People v. Merriman (2014) · DecisionDepot

People v. Merriman

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Aug 18, 2014 No. S097363Published

Before: Cantil-Sakauye

Filed 8/18/14

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S097363 v. ) ) JUSTIN JAMES MERRIMAN, ) ) Ventura County Defendant and Appellant. ) Super. Ct. No. CR45651 ____________________________________)

In 2001, a jury convicted defendant Justin James Merriman of the 1992 first degree murder of Katrina Montgomery (Pen. Code, § 187, subd. (a)),1 and found true the special circumstance allegations that the murder was committed while defendant was engaged in the commission of rape and oral copulation (§ 190.2, subd. (a)(17)(C), (F)), and the allegation that defendant personally used a deadly weapon (former § 12022, subd. (b)). The jury also convicted defendant of numerous noncapital crimes that occurred subsequent to the murder, including multiple counts of sexual assault and witness dissuasion. After a penalty phase trial, the jury returned a verdict of death. Defendant moved for new trial (§ 1181), and for modification of his sentence to life without the possibility of parole (§ 190.4, subd. (e)). The trial court denied the motions and sentenced him to

1 All further undesignated statutory references are to the Penal Code unless otherwise indicated.

death.2 Defendant‟s appeal is automatic. (§ 1239, subd. (b).) For the reasons that follow, we affirm the judgment. I. FACTS

A. Guilt Phase Evidence

1. Prosecution evidence

a. The murder of Katrina Montgomery

i. Katrina’s prior interactions with defendant Katrina Montgomery was 16 years old in 1989 when she started dating Mitch Sutton, one of the founding members of a Ventura County White supremacist gang called the Skin Head Dogs (SHD). Defendant, who also was 16 years of age at that time, belonged to the same gang. Sutton brought Katrina

2 The court also imposed an aggregate determinate sentence of 63 years, which was comprised of the following consecutive sentences: The upper term of eight years for the forcible rape of Robyn G. (§ 261, subd. (a)(2)), six years for the forcible oral copulation of Robyn G. (§ 288, subd. (c)), six years for the penetration of Robyn G. with a foreign object (§ 289, subd. (a)), two upper terms of eight years each for the forcible rape of Billie B. on two separate occasions (§ 261, subd. (c)(2)), one year for the attempted forcible oral copulation of Billie B. (§§ 664/288, subd. (c)), an upper term totaling 13 years for personal use of a firearm while resisting an executive officer (§ 69, former § 12022.5, subd. (a)(1)), the mid-term of 16 months for assault on a police officer (§ 245, subd. (c)), eight months for vandalism (former § 594, subd. (b)(2)), three years for each of three counts of dissuading a witness by force or threat (§ 136.1, subd. (c)), and two years for solicitation to dissuade a witness (§ 653f, subd. (a)). Pursuant to section 654, the court stayed sentence for two counts of brandishing a deadly weapon to avoid arrest (§ 417.8), a second count of resisting an executive officer (§ 69), and conspiracy to dissuade a witness by force or threat, including the gang enhancement associated with that count (§§ 182, subd. (a)(1), 186.22, subd. (b)(1)). The court also imposed a sentence of 365 days in county jail, with credit for actual time served, for a single count of being under the influence of a controlled substance in violation of Health and Safety Code section 11550.

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along to SHD parties where she socialized with his fellow gang members and their wives and girlfriends, some of whom became close friends of hers. Early in Sutton and Katrina‟s relationship, Sutton enlisted in the Army and was sent to Germany. Katrina moved to Germany for eight months to be with him. By the time Sutton returned from his three years of military service in 1992, he and Katrina had broken up. On his return, Sutton officially left the SHD gang, although he continued his friendship with defendant. Meanwhile, between January 1990 and March 1992, Katrina was corresponding and conversing with defendant on a regular basis while he was in custody in various juvenile detention facilities and in state prison. In the beginning, defendant‟s letters encouraged Katrina to “stick with Mitch Sutton” and he asked her to send him “neat pictures” of herself. Defendant‟s subsequent letters, which sometimes referenced Katrina‟s breakup with Sutton, became more sexually explicit and suggested that he believed Katrina was interested in him. In August 1990, for example, defendant mentioned a photograph Katrina had sent him, indicating that he wanted to “play with the toys you must have under that buttercup suit.” In February 1991, defendant asked Katrina for more photographs “of . . . your fine self so I have something to drool over and think about touching up one great day.” In March 1992, defendant wrote to Katrina after she had visited him in prison, saying, “You know deep down inside you enjoy[ed] saying I was „your‟ long lost locked-up hubby . . . , secret lover but a real faithful „boyfriend.‟ ” In the same letter, defendant apologized for his “crude and rude but lewd sexual gestures” during the visit and promised next time “not to toss you around like one of them blowup sex dolls.” From these and defendant‟s other letters it can be inferred that Katrina had sent defendant revealing photographs of herself, and that she had had physical contact with him during a prison visit. But the correspondence also suggested that

Katrina had told defendant she wanted to resume her relationship with Mitch Sutton and that she considered defendant only a friend, which were sentiments that appeared to both confuse and anger defendant. For example, in March 1992, shortly before defendant‟s release, he wrote “That shit about you need me for a friend just doesn‟t cut the mustard anymore,” and he confronted Katrina with his suspicion that she was using him as a means of reigniting her relationship with Sutton. Defendant also wrote, “I‟m burned on the third-grade game and the thought of you trying some kind of snake move like there‟s something you have to gain but you‟re stringing me along until the time‟s right . . . .” Later in the same letter, defendant stated, “I feel you‟re up to something and it sure isn‟t me . . . .” Notwithstanding Katrina‟s apparent indications to defendant that she wanted to be his friend but not his girlfriend, defendant had communicated to others that he was interested in her. According to Scott Porcho, one of SHD‟s founding members and a friend of both defendant and Katrina, it was common knowledge that defendant expected Katrina would be his girlfriend after he was released from prison. Porcho‟s wife at that time, Apryl, also was close to Katrina. She knew that Katrina did not want to become involved with defendant. Shortly after defendant‟s release from prison in the spring of 1992, Katrina and a high school girlfriend drove in Katrina‟s truck to defendant‟s home in Ventura where he lived with his mother and sister. Katrina went inside to “straighten out a couple of things” while her friend waited in the truck. When Katrina returned, there were red marks around her neck and she said defendant had attacked her. Katrina told her friend she was angry not only with defendant but also with defendant‟s mother, who had witnessed the attack and done nothing to help her. The prosecutor presented evidence at trial that Katrina disclosed to her mother another incident at defendant‟s house after his release from prison, during

down, defendant asked them, “Hey, do you guys want some of this?” Nicassio just looked away, and Bush responded, “No.” A short time later, Katrina asked to use the bathroom. Defendant refused, telling her to use a trash can that he put down on the ground next to her. Nicassio finally spoke up to defendant, saying, “Why don‟t you just let her use the restroom?” When defendant said, “All right,” Katrina retrieved her overnight bag and put her clothes back on. As she was kneeling down to tie her shoes, defendant came up alongside her with a knife and stabbed her in the throat. Katrina was crying and holding her throat, begging defendant not to hurt her, but the attack continued. Defendant covered Katrina with a blanket. He then retrieved a crescent wrench from his top drawer, kneeled down next to her, and struck a blow to her head. Katrina was still alive but her breathing became loud and labored. Defendant then grabbed her by the hair, asking, “Where is her jugular?” He then slit her throat with a knife, and rolled up the body in blankets and sleeping bags. At one point during the assault, while Katrina was still alive, Nicassio suggested they call an ambulance and assured defendant that Katrina would not say anything because “she‟s afraid of you.” Defendant disagreed, saying, “She‟ll rat on me.” Instead, he called the Porcho house, asking if Katrina was there and telling them that she had never showed up at his place. After the killing, when Nicassio and Bush started pacing around the room in a panic, defendant angrily warned them, “You better not fuckin‟ say nothing” and “You‟re part of this, too.” Nicassio tried to leave, promising not to say anything. But defendant stood between him and the bedroom door holding the knife and told him, “No, you‟re not fuckin‟ going anywhere.” He then ordered Nicassio and Bush to help him cover up the crimes, telling them that “[i]f we got caught . . . we would all go down.” Fearing retaliation from defendant and other

gang members if they refused, Nicassio and Bush complied with defendant‟s command. At defendant‟s direction, Nicassio drove Katrina‟s truck to the front of the house. Meanwhile, Bush helped defendant carry the body downstairs and loaded it into the back of the truck, along with a plastic sack in which defendant had placed the knife and wrench and some of Katrina‟s belongings. According to Bush, blood was soaking through the blankets and he was concerned that defendant‟s mother had seen them as they passed by her bedroom door on their way downstairs. Defendant assured Bush she would not say anything. Indeed, defendant‟s mother did more than simply remain silent. When defendant‟s sister awoke that morning, she saw their mother on her hands and knees using rags and a pot of water to clean up blood that had stained the carpeting at the top of the stairs. Defendant‟s sister helped with the cleanup until the stain was no longer noticeable. Defendant, Bush, and Nicassio then set about to further cover up the crimes. Nicassio drove the group in Katrina‟s truck to Sylmar where he and Bush lived. Bush collected rags and paint thinner and borrowed a housemate‟s truck, signaling Nicassio and defendant to follow him. The two trucks ultimately stopped near a ravine in a rural area called Sunset Farms, where defendant and Bush unloaded the body, dragged it into a drainage pipe, and covered it with tumbleweeds and garbage. A short time later, they drove to Angeles Crest National Forest and stopped at a turnout. Bush, Nicassio, and possibly defendant wiped down the inside of Katrina‟s truck with the paint thinner to destroy fingerprints. Bush then tried to roll the truck off the side of a hill, but he was unsuccessful and they simply abandoned it there, close to the turnout. The group left the scene in the truck that Bush had borrowed from his housemate and went to a restaurant to discuss the situation. Pursuant to their plan, Nicassio and Bush drove defendant back to his house. While en route, defendant

Katrina. A short time later, Nicassio gave his girlfriend at the time a detailed account of the incident. Defendant also spoke about the crimes. Days after the killing, when defendant‟s sister became aware of Katrina‟s disappearance and confronted defendant about the blood on the stairs, defendant told her that she did not want to know and said he was “going to hell for sure for the things he had done.” About one month later, defendant mentioned to Nicassio that his mother had cleaned up the blood in his bedroom, and he sought confirmation from Nicassio that the body had been disposed of. As the investigation continued, some witnesses started coming forward. For example, in July 1997, almost five years after Katrina‟s disappearance, Apryl (now divorced and remarried) met with the prosecutor, telling him that defendant had called Katrina at the Porcho home and asked her to come to his house after the party. However, most of the individuals with knowledge of the case, including Nicassio and Bush, were not forthright with investigators, and many witnesses brought before a grand jury in November 1997 either failed to disclose what they knew or lied outright. No indictment was handed down. The prosecution‟s case quickly revived, however, when Bush, Nicassio, and Nicassio‟s girlfriend were arrested in November 1997, one or two days after the first grand jury had failed to hand down an indictment. Nicassio‟s girlfriend disclosed what Nicassio had told her about the crimes, and she urged Nicassio to likewise cooperate with the prosecution, which he eventually agreed to do in exchange for being permitted to plead guilty to voluntary manslaughter. The prosecutor later received a letter from an incarcerated SHD gang member, John Crecelius, revealing a statement defendant had made while they were both out of custody. According to Crecelius, defendant expressed concern on learning that his “crime partner” or “buddy” had been arrested for raping and murdering “a girl that

he had cut five years ago.” Defendant also had told Crecelius that he expected the police would be coming for him soon because he had a strong feeling that Nicassio “was gonna tell on him.” The wall of silence that had protected defendant for many years finally started to give way. In exchange for an early release from prison, SHD gang member Wozny, who had called in the anonymous tip, agreed to drive defendant around in a “bait car” equipped with recording devices that would be monitored by police. While in the bait car in December 1997, defendant solicited Wozny‟s help in “getting” the Porchos‟ housemate, John Cundiff, who defendant believed had “ratted on him.” When Wozny and defendant discussed the investigation into Katrina‟s disappearance, defendant said he “wasn‟t going to do any more time behind this.” Wozny attempted a second encounter with defendant in the bait car that same night, but decided to abandon the operation after defendant, with a box cutter in hand, patted Wozny down to see if he was wearing a wire. Also in December 1997, a prison inmate named Christopher Bowen disclosed to investigators that defendant had asked him during casual conversation four years earlier whether he had ever killed anyone. When Bowen said no and asked defendant the same question, defendant told him that he had killed “Trina.” Defendant made other admissions after being taken into custody in January 1998 following an hours-long standoff with law enforcement that led to a number of separate criminal charges. (See post, pt. I.A.1.c.) All of the incriminating statements were elicited surreptitiously and many, but not all, of them were the result of agreements between the prosecution and inmates who agreed to cooperate in exchange for leniency in their cases. For example, in April 1998, SHD gang member John Crecelius wore a wire while in a courthouse holding cell with defendant. Crecelius told defendant that Nicassio, who was his county jail cellmate, was going to reveal defendant‟s

