTSD as a reaction to unusual and frightful events 

outside the normal range of human experiences, such as those experienced in war zones. 

The symptoms of PTSD include nightmares, intrusive and unwanted thoughts and 

images, flashbacks, avoidance and dissociative behaviors, depression, psychiatric 
14

numbing, social isolation, disassociation from and distrust of others, anxiety, sleep 

disorders, anger management problems, hypervigilance, adrenalin- or sensation-seeking 

behaviors, memory impairment, and concentration difficulties. Although there is no cure 

for PTSD, the symptoms can be treated and individuals can be taught how to manage 

them. 

Williams explained symptoms such as flashbacks or nightmares could happen at 

any time depending on the particular individual and his experiences. However, certain 

stimuli would be expected to trigger them. Military training in particular sensitized 

soldiers to various stimuli and caused them to react quickly to perceived danger. PTSD 

may also be retriggered by secondary traumatic experiences, or compounded by 

preceding ones. According to Baker, although soldiers suffering from PTSD might be 

expected to avoid events such as fireworks displays, which can trigger combat memories, 

they might still carry guns, which would likewise trigger combat memories, because guns 

were a source of protection. Recurrence of malaria symptoms also can act as a PTSD 

trigger, although malaria infections themselves, which were common in Vietnam, did not 

cause PTSD. Baker also explained the concept of ―survivor guilt‖ and how soldiers who 

suffered from PTSD often exaggerated their combat roles. 

Both experts explained how the Vietnam conflict presented unique difficulties for 

many reasons—most of the soldiers were very young, the war had no front lines, there 

were no clearly defined objectives other than killing people, it was often unclear who was 

the enemy, there were no safe areas in light of the guerrilla nature of the war, there was 

no winning strategy, the primary goal was survival, there was little unit cohesion because 

soldiers were constantly being replaced, the jungle environment made living conditions 

difficult, and neither the Vietnamese civilian population nor the American public 

appreciated the soldiers. These factors made it more difficult to treat Vietnam War 

veterans suffering from PTSD. In particular, the social isolation Vietnam veterans felt 

upon returning home prevented them from seeking treatment. In defendant‘s case, the 
15

isolation was exacerbated because he did not have a loving and supportive family or 

religion to turn to upon his return. Present-day treatments for PTSD, moreover, were not 

available to veterans in the early 1970s, as the disorder was not well understood at that 

time. 

Based on his review of defendant‘s records, Baker opined defendant was involved 

in the type of combat that could produce PTSD. However, he never met or evaluated 

defendant for PTSD. Baker explained how individuals are screened for PTSD and the 

importance of confirming the truthfulness of reported personal histories in rendering a 

diagnosis, as malingering—feigning the symptoms of a disorder—can apply to someone 

claiming to suffer from PTSD. 

Williams positively diagnosed defendant as having PTSD. This diagnosis was 

based on his interviews of defendant for three days in May and June of 1995, and his 

review of the videotapes of defendant‘s interviews with the detectives and the 

reenactment, charts of the daily activities of defendant‘s Vietnam units, statements of 

family members and the veterans who served with defendant, and the penalty phase

testimony of various witnesses. Williams did not, however, meet with any of the 

witnesses from the case. 

In his interviews with Williams, defendant said when his mother abandoned him 

and his brothers, their electricity and water were turned off and they had to steal food to 

eat and use neighbors‘ swimming pools to bathe. Defendant further claimed he broke 

into other people‘s homes to observe what normal childhood and family life was like. He 

told Williams that he was isolated in the orphanage. He alluded to being sexually 

molested by his mother once, and told Williams that he was once sexually fondled by his 

father, had personally observed his father having sex with his half sister at least once, and 

―quite frequently‖ heard his stepbrother screaming as Maurice sodomized him. Although 

defendant refused to give details of the alleged molestation by his mother, saying ―he was 

going to take that to his grave,‖ Williams felt the brother‘s reported sexual abuse by 
16

Vivian and the literature on sexual abuse—which stated generally all the children are 

sexually abused within a family that has sexual abuse—corroborated defendant‘s claim of 

abuse by his mother. Williams further noted that observing sexual abuse could cause

PTSD. 

Williams opined defendant‘s PTSD was caused by childhood neglect and sexual 

abuse, as well as combat experiences in Vietnam. Defendant most likely developed 

PTSD when he was about nine years old, and then was retraumatized in Vietnam, which 

contributed to his then-current PTSD. Although he believed defendant had PTSD when 

he robbed Gill and committed the sexual offenses against Michelle I. and Samira S., 

Williams could not say whether defendant was going through a dissociative episode when 

he committed those offenses. Williams conceded child molestation, robbery, and murder 

were not part of the diagnostic criteria for PTSD. Although Williams found defendant to 

have an ―[i]nability to delay sexual gratification and generally poor sexual adjustment,‖ 

he did not consider defendant a pedophile or sex addict. 

Defendant told Williams he had always had an active ―fantasy life,‖ had difficulty 

at times distinguishing fantasy from reality, and relied on dreams for memory. When 

relating stories about Vietnam, defendant was not sure whether they really happened or 

not. Williams believed this was dissociative behavior indicative of PTSD. It was clear to 

Williams defendant‘s Vietnam service was very important to him, ―a cornerstone in his 

life.‖ Williams acknowledged defendant made inaccurate or untrue claims about his 

military background and Vietnam experiences during the police interviews. He also was 

aware defendant had altered a form regarding his military experience, listing training and 

awards he did not receive and operations in which he did not participate, and deleting 

references to his AWOLs. Williams agreed falsification of military records might 

indicate a ―factitious‖ PTSD disorder or malingering, and it was also possible defendant‘s 

false Vietnam stories were unrelated to PTSD and only ―embellishments of war stories.‖ 
17

Based on his review of autopsy photographs and defendant‘s statements to law 

enforcement officers, Williams opined defendant ―dissociated‖ at some point during the 

SOS killings. As a result of this altered state of mind, although defendant knew robbery 

was wrong at the time, he did not ―really internally believe[]‖ he had committed the 

murders until he participated in the reenactment. In support of this conclusion, Williams 

cited defendant‘s claim he felt like he was standing behind himself watching the crimes 

happen, his shooting the victims even though they were bound with tape and he already 

had the money, his viewing Smith as a threat when Smith broke his bonds, defendant‘s 

reference to ―the LT‖ or lieutenant instructing soldiers ―to always burn the village, never 

leave anyone behind, kill everyone,‖ and the physical distress defendant manifested in the 

video reenactment of the crime. Although defendant did not refer to his dreams during 

the reenactment as he had done in the first interview, Williams still felt defendant was 

―drifting‖ during the reenactment. Williams also related some of defendant‘s behaviors 

to experiences defendant had had in Vietnam, such as arming himself with a gun, using 

duct tape, and shooting the victims in the head even if they might already have been dead. 

He conceded, however, a person who intentionally makes a decision to injure another or 

rob someone in order to take money would ―probably‖ not be acting due to PTSD. 

Defendant also took a self-administered and unsupervised test called the 

Dissociation Experiences Scale (DES). Based on the DES, Williams concluded 

defendant had a high level of dissociative experiences. Another self-administered and 

unsupervised test, the Minnesota Multiphasic Personality Inventory 2 (MMPI-2), 

indicated defendant was distrustful and moody, had poor social skills, and was not 

malingering. Two subscales within the MMPI-2 scored defendant positive for PTSD. 

However, defendant declined to answer five questions out of 568, which prompted the 

testing service to state ―the pattern of his item omission should be carefully noted.‖ 
18

d) Prior crimes

Daniel and Olivia Negron knew Samira S. and her mother through church. While 

defendant was residing in Samira‘s home, the Negrons attended social functions during 

which Samira sat on defendant‘s lap and appeared to be ―very flirtatious with‖ and

―coming on‖ to him in an inappropriate manner. 

Damarie H., Samira‘s aunt, stayed at Samira‘s home for approximately six 

months, during which time defendant was sleeping on the sofa. Damarie noticed Samira 

did not shy away from the attention she received from defendant. Concerned about their 

relationship, she asked Samira if ―anything was going on‖ with defendant. Samira 

became defensive, saying her mother was ―starting to get on her case about the same 

thing.‖ Samira told her aunt defendant was ―very nice‖ and she cared for him, and tried 

to imply there was something going on between defendant and her mother. According to 

Damarie, Samira was not always truthful. Although Samira bruised easily as a result of 

having lupus, Damarie did not recall seeing any bruises on her during the time defendant 

was staying with them. 

Deputy Sheriff Pierre Nadeau interviewed Samira in October 1987. When asked 

about bruising around her eyes and swelling on the back of her head, Samira told Nadeau 

she had been injured fighting with her mother. When Deputy Sheriff Goran interviewed 

Samira, she never mentioned defendant had slapped her, but said she was afraid to say no 

to defendant because other men had previously slapped or beat her for refusing sex. 

When Dr. Kerry English examined Samira, she also did not tell him that defendant had 

slapped her. Although she indicated defendant had twice attempted to have sexual 

intercourse with her, she stated defendant stopped because it was painful for her. 

3. The prosecution’s rebuttal in aggravation 

Detective Nottingham testified defendant told him during the Deadwood, South 

Dakota, interview that he had spent two years in Vietnam and served in the Special 
19

Forces. Nottingham further explained how he found the original and altered forms 

relating to defendant‘s military record. 

II. DISCUSSION

A. Guilt Phase Issues

1. Pretrial shackling 

Defendant claims he was denied his state and federal constitutional rights to due 

process and a fair trial when he was ―repeatedly and unnecessarily‖ restrained during 

pretrial proceedings without an adequate showing of manifest need and without 

employing less restrictive alternatives. He argues the shackling rendered his trial 

structurally unsound and resulted in prejudice. This claim is meritless. 

a) Background

During the initial hearing on defendant‘s motion to suppress his statements to law 

enforcement officers, defense counsel objected to defendant‘s being shackled in the 

courtroom. The trial court ordered defendant‘s waist chains removed and his hands 

placed in regular handcuffs in front of his body. After counsel continued to object to the 

handcuffs, the prosecutor placed on the record various reasons justifying the shackling, 

including that defendant was being tried for three capital murders and had specialized 

military training. The court ultimately ruled the ―limited restraints‖ would remain for 

purposes of the current proceedings.

At the next hearing, defense counsel objected to any shackling of defendant, 

indicating defendant would ―waive all appearances if he has to go through this shackling 

business.‖ The court stated it was willing to order defendant not be restrained in the 

courtroom and to be restrained only during transit in the public halls of the courthouse, a 

routine security measure in the San Bernardino courthouse not limited to defendant. The

prosecutor concurred and the court ordered defendant ―not be shackled in the courtroom.‖ 
20

Defendant subsequently filed a motion objecting to the use of restraints in the 

holding areas of the courthouse, where he might be kept for several hours before a court 

appearance, and further requesting the case be transferred back to the Rancho 

Cucamonga courthouse, where the preliminary hearing had been held and where intransit shackling apparently was not required. The trial court ultimately ordered that

defendant not be restrained in the holding facilities or the courtroom. However, it found 

the standard procedure of shackling prisoners during public transit between the holding

cell and the courtroom to be a reasonable security precaution and denied without 

prejudice the request to transfer the case to Rancho Cucamonga. 

Later, defendant appeared in court to personally waive his presence at that and all 

future pretrial hearings. Although his legs were shackled at the time, the court assured 

defendant the shackles would be removed in the courtroom if he chose to participate in 

the proceedings. After defendant waived his presence, counsel asked he not be

transported to court again until the penalty phase jury trial or transfer of the case to 

Rancho Cucamonga. 

The balance of pretrial proceedings as well as the guilt phase bench trial took 

place in San Bernardino. Thereafter, defendant filed a written request to have the penalty 

phase tried in Rancho Cucamonga with jurors from its West End Judicial District. The 

trial court denied the request in part, ordering that jury selection occur in San Bernardino 

but that the panel be drawn exclusively from the West End. Defendant was ordered to 

personally appear to address jury selection issues but his counsel objected, claiming that 

the court‘s promises concerning shackling had not been kept and again objecting to the 

in-transit shackling. The court overruled the objection, finding it had accommodated 

defendant throughout the proceedings. Subsequent pre-penalty-phase proceedings and 

the initial portion of jury selection (primarily hardship excusals and challenges for cause 

based on the juror questionnaires) took place in San Bernardino, but the remainder of jury 
21

selection and the penalty phase trial took place in Rancho Cucamonga, after which there 

were no further shackling objections. 

b) Analysis

No defendant ―may be subjected, before conviction, to any more restraint than is 

necessary for his [or her] detention to answer the charge.‖ (§ 688.) However, an

appellate court will not overturn a trial court‘s decision to restrain a defendant ―absent  ̳a 

showing of a manifest abuse of discretion.‘ ‖ (People v. Wallace (2008) 44 Cal.4th 1032, 

1050 (Wallace).) 

The jurisprudence on shackling primarily concerns situations that might prejudice 

a jury. Such cases hold that under state law, in light of the potential harm to the 

constitutional presumption of innocence and right to be present and participate in one‘s

defense, ―  ̳[a] defendant cannot be subjected to physical restraints of any kind in the 

courtroom while in the jury‘s presence, unless there is a showing of a manifest need for 

such restraints.‘ ‖ (Wallace, supra, 44 Cal.4th at p. 1050, quoting People v. Duran

(1976) 16 Cal.3d 282, 290–291; see People v. Harrington (1871) 42 Cal. 165, 168–169; 

see also Deck v. Missouri (2005) 544 U.S. 622, 624.) 

Defendant incorrectly assumes the propriety of shackling a defendant while in 

transit through the public hallways of a courthouse to attend a pretrial hearing, the factual 

scenario presented here, should be assessed under the same standards used to determine 

whether a defendant can be shackled while in the courtroom. Not so. The considerations 

of public safety and the need for restraints are different during prisoner transport than 

when a defendant is seated in a secured courtroom. We have long observed that a

defendant may be restrained while in transit between a jail and the courtroom without 

reference to any particularized showing of need. (See, e.g., People v. Ross (1967) 67 

Cal.2d 64, 72 [―It was a reasonable practice for the sheriff to keep prisoners handcuffed 

while in transit, and the fact that the handcuffs were removed inside the courtroom rather 
22

than outside added to the security.‖]; People v. Metzger (1904) 143 Cal. 447, 449 [―In 

many cases it is proper, and it is often necessary as a precaution, to manacle a prisoner to 

secure his safe conduct and guard against an escape while on the way from the jail to the 

courtroom.‖]); see also People v. Hardy (1992) 2 Cal.4th 86, 180; accord, People v. 

