IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

ADRIAN GEORGE CAMACHO,

Defendant and Appellant.

S141080

San Diego County Superior Court

SCN 163535

November 28, 2022

Chief Justice Cantil-Sakauye authored the opinion of the Court, 

in which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and 

Guerrero concurred.
PEOPLE v. CAMACHO

S141080

Opinion of the Court by Cantil-Sakauye, C. J.

At approximately 5:05 p.m. on June 13, 2003, uniformed 

Officer Tony Zeppetella of the Oceanside Police Department 

detained defendant Adrian Camacho in a traffic stop. By 

5:09 p.m., defendant had shot the officer no fewer than 13 times, 

beaten him as he laid wounded but conscious on the ground, and 

fled the scene. Despite receiving immediate medical attention, 

Officer Zeppetella died en route to the hospital.

At trial, defendant did not contest that he shot and killed 

Officer Zeppetella. He claimed, however, that he did so during 

a period of delirium and psychosis brought about by a

combination of illicit substances and prescription medication he 

had ingested. Defendant argued that, due to the effects of the 

drugs, he did not possess the requisite mental state for first 

degree murder. (Pen. Code, § 187, subd. (a); all further 

unspecified statutory references are to the Penal Code.) 

Defendant urged the jury to convict him of a lesser crime, one as 

lenient as involuntary manslaughter, but in any event not more 

severe than second degree murder.

The jury rejected defendant’s argument, finding him

guilty of first degree murder. (§ 189, subd. (a).) It also found 

true two special circumstance allegations: (1) defendant

murdered Officer Zeppetella “for the purpose of avoiding or 

preventing a lawful arrest” (§ 190.2, subd. (a)(5)), and 

(2) defendant “knew, or reasonably should have known, that the 

victim was a peace officer engaged in the performance of his or 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

2

her duties” and intentionally killed Officer Zeppetella while he 

was engaged in the performance of said duties (§ 190.2, subd. 

(a)(7)). The jury further found true the allegations that 

defendant “personally use[d] a firearm” and “personally and 

intentionally discharge[d] a firearm and proximately cause[d] 

great bodily injury” in committing the murder. (§ 12022.5, subd. 

(a); § 12022.53, subd. (d).) Finally, the jury convicted defendant 

of being a felon in possession of a firearm and possessing a 

controlled substance for sale.

At the conclusion of the penalty phase, the jury 

recommended a sentence of death. The court so sentenced 

defendant.

This is defendant’s automatic appeal. We affirm the 

judgment in its entirety.

I. BACKGROUND

A. Evidence at the Guilt Phase

1. Prosecution case

a. Events at the scene of the shooting

The shooting and killing of Officer Zeppetella occurred on 

a Friday afternoon in the parking lot of a Navy Federal Credit 

Union in Oceanside. Because that Friday was payday at a 

military base located close by, the credit union was busy and 

multiple witnesses observed and testified to the events 

surrounding the shooting.

Eyewitnesses testified to seeing a person later identified 

as defendant driving a blue Toyota. Officer Zeppetella’s police 

vehicle had pulled into the credit union’s parking lot behind the 

Toyota, partially blocking it. The officer then walked up to 

defendant, seated in the Toyota. Defendant handed the officer 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

3

some sort of paperwork. The witnesses testified that the 

interaction seemed routine.

As the officer half turned away from defendant with the 

paperwork, however, defendant opened fire. Subsequent expert 

testimony established that defendant fired his Ruger pistol, 

hitting Officer Zeppetella multiple times. After a pause, 

defendant and the officer began to exchange gunfire, and the 

officer hit defendant once in the knee.

Laura Pallos observed the incident unfolding from her 

vehicle. She testified that after hearing the initial gunshots, she 

saw an officer “stumbling . . . out from between two cars.” She 

then saw “a man,” defendant, “come out . . . from between those 

same two cars with a gun pointing at the officer” and “shooting 

at him.” After falling to the ground, Officer Zeppetella began 

“pulling himself along with his right arm.” It appeared to Pallos 

that Officer Zeppetella was “looking for some place to crawl

behind.” Defendant “watch[ed] very intently” before “following” 

Officer Zeppetella, “taking the shortest path towards the 

officer.” Having covered the distance to the victim, defendant

“reached down,” “grabbed the back of the police officer’s collar,”

“pulled him up,” then swung down with the gun held in his right 

arm, striking the officer on the back of the head three or four 

times. Defendant subsequently threw the officer “down to the 

asphalt.”

Pallos testified that she saw defendant then “crouch[]

down” by the officer and press “at his waist line with both 

hands.” Testimony by other witnesses indicated that defendant 

had emptied his own firearm at this point, but that he found and 

seized Officer Zeppetella’s Glock handgun, presumably when 

Pallos saw defendant crouched by the officer. Pallos then saw
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

4

defendant backing away while maintaining focus on the officer 

“at all times.” When defendant saw movement from the officer, 

he “stepped back in those two steps that he had backed up and 

shot him again” — this time with the officer’s own handgun —

“three, four” more times. “The officer stopped moving.” 

Defendant watched the victim for a second longer, then got into 

the police vehicle and sped away from the scene.

Corpsman Gabriel Tellez, who specialized in “combat and 

combat-related trauma,” was inside the credit union during the 

shooting. Once the shooting ceased, Tellez made his way to the 

parking lot and “noticed [an] officer laying on the ground face 

down.” Based on the color and amount of the blood that “had 

already pooled underneath the officer,” Tellez recognized that 

Officer Zeppetella had “a very life threatening injury.” 

“Working as quickly as [he] possibly c[ould],” Tellez rolled the 

officer onto his back, got his ballistic vest off him, ascertained 

that blood was pulsing from a wound in his chest, and inserted 

his fingers into the wound to clamp off the severed artery that 

was bleeding. Officer Zeppetella was still alive and responsive 

at this stage, as he “winced in pain” when Tellez inserted his 

fingers in the wound. Other bystanders joined Tellez in 

rendering aid. An ambulance arrived. The paramedics loaded 

Officer Zeppetella and Tellez, whose fingers were still inside the 

officer’s chest maintaining “a critical hold,” into the ambulance. 

Although the paramedics continued to provide medical care

during the ambulance ride, Tellez noticed “life [was] starting to 

ebb out of Officer Zeppetella.” The officer was pronounced dead 

at Palomar Hospital slightly more than an hour after the 

shooting began.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

5

b. Events following the shooting

After defendant fled the scene in Officer Zeppetella’s 

patrol vehicle, he drove to a neighborhood where he had 

previously resided with his mother-in-law, Lorraine Camacho.1 

Lorraine lived at a house on Via Isidro, and an eyewitness saw 

defendant on foot and turning onto the street. The eyewitness, 

together with another individual, Doug Cosley, discovered a

police car abandoned a short distance away from Via Isidro with 

the engine still running. The witnesses then heard through a 

radio transmitting from the vehicle that “there was an officer 

down and a car and weapons missing.” Thinking that the 

missing police vehicle was the one they were standing next to, 

Cosley used the radio to report the car’s location.

Police officers arrived soon after and followed what 

appeared to be blood stains leading to Lorraine’s residence. 

Surmising that defendant had isolated himself inside, law 

enforcement personnel spent the next few hours securing the 

area and evacuating nearby residents. By approximately 

9:00 p.m., a SWAT team led by Sergeant Thomas Aguigui was 

ready to make contact with defendant.

Aguigui testified that he communicated with defendant 

via a bullhorn. After Aguigui established rapport, defendant 

told the sergeant that he was scared, he had cut his wrists, and 

he did not want to come out of the house for fear of the police. 

Defendant also asked if “the officer died,” to which Aguigui 

replied that he did not know. Aguigui reassured defendant that 

“it was safe for him to come out” and that “medical attention 

1 We refer to people who share a surname with defendant 

by their first names to avoid confusion.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

6

[would be given] to his injuries.” Defendant agreed to exit the 

residence. Defendant then followed Aguigui’s directions, turned 

on the porch light, stepped out, dropped a piece of cloth that he 

had in his hand when directed to do so, and walked to the 

officers. After the SWAT team placed handcuffs on defendant, 

he was turned over to medics for first aid. When he was on the 

gurney, defendant volunteered that he did not “ ‘know what that 

officer did to make [him] snap.’ ” Based on his interaction with 

defendant, Aguigui testified that although defendant was “in 

some significant amount of pain,” he was “coherent” and able to 

understand the instructions given to him.

Aguigui’s observations of defendant’s demeanor were

echoed by medical personnel who treated defendant that night. 

Timothy Huerta, one of the paramedics who transported 

defendant to the hospital, testified he and his partner undertook 

an initial assessment of defendant at 9:41 p.m. after defendant 

walked out of the house on Via Isidro. Defendant was “alert,” 

“cooperative,” able to relay date, time, and location as well as 

“his age, his weight, whether or not he was in pain, which he 

said he wasn’t, and where he had been shot.” In communicating

all this information, defendant’s speech was “normal and clear.”

Once the paramedics placed defendant into the ambulance, they 

began standard treatment procedure for a patient with a 

gunshot wound, bandaging his injuries, establishing an IV, and 

placing him on oxygen. Defendant remained “very alert,” 

“looking around” and “watching [the paramedics’] movements.”

Once defendant arrived at the hospital, Dr. Imad Dandan 

treated him at 11:00 p.m. Dandan’s assessment was that 

defendant was “awake and alert.” He talked to defendant, who 

was “calm, very courteous, and responsive to . . . questions.” 

Defendant did not have pressured or rapid speech; he was not 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

7

incoherent; he did not sweat excessively; and his temperature 

was normal. Defendant did have lacerations on both of his 

forearms, three on the left and one on the right. The lacerations 

were “a little jagged and superficial,” measuring from two 

centimeters to four centimeters. Dandan administered local 

anesthesia, “cleaned the wounds and repaired them.” 

Defendant also had a gunshot wound on his right knee. Dandan 

cleaned the wound and gave defendant antibiotics but did not 

remove the bullet because there was “no danger [from] leaving 

the bullet [in]” and removal would result in more damage.

A nurse drew defendant’s blood at around 11:00 p.m., the 

same time as Dr. Dandan’s examination. Toxicologist John 

Treuting reported the results of the tests done on the sample 

extracted. According to Treuting, defendant tested “positive for 

methamphetamine at a qualitative level of 119 nanograms per 

millimeter of blood.” This was a level that Treuting would 

consider “toxic.”

In addition to methamphetamine, defendant’s blood also 

contained “morphine at a level of 576 nanograms per ml and a 

codeine level of 98 nanograms per ml.” Morphine is a byproduct 

of heroin, while the presence of codeine could be explained both 

by an individual using codeine or by the individual “converting 

morphine to heroin.” Again, Treuting would consider this level 

of morphine “toxic.”

Treuting further testified that defendant tested positive 

for Valium and Paxil at levels that were within the therapeutic 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

8

range.2 Based on the levels present in defendant’s blood alone, 

however, it was difficult for Treuting to conclude when 

defendant had ingested the various illicit drugs or what the drug 

concentrations were at a point in time prior to the blood sample 

being taken.

At approximately the time that defendant was receiving 

medical care, police officers conducted a search of Lorraine’s 

house on Via Isidro. Defendant had evidently broken into the 

house3 by shattering a rear glass door. Inside one of the 

bathrooms, there was writing on the walls in what appeared to 

be blood. One of the writings said, “I,” followed by a picture of a 

heart, and “my wife and kids.” Two others read, “sorry” and “I’m 

sorry.” Yet another writing read, “Help me, Ordas.” As will be 

detailed below, Ordas is the name of a psychiatrist who had been 

treating defendant.

In the same bathroom were various drug paraphernalia. 

In the toilet was “a small ziploc baggie with brown residue.” 

There was also a glass pipe with white residue and a bag with 

“squares cut out of it.” Karen Laser, a corporal with the 

Oceanside Police Department and the person who discovered 

the items, testified that the brown baggie contained heroin, the 

2 Valium, the brand name for diazepam, is an antianxiety 

drug. Paxil, the brand name for paroxetine, is an 

antidepressant. Treuting described the “therapeutic range” as 

indicating a dosage at which an individual taking the drug is 

“getting the beneficial effects and not the toxic effects or the 

adverse effects.”

3 Lorraine Camacho, who still resided at the location, 

happened not to be home.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

9

glass pipe contained methamphetamine, and the bag appeared 

to be used to package tar heroin.4

Marilyn Priem, a detective with the Oceanside Police 

Department, searched one of the bedrooms in the house. Priem 

saw a vacuum cleaner inside a closet and detected a hard object 

inside the vacuum bag. Believing the object to have been too 

large for a vacuum cleaner to have naturally suctioned up, 

Priem “unzipped the outer portion of the bag” and saw that the 

inner dust collection bag had been either torn or cut open. Inside 

was a magazine containing bullets, next to which was “the back 

end of a . . . Glock 17 gun.” Priem believed that both the 

magazine and gun were “placed very carefully” rather than 

“thrown in” the vacuum bag because “they were almost level 

with [each other and had] almost the same amount of dust 

surrounding [them].” After these two items were removed, 

police personnel discovered a Ruger pistol inside the same 

vacuum bag.

Officers also searched the blue Toyota that defendant had 

been driving when he was stopped by Officer Zeppetella. John 

Morgans, an investigator for the Oceanside Police Department, 

processed the vehicle. Of relevance, Morgans recounted that he 

found a blue nylon bag on the front passenger seat. Inside the 

4 The items were sent for chemical testing. Although 

laboratory work confirmed that the glass pipe contained 

methamphetamine, it could not detect heroin from the baggie. 

The criminalist who testified concerning the results explained 

that heroin is “highly soluble” in water. As such, if a bindle 

containing heroin was left in a toilet sometime between “5:00 in 

the afternoon and 9:15 to 9:30 at night” and the bindle was not 

recovered “out of the toilet until sometime after 4 or 5 o’clock the 

next morning,” that could have “an impact on [the] ability to 

detect . . . heroin.”
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

10

bag were “tweezers, scissors, small jeweler’s bags, which are 

used to package narcotics,” “small cotton swabs that are 

generally used to dip into a substance that’s been heated up to 

inject,” small plastic and metal spoons, two syringes, “a small 

little ziploc bag that contained . . . some residue,” and small 

glass vials, again, with residue. Morgans also testified that he 

found a cell phone.

Finally, officers searched the house that defendant shared 

with his wife, Stacey Camacho. Christopher Carnahan, another 

Oceanside police officer, testified that both drug paraphernalia 

and ammunition were found in the house. The police uncovered 

plastic bags containing substances that looked like marijuana, 

methamphetamine, and heroin, as well as spoons and pills.5 

Carnahan was “an experienced narcotics detective,” and he 

testified that the narcotics recovered from the Toyota and the 

house were possessed not for “simple use” but for sale.

c. Expert testimony at trial

The prosecution in its case in chief presented various 

experts, including that of a medical examiner and a crime scene 

reconstruction expert. The medical examiner, Dr. Bethann 

Schaber, performed an autopsy on Officer Zeppetella’s body “to 

determine the cause and manner of [his] death” and testified as 

follows.

Officer Zeppetella suffered 13 “penetrating and 

perforating gunshot wounds.”6 Of these, two were fatal. The 

5 Many of the items seized from the house were sent to a 

laboratory for testing and tested positive for heroin.

6 There appears to have been two additional shots that 

grazed the officer but did not enter his body.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

11

first fatal shot entered the victim’s chest, “traveled from front to 

back,” and remained lodged in his neck and back. In moving 

through the body, the bullet fractured the clavicle and 

perforated the “right internal jugular vein and the right common 

carotid artery,” “two large blood vessels supplying the head.” 

The second fatal shot entered the officer’s back. “The bullet 

travel[ed] through the body, perforating fat around the kidney, 

perforating the diaphragm or the muscle between the chest and 

abdominal cavity that allows people to breath. It then 

perforate[d] the spleen and is lodged in the . . . chest below the 

nipple.”

In addition to these injuries, Officer Zeppetella sustained 

gunshot wounds to the neck, back, left arm, right arm, right 

elbow, right hand, right thumb and wrist,

7

thigh, and buttock. 

He also sustained “four separate lacerations or tears in the scalp 

resulting from blunt force injury.” These injuries were 

consistent with Pallos’s testimony that defendant struck the 

officer in the head with defendant’s gun.

The crime scene reconstruction expert, Rodney Englert, 

related his opinion based on reports by others, his own 

examination of the physical evidence, and a synthesis of 

eyewitnesses’ accounts. Although Englert was not able to 

pinpoint the exact sequence of shots, he was able to reconstruct 

the following details regarding the shooting. Defendant fired 

16 shots from his Ruger pistol, emptying the gun; of these, 

7 Other testimony indicated that Officer Zeppetella held his 

firearm in his right hand. The bullet that entered his right arm 

fractured the officer’s humerus, the bone connecting his 

shoulder to the elbow. The bullet through the thumb fractured 

the ulna, one of the two bones in the wrist.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

12

11 struck Officer Zeppetella. Officer Zeppetella, in turn, 

discharged his gun 14 times, hitting defendant once. In the 

initial volley of shots, defendant fired his gun five times, hitting 

the officer in the chest, neck, and right thumb and wrist. 

Defendant fired the first fatal shot — the one that entered the 

officer’s chest — in this burst of gunfire. During the subsequent 

exchange of gunfire (when the officer had begun firing back), 

defendant hit the officer another eight times, breaking his 

shooting arm. After Officer Zeppetella attempted to crawl away, 

defendant beat the officer, causing the head wounds observed by 

the medical examiner. Defendant then seized Officer 

Zeppetella’s Glock handgun and shot at him another four times, 

emptying this firearm as well. One of these shots was the fatal 

shot that entered through the officer’s back and perforated his 

diaphragm and spleen.

2. Defense case

a. Testimony regarding defendant’s behavior 

prior to the shooting

At trial, defendant argued that he suffered from a 

diminished mental state at the time of the shooting due to his

use of drugs. To support his case, defendant introduced the 

testimony of his wife, coworkers, and neighbor — witnesses who 

recounted defendant’s addiction to heroin and his behavior prior 

to the shooting.

Defendant’s wife, Stacey Camacho, testified that she had

known her husband for about ten years. Defendant was 

addicted to heroin that entire time. Sometime in March or April 

of 2002, Stacey arranged for defendant to begin seeing a 

psychiatrist, Dr. Dennis Ordas. From 2002 to 2003, defendant’s 

health was deteriorating. He “was going to rehab” and 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

13

“methadone clinics.” At some point after he began seeing 

Dr. Ordas, defendant was hospitalized at Aurora Hospital, “a 

behavioral health center.” There he was prescribed Paxil, which 

he continued to take until the day of the shooting. Between May 

2002 and June 2003, defendant was hospitalized “five or six 

times.” According to Stacey, defendant was “suicidal,” “had been 

very depressed for a while,” and “was trying to stay off drugs,” 

but “he said he couldn’t handle it anymore.”

Defense counsel also questioned Stacey concerning 

whether there were “any times . . . when [defendant] exhibited 

bizarre behavior [toward her].” Stacey answered affirmatively 

and volunteered as examples the fact that defendant “would 

hear voices that nobody else would hear” and “he always thought 

that people were coming to the door, so he constantly was 

staring [out] the window.” When asked if “there [was] a time 

when he thought suspicious[ly]” of her, Stacey responded that 

sometimes when she “wore a headband,” defendant “would grab 

it” and “cut it up” or tell her that she had “wires in [her] 

headbands” and was “trying to watch him.” Likewise, defendant 

“thought [she] had hidden cameras in” her platform shoes.8

Regarding the shooting, Stacey told the jury that 

defendant called her at work sometime after 5:00 p.m. on 

June 13, 2003. Defendant sounded “real scared” and 

“hysterical.” He said “he was at [her] mom’s house and that a 

police officer was hurt, and he wanted to die.” On direct 

examination, Stacey testified that defendant did not tell her 

8 Due to the phrasing of defense counsel’s questions (“were 

there any times” “was there a time”), it is difficult to ascertain 

when defendant “exhibited [the] bizarre behavior” Stacey 

recounted.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

14

“how or why or what happened to the police officer,” that he did 

not tell her that “he shot a police officer and a police officer shot 

him,” but merely that “he hurt a police officer.” After speaking 

to defendant, Stacey called her mother, Lorraine Camacho,

relating that defendant was “at her house,” “really upset,” and 

that she (Lorraine) needed “to go home.”

