People v. Hoyt ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE
Plaintiff and Respondent,
v.
RYAN JAMES HOYT,
Defendant and Appellant.
S113653
Santa Barbara County Superior Court
1014465
__________________________________________________________
January 30, 2020
Justice Kruger authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu, Cuéllar,
and Groban concurred.
___________________________________________________________
.
PEOPLE v. HOYT
S113653
Opinion of the Court by Kruger, J.
Defendant Ryan James Hoyt was convicted of the kidnap
and murder of Nicholas Markowitz and sentenced to death. We
affirm the judgment.
I. BACKGROUND
On October 30, 2000, defendant was charged by grand jury
indictment with kidnapping 15-year-old Nicholas Markowitz
(who was known as Nick) for ransom or extortion and for
murdering him, as well as a personal firearm use enhancement.
(Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)(B), 209, subd.
(a).) Codefendants Jesse James Hollywood, Jesse Rugge,
Graham Pressley, and William Skidmore were charged with the
same crimes, but the cases were severed and defendant stood
trial first. A jury convicted defendant of one count of first degree
murder in violation of Penal Code section 187 and one count of
kidnapping committed with the personal use of a firearm in
violation of Penal Code sections 207 and 12022.5, respectively.
The jury also found true the special circumstance allegation that
the murder was committed during the course of a kidnapping
under Penal Code section 190.2, subdivision (a)(17)(B). The jury
returned a verdict of death. This appeal is automatic. (Id.,
§ 1239, subd. (b).)
PEOPLE v. HOYT
Opinion of the Court by Kruger, J.
A. Guilt Phase Prosecution Case
The events that led to Nick’s kidnap and murder stemmed
from a feud between Jesse James Hollywood and Nick’s half-
brother, Ben, over a drug debt. Ben was supposed to have sold
illegal drugs for Hollywood but failed to do so. As a result, Ben
owed Hollywood $1,200, and their relationship had soured over
this debt. On one occasion, Hollywood retaliated against Ben by
running up a tab in the restaurant where Ben’s girlfriend
worked and leaving a note saying Ben could pay the bill from
the debt he owed Hollywood. For his part, Ben took revenge on
Hollywood by telling Hollywood’s insurance company that
Hollywood had falsely reported a vehicle stolen. Ben later broke
windows in Hollywood’s home. Although there was conflicting
testimony about precisely when the windows were broken, one
prosecution witness testified the event occurred on August 4,
2000. The next day, Hollywood would inform others that he
needed to move because his windows had been “busted out” and
people knew where he lived. The day after that, Hollywood
arranged to have Nick kidnapped. A few days later, worried
about the serious penal consequences if that crime was
discovered, Hollywood decided to eliminate Nick.
Hollywood enlisted defendant’s help. Defendant, like Ben,
sold drugs for Hollywood, and he also owed Hollywood money.
Mutual friends described defendant as the “low man on the
totem pole” in their circle. To pay for the drugs he purchased
from Hollywood for resale, defendant performed—and was often
teased for doing—menial, odd jobs for Hollywood, including yard
work, pet care, and housework. According to Brian Affronti, a
friend of both defendant and Hollywood, defendant did whatever
Hollywood asked of him, without complaint. Defendant agreed
to carry out the killing, along with two accomplices, in exchange
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for financial compensation including the forgiveness of his debt
to Hollywood.
Timeline
1. August 5, 2000
The events leading up to the crimes began on Saturday,
August 5, 2000, when Casey Sheehan, who also sold marijuana
for Hollywood, delivered a van to Hollywood’s West Hills home.1
Hollywood had told Sheehan that Hollywood needed to move
because people knew where he lived. When Sheehan arrived at
Hollywood’s home, defendant, Skidmore, and one other friend
were there, drinking beer and smoking marijuana. Some hours
later, Sheehan, Hollywood, and Skidmore met again at
Sheehan’s apartment, where Hollywood and Skidmore talked
about driving to Santa Barbara for a local party known as
Fiesta.
That same evening, Nick returned home a half hour before
his midnight curfew. His parents noticed he looked “glazed,” his
speech was slurred, and he had a bulge in his pocket. When they
confronted him, he ran out of the house and did not return for
an hour. When he returned, he agreed to speak with his parents
in the morning. Nick’s parents worried that he had been getting
involved with drugs, in part because Ben was a drug user.
2. August 6, 2000
On the morning of Sunday, August 6, two passersby saw a
dark-haired teenager being beaten by four other similar-aged
boys in West Hills. Both the assailants and their victim
appeared to be Caucasian. When the assailants were done
1
As the jury was informed, Sheehan testified under a grant
of immunity, which would be void if he failed to be truthful.
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hitting and kicking the dark-haired boy, they threw him into a
white van.
Affronti testified that at about 2:00 that afternoon,
Hollywood, Skidmore, and their friend Jesse Rugge picked him
up in a white van to drive to Santa Barbara for Fiesta. When
Affronti entered the van, he saw Nick in the back. Affronti knew
Ben, but he did not initially realize Nick was Ben’s younger
brother. Affronti did not know anything was out of the ordinary
until Hollywood told Nick “that his brother was going to pay up
his money” and “for Nick not to run or anything like that, not to
try and do anything irrational.”
When the men arrived in Santa Barbara, they stopped at
an apartment belonging to Richard Hoeflinger, a longtime
friend of Rugge’s. Hollywood asked Affronti to park the van and
directed Rugge to make calls from Affronti’s cell phone to
unknown recipients. Telephone records also showed that two
phone calls were placed that afternoon from Hoeflinger’s home
to defendant’s home phone number. Hollywood and Skidmore
then went into the apartment with Nick. When Affronti entered
after parking the van, he saw Nick in a bedroom with his hands
duct-taped in front of him and his shins also taped. Hollywood
and Rugge then left for a time; when Hollywood returned,
Affronti and Skidmore left in the van.
Hoeflinger, the apartment’s primary tenant, had not seen
his friend Rugge for a while before Rugge stopped by on August
6. Rugge asked if he could come in and Hoeflinger readily
agreed, but Hoeflinger was surprised when a group—which
included Nick—came in with Rugge. Emilio Jelez, Jr.,
Hoeflinger’s roommate at the time, and their friend Gabriel
Ibarra were also at the house when Rugge and others arrived
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with Nick. Jelez and Ibarra saw Nick sitting in a bedroom of
the house with his wrists and ankles bound with duct tape.
Ibarra had never met Hollywood, but testified he did not call the
police or tell anyone what he had seen because he was afraid of
Hollywood after Hollywood walked up to Ibarra, intimated he
had a gun, “and pretty much threatened [Ibarra], told [him] that
[he] better keep [his] F’ing mouth shut.”
At some point that evening, Hoeflinger walked into his
bedroom and saw Rugge and Skidmore removing duct tape from
Nick’s wrists. Skidmore assured Hoeflinger that everything was
“ ‘cool’ ” and they were “ ‘just talking’ ” to Nick. Reassured,
Hoeflinger left his house less than a half hour later to attend a
barbecue. Hoeflinger returned home at dusk to find Nick and
Rugge drinking alcohol together in his living room with Nick
still unbound. Nick and Rugge then left Hoeflinger’s home
together a few hours later.
In the meantime, Affronti and Skidmore drove back to Los
Angeles in the white van. Affronti realized en route that he had
forgotten his cell phone and returned to Hoeflinger’s home to
retrieve it; there he saw Nick and Hollywood still spending time
together. Back in Los Angeles, Skidmore dropped Affronti off at
home and continued to Hollywood’s house, where he met
defendant. Skidmore did not mention Nick. Defendant and
Skidmore returned the van to its owner. Defendant and
Skidmore walked back to Hollywood’s house, where defendant
left Skidmore.
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Opinion of the Court by Kruger, J.
3. August 7, 2000
a. Nick Spends the Day in Santa
Barbara
On the morning of August 7, Natasha Adams-Young, then
age 17, met Nick at Rugge’s house in Santa Barbara. Adams-
Young had been spending time with Rugge that summer. After
meeting Nick, Adams-Young spoke with Pressley, a mutual
friend of hers and Rugge’s. Pressley told her “that they, quote
unquote, kidnapped this kid [Nick] and brought him back up
here to Jesse Rugge’s house.” The group then caravanned to
Adams-Young’s house. Adams-Young, feeling concerned for
Nick’s welfare, spoke with Nick, and suggested he was free to
leave. Nick declined, explaining to Adams-Young that he
planned “to stick around” “to help out his brother and that he
was fine.”
The group eventually returned to Rugge’s home.
Hollywood and his girlfriend, Michele Lasher, met up with the
group there. Then-16-year-old Kelly Carpenter, another mutual
friend of Adams-Young and Rugge, had met Hollywood the week
before and knew that Hollywood, Rugge, and Pressley were
involved with selling marijuana. Adams-Young understood that
Nick’s presence in Santa Barbara and at Rugge’s home was
related to Hollywood in some fashion.
At Rugge’s home, Nick remained in a separate bedroom
talking to Rugge. Carpenter overheard Hollywood speaking to
his girlfriend about their plans that night and also heard
Hollywood talking to others about what he would do with Nick.
Hollywood said he might tie Nick up, throw him in the backseat
of the car, and then get something to eat. Although it was said
in a joking manner, the comment made Carpenter
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uncomfortable. Carpenter and Adams-Young left Rugge’s house
shortly thereafter.
b. Hollywood Confesses the
Kidnapping to Sheehan
Sheehan testified that Hollywood and Lasher socialized at
Sheehan’s apartment later on the night of August 7, drinking
alcohol and smoking marijuana with him. Sheehan conceded he
was “probably” “pretty wasted” and did not recall whether
Hollywood and Lasher spent the night. Sheehan did recall
Hollywood telling him he had taken Nick to Santa Barbara on
Sunday, August 6. Hollywood, Rugge, Affronti, and Skidmore
“pulled over” and “picked up” or “grabbed” Nick while he was
walking down the street. Sheehan did not believe anyone other
than those four men were involved in Nick’s capture. Hollywood
told Sheehan that Nick was still staying with Rugge in Santa
Barbara on August 7.
4. August 8, 2000
Nick’s parents reported their son missing on Tuesday
morning, August 8, after finally reaching Ben and realizing Nick
was not with him.
a. Nick’s Time in Santa Barbara
Adams-Young testified that Nick was still at Rugge’s
house when she returned there the morning of August 8.
Adams-Young was concerned with Nick’s continued presence in
Santa Barbara when “he wasn’t supposed to be” there and
discussed the issue with Pressley and Carpenter. Pressley told
Adams-Young he was not sure what he planned to do “but that
they weren’t going to hurt [Nick] in any way and that they were
just waiting to get a call from Jesse Hollywood.” Pressley also
told Adams-Young that “Hollywood had called Jesse Rugge and
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offered him money to kill Nick Markowitz.” Adams-Young
recalled “being shocked and appalled,” and Pressley assured her
he had no plans to kill Nick but also confessed he was not sure
what should be done with Nick. Pressley believed they were all
in danger.
Adams-Young returned to Rugge’s home and confronted
him. Rugge told Adams-Young he was not sure what he should
do, but “knew he was going to take Nick home” and planned to
provide him with a bus ticket, though he feared Nick would tell
someone about the kidnap when he returned home. Rugge
expressed concern about going to jail. Nick, who was present
during this conversation, assured Rugge he would not tell
anyone when he got home.
Shortly thereafter, Rugge suggested the group go to a
motel for the evening. Pressley’s mother drove Pressley,
Carpenter, Rugge, and Nick to the Lemon Tree Inn, where the
group stayed from 7:00 p.m. until 11:30 p.m. Rugge selected and
paid for the motel. Once there, they were joined by a friend,
Nathan Appleton, and Adams-Young met up with the group
later. The mood was celebratory, as Adams-Young and
Carpenter believed Nick would be going home that evening.
Nick spoke happily about what he would do once he returned
home. Around 11:00 or 11:30 p.m., Rugge asked Adams-Young,
Appleton, and Carpenter to leave for the night.
b. Hollywood’s Activities on the
Evening of August 8, 2000
On August 8, Hollywood visited the home of Stephen
Hogg, a criminal defense attorney who had a professional
relationship with both Hollywood and his father, John.
Hollywood explained to Hogg that acquaintances had picked up
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Opinion of the Court by Kruger, J.
the brother of the man who had damaged his home and had
taken the brother to Santa Barbara. Hollywood sought Hogg’s
advice. When Hogg suggested Hollywood go to the police,
Hollywood said he could not do that. Hogg described to
Hollywood the penalties for kidnapping as eight years, or—if
ransom was sought—life. Hollywood made clear that this was
something other people had done and that he was personally
uninvolved. Hollywood became agitated and left Hogg’s home
within five minutes of Hogg’s explaining the potential penalties
for kidnapping. Hogg tried to page Hollywood several times
after Hollywood left, but Hollywood did not respond.
On the evening of August 8, Hollywood and Lasher went
to Sheehan’s apartment to borrow Sheehan’s car. Hollywood
ran an errand in the car while Lasher stayed at the apartment.
Hollywood then returned without the car, and all three went out
to dinner to celebrate Lasher’s birthday.
5. August 9, 2000–August 17, 2000
a. Hollywood’s Father Rushes Home
Hollywood’s father, John, testified that on the evening of
August 8, he contacted Hogg and learned that Hollywood had “a
problem” or was “in trouble.” John was on vacation in Big Sur
but left for home after learning his son might be in trouble. John
tried unsuccessfully to reach his son numerous times on his way
home. John finally reached Hollywood via Lasher, and
Hollywood directed him to Lasher’s home. John arrived at
Lasher’s Calabasas home at 2:00 a.m. on the morning of August
9 to find his son looking “nervous and rattled.” John understood
that Hollywood believed his life was in some danger, that
Hollywood and Ben had been in a feud for some time, and that
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Opinion of the Court by Kruger, J.
Hollywood’s agitation was related to the kidnapping of Ben’s
younger brother.
b. Hollywood’s Father Contacts
Defendant
Later that day, John paged defendant and asked to meet
at a park. John asked defendant what was “ ‘going on with this
situation, you know, this kid’ ” and suggested they go “ ‘find out
where he is,’ ” “ ‘go get him and take him home.’ ” Defendant
told him that “he didn’t have control of the situation. And he,
you know he was trying to find out, but he wasn’t having any
luck.” John told defendant that when he asked his son where
Nick was and who was holding him, Hollywood had not provided
those details and instead told John to call defendant. Defendant
told John he did not know those details either, but “would see
what he could find out.” John and defendant agreed this was “a
bad situation,” and defendant indicated that “he wasn’t involved
in this thing from the start, and he was kind of irritated that he
was even being dragged into it.”
c. Sheehan and Defendant Spend
Time Together
When Sheehan came home from work on the afternoon of
August 9, he noticed the car he had loaned to Hollywood the day
before had been returned. That evening, Hollywood, Affronti,
Skidmore, Lasher, and defendant were at Sheehan’s home.
Defendant told Sheehan that “a problem was taken care of.”
Sheehan understood this to refer to Nick. When Sheehan asked
defendant to elaborate, defendant initially said it was “best that
[he] left things unsaid,” but eventually confessed that “Nick had
been killed.”
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Opinion of the Court by Kruger, J.
After this conversation, Sheehan drove defendant to a
store where defendant purchased shirts, pants, and shoes
totaling a “couple hundred dollars,” paying in cash. Sheehan did
not believe defendant was working at the time, and he had
known that defendant was in debt to Hollywood. Defendant
assured Sheehan that the debt to Hollywood “was taken care of.”
In fact, Hollywood had given defendant “three or four hundred
bucks” the day before his birthday and told defendant, “[W]e’re
straight. No more debt.” Defendant spent the night at
Sheehan’s house that evening and celebrated his 21st birthday
the next day. After enjoying a party with between 20 and 30
guests at Sheehan’s home, defendant again spent the night
there.
A few days later, Sheehan and defendant again discussed
Nick’s killing. Defendant told Sheehan they killed Nick
somewhere in Santa Barbara. Defendant described picking
Nick up from a motel and taking him to a site where they “shot
him and put him in a ditch,” and covered him with a bush.
Sheehan and defendant were together when defendant was
arrested; Sheehan was also arrested and released that same
evening.
d. Nick’s Body Is Discovered
On August 12, 2000, a group of hikers, including witness
Darla Gacek, were hiking in the Los Padres National Forest in
Santa Barbara County. They were passing through an area
known as Lizard’s Mouth, which is situated approximately three
and one-half miles from Highway 154. The hikers heard what
they thought was a swarm of bees coming from a location
approximately one-quarter mile beyond the point where vehicles
can go no further. The group saw brush piled high, and when
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they began removing it, they realized a human might be buried
beneath it. The group of hikers left the site to find a cell phone
to call the police. They encountered a group filming nearby.
Lars Wikstrom, a film video editor, had gone to the
Lizard’s Mouth area that day to help friends film a music video.
While Wikstrom was filming there, a man pointed out an area
to him about 20 to 30 yards away. Wikstrom followed the man,
initially noting a strong odor similar to that of a dead animal by
a roadside. As the two got closer, Wikstrom could see and hear
numerous flies near the ground. Wikstrom saw fine powder on
the ground, and then noted what appeared to be Levi’s denim
jeans and part of a shirt. Because Wikstrom was unsure
whether what he saw was a person, he decided to call the police.
Wikstrom waited for the police to come, directing hikers away
from the area.
Law enforcement arrived about an hour and a half after
Wikstrom called. Detective William Michael West, one of the
first detectives at the scene, observed cut brush along the entire
trail, from the trail head at West Camino Cielo all the way to
the location of the shallow grave. Detective West testified that
“[i]t looked like somebody had cleared the trail,” both at the
gravesite and all along the trail.
Criminalist George Levine also responded to the scene.