Nicassio also wore a wire while interacting with defendant on a number of occasions. During the first operation, Nicassio showed defendant an altered version of a probation report that falsely stated Nicassio had refused to cooperate with the prosecution. Defendant told Nicassio to continue refusing to cooperate and he wondered aloud who was talking to the prosecution. Many of the recorded conversations between Nicassio and defendant occurred in the jail visiting area, interactions that were made possible by Kristin‟s participation in defendant‟s mother‟s plan to have Nicassio and defendant brought to the same visiting area at the same time. During the first such visit, Nicassio asked defendant what would happen if Katrina‟s body was found. Defendant replied, “If that shit comes out of the ground, we‟ll both be going to L.A. County.” On another occasion, defendant suggested how they could explain away the presence of blood on the stairs in his house and in the bed of Katrina‟s truck. The prosecution stepped up its efforts at obtaining an express admission from defendant by instructing Nicassio to inform defendant that Katrina‟s body had been discovered. During the visiting room conversation in which Nicassio gave defendant the “bad news,” defendant reacted by saying, “Oh, God,” but then told Nicassio not to believe the “trick.” If the body had been found, defendant said, “they would already have charged me.” Defendant repeatedly told Nicassio that he had to keep his mouth shut about Katrina being at defendant‟s house, even when talking to his lawyer or at trial if he was charged, because it would drag defendant and Bush into it. As defendant walked away upset and agitated, he turned back and approached Nicassio with his fists clenched as if to hit him, then turned again and left the visiting area. Defendant changed his approach with Nicassio several months later, after learning that his sister told investigators that she helped clean up blood on the stairs of their home and that she had been subpoenaed to testify at another grand

c. Standoff with police prior to arrest As previously mentioned, defendant was taken into custody in January 1998 after an hours-long standoff with police officers. The prosecution charged defendant with a number of crimes in connection with the incident and also argued at trial that defendant‟s conduct evidenced his consciousness of guilt concerning the murder count. The evidence showed the following events. Ventura County Sheriff‟s Deputies Howe and Miller were patrolling a high- crime area in Ventura on a Friday night in late January 1998 when they saw two bicyclists, defendant and a woman, riding without headlights. The officers pulled alongside them, but defendant ignored Officer Howe‟s repeated orders to stop and continued riding. Officer Howe gave chase on foot, joined by other officers who were nearby at the time. Meanwhile Officer Miller pursued defendant in the patrol car, cornering him several blocks away. He grabbed defendant by the shirt, but defendant managed to break free. Other officers joined the chase on foot through a vacant lot, shouting for defendant to stop. They stopped abruptly after one officer yelled, “Gun!” Defendant had pulled out a revolver and was holding it to his own head, warning the officers not to approach or he would shoot himself. Defendant then walked to a chain link fence in a dark area of the lot, climbed over it, and ran to the house where his girlfriend at the time, Annette Berryhill, was visiting Janette Trembley-Rail. When defendant arrived, he banged on the door, yelling, “Let me in, you gotta let me in, there‟s cops all over the place.” Berryhill opened the door but did not remove the chain lock. Defendant pushed his way inside and ran into Trembley-Rail‟s bedroom. When Trembley-Rail told defendant to leave, he refused and ordered her to do as he said. According to Trembley-Rail, defendant was agitated, hostile, and out of breath, and he was holding a triangular object under a dish towel. Meanwhile, police had surrounded

enforcement, explaining to the jury how the gang had been heavily influenced by prison culture in this regard. According to the expert, it was incumbent upon all members of the SHD gang to take appropriate action against any person who had been identified as a “rat,” so long as there was “paperwork,” that is, written proof of cooperation with the police. As one SHD gang member later explained to the jury, gang members were obligated to do “anything necessary” to silence a member of their own gang who had been labeled a rat. The prosecution also presented extensive evidence regarding defendant‟s postindictment activities in jail, where, by using his mother and others as go- betweens, he managed to collect information regarding the individuals he believed were “ratting” on him and disseminate that information to fellow gang members. Some of this evidence consisted of letters written by defendant that were seized by jail and prison authorities. In one letter to an SHD gang member incarcerated at Wasco State Prison, defendant told the recipient that Bowen and Nicassio had worn a wire on him. Another letter from defendant that was found during a search of an SHD member‟s cell in the same prison stated that fellow SHD member Mike Wozny had taken him for a drive in a “wired cop car” prior to his arrest. In a letter to an SHD gang member being housed at Tehachapi State Prison defendant gave a “rundown on all these wire-wearing pieces of poop,” naming Wozny, Bowen, Crecelius, and Kristin S. The paperwork on the individuals who were cooperating with the prosecution came from the transcripts of the grand jury proceeding at which the informants had testified. A search of defendant‟s mother‟s home disclosed nine volumes of the grand jury transcripts, one of which had been unbound. Several pages of that volume were found during a search of defendant‟s cell conducted on the same day. Also recovered from defendant‟s cell, hidden inside the mattress, were two pieces of paper listing the names, telephone numbers, and addresses of victims and

officers were injured in the incident. Defendant said he attacked the officer because he believed he had been talking about his sister and mother, but the officer denied having done so. In connection with the attack, defendant pleaded guilty to forcibly resisting or deterring an officer in the performance of his duties and was sentenced to a two-year prison term. (§ 69.) The parties further stipulated that on Halloween night in 1992, Deputy Van Davis responded to a party noise complaint and observed defendant and a companion getting up off an individual who was lying on the ground motionless and bleeding heavily from his lip. For that attack, defendant was convicted of misdemeanor battery. (§ 242.) The prosecutor presented the testimony of two witnesses who described a June 1994 attack on an inmate in the Ventura County jail. June Marsh, a service technician at the jail, testified that while monitoring the inmates‟ movements within the jail, she observed defendant and two other inmates who were ready to return from the visiting area to their cells. Pursuant to jail procedure, the inmates were instructed to line up in single file with their hands behind their backs. Marsh testified that as she activated the door for them to reenter the cell area, defendant turned around with a raised fist and punched the inmate behind him in the face, knocking him to the ground. According to Marsh, defendant kneeled down and continued striking the inmate in the face for several seconds, then walked away as officers began responding to the scene. Marsh heard someone ask defendant, “What did you do that for?” She recalled that defendant replied, “Because I felt like it.” The prosecution also presented testimony by Sergeant Steven Cargile, the first officer to arrive on the scene of the June 1994 incident in the Ventura County jail. Cargile testified that when he reached the inmate who had been attacked, he overheard the inmate say to defendant, “ „That was a sucker punch, a real P.C.

alcohol use, and that these serious mental deficits were the source of a long history of unplanned, impulsive behavior, including Katrina‟s murder. Dr. Barker, a forensic and clinical psychologist, testified regarding the results of various tests he administered to defendant to assess his intelligence and pinpoint dysfunctional personality traits. The Wechsler Adult Intelligence Scale, a test of intellectual functioning, showed defendant in the low-average range with a full- scale I.Q. of 88. The results of two tests for traits associated with personality disorders, the Minnesota Multiphasic Personality Inventory (MMPI) and the Millon Clinical Multiaxial Inventory, showed defendant matched a profile type that is thought to be among “the most difficult of the criminal offenders.” Such individuals are distrustful, anti-social, cold, unstable, impressionable, hostile, and violent. His answers on the tests further reflected alcoholic and addictive tendencies. Dr. Barker emphasized that individuals with defendant‟s personality profile have poor impulse control, that they act without thinking about the consequences, and blame others when they do get in trouble rather than learn the consequences of their actions. He further believed that, in defendant‟s case, his heavy drug and alcohol use would make him even more impulsive and unpredictable. But even were defendant not under the influence, Dr. Barker observed, he likely would exhibit a lack of respect for others and fail to take into account the consequences of his behavior. On cross-examination, Dr. Barker indicated that he had diagnosed defendant as suffering from antisocial personality disorder. Jordan Witt, Ph.D., a clinical psychologist with special training in clinical neuropsychology, conducted a neuropsychological examination of defendant in order to assess brain function. His conclusion was that defendant suffered from brain damage, which manifested itself in his very limited concentration span, his extreme hyperactivity, his inability to properly manage, process, and react to

information, and his memory difficulties. According to Dr. Witt, defendant‟s brain dysfunction leads him to operate in “kind of a living present,” in which he acts at the whim of his impulses and emotions and cannot rely upon his memories, reasoning, and information from his environment. Based on defendant‟s background and the results of the battery of neurological tests, Dr. Witt believed that defendant‟s brain was defective at birth and that his dysfunction worsened over time due to both his substance abuse and multiple head injuries with loss of consciousness from fights and an automobile accident. Like Dr. Barker, Dr. Witt diagnosed defendant as suffering from antisocial personality disorder, as well as other cognitive and learning disorders and polysubstance dependence. The defense bolstered its argument that defendant suffered from brain damage by calling Psychiatrist Joseph Wu, M.D., who testified in relevant part regarding the results of a positron emission tomography (PET) brain imaging scan that was performed on defendant in August 2000, prior to the start of the guilt phase of trial. Dr. Wu found brain activity abnormalities in defendant‟s scan that showed “more likely than not” that defendant had brain damage or disease in the frontal lobe of the brain, the area involved with functions such as the regulation of aggression, long-term planning, and judgment. His findings from the PET scan were corroborated by the results of an earlier electroencephalogram, which showed abnormal electrical activity in the brain‟s frontal and temporal lobes, and which was consistent with possibility of complex partial seizures, a type of epilepsy that can affect certain emotions and movements. The defense called its fourth expert, Forensic Psychologist Leonard Diamond, Ph.D., to show that the adverse effects of defendant‟s serious brain deficits had begun to manifest themselves many years before the capital crime. Dr. Diamond first evaluated defendant in 1989 while he was in a juvenile detention facility. According to Dr. Diamond‟s report, defendant operated on pure

3. A court has discretion to order separate trials The law favors the joinder of counts because such a course of action promotes efficiency. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220.) Nonetheless, as defendant correctly observes, a trial court has discretion to order that properly joined charges be tried separately. (§ 954; People v. Sapp (2004) 31 Cal.4th 240, 257-258.) Likewise, although a trial court is authorized to consolidate two or more accusatory pleadings for trial in an appropriate case, it is not required to do so. (§ 954; People v. Marlow (2004) 34 Cal.4th 131, 143.) In exercising its discretion in this regard, the court weighs “the potential prejudice of joinder against the state‟s strong interest in the efficiency of a joint trial. [Citation.]” (People v. Arias (1996) 13 Cal.4th 92, 126.) To succeed on a claim that the trial court abused its discretion in denying severance or ordering consolidation, the defendant must make a “ „clear showing of prejudice‟ ” and establish that the ruling fell “ „ “ „ “outside the bounds of reason.” ‟ ” ‟ ” (Alcala v. Superior Court, supra, 43 Cal.4th at p. 1220, italics omitted; accord, People v. Soper (2009) 45 Cal.4th 759, 774; People v. Lucky (1988) 45 Cal.3d 259, 277.) An appellate court evaluates such claims in light of the showings made and the facts known by the trial court at the time of the court‟s ruling. (People v. Avila (2006) 38 Cal.4th 491, 575; People v. Mendoza (2000) 24 Cal.4th 130, 161; People v. Balderas (1985) 41 Cal.3d 144, 171.) If the evidence underlying the joined charges would have been cross- admissible at hypothetical separate trials, “that factor alone is normally sufficient to dispel any suggestion of prejudice and to justify a trial court‟s refusal to sever properly joined charges.” (People v. Soper, supra, 45 Cal.4th at p. 775; see also Alcala v. Superior Court, supra, 43 Cal.4th at p. 1221; People v. Mendoza, supra, 24 Cal.4th at p. 161.) Relevant to our inquiry here, it is sufficient that evidence supporting the various noncapital crimes would be admissible in a separate murder

hours that began as a consensual encounter. On that occasion, defendant ignored Billie‟s protestations that she was tired and that the intercourse was hurting her, telling her to shut up while he continued having intercourse. On still another occasion, Billie related, defendant repeatedly pulled her onto the couch with him and shoved her hand into his pants. He became angry when she resisted. When Billie eventually got up and went into her daughter‟s room to avoid defendant, he followed her and tackled her to the floor. As Billie explained, she did not resist having intercourse with defendant at that time because she was afraid he would hurt her if she refused. The grand jury testimony regarding the sexual assaults against Robyn G. and Billie B. was known to the court at the time of its ruling on the defense motion to sever. At the hearing on the severance motion, the prosecutor argued that the evidence supporting the sexual assault counts was cross-admissible in the murder trial to show common plan or scheme and propensity to commit sexual offenses. Defense counsel countered that the evidence was inadmissible because its prejudicial effects substantially outweighed its probative value. The court made no finding in that regard, noting only that the prosecutor had indicated he intended to file a motion regarding the admissibility of the sexual assaults evidence. For purposes of ruling on the severance motion, the court assumed cross-admissibility and denied severance subject to reconsideration of the issue in light of later rulings. The court observed, however, that given the statements of Nicassio and Bush describing the events that occurred in defendant‟s bedroom on the night in question, sexual assault was part of the murder case. During a later pretrial hearing at which the court considered the prosecution‟s offer of proof supporting admission of both charged and uncharged sexual assaults, the court ruled in relevant part that the evidence underlying the seven sexual offense charges was cross-admissible as to the special circumstance