Stacey also left work and drove to Lorraine’s home. She 

thought defendant “was going to kill himself.” Stacey 

cooperated with law enforcement personnel she encountered 

around her mother’s residence. After defendant surrendered 

and received medical care, Stacey was able to talk to him at the 

Oceanside police station. In contrast to the medical personnel’s 

observations, Stacey thought her husband was far from coherent

or “clear headed” — “he was mumbling things,” “wasn’t making 

any sense,” “was crying,” and still saying that “he wants to die.”

On cross-examination, Stacey agreed with the prosecutor’s 

description of her conversation with her mother, some of which 

was inconsistent with her testimony on direct examination. For 

instance, the prosecutor asked if Stacey told her mother “words 

to the effect of, you know, the defendant called me — or 

whatever words you used — and he got scared and he shot a cop,

and the cop shot him and you know — and he took off, words to 

that effect to your mother.” Stacey responded, “right.”

Lorraine Camacho corroborated parts of Stacey’s 

testimony. Lorraine stated that Stacey called her on the 

afternoon in question and “was very hysterical” and “crying.” 

After speaking to Stacey, Lorraine immediately went home. 

Like Stacey, Lorraine encountered law enforcement 

surrounding her home and cooperated with them.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

15

When questioned by the prosecution, Lorraine admitted 

that she had given statements to the police that either conflicted 

with certain details in her daughter’s testimony or tended to 

incriminate defendant. For example, Lorraine stated Stacey 

told her that, during the telephone conversations she (Stacey) 

had with defendant, defendant told her, “I was speeding,” “got 

pulled over in a traffic stop,” and “got scared.” Furthermore, 

“the essence” of what defendant told Stacey, as Stacey related to 

Lorraine, was that defendant “got scared, shot a cop, [and] a cop 

shot him in the leg.” Although at trial Lorraine asserted she did

not remember saying so, in an audiotaped statement to the 

police Lorraine had recounted that defendant told Stacey “he 

shot a cop, and he got shot in the leg, and he — he went to your 

house cause that’s the only place he could think of to hide 

because it was right around there — or words to that effect.”

The defense also called to the stand two of defendant’s 

coworkers, David Bates and Lonnie Roybal, and a neighbor, 

Walter Priest. Bates testified that other employees told him 

defendant had a drug problem. Bates also stated that 

approximately a month before the shooting defendant stopped 

showing up to work at his construction job. Defendant’s other 

coworker, Roybal, testified that he knew about defendant’s drug 

problem both because defendant confided to him about that, and 

because Roybal observed behavior from defendant such as 

“nodding out in the mornings.”

Walter Priest, who lived in the same mobile home complex 

as defendant and Stacey, testified that he saw defendant driving 

by between 2:30 and 3:00 p.m. on the day of the shooting. Priest 

thought defendant’s behavior was unusual because he “stared a 

lot,” looked like he was suspicious, and did not offer a “friendly 

neighbor wave.” 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

16

In response to Stacey’s testimony, the prosecution called 

California Highway Patrol Officer William Grant. Grant had 

assisted with directing traffic around Lorraine’s house on the 

day of the shooting. When Stacey attempted to reach defendant 

by driving to the residence, Grant stopped her, because no traffic 

was allowed in or out of the area. Grant recounted that when 

he talked to Stacey, she volunteered her husband had conveyed 

that he shot a police officer, “that he wasn’t going to go back to 

prison and that he was going to kill himself.”

b. Expert testimony at trial

In addition to the lay witnesses, the defense introduced 

the testimony of two experts, psychiatrists Dennis Ordas and 

Pablo Stewart. Ordas maintained a private practice and worked 

at the Vista Detention Facility. Defendant had been one of 

Ordas’s patients at his private clinic for about a year by the time 

of Officer Zeppetella’s shooting. When Stacey first brought 

defendant to Ordas in April 2002, defendant was addicted to 

heroin and wanted help. During the next year, Ordas saw 

defendant about 18 times. Defendant “struggle[d]” with his 

addiction, trying to quit and relapsing, with “his longest clean 

period [being] about ten days.”

On March 18, 2003, Dr. Ordas received a telephone 

message from defendant. The message, as taken down by the 

doctor’s secretary, said, “ ‘Please call. Hearing buzzing in 

head.’ ” Ordas called defendant and scheduled an appointment 

for two days later. When Ordas saw defendant at the 

appointment, defendant told him that he had been “living on the 

streets for a few weeks.” Defendant also conveyed that he “was 

back to using more heroin, and he had actually done a small 

amount of crystal meth.”
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

17

On June 13, 2003, Dr. Ordas received telephone calls from 

Stacey and law enforcement. Both informed him about the 

events of the shooting, that defendant “was holed up in a house, 

and [the Oceanside Police Department] wanted to see if [Ordas] 

would attempt to talk him out of the house.” Ordas declined. 

However, because of his work at the jail, Ordas did see 

defendant the next day. Ordas’s impression was that defendant 

was “mentally beat up” and suffering from “confusion about 

what had just happened.” Defendant himself told the doctor 

that he was “ ‘out of it.’ ”

When defendant was held at the jail, Dr. Ordas oversaw 

his mental health care. Ordas believed defendant was 

experiencing “traumatic recalls or intrusive thoughts” about the 

events surrounding the shooting. Defendant reported having 

nightmares, and Ordas prescribed him medications to help with 

his anxiety, inability to sleep, and nightmares.

To lay groundwork for later testimony by Dr. Stewart, the 

defense asked Dr. Ordas about methamphetamine-induced 

psychosis. Ordas confirmed that such a condition is listed in the 

Diagnostic and Statistical Manual of Mental Disorders and gave 

a description of the condition. The defense then inquired about 

the chemical makeup of Paxil and if “it might be similar to 

methamphetamine.” Ordas responded “no,” but that “[t]here is 

some literature that suggests that Paxil and methamphetamine 

may compete at a similar receptor site in the liver.”

The defense also explored with Dr. Ordas defendant’s use 

of Paxil. Ordas confirmed that defendant was prescribed the 

medication during his visit at Aurora Hospital in 2002 and 

Ordas “continued it [the prescription] when [defendant] came to 

see me.” In fact, Ordas increased the dosage of the medication 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

18

to treat defendant’s depression. On March 20, 2003 — the date 

when defendant told Ordas that he was using 

methamphetamine — Ordas prescribed defendant Paxil, 

keeping the dosage of the drug the same but changing the 

formulation of the medicine to “sustained release” so that the 

active chemical released “throughout the day” instead of in “one 

solid hit.”

Picking up on the topic of Paxil and methamphetamine, 

the prosecution solicited from Dr. Ordas the view that he was 

“comfortable giving the Paxil knowing [defendant] was taking 

some meth with his heroin.” Ordas further volunteered that 

such treatment is “fairly common.”

The prosecution inquired about the diagnoses that 

Dr. Ordas made of defendant based on his provision of care 

when defendant was in the jail. Ordas stated he diagnosed 

defendant with heroin dependence, methamphetamine 

dependence, depression, and antisocial personality disorder. 

The prosecution verified that Ordas was not expressing an 

opinion that defendant had a “methamphetamine-induced 

psychotic episode on June 13th, 2003.” Ordas responded, 

“I would not be qualified to say that. I wasn’t there.”

The defense’s principal expert was a psychiatrist, 

Dr. Stewart, who, unlike Dr. Ordas, did opine that defendant 

had methamphetamine-induced psychosis during the shooting 

of Officer Zeppetella. In arriving at his diagnosis, Stewart

reviewed defendant’s medical records, interviewed his family 

members, and talked to defendant. Stewart diagnosed 

defendant with heroin and methamphetamine abuse. He noted 

that these diagnoses were the same diagnoses defendant 

received at Aurora Hospital in 2002. Stewart further noted that 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

19

defendant was prescribed Paxil by the staff at Aurora Hospital 

and that in March 2003 he was transitioned to a controlled 

release form of Paxil. In Stewart’s opinion, being on a controlled 

release form of Paxil was comparable to receiving an increased

dosage of the drug because the drug would stay in the body for 

longer.

In addition to the above diagnosis, Dr. Stewart opined that 

in June 2003 defendant suffered from two other mental

disorders: (1) substance intoxication delirium, with the relevant 

substances being “the mixture of methamphetamine and Paxil, 

and . . . a contribution from the heroin,” and 

(2) methamphetamine-induced psychotic disorder. Regarding 

the first diagnosis, Stewart explained that delirium is like “a 

short-lived dementia.” A delirious person “may not be fully 

aware of [the environment],” or “fully cognizant of things going 

on,” and may have “memory problems” and “perceptual 

disturbances where [the person is] misinterpreting the 

intentions and . . . behavior of others.” Such delirium is “short 

lived” and may “wax and wane.” Substance intoxication 

delirium means that the delirium is “related to the use of 

substances,” in this case “methamphetamine and the 

antidepressant Paxil.”

Dr. Stewart supported his diagnosis by explaining the 

biochemistry of the substances involved, followed by

observations about defendant’s behavior. Regarding the 

biochemistry of Paxil and methamphetamine, Stewart 

explained that Paxil works in the body “basically the same [way] 

. . . methamphetamine works.” This means that “one drug Paxil 

plus one drug methamphetamine doesn’t equal two”; instead,

the effect of the drugs is “multiplied so [the individual] get[s] a 

much greater effect from the mixing of these two drugs.” In 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

20

addition, an enzyme in the liver, called 2D6, which metabolizes 

methamphetamine, is inhibited by Paxil. This results in the 

body “seeing more methamphetamine.” Having both Paxil and 

methamphetamine in the system brings about “changes of 

consciousness, [and] cognitive problems” or substance 

intoxication delirium.

Such delirium, Dr. Stewart testified, “overlap[s]” with his 

second diagnosis — that defendant was experiencing 

methamphetamine-induced psychotic disorder. A person 

suffering from this disorder has “psychotic symptoms, 

hallucinations or delusions, . . . that are temporally related to 

the use of the substance.” Examples of psychotic symptoms are 

“auditory, [or] visual hallucinations” and “paranoid delusions.” 

Stewart identified the following as evidence that defendant was 

experiencing psychotic symptoms: the “buzzing in his head” as 

reported to Dr. Ordas; defendant’s belief, as related by Stacey 

Camacho, that Stacey had cameras in her platform shoes and 

wires in her headband; and Stacey’s testimony that defendant 

was hearing people coming up to his door “when in fact they 

really weren’t.”

Turning to the events on the day of the shooting, 

Dr. Stewart opined that defendant’s behavior corresponded to 

his “having both of these conditions” and exhibiting “clouded 

consciousness, cognitive problems, [and] perceptual 

disturbances” during the encounter with Officer Zeppetella. 

Stewart characterized the shooting as a “bizarre killing” that 

occurred in the middle of the afternoon, when it was “bright out” 

and there were “a lot of people around.” In Stewart’s opinion, 

defendant displayed a “lack of . . . awareness of all these 

witnesses that were around him” and engaged in a “singleminded” act of shooting the officer. Moreover, defendant acted 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

21

“odd[ly]” in stealing the police car when “there were plenty of . . . 

civilian vehicles that were readily available to him if in fact he 

was choosing to [escape].”

When asked if delirium and psychosis due to intoxication 

were consistent with witnesses’ testimony regarding 

defendant’s conduct preceding and following the shooting, 

Dr. Stewart answered affirmatively. For example, defense 

counsel asked, “when the police removed [defendant] from the 

home [of Lorraine Camacho], he said he blacked out and didn’t 

know what the officer did to set him off, and he wanted to kill 

himself . . . are those statements consistent or inconsistent with 

. . . the diagnoses you’ve described?” Stewart responded, “You 

certainly can see types of behavior like that, given these 

particular diagnoses that we’ve been discussing today.”

Anticipating the prosecution’s questions, defense counsel 

queried if some of defendant’s seemingly purposeful behavior 

was consistent with delirium and psychosis. Dr. Stewart replied 

that due to the fluctuating nature of the conditions, defendant 

“could have moments of lucidity followed by moments of 

confusion.” Moreover, “[t]hings that appear to be purposeful” 

(i.e., that defendant “gets in the police car,” “drives away,” “gets 

weapons and puts them in a vacuum cleaner bag”) do not “rule 

out the presence of a delirium diagnosis” because one “can’t tell 

[delirium] from just looking at the behavior.”

The prosecution cross-examined Dr. Stewart at length, 

focusing on the fact that there were “between 16 and 17,000 

pages” of documents in the case, out of which Stewart reviewed 

only 20 items. Those 20 items were provided to Stewart by the 

defense, and Stewart did not request any additional documents. 

In particular, Stewart did not review statements given to the 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

22

police by Lorraine Camacho; he did not read letters that 

defendant wrote while he was in jail even though Stewart had 

testified in a prior matter that “the writings of the person who 

[he] was assessing” were important; and he did not write a 

report documenting his opinion despite having done so in prior 

cases and knowing that “when [he has written such reports, he 

was] cross-examined on the contents of the report.”

The prosecutor also questioned the basis of Dr. Stewart’s 

opinion concerning biochemistry and the effect of combining 

Paxil and methamphetamine. Stewart had produced to the 

prosecution the abstracts of about two dozen articles, identified 

as the sources on which he based his opinion. The prosecutor 

asked, and Stewart agreed, that none of the articles concerned 

Paxil, methamphetamine, and their effects on human beings. 

Focusing on the one abstract documenting the function of the 

enzyme 2D6 that Stewart had testified is inhibited by Paxil, the 

prosecutor first elicited an acknowledgment that the article was 

“one of the main” articles “supporting [Stewart’s] theory about 

what happened in this case.” The prosecutor then elicited from 

Stewart the concession that he had not actually read the article, 

but only the abstract. Furthermore, Stewart could not recall 

whether the article had concluded that the increase in 

concentration of a key chemical because of 2D6 inhibition was 

“small.” Likewise, Stewart did not remember whether the 

article had concluded that there were “parallel enzymes” that 

could help to metabolize chemicals when 2D6 was inhibited.

Of the letters that the prosecution mentioned to 

Dr. Stewart, two were introduced into evidence at trial. 

Defendant had written these letters when he was in custody 

facing charges in the present case. As part of its attempt to 

rebut the defense theory that defendant’s shooting and killing of 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

23

Officer Zeppetella was explained by drugs and no other motives

or factors, the prosecutor used the letters to argue that 

defendant harbored animus toward law enforcement.

To further rebut Dr. Stewart’s testimony, the prosecution 

called its own expert, Dr. Daryl Matthews, a board-certified 

forensic psychiatrist. Matthews stated that he had prepared a 

written report laying out his opinion concerning this case. He 

confirmed that in connection with the preparation of the report, 

he received from the prosecution 16 to 17,000 pages of 

documents. He further articulated that if the prosecution had 

“pick[ed] and cho[]se[n] among the material that [it] sent him,” 

his work would have been compromised and he would have 

insisted that the prosecution give him the entire corpus of 

materials.

Dr. Matthews stated that on June 13, 2003, defendant 

suffered opioid dependence and antisocial personality disorder. 

In exploring Dr. Matthews’s opinion, the prosecutor asked a 

series of leading questions to conform the doctor’s testimony to 

the parameters the trial court had imposed, which limited 

discussion of hearsay information the doctor relied on in 

reaching his conclusions. Matthews enumerated the diagnostic 

criteria for antisocial personality disorder and explained that 

defendant met those criteria. The most relevant parts of his 

testimony, however, concerned areas in which he disagreed with 

Dr. Stewart.

Dr. Matthews briefly reviewed the diagnostic criteria 

pertaining to delirium, emphasizing that “the essential feature” 

is a disturbance in consciousness, or a drop in a person’s 

alertness, accompanied by an impairment in attention —

specifically “the ability to focus, sustain or shift attention.” This 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

24

means that a delirious person cannot “pay attention very closely 

to something, to handle this task, then go do that task, then 

come back to the original task, [or] to pay long attention to any 

task.”

Next, Dr. Matthews explained that to determine whether 

defendant experienced delirium or psychosis when he shot 

Officer Zeppetella, it was important to focus on defendant’s 

behavior “close to the time [of] the incident.” Matthews 

cautioned that the “mental wherewithal for any particular 

action is not the basis for deciding [whether a person is 

impaired]”; instead “it’s looking at the whole pattern of 

interactions over a period of time” that allows one to make a 

diagnosis.

Dr. Matthews then examined defendant’s actions on 

June 13, 2003, and concluded that they showed defendant was 

not suffering from delirium during the relevant events. For 

example, in summarizing defendant’s interaction with Officer 

Zeppetella during the traffic stop, Mathews observed that 

defendant was able to converse with the officer and present 

some sort of documentation. Such actions require “recognizing 

that it’s a police officer and answering appropriately,” 

appreciating that the documentation “was requested, know[ing]

where it is in your car, get[ting] it, [and] giv[ing] it to the 

[officer].” The shooting itself indicated corresponding mental 

skills. For instance, defendant’s action in taking the officer’s 

gun required “recognizing that you don’t have any more bullets, 

that [the] person is not yet dead, that they need more things to 

happen to render them that way, making the decision to [obtain 

the gun], then locating the appropriate object and being able to 

use it properly.” Matthews also placed significance on 

defendant’s action in fleeing the scene, observing that the 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

25

conduct implicated “the recognition that . . . he needed to get 

away, . . . and then to recognize that there are better ways of 

fleeing than just running, and recognizing that the car he 

brought wasn’t available to him because it was blocked, and 

then understanding that he could get away using the police 

vehicle, getting into a strange vehicle, . . . operating it in reverse 

and maneuvering it successfully out of a parking [lot] and into a 

street.” These acts, Matthews continued, “may seem like simple 

things,” but undertaking them “requires visuospatial abilities” 

and the capacity “to pay attention to where you’re going, not just 

drive randomly into a post or make a wrong turn, but to pick a 

destination, select it and then get there.” Such conduct, he 

asserted, is not consistent with delirium.

Turning to Dr. Stewart’s diagnosis of methamphetamineinduced psychosis, Dr. Matthews stated that defendant did not 

suffer from any such psychosis. Focusing on defendant’s 

behavior after he reached Lorraine’s house, Matthews noted 

that defendant was able to locate a telephone, call his wife, talk 

to her, and describe what happened. Likewise, defendant’s 

placement of the guns inside the vacuum cleaner was 

“significant” because “it involves recognizing that having those 

things around could get him in serious trouble” and taking 

“careful steps” to hide the weapons and “avoid being 

apprehended.” When asked about defendant’s statements

“ ‘I don’t want to go back to prison,’ ” and “ ‘I’m going to kill 

myself,’ ” Matthews opined that “those are statements made by 

someone who knows what’s going on around him and . . . doesn’t 

have any delusions or false beliefs, doesn’t have any difficulty

communicating and that reflect normal motivation, normal 

response, normal recognition of his environment.” Addressing 

the writing in blood on the walls and the fact that defendant cut 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

26

his wrists, Matthews admitted using blood was “kind of 

dramatic” but the writing showed that defendant was able to 

remember the name of his doctor and write it correctly. 

Regarding defendant’s self-harm, Matthews noted that people 

with personality disorders — and according to the doctor, 

defendant had antisocial personality disorder — make such 

suicide gestures “to bring attention to themselves,” “to show how 

much they’re suffering,” or “to divert attention from other 

problems that they’ve created.”

Dr. Matthews gave similar testimony regarding 

defendant’s actions in surrendering and his demeanor as 

observed by medical personnel. For example, Matthews stated 

that, unlike defendant, “people who are delirious would not 

know their surrounding[s] and would not be able to answer 

questions intelligently and give a good medical history and 

behave cooperatively. They are prevented from doing that by 

their diminished level of consciousness and by their inability to 

pay attention.”

On cross-examination, Dr. Matthews was asked if certain 

behavior “could be evidence of psychotic delusion.” The 

behavior, as described, was “believing someone had wires in 

their headband that were monitoring your behavior,” taking the 

headband and cutting it up, “believing someone had hidden 

cameras in their platform shoes that could possibly spy on you,” 

and “hearing foot falls on the steps outside the door, fearing 

people coming when no one’s there.” Matthews answered that 

such conduct was consistent with psychotic thinking. On 

redirect examination, however, Matthews clarified that such 

behavior “alone, would [not] mean that you’re psychotic.”
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

27

3. Competing theories of the crime

Based on the foregoing evidence, the defense argued that 

drug intoxication caused defendant’s shooting and killing of 

Officer Zeppetella. The defense emphasized defendant’s 

addiction, his hospitalizations, and the fact that his blood 

showed “toxic” levels of drugs on the day of the shooting. 