Jacobs (1989) 210 Cal.App.3d 1135, 1140–1141; People v. Du Bose (1970) 10 

Cal.App.3d 544, 549–550; U. S. v. Leach (8th Cir. 1970) 429 F.2d 956, 962.].) 

Accordingly, we see no abuse of discretion in the use of physical restraints during 

defendant‘s transit through the public hallways of the San Bernardino courthouse without 

any particularized showing of need. The shackling was a reasonable and limited

precaution taken to retain custody of an accused and was no more restraint than was

necessary for his detention. The in-transit physical restraints in no way affected the 

conduct or outcome of the trial, whether before judge or jury, nor did they impinge upon 

the presumption of innocence or defendant‘s right to present a defense. 

In his reply, defendant argues that given the necessity of shackling him for 

transport through the halls to his courtroom in San Bernardino, ―the unreasonable burden 

placed on this defendant should have been ameliorated by moving the proceeding to a 

different courtroom or to Rancho Cucamonga.‖ He cites no authority to support this 

proposition, nor are we aware of any. As noted, defendant‘s shackling for security during 

transport was a limited and reasonable imposition. The trial court was not required to

move the proceedings to a different courtroom or to the Rancho Cucamonga courthouse 

simply to obviate this precaution. 

2. Waiver of the right to be present at pretrial and guilt phase

proceedings

Defendant claims the trial court violated his state and federal constitutional rights 

to due process and a fair trial when it excused him from numerous pretrial proceedings 

and the guilt phase of his trial based on a waiver of his personal presence that allegedly 

was coerced by ―painful, excessive, and unnecessary shackling.‖ He additionally 
23

contends the trial court violated sections 977 and 1043 by accepting involuntary waivers 

of his right to be personally present at the guilt phase of his capital murder trial without 

adequate justification. 

a) Constitutional right to be present

―Under the Sixth Amendment, a defendant has the right to be personally present at 

any proceeding in which his appearance is necessary to prevent  ̳interference with [his]

opportunity for effective cross-examination.‘ [Citations.] Due process guarantees the 

right to be present at any  ̳stage . . . that is critical to [the] outcome‘ and where the 

defendant‘s  ̳presence would contribute to the fairness of the procedure.‘ ‖ (People v. 

Butler (2009) 46 Cal.4th 847, 861.) The state constitutional right to be present at trial, 

which is guaranteed by article I of the California Constitution, ―  ̳is generally coextensive 

with the federal due process right.‘ ‖ (Butler, at p. 861.) As a matter of both federal and 

state constitutional law, however, a defendant may validly waive his or her right to be 

present during a critical stage of the trial, provided the waiver is knowing, intelligent, and 

voluntary. (People v. Moon (2005) 37 Cal.4th 1, 20–21 (Moon); People v. Jackson

(1996) 13 Cal.4th 1164, 1210 (Jackson).)

Defendant premises his challenge to the voluntariness of his right to be present 

waivers entirely on the argument that the waivers were induced and coerced by improper 

shackling. He contends he was forced to waive his presence ―simply because he could 

not endure the effects of the wrist, waist and leg chains every day for more than eight 

hours a day.‖ (Italics added.) The record demonstrates, however, that the trial court 

relieved defendant of all physical restraints in the courtroom and holding cell prior to any

evidentiary hearings or critical phases of the postarraignment proceedings. Thereafter, 

defendant remained subjected to physical restraints only for the time it took to transport 

him to and from the holding cell and the courtroom. Having concluded that this limited

in-transit shackling was not an abuse of the trial court‘s discretion, we further conclude 
24

the use of restraints in transit did not improperly coerce defendant to waive his presence 

at the pretrial and guilt phase proceedings, particularly as the court permitted him to 

remain completely unrestrained in the courtroom. 

An analogous situation was presented in People v. Price (1991) 1 Cal.4th 324 

(Price). After a hearing outside the presence of the jury during which the evidence 

established the defendant had committed multiple acts and threats of violence against 

officers at the jail or while being transported to court, the court ordered he be secured to 

his chair in the courtroom by a single belly chain not visible to the jury. The defendant 

then stated ―he would rather be absent from the trial than appear before the jury in chains. 

The trial court allowed defendant to leave the courtroom and return to the jail, after 

informing defendant that his leaving would be construed as a voluntary waiver of 

presence. After giving the matter further thought, the court directed jail officers to bring 

defendant back to the courtroom, but defendant refused to dress in civilian clothing for 

the court appearance. The court then concluded that defendant had effectively waived his 

presence. The remainder of the guilt phase proceeded in his absence.‖ (Id. at pp. 404–

405.)

On appeal, we found ―no constitutional infirmity in the trial court‘s decisions . . .

to accept defendant‘s actions as a voluntary waiver and to proceed with the guilt phase in 

defendant‘s absence.‖ (Price, supra, 1 Cal.4th at p. 405.) Similarly here, we find no 

constitutional infirmity in defendant‘s waivers of his right to be present at pretrial 

proceedings and the guilt phase, even assuming such waivers were motivated in part by 

concerns about the in-transit shackling that would have accompanied his appearing in 

court. 

b) Statutory right to be present

The issue of statutory error is another matter. As we have previously 

acknowledged, ―defendant‘s statutory ability to waive his presence in a capital case is 
25

more circumscribed than the associated ability to waive his constitutional right.‖ (People 

v. Rundle (2008) 43 Cal.4th 76, 135 (Rundle); see also Jackson, supra, 13 Cal.4th at p.

1211.) Specifically, section 977 requires any defendant charged with a felony to ―be 

personally present at the arraignment, at the time of plea, during the preliminary hearing, 

during those portions of the trial when evidence is taken before the trier of fact, and at the 

time of the imposition of sentence. The accused shall be personally present at all other 

proceedings unless he or she shall, with leave of court, execute in open court, a written 

waiver of his or her right to be personally present, as provided by paragraph (2).‖ (§ 977, 

subd. (b)(1), italics added.) Section 1043 provides that a felony defendant ―shall be 

personally present at the trial‖ (id., subd. (a)), but that the trial may continue in a 

defendant‘s absence if the defendant (1) persists in disruptive behavior after being 

warned (id., subd. (b)(1)); (2) is voluntarily absent in ―[a]ny prosecution for an offense 

which is not punishable by death‖ (id., subd. (b)(2), italics added); or (3) has waived his 

rights ―in accordance with Section 977‖ (id., subd. (d)). Read together, the statutes 

provide that a capital defendant cannot voluntarily waive his right to be present during 

the proceedings listed in section 977, including those portions of the trial in which 

evidence is taken, and he may not be removed from the courtroom pursuant to section 

1043 unless he has been disruptive or threatens to be disruptive.

Defendant correctly contends his absence during the guilt phase violated sections 

977 and 1043. However, assuming defendant has not forfeited his claim of statutory 

error by failing to raise it below (see Rundle, supra, 43 Cal.4th at p. 135), the error does 

not warrant reversal of the judgment because it is not reasonably probable the result of 

the trial would have been more favorable to defendant absent the error. (See People v. 

Weaver (2001) 26 Cal.4th 876, 968.) Defendant fails to explain how he could have 

effectively assisted counsel in subjecting the prosecution‘s case to meaningful adversarial 

testing. We therefore conclude the violations of sections 977 and 1043 were harmless. 

(See, e.g., Moon, supra, 37 Cal.4th at p. 21.)
26

Relying upon Hicks v. Oklahoma (1980) 447 U.S. 343, 346, defendant also 

contends the statutory violation deprived him of his federal constitutional procedural due 

process rights because the ―arbitrary‖ violation of section 977 and section 1043 allegedly 

deprived him of a state-created ―liberty interest‖ in the proper application of state law. 

We have previously rejected this exact argument. (See Rundle, supra, 43 Cal.4th at p. 

136.) 

3. Waiver of the right to a guilt phase jury

Defendant claims the ―wanton infliction of pain‖ caused by the daily courthouse 

shackling not only coerced a waiver of his right to be present at the guilt phase, but also 

resulted in the involuntary waiver of his right to a jury trial at the guilt phase in order to

avoid the alleged ―embarrassment and prejudice‖ attendant to being tried by a jury while 

he was not present. He argues the failure to obtain a knowing and intelligent waiver of 

his right to a jury trial violated his state and federal constitutional right to due process and 

requires the reversal of his conviction. As with his claim concerning the waiver of his 

right to be present, this claim is without merit. 

At a pretrial status conference, the prosecutor informed the court he had discussed

with defense counsel the possibility of having a bench trial for the guilt phase. Defense 

counsel confirmed, stating ―I am inclined to agree to recommend to my client that if he‘s 

agreeable, then we‘re agreeable to a court trial on the guilt phase[, although w]e would 

still want a jury trial in the penalty phase.‖ At the next status conference, defense counsel 

confirmed defendant had filed a written waiver of his right to a jury trial of the guilt 

phase, stating, ―[W]e don‘t wish to have a jury decide [the issue of defendant‘s guilt or 

innocence,] just the court.‖ The court indicated a personal appearance by defendant was 

required for the waiver to be effective. 

Defendant subsequently appeared in person via closed-circuit television to waive 

his right to a guilt phase jury trial. In response to questioning by the court, defendant 
27

indicated he understood (1) he had an absolute right to a jury trial in both the guilt and 

penalty phases of his trial, (2) in a jury trial, if one of the 12 jurors was not convinced 

beyond a reasonable doubt that defendant was guilty, the jury could not return a guilty 

verdict, (3) if he waived his right to a jury trial, instead of 12 people deciding the issue of 

his guilt or innocence, the judge alone would make that decision, and (4) it could be 

easier for the prosecution to convince only one person, as opposed to 12, that defendant 

was guilty beyond a reasonable doubt. Defendant nevertheless stated he wished to waive 

his right to a jury trial for the guilt phase, confirming he had discussed the issue with his 

counsel, who concurred in the waiver.

As relevant here, the Sixth Amendment to the United States Constitution provides:

―In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 

trial, by an impartial jury of the state and district wherein the crime shall have been 

committed . . . .‖ (See also Cal. Const., art. I, § 16 (―Trial by jury is an inviolate right and 

shall be secured to all . . . .‖].) Although trial by jury is a fundamental constitutional 

right, a criminal defendant may waive the right. (See Adams v. United States (1942) 317 

U.S. 269, 275; see also Cal. Const., art. I, § 16.) However, ―[a]s with the waiver . . . of 

several other constitutional rights . . . long . . . recognized as fundamental, [in order to be 

valid] a defendant‘s waiver of the right to jury trial must be knowing and intelligent, that 

is,  ̳ ―  ̳made with a full awareness both of the nature of the right being abandoned and the 

consequences of the decision to abandon it,‘ ‖ ‘ as well as voluntary,  ̳ ―  ̳in the sense that 

it was the product of a free and deliberate choice rather than intimidation, coercion, or 

deception.‘ ‖ ‘ ‖ (People v. Collins (2001) 26 Cal.4th 297, 305.) 

The conclusion defendant‘s waiver of a guilt phase jury was knowing, intelligent, 

and voluntary is supported by his clear express waiver, made in open court, with 

counsel‘s consent and agreement, and after a full explanation from the court of the right 

and the consequences of the waiver. Conversely, the record does not support defendant‘s 

contention that his waiver was induced by the ―inhumane courtroom restraints in the San 
28

Bernardino County Courthouse.‖ Having been relieved of all physical restraints in the 

courtroom and holding cell well before the guilt phase commenced, defendant would 

have been restrained during the trial only for the time it took to transport him to and from 

the holding cell and the courtroom. Having concluded this limited in-transit shackling 

was not an abuse of the trial court‘s discretion and did not improperly coerce defendant to 

waive his right to be present, we further conclude it did not improperly coerce 

defendant‘s waiver of his right to a jury trial for the guilt phase, particularly as he was 

permitted to remain completely unrestrained while in the courtroom. 

4. The guilt phase bench trial as tantamount to a “slow plea of guilty”

Defendant claims defense counsel failed to mount a defense at the guilt phase—

presenting no affirmative witnesses, evidence, or defenses and conceding defendant‘s 

guilt on all the charges—and contends this failure was the ―functional equivalent of a 

slow plea of guilty‖ that denied defendant his state and federal constitutional rights to 

enter a knowing and voluntary guilty plea following a full advisement of rights and 

express waiver of those rights. Respondent argues that defendant forfeited this claim by 

repeatedly rejecting the trial court‘s offers to set aside the guilt phase verdict and grant 

him a new guilt phase trial with or without a jury, or, in the alternative, that defendant is 

barred from raising it under the doctrine of invited error. We need not decide the 

forfeiture and invited error issues, however, because even assuming the claim has not 

been forfeited and is not barred, it lacks merit. 

In In re Mosley (1970) 1 Cal.3d 913, we stated that if a defendant‘s stipulation to 

submit a case for decision on the basis of the transcripts of the preliminary hearing is, in 

the circumstances of the particular case, ―tantamount to a plea of guilty,‖ it must be 

accompanied by Boykin-Tahl advice and waivers, that is, the advisement and express 

personal waiver of three specific constitutional rights—the rights to a jury trial, to 

confront and cross-examine witnesses, and against self-incrimination. (Mosley, at p. 924; 
29

id. at p. 925 & p. 926, fn. 10; see Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl

(1969) 1 Cal.3d 122.) The phrase ―  ̳tantamount to a plea of guilty‘ ‖ was used ―to 

explain [the] extension of the Boykin-Tahl requirements to submissions in which the guilt 

of the defendant was apparent on the basis of the evidence presented at the preliminary 

hearing and in which conviction was a foregone conclusion if no defense was offered.‖ 

(Bunnell v. Superior Court (1975) 13 Cal.3d 592, 602 (Bunnell).)2 We have further 

suggested that ―a  ̳slow plea‘ of guilty‖ may occur where a defendant submits the issue of 

his or her guilt of the charged offense on the basis of the police report (In re Jennings

(2004) 34 Cal.4th 254, 265, fn. 5) or ―other documentation‖ (People v. Watson (2007) 42 

Cal.4th 822, 826, fn. 3), or where a defendant in a capital case submits the issue of 

penalty on the transcript of prior proceedings (People v. Robertson (1989) 48 Cal.3d 18, 

39 (Robertson)).