that defendant acted with the requisite intent to force Katrina to orally copulate him and to rape her before killing her. We need not resolve the parties‟ debate concerning whether the evidence supporting the sexual assault crimes was sufficiently similar to the evidence underlying the murder charge to permit admission under Evidence Code section 1101(b) to prove intent, common plan, or identity in a separate trial on the murder count. This is because the sexual assaults evidence would have been cross- admissible pursuant to Evidence Code section 1108 to show defendant‟s propensity to commit the rape and forcible oral copulation upon which both the murder charge and the special circumstance allegations were based. Evidence Code section 1108 provides that “[i]n a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant‟s commission of another sexual offense or offenses is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” Defendant was “accused of a sexual offense” within the meaning of Evidence Code section 1108 because it was alleged he murdered Katrina during the commission of rape and forcible oral copulation (Pen. Code, §§ 261, 288a), both of which are “sexual offenses” as defined by Evidence Code section 1108, subdivision (d)(1). (Cf. People v. Loy (2011) 52 Cal.4th 46, 60 [for purposes of Evid. Code, § 1108, the defendant was “ „accused of a sexual offense‟ ” in a prosecution for murder during the commission of a lewd and lascivious act on a child]; People v. Story (2009) 45 Cal.4th 1282, 1291-1292.) We are persuaded furthermore that the evidence supporting the sexual assault crimes that was known to the court at the time of the severance motion would not have been inadmissible under Evidence Code section 352 in a separate trial on the murder count. A court deciding whether evidence of one or more sexual offenses meeting the definitional requirements of Evidence Code section 1108 should

nonetheless be excluded pursuant to Evidence Code section 352 undertakes a careful and specialized inquiry to determine whether the danger of undue prejudice from the propensity evidence substantially outweighs its probative value. Specifically, the court weighs factors such as the “nature, relevance, and possible remoteness [of the evidence], the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant‟s other sex offenses . . . .” (People v. Falsetta (1999) 21 Cal.4th 903, 917 (Falsetta).) Balancing these considerations, we conclude that the risk of undue prejudice from the sexual assaults evidence would not have outweighed its probative value were it admitted at a separate trial on the murder count. The probative value of the sexual assaults evidence was substantial. First, the evidence supporting the sexual assault charges involving Robyn G. and Billie B. was relatively similar to that supporting the murder count. Each of the victims was an SHD “groupie,” in each incident defendant raped his victim and forced her to orally copulate him and, in each instance, defendant forcibly prevented the victim from leaving and ignored her pleas to stop. The sexual assaults occurred no more than three years after the murder and were therefore not remote, which further increased their probative value. In addition, the evidence supporting the sexual assaults was independent of the evidence supporting the murder; Robyn G. and Billie B. initially described the crimes against them without any knowledge of the sexual crimes against Katrina. (See Falsetta, supra, 21 Cal.4th at p. 917; People v. Balcom (1994) 7 Cal.4th 414, 427.)

Defendant repeats his contention, previously mentioned, that the factual similarities between the two sets of charges were insufficient to permit inferences regarding intent, common plan or scheme, or identity. (See Evid. Code, § 1101(b).) Such dissimilarities ordinarily would diminish the probative value of the proffered sexual assaults evidence. (See People v. Balcom, supra, 7 Cal.4th at p. 427.) But defendant‟s argument ignores the distinction between admissibility under Evidence Code section 1101(b), which requires a sufficient degree of similarity between charged and uncharged offenses, and admissibility under Evidence Code section 1108, which does not. As we have observed, although lack of similarity is relevant to the court‟s decision whether to exclude Evidence Code section 1108 propensity evidence as more prejudicial than probative, that factor is not dispositive. (People v. Loy, supra, 52 Cal.4th at p. 63.) If the prejudicial effect of the sexual assaults evidence would substantially outweigh its probative value in a separate trial on the murder count, it would defeat cross-admissibility of the evidence. The admission of this evidence would not have been unduly prejudicial, however. Although the sexual assaults were demeaning, disturbing, and unsavory, their underlying facts paled in comparison to the horrendous nature of the murder. The sexual assaults evidence was considerably less inflammatory than the murder and, therefore, its admission would not likely have had an unduly prejudicial impact on a jury. (See People v. Lewis (2009) 46 Cal.4th 1255, 1287-1288 [evidence of a prior rape was less inflammatory than the charge that the defendant raped, strangled, and cut the throat of the murder victim while her children were asleep upstairs].) And although defendant complains generally that “this sort of evidence” distracted the jury from its main area of inquiry, he fails to explain why the sexual assaults evidence would have confused, misled, or otherwise distracted the jurors from their task of deciding defendant‟s guilt of Katrina‟s murder. We observe in this

b. Joinder of the resisting arrest counts The indictment charged defendant with nine crimes in connection with the incident in late January 1998 in which he fled from officers and then barricaded himself inside a residence until tear gas forced him outside and he was apprehended. As relevant here, the charges included two counts of resisting an executive officer (§ 69), two counts of brandishing a handgun to resist arrest (§ 417.8), and one count each of assault on a peace officer, felony vandalism, and being under the influence of a controlled substance. (§ 245, subd. (c), former § 594, subd. (b)(2); Health & Saf. Code, § 11550, subd. (a).) The prosecution made the following offer of proof in opposition to the defense motion to sever trial on these counts from trial on the murder count. By late 1997, defendant was aware he was a suspect in Katrina‟s murder. On the evening of January 30, 1998, officers noticed two individuals, one of whom was later identified as defendant, riding bicycles without headlights. When they approached the pair, defendant fled, ignoring the officers‟ order to stop. The officers gave chase. As they got closer, defendant pulled a gun from his waistband and threatened to shoot himself. Defendant then jumped a fence and ran to a nearby home, where he beat on the door and demanded to be let inside. The occupants complied, but eventually left the house. Meanwhile, defendant barricaded himself inside. A Ventura County SWAT team was called to the scene but the standoff continued for hours. After tear gas was deployed, defendant went out of the house and back inside several times. On one occasion, he crawled on his hands and knees with a knife in his hand, and slashed at one of the approaching officers, then retreated into the house. He was apprehended the next time he emerged when a group of officers managed to tackle and handcuff him. A blood sample taken from defendant shortly after the incident showed the presence of methamphetamine. Subsequent to defendant‟s arrest, he told an acquaintance that

his arrest, a second indictment was issued in May 1999 charging defendant with five counts that involved various attempts to dissuade witnesses who had testified at the earlier grand jury proceeding. Specifically, defendant was charged with three counts of dissuading a witness by force or threat, and the solicitation of, and conspiracy to commit, those crimes. (§§ 136.1, subd. (c), 653f, subd. (a), 182, subd. (a)(1).) In connection with the conspiracy count, it was alleged that the crime was committed for the benefit of and in association with a criminal street gang, for purposes of sentence enhancement under section 186.22, subdivision (b). The prosecutor later moved to consolidate the two indictments. At a brief hearing on consolidation that preceded the hearing on the defense severance motion, defense counsel acknowledged that the evidence of intimidation and threats would be admissible at trial on the other charges. The trial court granted the consolidation motion without elaboration, impliedly rejecting defense counsel‟s argument that consolidation of the two indictments would be unduly prejudicial to defendant. We conclude the court did not abuse its discretion in ordering consolidation. Notably, the victims identified in the second indictment were the witnesses who testified against defendant in the grand jury proceeding that led to the original 25- count indictment. Evidence supporting the witness dissuasion charges therefore generally would have been cross-admissible in a separate trial on all of the charges in the first indictment to show defendant‟s consciousness of guilt as to those counts. (See People v. Jenkins (2000) 22 Cal.4th 900, 948 [evidence that the defendant solicited someone to kill the robbery victim before he testified against the defendant at a pending trial on that crime would have been admissible at a separate trial on conspiracy to murder a detective to prevent his testimony at the robbery trial]; see also People v. Pinholster (1992) 1 Cal.4th 865, 945 [evidence that defendant threatened to kill a witness if he testified was properly admitted at

851; People v. Mendoza, supra, 24 Cal.4th at p. 162; People v. Bean (1988) 46 Cal.3d 919, 940.) Our review of the trial record in the case discloses there was no gross unfairness. Defendant does not dispute that the evidence regarding the sexual assaults against Robyn G. and Billie B. known to the court when it ruled the evidence admissible with regard to the murder count differed little from the evidence actually presented at trial. He argues, however, that the presentation of this evidence under Evidence Code section 1108 to show his propensity to commit sexual crimes created a “fundamentally unfair paradigm” that unconstitutionally prejudiced him in the eyes of the jury. We previously have upheld the constitutionality of Evidence Code section 1108 against a similar challenge and find no persuasive reason to revisit our conclusion. (Falsetta, supra, 21 Cal.4th at pp. 916-922; see also People v. Fitch (1997) 55 Cal.App.4th 172, 180-184.) The record shows the trial court carefully weighed the probative value of the sexual assaults evidence against its potential prejudicial effect before allowing its admission in connection with the murder count and the associated special circumstances, and defendant does not suggest the court failed to undertake the requisite inquiry. The due process clause does not require more. (Falsetta, supra, at pp. 917-918.) We observe furthermore that because the sexual offenses against Robyn G. and Billie B. were charged, rather than uncharged crimes, there was no risk that the jury would have found defendant guilty of murder to punish him for escaping criminal liability for the other sexual offenses. (See People v. Balcom, supra, 7 Cal.4th at p. 427; People v. Bean, supra, 46 Cal.3d at p. 939.) The joinder of the murder charge with the sexual offense counts did not render defendant‟s trial grossly unfair. Defendant argues more generally that the result of the court‟s refusal to sever the trial on the murder count from trial on all other counts was a trial in which the

“jury‟s view of the actual evidence of the capital crime was hopelessly entangled with evidence of defendant‟s character.” For example, defendant argues, joinder permitted the admission of evidence of his “bizarre and scary behavior” while attempting to evade arrest, as well as evidence of the vulgar, antisocial, and frightening beliefs he embraced by virtue of his membership in a White supremacist gang. According to defendant, the “sheer amount of evidence that was extraneous and fundamentally irrelevant” to the murder charge “had everything to do with the jury‟s willingness to convict defendant of it.” We disagree with defendant that the evidence supporting the sexual offenses, resisting arrest, and witness dissuasion counts was extraneous and irrelevant to the murder count. Rather, for the reasons previously discussed, all three groups of crimes were bound up with proving defendant‟s guilt of the murder and the evidence developed at trial was properly admitted for that purpose. For example, the evidence regarding the SHD gang explained the code of silence, which tended to show why the two eyewitnesses did not report the murder to law enforcement until years after the incident. Nor was the evidence of guilt of the murder count substantially weaker than the evidence supporting defendant‟s guilt of the other crimes so as to render his trial grossly unfair. (People v. Soper, supra, 45 Cal.4th at p. 784; People v. Jenkins, supra, 22 Cal.4th at p. 949.) All of the crimes were proved by strong, direct evidence, which included testimony either by eyewitnesses or the victims themselves. To support his claim of a constitutional violation, defendant points to numerous items of evidence that were not before the court at the time of its severance ruling, specifically, his jailhouse letters to fellow gang members and female “gang groupies,” as the trial court described them. Defendant argues that this evidence so inflamed the jury as to render his trial grossly unfair. We have reviewed the complained-of evidence and find that the bulk of it is easily

lives,” she also checked “Yes” to the question whether she would be open-minded regarding which penalty should be imposed in the case. At the outset of voir dire questioning, the court asked S.B. whether there was any reason she could not be fair in this matter. She shrugged her shoulders and said, “No, I guess not.” When the court then asked whether there was anything else about her views regarding the death penalty, she qualified her questionnaire response by stating, “I‟m not really for it unless they‟re a serial murderer or something, but if it‟s just one murder, I think they should [get] . . . life without parole.” In response to the court‟s further question whether she was saying she would automatically vote for life without parole in a case involving only a single murder victim, S.B. replied, “Yes, yes.” The prosecutor then challenged her for cause. Defense counsel questioned S.B. first, eliciting from her that she would make certain exceptions to her view that the death penalty should be reserved for serial killers. She agreed that death would be appropriate, for example, for someone who killed a child. When defense counsel observed that S.B. seemed “right in the middle” and “would consider both [penalties], depending on the circumstance,” S.B. agreed, indicating, “Yeah, I think I would.” She also agreed with defense counsel‟s observation that “in the right case with only one victim” she could vote to impose the death penalty, depending on what she heard at trial. As S.B. stated in her own words, “I‟m willing to listen to the case . . . before I make my decision.” S.B. retreated somewhat from those views while being questioned by the prosecutor, however. Although she confirmed she could consider the death penalty in a case involving only one victim, she indicated, “I don‟t know if I would do it.” She also answered “Yeah,” when the prosecutor asked whether there was a possibility she would not be “fair” on the death penalty issue. When

the prosecutor then inquired into S.B.‟s view that life without parole was a harsher punishment than death, she agreed that if she thought the harsher penalty was appropriate, it was more likely she would vote for life without parole because “they‟d have to think about it forever.” S.B. then agreed with the prosecutor again “there was a good chance in a case like this that [she] probably won‟t be fair in a penalty stage.” The parties then conducted another round of questioning, eliciting somewhat vacillating responses from S.B. When defense counsel asked S.B. what she would do if she was convinced by the evidence that death was appropriate, S.B. replied, “I would say yes if it was appropriate.” The prosecutor, after reminding S.B. that she had previously agreed with him that there was a good chance she could not be fair in the case, then asked whether in a case with only one victim, it would be very unlikely for her to return a verdict of death. S.B. answered, “Yes.” The court conferred with the parties outside the presence of the prospective jurors, indicating at the outset that it was “leaning” toward excusing S.B. Defense counsel argued that her answers consistently indicated she would consider, and return, a death verdict in an appropriate “one victim” case. For his part, the prosecutor noted that at the outset of voir dire questioning, before any prompting and leading questions by either side, S.B. responded to the court‟s open-ended question by indicating she could not be fair. In the prosecutor‟s view, because S.B. was going to say whatever the attorneys wanted her to say, her remarks during the initial questioning by the court were the best indicator of her true state of mind. Finding the question “close,” the court granted the challenge for cause over a strenuous defense objection. The court observed that S.B.‟s views were difficult to read “because she just swayed with the wind.” It found, however, that her comment at the outset of questioning was “very revealing,” and concluded