Relying on Dr. Stewart’s testimony, counsel argued that 

defendant suffered from drug-induced delirium and psychosis 

during the relevant events. In support, counsel highlighted 

evidence of such a diagnosis, including Stacey’s report of 

defendant’s “psychotic symptoms,” Dr. Ordas’s observations of 

defendant’s confusion after the shooting, defendant’s singleminded and bizarre conduct during the shooting, and his 

statements afterward. Ultimately, counsel urged the jury not to 

convict defendant of the more serious crimes — first degree 

murder, second degree murder, or voluntary manslaughter —

because, it was asserted, the prosecution failed to prove beyond 

a reasonable doubt that defendant, delirious and psychotic, 

acted with the mental states required for those crimes.

The prosecution, on the other hand, theorized that the 

killing of Officer Zeppetella constituted a premeditated and 

deliberate first degree murder that defendant perpetrated to 

avoid arrest. The prosecution pointed out that defendant had 

reason to fear arrest because he had drugs and a stolen gun in 

the car but no driver’s license.

9

 The prosecution highlighted

9 The parties stipulated that defendant had felony 

convictions, making him a felon in possession of a firearm. The 

parties likewise stipulated that the Department of Motor 

Vehicles had not issued a license under any of the names or 

aliases defendant used.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

28

details of the crime that, in its view, reflected mental alertness 

and accurate perceptions of reality that were inconsistent with 

an altered mental state like delirium or psychosis. For example, 

the prosecution emphasized defendant’s marksmanship, how he 

was able to hit Officer Zeppetella multiple times, landing both 

fatal shots and shots that disabled the officer’s shooting arm; 

defendant’s ability to divide his attention — to watch the officer 

to see if he was still moving, and then shift his attention to 

securing a getaway vehicle; defendant’s rational decision to 

break into Lorraine Camacho’s house via a back door because 

defendant was “much less likely to be seen . . . doing it from the 

backyard.” The prosecution summarized its case as one in which 

the perpetrator was “a dope-selling, armed, dope user . . . in 

command of his faculties . . . who gunned down an officer”

because he had a “stolen gun, [and] no driver’s license.” 

At the conclusion of the guilt phase, the jury found 

defendant guilty of first degree murder and found true the 

special circumstance allegations.

B. Evidence at the Penalty Phase

1. Prosecution case

The prosecution introduced victim impact evidence in the 

form of testimony from Officer Zeppetella’s wife, his father, and 

a colleague from the Oceanside Police Department.

Detective Marilyn Priem testified that she was Officer 

Zeppetella’s field training officer.

10

 From February through 

March of 2003 — just before Officer Zeppetella began patrolling 

in his own car — Priem rode with him ten hours a day, four days 

10 Priem was the individual who discovered Officer 

Zeppetella’s firearm in a vacuum cleaner.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

29

a week. Priem said the developing police officer was “very 

caring,” “good-hearted,” and “compassionate with people.” 

Officer Zeppetella’s death left “a big hole in the [Oceanside 

Police] Department.”

Officer Zeppetella’s father, Tony Mario Zeppetella 

(“Mr. Zeppetella”), told the jury of his son’s upbringing. 

Mr. Zeppetella testified that Officer Zeppetella was the 

youngest of three children and especially close to his mother. 

Growing up, Officer Zeppetella was a “good kid” and “the joy of 

[his parents’] life.” When contemplating attending college, 

Officer Zeppetella told his parents he would join the Navy so 

they would not have to pay for his education. After serving in 

the Navy, Officer Zeppetella decided to become a police officer 

because he “wanted to help people.” He graduated from the 

police academy in October 2002. The week before he was killed, 

he visited his parents and told them he was looking forward to 

Father’s Day, noting that it would be the first that he would be 

celebrating as a father himself. When Mr. Zeppetella and his 

wife received news that Officer Zeppetella was killed, “it felt like 

somebody killed us, also.” Officer Zeppetella’s mother “lost the 

will to live” and now “every day, she’s at the cemetery.”

Officer Zeppetella’s widow, Jamie Zeppetella (“Jamie”), 

testified about the couple’s life together. Jamie met him in 

January 2002. “Within the first week” she knew “he was the 

person I wanted to spend the rest of my life with.” The couple 

got married in May 2002. In December 2002, shortly after 

Officer Zeppetella graduated from the police academy, the 

couple had their son, Jakob. Officer Zeppetella was a “very 

involved” father, and on the day he was killed, he spent time in 

the morning with Jakob before heading to work. When Jamie 

found out later that afternoon that her husband had died, she 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

30

“started screaming,” “went into . . . a state of shock, and didn’t

want to talk to anybody.” Jamie believed that her husband’s 

death had an impact on six-month old Jakob, who now has to 

grow up without his father. Jamie believed that her own “goals 

and hopes” that she had for her family were “gone.”

In addition to the victim impact evidence, the parties 

stipulated defendant had four prior felony convictions. Two 

involved possession of controlled substances, one involved

possession of a firearm by a felon, and the other was for driving 

in willful or wanton disregard for safety of persons or property 

while fleeing from a pursuing police officer.

2. Defense case

The defense’s case in mitigation consisted of testimony by

defendant’s wife, mother, and an emergency room doctor, Karen 

Van Hoesen. Dr. Van Hoesen told the jury that, based on the 

medical records she reviewed, defendant’s self-inflicted 

lacerations on his arms were “full thickness” lacerations, or “the 

most severe” of lacerations. She also testified concerning 

defendant’s blood loss, stating that defendant’s hematocrit level, 

or “the amount of red blood cells . . . in [the] body,” was “lower 

than what is expected to be normal.” Finally, Van Hoesen stated 

that the blood found in the bathtub and scrawled as writing on 

the wall was “consistent with the blood loss” from defendant’s 

self-inflicted wounds. On cross-examination, Van Hoesen 

conceded that the description of defendant’s lacerations as being 

“full thickness” was recorded only in the paramedic’s report —

not the treating physician’s (Dr. Dandan’s) — and that, in any 

event, the injuries were not life-threatening.

Diana Gil, defendant’s mother, told the jury that 

defendant was the second of her five children. Defendant spent 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

31

the first years of his life with his grandparents at the Daley 

Ranch in Escondido, where his grandfather worked as a 

caretaker. Gil confirmed that a picture the defense showed was 

of her son at the age of 15. Gil pointed out various people 

(defendant’s grandfather, grandmother, and oldest brother) who 

were in the gallery during her testimony. Finally, Gil said that 

she was at defendant’s trial because she “love[s] [her] son.”

Stacey Camacho again testified on her husband’s behalf. 

She related that she and defendant met in 1996 and that they 

married the next year. They had two children together, Alexis 

and Anthony, who were six and seven years old. After providing 

more biographical details, Stacey narrated for the jury a number 

of pictures showing defendant with herself, Alexis, Anthony, or 

his coworkers. Like with defendant’s mother, defense counsel 

ended by asking if Stacey still loved defendant. Stacey said she 

did. She also said that his children still loved him.

II. DISCUSSION

A. Guilt Phase Issues

1. Verdin error

a. Background

Approximately ten months before trial began, the 

prosecution filed a motion seeking a court order requiring 

defendant to submit to psychiatric examination by professionals 

of the People’s choosing for the purpose of rebutting defendant’s

anticipated mental state defense. The trial court denied the 

request as premature because the defense had not directly 

placed his mental state at issue. Citing People v. Danis (1973) 

31 Cal.App.3d 782 (Danis), however, the court indicated that if 

defense counsel “present expert witnesses regarding mental 

health issues, [the prosecution] is going be entitled to . . . have 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

32

your client examined.” (See Danis, supra, 31 Cal.App.3d at 

p. 786 [“even in the absence of an authorizing statute, a trial 

court possesses the inherent power to order a defendant who has 

imposed a defense of insanity or of diminished capacity to 

submit to an examination of a psychiatrist selected by the 

People”], disapproved in Verdin v. Superior Court (2008) 

43 Cal.4th 1096 (Verdin).)

In August 2005, after defense counsel indicated that 

Dr. Stewart would be rendering a medical opinion on 

defendant’s behalf, the court stated that it would sign a “Danis

order,” allowing the prosecution to conduct a psychiatric 

evaluation of defendant. Defendant objected to the order on 

statutory and Fifth Amendment grounds. About a month later, 

defense counsel informed the court that defendant would be 

refusing to submit to the court’s order. Although defendant’s 

attorney told the court that defendant was refusing to comply 

on the advice of counsel, the court elicited a personal statement 

from defendant that he was declining to cooperate with an

examination. The court accepted defendant’s refusal to obey its 

order but, citing People v. Carpenter (1997) 15 Cal.4th 312 

(Carpenter), told the parties that “the court will be instructing 

the jury that [defendant] has refused.”

During his testimony, Dr. Matthews — the prosecution’s

forensic psychiatrist — testified that defendant declined an 

interview with him. Immediately after this statement, 

Matthews explained the difference between forensic and clinical 

psychiatry. According to Matthews, forensic psychiatrists do 

not see “patients” and are not involved in treatment; instead,

they perform examinations on “evaluee[s]” with the goal of 

“learn[ing] enough about the situation so that [they] can be of 

service in some way to the judicial system.” Furthermore, a
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

33

forensic psychiatrist is “trained to make decisions largely from 

documentary evidence” and does not depend on “see[ing] the 

patient.” Matthews also admitted that when he had gone to the 

jail seeking to examine defendant, he brought four questions 

prepared by the prosecution.

Dr. Stewart, the defense expert, echoed Dr. Matthews’s 

statement that interviews with defendant were not pivotal to his 

opinion. Stewart acknowledged that, unlike with Matthews, 

defendant did cooperate with his (Stewart’s) efforts to examine 

him, and Stewart interviewed defendant twice. Stewart

nonetheless told the jury that “taking away any interview [he] 

did with the defendant” would not change his opinion.

Both the prosecution and defense referenced defendant’s 

refusal to be examined by Dr. Matthews during closing 

arguments. In discussing the testimony of Dr. Stewart, the 

prosecution criticized the expert for failing to take notes, 

forgoing a written report, and withholding his opinion until the 

last minute. The prosecution called such conduct — along with 

defendant’s “refus[al] [of] a court-ordered exam” — “game 

playing” and said that such behavior “stinks.”

In response, the defense explained why defendant 

declined to be interviewed by Dr. Matthews. Emphasizing that

Matthews was a forensic psychiatrist and not a clinician, the 

defense counsel asked rhetorically, “Who would subject 

themsel[ves] to this evaluation by Dr. Matthews, who doesn’t 

perceive you as a client . . . [but] as an evaluee?” Characterizing

Matthews as someone who was “into it for 50 grand” — the 

amount of money Matthews said he received as his 

remuneration — the defense stated that Matthews’s “opinion is 

not going to change” and as such, “nothing good was going to 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

34

come of [the doctor meeting with defendant].” Finally, 

referencing the court’s instruction regarding the refusal, 

defense counsel urged the jury to think of it as “the punishment 

for Mr. Camacho not [being] willing to participate in that 

particular sham.”

The court’s instruction to the jurors read:

“Pursuant to California law, this court ordered the 

defendant, ADRIAN J. CAMACHO, to submit to a 

psychological examination by a doctor selected by 

the prosecution. The defendant refused to be 

examined or interviewed by him. If you find the 

defendant’s refusal to answer questions or 

participate in the mental examination willful, you 

may take that fact into consideration when weighing 

the defense’s expert opinions about the defendant’s 

mental condition in this case. You may infer that 

the defendant wanted only his self-chosen experts, 

not others, to evaluate him.”

b. Analysis

As the trial judge’s comments indicate, at the time of 

defendant’s trial “decisional law authorized trial courts to order 

a defendant who placed his or her mental state in issue to 

submit to mental examination by prosecution experts.” (People 

v. Clark (2011) 52 Cal.4th 856, 939 (Clark).) In 2008, however, 

this court held that such decisions did not survive the 1990 

passage of Proposition 15. (Verdin, supra, 43 Cal.4th at 

pp. 1102, 1106.) That proposition added section 1054 to the 

Penal Code, which specifies that “no discovery shall occur in 

criminal cases except as provided by this chapter, other express 

statutory provisions, or as mandated by the Constitution of the 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

35

United States.” (§ 1054, subd. (e).) Because “nothing in the 

criminal discovery statutes (§ 1054 et seq.) authorizes a trial 

court to issue an order” requiring a defendant who has mounted 

a mental state defense to submit to an examination by 

prosecution experts, we concluded in Verdin that trial courts 

lacked the needed statutory authority to order such 

examinations. (Verdin, supra, 43 Cal.4th at p. 1109.)

The Legislature responded to our decision in Verdin by 

enacting a statute expressly conferring such power on trial 

judges. (See § 1054.3, subd. (b)(1) [“whenever a defendant in a 

criminal action . . . places in issue his or her mental state . . . 

through the proposed testimony of any mental health expert, 

upon timely request by the prosecution, the court may order that 

the defendant . . . submit to examination by a prosecutionretained mental health expert”]; id., subd. (b)(2).) However, the 

rule announced in Verdin continues to apply to trials — like 

defendant’s — conducted before January 1, 2010, the effective 

date of the newly enacted statute. (See People v. Gonzales (2011) 

51 Cal.4th 894, 927 (Gonzales); see also, e.g., People v. Banks

(2014) 59 Cal.4th 1113, 1193.)

Because Verdin applies in this case, the trial court erred 

in ordering defendant to be examined by Dr. Matthews, 

admitting Matthews’s testimony that defendant refused to 

submit to the examination, allowing the prosecution to comment 

on such refusal during closing argument, and instructing the 

jury that it could consider defendant’s refusal in considering 

Dr. Stewart’s opinion. (See, e.g., Verdin, supra, 43 Cal.4th at 

p. 1116 [finding the court’s order to be error]; People v. Wallace

(2008) 44 Cal.4th 1032, 1087 (Wallace) [“admission of [a 

prosecution expert’s] testimony regarding defendant’s refusal to 

cooperate with the court-ordered psychiatric examination was 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

36

also error”]; Clark, supra, 52 Cal.4th at p. 940 [“comment on 

[the] defendant’s refusal to be questioned” was error]; Gonzales, 

supra, 51 Cal.4th at p. 929 [court’s instruction to the jury that 

“it could consider [the defendant’s] refusal to be interviewed” by 

a prosecution-retained expert was “infected by the Verdin 

error”].) The question before us is whether such errors are so 

prejudicial as to require reversal of defendant’s convictions.

The parties disagree about the standard under which 

these Verdin errors are to be assessed for prejudice. Defendant 

argues that these errors violated his federal constitutional 

rights and therefore should be subjected to a “harmless beyond 

a reasonable doubt” standard. (Chapman v. California (1967) 

386 U.S. 18, 24 (Chapman).) The People, on the other hand, 

contend that “[t]he errors here involve state statutory law” and 

should be analyzed under the lower reasonable probability 

standard of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).

Our case law supports the People’s position that Verdin 

errors occurring at the guilt phase are assessed for prejudice 

“under the [Watson] standard for state law error, [i.e.,] whether 

there is a reasonable probability that the outcome of trial would 

have been more favorable to [the] defendant” had the errors not 

occurred. (Clark, supra, 52 Cal.4th at pp. 940–941; see also 

People v. Hoyt (2020) 8 Cal.5th 892, 941–942 (Hoyt).) This is 

because, in the circumstances here presented, a defendant does 

not have a constitutional right to refuse to be examined.

A long line of authorities, from both this court and the 

United States Supreme Court, establishes that the federal 

Constitution does not bar the government from performing a 

mental examination of a defendant “to rebut that defendant’s 

presentation of expert testimony in support of a [mental state] 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

37

defense.” (Kansas v. Cheever (2013) 571 U.S. 87, 89–90 [“The 

question here is whether the Fifth Amendment prohibits the 

government from introducing evidence from a court-ordered 

mental evaluation of a criminal defendant to rebut that 

defendant’s presentation of expert testimony in support of a 

defense of voluntary intoxication. We hold that it does not”]; see 

also, e.g., People v. Nieves (2021) 11 Cal.5th 404, 436 (Nieves) 

[“Once [a] defendant place[s] [his or] her mental state at issue, 

[he or] she waive[s] her Fifth and Sixth Amendment rights to 

object to the prosecution examinations”]; Maldonado v. Superior 

Court (2012) 53 Cal.4th 1112, 1132–1133 (Maldonado) [“by 

electing to present [a mental state defense], [a defendant] will 

waive his privilege against self-incrimination to the extent 

necessary to support his claim and allow fair rebuttal. Forcing 

him to this choice does not offend the Constitution”]; Clark, 

supra, 52 Cal.4th at p. 940 [“Defendant cites no decision, and we 

are aware of none, holding that the Fifth Amendment or any 

other federal constitutional provision prohibits a court from 

ordering a defendant who has placed his or her mental state in 

issue to submit to a mental examination by a prosecution 

expert”]; Gonzales, supra, 51 Cal.4th at p. 929 [“It is settled that 

a defendant who makes an affirmative showing of his or her 

mental condition by way of expert testimony waives his or her 

Fifth and Sixth Amendment rights to object to examination by 

a prosecution expert”]; accord Buchanan v. Kentucky (1987) 

483 U.S. 402, 422–423.) As such, although the trial court in this 

case committed error under state law by ordering an

examination by the prosecution expert and allowing the jury to 

learn of defendant’s refusal to be examined, this did not violate

defendant’s federal constitutional rights. We therefore analyze
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

38

whether the court’s errors were prejudicial under the Watson

standard.11

Based on the totality of the circumstances, we conclude it 

was not reasonably probable that the outcome of the trial would 

have been more favorable to defendant had the errors not 

occurred. Regarding the refusal, although Dr. Matthews 

referenced the fact that defendant declined to be examined, he 

did not use such refusal to criticize the defense expert’s opinion. 

(Accord People v. Krebs (2019) 8 Cal.5th 265, 347 (Krebs) 

[finding harmless an expert’s disclosure of the fact that a 

defendant declined to be interviewed when “the prosecution 

expert . . . ‘did not rely on defendant’s refusal to participate in 

11 To the extent defendant argues that the errors here 

amounted to constitutional violations of his right to remain 

silent — so-called Griffin or Doyle errors — he is mistaken. 

(Griffin v. California (1965) 380 U.S. 609, 615 [“the Fifth 

Amendment . . . forbids either comment by the prosecution on 

the accused’s silence or instructions by the court that such 

silence is evidence of guilt”]; Doyle v. Ohio (1976) 426 U.S. 610, 

619 [“the use for impeachment purposes of petitioners’ silence, 

at the time of arrest and after receiving Miranda warnings, 

violated the Due Process Clause”].) Neither Griffin nor Doyle

addressed circumstances in which a defendant has waived his 

privilege against self-incrimination by electing to put in issue 

his mental state, and it is clear that “[a] criminal defendant, who 

neither initiates a psychiatric evaluation nor attempts to 

introduce any psychiatric evidence, may not be compelled to 

respond to a psychiatrist if his statements can be used against 

him at a capital sentencing proceeding.” (Estelle v. Smith (1981) 

451 U.S. 454, 468.)

Furthermore, “[t]he same reasoning [explaining why we 

find meritless defendant’s Fifth Amendment arguments] applies 

to defendant’s claim that [his] Fourteenth Amendment right to 

due process was violated.” (Gonzales, supra, 51 Cal.4th at 

p. 929, fn. 18.)
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

39

the court-ordered examination’ to criticize his opponent’s 

conclusions”]; Wallace, supra, 44 Cal.4th at p. 1087 [same].)12 

Indeed, both the prosecution and defense experts stated that 

interviews with defendant were not pivotal to their opinions. 

Matthews testified that forensic psychiatrists such as himself 

rely on documentary evidence to form their opinions, not 

examinations of the individuals whose mental states they are 

assessing. Dr. Stewart likewise stated that without defendant’s 

interviews, he would still reach the conclusions he did. These 

circumstances tend to reduce the likelihood that defendant was 

prejudiced by Matthews’s comment regarding defendant’s 

refusal to be interviewed. (Accord Clark, supra, 52 Cal.4th at 

p. 941 [finding evidence of a defendant’s refusal to be 

interviewed to be harmless when a prosecution expert “did not 

suggest the fact that defendant refused . . . had any bearing on 

his diagnosis” and “nothing in the record shows [the expert] 

found any significance in defendant’s refusal to submit to an 

examination”].)