In Robertson, we explained that ―submission‖ within the meaning of the slow plea 

doctrine ―is defined by the rights a defendant surrenders.‖ (Robertson, supra, 48 Cal.3d 

at p. 40.) ―Although the parties may reserve the right to present additional evidence, the 

essential components of a submission are waiver of a jury trial and, with respect to the 

witnesses who testified in the prior proceedings, waiver of the right to confrontation in 

the present proceeding. [Citations.] When the submission is a  ̳slow plea‘ or  ̳tantamount 

to a plea of guilty,‘ the defendant also gives up his privilege against self-incrimination.‖ 

(Ibid.; see Wright, supra, 43 Cal.3d at p. 495 [―If the submission does not amount to a 

slow plea of guilty, there is no involuntary confession of guilt.‖].)

Defendant‘s stipulation to a bench trial for the guilt phase in this case was not 

tantamount to a plea of guilty. (See Robertson, supra, 48 Cal.3d at p. 40; People v. 

 

2 In Bunnell, as a matter of judicial policy we mandated Boykin-Tahl advisements

and waivers in all cases submitted for decision on the basis of the transcript of the 

preliminary hearing. (Bunnell, supra, 13 Cal.3d at p. 605.) But unless the submission 

was tantamount to a plea of guilty, a Bunnell error requires reversal only if the error was 

prejudicial to the defendant. (People v. Wright (1987) 43 Cal.3d 487, 494–495 (Wright).) 
30

Hendricks (1987) 43 Cal.3d 584, 592–594; Wright, supra, 43 Cal.3d at p. 497.) Although 

in agreeing to the stipulation defendant gave up his right to a jury trial, he was advised of 

and personally waived this right. In so stipulating he did not give up the right to 

confrontation and cross-examination or to remain silent. To the contrary, defendant 

enjoyed a full court trial during which he confronted, cross-examined, and attempted to 

impeach the prosecution witnesses, and exercised his right against self-incrimination by 

not taking the witness stand. Having fully exercised these rights, there was no need for 

defendant to waive them. Additionally, defense counsel conceded neither guilt nor the 

necessary elements of the various offenses, but rather required the prosecution to prove 

every element of every crime through the testimony of 16 witnesses and attempted to 

raise reasonable doubt in various areas. As counsel stated in closing argument, although 

defendant may have wished to take responsibility for the crimes, ―failing a settlement that 

I can live with, as a lawyer I must contest the charges.‖ 

5. The admission of defendant’s statements to law enforcement officers 

and his videotaped reenactment

Defendant claims the trial court erred in admitting in both the guilt and penalty 

phases of the trial the contents of his custodial interrogations and his videotaped 

reenactment at the SOS store, in violation of his state and federal constitutional rights to 

due process, to be free from self-incrimination, and to be subjected to custodial

interrogation only with the assistance of counsel. According to defendant, law 

enforcement officers deliberately violated Miranda, supra, 384 U.S. 436, ignored an 

unambiguous request for counsel, and used a variety of coercive tactics that, when 

considered in their totality, demonstrate his statements were involuntary. He argues that 

as a result, the incriminating statements were the product of repeated and intentional 

violations of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United 

States Constitution and article I, section 15 of the California Constitution, and that the 

allegedly erroneous admission of the confessions was prejudicial. 
31

As discussed below, we conclude defendant understood the Miranda warnings he 

was given, validly waived his Fifth Amendment rights to remain silent and to an attorney, 

and made uncoerced statements to law enforcement officers. We therefore reject 

defendant‘s arguments regarding his taped statements and the video reenactment.

a) Background

The prosecution first sought to introduce defendant‘s various interviews and the 

video reenactment during the preliminary hearing. Defense counsel objected. At a 

hearing on the issue, a magistrate judge found the detectives did not violate Miranda, 

supra, 384 U.S. 436, did not make any false statements inducing the confessions, and did 

not improperly fail to clarify a request for counsel. The judge further concluded 

defendant was properly advised of and knew his rights, and the statements and the video 

reenactment were made freely and voluntarily.

Before the guilt phase, defense counsel moved to suppress the custodial 

statements, any resulting admissions, and the video reenactment. The trial court held an 

evidentiary hearing at which evidence was presented concerning defendant‘s previous 

interrogations by law enforcement officers in April 1982 and January 1988 in connection 

with charges of oral copulation with Michelle I. and child molestation of Samira S., 

respectively. In each instance, defendant was advised of his Miranda rights and asked if

he understood them, whether he wanted to talk about the case, and whether he wanted a 

lawyer; in each instance defendant agreed to talk to the officers without a lawyer and 

either wrote down his responses to the waiver questions or signed a waiver statement. 

Ontario Police Department detectives testified about an exchange that occurred 

during the preliminary six minutes of their initial meeting with defendant in Deadwood, 

South Dakota before they gave him the first Miranda warning. After introductions and 

general questions about defendant‘s welfare, defendant asked detectives whether his 

girlfriend, Costello, was in jail. Detective Ortiz responded, ―She‘s in our custody. She‘s 
32

safeguarded.‖3 When defendant claimed that Costello was ―not involved in any of this‖ 

and ―shouldn‘t be in custody,‖ the detectives responded, ―[T]hat‘s what we need to find 

out from you. . . . And this is your opportunity, okay . . . . We both have [the] suspicion 

. . . that . . . she didn‘t have nothing [sic] to do with anything that happened before . . . 

you started running. But basically we wanted to find out from you.‖ They also related

arriving at Folsom Prison to transport defendant to the video reenactment. The trial court 

additionally considered the preliminary hearing testimony of three law enforcement 

officers who were involved in the traffic stop and arrest of defendant. 

Finally, several police officers testified concerning the department‘s practice at the 

time of defendant‘s interrogations of deliberately omitting the ―express waiver‖ question 

from Ontario Police Department form 4.17, from which Miranda advisements were read. 

That question asked whether, having the Miranda rights in mind, the suspect wished to 

talk to about the case. The practice of omitting this question was based on police 

training, information gleaned from prosecutors, and confirmation from the courts 

indicating such waiver was unnecessary. In October 1992, after defendant was 

interrogated, the San Bernardino County District Attorney‘s Office issued a

memorandum advising the department to ask the express waiver question in their 

interrogations. 

With respect to the motion to suppress, the trial court found the detectives‘ 

comments during the first six minutes of the initial Deadwood interview, prior to giving a 

Miranda admonition about Costello being ―in custody‖ and ―safeguarded,‖ to which 

defendant responded by protesting Costello‘s innocence, constituted psychological 

inducement or ―softening up‖ likely to evoke incriminating statements. Therefore, 

defendant‘s responses during that time had been obtained in violation of Miranda. As to 

his later statements after the first Miranda admonition, the court found by a 

 

3 It appears that Costello in fact was staying at a hotel with a law enforcement 

matron. 
33

preponderance of the evidence under the totality of the circumstances that defendant 

understood his constitutional rights, and his implied waiver of those rights ―was 

voluntary and was a result of his own desire to make statements‖ and not the product of

the prior improper influences. The trial court also found that: (1) defendant‘s 

incriminating statements were not induced by improper police conduct; (2) there was no 

bad faith intent to violate his Miranda rights, as the detectives had a good faith belief that 

the practice of not obtaining an express waiver was lawful; (3) defendant‘s ambiguous 

comment about having ―someone here to talk for me‖ did not constitute an invocation of 

the right to counsel; and (4) no further Miranda advisements were required for the 

second, third and fourth Deadwood interviews because their purpose was merely to 

briefly clarify matters covered in the first interrogation. 

With respect to the video reenactment, the court found (1) Sergeant Lewis‘s 

inquiry at Folsom Prison concerning whether defendant was willing to cooperate with 

authorities in an ―ongoing investigation of a murder in a warehouse‖ was not a custodial 

interrogation requiring a Miranda warning, and nothing Lewis said or did improperly 

induced defendant‘s agreement to cooperate; (2) later, more specific questioning by the 

detectives who went to the prison to retrieve defendant for the reenactment was improper 

because an affirmative answer to the question whether defendant remained willing ―to 

reenact the crimes,‖ in and of itself, would be incriminating, but this one question did not 

influence defendant‘s previous agreement to cooperate; and (3) the reenactment was 

validly conducted after a full Miranda advisement with an express waiver. 

Consequently, the court ruled defendant‘s multiple statements and confessions 

were admissible in the prosecution‘s case-in-chief during both the guilt and penalty 

phases of the trial, with the exception of the first six minutes of the initial interview and 

the in-prison questioning of defendant specifically about reenacting the crimes.
34

b) Analysis

Defendant advances various arguments in support of the proposition the trial court 

erred in failing to suppress his statements to law enforcement officers and the video 

reenactment as obtained in contravention of his constitutional right against compelled 

self-incrimination. None of these arguments are persuasive. 

(1) Alleged deliberate violation of Miranda

Defendant argues his custodial statements should have been suppressed because 

they were obtained after a deliberate violation of Miranda, supra, 384 U.S. 436. This 

deliberate violation allegedly occurred when, during the first interview, Detectives 

Nottingham and Ortiz intentionally declined to seek an express waiver of defendant‘s

right to silence after giving the Miranda advisement.

In general, if a custodial suspect, having heard and understood a full explanation 

of his or her Miranda rights, then makes an uncompelled and uncoerced decision to talk, 

he or she has thereby knowingly, voluntarily, and intelligently waived them. (Colorado 

v. Spring (1987) 479 U.S. 564, 574.) Law enforcement officers are not required to obtain 

an express waiver of a suspect‘s Miranda rights prior to a custodial interview. (See 

North Carolina v. Butler (1979) 441 U.S. 369, 373 (Butler) [―An express written or oral 

statement of waiver of the right to remain silent or of the right to counsel is usually strong 

proof of the validity of that waiver, but is not inevitably either necessary or sufficient to 

establish waiver.‖].) Rather, a valid waiver of Miranda rights may, as here, be inferred 

from the defendant‘s words and actions. (Butler, at p. 373.) As the detectives who 

interrogated defendant were not required to obtain an express waiver of the right to 

silence from him, the intentional failure to do so was not a deliberate Miranda violation 

requiring the suppression of his subsequent statements. 

(2) Alleged coercion of defendant’s custodial statements

Alternatively, defendant contends his incriminating custodial statements were 

involuntary in light of a combination of other factors, including his compromised mental 
35

state, the detectives‘ use of deception, and their implied promise to help his companion, 

Costello. 

The test for the voluntariness of a custodial statement is whether the statement is 

―  ̳the product of an essentially free and unconstrained choice‘ ‖ or whether the 

defendant‘s ―  ̳will has been overborne and his capacity for self-determination critically 

impaired‘ ‖ by coercion. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 225.) No 

single factor is dispositive; ―rather courts consider the totality of [the] circumstances.‖

(People v. Williams (1997) 16 Cal.4th 635, 661 (Williams); see People v. Neal (2003) 31 

Cal.4th 63, 79 (Neal).) Relevant considerations include ―  ̳the crucial element of police 

coercion [citation]; the length of the interrogation [citation]; its location [citation]; its 

continuity‘ as well as  ̳the defendant‘s maturity [citation]; education [citation]; physical 

condition [citation]; and mental health.‘ ‖ (Williams, at p. 660; see Neal, at p. 84 

[appellate review entails ―  ̳inquiry into all the circumstances,‘ including  ̳evaluation of 

[defendant‘s] age, experience, education, background, and intelligence‘ ‖].) 

―In assessing allegedly coercive police tactics,  ̳[t]he courts have prohibited only 

those psychological ploys which, under all the circumstances, are so coercive that they 

tend to produce a statement that is both involuntary and unreliable.‘ ‖ (People v. Smith

(2007) 40 Cal.4th 483, 501; see, e.g., People v. Kendrick (1961) 56 Cal.2d 71, 84 

(Kendrick) [―a confession has been held involuntary and inadmissible where it was 

obtained as a result of . . . such inducements as a promise to do for an accused all that 

could be done [citation] or to protect the accused‘s family from retaliation [citation] or a 

statement that if the accused confessed the punishment would be lighter [citation] or that 

it would be better for him to confess [citation] or by threats to hold the accused‘s 

mother‖].) 

Additionally, although coercive police conduct is a necessary predicate, such 

conduct does not compel a finding that the resulting statement is involuntary. (People v. 

Jablonski (2006) 37 Cal.4th 774, 814 (Jablonski).) A confession is involuntary only if
36

the coercive police conduct at issue and the defendant‘s statement are causally related. 

(Colorado v. Connelly (1986) 479 U.S. 157, 164, fn. 2, & 167; Jablonski, at p. 814 [The 

police misconduct ―  ̳must be . . . the ―proximate cause‖ of the statement in question, and

not merely a cause in fact.‘ ‖]; see, e.g., People v. Guerra (2006) 37 Cal.4th 1067, 1095–

1096 [the defendant‘s statements were not coerced by false threats of arrest; the sole 

cause appearing in the record for his cooperation during the interview was the desire to 

exculpate himself]; Williams, supra, 16 Cal.4th at p. 661 [promises of leniency were ―not 

the motivating cause of [the] defendant‘s admissions‖].)

Here, even assuming, as the trial court found, the detectives engaged in improper 

―softening up‖ at the outset of the first interview by claiming defendant‘s companion, 

Costello, was in custody and implying defendant could exonerate her by speaking to 

them, the totality of the circumstances of the interrogation support the conclusion 

defendant‘s statements given after he was later advised of his Miranda rights were 

voluntary and not the product of psychological inducement. The detectives‘ comments 

concerning Costello were relatively brief, lasting only three-to-four minutes of the 

preliminary six minutes of the interview and fell ―far short of a threat to arrest‖ Costello 

unless defendant confessed. (Kendrick, supra, 56 Cal.2d at p. 86.) Importantly, the 

comments were immediately followed by the first of two Miranda advisements given to 

defendant, following both of which defendant stated unequivocally he understood the 

rights read to him and continued to talk to the detectives and to answer their questions. 

(Cf. People v. Honeycutt (1977) 20 Cal.3d 150, 158, 160 [a half-hour of ―clever

softening-up, . . . disparagement of the victim and ingratiating conversation‖ induced the 

defendant to agree to talk about the homicide well before being advised of his Miranda 

rights].) 