accordingly that her duty as a potential capital juror would be impaired by her reluctance to impose the death penalty in single-victim cases. Under the circumstances presented here, the trial court‟s impression of S.B.‟s true state of mind is entitled to deference by this court, and we conclude that its ruling is supported by the record. It is true that S.B. indicated during questioning by defense counsel that “in the right case with only one victim” she could vote to impose the death penalty. But she had expressed the opposite view at the outset of questioning without any prompting, and then vacillated back and forth in her responses to leading questions by the parties. Those responses, when considered in conjunction with S.B.‟s demeanor, could have left the court with the “ „ “definite impression” ‟ ” that she would be unable to faithfully and impartially perform her duties as a juror in the case. (People v. Moon (2005) 37 Cal.4th 1, 14, see id. at pp. 15-16; People v. Friend (2009) 47 Cal.4th 1, 61 [the court‟s excusal of a prospective juror after determining he would be unwilling to consider the death penalty for a defendant who had committed only one murder was fairly supported by the record]; People v. Hawthorne (2009) 46 Cal.4th 67, 84 [same].) Defendant asserts that because S.B.‟s views regarding the death penalty were neither ambiguous nor equivocal, the trial court‟s determination of her state of mind is not entitled to deference. He observes that S.B. quickly retreated from her initial comment that the death penalty should be imposed only on serial killers. According to defendant, as voir dire continued and S.B. became more familiar with the process, her understanding evolved and she unambiguously expressed her ability to apply the law and vote for death in an appropriate case. Defendant may be correct that, when considered separately, S.B.‟s views were not ambiguous. But the record supports the trial court‟s observation that S.B. “swayed with the wind” depending on which of the parties was questioning her. For example, after having agreed with defense counsel that she “would consider both [penalties],

depending on the circumstance,” S.B. then agreed with the prosecutor that in a case with only one victim it would be very unlikely for her to vote for death. Contrary to defendant‟s argument, the record does not show that the continued questioning in this case solidified and clarified the prospective juror‟s views. (Cf. People v. Williams (2013) 56 Cal.4th 630, 667 [upholding the trial court‟s refusal to excuse a prospective juror whose initial responses appeared conflicting but whose views were clarified in the final round of questioning].) In any event, the court‟s resolution of the conflict in S.B.‟s responses, which was based upon its firsthand observations of the prospective juror‟s answers and demeanor, is entitled to deference here. (See People v. Wilson (2008) 44 Cal.4th 758, 780 [observing that the court “was in the best position to assess the juror‟s state of mind, based on her conflicting responses, her demeanor, her vocal inflection and other nonverbal cues”].) Defendant contends furthermore that the court applied an erroneous standard to excuse S.B. when it found she was impaired by her reluctance to impose the death penalty in single victim cases. Specifically, he complains there was no finding whether S.B. could set aside her personal beliefs and carry out her duties as a juror without substantial impairment. As defendant points out, under applicable law, even a juror who “might find it very difficult to vote to impose the death penalty” is not necessarily substantially impaired unless he or she was unwilling or unable to follow the court‟s instructions in determining the appropriate penalty. (People v. Stewart, supra, 33 Cal.4th at p. 447, italics omitted; see also People v. Rountree (2013) 56 Cal.4th 823, 848 [prospective juror was properly excused for cause, not because he believed judging the defendant would be difficult, but because he indicated it would be difficult for him to set aside his religious beliefs in order to carry out his duties as a juror].) We disagree, however, that the court employed an erroneous standard here. The focus of

even tell you my own mind.” B.T. reiterated his opposition to the death penalty and indicated he “would start out with my mind opposing the death penalty.” He then explained, “I . . . always do everything I can to follow the law and I would do . . . the same thing as a juror, cause I think if I was accused of a crime, I‟d want every possible safeguard I could have to see that the laws are followed.” He acknowledged, however, that he could not say how his feelings would affect him. And when asked if there were any scenarios in which he felt he could vote for the death penalty, he responded, “No.” The prosecutor challenged B.T. for cause but did not question him further. Defense counsel began his questioning by confirming with B.T. that he understood a juror‟s various roles during a capital case and that a juror takes an oath to follow the court‟s instructions when making the penalty determination. When counsel asked B.T. whether he could do that, B.T. replied, “Yes,” and again indicated he “would always follow the law.” B.T. indicated, however, that he also opposed the death penalty and didn‟t know whether he could vote for death. In response to counsel‟s further question whether his opposition to the death penalty was so strong that he could not consider it as an option, B.T. said, “No,” reiterating that, “as a juror, I would always do everything I could to follow the law.” Defense counsel then elicited from B.T. several responses suggesting his views would not substantially impair his ability to perform his duties as a juror. B.T. agreed with counsel that he would follow the law and the instructions given to him at the penalty phase. And when asked if he could set aside his general opposition to the death penalty and be as fair to the prosecution as he would be to the defendant, B.T. answered, “Yes, I believe I could.” In response to the question whether his mind was foreclosed to the possibility of choosing death as a penalty, he indicated, “No it‟s not.”

After neither defense counsel nor the prosecutor indicated he wanted to be heard on the issue, the court excused B.T. for cause without comment. B.T.‟s responses to questions regarding his views on the death penalty were, at best, equivocal and conflicting. His answers on the questionnaire showed strong opposition to capital punishment, but during questioning in open court he was unable to say for sure how those views would affect his ability to vote for death in an appropriate case. And although B.T. told the court there was no scenario in which he felt he could vote for the death penalty, he indicated later during defense counsel‟s questioning that his mind was not foreclosed to the possibility of choosing death as a penalty. We defer to the court‟s resolution of the ambiguities and conflicts in B.T.‟s views, which was informed by the court‟s firsthand observations of the prospective juror‟s responses and demeanor. We conclude furthermore that the record fairly supports the court‟s determination that B.T.‟s views regarding the death penalty would substantially impair the performance of his duties as a juror. B.T. twice indicated on his questionnaire that he would not be able to set aside his personal views and apply the law. The trial court, having considered B.T.‟s demeanor during voir dire questioning, was entitled to accept those responses, notwithstanding B.T.‟s contradictory answers during voir dire questioning. (People v. Whalen (2013) 56 Cal.4th 1, 49-50.) As defendant correctly observes, this court has made clear that a juror‟s strong opposition to the death penalty does not necessarily disqualify him or her from serving on a jury in a capital case. (People v. Jones, supra, 54 Cal.4th at p. 42; People v. Martinez, supra, 47 Cal.4th at p. 427; People v. Stewart, supra, 33 Cal.4th at p. 446.) He does not persuade us that the trial court‟s excusal of B.T. is contrary to that pronouncement, however. “[T]hose who firmly believe that the death penalty is unjust may nevertheless serve as jurors in capital cases so long as they state clearly that they are willing to temporarily set aside their own beliefs in

Defendant further contends that the incident as described by Kristen S., even if believed, did not amount to a sexual offense for purposes of admission under Evidence Code section 1108. Specifically, he argues there was no showing that defendant forced Kristen to do anything against her will or that the sexual encounter was otherwise nonconsensual. Defendant‟s characterization of the evidence is belied by the prosecution‟s offer of proof and Kristin‟s testimony at trial. Although Kristen acknowledged that she did not expressly refuse defendant‟s orders to perform various sexual acts or try to escape, she explained that she did not attempt to resist defendant because he had gotten “weird” and she was scared and confused. Given Kristen‟s vulnerability by being alone with defendant in his bedroom, and the testimony regarding her awareness of his membership in a violent skinhead gang, her acquiescence to and continued participation in sexual acts with defendant is not inconsistent with the conclusion that a forcible sexual assault occurred. Characterizing the sexual assault evidence as “yet another bizarre and disturbing incident” involving drugs and “strange sex” that created an “aura of evil around him,” defendant argues finally that the evidence was not properly admitted under Evidence Code section 1108 because it was “inadmissible pursuant to section 352.” (Evid. Code, § 1108, subd. (a).) A court has broad discretion to exclude, as substantially more prejudicial than probative, sexual offense evidence that meets the requirements for admission under Evidence Code section 1108, and its ruling in this regard is reviewed for abuse of discretion. (People v. Loy, supra, 52 Cal.4th at p. 61.) As previously explained in the discussion regarding defendant‟s challenge to the court‟s denial of his motion to sever the murder charge from the sexual assault offenses (see ante, pt. II.A.3.i.), a court considering the admissibility of evidence under Evidence Code section 1108 examines a number of specified factors to

determine whether the danger of undue prejudice from the evidence in question substantially outweighs its probative value regarding defendant‟s propensity to commit the charged sexual offenses. (People v. Loy, supra, 52 Cal.4th at p. 61; Falsetta, supra, 21 Cal.4th at pp. 917-918.) Here, the relevant factors amply support the conclusion that the court did not abuse its discretion in admitting evidence of defendant‟s sexual assault of Kristen S. for purposes of showing defendant‟s propensity to commit the charged sexual assaults. First, the nature and quality of the offenses against Kristen S., each of which amounted to a forcible sexual assault, were identical to the nature and quality of the charged sexual offenses, suggesting their strong probative value as evidence of defendant‟s disposition to commit such crimes. Although the incident involving Kristen occurred several years after the sexual crimes against Katrina, it happened around the same time as the sexual assaults against Robyn. G. and Billie B. and showed defendant‟s continuing pattern of sexual crimes against the women who befriended him. (See People v. Story, supra, 45 Cal.4th at p. 1293 [defendant‟s history of sexual assaults was probative of the sexual conduct that preceded defendant‟s strangulation of the victim].) We observe furthermore that the sexual assaults against Kristen S. bore many similarities to the charged offenses, further supporting the probative value of the evidence in question. Kristen, like Katrina, Robyn G., and Billie B., was, as described by the court, a “skinhead groupie” who considered defendant either a friend or a boyfriend. In addition, the assaults against all four victims involved a multiplicity of forced sexual activities and, in the case of Kristen, Robyn G., and Billie B., they were lengthy ordeals during much of which defendant flipped through pornographic magazines. Notably, and likely related to the manner in which Katrina escaped from defendant‟s home during the first unwanted sexual

entirety. Although the court acknowledged that the evidence placed defendant in an unfavorable light, it found the prejudicial impact of the evidence was not outweighed by its significant probative value in providing context for defendant‟s admission. Kristen‟s eventual testimony at trial differed only slightly from the prosecution‟s offer of proof. She testified at trial that defendant, who was clad only in boxer shorts at the time, was angry at her for refusing to touch his penis and wanting to leave the bathroom. Defendant does not challenge the admissibility of his statement to Kristen S. to the effect that he “sliced” Katrina‟s throat. He argues, however, that the court‟s ruling admitting the facts surrounding the entire incident at the tattoo shop exposed the jury to irrelevant and highly prejudicial “criminal propensity” evidence forbidden under subdivision (a) of Evidence Code section 1101, and inadmissible under Evidence Code section 352. For example, defendant asserts, the evidence that before he made the admission regarding Katrina he was injecting drugs and then using the syringe to squirt his own blood at Kristen demonstrated to the jury that he acted with depraved indifference to Kristen‟s life. Defendant‟s challenge to this evidence does not succeed. As defendant acknowledges, his unsolicited statement to Kristen S. about slicing Katrina‟s throat constituted an admission and was therefore properly allowed into evidence to show the identity of the perpetrator. (See People v. Robinson (2000) 85 Cal.App.4th 434, 445.) Furthermore, the circumstances surrounding that admission were relevant because they placed his statement in context. (Ibid.) The jury was entitled to know, for example, that defendant‟s admission was made neither in passing nor in jest but rather for purposes of instilling fear in Kristen for refusing his demand for sexual stimulation. A “trial court,” of course, “has broad discretion” under Evidence Code section 352 “to exclude even relevant evidence „if its probative value is

admission under Evidence Code section 1101 (b). It concluded, however, that the dissimilarities did not render the evidence inadmissible under Evidence Code section 1108. Ruling that it would allow the evidence under the latter provision, the court explained that it found the incident was not inflammatory when compared to the other sexual crimes and that it was relevant to show defendant‟s treatment of women. Corie G.‟s testimony at trial was substantially the same as the prosecution‟s offer of proof, although she added that during the incident she yelled for her friends in a nearby house to help her but that no one came out. She also indicated during cross-examination that, after the incident, she continued to “hang out” with defendant and other SHD gang members and that she felt safe with defendant “because he was the toughest guy.” Defendant argues that the court erred in admitting evidence of the sexual assault against Corie G. because the evidence was substantially more prejudicial than probative. For reasons similar to those supporting the admission of evidence regarding the sexual crimes against Kristen S. (see ante, pt. II.C.1.a.), we conclude that the court did not abuse its discretion in allowing the challenged evidence. The probative value of the evidence in question was shown by the forcible nature and quality of the sexual offense, which mirrored the nature and quality of the charged sexual offenses. Although the incident had occurred five or more years before the sexual assaults against Katrina and the victims of the other charged crimes, the evidence was highly probative of defendant‟s lengthy history of sexually assaulting “skinhead groupies” who considered him a boyfriend or friend but feared a violent response if they refused his commands. As for the issue of prejudice, there is no question that forcible sexual intercourse is a serious and demeaning crime. However, the admission of evidence regarding the circumstances surrounding defendant‟s rape of Corie cannot be characterized as unduly prejudicial when compared to the facts underlying the charged crimes.

