Filed 1/5/15

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S076339

v. )

)

GARY LEE GRIMES, )

) Shasta County

Defendant and Appellant. ) Super. Ct. No. 95F7785

____________________________________)

Defendant Gary Lee Grimes was convicted by a jury of one count of 

murder with burglary and robbery special circumstances and one count each of 

robbery, burglary, conspiracy to commit robbery, conspiracy to commit burglary, 

and unlawful driving or taking of a vehicle. (Pen. Code, §§ 182, subd. (a), 187, 

subd. (a), 190.2, subd. (a)(17), 211, 459; Veh. Code, § 10851, subd. (a).)1 In 

connection with the murder, robbery, burglary, and conspiracy counts, the jury 

found true allegations that defendant inflicted great bodily injury upon the victim, 

an elderly person (§ 1203.09, subd. (a)), and that the offenses were committed 

while defendant was on parole (§ 1203.085, subd. (b)). In a bifurcated proceeding, 

the trial court found true allegations that defendant had served four prior prison 

terms (§ 667.5, subd. (b)) and had been convicted of a serious or violent felony 

 

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

indicated. 
2

within the meaning of the Three Strikes law (§ 1170.12). The jury returned a 

verdict of death. The trial court sentenced defendant to death for the murder and 

imposed a term of six years for the driving or taking of a motor vehicle and four 

one-year terms for the four prior prison term allegations; sentences on the 

remaining counts were imposed and stayed. 

The judgment is modified to vacate the true finding on one of the four prior 

prison term allegations, and is otherwise affirmed. 

I. FACTS

A. Guilt phase

1. The offenses

In October of 1995, defendant, then 33 years old, was staying with a friend, 

Sheila Abbott (Sheila), in her trailer. Also staying in the trailer were Sheila‘s son, 

Shane Fernalld, her daughter, Misty Abbott (Misty), and Misty‘s boyfriend, 

Patrick James Wilson, then 19 years old. On the morning of October 18, John 

Morris, a 20-year-old friend of the family, arrived at Sheila‘s trailer. At 

approximately noon, Morris, Wilson, and defendant obtained some medical gloves 

and bandanas from the trailer. They tried on the bandanas, placing them over their 

mouths, before putting them in their pockets. The three left in Morris‘s red sports

car. They drove to the house shared by Betty Bone, who was then 98 years old, 

and her daughter. They ransacked the house and took property, including a .38-

caliber handgun, a ―boom box,‖ some jewelry, a rifle, a telephone in a Styrofoam 

box, and a brown truck. 

Bone was killed. Her body showed evidence of blunt force trauma to the 

head, ligature strangulation, and stab wounds. There was a telephone cord and a 

bandana around her neck. There was bruising on her tongue and lip that was 

likely caused by a gag. Her injuries were consistent with her having been knocked 
3

unconscious, strangled, and then stabbed repeatedly. Bleeding due to the stabbing 

was the cause of death, with strangulation as a contributory cause. 

Defendant, Wilson, and Morris returned to Sheila‘s trailer, with Morris and 

Wilson in Morris‘s car and defendant driving the brown truck that had been taken 

from Bone‘s residence. They unloaded items from the truck. Defendant showed a 

bag of jewelry to Sheila, and asked her whether it was real; she told him it was 

costume jewelry. Defendant drove the truck to Shasta Lake, with Morris and 

Misty following in Morris‘s car. Defendant drove the truck into the lake. The 

three left the lake in Morris‘s car to go back to Sheila‘s trailer. 

Later that afternoon defendant, Morris, and Misty were driving in 

defendant‘s brown Camaro when they approached a roadblock that had been set 

up by the sheriff‘s department. Before reaching the roadblock, defendant and 

Morris threw their guns out of the car and into the bushes. The weapons, which 

included the handgun taken from Bone‘s residence along with another handgun, 

were later recovered by law enforcement. When they went through the roadblock, 

defendant identified himself to an officer as ―Gary Woods‖ and gave the officer a 

false Social Security number. He was wearing a pair of white fingerless gloves, 

similar to the type of gloves that Bone‘s daughter kept in the brown truck. 

They returned to Sheila‘s trailer and then left for Sacramento. Misty and 

her baby went in Morris‘s car and defendant drove in his car with Misty‘s brother, 

Shane Fernalld. They spent the night in Sacramento with Morris‘s aunt. In her 

apartment, they left a bag of jewelry and the box containing a telephone that had 

been taken from Bone‘s house. The next day, Fernalld left defendant at the 

Sheraton apartment complex. 
4

2. Defendant’s arrest and statements to police

Morris was arrested on October 21, 1995, three days after the crime, and 

killed himself in his jail cell the next afternoon. Wilson was arrested the following

day. Also that day, a deputy sheriff recovered two knives that had been buried 

near Sheila Abbott‘s property. One was a long kitchen knife and the other was a 

pocket knife. DNA from both knives was consistent with a mixture of Bone‘s 

DNA and Wilson‘s DNA; none of the DNA on the knives could have come from 

defendant. Defendant was arrested on the following day, as he pulled his car into 

the parking area of the Sheraton apartment complex. As he got out of the car, a 

loaded .22-caliber handgun fell out of the driver‘s side door. Defendant called 

Sheila Abbott from jail, and she told him that Morris had killed himself. 

Defendant was interviewed by detectives, and a tape recording of the 

interview was played for the jury. Defendant admitted that he was involved in the 

burglary and robbery, but denied any involvement in the murder, claiming that 

Morris had killed Bone while defendant was in the back of the house. Defendant 

stated that it had been Morris‘s idea to break into a house because he needed 

money to pay for his automobile insurance. Defendant said that he, Morris, and 

Wilson each had a bandana that Sheila had given them, and they had latex gloves 

that were obtained from her first-aid kit. Morris drove defendant and Wilson to 

Bone‘s neighborhood, an area in which defendant had formerly lived. In the car, 

defendant handed Morris a gun, which was wrapped in a bandana, and Morris put 

it in his pants. According to defendant, they were watching a house in the 

neighborhood and saw a woman outside; Morris said they could kill her and take 

their time going through the house, but defendant told Morris that he was ―not into 

killin‘ people.‖ 

Defendant told the detectives that when they arrived at the Bone house, 

Morris and Wilson knocked on the door of the house and initially no one 
5

answered; Morris commented that no one was there and defendant concluded they 

would just be committing a burglary. Then Morris stated there was someone in 

the house. Defendant walked back to the car and saw Bone answer the door. 

Wilson asked for a girl named Debbie and Bone replied ―no, my daughter‘s name 

is Barbara.‖ Wilson pushed the door open, hitting Bone and knocking her to the 

ground. Defendant walked through the open door. At some point he saw Bone 

lying on the floor with Morris on top of her; Bone pleaded with him to let her go. 

Defendant told the detectives that he said to Morris, ―don‘t hurt no women, don‘t 

hurt nobody.‖ He said he went into the back of the house because he ―couldn‘t 

deal with it.‖ When he came back out of the bedroom he saw Morris strangling 

Bone, who was tied up with a phone cord. According to defendant, Morris said, ―I 

can‘t leave no witnesses.‖ Morris also said, ―that fucking bitch won‘t die.‖ 

Defendant saw Morris rummaging through the kitchen looking for a knife. He 

saw or heard Morris stabbing Bone forcefully and repeatedly. Morris gave Wilson 

a paper sack containing the knives that were later recovered, and told him to get 

rid of them. 

According to defendant, Morris ordered him to take Bone‘s truck. They 

loaded the items from the house into the truck and took them back to Sheila‘s 

trailer. Wilson and Morris siphoned the gas out of the truck. Defendant drove the 

truck to Shasta Lake, following Morris and Misty. Morris instructed defendant to 

break out the windows of the truck and drive it into the lake. Defendant told the 

detectives that the gun he had when he was arrested in Sacramento did not come 

from the house and that he had obtained it that same day. He stated that Wilson 

had found a gun in the house and Morris had found a rifle. Defendant denied 

knowing the location of the guns taken from the house and asserted that Morris 

was supposed to dispose of them. 
6

3. Testimony regarding out-of-court statements

At trial, Misty Abbott testified that during the ride to Shasta Lake, Morris 

told her that he had killed a woman; specifically, he had tried to strangle her but 

because she did not die he took a knife from the kitchen and stabbed her. She 

testified that during the ride back to her mother‘s trailer, after they dumped the 

truck into the lake, defendant and Morris fired their guns out the windows of the 

car. When she was interviewed by Wilson‘s private investigator, she also said that 

Morris and defendant were laughing about the murder and calling each other 

―down white boys.‖ Misty‘s brother, Shane Fernalld, testified that while he and 

defendant were driving to Sacramento, defendant told Fernalld either ―she 

deserved it‖ or ―she didn‘t deserve it‖; he was not sure which. Before trial, 

however, he told several law enforcement officers that defendant‘s statement was 

―she deserved it‖ or ―the old bitch deserved it.‖ Morris‘s grandfather testified that 

Morris called him from jail, sounding very upset, and told him that his friends had 

turned against him and were going to testify that he had killed Bone, but that he 

had not done it.2 This call occurred an hour or two before Morris committed 

suicide by hanging himself in his jail cell. 

Jonathan Howe, a prisoner who had been housed with defendant in the 

county jail, testified that defendant told him defendant had ordered Wilson and 

Morris to tie up Bone and kill her. According to Howe, defendant also told him 

that he could not be linked to the murder with DNA evidence because he had 

never touched the body. Defendant told him either that he had enjoyed watching 

 

2 The trial court admonished the jury that it could not consider for its truth 

Morris‘s statement to his grandfather that he did not kill Bone; the court explained 

that testimony was relevant only in evaluating Misty‘s testimony regarding 

Morris‘s confession to him. 
7

Bone be killed or he enjoyed the fact that she died. Howe testified under an 

agreement that permitted him to plead guilty to pending charges for a sentence of, 

at most, 24 months, consecutive to a term he was already serving. Prior to coming 

forward he had been offered a plea bargain with a 24-month consecutive sentence. 

Under the new plea agreement, he could receive a sentence of less than 24 months; 

his sentencing was postponed until after trial in the present case, at which time the 

judge presiding over defendant‘s trial would decide his sentence. 

4. Defense evidence

Defense counsel conceded that defendant was guilty of burglary, robbery, 

and murder, but contested the special circumstance allegations on the grounds that 

defendant was not the actual killer and did not act with an intent to kill or a 

reckless indifference for life. 

The defense put into evidence admissions made by Wilson to law 

enforcement officers that were consistent with defendant‘s statements to the police 

regarding Wilson‘s role: Wilson admitted that he was involved with the burglary 

and that he had pushed Bone inside the house; when she fell back she was 

knocked out and he watched her for several minutes; he found a .38-caliber 

revolver in a toolbox in a closet in Bone‘s house; he cleaned the knives used to kill 

Bone by spitting on them and wiping them off with a cloth; he siphoned gas out of 

the truck before defendant drove it to the lake. 

Evidence was also presented that the day after Morris was arrested, he 

called Sheila Abbott‘s trailer and asked her daughter, Ginger Abbott, if she could 

provide him with an alibi. Ginger refused. 

The jury convicted defendant on all counts. 
8

B. Penalty phase

1. Aggravation

The prosecution introduced evidence that after driving the truck into the 

lake, defendant, Morris, and Misty Abbott bought some methamphetamine and 

injected it. Defendant had 10 prior felony convictions. The prosecution presented 

evidence regarding four incidents involving violent criminal conduct. In 1985, 

defendant, along with accomplice Anna Cline, tied up victim James Leonard and 

stole $300 from him. Defendant brandished a pipe that was wrapped in a towel to 

simulate a gun. Afterward, defendant and Cline used the money to purchase 

drugs. A day after that robbery, defendant was observed by a police officer 

shooting a sawed-off shotgun in an orchard. In 1991, a police officer encountered 

defendant in a restaurant with a loaded .25-caliber semiautomatic handgun in his 

waistband. In 1993, during a fight with his girlfriend, defendant held her down in 

his car by her throat, threatening to choke her if she left him. When he stopped the 

car in a parking lot, she escaped, he ran after her, and they struggled until police 

arrived. 

2. Mitigation

The defense case in mitigation focused on two themes: defendant‘s 

cognitive impairments and his positive contributions to his friends and family 

members. A neuropsychologist, John Wick, testified about the results of 

psychological testing. Defendant‘s mental functioning was tested in 12 areas; his 

scores were in the mentally retarded range in seven areas, low dull-normal in two 

areas, and normal in three areas. Defendant‘s overall IQ score was 73, which is 

borderline retarded, and he generally tested in the range of third to fourth grade in 

reading, spelling, and arithmetic. Wick concluded that defendant had organic 

brain damage and that his low intellect could impair his judgment, cause 
9

impulsivity, make decisionmaking difficult, and make it difficult to learn both 

academic subjects and acceptable social behaviors. 

Psychiatrist Albert Globus, who interviewed defendant and reviewed the 

test results, agreed that defendant was mentally retarded. Dr. Globus thought that 

defendant suffered from organic brain damage at birth (possibly due to beatings 

his mother suffered while pregnant), based on the test results and on his low birth 

weight, trouble breast feeding, loss of weight during his first week of life, 

incontinence up to the age of eight, and a speech impediment. At age 12, he 

suffered a serious head injury which may have exacerbated his brain disorder. 

Although defendant could determine right from wrong, Dr. Globus concluded that 

he would have difficulty applying that knowledge to his decisionmaking and 

would likely rely on others to make decisions for him. People like defendant will 

often function better in a structured setting like prison because most decisions are 

made for them. 

At age nine, defendant was referred to a psychiatrist, who prescribed Ritalin 

and Librium. At age 11, he was placed in special education classes for 

emotionally disturbed children. Defendant‘s special education teacher, a teacher‘s 

aide, and a resource specialist for the special education program described 

defendant, at that time, as nonaggressive, well behaved, a follower, and someone 

in need of love and attention. At age 15, he began running away from home and 

was placed in foster care and then juvenile hall. He was committed to Napa State 

Hospital at age 17 for nine months. His records from the hospital indicate he was 

mildly mentally retarded and had latent schizophrenia. 

Defendant‘s sister, Darlene, testified that when defendant was a young boy 

he was incontinent and their mother would make him wear a dress and stand out in 

the yard as punishment. Defendant lacked self-esteem and confidence; she 

described him as a follower who would do what others told him to do. 
10

Defendant‘s mother, Patricia Grimes, testified that she loved her son. 

Defendant‘s father beat her while she was pregnant and left her before defendant

was born. After the birth, she was in the hospital for more than three months with 

postpartum depression and defendant lived with her parents. She recalled that at a 

young age, he told her he heard voices and he would wake in the night screaming. 

Defendant‘s mother also testified that the day before he was arrested, he was 

crying and remorseful, and said he was very sorry that the victim had died. 

Defendant‘s ex-wife, Cindy Grimes, who was married to defendant in 1990 

for a brief period, testified that she loved him and he had treated her and her 

teenage son well. Defendant also helped take care of her father, who was 

disabled. Her son, Michael, testified that defendant treated both of them very 

well, and had influenced him to get his GED and stay out of trouble with the law. 

Cindy‘s mother and the manager of their apartment complex confirmed that 

defendant was helpful and kind to Cindy‘s family and to others who lived in their 

apartment complex. A fellow prison inmate, Michael Huntsman, testified that 

defendant came to his aid when he was assaulted by a group of inmates. 

In 1995, defendant attempted to assist the mother of his fiancée, Shannon 

Yarnell, in a domestic violence incident involving Shannon‘s stepfather. The 

incident ended in tragedy, however, when Shannon‘s stepfather rammed his truck 

into the car in which Shannon was riding, killing Shannon. 

II. DISCUSSION

A. Excusal for cause of Prospective Juror A.J.

Defendant contends that the death sentence must be reversed because the 

trial court erred in excusing for cause Prospective Juror A.J. The trial court 

concluded that A.J. would have difficulty following the law on felony murder in a 

case in which the defendant did not actually kill or intend to kill. As explained in 
11

more detail below, Prospective Juror A.J. indicated in his questionnaire that if his 

conscience conflicted with the law, he would follow his conscience. Although he 

stated during voir dire that if he were sworn as a juror he would follow the law, he 

also made clear that the law making a defendant liable for felony murder and a 

special circumstance would present an extreme conflict for him if the defendant 

did not intend to kill, and that he would prefer not to be in that situation. We

conclude that the trial court did not err in granting the prosecution‘s challenge for 

cause. 

On his questionnaire, Prospective Juror A.J. responded to a query about 

how he would deal with a situation in which the law differed from his beliefs or 

opinions by stating, ―If it were a moral issue I would opt for my conscience. 

Otherwise I would do my duty in accordance with the law.‖ In response to 

another question, he affirmed that he could set aside his personal feelings 

regarding what the law should be and follow the law as explained by the court. 

The court began voir dire by noting these responses and explaining that, as 

a juror, A.J. would have to agree to put aside his views and follow the law. Asked 

if he could make that agreement, A.J. responded, ―I think so.‖ Asked if he had 

some particular concern about a moral belief that might conflict with the law, he 

responded that he did not know what might occur. The court noted that when 

asked on the questionnaire whether, concerning the issue of penalty, he would 

limit himself to considering only those factors enumerated by the court, he had 

written, ―If I must, yes.‖ A.J. explained that when answering that question he had 

been thinking that there might be a conflict between the law and his moral 

judgment. 

The court explained that no one knew exactly what the evidence at trial 

might be, and that jurors are asked to take an oath that if a conflict arises between 

their personal views and the law, they would set aside their views and follow the 
12

law. The court stated it needed to know whether, if there was a conflict, A.J.

would follow his conscience and not follow the law. A.J. responded, ―At this 

time, I don‘t know whether that situation would arise; therefore I would say, 

having to answer your question, I would say that I would set aside in order to 

follow my duty as a juror.‖ A.J. affirmed that he could ―be an impartial juror who 

will faithfully apply the law in this case.‖ 

When defense counsel questioned him, counsel commented that A.J. had 

hesitated every time that he answered a question about his ability to follow the 

law. Counsel asked what personal feelings he might have that might interfere with 

his ability to follow the law. A.J. responded that he had never been a juror before. 

When defense counsel asked whether A.J.‘s hesitation had anything to do with this 

being a capital case, A.J. responded, ―No doubt that has something to do with it, 

also.‖ He added, ―I‘m a person who is directed by my conscience. Now, if I 

promise, through an oath, to set that aside, I will certainly do my duty . . . I don‘t 

know if the situation — the specific situation will . . . arise where I will be in 

conflict. But as I said, . . . if I make an oath, say I will set that aside, that will be 

my primary responsibility.‖ 

During a break, the court expressed its ―ongoing concern about this juror‘s 

potential conflict . . . whether or not he can honestly make the commitment to 

follow the law regardless of a possible conflict.‖ The court encouraged the 

prosecutor to question the prospective juror on this issue. The prosecutor asked 

A.J. about his views on the death penalty and A.J. stated that he ―could apply it as 

a juror‖ and affirmed that he had no concerns about it in relation to his conscience 

or his moral beliefs. 

The prosecutor later explained the felony-murder rule and provided a 

hypothetical in which two former employees of a grocery store burned the store 

down at night, hoping that no one would be working at that time. One supplied 
13

the gasoline and drove the two to the store, and the other lit the fire. The 

prosecutor asked whether A.J. could follow the law that both would be liable for 

murder. A.J. responded that he could not, because in the hypothetical there was 

―no intention to kill.‖ A.J. promptly clarified, however, that if he had been sworn 

in as a juror to follow the law, he would do so ―regardless of what my conscience 

says.‖ He explained that he did not agree with the law in the hypothetical 

described by the prosecutor, but if sworn in as a juror he would ―follow the law as 

explained to me by the court.‖ When further pressed by the prosecutor about 

whether he could follow the law that the man who drove the car in the scenario 

would be liable for murder ―even though he had no intention to kill and he was not 

the actual killer,‖ A.J. stated that he would follow the law but ―I prefer not to be in 

that situation. . . . But if I place myself in that situation and I said to the court, yes, 

you swear me in, I will follow the law.‖ 

The prosecutor then explained that the person in the hypothetical who 

drove the car could be liable for a special circumstance ―if the jury finds that he 

acted as a major participant and with a reckless indifference to human life.‖ The 

prosecutor asked whether A.J. could follow the law making that person guilty of 

the special circumstance. His initial answer was ―no.‖ The trial court interrupted 

and explained that although the facts of the hypothetical were not those of the 

present case, he should assume that they might equally put him in a situation in 

which the law was in conflict with his conscience. The court asked whether he 

could take the oath. A.J. responded, ―I am telling you that if I was sworn to 

uphold the law as stated to me, I would do so.‖ In response to another question, he 

reiterated that if he was a juror and ―I had taken an oath to uphold the law as stated 

to me, I would do so.‖ He added, however, referring to the discussion about the 

prosecutor‘s hypothetical, ―I would very much prefer not to be in that situation 

because of the extreme conflict that would occur.‖ 
14

The prosecutor challenged A.J. for cause. Defense counsel disagreed, and 

opined that the prosecutor‘s hypothetical was misleading. The trial court excused 

Prospective Juror A.J. for cause. The court stated that it had ―more than a definite 

impression‖ that the juror would be unable to apply the law if his views conflicted 

with it. The court noted that although the prosecutor‘s hypothetical did not reflect 

the circumstances of the present case, ―a key circumstance which could 

conceivably be before this juror is somebody who is being considered for 

punishment by the jury who did not preplan and did not intend to murder and who 

was convicted under the felony-murder rule, and I think this juror has an extreme 

conflict in that area, and I also have a definite impression that in spite of what he 

said, this juror would have difficulty and probably be unable in any case of a 

serious conflict between his personal views and the law to faithfully follow the 

law.‖ 

A capital defendant‘s Sixth and Fourteenth Amendment right to an 

impartial jury prohibits the exclusion of prospective jurors ―simply because they 

voiced general objections to the death penalty or expressed conscientious or 

religious scruples against its infliction.‖ (Witherspoon v. Illinois (1968) 391 U.S. 

510, 522.) A prospective juror may be excused from serving in a capital case, 

however, if his views on the death penalty would ―  ̳prevent or substantially 

impair‘ ‖ the performance of his duties as a juror. (Wainwright v. Witt (1985) 469 

U.S. 412, 424 (Witt).) ―A prospective juror who would invariably vote either for 

or against the death penalty because of one or more circumstances likely to be 

present in the case being tried, without regard to the strength of aggravating and 

mitigating circumstances, is . . . subject to challenge for cause, whether or not the 

circumstance that would be determinative for that juror has been alleged in the 

charging document.‖ (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005; see 

People v. Livaditis (1992) 2 Cal.4th 759, 772 [juror who was unwilling to impose 
15

the death penalty on a defendant who was young and had not previously killed was 

properly excused]; People v. Pinholster (1992) 1 Cal.4th 865, 916-918 [trial court 

properly excused prospective jurors who could not consider the death penalty in a 

case involving an unplanned killing during a burglary but could consider it in 

other situations, including if the murder were premeditated]; see People v. Fields

(1983) 35 Cal.3d 329, 357-358 [court may exclude jurors who would 

automatically vote against the death penalty in the case before them, even if they 

were willing to consider the death penalty in other cases].) ―  ̳ ―[O]n appeal, we 

will uphold the trial court‘s ruling if it is fairly supported by the record, accepting 

as binding the trial court‘s determination as to the prospective juror‘s true state of 

mind when the prospective juror has made statements that are conflicting or 

ambiguous.‖ ‘ ‖ (People v. Jenkins (2000) 22 Cal.4th 900, 987.)3

We have held that a prospective juror‘s statements that he or she would 

have a ―  ̳hard time‘ ‖ voting for death or would find it ―  ̳very difficult‘ ‖ to do so 

―indicate a degree of equivocation on the juror‘s part which, taken into account 

with the juror‘s hesitancy, vocal inflection, and demeanor, can justify a trial 

court‘s‖ excusal of the juror under the Witt standard. (People v. Roldan (2005) 35 

Cal.4th 646, 697.) Here, substantial evidence supports the trial court‘s conclusion 

that A.J. would have difficulty following the law if faced with deciding the 

punishment for a defendant convicted of felony murder who did not intend to kill. 

Beginning with the questionnaire, A.J. consistently expressed concern about his 

ability to follow the law if it conflicted with his moral views. Voir dire revealed 

 

3 We have previously rejected defendant‘s argument, based on Greene v. 

Georgia (1996) 519 U.S. 145, that we need not give deference to the trial court‘s 

findings related to juror bias, concluding that California law on this point is 

settled. (People v. Farnam (2002) 28 Cal.4th 107, 132.) 
16

that his personal views were in ―extreme conflict‖ with the law making a felony 

murderer guilty of first degree murder and eligible for the death penalty even if he 

did not intend to kill. Although A.J. insisted that he would follow his oath as a 

juror if sworn, he stated that he preferred not being placed in the position of 

having to do so. The trial court noted that it had the ―definite impression‖ that 

A.J. would be conflicted despite his promise to follow the law. Under these 

circumstances, we defer to the trial court‘s conclusion that he would be unable to 

follow the law if it seriously conflicted with his views. 