During the interview, defendant indicated several times that, for various personal 

reasons, he had decided beforehand to talk to the detectives about the case. Defendant‘s 

pre-interview decision is the sole reason appearing in the record for his cooperation. It 
37

thus does not appear the detectives‘ alleged attempts at softening up defendant overcame 

his will to resist or his ability to freely determine whether he wanted to talk to the 

detectives, such that it could be said the short discussion regarding Costello was the 

proximate cause of defendant‘s later incriminating statements.

We further note neither the length nor physical circumstances of the interrogation 

appear to have been coercive; the initial interview was spread over a four-hour period

with the detectives offering defendant both food and drink. Nor was the tone of the 

questioning as evidenced in the transcript particularly harsh or accusatory. 

Additionally, at the time of the interview, defendant was ―a man of mature years 

with an extensive criminal history.‖ (Jablonski, supra, 37 Cal.4th at p. 815.) In his 42 

years, he had had extensive prior contacts with law enforcement and the criminal justice 

system, including having served two prior prison terms and one prior county jail term. In 

connection with his felony convictions, defendant twice had been interviewed by law 

enforcement officers, during which he was advised of and executed express written 

waivers of his Miranda rights.

Finally, with respect to defendant‘s mental state, it does not appear the detectives 

exploited any psychiatric problems in order to produce the incriminating statements. 

Before interviewing him, the detectives inquired about defendant‘s general welfare and 

mental state, and in response he expressed no concerns regarding his well-being or 

treatment, stating he had slept 24 hours straight. 

Defendant nevertheless argues his soft-spoken nature, various references to 

dreams and experiences in the Vietnam War, and ―consistently vague‖ responses 

demonstrate his fragile mental state during the interview. We disagree. A fair

assessment of the interview in its entirety shows defendant responded to the detectives‘

inquiries while exhibiting normal emotions to be expected of a murder suspect facing his 

accusers and reliving the details of a horrible crime. That a murder suspect is soft-spoken 

is less an indication of mental illness than an understandable and expected reaction of a
38

person confronted with committing such horrendous crimes. Nor does the circumstance 

defendant may have dreamed about the homicides and their likely ramifications

necessarily show the existence of mental defect. Although he became emotional at times, 

defendant also took considerable time to weigh his responses before answering the 

detectives‘ questions. Some answers may have required clarification, but they were 

generally responsive. We note the detectives believed the references to Vietnam were 

defendant‘s attempt to build a defense. 

Lastly, defendant‘s incriminating statements were not rendered involuntary by any 

mental disease or defect. Even if some of defendant‘s behavior was irrational or bizarre, 

there is no evidence his ―abilities to reason or comprehend or resist were in fact so 

disabled that he was incapable of free or rational choice.‖ (In re Cameron (1968) 68 

Cal.2d 487, 498; see, e.g., People v. Frye (1998) 18 Cal.4th 894, 988 (Frye) [defendant‘s 

consumption of alcohol did not so impair his reasoning that ―he was incapable of freely 

and rationally choosing to waive his rights and speak with the officers‖]; People v. 

Mayfield (1993) 5 Cal.4th 142, 204 [defendant, who throughout the lengthy interview 

sounded lucid, spoke clearly if somewhat slowly, and at times ―engaged in animated, 

jocular, prideful, indignant or defiant conversation‖ with the detectives, was not mentally 

impaired when he made his audiotaped statement].) 

(3) Failure to terminate the interrogation after defendant allegedly 

invoked his right to counsel

Defendant contends his incriminating statements should have been suppressed 

because detectives ignored an unambiguous request for an attorney. He claims he 

invoked his right to counsel during the first interview when he stated, ―I committed an 

armed robbery yes. Should I have somebody here talking for me, is this the way it‘s 

supposed to be?‖ We conclude defendant‘s vague question did not qualify as an 

unequivocal invocation of the right to counsel requiring the cessation of questioning. 
39

Once a defendant has waived his or her right to counsel, as defendant impliedly

did at the outset of the interview, if that defendant has a change of heart and subsequently 

invokes the right to counsel during questioning, officers must cease interrogation unless 

the defendant‘s counsel is present or the defendant initiates further exchanges, 

communications, or conversations. (See Edwards v. Arizona (1981) 451 U.S. 477, 484–

485.) For a statement to qualify as an invocation of the right to an attorney, however, the 

defendant ―must unambiguously request counsel. . . . [H]e must articulate his desire to 

have counsel present sufficiently clearly that a reasonable police officer in the 

circumstances would understand the statement to be a request for an attorney.‖ (Davis v. 

United States (1994) 512 U.S. 452, 459 (Davis).) ―[A] reviewing court—like the trial 

court in the first instance—must ask whether, in light of the circumstances, a reasonable 

officer would have understood a defendant‘s reference to an attorney to be an 

unequivocal and unambiguous request for counsel, without regard to the defendant‘s

subjective ability or capacity to articulate his or her desire for counsel, and with no 

further requirement imposed upon the officers to ask clarifying questions of the 

defendant.‖ (People v. Gonzalez (2005) 34 Cal.4th 1111, 1125 (Gonzalez); see People v. 

Williams (2010) 49 Cal.4th 405, 428 [―[T]he question of ambiguity in an asserted 

invocation must include a consideration of the communicative aspect of the invocation—

what would a listener understand to be the defendant‘s meaning.‖].) 

Here, before the disputed exchange, defendant volunteered, ―I know what you 

guys are getting at. . . . I also want you to know that the reason why I‘m so calm is 

because I‘m where I belong.‖ When asked to clarify what he meant, defendant replied, 

―You know as well as I do that I committed an armed robbery in Ontario‖ at ―Mike‘s

company.‖ When Detective Ortiz indicated he wanted additional clarification, defendant 

reiterated, ―I committed an armed robbery yes,‖ and then asked, ―Should I have 

somebody here talking for me, is this the way it‘s supposed to be?‖ Far from 

unambiguously requesting counsel, defendant appeared to be expressing frustration at the 
40

detectives‘ attempts to clarify his initial statements regarding the armed robbery. At 

most, a reasonable officer could have understood defendant‘s inquiry as an indication he 

might want an attorney, in which case the detectives still would not have been required to 

terminate the interrogation. (See Davis, supra, 512 U.S. at p. 459 [―[I]f a suspect makes 

a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in 

light of the circumstances would have understood only that the suspect might be invoking 

the right to counsel, our precedents do not require the cessation of questioning.‖].) 

Defendant complains the detectives should have asked questions to clarify whether 

he was invoking his right to counsel. There is no requirement law enforcement officers

interrupt an interrogation to ask clarifying questions following a suspect‘s ambiguous or 

equivocal responses that might or might not be construed as an invocation of the right to 

an attorney. (Davis, supra, 512 U.S. at pp. 461–462; see People v. Farnam (2002) 28 

Cal.4th 107, 181.) We again note defendant had extensive prior contacts with the police, 

including two interviews in which he expressly waived his right to counsel. The 

detectives in this case ―could reasonably have assumed that defendant was capable of 

making an unequivocal request for counsel if he so desired.‖ (Gonzalez, supra, 34 

Cal.4th at p. 1127.) Moreover, after defendant‘s question and before the resumption of 

questioning, defendant was again advised of his Miranda rights, expressly stated he 

understood them, and continued to talk to the detectives rather than invoke his right to 

counsel or to silence. Later in the interview, defendant specifically confirmed the intent 

to waive his right to counsel when he stated he did not want to fight the case, did not need 

a lawyer, did not ―believe in the routine of lawyers, or courts and all that,‖ and did not 

feel a lawyer could do anything for him. 

Considering the totality of the circumstances, ―[s]hould I have somebody here 

talking for me‖ was not an unambiguous request for counsel requiring detectives to cease 

interrogating defendant. (See, e.g., Gonzalez, supra, 34 Cal.4th at p. 1126 [defendant‘s

conditional statement that he wanted a lawyer ―if he was going to be charged‖ was not an
41

invocation of right to counsel]; People v. Crittenden (1994) 9 Cal.4th 83, 124, 128–131 

(Crittenden) [defendant‘s query—―  ̳Did you say I could have a lawyer?‘ ‖—was a 

clarification of rights rather than an unambiguous invocation]; People v. Johnson (1993) 

6 Cal.4th 1, 27 [defendant‘s statements that ―  ̳Maybe I ought to talk to my lawyer, you 

might be bluffing, you might not have enough to charge murder‘ ‖ and that his mother 

would secure ―  ̳a high price[d]‘ lawyer‖ was not an invocation].)

(4) Failure to suppress the videotaped reenactment

Finally, defendant raises various additional challenges to the admission of the

videotaped reenactment of the crimes. First, relying on People v. Bonillas (1989) 48 

Cal.3d 757, and People v. Thompson (1980) 27 Cal.3d 303, defendant claims the 

reenactment should have been suppressed because the detectives took advantage of a 

postarrest delay in his arraignment, suggesting had his arraignment not been delayed, 

counsel would have been appointed and likely would have advised defendant not to 

participate in the reenactment. Bonillas and Thompson, however, involved defendants 

who had been arrested for the crimes that later formed the basis for their arraignments. 

(See Bonillas, at p. 787; Thompson, at p. 328.) In this case, defendant was arrested in 

South Dakota and returned to Folsom Prison for a parole violation unrelated to the SOS

crimes. No arrest warrant for the SOS homicides had issued before the reenactment. 

Accordingly, Bonillas and Thompson are inapposite.

In the alternative, defendant argues his Sixth Amendment right to counsel attached 

when he became the focus of the SOS investigation and the delay violated his right to 

counsel regardless of the fact he was arrested and confined for a parole violation. 

However, ―[a] criminal defendant‘s right to the assistance of counsel under the Sixth 

Amendment does not exist until the state initiates adversary judicial criminal 

proceedings, such as by formal charge or indictment.‖ (People v. DePriest (2007) 42 

Cal.4th 1, 33 (DePriest); see Frye, supra, 18 Cal.4th at p. 987; see also People v. 
42

Huggins (2006) 38 Cal.4th 175, 244–245.) Moreover, the ―right to counsel is  ̳offense

specific‘ ‖ and ―may be asserted only as to those offenses for which criminal proceedings 

have formally begun.‖ (DePriest, supra, at p. 33; People v. Webb (1993) 6 Cal.4th 494,

527.) Before the reenactment, there were no adversarial judicial proceedings, formal 

charges, or indictment pending in connection with the SOS crimes. Thus, defendant‘s 

right to the assistance of counsel for those offenses had not attached at the time of the 

reenactment. 

Defendant relies on Escobedo v. Illinois (1964) 378 U.S. 478, 490–491 to argue

the right to counsel attached when he became the focus of the detectives‘ investigation. 

Defendant‘s reliance on Escobedo is misplaced. As we have previously explained, the 

high court has made clear the right to counsel at issue there was related to the Fifth 

Amendment privilege against self-incrimination and prophylactic measures available to 

suspects undergoing custodial interrogation, and not the Sixth Amendment right to 

counsel. (DePriest, supra, 42 Cal.4th at p. 34, fn. 9.) Moreover, the ―focus‖ rule 

defendant urges that might once have applied in the context of the right against selfincrimination, has since been repudiated. (See, e.g., Stansbury v. California (1994) 511 

U.S. 318, 326.)

Finally, defendant claims the reenactment should have been suppressed because 

his cooperation was improperly induced by Sergeant Lewis‘s ―promise‖ that he would be 

transferred out of Folsom Prison. The record belies this claim. As the trial court found, 

Lewis simply asked defendant whether he was willing to cooperate with an ongoing 

investigation and if so, detectives would be picking him up that weekend. Despite 

defendant‘s concerns about being placed in administrative segregation and a high security 

unit, Lewis specifically testified that no promises concerning defendant‘s housing 

situation at the prison were made to induce his cooperation. Additionally, any prior 

softening up regarding Costello that might have occurred during the initial interview was 
43

not a factor at the time of the reenactment, as Costello had long been cleared of any 

suspected wrongdoing. The reenactment thus was properly admitted.

6. Cumulative prejudice

Defendant contends that even if the alleged errors at the guilt phase of the trial 

were individually harmless, they were cumulatively prejudicial. We have found a single 

error, a violation of defendant‘s statutory right to be present, and, assuming the issue was 

not forfeited, concluded that error was harmless. There are no additional errors to 

cumulate and therefore no cumulative prejudice.

B. Penalty Phase Issues

1. Jury selection issues

a) Exclusion of Hispanic jurors from the penalty phase jury.

Defendant alleges that the jury selection procedures utilized in the Rancho 

Cucamonga District of the San Bernardino County Superior Court systematically 

excluded Hispanics and that the trial court erred in denying his motion to quash the jury 

venire. As a result, he contends, his penalty phase jury was not composed of a 

representative cross-section of the community, depriving him of his right to due process 

and a fair trial before an impartial jury in violation of the Sixth and Fourteenth 

Amendments to the United States Constitution and article I, section 16 of the California 

Constitution. The error, he argues, is structural, requiring automatic reversal. 

We conclude the trial court did not err in denying defendant‘s motion to quash, as 

defendant failed to make a prima facie showing of the systematic exclusion of Hispanic 

jurors. This claim therefore is without merit.

(1) Background

During penalty phase jury selection, defendant filed a motion to quash the jury

panel on the ground Hispanics were systematically excluded from those summoned for 
44

service in the Rancho Cucamonga District. The trial court conducted a hearing on the

motion, in which the following evidence was presented. 

Shirley Stoudt, the Deputy Jury Commissioner of San Bernardino County Superior 

Court, testified concerning how potential jurors were summoned from a master list

compiled from Department of Motor Vehicles and Registrar of Voters records, and then 

processed according to statutory exemptions as well as the California Rules of Court. 

The jury commissioner‘s office was not aware of the race, religion, or ethnic background 

of the jurors when excusing or exempting them for service and, according to Stoudt, did 

nothing to keep any minority group off the jury panels. A voluntary countywide survey 

of potential jurors showed 4.3 percent were excused for language difficulties and 1.78 

percent were excused for lack of citizenship. Although these figures included all

languages and noncitizens and the individuals were not asked to state their ethnic or 

racial background, she estimated that Hispanics and Spanish-speaking individuals would 

have constituted a larger percentage of these groups than other ethnicities. 

Julia Arias, a politically active elementary school teacher and community leader 

who grew up in Fontana and Rancho Cucamonga, testified concerning her childhood, 

education, and religious upbringing and the racial discrimination her family faced.4 Arias 

felt Hispanics were underrepresented on juries because they were forced to refuse jury 

service in order to preserve their ―meager pay‖ and because they were unaware of the 

importance of exercising their right to vote. She then read various statistics from the 

Weeks study (discussed below) and suggested the court read the survey ―more carefully‖

to find out what was happening to her community. John Weeks, Ph.D.,5 was retained by

 

4 The trial court permitted Arias to give a narrative statement rather than respond to 

questions from defense counsel.