however, defendant started punching her in the face again. Susan eventually ended up in defendant‟s room. During an ensuing conversation, defendant asked Susan what she had spoken to Cundiff about and then told her not to talk about Katrina again. The court admitted the proffered evidence, rejecting defense counsel‟s argument that presenting the incident in its entirety would show defendant‟s bad character and propensity for violence. The court acknowledged the prejudicial impact of evidence that defendant “sucker-punched” a woman and then lured her out of her car and did it a second time. But the court concluded that the inferences to be drawn from the incident had significant probative value that outweighed any prejudice, remarking that “[s]ome things we‟ve got to take as they allegedly happened and let the jury sort it out.” Citing to People v. Nelson (2008) 43 Cal.4th 1242, defendant complains that the trial court abdicated its responsibility for deciding the admissibility of evidence by ruling that it would allow the jury to “sort it out.” We have no quarrel with defendant‟s contention that the task of resolving questions regarding the relevance of evidence is a “hallmark responsibility of the trial judge.” (Id. at p. 1265.) Contrary to his assertion, however, the record of the court‟s ruling on the admissibility of the evidence regarding defendant‟s attack on Susan V., when read in its entirety, amply demonstrates that the court thoughtfully and carefully carried out its judicial obligation in this respect. Placed in context, the court‟s comment about letting the jury “sort it out” meant that the jury ultimately would determine the inferences to be drawn from the challenged evidence. We likewise reject defendant‟s substantive challenge to the admission of this evidence. Defendant‟s warning to Susan V. not to talk about Katrina‟s disappearance was highly probative of his consciousness of guilt and the central issue of his identity as the killer. Even more probative in this regard were the

her by the neck and started choking her while his mother stood by and did nothing. Torres noticed red marks on Katrina‟s neck. The defense objected to the proposed testimony on the ground it was based upon inadmissible hearsay, and the prosecutor countered that Katrina‟s out-of- court statement qualified for admission under the spontaneous statement exception to the hearsay rule. At an initial hearing on the matter, in which the parties debated the admissibility of the evidence both under the excited utterance exception and under Evidence Code section 352, the court remarked that it found the probative value of the evidence “astronomical.” However, the court did not then issue a ruling, and granted a defense request to conduct a hearing at which Torres could be questioned regarding her anticipated testimony. At the hearing, Torres provided an account of events substantially similar to what had appeared in the prosecution‟s trial brief, adding that Katrina was both upset and “really angry” when she returned to the truck. At the conclusion of Torres‟s testimony, and after considering further argument by the parties, the court overruled the defense objections and concluded without elaboration that the entire incident was admissible under the spontaneous statement exception to the hearsay rule. Torres testified at trial that Katrina told her that defendant “got upset” with her and then attacked her, and that she showed Torres the red marks on her neck. We conclude the court acted well within its discretion in finding Katrina‟s statements to Torres met the requirements of the spontaneous statement exception. Because Katrina‟s statement to Torres described a physical assault by defendant, it clearly satisfied the requirement that the statement in question relate to an occurrence that was startling enough to cause nervous excitement. The record also amply supports the trial court‟s finding that Katrina spoke to Torres while she was under the “stress of excitement” and before there was time to contrive or misrepresent what had happened. Torres testified that Katrina was in defendant‟s

house for only 20 minutes and that when she returned to the truck she was upset and angry. Torres testified further that Katrina immediately told her that defendant had tried to choke her while his mother stood by doing nothing, and Torres could see red marks on Katrina‟s neck. Defendant does not assert that Katrina‟s statement to Torres failed to satisfy any of the requirements for admission under Evidence Code section 1240. Rather, he raises a more general challenge to the statement‟s admissibility, arguing that Katrina‟s association with defendant and his violent and hateful gang, and her efforts to hide the truth of those affiliations from the other people in her life, “made contrivance and misrepresentation a way of life” and therefore rendered her statement to Torres innately unreliable. Defendant‟s argument is not well taken. Permitting the admission of an out- of-court statement satisfying all of the requirements of Evidence Code section 1240 is based upon the long-held recognition that a statement uttered while under the stress of excitement interferes with the process of reflection and fabrication, and therefore is considered a true expression of the declarant‟s observations and impressions. (People v. Clark, supra, 52 Cal.4th at p. 925, People v. Farmer, supra, 47 Cal.3d at p. 903.) Under defendant‟s reasoning, the statement of an individual who lives an “unreliable or unpredictable” lifestyle is always unreliable, no matter what the circumstances under which it was made. Such a proposition ignores the “crucial element” in determining the admissibility of a purportedly spontaneous statement, namely, the mental state of the speaker at the time the statement was uttered. (People v. Gutierrez, supra, 45 Cal.4th at p. 811.) Although defendant‟s focus on Katrina‟s “dual life” may be relevant to the weight of the evidence in question, it has no bearing on its admissibility. We also reject defendant‟s assertion that the admission of Katrina‟s statements to Torres violated his federal constitutional rights to due process and to

bed with her making sexual advances. When she told defendant to stop, he responded that he knew she wanted it. She managed to flee by telling defendant, falsely, that she was sick and needed to use the bathroom. She went into the bathroom for a moment but then grabbed her things, ran out of the house, and got into her truck. As she was driving off, defendant came outside, yelling at her. Although Katrina‟s mother repeatedly stated that she believed the events Katrina described to her had occurred the previous night, she could not say so with absolute certainty and indicated that the incident could have happened the night before that. She also indicated during cross-examination that she was unsure whether Katrina had come home and gone to bed the night before their conversation or had arrived home that same morning. After considering further briefing and argument by the parties, the court ruled that Katrina‟s conversation with her mother was admissible as a spontaneous statement. The court noted that Katrina‟s mother was being “very cautious” regarding the timeframe but it found, as a factual matter, that the incident had occurred the night before Katrina‟s conversation with her mother, rather than two nights earlier. The court further found that the revelations in question had all the “earmarks” of the hearsay exception for spontaneous statements. In the court‟s view, Katrina would not have raised the issue with her mother at all “unless it was bothering her to the point where she was still under the stress of what happened.” The court was impressed by the testimony that Katrina had followed her mother around the house until she could talk to her alone, and it found Katrina “clearly” needed to get something “off her mind.” The court also noted, “based on everything [known] about this case up to that point,” how traumatic the incident appeared to have been for Katrina. The court found it significant that Katrina was the victim of the startling event rather than simply an eyewitness.

At trial, Katrina‟s mother‟s testimony regarding her conversation with Katrina was substantially similar to her testimony at the pretrial hearing. Like Katrina‟s statements to Shawna Torres, Katrina‟s statements to her mother described an assault by defendant, and therefore clearly satisfied the requirement that the statement in question relate to an incident that was startling enough to have caused nervous excitement. Defendant does not argue otherwise. Rather, he asserts that Katrina was no longer under the stress of the startling event when she recounted the sexual assault to her mother because their conversation occurred after a substantial amount of time, possibly as much as 36 hours, had elapsed. We observe at the outset that the trial court expressly found a shorter duration of time between the purported incident and the conversation, a determination we conclude is supported by substantial evidence. As the record shows, Katrina‟s mother repeatedly stated that she believed the incident Katrina described to her had happened the night before their conversation. Although Katrina‟s mother indicated that the events in question could have occurred one night before that, she said so only because she was not absolutely certain of the time frame. On this record, the court was entitled to find that her reference to a lengthier timeframe was made out of an abundance of caution and that it did not call into question her other testimony. We do not disagree with defendant that, in any event, an appreciable amount of time had elapsed between the sexual assault and Katrina‟s statements to her mother describing those events. Our cases suggest that allowing admission of a statement that was made approximately eight hours after the startling event may be the exception rather than the rule. (See, e.g., People v. Lynch, supra, 50 Cal.4th at p. 754 [trial court erred in admitting murder victim‟s statement describing to her daughter the beating that had occurred more than one hour earlier]; see also

1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 180, p. 1035 [statements made at a time substantially after the event are likely to be excluded].) For her part, the Attorney General argues that notwithstanding the passage of time following the sexual assault, Katrina‟s conversation with her mother may have been her first opportunity to disclose the traumatic event to a person whom she trusted. (See People v. Trimble, supra, 5 Cal.App.4th at p. 1235 [the defendant‟s departure from the family‟s residence presented the first secure opportunity for the young child who had witnessed the fatal assault on her mother two days earlier to describe the incident to her mother‟s sister].) We need not decide whether the trial court reasonably determined that Katrina remained under the stress of the asserted sexual assault up to and including the time she disclosed to her mother the incident in question. Even assuming the court abused its discretion in permitting the prosecutor to introduce the out-of-court statement, its admission does not require reversal because there is no reasonable probability that defendant would have obtained a more favorable result had the evidence been excluded from trial. (People v. Gutierrez, supra, 45 Cal.4th at p. 813; People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence regarding defendant‟s rape and murder of Katrina was strong, and included consistent accounts of the crimes by the two eyewitnesses, Bush and Nicassio. Other properly admitted evidence, such as the testimony of the sexual assault victims and Apryl Porcho, raised a strong inference that Katrina would not have consented to sexual activity with defendant on the night of the murder. Still other evidence, including Katrina‟s statement to her friend Torres and Nicassio‟s testimony that defendant repeatedly directed him to stab Katrina with a knife at the Porchos‟ party, showed that defendant had both engaged in and solicited prior acts of violence against Katrina. The admission of Katrina‟s statement to her mother describing a sexual assault in the guest room of defendant‟s house several months

evidence in this case. Almost immediately after the testimony in question, the court instructed the jury on the limited purpose for which the evidence could be considered. We find nothing in the record that would rebut the presumption that the jury followed the court‟s directive. (People v. Cox (2003) 30 Cal.4th 916, 963.) Pointing to the trial court‟s finding that Katrina‟s statements to Jensen failed to satisfy the requirements for admission as a spontaneous statement, defendant complains that if the evidence was so unreliable as to fall outside that hearsay exception, it should be inadmissible for all purposes. Defendant‟s argument, which ignores the limited, nonhearsay purpose for which the testimony in question was admitted, is contrary to law. The evidence was admitted for a purpose other than for the truth of the matter asserted, and therefore need not have met the reliability requirements of a hearsay exception. (See People v. Letner and Tobin (2010) 50 Cal.4th 99, 157 [because the defendant‟s statement was properly admitted for the nonhearsay purpose of showing his consciousness of guilt, it was unnecessary to show that it met the requirements for admission under Evid. Code, § 1221, the adoptive-admission exception to the hearsay rule]; People v. Jablonski (2006) 37 Cal.4th 774, 820-821 [murder victim‟s statement that she feared the defendant was not admissible under the state of mind hearsay exception set out in Evid. Code § 1250 to establish she was actually fearful of him, but was relevant to, and admissible for, the nonhearsay purpose of its effect on the defendant‟s mental state when going to visit the victims].) Defendant‟s challenge to the reliability of Katrina‟s statement to Jensen, at most, goes to the weight of the evidence, and not its admissibility. Defendant‟s argument that the admission of Katrina‟s statement to Jensen deprived him of his federal constitutional rights likewise fails. An out-of-court statement properly admitted for a limited nonhearsay purpose does not render a

know” and apologized, first to the prosecutor and then to Katrina‟s mother. The following day she pleaded guilty to the charges. In the course of the prosecutor‟s cross-examination of Ms. Merriman at defendant‟s trial, the court held a hearing outside the jury‟s presence to rule on the prosecutor‟s request to place into evidence a letter defendant wrote to his mother from jail chastising her for thinking she was guilty of the charges against her. The prosecutor pointed out that shortly after receiving that letter, defendant‟s mother told a probation officer she was not guilty of the charges but pleaded guilty because her counsel told her to. The letter impeached the witness‟s credibility, the prosecutor argued, because it showed Ms. Merriman would say and do whatever defendant wanted her to say and do. The court allowed the prosecutor to ask Ms. Merriman about some portions of the letter. When cross-examination resumed, the prosecutor elicited from Ms. Merriman that she had received a letter from defendant in which he told her he was upset about her guilty plea. She denied, however, that the letter caused her to tell the probation officer she was not guilty. Defendant‟s mother agreed with the prosecutor that when defendant asked her for something, she would do her best to get it for him. When the prosecutor then asked her whether she would agree to carry out defendant‟s wishes even if the requests involved illegal activity, the defense objected on relevance and prejudice grounds and the court held a sidebar conference. Outside the earshot of the jurors, the prosecutor proffered a number of letters from defendant to his mother that were written while defendant was in custody. In one series of letters, defendant asked her to retrieve a .45-caliber gun from someone. In another exchange, defendant wanted his mother to fill out paperwork in order for him to receive disability benefits on his release from prison. The court agreed with defense counsel that these activities were not illegal. However, it

found the evidence relevant to illustrate the prosecutor‟s point regarding the witness‟s relationship with defendant, and ruled it would allow a “brief inquiry.” Before questioning resumed in open court, the court directed the jury to disregard the prosecutor‟s previous reference to criminal behavior. The court then admitted into evidence several letters from defendant to his mother that Ms. Merriman read aloud to the jury. In one of the letters, defendant wrote in relevant part, “What up with that .45? Did you go and pick it up . . . from Mike‟s friend yet? No. Okay. I didn‟t think so. So this is another reminder, go pick up — go pick the gun up. I am not going — I am not giving my gun to them, ha- ha, no way.” In another letter, defendant asked his mother to help him with paperwork for government disability benefits, saying he could receive a monthly check for $700 once he was released from prison. Defendant wrote, “I‟m going to talk with a psych while I‟m here at Wasco [State Prison]. They always want to put you on those dummy pills that make me shuffle and sleep all day. I‟ll act like I swallowed „em, and spit „em out in the toilet when I get on my way with it. For 700 — for $700 bills a month, why not?” In response to the prosecutor‟s question whether she helped defendant with his disability benefits application, Ms. Merriman said, “Yes and no,” adding that defendant needed assistance for a surgery that she could not afford. During closing argument, the prosecutor returned to the subject of interactions between defendant and his mother, remarking that the relationship between defendant and Ms. Merriman was relevant to her credibility because the person in control was defendant and he had “completely skewed her reality about what‟s going on in the world.” The prosecutor illustrated the point, not by referring to the letters concerning the .45-caliber gun or the disability benefits application, but rather by replaying a taped conversation at jail between defendant and his mother in which Ms. Merriman told defendant she was planning to give a

