IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

CHESTER DEWAYNE TURNER,

Defendant and Appellant.

S154459

Los Angeles County Superior Court

BA273283

November 30, 2020

Justice Corrigan authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Liu, Cuéllar, 

Kruger, Groban, and Gilbert*concurred.

* Presiding Justice of the Court of Appeal, Second Appellate 

District, Division Six, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
1

PEOPLE v. TURNER

S154459

Opinion of the Court by Corrigan, J.

Over the course of nearly 12 years, a serial killer raped 

and murdered women in high crime areas of Los Angeles. Police 

identified defendant Chester Dewayne Turner as a suspect in 

2003, when his DNA was found to match DNA left on the victims 

in several unsolved cases. Convicted of murdering ten women 

and one viable fetus, he was sentenced to death. (Pen. Code, 

§ 187, subd. (a).)1 This automatic appeal primarily challenges 

the admission of statistical evidence about the significance of 

the DNA matches and hearsay testimony about the fetus’s 

viability. The hearsay claim has merit and warrants reversal of 

the fetal murder conviction. The judgment is affirmed in all 

other respects.

I. BACKGROUND

A. Guilt Phase

1. Figueroa Corridor Murders

Between 1987 and 1996, the bodies of eight women were 

found in the Figueroa Corridor of Los Angeles, an area beset by 

crime, including prostitution and narcotics activity. Defendant 

1 All statutory references are to the Penal Code unless 

otherwise stated. Defendant was convicted of second degree 

murder for the fetus, but all other murders were in the first 

degree. The jury also found true special circumstance 

allegations of multiple murder and, as to one of the victims, 

murder in the course of a rape. (§ 190.2, subd. (a)(3), (17).) 
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Opinion of the Court by Corrigan, J.

2

lived at various addresses in the Figueroa Corridor during this 

period. All of the victims had been sexually assaulted and 

strangled to death, sometimes by ligature and sometimes 

manually. All had a history of drug abuse, and all but one had 

cocaine in their systems. Some were homeless; some were 

thought to be mentally ill; and some had arrests for prostitution.

a. 1987 to 1989

The body of 21-year-old Diane Johnson was found on 

March 9, 1987, in a construction area six blocks from 

defendant’s home. Drag marks led to her body, which was nude 

from the waist down. She had been strangled. 

Annette Ernest, age 26, was found just three blocks away 

on October 29, 1987. She lay face down with her pants lowered. 

There was a possible ligature mark on her neck and a bite on 

one breast. The cause of death was strangulation. 

On January 20, 1989, a young boy discovered the body of 

31-year-old Anita Fishman in an alley less than two blocks from 

defendant’s home. Her pants were partially down and the body 

was beginning to decompose. She died of manual strangulation. 

Regina Washington was 27 years old and visibly pregnant 

when she was killed. Her body was found on September 23, 

1989, lying on a mattress in a burnt-out garage about 14 blocks 

from defendant’s home. Although she was clothed, her pants 

were unfastened and her shirt pulled up. A black coaxial cable 

was wrapped around her throat and attached to an electrical box 

on a nearby wall. She died of ligature strangulation with signs 

of a struggle. Washington’s female fetus weighed 825 grams 

with a gestational age of 27 to 28 weeks. That weight and age 

were considered viable under World Health Organization 

guidelines. Despite her mother’s cocaine use, the fetus had no 
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Opinion of the Court by Corrigan, J.

3

congenital abnormalities and appeared to be developing 

normally. She died from lack of oxygen due to her mother’s 

strangulation.2

b. 1993 to 1996

On April 2, 1993, 29-year-old Andrea Tripplett was found 

dead behind an abandoned house 22 blocks from defendant’s 

residence and only two blocks from her own home. Her skirt 

was pushed up and she was naked below the waist. She was 

around five months pregnant when she was manually strangled 

to death. At 305 grams, the fetus was not yet viable. 

Deserae Jones, who sometimes went by Tracy Williams, 

was also 29 years old and killed by manual strangulation. Her

body was found on May 16, 1993 in the trash-filled yard of a 

burned, boarded-up house within 30 blocks of defendant’s 

address. She was unclothed below the waist. 

On February 12, 1995, Natalie Price’s body was found 

approximately five blocks from defendant’s home, next to an 

empty house where people gathered to smoke narcotics. Her bra 

was pushed up around her neck and her pants were pulled 

down. She had been strangled and struck on the head. She was 

39 years old when she died. 

Mildred Beasley, age 45, was on her way to her sister’s 

house when she disappeared. Her body was found on November 

6, 1996 on a trash-strewn embankment of the 110 Freeway 

about 18 blocks from defendant’s home. The area was 

2 These details as to fetal age and condition were taken from 

an autopsy report and conveyed by a pathologist who did not 

perform the procedure. We discuss their erroneous admission 

post, at pages 38 to 46.
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Opinion of the Court by Corrigan, J.

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frequented by transients and known for drug activity. She had 

been strangled to death and left naked below the waist, with her 

upper garments pulled up. Insect activity indicated the body 

had begun to decompose. 

2. Downtown/Skid Row Murders in 1998

Two additional murder victims were found under similar

circumstances near downtown Los Angeles in 1998. During that 

year, defendant lived downtown at the Regal Hotel on 6th 

Street. 

Paula Vance, age 41, was found dead on February 3, 1998. 

Her body lay next to an abandoned building near 6th and Hope 

Street, about 14 blocks from defendant’s residence. Her upper 

garments were pulled up, her nylons and underwear pulled 

down. She had been strangled, and there were signs of sexual 

assault. A surveillance camera at the scene recorded her 

entering the alleyway with a man, who grabbed her around the 

neck until she fell to the ground. Vance was the only murder 

victim without cocaine in her system. Evidence showed that she 

was homeless and suffered from mental illness. 

On April 6, 1998, the body of 37-year-old Brenda Bries was 

found in a portable toilet on South Gladys Avenue and 5th 

Street, just 50 yards from defendant’s residence. She was 

slumped with her head on the seat, pants around her knees, and 

shirt pulled around her neck. A fabric cord, intertwined with 

her bra, was wrapped around her neck. She died from ligature 

strangulation and showed signs of a struggle. 

3. Investigation

Crime scene investigators compiled and stored sexual 

assault kits for all victims.
PEOPLE v. TURNER

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a. 2002 Rape of Maria M.

In March 2002, defendant raped Maria M., a 47-year-old 

homeless woman who worked as a prostitute and sold drugs. 

She knew defendant from the Midnight Mission, a shelter they 

both frequented. As she walked alone near the shelter one 

night, defendant asked to borrow her lighter, which he used to 

smoke cocaine. Instead of returning the lighter, defendant 

grabbed Maria in a chokehold and dragged her behind some 

dumpsters, where he raped and sodomized her, ejaculating in 

the process. He threatened to kill her if he was arrested. 

Maria immediately went to a police station, but after being 

kept waiting for some time she felt ignored and left. The next 

morning, she reported the assault to Midnight Mission 

employees and the police. Defendant attempted to flee but was 

arrested at the shelter. Evidence for a sexual assault kit was 

collected at a hospital. Defendant ultimately pled no contest to 

rape by force or fear and unlawful penetration. (§§ 261, 

subd. (a)(2), 289, subd. (a)(1).)

b. DNA Identification of Defendant

i. General Evidence

Gary Sims, a director of the Department of Justice DNA 

Laboratory, testified as an expert on forensic DNA analysis. 

Chromosomes found in cell nuclei contain DNA, which is the 

same in all cells of a person’s body. The vast majority of human 

DNA is the same, coding basic traits all people share. At some 

chromosomal regions, however, the DNA is highly variable. 

Forensic DNA analysis studies these areas of variation. The 

specific site being studied is called a “locus.” “Allele” describes 

the alternative forms of genetic material at a particular locus. 

Each locus has two alleles, one inherited from each parent. 
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Opinion of the Court by Corrigan, J.

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Current forensic testing focuses on loci with sections of DNA 

that repeat a variable number of times, known as short tandem 

repeats or STRs. Different people have different numbers of the 

repeating sequence at these sites. DNA testing compares the 

alleles at these sites to see if they are the same or different. As 

the science of DNA analysis developed, more loci with variable 

STRs could be tested. At the time of defendant’s trial, analysts 

could study DNA variation at 13 different loci. Sims explained 

that DNA analysis is a powerful tool in determining “the 

probability of identity,” which is the likelihood that two people 

chosen at random will have the same DNA sequences at the 

areas tested. 

Once DNA is extracted from biological material left at a 

crime scene, the STR regions are amplified. Analysts determine 

the number of STR repeats for alleles present at each of the 13 

loci, producing a “profile” for the evidence sample. Biological 

material is then obtained from a suspect to create a DNA profile. 

When the two profiles are compared, a match is declared if the 

alleles at all loci are the same. The significance of a match 

depends on how common the particular DNA profile is in the 

population. Sims explained that population databases have 

been developed to determine how frequently particular alleles 

are found in each major ethnic group. After the allele 

frequencies are determined at each locus, the frequencies are 

multiplied together to determine the rarity of the overall profile. 

This number, called the random match probability, reflects the 

probability that DNA from a randomly chosen person would 

match the evidence profile. 
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ii. Case-specific Evidence

On July 3, 2002, defendant gave cheek swabs for DNA 

testing in connection with Maria’s assault. The Los Angeles 

Police Department (LAPD) DNA Unit prepared defendant’s 

DNA profile from this reference sample. His profile matched the 

DNA in sperm cells recovered during Maria’s examination. 

Investigators later compared defendant’s profile with 

DNA samples from unsolved crimes.3 Defendant’s profile 

matched DNA left on all of the victims here. A private forensic 

laboratory, Orchid Cellmark (Cellmark), retested the evidence 

and independently confirmed LAPD’s findings. Specifically, the 

laboratories found as follows.

Sperm cell DNA matching defendant’s profile was 

recovered from anal and vaginal swabs from Diane Johnson. In 

the Anita Fishman, Regina Washington, Andrea Tripplett, 

Natalie Price, Mildred Beasley, Paula Vance, and Brenda Bries 

cases, DNA from sperm cells in vaginal swabs matched 

defendant’s profile. Occasionally these samples included some

“carryover” DNA from the victim’s epithelial cells, but there 

were no other sperm cell contributors. Cellmark also found 

DNA with defendant’s profile in external genital swabs from 

Price, Beasley, Vance, and Bries, and in the anal swabs for 

Beasley and Bries. In the Annette Ernest and Deserae Jones 

cases, sperm cell DNA recovered from the external genital area 

matched defendant’s profile. Cellmark also found DNA with 

defendant’s profile in nipple and anal swabs in the Ernest case 

and in oral and anal swabs in the Jones case. Some external 

3 The profile used in this analysis was obtained from a blood 

sample defendant submitted after his rape conviction. (See 

§ 1202.1, subd. (a).) 
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Opinion of the Court by Corrigan, J.

8

genital samples included DNA from unknown individuals, but 

in all such cases defendant was the primary contributor. Each 

unknown DNA profile appeared in only one victim. Defendant’s 

DNA profile alone recurred in all of the victims. 

Both laboratories declared a match when DNA sequences 

were the same at all 13 sites examined. LAPD’s DNA Unit 

determined the probability of this match occurring at random 

was one in one quintillion. Cellmark calculated the probability 

of a random match within the Black population group as one in 

6.725 quintillion. A quintillion is rendered as a one followed by 

18 zeroes. 

4. Defense Case

A third forensics laboratory analyzed the DNA evidence 

for the defense. Unlike the other two laboratories, Technical 

Associates (TA) used the Y-STR test, which isolates male DNA 

by studying sites on the Y chromosome. Because it examines 

only male lineage, the Y-STR test is less powerful than other 

tests, producing random match probabilities of one in thousands 

versus one in quadrillions. It is useful, however, when the 

amount of male DNA in a sample is comparatively small. 

TA tested samples from all of the victims except Anita 

Fishman, examining 12 loci on the Y chromosome. Defendant 

was considered identified when his DNA profile matched most, 

if not all, of the 12 loci in the sample DNA. Rather than 

describing a correspondence between defendant’s profile and the 

sample as a “match,” the TA criminalist preferred to state that 

defendant could not be excluded as the source of DNA in the 

sample. Because genes examined by the Y-STR test are less rare 

than those in other tests, it was possible another male’s profile 

could overlap defendant’s at some sites. 
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Opinion of the Court by Corrigan, J.