Nick’s body was only lightly and partially covered with dirt. The
weather that day and for a few days before was warm, resulting
in significant decomposition. Law enforcement officials
removed cartridge casings and a bullet from the first few inches
of the shallow grave. After the body was removed from the site,
a TEC-9 weapon, modified to be fully automatic, was found
under the area where Nick’s feet had been resting. Nick’s mouth
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had been duct-taped. Duct tape was also wrapped around Nick’s
hands and head.2
An autopsy revealed Nick had suffered a total of nine
gunshot wounds. Several of the gunshots would have
independently been fatal, but due to the level of decomposition
the medical examiner was unable to state which of the injuries
caused Nick’s death.
e. Pressley Confesses to Digging the
Gravesite
Detective Jerry Cornell testified that he interviewed
Pressley on August 16, and Pressley admitted digging a grave
in the trail area off San Marcos Pass known as Lizard’s Mouth
in the early morning hours of August 9.
f. Defendant Confesses to the Killing
On August 16, defendant was arrested, taken to a Santa
Barbara jail, and advised of his Miranda rights.3 According to
Detective West, defendant said that he decided to speak to
detectives after seeing a television broadcast regarding the case
and speaking to his mother. After defendant informed jail
officials he wished to be interviewed, detectives met with
defendant in the sheriff headquarters in Goleta, where they
audio- and video-recorded their encounter with him. Defendant
2
Once the tape was removed at the morgue, Nick was seen
to be wearing a ring. Nick also wore a distinctive belt buckle.
The parties stipulated to the identification of the deceased at
trial.
3
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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was re-Mirandized and asked to explain why he was involved in
the crime.
Defendant told Detective West and Sergeant Ken
Reinstadler, “I’m going down. I, I just realized that.” The
detectives asked defendant to explain “how this went down,” and
defendant asked if they would “mind if I go back to my cell and
think about [it] tonight and talk to you guys tomorrow because
I know my arraignment is Monday.” Defendant expressed
concern that what he said would be repeated in court, but then
requested water and continued the conversation with the
detectives, explaining, “I had nothing to do with the
kidnapping.” Defendant asked why he was charged with that
crime.4 The detectives responded by urging defendant to tell his
story.
Defendant told them Ben owed Hollywood significant
sums of money, as did he. Defendant explained he was told he
could erase his own debt in exchange for killing someone; the
person was someone unknown to him. Defendant told detectives
4
Defendant alleges the transcript used at trial contained
two inaccuracies. After his assertion to detectives that he had
nothing to do with the kidnapping, the transcript given to jurors
indicated that there was some whispering before defendant
asked why he was charged. A later-filed corrected transcript of
the interview indicates that Reinstadler had responded to
defendant’s initial assertion that he had nothing to do with the
kidnapping by whispering, “We know that.” Defendant also
claims the transcript used at trial contained an error in an
exchange during which defendant indicated he met someone at
the Lemon Tree Inn. At trial, the transcript read, “WEST: You
met someone there? HOYT: Nick.” The corrected transcript
reads, “WEST: You met someone there? HOYT: Yeah.” These
discrepancies do not affect our evaluation of the issues in this
case.
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he drove Sheehan’s car to a motel in Santa Barbara. When
asked what happened next, defendant said, “You guys know
what happened. I think I’m going to stop there for now.” He
again requested water, then expressed concern for his family’s
well-being.
Sergeant Reinstadler reminded defendant that he had the
right to stop speaking to them at any point. Detective West
offered to let defendant “collect [his] thoughts,” and defendant
said he wished “more than anything” that he had a cigarette.
Sergeant Reinstadler reminded defendant, “You wanted to talk
to us, man.” Defendant asked whether he had been helpful, and
the detectives urged him to fill in more “piece[s] of the puzzle.”
Reinstadler asked him, “Who are you ultimately concerned
with? Who, who do you feel sorry for here?” Defendant replied,
“Not me,” continuing, “That kid I buried.” Reinstadler asked
him if he was “[w]ak[ing] up thinking about someone saying,
‘Please. Please.’ ” The detectives asked if that was what the
duct tape around the victim’s mouth was for, and defendant
replied, “Close.”
Reinstadler asked defendant if he put the duct tape on
Nick’s mouth, but defendant denied doing it. Reinstadler then
asked whether Jesse did it, and defendant said Hollywood was
not in Santa Barbara. Reinstadler clarified he meant Jesse
Rugge, not Jesse Hollywood, and told defendant that Rugge had
said that defendant placed the duct tape around Nick’s mouth.
Defendant replied, “I love this one. The only thing I did was kill
him.” Defendant added that he did not select the gravesite or
dig the grave; Pressley, whom he had not previously known,
handled both those tasks. The detectives asked defendant if he
had any moments of feeling what he was doing was wrong, and
he said he did think that, for a moment, “right before.”
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B. Defense Case
1. Defendant’s Testimony
Defendant testified on his own behalf. He acknowledged
that he was friends with, and sold drugs for, Hollywood. He was
indebted to Hollywood and did odd jobs, including yard work, to
reduce his debt.
On August 5, 2000, defendant helped Hollywood pack up
his house. Someone had broken the windows of the house, and
Hollywood had received a voicemail that Ben, who sometimes
sold marijuana for Hollywood, was the culprit. Defendant
finished cleaning up the broken glass and went to his
grandmother’s home around 10:00 p.m. that evening.
On August 8, 2000, at around 2:30 p.m., defendant went
to Hollywood’s home. He and Hollywood drove around for a
while, and Hollywood seemed excited. Hollywood asked if
defendant would like to work off the last $200 of his debt by
delivering a package to Rugge in Santa Barbara. Defendant
testified that Hollywood told him if he delivered the package, his
debt would be “clear” by his birthday a few days later.
Defendant was to drive Sheehan’s car. Defendant assumed
Hollywood was not going himself because he was celebrating his
girlfriend’s birthday. Defendant agreed, and Hollywood told
him where Rugge was staying and gave him a phone number to
reach Rugge. Defendant testified he then waited at Hollywood’s
home for about three or four hours, at which point Hollywood
picked up defendant and took him to Sheehan’s home to pick up
Sheehan’s car. Hollywood gave defendant a bag to deliver to
Rugge, and defendant testified that he did not look inside,
presuming it to contain marijuana. No one mentioned anything
about Nick to defendant.
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Defendant drove to Santa Barbara. He called Rugge from
a mini-market off the highway, and Rugge directed him to a
room at the Lemon Tree Inn. Defendant delivered the bag,
annoyed that Pressley was in the room because defendant had
asked that Rugge be alone. Rugge asked defendant to drive him
back to the San Fernando Valley in the morning, and defendant
agreed. Rugge and Pressley borrowed the car for several hours,
returning to the room about 2:30 a.m. Once they returned,
defendant and Rugge drove back toward Los Angeles.
Defendant dropped Rugge off at Rugge’s mother’s home.
Defendant then drove to his grandmother’s house, where he was
then living.
Defendant testified that he did not hear of Nick’s death
until the evening of August 12, when Skidmore told him that
“Ben’s brother had been found murdered.” Several days later,
defendant learned Skidmore had been arrested. Defendant
began calling mutual friends, including Sheehan, who told
defendant “he didn’t want [him] at his house.” Defendant did
not heed Sheehan’s request. Defendant received several pages
from a number he did not recognize, and believed police were
trying to reach him. Defendant asked Sheehan to take him to a
pay phone so he could call the police. He was arrested shortly
thereafter.
Following his arrest, he was eventually taken to Santa
Barbara, although he did not recall events with specificity. He
recalled throwing up and knew he called his mother but claimed
to have no memory of the content of the phone call. In fact,
defendant testified that he recalled nothing from the time of his
arrest on August 16 until he woke up alone in a jail cell four
days later. He did not remember his confession to detectives on
August 17.
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Defendant’s taped confession was played for the jury.
Defendant testified that none of the statements indicating he
was responsible for Nick’s death were true.
2. Dr. Kania’s Testimony
The defense proposed to call Dr. Michael Kania to testify
that defendant’s confession was false. Following an Evidence
Code section 402 hearing, the trial court ruled that Dr. Kania
could testify in response to hypothetical questions that assumed
defendant suffered from amnesia, including the characteristics
of amnesia. But the court ruled that Dr. Kania would not be
permitted to “testify as to circumstances, the things that he was
told by the defendant. The defendant can testify to those
things.”
Following the trial court’s ruling, Dr. Kania testified that
he believed defendant’s claim of amnesia concerning his
confession was credible. Defendant told Dr. Kania the only
thing he recalled from the interrogation was walking into the
room, being told to calm down, and to wait. Defendant told him
the next thing he remembered was leaving the interrogation.
C. Guilt Phase Rebuttal Case
Dr. David N. Glaser and Dr. Dana Chidekel testified for
the prosecution in rebuttal. Dr. Glaser testified that after
examining defendant and reviewing a great deal of case
information, he concluded defendant suffered from “no current
major mental illness.” Dr. Glaser opined that defendant
suffered from an avoidant personality disorder “with dependent
features.” He had low self-esteem, was willing to endure
“unpleasant conditions” to remain near the person on whom he
was dependent, and was uncomfortable acknowledging his
feelings. None of these features, in Dr. Glaser’s opinion, made
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Opinion of the Court by Kruger, J.
defendant more likely to falsely confess. Dr. Glaser also
evaluated defendant for amnesia. Because defendant was
unable to recall anything about his interview with police based
upon cues given from the transcripts, and because total amnesia
absent a traumatic event or general anesthesia is very
uncommon, Dr. Glaser concluded that defendant was
malingering.
Dr. Chidekel testified that she evaluated defendant and
administered numerous psychological tests to determine
whether defendant had a psychological disorder rendering him
susceptible to falsely confessing. Dr. Chidekel determined
defendant suffered from “avoidance [sic] personality disorder,
with self-defeating and dependent features.” Based on the tests
administered, Dr. Chidekel was unable to diagnose defendant
with any other neuropsychological condition that interfered
with his “ability to see, to understand, or to be able to
communicate effectively.”
D. Penalty Phase
1. Aggravation
Nick’s mother, Susan Markowitz, testified about the
impact the loss of her son had on her and on her relatives and
friends. Nick was one of three children, and his sister had the
comfort of knowing Nick held his niece before his death, but not
his sister’s second child, who was not yet born at the time Nick
died. Susan testified that she twice tried to commit suicide,
“only to succeed in accumulating a twenty thousand dollar
hospital bill.” She told the jury, “There is no meaning to life
without Nick.”
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2. Mitigation
Victoria, defendant’s mother, testified about defendant’s
dysfunctional upbringing. Victoria was 19 years old when she
married defendant’s father, James Hoyt, and 21 when she gave
birth to defendant. Victoria testified that her husband was
“extremely abusive” to her, and not nice or attentive to the
children. James grabbed her by the hair and threw her against
a car and to the ground when she was eight months pregnant
with defendant, nearly resulting in miscarriage. When
defendant was four years old, James threw Victoria to the
ground in front of her children and beat her with a pipe wrench.
James had to be physically restrained by Victoria’s brother. The
couple divorced when defendant was five years old and, despite
the physical abuse, James was awarded custody. Following
their divorce, Victoria began using cocaine and drinking heavily.
Victoria’s sister, Anne Stendel Thomas, testified that
defendant’s father and mother verbally abused and threatened
defendant throughout his childhood. Thomas testified that
Victoria abused drugs and alcohol from an early age, and her
alcohol abuse continued and worsened throughout defendant’s
childhood. Her family was dysfunctional, and Victoria had been
a depressed child who would spend hours or days alone in her
room without moving or talking. Thomas testified that
defendant was a “sweet kid,” and she viewed him—the middle
child—as a mediator.
Victoria’s mother, Carol Stendel, testified about Victoria’s
early childhood. When Victoria was in fourth grade, she would
stand in class and walk around without being aware of her
behavior, despite performing at or above grade level in her
coursework. At age 14, Victoria began seeing a psychiatrist, who
recommended she be hospitalized due to depression. The family
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Opinion of the Court by Kruger, J.
decided against treatment. Defendant’s grandfather also
suffered from depression.
Stendel made efforts to make her grandchildren feel
welcome in her home. She worried the children would feel
abandoned or abused by their parents. She testified that “in
their young lifetime, nobody, I mean nobody really helped them
to have safety and comfort.” Her eldest grandchild—defendant’s
sister, Christina—was a heroin addict. Stendel testified that
she loved defendant very much.
At the time of defendant’s trial, his younger brother,
Jonathan, was serving a 12-year prison sentence for armed
robbery and conspiracy to commit home invasion. Jonathan
committed the crimes as a 16 year old but was tried as an adult.
Jonathan testified about their abusive family, particularly their
abusive stepmother, and the physical abuse defendant suffered
at their father’s hands. When asked how he would feel if
defendant were to receive the death penalty, Jonathan
responded that he could “hardly take him being in jail period.”
He continued, “As far as putting him . . . on death row . . . , that’s
pretty awful.” James, defendant’s father, was asked about the
effect on him if his son was sentenced to death. He responded
that “[i]t would be a living nightmare you can’t wake up from.”
II. DISCUSSION
A. Jurisdictional Claim
Defendant’s first claim on appeal concerns the superior
court’s jurisdiction to hear the case. The evidence indicates that
the murder took place at or near the location where Nick’s body
was found in the area known as Lizard’s Mouth, which is
situated within the boundaries of the Los Padres National
Forest. Defendant contends that because the murder took place
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Opinion of the Court by Kruger, J.
in a national forest, the case falls within the exclusive territorial
jurisdiction of the courts of the United States, and thus outside
the jurisdiction of the superior court.
Defendant did not raise this argument in the trial court,
which would ordinarily bar him from raising it on appeal. (See
In re Sheena K. (2007) 40 Cal. 4th 875, 880–881.) But if, as
defendant contends, the superior court lacked territorial
jurisdiction, then it was without authority to act in the matter
and should not have entered judgment in the case. (People v.
Betts (2005) 34 Cal. 4th 1039, 1050.) A claim of fundamental
jurisdictional defect is not subject to forfeiture or waiver.
(People v. Lara (2010) 48 Cal. 4th 216, 225.) We are therefore
obligated to address the claim. It is, however, without merit.
The fact the murder was committed within the boundaries
of a national forest does not necessarily mean that the federal
government, and the federal government alone, was empowered
to prosecute the crime. As this court explained more than a
century ago, federal ownership of land does not necessarily
establish “federal jurisdiction over crimes committed upon it, as
that fact does not oust the jurisdiction of the state . . . .” (People
v. Collins (1895) 105 Cal. 504, 509.) “[F]or many purposes a
State has civil and criminal jurisdiction over lands within its
limits belonging to the United States,” including the
punishment of “public offenses, such as murder or larceny,
committed on such lands.” (Utah Power & Light Co. v. United
States (1917) 243 U.S. 389, 404; see People v. Rinehart (2016) 1
Cal.5th 652, 660.) Whether the federal government has
exclusive jurisdiction over crimes committed on federal lands
depends on the terms on which the lands were acquired from the
states. (See Kleppe v. New Mexico (1976) 426 U.S. 529, 542–543
[under enclave clause of the federal Constitution (U.S. Const.,
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Opinion of the Court by Kruger, J.
art. I, § 8, cl. 17), state may cede either exclusive or limited
jurisdiction to federal government].) Defendant points to no
authority indicating that the federal government acquired the
Los Padres National Forest on terms establishing exclusive
federal jurisdiction to prosecute crimes committed therein.
Defendant’s argument against state criminal jurisdiction
is rooted in an apparent misreading of California history. The
Los Padres National Forest was first created by presidential
proclamation in 1903, when it was known as the Santa Barbara
Forest Reserve. (Pres. Proc. No. 14, 33 Stat. 2327, Dec. 22,
1903.)5 As defendant notes, the national forest is made up of
lands that had been ceded by Mexico in the Treaty of Guadalupe
Hidalgo, under which title to lands not privately held passed to
the United States. (Feb. 2, 1848, 9 Stat. 922; see Thompson v.
Doaksum (1886) 68 Cal. 593, 596.) Defendant claims that
Congress asserted exclusive jurisdiction over these lands when
California was admitted to the Union two years later. (Act for
the Admission of the State of Cal. into the Union, Sept. 9, 1850,
ch. 50, § 3 (Act for Admission) 9 Stat. 452.)
Defendant is incorrect. The Act for Admission contains no
provision reserving to the federal government exclusive
jurisdiction over all public lands ceded by Mexico in the Treaty
of Guadalupe Hidalgo. (See Coso Energy Developers v. County
of Inyo (2004) 122 Cal. App. 4th 1512, 1522–1523; accord, Martin
v. Clinton Construction Co. (1940) 41 Cal. App. 2d 35, 46; see
generally Fort Leavenworth R. R. Co. v. Lowe (1885) 114 U.S.
525, 539.) Defendant relies on the noninterference clause of the
Act for Admission: “That the said State of California is admitted
5
The Los Padres National Forest took its present name in
1936. (Exec. Order No. 7501 (Dec. 3, 1936).)
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Opinion of the Court by Kruger, J.
into the Union upon the express condition that the people of said
State, through their legislature or otherwise, shall never
interfere with the primary disposal of the public lands within its
limits, and shall pass no law and do no act whereby the title of
the United States to, and right to dispose of, the same shall be
impaired or questioned.” But this noninterference clause is not
unique to California (see Van Brocklin v. State of Tennessee
(1886) 117 U.S. 151, 164), and it offers no support for
defendant’s argument. Suffice it to say, a prohibition on
interfering with federal title is not the same as a prohibition on
prosecuting crime. (See Coso Energy, at pp. 1522–1523, citing
U.S. v. Bateman (N.D.Cal. 1888) 34 F. 86, 88–90.)
In the alternative, defendant argues that California
relinquished its prosecutorial power to the federal government
in an 1891 act ceding “exclusive jurisdiction over such piece or
parcel of land as may have been or may be hereafter ceded or
conveyed to the United States, during the time the United
States shall be or remain the owner thereof, for all purposes
except the administration of the criminal laws of this State and
the service of civil process therein.” (Stats. 1891, ch. 181, § 1,
p. 262.) That statute was reenacted in 1943 as Government
Code section 113, subsequently repealed, and eventually
reenacted in its current form to provide for the state’s
acceptance of the retrocession of jurisdiction from the federal
government of “land within this state.” (Gov. Code, § 113; see
Stats. 1943, ch. 134, p. 898 [1943 version].)
The difficulty with this argument is that the cession
provision on which defendant relies contains an explicit
exception for “the administration of the criminal laws of this
State.” (Stats. 1891, ch. 181, § 1, p. 262.) Defendant asserts
that this exception “has been uniformly interpreted as limited
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Opinion of the Court by Kruger, J.
to the right to serve process,” but that is not what the statute
says, and defendant offers no support for his unlikely
interpretation. Nor is there any evidence that Congress
declined the terms of California’s partial cession of jurisdiction.
(See S. R. A., Inc. v. Minnesota (1946) 327 U.S. 558, 563.) As
particularly relevant here, only a few years later Congress
explicitly recognized the states’ authority to reserve jurisdiction
over national forest lands: In Title 16 United States Code
section 480, enacted in 1897, Congress provided that the states’
jurisdiction “over persons within national forests shall not be
affected or changed by reason” of the creation of national forests.