Similarly, the prosecution’s remarks on defendant’s 

noncooperation were brief and not inflammatory. (Accord Krebs, 

supra, 8 Cal.5th at p. 347 [holding that Verdin errors were 

harmless despite “the prosecutor’s brief comments in closing 

argument highlighting defendant’s refusal to submit to an 

interview”].) The prosecution criticized various aspects of 

Dr. Stewart’s methodology and included in that criticism 

defendant’s refusal to meet with the prosecution expert. Some 

12

“We applied the higher ‘reasonable possibility’ standard in 

. . . Wallace [and Krebs], because the error in th[ose] case[s]

occurred at the penalty phase of a capital trial when the more 

exacting standard applies.” (Clark, supra, 52 Cal.4th at p. 941, 

fn. 24.)
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

40

of the prosecution’s comments — those characterizing defense 

strategy as “game playing” or protesting that defendant’s 

refusal “just stinks” — certainly were pointed. Nonetheless, the 

prosecution did not dwell on defendant’s noncooperation. 

Rather, the thrust of the prosecution’s comments was properly 

aimed at rebutting Dr. Stewart’s testimony by emphasizing his 

failure to take notes, prepare a written report, disclose his 

opinion in a timely manner, or obtain and consider facts the 

prosecution viewed as crucial to evaluating defendant’s mental 

state. To the extent the remarks amounted to a targeted attack 

on the defense rather than generalized protests about “fairness,” 

they nonetheless did not prejudice defendant. (Cf. Krebs, supra, 

8 Cal.5th at p. 346 [finding any error to be harmless despite the 

prosecution complaining about a lack of “ ‘fairness’ ” and 

“ ‘looking for the truth’ ” when the defendant declined to talk to 

the prosecution expert].)

This is, in part, because defense counsel explained his 

client’s refusal to see Dr. Matthews. (Accord Krebs, supra, 

8 Cal.5th at p. 347 [“the fact that the defense provided the jury 

with an explanation of why defendant refused to be examined 

by [a prosecution expert] . . . lean[s] against a finding of 

prejudice”].) Counsel suggested to the jury that Matthews was 

biased because he saw the individuals he interviewed not as 

“patients” but as “evaluee[s]” and that he brought questions 

prepared by the prosecutor when he attempted to examine 

defendant. In addition, by the time Matthews went to see

defendant, he had already reached an opinion and billed the 

prosecution a substantial sum of money. Under such 

circumstances, argued counsel, Matthews was not going to 

change his views regardless of what defendant said to him. 

Knowing this, counsel stated, defendant understandably
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

41

refused to participate in a “sham” and so declined to subject 

himself to Matthews’s questioning. This explanation tended to 

blunt the impact of defendant’s refusal to cooperate with 

Matthews and diffused the prosecution’s criticism that such 

refusal “just stinks.”

Finally, the court instructed the jury that it could consider 

defendant’s “refusal to answer questions or participate in the 

mental examination . . . when weighing the defense’s expert 

opinions about the defendant’s mental condition.” It further 

stated that jurors “may infer that the defendant wanted only his 

self-chosen experts, not others, to evaluate him.”13 This last 

part of the court’s instruction was taken from Carpenter, supra, 

15 Cal.4th at page 413, where we said that “[t]he jury could

properly infer that defendant wanted only his self-chosen 

13 This instruction is not materially different from that given 

in Gonzales. There, the trial court told the jury “it had ordered 

examinations by Kaser-Boyd and Dr. Mills [two experts retained 

by the prosecution], that defendant had refused to be examined 

by Dr. Mills, and that her refusal ‘may be considered by you 

when weighing the opinions of the defense experts in this case. 

The weight to which this factor is entitled is a matter for you to 

decide.’ ” (Gonzales, supra, 51 Cal.4th at p. 926.) We held that 

erroneous instruction to be harmless and, in so concluding, 

relied in no small part on the existence of Evidence Code section 

730. (See Gonzales, supra, 51 Cal.4th at p. 928; Evid. Code,

§ 730 [authorizing a trial court “on its own motion or on motion 

of any party” to appoint an expert “to investigate, to render a 

report as may be ordered by the court, and to testify as an expert 

at the trial . . . to the fact or matter as to which the expert 

evidence is or may be required”].) We do not discuss section 730 

here because the Attorney General has not argued its relevance 

to a determination of whether the Verdin errors were 

prejudicial.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

42

experts, not others, to evaluate him, an inference relevant to its 

consideration of all the evidence of his mental condition.”

14

Evaluating the court’s instruction alongside the 

prosecutor’s argument and Dr. Matthews’s reference to 

defendant’s refusal to be interviewed, we are not convinced that 

the instruction tips the balance toward reversible error under 

Watson. First, we do not believe there was much further harm 

in telling the jury it “may” — but, by implication, need not —

consider defendant’s refusal to be examined in weighing the 

credibility of the defense expert, or infer that defendant wanted 

only some experts, and not others, to evaluate him. The latter

is a sort of truism arising from the fact that defendant 

cooperated with his own experts, Drs. Ordas and Stewart, but 

not the prosecution’s expert, Dr. Matthews. More broadly, the 

jury was not constrained by other instructions from considering 

defendant’s nonparticipation even in the absence of an 

instruction. Second, to the extent the instruction indicates to 

the jury that it may weigh the defense expert’s opinion 

differently if the defendant thwarts the prosecution expert’s 

process, defense counsel highlighted what he considered to be 

the illogicality of the directive. Without apparent disagreement 

from the prosecution in rebuttal, counsel made this point, 

arguing that “there’s nothing about Dr. Stewart’s evaluation 

that is assailed” by a missing interview with Dr. Matthews. 

14 Although Carpenter has been overruled to the extent that 

it is inconsistent with Verdin (Verdin, supra, 43 Cal.4th at 

pp. 1106–1107), parts of the decision remain good law. (See, 

e.g., Gonzales, supra, 51 Cal.4th at p. 929 [quoting with 

approval Carpenter, Danis, and People v. McPeters (1992) 

2 Cal.4th 1148 (McPeters) — cases that have been disapproved 

in part in Verdin].)
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

43

Ultimately, the issue the jury had to decide was the credibility 

of the experts, both the defense’s and the prosecution’s. With 

regard to that determination, it is true that the parties made 

arguments concerning defendant’s refusal to submit to an 

examination and that the instruction facilitated the argument. 

However, the record indicates that these arguments were 

tangential to the primary dispute over the experts’ methods and 

conclusions. In sum, a different verdict at the guilt phase absent 

the Verdin errors was not reasonably probable.

In addition to contending that the Verdin errors warrant 

reversal of his convictions, defendant also makes conclusory 

assertions that the errors deprived him of his right to a reliable 

penalty determination. Defendant forgoes any specific 

argument regarding penalty phase prejudice. Instead, he 

generically asserts (primarily in the section headings within his 

briefing) that the various errors violated that right.

To the extent such arguments are not waived for failure to 

support them (see, e.g., People v. Lawley (2002) 27 Cal.4th 102, 

169, fn. 25; People v. Williams (1997) 16 Cal.4th 153, 206), they 

are meritless. It does not appear that any mention of 

defendant’s refusal to submit to a court-ordered examination

was made at the penalty phase. Certainly, defendant’s own 

recitation of the relevant facts is limited to the guilt phase, and 

he offers no elaboration concerning how evidence relating to the 

Verdin claim may have spilled over to the penalty determination 

and tainted that decision as well. Under these circumstances, 

there was no reasonable possibility that the Verdin errors 

affected the death judgment. (See, e.g., Clark, supra, 52 Cal.4th 

at p. 941, fn. 24.)
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

44

Defendant advances various counterarguments in an 

attempt to show that the Verdin errors rise to a constitutional 

dimension in this case. (But see Clark, supra, 52 Cal.4th at 

p. 940; Hoyt, supra, 8 Cal.5th at pp. 941–942.) Specifically, 

defendant argues that the trial court violated his privilege 

against self-incrimination because it did not confer upon him 

“ ‘advance assurance of immunity against overbroad direct and 

derivative use of [his] responses to the examiners.’ ” 

We disagree.

Defendant’s argument rests largely on Maldonado, supra, 

53 Cal.4th at page 1112. In Maldonado, this court confronted 

the issue of “what general limits, if any, may properly be 

imposed on prosecutorial access to court-ordered examinations 

and their results . . . in order to vindicate or protect the 

defendant’s Fifth and Sixth Amendment rights.” (Id. at 

p. 1117.) We concluded that the limits mandated by the 

Constitution are few. In the context of a court-ordered 

examination, the Fifth Amendment allows “direct or derivative 

use of [a defendant’s] statements to the prosecution examiners,” 

although only to the extent necessary “to rebut any mental-state 

evidence [the defendant] presents through his own experts.” 

(Maldonado, supra, 53 Cal.4th at p. 1129; see also id. at p. 1125

[“The prosecution is . . . constitutionally permitted to obtain its 

own examination of the accused, and to use the results, 

including the accused’s statements to the prosecution 

examiners, as is required to negate the asserted defense. If the 

defendant refuses to cooperate with the prosecution examiners, 

the court may impose sanctions, such as advising the jury that 

it may consider such noncooperation when weighing the 

opinions of the defense experts. On the other hand, except for 

appropriate rebuttal, the defendant’s statements to the 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

45

prosecution experts may not be used, either directly or as a lead 

to other evidence, to bolster the prosecution’s case against the 

defendant”].)

Maldonado also elucidated the various ways in which the 

defense can ensure that the prosecution does not misuse 

materials elicited during a court-ordered examination. This is 

accomplished primarily through litigation at trial. (See 

Maldonado, supra, 53 Cal.4th at pp. 1137–1138.) In particular, 

once “the prosecution commences its rebuttal case, the defense 

can raise specific objections to particular evidence.” (Id. at 

p. 1138.) “At this stage, the court is in the best possible position 

to determine whether particular rebuttal evidence proffered by 

the prosecution exceeds the scope of the defendant’s Fifth 

Amendment waiver.” (Ibid.) Furthermore, because Maldonado 

was decided after the enactment of section 1054.3, we explained 

in a footnote that “[t]o the extent petitioner and other criminal 

defendants are entitled, as a prophylactic protection of their 

Fifth Amendment privilege, to decline to submit to courtordered mental examinations until they receive advance 

assurance of immunity against overbroad direct and derivative 

use of their responses to the examiners, we may, and we do, 

judicially declare such an immunity as ‘ “reasonably to be 

implied” ’ from the statutory provision allowing the prosecution 

to obtain such examinations for the limited purpose of rebutting 

anticipated mental-state defenses.” (Maldonado, supra, at 

p. 1129, fn. 10.)

Seizing on this language, defendant argues that because 

section 1054.3 did not exist at the time of his trial, no such 

immunity may reasonably be deemed to have been conferred in 

his case. Pointing to the language of the court’s order, which did 

not provide “advance assurance of immunity against overbroad 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

46

direct and derivative use of [the defendant’s] responses to the 

examiners,” defendant argues that in fact no such immunity was 

extended. (Maldonado, supra, 53 Cal.4th at p. 1129, fn. 10.) 

Defendant implies that under such circumstances, he was 

within his constitutional right to refuse to submit to the order —

or conversely, that by signing such an order, the court violated

the constitutional guarantee protecting defendant against selfincrimination.

We reject defendant’s argument. First, although we do not 

need to decide the issue because the Attorney General did not 

brief it, defendant’s argument appears forfeited. It is true that

defendant objected to the court’s order and ultimately refused to 

cooperate with Dr. Matthews. Yet, he did not base either his 

objection or refusal on the court’s alleged failure to provide 

“advance assurance” that his statements would be introduced

only for proper rebuttal purposes. (Maldonado, supra, 

53 Cal.4th at p. 1129, fn. 10.) If defendant were concerned 

about the potential overbroad use of his statements, he could 

have said as much. Even before Maldonado was decided, the 

case law suggested that statements made during a courtordered examination could be used only for rebuttal purposes. 

(See, e.g., Danis, supra, 31 Cal.App.3d at pp. 785–786; cf. People 

v. Perez (2020) 9 Cal.5th 1, 7–8 (Perez) [“ ‘ “[r]eviewing courts 

have traditionally excused parties for failing to raise an issue at 

trial where an objection would have been futile or wholly 

unsupported by substantive law then in existence” ’ ”].) Had 

defendant brought the issue to the court’s attention, the court 

could have addressed his concerns about any overbroad use of a 

psychiatric evaluation. (See, e.g., People v. Simon (2001) 

25 Cal.4th 1082, 1103 [explaining that “the basic rationale of the 

forfeiture doctrine” is “ ‘ “ ‘to encourage a defendant to bring 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

47

errors to the attention of the trial court, so that they may be 

corrected or avoided and a fair trial had’ ” ’ ”].) Under such 

circumstances, defendant’s failure to raise the issue may well 

have resulted in forfeiture.

Second, the record in this case confirms that all parties 

involved understood the intended use of any interview a 

prosecution expert conducted with defendant would be limited 

to rebutting defendant’s mental state defense. The People’s 

motion requesting that the court issue an order requiring 

defendant to sit for such an examination stated as much. The 

People’s oral argument in the court and the exchange between 

the trial judge and the parties suggest the same. And, of course, 

the court referred specifically to Danis — with its attendant 

limiting language — in granting the prosecution’s motion for an 

examination.

In addition, decisional law relied upon by the trial judge 

underscored the proper role of this evidence as limited to the 

rebuttal of the defendant’s proffered mental state evidence. (See 

McPeters, supra, 2 Cal.4th at p. 1190 [“By tendering his mental 

condition as an issue in the penalty phase, defendant waived his 

Fifth and Sixth Amendment rights to the extent necessary to 

permit a proper examination of that condition. . . . Any other 

result would give an unfair tactical advantage to defendants, 

who could, with impunity, present mental defenses at the 

penalty phase, secure in the assurance they could not be 

rebutted by expert testimony based on an actual psychiatric 

examination” (italics added)]; Carpenter, supra, 15 Cal.4th at 

p. 412 [same]; Danis, supra, 31 Cal.App.3d at pp. 785–786 [“The 

sole issues are whether the court committed reversible error in 

granting the prosecution’s motion to have a court-appointed 

psychiatrist examine defendant and in permitting the doctor to 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

48

testify in rebuttal to the medical testimony introduced by 

defendant on the subject of defendant’s diminished capacity” 

and “opinion testimony from a court-appointed psychiatrist 

based upon his examination of a defendant in a criminal case is 

admissible as prosecution rebuttal during the guilt phase of the 

trial, once the defendant has placed his mental condition in 

issue by proffering an insanity or diminished capacity defense”

(italics added)].)

Third, defendant’s refusal to be examined was in fact used 

only to rebut defendant’s argument that he lacked the requisite 

mental state for the more serious crimes. As noted, 

Dr. Matthews referenced defendant’s refusal in his testimony as 

a rebuttal witness; the prosecution mentioned the refusal in 

seeking to refute the defense expert’s opinion that defendant 

suffered from a diminished mental state; and the court’s 

instruction permitted the jury to consider the refusal in 

assessing the same defense expert’s opinion. Defendant

therefore had no occasion to “raise [at trial] specific objections to 

particular evidence” regarding his refusal to comply with the 

court’s order. (Maldonado, supra, 53 Cal.4th at p. 1138.) In 

such circumstances, to hold that the court nonetheless violated 

defendant’s constitutional rights by not expressly specifying

that the result of the court-ordered examination would be used 

only in rebuttal is unwarranted.

Defendant claims various other asserted infirmities 

concerning the court’s instruction. He argues that the court 

compounded its error by denying the defense proposal that the 

court instruct the jury that defendant refused to submit to the 

court-ordered examination on the advice of counsel. According 

to defendant, “[r]elying on an attorney’s advice for a course of 

action may defeat an allegation of willfulness and the trial court 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

49

should have instructed the jury that when [defendant] refused 

to submit to the examination, he was acting on the advice [of] 

his attorneys and that fact could be taken into consideration in 

determining if the refusal was willful.”

Defendant has cited no case establishing the premise that 

“[r]elying on an attorney’s advice for a course of action may 

defeat an allegation of willfulness” in the context of courtordered examinations. (See Nieves, supra, 11 Cal.5th at p. 437 

[“Defendant cites no authority for her view that she did not 

personally refuse to be examined, and she offers no reason to 

dispel the general rule that absent complaint at trial, the acts of 

her counsel are imputed to her”].) Furthermore, even if we 

accept that defendant followed his counsel’s advice, this might, 

at most, have led a juror to find that defendant’s refusal was not 

willful. But in assessing the harm caused by the instruction, we 

have assumed one or more jurors found “the defendant’s refusal 

to answer questions or participate in the mental examination 

[was] willful” and took that into consideration when weighing 

the expert opinions regarding the defendant’s mental condition. 

Given this assumption, the fact that the jury was not instructed 

that defendant followed the advice of his counsel could not have 

prejudiced defendant.

Defendant further argues that the court’s instruction 

allowing the jury to infer from defendant’s refusal to meet with 

Dr. Matthews “that the defendant wanted only his self-chosen 

experts, not others, to evaluate him” was unsupported by 

evidence. But at trial, the parties presented testimony 

establishing that defendant cooperated with experts chosen by 

the defense, Drs. Ordas and Stewart, yet not with an expert 

retained by the prosecution, Matthews. The defense also 

explained why defendant did not want Matthews — the only 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

50

psychiatric expert not selected by defendant — to examine him. 

Upon this record, we cannot say that no evidence supports the 

inference permitted by the court’s advisement. (Accord, People 

v. Alexander (2010) 49 Cal.4th 846, 905–906.)

2. Admission of letters written by defendant

a. Background

Defendant objects to the court’s admission into evidence of 

two letters he authored. The prosecution sought to introduce

these letters to show defendant’s motive in the charged crimes. 

Defendant wrote both letters while in pretrial detention on the 

current charges. The first was written in early August 2003,

about two months after the June 13 shooting death of Officer 

Zeppetella:

“I’m doing a lot better, thank you very much, had a 

little problem here and there with these fucks (cops) 

but other than that and all the muthafucking crying 

that goes on here, it’s all good! . . .

“Today they extracted p-wee’s celli there in E-1 over 

some fuckin bullshit and the only reason I don’t put 

a green light on these fucks is because he’s always 

fucking up.”

The second letter was written in late August 2003, evidently in 

response to some problem defendant was experiencing with the 

mail system at the jail:

“I tell you these fucks are really asking for me to 

make an example. These fucks don’t understand

how important it was for that letter to get out. Only 

cause they go home everyday, they think theyre tuff 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

51

ass’es. Its going to be a big surprise when I send one 

of them home in a fucken bodybag!”

The prosecution argued that the letters showed “an 

animosity towards law enforcement” and were “relevant on the 

issue of intent” or motive. The defense objected to admission of 

the letters on the grounds they purportedly constituted

inadmissible hearsay and should in any event be excluded under 

Evidence Code section 352. After hearing arguments from both 

sides, the trial court admitted the letters, finding them “directly 

relevant to defendant’s attitude toward law enforcement” and 

“relevant to motive and as to [defendant’s] state of mind in June 

of 2003, the time of the incident.”

At trial, the prosecution mentioned the letters in its 

opening and closing statements. During opening remarks, the 

prosecution read to the jury portions of the letters and argued 

that they were evidence of defendant’s “special malice, . . . 

special anger directed towards law enforcement.” The 

prosecution also introduced testimony to clarify that the term 

“green light” — as used in the first letter — “is a prison 

terminology or street terminology [that means] it’s okay to kill 

this person.” During closing argument, the prosecution again 

argued that the letters showed defendant harbored “special 

malice towards officers.” Responding to defense questioning of 

witnesses and anticipating opposing counsel’s closing 

comments, the prosecution asserted that the letters explained 

why defendant engaged in seemingly “[un]necessary” violence 

against Officer Zeppetella. In contrast to defense counsel’s 

theory that defendant displayed “violence beyond that necessary

. . . because [of] the drugs and the Paxil,” the prosecution 

attributed defendant’s brutality — his shooting the victim 

13 times — to defendant’s “special malice.”
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

52

The prosecution returned to the letters in its closing 

statement at the penalty phase, using them to cast doubt on 

defendant’s remorse for the killing of Officer Zeppetella.

b. Analysis

Defendant argues that the letters should have been 

excluded as inadmissible character evidence under Evidence 

Code section 1101, subdivision (a). Under that provision, and 

subject to certain exceptions, “evidence of a person’s character 

or a trait of his or her character (whether in the form of an 

opinion, evidence of reputation, or evidence of specific instances 

of his or her conduct) is inadmissible when offered to prove his 

or her conduct on a specified occasion.” (Evid. Code, § 1101, 

subd. (a).) Defendant further contends that whether the letters 

constituted “[c]haracter evidence or not,” they were irrelevant to 

the issue of his intent, motive, or state of mind. Finally, as 

noted, he asserts the letters should have been excluded 

pursuant to Evidence Code section 352, which provides: “The 

court in its discretion may exclude evidence if its probative value 

is substantially outweighed by the probability that its admission 

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

substantial danger of undue prejudice, of confusing the issues, 

or of misleading the jury.” We address these arguments 

seriatim.