9

TA found DNA consistent with defendant’s profile in 

samples from each of the victims studied. Specifically, DNA 

consistent with defendant’s was found: in the nipple and 

vaginal swabs from Diane Johnson; in the nipple, vaginal, and 

anal swabs from Annette Ernest; in the external genital swab 

from Regina Washington; in the anal swab from Andrea 

Tripplett; in the nipple and anal swabs from Deserae Jones; in 

the external genital, nipple, and anal swabs from Natalie Price; 

in the nipple and anal swabs from Mildred Beasley; in the 

external genital and nipple swabs from Paula Vance; and in the 

external genital swab from Brenda Bries. The Y-STR test 

detected male DNA from unknown contributors in several of the 

samples. No DNA profile other than defendant’s repeated from 

victim to victim. 

The defense expert testified that sperm cells deposited in 

the vagina are typically expelled within one to two days from a 

living woman. After death, however, bodily processes slow down 

the expulsion. Sperm cells could remain as long as two weeks 

postmortem. Sperm found in a female who had been deceased 

for a day could have been deposited three or four days earlier. 

Even if defendant’s DNA profile was detected at a higher 

concentration than unknown profiles, the finding did not mean 

defendant was necessarily the last person to deposit DNA. 

The parties stipulated that the defense requested 

discovery of DNA test results for all clothing booked into 

evidence and that neither side conducted such testing. 

B. Penalty Phase

1. Aggravating Evidence

The prosecution presented victim impact evidence relating 

to seven victims. The jury heard from Annette Ernest’s mother, 
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Opinion of the Court by Corrigan, J.

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Andrea Tripplett’s mother, Anita Fishman’s mother and 

younger sister, Deserae Jones’s mother and niece, Regina 

Washington’s daughter, Natalie Price’s daughter, and Mildred 

Beasley’s younger sister and niece. They described the families’ 

sorrow at losing their loved ones and their anguish at having the 

cases remain unsolved for so many years.

Most of the aggravating evidence concerned defendant’s 

violent conduct in four unrelated incidents: murder, sexual 

assault, felony resisting arrest, and threatening a sheriff’s 

deputy while awaiting trial on the current charges. The 

prosecution also presented evidence of defendant’s conviction for 

the attack on Maria M. 

a. Murder of Elandra Bunn

In June 1987, less than three months after Diane 

Johnson’s murder, Elandra Bunn was killed in the Figueroa 

Corridor. Her body had been left in an alley near 88th Street 

and Figueroa. Her pants had been pulled down to her ankles. 

She had “massive facial trauma” and multiple abrasions. The 

injuries were consistent with her face being pushed or dragged 

across a rough surface. She died of strangulation, likely 

manual. Bunn had a history of cocaine abuse, and the drug was 

found in her system. She was in the early stages of pregnancy. 

Crime scene investigators compiled a sexual assault kit. 

Although it was destroyed in 1996, some evidence was retained, 

including a bloody tissue found four or five feet from the body. 

DNA obtained from the tissue matched defendant’s profile, with 

a random match probability of one in one quintillion. 

b. Sexual Assault of Carla W.

After midnight in October 1996, 22-year-old Carla W. was 

walking alone in downtown Los Angeles. A man grabbed her by 
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Opinion of the Court by Corrigan, J.

11

the arm and crotch. He tried to pull her into a nearby alley but 

she struggled and screamed. When a patrol car drove by, he 

fled. Later that night, Carla identified defendant as her 

attacker and did so again in court. 

c. Resisting Arrest

In March 1997, the police tried to interview defendant 

about a possible parole violation. When two officers came to his 

motel room, defendant answered the door but refused to put his 

hands behind his head for a weapons check. Officers attempted 

to handcuff him but he ran, dragging the officers 10 to 20 yards 

down a hallway and into the parking lot. Kicking one officer 

several times in the chest and leg, he tried to grab the officer’s 

gun, then broke free and fled. When a search dog alerted near 

a woodpile, the officers ordered defendant to emerge. He rose 

from his hiding place then hit the search dog with a nearby 

fiberglass sink. The dog bit him in response. Defendant ran at 

the officers, charging ahead even after being struck with six 

rounds from a beanbag shotgun. Following another violent 

struggle, defendant was finally taken into custody. 

d. Threatening a Deputy

In May 2006, while in county jail awaiting trial, defendant 

confronted Deputy Natalie Uyetatsu, the only female deputy 

assigned to his area. Angry because Uyetatsu had put him on 

lockdown, defendant told another inmate he would kill Uyetatsu 

if he was found guilty of the pending charges. The inmate 

thought the threat was serious because defendant seemed to 

hate women. 

2. Mitigating Evidence

Defendant’s mother, Audrey Turner, described his 

upbringing. She raised defendant alone from the time he was a 
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Opinion of the Court by Corrigan, J.

12

year old. She worked full time while a friend watched her son. 

They moved from Arkansas to California when defendant was 

four. He was a fun-loving child but struggled in school, often 

getting into trouble. Defendant went to live with his father in 

Arkansas but returned after a year. His father provided no 

financial or emotional support. 

When defendant was 14, Ms. Turner had a second son, 

Anthony. Soon thereafter she began working a second job. 

Friends helped with babysitting until Ms. Turner’s father 

arrived to help in 1984. Defendant eventually dropped out of 

high school and worked as a pizza delivery driver. When he was 

17, his mother insisted he leave the home due to his drinking 

and drug use, but she let him return while he recovered from a 

gunshot injury. During that time, defendant treated his mother

well. He helped her with her cleaning job and cooked and 

cleaned for the family. 

In 1991, Ms. Turner moved to Salt Lake City. Anthony 

stayed behind to finish the school year, then joined his mother. 

Each summer, Anthony stayed in California with defendant, 

who was his primary caretaker. Defendant warned his brother 

to stay in school and keep out of trouble. 

Defendant had four children who loved him. He was 

unable to support them because he was often in custody. His 

mother helped raise the children in Salt Lake City. 

II. DISCUSSION

A. Pretrial Issues

1. DNA Issues

The court denied defendant’s pretrial motion under People 

v. Kelly (1976) 17 Cal.3d 24 (Kelly) to exclude evidence about the 

DNA matches and their statistical significance. Defendant now 
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Opinion of the Court by Corrigan, J.

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makes two related arguments concerning this ruling. First, he 

contends the court erred in admitting random match probability 

numbers because this statistic is not a generally accepted 

measure of significance in “cold hit”4 DNA cases. (See Kelly, at 

p. 30.) Building on this argument, defendant next asserts that 

insufficient evidence supports the guilt verdicts because the jury 

heard no evidence of the rarity of his DNA profile. The first 

argument was rejected in People v. Nelson (2008) 43 Cal.4th 

1242 (Nelson). Defendant does not persuade us that Nelson was 

wrongly decided. Defendant’s second argument fails because, as 

Nelson and other cases have explained, random match 

probability is an expression of a DNA profile’s rarity in the 

population. Because the jury was given this statistic, it was able 

to evaluate the probative value of the DNA matches in 

determining his guilt.

a. Background

“Forensic DNA analysis is a comparison of a person’s 

genetic structure with crime scene samples to determine 

whether the person’s structure matches that of the crime scene 

sample such that the person could have donated the sample.” 

4 A “cold hit case,” sometimes called a “trawl case,” 

colloquially refers to a case in which “the DNA match itself made 

the defendant a suspect, and the match was discovered only by 

searching through a database of previously obtained DNA 

samples.” (Donnelly & Friedman, DNA Database Searches and 

the Legal Consumption of Scientific Evidence (1999) 97 Mich. 

L.Rev. 931, 932.) Cold hit cases may be contrasted with 

traditional “confirmation cases,” in which other types of 

evidence pointed to the defendant as a suspect and warranted 

testing his DNA against crime scene samples. (Ibid.; see Kaye, 

Rounding Up the Usual Suspects: A Legal and Logical Analysis 

of DNA Trawling Cases (2009) 87 N.C. L.Rev. 425, 428 (Kaye).)
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Opinion of the Court by Corrigan, J.

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(Nelson, supra, 43 Cal.4th at pp. 1257–1258.) As discussed, 

scientists examine specific loci that are highly variable among 

individuals. A match is declared when DNA sequences in the 

samples being compared are identical at all loci. Here, 

prosecution experts found matches between defendant’s DNA 

and crime scene DNA for each victim at 13 different loci. 

Defendant does not dispute the accuracy of this part of the 

analysis.

“Once a match is found, the next question is the statistical 

significance of the match.” (Nelson, supra, 43 Cal.4th at 

p. 1258.) This number helps the jury evaluate how much weight 

it should give to evidence of a match. A match would be of little 

significance if the genetic profile were shared by many others in 

the population. (People v. Venegas (1998) 18 Cal.4th 47, 82 

(Venegas).) The concept is frequently explained in terms of “how 

unlikely it is that the crime scene samples came from a third 

party who had the same DNA pattern as the suspect.” (People 

v. Barney (1992) 8 Cal.App.4th 798, 809 (Barney).) In other 

words, the question is: “Given that the suspect’s known sample 

has satisfied the ‘match criteria,’ what is the probability that a 

person chosen at random from the relevant population would 

likewise have a DNA profile matching that of the evidentiary 

sample?” (People v. Soto (1999) 21 Cal.4th 512, 523 (Soto).) The 

smaller the odds that a match could be found at random in the 

relevant population, the greater the evidentiary weight of a 

suspect’s match. (Venegas, at p. 82.) 

“Experts use a statistical method called the ‘product rule’ 

to calculate the rarity of the sample in the relevant population.” 

(Nelson, supra, 43 Cal.4th at p. 1259.) We have discussed this 

calculation in detail previously and need only summarize it 

here. In short, examiners first determine the frequency of 
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Opinion of the Court by Corrigan, J.

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alleles at each locus using population databases, then multiply 

the frequencies of all loci together, generating a statistic that 

reflects the probability that an individual will have the complete 

profile across all loci studied. (Ibid.; Soto, supra, 21 Cal.4th at 

p. 525.) As in other cases involving a match across many loci, 

application of the product rule here produced “astronomical 

odds” (Nelson, at p. 1259): one in one quintillion according to 

the LAPD expert, and one in 6.725 quintillion according to the 

Cellmark expert. Earth’s total population at the time of trial 

was around six and a half billion people.

Under the Kelly test, when expert testimony relies on “ ‘a 

new scientific technique,’ ” the proponent must establish “that 

the technique is ‘ “sufficiently established to have gained 

general acceptance in the particular field to which it belongs” ’ 

(quoting Frye [v. United States (D.C. Cir. 1923)] 293 F. [1013,] 

1014, italics omitted).” (Venegas, supra, 18 Cal.4th at p. 76; see 

Kelly, supra, 17 Cal.3d at p. 30.) Reliability need not be 

relitigated in every case. “[O]nce a trial court has admitted 

evidence based upon a new scientific technique, and that 

decision is affirmed on appeal by a published appellate decision, 

the precedent so established may control subsequent trials, at 

least until new evidence is presented reflecting a change in the 

attitude of the scientific community.” (Kelly, at p. 32.)

We have considered whether evidence calculated by the 

product rule satisfies Kelly’s reliability requirement in several 

cases. Venegas held that a modified version of the product rule 

known as the interim ceiling principle was “ ‘artificially 

conservative,’ ” yet it was a generally accepted method for 

calculating the significance of a DNA match while also 

compensating for any possible effect caused by population 

substructuring. (Venegas, supra, 18 Cal.4th at p. 89; see 
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Barney, supra, 8 Cal.App.4th at pp. 814–816.)5 Soto determined 

concerns about population substructuring had been laid to rest 

by later scientific developments and held that use of the 

unmodified product rule is generally accepted in the relevant 

scientific community as a means of expressing the significance 

of a DNA match. (Soto, supra, 21 Cal.4th at pp. 515–516.) Most 

recently, Nelson held that the admissibility of evidence based on 

the product rule in a cold hit case “is a question of relevance, not 

scientific acceptance,” thus obviating the need for a Kelly

inquiry. (Nelson, supra, 43 Cal.4th at p. 1260.) We further held 

that the product rule provides relevant and admissible evidence 

in cold hit cases. (Ibid.)

b. Admissibility of Random Match 

Statistics 

Defendant was initially identified as a suspect based on 

cold hits in the state’s database of convicted offenders.6 

5

In the early days of forensic DNA analysis, population 

geneticists were concerned that nonrandom mating within 

subgroups would undermine the product rule’s assumption that 

alleles at different loci were statistically independent. (See 

Barney, supra, 8 Cal.App.4th at p. 815.)