B. Excusal for cause of Prospective Juror J.W.

Defendant similarly argues that his death sentence must be reversed 

because Prospective Juror J.W. was erroneously excused for cause. The trial court 

excused J.W., over objection by defense counsel, because it concluded he would 

not be able to fairly consider the death penalty in a case in which the defendant did 

not intend to kill. Defendant contends the trial court erred because the juror‘s 

answers indicated that his views were consistent with the law. We disagree. 

In his questionnaire, J.W. responded to the question about what he would 

do if the law differed from his beliefs or opinions by writing, ―The law has to be.‖ 

Although he indicated he did not always agree with the law, he wrote: ―The law is 

not always right. But it is the law.‖ He did not have strong feelings about the 

death penalty; he did not like it, ―[b]ut it has[] to be.‖ He wrote that he could 

follow the court‘s instructions regarding the factors to be considered in deciding 

between a sentence of death and life without the possibility of parole, and that he 

could set aside his personal feelings about what the law should be and follow the 

law as the court explained it. 

The trial court began voir dire by questioning J.W. about his attitudes 

regarding the death penalty and life without the possibility of parole. J.W.
17

affirmed that if the law and facts justified it, he would be capable of voting for 

either punishment. He felt that life imprisonment was the more severe 

punishment, but could accept that the law regarded death as the more severe 

punishment. He affirmed that if his personal views conflicted with the law, he 

could follow the law. 

In response to questioning from the prosecutor, J.W. stated that he would 

favor life in prison over death for most people but he would apply the law. He 

was sure that he could ―make . . . a proper decision.‖ The prosecutor explained the 

felony-murder rule, including the same hypothetical she had used previously with 

Prospective Juror A.J. regarding two accomplices who commit arson of a store at 

night (―thinking, hoping, praying nobody‘s there‖), resulting in the death of a clerk 

who was working late. J.W. agreed that both people in the hypothetical — the one 

who drove the car and the one who set the fire — were equally responsible for the 

death even though they did not intend the person to die, but stated that in that 

scenario, ―I would go for life in prison without parole.‖ He explained that had 

they known the clerk was there, however, ―that would be a different circumstance 

and that might be a death sentence.‖ He affirmed that he could follow the law that 

makes a person guilty of murder ―even though they didn‘t have any intention to 

kill and they were not the actual killer.‖ 

The prosecutor then explained that a person could be eligible for the death 

penalty ―even though they‘re not the actual killer and they had no intention to 

kill,‖ if they ―act as a major participant in an underlying felony and they act with a 

reckless indifference to human life.‖ When asked whether his personal beliefs 

would prevent him from being able to ―seriously consider the death penalty in that 

situation,‖ J.W. responded ―I‘m sure I could follow the law.‖ The prosecutor then 

asked whether J.W. would have a ―hard time giving serious consideration to the 

death penalty in that situation.‖ J.W. stated that ―if a person accidentally killed 
18

somebody, it would be hard to give them the death penalty. If a person 

deliberately killed somebody, then it‘s a different scenario.‖ When the prosecutor 

asked again whether J.W. could really set aside his moral principles, he responded,

―I would do it. . . . I know, that‘s a hard one. I would do it.‖ 

The prosecutor continued to pursue the point, asking, ―In the situation 

where someone doesn‘t have any intention to kill, do you feel that you could 

seriously consider the death penalty?‖ J.W. responded, ―If a person flat had no 

intention to kill . . . it would be hard to give them the death penalty. I don‘t know 

that I would, but I don‘t know that I wouldn‘t.‖ J.W. then attempted to explain his 

position with a hypothetical. ―[I]f someone was robbing a bank and they had a 

gun and a guard pulled his gun out and he shot the guard, that‘s intentionally 

killing him. If somebody was robbing a bank and somebody had a heart attack —

and I believe under the law, he‘s in for murder there. No, that — that wasn‘t an 

intentional killing. . . . That would be the life in prison instead of the death 

penalty.‖ The prosecutor then asked whether J.W. felt it necessary to have an 

intent to kill in order to receive the death penalty. J.W. responded, ―Yes, I do. I 

may not have noticed that when I came in here, but now that we‘ve talked.‖ He 

affirmed that it would be hard for him to personally vote for the death penalty if 

there was no intention to kill, and then clarified, ―If there was no intention [to] kill, 

then I don‘t think that a person should have the death penalty.‖ 

The prosecutor rephrased the question, asking whether J.W. could not 

impose the death penalty unless the defendant intentionally killed the victim, even 

if the defendant had been convicted of first degree murder and a special 

circumstance. J.W. then questioned whether a person could be convicted of first 

degree murder if the person had not intentionally killed, stating that he did not 

know the law. The trial court interjected, explaining that ―somebody can be 

convicted of first degree special circumstance murder even though that person did 
19

not personally kill the victim and even though that person did not have an intent to 

kill.‖ The court stated that it could not go into the specifics of this case, but 

―[w]e‘re talking in a hypothetical case [the prosecutor] gave you.‖ ―But the law 

says that persons can be convicted of a first degree special circumstance murder 

such that the jury would be called upon to decide which of those two punishments, 

death or life without parole, was appropriate in a case where the defendant did not 

have the intent to kill anybody. If a person was killed, for example, in the course 

of one of the special — specified felonies, it was a felony-murder rule, and all the 

other criteria that the attorneys have mentioned. That‘s the law.‖ The court then 

asked whether J.W. could follow the law and whether he could honestly consider 

all the circumstances in aggravation and mitigation before he decided the penalty. 

J.W. responded, ―no, my mind would not be made up that I would not vote for the 

death penalty.‖ 

The court then rephrased the question, asking whether there was ―some 

absolute requirement, factually, regarding an intent to kill before you would ever 

vote for the death penalty, no matter what the other evidence was?‖ J.W.

responded, ―Let me put it this way? If I — I thought that a person never 

intentionally killed somebody, I would have trouble voting for the death penalty, 

yes.‖ The court again rephrased the question, asking whether he would ―have 

trouble giving any serious consideration‖ to the penalty phase evidence, ―you kind 

of have your mind made up already?‖ J.W. responded, ―If he didn‘t deliberately 

kill somebody or she, then I would have trouble giving the death sentence. If they 

killed somebody, breaking the law or whatever, you know, and it was an accident 

or whatnot, no, then they go to jail for the rest of their life or whatever.‖ 

The prosecutor challenged J.W. for cause. Defense counsel responded that 

the questioning did not explain the requirement of major participation in the felony 

and an indifference to human life, and the juror did not really understand that law. 
20

Defense counsel observed that the prospective juror‘s hypothetical demonstrated 

that he was thinking about an accident, someone who had a heart attack during a 

bank robbery. Accordingly, defense counsel argued, the juror was confused and 

did not have the whole picture

The court stated it was ready to rule, and granted the challenge to exclude 

for cause. The court stated that J.W. had ―a predisposition to favor life without 

possibility of parole and to reject the death penalty such that . . . he would 

basically be precluded or, at the very least, appreciably impeded from engaging in 

the weighing process that the law requires in the second phase.‖ The court 

thought that ―this juror, ultimately, after all examination, understood that under the 

law, somebody could be convicted of first degree murder and eligible for 

consideration for the death penalty without an intent to kill, felony-murder rule 

was explained, both sides had the opportunity to do that. And I think this juror 

made it as clear as he could that if there was not an intent to kill, or a deliberate 

killing, he wouldn‘t be able to vote for the death penalty or there was no 

reasonable possibility of that.‖ 

As noted above, even if a prospective juror could fairly consider imposing 

the death penalty in some types of cases, one ―who would invariably vote either 

for or against the death penalty because of one or more circumstances likely to be 

present in the case being tried, without regard to the strength of aggravating and

mitigating circumstances, is . . . subject to challenge for cause.‖ (People v. 

Kirkpatrick (1994) 7 Cal.4th 988, 1005.) ―  ̳ ―[O]n appeal, we will uphold the trial 

court‘s ruling if it is fairly supported by the record, accepting as binding the trial 

court‘s determination as to the prospective juror‘s true state of mind when the 

prospective juror has made statements that are conflicting or ambiguous.‖ ‘ ‖ 

(People v. Jenkins, supra, 22 Cal.4th at p. 987.) ―If there is no inconsistency . . . 

we will not set aside the court‘s determination if it is supported by substantial 
21

evidence and hence is not clearly erroneous.‖ (People v. Cooper (1991) 53 Cal.3d 

771, 809.)

J.W.‘s statements regarding his ability to consider a death sentence for 

someone who did not intend to kill were conflicting. J.W. stated that he would 

have trouble voting for the death penalty if the person did not intend to kill. After 

the prosecutor explained the law that makes a person eligible for the death penalty 

―even though they‘re not the actual killer and they had no intention to kill,‖ so 

long as the person acted ―as a major participant in an underlying felony and . . . 

with a reckless indifference to human life,‖ J.W. stated clearly that he would be 

able to follow the law. However, he then indicated that ―If a person flat had no 

intention to kill . . . it would be hard to give them the death penalty.‖ J.W.

affirmed that he felt it was necessary to have an intent to kill in order to receive 

the death penalty. When the judge rephrased the question, he stated that his mind 

would not be made up against the death penalty. Yet when the judge asked him 

whether there was ―some absolute requirement‖ of an intent to kill before he could 

impose the death penalty, J.W. repeated, ―If he didn‘t deliberately kill somebody 

or she, then I would have trouble giving the death sentence.‖ Because Prospective 

Juror J.W.‘s statements were conflicting and ambiguous, we must accept the trial 

court‘s determination regarding his true state of mind. (See People v. Jenkins, 

supra, 22 Cal.4th at p. 987.)

Defendant contends that J.W.‘s answers were not conflicting and his views 

were consistent with the law. Only one of the questions he was asked specifically 

mentioned a defendant who did not intend to kill but who also exhibited a reckless 

disregard for life. In response to that question, he stated that he could follow the 

law. The other questions he was asked referred to a defendant who did not intend 

to kill, but said nothing about a reckless disregard for life. Thus, defendant argues, 

J.W.‘s statements that he would have difficulty imposing a death sentence on a 
22

defendant who did not intend to kill do not indicate he would have the same 

difficulty with a defendant who acted with reckless disregard for life. This 

conclusion is further supported, defendant contends, by the circumstance that J.W.

consistently explained that his difficulty was with imposing the death penalty for 

an ―accidental‖ killing, demonstrating that he did not understand the questions 

concerning an unintentional killing to include a killing committed with ―reckless 

disregard for life.‖

Defendant‘s interpretation of J.W.‘s remarks is one reasonable 

interpretation of the record. It is not, however, the only reasonable interpretation 

of the record, and ―the question is not whether a reviewing court might disagree 

with the trial court‘s findings, but whether those findings are fairly supported by 

the record.‖ (Witt, supra, 469 U.S. at p. 434.) The trial court could fairly 

conclude, taking into account not only J.W.‘s words but also his demeanor, that 

his references to accidental killings were just one example of the circumstances in 

which he would have difficulty imposing the death penalty. And because J.W. had 

been informed about the ―reckless indifference to life‖ requirement, the trial court 

could fairly conclude that he understood the law and could interpret his continued 

statements that he would have a problem imposing the death penalty for an 

unintentional killing to encompass killings that were committed with a reckless 

disregard for life. 

C. Trial court’s refusal to impanel separate juries for the guilt and 

penalty phases

Defendant contends the trial court erred in refusing to impanel separate 

juries for the guilt and penalty phases. In support of his motion for separate juries, 

defendant presented a transcript of the testimony of Professor Edward Bronson, of 

Chico State University, in another case. Professor Bronson testified that the 

process of death qualification is prejudicial to a defendant in two ways. First, the 
23

remaining jurors who are not eliminated tend to be less supportive of due process 

values than those who were eliminated. Second, the process of death 

qualification, by focusing on the death penalty and asking jurors to put themselves 

in the position of having found defendant to be guilty, suggests to jurors that the 

defendant is guilty and that their duty is to find him guilty, and it may also 

desensitize them to their task. According to Professor Bronson, sequestered voir 

dire would ―to some extent, minimize or mitigate those effects,‖ but would not 

eliminate them. The trial court denied defendant‘s motion, concluding that much

of the potential prejudice resulting from death qualification could be avoided if the 

court used individual, sequestered voir dire and if the court and counsel were 

careful to impress upon the potential jurors that defendant‘s guilt was not a 

foregone conclusion. 

Section 190.4, subdivision (c), requires the same jury to decide guilt and 

penalty absent good cause. We review the trial court‘s decision for abuse of 

discretion. (People v. Bivert (2011) 52 Cal.4th 96, 108.) Dr. Bronson‘s testimony 

supported only the conclusion that death-qualified juries in general tend to be 

more likely to convict. ―This court and the United States Supreme Court have 

repeatedly rejected the claim that separate juries are required because jurors who 

survive the jury selection process in death penalty cases are more likely to convict 

a defendant.‖ (People v. Davis (2009) 46 Cal.4th 539, 626; see Lockhart v. 

McCree (1986) 476 U.S. 162; Hovey v. Superior Court (1980) 28 Cal.3d 1, 68-

69.) Nothing in Dr. Bronson‘s testimony or the studies he cited provided any 

information significantly different from that which was considered in our previous 

decisions. Indeed, Dr. Bronson testified that studies undertaken after Lockhart and 

Hovey reached conclusions similar to those of the studies addressed in those cases

and he was not able to cite any significant new developments in the research. 

Thus, Dr. Bronson‘s testimony provided no basis for the trial court to depart from 
24

the holdings in these prior cases. Defendant offered no evidence to establish good 

cause for a separate penalty jury based on the particular circumstances of this case. 

The trial court took steps to reduce any prejudice to defendant that might result 

from the jury selection process, including conducting individual, sequestered voir 

dire. We find no abuse of discretion. 

D. Exclusion of Morris’s alleged statements against interest

As noted above, witness Misty Abbott testified that Morris told her he

killed the victim, first attempting to strangle her and then, because she did not die, 

taking a knife from the kitchen and stabbing her. This statement was admitted as a 

declaration against Morris‘s penal interest. (Evid. Code, § 1230.) The defense 

also sought to admit additional statements by Morris as declarations against 

interest: (1) testimony by Misty Abbott that Morris told her defendant did not take 

part in the killing and that after he ―did the lady‖ defendant and Wilson ―looked at 

[Morris] as if they were saying, what in the hell are you doing, dude‖; and (2) 

testimony by Albert Lawson that while he was incarcerated in the county jail, 

Morris told him that defendant and Wilson were ―in the house but took no part in 

the actual killing.‖ The trial court ruled that these statements were inadmissible 

hearsay because they did not qualify as declarations against interest under 

Evidence Code section 1230. Defendant contends that the trial court erred in 

excluding these statements and that the trial court‘s ruling violated his Fifth 

Amendment right to a fair trial, his Sixth Amendment right to present a defense, 

and the Eighth Amendment‘s requirement of reliable procedures in death penalty 

cases. (Crane v. Kentucky (1986) 476 U.S. 683; Chambers v. Mississippi (1973) 

410 U.S. 284, 302.)
25

1. Applicable legal principles

There is an exception to the rule excluding hearsay for a statement against 

interest — that is, one that ―when made, was so far contrary to the declarant‘s 

pecuniary or proprietary interest, or so far subjected him to the risk of civil or 

criminal liability, or so far tended to render invalid a claim by him against another, 

or created such a risk of making him an object of hatred, ridicule, or social 

disgrace in the community, that a reasonable man in his position would not have 

made the statement unless he believed it to be true.‖ (Evid. Code, § 1230.) This 

exception to the hearsay rule is ―founded on the assumption that a person is 

unlikely to fabricate a statement against his own interest at the time it is made.‖ 

(Chambers v. Mississippi, supra, 410 U.S. at p. 299.) ―The proponent of such 

evidence must show that the declarant is unavailable, that the declaration was 

against the declarant‘s penal interest when made and that the declaration was 

sufficiently reliable to warrant admission despite its hearsay character.‖ (People v. 

Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).) 

We review a trial court‘s ruling as to whether a statement is admissible as 

against a declarant‘s penal interest for abuse of discretion. (People v. Lawley

(2002) 27 Cal.4th 102, 153 (Lawley).) ―In determining whether a statement is 

truly against interest within the meaning of Evidence Code section 1230, and 

hence is sufficiently trustworthy to be admissible, the court may take into account 

not just the words but the circumstances under which they were uttered, the 

possible motivation of the declarant, and the declarant‘s relationship to the 

defendant.‖ (People v. Frierson (1991) 53 Cal.3d 730, 745 [trial court did not 

abuse its discretion in excluding statement of third party that he had killed the 

victim, where the statement was made 14 years after the murder and before 

defendant‘s retrial on special circumstances and penalty, the declarant knew there 

had been a prior verdict finding that defendant was the killer, and the trial ―court 
26

could reasonably find [the declarant] wanted to aid his friend at little risk to 

himself‖].) 

Evidence Code section 1230‘s exception to the hearsay rule is ―inapplicable 

to evidence of any statement or portion of a statement not itself specifically 

disserving to the interests of the declarant.‖ (People v. Leach (1975) 15 Cal.3d 

419, 441.) Even when the declarant admits culpability for a crime, those portions 

of the declarant‘s statements that do not incriminate the declarant are inadmissible. 

For example, in Lawley, supra, 27 Cal.4th at page 154, we concluded that portions 

of a declarant‘s hearsay statement that did not specifically incriminate the 

declarant were inadmissible. In that case, the defendant was convicted of murder 

based on evidence that he hired one Seaborn to kill the victim. We held that the 

trial court did not err in admitting Seaborn‘s hearsay statement that he was hired to 

and did kill the victim, while excluding his hearsay statements that he had been 

hired by the Aryan Brotherhood and that an innocent man was in jail for the crime. 

The latter two statements, we observed, did not specifically disserve Seaborn‘s 

interests. 

Whether or not a statement is against penal interest can be determined only 

by considering the statement in context. (Lawley, supra, 27 Cal.4th at p. 153.) 

There are some circumstances in which a declarant‘s statement that fully or 

partially exculpates the defendant while placing the greater part of the blame on 

the declarant have been held to be sufficiently against the declarant‘s interests to 

be admissible. In United States v. Paguio (9th Cir. 1997) 114 F.3d 928 (Paguio), 

the defendants were a husband and wife who were charged with making false 

statements on a loan application. (Id. at p. 929.) The defendants‘ lawyer and his 

paralegal offered to testify concerning statements made by the husband‘s father,

who was a fugitive at the time of trial. (Id. at p. 931.) They would have testified 

that the husband‘s father stated that ―  ̳he was the one who was involved with 
27

creating the false W-2‘s. He said his son had nothing to do with that.‘ ‖ (Id. at 

p. 931, fn. 1.) The appellate court held that the trial court erred in excluding the 

evidence as not sufficiently against interest: ―In context, the father‘s statement 

that his son had nothing to do with it was inculpatory of the father as well as 

exculpatory of the son. The father admitted not only participation but leadership, 

leading his son and daughter-in-law into the abyss. Because leading others into 

wrongdoing has always been seen as especially bad, there is a sentencing 

enhancement for it. [Citation.] Also, in context, the inculpating and exculpating 

statements were not practically separable.‖ (Id. at pp. 933-934; see United States 

v. Lopez (10th Cir. 1985) 777 F.2d 543, 554 [trial court erred in excluding hearsay 

statements of a passenger in a vehicle that he alone had placed cocaine into the 

vehicle and that the defendant was not aware of the drugs prior to transporting 

them].) 

In Lawley, we distinguished Paguio in a footnote, noting that in Lawley, 

―the reference to some unidentified  ̳innocent man‘ being in jail for the murder did 

not further incriminate [the declarant].‖ (Lawley, supra, 27 Cal.4th at p. 155, fn. 

21.) The question, then, is whether portions of a declarant‘s statements 

exonerating the defendant further incriminate the declarant; that is, whether they 

are ―specifically disserving to the interests of the declarant.‖ (People v. Leach, 

supra, 15 Cal.3d at p. 441.) 

In excluding the proffered hearsay, the trial court reasoned that ―if 

somebody is confessing to a murder and to personally being the one who stabbed 

someone, that it does not in any way significantly enhance the personal detriment 

to the confessor if he says nobody else had any part in it. . . . [T]he fact that the 

others did or did not assist him isn‘t going to diminish his exposure, his public 

ridicule, et cetera.‖ The trial court found People v. Gatlin (1989) 209 Cal.App.3d 

31 (Gatlin) to be controlling. 
28

The trial court may have been incorrect in its categorical statement that a 

declarant who has admitted to murder does not enhance his personal culpability by 

claiming that he acted alone. It is plausible that under some circumstances, as 

defendant contends, such statements may subject the declarant to a risk of 

increased criminal liability by establishing aggravating circumstances of the crime 

under section 190.3, factor (a), which would make the declarant more deserving of 

the death penalty. (See People v. Carpenter (1997) 15 Cal.4th 312, 414-415 [that 

defendant acted alone could be considered by jury as a circumstance of the crime 

in determining penalty]; People v. Howard (1992) 1 Cal.4th 1132, 1195 

[defendant‘s role as the actual killer and motivating force behind the crime was a 

factor aggravating his culpability].) 

Although the trial court relied on Gatlin, supra, 209 Cal.App.3d 31, that 

case is not on point. In Gatlin, the defendant was charged with burglary and

sought to offer recordings of statements made by three codefendants. The 

codefendants claimed the defendant ―had nothing to do with [it].‖ (Id. at p. 44.) 

However, the codefendants made these statements while disclaiming their own 

involvement. (Ibid.) The Court of Appeal held that the exculpation of the 

defendant was ―not specifically disserving‖ (ibid.) and that the defendant‘s 

argument ignored the declarants‘ ―self-serving‖ (id. at p. 43) denials of culpability. 

Thus, in Gatlin, the declarants‘ exoneration of the defendant clearly did not 

suggest that the declarants were more culpable. Here, in contrast, Morris‘s 

statements were made during a conversation in which he admitted that he 

personally murdered the victim by choking and stabbing her. 

Nevertheless, ―we review the 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.) Below, we apply these principles separately to the portion of the 
29

proffered statements by Morris describing defendant‘s reaction to the killing and 

those portions asserting that defendant did not take part in the killing. 

2. Statement regarding defendant’s reaction to the killing

We conclude that the trial court did not abuse its discretion in excluding the 

portion of Misty Abbott‘s proposed testimony that Morris told her that after he 

killed Bone, defendant and Wilson looked at him ―as if they were saying, what in 

the hell are you doing, dude.‖ It was defendant‘s burden to establish that Morris‘s 

statement describing defendant‘s reaction to the killing ―when made, . . . so far 

subjected [Morris] to the risk of civil or criminal liability . . . that a reasonable 

man in his position would not have made the statement unless he believed it to be 

true.‖ (Evid. Code, § 1230; see Duarte, supra, 24 Cal.4th at pp. 610-611.) 

Defendant contends this portion of Morris‘s statement qualifies as a 

statement against interest because it meant that defendant was surprised that

Morris killed the victim and thus that Morris alone made the decision to kill, a 

circumstance of the crime that could have aggravated Morris‘s potential sentence. 

The statement, however, was not necessarily against Morris‘s interest when made 

because its significance was unclear. Morris‘s description of defendant‘s look as 

signifying ―what in the hell are you doing‖ suggests that Morris thought defendant 

was surprised or alarmed, but not why he was surprised or alarmed. Defendant 

might have reacted as described by Morris for any number of reasons — for 

example, because of the manner in which Morris killed the victim or because of 

the extreme efforts (both strangling and stabbing) he had taken to kill the victim. 

If defendant‘s reaction was due to the circumstances, and not the fact, of the 

killing, the statement did not imply that defendant was unaware that Morris was 

going to kill the victim or that defendant was not involved in the decision to kill. 

If so, it did not further incriminate Morris, who had described the circumstances of 
30

the crime to Misty, telling her that he had personally choked and stabbed the 

victim.

In light of defendant‘s own statements to police, defendant‘s theory that the 

reaction described by Morris meant that defendant was surprised at the fact that 

Morris had killed the victim is an unlikely interpretation. Defendant told the 

police that he had observed Morris strangling Bone and heard Morris say that she 

―won‘t die.‖ Later he saw Morris looking for a knife in the kitchen and then saw 

or heard him stabbing Bone. Under these circumstances, he could not have been 

surprised at the fact that Morris had killed Bone. Because Morris‘s proffered 

statement was vague and subject to reasonable interpretations that did not further 

incriminate Morris, the trial court did not abuse its discretion in concluding that 

defendant failed to establish that the statement was one that ―a reasonable man in 

[Morris‘s] position would not have made . . . unless he believed it to be true.‖ 

(Evid. Code, § 1230.)