As a preliminary matter, we agree with the People that 

defendant has not preserved the issue for review because he 

failed to argue below that the letters constituted inadmissible 

character evidence. (See, e.g., People v. Valdez (2012) 55 Cal.4th 

82, 130 (Valdez) [the “defendant’s argument under Evidence 

Code section 1101 is not cognizable on appeal because he failed 

to object on this basis at trial”]; People v. Demetrulias (2006) 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

53

39 Cal.4th 1, 20–21 (Demetrulias).) At trial, defendant objected 

to admission of the letters because, in his view, they were 

hearsay, not subject to any exception and their probative value 

was substantially outweighed by the danger of prejudice. 

Defense did not once assert that the letters constituted 

character evidence, or argue that they reflected evidence of a 

trait of his character improperly offered to prove “his . . . conduct 

on a specified occasion.” (Evid. Code, § 1101, subd. (a).) As such, 

defendant cannot be heard now to complain on this ground. (See 

Valdez, supra, 55 Cal.4th at p. 130.)

Defendant seeks to excuse his failure to raise a specific 

objection by arguing that “[a]ll of the parties were experienced 

litigators” and therefore “saw no need to identify for the record 

that the letters were character evidence” despite understanding 

them to be such. The contention fails to persuade. Experienced 

or not, counsel needed to make a timely and specific objection on 

the ground asserted on appeal. (See, e.g., Valdez, supra, 

55 Cal.4th at p. 130.) Furthermore, insofar as the parties 

wrangled over the tendency of the letters to demonstrate 

animosity toward law enforcement and therefore establish 

defendant’s motive in killing a police officer, such arguments do 

not reflect that the litigants and the court all implicitly treated 

the letters as character evidence and, as defendant now asserts,

“moved directly to the subject of whether they came in as an 

exception under [Evidence Code section] 1101(b).” Although 

subdivision (b) of section 1101 refers to evidence of motive (along 

with other types of evidence), there is no reason that evidence of 

motive necessarily is also evidence of character. Moreover, the 

record here makes clear that the prosecution described the 

letters as tending to show motive in response to the court’s query 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

54

regarding their relevance, not how they fit under an exception 

to character evidence.

On the merits, we are persuaded the trial court did not 

abuse its discretion in finding the letters to be relevant

regarding the issue of motive and as such, admissible under 

Evidence Code section 1101, subdivision (b). (See, e.g., People v. 

Crittenden (1994) 9 Cal.4th 83, 132 (Crittenden) [“The trial court 

has broad discretion in determining the relevance of evidence”]; 

People v. Mickey (1991) 54 Cal.3d 612, 668 (Mickey) [“The 

appropriate standard of review for a ruling on admissibility over 

an objection of irrelevance and/or undue prejudice is abuse of 

discretion”]; People v. Gordon (1990) 50 Cal.3d 1223, 1239 

(Gordon) [same].) That provision states: “Nothing in this 

section prohibits the admission of evidence that a person 

committed a crime, civil wrong, or other act when relevant to 

prove some fact (such as motive, opportunity, intent, 

preparation, plan, knowledge, identity, absence of mistake or 

accident . . .) other than his or her disposition to commit such an 

act.” (Evid. Code, § 1101, subd. (b).)

Relevant evidence is that “having any tendency in reason 

to prove or disprove any disputed fact that is of consequence to 

the determination of the action.” (Evid. Code, § 210.) In this 

case, the central fact in dispute was defendant’s state of mind 

when he shot and killed Officer Zeppetella. The prosecution 

maintained that defendant premeditated and deliberated the 

murder of the victim, and, as part of that charge, had to prove 

that defendant acted with malice aforethought. The defense, on 

the other hand, urged that defendant killed Officer Zeppetella 

because defendant was delirious and psychotic due to the 

influence of drugs. The letters were relevant to this dispute 

“because, if the defense version of events were true, one might 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

55

reasonably expect defendant, upon recovering from the 

psychotic episode and realizing the senseless violence he had 

done” not to engage in thoughts and words showing him to 

contemplate doing further violence to people detaining him. 

(People v. Bell (2007) 40 Cal.4th 582, 606 (Bell).) Conversely, if 

the prosecution theory of the crime were correct, defendant’s 

hostility and willingness to resort to violence against persons in 

authority “would more clearly be expected.” (Ibid.) More 

directly, although other inferences are possible, one may 

reasonably conclude that the letters showed defendant harbored 

hostility toward law enforcement, and it was this hostility — not 

delusions or psychosis — that drove him to shoot Officer 

Zeppetella 13 times. Under such circumstances, we cannot say 

that the letters did not have “any tendency” to prove a disputed 

fact. (Evid. Code, § 210, italics added.)

Defendant’s arguments to the contrary appear to conflate 

the probative value of a piece of evidence with its relevance. 

Reprising assertions raised before the trial court, defendant 

contends the letters simply “reflected defendant’s attitude 

towards his jailers” and so “were not relevant to any issues 

involving a patrol officer such as Officer Zeppetella.” Yet, in his 

early August letter, defendant referred to “these fucks” and 

parenthetically clarified that he meant he was having trouble 

with “cops.” Defendant then mentioned “put[ting] a green light 

on these fucks.” Likewise, in the later August letter, defendant 

once again alluded to “these fucks” and said it was going to be a 

“big surprise” when he “send[s] one of them home in a . . . 

bodybag.” Whether defendant was simply expressing 

frustration with his jailers or manifesting hostility toward law 

enforcement more generally in writing the letters was a factual 

question for the jury. Likewise, whether the letters reflected 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

56

sentiments defendant held on the day of the crime was a 

determination for the jury. Defendant was free to urge the jury

to discount the letters for the reasons he now suggests. At 

bottom, although defendant couches his argument as one 

concerning the relevance of the communications, his assertions 

are really aimed at the weight of the evidence. (See, e.g., People 

v. Turner (2020) 10 Cal.5th 786, 805 [“ ‘Relevance’ describes 

whether evidence should be heard because it might reasonably 

resolve a dispute. ‘Weight’ describes the degree to which the 

jury finds the evidence probative”].) Simply because the letters 

would have had more probative value if they contained a 

“definitive indication” that “the sentiments expressed were long 

held” or directly referenced “the crime or . . . Officer Zeppetella” 

does not render them irrelevant otherwise.

We are further persuaded that the court did not err in 

refusing to exercise its discretion under Evidence Code section 

352 to exclude the letters. (See, e.g., Mickey, supra, 54 Cal.3d at 

p. 668; Gordon, supra, 50 Cal.3d at p. 1239.) Any potential 

prejudice arising from admission of the letters was low given 

that the unsavory language and sentiment expressed therein 

were not unduly prejudicial, or “ ‘of such nature as to inflame 

the emotions of the jur[ors], motivating them to use the 

information, not to logically evaluate the point upon which it is 

relevant, but to reward or punish one side because of the jurors’ 

emotional reaction.’ ” (People v. Doolin (2009) 45 Cal.4th 390, 

439.) Here, undisputed evidence showed that defendant —

unprovoked by anything the victim did — shot a police officer 

13 times, firing when the officer was already down and crawling 

away, beat the officer’s head repeatedly, and then absconded in 

the patrol car after making sure the victim was no longer 

moving. In light of the brutality of the charged crimes, 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

57

admission of evidence that defendant used offensive language in 

describing unperformed acts of violence did not create an 

intolerable risk of prejudice. (Accord, ibid. [“Although evidence 

of D.’s rape and Hamblen’s mistreatment is unpleasant, it paled 

in comparison to the testimony from four witnesses that 

defendant tried to kill them”]; People v. Eubanks (2011) 

53 Cal.4th 110, 146 (Eubanks) [“here, where the charged 

offenses included four counts of first degree murder based on 

defendant having killed her four children, admission of evidence 

that defendant had mistreated her nephew once by rubbing his 

face in feces” was not an abuse of discretion].) This conclusion 

is strengthened by the fact that the prosecution “did not suggest 

to the jury that it consider the [letters] for any improper 

purpose,” instead appropriately utilizing the evidence as 

demonstrating defendant’s motive and to rebut the defense 

theory of mental incapacity. (Demetrulias, supra, 39 Cal.4th at 

p. 19; accord Doolin, supra, 45 Cal.4th at p. 439; Bell, supra, 

40 Cal.4th at p. 607 [because “the evidence was probative on the 

central factual issue of the case, and as its introduction was 

clearly targeted to that issue rather than to creation of 

prejudicial emotion, we cannot agree with defendant that the 

court’s choice to admit it was arbitrary or capricious”].)

Because we find no merit in defendant’s claims of state 

evidentiary law, “we reject the associated contention that 

introduction of the evidence violated defendant’s constitutional 

rights . . . under . . . the United States Constitution.”15 (Bell, 

15 Defendant also complains about the prosecution’s 

reference to the letters at the penalty phase, arguing that their 

assertedly erroneous admission at the guilt phase deprived him 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

58

supra, 40 Cal.4th at p. 607; see also, e.g., Valdez, 55 Cal.4th at 

p. 134 [“Because there was no statutory error, his constitutional 

claims . . . fail”].)

3. Exclusion of defense witnesses’ testimony

a. Background

Defendant claims the trial court erred when, on three 

occasions, it sustained objections to testimony of defense 

witnesses “that would tend to prove [defendant] was sincere in 

his efforts to end his addiction to drugs.” Two of these instances

occurred during the testimony of Stacey Camacho. During her 

direct examination, Stacey was asked, “Did it appear to you that 

Adrian was sincere in his efforts to get off of drugs [during the 

year preceding the shooting], or did it appear that he was just 

playing you?” The prosecutor interposed an objection, stating 

“[Y]our Honor: Speculative.” The court sustained the objection, 

and defense counsel continued, “If you know, based on your 

relationship with Adrian, did it seem to you — were his actions 

and words and behavior — did they appear sincere?” The 

of a reliable penalty determination. As discussed, we are of the 

view that there was no error relating to the trial court’s decision 

to admit defendant’s writings. Moreover, the prosecution made 

proper use of the letters during the penalty phase, employing 

them to suggest that defendant did not experience remorse for 

killing the victim. “ ‘[R]emorse is universally deemed a factor 

relevant to penalty,” and “[n]o misconduct or constitutional 

error occurred” when, as here, “the prosecutor merely 

anticipated predictable defense argument urging sympathy for 

defendant and sought to negate its mitigating effect by 

highlighting defendant’s apparent lack of concern for the 

murder victim.” (People v. Bemore (2000) 22 Cal.4th 809, 854–

855 (Bemore).)
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

59

prosecutor again objected on the same ground, and the court 

once more sustained the objection.

The second occasion in which the court sustained an 

objection concerned Stacey’s testimony regarding a time during 

which defendant was being treated at Aurora Hospital. Defense 

counsel had asked Stacey, “When he was hospitalized, can you 

describe how his demeanor was, what he was physically 

depicting to you by his demeanor?” Stacey responded, “He was 

really depressed. He was — he was crying a lot because he 

wanted to stop using drugs so bad, and he couldn’t. He would 

try not to use drugs, and if he would go too long without it, he 

would get sick. He couldn’t get out of bed. He said that his bones 

would hurt.” At this point, the prosecutor made a hearsay 

objection, which was sustained.

The third instance involved the testimony of Lonnie 

Roybal, defendant’s coworker. The following exchange took 

place during Roybal’s examination:

“Question: Okay. And when [defendant] 

talked with you about his drug 

problem with heroin, what was his 

demeanor like?

“Answer: He cried a couple of times. He was 

pretty sad about it. I mean, he 

wanted help, you know, off it.

“[Prosecutor]: I’m going to object, your honor, as 

hearsay what he said.

“THE COURT: Sustained.

“[Prosecutor]: Move to strike. Ask the jury be 

told to disregard.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

60

“THE COURT: Answer will be stricken. Jury to 

disregard.

“Question: When he’d talk with you about his 

problems and he’d cry, did you ever 

know him to also show evidence of 

using, to the extent you might 

know?”

16

The examination thereafter resumed.

In contrast to the above witnesses, Dr. Ordas was 

permitted to testify concerning defendant’s “sincer[ity] in his 

efforts to end his addiction to drugs.” In setting up Ordas’s 

testimony, defense counsel first asked the doctor to describe the 

symptoms an addict experiences when withdrawing from 

heroin. Ordas stated, “If . . . not treated, [that is] the addict 

doesn’t actually get some more drugs or gets in treatment, then 

often it [the withdrawal symptoms] progresses to a much worse 

state that can include incredible joint pain — when I say joint, 

I don’t mean just a bit — but serious pain in the joints of the 

body, diarrhea, vomiting, nausea, headaches, that kind of stuff.” 

Counsel subsequently asked Ordas to “describe for the jury 

[defendant’s] demeanor and attitude about treatment with you.” 

Ordas replied, “In general, he was highly motivated.” Counsel 

then directly inquired whether in Ordas’s interactions with 

defendant, defendant seemed “sincere in his efforts.” Ordas 

reiterated that defendant was sincere most of the time.

16 Defense counsel’s question — referring to the prior 

testimony of defendant crying — makes clear it is only the last 

part of Roybal’s answer (that defendant “wanted help . . . off 

[heroin]”) that was struck by the court. 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

61

b. Analysis

Defendant asserts the trial court erred in sustaining the 

prosecution’s objections to the defense witnesses’ testimony. In 

examining defendant’s claims, we keep in mind that we review 

the trial court’s ruling, “not the court’s reasoning and, if the 

ruling was correct on any ground, we affirm.” (People v. Geier

(2007) 41 Cal.4th 555, 582 (Geier); see also, e.g., People v. Chism

(2014) 58 Cal.4th 1266, 1295, fn. 12 [same]; People v. Jones

(2012) 54 Cal.4th 1, 50 (Jones); People v. Fuiava (2012) 

53 Cal.4th 622, 668–669 (Fuiava); People v. Zapien (1993) 

4 Cal.4th 929, 976 [“ ‘ “No rule of decision is better or more 

firmly established by authority, nor one resting upon a sounder 

basis of reason and propriety, than that a ruling or decision, 

itself correct in law, will not be disturbed on appeal merely 

because given for a wrong reason. If right upon any theory of 

the law applicable to the case, it must be sustained regardless 

of the considerations which may have moved the trial court to 

its conclusion” ’ ”].)

Here, although the trial court sustained the prosecution’s 

objections on varying grounds (hearsay and speculation), the 

testimony regarding whether defendant was sincere in his 

efforts to stop using drugs was properly excluded because it was 

irrelevant. (See Evid. Code, § 350 [“No evidence is admissible 

except relevant evidence”]; see also, e.g., Crittenden, supra, 

9 Cal.4th at p. 132 [“The trial court has broad discretion in 

determining the relevance of evidence [citations], but lacks 

discretion to admit irrelevant evidence”].) Because defendant 

did not contest that he shot and killed Officer Zeppetella, the

central issue for the jury was defendant’s state of mind when he 

opened fire. Whether defendant was sincere in his attempts to 

quit drugs in the year before he shot the officer was at best 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

62

weakly linked to an impaired mental state on the day of the 

shooting. Had defendant been sincere about wanting to quit 

drugs, that would presumably increase the likelihood that 

defendant had actually stopped taking drugs at the time of the 

killing, was not then under the influence, and so would be more 

likely to harbor malice. But this inference was not available in 

this particular case given that all the evidence of defendant’s 

supposed sincerity about stopping use of drugs — all sought to 

be introduced by the defense — was coupled with evidence that 

defendant, in fact, did not cease his drug use. Dr. Ordas, for 

example, testified that defendant was “sincere in his efforts” to 

quit drugs “most of the time” and yet “always seemed to relapse” 

into drug use. Because there was no suggestion that defendant 

actually stopped his drug use, the sincerity of his attempts to 

cease his addiction had no “tendency in reason to prove or 

disprove any disputed fact that is of consequence to the 

determination” of defendant’s state of mind. (Evid. Code, § 210.) 

As such, testimony intended to show defendant “was sincere in 

his efforts to end his addiction to drugs” was properly excluded.

Defendant offers no argument regarding the relevance of 

the challenged testimony. Instead, he insists that Stacey should 

have been allowed to answer the question about whether 

defendant’s “actions and words and behavior . . . appear sincere” 

because such question elicited a lay opinion permitted under 

Evidence Code section 800. Likewise, he contends that Stacey’s 

statement that defendant said “his bones would hurt” 

constituted a statement concerning defendant’s “then existing 

state of mind, emotion, or physical sensation” admissible under 

Evidence Code section 1250. Last, he asserts that Roybal’s 

statement that defendant “wanted help . . . off [drugs]” was not 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

63

hearsay but a description of defendant’s demeanor as Roybal 

observed it.

Yet, none of the grounds of admissibility defendant posits 

allows for the admission of irrelevant evidence. (See Evid. Code, 

§ 800 [“If a witness is not testifying as an expert, his testimony 

in the form of an opinion is limited to such an opinion as is 

permitted by law” (italics added)]; People v. Edwards (2013) 

57 Cal.4th 658, 726 (Edwards) [“Even assuming the evidence 

defendant sought to elicit from [two witnesses] was admissible 

to show defendant’s state of mind, state of mind evidence must 

nonetheless be relevant”]; People v. Hernandez (2003) 30 Cal.4th 

835, 872 [“A prerequisite to this exception to the hearsay rule 

[created by Evidence Code section 1250] is that the declarant’s 

mental state or conduct be factually relevant”]; Geier, supra, 

41 Cal.4th at p. 586 [similar]; Evid. Code, § 702, subd. (a)

[providing that “the testimony of a witness concerning a 

particular matter is inadmissible unless he has personal 

knowledge of the matter” but does not otherwise establish that 

testimony is admissible whenever a witness has personal 

knowledge of the matter].) Evidence Code section 350 makes 

clear that “[n]o evidence is admissible except relevant evidence,” 

and defendant has not cleared this hurdle for admissibility.

Furthermore, even assuming that the trial court erred in 

excluding portions of Stacey’s and Roybal’s testimony, any error 

was harmless given what Dr. Ordas told the jury. (Accord,

Edwards, supra, 57 Cal.4th at p. 726.) Although Stacey’s 

statement that defendant said his bones would hurt when he 

stopped using drugs drew an objection, Ordas testified to the 

severe joint pain, along with other serious symptoms, that 

someone like defendant would experience when withdrawing 

from drugs. Ordas further testified that defendant was “highly 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

64

motivated” and sincere, although unsuccessful, in his efforts to 

quit taking drugs. And as mentioned, any inference raised by 

evidence of defendant’s supposed sincerity in stopping drug use 

was adverse to defendant’s case of mental impairment on the 

day of the shooting. Under such circumstances, it was not 

“reasonably probable that a result more favorable to [defendant] 

would have been reached” if the testimony from Stacey and 

Roybal had been admitted. (Watson, supra, 46 Cal.2d at p. 836.)

4. Asserted prosecutorial misconduct

a. Background

During closing argument, the prosecutor criticized 

Dr. Stewart’s opinion and methodology at some length. The 

prosecutor first highlighted Stewart’s failure to produce a report 

or timely render an opinion and then stated, “[h]e does not 

review the entire file, which is a violation of the ethics and 

conduct of forensic psychiatry.” Defense counsel objected that 

the prosecutor was testifying. The court asked counsel to clarify, 

and counsel stated, “These are not facts in evidence.” The 

prosecutor responded, “Dr. Matthews,” whereupon the court 

overruled the objection.

The prosecutor then told the jury, “Check Dr. Matthews’ 

testimony. Dr. Mathews told us — remember that — I won’t 

take a case unless I can have the whole file, because it isn’t 

right.” The prosecutor further commented, “None of us can be 

charged with knowing what the ethical obligations of forensic 

psychiatry [are]. But it was Dr. Stewart’s responsibility to call 

[defense counsel] up and say: Excuse me. I cannot consult in a 

case unless I get the run of the file. Because [counsel] are 

advocates, and we may inject our own bias into the materials 

[we send].”
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

65

b. Analysis

Defendant contends the prosecutor committed prejudicial 

misconduct by arguing matters outside the record in stating 

that Dr. Stewart’s failure to review the entire file was “a 

violation of the ethics and conduct of forensic psychiatry.” 