6 No information about the database search was presented 

at trial. In an early court appearance, the prosecutor explained 

how defendant was identified. When DNA samples preserved 

from various unsolved cases were uploaded to the state’s 

offender database, defendant’s profile was found to match crime 

scene evidence in the Beasley and Vance cases. After learning 

of the matches, investigators identified approximately 25 

unsolved murder cases with preserved biological evidence that 

appeared to be sexually motivated killings of women in the 

geographic region where defendant “either lived, worked[,] or 

was known to associate.” DNA evidence from these cases was 

then uploaded to the database, and eight more matches were 

made to defendant’s profile. The Attorney General argues this 
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Renewing the arguments we rejected in Nelson, he claims the 

random match probability statistic generated by the product 

rule does not accurately convey the significance of a DNA match 

derived from searching an offender database. He also disputes 

the relevance of this statistic in the cold hit context. Because 

defendant insists Nelson was wrongly decided, we discuss that 

case in some detail.

Nelson was identified as a suspect when DNA evidence 

from a 26-year-old murder was uploaded to the state’s offender 

database. (Nelson, supra, 43 Cal.4th at pp. 1248–1249.) 

Further testing confirmed the database match. (Id. at p. 1249.) 

At Nelson’s trial, the prosecution expert testified that the 15-loci 

match profile would occur at random in only one in 950 sextillion 

African-Americans, one in 130 septillion Caucasians, or one in 

930 sextillion Hispanics. (Ibid.)7 Challenging these statistics, 

Nelson conceded the product rule is a generally accepted method 

for calculating the odds of a random match when a suspect’s 

DNA is compared to crime scene evidence. (See Soto, supra, 21 

Cal.4th at p. 541.) But he argued scientists disagree as to 

whether the method is an appropriate way to assess the 

significance of a match when the suspect is not identified at 

random but is instead found through a database search. 

is not a pure cold hit case because the second database search 

was conducted after other evidence pointed to defendant as a 

suspect. Even so, we address defendant’s arguments because it 

is clear the initial identification was based exclusively on a 

database match. 

7 The LAPD DNA Unit did not report random match 

probabilities broken down by racial population subgroups. 

Defendant does not argue this omission was error, nor does he 

contend the distinction alters Nelson’s force as precedent here.
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(Nelson, at pp. 1259–1260.) Defendant makes the same 

argument here.

The challenges are premised on the idea that reported 

statistics should avoid “ ‘ascertainment bias,’ ” which can result 

when repeated testing of a hypothesis imbues a particular result 

with more significance than it warrants. (Kaye, supra, 87 N.C. 

L.Rev. at p. 454.) For example, while the odds of winning a 

lottery are very small, a winner will likely be found if everyone 

who actually bought a lottery ticket is considered. (See 4 

Faigman et al., Modern Scientific Evidence: The Law and 

Science of Expert Testimony (2019–2020 ed.) § 30:20) “The 

probability [of winning], while remote, is not impossible, and 

looking in a pool of people, rather than just picking a person at 

random, affects the likelihood that you will find what you are 

looking for.” (Ibid.) Ascertainment bias also describes “the bias 

that exists when one searches for something rare in a set 

database.” (U.S. v. Jenkins (D.C. 2005) 887 A.2d 1013, 1018–

1019 (Jenkins).)8 In the DNA context, for example, “if the 

frequency of a given profile is expected to occur in 1 out of every 

100,000 people, the chances of finding a match increase if one 

searches a database with 50,000 entries versus a database with 

only 10 entries.” (Jenkins, at p. 1018, fn. 8.)

Four methods have been proposed for expressing the 

statistical significance of a match following a database search. 

Only three need be considered here.9 One method, the random 

8 While the Jenkins opinion is not binding precedent, we 

find its analysis persuasive and its explanations of these 

complex concepts helpful.

9 One proposal is not a statistical calculation but a different 

approach to testing. The first National Research Council report 

on forensic DNA analysis suggested ascertainment bias could be 
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Opinion of the Court by Corrigan, J.

19

match probability statistic, is calculated by the unmodified 

product rule, which calculates the rarity of a match in the 

population. (Nelson, supra, 43 Cal.4th at p. 1261; see Soto, 

supra, 21 Cal.4th at pp. 515–516.) An alternative proposal 

begins with the rarity of the profile in the general population, 

the statistic generated by the product rule, then multiplies that 

number by the number of profiles in the database searched. 

(Nat. Research Council, DNA Technology in Forensic Science 

(1996) pp. 134–135.) The result reflects the probability of 

finding a match in a particular database and is frequently called 

the database match probability. (See Nelson, at p. 1262; 

Jenkins, supra, 887 A.2d at p. 1020.) By definition, it will 

always be a larger number than the rarity statistic alone, and 

thus more favorable to the defendant. The last approach, often 

called the Balding-Donnelly or Bayesian method, differs from 

the others in its premise that a database match is more

significant than a confirmatory match. This model reasons that 

a database search not only identifies a match but also 

“simultaneously eliminates other profiles as being the source of 

avoided by using one set of loci to identify a suspect in a 

database and then examining a different set of loci to confirm 

the match. (Nat. Research Council, DNA Technology in 

Forensic Science (1992) p. 124.) Because this approach would 

use fewer loci than actually matched in determining 

significance, product rule calculations would result in shorter, 

perhaps “unnecessarily conservative,” odds. (Nelson, supra, 43 

Cal.4th at p. 1261.) Defendant does not challenge Nelson’s 

observation that this approach “ ‘is no longer accepted or 

followed by the relevant scientific community.’ ” (Id. at p. 1262, 

quoting Jenkins, supra, 887 A.2d at p. 1022, fn. 17.)
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Opinion of the Court by Corrigan, J.

20

the sample,” thus increasing the likelihood the identified person 

is the actual source. (Jenkins, at p. 1020.)10

After reviewing these different approaches, Nelson

observed that while there was “some disagreement among 

experts as to which of these methods is the best, i.e., the most 

probative, way to judge the significance of a cold hit” from a 

database search, “the question before us is not what technique 

is ‘best,’ but whether use of the product rule in a cold hit case is 

permissible.” (Nelson, supra, 43 Cal.4th at p. 1263.) The 

product rule had already been approved as a reliable method for 

calculating the rarity of a DNA profile in the relevant population 

(see Soto, supra, 21 Cal.4th at pp. 515–516), and we observed 

that the rule’s use in a cold hit case did not convert it into a new 

scientific technique requiring further Kelly scrutiny. (Nelson, at 

pp. 1263–1264.) On the contrary, the real questions here 

10 Professor Kaye illustrates this reasoning by contrasting a 

database trawl with a hypothetical drug company that conducts 

20 clinical trials and achieves success in only one, but then 

reports that one success “as if there had been no search.” (Kaye,

supra, 87 N.C. L.Rev. at p. 469.) In the drug trial context, “the 

omitted information contradicts the company’s claim of 

therapeutic effectiveness. In contrast, if all the other clinical 

trials were consistent with the company’s claim, the failure to 

mention them would not prejudice the case for approving the 

drug. The trawl case is similar to a series of successful clinical 

trials . . . . The additional evidence — that everyone else in the 

database is excluded — is consistent with the claim of 

defendant’s guilt. The lack of other hits in the database trawl 

therefore has an effect opposite to that of the lack of other 

significant differences in the clinical trials. It supplies 

compatible rather than contradictory data.” (Ibid., italics 

added.) According to this reasoning, ascertainment bias is not 

a problem that needs correction in database search cases. (Id. 

at pp. 469–472.)
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Opinion of the Court by Corrigan, J.

21

concern relevance, not the reliability of methodology. (Id. at 

p. 1264.) As the Jenkins court explained: “At the heart of this 

debate is a disagreement over the competing questions to be 

asked, not the methodologies used to answer those questions. 

The rarity statistic, the database match probability, and the 

Bayesian approach each answer unique and potentially relevant 

questions. More importantly, there is no controversy in the 

relevant scientific community as to the accuracy of the various 

formulas. In other words, the math that underlies the 

calculations is not being questioned. Each approach to 

expressing significance of a cold hit DNA match accurately 

answers the question it seeks to address. The rarity statistic 

accurately expresses how rare a genetic profile is in a given 

society. Database match probability accurately expresses the 

probability of obtaining a cold hit from a search of a particular 

database. Bayesian analysis accurately expresses the

probability that the person identified through the cold hit is the 

actual source of the DNA in light of the fact that a known 

quantity of potential suspects was eliminated through the 

database search. These competing schools of thought do not 

question or challenge the validity of the computations and 

mathematics relied upon by the others. Instead, the arguments 

raised by each of the proponents simply state that their 

formulation is more probative, not more correct. Thus, the 

debate . . . is one of relevancy, not methodology . . . .” (Jenkins, 

supra, 887 A.2d at pp. 1022–1023, fn. omitted, italics added; see 

Nelson, at p. 1264.)

Relevant evidence is that “having any tendency in reason 

to prove or disprove any disputed fact.” (Evid. Code, § 210.) 

Generally, all relevant evidence is admissible unless otherwise 

provided by statute. (Evid. Code, § 351.) If admitted, the trier 
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Opinion of the Court by Corrigan, J.

22

of fact determines the weight it gives to that evidence. Two 

sources of relevant evidence may potentially conflict or lead to 

opposite conclusions. Evidence may be relevant but found 

unpersuasive. A jury hearing competing relevant evidence will 

ultimately have to determine what weight, if any, to give each. 

“Relevance” describes whether evidence should be heard 

because it might reasonably resolve a dispute. “Weight” 

describes the degree to which the jury finds the evidence 

probative.

“Relevancy is a legal issue for courts to answer.” (Nelson, 

supra, 43 Cal.4th at p. 1265.) While deference to scientists is 

appropriate on scientific questions, determining the relevance of 

evidence “ ‘is a hallmark responsibility of the trial judge and 

that responsibility is not appropriately delegated to parties 

outside the court.’ (Jenkins, supra, 887 A.2d at p. 1025.)” (Id.

at p. 1265.) Nelson concluded the statistical rarity of the DNA 

profile, calculated by the product rule, is relevant in cold hit 

cases. (Id. at p. 1267.) We see no basis to depart from that 

conclusion. To be sure, a defendant remains free to present 

evidence that the product rule statistic should be given less 

weight because some experts have concerns about its persuasive 

value due to ascertainment bias. But defendant did not attempt 

to do so here, nor did he offer evidence of an alternative measure 

of statistical significance, such as database match probability.11

11 Nelson left open the possibility that database match 

probability might also be admissible in an appropriate case. 

(Nelson, supra, 43 Cal.4th at p. 1267, fn. 3.) Defendants may 

indeed seek to introduce such evidence, particularly in cases 

where the database searched was especially large. As with the 

other measures of statistical significance, the trial court may, of 

course, consider an Evidence Code section 352 objection that the 
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Opinion of the Court by Corrigan, J.

23

i. Applicability of the Kelly Test

Defendant first asserts that Nelson misapplied California 

law because, contrary to Venegas and Soto, the court exempted 

a category of DNA statistics from Kelly analysis despite an 

ongoing scientific controversy. This argument misconstrues 

both our prior precedents and Nelson’s holding. The issue in 

Venegas and Soto was whether the product rule was a reliable 

measure of a DNA profile’s rarity or whether some modification 

was needed to account for population substructuring and other 

issues. But, critically, both the unmodified product rule and the 

modified ceiling approach are statistical formulae designed to 

answer the same question: How frequently can we expect a 

specific profile to appear in the relevant population? As 

discussed, the alternative statistical models proposed for cold 

hit cases are each answering a different question. We adhere to 

the view that admissibility of the random match statistic in 

these cases presents an issue of relevance, not scientific 

reliability.

Defendant argues Nelson misconstrued the scientific 

debate. He contends the issue is not one of legal relevance but 

of science, because the various methodologies all seek to answer 

the question: What is the correct way to statistically account for 

ascertainment bias? Defendant merely repeats the arguments 

made in Nelson. It is evident that experts disagree about what 

information would be most helpful to the factfinder in 

evaluating a cold hit DNA match. Frequentists believe juries 

should be told the probability of finding a match in the offender 

relevance of the database match probability statistic is 

outweighed by a substantial possibility of juror confusion or 

undue consumption of time.
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Opinion of the Court by Corrigan, J.