“By this enactment Congress in effect . . . declined to accept
exclusive legislative jurisdiction over forest reserve lands . . . .”
(Wilson v. Cook (1946) 327 U.S. 474, 487, italics added.)
In sum, although California ceded the lands comprising
the Los Padres National Forest to the United States, California
also retained jurisdiction to administer its criminal laws on the
ceded lands. Defendant points to nothing in the history of the
Los Padres National Forest to suggest it was an exception to this
reservation of criminal jurisdiction. The superior court did not
err in exercising jurisdiction in this matter.
B. Jury Selection Claims
1. Adequacy of Voir Dire
Defendant argues the trial court committed several errors
that resulted in inadequate voir dire of prospective jurors.
Defendant’s claims lack merit.
a. Denial of Request for Sequestered
Voir Dire
Defendant first points to the trial court’s decision to deny
defendant’s request for sequestered voir dire. Before jury
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Opinion of the Court by Kruger, J.
selection began, defendant had filed a motion seeking
sequestered voir dire concerning prospective jurors’ attitudes
toward the death penalty and regarding the extent of pretrial
publicity. Defense counsel argued that sequestration would
avoid the potential contamination of prospective jurors who
might learn what others had seen or heard in the media.
Defense counsel also argued sequestered voir dire was necessary
to determine prospective jurors’ attitudes toward the death
penalty “alone, separately,” and “face-to-face” with counsel. The
prosecution opposed the motion on the ground that
sequestration was unnecessary; jurors’ attitudes and exposure
to pretrial publicity could be explored through juror
questionnaires. The trial court denied the motion, agreeing with
the prosecution that juror questionnaires would adequately
respond to defendant’s concerns.
Although defendant now asserts that the trial court erred
in denying the motion, he offers no substantive argument to
support the claim and has therefore forfeited it. But even if the
claim were properly presented for review, we would find no
error. “ ‘[I]n reviewing a trial court’s denial of a defendant’s
motion for individual sequestered jury selection, we apply the
“abuse of discretion standard,” under which the pertinent
inquiry is whether the court’s ruling “falls outside the bounds of
reason.” ’ ” (People v. Perez (2018) 4 Cal.5th 421, 443, quoting
People v. Famalaro (2011) 52 Cal. 4th 1, 34.) We remain mindful
that “ ‘[i]ndividual sequestered jury selection is not
constitutionally required, and jury selection is to take place
“where practicable . . . in the presence of the other jurors in all
criminal cases, including death penalty cases.” ’ ” (Perez, at
p. 443, quoting Code Civ. Proc., § 223.) Here, defendant has not
shown that group voir dire was impracticable. He sought
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Opinion of the Court by Kruger, J.
sequestered voir dire because of concerns about potential juror
bias, but he has not shown that group voir dire resulted in any
actual juror bias. (Cf. People v. Vieira (2005) 35 Cal. 4th 264, 288
[“group voir dire may be determined to be impracticable when,
in a given case, it is shown to result in actual, rather than
merely potential, bias”].) The trial court acted within its
discretion in concluding defendant’s concerns could be
adequately addressed by means other than individual
sequestered voir dire.
b. Exclusion of Questions from
Juror Questionnaire
Defendant next complains that the trial court erred in
excluding certain questions from the juror questionnaire. The
parties exchanged proposed juror questionnaires in early
October 2001. The trial court warned the defense that its
proposed questionnaire, which was twice as long as the
prosecution’s, ran the risk of alienating prospective jurors. The
court explained that the questionnaire “looks pretty formidable
. . . and the [jurors] may get in a hurry to finish, and you don’t
really get the kind of answers you want; whereas, if they see
they’ve got a more limited question[naire] then they’ve got some
time.” The parties eventually settled on a questionnaire, which
was provided to four panels of prospective jurors. Before
distribution, a number of questions, including four that had
been proposed by the defense to examine jurors’ attitudes
toward an intentional kidnap murder of a minor (proposed
questions 78, 79, 98, and 120), were excluded from the
questionnaire.
Excluded question number 78 inquired, “What was your
first reaction when you heard this was a ‘kidnapping murder’
case?” Question number 79 inquired whether a prospective
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Opinion of the Court by Kruger, J.
juror’s “feelings about the issue of kidnapping and murder
[were] such that” the juror “could not be fair and impartial in
relation to the defendant” or “to [a] complaining witness,” or
alternatively if “[n]either statement applie[d].” Question
number 98 inquired, “During the course of the trial, the
prosecution may present evidence that includes pictures of
Mr. Markowitz after he died, and a gun that was used in the
killing. The prosecution may even display the gun itself. How
do you think this type of evidence would affect your judgment of
the case as a whole?” Question number 120 inquired, “During
this trial you may hear detailed descriptions of kidnapping and
murder. Would that effect [sic] your ability to be fair and
impartial?” followed by a short blank line. The question
continued, “If so, please explain.”
Defendant argues it was error to exclude these questions.
Without the ability to question jurors about their attitudes
toward the death penalty in a case involving the intentional
kidnap murder of a minor, he argues, the defense had no
adequate means of determining whether the jurors harbored
disqualifying biases concerning the commission of such a crime.
We disagree.
A trial court has “ ‘wide latitude’ ” in the conduct of voir
dire, including with respect to the questions to be asked and
their format. (People v. Landry (2016) 2 Cal.5th 52, 83; see Code
Civ. Proc., § 223.) Voir dire must be “ ‘ “ ‘reasonably sufficient
to test the jury for bias or partiality.’ ” ’ ” (Landry, at p. 83.) But
“[i]t is not the purpose of voir dire to ‘ “educate the jury panel to
the particular facts of the case, to compel the jurors to commit
themselves to vote a particular way, to prejudice the jury for or
against a particular party, to argue the case, to indoctrinate the
jury, or to instruct the jury in matters of law.” ’ ” (Ibid.)
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Opinion of the Court by Kruger, J.
Here, although defendant suggests otherwise, the
prospective jurors were informed of the nature of defendant’s
alleged crime. Before adjourning for one week on October 17,
2001, the court briefly described the case to the prospective
jurors. The court explained that the crime involved “the alleged
kidnapping of the 15 year old Nicholas Markowitz, and resulted,
allegedly, in the killing of Mr. Markowitz.” The court explained
that the series of events at issue occurred over a period of four
days and that defendant was charged with kidnapping, first
degree murder, and a special circumstance allegation that the
murder occurred during the commission of a kidnapping. The
juror questionnaire then sought to evaluate prospective jurors’
attitudes toward the death penalty in such a case, by asking
jurors whether they would always vote guilty as to first degree
murder and true as to the special circumstance, so as to
guarantee a penalty phase, and whether jurors would
automatically vote for death.
The additional questions on the subject proposed by
defendant—which asked, for example, for the jurors’ “first
reaction” to hearing “this is a ‘kidnapping murder case’ ”—were
not well-tailored to meaningful further exploration of the jurors’
views on the death penalty in this context. And to the extent
defendant sought the jurors’ predictions about how their
judgment would be affected by “detailed account[s]” of the crime
or other prosecution evidence, it is well established that a
defendant has “no right to ask specific questions that invite[]
prospective jurors to prejudge the penalty issue . . . [or] to
educate the jury as to the facts of the case.” (People v. Burgener
(2003) 29 Cal. 4th 833, 865, citations omitted.)
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Opinion of the Court by Kruger, J.
c. Conduct of Voir Dire
Defendant next argues that voir dire was inadequate
because the questioning was insufficient to determine whether
any of the jurors held disqualifying views concerning the
automatic application of the death penalty for the intentional
kidnap murder of a minor. Defendant argues: “Six jurors, fully
half the panel, were not questioned at all except [as to] whether
they could volunteer a basis for their own disqualification.”
Defendant contends, “Such general inquiries are insufficient
under long-standing United States Supreme Court case law.”
(See Morgan v. Illinois (1992) 504 U.S. 719, 734–735.) In
Morgan, the high court held that the petitioner “was entitled,
upon his request, to inquiry discerning those jurors who . . . had
predetermined . . . whether to impose the death penalty.” (Id.
at p. 736.)
As an initial matter, defendant’s claim that these six
jurors were not questioned “at all” is inaccurate. The court
questioned these jurors with some care and permitted the
parties to do the same. To the extent defendant took issue with
the nature of the trial court’s questioning, he made no mention
of it before the court. It is now too late to complain that the
court’s questioning was inadequate. (People v. Salazar (2016)
63 Cal. 4th 214, 236 [“We have held that ‘a defendant may not
challenge on appeal alleged shortcomings in the trial court’s voir
dire of the prospective jurors when the defendant, having had
the opportunity to alert the trial court to the supposed problem,
failed to do so.’ ”].)
Defendant contends that the questioning of four
individual jurors raised “particular concerns about impartiality”
that were not adequately explored in voir dire because the trial
court impermissibly restricted questioning. But contrary to
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Opinion of the Court by Kruger, J.
defendant’s contention, the trial court’s decision to remove the
four defense-proposed questions from the juror questionnaire is
not reasonably interpreted as precluding counsel from asking
follow-up questions regarding prospective jurors’ attitudes
toward the death penalty in a kidnap-murder case. It appears
from the record that the defense could have asked additional
questions of the prospective jurors but did not do so.
Nor, in any event, does the record support defendant’s
assertion that the prospective jurors’ answers raised particular
concerns about impartiality that were not adequately explored
in voir dire. Defendant asserts that Juror No. 9184’s
questionnaire suggests she was biased against defendant
because she responded affirmatively to the question, “Do you
have any feelings against the defendant solely because the
defendant is charged with this particular offense?” She also
responded affirmatively to the question inquiring whether “the
mere fact that an information was filed against the defendant
cause[d her] to conclude that the defendant is more likely to be
guilty than not guilty.” But during voir dire, defense counsel
asked her to explain these responses. She indicated that she
initially made a “natural” or “snap judgment” but after “sitting
here for a while, [she] believe[d] that there’s a due process that
people should go through now, and [she] underst[ood] a little bit
more about the situation.” Defense counsel probed further
whether she meant that her position on these two questions had
“changed somewhat” in that she “now . . . realize[d] that just
because someone is charged with an offense, or [had] been
arrested for an offense that isn’t evidence of anything.” Juror
No. 9184 agreed with defense counsel that she had “changed
[her] feelings somewhat on that.” Juror No. 9184 also confirmed
to the trial court that she had “no reason to think” she could not
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Opinion of the Court by Kruger, J.
give both sides a fair trial, that she was prepared to follow the
law, and that she would accord defendant the presumption of
innocence.
Defendant argues that Juror No. 8919’s questionnaire
responses raised particular concerns because Juror No. 8919
“[d]isagree[d] somewhat” with the statement, “ ‘Anyone who
intentionally kills another person should always get the death
penalty.’ ” Juror No. 8919 added that “self defense can be seen
as ‘intentional.’ ” Juror No. 8919 also “[d]isagree[d] somewhat”
with the statement, “ ‘Anyone who intentionally kills another
person should never get the death penalty,’ ” adding, “should vs.
shall.” Taken together, these responses do not indicate, as
defendant argues, that Juror No. 8919 would vote for the death
penalty for all intentional murders other than self-defense. Nor
did voir dire raise such concerns; on the contrary, the juror
responded affirmatively to questions as to whether he could deal
“fairly and impartially” with the question of penalty.
Defendant similarly argues that Juror No. 0555’s
questionnaire responses raised concerns because she indicated
she “[a]gree[d] somewhat” with the statement, “Anyone who
intentionally kills another person should always get the death
penalty” and “[s]trongly disagree[d]” with the statement,
“Anyone who intentionally kills another person should never get
the death penalty.” But Juror No. 0555 also stated she would
consider both possible penalties if the case reached the penalty
phase and that she would vote for life imprisonment in an
appropriate case. Defendant elected not to question Juror
No. 0555 on these subjects, and he points to nothing in her voir
dire responses to indicate that the juror would not be impartial.
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Opinion of the Court by Kruger, J.
Finally, defendant asserts that Juror No. 6619 raised
particular concerns because, among other things, she wrote in
her juror questionnaire that, philosophically, she was strongly
in favor of the death penalty and “agreed somewhat” that
anyone who kills intentionally should always receive the death
penalty. But Juror No. 6619 also said she was amenable to
either punishment, depending on the evidence, and affirmed
that she would vote for life imprisonment in an appropriate case.
During voir dire, defense counsel probed some of Juror No.
6619’s responses concerning her views on the death penalty.
Although Juror No. 6619 had initially offered “self-defense” and
“automobile accidents” as examples of intentional killings where
the death penalty would not be warranted, counsel then clarified
that the question was whether there would be a situation in
which the juror could envision reaching the penalty phase of a
trial, after finding defendant “guilty of first-degree murder,” and
determining “life imprisonment without parole to be the most
appropriate sentence.” Juror No. 6619 responded affirmatively,
at which point defense counsel passed for cause, thereby
waiving any claim of juror bias. (People v. Zaragoza (2016) 1
Cal.5th 21, 59.) To the extent defendant now argues voir dire
was inadequate to determine whether Juror No. 6619 was
capable of serving as an impartial juror, we see no merit to the
claim.
2. Excluding Prospective Juror F.G. for
Cause
Defendant contends the trial court erred by excluding
Prospective Juror F.G. for cause. We hold the court acted within
its discretion.
F.G. was a musician who had performed at many prisons
and who had also worked on antidrug programs with the health
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Opinion of the Court by Kruger, J.
department and the county sheriff’s department. During voir
dire, the trial court asked F.G. whether any of these experiences
would preclude him from being a fair juror, “knowing what the
juror’s job is.” F.G. replied, “No, I don’t think so. The only caveat
I would put on that is that I have . . . witnessed firsthand the
results of the sentencing. And I have spoken with people who
have been, for instance, sentenced for life, with no chance of
parole and stuff like that. And that—it’s a very heavy burden
to judge someone. So that’s all I can say.” The trial court
explained to F.G. that the concept of punishment and penalty
had no place in the determination of a defendant’s guilt and
asked whether F.G. understood those distinctions. F.G.
indicated his assent.
The court inquired whether, in light of F.G.’s experience
working with people who had received life sentences, he “would
be inclined to consider the potential sentence in determining the
issue of guilt or innocence” and whether those experiences
“would influence [his] view of the facts.” F.G. replied that he
“would like to think it wouldn’t, but it hangs on me very heavily,
morally.” The court clarified that “the question is, if you wind
up on this jury, are you going to deliberate with the other jurors,
consider the facts, decide the facts based on the evidence,
without consideration of any potential sentence that may be
imposed, if you get to that phase of the case. That’s the
question.” F.G. responded, “I would have to say that no matter
what I did, that would be a factor.” The court excused the
prospective juror.
Criminal defendants are constitutionally entitled to a trial
before an impartial jury. (U.S. Const., 6th & 14th Amends.; Cal.
Const., art. I, § 16; see Duncan v. Louisiana (1968) 391 U.S. 145,
149–150; see also Turner v. Louisiana (1965) 379 U.S. 466, 471;
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Opinion of the Court by Kruger, J.
People v. Black (2014) 58 Cal. 4th 912, 916.) But the state also
has a vital interest in ensuring cases are tried before juries able
to make decisions concerning punishment “within the
framework state law prescribes.” (Uttecht v. Brown (2007)
551 U.S. 1, 9.) “[I]n determining whether the removal of a
potential juror would vindicate the State’s interest without
violating the defendant’s right, the trial court makes a judgment
based in part on the demeanor of the juror, a judgment owed
deference by reviewing courts.” (Ibid.) “When the prospective
juror’s answers on voir dire are conflicting or equivocal, the trial
court’s findings as to the prospective juror’s state of mind are
binding on appellate courts if supported by substantial
evidence.” (People v. Duenas (2012) 55 Cal. 4th 1, 10.) A trial
court has the power, though not the obligation, to excuse biased
prospective jurors on its own motion. (People v. Cunningham
(2001) 25 Cal. 4th 926, 981 [upholding sua sponte excusal of a
prospective juror for cause]; People v. Bolin (1998) 18 Cal. 4th
297, 315–316 [no duty to excuse on court’s own motion].)
Although this was a capital trial, here it was F.G.’s views
toward a life sentence, not the death penalty, that raised
concerns about his ability to serve as a juror. The court engaged
in a colloquy with F.G., probing his responses to questions
suggesting an inability to put aside considerations of
punishment in determining guilt. F.G. unequivocally explained
that the potential penalty of life imprisonment “would be a
factor” in determining guilt. The trial court concluded F.G.
would be unable to follow the trial court’s instructions and
evaluate the evidence of defendant’s guilt without considering
the potential penalty, and for that reason determined dismissal
was warranted. Substantial evidence supports the trial court’s
determination. (People v. Duenas, supra, 55 Cal.4th at p. 10.)
35
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Opinion of the Court by Kruger, J.
Defendant raises several challenges to this conclusion, but
none is persuasive. First, defendant argues it was improper for
the trial court to excuse F.G. absent a request from one of the
parties. Our cases, however, do not forbid a trial court from
excusing a juror for cause on its own motion (see People v.
Cunningham, supra, 25 Cal.4th at p. 981), and defendant offers
no persuasive reason for us to create such a bar.
Defendant next argues the excusal was improper under
Adams v. Texas (1980) 448 U.S. 38, which held that the federal
Constitution prohibits the exclusion for cause of a potential
juror because he or she is unable to state under oath that the
mandatory sentence of death or life imprisonment “ ‘will not
affect his [or her] deliberations on any issue of fact.’ ” (Id. at
p. 42, quoting Tex. Pen. Code Ann. § 12.31.) The court explained
the effect of the requirement was to exclude from the jury pool
those who stated “they would be ‘affected’ by the possibility of
the death penalty, but who apparently meant only that the
potentially lethal consequences of their decision would invest
their deliberations with greater seriousness and gravity or
would involve them emotionally.” (Adams, at pp. 49–50.)
This case presents no comparable circumstances.
Although defendant argues otherwise, in this case the trial court
reasonably understood F.G. to say not merely that his prior
experiences and views would cause him to perform his duties as
a juror with a particular sense of seriousness and gravity, but
that they would undermine his ability to impartially evaluate
the evidence of defendant’s guilt. Adams does not bar the
excusal of such a juror. (See People v. Ashmus (1991) 54 Cal. 3d
932, 963 [Adams does not forbid excusal of juror who admitted
that his views on the death penalty would cause him to apply a
standard of proof higher than proof beyond a reasonable doubt].)