Certainly, “[a] prosecutor commits misconduct by referring in 

argument to matters outside the record.” (People v. 

Cunningham (2001) 25 Cal.4th 926, 1026 (Cunningham).) 

Nonetheless, “the prosecution has broad discretion to state its 

views regarding which reasonable inferences may or may not be 

drawn from the evidence” (ibid.) and “ ‘[w]hether the inferences 

the prosecutor draws are reasonable is for the jury to decide’ ”

(People v. Letner and Tobin (2010) 50 Cal.4th 99, 179). “To 

constitute a violation of the federal Constitution, prosecutorial 

misconduct must ‘ “so infect[] the trial with unfairness as to 

make the resulting conviction a denial of due process.” ’ 

[Citations.] Conduct by a prosecutor that does not render a 

criminal trial fundamentally unfair is prosecutorial misconduct 

under state law only if it involves ‘ “the use of deceptive or 

reprehensible methods to attempt to persuade either the court 

or the jury.” ’ ” (People v. Benavides (2005) 35 Cal.4th 69, 108.)

Here, the prosecutor’s comment was based on 

Dr. Matthews’s testimony. Matthews — a board certified 

forensic psychiatrist — discussed the standards for forensic 

psychiatry. He first described a forensic psychiatrist as “a 

psychiatrist . . . who puts their expertise at the service of the 

legal system,” stating that “[t]he purpose of forensic psychiatry 

is to find the truth and to learn enough about the situation so 

that you can be of service in some way to the judicial system. 

It means that rather than having one’s loyalty to the patient or 

the person you’re examining, that your major loyalty is to 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

66

principles of honesty and principles of objectivity.” Matthews

was subsequently asked whether “it [was] important . . . that a 

forensic psychiatrist be allowed to basically have at the whole 

body of document” and responded that he could not do the work 

without having access to the entire record.

The prosecutor’s comments did not infect the trial with 

unfairness that rises to the level of prejudicial error. When 

viewed in context, the prosecutor made clear that he was basing 

his argument on Dr. Matthews’s testimony and not outside 

knowledge regarding “the ethical obligations of forensic 

psychiatry.” Not only did the prosecutor’s argument following

the challenged comment closely track Matthews’s testimony, 

but the prosecutor also expressly told the jury to “[c]heck 

Dr. Matthews’ testimony” and “remember” “[w]hat 

Dr. Matthews told us.” Furthermore, the prosecutor 

acknowledged that “[n]one of us [advocates] can be charged with 

knowing what the ethical obligations of forensic psychiatry 

[are],” indicating he did not have independent knowledge of “the 

ethics and conduct of forensic psychiatry.” It was thus not 

reasonably likely that the jury construed the prosecutor’s 

comments in the objectionable manner defendant suggests. 

(See, e.g., Cunningham, supra, 25 Cal.4th at p. 1001.)

5. Alleged errors under Sanchez

In his supplemental briefing, defendant argues that the

testimony of two witnesses — Dr. Matthews and Officer

Carnahan — violated the rule set forth in People v. Sanchez

(2016) 63 Cal.4th 665 (Sanchez) concerning hearsay and expert

testimony.

In Sanchez, we held that “[i]f an expert testifies to casespecific out-of-court statements to explain the bases for his
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

67

opinion, those statements are necessarily considered by the jury

for their truth, thus rendering them hearsay.” (Sanchez, supra,

63 Cal.4th at p. 684.) “Like any other hearsay evidence,” such

statements must be “properly admitted through an applicable

hearsay exception” or “an appropriate witness.” (Ibid.) 

Otherwise, the admission of such statements constitutes error. 

Depending on whether the statements are testimonial, the

prejudicial effect of their admission is assessed under either the

standard articulated in Chapman, supra, 386 U.S. at page 18 or

that found in Watson, supra, 46 Cal.2d at page 818. (See, e.g.,

People v. Navarro (2021) 12 Cal.5th 285, 310 (Navarro).)

The failure to object at trial before Sanchez was decided 

does not forfeit a claim raising so-called Sanchez errors. (Perez, 

supra, 9 Cal.5th at p. 9.)

a. Dr. Matthews’s testimony

Regarding Dr. Matthews’s testimony, defendant argues

the doctor ran afoul of Sanchez in conveying to the jury “that he

relied on inadmissible hearsay to form his opinion regarding

defendant’s mental state.” But if all Matthews did was to tell

the jury that he relied on materials sent to him by the

prosecution in forming his opinion, then Sanchez does not

prohibit such testimony.

As we stated in Sanchez, “[a]ny expert may still rely on

hearsay in forming an opinion, and may tell the jury in general

terms that he did so.” (Sanchez, supra, 63 Cal.4th at p. 685,

italics in original; see also id. at p. 686 [recognizing that under

the court’s holding, an expert may “tell[] the jury the expert

relied on additional kinds of information that the expert only

generally describes”].) The limitations that Sanchez placed on

expert testimony concern case-specific information that an
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

68

expert relates to a jury, not materials upon which the expert

relies. (See, e.g., id. at p. 685 [stating that experts cannot

“present, as facts, the content of testimonial hearsay

statements” and “only when a prosecution expert relies upon,

and relates as true, a testimonial statement would the fact

asserted as true have to be independently proven to satisfy the

Sixth Amendment” (first italics added)]; id. at pp. 676, 684.) 

Regarding the sources upon which the expert relies, Sanchez

recognizes that the expert “may still rely on hearsay” and the

expert is permitted “to relate generally the kind and source of

the ‘matter’ upon which his opinion rests.” (Id. at pp. 685–686.)

Here, Dr. Matthews told the jury very little of the contents

of the materials he reviewed in forming his opinion. This was

deliberate. Before Matthews testified, the court had an

extensive discussion with the parties regarding the scope of the

expert’s testimony. Defense counsel argued at length that

Matthews should not be able to relate to the jury details gleaned

from defendant’s criminal record. In contrast, counsel accepted

that Matthews should be able to rely on such records in forming

his opinion, specifically the opinion that defendant had

antisocial personality disorder. Consistent with Sanchez,

counsel also conceded that Matthews “can say what he relied on”

but “should not be allowed to speak to hearsay.” The court

generally agreed with counsel, ruling, for instance, that the

expert is “not allowed to talk about the details of the convictions,

how many, what they are” but what “he can say is I’ve reviewed

the file, and it does show a criminal history.”

To ensure that Matthews’s testimony would conform to

the court’s rulings, the prosecutor asked leading “yes-no”

questions of the witness. A typical exchange is as follows:
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

69

“Question: [By the prosecutor] Okay. All

right. So let me just kind of

walk you through it, then.

“All right. And these are a

series of yes-no questions,

Doctor; okay?

“Answer: [By Matthews] Yes.

“Question: So part — so the first one we’ve

talked about in the category A,

those seven items [that are part

of the diagnostic criteria for

antisocial personality disorder],

three of which have to be met,

you saw a failure to conform to

social norms with respect to

lawful behavior, repeatedly

performing acts that are

grounds for arrest; is that right?

“Answer: Yes.

“Question: You also determined through

your review of the records that

the defendant lied repeatedly

about his date of birth and

name and has several aliases; is

that right?

“Answer: Yes.”

The prosecution followed a similar pattern of eliciting yesno answers when questioning Dr. Matthews about the sources

of information upon which he relied. The inquiry confirmed that
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

70

the prosecution sent Matthews “35 three-inch binders full of

documents,” consisting of “16 to 17,000 pages of stuff.” The

prosecution then asked if “those documents included — and I’m

going to talk generically here, all right — rehab records, police

records, a wide variety of records like that, correct?” Matthews

answered, “Yes,” and conveyed no further information to the

jury.

Against this backdrop, it is perhaps telling that defendant

does not specifically identify the portions of Dr. Matthews’s

testimony he asserts conveyed inadmissible case specific

hearsay. Instead, defendant essentially contends that three

areas of Matthews’s testimony constituted prejudicial error

under Sanchez: Matthews improperly opined that defendant

was not in a drug-induced delirium when he shot Officer

Zeppetella; Matthews improperly opined that defendant had an

antisocial personality disorder that accounted for defendant’s

behavior at the time of the crime; and Matthews emphasized

that he based his opinions on a swath of documents beyond those

considered by defense expert Dr. Stewart. Each of these points

was independently supported by properly admitted evidence,

such that either there was no Sanchez violation or that any

violation was harmless even under Chapman’s “beyond a

reasonable doubt” standard.17

17 In his reply brief, defendant contends that “the only way” 

an expert may rely on case-specific hearsay that has been 

admitted through an appropriate witness is to “ ‘assume its 

truth in a properly worded hypothetical question in the 

traditional manner.’ ” Although we have approved of such an 

approach, we have not limited an expert’s discussion to 

hypothetical questions. We stated in Sanchez, for example, that 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

71

First, Dr. Matthews opined that defendant was not in a

drug-induced delirium when he shot Officer Tony Zeppetella. In

reaching this conclusion, Matthews relied in part on the facts of

the offense, stating, for example, that an individual suffering

from delirium could not drive a car, provide relevant

identification to a police officer during a traffic stop, reload a

gun, drive to his mother-in-law’s home, or hide evidence inside

a vacuum cleaner bag because all of these steps required a

presence of mind inconsistent with delirium. He opined, too,

that defendant’s “normal demeanor” when examined by health

care workers immediately after the crime indicated defendant

was not suffering from delirium because “[p]eople who are

delirious would not know their surroundings and would not be

able to answer questions intelligently and give a good medical

history and behave cooperatively.” Each of these facts was

independently established in prior testimony; the facts

themselves were not contested, and the jury was able to weigh

Matthews’s opinion (that the facts indicated defendant did not

suffer from delirium) against Dr. Stewart’s opinion (that the

facts indicated defendant did suffer from delirium). Any

Sanchez error that related to Matthews’s description of these

facts was not prejudicial.

Second, Dr. Matthews opined that defendant suffered

from antisocial personality disorder, and that this disorder

explained defendant’s behavior at the time of the crime. 

Matthews based this diagnosis on defendant’s “failure to

a jury considers certain facts for their truth “[w]hen an expert is 

not testifying in the form of a proper hypothetical question and 

no other evidence of the case-specific facts presented has or will 

be admitted . . . .” (Sanchez, supra, 63 Cal.4th at p. 684, italics 

added.)
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

72

conform to societal norms with respect to lawful behaviors

indicated by repeatedly performing acts that are grounds for

arrest,” that he “lied repeatedly about his date of birth and

name,” that he “showed irresponsible work behavior and had

been unemployed for significant periods of time,” and that he

had been “using heroin and methamphetamine despite being

made [aware] of their high risk of harmful consequences.” 

Although defendant appears to object to the bases for

Matthews’s diagnosis as inadmissible case-specific hearsay, the

diagnosis itself appears uncontested. Indeed, defendant’s own

expert, Dr. Ordas, also testified that defendant suffered from

antisocial personality disorder. Further, each basis of

Matthews’s diagnosis was independently established by other

admissible evidence introduced at trial, including testimony

from defendant’s wife, Dr. Ordas, Dr. Stewart, and the officers

investigating the offense. Defendant’s wife, for example,

testified that she knew defendant had a drug problem “for a long

time,” that he used the alias “Roberto Vasquez,” and that he was

not working for “a couple of months” before killing Officer

Zeppetella. Any Sanchez error related to Matthews having

discussed that diagnosis was harmless given testimony by other

witnesses. 

Finally, defendant asserts Dr. Matthews bolstered his

credibility by improperly referring to the documents and records

on which he relied. We are not convinced that Matthews went

further than simply “tell[ing] the jury in general terms” that he

relied on hearsay in forming his opinion. (Sanchez, supra,

63 Cal.4th at p. 685.) To the extent that he did, any error is

harmless because, as discussed above, the basis for each of

Matthews’s opinions was independently established by other

admissible evidence introduced at trial.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

73

b. Officer Carnahan’s testimony

In addition to challenging Dr. Matthews’s testimony, 

defendant contends Officer Carnahan’s opinion that defendant 

possessed narcotics for sale was based on inadmissible 

hearsay — Detective Morgans’s statement to Carnahan that he 

(Morgans) found a scale in defendant’s car. Morgans had 

testified about the items he discovered in defendant’s car 

(including a cell phone and syringes); he did not testify about 

having discovered a scale. As such, and as the Attorney General 

concedes, Carnahan’s testimony regarding the scale was error 

under Sanchez. 

The error was harmless, however. Defendant’s sole 

argument related to prejudice is that the scale “was the key 

element of [Officer Carnahan’s] conclusion that the drugs . . . 

were possessed for sale.” This is not so. The scale was but one 

of many bases for Carnahan’s conclusion. The other bases 

included items Carnahan personally seized from defendant’s 

house, including the baggies and balloons used to package 

narcotics for sale, and the ammunition indicating defendant had 

armed himself for protection (a tactic Carnahan stated was 

common for those selling narcotics). Carnahan also stated that 

the cell phone and syringes found in defendant’s car supported 

his opinion. Because Detective Morgans testified at trial to 

recovering these items, Carnahan could properly rely on the 

detective’s testimony. (See, e.g., Sanchez, supra, 63 Cal.4th at 

p. 686.) Carnahan stated that the “totality of what was 

recovered” in defendant’s home and car led to his opinion. This 

evidence was sufficient to support the officer’s conclusion. (See, 

e.g., People v. Newman (1971) 5 Cal.3d 48, 53 [experienced 

officers may give their opinion that narcotics are held for 

purposes of sale based on matters including packaging, 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

74

quantity, and normal use of an individual], disapproved on 

another ground in People v. Daniels (1975) 14 Cal.3d 857, 862.) 

Additionally, Roybal, defendant’s coworker, testified that 

defendant told Roybal he sold drugs, including heroin. The jury 

was therefore presented with evidence of narcotics sales, and 

testimony that defendant admitted he sold narcotics.

In light of these facts, we may conclude beyond a 

reasonable doubt that the error in admitting Officer Carnahan’s 

statement regarding the scale did not contribute to the jury’s 

verdict finding defendant guilty of possession of narcotics for 

sale.

6. Cumulative effect of asserted errors

Defendant argues that all of the alleged errors occurring 

at the guilt phase cumulated in his not “receiv[ing] a fair trial 

on the issue of his mental state at the time of the shooting” and 

urges us to reverse his convictions on this basis. We have found 

or assumed errors in three areas: those relating to the court’s 

order that defendant submit to an examination by 

Dr. Matthews; the prosecutor’s remarks regarding the ethics of 

forensic psychiatry; and the testimony implicating Sanchez, 

supra, 63 Cal.4th at page 665. We do not find these errors to be 

cumulatively prejudicial.

“Defendant was entitled to a fair trial but not a perfect 

one.” (Cunningham, supra, 25 Cal.4th at p. 1009.) Because 

“[t]he few errors that occurred during defendant’s trial were 

harmless, whether considered individually or collectively” 

(ibid.), we reject defendant’s contention that his constitutional 

right to a fair trial was violated.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

75

B. Penalty Phase Issues

1. Excusal of prospective juror

a. Background

Over defendant’s objection, the trial court excused 

Prospective Juror No. 70 for cause because of her views on the 

death penalty. Juror No. 70 had indicated in her questionnaire 

that she was “somewhat opposed” to the death penalty. When 

asked “[f]or what kinds of crimes, if any, do you believe the death 

penalty should be imposed,” she wrote, “Perhaps, serial[] killers 

& serial rapists that are beyond any sort of redemption.” The 

juror also gave responses indicating that although she was 

willing to consider evidence offered by defendant favoring life in 

prison, she was unwilling to consider evidence offered by the 

prosecution to persuade jurors to vote for the death penalty. 

Both the defense and prosecution questioned the 

prospective juror regarding her position on the death penalty. 

During examination by defense counsel, Prospective Juror No. 

70 stated, “I’m not necessarily in support of the death penalty. 

I think too many innocent people have been put to death. . . . If 

one person is put to death, that’s too many for me.” She also 

reiterated that “[i]t would be difficult for me to put somebody to 

death.” In response to the question whether “in some cases you 

could see it [the death penalty] apply,” she replied, “It would be 

difficult for me. I mean, it would have to be somebody like —

it’s hard — I know there’s evil that exists in the world . . . but it 

would have to be, you know, a serial killer that . . . beyond any 

kind of reasonable doubt has committed horrible crimes, you 

know, violent crimes against people.” Defense counsel reminded 

the prospective juror that on her questionnaire she had said the 

death penalty “was appropriate for serial killers and heinous 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

76

people who are unredeemable” and asked “so . . . you do see it 

[as] appropriate for some people.” She responded: “Well, yeah. 

Like I said, I believe evil does exist in our world, but I think 

that’s not a whole lot that would qualify as truly evil.”

Defense counsel subsequently asked if Prospective Juror 

No. 70 was “open to hearing [aggravating] evidence.” She 

responded, “Well, I’m open to hearing it. It would take an awful 

lot to convince me. I just can’t . . . imagine myself condemning 

somebody to die.” Counsel followed up with similar questions, 

and the prospective juror confirmed that she was “open to 

listening to both sides.”

The prosecutor likewise probed the prospective juror 

about circumstances under which she could vote for the death 

penalty. Upon being asked, “if it’s not a serial killer, . . . you 

can’t really conceive of imposing the death penalty outside that,” 

she answered: “I think the person themselves would have had 

to have given up on themselves too.” The prosecutor queried if 

“realistically” there was a way for him to convince the 

prospective juror “that death would be a proper verdict in a case 

where there’s no allegation there’s more than one dead person.” 

She replied, “It would be very difficult.” She nonetheless 

clarified that she could not “be a hundred percent sure. 

I honestly — I mean, I could imagine coming across someone 

who is without any merit whatsoever and maybe deserves to die, 

but I don’t know if it’s this particular defendant.” Prospective 

Juror No. 70 also agreed with the proposition that 

“participat[ing] in rendering a death verdict” “endorses the 

death penalty side of the system.” The prospective juror did not 

think she would “want to do that” because her “general 

philosophy would sort of impair or prevent [her] from finding 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

77

death” as part of a “system of death penalty law that [she does 

not] think is fair.”

The court held a sidebar conference with the attorneys, 

opening the discussion by stating, “I am inclined to excuse 

[Prospective] Juror[] 70 . . . for cause.” When asked if she 

wished to be heard, defense counsel replied, “With regard to 70, 

I think it’s — it’s one of those borderline questions.” Defense 

counsel emphasized that the prospective juror was “open to 

listening to see” if defendant was “the kind of defendant that 

would deserve the death penalty.” She also disputed that “the 

only type of person [Prospective Juror No. 70] could describe 

that would fit that category [of somebody deserving of the 

ultimate punishment] is a serial killer,” arguing that the 

prospective juror also included in that category “someone so evil 

and so unredeemable.” The prosecutor interjected, contending 

the prospective juror’s answers indicated that her feelings would 

“substantially impair [her] from reaching a verdict of death.” 

The court agreed, stating, “she even went further. I have down 

a quote. Quote: I can’t imagine condemning someone to die.” 

The court elaborated that in its view, the juror was “saying 

hypothetically there may be one person out there — if Ted 

Bundy is in here, I may consider [the death penalty], but I really 

have such strong feelings, I can’t imagine having to be in that 

position.” The court thus concluded, “we’re in a Witt situation” 

and granted the prosecution’s challenge for cause.

b. Analysis

Defendant asserts the court’s excusal of Prospective Juror 

No. 70 violated his right to due process and an impartial jury 

guaranteed by the federal Constitution. We disagree.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

78

“Under federal and state law, a prospective juror may be 

excluded for cause where his views on capital punishment would 

‘ “prevent or substantially impair the performance of his duties 

as a juror in accordance with his instructions and his oath.” ’ ” 

(People v. DePriest (2007) 42 Cal.4th 1, 20 (DePriest); see also 

Wainwright v. Witt (1985) 469 U.S. 412, 420, 424 (Witt).) Such 

a standard “does not require that a juror’s bias be proved with 

‘unmistakable clarity.’ ” (Witt, supra, 469 U.S. at p. 424.) 

Indeed, “the question [to determine juror bias] is not whether a 

reviewing court might disagree with the trial court’s findings, 

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

(Id. at p. 434.) “[W]here answers given on voir dire are equivocal 

or conflicting, the trial court’s assessment of the person’s state 

of mind is generally binding on appeal.” (DePriest, supra, 

42 Cal.4th at p. 21.) “Accordingly, in such situations where the 

trial court has had an opportunity to observe the juror’s 

demeanor, we uphold the court’s decision to excuse the juror so 

long as it is supported by substantial evidence.” (People v. 