3. Statements that defendant did not participate in the killing

Whether the proffered testimony that defendant did not participate in the 

actual killing should have been admitted presents a closer question. On the one 

hand, as defendant contends, we have recognized that a defendant‘s role as the 

actual killer and motivating force behind a murder can be an aggravating factor.

(People v. Howard, supra, 1 Cal.4th at p. 1195.) Statements indicating that the 

declarant was the sole killer could subject the declarant to a risk of increased 

criminal liability by establishing aggravating circumstances of the crime. On the 

other hand, given that Morris had admitted that he was the actual killer, and had 

personally choked and stabbed the victim to death, it is not clear that his 

statements that defendant was in another part of the house and ―took no part in the 

actual killing‖ further incriminated Morris to such an extent that a reasonable 

person in his position would not have made the statements unless they were true. 
31

However, we need not decide whether the trial court erred, or whether any such 

error violated defendant‘s constitutional rights, because, as explained below, we 

conclude that the exclusion of Morris‘s statements regarding defendant‘s lack of 

participation in the killing was harmless beyond a reasonable doubt. 

4. Attorney General’s failure to timely brief the harmless error issue

The Attorney General did not argue, in her answer brief, that any error in 

the exclusion of Morris‘s hearsay statements was harmless. The issue was 

discussed at oral argument, after which we gave both parties the opportunity to 

brief the issue of harmless error. In addition, although defendant did not argue in 

his reply brief that the Attorney General had forfeited the harmless error issue by 

failing to brief it, we also gave both parties the opportunity to address the question 

of forfeiture. We conclude that the Attorney General‘s failure to respond to 

defendant‘s harmless error argument does not relieve this court of its 

responsibility to determine whether any error was harmless. 

A forfeiture is the loss of a right by the failure to make a timely assertion of 

it. (Cowan v. Superior Court (1996) 14 Cal.4th 367, 371.) When an appellant 

fails to raise an issue in the opening brief, raising it for the first time in a reply 

brief or at oral argument, we generally decline to address the issue or address it in 

a summary manner. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9 [claim 

of ineffective assistance of counsel raised by defendant for the first time in reply 

brief is forfeited]; People v. Harris (2008) 43 Cal.4th 1269, 1290 [defendant‘s 

claim of ineffective assistance of counsel for failure to object to prosecutor‘s 

argument, made for the first time in his reply brief in response to the Attorney 

General‘s waiver argument, ―is as meritless as it is belated‖]; People v. Alvarez 

(1996) 14 Cal.4th 155, 241, fn. 38 [―  ̳perfunctorily‘ ‖ rejecting defendant‘s claim 

of ineffective assistance of counsel, made for the first time in his reply brief and in 

a single paragraph]; People v. Crow (1993) 6 Cal.4th 952, 960, fn. 7 [declining to 
32

address issue raised by defendant for the first time at oral argument]; Varjabedian 

v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [for reasons of fairness, court 

would not consider issue raised by defendant for the first time in its reply brief]; 

see also People v. Barragan (2004) 32 Cal.4th 236, 254, fn. 5 [declining to 

address an argument that the People, as petitioners in this court, raised for the first 

time in their reply brief].) To allow an appellant to raise a new issue in its reply 

brief or at oral argument, ―would be unfair to the respondent, and would increase 

the labors of the court.‖ (Webber v. Clarke (1887) 74 Cal. 11, 13.) 

A respondent‘s failure to address an argument raised by an appellant may, 

under some circumstances, be interpreted as a concession. (See People v. Bouzas

(1991) 53 Cal.3d 467, 480, [stating that the People ―apparently concede‖ a point 

made by the defendant to which they did not respond, either in briefing or in oral 

argument].) We do not, however, invariably interpret the failure to respond to an 

argument as a concession or a forfeiture. In People v. Hill (1992) 3 Cal.4th 959, 

―[w]e decline[d] to find a [forfeiture] based on nothing more than respondent‘s 

failure to respond to defendant‘s . . . argument, which was itself raised for the first 

time on appeal. Such a rule would require a party to respond to his opponent‘s 

every argument, subargument, and allegation, no matter how meritless or briefly 

made.‖ (Id. at p. 995, fn. 3; see Canaan v. Abdelnour (1985) 40 Cal.3d 703, 722, 

fn. 17 [court exercised discretion to address point that respondent raised for the 

first time at oral argument, because ―the point is but one aspect of the larger 

constitutional question‖], overruled on other grounds in Edelstein v. City and 

County of San Francisco (2002) 29 Cal.4th 164, 168.) 

Regardless, we have long recognized that, provided the parties have had a 

fair opportunity to address the issues, ―[t]his court . . . is undoubtedly at liberty to 

decide a case upon any points that its proper disposition may seem to require, 

whether taken by counsel or not . . . .‖ (Hibernia Sav. and Loan Soc. v. Farnham
33

(1908) 153 Cal. 578, 584.) A reviewing court‘s authority to decide issues not 

initially raised or briefed by the parties is recognized in Government Code section 

68081, which requires that, before doing so, ―the court shall afford the parties an 

opportunity to present their views on the matter through supplemental briefing.‖ 

(Gov. Code, § 68081.) ―An appellate court is generally not prohibited from 

reaching a question that has not been preserved for review by a party.‖ (People v. 

Williams (1998) 17 Cal.4th 148, 161, fn. 6.) In most instances, ―[w]hether or not 

it should do so is entrusted to its discretion.‖ (Ibid.)

In this instance, however, we do not have discretion to decline to address 

whether any error was harmless based on the Attorney General‘s failure to brief 

the issue in a timely manner. We are prohibited by the state Constitution from 

reversing a judgment unless, ―after an examination of the entire cause, including 

the evidence, the court shall be of the opinion that the error complained of has 

resulted in a miscarriage of justice.‖ (Cal. Const., art. VI, § 13.) The Attorney 

General‘s failure does not relieve this court of its constitutional responsibility to 

determine whether any error resulted in a miscarriage of justice. 

Defendant agrees that, regarding state law error, the state Constitution 

requires us to conduct harmless error analysis, and argues in this respect only that 

he should be given adequate notice of the Attorney General‘s position and an 

opportunity to respond to it. Ample notice and opportunity to respond were 

provided in the present case, through both supplemental briefing and oral 

argument. 

Regarding errors of federal constitutional dimension, however, defendant 

argues that because the beneficiary of federal constitutional error has the burden of 

showing that the error was harmless beyond a reasonable doubt (Chapman v. 

California, supra, 386 U.S. at p. 24), we should adopt the approach that federal 

courts use when the government fails to argue that an error is harmless: the issue 
34

is generally considered forfeited, but the court may exercise its discretion to 

overlook the forfeiture, considering (1) the length and complexity of the record, 

(2) whether harmlessness is certain or debatable, and (3) the futility and costliness 

of further proceedings in the trial court. (United States v. Giovanetti (1991) 928 

F.2d 225, 226-227.) 

Although we must apply the federal standard of harmless error in 

determining whether such a miscarriage has occurred (Chapman v. California, 

supra, 386 U.S. at p. 21), the forfeiture rules employed in the federal courts are not 

binding on this court. None of the federal cases cited by defendant suggest that 

the forfeiture rules they apply are mandated by the federal Constitution. (See 

United States v. Gonzalez-Flores (9th Cir. 2005) 418 F.3d 1093, 1100 

[government‘s failure to argue nonconstitutional error was harmless usually 

waives the issue, unless harmlessness is clear beyond any serious debate]; United 

States v. Davis (3d Cir. 2013) 726 F.3d 434, 445, fn. 8 [applying same rule]; 

United States v. Cacho-Bonilla (1st Cir. 2005) 404 F.3d 84, 90 [noting that 

because the government made no harmless error argument, defendants had no 

chance to respond to any harmless error claim]; Hargrave v. McKee (6th Cir. 

2007) 248 Fed.Appx. 718, 729 [concluding that even if the state did not forfeit the 

harmless error argument by failing to raise it until oral argument, the court would 

find the constitutional error not harmless]; United States v. Montgomery (8th Cir.

1996) 100 F.3d 1404, 1407 [stating the government‘s failure to raise harmless 

error in its brief waived the argument on appeal but, exercising its discretion to 

overlook the waiver and review the record on its own motion, court concluded the 

error was not harmless]; United States v. Varela-Rivera (9th Cir. 2002) 279 F.3d 

1174, 1180 [stating the government did not argue that the error was harmless and 

this failure waived the argument]; United States v. Vallejo (9th Cir. 2001) 237 

F.3d 1008, 1026 [same, adding that nevertheless, under the circumstances of the 
35

case the error was not harmless].) Furthermore, most of these courts explicitly 

recognize that they retain discretion to review the record and decide whether any 

error was harmless even when the government fails to make the argument. This 

recognition undermines any contention that the forfeiture rule applied by federal 

courts is constitutionally mandated. 

The state cases cited by defendant in support of his position are similarly 

based on those states‘ own procedural rules and policies, not on federal 

constitutional principles. (See State v. Almaraz (Idaho 2013) 301 P.3d 242, 256-

257 [relying on state case law holding that issues raised for the first time on appeal 

at oral argument are not properly before the court]; Polk v. State (Nev. 2010) 233 

P.3d 357, 359-361 [citing state rule of appellate procedure providing that if a 

respondent fails to adequately respond to an appeal, the court may consider the 

failure to respond as a confession of error].) These cases do not specifically

discuss a failure to address harmless error. In any event, they are not persuasive 

because, as noted above, under the California Constitution, this court may not 

reverse a judgment unless it is convinced that a miscarriage of justice has 

occurred, and we clearly have the authority to address matters not initially raised 

by the parties. (Cal. Const., art. VI, § 13; Gov. Code, § 68081.)

Justice Liu‘s concurring and dissenting opinion argues that we should adopt 

the forfeiture rule used by the federal appellate courts, regardless of whether the 

error is one of state law only or is of federal constitutional dimension. Even if 

such a rule could be reconciled with our constitutional obligation to address 

harmless error ―after an examination of the entire cause, including the evidence‖ 

(Cal. Const., art. VI, § 13), we are not persuaded that we should adopt it. If the 

harmless error issue is a debatable one or the record is complex, we may exercise 

our discretion to seek supplemental briefing and decide the issue with the benefit 

of full briefing from the parties. This approach is fair to the parties and gives the 
36

court the benefit of the parties‘ perspectives on an issue that we are obliged to 

address. The federal approach might avoid delay and save some effort on a 

reviewing court‘s part, but at the potential cost of an incorrect decision, resulting 

in unnecessary relitigation. 

Defendant suggests that if we do not attach some negative consequence to 

the Attorney General‘s failure to brief harmless error, we are unfairly treating the 

state, as a party, more leniently than we treat criminal defendants. We disagree. 

We have occasionally exercised our discretion to permit defendants to file 

supplemental briefs raising new issues in capital appeals. (See, e.g., People v. 

Howard (2010) 51 Cal.4th 15, 26, 30, fn. 6, 33 [addressing on the merits three 

different contentions raised for the first time in a supplemental brief]; People v. 

Carrington (2009) 47 Cal.4th 145, 187, and docket entries, case No. S043628 

[reversing two burglary convictions based on an argument made in defendant‘s 

supplemental brief, which was filed after her reply brief].) Furthermore, because 

our Constitution prohibits reversal of a judgment absent a finding that a 

miscarriage of justice has occurred, a respondent and an appellant are not similarly 

situated. Our obligation to address harmless error despite a respondent‘s default is 

a result of the constitutional mandate and is not based on the party‘s status as 

criminal defendant or the state. 

5. Harmless error analysis

Turning to the merits of the harmless error argument, we conclude that the 

exclusion of Morris‘s statements to Lawson and to Misty Abbott that defendant 

did not participate in the killing does not require reversal of the special 

circumstance finding and the death sentence. The most reasonable interpretation 

of the proffered evidence that defendant did not participate in the killing, and that 

he was in another part of the house and did not participate in the actual killing, 

was that he did not participate in the act of killing. The prosecutor, however,
37

never argued that defendant participated in the act of killing. In order to find the 

special circumstance to be true, the jury needed to find that defendant acted either 

with reckless disregard for life or with the intent to kill. The prosecutor reminded 

the jury, ―There‘s no requirement that he be the actual killer,‖ and she did not 

suggest that he was. As the prosecutor argued, ―The fact the defendant may not 

have killed Betty Bone himself is not of any significance in this case.‖ 

Indeed, the prosecution presented no evidence that defendant had actually 

participated in the homicidal act. Defendant‘s statement to the police indicated 

that he was present in the house while Morris killed Bone but that he did not 

participate in the killing. Misty Abbott‘s testimony concerning Morris‘s 

description of how he killed the victim did not include the involvement of any 

other person. Likewise, defendant‘s out-of-court statement to jailhouse informant 

Howe was that he never personally touched the victim and his DNA would not be 

found on the body. No DNA or other evidence linked defendant to the actual 

killing. Although Morris‘s grandfather testified that Morris had told him that 

others were wrongly blaming him for the murder, that statement was admitted 

only for purposes of impeachment and, in any event, nothing in it suggested that 

defendant assisted Morris in killing Bone. 

The prosecution did present testimony from jailhouse informant Howe that 

defendant admitted he had ordered Morris and Wilson to kill the victim, and 

argued that Howe‘s testimony supported a true finding on the special circumstance 

allegation on the theory that defendant acted with the intent to kill. Defendant 

argues that the excluded evidence would have caused the jury to doubt Howe‘s 

otherwise uncontradicted testimony that defendant ordered the killing. We find no 

reasonable possibility that the excluded evidence would have caused the jury to 

doubt Howe‘s testimony. Statements that defendant did not participate in the 

actual killing were not inconsistent with Howe‘s testimony that defendant 
38

admitted he ordered Morris to kill Bone, and they were consistent with Howe‘s

testimony that defendant said he had never touched Bone. 

Likewise, at the penalty phase, the prosecution did not suggest that 

defendant participated in the actual killing; it instead suggested only that he

ordered Morris and Wilson to do it and stood by while it was done. As observed

above, there is no reasonable possibility that the jury would have interpreted 

Morris‘s statements as inconsistent with Howe‘s testimony that defendant 

admitted he ordered the killing. 

Defendant argues that Morris‘s statement to Lawson that defendant was ―in 

another part of the house‖ during the killing would have contradicted Howe‘s prior 

statement to Detective O‘Connor that defendant told him he watched the killing 

and enjoyed watching it, thereby negating these potential aggravating 

circumstances of the crime as well as tending to impeach Howe‘s testimony 

generally. We find no reasonable possibility that the admission of Morris‘s 

statements would have changed the jury‘s view of Howe‘s testimony, for several 

reasons. First, defendant in his own statement to the police admitted that he had 

observed at least some of Morris‘s actions. He conceded that he saw Morris 

strangling the victim and he specifically described Morris‘s action in stabbing the 

victim as well as the sounds of the stabbing. Second, there is no real conflict 

between Howe‘s statement to the detective that defendant told him he watched the 

murder and Morris‘s statement that defendant was in another part of the house 

during the killing. Morris‘s killing of Bone was a protracted effort. As defendant 

himself described it, he was moving about the house looking for items to steal; he 

was in another part of the house some of the time but he also returned to Morris‘s 

location, or at least close enough to observe his actions, at other times. Third, 

Howe himself, in his testimony, disavowed his statement to the detective that 

defendant told him he had watched the killing. Howe testified that he did not 
39

know where defendant was during the killing; he may have assumed defendant 

watched the killing but could not be certain that defendant admitted to doing so. 

He was uncertain whether defendant told him he enjoyed watching the killing or 

that he enjoyed the fact that the victim died. Under these circumstances, it is 

highly improbable that the jury would have viewed Morris‘s statement that 

defendant was in another part of the house during the killing as grounds for 

disbelieving any part of Howe‘s testimony. We find no reasonable possibility that 

the exclusion of Morris‘s statements that defendant did not participate in the 

killing and was in another part of the house made a difference in the outcome at 

either the guilt or penalty phase. 

E. Instructions on circumstantial evidence

The trial court read to the jury a standard instruction regarding 

circumstantial evidence, CALJIC No. 8.83, which informed the jury that (1) each 

fact that is essential to complete a set of circumstances necessary to establish the 

truth of a special circumstance must be proved beyond a reasonable doubt, and (2) 

if there are two reasonable interpretations of the circumstantial evidence, the jury 

must accept the one that favors defendant. Defendant argues that instructing the 

jury regarding these principles only in connection with circumstantial evidence 

could cause the jury to believe that the principles did not apply when direct 

evidence is used. (See People v. Vann (1974) 12 Cal.3d 220, 226-227 [instruction 

on circumstantial evidence, in the absence of a general instruction requiring proof 

of guilt beyond a reasonable doubt, might have been interpreted by jurors as 

requiring a lesser degree of proof if the evidence is direct].) He contends the 

instruction undermined the requirement of proof beyond a reasonable doubt as 

applied to direct evidence. He further argues that this instructional error requires 

reversal of the special circumstance finding because it could have affected the 
40

jury‘s consideration of Howe‘s testimony, which was direct evidence that 

defendant intended to kill. 

The Attorney General contends that defendant forfeited this claim by 

failing to request that the trial court modify the standard instruction. We agree. 

―A party may not complain on appeal that an instruction correct in law and 

responsive to the evidence was too general or incomplete unless the party has 

requested appropriate clarifying or amplifying language.‖ (People v. Lang (1989) 

49 Cal.3d 991, 1024; see People v. Livingston (2012) 53 Cal.4th 1145, 1165 

[defendant forfeited claim that instruction discussing proof by direct evidence 

should have included additional principles related to the burden of proof beyond a 

reasonable doubt that were contained in the instruction on circumstantial 

evidence]; People v. Bolin (1998) 18 Cal.4th 297, 328 [defendant forfeited claim 

that instruction directing jury to find special circumstance not true if it had a 

reasonable doubt as to its truth was incomplete because it did not define 

reasonable doubt or direct the jury to find the special circumstance ―beyond a 

reasonable doubt‖].) The instructions regarding circumstantial evidence were not 

incorrect or inapplicable and defendant did not request any modification of the 

instructions to address the concerns he now presents. 

Were we to address the merits, we would have to reject the claim. An 

instruction ―[d]ifferentiating between direct and circumstantial evidence does not 

undermine the reasonable doubt standard or presumption of innocence.‖ (People 

v. Livingston, supra, 53 Cal.4th at p. 1166.) We addressed and rejected claims

nearly identical to defendant‘s in People v. Livingston and in People v. Soloman

(2010) 49 Cal.4th 792, 825- 827. In People v. Soloman, the defendant argued that 

because the instruction on circumstantial evidence did not refer to direct evidence, 

―jurors would have believed that a fact essential to guilt that was based on direct, 

rather than circumstantial, evidence need not be proved beyond a reasonable 
41

doubt.‖ (Id. at p. 826.) We noted that the trial court had instructed the jury that 

both direct and circumstantial evidence were acceptable means of proof, that the 

defendant was to be presumed innocent, and that ―  ̳in case of a reasonable doubt 

whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty.‘ ‖ 

(Ibid., quoting CALJIC No. 2.90.) ―These instructions, coupled with the directive 

to  ̳consider the instructions as a whole and each in light of the others,‘ fully 

apprised the jury that the reasonable doubt standard applied to both forms of 

proof.‖ (People v. Soloman, supra, at p. 826.)

As in People v. Soloman, the trial court in the present case fully instructed 

the jury on the presumption of innocence, the requirement of proof beyond a 

reasonable doubt, and to consider the instructions as a whole. We see no 

reasonable likelihood that because the jury was given some additional, more 

detailed, direction about how to apply the reasonable doubt standard to 

circumstantial evidence, but was not given such direction regarding direct 

evidence, the jury would have concluded that the reasonable doubt standard did 

not fully apply to proof by direct evidence. 

Furthermore, the jury received additional relevant instructions applicable to 

the direct evidence with which defendant is here concerned — Howe‘s testimony 

that defendant told him he ordered the killing, which was evidence of defendant‘s 

intent. The jury was instructed that ―if the evidence as to any specific intent or 

mental state is susceptible of two reasonable interpretations, one of which points 

to the existence of the specific intent or mental state and the other to the absence 

of the specific intent or mental state, you must adopt that interpretation which 

points to the absence of the specific intent or mental state.‖
42

F. Failure to instruct that the jury must unanimously agree on any 

overt acts required for conspiracy to commit robbery

Defendant was convicted of conspiracy to commit robbery. Conspiracy to 

commit a crime requires proof of an overt act committed in pursuance of the 

conspiracy. (§ 184.) The information alleged five different overt acts in 

furtherance of the conspiracy. Defendant contends the trial court erred in failing 

to instruct the jury that it could not convict defendant of conspiracy unless the 

jurors unanimously agreed regarding the required overt act. Defendant concedes 

that this court has previously rejected the argument that jury unanimity regarding 

the overt act is required under state law. (People v. Russo (2001) 25 Cal.4th 1124, 

1135 (Russo).) He contends, however, that Russo did not consider whether the 

federal Constitution requires the agreement of at least a majority of jurors on the 

overt act. Defendant cites cases holding that the Fifth, Sixth, and Fourteenth 

Amendments of the federal Constitution require a jury trial and proof beyond a 

reasonable doubt on all elements of the offense (Sandstrom v. Montana (1979) 442 

U.S. 510, 512-514; Mullaney v. Wilbur (1975) 421 U.S. 684, 697-698; In re 

Winship (1970) 397 U.S. 358, 363-364; Morissette v. United States (1952) 342 

U.S. 246, 274-275) and the agreement of some minimum number of jurors (Burch 

v. Louisiana (1979) 441 U.S. 130 [conviction by a nonunanimous six-person jury 

violated defendant‘s right to a jury trial]; Johnson v. Louisiana (1972) 406 U.S. 

356 [agreement of nine out of 12 jurors is sufficient]). 

None of the cases cited by defendant calls into question our prior 

conclusion that the jurors need not agree unanimously on which ―overt act‖ of a 

conspiracy was proved. Russo reasoned that the jury must agree on what crime 

was committed, not how that crime was committed. ―Although the jury had to 

find at least one overt act, whether it was one or another of several possible acts 

only concerns the way in which the crime was committed, i.e., the theory of the 
43

case, not whether discrete crimes were committed. Thus, if the jurors disagreed as 

to what overt act was committed, and agreed only that an overt act was committed, 

they would still have unanimously found defendant guilty of a particular 

conspiracy.‖ (Russo, supra, 25 Cal.4th at p. 1135.) Consistently with our 

reasoning in Russo, the United States Supreme Court has recognized that when the 

defendant‘s alleged conduct constitutes a single offense that may be committed in 

different ways, the federal Constitution does not require unanimity regarding how 

the crime was committed. (Schad v. Arizona (1991) 501 U.S. 624, 629-645 [due 

process clause does not require a jury to agree unanimously whether a charge of 

first degree murder was committed by an intentional, premeditated killing or by 

felony murder]; id. at p. 649 (conc. opn. of Scalia, J.) [―it has long been the 

general rule that when a single crime can be committed in various ways, jurors 

need not agree upon the mode of commission‖]; see also United States v. Kozeny

(2d Cir. 2011) 667 F.3d 122, 132 [jury need not agree on a single overt act to 

sustain a conspiracy conviction]; United States v. Griggs (7th Cir. 2009) 569 F.3d 

341, 343 [same]; United States v. Sutherland (5th Cir. 1981) 656 F.2d 1181 

[same].)

G. Discovery order

Defendant contends that discovery ordered against the defense under 

section 1054.5 is unconstitutional and violates the federal and state privileges 

against self-incrimination and rights to effective assistance of counsel. Defendant 

recognizes that we rejected the same arguments in Izazaga v. Superior Court 

(1991) 54 Cal.3d 356, but, in order to preserve the issue for federal review, 

contends that case was wrongly decided and should be reconsidered. We decline 

to do so. 
44

H. Refusal of request to instruct that the jury must unanimously agree 

on the theory supporting the special circumstance verdict

The robbery and burglary special circumstance allegations required that 

defendant either intended to kill or was a major participant in the felony and 

exhibited a reckless disregard for life. (§ 190.2, subds. (c) & (d).) The trial court 

refused to instruct the jury that it must agree unanimously on the theory that 

supported the special circumstance allegation. Defendant acknowledges that when 

a charge is prosecuted under different legal theories, the jury need not agree 

unanimously on which legal theory applies. (See, e.g., People v. Jenkins, supra,

22 Cal.4th at p. 1024 [jury need not agree whether defendant is guilty of murder 

based on a theory of direct culpability or a theory of accomplice liability]; People 

v. Edwards (1991) 54 Cal.3d 787, 824 [jury need not agree unanimously which 

acts constitute lying in wait]; People v. Failla (1966) 64 Cal.2d 560, 567 [in 

burglary case, jurors need not agree unanimously regarding which felony the 

defendant intended at the time of entry].) Defendant contends this is a case in 

which he was prosecuted under a single legal theory, with alternative factual 

theories that (1) defendant ordered Morris to kill the victim, in which case he acted 

with intent to kill, or (2) he did not order the killing but was a major participant in 

the robbery and his conduct evidenced a conscious disregard for life. Under these 

circumstances, defendant contends, the jury must agree unanimously on the acts 

constituting the offense. He contends that the omission of the unanimity 

instruction violated his Sixth Amendment right to a jury trial and his Eighth 

Amendment right to heightened reliability in a capital case. 