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Opinion of the Court by Kruger, J.
Defendant also attempts to analogize this case to People v.
Heard (2003) 31 Cal. 4th 946, in which we held that a
prospective juror was dismissed without adequate basis after
assuring the court he would be able to follow the law. (Id. at
p. 964.) The analogy is inapt; here, F.G.’s responses to voir dire
indicated he would be unable to perform the duties of a juror
insofar as he informed the court he could not follow the court’s
instructions to determine guilt without taking into account the
possible penalty. Substantial evidence supports the trial court’s
dismissal, and we are presented with no reason to upset that
decision on appeal. (People v. Duenas, supra, 55 Cal.4th at
p. 10.) 6
C. Guilt Phase Claims
1. “Second Kidnap” Theory
Defendant contends there was a material variance
between the kidnap alleged in the indictment and the
prosecutor’s argument regarding his actual offense, rendering
him unable to defend against the charge in violation of his rights
6
At oral argument, defense counsel also contended
Prospective Juror F.G.’s responses to the questionnaire
indicated his willingness to follow the court’s instructions in
general. He contended that dismissal was not warranted
because, in their oral exchange, the court did not specifically
advise F.G. that the court’s instructions would include an
instruction to decide guilt based on the evidence presented,
without allowing the potential penalty to factor into the jurors’
evaluation of the facts of the case. Based on our review of the
record, we see no genuine potential for confusion on this point.
It was not necessary for the trial court to explicitly advise F.G.
that a juror’s determination of the facts should be based solely
on the evidence presented.
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PEOPLE v. HOYT
Opinion of the Court by Kruger, J.
under the Fifth and Sixth Amendments to the United States
Constitution. We reject the argument.
a. Background
Defendant, along with Skidmore, Rugge, Pressley, and
Hollywood, was charged by indictment with kidnapping for
purposes of ransom or extortion. Specifically, the charging
document stated that “[o]n or about August 6, 2000 through
August 9, 2000, in the county of Santa Barbara, the said
defendants . . . did willfully, unlawfully, and forcibly detain,
take, carry away, and kidnap NICHOLAS SAMUEL
MARKOWITZ, age 15, for purposes of ransom or to commit
extortion, or to extract money from another person, in violation
of Penal Code section 209(a).” Five special allegations were
charged along with the kidnapping count, including that the
victim suffered death in the course of the kidnapping and that
defendant intentionally discharged a firearm resulting in Nick’s
death.7
During his closing argument, defense counsel maintained
that defendant had taken no part in the charged kidnapping,
because that kidnap, which began on August 6, had ended before
defendant drove to Santa Barbara. Specifically, counsel argued
that the kidnap ended when the victim could have fled his
captors—but did not—at several points during his captivity.
“[T]his kidnapping . . . ended before Mr. Hoyt ever spoke with
Jesse Hollywood on the 8th [of August, 2000] to take a bag up to
Santa Barbara. The kidnapping was done.” In response, the
7
Of the three remaining special allegations, two related to
Pressley’s age and the last stated that Skidmore, Rugge,
Pressley, and Hollywood were principals in a felony in which a
coprincipal, defendant, possessed an assault weapon.
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Opinion of the Court by Kruger, J.
prosecutor argued that even if the defense was correct that the
kidnap concluded when Nick could have fled, defendant was
guilty of kidnap because “independent of the kidnapping that
took place on the 6th where [the victim] was brought from Los
Angeles County to Santa Barbara, there is as well the
kidnapping that took place in the late evening hours of the 8th,
into the early morning hours of the 9th of August, where he’s
taken from the motel, perhaps taken as well to Rugge’s house at
some point, we’ll never know, and then taken up to the location
on West Camino Cielo and there he was killed. That we know
is an independent kidnapping. And certainly, he would be guilty
of that offense.”
The prosecutor pointed out before the jury that defense
counsel’s argument never addressed whether defendant would
be guilty of the kidnap based on movement of the victim from
the motel to the murder site. Defense counsel objected at this
point, noting that only one count of kidnapping was charged.
The following colloquy occurred:
“THE COURT: He said the count, the kidnapping for—
count, relates only to the incident of the—I’ll have to look. Isn’t
that your point?
“MR. CROUTER [Defense]: That there is only one count
charged.
“MR. ZONEN [Prosecution]: Well, you have to look at the
date on the pleading there, and the time, and whether or not it
governs an entire period of time. And I believe in an Indictment
you’ll find that it covers the period of time from the 6th through
the 9th.
“THE COURT: Let’s see. That’s the way the count is
drawn. August 6th through August 9th.
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PEOPLE v. HOYT
Opinion of the Court by Kruger, J.
“MR. ZONEN: See, a kidnapping can go over a period of
time, and in this case it did. That kidnapping took place from
the 6th through the 9th. It is one count, but it’s one count that
covers the entirety of his movement from the time he left at the
location near his residence in that area, I think near Ingomar
and Platt in San Fernando Valley, to the point where he was
killed up in Santa Barbara County. That’s all covered in the
pleading in that one count as a kidnapping.”
Defense counsel raised no further argument or objection,
and the prosecutor continued his rebuttal.
b. Discussion
i. Material Variance
“ ‘Both the Sixth Amendment of the federal Constitution
and the due process guarantees of the state and federal
Constitutions require that a criminal defendant receive notice
of the charges adequate to give a meaningful opportunity to
defend against them.’ ” (People v. Williams (2013) 56 Cal. 4th
630, 681.) Notice is supplied in the first instance by the
accusatory pleading. (E.g., People v. Jones (1990) 51 Cal. 3d 294,
317.) But a variance between the pleading and proof at trial will
be disregarded if it is not material. (People v. LaMarr (1942) 20
Cal. 2d 705, 711.) “The test of the materiality of a variance is
whether the indictment or information so fully and correctly
informs the defendant of the criminal act with which he is
charged that, taking into consideration the proof which is
introduced against him, he is not misled in making his defense,
or placed in danger of being twice put in jeopardy for the same
offense.” (Ibid.; accord, People v. Maury (2003) 30 Cal. 4th 342,
427–428; People v. Arras (1891) 89 Cal. 223, 226.)
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PEOPLE v. HOYT
Opinion of the Court by Kruger, J.
Here, the indictment alleged defendant and his
codefendants committed an aggravated kidnap (Pen. Code,
§ 209, subd. (a)) by forcibly abducting Nick on August 6, 2000,
and detaining him until he was murdered on August 9, 2000.
The jury was instructed on the elements of aggravated kidnap
and on the lesser included offense of simple kidnap. The
aggravated kidnap statute provides in pertinent part, “Any
person who . . . kidnaps or carries away another person by any
means whatsoever with intent to hold or detain . . . that person
for ransom, reward or to commit extortion or to exact from
another person any money or valuable thing, or any person who
aids or abets any such act, is guilty of a felony . . . .” (Pen. Code,
§ 209, subd. (a).) Simple kidnap, in turn, requires proof of three
things: “that (1) the defendant took, held, or detained another
person by using force or by instilling reasonable fear; (2) using
that force or fear, the defendant moved the other person, or
made the other person move a substantial distance; and (3) the
other person did not consent to the movement. ([Pen. Code,]
§ 207, subd. (a).)” (People v. Burney (2009) 47 Cal. 4th 203, 232.)
Defendant argues the prosecution crafted a new theory of
kidnap during the rebuttal phase of closing argument for the
dual purposes of surprise and to have the last word. This new
theory was that there were two distinct kidnap offenses in this
case, the first one commencing on August 6, 2000, and the
second on August 8, 2000. Defendant argues that because he
was charged with a single kidnap offense in the indictment, the
“second” kidnap constitutes a material variance from the
charged offense in violation of his Fifth and Sixth Amendment
rights.
The argument lacks merit. As the prosecution correctly
explained in the trial court, the indictment charged defendant
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PEOPLE v. HOYT
Opinion of the Court by Kruger, J.
and his codefendants with a continuing kidnapping offense that
extended over a period of time. That period included the time
the victim left his home and was taken to Santa Barbara, the
time he spent in Santa Barbara, and the time he was taken from
locations within Santa Barbara to the site of his murder. True,
defense counsel theorized that the kidnapping was interrupted
by a period during which Nick could have eluded his captors at
some point before defendant became involved on August 8, 2000.
But the indictment put defendant on notice that the prosecution
intended to prove kidnapping based on the events of August 8
and 9, 2000, as well. Defendant could not have been misled by
his own “interruption” theory into believing otherwise. There
was no fatal variance between indictment and proof, and cases
finding fatal variances under dissimilar circumstances do not
help defendant’s case. (Cf. U.S. v. Adamson (9th Cir. 2002) 291
F.3d 606, 615–616; U.S. v. Tsinhnahijinnie (9th Cir. 1997) 112
F.3d 988, 990.)
ii. Alleged Hearsay
A corollary of defendant’s “two kidnap” theory is that there
were also two distinct conspiracies, the first involving the
August 6 to 8 kidnapping of Nick and the second involving a
separate and unrelated agreement to kidnap and murder Nick.
Under this theory, defendant argues that the trial court erred
by admitting various out-of-court statements by Hollywood,
Rugge, Skidmore, and Pressley, as testified to by various
witnesses at trial, because the statements were not admissible
as statements of coconspirators in the only conspiracy and
kidnapping defendant participated in, and therefore constituted
inadmissible hearsay.
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Opinion of the Court by Kruger, J.
Coconspirators’ hearsay statements may be admitted if
there is independent evidence of a conspiracy and the party
seeking to admit the hearsay shows the speaker was involved in
the conspiracy when the hearsay statement was made, the
statement was made in furtherance of the conspiracy, and the
person against whom the statement is being offered either was
participating in, or later would participate in, the conspiracy.
(Evid. Code, § 1223; In re Hardy (2007) 41 Cal. 4th 977, 995–
996.) Here, the trial court permitted introduction of hearsay
statements testified to by Affronti, Hoeflinger, Carpenter,
Adams-Young, Sheehan, and Hogg regarding Nick’s time in
Santa Barbara. As generally set forth above, these witnesses
testified about Nick’s kidnap and captivity. Although defendant
alleges these statements were not in furtherance of the
conspiracy to kidnap Nick, the trial court reasonably concluded
otherwise. We find no error.
As an initial matter, it is unclear that defendant has
preserved his objections to the introduction of the statements:
When the statements in question were introduced, defendant
generally failed to object on the bases he now raises on appeal.
For example, although he raised a “hearsay upon hearsay”
objection at trial to Adams-Young’s testimony regarding a
statement made by Pressley after she had expressed concern to
him about Nick’s continued presence in Santa Barbara, defense
counsel stated, “And I don’t disagree with the . . . in furtherance
of the conspiracy” theory of admission, “but I still have the
problem that there appears to be a second level of hearsay.” The
court overruled defendant’s objection.
“Because the question whether defendant[] . . . preserved
the[] right to raise this issue on appeal is close and difficult, we
assume that defendant[] . . . preserved the[] right, and proceed
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Opinion of the Court by Kruger, J.
to the merits.” (People v. Champion (1995) 9 Cal. 4th 879, 908,
fn. 6.) Having done so, we conclude the trial court committed no
error in admitting the hearsay statements recounted by these
witnesses. Defendant argues that the conspiracy he entered
into with Hollywood to murder Nick was a wholly separate
enterprise from the one Rugge and others entered into to kidnap
Nick, and the statements admitted regarding Nick’s capture
were therefore inadmissible with regard to Nick’s murder and
defendant’s involvement therewith. The trial court was not
compelled to so finely parse this case. The evidence showed that
Hollywood, the mastermind, had his friends kidnap Nick to
exact a ransom from Nick’s brother. When Hollywood learned
that the potential penalty for Nick’s kidnap was too high a price
for him to pay, he asked defendant to kill Nick. The hearsay
statements that were admitted, which tell the story of Nick’s
initial capture and subsequent captivity, were relevant to
demonstrating this overarching conspiracy, and were made in
furtherance of the conspiracy.
iii. Jury Questions
Defendant also argues the court’s responses to juror
inquiries regarding whether one or two kidnaps were alleged,
and the relevance of conspiracy, ultimately worked to direct a
verdict on the kidnap count and kidnap-murder special-
circumstance charges.
During the second day of deliberations, the jury posed a
question about whether one or two kidnapping events occurred
and asked about the relevance of the conspiracy instruction.
The jury asked whether “the kidnapping [is] a continuous, single
event” and “what are the correct dates” of the kidnapping. The
court explained, “[T]hat was one of the issues in the case that I
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Opinion of the Court by Kruger, J.
gave you an instruction when a kidnapping terminates, and
there was some, the defense—there was some argument that the
initial kidnapping had already terminated and he was free to go,
remember that, and then there was some subsequent argument
that the facts supported a second kidnapping based upon what
you found there, and so that’s really one of the issues that you
have to decide. I can’t answer that question for you. I can just
point out to you that that was one of the disputed issues in the
case. One, was the kidnapping that happened in the San
Fernando Valley still ongoing when this happened. And there
was argument about that. And then, even if it wasn’t, was there
another kidnapping. Those were the issues that were presented
to the jury. And I can only remind you of what those issues were.
I can’t answer that question for you, because I’d be stepping in
and I’d have to send all of you home because I’d be taking over
your responsibility.” The foreperson responded, “[T]hat’s
helpful in itself.” Defense counsel was present and raised no
objection.
The court also responded to the jury’s question regarding
the dates of the kidnapping offense, noting that the dates the
jury had to keep in mind were August 6 and 9, 2000. The court
noted, “[A]gain, whether or not the kidnapping was ongoing
through that period or there were two kidnappings or there was
only one that had terminated, those are the dates that you have
to keep in mind, the 6th through the 9th.”
The jury also asked about the lesser included offense of
simple kidnap under Penal Code section 207. The court
reminded the jury to consider defendant’s involvement only
when considering the elements of the offense. The jury then
asked, “So being a coconspirator has nothing to do with it?” The
court reminded the jury that defendant was not charged with
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PEOPLE v. HOYT
Opinion of the Court by Kruger, J.
conspiracy, and the jury was instructed regarding
coconspirators to give context to certain statements made. The
jury thanked the court and indicated its question had been
resolved.
Defendant argues the trial court’s responses were faulty
insofar as they instructed the jury they could convict on the
basis of the prosecution’s “second kidnap” theory; failed to
clarify that the jury could not convict defendant of the kidnap if
the movement of the victim during this kidnapping was
incidental to the murder (People v. Brents (2012) 53 Cal. 4th 599,
612); and failed to clarify that defendant could not be held
“strictly liable” for an earlier kidnap by other participants. To
the extent, if any, the court’s response caused confusion,
defendant’s failure to object forfeits any claim of error on appeal.
(See People v. Tully (2012) 54 Cal. 4th 952, 1061.) In any event,
there was no significant risk of confusion. The trial court
correctly advised the jury it could convict defendant of
kidnapping based on his own involvement in the transportation
of the victim to the site where he was murdered. Under the
circumstances of the case, there was no danger the jury would
misunderstand the trial court as advising that it could hold
defendant “strictly liable” for the earlier abduction of Nick on
August 6; no such argument was raised at trial. Defendant’s
argument that the trial court’s responses worked to direct a
verdict on the kidnap count and kidnap-murder special-
circumstance charges is without merit.
iv. Instructional Issues
Defendant argues that a unanimity instruction was
warranted or could have cured whatever error the court created
through its responses to juror questions. Such instructions
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PEOPLE v. HOYT
Opinion of the Court by Kruger, J.
“generally appl[y] to acts that could have been charged as
separate offenses, and . . . must be given ‘ “only if the jurors
could otherwise disagree which act a defendant committed and
yet convict him of the crime charged.” ’ ” (People v. Seaton (2001)
26 Cal. 4th 598, 671.) Here, for reasons already explained, there
was no realistic possibility of disagreement. The indictment
charged a continuous course of conduct—albeit one involving
various actors at different times—that began with Nick’s
abduction on August 6, 2000, and culminated with his murder
on August 9, 2000. The evidence at trial showed that
defendant’s involvement began on August 8 when he took and
transported Nick to the location where he was killed. The trial
court advised the jury that it was to evaluate only defendant’s
involvement when determining defendant’s guilt. The trial
court was not obligated to give a unanimity instruction.
Finally, we note that while defendant argues the jury
should have been instructed with CALJIC No. 9.56,8 setting
forth the asportation-by-fraud defense, he neither requested the
instruction nor objected to the trial court’s failure to give the
instruction. The trial court had no sua sponte duty to give the
instruction because the instruction was inconsistent with the
8
CALJIC No. 9.56 provides: “When one consents to
accompany another, there is no kidnapping so long as the
condition of consent exists. [¶] To consent, a person must: [¶]
1. Act freely and voluntarily and not under the influence of
threats, force, or duress; [¶] 2. Have knowledge that [he] [she]
was being physically moved; and [¶] 3. Possess sufficient
mental capacity to make an intelligent choice whether to be
physically moved by the other person [or persons]. [¶] [Being
passive does not amount to consent.] Consent requires a free
will and positive cooperation in act or attitude.”
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Opinion of the Court by Kruger, J.
theory of the defense. There was thus no error in connection
with this instruction.
2. Admission of Custodial Confession at
Trial
Defendant contends the trial court erred by admitting the
audio and videotapes of his custodial confession to killing Nick,
which he claims were involuntary and were obtained in violation
of his Miranda rights. The trial court did not err in admitting
defendant’s confession.
a. Background
While housed at the Santa Barbara jail, defendant spoke
twice with his mother. Evidently believing her son to be
innocent and taking the blame for someone else’s crime, she
suggested he talk to the detectives to “spill [his] guts and get
out.” Defendant apparently heeded her advice and asked to
speak with a detective.
Defendant then spoke with Detective West and Sergeant
Reinstadler, who began by confirming that defendant had
initiated the conversation and reminding him of his Miranda
rights. Defendant waived his Miranda rights orally and in
writing. After conversing back and forth about the crime, Hoyt
told the detectives that he had asked to speak with them to “say
that this picture that everybody’s painting of me is not me.”