5 A professor of geography and director of the International Population Center at 

San Diego State University, Weeks had previously qualified as an expert witness in 

demography and statistics in more than 50 cases. 
45

the defense to conduct a demographic survey of jurors reporting for jury duty in San 

Bernardino County. Of 574 potential jurors for the Rancho Cucamonga District surveyed 

over the course of five weeks, 16.9 percent indicated they were Hispanic. Weeks

compared this to the 23.1 percent he estimated to be Hispanics in the ―juror eligible‖

population in the Rancho Cucamonga District in 1995. Weeks geometrically 

extrapolated the 23.1 percent figure from 1980 and 1990 census data and from 

projections of the ethnic makeup of every county in the state for 2000 and 2010 by the 

California Department of Finance, Demographic Research Unit. Based on these figures, 

Weeks found there was an ―absolute disparity‖

6 of 6.2 percent between the number of 

Hispanics reporting for jury duty and the number of eligible Hispanics residing in the 

judicial district. Dividing the absolute disparity of 6.2 percent by the community percent 

of 23.1, he concluded there was a ―relative disparity‖7 of 27 percent. Thus, according to 

Weeks, there were 27 percent fewer Hispanics in the Rancho Cucamonga jury pool than

would be expected from the demographics of the community. Dividing the results by 

gender, he further found an absolute disparity of 7.2 percent and relative disparity of 30 

percent for male Hispanics.8 

 

6 ―  ̳Absolute disparity‘ is the difference between the underrepresented group‘s 

percentage in the jury-eligible population and the group‘s percentage in the actual jury 

venire.‖ (People v. Anderson (2001) 25 Cal.4th 543, 564, fn. 6 (Anderson).) 

7 Relative or ―  ̳comparative disparity‘ measures the percentage by which the 

number of group members in the actual venire falls short of the number of group 

members one would expect from the overall  ̳eligible population‘ ‖ of the group who are 

eligible for jury service. (Anderson, supra, 25 Cal.4th at p. 564, fn. 6; People v. Ramirez

(2006) 39 Cal.4th 398, 441 (Ramirez); People v. Sanders (1990) 51 Cal.3d 471, 492, fn. 5

(Sanders).) In this case, 6.2 percent divided by 23.1 percent is 26.8 percent. 

8 However, Weeks admitted on cross-examination that based solely on 1990 census 

data, Hispanics comprised 18.7 percent of the jury-eligible population, which translated 

to an absolute disparity of Hispanic jurors of only 1.8 percent and a relative disparity of

10 percent.
46

Relying on the above disparities, Weeks concluded there was ―a substantive and a 

statistically significant underrepresentation of Hispanics showing up for jury duty in the 

Rancho Cucamonga District courthouse.‖ The biggest alleged cause of the disparity was 

lack of follow-up by the jury commissioner‘s office for unserved jury summonses. 

Weeks also criticized the summons form for stating ―do not forward,‖ for prominently

inviting excusal requests, and for not explicitly asking for address corrections. He

believed this disadvantaged Hispanics who were more ―residentially mobile‖ than nonHispanics. Based on Weeks‘s opinions, defendant argued the court could end the 

systematic discrimination and disenfranchisement of Hispanics in San Bernardino County 

by prohibiting the removal of jurors except for the reasons authorized under Code of 

Civil Procedure section 203,9 by preventing jury clerks from removing jurors without 

judicial authorization, and by taking measures to ensure adequate follow-up of jurors who 

initially fail to appear for jury service. Weeks claimed that San Diego County had made 

―some remedies‖ in this regard, which increased the number of Hispanics on its master 

list.

The trial court denied defendant‘s motion to quash the jury venire, ruling there 

was no underrepresentation of Hispanics by significant numbers due to systematic 

exclusion in the jury selection process. 

 

9 Code of Civil Procedure section 203, subdivision (a), provides in part: ―All 

persons are eligible and qualified to be prospective trial jurors, except the following:

―(1) Persons who are not citizens of the United States.

―(2) Persons who are less than 18 years of age.

―(3) Persons who are not domiciliaries of the State of California . . . .

―(4) Persons who are not residents of the jurisdiction wherein they are summoned 

to serve.

―(5) Persons who have been convicted of malfeasance in office or a felony, and 

whose civil rights have not been restored.

―(6) Persons who are not possessed of sufficient knowledge of the English 

language . . . . 

―(7) Persons who are serving as grand or trial jurors in any court of this state.

―(8) Persons who are the subject of conservatorship.‖ 
47

(2) Analysis

―In order to establish a prima facie violation of the fair-cross-section requirement, 

the defendant must show (1) that the group alleged to be excluded is a  ̳distinctive‘ group 

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

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

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

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

Defendant ―satisfied the first prong of this test, because Hispanics are a  ̳distinctive‘ or 

cognizable group.‖ (Ramirez, supra, 39 Cal.4th at p. 445; see Castaneda v. Partida

(1977) 430 U.S. 482, 495.) With respect to the second prong, however, he failed to show 

the representation of Hispanic jurors was unfair and unreasonable compared to their 

numbers in the community. 

Respondent contends the most reliable figures provided by defense expert Weeks, 

based solely on 1990 census data, demonstrated an absolute disparity of Hispanic jurors 

of only 1.8 percent and a relative disparity of only 10 percent. But even assuming the 

statistical disparities Weeks calculated based on extrapolations for 1995 were credible—

an absolute disparity of 6.2 percent and a relative disparity of 27 percent for all 

Hispanics, and an absolute disparity of 7.2 percent and relative disparity of 30 percent for 

male Hispanics—defendant still failed to satisfy the second prong because such 

disparities are not constitutionally significant. (See, e.g., People v. Burgener (2003) 29 

Cal.4th 833, 856 (Burgener) [expressing uncertainty as to whether an absolute disparity 

of 10.7 percent, which produced a relative disparity of 65 percent, satisfied the second 

prong of the Duren test]; People v. Ramos (1997) 15 Cal.4th 1133, 1156 [concluding an 

absolute disparity between 2.7 and 4.3 percent and a comparative disparity between 23.5 

and 37.4 percent was not constitutionally significant]; People v. Bell (1989) 49 Cal.3d 

502, 528, fn.15 [finding it was ―far from clear‖ that a 5 percent absolute disparity was 

sufficient]; see also Swain v. Alabama (1965) 380 U.S. 202, 208–209 [10 percent 
48

absolute disparity inadequate]; U. S. v. Cannady (9th Cir. 1995) 54 F.3d 544, 548

[―absolute disparities below 7.7% are insubstantial and constitutionally permissible‖].)

Even had defendant demonstrated a constitutionally significant disparity, he still 

would have failed to satisfy the third prong of the test. ―A defendant does not discharge 

the burden of demonstrating that the underrepresentation was due to systematic exclusion 

merely by offering statistical evidence of a disparity. A defendant must show, in

addition, that the disparity is the result of an improper feature of the jury selection 

process.‖ (Burgener, supra, 29 Cal.4th at p. 857.) 

The Rancho Cucamonga District master list used in this case was derived from 

Department of Motor Vehicle‘s and voter registration lists. We have held that such a list 

―  ̳ ―shall be considered inclusive of a representative cross-section of the population‖ ‘

where it is properly nonduplicative.‖ (People v. Ochoa (2001) 26 Cal.4th 398, 427

(Ochoa); see, e.g., Code Civ. Proc. § 197, subd. (b) [a master jury list assembled from 

lists of registered voters and driver‘s license holders, ―when substantially purged of 

duplicate names, shall be considered inclusive of a representative cross section of the 

population‖].) There is no suggestion that the master list was duplicative in any way. 

As shown by the jury commissioner‘s testimony, moreover, juror excusals were 

based on race-neutral reasons provided by statute and the California Rules of Court. 

Indeed, the excusal forms did not even indicate the prospective juror‘s race. The excusal 

categories of non-citizenship and lack of understanding of English encompassed all 

ethnicities and national origins, not simply Hispanics or Spanish-speaking individuals.

―Where, as here, a county‘s jury selection criteria are neutral with respect to the 

distinctive group, the defendant must identify some aspect of the manner in which those 

criteria are applied that is not only the probable cause of the disparity but also 

constitutionally impermissible.‖ (Burgener, supra, 29 Cal.4th at p. 858; see Sanders, 

supra, 51 Cal.3d at pp. 492–493 [―Evidence that  ̳race/class neutral jury selection 

processes may nonetheless operate to permit the de facto exclusion of a higher percentage 
49

of a particular class of jurors than would result from a random draw‘ is insufficient to 

make out a prima facie case.‖].) Defendant failed to do so in this case. 

Julia Arias, the community activist who testified for the defense, suggested 

Hispanics were underrepresented because they were unaware of the importance of voting.

However, ―the failure of a particular group to register to vote in proportion to its share of 

the population cannot constitute improper exclusion attributable to the state.‖ (Ochoa, 

supra, 26 Cal.4th at p. 427.) Arias also speculated Hispanics were forced to refuse jury 

service in order to avoid losing the ―meager pay‖ they received in their employment. 

And defense expert John Weeks suggested, without citation to evidence, that Hispanics in 

Rancho Cucamonga were ―residentially mobile‖ because they had low incomes, were 

unlikely to own homes and were transient as renters, and consequently more difficult to 

summon for jury duty. However, ―[s]peculation as to the source of the disparity is 

insufficient to show systematic exclusion [citation], as is evidence the disparity is 

unlikely to be a product of chance [citation] or has endured for some time [citation].‖ 

(Burgener, supra, 29 Cal.4th at p. 858.) 

Finally, Weeks opined San Bernardino County could have remedied the alleged 

disparity in Hispanic jurors by following up on unserved summonses, soliciting address 

corrections, and making the excusal form less prominent. Even assuming he was correct, 

merely pointing to a remedy is not enough. (Ochoa, supra, 26 Cal.4th at p. 428.) The 

United States Constitution, while forbidding the exclusion of members of a cognizable 

class of jurors, ―  ̳ ―does not require that venires created by a neutral selection procedure 

be supplemented to achieve the goal of selection from a representative cross-section of 

the population.‖ ‘ [Citation.] So long as the state uses criteria that are neutral with 

respect to the underrepresented group, the state‘s failure to adopt other measures to 

increase the group‘s representation cannot satisfy Duren‘s third prong.‖ (Burgener, 

supra, 29 Cal.4th at pp. 857–858.)
50

As defendant did not satisfy his burden under the second and third prongs of 

Duren, a prima facie case of underrepresentation and systematic exclusion of Hispanic 

jurors was not made. Accordingly, the trial court properly denied defendant‘s motion to 

quash the venire.

b) Exclusion of life-inclined juror for cause

Defendant claims the trial court erroneously excluded Prospective Juror G.P. for 

cause based solely on his written answers to a jury questionnaire and without any 

opportunity for voir dire. He contends that if G.P. had been given the opportunity to 

respond to questions in person, the court could have clarified whether he was qualified to 

serve on a capital jury. As a result of the allegedly improper removal of this prospective

juror, defendant argues he was subjected to ―a tribunal organized to return a verdict of 

death‖ in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United 

States Constitution and article I, sections 15 and 16 of the California Constitution. 

To the extent defendant asserts error in the court‘s ruling on challenges for cause 

based solely on the jurors‘ responses to the questionnaires without voir dire, the claim is 

forfeited because he stipulated to this procedure. On the merits, we conclude the court 

did not err in excusing Prospective Juror G.P. for cause based on his juror questionnaire, 

in which he stated an inability to impose the death penalty in a contested penalty phase. 

(1) Background

Before jury selection for the penalty phase, defendant moved for sequestered voir 

dire of prospective jurors.

10 The trial court denied the request for individual voir dire of 

all jurors but acknowledged that oral or questionnaire responses might warrant 

sequestered voir dire of particular jurors on particular issues. 

 

10 Code of Civil Procedure section 223 provides that ―[v]oir dire of any prospective 

jurors shall, where practicable, occur in the presence of the other jurors in all criminal 

cases, including death penalty cases.‖ 
51

Thereafter, the trial court proposed ruling on stipulated dismissals, followed by 

challenges for cause based solely on questionnaire responses, noting that denial of any 

challenge would be without prejudice, allowing counsel the opportunity to individually 

question the juror. ―Regular‖ voir dire would then be conducted on the rest of the panel. 

Defense counsel endorsed this procedure as ―the next best thing‖ to sequestered voir dire 

of the entire jury panel and commented on ―[t]he beauty of the Court‘s procedure‖ in 

protecting against potential jurors who may ―pollute the panel.‖ As the time for jury 

selection neared, defendant personally appeared in court and expressly agreed to this 

procedure, which the court, pursuant to the parties‘ stipulation, then utilized. 