A unanimity instruction is required if there is evidence that more than one 

crime occurred, either of which could provide the basis for conviction under a 

single count. (See People v. Diedrich (1982) 31 Cal.3d 263, 281 [when evidence 

suggested more than one act of bribery, jury must agree unanimously which act 
45

was the basis for conviction]; see People v. Beardslee (1991) 53 Cal.3d 68, 92 [―A 

requirement of jury unanimity typically applies to acts that could have been 

charged as separate offenses‖].) On the other hand, the unanimity instruction is 

not required ―  ̳where multiple theories or acts may form the basis of a guilty 

verdict on one discrete criminal event.‘ ‖ (Russo, supra, 25 Cal.4th at p. 1135, 

italics added.) ―[W]here the evidence shows only a single discrete crime but 

leaves room for disagreement as to exactly how that crime was committed or what 

the defendant‘s precise role was, the jury need not unanimously agree on the basis 

or, as the cases often put it, the  ̳theory‘ whereby the defendant is guilty.‖ (Id. at 

p. 1132.) This is true even if the two theories are based on different facts. (People 

v. Jenkins, supra, 22 Cal.4th at p. 1025 [unanimity instruction not required even 

where ―different facts would support aiding and abetting liability and liability as a 

direct perpetrator‖].) 

In the present case, there was no evidence that more than one crime of 

murder was committed. Rather, the evidence left ―room for disagreement as to 

exactly how that crime was committed or what the defendant‘s precise role was.‖ 

(Russo, supra, 25 Cal.4th at p. 1132.) When the defendant‘s alleged conduct 

constitutes a single offense that may be committed in different ways, the federal 

Constitution does not require unanimity on how the crime was committed. (Schad 

v. Arizona, supra, 501 U.S. 624 [due process clause of U.S. Const. does not 

require jury to agree unanimously whether charge of first degree murder was 

committed by an intentional, premeditated killing or by felony murder].) 

Defendant analogizes this case to People v. Dellinger (1985) 163 

Cal.App.3d 284, 300-302, in which the Court of Appeal held that the defendant 

was entitled to a unanimity instruction because evidence suggested that the 

defendant could have killed the victim either by blunt force trauma or by cocaine 

poisoning. Dellinger recognized that in most of the cases that have addressed the 
46

need for a unanimity instruction, there were not only multiple criminal acts that 

could have constituted the charged offense but also potentially multiple offenses. 

(Id. at p. 301.) In contrast, in Dellinger, ―there was only one offense and one 

victim but there were several hypotheses as to which act or acts caused [the 

victim‘s] death.‖ Nevertheless, the appellate court concluded that a unanimity 

instruction was required. ―As long as there are multiple acts presented to the jury 

which could constitute the charged offense, a defendant is entitled to an instruction 

on unanimity.‖ (Ibid.) 

Even assuming that Dellinger was correctly decided, it is factually 

distinguishable from the present case. Here, there was no dispute as to what acts 

caused the victim‘s death. We have previously concluded the holding of Dellinger

does not extend to the situation in which the defendant could have been convicted 

as an aider and abettor to a murder or as the actual killer based on a single course 

of conduct. (People v. Beardslee, supra, 53 Cal.3d at p. 93.) Much less should it 

apply in the present case, in which there was no dispute that defendant was guilty 

of murder even though he was not the actual killer, and the only issue was whether 

he acted with the intent to kill or as a major participant in the felony with a 

reckless disregard for life. No unanimity instruction was required. 

I. Misreading of the instruction on the mental state element of the 

felony-murder special circumstance

To prove the felony-murder special circumstance, the prosecution was 

required to prove either that defendant aided the murder with the intent to kill, or 

acted as a major participant in the felony and exhibited a reckless indifference to 

human life. (§ 190.2, subds. (c) & (d).) The written instructions, which were 

provided to the jury, correctly explained that ―[a] defendant acts with reckless 

indifference to life when that defendant knows or is aware that his acts involve a 

grave risk of death to an innocent human being.‖ (Italics added.) However, when 
47

reading the instruction, the trial court told the jury that ―[a] defendant acts with 

reckless indifference to life whether [he] knows or is aware that his acts involve a 

grave risk of death to an innocent human being.‖ (Italics added.) Defendant 

contends this instruction was erroneous, because the trial court apparently 

substituted the word ―whether‖ for ―when,‖ thereby indicating that reckless 

indifference could exist whether or not defendant knew or was aware that his acts 

caused a grave risk of death. He contends this instruction misstated the law and 

violated his rights under the Fifth and Sixth Amendments of the federal 

Constitution. 

―The risk of a discrepancy between the orally delivered and the written 

instructions exists in every trial, and verdicts are not undermined by the mere fact 

the trial court misspoke.‖ (People v. Mills (2010) 48 Cal.4th 158, 200.) ―[W]e 

often have held that when erroneous oral instructions are supplemented by correct 

written ones, we assume the jury followed the written instructions, particularly 

when, as here, the jury is instructed that the written version is controlling.‖ 

(People v. Mungia (2008) 44 Cal.4th 1101, 1132; see People v. Osband (1996) 13 

Cal.4th 622, 687 [noting that the jury was instructed to be ―  ̳governed only by 

[each] instruction in its final wording, whether printed, typed or handwritten‘ ‖].) 

Here, the jury was instructed just before the beginning of deliberations that it 

would be provided with the instruction in written form and that ―the instructions 

may be typed, printed or handwritten. Portions may have been added or 

deleted. . . . Every part of the text of an instruction, whether typed, printed, or 

handwritten is of equal importance. You are to be governed only by the 

instruction in its final wording.‖ 

Even if we do not assume that the jury understood that the written 

instructions were controlling, there is no reasonable likelihood that the jury 

misunderstood the requirements for proof of the felony-murder special 
48

circumstance. ―When an appellate court addresses a claim of jury misinstruction, 

it must assess the instructions as a whole, viewing the challenged instruction in 

context with other instructions, in order to determine if there was a reasonable 

likelihood the jury applied the challenged instruction in an impermissible 

manner.‖ (People v. Wilson (2008) 44 Cal.4th 758, 803.) Here, the instruction as 

read to the jury was, at most, ambiguous. Both the prosecution and the defense 

focused on the ―reckless indifference‖ element of the special circumstance in their 

arguments, and correctly stated that it required that defendant knew his act created 

a grave risk of death. The prosecutor stated, ―The definition of a reckless 

indifference to human life as taken from the jury instruction itself is that the 

defendant knows or is aware that his acts involve a grave risk of death to an 

innocent human being.‖ ―Mr. Grimes knew there was a grave risk by going into 

this house with these people that Betty Bone was gonna be killed . . . . So when 

we talk about reckless indifference, knowing or being aware that your acts involve 

a grave risk . . . it‘s his knowledge and his awareness at the time that he goes into 

this residence as to what could potentially happen to this woman.‖ Defense 

counsel correctly read the instruction to the jury: ―I know I have read it, but I‘ll 

read it to you again. . . . A defendant acts with reckless indifference to human life 

when that defendant knows or is aware that his acts involve a grave risk of death 

to an innocent human being.‖ ―The law on the special circumstance above and 

beyond the first degree murder, is that Mr. Grimes must know or be aware that his 

acts, his conduct, what he does, involves a grave risk of death to an innocent 

human being.‖ ―That‘s how reckless indifference is defined, when that defendant 

knows or is aware that his acts involve a grave risk of death to an innocent human 

being.‖ In light of counsel‘s repeated statements and the correct written 

instructions, there is no reasonable likelihood that the jury was misled by the trial 

court‘s misstatement. 
49

J. Instructions on the robbery element of the felony-murder special 

circumstance

The jury was instructed that the felony-murder special circumstance could 

not be found true unless, among other things, the prosecution proved ―the murder 

was committed in order to carry out or advance the commission of the crime of 

robbery or to facilitate the escape therefrom or to avoid detection.‖ The jury was 

correctly instructed on the elements of robbery. Defendant nevertheless contends 

the robbery special-circumstance finding must be reversed because the trial court 

erred in instructing the jury with CALJIC No. 2.15, which told the jurors that if 

they found defendant had been in possession of stolen property, that was not 

enough to support a conviction of robbery and that corroborating evidence tending 

to prove defendant‘s guilt also is required, but ―this corroborating evidence need 

only be slight, and need not by itself be sufficient to warrant an inference of guilt.‖ 

Defendant contends that CALJIC No. 2.15 provided the jury an option of 

convicting defendant of robbery based on his possession of stolen goods plus some 

corroborating evidence, without finding all the elements of robbery. He also 

contends that it unconstitutionally lightened the state‘s burden of persuasion by 

permitting a conviction based on ―slight evidence.‖ 

We have previously rejected the same arguments, concluding that CALJIC 

No. 2.15 appropriately permits — but does not require — jurors to infer guilt of 

burglary, robbery, or theft from the possession of stolen property plus some 

corroborating evidence, and that it does not violate due process or reduce the 

burden of proof. (See People v. Gamache (2010) 48 Cal.4th 347, 375; People v. 

Parson (2008) 44 Cal.4th 332, 355-356; People v. Smithey (1999) 20 Cal.4th 936, 

975-977.) 

Defendant relies upon federal conspiracy cases that have found a violation 

of due process because the jury was instructed, over the defendant‘s objection, that 
50

―  ̳[o]nce the existence of the agreement or common scheme of conspiracy is 

shown, . . . slight evidence is all that is required to connect a particular defendant 

to the conspiracy.‘ ‖ (United States v. Partin (5th Cir. 1977) 552 F.2d 621, 628; 

see United States v. Durrive (7th Cir. 1990) 902 F.2d 1221, 1228 [concluding that 

on appellate review, reviewing court must find ―substantial evidence,‖ rather than 

―slight evidence,‖ connecting defendant to the conspiracy]; United States v. Dunn

(9th Cir. 1977) 564 F.2d 348, 356-357 [clarifying that defendant‘s connection to 

the conspiracy need only be slight, but the connection must be proved beyond a 

reasonable doubt].) According to these cases, the ―slight evidence‖ instruction 

―  ̳reduced the level of proof necessary for the government to carry its burden by 

possibly confusing the jury about the proper standard or even convincing jury 

members that a defendant‘s participation in the conspiracy need not be proved 

beyond a reasonable doubt.‘ ‖ (United States v. Partin, supra, at p. 629, quoting 

United States v. Hall (5th Cir. 1976) 525 F.2d 1254, 1256.) 

The problem with the instruction addressed in these federal cases is that it 

permitted the jury to conclude that defendant was a participant in the conspiracy 

based only on ―slight evidence.‖ By contrast, the CALJIC No. 2.15 permits 

conviction of theft-related offenses based upon evidence that the defendant was 

recently found in possession of stolen property plus additional, ―slight,‖ 

corroborating evidence. We have recognized that ―[p]ossession of recently stolen 

property is so incriminating that to warrant conviction there need only be, in 

addition to possession, slight corroboration in the form of statements or conduct of 

the defendant tending to show his guilt.‖ (People v. McFarland (1962) 58 Cal.2d 

748, 754.) Defendant‘s reliance on the federal conspiracy cases is, therefore, 

inapt.
51

K. Admission of testimony from a jailhouse informant

Jonathan Howe, an inmate in the county jail where defendant was 

incarcerated before trial, testified at trial regarding admissions that defendant 

made to him. Before trial, defense counsel unsuccessfully moved to exclude 

Howe‘s testimony on several grounds, but he did not contend that the testimony 

should be excluded on the ground that Howe‘s plea agreement with the 

prosecution placed him under a strong compulsion to testify in accordance with his 

pretrial statements. Defendant contends his counsel rendered constitutionally 

deficient assistance in failing to move to exclude or strike Howe‘s testimony on 

this latter ground. 

It is proper for the prosecution to present the testimony of a witness 

pursuant to a plea bargain if the witness believes that the agreement merely 

requires him to testify truthfully. (People v. Garrison (1989) 47 Cal.3d 746, 768; 

People v. Johnson (1989) 47 Cal.3d 1194, 1229.) A defendant is denied a fair 

trial, however, if a plea agreement places the witness under ―a strong compulsion 

to testify in a particular fashion.‖ (Garrison, supra, at p. 768.) Here, there is no 

evidence that Howe was under any compulsion to testify in accordance with his 

previous statements. Howe pleaded guilty to certain pending charges and agreed 

to a sentence of up to 24 months in exchange for the dismissal of other charges. 

He had been offered this same agreement before he came forward with 

information regarding defendant, except that the sentence would have been an 

agreed-upon term of 24 months. The actual length of his sentence would be 

decided by the same judge who was presiding in the present case, depending upon 

his determination as to whether Howe testified truthfully. The written plea 

agreement stated that Howe had ―an obligation to do nothing other than to tell the 

truth, fully and accurately.‖ 
52

Defendant argues that because the prosecution put Howe through a voice 

stress test and two polygraphs before his testimony, it was clear to Howe that the 

prosecution believed his pretrial statements were truthful and he therefore would 

have understood the agreement to testify truthfully to mean he was required to 

testify in accordance with his pretrial statements. The record demonstrates that 

any such notion was dispelled by the trial court‘s very clear direction that Howe 

was to tell the truth in court regardless of what he may have said previously. At 

his plea hearing, Howe told the judge that it was his understanding that he would 

have to testify truthfully and ―consistent with any report I‘ve — I‘ve made so far 

in this case.‖ The judge clearly explained to him that he was to ―testify truthfully 

whether or not it‘s consistent with any other statement. . . . [I]f telling the truth 

here, the actual truth, would be inconsistent with something you‘ve previously 

said, that fact that it‘s inconsistent will not cause me to conclude that you‘re not 

being truthful. . . . In other words, I don‘t want you to think in any way, 

Mr. Howe, that for me to believe you‘re telling the truth that what you say here in 

this courtroom has to be consistent with something you‘ve said before. . . . In 

other words, do not say something that isn‘t true because it‘s consistent with what 

you said previously to law enforcement, in hopes that I will therefore conclude 

you‘re telling the truth here.‖ Howe repeatedly affirmed that he understood. 

Given these facts, any challenge to Howe‘s testimony on the grounds that he was 

under pressure to testify consistently with his former statements would have been 

unsuccessful. There being nothing in the record to demonstrate defense counsel 

performed deficiently by failing to challenge Howe‘s testimony on these grounds, 

relief on direct appeal is unwarranted. (See People v. Mendoza Tello (1997) 15 

Cal.4th 264, 266-267; People v. Pope (1979) 23 Cal.3d 412, 426.) 
53

L. Alleged deficient performance by counsel in advising defendant to 

reject plea bargain

Defendant contends that his trial counsel performed deficiently in advising 

him to reject a plea bargain that would have avoided the death penalty before 

counsel was sufficiently familiar with the case to render such advice. Because the 

record does not establish what counsel knew about the case at the time the plea 

bargain was refused or what advice counsel gave to defendant, defendant has not 

shown that his counsel‘s actions fell below an objective standard of 

reasonableness.

Defendant was charged with murder and special circumstances in October 

of 1995 and pled not guilty. Fifteen months later, in January of 1997, the District 

Attorney of Shasta County, Dennis Sheehy, notified defendant‘s counsel that he 

had decided not to seek the death penalty. Because defendant was not the actual 

killer, District Attorney Sheehy did not believe that a jury would impose the death 

penalty. Shortly thereafter, Mr. Sheehy resigned as the district attorney and 

McGregor Scott replaced him. On May 23, 1997, in response to defendant‘s 

Marsden motion (People v. Marsden (1970) 2 Cal.3d 118), the court appointed 

new counsel, Richard Maxion, for defendant. Two weeks after Maxion was 

appointed, on June 6, District Attorney Scott informed the court that he would be 

seeking the death penalty as of June 27 unless, prior to that date, defendant 

decided to plead guilty to special circumstances murder. In court on June 27, 

defense counsel stated that his client would not be pleading guilty and the 

prosecutor announced that he would be seeking the death penalty. 

Prior to trial, defendant moved to prohibit the prosecution from seeking the 

death penalty on a number of grounds, including claims that the decision to seek 

the death penalty constituted vindictive prosecution and that defendant was denied 

effective assistance of counsel because counsel Richard Maxion had not been 
54

given enough time to attempt to persuade the district attorney not to seek death. 

At the hearing on defendant‘s motion the trial court rejected the claim that the 

prosecution‘s offer to allow the defendant a three-week period to decide whether 

to plead guilty in exchange for a life sentence denied defendant effective 

assistance of counsel because it was made only two weeks after new counsel was 

appointed. Testimony established that defense counsel had agreed to the deadline, 

and that the prosecutor would have given him more time if he had asked for it.

Here, defendant contends that his counsel rendered constitutionally 

deficient assistance in advising him not to accept the plea before he had 

adequately familiarized himself with the case. A defendant has the right to 

effective assistance of counsel in deciding whether to accept or reject a proposed 

plea agreement. (See In re Alvernaz (1992) 2 Cal.4th 924, 937.) In order to 

establish a claim of constitutionally deficient performance by counsel, defendant 

must establish that (1) counsel‘s representation fell below an objective standard of 

reasonableness under prevailing professional norms; and (2) there is a reasonable 

probability that, but for counsel‘s failings, the result would have been more 

favorable to defendant. (Strickland v. Washington (1984) 466 U.S. 668, 687-696.) 

―[A] defense attorney‘s simple misjudgment as to the strength of the prosecution‘s 

case, the chances of acquittal, or the sentence a defendant is likely to receive upon 

conviction, among other matters involving the exercise of counsel‘s judgment, will 

not, without more, give rise to a claim of ineffective assistance of counsel.‖ (In re 

Alvernaz, supra, at p. 937.) ―When a claim of ineffective assistance is made on 

direct appeal, and the record does not show the reason for counsel‘s challenged 

actions or omissions, the conviction must be affirmed unless there could be no 

satisfactory explanation.‖ (People v. Anderson (2001) 25 Cal.4th 543, 569; see 

People v. Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.).) 
55

The record does not show how much counsel knew about the case, how 

counsel advised defendant, or what defendant‘s response was. There is no 

evidence that he did not advise defendant to accept the offer. Defendant contends 

that the record demonstrates that counsel could not have had a sufficient 

understanding of the case to adequately advise defendant at the time that defendant 

declined the plea offer and that, if properly advised, defendant would have 

accepted the plea. He bases this conclusion on the fact that during jury selection 

(was more than a year after defendant declined the offer), when counsel was fully 

prepared for trial, counsel told the court that defendant was willing to plead guilty 

and accept a sentence of life without the possibility of parole. But the record does 

not establish that defendant‘s decision to plead guilty was based on counsel‘s 

additional knowledge about the case. Any number of circumstances, unrelated to 

counsel‘s representation, may have occurred during the time between defendant‘s 

rejection of the plea offer and the start of trial, that could have led defendant to 

change his mind.4 Consequently, defendant has failed to show that counsel‘s 

conduct fell below professional norms or that defendant would have pled guilty if 

properly advised. 

M. Prosecution’s decision to seek death unless defendant pled guilty to 

murder and the special circumstance

Defendant contends he was denied due process when the district attorney 

decided to reverse the decision of the prior district attorney and to seek the death 

penalty unless defendant pleaded guilty to the charge of murder with special 

circumstances. As explained above, after the district attorney‘s office notified 

 

4 For example, during this time period witness Howe came forward to offer 

evidence that defendant admitted he directed Morris to kill Bone, and trial counsel 

became aware that Howe might be called as a witness. 
56

defendant that it would not seek the death penalty, a new district attorney was 

appointed. He reconsidered that decision and decided to seek the death penalty, 

but gave defendant the opportunity to plead guilty to the charges of murder with 

special circumstances and serve a sentence of life without possibility of parole. 

Defendant argues his right to due process was violated because the district 

attorney sought the death penalty after defendant refused to plead guilty, thereby

punishing him for exercising his right to a jury trial. 

Under the due process clause, prosecutors may not ―tak[e] certain actions 

against a criminal defendant, such as increasing the charges, in retaliation for the 

defendant‘s exercise of constitutional rights. [Citations.] It is not a constitutional 

violation, however, for a prosecutor to offer benefits, in the form of reduced 

charges, in exchange for a defendant‘s guilty pleas, or to threaten to increase the 

charges if the defendant does not plead guilty. [Citations.] In the pretrial setting, 

there is no presumption of vindictiveness when the prosecution increases the 

charges or, as here, the potential penalty. [Citations.] Rather, the defendant must 

 ̳prove objectively that the prosecutor‘s charging decision was motivated by a 

desire to punish him for doing something the law plainly allowed him to do.‘ ‖ 

(People v. Jurado (2006) 38 Cal.4th 72, 98.) 

Absent proof of vindictiveness or other improper motive, increasing the 

charges or punishment when a plea bargain is refused does not constitute 

unconstitutional punishment or retaliation for the exercise of a defendant‘s legal 

rights. ―[I]n the  ̳give-and-take‘ of plea bargaining, there is no such element of 

punishment or retaliation so long as the accused is free to accept or reject the 

prosecution‘s offer.‖ (Bordenkircher v. Hayes (1978) 434 U.S. 357, 363.) The 

district attorney was free to change the decision made by his predecessor not to 

seek the death penalty, and that decision does not raise a presumption of 

vindictiveness. (See United States v. Goodwin (1982) 457 U.S. 368, 381-385.) 
57

―A prosecutor should remain free before trial to exercise the broad discretion 

entrusted to him to determine the extent of the societal interest in prosecution. An 

initial decision should not freeze future conduct.‖ (Id. at p. 382.) 

In the present case, the record establishes nothing more than that a plea 

bargain was offered and refused. The trial court conducted a hearing at which the 

district attorney explained why he disagreed with the decision of his predecessor, 

who had considered the decision a close call but believed that a jury was not likely 

to return a death verdict. The new district attorney reconsidered that decision after 

a thorough review of the case. Following a hearing at which both the former and 

current district attorneys testified, the trial court concluded that the decision was 

not arbitrary or capricious and that there was no element of retaliation in the 

decision. Nothing in the record supports defendant‘s argument to the contrary. 

N. Trial court’s refusal to instruct that the jury could return a life 

sentence even in the absence of any mitigating circumstances

The trial court refused to instruct the jury, as defense counsel requested, 

that it could impose a life sentence ―even in the absence of mitigating evidence,‖ if 

it concluded that ―the aggravating evidence is not comparatively substantial 

enough to warrant death.‖ Instead, the court instructed the jury as follows: ―In 

weighing the various circumstances you determine under the relevant evidence 

which penalty is justified and appropriate by considering the totality of the 

aggravating circumstances with the totality of the mitigating circumstances. To 

return a judgment of death each of you must be persuaded that the aggravating 

circumstances are so substantial in comparison with the mitigating circumstances 

that it warrants death instead of life without parole.‖ (See CALJIC No. 8.88.) 

Defendant contends that the court‘s failure to instruct the jury that it could return a 

life sentence even in the absence of mitigating factors violated both the due 

process clause and the Eighth Amendment of the federal Constitution. 
58

We have rejected similar claims, concluding that, under instructions like 

those given here, ―[t]he jury may decide, even in the absence of mitigating 

evidence, that the aggravating evidence is not comparatively substantial enough to 

warrant death.‖ (People v. Duncan (1991) 53 Cal.3d 955, 979.) ―By stating that 

death can be imposed in only one circumstance — where aggravation substantially 

outweighs mitigation — the instruction clearly implies that a sentence less than 

death may be imposed in all other circumstances.  ̳No reasonable juror would 

assume he or she was required to impose death despite insubstantial aggravating 

circumstances, merely because no mitigating circumstances were found to exist.‘ ‖ 

(People v. Ray (1996) 13 Cal.4th 313, 356.)

Even assuming that the proposed instruction would have clarified how the

instructions given would apply if there were no mitigating evidence at all, such 

clarification was not required in the present case. Defendant did present 

mitigating evidence, including evidence of his mental impairments, his positive 

relationships with friends and family, and the circumstance of the crime that 

defendant was not the actual killer. Although the jurors may have given little 

weight to this evidence, there is no reasonable possibility that they viewed this as a 

case in which there was no mitigating evidence at all.