Detective West responded, “Well, tell us who you are. Tell us
how this went down.” Hoyt told them he could not do that and
instead asked, “Do you mind if I go back to my cell and think
about tonight and talk to you guys tomorrow because I know my
arraignment is Monday?” The detectives responded by telling
defendant, “Once you’re arraigned, we can’t talk to you. That’s
the bottom line. I mean, if you want to tell us something, I’m
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Opinion of the Court by Kruger, J.
being honest with you, this is your opportunity to do it. This is
it.” Defendant replied, “There’s no way I can talk to you
tomorrow?” Sergeant Reinstadler explained, “No. I know why,”
continuing, “you won’t want to talk to us tomorrow because
somebody’s gonna get to you, telling you not to talk to us.”
When the detectives asked if he was okay, defendant
responded: “I mean, I’m going down for life.” Sergeant
Reinstadler replied: “There’s a difference between life and the
death penalty. And everything else in between. All we want is
the truth.” The interview continued, and after additional
discussion, defendant explained how he had become involved in
the crimes. Defendant explained to the detectives he was
indebted to Hollywood and was told by an intermediary (whom
defendant did not name) that he could erase his debt if he went
to “take care of somebody,” which defendant understood to mean
killing him. The intermediary did not tell defendant the name
of his intended victim but relayed a location—Santa Barbara.
Defendant drove Sheehan’s car to the Lemon Tree Inn in Santa
Barbara, where he found a gun waiting.
When the detectives asked what happened next,
defendant said, “I think I’m going to stop there for now,” and
asked for a glass of water. The detectives complied with the
request for water and asked defendant whether he was asking
to take a break or “telling us you don’t want to talk anymore,
period.” Defendant replied that he would like an overnight
break. The detectives responded that that would be “[t]oo late,”
and told defendant that “[o]nce a lawyer contacts you, we are
precluded from speaking with you anymore, period.” Defendant
asked whether a lawyer would be contacting him the next day,
and the detectives replied, “Oh, I’m sure. It’s normal. It’s their
job.” Defendant told the detectives his mom was unable to afford
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Opinion of the Court by Kruger, J.
an attorney for him, so he would have to work with a public
defender. While the detectives assured him “[t]hat’s fine,”
defendant worried aloud, “[A] public defender, I’m going
nowhere with that one.” The detectives then reminded
defendant, “You wanted to talk to us, man.” Defendant
responded, “And have I helped you out at all?” The detectives
told him that there were still pieces of the puzzle to fill in, and
the conversation continued.
Defendant admitted to feeling sorry for “[t]hat kid that I
buried.” He told the detectives he had not put the duct tape on
Nick’s mouth. When the detectives said Rugge had told them
otherwise, defendant responded: “I love this one. The only thing
I did was kill him.”
After answering additional questions about Pressley’s
involvement, defendant said: “All right. You guys I think I want
to stop there. I think you guys got a pretty good picture.”
Detective West agreed: “Yeah, I’ve got a good picture, and it’s
pretty grim for you . . . . I’m sorry, uh, that that’s what you
painted for me.” Sergeant Reinstadler asked defendant whether
there was “ever a time when right before you pulled the trigger
that you just thought, you know, I shouldn’t do this? This is
wrong.” Defendant replied: “Hell, yes. Right before.” The
conversation ended not long thereafter.
Before trial, defendant sought to suppress the confession,
arguing that it was coerced and obtained in violation of
Miranda. Defense counsel argued that Sergeant Reinstadler
and Detective West threatened defendant with the death
penalty and urged him to correct the impression that he was a
“stone-cold killer.” The trial court concluded the confession was
not coerced, explaining the detectives’ reference to the death
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Opinion of the Court by Kruger, J.
penalty “was actually in response to the defendant’s initiation of
the subject of penalty. He said something about the fact that he
was looking at life and then the detective said, ‘Well, that’s
better than death or what’s in-between,’ or something like that,
this was not a subject that was pursued after that. And it
doesn’t appear to me that that reference was anything that
resulted or led to Mr. Hoyt’s confession.”
The trial court also examined whether defendant’s
admission was coerced because he was called “a stone-cold
killer” during the interrogation. The court reasoned that use of
that phrase, “in and of itself” was not sufficient to conclude his
admission was coercively obtained. The court acknowledged the
argument’s logic: that if a person is truly a killer, that person
would receive the death penalty and would be required to
demonstrate facts in mitigation in order to avoid that
consequence. The court did not find the detectives’ use of the
phrase “stone-cold killer” to have been used as a threat. Rather,
the court concluded, it was somewhat factual and therefore was
not coercive.
The superior court next examined defendant’s invocation
of his right to remain silent, concluding that the transcript as a
whole reflected defendant’s desire to continue talking. The court
explained that defendant “was not expressing a wish to
terminate the interview, to terminate his colloquy with the
police, he was temporizing it. He didn’t quite know what he
wanted to do, and he was sort of postponing the inevitable, but
he didn’t really want to stop talking because he didn’t quit
talking.” (Italics added.) The court continued, “I don’t think the
officers ever tried to coerce [defendant] into further discussions.
I don’t think they attempted to question him until after it was
obvious that he wanted to resume the discussion. So, I don’t find
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that there’s been any violation of Miranda as far as [defendant]
is concerned.”
The court concluded that defendant’s statement to the
detectives was admissible because he did not “ever vent[] any
real interest in terminating [his] interview.” The court noted
that when defendant sought an overnight break, the detectives
correctly informed him that he would be provided with an
attorney, and that attorney might advise him not to continue
speaking to the detectives. Because defendant continued
talking despite having a basis to cease doing so and because
nothing the detectives told defendant was misleading, the court
concluded defendant’s Miranda rights were not violated. Later
in the colloquy, the parties acknowledge that defendant says,
“Yeah, I think I want to stop there, I think you guys got a pretty
good picture.” The court did not explicitly rule on whether any
statement made following defendant’s invocation was
admissible because the prosecution agreed to terminate the tape
at that point, and the court acknowledged this evidence, the so-
called “Side-B” evidence, was not going to be admitted unless
defendant elected to testify, which had not yet been determined
at the time the court evaluated this statement. Accordingly, the
trial court did not expressly rule on whether the statement that
followed this third invocation was admissible under Miranda.
b. Discussion
The Fifth Amendment provides, “No person . . . shall be
compelled in any criminal case to be a witness against himself
. . . .” (U.S. Const., 5th Amend.) “To safeguard a suspect’s Fifth
Amendment privilege against self-incrimination from the
‘inherently compelling pressures’ of custodial interrogation
(Miranda, supra, 384 U.S. at p. 467), the high court adopted a
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set of prophylactic measures requiring law enforcement officers
to advise an accused of his right to remain silent and to have
counsel present prior to any custodial interrogation (id. at
pp. 444–445).” (People v. Jackson (2016) 1 Cal.5th 269, 338–
339.) During such an interrogation, if a defendant invokes
either the right to remain silent or the right to counsel, “ ‘ “the
interrogation must cease.” ’ ” (Id. at p. 339.) “ ‘[A]n accused . . .
having expressed his desire to deal with the police only through
counsel, is not subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused
himself initiates further communication, exchanges, or
conversations with the police.’ (Edwards v. Arizona (1981) 451
U.S. 477, 484–485.” (Jackson, at p. 339.) “[W]hen, as in this
case, a defendant has waived his Miranda rights and agreed to
talk with police, any subsequent invocation of the right to
counsel or the right to remain silent must be unequivocal and
unambiguous.” (People v. Sanchez (2019) 7 Cal.5th 14, 49
(Sanchez).)
“An involuntary confession may not be introduced into
evidence at trial.” (People v. Carrington (2009) 47 Cal. 4th 145,
169 (Carrington).) It is the prosecution’s burden to establish by
a preponderance of the evidence that the defendant’s confession
was voluntary. (Ibid.) “In determining whether a confession is
involuntary, we consider the totality of the circumstances to see
if a defendant’s choice to confess was not ‘ “ ‘ “essentially
free” ’ ” ’ because his will was overborne by the coercive practices
of his interrogator.” (People v. Spencer (2018) 5 Cal.5th 642,
672.) A “confession [is] not ‘essentially free’ when a suspect’s
confinement was physically oppressive, invocations of his or her
Miranda rights were flagrantly ignored, or the suspect’s mental
state was visibly compromised.” (Ibid.)
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A confession obtained in violation of Edwards and
Miranda is likewise inadmissible during the prosecution’s case-
in-chief. (People v. Peevy (1998) 17 Cal. 4th 1184, 1204–1205.) It
is the prosecution’s burden to establish by a preponderance of
the evidence that the defendant’s waiver of his Miranda rights
was knowing, voluntary, and intelligent. (People v. Jackson,
supra, 1 Cal.5th at p. 339.) In reviewing a trial court’s denial of
a suppression motion, we accept its resolution of factual
disputes when supported by substantial evidence and determine
independently whether, on those facts, a challenged statement
was obtained illegally. (Ibid.)
Defendant raises several challenges to the admission of
his confession to the detectives. Preliminarily, he argues that
the trial court erred by failing to hold an evidentiary hearing
before denying his motion to suppress his confession. Defendant
concedes the trial court asked if he wanted such a hearing and
he declined. The trial court accordingly decided the suppression
issue based on the transcripts and tapes the parties had
submitted to the court. We find no abuse of discretion on this
score.
Defendant argues that his confession is inadmissible
under Edwards v. Arizona, supra, 451 U.S. 477, because he
requested counsel on arrest and did not voluntarily initiate
further contact with the detectives. The record is to the
contrary: It shows defendant did initiate further contact by
requesting an audience with Detective West and Sergeant
Reinstadler, who then renewed Miranda warnings before
proceeding with the interview. Indeed, West reminded
defendant before the interview began in earnest that defendant
had initially asked to speak with an attorney and confirmed that
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he now wanted to make a statement to law enforcement.
Defendant said he did.
Defendant claims, however, that police coerced him into
reinitiating contact through the medium of his mother, who had
cajoled him over the phone to talk to detectives to secure his
release. This claim is utterly devoid of merit. Defendant points
to no evidence suggesting that the police had anything to do with
the conversation with defendant’s mother, except insofar as they
facilitated the conversation by allowing defendant to make a
collect call. There is nothing coercive about allowing a detained
suspect to call his mother.
Defendant also contends he did not act knowingly,
intelligently, and voluntarily when he waived his Miranda and
Edwards rights, due to substantial memory deficits as well as
his limited experience, education, young age, and below average
intelligence. Defendant did not present any evidence of mental
or other impairments at the suppression hearing, so he cannot
now claim the trial court erred in failing to consider them. And
defendant points to nothing else in the record, including his age
(21 at the time of the interview), that would have raised
questions about his ability to understand his rights as they had
been explained to him. The state satisfied its burden of
demonstrating by a preponderance of the evidence that
defendant’s waiver was knowing, intelligent, and voluntary.
(See People v. Nelson (2012) 53 Cal. 4th 367, 375; People v.
Williams (2010) 49 Cal. 4th 405, 425, 428.)
Defendant contends that even if he voluntarily reinitiated
contact with the detectives and waived his Miranda rights, the
detectives later improperly failed to honor his requests to cut off
questioning. Defendant points to two episodes in particular.
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The first episode occurred when defendant asked detectives:
“Do you mind if I go back to my cell and think about tonight and
talk to you guys tomorrow . . . .” Defendant contends that at this
point, detectives should have stopped questioning him. But
after a suspect has waived his Miranda rights, officers are not
required to cease questioning unless the suspect invokes his
rights unambiguously and unequivocally. (Sanchez, supra, 7
Cal.5th at p. 49.) Defendant’s question did not amount to an
unambiguous and unequivocal invocation of the right to cut off
questioning. Nor did the colloquy that followed. Sergeant
Reinstadler told defendant that once he was “arraigned, we can’t
talk to you. That’s the bottom line. I mean, if you want to tell
us something, I’m being honest with you, this is your
opportunity to do it. This is it.” Defendant reiterated his
request to speak with the detectives the next day and was told
“No. I know why. [¶] [Y]ou won’t want to talk to us tomorrow
because somebody’s going to get to you, telling you not to talk to
us. Play the games that we know people play. And then, the
next thing you know, you’re looking at you being triggerman.”
Defendant asked clarifying questions of the detectives about
whether he could speak to them with anonymity, and they
answered his questions. The conversation continued from there.
Because defendant never unambiguously invoked his right to
stop the interview, the detectives were under no obligation to do
so.
Defendant invokes People v. Neal (2003) 31 Cal. 4th 63 in
support of his argument, but that case is easily distinguished.
There, the defendant repeatedly and clearly invoked his rights
to silence and counsel without waiving his rights under
Miranda, only to be ignored by the questioning officer, who
hoped to obtain evidence for impeachment purposes. (Id. at
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p. 74.) Here, by contrast, defendant voluntarily waived his
Miranda rights at the outset of the conversation and did not
unambiguously invoke his right to stop the interview.
The second episode occurred after defendant had spoken
to the detectives for some time about how he had learned he
could erase his debt to Hollywood in exchange for traveling to
Santa Barbara to kill a person unknown to him. When the
detectives asked defendant what happened next, defendant
said, “You guys know what happened. I think I’m going to stop
there for now. Can I get some more water, please?” Defendant
argues that even if the detectives were not obligated to stop
before, they were obligated to stop questioning him at this point.
But once again, defendant never unambiguously invoked his
right to silence. The detectives accommodated his request for
water, and defendant told them a number of things: He thought
the quality of water he had been given was poor; he described
the love he had for his eight-year-old brother; he discussed his
mother and her dependency upon him, his incarcerated brother,
and his drug-addicted sister, all to justify his hesitancy to add
to the story he had thus far provided to the detectives regarding
the crime. Sergeant Reinstadler reminded defendant about his
right to remain silent. Detective West offered to let defendant
“collect [his] thoughts,” and then, to clarify defendant’s
meaning, asked whether defendant wanted only a short break
or to cut off the conversation altogether. Defendant asked for a
cigarette, saying, “I’d love just to take a break. Do some more
thinking.” The detectives and defendant discussed whether
defendant wanted a break overnight or just for a few moments,
and defendant indicated the break he had in mind would be
overnight.
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Sergeant Reinstadler told defendant a break between
“now and tomorrow” would be “too late” because “[o]nce the
lawyer contacts you, we are precluded from speaking with you
anymore, period.” Defendant asked whether a lawyer would
contact him the next day, and the detective explained it was
“normal” and “their job” to do so. Defendant then asked the
detectives whether he had been helpful to them, and Reinstadler
explained that defendant had an opportunity to be of more help,
to fill in more “pieces of the puzzle.” The conversation
continued. At no time did defendant unambiguously signal a
desire to end the interview, even though the detectives gave him
ample opportunity to do so.
Defendant contends that the detectives improperly
coerced him into continuing the conversation when they told
him they would be “precluded” from talking to him again if he
chose to take a break until the next day. Defendant contends
that the detectives’ statements were deceptive and that their
deception undermined the voluntariness of his statements.
“While the use of deception or communication of false
information to a suspect does not alone render a resulting
statement involuntary [citation], such deception is a factor
which weighs against a finding of voluntariness.” (People v.
Hogan (1982) 31 Cal. 3d 815, 840–841.) Here, it was certainly
an exaggeration for the detectives to tell defendant they would
not be able to speak with him again, “period,” if he took a break
and spoke with a lawyer; represented suspects can, of course,
speak with law enforcement officials if they choose. It is unclear
whether the detectives intended to deceive defendant on this
point; what the detectives may have meant to convey is that a
lawyer would likely advise against speaking with detectives—
meaning that, from their perspective, they almost certainly
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would not have another opportunity to speak with defendant.
But in any event, insofar as they spoke in absolutes, the
detectives overstated the case. Regardless, we are not
persuaded the statements rendered defendant’s statement
involuntary. Just before the challenged exchange, the
detectives had reminded defendant that he had the right to
remain silent and the right to speak with a lawyer. Defendant
responded to the exchange by asking for clarification about
when a lawyer would contact him, then went on to ask whether
he had been helpful to the detectives, and the conversation
continued from there. The record does not support defendant’s
claim that he was coerced into continuing to speak with
detectives after he had asked for a break.
Defendant next contends the detectives employed other
coercive interrogation tactics that rendered his confession
involuntary. (See People v. Jackson, supra, 1 Cal.5th at p. 340
[“ ‘ “A confession may be found involuntary if extracted by
threats or violence, obtained by direct or implied promises, or
secured by the exertion of improper influence.” ’ ”].) In
particular, he argues that Detective West and Sergeant
Reinstadler impliedly threatened him by mentioning the death
penalty and that they improperly induced his confession by
exaggerating the evidence against him.
“ ‘In assessing allegedly coercive police tactics, “[t]he
courts have prohibited only those psychological ploys which,
under all the circumstances, are so coercive that they tend to
produce a statement that is both involuntary and unreliable.” ’ ”
(People v. Williams, supra, 49 Cal.4th at p. 436.) As the trial
court found, there was nothing coercive about the detectives’
brief—and accurate—acknowledgment that the death penalty
was a potential punishment for the crimes with which defendant
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was charged, and it does not appear that the mention of the
death penalty prompted defendant’s confession. Nor is urging a
defendant to tell his story before matters go any further an
impermissible law enforcement tactic. (Id. at pp. 438–439, 443;
Carrington, supra, 47 Cal.4th at p. 171.)
As for defendant’s claim that the detectives improperly
exaggerated the strength of the evidence against him, defendant
points to an exchange in which detectives said others had told
them that defendant gagged and shot the victim and dug the
grave, which caused defendant to blurt out, “[T]he only thing I
did was kill him.” As defendant acknowledges, however, “the
use of deceptive comments does not necessarily render a
statement involuntary. Deception does not undermine the
voluntariness of a defendant’s statements to the authorities
unless the deception is ‘ “ ‘of a type reasonably likely to procure
an untrue statement.’ ” ’ ” (People v. Williams, supra, 49 Cal.4th
at p. 443.) Defendant fails to explain why, in his view, the
detectives’ questioning fits that description. The only element
of deception in the relevant exchange was the detectives’
assertion that others had told them defendant had dug Nick’s
grave, but defendant fails to explain how the assertion
undermined the voluntariness of defendant’s claim to have
“only” killed Nick.
Defendant’s final challenge to the admission of his
confession concerns the introduction of the last exchange that
took place between the detectives and defendant after defendant
told the detectives, “I think I want to stop there. I think you
guys got a pretty good picture.” In the colloquy that followed,
Reinstadler asked defendant if “there ever [was] a time when
right before you pulled the trigger that you just thought, you
know I shouldn’t do this? This is wrong. Because I haven’t
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heard that from you.” Defendant asked if the detectives wanted
his “honest[]” response and when they answered in the
affirmative, he told them, “Hell, yes. Right before.” Defendant
now argues that this exchange—what he refers to as “side B”9
evidence—should have been excluded, or an effective limiting
instruction should have been given.