24

database because the database trawl makes the match to the 

defendant less significant. (See Kaye, supra, 87 N.C. L.Rev. at 

p. 460.) Bayesians believe the database match itself “has 

considerable probative value” and does not reduce the 

significance of the match to the defendant. (Id. at p. 471.) But, 

as Nelson observed, the dispute among these statisticians 

concerns not which information is correct, but which 

information is “the best, i.e., the most probative, way to judge 

the significance of a cold hit.” (Nelson, supra, 43 Cal.4th at 

p. 1263.) Relevance, and hence admissibility, is a question for 

the court. (Id. at p. 1265.) Probative value, or weight, is an issue 

for the jury to decide.

Defendant’s renewed arguments do not persuade us that 

a Kelly hearing was required. He cites no case agreeing with his 

position. It appears all published decisions considering the 

issue have concluded the product rule statistic is admissible in 

cold hit cases without a Kelly hearing or the equivalent. (See 

U.S. v. Davis (D.Md. 2009) 602 F.Supp.2d 658, 676–677; 

Commonwealth v. Bizanowicz (2011) 459 Mass. 400, 407–409 

[945 N.E.2d 356, 362–363]; State v. Bartylla (Minn. 2008) 755 

N.W.2d 8, 20; Jenkins, supra, 887 A.2d at pp. 1023–1025; see 

also Crews v. Johnson (W.D.Va. 2010) 702 F.Supp.2d 618, 639 

[opining that database match probability should also have been 

admitted, but finding no error in admission of product rule’s 

rarity statistic because it was “clearly probative of guilt”].) 

Indeed, the Massachusetts Supreme Judicial Court 

persuasively observed that excluding evidence of the rarity 

statistic would eviscerate the purpose for which offender 

databases have been created. (Bizanowicz, at p. 408.) “DNA 

evidence from convicted offenders whose DNA is stored in a 

CODIS [(Combined DNA Index System)] database could never 
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Opinion of the Court by Corrigan, J.

25

be used at trial unless it was obtained without using the CODIS 

database.” (Id. at pp. 408–409.)

Nor are we persuaded that the denial of a Kelly hearing 

was erroneous because of the trial court’s reasoning. The court 

found it significant that the database match here was confirmed 

by later testing, comparing the cold hit to a confidential 

informant who initiates the investigation of a particular subject. 

Similar reasoning appeared in People v. Johnson (2006) 139 

Cal.App.4th 1135, where the Court of Appeal observed that a 

“database search merely provides law enforcement with an 

investigative tool, not evidence of guilt.” (Id. at p. 1150.) 

Reasoning that proof of guilt depends upon the confirmatory 

match between a defendant’s profile and that of the perpetrator, 

the court concluded a defendant’s initial identification “as a 

possible suspect based on a database search simply does not 

matter.” (Id. at p. 1151.) The trial court disclaimed reliance on 

Johnson, which was not yet final at the time of its ruling. 

Nevertheless, defendant argues Johnson was wrongly decided 

and could not properly support denial of a Kelly hearing. We 

need not consider the validity of Johnson’s holding. Our task is 

to review the trial court’s ruling, not its reasoning. “ ‘No rule of 

decision is better or more firmly established by authority, nor 

one resting upon a sounder basis of reason and propriety, than 

that a ruling or decision, itself correct in law, will not be 

disturbed on appeal merely because given for a wrong reason. If 

right upon any theory of the law applicable to the case, it must 

be sustained regardless of the considerations which may have 

moved the trial court to its conclusion.’ ” (D’Amico v. Board of 

Medical Examiners (1974) 11 Cal.3d 1, 19.) The court’s ruling 

here was sound.
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Opinion of the Court by Corrigan, J.

26

ii. Relevance of the Profile’s Rarity

Defendant also disagrees with Nelson’s holding that the 

generally accepted product rule statistic is relevant in cold hit 

cases. Our discussion of this issue relied heavily on Jenkins, 

supra, 887 A.2d 1013. First, Nelson agreed with Jenkins that 

“in a non-cold-hit case, the number derived from the product 

rule ‘represents two concepts: (1) the frequency with which a 

particular DNA profile would be expected to appear in a 

population of unrelated people, in other words, how rare is this 

DNA profile (“rarity statistic”), and (2) the probability of finding 

a match by randomly selecting one profile from a population of 

unrelated people, the so-called “random match probability.” ’ 

(Jenkins, [] at p. 1018.)” (Nelson, supra, 43 Cal.4th at p. 1266.) 

The government in Jenkins had conceded that when a match is 

the result of a database search, the number derived from the 

product rule is no longer an accurate expression of the 

probability of finding a matching profile by chance. (Ibid.; see 

Jenkins, at p. 1018 & fn. 7.) This is essentially the same 

argument defendant makes here. Even accepting the 

government’s concession that random match probability was not 

an applicable principle in cold hit cases, Jenkins explained that 

the “same product rule number . . . still accurately expresses the 

rarity of the DNA profile.” (Jenkins, at p. 1018, fn. 7.) Although 

the database search might alter the probability of finding a 

match, it does not change how rare a specific profile is among 

humans. (See Nelson, at pp. 1266–1267; Jenkins, at pp. 1018–

1019.) We held that this expression of rarity is relevant in cold 

hit cases just as it is when the defendant has been identified by 

other means. (Nelson, at p. 1267.)

Defendant contends the rarity statistic loses all relevance 

when there has been a database search. That argument fails. 
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Opinion of the Court by Corrigan, J.

27

In light of “modern DNA technology and statistical methods,” 

the rarity of a matching profile is relevant no matter how the 

suspect was first located. (Nelson, supra, 43 Cal.4th at p. 1267.) 

If a profile is extremely rare, as is increasingly likely the more 

loci are examined, “[i]t is relevant for the jury to know that most 

persons of at least major portions of the general population could 

not have left the evidence samples.” (People v. Wilson (2006) 38 

Cal.4th 1237, 1245.) The rarity of the evidence profile has a 

tendency to prove that the defendant, who has a matching 

profile, was the source of the evidence at the crime scene. This 

test for relevance is met regardless of how the defendant was 

first identified. The product rule statistic “refer[s] to the 

perpetrator’s profile and [is] therefore . . . unaffected by any 

particular defendant or suspect.” (People v. Xiong (2013) 215 

Cal.App.4th 1259, 1274 (Xiong).) It informs the jury “how few 

people are likely to have this profile.” (Ibid.) The product rule 

statistic therefore provides relevant evidence, although its 

admissibility, as with all relevant evidence, may be subject to an 

Evidence Code section 352 analysis.

Defendant contends random match probability is not 

relevant in cold hit cases because a match resulting from a 

database search is not “random.” Whereas random match 

probability is appropriate if only one person is tested, defendant 

insists the statistic is inapt when a potentially large number of 

profiles are tested in a database trawl. This argument focuses 

on the odds of finding a match in a database, relying on the 

assertion that the more profiles are compared against the 

evidence sample, the greater the likelihood a match will 

ultimately be found. The assertion may be accurate, but it does 

not assist defendant here. If a suspect’s profile is compared to a 

database of 10, it may be quite unlikely that the suspect’s profile 
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Opinion of the Court by Corrigan, J.

28

will happen to match one of those 10 profiles. But if the 

database is expanded to 10,000, the chances of a successful 

match increase because there are more opportunities for a 

match. That the opportunities for a match increase as the 

database size grows does not mean the database trawl itself 

injects error, nor does it cast doubt on the fact that the suspect’s 

DNA has been found to match crime scene evidence.

When the random match probability statistic is very 

small, such as the one in one quintillion figure calculated by the 

LAPD’s DNA Unit in this case, the probability of finding a match 

in an offender database will generally not be germane to an 

issue the jury must decide.12 In such cases, the relevance of 

asking how likely it is that someone in the database committed 

the crime is eclipsed by the issue of how likely it is that someone 

other than the defendant could have been the source of the 

evidence samples. This latter question is addressed by a 

statistic that measures the prevalence of a DNA profile in the 

entire population of potential suspects. (See Xiong, supra, 215 

Cal.App.4th at pp. 1274–1275.) Thus, the statistic generated by 

the product rule, which describes the rarity of the DNA profile 

12 We reaffirm, however, that trial courts have discretion to 

permit evidence of database match probability in an appropriate 

case. Database match probability is relevant in some 

circumstances. For example, a profile’s random match 

probability may be relatively high if a degraded crime scene 

sample provides only a few loci for testing. In such a case, there 

is a significant chance that a “match” based on those few loci 

could be found in a large database by coincidence, even though 

the individual had nothing to do with the crime. (Chin et al., 

Forensic DNA Evidence: Science and the Law (The Rutter 

Group 2019) § 5:4.) Database match probability is a way of 

conveying this concept.
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Opinion of the Court by Corrigan, J.

29

shared by the perpetrator and the defendant, is relevant even in 

cold hit cases. (Chin et al., Forensic DNA Evidence: Science and 

the Law, supra, § 5:4.) Of course, defendants remain free to 

challenge the probative value of this statistic through 

objections, cross-examination, or the introduction of other 

evidence, such as database match probability, and trial courts 

may give clarifying jury instructions when appropriate.

c. Sufficiency of Evidence Regarding DNA 

Profile Rarity 

Building on his previous arguments, defendant claims 

insufficient evidence supports the verdicts because the jury only 

heard evidence of random match probability, not rarity. It is 

true that the prosecution experts typically described statistical 

significance in terms of “the probability of a random match of 

unrelated individuals.” But this information did convey 

essential facts about the significance of the matches between 

defendant’s profile and crime scene DNA. The rarity of a DNA 

profile and random match probability are two different ways of 

expressing the meaning of the same statistic calculated using 

the product rule, and it is ultimately the statistic that is 

relevant. (See Nelson, supra, 43 Cal.4th at p. 1266.) Defendant 

incorrectly asserts that Nelson disapproved use of random 

match probability in cold hit cases. Nelson recited the Jenkins

court’s observation that “ ‘the product rule number no longer 

accurately expresses the random match “probability” ’ ” in cold 

hit cases. (Nelson, at p. 1266, quoting Jenkins, supra, 887 A.2d 

at p. 1018, fn. 7.) But the statement simply acknowledged that 

the defendant in a cold hit case has been identified by a database 

search and not selected “at random.” Although the concept of 

“random match probability” is not directly applicable when the 

defendant has been identified by a database search, and the 
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Opinion of the Court by Corrigan, J.

30

defendant may point this out at trial, the statistic generated by 

the product rule continues to have relevance in cold hit cases 

because it expresses rarity. Nelson did not suggest otherwise. 

On the contrary, Nelson held, and we reaffirm, that the statistic 

generated by the product rule provides relevant and admissible 

evidence in cold hit as well as confirmatory match cases. 

(Nelson, at pp. 1266–1267.)13

Here, one expert told the jury that the probability a 

random person, unrelated to defendant, would match DNA left 

at each crime scene was one in one quintillion. Another expert 

set the probability at one in 6.725 quintillion. Even though 

phrased in “random match” language, the point of these productrule-derived statistics was clearly to convey the rarity, if not 

uniqueness, of the 13-loci profile. The evidence was properly 

admitted and constitutes substantial evidence in support of the 

verdicts.

2. Excusal of Prospective Jurors for Cause 

Defendant next argues two prospective jurors were 

improperly dismissed from the venire based on their views about 

the death penalty. The dismissals were permissible.

Criminal defendants have a constitutional right to an 

impartial jury, and “a prospective juror’s personal views 

13 Trial courts and parties have tools available to address 

any possible confusion arising from the use of “random match” 

terminology in cold hit cases. If there is a risk jurors might 

mistakenly think the defendant was identified at random, 

rather than from a database search, the concept can be clarified 

through cross-examination, additional evidence, and/or jury 

instructions. Defendant did not object on this ground below, nor 

did he seek to present evidence about the database searches by 

which he was located.
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Opinion of the Court by Corrigan, J.

31

concerning the death penalty do not necessarily afford a basis 

for excusing the juror for bias.” (People v. Martinez (2009) 47 

Cal.4th 399, 425 (Martinez).) Instead, consistent with the 

constitutional imperative, prospective jurors may be dismissed 

for cause only if their views on capital punishment “ ‘would 

“ ‘prevent or substantially impair’ ” the performance of [their] 

duties as defined by the court’s instructions and [their] oath.’ 