Robyn G., and Kristen S. each testified that defendant forced her to orally copulate or masturbate him while he flipped through pornographic magazines. The evidence of defendant‟s extensive collection of such material tended to corroborate their testimony regarding the circumstances of the sexual assaults. (See People v. Gann (1968) 259 Cal.App.2d 706, 713 [numerous photographs depicting nude men and women engaged in sexual intercourse that were seized from the defendant‟s residence were properly admitted to corroborate the molestation victims‟ reports that they had been shown such photographs before the lewd acts occurred]; cf. People v. Scheid (1997) 16 Cal.4th 1, 15 [crime scene photograph was relevant to illustrate and corroborate the witnesses‟ testimony regarding the circumstances of the crime].) Because the pornographic magazine evidence tended to corroborate the sexual assault victims‟ testimony, it was highly probative of the factual similarities between the sexual assaults. As previously discussed, the similarities between these incidents, in turn, tended to show defendant‟s propensity to commit such crimes. (Evid. Code, § 1108; see discussion ante, pt. II.C.1.) Defendant argues that evidence he possessed pornographic magazines would have been sufficient to corroborate the testimony of the sexual assault victims in this regard, and there was no need for the prosecutor to present the actual contents of these materials. It is true that the prosecutor could have asked Investigator Volpei merely to describe the magazines‟ contents instead of moving the court to admit those materials for the jury‟s possible inspection during deliberations. Our decisions make clear, however, that the court is not required to exclude photographic or other documentary evidence simply because the images they depict could have been described by a witness. (People v. Michaels (2002) 28 Cal.4th 486, 532 [evidence that was cumulative of testimony could assist the jury in evaluating the testimony]; People v. Scheid, supra, 16 Cal.4th at p. 19.) So

b. Photographs of defendant holding knives The prosecutor initially sought admission of two photographs that were taken in defendant‟s bedroom one or more years after Katrina‟s disappearance. After conducting a hearing, the court excluded one photograph and admitted the other. The court found unduly prejudicial and refused to admit a staged photograph that depicted defendant and a fellow gang member holding knives to each other‟s throats. Over defense objection, the court admitted the other photograph, which showed a hacksaw in the background and defendant and fellow gang member, Mitch Buley, with knives in their hands. The court agreed with the prosecutor that the image was probative of defendant‟s access to knives and tools in his bedroom. The photograph was admitted into evidence a short time later and handed to the jurors for their examination. For the next two days, the jury heard testimony by Ryan Bush, one of the two eyewitnesses to Katrina‟s killing. During the course of that testimony, and over defense objection, the court granted the prosecutor‟s request to admit another photograph that had been seized during the search of defendant‟s bedroom. That image, also taken in defendant‟s bedroom, showed Buley holding a hacksaw to defendant‟s head in a mock threat and defendant pointing a small knife toward the camera. The court found the photograph probative on the subject of defendant‟s use of a smaller sized knife in the alleged murder, an issue the court believed had become more prominent after defense counsel‟s cross-examination of Bush. The court explained furthermore that the proffered evidence was much less prejudicial than the photograph it had previously ruled inadmissible because defendant is not being shown holding a knife to someone‟s neck. When the prosecution‟s case resumed, the photograph was admitted into evidence and shown to the jury. Defendant asserts that the court erred in admitting the photographs of him and his fellow gang member because the presence of knives and a hacksaw in his

bedroom one or more years after Katrina‟s disappearance tended to prove no fact at issue in the case. We observe in this regard that the prosecution did not advance the theory at trial that defendant used the knives or the hacksaw depicted in the photographs to murder Katrina. (Cf. People v. Champion (1995) 9 Cal.4th 879, 924 [photographs of both defendants holding the type of gun used in killing one of the victims were “obviously relevant”]; People v. Rinegold (1970) 13 Cal.App.3d 711, 720 [“an implement by means of which it is likely that a crime was committed is admissible in evidence if it has been connected with the defendant”].) This court also has observed, however, that evidence of weapons unconnected to the crime may be relevant for other purposes. (People v. Prince (2007) 40 Cal.4th 1179, 1249; People v. Cox (2003) 30 Cal.4th 916, 955-956.) In the present case, the photographs were relevant in that they tended to show defendant kept knives and tools in his bedroom, which in turn tended to corroborate the testimony of the eyewitnesses Nicassio and Bush regarding defendant‟s fatal attack on Katrina. Defense counsel vigorously cross-examined Bush regarding his recollection of defendant coming up behind Katrina with a knife and stabbing her in the throat, which arguably called into question his account of the incident. (People v. Sassounian (1986) 182 Cal.App.3d 361, 401- 402 [photographs of the defendant in battle fatigues and holding various firearms weapons were relevant because they tended to corroborate the testimony of the prosecution‟s primary witness in the face of substantial attacks by the defense during cross-examination].) Contrary to defendant‟s argument, the photographs were not admitted simply to ascribe to him additional antisocial behavior. (See People v. Prince, supra, 40 Cal.4th at p. 1249 [evidence of knives seized from the defendant‟s vehicle was relevant to his commission of crimes other than the murder and did not simply constitute bad character evidence].)

a. Background To support the vandalism count, the prosecution called Jennifer Bowkley to testify regarding defendant‟s actions inside the house in which he had barricaded himself prior to his arrest. At the outset of that testimony the prosecutor asked the witness how she was feeling. She responded that she was nervous and scared and “wanted to forget that night.” When the witness agreed with the prosecutor that she did not want to be in court, defense counsel moved to strike her answer as irrelevant. The court overruled the objection without comment, and the prosecutor elicited from the witness that after she had been subpoenaed she told investigators that she did not want to have anything to do with the case. Without objection, sexual assault victims Billie B., Susan V., Robyn G., and Robyn G.‟s friend, Elaine Byrd, likewise indicated at the outset of direct examination that they were nervous. Billie B., Corie G., Robyn G., and Kristin S. also expressed reluctance to openly discuss the sexual assaults against them. For example, before testifying regarding the details of the sexual assaults, Billie B. stated that the incidents were something she would “rather not talk about in front of people.” The prosecutor asked two of these witnesses whether testifying at trial was more difficult and stressful than testifying at the grand jury proceeding. Over defense counsel‟s relevancy objection, Corie G. stated that giving trial testimony was harder for her because defendant and his mother were “right there.” Without objection, Robyn G. testified to the contrary that she was more nervous testifying in front of the grand jury because she did not want to be labeled a rat. On further questioning, she indicated that she had asked to be excused from that proceeding because she was scared, embarrassed, and trying not to be involved. Also without objection, the prosecutor elicited from two witnesses that they felt fearful testifying in court. Billie B. admitted that she had not reported the

comment and counsel raised no further objection to the witness‟s continued testimony in this regard. On the present record, we cannot presume that because the court overruled the objection to Bowkley‟s testimony, it necessarily would have overruled subsequent challenges to evidence of other witnesses‟ reluctance to testify. (People v. Valdez (2012) 55 Cal.4th 82, 138-139.) Defendant‟s claim is forfeited except to the extent it challenges the relevance of testimony by Bowkley and Corie G. regarding their reluctance to testify. Defendant‟s challenge to evidence that prosecution witnesses were nervous and reluctant to testify lacks merit in any event. Contrary to defendant‟s assertion, such evidence was relevant to the evaluation of the witnesses‟ credibility. Under Evidence Code section 780, which concerns the scope of questioning at trial, a jury may consider “any matter that has any tendency in reason to prove or disprove the truthfulness of [a witness‟s] testimony,” unless such evidence is inadmissible under some other statutory provision. Such matters include the witness‟s “demeanor while testifying and the manner in which” the witness testified (Evid. Code, § 780, subd. (a)), and the witness‟s “attitude toward the action” or “toward the giving of testimony” (Id. subd. (j)). The trial court did not abuse its discretion in overruling the defense relevancy objection to Jennifer Bowkley‟s testimony that she did not want to be in court. (People v. Williams, supra, 43 Cal.4th at p. 634 [a trial court is vested with “considerable discretion” in determining the relevance of evidence].) As the Evidence Code makes clear, the witness‟s attitude toward testifying would have assisted the jury in evaluating her credibility. (Evid. Code, § 780, subd. (j).) Nor did the court abuse its discretion in overruling defense counsel‟s relevancy objection to Corie G.‟s testimony that it was more difficult for her to testify at trial than it had been to testify at the grand jury proceeding because defendant and his mother were present in the courtroom. Just prior to eliciting that

Regarding the two witnesses who indicated that they feared retaliation for testifying at trial, such evidence was clearly relevant. As this court has previously recognized, “[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness . . . . [as is an] explanation of the basis for the witness‟s fear . . . .” (People v. Burgener (2003) 29 Cal.4th 833, 869; accord, People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142.) “A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. . . . [¶] Regardless of [the source of the threat], the jury would be entitled to evaluate the witness‟s testimony knowing it was given under such circumstances.” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1368-1369, italics omitted.) Defendant does not dispute that the line of questioning pursued by the prosecutor could be relevant to a witness‟s credibility. He argues, however, that our decisions have limited such testimony to circumstance in which the witness hesitates in his or her responses or when nervousness or fear interferes with the witness‟s ability to testify truthfully. (See, e.g., People v. Guerra, supra, 37 Cal.4th at p. 1142 [“evidence that [the witness] feared retaliation for testifying against defendant was [properly] offered for the . . . purpose of explaining inconsistencies in portions of her testimony, including her equivocal responses when asked whether she feared retaliation”].) We do not share defendant‟s understanding of the law. A witness‟s hesitation in answering questions is only one of any number of reasons that evidence may be relevant to his or her credibility; our cases establish no such limitations. (See People v. Mendoza, supra, 52 Cal.4th at p. 1086 [inconsistent testimony is not a prerequisite for admission of evidence of a witness‟s fear of testifying].) Indeed, as People v. Mendoza explains, a trial court has discretion, within the strictures of Evidence Code section 352, to permit the prosecution to introduce evidence supporting a

witness‟s credibility even on direct examination, so long as the prosecution reasonably expects the defense to attack the witness‟s credibility during cross- examination. (People v. Mendoza, supra, at p. 1085.) In the present matter, the witnesses in question were former drug users. Most of the witnesses had been involved in consensual sexual relationships with defendant and none had reported the sexual assaults to law enforcement until years after the incidents occurred. The prosecutor reasonably could anticipate, first from the defense motion to sever charges and then from defense counsel‟s cross-examination during various pretrial hearings that the defense would vigorously challenge these witnesses‟ credibility at trial. The prosecutor was entitled to present evidence of the witnesses‟ reluctance to testify to preemptively counter such an effort. (See People v. Sapp, supra, 31 Cal.4th at pp. 280-281 [trial court properly allowed the prosecutor to present evidence that the defendant‟s friends warned the prosecution witness against giving the police information regarding the murder victim‟s disappearance in order to counter evidence that the witness had not come forward to report what she knew].) Defendant argues furthermore that the prosecutor‟s questioning was an improper attempt to convey to the jury that defendant had directly threatened the witnesses, which was especially prejudicial given that he had been charged with witness dissuasion. We disagree with the premise of defendant‟s assertion. Nothing in the prosecutor‟s line of questioning or in the witnesses‟ testimony suggested that the reason for anyone‟s reluctance to testify was because defendant had threatened or intimidated her. Indeed, there was ample evidence from which to infer that the witnesses were reluctant to testify, not because defendant had threatened them, but because of their desire to distance themselves from their prior association with the SHD gang‟s culture and lifestyle. There was no error in

Baker, that Baker and a seated juror with whom she was acquainted may have discussed the case over lunch. With counsel‟s assent, the court called the jurors into the courtroom and asked them as a group whether anyone knew or may have had contact with Deputy Baker. No juror gave an affirmative response. Outside the jury‟s presence, the sheriff‟s deputy who had reported the communication to the court then provided more details about his encounter with Deputy Baker, which had occurred when they ran into each other in a bookstore the previous day. According to the officer, Deputy Baker told him she had had lunch with a juror who said that she had been on a murder trial for two months and that “they were gonna fry him.” A short time later, again outside the jury‟s presence but with counsel‟s assent and involvement, the court placed a telephone call to Juror No. 1. The court first inquired about Juror No. 1‟s message regarding her unavailability. She explained that she could not attend trial all week because she had to care for her adult daughter, who was recuperating from a serious surgery. When the court then asked her whether she was acquainted with Deputy Baker, Juror No. 1 indicated that Deputy Baker was her other daughter‟s sister-in-law and that her daughter had told her that Deputy Baker was working near the courthouse. Juror No.1 admitted that she had spoken to Deputy Baker by telephone on the day the jury announced its guilt phase verdicts and on one other occasion, between two and four weeks earlier, to set up a lunch date. She explained, however, that they never met for lunch because Deputy Baker‟s superiors ordered her not to. Juror No. 1 repeatedly denied telling Deputy Baker, “We‟re gonna fry him.” According to Juror No. 1, Deputy Baker ascertained during their first telephone conversation that she was serving as a juror in defendant‟s case, although Juror No. 1 could not remember whether she or Deputy Baker commented on the trial.