O. Failure to instruct that accomplice Cline’s statements to police 

should not be relied upon unless corroborated, or that they should 

be viewed with caution

Anna Cline, defendant‘s accomplice in a prior robbery to which he pleaded 

guilty, testified at the penalty phase regarding the circumstances of that robbery. 

She testified that the robbery was her idea and that she and defendant had agreed 

that no one would be hurt. The prosecution also introduced testimony regarding 

her statements to police officers about this crime. She told one officer that 
59

defendant had forced her to help him with the robbery. She told another that 

defendant had wanted to hurt the victim, but she stopped him. 

The jury was instructed that Cline was an accomplice as a matter of law, 

and that an accomplice‘s testimony incriminating the defendant should be viewed 

with caution. Defendant contends the instructions were insufficient in two ways. 

First, they did not require that Cline‘s testimony be corroborated. Second, they 

did not inform the jury that the accomplice‘s testimony included her out-of-court 

statements. (See CALJIC No. 3.11.) 

1. Corroboration

Defendant contends the trial court erred in refusing his request to instruct 

the jury that the testimony of an accomplice must be corroborated. Section 1111 

provides that a conviction cannot be based upon the testimony of an accomplice 

unless that testimony is corroborated by other evidence tending to connect the 

defendant with the commission of the crime. This corroboration requirement 

applies not only to the accomplice‘s testimony but also to an accomplice‘s out-ofcourt statements when they are used as substantive evidence. (People v. Andrews

(1989) 49 Cal.3d 200, 214.) Corroboration is also required at the penalty phase 

when the prosecution introduces accomplice testimony as evidence of 

unadjudicated prior criminal conduct. (People v. Mincey (1992) 2 Cal.4th 408,

461; People v. Varnum (1967) 66 Cal.2d 808.) The jury need not be instructed, 

however, that an accomplice‘s testimony about the defendant‘s prior criminal 

conduct requires corroboration if the crime was previously adjudicated. (People v. 

Moore (2011) 51 Cal.4th 1104, 1143; see People v. Williams (1997) 16 Cal.4th 

153, 276 [jury need not be instructed that accomplice‘s testimony regarding the 

circumstances of a crime of which defendant had previously been convicted must 

be viewed with caution].) 
60

Defendant contends that corroboration was nonetheless required here 

because Cline‘s prior statements were not admitted to prove that defendant 

committed the prior robbery — facts that had previously been adjudicated — but 

to establish the extent and nature of defendant‘s involvement in that crime — facts 

that had not previously been adjudicated. The same was true, however, in People 

v. Williams, supra, 16 Cal.4th at pages 184, 276, in which we rejected the 

argument that corroboration of an accomplice‘s testimony was required. The 

corroboration requirement applies only when accomplice testimony is used to 

prove that defendant committed a crime. (See § 1111 [―A conviction cannot be 

had upon the testimony of an accomplice unless it be corroborated by such other 

evidence as shall tend to connect the defendant with the commission of the 

offense . . . .‖].) 

2. Cautionary instruction on accomplice’s out-of-court statements

Defendant contends trial counsel rendered constitutionally deficient 

assistance in failing to prepare and submit to the trial court an instruction 

clarifying that not only must an accomplice‘s in-court testimony be viewed with 

caution, but also that the accomplice‘s out-of-court statements should be viewed 

with caution. Defendant states that the trial court agreed to instruct the jury on this 

concept, but that counsel inexplicably failed to prepare an appropriate instruction. 

The record is not so clear. The trial court refused counsel‘s request to give the 

standard instruction on corroboration, CALJIC No. 3.11, which included a 

statement that ―testimony‖ includes an out-of-court statement by the accomplice. 

It agreed to give the instruction requiring that the testimony of an accomplice that 

incriminates the defendant be viewed with caution, CALJIC No. 3.18. The 

standard cautionary instruction, however, did not refer to an accomplice‘s out-ofcourt statement. (CALJIC No. 3.18.) Although the trial court‘s comments suggest 
61

that it believed the accomplice‘s out-of-court statements should be viewed with 

caution, it never explicitly ruled that the jury should be so instructed or directed 

defense counsel to modify the cautionary instruction to include this concept. It 

simply directed counsel to replace the version of CALJIC No. 3.18 that had 

previously been submitted with the more recent version. 

In any event, we may treat defendant‘s claim as one that his counsel 

rendered constitutionally deficient assistance in failing to request that the trial 

court give a modified version of the cautionary instruction to explain that 

―testimony‖ of an accomplice includes the accomplice‘s out-of-court statements. 

To establish such a claim, defendant must show, among other things, that ―but for 

counsel‘s unprofessional errors and/or omissions, the trial would have resulted in a 

more favorable outcome.‖ (In re Visciotti (1996) 14 Cal.4th 325, 352.)

Defendant does not convince us that there is a reasonable probability that 

the penalty jury would have reached a different result had it been instructed that 

Cline‘s out-of-court statements should be viewed with caution. Because of the 

inconsistencies between Cline‘s in-court testimony and her out-of-court 

statements, the jury would have been well aware that it needed to carefully 

consider the credibility of those statements. In addition, one of the officers 

testified that she admitted to him that her statements to law enforcement were 

―payback,‖ for defendant ―rolling over on her,‖ testimony that provided the jury 

with further reason to be cautious in relying on those statements. 

P. Trial court’s failure to rule on admissibility of aggravating evidence 

before voir dire

Defendant claims the trial court erred and deprived him of his rights to an 

impartial jury and effective assistance of counsel when it refused to rule on the 

admissibility of aggravating evidence prior to voir dire. The trial court did not err. 
62

In the prosecution‘s notice of its aggravating evidence against defendant, 

the prosecution alleged five incidents of unadjudicated criminal activity involving 

―the use or attempted use of force or violence.‖ Two months prior to voir dire, 

defense counsel requested a hearing to determine whether the prosecution had 

sufficient evidence to prove these incidents at the penalty phase. The trial court 

declined to conduct a hearing at that time and indicated that it would hear an offer 

of proof before the penalty phase trial and then determine whether a hearing was 

required. After the guilt phase verdict, the trial court ruled that three of the five 

incidents were admissible. Ultimately, the prosecution introduced evidence of 

only one of these unadjudicated matters — a 1993 incident in which defendant 

argued with his girlfriend, choked her, grabbed the keys to their car, and drove for 

20 minutes while holding her down by the neck. 

Defendant contends that because of the trial court‘s failure to rule on the 

admissibility of these incidents before voir dire, he did not question any of the 

jurors who sat on the case about how they would treat evidence of such violent 

acts. He argues that the trial court thereby deprived him of the opportunity to 

ensure, through voir dire and the appropriate use of peremptory challenges and 

challenges for cause, that jurors hearing this type of aggravating evidence could be 

impartial. 

The trial court has discretion to decide whether a hearing should be 

conducted to determine whether the prosecution has sufficient evidence to prove a 

defendant‘s alleged unadjudicated criminal activity beyond a reasonable doubt. 

(People v. Boyer (2006) 38 Cal.4th 412, 477, fn. 51; People v. Fauber (1992) 2 

Cal.4th 792, 849; People v. Philips (1985) 41 Cal.3d 29, 72, fn. 25.) But we have 

never suggested that such a hearing, if conducted, must be conducted prior to voir 

dire. Defendant has not cited any circumstance of the present case that established 

a particular need for a pretrial determination of the admissibility of the 
63

prosecution‘s evidence in aggravation so as to render the trial court‘s failure to 

resolve this issue before trial an abuse of discretion. 

Defendant argues that because evidence of prior violence is critical at the 

penalty phase, he was entitled to question prospective jurors about their response 

to such evidence — to ask them for example, whether they could consider 

mitigation in a case in which the defendant had committed prior acts of violence. 

He cites in support of this argument People v. Daniels (1991) 52 Cal.3d 815, 879, 

in which we held that the state must provide the defense with notice of the 

aggravating evidence it will rely on in seeking the death penalty prior to voir dire, 

so that, among other things, a defendant will have ―the ability to conduct voir dire 

with adequate knowledge of the facts that will be presented on the issue of penalty 

as well as the issue of guilt.‖ Consistent with Daniels, however, defendant was on 

notice before voir dire that the prosecution would present evidence regarding 

defendant‘s prior criminal activities, both adjudicated and unadjudicated. The 

prosecution‘s notice of aggravation included not only the five incidents of 

unadjudicated violent criminal activity whose admissibility defendant contends 

should have been resolved before voir dire, but also five prior felony convictions, 

including the circumstances surrounding defendant‘s conviction for a robbery and 

possession of a sawed-off shotgun. Defendant thus had every opportunity and 

motive to question the prospective jurors to determine whether evidence of 

defendant‘s prior violent activity might affect their ability to impartially decide the 

issue of penalty. Defendant does not explain how having additional information 

about which of the aggravating incidents of prior violence would actually be 

presented to the jury would have changed the manner in which defense counsel 

conducted voir dire. 
64

Q. Prosecutor’s argument that defendant had provided the jury with

no reason to doubt Howe’s testimony

Defendant contends the prosecutor committed misconduct in arguing that 

the defense had ―never given [the jury] a reason to doubt [Howe‘s] testimony.‖ 

He argues that the prosecutor knew that such evidence existed because she had 

successfully objected to the defense‘s attempt to introduce evidence that might 

have cast doubt on Howe‘s testimony that defendant had ordered Morris to kill 

Bone — specifically, Morris‘s hearsay statements that defendant was not involved 

in the actual killing and that he was surprised when Morris killed the victim. (See 

part II.D., ante.) Defendant claims that the prosecutor‘s misconduct violated due 

process and requires reversal of the death judgment, citing cases holding that due 

process precludes a prosecutor from asking a jury to convict a defendant because 

the defendant has failed to introduce evidence that the court has excluded on the 

prosecution‘s own motion. (See, e.g., Paxton v. Ward (10th Cir. 1999) 199 F.3d 

1197, 1217-1218; United States v. Ebens (6th Cir. 1986) 800 F.2d 1422, 1440-

1444.)

Defendant, however, has forfeited this claim because defense counsel did 

not object to the prosecutor‘s argument at trial. Generally, a defendant forfeits a 

claim of prosecutorial misconduct in argument unless the defendant makes a 

specific objection to the argument in the trial court and requests that the jury be 

admonished to disregard it. (People v. Jackson (2014) 58 Cal.4th 724.) The 

failure to do so will be excused if an objection would have been futile or if an 

admonition would not have cured the harm caused by the misconduct. (Ibid.) 

Defendant claims that an admonition would not have cured the harm and that, if it 

would have, defense counsel rendered ineffective assistance in failing to object to 

it. We disagree. 
65

There is no reason to believe that, if an objection had been sustained and 

the court had admonished the jury to ignore the prosecutor‘s remark, the jury 

could not have done so. We generally presume that a jury will follow an 

admonition to disregard questions or arguments to which the trial court has 

sustained an objection. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 173.) 

Counsel did not provide constitutionally deficient assistance in failing to 

object because there was no misconduct by the prosecutor that would have 

provided grounds for a successful objection. ―Ineffective assistance of counsel 

under the Sixth Amendment entails deficient performance under an objective 

standard of professional reasonableness and prejudice under a similarly objective 

standard of a reasonable probability of a more favorable outcome in the absence of 

the deficient performance.‖ (People v. Cole (2004) 33 Cal.4th 1158, 1202, fn. 11; 

see Strickland v. Washington, supra, 466 U.S. at pp. 687-696.) 

A prosecutor‘s argument constitutes misconduct under California law if it 

involves ―the use of deceptive or reprehensible methods to attempt to persuade 

either the court or the jury.‖ (People v. Strickland (1974) 11 Cal.3d 946, 955.) ―A 

prosecutor is given wide latitude to vigorously argue his or her case and to make 

fair comment upon the evidence . . . .‖ (People v. Ledesma (2006) 39 Cal.4th 641, 

726.) Here, the prosecutor‘s comment was a response to defense counsel‘s 

argument that the jury should not believe Howe‘s testimony because of his use of 

numerous aliases, his criminal history, and the inconsistency between his 

testimony that defendant ordered the killing and other evidence indicating that 

defendant was a follower, not a leader. Furthermore, her comment that the jury 

had no reason to doubt Howe‘s testimony was based on her argument that the 

defense had ―never been able to give you a reason that Mr. Howe would lie. . . . In 

fact, the evidence was Mr. Howe had been friends with defendant.‖ The excluded 
66

evidence of Morris‘s statements would not have supplied the jury with a motive 

for Howe to lie. 

Nor did the prosecutor‘s comments violate defendant‘s right to due process 

under the federal constitution. Defendant relies on the principle that due process 

precludes a prosecutor from asking the jury to convict or execute a defendant 

because he failed to present certain evidence when the defendant has not been 

given a full opportunity to present that evidence. (Simmons v. South Carolina

(1994) 512 U.S. 154 [due process violated when prosecution argued defendant 

would pose a future danger to society if he were not executed, but court refused to 

inform jury that he would not be eligible for parole]; Skipper v. South Carolina 

(1986) 476 U.S. 1, 5, fn. 1 [due process violated when defendant was not 

permitted to introduce evidence of his good behavior in prison in response to 

prosecution‘s argument that he posed a future danger if not executed].) In the 

present case, defendant was not denied the opportunity to challenge Howe‘s 

credibility. The trial court merely ruled, under California laws of evidence 

regarding hearsay, that some of the evidence he offered — Morris‘s hearsay 

statements — was not sufficiently reliable to be considered by the jury. Defendant 

was permitted to cross-examine Howe and to make the jury aware not only of his 

numerous prior convictions but also his frequent use of aliases, as well as his 

potential bias because he stood a chance of benefitting personally from his 

testimony. Howe‘s sentencing on certain pending offenses to which he had 

pleaded guilty was postponed until after defendant‘s trial. At that time, the 

sentencing judge — who would be the same judge who was presiding over 

defendant‘s trial — could, in his discretion, sentence Howe to something less than 

the two-year maximum consecutive sentence to which he had agreed in a plea 

bargain. Under these circumstances, the prosecutor‘s argument was not improper 
67

and did not violate defendant‘s due process rights. Consequently, counsel did not 

perform deficiently in failing to object to it.

R. Trial court’s dismissal of Juror No. 27417 for misconduct, failure to 

grant a mistrial, and refusal to grant a new trial based on Juror 

No. 24777’s alleged misconduct

1. Dismissal of Juror No. 27417 and refusal to grant a mistrial

Defendant contends the trial court erred in discharging Juror No. 27417 

during penalty phase deliberations but alternatively, if discharging the juror was 

proper, he argues the trial court erred in refusing to grant a mistrial after the juror 

was dismissed.

Shortly after penalty phase deliberations began, Juror No. 27417 requested 

to speak to the judge. The juror gave the court a letter explaining that, during the 

guilt phase, he had reluctantly agreed that the special circumstance was true based 

on defendant‘s acting with a reckless indifference to life. After hearing the 

opening statements at the penalty phase, the juror realized that defendant faced a 

minimum term of life without parole. He was concerned about the available 

sentencing choices because ―I do not believe the crime he committed is deserving 

of such a severe punishment.‖ Upon questioning, he assured the court that he 

could follow the instructions, deliberate, and make a decision. He was permitted 

to resume deliberations. 

Subsequently, the district attorney reported to the court that his office had 

discovered that the juror had talked to people at his workplace about his 

―unwillingness to impose certain penalties and that he was having trouble 

deliberating with members of the jury.‖ The court conducted a hearing, at which 

two of the juror‘s coworkers testified. One testified that the juror had spoken to 

him about the case two or three times. The first conversation occurred at an early 

stage of the trial and was very general. A few weeks later, they had another 
68

conversation. The case was nearing the conclusion of the guilt phase and there 

was some discussion about two options that the jury was going to address, one of 

which involved ―reckless indifference to human life.‖ The juror mentioned that he 

wanted to educate himself more about what those words meant. The coworker 

testified that the juror mentioned that ―he was one of the last people to come 

around to those terms,‖ that is, that he had not decided yet. Within the previous

week, the two had another conversation. The juror told him the jury was 

deliberating between the death penalty and life in prison and he was undecided. 

A second coworker testified that the juror had also talked to him about the 

case. The juror told him the case was in a second phase, and he was concerned 

that he did not fully understand the consequences of the first phase and how they 

related to the second phase. He mentioned the phrase ―reckless indifference to 

life‖ and that it was a ―key component.‖ The coworker recounted that the juror 

was not familiar with the term and may have asked for clarification from the 

judge. The juror was concerned that the decision was a difficult one and he was 

conscientiously reviewing the case. 

When questioned, the juror admitted he had had conversations with these 

two coworkers about the case. Whenever he talked to someone about what was 

going on, he tried to warn them not to make any comment that might influence 

him. He acknowledged that he had been instructed not to discuss the case, ―[a]nd 

I tried to do that. To not discuss it. And I guess it depends on how — how we 

define what discussing the case means.‖ The juror remembered mentioning to 

someone that the phrase ―reckless indifference to human life‖ was pivotal and that 

he wished he understood it better. He questioned whether the court would define 

that conversation as ―discussing it.‖ When the trial court told him it definitely 

would, he replied, ―Oh, you would? Okay.‖ He remembered expressing that he 

felt some jurors were not giving defendant the benefit of the doubt. He also shared 
69

with his wife his frustrations that some jurors seemed to have made up their mind 

and were not willing to look at the whole picture. None of the people he talked to 

made any substantive response that could have influenced his thinking. 

Over defense counsel‘s objection, the court discharged the juror, 

concluding that he had committed serious and willful misconduct by repeatedly 

discussing the case with outsiders. The court also concluded that it could not rely 

on the juror‘s ability to follow the court‘s instructions or to reasonably interpret 

them, because, even if the juror had been acting in good faith, his interpretation of 

the admonition not to discuss the case was unreasonable. The court denied 

defendant‘s motion for a mistrial, concluding that none of the other jurors had 

been affected by the discharged juror‘s misconduct. 

The trial court subsequently denied defendant‘s motion for a new trial of 

the penalty phase based on the trial court‘s discharge of the juror. The court 

rejected defendant‘s argument that the juror‘s misconduct was not serious, noting 

that the juror had expressed to outsiders his state of mind on issues that were 

before him as a juror and that he had commented on the deliberative process. The 

court also denied defendant‘s motion for a new trial of the guilt phase based on the 

juror‘s misconduct, concluding there was no substantial likelihood that the juror‘s 

conduct resulted in prejudice at the guilt phase. The court found no evidence that 

the juror received any information from or was influenced by any of the people he 

discussed the case with, and there was no evidence that he was biased against 

defendant. 

―If at any time, whether before or after the final submission of the case to 

the jury, a juror dies or becomes ill, or upon other good cause shown to the court is 

found to be unable to perform his or her duty, . . . the court may order the juror to 

be discharged and draw the name of an alternate . . . .‖ (§ 1089.) ―While a trial 

court has broad discretion to remove a juror for cause, it should exercise that 
70

discretion with care.‖ (People v. Barnwell (2007) 41 Cal.4th 1038, 1052, 

fn. omitted.) The trial court‘s decision to dismiss a sitting juror will be upheld on 

review if the juror‘s inability to serve appears in the record ―as a  ̳demonstrable 

reality.‘ ‖ (People v. Wilson, supra, 44 Cal.4th at p. 821.) This standard of review 

is more stringent than the deferential ―  ̳substantial evidence‘ ‖ test. (Ibid.) 

―Under the demonstrable reality standard . . . the reviewing court must be 

confident that the trial court‘s conclusion is manifestly supported by evidence on 

which the court actually relied.‖ (People v. Barnwell, supra, at p. 1053.) 

In People v. Daniels, supra, 52 Cal.3d 815, the trial court excused a juror 

who had read a newspaper account of the case, discussed the case with outsiders, 

and expressed an opinion on the issue of guilt prior to deliberations. (Id. at 

p. 863.) We held that a court may remove a juror for ―serious and willful

misconduct,‖ even if that misconduct does not suggest a bias toward either side. 

(Id. at p. 864.) We concluded that the juror‘s misconduct in violating the court‘s 

instructions not to talk or read about the case rendered her ―unable to perform his 

duty,‖ which ―includes the obligation to follow the instructions of the court, and a 

judge may reasonably conclude that a juror who has violated instructions to refrain 

from discussing the case . . . cannot be counted on to follow instructions in the 

future.‖ (Id. at p. 865.) 

Similarly, in People v. Ledesma, supra. 39 Cal.4th at pages 742-743, the 

trial court discharged a juror who ―admitted that he had discussed the case with his 

wife in violation of the court‘s admonition — an act that constitutes deliberate 

misconduct.‖ (Id. at p. 743.) The juror had recounted the story of the case to his 

wife in order to help himself sort it out. His wife told him that he had a difficult 

decision to make and gave him an opinion which, in the juror‘s view, ―  ̳left me 

with the same decision that I had before.‘ ‖ (Id. at p. 742.) We upheld the trial 

court‘s decision to remove the juror, citing our statement in People v. Daniels that 
71

the trial court could reasonably conclude the juror would be unable to follow the 

court‘s instructions in the future. (People v. Ledesma, supra, at p. 743.) 

In the present case, after the jurors were sworn, they were instructed ―not to 

discuss this case with anyone . . . not even with a fellow sworn trial juror.‖ Before 

the presentation of evidence, the jury was instructed, in the language of CALJIC 

No. 0.50, that ―[y]ou must not converse among yourselves or with anyone else on

any subject connected with this trial‖ except when deliberating. The jurors were 

frequently reminded of this admonition during the course of the trial. 

Nevertheless, the evidence was undisputed that the juror had discussed the case 

with outsiders during the trial. The juror was aware of the instruction not to 

discuss the case but apparently thought that the discussions he had with coworkers 

did not violate the instruction. The trial court decided that the juror‘s 

misinterpretation of the instruction not to discuss the case, even if made in good 

faith, was not reasonable. The trial court‘s conclusion that the juror‘s failure to 

understand and follow this simple instruction constituted grounds to doubt his 

ability to follow the court‘s instructions in the future was manifestly supported by 

the evidence upon which the trial court relied. 

Defendant argues, in the alternative, that if the trial court did not err in 

dismissing the juror, it should have granted defendant‘s motions for a mistrial and 

for a new trial on the guilt phase based on the prejudicial effect of the juror‘s 

misconduct. The record shows that Juror No. 27417 spoke about the case during 

both the guilt and penalty phases. Defendant argues that if the juror was unfit to 

serve during the penalty phase, then he was also unfit to serve during the guilt 

phase. We disagree. 

The removal of a juror for misconduct does not necessarily mean that a 

mistrial is warranted. A juror may be removed if, as here, his misconduct 

establishes that he is unlikely to be able to follow the court‘s instructions in the 
72

future. No finding of prejudice is required before the juror may be removed, and 

misconduct that justifies removal does not necessarily taint the rest of the jury or a 

previous verdict. Juror misconduct does raise a presumption of prejudice, but that 

presumption ―is rebutted, and the verdict will not be disturbed, if the entire record 

in the particular case, including the nature of the misconduct or other event, and 

the surrounding circumstances, indicates there is no reasonable probability of 

prejudice, i.e., no substantial likelihood that one or more jurors were actually 

biased . . . .‖ (In re Hamilton (1999) 20 Cal.4th 273, 296.) We independently 

determine whether such a reasonable probability of prejudice exists, but accept the 

trial court‘s findings of fact and credibility determinations if supported by 

substantial evidence. (People v. Harris, supra, 43 Cal.4th at p. 1303; People v. 

Danks (2004) 32 Cal.4th 269, 304.) 

In the present case, although the trial court concluded that there was 

sufficient doubt about the juror‘s ability to follow the court‘s instructions to justify 

his removal, it also concluded that the juror had not been influenced by any of the 

people he talked to about the case. That conclusion is well supported by the 

evidence. The juror‘s coworkers never testified that they said anything to him 

about the case that could possibly have influenced him. The juror himself, who 

was forthcoming in his testimony, testified that when he talked to others about 

what was going on with the case he cautioned them not to say anything that might 

influence him, and none of them did so. The record demonstrates that there is no 

reasonable probability that the juror was biased against defendant or that his 

discussion of the case with his wife or coworkers in any way affected the jury‘s 

deliberations at the guilt phase. 
73

2. Alleged misconduct of Juror No. 24777

Defendant contends that the trial court erred in refusing to grant a mistrial 

based on the misconduct of another juror, Juror No. 24777, whose discussions of 

the case with outsiders, he contends, was comparable to the misconduct of Juror 

No. 27417. In a motion for new trial, defendant presented affidavits from three 

persons who stated that Juror No. 24777 had discussed the case during trial and 

that she had stated the opinion that defendant would receive the death penalty. 

The court conducted a hearing, at which the three witnesses and Juror No. 24777 

testified. 