(People v. Cunningham (2001) 25 Cal.4th 926, 975; see 

Wainwright v. Witt (1985) 469 U.S. 412, 424; Witherspoon v. 

Illinois (1968) 391 U.S. 510, 521–522.)” (People v. Winbush

(2017) 2 Cal.5th 402, 424 (Winbush).) A prospective juror’s bias 

against the death penalty need not be shown with unmistakable 

clarity. (People v. Abilez (2007) 41 Cal.4th 472, 497.) “Jurors 

commonly supply conflicting or equivocal responses to questions 

directed at their potential bias or incapacity to serve.” 

(Martinez, at p. 426.) Indeed, “many prospective jurors ‘simply 

cannot be asked enough questions to reach the point where their 

bias has been made “unmistakably clear”; these [prospective 

jurors] may not know how they will react when faced with 

imposing the death sentence, or may be unable to articulate, or 

may wish to hide their true feelings.’ ” (People v. Beck and Cruz

(2019) 8 Cal.5th 548, 607 (Beck and Cruz).) Nevertheless, a 

dismissal for cause is appropriate if, “after examining the 

available evidence, . . . the trial court [is] left with a definite 

impression that the prospective juror is unable or unwilling to 

faithfully and impartially follow the law.” (People v. Thompson

(2016) 1 Cal.5th 1043, 1066 (Thompson).)

Our review in this area is necessarily deferential because 

“the trial court, through its observation of the juror’s demeanor 

as well as through its evaluation of the juror’s verbal responses, 

is best suited to reach a conclusion regarding the juror’s actual 
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Opinion of the Court by Corrigan, J.

32

state of mind.” (People v. Jones (2012) 54 Cal.4th 1, 41; see 

Uttecht v. Brown (2007) 551 U.S. 1, 7.) In applying deferential 

review, “appellate courts recognize that a trial judge who 

observes and speaks with a prospective juror and hears that 

person’s responses (noting, among other things, the person’s 

tone of voice, apparent level of confidence, and demeanor), 

gleans valuable information that simply does not appear on the 

record.” (People v. Stewart (2004) 33 Cal.4th 425, 451 (Stewart).) 

Accordingly, the trial court’s determination as to the juror’s true 

state of mind is binding on appeal if supported by substantial 

evidence. (Thompson, supra, 1 Cal.5th at p. 1066; Martinez, 

supra, 47 Cal.4th at pp. 426–427.)

a. Prospective Juror No. 4

In her jury questionnaire, Prospective Juror No. 4 said she 

was moderately in favor of the death penalty, and her responses 

evinced a general willingness to impose death in an appropriate 

case. When asked to consider this particular case, however, the 

juror’s confidence faltered. The questionnaire asked whether, 

depending on the evidence and circumstances presented, jurors 

could impose the death penalty in a case involving a multiple 

murder allegation. Instead of circling “yes” or “no,” Prospective 

Juror No. 4 wrote “possibly.” The court probed this response in 

voir dire, asking whether the juror could impose the death 

penalty in a case involving allegations of multiple murder and 

murder in the course of a rape. She responded, “I’d have to hear 

everything,” and “I am open.” However, after the court finished 

its question with the phrase “could you actually vote for death,” 

Prospective Juror No. 4 said, “I would not vote for death.” The 

questioning continued:

“THE COURT: I’m sorry. You would not?
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Opinion of the Court by Corrigan, J.

33

“PROSPECTIVE JUROR NO. 4: No. I’d have to listen to 

everything and, you know, get an understanding and the good 

and the bad and all of that.

“THE COURT: All right.

“PROSPECTIVE JUROR NO. 4: And it would be a hard 

decision to say now.

“THE COURT: There are some people that believe in the 

death penalty, support it but cannot participate in the process.

“PROSPECTIVE JUROR NO. 4: Right.

“THE COURT: Is that you? You could not vote for death, 

no matter what the evidence is in the penalty phase?

“PROSPECTIVE JUROR NO. 4: Possibly, yeah.” 

Later in voir dire, the prosecutor explained that there is 

no burden of proof at the penalty phase, but jurors must make 

“a moral decision and . . . a choice.” She then asked Prospective 

Juror No. 4 about her ability to make such a choice:

“MS. DO: And so given some of the reluctance that I’m 

seeing in you, knowing that it’s a choice, do you think that if you 

have the option of giving a person, a human being[,] life without 

parole, that you would always choose that?

“PROSPECTIVE JUROR NO. 4: I have a hard time 

putting someone to death. Most likely my choice would be the 

life in prison.

“MS. DO: Okay.

“PROSPECTIVE JUROR NO. 4: I would have a hard 

time with the other.
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Opinion of the Court by Corrigan, J.

34

“MS. DO: All right. So do you think that you might, if 

we get to penalty phase, walk in predisposed to life without 

parole?

“PROSPECTIVE JUROR NO. 4: Most likely, yes.

“MS. DO: Okay. And would the prosecution have quite a 

burden to prove to you that death would be appropriate to 

overcome that predisposition?

“PROSPECTIVE JUROR NO. 4: Yeah.” 

In granting the prosecution’s motion to dismiss 

Prospective Juror No. 4, the court remarked that it had noticed 

the juror’s “body language as she was answering the questions, 

and she seemed to be very tightly drawn, is what I would say. 

That’s a bad description, but not open and free with her feelings 

about it but somewhat defensive about it.” Although the juror 

had said on the questionnaire that she could “possibly” impose 

the death penalty, in oral questioning she made it “awfully 

clear,” in the court’s opinion, that she would not actually do so. 

Based on the juror’s demeanor and responses in voir dire, the 

court concluded “she would not fairly impose the death penalty.” 

Substantial evidence supports this decision. Although the 

juror may have supported the death penalty in theory, her voir 

dire responses made it clear she felt great reluctance about 

actually voting to impose it. We considered a similar record in 

People v. Solomon (2010) 49 Cal.4th 792 (Solomon). There, we 

deferred to the trial court’s finding of substantial impairment 

regarding a prospective juror who expressed support for the 

death penalty in her questionnaire but later equivocated about 

whether she could ultimately vote to sentence someone to death. 

(Id. at pp. 835–836.) Similarly, in People v. Cunningham, supra, 

25 Cal.4th at page 981, we upheld the dismissal of a prospective 
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Opinion of the Court by Corrigan, J.

35

juror who said “she believed in the death penalty and would like 

to see it applied more often but was not certain whether 

personally she could vote for it.”

Deference to the court’s finding of substantial impairment 

is particularly appropriate here because the court expressly 

based its ruling, in part, on the juror’s “tightly drawn” and 

“defensive” body language. (See People v. Manibusan (2013) 58 

Cal.4th 40, 73.) This demeanor, combined with the juror’s 

repeatedly expressed doubts about whether she could impose a 

death sentence, could support a “definite impression” that the 

juror would be unwilling or unable “to faithfully and impartially 

apply the law.” (Wainwright v. Witt, supra, 469 U.S. at p. 426; 

see People v. Nunez and Satele (2013) 57 Cal.4th 1, 24.)

Stewart, supra, 33 Cal.4th 425 does not compel a different 

result. There, we held it was error to dismiss jurors based solely 

on brief written comments and a check mark next to a box 

indicating their views “would either ‘prevent or make it very 

difficult’ ” to impose the death penalty. (Id. at p. 446.) Here, the 

court and prosecutor explored Prospective Juror No. 4’s views in 

greater detail. While it is true that a prospective juror is not 

disqualified merely because she would find it difficult to impose 

the death penalty (id. at pp. 446–447), Prospective Juror No. 4’s 

responses to oral questioning indicated not only that she would 

have difficulty with the decision but also that she would be 

predisposed to voting for a life sentence, regardless of the 

evidence presented. Nor is this case like People v. Pearson

(2012) 53 Cal.4th 306, 332, in which the court improperly 

dismissed a prospective juror who had no strong views on the 

death penalty and gave no indication she would be unable to 

perform her duty as a capital juror. The juror’s responses here 

indicated she would not be able to impartially apply the law.
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Opinion of the Court by Corrigan, J.

36

b. Prospective Alternate Juror No. 1

Prospective Alternate Juror No. 1’s questionnaire 

responses consistently expressed personal opposition to capital 

punishment.14 He checked a box indicating he was strongly 

against the death penalty and wrote, “I’m not for death penalty” 

in response to the question whether he would always vote guilty 

to reach the penalty phase in a capital case. He wrote that he 

was “not sure” what purpose the death penalty serves and that 

he did not feel it should be used. When asked whether he could 

impose the death penalty in a case involving multiple murder, 

the juror circled “yes” and wrote, “I will perform my civi[c] duty 

but I’m not for it.” He reported that his religious organization 

was “anti death penalty” and, though he felt obligated to accept 

that view, he could “do what I’m ask[ed] to do” regardless of his 

views. Finally, he agreed somewhat that people who 

intentionally kill should never get the death penalty, explaining,

“I’m not for the death of anyone.” 

In voir dire, the court asked whether Prospective 

Alternate Juror No. 1 would always vote against the death 

penalty, regardless of the evidence. The juror responded, “Not 

always, but I’d say if it was on a scale, it would be more towards 

life than death.” When the court asked if he was open to voting 

for death, the juror said, “If I have to, . . . I will follow the 

instructions,” but in his “personal view,” he “would lean towards 

life.” When pressed about whether he could realistically ever 

see himself voting for death, the juror responded, “Not really,” 

14 Because an alternate juror was selected at random and 

seated early in the trial, it does not appear that any error in this 

excusal would have been harmless. (See People v. Bryant, Smith 

and Wheeler (2014) 60 Cal.4th 335, 399, fn. 19.)
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Opinion of the Court by Corrigan, J.

37

and “it would be kind of tough for me.” Nevertheless, he stated 

that he could perform his duty as a juror and could vote for death 

if the penalty was warranted. 

The prosecutor asked whether, given his religious and 

moral opposition to the death penalty, Prospective Alternate 

Juror No. 1 could “make a decision that would end a man’s life.” 

The juror responded, “I’m not sure if I could do that,” adding 

that he might not be able to vote for death if the defendant’s 

family members were present. The prosecutor explained that 

there might be family members in the audience but asked again 

whether, regardless of family members, the juror could vote for 

death.15 Again, he answered, “I’m not sure.” 

The court granted the prosecutor’s cause challenge. 

Although the juror said he would “do his duty,” the court found 

his answers indicated he would not be able to vote for death, 

“especially if there were any people in the courtroom related to 

the defendant.” As with Prospective Juror No. 4, this dismissal 

is supported by substantial evidence. We recently upheld the 

dismissal of a prospective juror who expressed similar doubts 

about her ability to impose the death penalty. (Beck and Cruz, 

supra, 8 Cal.5th at p. 607.) When a prospective juror repeatedly 

says he does not know whether he could realistically impose the 

death penalty, we will not second-guess the trial court’s 

15 Defendant argues it was “improper” for the prosecutor to 

probe the juror’s ability to announce a death verdict in front of 

family members. We have repeatedly approved similar lines of 

questioning. (See People v. Lynch (2010) 50 Cal.4th 693, 734; 

People v. Bramit (2009) 46 Cal.4th 1221, 1235; People v. 

Samayoa (1997) 15 Cal.4th 795, 853–854.)
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Opinion of the Court by Corrigan, J.

38

determination that the juror is substantially impaired. (See id. 

at pp. 607–608; Solomon, supra, 49 Cal.4th at pp. 835–836.)

B. Guilt Phase Issues

1. Third Party Culpability Evidence 

Defendant argues the court infringed his constitutional 

right to present a defense when it excluded evidence about police 

efforts in the Washington case to match a partial shoe print with 

a different suspect. The ruling was an appropriate exercise of 

discretion.

Shortly before trial, defense counsel announced he 

intended to introduce evidence that police had compared a 

partial footprint found on Regina Washington’s shirt to the shoe 

of another individual. The court deferred ruling, noting 

admissibility would depend on the print’s significance in 

relation to the crime scene. Trial evidence established that a 

partial shoe print outline had been found on the back shoulder 

of Washington’s white T-shirt. At an Evidence Code section 402 

hearing, a criminalist testified that the shoe print was 

approximately one square inch and “of a quality that no further 

comparison could be made.” He had compared the print to a 

shoe belonging to Ray Anthony Williams and could not 

eliminate the shoe as the source of the print. Mr. Williams was 

connected to the case by unspecified hearsay evidence, which 

was not made part of the record. The prosecution sought to elicit 

evidence about the size and quality of the print but argued the 

defense should be precluded from inquiring about the Williams 

comparison under Evidence Code section 352.16

16 Evidence Code section 352 provides: “The court in its 

discretion may exclude evidence if its probative value is 
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Opinion of the Court by Corrigan, J.