The Attorney General does not dispute that defendant had
unequivocally invoked his right to remain silent before this
exchange. Nonetheless, we conclude defendant’s claim lacks
merit. As the high court made clear in Harris v. New York
(1971) 401 U.S. 222, 225–226, “although statements elicited in
violation of Miranda are generally not admissible, statements
that are otherwise voluntarily made may be used to impeach the
defendant’s trial testimony.” (People v. Case (2018) 5 Cal.5th 1,
18.) Defendant argues that the trial court should have excluded
the evidence altogether as a sanction for the detectives’
deliberate violation of defendant’s right to remain silent. But
even if defendant’s characterization were correct, the “side B”
evidence would nevertheless be admissible as impeachment
evidence. (People v. Peevy, supra, 17 Cal.4th at p. 1188; People
v. Nguyen (2015) 61 Cal. 4th 1015, 1076.)
As for defendant’s argument about jury instructions, the
jury was, in fact, instructed that it was to consider the “side B”
evidence only for purposes of impeachment, and not as evidence
of guilt. To the extent defendant would have preferred for the
instruction be phrased differently to make it more effective, it
was his obligation to request a correction of the instruction given
9
This exchange was captured on the second side, or “side B”
of the audiotape used to record Detective West’s and Sergeant
Reinstadler’s interview with defendant.
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or seek a new, more specific instruction. (People v. Chism (2014)
58 Cal. 4th 1266, 1308.) Having done neither, defendant has
forfeited the claim on appeal. Accordingly, we conclude no error
arose from the introduction of the “side B” evidence for
impeachment purposes.
3. Defendant’s Testimony
Defendant argues the court violated his rights under the
Fifth and Sixth Amendments to the United States Constitution
by compelling him to testify as a foundation for testimony by his
expert, Dr. Michael Kania, that his confession was false. We
conclude his claim is forfeited and lacks merit in any event.
The defense proposed calling Dr. Kania to testify that
defendant’s confession was false. The trial court held a hearing
under Evidence Code section 402 to determine the admissibility
of that testimony.10 During the hearing, the court and parties
discussed the possibility of defendant testifying before
Dr. Kania to provide a foundation for Dr. Kania’s testimony.
Specifically, the court indicated its assumption that “defendant
is going to testify that he doesn’t remember giving that
interview” to police to contextualize Dr. Kania’s opinion about
anxiety causing amnesia of the sort defendant alleges he
suffered. The defense did not object at this juncture or indicate
10
Evidence Code section 402, subdivision (a) provides:
“When the existence of a preliminary fact is disputed, its
existence or nonexistence shall be determined as provided in
this article.” Subdivision (b) provides: “The court may hear and
determine the question of the admissibility of evidence out of the
presence or hearing of the jury; but in a criminal action, the
court shall hear and determine the question of the admissibility
of a confession or admission of the defendant out of the presence
and hearing of the jury if any party so requests.”
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there was uncertainty about whether or when defendant
planned to testify. The court “made it clear that I don’t believe
that [Dr. Kania] can get on the stand and testify to things that
he was told [while interviewing defendant] and, in effect,
present the defendant’s defense, the defendant’s own testimony
through the interview, I’ve said he can’t do that.” Defendant
raised no objection to the court’s characterization. The court
informed counsel that Dr. Kania’s testimony would be limited to
his opinion about defendant’s anxiety and amnesia, not the
content of Dr. Kania’s interview with defendant. The court
explained, “I’m not going to let him [Dr. Kania] testify as to
circumstances, the things that he was told by the defendant.
The defendant can testify to those things and he [defendant] can
be asked questions about it.” The court further rejected defense
counsel’s argument that Dr. Kania should be permitted to
testify as to whether or not defendant gave a false confession,
concluding the issue was one for the jury to decide. Defense
counsel responded: “We understand your ruling. We object to
it on state and federal due process grounds, but we accept it.”
Defendant now claims that he testified at trial only
because the court compelled him to do so on pain of forfeiting
the ability to present Dr. Kania’s expert testimony. This
compulsion, he argues, violated his Fifth and Sixth Amendment
rights. The record does not support the claim. It is true that
the trial court observed that an adequate foundation would need
to be laid for the expert’s testimony. It is also true that the trial
court at various times appeared to assume—without
contradiction from defense counsel—that defendant would
supply the necessary foundation through his testimony. But the
trial court did not rule that Dr. Kania’s testimony would be
permitted if and only if defendant took the stand, nor did
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defendant object on the ground that the trial court had, in effect,
issued such a ruling. Nor has defendant established it would
have been futile to raise such an objection; had he objected, the
court could have considered whether, as he now claims,
defendant’s testimony was in fact unnecessary to lay the
foundation for Dr. Kania’s opinion. By failing to object in the
trial court, defendant has forfeited the claim on appeal.
To the extent defendant argues it was error for the court
to make admission of Dr. Kania’s testimony contingent on the
introduction of foundational evidence, the claim lacks merit.
Defendant sought to present expert testimony that he suffered
anxiety-induced amnesia and did not recall confessing. But
without some foundational evidence that defendant did not
remember the confession, Dr. Kania’s opinion would lack
relevance. Dr. Kania could not be the source of the evidence that
defendant did not remember his confession because that
information would be the product of inadmissible hearsay,
having originated from Dr. Kania’s interviews with defendant.
(Evid. Code, § 1200.) An adequate foundation was, in fact,
required.
Despite defendant’s arguments to the contrary, nothing in
that conclusion contradicts the high court’s teachings in Crane
v. Kentucky (1986) 476 U.S. 683, 689. In that case, the high
court held that when the prosecution’s case was based on the
defendant’s confession, it was error to preclude the defendant
from introducing evidence about the manner in which his
confession was obtained as part of his defense. (Id. at p. 691.)
But Crane does not require the admission of any and all defense-
proffered evidence about the circumstances of a confession,
without regard to the ordinary rules of evidence.
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Defendant also argues that the trial court violated his
constitutional rights by effectively requiring him to testify
before Dr. Kania. Defendant relies on Brooks v. Tennessee
(1972) 406 U.S. 605, in which the United States Supreme Court
struck down a Tennessee statute requiring a defendant to testify
first or not at all because it deprived “the accused and his
lawyer” of the “opportunity to evaluate the actual worth of their
evidence” and make tactical decisions after observing the
testimony of other defense witnesses. (Id. at p. 612.) Here, the
trial court placed no comparable restrictions on defendant. The
court and parties both appear to have simply assumed that
defendant would testify before Dr. Kania, so that Dr. Kania’s
testimony could be properly contextualized. But defendant
never gave any indication that he planned or hoped to testify
after Dr. Kania. Because defendant raised no concerns, we
conclude this objection is forfeited on appeal. (See, e.g., People
v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th 335, 371
(Bryant).)
Defendant also claims that the court improperly limited
his own direct testimony in a few instances. In some of these
instances, review of the record reveals defendant is simply
incorrect. For example, he claims he was not permitted to
answer whether he would have been willing to go to prison for
life in Hollywood’s place at the time he was arrested. Although
there was an objection, the question was rephrased, and
defendant was given an opportunity to, and did, respond. As for
the claim that defendant was improperly precluded from
explaining what he meant by certain words he used in his
confession, there was nothing improper in this ruling. The trial
court permitted defendant to testify as to the truthfulness of his
incriminating statements, but not what he meant at the time he
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said them, since he claimed not to recall having uttered the
words in the first place. The trial court did not abuse its
discretion by ruling that defendant could not speculate about
what he might have meant by words he claimed not to remember
saying. (See People v. Riggs (2008) 44 Cal. 4th 248, 289 [trial
court has discretion to determine the relevance of evidence].)
Defendant claims the ruling violates People v. Webb (1993) 6
Cal. 4th 494, 535, in which we said that “a defendant’s absolute
right to testify cannot be foreclosed or censored based on
content.” But Webb concerns a defendant’s right to testify
against the advice of counsel, where such testimony will have a
deleterious effect necessitating special jury instructions. Webb
neither holds nor suggests that a testifying defendant is entitled
to speculate about matters of which he or she claims no direct
knowledge.
4. Expert Witness Testimony
Defendant argues that the trial court erred by limiting
Dr. Kania’s and Dr. Glaser’s testimony. With regard to
Dr. Kania, defendant contends the trial court categorically
excluded testimony regarding defendant’s statements during
certain interviews, which defendant claims was admissible for
nonhearsay purposes. He alleges the court erred by prohibiting
Dr. Kania from explaining that accepting telephone calls from
his mother provoked anxiety in defendant. He also alleges
Dr. Kania was prohibited from describing the effects of
defendant’s personality disorders, his relationship with
Hollywood, his sleep deprivation, and drug intoxication on his
alleged false confession. Defendant fails to provide any citation
to the record for these alleged prohibitions and makes no
assertion that he made contemporaneous objections, and we
have not located any passage showing that defendant attempted
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to offer this testimony but was precluded from so doing. Both
by failing to interject contemporaneous objections and by failing
to support his appellate arguments with record citations,
defendant has forfeited any claim of error on appeal. (See People
v. Tully, supra, 54 Cal.4th at p. 1061; People v. Stanley (1995)
10 Cal. 4th 764, 793.) In any event, whatever errors defendant
now claims occurred could not have affected the outcome of the
case; Dr. Kania testified at length about defendant’s alleged
anxiety-inducted amnesia based on his evaluation of defendant.
Defendant also claims the trial court erred by permitting
Dr. Glaser to testify for the prosecution whether, in his opinion,
defendant’s claimed amnesia was a fabrication, while
“Dr. Kania was not permitted to share his opinion that
[defendant’s] confession was false in most respects.” There is,
however, no inconsistency in the court’s treatment of the two
experts. Dr. Kania was permitted to offer his opinion on
precisely the same subject as Dr. Glaser, testifying that he
believed defendant’s claim of amnesia was credible.
Finally, defendant contends the court erred by denying his
request to recall Dr. Kania for purposes of responding to the
prosecutor’s experts’ reports and their testimony. We review for
abuse of discretion a trial court’s decision to exclude surrebuttal
evidence, and we see none here. (People v. Marshall (1996) 13
Cal. 4th 799, 836.) Defendant does not explain what it was,
precisely, about the experts’ reports or testimony that required
a further response via additional testimony from Dr. Kania, nor
did defendant offer such an explanation to the trial court. The
claim is therefore forfeited on appeal. Defendant also argues
that Dr. Kania should have been permitted to testify in
surrebuttal as to the content of defendant’s interviews with him
in order to respond to the prosecution’s evidence that
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defendant’s claimed amnesia was a fabrication. The trial court
did not abuse its discretion in ruling that this was largely
territory that had already been covered and did not require
additional surrebuttal evidence. If any error occurred, it was
not prejudicial. (See Chapman v. California (1967) 386 U.S. 18,
24; People v. Watson (1956) 46 Cal. 2d 818, 836–837 (Watson).)
5. Psychiatric Examination
Defendant argues the trial court erred by compelling him
to undergo a prosecution-conducted psychiatric examination.
The Attorney General concedes the compelled examination was
error but argues it did not prejudice defendant. We agree.
Before trial, the prosecution moved to compel defendant to
undergo a psychiatric examination by prosecution experts. In
support of the motion, the prosecution argued defendant had
placed his mental state at issue by claiming he gave a false
confession induced by various psychological factors. The defense
objected. After hearing argument, the court granted the motion.
The court opined that when “a defendant presents expert
psychological or psychiatric evidence” explaining his conduct,
“the prosecution is entitled to rebut that evidence, and the only
realistic manner in which the prosecution can do that is to be
entitled to have a psychiatric evaluation of its own in order to
prepare an expert to testify.”
The prosecution retained Drs. Glaser and Chidekel, both
of whom testified for the prosecution in rebuttal. Dr. Glaser
testified that after examining defendant and reviewing a great
deal of case information, he concluded defendant suffered from
“no current major mental illness,” but had low self-esteem, was
uncomfortable acknowledging his feelings, and was willing to
suffer “unpleasant conditions” to remain near the person on
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whom he was dependent. Defendant had no disorders rendering
it more likely that he would falsely confess. Dr. Glaser also
evaluated defendant for amnesia and concluded defendant was
malingering because he recalled nothing even after being given
cues from the transcripts.
Dr. Chidekel evaluated defendant, administering
numerous psychological tests, and determined defendant
suffered from “avoidance [sic] personality disorder, with self-
defeating and dependent features.” Based on the tests
administered, Dr. Chidekel was otherwise unable to diagnose
defendant with any neuropsychological condition that interfered
with his “ability to see, to understand, or to be able to
communicate effectively.”
We have previously described the shifts in the law
governing court-ordered psychological examinations like the one
ordered in this case. “At the time of defendant’s trial in [2001],
decisional law authorized trial courts to order a defendant who
placed his or her mental state in issue to submit to mental
examination by prosecution experts. [Citation.] This court later
held that after the 1990 passage of Proposition 115 (the Crime
Victims Justice Reform Act), which resulted in the enactment of
the criminal discovery statutes, the courts ‘are no longer free to
create such a rule of criminal procedure, untethered to a
statutory or constitutional base.’ (Verdin v. Superior Court
(2008) 43 Cal. 4th 1096, 1116 (Verdin).) We have applied Verdin
retroactively.” (People v. Clark (2011) 52 Cal. 4th 856, 939, fn.
omitted (Clark).)
“Shortly after Verdin, the Legislature amended [Penal
Code] section 1054.3 to expressly authorize courts to compel a
mental examination by a prosecution-retained expert. (See
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[Pen. Code,] § 1054.3, subd. (b), as amended by Stats. 2009, ch.
297, § 1.)” (People v. Banks (2014) 59 Cal. 4th 1113, 1193.) But
in Banks, we concluded that Verdin continues to apply to cases
predating that amendment. (Banks, at p. 1193.) This is such a
case. For that reason, the Attorney General concedes that
“Verdin compels the conclusion that it was error under state law
to require [defendant] to submit to mental examinations by
prosecution experts.” It follows that it was also error for the
trial court to admit testimony by the prosecution’s experts based
on their interviews with defendants. (Clark, supra, 52 Cal.4th
at p. 940.) The Attorney General urges, however, that these
errors were harmless under the relevant standard articulated in
Watson, supra, 46 Cal.2d at page 836. We agree.
In Clark, supra, 52 Cal.4th at page 940, we rejected the
argument that errors in mandating examination by prosecution
experts are subject to review under the more demanding
standard for federal constitutional error set forth in Chapman
v. California, supra, 386 U.S. 18. We explained that we were
aware of no decision “holding that the Fifth Amendment or any
other federal constitutional provision prohibits a court from
ordering a defendant who has placed his or her mental state in
issue to submit to a mental examination by a prosecution
expert.” (Clark, at p. 940.) “We thus assess the errors for
prejudice under the standard for state law error, inquiring
whether there is a reasonable probability that the outcome of
trial would have been more favorable to defendant had the court
not ordered him to submit to examinations by” prosecution-
retained experts. (Id. at pp. 940–941.)
We conclude it is not reasonably probable that the outcome
of the trial would have been more favorable had defendant not
undergone examinations conducted by prosecution-retained
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experts. Defendant gave his friend Casey Sheehan a detailed
confession to Nick’s murder and confessed to the detectives that
“the only thing he did was kill” Nick. The details of defendant’s
confession to Sheehan were corroborated by witnesses who
spent time with Nick at the Lemon Tree Inn before he was killed
and those who found his body in a shallow grave covered by a
bush. On the other hand, defendant’s claim of amnesia was a
highly selective one: He claimed that although he remembered
enough of the events surrounding the crimes to exonerate
himself and shift blame to his codefendants, he experienced a
brief lapse in memory that happened to coincide with the period
during which he confessed to police detectives. It is not
reasonably probable that, had the prosecution’s experts not
testified to their findings based on their examination of
defendant, the jury would have discredited defendant’s
confessions and instead credited his claim of amnesia. Under
the circumstances, we conclude there is no reasonable
probability that the jury would have reached a result more
favorable to defendant had the court not issued an order
requiring him to submit to mental examination by Drs. Glaser
and Chidekel and had these experts not testified against
defendant based on those examinations.
6. Prosecutorial Misconduct During the
Guilt Phase Closing Argument
Defendant alleges the prosecutor engaged in numerous
instances of misconduct during his closing argument. He failed
to object to nearly all such instances and has therefore forfeited
these claims on appeal. In any event, no misconduct occurred.
As we have explained, to preserve a claim of prosecutorial
misconduct for appeal, “ ‘ “a criminal defendant must make a
timely and specific objection and ask the trial court to admonish
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the jury to disregard the impropriety.” ’ [Citation.] The lack of
a timely objection and request for admonition will be excused
only if either would have been futile or if an admonition would
not have cured the harm.” (People v. Powell (2018) 6 Cal.5th
136, 171.) “ ‘ “A prosecutor’s misconduct violates the Fourteenth
Amendment to the United States Constitution when it ‘infects
the trial with such unfairness as to make the conviction a denial
of due process.’ [Citations.] In other words, the misconduct
must be ‘of sufficient significance to result in the denial of the
defendant’s right to a fair trial.’ [Citation.] A prosecutor’s
misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves ‘the use of
deceptive or reprehensible methods to attempt to persuade
either the court or the jury.’ ” ’ ” (Id. at p. 172.) To the extent
the alleged instances of misconduct were not forfeited by
defendant’s failure to object, we conclude none infected the trial
with unfairness or deceived the court or jury.
Defendant first contends that the prosecutor argued “facts
not in evidence” when he stated in closing argument that
defendant did “ ‘considerably more’ ” than shoot the victim and
was “ ‘probably involved in the taping and the burial process, if
not digging the grave.’ ” Defendant did not object to this
argument at trial and does not argue that objection would have
been futile. The claim is therefore forfeited. (See People
v. Powell, supra, 6 Cal.5th at p. 171.)
But the claim lacks merit in any event. Defendant’s
argument presumes that the only basis for the prosecutor’s
argument was certain statements conveyed by Pressley to
Detective Jerry Cornell. Detective Cornell testified to some of
Pressley’s out-of-court statements at trial, but because Pressley
himself did not testify, Detective Cornell was not permitted to
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relay certain statements implicating defendant in the grave-
digging and burial. When Detective Cornell nevertheless
testified that Pressley had said “they”—presumably meaning
both Pressley and defendant—had buried the victim, the trial
court admonished the jury to ignore the use of the pronoun
“they” and to consider only that portion of Detective Cornell’s
statement relaying that Pressley went to Lizard’s Mouth and
dug the grave. Defendant argues that the prosecution violated
the court’s ruling by referring to Pressley’s statements in closing
argument.