The three witnesses had been present at the juror‘s place of employment, a 

childcare classroom at an alcohol and drug rehabilitation program. Kathleen Hash 

testified that she overheard the juror talking about the case with another woman in 

the childcare classroom. The juror ―was talking about being on a jury, of three 

men and an elderly lady, and she was on the trial for the one gentleman, and that 

the jury had not made a decision yet on what was going to happen, but more than 

likely he was going — he was looking at life or death, and more likely he was 

going to get the death penalty.‖ Hash testified that she and witnesses Tina Ferreria 

and Susan Mayberry then starting discussing the case with the juror. The juror 

told them that the case involved three men, and the one that had killed the elderly 

lady killed himself in jail.‖ She also mentioned that a ―guy had driven the truck 

into the lake.‖ 

Ferreria similarly testified that she recalled a conversation with Juror 

No. 24777 in the classroom at which Hash and Mayberry were present, during 

which the juror said the case involved ―the old lady that they stole her car and left 

it in the lake. Mayberry recalled a conversation with the juror at which Ferreria

was present, but she did not recall Hash being there. Mayberry testified that the 

juror told them that she was on the Gary Grimes case. When the conversation 
74

turned to the death penalty, Mayberry said, ―you don‘t want my views on the death 

penalty‖ because ―that usually causes a lot of conflict.‖ The juror, however, said 

nothing about the death penalty. 

Juror No. 24777 denied that any of these conversations had ever taken 

place. She did recall someone asking if she would have a difficult time deciding a 

death penalty case. She testified that she responded that she would ―have to listen 

to what the judge told me, what the law said, and what the facts were.‖ The trial 

court found Hash to be ―less than credible‖ but that Juror No. 24777‘s testimony 

was entirely credible and that she had not discussed the case with the witnesses. It 

further concluded that even if the conversations reported by Ferreria and Mayberry 

took place, there was no evidence of ―any misconduct which could result in 

prejudice‖; Juror No. 24777 had merely identified herself as a juror on a particular 

case. 

When a trial court denies a motion for new trial based on juror misconduct, 

―the reviewing court should accept the trial court‘s factual findings and credibility 

determinations if they are supported by substantial evidence, but must exercise its 

independent judgment to determine whether any misconduct was prejudicial.‖ 

(People v. Dykes (2009) 46 Cal.4th 731, 809; see also People v. Gamache, supra,

48 Cal.4th at p. 386.) Here, the trial court‘s conclusions that the juror was 

credible, and Hash was not, are supported by substantial evidence. The trial court 

had observed the juror not only while she testified but also throughout the trial. 

Hash, on the other hand, appeared less than credible, not only based on her 

demeanor but also on the fact that she had two felony convictions and that she had 

a friendship with two of defendant‘s friends. Neither of the other two witnesses, 

Ferreria and Mayberry, corroborated Hash‘s most damaging allegation — that the 

juror stated that defendant was likely to get the death penalty. The trial court did 
75

not err in concluding that the juror had not discussed the case with the witnesses 

and consequently that defendant failed to establish any prejudicial misconduct. 

S. Cumulative error

Defendant contends that the guilt, special circumstances, and penalty 

verdicts should be reversed based on the cumulative effect of the prejudice 

resulting from all alleged errors, even if each is not prejudicial in itself. We have 

found no error and have presumed error only as to the trial court‘s exclusion of 

certain hearsay statements of Wilson, which we found not to be prejudicial. 

Consequently, there is nothing to cumulate and hence there can be no cumulative 

prejudice.

T. Waiver of jury trial on prior conviction allegations

Defendant contends that the trial court‘s true findings on certain noncapital 

sentencing allegations must be vacated because his waiver of jury trial was 

involuntary. The information charged defendant with a number of noncapital 

sentencing allegations, including allegations that he was on parole (§ 1203.085, 

subd. (b)) and that he had served four prior prison terms (§ 667.5, subd. (b)). Prior 

to trial, defense counsel moved to bifurcate proceedings on these allegations and 

offered to waive jury trial. The trial court received defendant‘s waiver of jury trial 

on these allegations. Subsequently, during guilt phase deliberations, the court and 

defense counsel reviewed the transcript of defendant‘s waiver and agreed that the 

waiver was sufficient and no further advisements need be given. The allegations 

were tried to the court, which found that defendant had been convicted of one 

serious or violent felony within the meaning of the Three Strikes law and had 

served four prior prison terms. Based on these findings, the trial court doubled 

defendant‘s sentence under the Three Strikes law for the offense of unlawful 
76

driving or taking of a vehicle, and imposed four one-year terms for the four prior 

prison term enhancements. 

Defendant contends that his waiver of jury trial on the allegations was 

invalid because the court and counsel informed him that he was required to waive 

his right to a jury trial in order to avoid having the jury be exposed to evidence of 

his criminal history at the guilt phase. This advisement was misleading, defendant 

contends, because defendant could have retained his right to a jury trial and the 

trial court could have bifurcated trial on the sentencing allegations, so that the 

jurors would not hear evidence of his history until after they had decided his guilt 

on the substantive charges. (See People v. Calderon (1994) 9 Cal.4th 69, 72.) 

Defendant has forfeited this claim based on his failure to object in the trial 

court. ―[T]he deprivation of the statutory right to jury trial on the prior prison term 

allegations does not implicate the state or federal constitutional right to jury trial. 

Absent an objection to the discharge of the jury or commencement of court trial, 

defendant is precluded from asserting on appeal a claim of ineffectual waiver of 

the statutory right to jury trial of prior prison term allegations.‖ (People v. Vera

(1997) 15 Cal.4th 269, 278; see People v. Towne (2008) 44 Cal.4th 63, 74-79 

[federal constitutional right to a jury trial does not extend to allegations that a 

defendant has suffered a prior conviction or served a prior prison term].) Here, 

after reviewing the transcript of defendant‘s waiver, defense counsel expressly 

agreed with the trial court that defendant‘s waiver was sufficient. 

Furthermore, the claim fails on the merits. There is no evidence in the 

record that defense counsel advised defendant that trial on the sentencing 

allegations could not be bifurcated unless defendant waived his right to a jury trial. 

The record does not show what advice counsel gave to defendant. There was a 

brief pause in the proceedings while defendant consulted with counsel before 

hearing the trial court‘s advisements and waiving jury trial on the allegations. The 
77

trial court explained to defendant that ―your attorneys have indicated they want 

this jury, when this jury is deciding the issue of whether or not the People have 

proven the charges against you beyond a reasonable doubt, to be influenced in any 

way by also considering the allegations of these prior felony convictions and 

related matters. . . . In order to avoid having the jury deal with that issue, your 

attorneys are recommending to you, apparently, that you waive your right to have 

the jury decide that issue, and that you have those issues, as to each one of these 

prior special allegations, be decided solely by the court.‖ Contrary to defendant‘s 

contention, the court never stated that waiving jury trial was the only way that 

defendant could avoid exposing the jury to his criminal history during the guilt 

phase. Rather, the court stated only that waiving jury trial was the means that 

defendant‘s attorneys were recommending to avoid such exposure. That statement 

was not incorrect or misleading, and does not render defendant‘s waiver 

involuntary. 

U. Sufficiency of evidence to prove four prior prison term allegations

Defendant claims the trial court improperly imposed four one-year 

enhancements for service of prior prison terms when the evidence showed that he 

had served only three separate prison terms. Section 667.5, subdivision (b), 

provides an additional penalty of one year ―for each prior separate prison term . . . 

imposed . . . for any felony.‖ A prior separate prison term is ―a continuous 

completed period of prison incarceration imposed for the particular offense alone 

or in combination with concurrent or consecutive sentences for other crimes . . . .‖ 

(§ 667.5, subd. (g).) ―[T]his statutory language means that only one enhancement 

is proper where concurrent sentences have been imposed in two or more prior 

felony cases.‖ (People v. Jones (1998) 63 Cal.App.4th 744, 747.)
78

As respondent concedes, the evidence shows that defendant served 

consecutive terms on two of the four felony convictions alleged — his convictions 

for being a felon in possession of a firearm and escape (Stanislaus County case 

Nos. 265702 & 265697). Accordingly, the terms served for these offenses were 

not ―separate‖ terms within the meaning of section 667.5, subdivision (b). 

Therefore, the trial court‘s true finding on one of the section 667.5, subdivision 

(b), allegations must be vacated and defendant‘s determinate sentenced modified

by striking the additional one-year sentence.

III. CONCLUSION

The judgment is modified to vacate the trial court‘s true finding on one of 

the section 667.5, subdivision (b), allegations and to strike the additional one-year

sentence for that allegation. In all other respects, the judgment is affirmed. 

CANTIL-SAKAUYE, C. J.

WE CONCUR:

CHIN, J.

CORRIGAN, J.

BAXTER, J.

 

 Retired Associate Justice of the Supreme Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.
1

CONCURRING AND DISSENTING OPINION BY WERDEGAR, J.

I agree with the majority that (1) despite omissions in the Attorney 

General‘s briefing, section 13 of article VI of the California Constitution requires 

we address the prejudice, if any, flowing from the trial court‘s decision to exclude 

hearsay statements John Morris made to Misty Abbott and Albert Lawson (maj. 

opn., ante, at p. 33); and (2) any error in excluding that evidence was harmless at 

the guilt phase. Unlike the majority, however, I find the trial court abused its 

discretion by excluding the aforesaid evidence, and that the error prejudiced 

defendant at the penalty phase of his trial. Consequently, I dissent from that part 

of the majority opinion.

I.

As the majority explains, a hearsay statement—that is, a statement made 

outside of court that is offered in evidence for its truth—may be admitted into 

evidence despite the rule against hearsay if it satisfies the requirements in 

Evidence Code section 1230. That section permits the admission of hearsay if the 

declarant is unavailable and ―the statement, when made, . . . so far subjected him 

to the risk of civil or criminal liability . . . that a reasonable man in his position 

would not have made the statement unless he believed it to be true.‖ Although as 

a general rule a trial court‘s ruling on a hearsay question will be affirmed on 

appeal absent an abuse of discretion, in this case I conclude the trial court erred

under Evidence Code section 1230 in excluding Morris‘s statements to Abbott and 
2

to Lawson. Regarding Morris‘s statement to Misty Abbott that defendant did not 

take part in the actual killing of Betty Bone, and that upon seeing Morris killing 

her, he (defendant) looked at Morris as if to say ―  ̳what in hell are you doing, 

dude‘ ‖ (maj. opn., ante, at p. 24), the clear implication is that killing Bone was 

not part of the group‘s plan, and that Morris acted on his own. This statement 

tends to exculpate defendant (because it suggests he did not intend the victim to be 

killed), and clearly inculpates the declarant Morris (because he admits he 

personally killed Bone). As Justice Liu opines in part I of his separate opinion: 

―Had Morris been tried for capital murder, evidence that his conduct was so 

egregious as to surprise even his confederates would be relevant to the jury‘s 

determination of what penalty to impose on him.‖ (Conc. & dis. opn. of Liu, J., 

post, at p. 5.) More to the point, a reasonable man would not have rendered 

himself vulnerable to the death penalty by making such a statement unless it were 

true. (Evid. Code, § 1230.) 

The same reasoning applies to the second excluded statement. Albert 

Lawson would have testified that, while jointly incarcerated with Morris in county 

jail, Morris told him that defendant and Wilson had joined him in Bone‘s house 

―  ̳but took no part in the actual killing.‘ ‖ (Maj. opn., ante, at p. 24.) By 

assuming sole responsibility for Bone‘s murder, Morris inculpated himself and 

tended to exculpate his codefendants. The majority agrees, reasoning that 

―[s]tatements indicating that [Morris] was the sole killer could [have] subject[ed] 

[him] to a risk of increased criminal liability by establishing aggravating 

circumstances of the crime.‖ (Id., p. 30; see conc. & dis. opn. of Liu, J., post, at 

p. 6.) Again, a reasonable man would not have made such a statement unless it 

were true. (Evid. Code, § 1230.)

I agree with Justice Liu the trial court abused its discretion in excluding the 

statements because ―[u]nder any reasonable reading, the excluded statements 
3

tended to inculpate Morris, and their reliability is buttressed by their consistency 

and the absence of any discernible reason for Morris to lie.‖ (Conc. & dis. opn. of 

Liu, J., post, at pp. 6–7.) The evidence of defendant‘s guilt of felony murder being 

overwhelming, however, I agree with the majority this error did not result in a 

miscarriage of justice at the guilt phase of trial. (Cal. Const., art. VI, § 13; People 

v. Watson (1956) 46 Cal.2d 818, 836–837.) I reach a different conclusion 

concerning the effect of the error at the penalty phase of defendant‘s trial.

II.

This court first set forth the applicable standard of review for penalty phase 

errors in a capital trial in People v. Brown (1988) 46 Cal.3d 432. In that case, we 

explained ―that state law error occurring at the penalty phase must be assessed on 

appeal by asking whether it is reasonably possible the error affected the verdict.‖ 

(People v. Abilez (2007) 41 Cal.4th 472, 525–526, italics added; see Brown, supra, 

at p. 448.) We have since explained the Brown standard is the same in substance 

and effect as that set forth for federal constitutional error in Chapman v. California

(1967) 386 U.S. 18, 24; ―that is, that reversal is required unless it is shown the 

error was harmless beyond a reasonable doubt.‖ (Abilez, supra, at p. 526.) ―  ̳The 

beyond-a-reasonable-doubt standard of Chapman ―requir[es] the beneficiary of a 

[federal] constitutional error to prove beyond a reasonable doubt that the error 

complained of did not contribute to the verdict obtained.‖ (Chapman, supra, 386 

U.S. at p. 24.) ―To say that an error did not contribute to the ensuing verdict is . . . 

to find that error unimportant in relation to everything else the jury considered on 

the issue in question, as revealed in the record.‖ (Yates v. Evatt (1991) 500 U.S. 

391, 403.) Thus, the focus is what the jury actually decided and whether the error 

might have tainted its decision. That is to say, the issue is ―whether the . . . verdict 

actually rendered in this trial was surely unattributable to the error.‖ (Sullivan v. 
4

Louisiana (1993) 508 U.S. 275, 279.)‘ ‖ (People v. Pearson (2013) 56 Cal.4th 

393, 463.)

Applying this rigorous standard of review, I agree with Justice Liu that ―it 

is reasonable to think that the jury‘s determination of whether Grimes deserved the 

death penalty turned significantly on whether he played a leadership role in the 

killing and what his attitude or reaction to the killing was.‖ (Conc. & dis. opn. by 

Liu, J., post, at p. 27.) Although the prosecution presented defendant‘s prior 

criminal behavior as aggravating evidence, the defense met that evidence with 

mitigating evidence detailing defendant‘s dysfunctional childhood, mental 

problems, possible intellectual disability, brain damage and schizophrenia. Victim 

impact evidence from the surviving family was met with evidence from 

defendant‘s sister, mother, ex-wife and others proclaiming their love for 

defendant. Evidence suggesting defendant lacked remorse over Bone‘s murder

was counterbalanced with defense evidence that defendant was the only one to 

have come to the aid of a prisoner being assaulted by others, and evidence 

describing a traumatic incident in which defendant‘s fiancée was killed in a traffic 

accident when defendant went to the aid of her mother, who was being harassed 

by the mother‘s ex-husband. 

Given this relative equipoise of evidence at the penalty phase and the 

undisputed fact that defendant did not personally kill Betty Bone, defendant‘s 

actual role in the events leading to her death was likely a critical factor in the 

jury‘s penalty phase calculus. Accordingly, we must ask: what evidence before 

the jury was relevant to determining defendant‘s role in the murder? Deputy 

O‘Connor testified that inmate Jonathon Howe told him that while incarcerated 

together in the Shasta County Jail in 1998, defendant told Howe that because Bone 

had seen them, defendant ordered Morris and Wilson to kill her. (Howe himself 

was more equivocal, testifying that his memory of his interview with Deputy 
5

O‘Connor had faded.) The prosecutor drew a line under this point in closing 

argument, saying the defense has ―never given you a reason to doubt [Howe‘s] 

testimony.‖

As we now know, however, evidence casting doubt on Howe‘s account 

existed in the form of John Morris‘s out-of-court statements to Misty Abbott and 

to Albert Lawson, evidence excluded by the trial court. Had the jury heard 

evidence suggesting that Morris decided on his own to kill the victim, and that 

defendant and Wilson expressed surprise at his actions, the jury may well have 

questioned Howe‘s assertion that defendant had taken a leadership role among the 

criminal trio. And as Justice Liu further explains (conc. & dis. opn. by Liu, J., 

post, at pp. 27–28), had the jury heard Morris‘s statements that defendant was in 

another part of Bone‘s house during her murder and that he appeared shocked 

upon seeing the murder, the jury may also have questioned Howe‘s further 

assertion that defendant enjoyed watching Morris strangle and then stab the 

victim, and that defendant ―enjoyed the fact she died.‖ Given Howe‘s professed 

lack of memory and his many pending felony and misdemeanor charges, as well as 

the suggestion in the record of the benefits he received for his testimony (in the 

form of dismissed enhancements and the like), admission of Morris‘s out-of-court 

statements would likely have been decisive in convincing the jury to disregard 

Howe‘s rather equivocal evidence.
6

On this record, I find ―there is a reasonable (i.e., realistic) possibility that 

the jury would have rendered a different verdict‖ on penalty had the trial court 

admitted the out-of-court statements Morris made to Abbott and Lawson. (People 

v. Brown, supra, 46 Cal.3d at p. 448.) In other words, I find the error was not 

harmless beyond a reasonable doubt. (People v. Abilez, supra, 41 Cal.4th at 

pp. 525–526.) Although I concur in the affirmance of the guilt phase judgment, I 

dissent from the majority‘s affirmance of defendant‘s penalty phase judgment.

WERDEGAR, J.
1

CONCURRING AND DISSENTING OPINION BY LIU, J.

Ninety-eight-year-old Betty Bone was killed during a home invasion 

robbery committed by defendant Gary Lee Grimes and two confederates, Patrick 

James Wilson and John Morris. Morris committed suicide shortly after his arrest; 

he was never tried. According to witness Misty Abbott, Morris told her on the day 

of the crime that he (Morris) killed Bone by strangling and then stabbing her. This 

statement was admitted at trial. But the trial court refused to admit other 

statements by Morris. The trial court excluded Morris‘s statements to Abbott that 

Grimes ―did not take part in the killing,‖ that Grimes had not ―participated in the 

killing,‖ and that after he (Morris) killed Bone, Grimes and Wilson ―looked at him 

as if they were saying, what in the hell are you doing, dude.‖ The trial court also 

excluded Morris‘s statement to his cellmate, Albert Lawson, that Grimes was ―in

the house but took no part in the actual killing and [was] in some other place in the 

house.‖

In this appeal, Grimes devoted 18 pages of his opening brief to arguing that 

the trial court erred in excluding these statements because they were admissible as 

declarations against Morris‘s interest under Evidence Code section 1230. Four of 

those pages explain that the errors were prejudicial and require reversal of the guilt 

and penalty verdicts. The subheading of this latter discussion reads, ―Because The 

State Will Be Unable To Prove The Exclusion Of Morris‘s Statements Harmless, 

Reversal Is Required.‖
2

In her briefing, the Attorney General responded with nine pages arguing

that ―[t]he trial court did not abuse its discretion or violate appellant‘s federal 

constitutional rights by excluding evidence of Morris‘s out-of-court statements 

that allegedly exculpated appellant of being Bone‘s actual killer.‖ Nowhere in this 

discussion did the Attorney General argue that the exclusion of Morris‘s 

statements, if erroneous, was not prejudicial. By contrast, there are many 

instances elsewhere in her briefing where the Attorney General, after refuting a 

claim of error, raised harmless error as an additional and alternative argument.

In his reply brief, Grimes again addressed the exclusion of Morris‘s 

statements and said: ―Respondent does not dispute that if error occurred, reversal 

of both the special circumstance and penalty phase verdicts is required.‖ In 

advance of oral argument, Grimes submitted a focus letter to this court, with 

notice to the Attorney General, indicating that counsel would address the 

exclusion of Morris‘s statements at oral argument.

At oral argument, upon questioning by the court, the deputy attorney 

general acknowledged that ―the harmless error was omitted from our briefing‖ but 

then proceeded to argue, for the first time, that any error in excluding Morris‘s 

statements was harmless. Three weeks later, this court on its own motion invited 

the parties to file supplemental briefs on the merits of the harmless error issue and

on the effect, if any, of the Attorney General‘s failure to address the issue. The 

case was reargued, during which the court asked the deputy attorney general 

whether she should now be permitted to argue harmless error in light of her failure 

to do so earlier. The deputy attorney general conceded that if the issue was not 

properly addressed in her initial briefing — a matter on which there is no real 

dispute (see Cal. Rules of Court, rule 8.204(a)(1)(B)) — then ―[y]ou shouldn‘t be 

hearing from me‖ on the issue.
3

In the face of these irregularities, today‘s opinion finds no legal or practical 

significance in the Attorney General‘s failure to address harmless error. Not only 

does the court assign no consequence to the Attorney General‘s omission, but the 

court, acting on its own initiative, invited the Attorney General to rectify her 

omission through supplemental briefing. This approach cannot be squared with 

elemental notions of fair play and this court‘s role as a neutral arbiter in the 

adversarial process. With today‘s opinion, we are saying to the Office of the 

Attorney General, the most experienced litigant in California‘s appellate courts: 

―Don‘t worry if you fail to argue harmless error because we will give you a second 

bite at the apple.‖

Because article VI, section 13 of the California Constitution prohibits 

reviewing courts from reversing a judgment without undertaking harmless error 

analysis, I agree that ―the Attorney General‘s failure to respond to defendant‘s 

harmless error argument does not relieve this court of its responsibility to 

determine whether any error was harmless.‖ (Maj. opn., ante, at p. 31.) In making 

this determination, however, I would take into account the Attorney General‘s 

forfeiture by adapting a well-developed body of federal case law on this issue. As 

explained below, no authority supports this court‘s approach of inviting and 

considering belated arguments on harmless error when the government, in 

response to a defendant‘s clearly stated claim of prejudice, does not address the 

issue. Instead, harmless error analysis must be based on the record and arguments 

that are properly before the reviewing court. (See Carducci v. Regan (D.C. Cir. 

1983) 714 F.2d 171, 177 (Scalia, J.) [―The premise of our adversarial system is 

that appellate courts do not sit as self-directed boards of legal inquiry and research, 

but essentially as arbiters of legal questions presented and argued by the parties 

before them.‖].) Ultimately, where the harmlessness of an error under the 
4

applicable legal standard is seriously debatable, a court should not find the error 

harmless on its own initiative.

In this case, the trial court erred in excluding Morris‘s statements to Abbott 

and Lawson because they were clearly admissible as statements against Morris‘s 

penal interests. Applying the proper legal standards for harmless error in a capital 

trial, I find the error unquestionably harmless as to Grimes‘s guilt of special 

circumstance murder. But I do not believe the error can be deemed harmless as to 

the penalty verdict because the excluded statements were crucial to rebutting the 

principal evidence of Grimes‘s leadership and depravity with respect to the killing. 

I therefore dissent from the affirmance of the death judgment.

I.

I begin by explaining why it was error for the trial court to exclude Morris‘s 

statements to Abbott and Lawson. Evidence Code section 1230 allows for the 

admission of hearsay that ―so far subjected [the declarant] to the risk of civil or 

criminal liability‖ that ―a reasonable man in his position would not have made the 

statement unless he believed it to be true.‖ A party seeking to introduce an out-ofcourt statement pursuant to this exception must show that ―the declarant is 

unavailable, that the declaration was against the declarant‘s penal interest, and that 

the declaration was sufficiently reliable to warrant admission despite its hearsay 

character.‖ (People v. Cudjo (1993) 6 Cal.4th 585, 607.) We review a trial court‘s 

ruling on the admissibility of evidence pursuant to section 1230 for abuse of 

discretion. (People v. Valdez (2012) 55 Cal.4th 82, 143.) 

Evidence Code section 1230 does not apply to ―  ̳ ―any statement or portion 

of a statement not itself specifically disserving to the interests of the declarant.‖ ‘ 

[Citation.]‖ (People v. Lawley (2002) 27 Cal.4th 102, 153 (Lawley).) In certain 

circumstances, a statement may specifically disserve the declarant‘s interest by 

exculpating an accomplice. (See Chia v. Cambra (9th Cir. 2004) 360 F.3d 997, 
5

1005 [statement that ―simultaneously‖ inculpated declarant and exculpated 

defendant was admissible as a statement against interest]; U.S. v. Paguio (9th Cir. 