39

The court agreed the evidence would be irrelevant and 

inadmissible. It explained, “[T]he problem is this: By making 

the comparison, it suggests to the jury that there was a reason 

for the comparison, which is hearsay, which is not admissible. 

[¶] So you can’t get the reason for doing the comparison in front 

of the jury.” The court also denied defendant’s request to ask 

more generally whether the print had been compared “to 

anybody else” to eliminate them as a suspect, explaining that 

the print “doesn’t include or eliminate because it’s not sufficient 

to do that. And . . . bringing forth the fact of the comparison, it 

suggests that there is more than the actual evidence in the case, 

which is the reason for it, which is hearsay.” Defendant now 

contends he had a constitutional right to present evidence of the 

Williams comparison because it tended to show a third party 

committed the Washington murder.

Like all other evidence, third party culpability evidence 

may be admitted if it is relevant and its probative value is not 

substantially outweighed by the risk of undue delay, prejudice, 

or confusion, or otherwise made inadmissible by the rules of 

evidence. (Evid. Code, §§ 350, 352; see People v. Hall (1986) 41 

Cal.3d 826, 834 (Hall).) “To be admissible, the third-party 

evidence need not show ‘substantial proof of a probability’ that 

the third person committed the act; it need only be capable of 

raising a reasonable doubt of defendant’s guilt. At the same 

time, we do not require that any evidence, however remote, must 

be admitted to show a third party’s possible culpability.” (Hall, 

substantially outweighed by the probability that its admission 

will (a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, 

or of misleading the jury.”
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Opinion of the Court by Corrigan, J.

40

at p. 833.) For example, “evidence of mere motive or opportunity 

to commit the crime in another person, without more, will not 

suffice to raise a reasonable doubt about a defendant’s guilt

. . . .” (Ibid.) Moreover, admissible evidence of this nature 

points to the culpability of a specific third party, not the 

possibility that some unidentified third party could have 

committed the crime. (See People v. Page (2008) 44 Cal.4th 1, 

39 (Page); People v. Panah (2005) 35 Cal.4th 395, 481; People v. 

Gutierrez (2002) 28 Cal.4th 1083, 1136.) For the evidence to be 

relevant and admissible, “there must be direct or circumstantial 

evidence linking the third person to the actual perpetration of the 

crime.” (Hall, at p. 833, italics added.) As with all evidentiary 

rulings, the exclusion of third party evidence is reviewed for 

abuse of discretion. (See People v. Lewis (2001) 26 Cal.4th 334, 

372–373 (Lewis); People v. Kaurish (1990) 52 Cal.3d 648, 686.)

The court properly excluded evidence about the shoe print 

comparison. No direct or circumstantial evidence linked 

Williams to the Washington murder. Defendant insists the 

evidence would have shown that “someone else was present at 

the scene [and] was responsible for the murder.” But the 

evidence could establish no such thing. The one-inch print was 

deficient in quality and size to be matched to any particular 

shoe. This deficiency would have made it impossible to exclude 

any number of shoes as the source of the mark. The criminalist’s 

inability to exclude Williams as the source of the print was 

therefore irrelevant and potentially misleading, to the extent 

the jury might have speculated the result indicated an 

affirmative identification. Defendant contends forensic 

evidence linking a third party to a crime scene is always 

admissible, but the premise of his argument fails. The shoe

print did not affirmatively link Williams, defendant, or anyone 
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Opinion of the Court by Corrigan, J.

41

else to the murder. Nor was it relevant that the police had 

compared the shoe print to a third party, since the comparison 

yielded no “direct or circumstantial evidence linking [him] to the 

actual perpetration of the crime.” (Hall, supra, 41 Cal.3d at 

p. 833.) We have repeatedly upheld the exclusion of third party 

culpability evidence when the third party’s link to a crime is 

tenuous or speculative. (See, e.g., Page, supra, 44 Cal.4th at 

pp. 38–39; Lewis, supra, 26 Cal.4th at p. 373; People v. Alcala

(1992) 4 Cal.4th 742, 792–793.) The linkage here is similarly 

unsupported.

Furthermore, as the trial court noted, testimony about the 

comparison would have invited speculation about why Williams 

was being investigated. Yet no explanation could be provided 

because the evidence about Williams’s potential as a suspect 

was inadmissible hearsay. The court reasonably concluded the 

shoe print evidence would have been irrelevant and potentially 

confusing without this additional information. Although the 

court did not expressly invoke Evidence Code section 352 as the 

basis for its ruling, it clearly had the concerns of that statute in 

mind when excluding the evidence. Moreover, express reliance 

on section 352 is not required because we must affirm if the 

court’s ruling is correct on any ground. (People v. Geier (2007) 

41 Cal.4th 555, 582.)

Defendant also claims exclusion of the evidence violated 

his constitutional rights to due process, compulsory process, and 

“to present a complete defense.” (California v. Trombetta (1984) 

467 U.S. 479, 485.) There was no constitutional error. “As a 

general matter, the ordinary rules of evidence do not 

impermissibly infringe on the accused’s right to present a 

defense.” (Hall, supra, 41 Cal.3d at p. 834; see United States v. 

Scheffer (1998) 523 U.S. 303, 308.) This case is no exception. 
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Opinion of the Court by Corrigan, J.

42

The court’s reasonable application of the rules of evidence to 

exclude irrelevant and potentially misleading information did 

not deprive defendant of his constitutional rights. (See Lewis, 

supra, 26 Cal.4th at p. 373–374; People v. Cudjo (1993) 6 Cal.4th 

585, 611.)

2. Issues Regarding Fetal Viability

Defendant was charged with murdering the fetus carried 

by Regina Washington. In 1989, when this crime was 

committed, the murder statute had consistently been 

interpreted to require a finding of fetal viability. (See People v. 

Davis (1994) 7 Cal.4th 797, 804–805, 812 (Davis).)

Dr. Lisa Scheinin, a deputy medical examiner with the Los 

Angeles County Coroner’s Office, testified on that topic. 

Although she had not autopsied the fetus herself, Dr. Scheinin 

related findings from an autopsy report that the fetus was 

female, weighed 825 grams, and had a gestational age of 27 to 

28 weeks, or approximately six and a half months. She 

explained that World Health Organization guidelines consider a 

fetus viable after it has reached the 22nd week or a weight of 

500 grams. Although the autopsy report said nothing specific 

about whether the fetus could have survived outside the womb, 

Dr. Scheinin concluded from the numbers in the report that it 

was “clearly well into the range that’s defined as viable.” The 

fetus had no congenital abnormalities, and there was nothing to 

suggest Washington’s cocaine use had negatively affected its 

health or development. Based on the autopsy report’s findings, 

the fetus appeared to be a “normally developing healthy baby.” 

a. Fetal Viability Instruction 

Defendant first contends the jury instruction defining 

viability was erroneous and violated his rights to due process, a 
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Opinion of the Court by Corrigan, J.

43

fair trial, and a fair and reliable penalty determination. The 

claim fails because the instruction accurately conveyed the legal 

definition of viability.

The jury was instructed with a modified version of 

CALJIC No. 8.10: “In the crime of murder, a human fetus is 

defined as a viable unborn child. Viability is defined as the 

capability of the fetus to maintain independent existence 

outside of the womb even if this existence required artificial 

medical aid.”17 Defendant did not object or propose an 

alternative instruction.

In 1970, the Legislature amended section 187, 

subdivision (a), to include the killing of a fetus within the 

definition of murder. (Stats. 1970, ch. 1311, § 1, p. 2440; Davis, 

supra, 7 Cal.4th at p. 803.) Thereafter, the United States 

Supreme Court decided in the abortion context that states have 

no legitimate interest in protecting a fetus before it reaches 

viability, which the court defined as the “capability of 

meaningful life outside the mother’s womb.” (Roe v. Wade (1973) 

410 U.S. 113, 163; see Davis, at p. 803.) A series of Court of 

Appeal decisions relying on Roe held that only the killing of a 

viable fetus could constitute murder. (See People v. Smith 

(1976) 59 Cal.App.3d 751, 757 (K.A. Smith); People v. Apodaca

(1978) 76 Cal.App.3d 479, 487, 489 (Apodaca); People v. Smith

(1987) 188 Cal.App.3d 1495, 1514 (R.P. Smith); see also Davis, 

at pp. 804–805.) We disapproved this line of cases in 1994 when 

17 The 1988 version of the instruction in effect at the time of 

the Washington murder was similar. It said: “A viable human 

fetus is one who has attained such form and development of 

organs as to be normally capable of living outside of the uterus.”

(CALJIC No. 8.10 (5th ed. 1988).)
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Opinion of the Court by Corrigan, J.

44

we held that viability is not required for the crime of murdering

a fetus. (Davis, at p. 810.) However, our decision was 

prospective only. (Id. at p. 812.) Accordingly, when defendant 

was tried, a conviction for murdering the Washington fetus 

required a finding that the fetus was viable.

Courts first defined viability for this purpose as “ ‘having 

attained such form and development of organs as to be normally 

capable of living outside the uterus.’ ” (K.A. Smith, supra, 59 

Cal.App.3d at p. 758.) The definition was later expanded to 

address the availability of medical assistance. Apodaca, supra, 

76 Cal.App.3d at page 489 stated that “a fetus is deemed viable 

when it is possible for it to survive the trauma of birth, although 

with artificial medical aid.” Similarly, R.P. Smith, supra, 188 

Cal.App.3d at page 1514 summarized case law as holding that 

“viability means being capable of surviving the trauma of birth 

with the aid of normal medical science.” The instruction here 

was fully consistent with the controlling law. It defined viability 

as the fetus’s capability to live outside the womb, even if doing 

so required medical assistance.

Nevertheless, defendant complains the instruction was 

comparable to one we found lacking in Davis. The comparison 

does not withstand scrutiny. The instruction at issue in Davis

stated that “ ‘a fetus is viable when it has achieved the capability 

for independent existence; that is, when it is possible for it to 

survive the trauma of birth, although with artificial medical 

aid.’ (Italics added.)” (Davis, supra, 7 Cal.4th at p. 813.) We 

found the term “possible” to be problematic because it could 

permit a finding of viability for a fetus that was “incapable of 

survival outside the womb for any discernible time.” (Id. at p. 

814.) Because the term significantly lowered the viability 

threshold as it was commonly accepted at the time, we 
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Opinion of the Court by Corrigan, J.

45

concluded this modification of CALJIC No. 8.10 was error. 

(Davis, at p. 814.) By contrast, the instruction in defendant’s 

trial used no variant of the word “possible,” nor did it include 

any similar language that could have lowered the threshold for 

when a fetus becomes viable. The instruction required that a 

viable fetus have the “capability . . . to maintain independent 

existence outside of the womb even if this existence required 

artificial medical aid.” (Italics added.) The word “maintain” 

excludes a case in which the fetus might only survive 

momentarily. Even assuming defendant did not forfeit his claim 

by failing to object, the instruction given here accurately defined 

viability and did not violate defendant’s constitutional rights.

b. Hearsay Evidence of Viability

After we notified the parties of our intention to set the case 

for oral argument, defendant filed a supplemental brief 

contending Dr. Scheinin violated state law by relating casespecific hearsay from the fetus’s autopsy report to support her 

viability opinion.18 (See People v. Sanchez (2016) 63 Cal.4th 665 

(Sanchez).) He also argued the report’s statements were 

testimonial and admitted in violation of his Sixth Amendment 

right to confront his accusers. (See Crawford v. Washington

(2004) 541 U.S. 36.) Because we conclude the state law error 

was prejudicial and requires reversal of the fetal murder 

conviction, we need not address these constitutional 

arguments.19 It is not reasonably possible the error affected the 

18 He also sought judicial notice of the autopsy report and its 

attachments. We granted this unopposed request. (See Evid. 

Code, §§ 452, subds. (c), (h), 459, subd. (a).)

19 Whether a challenged statement is hearsay is always the 

threshold question. If it is, it cannot be admitted unless it 

satisfies an exception. If it does not do so, and the error is 
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Opinion of the Court by Corrigan, J.