Deputy Baker indicated during questioning that she had related Juror No. 1‟s statement to several individuals, including her husband and two supervising officers, all of whom testified at the hearing when it resumed the following day. Sergeant Richard Barber testified that Deputy Baker mentioned to him she was planning to have lunch with a “Merriman juror” who said they were going to “hang him” or “fry him.” Captain Gordon Hansen testified that he overheard Deputy Baker‟s conversation with Barber and recalled hearing Baker say the juror indicated “[they] were anxious to convict [defendant] of the charges” and “looking forward to frying this guy.” Captain Hansen could not recall the precise date he overheard Deputy Baker relate the juror‟s statement to Sergeant Barber, but he believed it was midmorning on the day before the newspaper reported the guilty verdicts. The testimony of Deputy Baker‟s husband Michael, who also was a deputy sheriff, mostly echoed that of his wife but differed in one significant respect. Like Deputy Baker, he described Juror No. 1 as a family acquaintance with whom they had socialized no more than four or five times, and not a close relative. He also indicated that within the last 30 days Juror No. 1 had called their residence several times when his wife was not at home, and that she once left a message on their answering machine. Deputy Baker‟s husband testified that if his wife had told him that her brother‟s mother-in-law was a juror in the Merriman case, it likely “would have went in one ear and out the other.” He did not recall his wife telling him that Juror No. 1 said “they‟re going to fry Merriman,” but he believed that such terminology would be something he would remember. The sheriff‟s deputy who had first reported to the trial court Deputy Baker‟s communication with a juror also gave sworn testimony at the hearing, repeating his account of the casual, off-duty conversation with Deputy Baker two days

earlier in which she told him she had had lunch with a Merriman trial juror who told her “they were looking forward to frying him.” At one point during the hearing, the trial court judicially noticed the jury‟s guilt phase verdicts in the case. Specifically, the court took judicial notice that the verdicts on the murder count and special circumstance allegations were dated Tuesday, February 13, 2001, and the verdicts on all other counts and allegations were dated Friday, February 9. Juror No. 1 was the hearing‟s final witness and she was extensively questioned by the court and the attorneys, this time while under oath. After her telephone conversation with the court on the previous morning, she had been trying to recall the events in question and brought along the notes she had written in this regard, which she referred to during the hearing and later gave to the court. Some of Juror No. 1‟s testimony was consistent with that given by Deputy Baker and Baker‟s husband. For example, she indicated that, at her daughter‟s suggestion, she had called the Bakers‟ residence, and that when Deputy Baker returned her call, they chatted for three to five minutes about family matters and Deputy Baker‟s job, and made tentative plans to have lunch. A second conversation occurred when she called Deputy Baker from the courthouse on February 13, 2001, during a recess between the time the verdicts had been signed and when they were formally announced in open court. Deputy Baker informed her at that time that she was not permitted to have lunch with her, and neither of them discussed the case. Juror No. 1 confirmed that the subject of the Merriman trial arose at one point during her first telephone conversation with Deputy Baker. But her recollection of the exchange was markedly different from Baker‟s. According to Juror No. 1, Baker “said something like, „I hope you put him away,‟ ” to which Juror No. 1 replied, “He will be put away” or “He will be.” As Juror No. 1

explained at the hearing, “it was a capital case and [defendant] was either gonna spend his life in prison or [get] the death penalty.” Juror No. 1 repeatedly testified she was unsure when the first conversation took place but believed it was before, rather than during deliberations. When the prosecutor pointed out that Juror No. 1‟s response to Deputy Baker‟s comment suggested that defendant already would have been convicted of something, Juror No. 1 explained that the reason for her remark was that the evidence was so overwhelming. She further explained that her response was an expression of her own opinion, no one else‟s, and that she did not discuss the conversation with anyone else, including any of her fellow jurors. Referencing Juror No. 1‟s statement regarding the overwhelming evidence of guilt, defense counsel observed that it sounded as though she had made up her mind prior to deliberations. Juror No. 1 replied, “[t]hat probably is true.” She then explained, however, that deliberations were conducted “very conscientiously” and “everything that was deliberated upon was . . . judged by evidence.” Juror No. 1 did not recall saying, “We‟re gonna fry him,” even jokingly, and she agreed with the prosecutor that those were words she normally would not use. She acknowledged it was possible she did so, however. When the court resumed questioning, it focused initially on whether there was any comment or conversations either before or during deliberations with regard to penalty. Juror No. 1 did not recall any. The court then further probed Juror No. 1‟s affirmative response to defense counsel‟s suggestion that she probably had made up her mind before deliberations because the evidence at trial was overwhelming. When the court asked Juror No. 1 whether she went into deliberations with an open mind and considered everything the other jurors had to say, she indicated that she did. Highlighting the apparent conflict between those responses, the court asked Juror No. 1 to explain.

With regard to the substance of the conversation between Juror No. 1 and Deputy Baker, the court found that Deputy Baker said something to the effect that she hoped the jury would put defendant away. Juror No. 1 responded that defendant “would be put away one way or the other.” By this, Juror No. 1 was contemplating only two possible penalties, life without parole or death. The court found it “highly likely” that Juror No. 1 added some sort of statement to the effect that she expected death would be imposed, either using the word “fry” or possibly assenting to Deputy Baker‟s use of the word. The court was of the view that it could not make a definitive finding in that regard. In either case, the court found, Juror No. 1‟s remark was an “ „off-the-cuff‟ comment in response to a provocative statement by Baker.” The court further found that Juror No. 1‟s “prediction” regarding penalty was not the result of improper discussion of penalty by some or all of the jurors, and that Juror No. 1 did not interject into the conversation with Deputy Baker any issue or information related to defendant‟s case or commit any other improprieties. As for Juror No. 1‟s state of mind at the time of deliberations, the court credited Juror No. 1‟s testimony and found that she remained open-minded and able to vote either way on the murder count and special circumstance allegations. Noting the numerous charges of which defense counsel conceded defendant‟s guilt during closing argument, the court found the jury would have begun deliberating on the murder count on Friday, February 9, before the conversation between Juror No. 1 and Deputy Baker occurred. Based upon its factual findings, the court saw several areas of possible misconduct and addressed each in turn. First, the court found Juror No. 1‟s failure to mention Deputy Baker in her juror questionnaire did not amount to misconduct. In the court‟s view, the omission was inadvertent and understandable in light of the distant nature of the relationship and their limited contact. The court found it

2. Discussion Defendant claims that Juror No. 1 committed prejudicial misconduct in two separate, but interrelated ways, first, by failing to mention in her juror questionnaire or during voir dire questioning her relationship with Deputy Baker and second, by communicating with Deputy Baker about the case. Defendant argues that the misconduct was prejudicial because, he contends, Juror No. 1 had made up her mind regarding defendant‟s guilt prior to deliberations and therefore was actually biased against him. The judgment must be reversed, he asserts, because Juror No. 1‟s presence on the jury deprived him of his state and federal constitutional rights to an unbiased jury, fair trial, effective representation of counsel, and due process of law. The legal principles that guide our consideration of defendant‟s claim of prejudicial juror misconduct are well established. A criminal defendant has a constitutional right to trial by an impartial and unbiased jury. (U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16; In re Hitchings (1993) 6 Cal.4th 97, 110.) A deprivation of that right occurs even if only one juror is biased. (People v. Nesler (1997) 16 Cal.4th 561, 578 (lead opn. of George, C.J.).) A juror‟s misconduct or involuntary exposure to certain events or materials other than what is presented at trial generally raises a rebuttable presumption that the defendant was prejudiced and may establish juror bias. (In re Hamilton (1999) 20 Cal.4th 273, 295-296.) As relevant here, it is misconduct, and therefore presumptively prejudicial, for a juror to conceal relevant facts during the jury selection process (In re Hitchings, supra, 6 Cal.4th at p. 111), or to discuss the case with a nonjuror during trial (In re Hamilton, supra, at p. 295). A nonjuror‟s unauthorized communication with a juror during trial that concerns the matter pending before the jury likewise raises a presumption of prejudice. (In re Price (2011) 51 Cal.4th 547, 560; In re Hamilton, supra, at pp. 295, 305-306.)

Deputy Sheriff Kathleen Baker, however, Juror No. 1 readily indicated that the officer was her daughter‟s sister-in-law. During the hearing on possible juror misconduct, Deputy Baker and her husband both testified that their contact with Juror No. 1 had been infrequent, possibly four or five times in as many years, and that they were not close to her. Deputy Baker‟s husband testified further that when Juror No. 1 called the house the first time, she introduced herself to him and reminded him who she was. Based on this evidence, the trial court found that Juror No. 1 had infrequent contacts and only a distant relationship with Deputy Baker, and concluded that Juror No. 1‟s failure to mention Deputy Baker in her questionnaire and during voir dire questioning was an inadvertent omission that did not amount to misconduct. Defendant insists the trial court mischaracterized the relationship between Juror No. 1 and Deputy Baker, arguing that they were instead well-acquainted relatives. We reject defendant‟s assertion. As recounted above, substantial evidence supports the trial court‟s finding that the relationship between Juror No. 1 and Deputy Baker was distant. (People v. Schmeck, supra, 37 Cal.4th at p. 294.) Indeed, there is some question that Juror No. 1 and Deputy Baker could be considered “relatives” at all. Deputy Baker was the sister-in-law of Juror No. 1‟s daughter. Although Deputy Baker certainly was a relative of Juror No. 1‟s daughter and son-in-law, it is not clear what the nature of her familial relationship was, if any, to Juror No. 1. (Cf. People v. Tuggles (2009) 179 Cal.App.4th 339, 373 [juror did not improperly conceal during voir dire her acquaintance with a man under investigation for rape whom she barely knew by not mentioning him in response to the court‟s question whether a “close friend” had been accused of any offense]; People v. Duran (1996) 50 Cal.App.4th 103, 107, 114-115 [juror‟s failure during jury selection to identify a certain individual as a person “close” to

her who had been the victim of a violent crime did not amount to misconduct because there was no evidence establishing her relationship with him was anything more than casual].) But even were we to conclude that Juror No. 1 should have included Deputy Baker in her list of relatives in law enforcement, reversal is not warranted. We have made clear that “an honest mistake on voir dire cannot disturb a judgment in the absence of proof that the juror‟s wrong or incomplete answer hid the juror‟s actual bias.” (In re Hamilton, supra, 20 Cal.4th at p. 300.) The trial court concluded that Juror No. 1‟s failure to mention Deputy Baker in her questionnaire and during voir dire questioning was an inadvertent omission. Based on our own review of the record, we reach a similar conclusion that Juror No. 1‟s failure to report that relationship during jury selection was, at most, an inadvertent omission and not a deliberate attempt to conceal bias. Juror No. 1 testified that she learned from her daughter that Deputy Baker worked near the courthouse and that, at her daughter‟s suggestion, she called Deputy Baker to set up a lunch date. Such testimony, when coupled with the court‟s finding of a mere distant relationship between Juror No. 1 and Deputy Baker, supports the inference that Deputy Baker was not someone who would have come to mind when Juror No. 1 was responding to the questionnaire item regarding relatives and close friends in law enforcement. Notably, neither the court nor the parties asked Juror No. 1 any questions on that subject or made any statements during voir dire questioning that might have jogged her memory or clarified for her the types of relationships that would be of interest to the parties in their evaluation of prospective jurors. When Juror No. 1 was asked by the court in their post-guilt-phase telephone conversation whether she was acquainted with Deputy Baker, she did not hesitate to report that she was. The record as a whole strongly supports the conclusion that Juror No. 1‟s failure to mention Deputy Baker, if a mistake, was honestly made.