Both the prosecution and defense moved to exclude for cause various prospective 

jurors solely on the basis of their questionnaire responses. Prospective Juror G.P. was 

among those whom the prosecutor challenged. In his questionnaire, when asked whether 

he had ―any philosophical, religious, or moral feelings that would make it difficult or 

impossible for you to sit in judgment of another person,‖ G.P. wrote ―being educated and 

raised in the strict Catholic teachings and standards, I find it hard to be a judge of another

person. I was taught that God is the only rightful judge.‖ Although he also wrote, ―I 

have no problem in judging as to whether or not a person is guilty or has done wrong,‖ he 

indicated that he did ―have a problem as to whether or not punishment or appropriate 

punishment is right or wrong.‖ Despite his generally enjoying jury service ―because the 

law has always been fascinating‖ to him, G.P. reiterated, ―[i]t just so happens that 

sentencing someone is against my beliefs.‖ 

Prospective Juror G.P. further wrote he would be greatly influenced by the

Catholic Church‘s opposition to the death penalty, writing ―I have always been taught to 

try to understand why people become the way they are and that one might always forgive 

and that one might never lose hope. Somehow these teachings have become my own and 

have influenced my decision in life.‖ G.P. reaffirmed he ―strongly‖ opposed the death 

penalty, opining it served only an economic purpose and was part of a system that ―has 
52

lost all hope. That should not be the case in any system.‖ When asked ―what types of 

crime, if any, deserve the death penalty,‖ he answered, ―I couldn‘t think of one.‖ G.P. 

also wrote life in prison without parole served no purpose other than draining the 

economy and he would ―only agree to it if it is the only solution for a person not to 

commit harm to society again.‖ 

Prospective Juror G.P. indicated he would ―have to hear the case first‖ to know 

whether he could impose life without the possibility of parole or the death penalty. He 

also stated it was ―very possible‖ to see himself rejecting the death penalty and choosing 

life without possibility of parole ―because of my beliefs,‖ but rejecting life without the 

possibility of parole and choosing the death penalty was ―a possibility‖ only if the

defendant ―himself requests it and if he is sound in mind and body.‖

The defense argued that although Prospective Juror G.P. expressed a preference 

for life without the possibility of parole, his responses also indicated he would be willing 

to listen to the case before selecting a punishment. The prosecution responded that G.P.‘s 

answers demonstrated his religious beliefs, which taught him the death penalty was 

improper, would override this willingness. Defense counsel did not ask to question G.P. 

in order to clarify his qualification to serve on a capital jury. Without conducting voir 

dire of G.P., the court granted the challenge for cause, finding his strong religious beliefs 

combined with his strong opposition to the death penalty indicated he would be 

―substantially impaired in seriously considering the death penalty as an option.‖

(2) Analysis

Defendant argues the trial court erred in failing to conduct voir dire to clarify 

Prospective Juror G.P.‘s views on capital punishment and in granting the prosecutor‘s 

challenge based on his juror questionnaire responses alone. However, defendant forfeited 

this claim when he expressly agreed to that procedure. Defendant, moreover, did not 

request individual voir dire of Prospective Juror G.P. before the court ruled on the 
53

prosecutor‘s challenge for cause, instead opposing the challenge by arguing that G.P.‘s 

questionnaire responses indicated he could be a fair juror. (People v. Cook (2007) 40

Cal.4th 1334, 1342 (Cook) [defendant who agreed to ―  ̳submit on the questionnaire‘ ‖ 

challenges for cause to certain prospective jurors and waived any further questioning,

forfeited right to complain on appeal of the court‘s failure to interrogate that prospective 

juror]; cf. People v. Stewart (2004) 33 Cal.4th 425, 452 (Stewart) [finding error where 

trial court acted without the parties‘ prior agreement in granting several prosecution 

challenges for cause solely on the basis of the questionnaire responses, despite earlier 

assurances that it would conduct further oral voir dire to address any ambiguous 

responses and despite the defendant‘s repeated objections to the procedure].) 

Alternatively, defendant contends the trial court erred in excluding Prospective 

Juror G.P. for cause simply because he expressed strong opposition to the death penalty

in his questionnaire. A prospective juror‘s personal views concerning the death penalty 

do not necessarily afford a basis for excusing the juror for bias in a capital case. (See 

Uttecht v. Brown (2007) 551 U.S. 1, 6 [―  ̳[A] man who opposes the death penalty, no less 

than one who favors it, can make the discretionary judgment entrusted to him by the 

State.‘ ‖].) Rather, ―[t]o achieve the constitutional imperative of impartiality, the law 

permits a prospective juror to be challenged for cause only if his or her views in favor of 

or against capital punishment  ̳would ―prevent or substantially impair the performance of 

his [or her] duties as a juror‖ ‘ in accordance with the court‘s instructions and the juror‘s 

oath.‖ (People v. Blair (2005) 36 Cal.4th 686, 741, quoting Wainwright v. Witt (1985) 

469 U.S. 412, 424; see Witherspoon v. Illinois (1968) 391 U.S. 510.) Under this 

standard, a prospective juror is properly excluded in a capital case if he or she is unable to 

follow the trial court‘s instruction and ―conscientiously consider all of the sentencing 

alternatives, including the death penalty where appropriate.‖ (People v. McWhorter

(2009) 47 Cal.4th 318, 340; see People v. Jenkins (2000) 22 Cal.4th 900, 987 (Jenkins).)
54

A trial court‘s ruling on a challenge for cause based solely on a juror‘s responses 

on a written questionnaire is subject to de novo review by this court. (People v. Avila

(2006) 38 Cal.4th 491, 529 (Avila).) We review the record to determine whether the trial 

court had sufficient information regarding Prospective Juror G.P.‘s state of mind to 

permit it to reliably determine whether his views on the death penalty would prevent or 

substantially impair the performance of his duties in this case. (Stewart, supra, 33 

Cal.4th at p. 445; see also Avila, at p. 531 [―a prospective juror in a capital case may be 

discharged for cause based solely on his or her answers to the written questionnaire if it is 

clear from the answers that he or she is unwilling to temporarily set aside his or her own 

beliefs and follow the law‖].) 

In Cook, supra, 40 Cal.4th at pages 1343–1344, and Avila, supra, 38 Cal.4th at 

page 532, we upheld the trial court‘s orders excusing prospective jurors whose 

questionnaire answers showed they could not impose the death penalty even though they 

also responded they could set aside their personal feelings and follow the law. The 

situation before us presents a similar dichotomy.

In his questionnaire, Prospective Juror G.P. stated he had strong religious beliefs 

that made it difficult for him to judge someone else because he was taught God is the 

only rightful judge, and although he had no problem judging another person on the issue 

of guilt, he had a problem with deciding the appropriate punishment. Significantly, G.P. 

stated unequivocally he was strongly opposed to the death penalty, which he saw as 

economically motivated and as part of a system that had ―lost all hope,‖ and he could not 

think of a single crime deserving the death penalty. Although G.P. stated it was a 

―possibility‖ he could choose the death penalty in an appropriate case, the example he 

gave was a case in which the defendant was competent and requested it. However, in 

another response, G.P. implied he would not make up his mind on punishment until he 

heard the case.
55

We conclude Prospective Juror G.P.‘s strong religious beliefs and opposition to 

capital punishment amply support the conclusion he would have been prevented or 

substantially impaired from performing his duties in this particular case. His express 

reluctance to sit in judgment of someone on the issue of punishment made him 

particularly unqualified to serve on defendant‘s jury, as G.P. was being considered for 

service on a penalty phase jury that would only be deciding the appropriate punishment

for defendant. Although stating somewhat ambiguously he would have to hear the case 

first to know whether he could realistically impose either death or life without the 

possibility of parole, G.P. repeatedly expressed his opposition to the death penalty for all 

crimes, with a possible exception for a case in which a competent defendant exercised his 

right to a jury trial in order to request to be executed. The trial court therefore did not err

by excusing Prospective Juror G.P. for cause based on his responses to the jury 

questionnaire.

c) Prosecutor’s use of peremptory challenges to strike African-American 

jurors

Defendant claims the prosecutor improperly exercised four of his six peremptory 

challenges against African-Americans—Prospective Jurors D.W., A.L., S.A.-M., and 

A.C.—during penalty phase jury selection. (See Batson v. Kentucky (1986) 476 U.S. 79; 

People v. Wheeler (1978) 22 Cal.3d. 258 (Wheeler).) He argues the trial court erred in 

failing to find a prima facie case of discrimination based on the four challenges and 

abdicated its duty to conduct a sincere evaluation of the prosecutor‘s reasons for excusing 

those potential jurors. Their improper removal, he contends, requires automatic reversal 

of the judgment.

This claim fails for several reasons. First, defendant failed to make a sufficient 

record demonstrating Prospective Juror A.L. was a member of a cognizable class. 

Second, defendant forfeited any Batson/Wheeler claim regarding Prospective Jurors S.A.-

M. and A.C. by failing to object to their excusal prior to the swearing of the jury and 
56

alternates. Finally, as to Prospective Juror D.W., the trial court correctly ruled defendant 

failed to make a prima facie showing the prosecutor excused the juror for reasons of race. 

(1) Background

After the prosecutor exercised his first peremptory challenge against a nonAfrican-American juror, defense counsel made a premature Batson/Wheeler motion. He 

argued prospectively that if the prosecutor were to exercise a peremptory challenge 

against any African-American jurors, a prima facie case of discrimination would be 

established because (1) of the prosecutor‘s six for-cause challenges denied by the court, 

―approximately [50] percent of those persons were [B]lack,‖ and (2) the prosecutor had 

devoted an inordinate amount of time—approximately 75 to 80 percent of the voir dire 

transcript pages—questioning African-American jurors.11 The prosecutor objected to 

what he considered defense counsel‘s attempts to intimidate him in his exercise of

peremptory challenges. After additional discussion, the court found, considering the 

explanations offered for the prosecutor‘s challenges for cause to minority and nonminority jurors, there had been no attempt to systematically exclude minority jurors. 

After voir dire continued, the prosecutor exercised his second peremptory 

challenge against Prospective Juror D.W. Defense counsel objected: ―Batson challenge. 

She‘s a correctional officer. She was one he picked on for no good reason just to ask a 

lot of questions.‖ The trial court denied the challenge, concluding defendant had not 

made a prima facie showing of a systematic pattern of exclusion of minority jurors. It 

invited the prosecutor to place his reasons for exercising the challenge on the record, 

noting, however, he was under no obligation to do so. The prosecutor declined the 

invitation, stating he would provide an explanation for each minority juror for whom he 

 

11 Defense counsel did not restrict his Batson/Wheeler objections to AfricanAmericans or other racial groups. He also filed a written Batson/Wheeler motion arguing 

that Vietnam veterans were a cognizable class. 
57

exercised a peremptory challenge at the end of jury selection. The court thereafter

excused D.W. 

The prosecutor exercised his third peremptory challenge against Prospective Juror 

A.L. Defense counsel objected: ―Batson again.‖ The court excused A.L. without 

explicitly ruling on defendant‘s challenge.

The prosecutor exercised his fourth peremptory challenge against Prospective 

Juror S.A.-M. Defense counsel stated: ―I‘ll wait till he does one more, then I‘ll do that. 

I‘m going to make a motion. So we don‘t have to argue it each time.‖ The trial court 

responded: ―All right. For the record, the court notes that there was a challenge for

cause as to [S.A.-M.] and she did indicate an attitude that was definitely leaning against 

the death penalty, although probably not sufficient, the court found, to grant a challenge 

for cause. But certainly it‘s a basis for an exercise of the peremptory challenge.‖ 

The prosecutor exercised his fifth challenge against Prospective Juror A.C. 

Defense counsel made no objection, and the trial court excused A.C. Subsequently, the 

parties accepted 12 jurors after the prosecutor exercised his sixth and final peremptory 

challenge without any further Batson/Wheeler objections. During the selection of the 

alternate jurors, the defendant made no Batson/Wheeler objections. Thereafter, six 

alternate jurors were chosen.

After the jurors and alternate jurors were sworn, the prosecutor asked whether

there was a Batson/Wheeler motion still pending. The trial court and defense counsel 

indicated it had been denied, referring to the colloquy that occurred in connection with 

Prospective Juror D.W. The prosecutor, defense counsel, and the court all noted the 

prosecution thereafter had exercised peremptory challenges against two other AfricanAmerican prospective jurors, S.A.-M. and A.C. Defense counsel then stated, ―I don‘t 

believe I said anything when he did that. The court confirmed, ―Correct. You didn‘t 

renew or make another motion.‖ Defense counsel affirmed, ―I had made the motion. 
58

You had denied it. And I guess the reasons for my not doing it again will have to go with 

me to the federal habeas or whatever.‖ 

The prosecutor then asked for the opportunity to ―go on the record‖ regarding the 

three challenges. The trial court granted this request, but first stated: ―[E]ven after the 

two additional challenges[,] the Court is still satisfied that there is not a . . . prima facie 

demonstration to the Court of any systematic or attempted systematic exclusion of 

[B]lack jurors by the prosecution, particularly with regard to the last two peremptories of

[B]lack jurors. [¶] The responses in the questionnaire, and the responses of the jurors

orally, in the Court‘s view, provided adequate non-racial basis for the peremptory 

challenges. And if the motion had been renewed, it would have been denied again at that 

point, again on the basis that there was not a prima facie showing. [¶] [The c]ourt will 

also note that the jury that the prosecution passed on that was actually sworn does include 

two [B]lack jurors. Which is, again, additional evidence to the Court that there was not 

an attempt to systematically exclude [B]lacks.‖

12 

Thereafter, the prosecutor explained he excused Prospective Juror D.W. because 

she was argumentative during voir dire and had used defensive body language. D.W.

also linked her job as a prison guard with the possibility of becoming a psychologist who 

counseled inmates, which was problematic from the prosecutor‘s perspective because 

defendant‘s penalty phase specifically involved psychological and psychiatric testimony. 

D.W. further described herself as being ―on the opposite end of the spectrum‖ of 

Prospective Juror D.P.,

13 which indicated to the prosecutor D.W. would tend to always 

 

12 In allowing the prosecutor to make a record of his race-neutral reasons for 

excusing the jurors in question, even though finding no prima facie case of 

discrimination, the trial court followed the ―better practice.‖ (People v. Bonilla (2007) 41 

Cal.4th 313, 343, fn.13 (Bonilla) [noting that such information assists the reviewing court 

in assessing the ruling on appeal].)

13 During voir dire, Prospective Juror D.P. had expressed negative views about 

―counselors, therapists, whatever you want to call them, psychologists, psychiatrists,‖ as 
59

believe such testimony. And when the prosecutor asked D.W. about rolling her eyes 

while D.P. was speaking during voir dire, D.W. at first admitted to doing so, but then 

later approached the prosecutor during a break, in violation of a court order not to discuss 

the case, and told him she was just batting her eyes rather than rolling them. This 

behavior, coupled with animosity in D.W.‘s voice, concerned the prosecutor.

With respect to Prospective Juror A.C., the prosecutor first noted she failed to

write responses to many of the questions regarding her views on the death penalty. She 

further expressed ―severe‖ reservations about the death penalty during voir dire and was 

―dishonest‖ in recounting she had heard on the news about a recent execution in

California, which never occurred.

Finally, concerning Prospective Juror S.A.-M., the prosecutor explained he 

excused her due to her ―serious reservations about the use of the death penalty.‖ 

Responses in the juror questionnaire indicated her religious beliefs taught her not to judge 

others and she would not consider imposing the death penalty on a combat veteran. She 

also had a relative who was killed by a deputy sheriff in Los Angeles and her family 

wanted criminal charges brought against the sheriff‘s department. This potential bias 

against law enforcement concerned the prosecutor as well. And despite S.A.-M.‘s 

recognition there were ―probably circumstances where the death penalty could be

imposed,‖ she wrote she hoped never to be part of such a decision. Such reservations 

about the death penalty, which were further developed during voir dire, led the prosecutor 

to believe S.A.-M. would not be an appropriate juror for defendant‘s case.