Pressley’s statements were not, however, the only basis for
the argument. Sheehan told the jury that defendant came to
him asking for advice and told him Nick had been shot
“somewhere in the middle of nowhere.” Defendant also told
Sheehan that after shooting the victim, he put a bush over him.
This testimony was consistent with the evidence of where and
how hikers found Nick’s body. The prosecutor’s reference to
defendant “probably” doing more than shooting the victim was
a reasonable commentary on the evidence and does not
constitute misconduct. (See People v. Farnam (2002) 28 Cal. 4th
107, 168.)
Defendant next argues that the prosecutor committed
misconduct by telling the jury that none of the experts, including
Dr. Kania, testified that defendant gave a false confession.
Defendant objected to the argument on the ground that the
prosecution was “arguing the Court’s restriction on the
evidence.” In response, the trial court clarified for the jury that
none of the experts had so testified because the court had
previously ruled that no expert would be permitted to give an
opinion as to whether or not a false confession was given in this
case; the question was instead one for the jury to decide. Both
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the prosecutor and defense counsel thanked the court for the
clarification, and the prosecutor resumed the closing argument.
To the extent defendant now believes the trial court’s
clarification was insufficient, he has forfeited the objection.
(People v. Powell, supra, 6 Cal.5th at p. 171.) But even were his
claim preserved, we would find no error. The prosecutor’s
remarks were accurate, if susceptible to misunderstanding. The
court cleared up any possible misunderstanding with its
clarification. (See ibid.)
Defendant also argues that the prosecutor referred in
closing argument to “side B” of defendant’s confession, during
which defendant was asked whether it occurred to him that
what he was doing was “wrong” and defendant replied,
“Honestly? [¶] Hell yes. Right before.” Defendant has forfeited
any challenge to the prosecutor’s argument regarding “side B”
of defendant’s confession by failing to object. (People v. Powell,
supra, 6 Cal.5th at p. 171.)
Defendant argues that the prosecutor committed
misconduct during the guilt phase closing argument by making
improper remarks about witness Sheehan, who had testified
under a grant of immunity. First, the prosecutor argued the jury
could be assured that Sheehan would be even more truthful
than other witnesses because he was subject to greater
consequences for lying. Second, the prosecutor argued the jury
could infer that Sheehan would not have needed immunity if
defendant were innocent because otherwise Sheehan would
have been harboring a friend, not a fugitive. Defendant
objected, claiming the prosecution’s argument was speculative.
The court sustained the objection and admonished the jury to
disregard the prosecutor’s remarks. Defendant now renews his
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objection to the prosecutor’s remarks, arguing the prosecutor
impermissibly vouched for Sheehan based on the prosecutor’s
own personal beliefs (and decisions about how and why to grant
witness immunity), rather than evidence in the record. (See
People v. Martinez (2010) 47 Cal. 4th 911, 958.) But defendant
offers no persuasive reason to believe the trial court’s
admonition to disregard the prosecutor’s brief, passing remarks
was insufficient to cure any unfairness. We see no basis for
reversal.
Finally, defendant argues that the prosecutor committed
misconduct by spending six transcript pages describing the
“original” kidnap, in which defendant was not involved. In fact,
the prosecutor spent less than two transcript pages describing
the kidnapping, and some of the events described involved
defendant. The prosecutor referred to the victim’s abduction
from West Hills, his time in Santa Barbara, and his murder,
arguing “there is a kidnapping at the very beginning, there’s a
kidnapping at the very end. Is there a kidnapping in between?
Okay.” The defense did not object to this discussion. Assuming
for the sake of argument that this claim is not forfeited despite
the lack of specific, contemporaneous objection (see People v.
Seumanu (2015) 61 Cal. 4th 1293, 1339), we find no misconduct
because the prosecutor has “wide latitude to comment on the
evidence during closing argument.” (People v. Peoples (2016) 62
Cal. 4th 718, 797.) Discussion of a significant aspect of the
criminal endeavor that culminated in the victim’s death during
closing argument constitutes a reasonable comment. (Ibid.)
7. Instructional Error Concerning
Accomplices and Immunity
Defendant argues the trial court erred by failing to modify
CALJIC No. 3.16, concerning accomplice testimony, and
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CALJIC No. 2.20, concerning witness credibility. Defendant
also argues the court erred by failing to give CALJIC No. 3.19,
concerning the determination whether a corroborating witness
is an accomplice. We find no grounds for reversal.
a. CALJIC No. 3.16
Penal Code section 1111 provides that an accomplice’s
testimony cannot support a conviction without corroboration by
other evidence “as shall tend to connect the defendant with the
commission of the offense; and the corroboration is not sufficient
if it merely shows the commission of the offense or the
circumstances thereof.” The statute defines an accomplice as
“one who is liable to prosecution for the identical offense charged
against the defendant on trial in the cause in which the
testimony of the accomplice is given.” (Ibid.; People v. Gomez
(2018) 6 Cal.5th 243, 307; see id. at p. 308.)
On November 2, 2001, defendant submitted his list of
proposed jury instructions, which included CALJIC No. 3.16,
Witness Accomplice as Matter of Law. Defendant listed Rugge,
Pressley, Hollywood, Sheehan, and Affronti among the
witnesses to be included in the instruction. But when the jury
was ultimately instructed with CALJIC No. 3.16, the
instruction named only two of these individuals: “If the crimes
charged were committed by anyone, Jesse Rugge and Graham
Pressley were accomplices as a matter of law and their
testimony is subject to the rule requiring corroboration.”
The record does not reveal why the instruction named only
Rugge and Pressley. Defendant explains that the trial court
conducted an “ ‘informal’ ” conference with the attorneys to
address jury instructions, and the content of that conference was
not settled or recorded. Defendant argues he should not be
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faulted for the lack of recorded proceedings and contends the
denial of his request to name Skidmore, Hollywood, and
Sheehan in CALJIC No. 3.16 should be deemed preserved for
appeal.
Even assuming the claim has been adequately preserved,
the claim lacks merit. Although the informal conference may
not have been recorded, defense counsel conceded on the record
that Sheehan was not an accomplice and was therefore not an
appropriate person to include among those listed in CALJIC
No. 3.16. And although Skidmore and Hollywood “meet [Penal
Code] section 1111’s definition of an accomplice” in that “[e]ach
was liable to prosecution . . . for the identical offenses charged
against defendant” (People v. Williams (1997) 16 Cal. 4th 635,
682), neither Skidmore nor Hollywood provided statements
requiring corroboration, which is the concern of CALJIC
No. 3.16.
“A court must instruct on the need for corroboration only
for accomplice testimony ([Pen. Code,] § 1111); ‘ “ ‘testimony’
within the meaning of . . . [Penal Code] section 1111 includes all
oral statements made by an accomplice or coconspirator under
oath in a court proceeding and all out-of-court statements of
accomplices and coconspirators used as substantive evidence of
guilt which are made under suspect circumstances.” ’ ” (People
v. Williams, supra, 16 Cal.4th at p. 682.) “ ‘The most obvious
suspect circumstances occur when the accomplice has been
arrested or is questioned by the police.’ [Citation.] ‘On the other
hand, when the out-of-court statements are not given under
suspect circumstances, those statements do not qualify as
“testimony” and hence need not be corroborated under . . .
section 1111.’ ” (People v. Williams (1997) 16 Cal. 4th 153, 245.)
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Here, neither Skidmore nor Hollywood testified at trial,
but defendant identifies various out-of-court statements they
made that were admitted through other witnesses. For
example, defendant himself testified Skidmore had told him
“Ben’s brother had been killed” several days before Nick’s body
was found. Other witnesses testified to statements Hollywood
made to his fellow codefendants and others about Nick’s kidnap.
And witnesses reported statements Hollywood made to his
father and Hogg in which Hollywood described the crime
without owning up to his role in it. But none of these statements
were made under “suspect circumstances” undermining their
reliability. (People v. Williams, supra, 16 Cal.4th at p. 682
[“[S]tatements made in the course of and in furtherance of the
conspiracy were not made under suspect circumstances and
therefore were sufficiently reliable to require no
corroboration.”].) Accordingly, we find no error in the trial
court’s decision not to name Skidmore and Hollywood in the jury
instruction concerning corroboration of accomplice testimony.
b. CALJIC No. 3.19
Defendant also requested that the jury be instructed with
CALJIC No. 3.19, entitled “Burden to Prove Corroborating
Witness Is an Accomplice.” The instruction states: “You must
determine whether the witness [blank] was an accomplice as I
have defined that term. [¶] The defendant has the burden of
proving by a preponderance of the evidence that [blank] was an
accomplice in the crime[s] charged against the defendant.”
(CALJIC No. 3.19.) Defendant now says he proposed filling the
blank with witness Casey Sheehan and argues that whether
Sheehan was an accomplice constituted a question of fact the
jury should have been permitted to determine.
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We conclude the claim of error fails because, as noted
above, defense counsel agreed on the record that Sheehan—who
was not charged with any of the same offenses as defendant or
his codefendants—was not an accomplice. In any event, any
error would have been harmless because the jury was
adequately instructed concerning the definition of accomplices
pursuant to CALJIC No. 3.10, which states that “[a]n
accomplice is a person who [is] . . . subject to prosecution for the
identical offense charged . . . against the defendant on trial by
reason of . . . [being a member of a criminal conspiracy],” and the
need for corroboration of accomplice testimony. It is not
reasonably probable the jury would have returned a more
favorable result had it also been instructed with CALJIC
No. 3.19. (Watson, supra, 46 Cal.2d at p. 837 [setting forth
standard for evaluating harmlessness of state law error]; see
People v. Carpenter (1997) 15 Cal. 4th 312, 393 [“Mere
instructional error under state law regarding how the jury
should consider evidence does not violate the United States
Constitution”].)
c. CALJIC No. 2.20
At trial, the jury was instructed with CALJIC No. 2.20
concerning the “believability of a witness.” The instruction told
jurors to “consider anything that has a tendency reasonably to
prove or disprove the truthfulness” of witness testimony and
listed numerous factors, including “demeanor,” whether the
witness had “bias, interest, or other motive” to testify, and
“[w]hether the witness is testifying under a grant of immunity.”
Defendant argues that, unbeknownst to the jury, a number of
witnesses in addition to Sheehan—namely, Adams-Young,
Affronti, Carpenter, Hogg, John Hollywood, and Lasher—
received immunity in exchange for their testimony. He contends
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the court should have modified CALJIC No. 2.20 to specifically
identify all of the witnesses testifying under a grant of immunity
and to advise the jury to view their testimony with “ ‘care and
caution.’ ”
At trial, defendant made no request to identify any
declarant other than Sheehan who testified under a grant of
immunity and thus forfeited that claim. But the claim fails
regardless. There is no duty to instruct a jury that the testimony
of immunized witnesses must be viewed with care and caution.
(People v. Daniels (1991) 52 Cal. 3d 815, 867, fn. 20 [“Defendant
points to no authority requiring the court to instruct the jury
that immunized-witness testimony is to be viewed with distrust.
We have held that the court has no such duty to instruct sua
sponte.”]; see also People v. Leach (1985) 41 Cal. 3d 92, 106.) It
follows that the trial court did not err by failing to convey to the
jury, via modification of CALJIC No. 2.20, which witnesses were
testifying under a grant of immunity.
Finally, and in any event, the trial court’s failure to modify
CALJIC No. 2.20 could not have prejudiced defendant. The role
these six witnesses played in the prosecution’s case was minimal
when compared with the substantial evidence of guilt presented
at trial unrelated to their testimony, including defendant’s own
detailed confession and Sheehan’s testimony that defendant
killed the victim. Moreover, the jury was instructed to consider
the witnesses’ “bias, interest, or other motive” for testifying.
(CALJIC No. 2.20.) It is not reasonably probable defendant
would have achieved a more favorable result if jurors viewed the
testimony of these six peripheral witnesses with somewhat
greater caution. (See People v. Lewis (2001) 26 Cal. 4th 334, 371;
Watson, supra, 46 Cal.2d at p. 836.)
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D. Special Circumstances Claim
At one time, proof of the kidnap-murder special
circumstance required that the prosecution show a defendant
had an independent felonious purpose, “ ‘that is, the commission
of the [kidnapping] felony was not merely incidental to an
intended murder.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 62–63;
id. at p. 117; see People v. Brents, supra, 53 Cal.4th at pp. 608–
609.) The statute was amended to eliminate this independent
felonious purpose requirement in 1998, five months before the
crimes at issue here. (See Pen. Code, § 190.2, subd. (a)(17)(M),
added by Stats. 1998, ch. 629, § 2, p. 4165, and approved by
voters, Primary Elec. (Mar. 7, 2000); Brooks, at p. 63, fn. 8;
Brents, at pp. 608–609, fn. 4.)11 Nonetheless, the jury in this
case was instructed to find an independent felonious purpose to
kidnap. Defendant now argues the evidence was insufficient to
support the jury’s finding. And although he acknowledges that
the statute then in force did not, in fact, require the jury to make
such a finding, defendant contends that without the
independent felonious purpose requirement, the kidnap-murder
special circumstance is unconstitutional. We reject the first part
of this argument, which makes it unnecessary to address the
second: Because the jury was instructed on the independent
felonious purpose requirement and because the evidence was
sufficient to support the jury’s finding that the requirement was
11
As amended in 1998, Penal Code section 190.2,
subdivision (a)(17)(M) provides, “To prove the special
circumstance[] of kidnapping[,] . . . if there is specific intent to
kill, it is only required that there be proof of the elements of
th[at] felon[y]. If so established, [the] special circumstance[] [is]
proven even if the felony of kidnapping . . . is committed
primarily or solely for the purpose of facilitating the murder.”
(Italics added.)
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satisfied, we need not decide here whether the kidnap-murder
special circumstance is constitutional in the absence of an
independent felonious purpose requirement. (See, e.g., Loeffler
v. Target Corp. (2014) 58 Cal. 4th 1081, 1102 [“Our jurisprudence
directs that we avoid resolving constitutional questions if the
issue may be resolved on narrower grounds.”]; see id. at p. 1103.)
The jury here was instructed that, to find the special
circumstance of kidnap felony murder true, “it must be proved,
one, the murder was committed while the Defendant was
engaged in the commission of a kidnapping; or, two, the murder
was committed in order to carry out or advance the commission
of the crime of kidnap, or to facilitate the escape therefrom, or
to avoid detection. In other words, the special circumstance
referred to in these instructions is not established if the kidnap
was merely incidental to the commission of the murder.”12
“ ‘In reviewing the sufficiency of the evidence, we must
determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
12
At oral argument, defendant argued for the first time that
this instruction was defective because the “or” in the first
sentence of the instruction would have conveyed to the jury that
it could find the special circumstance true so long as it concluded
that “the murder was committed while the Defendant was
engaged in the commission of a kidnapping,” even if it did not
find that defendant had an independent purpose to kidnap Nick.
While it does appear the disjunctive “or” in the first sentence
was included in error, we see no likelihood that the jury was
confused by it. The second sentence of the instruction
unambiguously informed the jury that “the special circumstance
. . . is not established if the kidnap was merely incidental to the
commission of the murder.” The instruction thus expressly told
the jurors that they must find an independent felonious purpose
to find the special circumstance true.
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found [this] element[] of the crime beyond a reasonable doubt.” ’
[Citation.] ‘Substantial evidence’ is evidence which is
‘ “reasonable in nature, credible, and of solid value.” ’ ” (People
v. Morgan (2007) 42 Cal. 4th 593, 613–614.)
Defendant’s sufficiency of the evidence argument depends
on the premise that the evidence established two separate
kidnappings, only the second of which involved defendant.
Defendant argues that “the jury may have applied an incorrect
theory if it believed [defendant] committed the murder in order
to assist Hollywood in avoiding detection for the August 6th
completed kidnap.” And to the extent the jury instead focused
on defendant’s later act of moving Nick to the gravesite at
Lizard’s Mouth, defendant argues there was insufficient
evidence to support a finding that defendant had an
independent purpose to kidnap Nick: “[N]o properly-instructed
rational trier of fact could have found that this ‘second kidnap’
(if it were a ‘kidnap’) was not merely incidental to the murder,
with the murder being the defendant’s primary purpose.”
Defendant’s argument suffers from an overly narrow view
of the kidnap, one inconsistent with our duty to view the
evidence in the light most favorable to the prosecution. As
already noted, the indictment charged defendant and his
codefendants with a continuing kidnapping offense that
extended over the period of time from when the victim left his
home and was taken to Santa Barbara, to the time he spent in
Santa Barbara, and the time he was taken from locations within
Santa Barbara to the site of his murder. As previously
discussed, there was evidence from which a jury could conclude
defendant moved Nick against his will as part of that single,
continuous kidnapping. In addition, there was evidence from
which the jury could conclude the murder was committed to
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“advance the commission of the crime of kidnap, or to facilitate
the escape therefrom, or to avoid detection.” The jury could
conclude that Nick was murdered to silence him and eliminate
the risk the kidnappers—including defendant, who belatedly
joined in the kidnapping—would be caught and that defendant
shared that purpose. In short, there was substantial evidence
from which the jury could conclude the kidnap was more than
incidental to the murder—indeed, that the kidnap was the
reason for the murder and not the other way around.
E. Penalty Phase Claims
1. Prosecutorial Misconduct During the
Penalty Phase Closing Argument
Defendant argues his rights to due process, a fair trial,
and a reliable penalty determination under the Fifth, Sixth, and
Eighth Amendments to the United States Constitution were
violated by the prosecutor’s prejudicial misconduct during
penalty phase closing argument. We hold defendant’s claims of
prosecutorial misconduct are forfeited and lack merit in any
event.
a. Background
During penalty phase closing argument, the prosecutor
described the various factors in aggravation and mitigation
under Penal Code section 190.3, including factor (k).