responded to Deputy Baker‟s comment by saying that defendant “would be put away one way or the other,” and the court found it “highly likely” she added that she expected a death verdict, either using the word “fry” herself or by assenting to Deputy Baker‟s use of that word. As previously mentioned, any unauthorized communication between a juror and a nonjuror regarding the matter pending before the jury is misconduct and presumptively prejudicial. (In re Hamilton, supra, 20 Cal.4th at p. 295.) In the present case, the communication between Juror No. 1 and Deputy Baker was not a trivial violation of the court‟s directive not to discuss the case with anyone. (Cf. People v. Stewart, supra, 33 Cal.4th at p. 510 [a juror‟s technical violation of the court‟s admonition not to discuss the case with nonjurors was “ „trifling‟ misconduct” that could not have prejudiced the defendant].) Rather, it amounted to serious misconduct. (See People v. Pierce (1979) 24 Cal.3d 199, 207 [juror who conversed midtrial with his police officer neighbor regarding shortcomings in the prosecution‟s case committed serious misconduct].) Having determined that serious misconduct occurred, we examine whether the presumption of prejudice arising from that misconduct has been rebutted. Based upon our review of the nature of the misconduct and its surrounding circumstances, and taking into account the court‟s credibility determinations and factual findings supported by substantial evidence, we conclude that the presumption of prejudice has been rebutted because there is no substantial likelihood that Juror No. 1, or any other juror, was actually biased against defendant, as we explain below. (In re Price, supra, 51 Cal.4th at p. 560.) Juror No. 1‟s telephone call to Deputy Baker was prompted, not by a desire to discuss the case, but rather to make arrangements for a lunchtime get-together suggested by her daughter. During that conversation, Juror No. 1 spoke generally about her positive experience as a juror, but not about the case specifically. As the

trial court found, it was Deputy Baker‟s unsolicited comment to the effect that she hoped the jury would “put defendant away” that prompted Juror No. 1‟s “off-the- cuff” response predicting that death would be imposed, and there was no further discussion regarding the pending case. The nature and surrounding circumstances of the misconduct do not suggest Juror No. 1 was actually biased against defendant. The misconduct in this matter is distinguishable in significant respects from the misconduct at issue in cases in which we have concluded that the presumption of prejudice was not rebutted. In In re Hitchings, supra, 6 Cal.4th 97, for example, the juror engaged in repeated conversations with a friend regarding the defendant‟s trial while it was pending and on one occasion spoke directly about the case, heatedly expressing her view that the defendant deserved to be “horribly mutilated for his crimes.” (Id. at p. 120, see id. at pp. 106-107, 120-122.) Nor is Juror No. 1‟s misconduct comparable to that at issue in People v. Pierce, supra, 24 Cal.3d 199. In Pierce, after the prosecution had rested, a juror initiated a conversation with his police officer neighbor to inquire about the fingerprinting process. The information obtained by the juror allayed his concerns regarding the sufficiency of the prosecution‟s evidence in that no fingerprints had been lifted from the murder weapon. (Id. at pp. 206, 208-209.) Our conclusion that the record shows no substantial likelihood that Juror No. 1, or any other juror, was actually biased against defendant is further bolstered by the court‟s findings, supported by substantial evidence, that Juror No. 1 did not share with her fellow jurors the fact or substance of her conversation with Deputy Baker, and that the jurors did not discuss penalty during the guilt phase. (See People v. Danks (2004) 32 Cal.4th 269, 307, 310.) Moreover, there is no evidence suggesting that, but for Juror No. 1‟s conversation with Deputy Baker, she would have held out for acquittal on the murder count. To the contrary, Juror No. 1

testified at the hearing that she found the evidence of defendant‟s guilt on that charge “overwhelming.” As the trial court observed, the speed with which deliberations were carried out strongly suggested that the other jurors shared that view. (Cf. People v. Pierce, supra, 24 Cal.3d at p. 208 [rejecting as “sheer speculation” the People‟s argument that the errant juror necessarily would have voted to convict even had he not spoken with his police officer neighbor].) Defendant argues that Juror No. 1‟s actual bias was demonstrated by evidence that she made up her mind regarding defendant‟s guilt prior to deliberations. He acknowledges the court‟s finding that Juror No. 1 remained open-minded and capable of voting either way on the murder count after her conversation with Deputy Baker. According to defendant, however, that determination was “fundamentally flawed” because Juror No. 1 was neither forthright nor honest, and clearly testified that she had already made up her mind. His argument fails because, in essence, he is asking this court to reweigh the trial court‟s credibility determinations, a task we do not undertake when those determinations are supported by substantial evidence. (See People v. Schmeck, supra, 37 Cal.4th at p. 294.) As we explain, the court‟s finding that Juror No. 1 maintained an open mind regarding defendant‟s guilt is supported by substantial evidence, and that finding further supports our conclusion that the presumption of prejudice arising from the juror‟s misconduct was adequately rebutted. Admittedly, there is some evidence in the record suggesting that Juror No. 1 had made up her mind based on the evidence prior to deliberations. For example, when defense counsel remarked to Juror No. 1 at the hearing that it sounded as though she had done so, Juror No. 1 responded that it “probably [was] true.” And in the hearing transcript pages cited by defendant to support his argument, Juror No. 1 did indicate that she went into deliberations with the impression that the evidence was strong. When then asked by the court whether she could have been

explained, “[t]he reality that a juror may hold an opinion at the outset of deliberations is . . . reflective of human nature. It is certainly not unheard of that a foreperson may actually take a vote as deliberations begin to acquire an early sense of how jurors are leaning. We cannot reasonably expect a juror to enter deliberations as a tabula rasa, only allowed to form ideas as conversations continue. What we can, and do, require is that each juror maintain an open mind, consider all the evidence, and subject any preliminary opinion to rational and collegial scrutiny before coming to a final determination.” (People v. Allen and Johnson (2011) 53 Cal.4th 60, 75.) We concluded above that there is substantial evidence in the record supporting the court‟s finding that Juror No. 1 maintained an open mind and, with her fellow jurors, considered all the evidence before casting her vote on the murder count. That she held an opinion regarding the strength of the prosecution‟s case before deliberating does not undermine the court‟s finding. We observe finally that the evidence of prejudgment in the present matter is far different from, and significantly less than, the circumstances that required reversal of the judgment for juror misconduct in People v. Weatherton. The juror in that case repeatedly discussed the case with fellow jurors prior to deliberations, conveying to them his belief that the defendant was guilty, and advocating for a verdict of guilt, long before the prosecution had finished its presentation of evidence and the defense had an opportunity to call that evidence into question. Indeed, the record showed that as early as the first day of trial, the errant juror indicated to some jurors that “there was no denying” the veracity of the prosecution‟s star witness and that he believed her testimony was dispositive of guilt. Both before and during deliberations, the juror expressed the view that the defendant deserved the death penalty, further suggesting that he had made up his mind regarding defendant‟s guilt. (People v. Weatherton (2014) 59 Cal.4th 589,

Kipp (2011) 26 Cal.4th 1100, 1135.) Defendant cites no authority for his contention that the trial court was obligated, on its own initiative, to reassess the balance of prejudice and probative value of evidence adduced at the guilt phase before placing it before the jury for its consideration during the penalty proceedings. In any event, defendant‟s claim of error fails on the merits. Defendant is correct that a prosecutor is not permitted to present aggravating evidence that is irrelevant to the factors in aggravation listed in section 190.3. (People v. Boyd (1985) 38 Cal.3d 762, 772-776.) He also correctly observes, more specifically, that “[e]vidence of a defendant‟s background, character, or conduct that is not probative of any specific sentencing factor is irrelevant to the prosecution‟s case in aggravation and therefore inadmissible.” (People v. Nelson (2011) 51 Cal.4th 198, 222; People v. Boyd, supra, at pp. 773-774.) Under section 190.3, aggravating factors include the circumstances of the capital offense, other violent criminal conduct by the defendant, and the defendant‟s prior felony convictions. (§ 190.3, factors (a)-(c).) These three factors, and the defendant‟s age at the time of the crime (§ 190.3, factor (i)), are the only factors that may be considered in aggravation of penalty. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 108-109, but see id. at p. 109 [evidence presented by the prosecution to rebut defense evidence in mitigation need not relate to an aggravating factor].) Defendant‟s argument that the jurors at the penalty phase were exposed to inadmissible evidence of his bad character unrelated to the aggravating factors mostly reprises his claims of error regarding (1) the joinder of the murder charge with all other counts and (2) the admission of evidence of his uncharged crimes. As we have explained, ante, in parts II.A. and II.C.1., the joinder of the counts in question and admission of uncharged crimes evidence did not violate state law or deprive defendant of any state or federal constitutional rights. Because the counts were properly joined and the challenged evidence properly admitted at the guilt

phase, evidence supporting the uncharged crimes involving violence and the felony offenses of which defendant was convicted was relevant to one or more of the statutory factors in aggravation and properly could be considered by the jury during the penalty phase. (See People v. Blair (2005) 36 Cal.4th 686, 749 [“ „circumstances of the crime‟ ” includes that which surrounds it “ „ “materially, morally, or logically” ‟ ”]; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1013-1014 [evidence of circumstances surrounding the conduct that amounts to a statutory factor in aggravation is admissible to give context to the incident in question, even when such circumstances include activity that, standing alone, would not be admissible].) We note that, in an apparent abundance of caution, the trial court expressly instructed the jury it could not consider the vandalism and drug offense convictions associated with the incident that culminated in defendant‟s arrest. Defendant acknowledges that the court also expressly instructed the jury that it could not consider evidence of defendant‟s “lifestyle or background” as an aggravating factor. He argues, however, that the instruction was so vague as to provide no practical guidance for the jury to be able to distinguish between his “lifestyle and background” and the circumstances of the crime. Defendant is barred from challenging the adequacy of the court‟s instruction because the defense asked that it be given. Under the invited error doctrine, a defendant cannot complain that the court erred in giving an instruction that he requested. (People v. DeHoyos (2013) 57 Cal.4th 79, 138.) The invited error doctrine applies when the defense has made a “ „ “ „conscious and deliberate tactical choice‟ ” ‟ ” in asking for the instruction in question. (People v. Harris (2008) 43 Cal.4th 1269, 1293.) The record supports the conclusion that counsel made such a choice in this case. During discussion regarding penalty phase instructions, defense counsel pointed out that the jurors would be told they could consider as aggravating factors defendant‟s

convictions, including the gang finding. But he expressed concern that jurors might not realize it would be improper to also consider as aggravating evidence defendant‟s membership in the SHD gang, or certain aspects of his lifestyle such as getting tattoos, drinking beer while underage, and going to punk rock concerts. Indeed, when the court suggested that the word “lifestyle” might not be appropriate in this context, defense counsel insisted that it was. Defendant may not now complain about the inadequacy of the instruction. Defendant argues finally that permitting the jury to consider at the penalty phase the evidence regarding his membership in a skinhead gang, and the beliefs espoused by that gang, contravened his First Amendment rights to freedom of association and speech. For support, he relies upon the United States Supreme Court‟s decision in Dawson v. Delaware (1992) 503 U.S. 159, but that decision does not assist him. In Dawson, the prosecution introduced a stipulation at the penalty phase that the defendant belonged to a “ „white racist prison gang‟ ” called the Aryan Brotherhood. (Id. at p. 165.) The high court held the admission of the Aryan Brotherhood stipulation violated the defendant‟s First Amendment rights. As the court explained, evidence of the gang‟s racist beliefs was not linked to the murder, nor was it relevant to help prove any other aggravating circumstance or to rebut any mitigating evidence. Rather, it showed only the defendant‟s “abstract beliefs.” (Id. at p. 167.) In the present case, by contrast, evidence of defendant‟s membership in the SHD gang, and the gang‟s shared antisocial beliefs, proved more than defendant‟s association and abstract beliefs. Such evidence was highly relevant to the circumstances surrounding the capital offense (§ 190.3, factor (a)), as previously discussed ante, in part II.A.4. For example, testimony regarding defendant‟s leadership role in the SHD gang and the gang‟s code of silence helped explain why the investigation into Katrina‟s disappearance languished for so many years.

“ „moral and normative, not factual‟ ”].) Contrary to defendant‟s argument, the high court‟s decisions interpreting the Sixth Amendment, from Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536 U.S. 584 through Cunningham v. California (2007) 549 U.S. 270, do not compel a different conclusion. (People v. Williams (2013) 58 Cal.4th 197, 295; People v. Whalen, supra, at pp. 90-91.) As we have explained, determining the balance of evidence of aggravation and mitigation and the appropriate penalty do not entail the finding of facts but rather “a single fundamentally normative assessment [citations] that is outside the scope of Ring and Apprendi.” (People v. Griffin, supra, 33 Cal.4th at p. 595; People v. Prieto (2003) 30 Cal.4th 226, 262-263.) California‟s automatic appeals procedure does not violate constitutional guarantees by failing to provide for intercase proportionality review. (People v. Whalen, supra, 56 Cal.4th at p. 91; People v. Myles, supra, 53 Cal.4th at p. 1224.) Nor does the jury‟s reliance on evidence of defendant‟s unadjudicated criminal activity as a factor in aggravation, in the absence of unanimous agreement that such activity was proved beyond a reasonable doubt, violate due process or render a death sentence unreliable. (People v. Thomas (2012) 53 Cal.4th 771, 836; People v. Martinez, supra, 47 Cal.4th 399, 455.) There is no constitutional requirement that the jury be instructed regarding which of the statutory factors in section 190.3 are aggravating, which are mitigating, and which could be either aggravating or mitigating. (People v. Edwards (2013) 57 Cal.4th 658, 766 [the statutory instruction directing “ „the jury to consider “whether or not” ‟ ” certain mitigating factors exist did not invite the jury to aggravate defendant‟s sentence on “ „ “ „the basis of nonexistent or irrational . . . factors‟ ” ‟ ”].) The use of the adjectives “extreme” and “substantial” to describe mitigating factors involving “mental or emotional disturbance” and “duress or domination” (§ 190.3, factors (d), (g)), does not erect

People v. Merriman

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