46

jury’s penalty decision, however, and defendant’s death 

sentence remains undisturbed. (See People v. Gonzalez (2006) 

38 Cal.4th 932, 960-961 (Gonzalez); see also Chapman v. 

California (1967) 386 U.S. 18, 24 (Chapman).)

i. Hearsay

Hearsay is “evidence of a statement that was made other 

than by a witness while testifying at the hearing and that is 

offered to prove the truth of the matter stated.” (Evid Code, 

§ 1200, subd. (a).) “Documents like letters, reports, and 

memoranda are often hearsay because they are prepared by a 

person outside the courtroom and are usually offered to prove 

the truth of the information they contain.” (Sanchez, supra, 63 

Cal.4th at p. 674.) Hearsay evidence is generally inadmissible 

unless it satisfies a statutory exception. (Evid. Code, § 1200, 

subd. (b).)

As noted, Dr. Scheinin did not perform the autopsy on 

Regina Washington’s fetus. She did, however, relate to the jury 

observations recorded by the non-testifying medical examiner, 

including the weight and gestational age of the fetus. These 

facts were hearsay if offered to prove their truth. (See Sanchez, 

supra, 63 Cal.4th at p. 674.) Experts enjoy wide latitude in the 

sources they may draw upon, and they are permitted to rely on 

hearsay in reaching their conclusions. (Id. at pp. 685–686; 

People v. Leon (2015) 61 Cal.4th 569, 603; see Evid. Code, § 802.) 

That is to say, experts can take hearsay into account when 

forming their own opinions.20 “What an expert cannot do,” 

prejudicial under state law, a further Crawford analysis is 

unnecessary. (See Sanchez, supra, 63 Cal.4th at p. 680.)

20 Experts may also tell the jury about background 

information generally accepted and reasonably relied on in their 
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Opinion of the Court by Corrigan, J.

47

however, “is relate as true case-specific facts asserted in hearsay 

statements, unless they are independently proven by competent 

evidence or are covered by a hearsay exception.” (Sanchez, at 

p. 686.) Some prior cases had allowed experts to relate casespecific facts on the theory that the material was not offered for 

its truth, but merely to show the basis of the expert’s opinion. 

Sanchez pointed out the flaw in this logic: “When an expert 

relies on hearsay to provide case-specific facts, considers the 

statements as true, and relates them to the jury as a reliable 

basis for the expert’s opinion, it cannot logically be asserted that 

the hearsay content is not offered for its truth. In such a case, 

‘the validity of [the expert’s] opinion ultimately turn[s] on the 

truth’ (Williams[ v. Illinois (2012)] 567 U.S. [50,] 108 . . . (conc. 

opn. of Thomas, J.)) of the hearsay statement. If the hearsay 

that the expert relies on and treats as true is not true, an 

important basis for the opinion is lacking.” (Sanchez, at 

pp. 682–683.)21 When Dr. Scheinin gave facts about gestational 

field. This information is part of the expert’s specialized 

knowledge, even if derived from hearsay sources. (See Evid.

Code, §§ 801, subd. (b), 802; Sanchez, supra, 63 Cal.4th at 

p. 676; see also Simons, Cal. Evidence Manual (2020) § 4:31.) 

On the distinction between case-specific facts and general 

background information, see Sanchez at pages 676 to 677.

21 Defendant raised no hearsay or confrontation objection 

below. Although his case was tried after Crawford established 

a constitutional ban on testimonial hearsay, the statements in 

question would not have been considered hearsay at all under 

the law then in effect because they were offered for the “nonhearsay purpose” of explaining the basis for Dr. Scheinin’s 

opinion. (See People v. Montiel (1993) 5 Cal.4th 877, 918–919 

(Montiel), overruled in Sanchez, supra, 63 Cal.4th at p. 686, 

fn. 13.) Drawing on United States Supreme Court precedent, 

particularly Williams v. Illinois, supra, 567 U.S. 50, Sanchez

rejected that approach. (See People v. Perez (2020) 9 Cal.5th 1, 
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Opinion of the Court by Corrigan, J.

48

age and weight obtained only from the autopsy report, presented 

them to the jury as true, and represented that those facts 

bolstered her opinion, she related case-specific hearsay. (See 

Sanchez, at p. 685.)

The Attorney General concedes the testimony was hearsay 

but argues the report could have been admitted under an 

exception to the hearsay rule. For example, when an 

appropriate foundation has been laid, autopsy reports have 

sometimes been admitted as business records (Evid. Code, 

§ 1271; see People v. Beeler (1995) 9 Cal.4th 953, 979 (Beeler)) or 

official records (Evid. Code, § 1280; see People v. Clark (1992) 3 

Cal.4th 41, 158–159). However, it is significant that the 

prosecution did not offer the report itself into evidence, and the 

trial court did not rule on whether it was admissible under 

either exception. “The proponent of hearsay has to alert the 

court to the exception relied upon and has the burden of laying 

the proper foundation.” (People v. Livaditis (1992) 2 Cal.4th 

759, 778.) A trial court’s decision to admit evidence under a 

hearsay exception is entitled to great deference on appeal, but 

here foundational testimony was neither elicited by the 

prosecution nor ruled upon by the court. 

Both the business record and official record exceptions 

require a showing that the writing “was made at or near the 

time of the act, condition, or event” (Evid. Code, §§ 1271, 

subd. (b), 1280, subd. (b)); either “in the regular course of a 

business” (id., § 1271, subd. (a)) or “by and within the scope of 

duty of a public employee” (id., § 1280, subd. (a)); and that 

9.) Accordingly, as the Attorney General acknowledges, 

defendant’s failure to object did not forfeit his present claims. 

(Ibid.)
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Opinion of the Court by Corrigan, J.

49

“sources of information and method and time of preparation 

were such as to indicate [the writing’s] trustworthiness” (id., 

§§ 1271, subd. (d), 1280, subd. (c)). Dr. Scheinin described how 

autopsy reports are customarily prepared and maintained in the 

Los Angeles County Coroner’s Office, but she did not begin 

working there until two years after the autopsy in question. She 

did not testify that the same procedures were followed before 

her arrival, nor did she link her description of the office’s 

procedures to the preparation of this particular autopsy report. 

The foundational showing here is notably thinner than we have 

encountered in upholding rulings to admit other autopsy 

reports. For example, in Beeler, supra, 9 Cal.4th at page 979, 

the testifying pathologist both explained the office’s autopsy 

procedures and attested that these standard procedures were 

followed in the autopsy’s performance and documentation. That 

testimony was sufficient to support the court’s admission of the 

report as a business record. (Ibid.) In contrast, given the record 

here, we cannot say with confidence that the fetal autopsy report 

would have been admissible as either a business record or a 

public record, and the issue was not explored at trial.

We recognize that the prosecution might reasonably have 

perceived no need to offer the autopsy report under a hearsay 

exception. When defendant’s case was tried in 2007, courts 

frequently allowed experts to relate case-specific hearsay under 

the rationale that such evidence merely explained the basis of 

the expert’s opinion and was not offered for its truth. (See, e.g., 

Montiel, supra, 5 Cal.4th at p. 919, overruled in Sanchez, supra, 

63 Cal.4th at p. 686, fn. 13.) Sanchez changed this aspect of the 

law. (See Sanchez, at p. 686.) But, while our treatment of 

hearsay has changed in light of evolving Supreme Court 

jurisprudence (see id. at p. 682), this change does not make it 
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Opinion of the Court by Corrigan, J.

50

appropriate in this case to uphold the admission of hearsay 

against a criminal defendant based on an exception that was 

never presented to the trial court, for which no effort was made 

to lay the necessary foundation, and on which the court never 

ruled.

Had the report been offered and admitted under an 

exception, the words of the document itself would have 

constituted admissible hearsay. Dr. Scheinin’s recitation of the 

content of an unadmitted document remains hearsay for which 

no exception was established. She was allowed to present 

inadmissible hearsay as true and supportive of her opinion. 

This was error under California’s hearsay statutes. (See 

Sanchez, supra, 63 Cal.4th at p. 686). 

ii. Prejudice

State law error in the admission of hearsay requires 

reversal of the judgment if “ ‘it is reasonably probable that a 

result more favorable to the [defendant] would have been 

reached in the absence of the error.’ ” (People v. Watson (1956) 

46 Cal.2d 818, 837 (Watson); see People v. Duarte (2000) 24 

Cal.4th 603, 618–619.) Given the significance of the hearsay 

evidence to the fetal murder charge, and the dearth of other 

evidence on the issue, we cannot conclude the error was 

harmless. Defendant’s conviction for the fetal murder count 

must be reversed.

The prosecution had to prove the fetus was viable at the 

time of death. Dr. Scheinin testified that viability is largely a 

function of weight and gestational age. At both the time of trial 

and in 1989 when Regina Washington was murdered, scientists 

generally considered a fetus viable after it had reached a 

gestational age of 22 weeks or a weight of 500 grams. To 
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51

illustrate her testimony, Dr. Scheinin displayed a chart showing 

the week-by-week development of an embryo into a fetus. She 

drew the jury’s attention to a dividing line on this chart labeled 

“stage of viability.” She explained, “Anything to the left of this 

line is considered a pre-viable fetus and anything to the right of 

it is considered viable,” noting the dividing line of weight and 

age. Having previously quoted from the autopsy report that the 

Washington fetus weighed 825 grams and had reached a 

gestational age of 27 to 28 weeks, Dr. Scheinin then pointed to 

the place on the chart indicated by these statistics. She 

observed that, “according to the medical examiner who did the 

autopsy, . . . the baby is in this ballpark here, and about in this 

ballpark here by weight, so it’s clearly well into the range that’s 

defined as viable.” (Italics added.) Finally, she quoted the 

report’s statement that the fetus had “no congenital 

abnormalities” and concluded “nothing in the report” suggested 

the fetus was anything other than healthy. All of Dr. Scheinin’s 

statements about the fetus’s ability to survive outside the womb 

were expressly tied to the autopsy report, the contents of which 

she presented to the jury. This case-specific information was 

neither stipulated nor independently proven. 

Dr. Scheinin’s testimony was essential in proving 

viability. The only other evidence bearing on the subject was 

testimony from Washington’s daughter, 11 years old at the time 

of the crime, who recalled that her mother was visibly pregnant 

and the family believed the gender was female. This evidence 

was insufficient to prove viability beyond a reasonable doubt. 

Although the Attorney General is correct that no contrary 

evidence was presented, it was the prosecution’s burden to prove 

every element of the charge. (See Estelle v. McGuire (1991) 502 

U.S. 62, 69; see also Melendez-Diaz v. Massachusetts (2009) 557 
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52

U.S. 305, 324 [“the Confrontation Clause imposes a burden on 

the prosecution to present its witnesses, not on the defendant to 

bring those adverse witnesses into court”].)

The Attorney General argues the error was harmless 

because, apart from the hearsay, Dr. Scheinin gave her own 

opinion about fetal viability. He reasons that even if she had 

been precluded from reciting the report’s facts about fetal 

weight and gestational age, she still would have been able to 

testify to her opinion on the ultimate question. It is true that an 

“expert may still rely on hearsay in forming an opinion, and may 

tell the jury in general terms that he did so.” (Sanchez, supra, 

63 Cal.4th at p. 685.) Dr. Scheinin thus could have told the jury 

that she read the autopsy report and relied on it in forming her 

opinion. But that is not what happened here. Instead, she 

repeatedly recounted case-specific facts from the report and 

invited the jury to compare that hearsay to the medically 

accepted guidelines for determining viability. 

Once the improperly admitted hearsay testimony is 

excluded (see People v. Doolin (2009) 45 Cal.4th 390, 448), all 

that remains of Dr. Scheinin’s viability testimony is a bare 

conclusion that “just looking at the numbers, the age of the baby 

would indicate that it was a viable fetus, meaning it has a 

chance for life by itself.” The persuasive force of this conclusion 

would have been considerably diminished without testimony 

about the case-specific facts on which it was based. An expert’s 

opinion is only as strong as its factual basis. “The jury is not 

required to accept an expert’s opinion. The final resolution of 

the facts at issue resides with the jury alone. The jury may 

conclude a fact necessary to support the opinion has not been 

adequately proven, even though there may be some evidence in 

the record tending to establish it. If an essential fact is not 
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Opinion of the Court by Corrigan, J.