Defense counsel did not respond to or comment on the explanations volunteered 

by the prosecutor. Having denied defendant‘s Batson/Wheeler motion regarding 

 

well as skepticism about two psychological experts evaluating someone over a short time 

and suddenly claiming to know ―what was wrong with this person.‖ D.P. also stated an 

expert‘s credentials ―doesn‘t mean squat‖ if they have only spent a few hours, days, or

weeks talking with the person they are evaluating. D.P. further admitted she was

―opinionated.‖
60

Prospective Juror D.W. for failure to make a prima facie showing of discrimination, the 

trial court did not evaluate or otherwise render any further ruling on the prosecutor‘s 

explanations, merely stating ―all right‖ and then calling a recess.

(2) Analysis 

(a) Prospective Juror A.L.

Respondent argues defendant forfeited any claim of error with respect to 

Prospective Juror A.L. by failing to articulate a clear Batson/Wheeler objection. (See 

People v. Lewis (2008) 43 Cal.4th 415, 481.) In objecting to the prosecutor‘s peremptory 

challenge of A.L., defense counsel simply stated ―Batson again.‖ Although defendant 

assumes on appeal that A.L. was one of four African-American prospective jurors against 

whom the prosecutor exercised peremptory challenges, the record fails to disclose what 

cognizable class defendant was asserting as the basis for his Batson/Wheeler objection to 

the peremptory challenge of A.L. 

It is true, as defendant notes in his reply, his first Batson/Wheeler objection 

concerned an African-American prospective juror, D.W. But defendant did not provide 

any factual basis for the objection regarding A.L. or make any record as to what 

cognizable class A.L. allegedly belonged to. A.L. was never identified as AfricanAmerican during voir dire, and in fact self-identified as ―Caucasian,‖ ―Danish,‖ and 

―Dane‖ in his jury questionnaire. Nor was A.L. identified as African-American in any of 

the Batson/Wheeler discussions contained in the record. To the contrary, in their 

discussion following the swearing of the jury, the court, defense counsel, and the 

prosecutor all stated that there had been three African-American prospective jurors 

excused by the prosecution and identified those three jurors as D.W., S.A-M., and A.C. 

Defense counsel, moreover, did not restrict his Batson/Wheeler motions to racial groups; 

he also attempted to argue that Vietnam veterans were a cognizable class. The failure to 
61

clearly articulate the Batson/Wheeler objection to the peremptory challenge against A.L. 

forfeited the issue for appeal. 

(b) Prospective Jurors S.A.-M. and A.C.

Respondent contends defendant also forfeited a claim of Batson/Wheeler error 

with respect to Prospective Jurors S.A.-M. and A.C. by failing to make a Batson/Wheeler

objection. In order to preserve a Batson/Wheeler claim based on the prosecutor‘s 

peremptory challenges, the defendant must make a timely objection. (People v. 

McDermott (2002) 28 Cal.4th 946, 969.) To be timely, a Batson/Wheeler objection must

be made before the jury is sworn. (See People v. Howard (1992) 1 Cal.4th 1132, 1154; 

People v. Thompson (1990) 50 Cal.3d 134, 179.)

When the prosecutor exercised his fourth peremptory challenge against S.A.-M.,

an African-American prospective juror, defense counsel indicated he was ―going to make 

a motion,‖ but would wait until the prosecutor ―does one more.‖ However, he did not 

object when the prosecutor exercised his next peremptory challenge against A.C., another 

African-American prospective juror, nor did he make a motion before the jurors and 

alternates were sworn in and the venire excused. After the jurors and alternate jurors 

were sworn and the prosecutor asked whether there was a Batson/Wheeler motion still 

pending, defense counsel agreed with the trial court he had not renewed or made new 

Batson/Wheeler motions with respect to S.A.-M. and A.C., stating: ―I guess the reasons 

for my not doing it again will have to go with me to the federal habeas or whatever.‖ 

(Italics added.) Defense counsel also did not discuss or contest the prosecutor‘s

volunteered explanations for the two challenges. In light of the lack of a timely, or even 

untimely, objection, any claim of Batson/Wheeler error regarding Prospective Jurors 

S.A.-M. and A.C. was forfeited. 
62

(c) Prospective Juror D.W.

Defendant did make a timely, clearly articulated Batson/Wheeler objection with 

respect to the prosecutor‘s peremptory challenge against Prospective Juror D.W. The 

applicable law is well settled. While a prosecutor ordinarily is entitled to exercise 

peremptory challenges for almost any reason at all, ―[b]oth the state and federal 

Constitutions prohibit the use of peremptory challenges to exclude prospective jurors 

based on race . . . .‖ (Bonilla, supra, 41 Cal.4th at p. 341.)

A three-stage procedure applies to the evaluation of Batson/Wheeler motions. 

―First, the defendant must make out a prima facie case  ̳by showing that the totality of the 

relevant facts gives rise to an inference of discriminatory purpose.‘ [Citations.] Second, 

once the defendant has made out a prima facie case, the  ̳burden shifts to the State to 

explain adequately the racial exclusion‘ by offering permissible race-neutral justifications 

for the strikes. [Citations.] Third,  ̳[i]f a race-neutral explanation is tendered, the trial 

court must then decide . . . whether the opponent of the strike has proved purposeful 

racial discrimination.‘ ‖ (Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)

This subclaim involves only the first of these three stages—whether defendant 

made out a prima facie case of racial discrimination. Although the prosecutor 

subsequently volunteered his reasons for challenging D.W., ―the trial court did not 

evaluate the prosecutor‘s stated reasons, either explicitly or implicitly.‖ (People v. 

Sattiewhite (2014) 59 Cal.4th 446, 469.) Rather, the court expressly ruled defendant had 

not made a prima facie case before the prosecution‘s recitation of reasons and denied the 

Batson/Wheeler motion on this basis. The trial court merely allowed the prosecution ―to 

preserve for the record its reason for those excusals.‖ 

Nevertheless, in finding defendant failed to make a prima facie case of racial 

discrimination, the trial court appears to have used an incorrect standard, finding ―no 

systematic pattern of exclusion,‖ rather than no inference of discriminatory purpose. 

(See, e.g., Avila, supra, 38 Cal.4th at pp. 554–555 [trial court was under the mistaken 
63

impression that only pattern of discrimination through multiple excusals could make 

prima facie showing].) We therefore independently review the record to ―  ̳resolve the 

legal question whether the record supports an inference that the prosecutor excused a 

juror on the basis of race.‘ ‖ (Id. at p. 554.) 

Certain types of evidence are relevant in determining whether a defendant has 

carried his burden of showing an inference of discriminatory excusal, such as whether the 

prosecutor ―struck most or all of the members of the identified group from the venire or 

used a disproportionate number of his peremptories against the group,‖ whether the 

excused jurors had little in common other than their membership in the group, and 

whether the prosecutor engaged in ―desultory voir dire‖ or no questioning at all. 

(Wheeler, supra, 22 Cal.3d at pp. 280–281.) Although a ―defendant need not be a 

member of the excluded group,‖ it is significant if he is and if, in addition, his victims are 

members of the group to which the majority of the remaining jurors belong. (Id. at p. 

281; see People v. Kelly (2007) 42 Cal.4th 763, 779–780.) 

Defendant argues the prosecutor used a disproportionate number—four of six—of 

his peremptory challenges to excuse African-Americans from the jury pool. The record 

does not support defendant‘s claim. In selecting a jury for the penalty phase, the 

prosecutor exercised a total of eight peremptory challenges to potential jurors—six 

during the selection of the 12 jurors and two during the selection of the six alternate 

jurors—only three of which were used to remove African-Americans D.W., S.A.-M., and 

A.C. As noted, the record does not support defendant‘s contention that Prospective Juror 

A.L. was African-American. 

The prosecutor, moreover, passed two African-American prospective jurors who 

ultimately were seated on the jury. (People v. Clark (2011) 52 Cal.4th 856, 906

[―Although the circumstance that the jury included a member of the identified group is 

not dispositive [citation],  ̳it is an indication of good faith in exercising peremptories . . .‘ 

and an appropriate factor to consider in assessing a [Batson/Wheeler] motion.‖].) The 
64

prosecutor‘s use of three of eight (or 38 percent) of his peremptory challenges to excuse 

African-American prospective jurors, particularly where the other two African-American 

prospective jurors were passed and seated on the jury, ―does not support an inference of 

bias.‖ (People v. Cornwell (2005) 37 Cal.4th 50, 70.) 

Moreover, the prosecutor engaged in more than a desultory voir dire of 

Prospective Juror D.W. Indeed, defendant complains that no juror was publicly 

questioned by the prosecution ―more relentlessly‖ than D.W. However, the thoroughness 

of the prosecutor‘s probing of D.W. was not outside the norm and does not support an 

inference of racial bias.

We discern at least one race-neutral reason for excusing Prospective Juror D.W. 

that is ―apparent from and  ̳clearly established‘ in the record.‖ (People v. Scott (June 8, 

2015, S064858) __ Cal.4th __ [at p. 20].) The defense case for the penalty phase would 

rely heavily on psychological testimony concerning PTSD resulting from defendant‘s 

abusive childhood and experiences in Vietnam. Not only did D.W. express a strong 

receptivity toward such testimony, stating such experts ―would be necessary,‖ she also

indicated she wanted to ―lateral over into prison counseling.‖ This was a legitimate raceneutral reason for excusing D.W. (See, e.g., Avila, supra, 38 Cal.4th at p. 556 [a juror 

who indicated she worked closely with psychologists and psychiatrists as a nurse in a 

psychiatric ward and valued their opinions provided a reason other than racial bias for the 

prosecutor‘s challenge]; People v. Gutierrez (2002) 28 Cal.4th 1083, 1124 [prosecutor‘s 

belief that the prospective juror would place too much weight on the opinion testimony of 

mental health experts could justify the peremptory challenge].)

Based on our independent review of the record of voir dire, we conclude the 

totality of the relevant facts does not support inferring the prosecutor challenged 

Prospective Juror D.W. because of her race. The trial court therefore did not err in 

denying defendant‘s Batson/Wheeler motion for failure to establish a prima facie case.
65

d) Denial of a continuance prior to jury selection

Defendant claims the trial court abused its discretion by denying his request for a 

continuance of the penalty phase based on publicity surrounding the April 1995 bombing 

of the Murrah Federal Building in Oklahoma City. He contends the denial of this request 

caused voir dire to be conducted shortly after the bombing in ―an unduly prejudicial 

atmosphere‖ and thus violated his constitutional rights to due process and a fair trial. 

Before the beginning of jury selection in the penalty phase, defendant moved for a 

continuance from May until September 1995, arguing there was good cause in light of 

―the difficulty of selecting a fair and impartial jury in this case, due to the interconnection 

of some of the major issues in [defendant‘s] life, and of those persons accused of the 

bombing of the federal building in Oklahoma City.‖ He pointed to the circumstance that 

Timothy McVeigh, one of the Oklahoma City bombing suspects, was an army veteran

who might also raise a PTSD defense. Defendant also argued future delays might occur 

because one of the defense experts was working with trauma victims in Oklahoma City. 

The trial court, noting among other circumstances that McVeigh had fought in the Gulf

War while defendant was a Vietnam War veteran, found no similarities between 

defendant‘s case and the Oklahoma City bombing. Concluding the events in Oklahoma 

would have no significant impact on jury selection in this case, the trial court denied 

defendant‘s request for a continuance.

A continuance may be granted only on the moving party‘s showing of good cause. 

(§ 1050, subd. (e).) ―The granting or denial of a motion for continuance rests within the 

sound discretion of the trial court.‖ (People v. Mickey (1991) 54 Cal.3d 612, 660.) In 

light of the lack of any relationship or similarity between the Oklahoma City bombing 

and defendant‘s case, the trial court did not abuse its discretion in finding there was no 

showing of good cause for a continuance.

The publicity from the Oklahoma City bombing, which differed drastically from 

the SOS murders in both kind and degree, had no bearing on defendant‘s case. Timothy 
66

McVeigh detonated a 3,000- to 6,000-pound bomb, killing 168 people, including 19 

children and eight law enforcement officials. (U. S. v. McVeigh (10th Cir. 1998) 153 

F.3d 1166, 1177.) By comparison, defendant shot and killed three adult victims with 

whom he was acquainted during the commission of a burglary and robbery of a company 

for which he once worked. The Oklahoma City bombing was politically motivated with 

the goal of inciting a general uprising against the government (ibid.), whereas defendant‘s

murders were financially motivated. The only concrete common feature argued by 

defense counsel, that defendant and McVeigh were both Army veterans, does not 

withstand scrutiny. McVeigh was not a veteran of the Vietnam War, and defendant‘s 

jury would hear defense testimony that the Vietnam conflict had many significant 

characteristics not present in other conflicts and that generated unique problems for 

Vietnam War veterans.

Not only were the supposed connections between the cases tenuous at best, the 

possibility of an unavailable witness and the notion that a separate tragedy would have a 

prejudicial effect on a jury trying this case were pure speculation. Moreover, voir dire 

exists exactly to explore issues of prejudice such as these. In sum, the court‘s ruling 

clearly was not manifestly erroneous or arbitrary.

2. Failure to sua sponte appoint a second attorney 

Defendant contends the trial court violated his rights under the Sixth and Eighth 

Amendments to the United States Constitution and article I, section 15 of the California 

Constitution by failing to appoint, sua sponte, a second qualified attorney to assist 

defense counsel in his case. As defendant acknowledges, ―  ̳[t]he appointment of a 

second counsel in a capital case is not an absolute right protected by either the state or the 

federal Constitution.‘ ‖ (People v. Williams (2006) 40 Cal.4th 287, 300.) It is true that 

by statute, California trial courts have the authority to appoint a second attorney to 

represent a capital defendant. (§ 987, subd. (d).) However, no sua sponte duty to appoint 
67

additional counsel can be derived from a statutory provision granting only discretionary 

authority to the trial court to do so upon a written request and supporting affidavit by 

primary counsel. ―Indeed, under the statute, the trial court lacks any specific authority to

appoint a second attorney in the absence of a request from the first attorney and the 

making of a factual record sufficient to support such an appointment. To the extent that 

defendant‘s argument is that the trial courts have inherent power to appoint a second 

attorney, no authority supporting that proposition is cited.‖ (People v. Padilla (1995) 11 

Cal.4th 891, 928.) Accordingly, defendant‘s claim that the court erred in not appointing a 

second attorney in the absence of such a request fails.