Spencer (2018) 5 Cal.5th 642, 659 (Spencer).)

Substantial evidence supports the trial judge’s decision to 

excuse Prospective Juror No. 70. As the court noted, the juror

stated during voir dire that she “can’t imagine myself 

condemning somebody to die.” Furthermore, she repeatedly

made clear that it would be “difficult” or “very difficult” for her 

to vote for the death penalty. (See People v. Duenas (2012) 

55 Cal.4th 1, 12 [“Comments that a prospective juror would 

have a ‘hard time’ or find it ‘very difficult’ to vote for death 

reflect ‘a degree of equivocation’ that, considered ‘with the 

juror’s hesitancy, vocal inflection, and demeanor, can justify a 

trial court’s conclusion . . . that the juror’s views would 

“ ‘prevent or substantially impair the performance of his duties 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

79

as a juror . . . .’ ” ’ [Citation.] On appeal, such a finding binds 

us”]; People v. Poore (2022) 13 Cal.5th 266, 296 [Although “ ‘it is 

true that a prospective juror is not disqualified merely because 

she would find it difficult to impose the death penalty’ 

[citations], these panelists did not merely note the difficulty of 

reaching a penalty decision. They went on to question their 

actual ability to vote for death under any circumstances. ‘When 

a prospective juror repeatedly says he does not know whether 

he could realistically impose the death penalty, we will not 

second-guess the trial court’s determination that the juror is 

substantially impaired’ ”].) As indicia concerning how difficult 

it would be for her, the juror emphasized her feeling that “too 

many innocent people have been put to death” and “[if] one 

[such] person is put to death, that’s too many for me.” She 

followed by observing that she would not want to participate in 

rendering a death verdict because to do so would be to endorse 

a system of death penalty law that she believed to be unfair. 

Prospective Juror No. 70 also described in her questionnaire 

only a set of narrow circumstances not presented in this case —

“serial[] killers & serial rapists that are beyond any sort of 

redemption” — as a situation in which she could “perhaps” view 

the death penalty as appropriate.

The prospective juror’s written answers further bolster 

the inference that she could not consider evidence presented to 

support a verdict of death. In contrast to her unequivocal 

answer that she would take into account “evidence offered by 

the defendant favoring life in prison without the possibility of 

parole,” the juror indicated that she could only “possibly” 

“consider and give weight to any evidence offered by the 

prosecution favoring the death penalty.” She further elaborated

that even if the “evidence is overwhelming” she could only 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

80

“maybe” consider it. Likewise, although the juror was clearly

willing to “consider evidence the defendant introduces about his 

life and history in support of life in prison without the possibility 

of parole,” she was decisively unwilling to consider “evidence the 

prosecution introduces about the defendant and his past to 

arrive at a verdict of death.”

Under such circumstances, we conclude the trial court did 

not err in excusing Prospective Juror No. 70. (Accord, e.g.,

Fuiava, supra, 53 Cal.4th at pp. 660–661 [“the trial court could 

reasonably view Prospective Juror L.’s own statements that she 

could be fair in assessing guilt but not penalty, that she would 

have a ‘real problem’ voting for death, and her agreement that, 

although perhaps not impossible, it would be ‘very unlikely’ she 

ever would vote for death, as establishing that her ability to 

follow the law would be substantially impaired”]; People v. 

Williams (2013) 56 Cal.4th 165, 181 (Williams) [deferring to the 

trial court’s ruling sustaining a challenge for cause when the 

prospective juror “repeatedly expressed extreme discomfort with 

the prospect of imposing the death penalty, telling the 

prosecutor at one point that even though he had voted for the 

death penalty, if personally called upon to carry it out, ‘I’d have 

to pass’ ”]; People v. Thomas (2011) 51 Cal.4th 449, 471 [similar]; 

Jones, supra, 54 Cal.4th at p. 43 [similar]; DePriest, supra, 

42 Cal.4th at p. 22 [similar]; People v. Lancaster (2007) 

41 Cal.4th 50, 80 [upholding a trial court’s dismissals when the 

prospective venirepersons “gave answers during voir dire 

indicating there was only a slim possibility they could vote for 

the death penalty, regardless of the state of the evidence”]; 

Spencer, supra, 5 Cal.5th at p. 661 [citing cases to support the 

proposition that it is not error to excuse members of the venire

when their responses indicated that scenarios in which they 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

81

could vote for death did not reflect circumstances in the present 

trials]; People v. Jones (2017) 3 Cal.5th 583, 615 [similar]; People 

v. Tully (2012) 54 Cal.4th 952, 999–1000 (Tully) [similar].)

It is true that Prospective Juror No. 70 also gave answers 

that were somewhat more supportive of her ability to consider 

aggravating evidence and that arguably suggested she would 

not categorically exclude the possibility of imposing the death 

penalty in this case. But this is simply to say that the 

prospective juror’s answers were equivocal. As discussed, “the 

proper inquiry in determining whether [Witt] error occurred is 

not whether some evidence exists that the prospective juror 

could vote for the death penalty.” (Spencer, supra, 5 Cal.5th at 

pp. 660–661.) “The standard is instead whether substantial 

evidence exists to support the trial judge’s determination that 

the juror was substantially impaired in terms of his [or her] 

ability to do so.” (Id. at p. 661.) Here, the trial judge was “left 

with [such a] definite impression that a prospective juror would 

be unable to faithfully and impartially apply the law” that she 

was first to suggest that Prospective Juror No. 70 should be 

excused. (Witt, supra, 469 U.S. at p. 426.) Defense counsel, too, 

conceded that whether the juror was substantially impaired was 

a “borderline question.” The most that could be said, therefore, 

is that the prospective juror was ambivalent in her responses. 

Such equivocation “requires that we defer to the trial court’s 

assessment of her initial and ultimate state of mind.” (Jones, 

supra, 54 Cal.4th at p. 43.) In light of such deference, we

conclude the trial court did not err in excusing the prospective 

juror.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

82

2. Rulings on scope of cross-examination

a. Background

Before the penalty phase began, the trial court held a 

hearing to discuss evidence the parties intended to introduce. 

(See Evid. Code, § 402, subd. (b).) The defense indicated that it 

planned to call defendant’s mother, sister, grandfather, and 

wife. The defense made the following offer of proof regarding 

these witnesses.

With respect to defendant’s mother, Diana Gil, defense 

counsel stated that the intention was for Gil “to say where and 

how [defendant] grew up and that she’s his mother, and she 

loves him.” Upon hearing this offer of proof, the prosecutor 

referenced defendant’s juvenile record and remarked, “[u]ntil 

now we have . . . sanitized this case from that, but depending on 

what she says . . . [t]he door opens . . . and I get to start talking 

to her about what happened as he was growing up.” The trial 

court agreed, indicating that if Gil “start[s] talking about what 

a good child he was . . . that’s going to open the door to a lot of 

this information coming in about his criminal record.” Defense 

counsel responded, “I agree if we try to paint a picture that he 

was a good boy, then bad boy comes in.” Counsel emphasized 

that the defense would not present defendant as “a good student, 

. . . a good child,” and “well behaved, because we recognize that 

would open doors.” Instead, defense counsel asserted, his 

mother’s testimony would simply “paint a picture of this is a 

mother who’s going to be affected and . . . regardless of what 

[jurors] know about her son, she loves him.” Counsel also stated 

that a photograph of defendant at age 15 would be introduced 

through Gil’s testimony. The court indicated it would allow the 

photograph and that neither the photograph nor Gil’s testimony, 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

83

as proffered, would subject the witness to cross-examination 

about defendant’s juvenile record. 

Defense counsel next discussed the anticipated testimony 

of defendant’s sister, Tatiana. The offer of proof concerning that 

testimony, counsel explained, “is that she loves him and that 

she’s his little sister and where she fits in the family. Rather 

brief.” The court ruled that it would allow Tatiana to testify, 

finding her testimony not to be cumulative. It further clarified 

that if Tatiana “wants to say in general he’s my brother and 

I love him, then it would not open the door” to rebuttal evidence. 

However, if Tatiana testified to “details [about] what a 

wonderful person [defendant has] been, character evidence 

about things he’s done for the family, for example, through his 

life . . . that would open the door to impeachment with this 

information that we have discussed.” Defense counsel 

responded, “Thank you.”

Defense counsel continued the discussion with an offer of 

proof concerning the testimony of defendant’s grandfather, Jose 

Gil Torres. According to counsel, Torres would “draw [a] picture” 

for the jury that defendant and his brother grew up with their 

grandfather on a ranch before they began school and that Torres 

“knew him then and has stayed in his life ever since” and still 

“loves [defendant] today.” The court remarked that Torres’s 

proffered testimony “doesn’t sound cumulative . . . and I would 

allow it with the caveat about opening doors.” The prosecutor 

clarified that if Torres “says he was a good kid and always a good 

kid around the ranch and a hard worker, then it seems . . . the 

door is opened.” The court responded, “Okay.”

Turning to the anticipated testimony of defendant’s wife, 

Stacey Camacho, the parties first focused on the number of 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

84

photographs that would be introduced through her narrative. 

The defense stated that it intended to present four pictures of 

defendant on construction sites and 25 pictures of defendant and 

his wife and two children. The prosecutor objected to the latter 

group, contending that they were cumulative. The court agreed, 

and after some back and forth, the defense settled on nine 

pictures of defendant’s family. The defense was thus permitted 

to introduce 14 photographs in total: one of defendant at age 15, 

four of defendant at his work, and nine of defendant with his 

wife and children.

The prosecutor contended that the introduction of the nine 

photographs of defendant with his family constituted indirect 

evidence that defendant was a “good father and a good 

husband.” The prosecutor asked that he be allowed to respond 

to those photographs with letters defendant wrote to women 

who were not his wife while he was held in pretrial detention, 

the content of which was “sexually explicit.” The court said that 

based on a weighing under Evidence Code section 352 it would 

not allow such impeachment. However, “[i]f the witnesses were 

going to say he’s a wonderful husband, he’s a great father, he’s 

attentive — if they’re going to give character opinions . . . all 

that would open the door.”18 The prosecutor inquired if the court 

would consider revisiting its ruling if “Stacey Camacho takes the 

stand and doesn’t . . . use the word[] ‘good,’ but starts to describe 

18 The court had also summarized the scope of permissible 

impeachment evidence, indicating that such evidence included, 

among other things, “the horrendous facts of the present case, 

the four prior felony convictions, [defendant’s] drug dealing,” 

“long-term drug abuse,” “having the drugs in the home” and 

possibly any prior statements of the witnesses that contradict 

their anticipated testimony.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

85

what could only be concluded as she’s saying he’s good.” The 

court indicated its willingness to do so, stating “none of these 

rulings are etched in stone.”

At trial, the defense elected not to call defendant’s sister 

or grandfather to the stand. It did introduce the testimony of 

defendant’s mother and wife, both of whom testified consistently 

with the offers of proof.

b. Analysis

Despite having agreed with the trial court’s in limine 

rulings and presenting testimony in conformity with the offers 

of proof, defendant now claims that the court erred in deciding

that, if the witnesses testified generally concerning defendant’s 

good character, the prosecutor would be entitled to rebut with 

evidence of defendant’s juvenile record, gang activities, or other 

discreditable conduct. Defendant is mistaken.

As an initial matter, the claim is not preserved for appeal. 

(See, e.g., Evid. Code, § 353; Tully, supra, 54 Cal.4th at p. 1010.) 

Before the court made any rulings, defendant outlined the 

anticipated testimony, and the witnesses who testified at trial 

gave accounts that were consistent with the offers of proof. 

Although two of the potential witnesses, defendant’s sister and 

grandfather, did not ultimately take the stand, there is no 

indication that they forwent the opportunity because of the trial 

court’s preliminary rulings. Moreover, when the court indicated 

that if defendant’s mother testified concerning what a “good 

child” defendant had been, she may be confronted with his 

juvenile record, defense counsel fully concurred, stating “I agree 

if we try to paint a picture that he was a good boy, then bad boy 

comes in.” Counsel likewise made no objection when the trial 

court sketched the circumstances under which the witnesses’ 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

86

testimony may “open the door” to cross-examination. In 

addition, even though the court told the parties that its rulings 

were preliminary and could be revisited when the witnesses 

testified, defendant made no effort to expand the scope of 

testimony at trial. Given his conduct below, defendant has 

waived his claim.

In any event, defendant’s argument is without merit.

“When a defendant places his character at issue during the 

penalty phase of a capital trial, the prosecution may respond by 

introducing character evidence to undermine the defendant’s 

claim that his good character weighs in favor of mercy and to 

present a more balanced picture of the defendant’s personality.” 

(Valdez, supra, 55 Cal.4th at pp. 169–170.) “As in other cases, 

the scope of rebuttal must be specific, and evidence presented or 

argued as rebuttal must relate directly to a particular incident 

or character trait defendant offers in his own behalf.” (People v. 

Rodriguez (1986) 42 Cal.3d 730, 792, fn. 24.) When a 

defendant’s “good character evidence [is] not limited to any 

singular incident, personality trait, or aspect of his background,” 

rebuttal evidence may likewise be tailored to the “breadth and 

generality of [the] good character evidence.” (People v. Mitcham

(1992) 1 Cal.4th 1027, 1072 (Mitcham).) “The trial court has 

broad discretion to determine the admissibility of rebuttal 

evidence and, absent palpable abuse, an appellate court may not 

disturb the trial court’s exercise of that discretion.” (Valdez, 

supra, 55 Cal.4th at p. 170.)

In this case, the court specified that if members of 

defendant’s family testified that he was a “good child,” “a 

wonderful person,” “always a good kid,” “wonderful husband,” or 

“great father,” then the prosecution would be allowed to confront 

the witnesses with evidence of defendant’s misconduct. Such 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

87

rebuttal evidence included not only information already in the 

record — e.g., “the horrendous facts of the present case, the four 

prior felony convictions, [defendant’s] drug dealing,” “long-term 

drug abuse,” “having the drugs in the home” — but also 

information previously excluded from consideration by the jury, 

e.g., defendant’s juvenile record and his gang affiliation.19

Such a ruling is in line with our precedent and within the 

trial court’s discretion. (Accord, e.g., People v. Carter (2003) 

30 Cal.4th 1166, 1204 (Carter) [the prosecution was entitled to 

rebut testimony that “as a child, defendant did not cause 

problems at the boys and girls club and wanted to stay in school 

and make his mother proud of him” with evidence of defendant’s 

juvenile adjudications and confinements]; People v. Fierro

(1991) 1 Cal.4th 173, 238 (Fierro) [“The witness had testified 

generally to defendant’s good character and offered specific 

examples of his socially useful activities . . . . Membership in 

youth gangs was relevant to the issue of defendant’s character 

and activities as a youth and specifically rebutted the direct 

testimony of the witness”]; id. at p. 239 [concluding that the 

defendant “was not entitled to elicit testimony that he was a 

19 With regard to some of the proposed testimony (e.g., that 

of defendant’s sister and grandfather), the trial court stated that 

it had the potential to “open doors,” but did not specify what 

impeaching evidence would be admissible. We do not take the 

trial court’s comments to mean that all possible rebuttal 

evidence would be admitted should the witnesses “open doors.” 

Rather, the court spoke in general terms, which was 

understandable given that the rulings were tentative and the 

witnesses had yet to take the stand. In any event, we reiterate 

that proper rebuttal evidence must be tailored to the “breadth 

and generality of [the] good character evidence.” (Mitcham, 

supra, 1 Cal.4th at p. 1072.)
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

88

‘respectful’ youth who ‘would never hurt anybody,’ and preclude 

cross-examination as to whether the witness was aware of 

conduct by the defendant inconsistent with the witness’s 

testimony,” including his trouble with law enforcement while 

growing up]; Mitcham, supra, 1 Cal.4th at pp. 1071–1072 

[similar]; People v. Clair (1992) 2 Cal.4th 629, 684–685 [finding 

no error when a witness “ ‘express[ed] an opinion as to the good 

character of the defendant’ [citation], viz., that he was 

‘compassionate, warm and considerate of other people’ ” and the 

prosecution was permitted to ask if the witness knew the 

defendant “had been charged with rape and forcible oral 

copulation”].)

Insofar as defendant claims the trial court erred by 

limiting the number of pictures the court permitted to be 

introduced via Stacey’s testimony, we discern no abuse in the 

court’s ruling. It is clear that the trial court conscientiously 

examined the proffered evidence and used its judgment in 

reasonably reducing the number of photographs to avoid

cumulation. (Accord People v. Virgil (2011) 51 Cal.4th 1210, 

1273 [“It was within the trial court’s discretion to limit the 

number of photographs” of the defendant’s child to five].)

Because the trial court did not abuse its discretion in 

articulating the scope of rebuttal, defendant’s constitutional 

gloss on the same argument, “to the extent it is preserved for 

appeal, also is without merit.” (Fuiava, supra, 53 Cal.4th at 

p. 670.)

3. Instruction on sympathy for defendant’s family

a. Background

At the conclusion of the penalty phase, the trial judge 

instructed the jury with, inter alia, CALJIC No. 8.85. 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

89

In relevant part, the instruction read as follows: “Sympathy for 

the family of the defendant is not a matter that you can consider 

in mitigation. Evidence, if any, of the impact of an execution on 

family members should be disregarded unless it illuminates 

some positive quality of the defendant’s background or 

character.”

b. Analysis

Defendant argues the trial court’s giving CALJIC No. 8.85 

violated his constitutional rights by precluding the jury from 

being swayed by sympathy for his family. Our case law is to the 

contrary.

In People v. Ochoa (1998) 19 Cal.4th 353 (Ochoa), we 

addressed whether capital juries may consider sympathy for a 

defendant’s family in determining the appropriate sentence. We 

began by noting the unsettled state of the law on the issue, 

which had not been decided previously. (Id. at p. 455.) We 

reasoned that capital juries are required to engage in “an 

individualized assessment of the defendant’s background, 

record, and character, and the nature of the crimes committed, 

both as a matter of state law [citations] and as a federal 

constitutional requirement [citations].” (Id. at p. 456.) As such, 

in the context of a capital sentence determination, “what is 

ultimately relevant is a defendant’s background and 

character — not the distress of his or her family.” (Ibid.) We 

therefore held that “sympathy for a defendant’s family is not a 

matter that a capital jury can consider in mitigation, but that 

family members may offer testimony of the impact of an 

execution on them if by so doing they illuminate some positive 

quality of the defendant’s background or character.” (Ibid.) As 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

90

defendant concedes, this language from Ochoa serves as the 

basis for the portion of CALJIC No. 8.85 that he now challenges.

As defendant must also concede, our court’s adherence to 

Ochoa has been unwavering. (See, e.g., People v. Rices (2017) 

4 Cal.5th 49, 89 (Rices) [“Defendant contends that Ochoa, supra, 

19 Cal.4th 353, was wrongly decided. We have rejected 

substantially similar arguments and continue to do so”]; 

Williams, supra, 56 Cal.4th at p. 197 [“Defendant contends this 

aspect of the standard instruction [of CALJIC No. 8.85] violated 

California’s death penalty statute and his rights under the 

Eighth Amendment. Established precedent is to the contrary”]; 

Tully, supra, 54 Cal.4th at pp. 1047–1048; People v. Livingston

(2012) 53 Cal.4th 1145, 1178–1179 (Livingston); Fuiava, supra, 

53 Cal.4th at pp. 723–724; People v. Bennett (2009) 45 Cal.4th 

577, 602 (Bennett); People v. Romero (2008) 44 Cal.4th 386, 425; 

People v. Vieira (2005) 35 Cal.4th 264, 294–295 (Vieira); Carter, 

supra, 30 Cal.4th at p. 1205; Bemore, supra, 22 Cal.4th at p. 856; 

People v. Smithey (1999) 20 Cal.4th 936, 1000–1001.)

Still, defendant contends that Ochoa must be reconsidered 

in light of Cullen v. Pinholster (2011) 563 U.S. 170 (Pinholster). 

Defendant ignores the fact that many of our cases affirming 

Ochoa postdate Pinholster. (See, e.g., Rices, supra, 4 Cal.5th at 

pp. 88–89; Williams, supra, 56 Cal.4th at pp. 197–198; Tully, 

supra, 54 Cal.4th at pp. 1047–1048; Livingston, supra, 

53 Cal.4th at pp. 1178–1179; Fuiava, supra, 53 Cal.4th at 

pp. 723–724.) This is for good reason, because nothing the high 

court said in Pinholster compels us to reject Ochoa.