53

found proven, the jury may reject the opinion as lacking 

foundation.” (Sanchez, supra, 63 Cal.4th at p. 675.) A 

conclusory opinion, with no articulated factual foundation, 

would have been substantially less compelling than the 

testimony Dr. Scheinin actually gave. She repeatedly stated the 

fetus’s specific weight and gestational age and showed on a 

demonstrative exhibit how these attributes placed it “well into” 

the medically established viability range.

The case-specific hearsay erroneously admitted here 

served two interrelated purposes. First, it provided nearly all 

the direct evidence pointing to fetal viability. Second, it 

provided the entire factual basis for the expert’s opinion on that 

question. The hearsay evidence was relevant to an especially 

important issue. On this record, it is reasonably probable the 

jury would have reached a different verdict on the fetal murder 

count absent the admission of hearsay evidence. (See Watson, 

supra, 46 Cal.2d at p. 837.)

We do not agree with defendant, however, that this error 

undermines the penalty judgment. Defendant was a convicted 

serial killer who preyed on vulnerable women for over a decade. 

A jury convicted him of strangling his victims and abandoning 

their corpses in degrading conditions. Apart from the fetal 

death, the jury found that defendant murdered 10 women. The 

jury heard evidence about these murders and defendant’s sexual 

assault of Maria M. In the penalty phase, it heard aggravating 

evidence about yet another murder and sexual assault. 

Although defendant suggests the jury may have considered the 

fetus’s murder especially aggravating, that argument is 

speculative at best. Moreover, despite the error, the jury was 

still entitled to give aggravating weight to the fact that 

defendant murdered a visibly pregnant woman. (See Brown v. 
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Sanders (2006) 546 U.S. 212, 220.) The prosecutor’s closing 

argument only mentioned this death in a single sentence. Nor 

was there any victim impact evidence concerning the fetus. In 

view of the substantial aggravating facts of both the charged and 

uncharged crimes, it is not reasonably possible the jury would 

have reached a different penalty verdict absent the error. (See 

People v. Johnson (2019) 8 Cal.5th 475, 518.) Likewise, any 

federal constitutional error in admitting the evidence was 

harmless beyond a reasonable doubt as to penalty. (Chapman, 

supra, 386 U.S. at p. 24; see Gonzalez, supra, 38 Cal.4th at 

pp. 960-961.)

C. Penalty Phase Issues

1. Criminal Threat Evidence 

Defendant contends insufficient evidence was admitted to 

establish that he made a criminal threat against Deputy 

Uyetatsu. Assuming this claim was not forfeited, any error was 

harmless.

To establish a criminal threat, the prosecution must prove: 

(1) the defendant willfully threatened death or great bodily 

injury to another person; (2) the threat was made with the 

specific intent that it be taken as a threat, regardless of the 

defendant’s intent to carry it out; (3) the threat was “on its face 

and under the circumstances in which it [was] made, . . . so 

unequivocal, unconditional, immediate, and specific as to convey 

to the person threatened, a gravity of purpose and an immediate 

prospect of execution”; (4) the threat caused the person 

threatened “to be in sustained fear for his or her own safety or 

for his or her immediate family’s safety”; and (5) this fear was 

reasonable under the circumstances. (§ 422, subd. (a); see 

People v. Toledo (2001) 26 Cal.4th 221, 227–228.) Defendant 
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Opinion of the Court by Corrigan, J.

55

challenges the evidentiary support for three elements. First, 

defendant argues the evidence does not show he specifically 

intended to threaten Deputy Uyetatsu. Although he told 

another inmate he planned to kill the deputy if he was convicted 

of the pending charges, he did not instruct the inmate to report 

the threat to her, nor was there evidence to suggest he thought 

such a report was likely. Second, defendant asserts the threat 

was not sufficiently unconditional and immediate because he 

made it while in a locked cell, and he would have even less 

ability to carry it out if he were convicted of the capital charges. 

Finally, he argues there was no evidence the threat caused 

Deputy Uyetatsu to be in a state of sustained fear. When asked 

how she felt upon learning of the threat, Uyetatsu said only that 

she thought defendant had the ability to carry it out and would 

do so if given the opportunity. She did not say she was afraid, 

nor did she testify that she wanted to be moved to a different 

unit.

First, the claim is not cognizable on appeal because 

defendant did not object or move to strike the evidence he now 

challenges. (See People v. Livingston (2012) 53 Cal.4th 1145, 

1175; People v. Hamilton (2009) 45 Cal.4th 863, 934.) Defendant 

couches his argument as a challenge to the sufficiency of 

evidence, noting such claims are generally permitted on appeal 

without the need for an objection. (See People v. McCullough

(2013) 56 Cal.4th 589, 596.) However, it is significant that “here 

the evidence was admitted at the penalty phase of a capital trial 

as aggravating evidence, not to support a conviction for that 

crime.” (Livingston, at p. 1175.) “Even if defendant need do 

nothing at trial to preserve an appellate claim that evidence 

supporting his conviction is legally insufficient, a different rule 

is appropriate for evidence presented at the penalty phase of a 
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Opinion of the Court by Corrigan, J.

56

capital trial. There the ultimate issue is the appropriate 

punishment for the capital crime, and evidence on that issue 

may include one or more other discrete criminal incidents. 

(§ 190.3, factors (b), (c).) If the accused thinks evidence on any 

such discrete crime is too insubstantial for jury consideration, 

he should be obliged in general terms to object, or to move to 

exclude or strike the evidence, on that ground.” (Montiel, supra, 

5 Cal.4th at p. 928, fn. 23.)

Even assuming admission of the threat evidence was 

error, there is no reasonable possibility it affected the penalty 

verdict. (See People v. Collins (2010) 49 Cal.4th 175, 220.) The 

threat was only one of five violent crimes admitted under section 

190.3, factor (b) and had arguably less impact. The jury heard 

evidence in the penalty phase that defendant had murdered 

Elandra Bunn, sexually assaulted Carla W., and forcibly 

resisted arrest. It was also directed to consider guilt phase 

evidence about his attack on Maria M. The threat was certainly 

less impactful than defendant’s capital crimes. Defendant was 

a proven serial killer who brutally raped and murdered nearly 

a dozen known victims, preying on vulnerable women from his 

own neighborhood. As the court stated in denying defendant’s 

automatic motion for modification of the verdict, “defendant 

methodically located unescorted and vulnerable women, 

overwhelmed each of them in isolation, and strangled each to 

death for his own sexual pleasure.” The aggravating facts here 

were overwhelming, and any error relating to the threat 

evidence was clearly harmless.

2. Constitutionality of Death Penalty Law 

Defendant raises a number of challenges to the 

constitutionality of California’s death penalty statute and 
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Opinion of the Court by Corrigan, J.

57

instructions. He acknowledges that we have previously rejected 

all of these arguments. We decline to reconsider our precedents 

as follows:

Section 190.2 adequately narrows the class of offenders 

eligible for the death penalty. (People v. Reed (2018) 4 Cal.5th 

989, 1018; Winbush, supra, 2 Cal.5th at p. 488.) Section 190.3, 

factor (a), allowing aggravation based on the circumstances of 

the crime, does not permit arbitrary and capricious sentencing. 

(People v. Capers (2019) 7 Cal.5th 989, 1013 (Capers); 

Thompson, supra, 1 Cal.5th at p. 1129.) “Choice of penalty is a 

normative decision,” not a factual one. (Beck and Cruz, supra, 8 

Cal.5th at p. 670.) Accordingly, the death penalty scheme does 

not violate the federal Constitution for failing to require:

• written findings (People v. Rhoades (2019) 8 Cal.5th 393, 455 

(Rhoades); Winbush, at p. 490);

• unanimous findings as to proof of each aggravating factor or 

unadjudicated crime (Capers, at p. 1013);

• findings that aggravating factors (other than section 190.3, 

factors (b) and (c)) were proven beyond a reasonable doubt;

• or specific, articulated findings that aggravating factors 

outweigh those in mitigation, or that death is the appropriate 

penalty (People v. Krebs (2019) 8 Cal.5th 265, 350 (Krebs); 

People v. Rangel (2016) 62 Cal.4th 1192, 1235).

These conclusions are not altered by Apprendi v. New Jersey

(2000) 530 U.S. 466, Ring v. Arizona (2002) 536 U.S. 584, or 

Hurst v. Florida (2016) 577 U.S. 92. (Capers, at pp. 1013–1014; 

People v. Henriquez (2017) 4 Cal.5th 1, 45.) Because sentencing 

is “an inherently moral and normative function, and not a 

factual one amenable to burden of proof calculations” (Winbush, 

at p. 489), the prosecution has no obligation to bear a burden of 
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Opinion of the Court by Corrigan, J.

58

proof or persuasion (Capers, at pp. 1014–1015). Nor does the 

federal Constitution require an instruction that life is the 

presumptive penalty. (Capers, at p. 1016; Beck and Cruz, at 

p. 670.)

CALJIC No. 8.88 is not impermissibly vague or otherwise 

defective for failing to require a finding that death is the 

“appropriate” penalty (People v. Leon (2020) 8 Cal.5th 831, 853; 

see Beck and Cruz, supra, 8 Cal.5th at p. 671) or failing to 

require a life sentence if the jury finds that mitigating factors 

outweigh aggravating ones (Capers, supra, 7 Cal.5th at p. 1016; 

People v. Johnson (2018) 6 Cal.5th 541, 594 (Johnson)). The 

phrase “so substantial” in this instruction is not overbroad or 

unconstitutionally vague. (Beck and Cruz, at p. 671; People v. 

Ghobrial (2018) 5 Cal.5th 250, 292.) Nor is the jury’s 

consideration of mitigating factors impermissibly constrained 

by CALJIC No. 8.85’s use of the words “extreme” and 

“substantial” to describe mitigating circumstances. (Beck and 

Cruz, at p. 671; People v. Rices (2017) 4 Cal.5th 49, 94.) The 

court is not constitutionally obligated to delete inapplicable 

sentencing factors, identify which factors are aggravating or 

mitigating, or instruct that certain factors are relevant only for 

mitigation purposes. (Krebs, supra, 8 Cal.5th at p. 351; 

Rhoades, supra, 8 Cal.5th at p. 455; Winbush, supra, 2 Cal.5th 

at p. 490.)

Intercase proportionality review is not constitutionally 

required. (Rhoades, supra, 8 Cal.5th at pp. 455–456; Johnson, 

supra, 6 Cal.5th at p. 594.) Nor does the death penalty law 

violate equal protection by providing different procedures to 

capital and noncapital defendants. (Rhoades, at p. 456; Capers, 

supra, 7 Cal.5th at p. 1017.) We continue to hold that 

California’s capital sentencing scheme does not violate 
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Opinion of the Court by Corrigan, J.

59

international norms or evolving standards of decency in 

violation of the Eighth and Fourteenth Amendments. (Beck and 

Cruz, supra, 8 Cal.5th at p. 671; Krebs, supra, 8 Cal.5th at 

p. 351; Capers, at p. 1017.)

D. Cumulative Error

Finally, defendant argues errors in his trial were 

cumulatively prejudicial. We conclude to the contrary. (See 

People v. Penunuri (2018) 5 Cal.5th 126, 172.) Hearsay was 

improperly admitted on the question of fetal viability. That 

murder conviction is reversed. We also assumed a penalty

phase error involving evidence that defendant threatened 

Deputy Uyetatsu. In light of the totality of evidence at both 

phases of trial, reversal of neither the guilt nor penalty 

judgments is required for the reasons discussed above.
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Opinion of the Court by Corrigan, J.

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III. DISPOSITION

The second degree fetal murder conviction is reversed. In 

all other respects, the judgment is affirmed.

CORRIGAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

GILBERT, J.*

_______________________

*

 Presiding Justice of the Court of Appeal, Second Appellate 

District, Division Six, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Turner

__________________________________________________________________________________

Unpublished Opinion 

Original Appeal XXX

Original Proceeding 

Review Granted 

Rehearing Granted

__________________________________________________________________________________

Opinion No. S154459

Date Filed: November 30, 2020

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: William R. Pounders

__________________________________________________________________________________

Counsel:

Michael J. Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme Court, and 

William C. Whaley, Deputy State Public Defender, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant 

Attorneys General, Susan Sullivan Pithey, Assistant Attorney General, Joseph P. Lee and Blythe J. Leszkay, 

Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

William C. Whaley

Deputy State Public Defender

770 L. St., Suite 1000

Sacramento, CA 95814

(916) 322-2676

Blythe J. Leszkay 

Deputy Attorney General

300 South Spring St., Suite 1702

Los Angeles, CA 90013 

(213) 269-6191