3. Admission of photographic and videotape crime scene evidence

Defendant claims five photographs of the victims previously admitted in the guilt 

phase, as well as a silent videotape of the crime scene, should have been excluded in the 

penalty phase as irrelevant (see Evid. Code, § 350) and more prejudicial than probative 

(see id., § 352). The photographs depicted the victims‘ bodies as they were found on the 

floor in the restroom, with close-ups of their bound hands. The video depicted the 

freeway next to SOS and the SOS parking lot, and a forensic expert walking around the 

building, hallways, and warehouse filming the register on the office desk, the lobby, and 

a ceiling-to-floor view of the interior of the women‘s bathroom, including the victims‘ 

bodies and at least one bullet casing. Defendant argues the failure to exclude these 

exhibits denied him due process of law under the Fifth, Sixth, Eighth and Fourteenth 

Amendments to the United States Constitution and article I, sections 7, 15, 17 and 24 of 

the California Constitution. 

As a preliminary matter, defendant has forfeited any claim that three of the five 

crime scene photographs were erroneously admitted. Although defendant moved to 

exclude five photographs and argued his objection at the hearing, at the time the trial 

court formally admitted the challenged evidence defense counsel withdrew his objection 
68

to one of the photographs and affirmatively stipulated to the admission of two others. 

(See, e.g., People v. Cook (2006) 39 Cal.4th 566, 609.)

With respect to the remaining two photographs and the 30-second portion of the 

crime scene videotape depicting the victims in the bathroom, the trial court did not abuse

its discretion by admitting this evidence. ―  ̳A trial court‘s decision to admit photographs 

under Evidence Code section 352 will be upheld on appeal unless the prejudicial effect of 

such photographs clearly outweighs their probative value.‘ [Citations.] Notably, 

however, the discretion to exclude photographs under Evidence Code section 352 is 

much narrower at the penalty phase than at the guilt phase. This is so because the 

prosecution has the right to establish the circumstances of the crime, including its 

gruesome consequences [citation], and because the risk of an improper guilt finding 

based on visceral reactions is no longer present.‖ (Bonilla, supra, 41 Cal.4th at pp. 353–

354.)

The two crime scene photographs and videotape were relevant to the penalty phase 

of the trial. They show the circumstances of the crime, which included premeditation and 

deliberation on defendant‘s part as evidenced by his binding the victims‘ hands behind 

their backs with duct tape he had bought a week or two before committing the crimes. 

They further corroborated defendant‘s custodial statements to law enforcement officers, 

including that he had shot Smith several more times upon discovering he had broken free 

from his bindings (one of the photographs and the videotape depicts broken strands of 

duct tape on Smith‘s wrists). Finally, as in the guilt phase, the forensic pathologist used 

the photographs to assist the trier of fact in understanding her testimony. The admitted 

photographs and videotape also were not cumulative; only five photographs and 30 

seconds of videotape were admitted.

Nor were the photographs or videotape substantially more prejudicial than 

probative. ―As we have previously noted,  ̳ ―murder is seldom pretty, and pictures, 

testimony and physical evidence in such a case are always unpleasant.‖ ‘ ‖ (People v. 
69

Roldan (2005) 35 Cal.4th 646, 713.) Likewise in this case. But as unpleasant as these 

photographs and videotape may be, they demonstrate the real-life consequences of 

defendant‘s actions. The prosecution was entitled to have the penalty phase jury consider 

those consequences. The trial court‘s exercise of discretion to admit them was neither 

statutory nor constitutional error.

4. Denial of automatic application for modification of death verdict

Defendant claims the trial court erred in denying his automatic application for 

modification of the death verdict pursuant to section 190.4, subdivision (e). This claim, 

amounting to no more than a disagreement with the trial court‘s assessment of the 

evidence, lacks merit.

Section 190.4, subdivision (e), provides for an automatic application for 

modification of a finding or verdict imposing death in every case in which the jury has 

returned such a finding or verdict. ―Pursuant to section 190.4, in ruling upon an 

application for modification of a verdict imposing the death penalty, the trial court must 

reweigh independently the evidence of aggravating and mitigating circumstances and 

then determine whether, in its independent judgment, the weight of the evidence supports 

the jury‘s verdict.‖ (Crittenden, supra, 9 Cal.4th at p. 150.) The statute thus requires the 

court to make an independent determination concerning the propriety of the death

penalty. The court must state the reasons for its ruling on the record, but need not 

describe every detail supporting its ruling so long as the statement of reasons is sufficient 

to allow meaningful appellate review. (People v. Lewis and Oliver (2006) 39 Cal.4th 

970, 1064.) 

―On appeal, we independently review the trial court‘s ruling after reviewing the

record, but we do not determine the penalty de novo.‖ (People v. Steele (2002) 27 

Cal.4th 1230, 1267 (Steele).) Where the record shows the trial court properly performed 

its duty under section 190.4, subdivision (e), to conduct an independent reweighing of the
70

aggravating and mitigating evidence, the court‘s ruling will be upheld. (People v. Abilez

(2007) 41 Cal.4th 472, 530 (Abilez).) 

Here, the trial court expressly recognized its duty to independently review and 

reweigh the evidence of aggravating and mitigating circumstances to determine whether 

the sentence imposed was proportionate to defendant‘s culpability. It reviewed in detail

the aggravating and mitigating factors listed in section 190.3. For example, it considered 

in aggravation the circumstances of the crime, including the ―high-degree of coldblooded callousness‖ exhibited by the killings, defendant‘s prior felony convictions, 

including the extent to which they involved attempted use of force or violence and 

implied threats thereof, and defendant‘s maturity and life experiences at the time of the 

crimes, including his prior prison and parole terms. In mitigation, it considered the lack 

of more numerous acts of violence by defendant in light of his mature age, defendant‘s 

traumatic childhood, including the physical, emotional, and sexual abuse and 

abandonment he experienced, his decorated service to the country and traumatic war 

experiences in Vietnam, and the testimony of defendant‘s experts concerning PTSD both 

generally and as related to defendant. It ultimately found the weight of the mitigating 

circumstances had been ―greatly attenuated‖ by the intervening 20 years between 

defendant‘s service in Vietnam and the SOS crimes, as well as defendant‘s criminal 

convictions and acts of violence that culminated in the present offenses. The court then 

stated its independent judgment that the circumstances in aggravation outweighed the 

circumstances in mitigation and the substantial weight of the evidence supported the 

jury‘s verdict of death.

Defendant essentially argues the trial court erred because it failed to find his 

childhood problems, Vietnam experiences, and mental health issues to be as significant or 

weighty as it should have. As is apparent, however, ―the trial court applied the correct 

standard and properly conducted an independent reweighing of the aggravating and 

mitigating evidence. That it did not find defendant‘s proffered mitigating evidence as 
71

persuasive as he would have liked does not undermine this conclusion.‖ (Abilez, supra,

41 Cal.4th at p. 530; see Steele, supra, 27 Cal.4th at pp. 1267–1268.) The court‘s refusal 

to modify the verdict is consistent with both the law and the evidence. We therefore

conclude the trial court properly performed its duty under section 190.4, subdivision (e).

5. Penalty of death as disproportionate to defendant’s individual 

culpability

Defendant claims his death sentence constitutes cruel and unusual punishment in 

violation of the state and federal Constitutions because the penalty is grossly 

disproportionate to his individual culpability in committing the crimes. ―  ̳To determine

whether a sentence is cruel or unusual as applied to a particular defendant, a reviewing 

court must examine the circumstances of the offense, including its motive, the extent of 

the defendant‘s involvement in the crime, the manner in which the crime was committed, 

and the consequences of the defendant‘s acts. The court must also consider the personal 

characteristics of the defendant, including age, prior criminality, and mental capabilities. 

[Citation.] If the court concludes that the penalty imposed is ―grossly disproportionate to 

the defendant‘s individual culpability‖ [citation], or, stated another way, that the 

punishment ―  ̳ ―shocks the conscience and offends fundamental notions of human 

dignity‖ ‘ ‖ [citation], the court must invalidate the sentence as unconstitutional.‘ ‖ 

(Steele, supra, 27 Cal.4th at p. 1269.)

Defendant received a death sentence for three burglary and robbery murders 

committed by him alone, purely for financial gain. Although the three victims 

cooperated fully with defendant‘s demands and offered no resistance, he nevertheless 

shot and killed them one by one. He also had an extensive prior criminal record 

including prior prison and jail terms. Defendant attempts to mitigate his personal 

culpability by citing his traumatic childhood and Vietnam War experiences and resulting 

PTSD. We agree with the trial court that these circumstances ultimately did not affect 

defendant‘s capacity to appreciate the criminality of his conduct or to conform his 
72

conduct to the requirements of the law. Defendant‘s actions at the time of the murders 

showed a rational, logical, intelligent, and calculated thought process, and his efforts to 

destroy evidence and to avoid capture by fleeing across the country amply demonstrate 

his awareness of the wrongfulness of his actions. 

In light of the evidence and relevant considerations, we conclude defendant‘s 

sentence is not disproportionate to his personal culpability, nor does it shock the 

conscience. 

C. Challenges to California’s Death Penalty Scheme

Defendant raises a number of challenges to the constitutionality of California‘s 

death penalty scheme, based upon the Fifth, Sixth, Eighth, and Fourteenth Amendments 

of the United States Constitution. As he acknowledges, we have previously considered 

and consistently rejected these contentions in prior cases. Presented with no reasons that 

compel reconsideration, we adhere to those decisions as follows.

Section 190.2 is not impermissibly overbroad. Specifically, the various special 

circumstances are not so numerous as to fail to perform the constitutionally required 

narrowing function, and the special circumstances are not unduly broad or expansive, 

either on their face or as interpreted by this court. (E.g., Jenkins, supra, 22 Cal.4th at p. 

1050; see also Brown v. Sanders (2006) 546 U.S. 212, 221 [recognizing that the special 

circumstances listed in section 190.2 are designed to satisfy the narrowing requirement].) 

Section 190.3, factor (a), does not, on its face or as interpreted and applied, permit 

the ―  ̳arbitrary and capricious‘ ‖ or ―  ̳wanton and freakish‘ ‖ imposition of a sentence of 

death. (E.g., People v. Brasure (2008) 42 Cal.4th 1037, 1066; see Tuilaepa v. California

(1994) 512 U.S. 967, 976 [―The circumstances of the crime are a traditional subject for 

consideration by the sentencer, and an instruction to consider the circumstances is neither 

vague nor otherwise improper under our Eighth Amendment jurisprudence.‖].) 
73

Neither the federal nor the state Constitution requires the penalty phase jury to 

make unanimous findings concerning the particular aggravating circumstances, find the 

truth of every fact supporting all aggravating factors beyond a reasonable doubt, or find 

beyond a reasonable doubt the aggravating factors outweigh the mitigating factors and 

death is the appropriate sentence. (E.g., People v. Howard (2008) 42 Cal.4th 1000, 1031; 

People v. Fairbank (1997) 16 Cal.4th 1223, 1255.) The United States Supreme Court‘s 

decisions interpreting the Sixth Amendment‘s jury trial guarantee (see Cunningham v. 

California (2007) 549 U.S. 270; United States v. Booker (2005) 543 U.S. 220; Blakely v. 

Washington (2004) 542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; Apprendi v. New 

Jersey (2000) 530 U.S. 466) do not alter these conclusions. (E.g., People v. Bramit

(2009) 46 Cal.4th 1221, 1250 & fn. 22.)

Written or other specific findings by the jury regarding the aggravating factors are 

not constitutionally required. (E.g., People v. Friend (2009) 47 Cal.4th 1, 90.)

Intercase proportionality review is not constitutionally required. (Moon, supra, 37 

Cal.4th at p. 48; see Pulley v. Harris (1984) 465 U.S. 37, 50–51.)

The use of adjectives such as ―extreme‖ in section 190.3, factors (d) and (g), or 

―substantial‖ in section 190.3, factor (g), do not serve as improper barriers to the 

consideration of mitigating evidence. (E.g., People v. Cruz (2008) 44 Cal.4th 636, 681.) 

The trial court was ―not required to instruct the jury as to which of the listed 

sentencing factors are aggravating, which are mitigating, and which could be either‖

mitigating or aggravating, depending upon the jury‘s appraisal of the evidence. (People 

v. Manriquez (2005) 37 Cal.4th 547, 590, italics added; see People v. Hillhouse (2002) 27 

Cal.4th 469, 509 [―The aggravating or mitigating nature of the factors is self-evident 

within the context of each case.‖].)

Because capital defendants are not similarly situated to noncapital defendants, 

California‘s death penalty law does not deny capital defendants equal protection by not 
74

providing certain procedural protections afforded to noncapital defendants. (E.g., People 

v. Cruz, supra, 44 Cal.4th at p. 681.)

We reject the argument that the use of capital punishment ―as regular punishment‖ 

violates international norms of humanity and decency and hence violates the Eighth 

Amendment of the United States Constitution. ―California does not employ capital 

punishment in such a manner. The death penalty is available only for the crime of first 

degree murder, and only when a special circumstance is found true; furthermore, 

administration of the penalty is governed by constitutional and statutory provisions 

different from those applying to  ̳regular punishment‘ for felonies.‖ (People v. 

Demetrulias (2006) 39 Cal.4th 1, 43–44.)

Lastly, we find no state or federal constitutional violation when the asserted 

defects in California‘s death penalty scheme are considered collectively. (People v. 

Lucero (2000) 23 Cal.4th 692, 741.)
75

DISPOSITION

For the foregoing reasons, the judgment is affirmed in its entirety. 

WERDEGAR, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.
1

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

Name of Opinion People v. Cunningham

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S051342

Date Filed: July 2, 2015

__________________________________________________________________________________

Court: Superior

County: San Bernardino

Judge: Michael A. Smith

__________________________________________________________________________________

Counsel:

Brian A. Pori and Mordecai Garelick, under appointments by the Supreme Court, for Defendant and 

Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant 

Attorney General, Gary W. Schons, Assistant Attorney General, Annie Featherman Fraser and Ronald A. 

Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
2

Counsel who argued in Supreme Court (not intended for publication with opinion):

Mordecai Garelick

101 Second Street, Suite 600

San Francisco, CA 94105

(415) 495-0500

Ronald A. Jakob

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 645-2332