1997) 114 F.3d 928, 933 [―In context, the father‘s statement that his son had 

nothing to do with [the crime] was inculpatory of the father as well as exculpatory 

of the son.‖].) Whether a statement that exculpates a defendant is admissible as a 

statement against the declarant‘s interest depends on the context in which the 

statement was made. (Paguio, at pp. 933–934.) ―  ̳Thus a statement admitting 

guilt and implicating another person, made while in custody, may well be 

motivated by a desire to curry favor with the authorities and hence fail to qualify 

as against interest. . . . On the other hand, the same words spoken under different 

circumstances, e.g., to an acquaintance, would have no difficulty in qualifying.‘ ‖ 

(Williamson v. United States (1994) 512 U.S. 594, 601–602, quoting Advisory 

Com. Notes, Fed. Rules Evid., rule 804(b)(3), (28 U.S.C.); see Lawley, at p. 153 

[―Whether a statement is self-inculpatory or not can only be determined by 

viewing the statement in context.‖].)

Morris‘s statement to Abbott indicates at the least that Grimes and Wilson 

were ―surprised or alarmed‖ by Morris‘s actions. (Maj. opn., ante, at p. 29.) 

Although Morris‘s statement did not specify the reason for their surprise, any 

reasonable interpretation of such a reaction inculpates Morris. Surprise at the fact 

of the killing would undermine the inference that Grimes ordered or otherwise 

participated in the decision to kill Bone; it would instead support an inference that 

Morris made the decision to do so on his own. Surprise at the circumstances of 

the killing would suggest that Morris acted on his own initiative in choosing a

gruesome way of killing Bone. Had Morris been tried for capital murder, 

evidence that his conduct was so egregious as to surprise even his confederates 

would be relevant to the jury‘s determination of what penalty to impose. (See Pen.

Code, § 190.3, subd. (a); People v. Bunyard (2009) 45 Cal.4th 836, 859 [―section 
6

190.3, factor (a) is concerned with those circumstances that make a murder 

especially aggravated, and therefore make a defendant more culpable and 

deserving of the ultimate penalty‖].)

Morris‘s statement to Lawson also stressed Morris‘s personal responsibility 

for the killing, undermining any inference that he drew tacit support or approval 

from Grimes‘s presence, oversight, or counsel. Had Morris faced trial, this 

evidence would have impaired his ability to argue that he was simply following 

orders or acting according to someone else‘s plan, or to later deny that he alone 

committed the act of killing. Like his statement to Abbott, Morris‘s statement to 

Lawson would have undermined his ability to distribute blame across the group.

Although today‘s opinion acknowledges as much (see maj. opn., ante, at 

p. 30 [―Statements indicating that the declarant was the sole killer could subject 

the declarant to a risk of increased criminal liability by establishing aggravating 

circumstances of the crime.‖]), the court reasons that because Morris had already 

told Abbott that he choked and stabbed Bone to death, his statements to Abbott 

and Lawson that Grimes took no part in the killing were not sufficiently selfinculpatory to guarantee its reliability. But there is no indication in the record that

Morris said he acted alone or without assistance in his earlier admission to Abbott. 

Nor is there any reason to think Morris was speaking with such analytical 

precision that, having realized he had already implicated himself as the sole killer

in an earlier conversation with Abbott, he felt he had nothing to lose by later 

saying, falsely, that he killed Bone without the presence, participation, or support

of his confederates. If anything, the consistency between the excluded statements 

and Morris‘s earlier confession to Abbott renders the excluded statements more

reliable, not less.

Under any reasonable reading, the excluded statements tended to inculpate 

Morris, and their reliability is buttressed by their consistency and the absence of 
7

any discernible reason for Morris to lie. Accordingly, I would hold that the trial 

court abused its discretion in excluding these statements.

II.

Today‘s opinion declines to decide whether the trial court improperly 

excluded Morris‘s statement to Lawson and instead concludes that any error was 

harmless beyond a reasonable doubt as to the guilt and penalty verdicts, even 

though ―[t]he Attorney General did not argue, in her answer brief, that any error in 

the exclusion of Morris‘s hearsay statements was harmless.‖ (Maj. opn., ante, at 

p. 31.) I agree that article VI, section 13 of the California Constitution obligates 

us to address harmless error despite the government‘s forfeiture. But having 

found that the Attorney General did not argue harmless error, we should not have 

invited supplemental briefing on the issue. In so doing, the court gave the 

government an unwarranted second bite at the apple.

―In our adversary system, in both civil and criminal cases, in the first 

instance and on appeal, we follow the principle of party presentation. That is, we 

rely on the parties to frame the issues for decision and assign to courts the role of 

neutral arbiter of matters the parties present. . . . [A]s a general rule,  ̳[o]ur 

adversary system is designed around the premise that the parties know what is best 

for them, and are responsible for advancing the facts and arguments entitling them 

to relief.‘ ‖ (Greenlaw v. United States (2008) 554 U.S. 237, 243–244

(Greenlaw).) The court‘s neutrality, in appearance and reality, is crucial to its 

legitimacy and to the overall functioning of the judicial system. (See Broadman v. 

Commission on Judicial Performance (1998) 18 Cal.4th 1079, 1100 [―Judges . . . 

cannot be advocates for the interests of any parties; they must be, and be perceived 

to be, neutral arbiters of both fact and law [citation] who apply the law uniformly 

and consistently.‖].)
8

These adversarial principles are evident in the procedural rules that govern 

day-to-day practice before our court. For example, if an appellant fails to file an 

opening brief, the appeal is subject to dismissal. (Cal. Rules of Court, rule 

8.360(c)(5)(A).) If a respondent fails to file a response, the court ―will decide the 

appeal on the record, the opening brief, and any oral argument by appellant.‖ (Id., 

rule 8.360(c)(5)(B).) The same is true if a party does not show up for oral 

argument. (Pen. Code, § 1253.) A party forfeits an argument by failing to raise it 

in the opening brief. (See People v. Tully (2012) 54 Cal.4th 952, 1075 [―It is 

axiomatic that arguments made for the first time in a reply brief will not be 

entertained because of the unfairness to the other party.‖].) Even a claim that a 

party explicitly asserts may be disregarded if it is briefed in a perfunctory or 

conclusory manner. (See People v. Barnett (1998) 17 Cal.4th 1044, 1182 [claim 

presented without ―adequate‖ supporting legal argument was ―not properly 

raised‖]; People v. Williams (1997) 16 Cal.4th 153, 206 [―Points  ̳perfunctorily 

asserted without argument in support‘ are not properly raised.‖]; People v. 

Mayfield (1993) 5 Cal.4th 142, 196 [―Defendant‘s constitutional claims largely are 

asserted perfunctorily and without argument in support. Therefore we do not 

consider them.‖].) These forfeiture rules apply to a criminal defendant whose 

opening brief does not explain how an asserted error resulted in prejudice. (See

People v. Hill (1992) 3 Cal.4th 959, 996 (Hill); Adams v. MHC Colony Park 

Limited Partnership (2014) 224 Cal.App.4th 601, 614.)

Procedural rules of this sort are designed to promote the fair and orderly 

administration of justice. They serve this function when applied evenhandedly to 

all parties, regardless of whether compliance is more difficult for some parties or 

whether compliance is strictly necessary to the court‘s resolution of a particular 

claim. Thus, forfeiture rules generally apply to the government in the same 

manner and to the same extent that they apply to criminal defendants. (See Wilson 
9

v. O’Leary (7th Cir. 1990) 895 F.2d 378, 384 (O’Leary) [―Procedural rules apply 

to the government as well as to defendants.‖]; Calvert v. Wilson (6th Cir. 2002) 

288 F.3d 823, 835–836 (conc. opn. of Cole, J.) [―While a petitioner has the 

responsibility of ensuring that all claims in support of a petition for writ of habeas 

corpus are timely raised, so too does the warden bear the responsibility of ensuring 

all defenses, including harmless error, are timely raised.‖]; Rose v. United States

(D.C. 1993) 629 A.2d 526, 537 (Rose) [―[A]lthough the public is entitled to have 

valid judgments of conviction sustained, the public ordinarily must be bound by 

the actions of its counsel, just as a criminal defendant normally is. That is how the 

adversary system works.‖].)

In the criminal context, there is an additional reason why courts must hew 

carefully to their role as neutral arbiters. Within our system of divided 

government, the ―prosecution of criminal offenses on behalf of the People is the 

sole responsibility of the public prosecutor.‖ (Dix v. Superior Court (1991) 53 

Cal.3d 442, 451; see Pen. Code, § 684; Gov. Code, §§ 100, subd. (b), 26500.) The 

judiciary, by contrast, has no constitutional or statutory authority to represent the 

people in criminal prosecutions. (Steen v. Appellate Division, Superior Court of 

Los Angeles County (2014) 59 Cal.4th 1045, 1052, 1053–1054.) Prosecutorial 

discretion includes deciding ―whom to charge, what charges to file and pursue, 

and what punishment to seek,‖ as well as ―the conduct of a criminal action once 

commenced.‖ (Dix, at pp. 451–452.) Defending or not defending a conviction on 

the basis of harmless error is an exercise of prosecutorial ―responsibility to decide 

in the public interest whether to seek, oppose, accept, or challenge judicial actions 

and rulings.‖ (Id. at p. 452.) Such a decision reflects a prosecutorial judgment as 

to whether, without the benefit of the error, the case should have gone forward, 

would have satisfied the burden of proof, or would have served the interests of 

justice. If the government ―has . . . assumed its traditional role of advocate‖ by 
10

―vigorously argu[ing] for affirmance‖ and ―has selected the arguments it believes 

are best suited to achieve that end,‖ then ―the adversary system should be allowed 

to function as such,‖ and courts should not ―automatically . . . act as an 

institutional failsafe to make sure that the government has not compromised its 

prosecutorial responsibility.‖ (Rose, supra, 629 A.2d at p. 534.)

In this case, the Attorney General ―has vigorously argued for affirmance‖ 

and ―has selected the arguments it believes are best suited to achieve that end.‖ 

(Rose, supra, 629 A.2d at p. 534.) Her answer brief argues harmless error in 

response to several issues raised by Grimes, but not in response to the claim that 

the trial court improperly excluded Morris‘s statements. Thus, the Attorney 

General has forfeited the opportunity to make that argument. Her forfeiture 

cannot turn on whether the failure to make the argument was intentional or 

inadvertent, for we do not engage in such inquiry when applying forfeiture rules to 

criminal defendants on direct appeal. How could we make such a factual 

determination in the course of an appellate proceeding, anyway? Would we have 

to appoint a referee to consider a sworn declaration from the Attorney General or 

her delegates? Or hear live testimony? In this case, the names of five attorneys 

appear on the government‘s brief: the Attorney General, a chief assistant attorney 

general, a senior assistant attorney general, a supervising deputy attorney general, 

and a deputy attorney general. Would we have to inquire of one of them? Some 

of them? Or all of them?

Moreover, it does not matter whether an omitted claim happens to surface 

later on. In this case, the Attorney General did not respond in her briefing to 

Grimes‘s argument that the error was prejudicial, did not indicate that she would 

focus on this issue at oral argument, and did not raise the issue at oral argument. 

The deputy attorney general addressed harmless error only in response to a 

question from the bench. At that point, the deputy attorney general insisted that 
11

the failure to brief the issue ―wasn‘t an act of forfeiting such a claim‖ and 

proceeded to argue, for the first time, that any error was harmless. But the fact 

that the deputy attorney general said the omission was unintended — along with 

the fact that her harmless error argument is now before us in supplemental briefing 

— is sheer happenstance. Had the court not inquired, or had Grimes not focused

his oral argument on this particular issue, we would have had no basis to believe 

the omission was inadvertent. Such fortuities should not guide our approach.

Today‘s opinion says, ―We have occasionally exercised our discretion to 

permit defendants to file supplemental briefs raising new issues in capital 

appeals.‖ (Maj. opn., ante, at p. 36, citing People v. Howard (2010) 51 Cal.4th 15, 

26, 30, fn. 6, 33, and People v. Carrington (2009) 47 Cal.4th 187 and docket

entries, case No. S043628.) But the two cited instances involved unusual 

circumstances that have no analog here. In Howard, we allowed the defendant to 

raise new issues in supplemental briefing because a new lawyer had taken over 

and reexamined the defendant‘s appeal after the completion of briefing. (See Mot. 

for Permission to File Supp. Br. (Feb. 6, 2008) People v. Howard (S050583), p. 3.) 

In Carrington, the new issue addressed by the defendant was not really new; it had 

been raised in the government‘s brief as a meritorious noncapital issue warranting 

relief. (See Mot. for Leave to File Supp. Br. (Oct. 7, 2005) People v. Carrington

(S043628), p. 2.) And our published opinion in Carrington does not mention, 

much less approve, the belated presentation of new arguments. If anything, the 

atypical situations in Howard and Carrington suggest they were exceptions to our 

general rule. Moreover, in both cases we allowed supplemental briefing in 

response to the defendant‘s request; we did not invite the defendant to address a 

previously neglected issue on our own initiative, as we have done with the 

Attorney General in this case.
12

The principles above readily establish that the Attorney General forfeited 

the issue of harmless error in this case. Having failed to address Grimes‘s claim of 

prejudice in her answer brief, she had no further entitlement to argue the issue. As 

the deputy attorney general conceded at reargument, ―You shouldn‘t be hearing 

from me‖ on harmless error. In light of the government‘s forfeiture, our ordinary 

posture of impartiality should have restrained us from soliciting and considering 

supplemental briefing on our own initiative.

III.

I now consider how the government‘s failure to argue harmless error affects

the treatment of that issue by an appellate court. A substantial body of federal 

case law has addressed this question and provides helpful guidance for how we 

should approach this case. Although I agree with today‘s opinion that the 

California Constitution requires us to address harmless error, the government‘s 

omission is not, as the court suggests, without consequence to the analysis or 

outcome.

A.

The government‘s failure to argue harmless error has occurred with some 

frequency in the federal courts of appeals. Two provisions of law codify a 

harmless error rule binding on federal courts. Rule 52(a) of the Federal Rules of 

Criminal Procedure says: ―Any error, defect, irregularity, or variance that does 

not affect substantial rights must be disregarded.‖ And section 2111 of title 28 of 

the United States Code says: ―On the hearing of any appeal or writ of certiorari in 

any case, the court shall give judgment after an examination of the record without 

regard to errors or defects which do not affect the substantial rights of the parties.‖ 

The mandatory language of these provisions directs federal courts to disregard 

errors that do not affect substantial rights. But no federal court has read these 

provisions to require consideration of harmless error when the government has not 
13

raised it. That is because, as one leading case explains, mandatory language ―is a 

general feature of legal rules, and does not make their provisions nonwaivable. 

Specific rules of conduct or procedure are promulgated against a backdrop of 

understandings concerning the procedure for invoking the benefits of rules, or for 

waiving those benefits.‖ (U.S. v. Giovannetti (7th Cir. 1991) 928 F.2d 225, 226 

(Giovannetti).)

Some cases have held that when the government fails to argue harmless 

error, a finding of error simply results in reversal without inquiry into prejudice. 

(See U.S. v. Cacho-Bonilla (1st Cir. 2005) 404 F.3d 84, 90; U.S. v. Varela-Rivera

(9th Cir. 2002) 279 F.3d 1174, 1180; O’Leary, supra, 895 F.2d at p. 384; see also 

United States v. Pryce (D.C. Cir. 1991) 938 F.2d 1343, 1352–1353 (Pryce) (conc. 

& dis. opn. of Silberman, J.).) The dominant view in federal case law, however, is 

that courts have discretion to determine whether an error is harmless despite the 

government‘s failure to raise the issue. In deciding whether to exercise that

discretion, many courts have followed the Seventh Circuit‘s guidance in 

Giovannetti that ―the controlling considerations are the length and complexity of 

the record, whether the harmlessness of the error or errors found is certain or 

debatable, and whether a reversal will result in protracted, costly, and ultimately 

futile proceedings in the district court.‖ (Giovannetti, supra, 928 F.2d at p. 227; 

see U.S. v. Hunter (D.C. Cir. 2014) 554 Fed.Appx 5, 11–12 [following Pryce, 

supra, 938 F.2d at p. 1348 (lead opn. of Williams, J.)]; Gover v. Perry (6th Cir. 

2012) 698 F.3d 295, 300–301 (Gover); U.S. v. Gonzalez-Flores (9th Cir. 2005) 

418 F.3d 1093, 1100 (Gonzalez-Flores); U.S. v. Torrez-Ortega (10th Cir. 1999)

184 F.3d 1128, 1136 (Torrez-Ortega); U.S. v. McLaughlin (3d Cir. 1997) 126 F.3d 

130, 135; Lufkins v. Leapley (8th Cir.1992) 965 F.2d 1477, 1481; see also U.S. v. 

Rose (1st Cir. 1997) 104 F.3d 1408, 1415 [finding Giovannetti factors relevant but 

not exhaustive].)
14

As these cases have explained, ―the dangers of allowing sua sponte 

consideration of harmlessness . . . include the potential burden on reviewing courts 

of searching the record without guidance from the parties and encouragement of 

sloppy practice by lawyers.‖ (Gover, supra, 698 F.3d at p. 300; see Giovannetti,

supra, 928 F.2d at p. 226.) ―[T]he practice may unfairly tilt the scales of justice 

by authorizing courts to construct the government‘s best arguments for it without 

providing the defendant with a chance to respond.‖ (Gonzalez-Flores, supra, 418 

F.3d at p. 1101.) ―  ̳[W]here the case is at all close, defense counsel‘s lack of 

opportunity to answer potential harmless error arguments may lead the court to 

miss an angle that would have shown the error to have been prejudicial.‘ ‖ (Ibid., 

quoting Pryce, supra, 938 F.2d at p. 1347 (lead opn. of Williams, J.).) At the 

same time, courts must also consider ―the potential costs to third parties and to the 

system brought about by needless relitigation of cases in which the error did not 

make any difference.‖ (Gonzalez-Flores, at p. 1100; see Gover, at p. 301.) To 

avoid burdening ―other users of the court system, whose access to that system is 

impaired by additional litigation‖ and ―unnecessary court delay,‖ courts may 

―disregard a harmless error even though through some regrettable oversight 

harmlessness is not argued‖ by the government. (Giovannetti, at p. 226.)

A review of the case law shows that courts, in determining whether to 

address harmless error when the government forfeits the issue, focus primarily on 

how certain or debatable the harmlessness of the error is in light of the record. 

(See Gonzalez-Flores, supra, 418 F.3d at p. 1101 [―the court‘s certainty as to the 

harmlessness of the error . . . is of particular importance‖].) In Giovannetti, the 

Seventh Circuit concluded that ―[t]he certainty of harmlessness does not appear 

with such clarity from an unguided search of the record that we should raise the 

issue on our own motion.‖ (Giovannetti, supra, 928 F.2d at p. 227.) In TorrezOrtega, the Tenth Circuit similarly declined to conduct harmless error review ―in 
15

the complete absence of guidance from the government‖ where ―[t]he 

harmlessness of the constitutional error is at best debatable‖ in light of an 

―extensive and complex‖ record. (Torrez-Ortega, supra, 184 F.3d at p. 1136.) 

Other courts have refused to address harmless error for similar reasons. (See U.S.

v. Davis (3d Cir. 2013) 726 F.3d 434, 445, fn. 8 (Davis); U.S. v. Kloehn (9th Cir. 

2010) 620 F.3d 1122, 1130–1131; U.S. v. Davis (D.C. Cir. 2010) 596 F.3d 852, 

861; U.S. v. Silva (7th Cir. 2004) 380 F.3d 1018, 1021; U.S. v. Samaniego (10th 

Cir. 1999) 187 F.3d 1222, 1225–1226.)

Where courts have decided to address harmless error on their own 

initiative, some have found the error prejudicial. (See U.S. v. Hatfield (7th Cir. 

2010) 591 F.3d 945, 951; U.S. v. Montgomery (8th Cir. 1996) 100 F.3d 1404, 

1407; U.S. v. Rodriguez Cortes (1st Cir. 1991) 949 F.2d 532, 543.) Others have 

found the error harmless. (See U.S. v. Brooks (9th Cir., Nov. 24, 2014, No. 13-

10146) __ F.3d __, __ [2014 U.S. App. LEXIS 22217, at p. *23] (Brooks) [finding 

error harmless with respect to two convictions but not a third]; Gover, supra, 698 

F.3d at pp. 301–302; U.S. v. Shavers (3d Cir. 2012) 693 F.3d 363, 389 (Shavers);

U.S. v. Ford (7th Cir. 2012) 683 F.3d 761, 768–769 (Ford); Gonzalez-Flores, 

supra, 418 F.3d at p. 1102; U.S. v. Rose, supra, 104 F.3d at pp. 1414–1415; Pryce, 

supra, 938 F.2d at pp. 1348–1350 [finding error harmless with respect to three

defendants but not with respect to a fourth].)

As to the latter cases, it is important to note the caution expressed by those 

courts. The Sixth Circuit in Gover said that finding harmless error sua sponte is 

appropriate ―when there is no doubt as to the ultimate result‖ under the applicable 

standard or ―when the error is harmless upon review of a clear record.‖ (Gover, 

supra, 698 F.3d at p. 301.) The Ninth Circuit in Gonzalez-Flores similarly 

observed that a sua sponte finding of harmless error is proper only when ―the 

harmlessness of any error is clear beyond serious debate and further proceedings 
16

are certain to replicate the original result.‖ (Gonzalez-Flores, supra, 418 F.3d at 

p. 1100; see Brooks, supra, __ F.3d at p. __ [2014 U.S. App. LEXIS 22217, at 

p. *24] [―Certainty as to harmlessness is a prerequisite‖].) The First Circuit in 

United States v. Rose warned that ―[t]he government‘s case is, of course, put at 

risk by its failure to argue that admission of the evidence was harmless.‖ (U.S. v. 

Rose, supra, 104 F.3d at p. 1415.) And Judge Williams‘s opinion in Pryce, which 

the D.C. Circuit has subsequently followed, said that ―a court should normally 

conduct the harmless error inquiry on its own initiative only where the relevant 

portions of the record are reasonably short and straightforward. Moreover, where 

a court does conduct the inquiry on its own, it should err on the side of the 

criminal defendant.‖ (Pryce, supra, 938 F.2d at p. 1348.)

This narrow approach is evident in the analysis of the record in those cases 

that have found harmless error sua sponte. (See Brooks, supra, __ F.3d at p. __ 

[2014 U.S. App. LEXIS 22217, at p. *22] [―overwhelming evidence‖ of guilt in ―a 

four-day trial‖ where ―the complexity of the record is modest‖]; Gover, supra, 698 

F.3d at p. 303 [erroneously admitted testimony ―was cumulative of the testimony 

of others, and was of extremely little weight when compared to the weight of the 

totality of the evidence admitted against Gover‖]; Shavers, supra, 693 F.3d at 

p. 389 [―overwhelming evidence‖ of guilt]; Ford, supra, 683 F.3d at pp. 767–768 

[DNA evidence showed 1 in 29 trillion chance that defendant was not the robber]; 

Gonzalez-Flores, supra, 418 F.3d at p. 1102 [finding error ―undeniably harmless‖ 

where ―[t]he record . . . is small and simple,‖ ―trial lasted less than two days,‖ ―the 

evidence against [defendant] was overwhelming,‖ ―[t]he elements of the crime 

were easily established,‖ and ―Gonzalez put on no defense‖]; U.S. v. Rose, supra, 

104 F.3d at p. 1414 [finding error ―plainly harmless‖ where improperly admitted 

―photograph was cumulative, [and] the weight of the additional evidence 

overwhelming‖].) In Pryce, Judge Williams observed that ―the record is neither 
17

long nor complicated‖ and concluded that ―the error was indisputably harmless‖ as 

to three defendants because ―[i]t obviously did not harm‖ one of them and raised 

no ―serious argument for reversing the convictions of‖ two others. (Pryce, supra, 

938 F.2d at p. 1348.) As to a fourth defendant, Judge Williams found ―the matter 

. . . open to serious debate‖ and, on that basis, concluded that reversal was 

required. (Id. at p. 1349.)

In sum, a significant body of case law holds that courts may find harmless 

error on their own initiative ―only where the harmlessness of the error is not 

reasonably debatable.‖ (Gonzalez-Flores, supra, 418 F.3d at p. 1101; see Pryce, 

supra, 938 F.2d at p. 1348 (lead opn. of Williams, J.) [―Where the government 

does not raise the harmless error issue, I would deem errors  ̳harmless‘ only where 

satisfaction of that standard is beyond serious debate.‖]; Giovannetti, supra, 928 

F.2d at p. 227 [sua sponte finding of harmless error is appropriate ―if the 

harmlessness of the error is readily discernible without an elaborate search of the 

record‖].) Courts have endorsed this approach as striking a proper balance among 

multiple values: ensuring accurate outcomes, encouraging timely presentation and 

efficient resolution of harmless error claims, avoiding undue delay and needless 

relitigation, and maintaining judicial neutrality and fairness in the adversarial 

process.

B.