In Pinholster, the court examined an ineffective assistance 

of counsel claim brought in a habeas corpus petition. 

(Pinholster, supra, 563 U.S. at p. 174.) The petitioner’s trial had 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

91

taken place in Los Angeles in 1984. (See id. at pp. 176, 196.) 

During the penalty phase, the defense called only his mother, 

Burnice Brashear. (Id. at p. 177.) Brashear testified to the 

petitioner’s difficult childhood and highlighted positive aspects 

of her son’s character. (Ibid.) In concluding that the petitioner’s 

counsel did not perform deficiently by presenting only 

Brashear’s testimony, the court reasoned that because the 

petitioner was “an unsympathetic client,” “it would have been a 

reasonable penalty-phase strategy to focus on evoking sympathy 

for [his] mother,” the so-called “family-sympathy defense.” (Id.

at p. 193.) The court also said that there was “no evidence . . . 

that [a family-sympathy mitigation defense] would have been 

inconsistent with the standard of professional competence in 

capital cases that prevailed in Los Angeles in 1984” and indeed, 

“at the time, the defense bar in California had been using that 

strategy.” (Id. at p. 196; see also id. at p. 232, fn. 21 (dis. opn. of 

Sotomayor, J.) [“I do not doubt that a decision to present a 

family-sympathy mitigation defense might be consistent ‘with 

the standard of professional competence in capital cases that 

prevailed in Los Angeles in 1984’ in some cases”]; Pinholster v. 

Ayers (9th Cir. 2009) 590 F.3d 651, 707 (dis. opn. of Kozinski, J.) 

[“The main point of Burnice’s testimony was to create sympathy 

for herself and the other members of [the petitioner’s] family in 

the hope that the jury would take pity on them and spare them 

the agony of losing a son and brother to the executioner. That’s 

what’s known as the ‘family sympathy’ mitigation defense and 

other lawyers in California used it at the time”].)

Defendant argues that although the Pinholster court did 

not say so “in so many words,” the case must be read to mean 

that “sympathy for the family of the accused is a factor in 

mitigation that a jury must be allowed to consider . . . [under] 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

92

the ambit of the Eighth Amendment’s guarantee of a reliable 

penalty determination.” That is, not only is sympathy for the 

defendant’s family a permissible consideration for a capital jury, 

but it is constitutionally prohibited for the state to preclude a 

jury from taking such sympathy into account.

Pinholster cannot be fairly read to establish such a 

constitutional mandate. We agree with the People that, for our 

present purposes, all Pinholster does is indicate that a familysympathy defense was a viable strategy in California in 1984 

when that “capital trial took place.” This is hardly surprising. 

When we decided Ochoa in 1998, we noted that up until that 

point, the law was unsettled regarding “ ‘whether the jury may 

consider evidence of the impact a judgment of death would have 

upon the defendant’s family.’ ” (Ochoa, supra, 19 Cal.4th at 

p. 455; see also, e.g., In re Visciotti (1996) 14 Cal.4th 325, 337, 

fn. 3 [observing that this “court has not considered whether 

family sympathy is within any statutory factor (§ 190.3) or an 

aspect of the defendant’s character or record which the jury 

must be allowed to consider” but finding no occasion to 

undertake such an examination]; Fierro, supra, 1 Cal.4th at 

p. 241 [assuming but not deciding that “[a] defendant has a right 

to introduce evidence of the effect of a death sentence on his 

family”]; People v. Cooper (1991) 53 Cal.3d 771, 844, fn. 14 [“We 

need not now decide whether evidence of the impact on the 

defendant’s family comes within this ‘broad’ range of 

constitutionally pertinent mitigation”].)

We “resolve[d] the point” of ambiguity in Ochoa. (Ochoa, 

supra, 19 Cal.4th at p. 455.) Accordingly, the law now — and at 

defendant’s trial — is that “execution-impact evidence is 

irrelevant under section 190.3 because it does not concern a 

defendant’s own circumstances but rather asks the jury to spare 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

93

defendant’s life based on the effect his or her execution would 

have on his or her family” and “nothing in the federal 

Constitution requires a different result.” (Bennett, supra, 

45 Cal.4th at p. 602.) The trial court thus did not err in 

instructing the jury that it should not consider sympathy for 

defendant’s family as a mitigating factor in itself.

Besides reliance on Pinholster, defendant makes various 

arguments essentially asserting that Ochoa was wrong at its 

inception. Defendant “identifies no reason to reconsider our 

conclusion.” (Bennett, supra, 45 Cal.4th at p. 602.) Nothing in 

the authorities that defendant cites establishes that sympathy 

for a defendant’s family — when unilluminating of “any 

[positive] aspect of a defendant’s character or record and any of 

the circumstances of the offense” (Lockett v. Ohio (1978) 

438 U.S. 586, 604) — is a mitigating factor a capital jury is 

permitted to consider under California law and is required to 

consider (when proffered) under federal constitutional 

principles. Consistent with the principle of stare decisis, we 

continue to adhere to Ochoa and its line of cases. (See, e.g., 

Bourhis v. Lord (2013) 56 Cal.4th 320, 327.)

Finally, defendant makes an equal protection argument, 

asserting that because criminals seeking to obtain probation 

instead of prison can present evidence of the impact on their 

families (Cal. Rules of Court, rule 4.414(b)(5)), death eligible 

defendants should be able to present family sympathy evidence. 

Defendant has provided no authority to support the proposition 

that capital and probation-eligible defendants are similarly 

situated such that the former are constitutionally entitled to 

introduce certain evidence simply because the latter may do so. 

Indeed, in rejecting a prior challenge to CALJIC No. 8.85, we 

held that reliance on “family considerations in probation 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

94

determinations is not on point.” (Williams, supra, 56 Cal.4th at 

p. 197.) We explained that was so because section 190.3, and 

our subsequent interpretation thereof — and not the probation 

statutes — control the scope of matters relevant to 

“ ‘aggravation, mitigation, and sentence.’ ” (Williams, supra, 

56 Cal.4th at p. 197; see also Bennett, supra, 45 Cal.4th at p. 602 

[stating that the probation statute has “no bearing upon this 

court’s construction of section 190.3”].) Defendant attempts to 

circumvent our precedent by stressing that we did not 

previously consider California Rules of Court, rule 4.414. But 

we do not see how the logic of our case law is undermined by the 

rule of court, nor any indication that the rule itself could give 

rise to a constitutional claim.

More directly, we do not agree with defendant’s contention 

that “there is no rational distinction to be made that supports 

allowing a judge to consider the impact of imprisonment on [a 

probation-eligible] defendant’s family while enjoining the jury 

from taking into account the impact of a defendant’s execution 

on his family.” Probation is an act of clemency for which 

individuals convicted of serious crimes are categorically 

ineligible. (See § 1203, subd. (k) [“Probation shall not be granted 

to . . . any person who is convicted of a violent felony . . . or a 

serious felony”]; see also id., subd. (e).) There are plausible

reasons why the Legislature might want to allow consideration 

of how a would-be prisoner could positively impact his or her 

family if put on probation but not allow consideration of 

sympathy evidence — when unconnected to any “positive 

quality of the defendant’s background or character” (Ochoa, 

supra, 19 Cal.4th at p. 456) — to influence a decision between a 

sentence of death and life without the possibility of parole. 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

95

In short, defendant has not persuaded us that he was 

denied equal protection under the law because, unlike, 

probation-eligible defendants, the jury could not take sympathy 

for his family into consideration when deciding his sentence.

4. Omission of instruction on remorse

a. Background

Before the penalty phase began, defendant submitted a 

proposed instruction concerning the role of remorse. The 

instruction read, “Remorse, which by definition can only be 

experienced after a crime’s commission, is something commonly 

thought to mitigate aspects of the crime and defendant’s 

culpability. [¶] You may consider defendant’s remorse for his 

actions as a factor in mitigation.” The prosecutor objected to the 

instruction as being “subsumed under factor k” of section 190.3, 

and the court rejected the defense’s proposal. The court, 

however, left open the possibility that if the jury asked about 

being able to consider remorse, it would “perhaps give 

something along the lines of what you’re requesting.”

The court instructed the jury with CALJIC No. 8.85. In 

relevant part, the instruction stated, “In determining which 

penalty is to be imposed . . . [y]ou shall consider, take into 

account and be guided by the following factors . . . : (k) Any 

other circumstance which extenuates the gravity of the crime 

even though it is not a legal excuse for the crime, and any 

sympathetic or other aspect of the defendant’s character or 

record that the defendant offers as a basis for a sentence less 

than death, whether or not related to the offense for which he is 

on trial.” (See also § 190.3.)

Both the defense and prosecution highlighted defendant’s 

remorse — or the lack thereof — in their closing statements. 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

96

Defense counsel informed the jury remorse was a proper 

consideration under factor (k) of the relevant instruction. 

Counsel then summarized the evidence that, counsel believed, 

showed defendant experienced remorse after shooting the 

victim.

The prosecution likewise acknowledged that remorse was

a mitigating factor that the jury may consider under factor (k). 

The prosecution, however, argued that defendant displayed no 

remorse. The prosecution urged the jury to find that the

mitigating factors, including any “so-called . . . remorse,” were

substantially outweighed by the aggravating factors.

b. Analysis

Contrary to defendant’s claim, we find no error in the trial 

court’s refusal to give the proposed instruction on remorse. “It 

is settled that CALJIC No. 8.85 properly instructs the jury on 

aggravating and mitigating factors, and the court need not give 

pinpoint instructions on mitigation.” (People v. Gonzales (2012)

54 Cal.4th 1234, 1297.) Moreover, although a defendant is 

entitled, upon request, “to an instruction that pinpoints the 

theory of the defense,” he has no right to “an argumentative 

instruction” or “an instruction ‘of such a character as to invite 

the jury to draw inferences favorable to one of the parties from 

specified items of evidence.’ ” (People v. Mincey (1992) 2 Cal.4th 

408, 437.) The proposed instruction at issue here invited the 

jury to “consider defendant’s remorse for his actions as a factor 

in mitigation.” Such an instruction is argumentative — not 

least because it presupposed that defendant experienced 

remorse, when whether defendant did so was a disputed factual 

issue, as highlighted by the opposing parties’ closing 

statements. (See People v. San Nicolas (2004) 34 Cal.4th 614, 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

97

673 & fn. 16 (San Nicolas) [“a pinpoint instruction” telling the 

jury it may consider “ ‘[w]hether or not the defendant expressed 

remorse or shame for his crime’ ” “ ‘properly belongs not in 

instructions, but in the arguments of counsel to the jury’ ”].)

In addition, the trial court instructed the jury with 

CALJIC No. 8.85, the relevant portion of which allowed the jury 

to consider “[a]ny other circumstance which extenuates the 

gravity of the crime . . . , and any sympathetic or other aspect of 

the defendant’s character or record.” (CALJIC No. 8.85.) “This 

court has interpreted section 190.3 factor (k), which CALJIC 

No. 8.85, factor (k) incorporates, as ‘ “allow[ing] the jury to 

consider a virtually unlimited range of mitigating 

circumstances.” ’ ” (San Nicolas, supra, 34 Cal.4th at pp. 673–

674.) As both parties acknowledged in front of the jury, remorse 

is subsumed under factor (k) of CALJIC No. 8.85, meaning that 

the jury may consider it in deliberations as a potential 

mitigating circumstance. Because “factor (k) is adequate for 

informing the jury that it may take account of any extenuating 

circumstance,” “there is no need to further instruct the jury on 

specific mitigating circumstances.” (Vieira, supra, 35 Cal.4th at 

pp. 299–300.) “It is generally the task of defense counsel in its 

closing argument, rather than the trial court in its instructions, 

to make clear to the jury which penalty phase evidence or 

circumstances should be considered extenuating under 

factor (k).” (Id. at p. 300.)

Defendant contends there was “no issue concerning the 

accuracy of the proposed defense instruction” and suggests that 

it was not argumentative nor duplicative. He asserts that 

“[n]either the prosecutor nor the trial court voiced any concern 

with the instruction as a whole or any of the wording” and “[i]n 

fact, the trial court indicated that it would use the instruction if 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

98

the jurors had a question about remorse.” Defendant’s 

contention is belied by the record. Both the prosecutor and the 

court took exception with the proposed instruction, finding it 

unnecessary in light of CALJIC No. 8.85. Furthermore, the 

court never said “it would use the instruction” defendant 

proposed. Instead, it merely suggested that the court would 

“perhaps give something along the lines of what [the defense 

was] requesting” should certain circumstances arise. Such a 

qualified statement lends no support to defendant’s argument.

5. Exclusion of testimony concerning conditions of 

confinement for a prisoner serving a sentence of life 

without the possibility of parole

a. Background

Outside the presence of the jury, the defense indicated it 

planned to call an “expert with regard to prison conditions.” 

According to the defense, the expert would testify “just generally 

as to the custodial situation for a person doing life without the 

possibility of parole.” The court excluded the proposed 

testimony on the ground that a defense expert “may not render 

. . . testimony on general LWOP conditions in the prison 

system.”

Although excluding testimony on the subject, the court 

confirmed that defense counsel was entitled to argue “what 

prison conditions [would] look like for somebody who’s going to 

get a sentence” of life without the possibility of parole. Counsel 

in fact so argued to the jury during closing remarks.

b. Analysis

As defendant acknowledges, our case law rejects the 

notion that he had a statutory or constitutional right to present 

in his case-in-chief evidence regarding conditions of confinement 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

99

for a defendant sentenced to life in prison without the possibility 

of parole. (See, e.g., Eubanks, supra, 53 Cal.4th at p. 149 

[“ ‘evidence of the conditions of confinement that a defendant 

will experience if sentenced to life imprisonment without parole 

is irrelevant to the jury’s penalty determination because it does 

not relate to the defendant’s character, culpability, or the 

circumstances of the offense. [Citations.] Its admission is not 

required either by the federal Constitution or by Penal Code 

section 190.3’ ”]; People v. Ervine (2009) 47 Cal.4th 745, 794–

795; People v. Ledesma (2006) 39 Cal.4th 641, 735; People v. 

Smith (2005) 35 Cal.4th 334, 365–366; People v. Coddington

(2000) 23 Cal.4th 529, 636; People v. Majors (1998) 18 Cal.4th 

385, 415–416; People v. Quartermain (1997) 16 Cal.4th 600, 632; 

People v. Fudge (1994) 7 Cal.4th 1075, 1117; People v. Thompson

(1988) 45 Cal.3d 86, 138–139; cf. People v. Smith (2015) 

61 Cal.4th 18, 58 [“the defense may not introduce such evidence 

[regarding prison conditions] as a factor in mitigation. The 

defense may, however, respond to aggravating evidence 

suggesting the defendant will be dangerous in prison”].)

Defendant insists that we should reconsider but offers no 

persuasive reason for us to do so. Although “defendant might 

have an interest in telling the jurors of . . . the rigors of 

confinement in order to impress upon them the gravity of their 

responsibility, that interest could be satisfied in his argument.” 

(People v. Daniels (1991) 52 Cal.3d 815, 877–878.)

6. Cumulative effect of asserted errors

Because we have found no error in the penalty phase of 

defendant’s trial, we reject defendant’s claim that his sentence 

of death must be reversed due to the cumulative effect of the 

purported errors discussed above.
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

100

7. Constitutionality of California death penalty law

Defendant raises familiar arguments contending that 

California’s death penalty scheme is unconstitutional. He has 

given us no reason to revisit our precedents holding to the 

contrary. We therefore continue to hold as follows.

“California’s death penalty laws adequately narrow the 

class of murderers subject to the death penalty. [Citation.] In 

particular, the special circumstances of section 190.2, which 

render a murderer eligible for the death penalty, are not so 

numerous and broadly interpreted that they fail adequately to 

narrow the class of persons eligible for death.” (Navarro, supra,

12 Cal.5th at p. 345.)

“Section 190.3, factor (a), directs the jury to consider as 

evidence in aggravation the circumstances of the capital crime. 

This has not resulted in the wanton imposition of the death 

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

Amendments by permitting prosecutors to argue that the 

various features of the murder, even features that are the 

converse of those in other cases, are aggravating factors.” 

(People v. Schultz (2020) 10 Cal.5th 623, 683 (Schultz).)

“ ‘The language “ ‘so substantial’ ” . . . ’ in CALJIC No. 8.88 

‘is not impermissibly vague.’ ” (People v. Silveria and Travis

(2020) 10 Cal.5th 195, 327.)

“Use of adjectives such as ‘extreme’ and ‘substantial’ in 

section 190.3, factors (d) and (g), respectively, does not create a 

constitutionally impermissible barrier to the jury’s 

consideration of a defendant’s mitigating evidence.” (People v. 

Johnson (2016) 62 Cal.4th 600, 656.)

“The court’s instructions regarding the various 

aggravating and mitigating factors did not act as a barrier to the 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

101

jury’s consideration of defendant’s mitigating evidence or 

infringe defendant’s constitutional rights.” (Schultz, supra, 

10 Cal.5th at p. 684.) In particular, the court is not required to 

“identify which factors are aggravating and which are 

mitigating. [Citation.] Directing the jury to consider ‘ “whether 

or not” ’ certain mitigating factors were present does not invite 

the jury to use the absence of such factors as a factor in 

aggravation.” (Ibid.)

Contrary to defendant’s suggestion, there is no 

constitutional mandate that the jury be instructed to “find 

beyond a reasonable doubt that the aggravating factors in this 

case outweighed the mitigating factors” or that “aggravating 

factors other than prior criminality [must be] proven beyond a 

reasonable doubt.” (See People v. McDaniel (2021) 12 Cal.5th 

97, 155.)

“[T]he federal Constitution does not require that the jury 

agree unanimously on which aggravating factors apply.” 

(Navarro, supra, 12 Cal.5th at p. 345.)

“Neither the federal Constitution nor state law requires 

the jury be instructed that the prosecution bears some burden 

of proof as to the truth of the aggravating factors (other than 

factor (b) or (c) evidence) or the appropriateness of a death 

verdict.” (Schultz, supra, 10 Cal.5th at p. 683.)

The trial court need not instruct the jury that “it must 

return a sentence of life without the possibility of parole if it 

finds that mitigation outweighs aggravation.” (People v. 

Johnson (2019) 8 Cal.5th 475, 528.)

“The penalty phase jury is not required to make written 

findings regarding its penalty choice, and the absence of such 
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

102

written findings does not preclude meaningful appellate 

review.” (Schultz, supra, 10 Cal.5th at p. 684.)

“Contrary to defendant’s assertion, there is no Eighth 

Amendment requirement that California’s death penalty 

scheme provide for intercase proportionality review, either in 

the trial court or on review.” (People v. Johnson, supra, 

62 Cal.4th at p. 656.)

“California does not regularly use the death penalty as a 

form of punishment, and ‘ “its imposition does not violate 

international norms of decency or the Eighth Amendment’s 

prohibition against cruel and unusual punishment.” ’ ” 

(Navarro, supra, 12 Cal.5th at p. 346.)

“Defendant acknowledges that this court has previously 

rejected each of the challenges to California’s death penalty 

scheme that he presents here. He asserts, however, that our 

analysis of these issues is constitutionally defective because we 

have failed to consider their cumulative impact or to address the 

capital sentencing scheme as a whole. This court has considered 

and rejected identical arguments before, and we do so again 

here.” (Schultz, supra, 10 Cal.5th at p. 685.)
PEOPLE v. CAMACHO

Opinion of the Court by Cantil-Sakauye, C. J.

103

III. DISPOSITION

Because defendant has not demonstrated reversible error, 

we affirm the judgment in its entirety.

CANTIL-SAKAUYE, C. J.

We Concur:

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

GUERRERO, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion People v. Camacho

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal XX

Original Proceeding

Review Granted (published) 

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S141080

Date Filed: November 28, 2022

__________________________________________________________ 

Court: Superior

County: San Diego

Judge: Joan P. Weber

__________________________________________________________ 

Counsel:

Barry Morris, under appointment by the Supreme Court, for 

Defendant and Appellant.

Kamala D. Harris and Rob Bonta, Attorneys General, Dane R. Gillette 

and Lance E. Winters, Chief Assistant Attorneys General, Julie L. 

Garland and James William Bilderback II, Assistant Attorneys 

General, Holly D. Wilkens, Heather F. Crawford and Robin Urbanski, 

Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Barry Morris

Attorney at Law

1407 Oakland Boulevard, #200 

Walnut Creek, CA 94596 

(925) 934-1100

Robin Urbanski

Deputy Attorney General

600 West Broadway, Suite 1800

San Diego, CA 92101

(619) 738-9115