While acknowledging some of this case law, today‘s opinion ultimately 

deems it irrelevant because ―the forfeiture rules employed in the federal courts are 

not binding on this court.‖ (Maj. opn., ante, at p. 34.) What is binding is article 

VI, section 13 of the California Constitution, which says: ―No judgment shall be 

set aside, or new trial granted, in any cause, on the ground of misdirection of the 

jury, or of the improper admission or rejection of evidence, or for any error as to 

any matter of pleading, or for any error as to any matter of procedure, unless, after 
18

an examination of the entire cause, including the evidence, the court shall be of the 

opinion that the error complained of has resulted in a miscarriage of justice.‖

The plain meaning of this provision is that a reviewing court may not 

reverse a judgment without addressing harmless error. It is true that federal 

courts, despite the mandatory language of the federal harmless error provisions, 

have held that they have discretion not to address the issue when the government 

does not raise it. (Ante, at p. 15.) But the text of article VI, section 13 differs from 

the analogous federal provisions in two respects. First, it is phrased as a 

prohibition: ―No judgment shall be set aside, or new trial granted, . . . unless . . . .‖ 

Second, it sets forth not only a substantive standard for reversal but also a 

procedural requirement: a reviewing court must conduct ―an examination of the 

entire cause, including the evidence,‖ before setting aside a judgment. Thus, I 

agree that ―[t]he Attorney General‘s failure does not relieve this court of its 

constitutional responsibility to determine whether any error resulted in a 

miscarriage of justice.‖ (Maj. opn., ante, at p. 33.)

I do not agree, however, that the Attorney General‘s forfeiture makes no 

difference to our resolution of the harmless error issue. As an initial matter, the 

fact that article VI, section 13 requires us to address harmless error does not justify 

our invitation or consideration of the Attorney General‘s belated views on the 

subject. Nothing in article VI, section 13 or its enactment history suggests that it 

was intended to displace the ordinary norms of the adversarial process or the 

ordinary expectation that the parties will argue the merits of the issue. (See 

People v. O’Bryan (1913) 165 Cal. 55, 63–64 (O’Bryan) [discussing history of the 

provision].) Although article VI, section 13 obligates us to decide the issue, we 

must decide it without giving special treatment to either party.

It may be argued that having the benefit of the Attorney General‘s views, 

even though untimely, is likely to enhance the accuracy of our harmless error 
19

inquiry. That is, we are more apt to reach the ―correct‖ result with full 

information and guidance from an interested party. But the legally correct

outcome in any case is necessarily shaped by the circumstances of that case,

including the evidence presented, the objections made at trial, and the claims 

raised on appeal, and adherence or lack of adherence to established procedure is a 

circumstance that properly informs the outcome. When a defendant omits a 

particular argument in the opening brief and attempts to raise it in the reply brief 

or at oral argument, we do not typically pardon the oversight for the sake of 

greater accuracy in determining whether the trial reached the correct result. (See

maj. opn., ante, at pp. 31–32.) Moreover, the situation here is not unique insofar 

as harmless error directly concerns the issue of reversal or affirmance, for the 

import of any procedural rule — the reason procedure matters — is that it may 

affect the outcome.

Few if any cases are litigated perfectly, and we must decide each case as it 

comes to us, warts and all. (See Greenlaw, supra, 554 U.S. at p. 244 [―  ̳[Courts] 

do not, or should not, sally forth each day looking for wrongs to right. We wait 

for cases to come to us, and when they do we normally decide only questions 

presented by the parties.‘ ‖].) Tellingly, today‘s opinion is unable to cite a single 

instance in which a court has addressed harmless error in the face of a government 

forfeiture while also giving the government a second chance to brief the issue. 

Courts have rejected such an approach because of its obvious unfairness and the 

dubious incentive it would provide for careless or manipulative lawyering. (See 

Giovannetti, supra, 928 F.2d at pp. 226–227; Holland v. McGinnis (7th Cir. 1992) 

963 F.2d 1044, 1057–1058.)

What difference, then, does the government‘s forfeiture make to the merits 

of the issue? One might argue that it should not make any difference since we can 

and, under our state Constitution, we must examine the entire record ourselves, 
20

even if the task is more burdensome without guidance from the Attorney General. 

This view, however, overlooks several important considerations.

First, although this court can and does independently canvass the record 

when assessing prejudice, our reading of the record without guidance from the 

government provides a necessarily limited window into the dynamics of the case. 

The record on appellate review often does not illuminate matters of credibility, 

demeanor, intonation, or emphasis — all of which may affect what evidence the 

jury found convincing or not. (See, e.g., Elkins v. Superior Court (2007) 41 

Cal.4th 1337, 1358; People v. Lewis (2001) 26 Cal.4th 334, 359; Meiner v. Ford 

Motor Co. (1971) 17 Cal.App.3d 127, 140–141.) It is already imperative, when 

the issue of harmless error is fully litigated by the parties, that reviewing courts 

exercise caution in reweighing the evidence. (See O’Bryan, supra, 165 Cal. at 

p. 66 [―We are not substituted for the jury. We are not to determine, as an original 

inquiry, the question of the defendant‘s guilt or innocence.‖].) This imperative is 

even greater when the government does not address the issue. A reviewing court‘s 

counterfactually constructed understanding of the evidence in support of the jury‘s 

verdict may not correspond to how the evidence actually came across to the jury at 

trial. Aspects of the record that a court finds significant may not have been 

significant at all; conversely, aspects that a court overlooks or discounts may have 

been important in real time. Because ―  ̳[c]ounsel almost always know a great deal 

more about their cases than we do‘ ‖ (Greenlaw, supra, 554 U.S. at p. 244), a 

reviewing court must be especially cautious in rejecting a defendant‘s explanation 

of prejudice in favor of the court‘s own narration of the record.

Second, when a reviewing court finds harmless error on its own initiative, 

it is in effect ―construct[ing] the government‘s best arguments for it without 

providing the defendant with a chance to respond.‖ (Gonzalez-Flores, supra, 418 

F.3d at p. 1101.) Such an approach ―  ̳may lead the court to miss an angle that 
21

would have shown the error to have been prejudicial.‘ ‖ (Ibid., quoting Pryce, 

supra, 938 F.2d at p. 1347 (lead opn. of Williams, J.).) In this case, the court 

notes that Grimes was ―given adequate notice of the Attorney General‘s position 

and an opportunity to respond to it.‖ (Maj. opn., ante, at p. 33.) But that is only 

because the court improperly invited supplemental briefing from the Attorney 

General on harmless error. Properly understood, the posture of Grimes‘s 

challenge to the exclusion of Morris‘s statements is that Grimes has claimed 

prejudicial error and the Attorney General, while disputing the error, has forfeited 

the issue of harmlessness. It is in that posture that we must address harmless error, 

thus implicating the concerns above.

Third, the significance of the Attorney General‘s forfeiture must be 

considered in light of the usual inference that a party‘s failure to assert a particular 

claim signals its acquiescence. (See People v. Bouzas (1991) 53 Cal.3d 467, 480;

People v. Isaac (2014) 224 Cal.App.4th 143, 147, fn. 4; People v. Carson (1970) 4 

Cal.App.3d 782, 784–785; Giovannetti, supra, 928 F.2d at p. 226 [―the defendant 

goes out of his way to argue that the error of which he complains was prejudicial, 

and the government by not responding signals its acquiescence that if there was 

error, it indeed was prejudicial‖]; Davis, supra, 726 F.3d at p. 445, fn. 8 [―Such 

silence usually means that harmless error is waived . . . .‖]; Gonzalez-Flores, 

supra, 418 F.3d at p. 1100 [―Usually when the government fails to argue 

harmlessness, we deem the issue waived . . . .‖].) The court cites Hill for the 

proposition that ―[w]e do not . . . invariably interpret the failure to respond to an 

argument as a concession or a forfeiture.‖ (Maj. opn., ante, at p. 32, citing Hill, 

supra, 3 Cal.4th at p. 995, fn. 3.) But Hill was a case where the claim of error to 

which the government failed to respond was ―itself raised for the first time on 

appeal‖ (Hill, at p. 995, fn. 3; see id. at p. 995 [defendant waived the claim at 
22

trial]) and lacked any explanation of why the error was prejudicial (id. at p. 996). 

The same is not true here.

In this case, the Attorney General belatedly contends that her failure to raise 

harmless error was due to an oversight, not acquiescence. As noted (ante, at 

p. 10), we have no practical way to assess this factual contention on direct appeal. 

Nor should it matter, unless we are prepared to dispense with the usual inference 

from silence in favor of now allowing all litigants, not just the Attorney General, 

to clarify their ―actual‖ position whenever their briefing does not address a 

particular issue.

Fourth, we must be mindful of the separation of executive and judicial 

functions in criminal cases. When the government ―seeks affirmance based on 

reasonable appellate strategy‖ but does not advance a particular argument, the 

court should hesitate to second-guess the government by advancing that argument 

in its stead. (Rose, supra, 629 A.2d at p. 535.) It is true that the government‘s 

forfeiture is not binding on this court in light of article VI, section 13. But 

affirming a judgment on grounds not advocated by the government carries the risk

of a ―confusion of roles‖ that is ―inconsistent with the neutrality expected of the 

judiciary in our adversary system of justice.‖ (Rose, at p. 535.)

In my view, the considerations above counsel the same approach that 

federal courts have adopted in this context: When the government fails to argue 

harmless error, we may find harmless error on our own initiative only when the 

harmlessness of the error is clear ―beyond serious debate.‖ (Pryce, supra, 938 

F.2d at p. 1348 (lead opn. of Williams, J.).) The length and complexity of the 

record are relevant considerations. But the harmlessness of an error may be 

readily apparent even on a lengthy record, especially if, for example, the length of 

the record is due to the volume of evidence against the defendant. At the same 

time, a close case may come packaged in a clear and simple record. Importantly, 
23

neither the intent nor the effect of the rule I propose is to impose a technical 

penalty on the government. Rather, the rule is a means of allocating the risks we 

face in discharging our obligation to consider harmless error — both the risk of 

finding an error prejudicial that is actually harmless and the risk of finding an error 

harmless that is actually prejudicial. Where harmlessness is clear, the latter risk is 

negligible; hence the government‘s forfeiture does not affect the outcome. But, 

like Judge Williams in Pryce, I would hold that where the harmlessness of an error 

is seriously debatable, the risk of an inaccurate determination must be borne by the 

party who forfeited the issue.

Further, whether the harmlessness of an error is certain or seriously 

debatable will depend not only on the record in each case but also on the 

applicable legal standard for harmlessness. As to a judgment of guilt, we evaluate 

the harmlessness of state law error under People v. Watson (1956) 46 Cal.2d 818, 

836–837, which requires the defendant to demonstrate a reasonable probability 

that the outcome would have been different absent the error. (See People v. Lucas

(2014) 60 Cal.4th 153, 263.) Because the burden of persuasion falls on the 

defendant, and because the reasonable probability standard requires a substantial 

showing of prejudice, we may expect that courts not infrequently can find 

harmlessness under this standard to be clear beyond serious debate, despite the 

government‘s failure to address the issue.

By contrast, we have long held that the standard for assessing the effect of 

state law error in the penalty phase of a capital trial is ―  ̳the same, in substance 

and effect,‘ ‖ as the standard set forth in Chapman v. California (1967) 386 U.S 18

(Chapman) for assessing the effect of federal constitutional error. (People v. 

Nelson (2011) 51 Cal.4th 198, fn. 15; see People v. Cowan (2010) 50 Cal.4th 401, 

491; People v. Dykes (2009) 46 Cal.4th 731, 786; People v. Ochoa (1998) 19 

Cal.4th 353, 479; People v. Brown (1988) 46 Cal.3d 432, 448 (Brown).) The 
24

Chapman standard requires the beneficiary of the error — the government — to 

show that the error was harmless beyond a reasonable doubt. (Chapman, supra, 

386 U.S. at pp. 23–24.) In adopting this standard for assessing prejudice from 

state law error in capital sentencing, we suggested it was constitutionally required: 

―When the  ̳result‘ under review is such a normative conclusion based on guided, 

individualized discretion, the Watson standard of review is simply insufficient to 

ensure  ̳reliability in the determination that death is the appropriate punishment in 

a specific case.‘ (Woodson v. North Carolina (1976) 428 U.S. 280, 305 (plur. 

opn.); accord, Satterwhite v. Texas (1988) 486 U.S. 249, [263]; Caldwell v. 

Mississippi [(1985)] 472 U.S. 320, 329–330; Zant v. Stephens [(1983)] 462 U.S. 

862, 884–885.)‖ (Brown, at p. 448.)

The government‘s burden under Chapman is perhaps best understood not as 

a burden of proof but as a burden of persuasion. (See O’Neal v. McAninch (1995) 

513 U.S. 432, 436–437.) In that sense, a forfeiture does not mean that the 

government automatically loses under Chapman. But the reasonable doubt 

standard, along with the allocation of the burden of persuasion to the government, 

suggests that only in limited circumstances can a reviewing court find an error 

harmless under Chapman when the government forfeits the issue. Such a finding 

―requires a double level of certainty: we must be convinced that the error was 

 ̳harmless beyond a reasonable doubt‘ and that  ̳satisfaction of that standard is 

beyond serious debate.‘ ‖ (Brooks, supra, __ F.3d at p. __ [2014 U.S. App. 

LEXIS 22217, at p. *2], quoting Pryce, supra, 938 F.2d at p. 1348 (lead opn. of 

Williams, J.).)

C.

The approach I have proposed is supported by substantial authority and 

sensibly accommodates concerns of accuracy, efficiency, and fairness. It also has 

another virtue that counsel for Grimes observed at reargument. When a criminal 
25

defendant has forfeited a claim, the defendant is permitted to argue, typically in a 

habeas corpus petition, that the forfeiture resulted from deficient performance of 

counsel and that counsel‘s deficient performance was prejudicial. Thus, our 

adversarial system of justice does not entirely foreclose relief in the event of a 

forfeiture. But a defendant‘s forfeiture unquestionably raises the bar for obtaining 

relief, as neither deficient performance nor prejudice is easily demonstrated in the 

context of an ineffective assistance of counsel claim. (See Strickland v. 

Washington (1984) 466 U.S. 668, 689 [―a court must indulge a strong presumption 

that counsel‘s conduct falls within the wide range of reasonable professional 

assistance‖]; In re Champion (2014) 58 Cal.4th 965, 1007 [defendant must show 

―  ̳ ―  ̳a reasonable probability . . . that, but for counsel‘s failings, the result would 

have been more favorable‘ ‖ ‘ ‖].) The proper approach to the government‘s 

forfeiture of harmless error is similar. It does not foreclose affirmance on the 

basis of harmless error, but it does require the reviewing court to find 

harmlessness under the applicable standard to be clear beyond serious debate. The

rough symmetry with claims of ineffective assistance of counsel underscores the 

fairness and prudence of this approach.

IV.

I now apply the principles above to the case before us. As to whether the 

exclusion of Morris‘s statements was prejudicial at the guilt phase, I begin by 

noting that at trial Grimes did not dispute his liability for felony murder. The only 

contested issue was his eligibility under Penal Code section 190.2 for the death 

penalty or life in prison without parole. Because Grimes was not the actual killer

(cf. id., § 190.2, subd. (b)), he was eligible for these penalties only if the jury 

found that he participated in the underlying felony with the intent to kill (id., 

§ 190.2, subd. (c)) or with reckless indifference to human life (id., § 190.2,

subd. (d)). The prosecutor presented both theories to the jury. But because a true 
26

finding was needed only as to one theory, and because the evidence was much 

stronger with respect to reckless indifference, the latter theory was, as defense 

counsel said in closing argument, the ―real issue‖ in the case. Moreover, a finding 

of Grimes‘s intent to kill Bone would necessarily subsume a finding of his 

reckless indifference to her life.

Grimes argues that the excluded statements were necessary to rebut 

Jonathan Howe‘s testimony that Grimes said he (Grimes) had ordered Morris to 

kill Bone. But the prosecutor did not rely on Howe‘s testimony in arguing that 

Grimes acted without regard for Bone‘s life. Instead, she relied on the 

overwhelming and uncontradicted evidence that Grimes knowingly helped break 

into an occupied house in the middle of the day, that he was accompanied by two 

people he knew to be armed, that he had to step over Bone‘s unconscious body in 

order to enter the house, and that he proceeded to search her house for things to 

steal while overhearing her brutal murder. This evidence of reckless indifference 

is not undermined by the excluded statements, which concern Grimes‘s physical 

location during the murder, his lack of participation in the killing, and his reaction 

immediately following the murder. Indeed, Grimes does not argue that the 

excluded statements counter the reckless indifference theory. Even if the 

erroneous exclusion of Morris‘s statements under Evidence Code section 1230

amounted to federal constitutional error, it is clear beyond serious debate that the 

error was harmless as to Grimes‘s guilt of special circumstance murder.

As to the penalty phase, however, I reach a different conclusion. In 

deciding between death and life without parole, a jury must take into account the 

totality of the circumstances of the crime as well as the defendant‘s ―character, 

background, history, mental condition and physical condition.‖ (Pen. Code, 

§ 190.3.) ―[D]etermining the balance of evidence of aggravation and mitigation 

and the appropriate penalty do not entail the finding of facts but rather  ̳a single 
27

fundamentally normative assessment . . . .‘ ‖ (People v. Merriman (2014) 60 

Cal.4th 1, 106.)

In this case, all sides agree that Grimes did not personally kill Bone. 

Although the high court has held that the federal Constitution does not prohibit 

capital punishment for a defendant who did not actually kill (see Tison v. Arizona

(1987) 481 U.S. 137; Enmund v. Florida (1982) 458 U.S. 782), such death 

sentences are not common. Among the nearly 1,400 executions in the United 

States since 1976, only 20 involved a capital defendant who did not actually kill, 

and that number includes persons who acted with an intent to kill. (See Death 

Penalty Information Center (Nov. 19, 2014) Executions by Year Since 1976

<http://www.deathpenaltyinfo.org/executions-year> [as of Jan. 5, 2015]; id., Those 

Executed Who Did Not Directly Kill the Victim,

<http://www.deathpenaltyinfo.org/those-executed-who-did-not-directly-killvictim> [as of Jan. 5, 2015].) This low rate is not a recent development. (See 

Enmund, at pp. 794–795 [among the 362 executions since 1954, 339 involved a 

defendant who ―personally committed a homicidal assault,” two involved a 

defendant who “had another person commit the homicide for him,” six involved “a 

nontriggerman felony murderer,” and 16 involved facts “not reported in sufficient 

detail to determine whether the person executed committed the homicide”].) 

Whether due to determinations of culpability made by legislatures, by prosecutors,

or by juries, the death penalty has rarely been applied to persons who did not 

actually kill, even if they had an intent to kill.

Given this context, it is reasonable to think that the jury‘s determination of 

whether Grimes deserved the death penalty turned significantly on whether he 

played a leadership role in the killing and what his attitude or reaction to the 

killing was. And much of that depends on the credibility of a single witness, 

Jonathan Howe. Although today‘s opinion says that Morris‘s statements did not 
28

directly contradict Howe‘s testimony (maj. opn., ante, at pp. 36–38), that is not the 

same as saying that Morris‘s statements could not reasonably have led the jury to 

doubt Howe‘s credibility or to reject the most damning inferences from his

testimony.

For example, Howe testified that Grimes said that he had ―enjoyed 

watching‖ the killing or that he ―enjoyed the fact she died.‖ Evidence that Grimes 

expressed alarm or surprise at the killing (―what in the hell are you doing?‖) is not 

inconsistent with Howe‘s account; Grimes could have enjoyed the killing even 

though he was surprised by its brutality. But it would have been perfectly 

reasonable for a juror to draw the opposite inference, i.e., that Grimes‘s look of 

surprise cast doubt on Howe‘s account and, in turn, Howe‘s overall credibility. 

Morris‘s statements tended to shift culpability away from Grimes, and a 

reasonable juror could have inferred that Grimes, instead of enjoying the killing, 

retained enough humanity to be shocked by its brutality. Although Howe‘s 

testimony that Grimes ―enjoyed‖ the killing evokes Grimes‘s depravity, the 

excluded statement that Morris made to Abbott could reasonably have led one or 

more jurors to doubt this testimony.

Similarly, although the jury could have reasonably believed Howe‘s 

testimony that Grimes said he (Grimes) ordered Morris to kill Bone, the jury also 

could have reasonably doubted this aspect of Howe‘s testimony in light of 

Morris‘s statements to Abbott and Lawson that Grimes took no part in the killing 

as well as Morris‘s statement to Lawson that Grimes was ―in some other place in 

the house‖ during the killing. Notably, Morris made these statements without ever 

mentioning that he was following Grimes‘s lead, that Grimes took an interest in 

the killing, or that the killing was in any way a joint undertaking. Moreover, 

evidence that Grimes did not supervise the actual killing and was not in the same 

room when it occurred could have led one or more jurors to infer that even if
29

Grimes did order the killing, he was not resolutely murderous but somewhat 

indifferent to whether the killing was actually carried out (consistent with the 

reckless indifference theory of his guilt). Because Grimes did not himself kill the 

victim, it is reasonable that the jury would have paid especially close attention to 

the precise details of his involvement. The excluded statements would have 

provided additional nuance for the jury to consider.

Today‘s opinion does not suggest that Abbott or Lawson would not have 

been credible witnesses, that Howe‘s testimony was unimportant to the penalty 

determination, or that the aggravating evidence was so overwhelming that the jury 

would have voted for death whether or not it believed Howe‘s testimony. The 

penalty phase of this trial consumed 11 days and involved some 25 witnesses, 

resulting in thousands of pages of record material on top of the voluminous record 

of the four-week guilt phase. The prosecution introduced evidence of Grimes‘s 

criminal history and the impact of Bone‘s murder on her family. The penalty 

phase also included a mass of contested evidence concerning childhood abuse 

suffered by Grimes and its ongoing psychological and neurological effects, 

Grimes‘s tendency to be a follower in social situations, his limited mental 

capacity, and various acts of kindness Grimes showed toward vulnerable people in 

his life. In addition, the defense and prosecution vigorously disputed whether 

Grimes expressed genuine remorse after the killing. In closing argument, the 

defense argued that Howe‘s testimony lacked credibility, to which the prosecutor 

responded by saying, ―They‘ve never given you a reason to doubt his testimony.‖ 

The excluded statements by Morris would have enabled the defense to fill this gap.

Having reviewed this lengthy and complex record, I cannot say with 

confidence that the jury would have voted against death if the trial court had 

admitted Morris‘s statements. But more importantly, I cannot say with confidence 

that the jury would have voted for death if the trial court had admitted Morris‘s 
30

statements. In this case, where the jury had to assess the culpability of a defendant 

who did not personally kill, the penalty issue was hardly clear-cut. Grimes‘s 

briefing discussed at length why the erroneous exclusion of Morris‘s statements 

was not harmless beyond a reasonable doubt. The Attorney General offered no 

response. Because the harmlessness of the error is seriously debatable — indeed, 

it is open to reasonable doubt (see conc. & dis. opn. of Werdegar, J., ante, at 

pp. 4–5) — I would not find the error harmless at the penalty phase. To the extent 

the issue is close, the risk of an inaccurate determination must fall not on the party 

who properly and carefully litigated the issue, but on the party who bears the 

burden of persuasion yet did not address the issue.

* * *

In sum, the trial court erred in excluding Morris‘s self-inculpatory 

statements to Abbott and Lawson. Although I would affirm Grimes‘s conviction 

of special circumstance murder despite the error, I respectfully dissent from the 

court‘s affirmance of the penalty verdict. In all other respects, I join the court‘s 

opinion.

LIU, J.

I CONCUR:

ZELON, J.*

 

* Associate Justice of the Court of Appeal, Second Appellate District, 

Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of 

the California Constitution.
1

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Grimes

__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX

Original Proceeding

Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No. S076339

Date Filed: January 5, 2015

__________________________________________________________________________________

Court: Superior

County: Shasta

Judge: Bradley L. Boeckman

__________________________________________________________________________________

Counsel:

James M. Fahey and Cliff Gardner, under appointments by the Supreme Court, Catherine White and Lazuli 

Whitt for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. 

Farrell, Assistant Attorney General, Ward A. Campbell, Stephanie A. Mitchell and Sean M. McCoy, 

Deputy Attorneys General, for Plaintiff and Respondent.

Michael J. Hersek, State Public Defender, Barry P. Helft, Chief Deputy State Public Defender, and Nina 

Rivkind, Deputy State Public Defender, for the Office of the State Public Defender as Amicus Curiae.
2

Counsel who argued in Supreme Court (not intended for publication with opinion):

Cliff Gardner

1448 San Pablo Avenue

Berkeley, CA 94702

(510) 524-1093

Stephanie A. Mitchell

Deputy Attorney General

1300 I Street, Suite 125

Sacramento, CA 94244-2550

(916) 323-8044