Specifically, the prosecutor explained that factor (k) evidence
included “ ‘[a]ny other circumstances which extenuate[] the
gravity of the crime.’ ” The prosecutor continued, “This is the
part where you can really consider just about anything you
want, and this is the part where the defense will ask you to
consider the fact that he had a childhood that was less than
stellar, that that would be considered a matter in mitigation for
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your consideration.” The prosecutor described defendant’s
“dysfunctional family,” including defendant’s sister, a 23- or 24-
year-old “life-long heroin addict”; defendant, the second child,
who “manages to commit a horrific murder before the age of 21”;
and defendant’s younger brother who, at age 16 “commits a
crime so scary and so horrible that he’s not only tried as an adult
in this home invasion armed robbery at age 16, but he’s given a
sentence of 12 years in state prison. I mean, that’s a remarkable
sentence for a teenager to receive, that is to believe that there’s
nothing redeemable about this person at all.” The prosecutor
also described defendant’s home as “dysfunctional,” his mother
as neurotic, his father as heavy-handed, and argued “they
batted zero with the accomplishments of all three of the children
in this family.”
The prosecutor suggested to the jury that the defense was
“effectively saying,” with the Penal Code section 190.3, factor (k)
evidence, “that the consequence of this childhood has created
somebody who really lacks any notion of empathy at all for other
people. And aren’t they really saying that that is in effect a
violent person?” The prosecution described defendant as “a
person whose childhood was so completely lacking in morality
that he’s missed that part of his education and his development,”
which “speak[s] to his dangerousness.” The prosecutor asked
how that could be considered “a matter in mitigation as against
any matter in aggravation,” leaving it for the jury to “consider
during your deliberation.” Defendant raised no objection to
these characterizations. The prosecutor also addressed Penal
Code section 190.3, factor (i), “[t]he age of the defendant at the
time of the crime,” explaining that if defendant had been 17 as
had been “one of the co-defendants, Mr. Pressley, then maybe
that would be a factor to give a lot of consideration to.” Because
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defendant was 20 years old, within days of turning 21, at the
time he committed the offense, the prosecutor argued, the
amount of consideration owed his age was “minimal.” The
prosecutor noted that defendant’s age was the same as most
college seniors and “among the older ones” of “our fighting force
currently in Afghanistan.” Defendant raised no objection.
Finally, the prosecutor focused heavily on the alternative
to a death sentence, urging the jury to conclude that “three
meals every single day” was better than the life defendant had
prior to imprisonment, other than the “freedom of movement
like he had before.” If defendant faced a life sentence, he would
be given a warm bed, friends, possibly a girlfriend, hot meals
every day, and the ability to play basketball, “to feel the rush of
running to a basket and being able to score.” The prosecutor
urged the jury to conclude this was insufficient punishment for
“the worst” type of crime, an “intentional killing of a child for no
more reason than because it improved his temporary status, his
moment of comfort at that moment in time,” committed with
“planning and preparation and premeditation and thought and
deliberation.” Defendant did not object.
b. Discussion
Defendant argues that the prosecutor committed
prejudicial misconduct by suggesting that defendant’s family
history and age were factors in aggravation. As an initial
matter, the claim is forfeited because defendant failed to object.
“In order to preserve any claim of prosecutorial misconduct,
there must be a timely objection and request for admonition.
[Citation.] ‘ “[O]therwise, the point is reviewable only if an
admonition would not have cured the harm caused by the
misconduct.” ’ ” (People v. Dykes (2009) 46 Cal. 4th 731, 786.)
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Although defendant alleges that an objection would have been
futile, he fails to demonstrate there were prior efforts to object
that were overruled.
The claim lacks merit in any event. The prosecutor argued
that defendant’s age and family background must be considered
under Penal Code section 190.3, factors (i) and (k), read the
language of those factors, and described the relevant facts. The
prosecutor referenced defendant’s family history, questioning
how “a childhood . . . completely lacking in morality” was “a
matter in mitigation against any matter in aggravation,” and
urged the jury to consider that question while deliberating. How
the jury ultimately weighed these facts is of no moment provided
the jury was properly instructed, and here they were.
(Cf. People v. Sims (1993) 5 Cal. 4th 405, 464 [where prosecutor
“did not imply that the jury should disregard the evidence of
[the] defendant’s background, but rather that, in relation to the
nature of the crimes committed, it had no mitigating effect,”
prosecutor’s remarks “fall within the bounds of proper
argument”].) The prosecutor urged the jury not to consider
defendant’s age as a factor in mitigation, explaining that were
defendant 17 years old like codefendant Pressley, the jury might
give greater weight to his age. At the time of trial, defendants
as young as 16 could receive the death penalty. (Stanford
v. Kentucky (1989) 492 U.S. 361; contra, Roper v. Simmons
(2005) 543 U.S. 551 [declaring the death penalty for 16- and 17-
year-olds unconstitutional].) A jury could rationally
differentiate between the culpability of a 17 year old and
someone nearly 21. It was not misconduct for the prosecutor to
urge the jury to give defendant’s age little weight as a factor in
mitigation. (See People v. Dykes, supra, 46 Cal.4th at p. 787.)
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Defendant also argues that the prosecutor committed
misconduct by presenting evidence concerning conditions of
confinement under a life sentence. Defendant contends such
evidence is not relevant under Penal Code section 190.3, factor
(k). “[E]vidence concerning conditions of confinement for a
person serving a sentence of life without possibility of parole is
not relevant to the penalty determination because it has no
bearing on the defendant’s character, culpability, or the
circumstances of the offense under either the federal
Constitution or [Penal Code] section 190.3, factor (k).” (People
v. Martinez, supra, 47 Cal.4th at p. 963.) But defendant failed
to object to the prosecutor’s argument concerning conditions of
confinement; accordingly, any claim of error is forfeited. (Ibid.)
Even if preserved, any error in admitting the statement was
harmless, as the prosecutor’s comment did not so “infect[] the
trial with . . . unfairness as to make the conviction a denial of
due process.” (People v. Morales (2001) 25 Cal. 4th 34, 44.)
2. Challenges to California’s Death Penalty
Statute
Defendant raises a number of challenges to California’s
death penalty law, each of which we have previously rejected.
“ ‘[T]he California death penalty statute is not
impermissibly broad, whether considered on its face or as
interpreted by this court.’ ” (People v. Edwards (2013)
57 Cal. 4th 658, 767, quoting People v. Dykes, supra, 46 Cal.4th
at p. 813.)
Penal Code section 190.3, factor (a), which permits a jury
to consider the circumstances of the offense in sentencing, does
not result in arbitrary or capricious imposition of the death
penalty in violation of the Fifth, Sixth, Eighth, or Fourteenth
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Amendments to the United States Constitution. (People v.
Simon (2016) 1 Cal.5th 98, 149.)
The “death penalty statute ‘is not invalid for failing to
require . . . unanimity as to aggravating factors [and] proof of all
aggravating factors beyond a reasonable doubt’ ”; Apprendi v.
New Jersey (2000) 530 U.S. 466 and Ring v. Arizona (2002) 536
U.S. 584, do not alter that conclusion. (People v. Lopez (2018)
5 Cal.5th 339, 370; see People v. Lewis (2008) 43 Cal. 4th 415,
533 [aggravating factors need not be found beyond a reasonable
doubt].) Nor is the death penalty statute unconstitutional for
“permitting jury consideration of a defendant’s unadjudicated
violent criminal activity under [Penal Code] section 190.3, factor
(b).” (Bryant, supra, 60 Cal.4th at p. 469.)
Defendant’s claims concerning the burden of proof are
identical to those we considered and rejected in People v.
Mendoza (2011) 52 Cal. 4th 1056, 1096: “ ‘ “The death penalty
scheme is not unconstitutional because it fails to allocate the
burden of proof—or establish a standard of proof—for finding
the existence of an aggravating factor.” ’ ” “Nor was the trial
court required to instruct the jury that there is no burden of
proof at the penalty phase. [Citation.] The federal Constitution
does not require that the state bear some burden of persuasion
at the penalty phase, and the jury instructions were not
deficient in failing to so provide.” (Ibid.)
CALJIC No. 8.88 provides the jury with sufficient
guidance to administer the death penalty and meet
constitutional minimum standards. “More specifically, CALJIC
No. 8.88’s use of the . . . term ‘warranted’ . . . does not render the
instruction impermissibly vague or ambiguous. [Citations.]
Where, as here, the jury is instructed in the language of CALJIC
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No. 8.88, the court need not further instruct that life without
parole is mandatory if mitigation outweighs aggravation, or that
life without parole is permissible even if aggravation outweighs
mitigation.” (People v. Mendoza, supra, 52 Cal.4th at p. 1097,
fn. omitted.)
“The failure to instruct the jury that the prosecution bears
some burden of persuasion regarding the jury’s penalty
determination does not violate the Sixth, Eighth or Fourteenth
Amendment.” (People v. Taylor (2010) 48 Cal. 4th 574, 662.)
“Nor does the failure to instruct jurors they must unanimously
agree on the existence of particular aggravating factors, but not
on the existence of any mitigating factors, violate the Sixth,
Eighth, or Fourteenth Amendment.” (Ibid.) “There is no
constitutional requirement that a trial court instruct the jury on
the ‘ “presumption of life.” ’ ” (Ibid., quoting People
v. Whisenhunt (2008) 44 Cal. 4th 174, 228.)
The lack of written jury findings during the penalty phase
does not violate due process or the Eighth Amendment, nor does
it “deprive a capital defendant of meaningful appellate review.”
(People v. Winbush (2017) 2 Cal.5th 402, 490, citing People v.
Linton (2013) 56 Cal. 4th 1146, 1216.)
“Intercase proportionality review, comparing defendant’s
case to other murder cases to assess relative culpability, is not
required by the due process, equal protection, fair trial, or cruel
and unusual punishment clauses of the federal Constitution.”
(People v. Winbush, supra, 2 Cal.5th at p. 490.) “ ‘California’s
death penalty law does not violate equal protection by treating
capital and noncapital defendants differently.’ ” (People
v. Anderson (2018) 5 Cal.5th 372, 425.) California’s death
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penalty statute does not violate international law. (Ibid;
see also People v. Sánchez (2016) 63 Cal. 4th 411, 488.)
F. State Bar Motion to Quash Defendant’s
Subpoena
On February 13, 2002, defendant’s retained counsel, Cheri
A. Owen, submitted a tender of resignation, with charges
pending, from the State Bar. She resigned from the State Bar,
again with charges pending, on April 17, 2002. In July of that
year, defendant subpoenaed Owen’s records from the State Bar.
The State Bar moved to quash the subpoena, and the trial court
granted the motion. Defendant contends this was error. We
disagree.
Defendant’s subpoena sought “ ‘[a]ny and all documents
pertaining to attorney CHERI A. OWEN, who was admitted to
the California State Bar on June 9, 1999, with state bar number
201893. The documents should include but are not limited to all
notes, reports, complaints, and investigative notes and
reports.’ ” The State Bar moved to quash the subpoena on
grounds that the request for “any and all” records was overbroad
and that the information sought was privileged and confidential.
In response, defendant’s counsel argued that in camera review
of all State Bar complaints related to Owen was necessary to
ascertain whether Owen performed deficiently for clients other
than defendant while defendant’s trial was ongoing. This
would, he claimed, help determine whether Owen performed
adequately during defendant’s trial.
The trial court granted the State Bar’s motion to quash on
grounds that the documents were privileged. And while the
court acknowledged that due process might nevertheless require
release if the requested information met a certain standard of
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relevance, defendant had not made such a showing. The court
explained the best lens through which to view whether or not
Owen competently performed her duties while representing
defendant was “looking at what Miss Owen did or did not do in
connection with this case. If she didn’t make the proper
investigation, if she didn’t talk to the witnesses she should have
talked to, if she didn’t properly prepare her briefs or the legal
issues in the case, if she didn’t properly present the case in trial,
that’s what you look at, and that’s the proof of the pudding.”
Looking at a complaint made by someone else would have no
bearing on the adequacy of her performance in defendant’s case.
The trial court also denied defendant’s request that the
requested documents be produced to the court and sealed.13
Contrary to defendant’s arguments, we see no error in the
trial court’s ruling. Numerous provisions of law establish the
privileged and confidential status of the information defendant
sought from the State Bar. For example, Business and
Professions Code section 6086.1, subdivision (b) provides that
State Bar disciplinary investigations are confidential until
charges are filed. Business and Professions Code section 6094
further provides that complaints made to a disciplinary agency
regarding attorney misconduct issues or incompetence are
privileged. The State Bar Rules of Procedure, rules 2301 and
2302(a), likewise state, respectively, “the files and records of the
Office of the Chief Trial Counsel are confidential” and, with
13
In record augmentation proceedings that took place in
2009 in anticipation of briefing before this court, defendant’s
counsel argued Owen’s State Bar records might have relevance
to an eventual habeas corpus proceeding before this court. With
that in mind, the trial court ordered the State Bar to preserve
the records.
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exceptions, “information concerning inquiries, complaints or
investigations is confidential.”
Nor has defendant established that the ruling violated his
due process rights. Defendant invokes the high court’s decision
in Pennsylvania v. Ritchie (1987) 480 U.S. 39, 57–58, in which
the court ruled that a defendant accused of child sexual abuse
was entitled to have a court conduct an in camera review of
confidential case reports that might have contained evidence
relevant to his defense. But here, by contrast, the information
defendant sought to obtain from the State Bar was not relevant
to defendant’s case. Defendant sought information about
complaints made by others about Owen’s performance as a
lawyer but failed to show how complaints made by others would
bear on whether she committed prejudicial errors in her
representation of defendant. (See Strickland v. Washington
(1984) 466 U.S. 668, 687.) Accordingly, we conclude the trial
court’s decision granting the State Bar’s motion to quash
defendant’s subpoena for Owen’s records was not in error.
G. Denial of Motion for New Trial
Defendant also filed a motion seeking a new trial on
numerous grounds, including, as relevant here, Owen’s deficient
performance as defense counsel. The trial court denied the
motion without holding a hearing. Defendant contends this was
error. We conclude the trial court acted within its discretion in
disposing of the new trial motion.
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1. Background
On March 19, 2002, defendant filed motions for new guilt
and penalty phase trials via Keenan14 counsel Richard V.
Crouter. Numerous declarations and memoranda of points and
authorities followed, and the motion, initially set to be heard on
March 25, 2002, was not heard until February 7, 2003. In the
meantime, defendant retained new counsel, Robert Sanger, and
Crouter was relieved. Sanger made supplemental arguments in
support of the new trial motion, largely focused on the adequacy
of defense counsel’s performance at trial. In support of the
motion, counsel contended that Attorney Owen—who had been
admitted to the State Bar just two years before the trial began
and who would resign from the Bar before the proceedings were
over—was “woefully inexperienced and fell short of the
minimum standards of competence required of defense counsel
in a capital case.”
The trial court addressed and rejected each of the claims
of error raised in the new trial motion, including the claims of
ineffective assistance of counsel.
2. Discussion
Defendant raises several challenges to the trial court’s
denial of the new trial motion. “ ‘ “ ‘We review a trial court’s
ruling on a motion for a new trial under a deferential abuse-of-
discretion standard.’ [Citations.] ‘ “A trial court’s ruling on a
motion for new trial is so completely within that court’s
discretion that a reviewing court will not disturb the ruling
14
Keenan v. Superior Court (1982) 31 Cal. 3d 424. In Keenan,
we held Penal Code section 987.9 funds may be used to appoint
a second attorney for a defendant in a capital case. (Keenan, at
p. 434.)
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absent a manifest and unmistakable abuse of that
discretion.” ’ ” ’ ” (People v. McCurdy (2014) 59 Cal. 4th 1063,
1108.) We find no such abuse of discretion here.
As a procedural matter, defendant contends the trial court
erred by ruling on the new trial motion without holding an
evidentiary hearing that would have permitted him to adduce
new evidence in support of his ineffective assistance claims. He
further contends the trial judge’s consideration of the motion
was rushed and inadequate due to the trial judge’s imminent
retirement. These procedural arguments lack merit. The trial
court was not required to hold an evidentiary hearing on the new
trial motion; the court’s “only obligation is to ‘ “ ‘make whatever
inquiry is reasonably necessary’ ” to resolve the matter.’ ”
(People v. Mora and Rangel (2018) 5 Cal.5th 442, 517.) And the
record does not support defendant’s claim that the trial court
rushed to dispose of the motion without thoroughly considering
its merits. On the contrary, the court granted numerous
extensions to allow defense counsel the opportunity to augment
the new trial motion and to allow the prosecutor an opportunity
to respond. The motion, initially set to be heard in March 2002,
was not heard until almost one year later, in February 2003.
The trial court thereafter issued a thoroughly reasoned denial
of the motion; its order alone comprises 23 pages of transcript,
and the discussion spans dozens of pages on top of that. There
is no basis for defendant’s suggestion that the trial court cut
corners in considering the motion.
On the merits, defendant contends that the trial court
erred in rejecting his claim that he did not receive the effective
assistance of trial counsel guaranteed by the United States and
California Constitutions. Usually, “ineffective assistance [of
counsel claims are] more appropriately decided in a habeas
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corpus proceeding.” (People v. Mendoza Tello (1997) 15 Cal. 4th
264, 266–267.) But we have also held that a defendant may
raise the issue of counsel’s effectiveness as a basis for a new
trial, and, to expedite justice, a trial court should rule “[i]f the
court is able to determine the effectiveness issue on such
motion.” (People v. Fosselman (1983) 33 Cal. 3d 572, 582–583.)
To make out a claim that counsel rendered constitutionally
ineffective assistance, “the defendant must first show counsel’s
performance was deficient, in that it fell below an objective
standard of reasonableness under prevailing professional
norms. Second, the defendant must show resulting prejudice,
i.e., a reasonable probability that, but for counsel’s deficient
performance, the outcome of the proceeding would have been
different.” (People v. Mai (2013) 57 Cal. 4th 986, 1009.) To make
out an ineffective assistance claim on the basis of the trial
record, the defendant must show “(1) the record affirmatively
discloses counsel had no rational tactical purpose for the
challenged act or omission, (2) counsel was asked for a reason
and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective
assistance are more appropriately resolved in a habeas corpus
proceeding.” (Ibid.)
Here, in support of his new trial claim, defendant
emphasizes Owen’s remarkable lack of professional
experience—she was a new lawyer who had never before worked
on a capital case—and the cloud under which she abruptly
exited the representation of defendant (and the profession as a
whole). He notes that Owen did not satisfy the criteria for
appointed trial counsel in a capital case. (See Cal. Rules of
Court, rule 4.117.)
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But Owen was not appointed by the court; she was
privately retained. And although defendant’s appellate counsel
suggested otherwise at oral argument, Owen’s brief history as a
lawyer and the circumstances of her resignation from the bar do
not establish that defendant was totally deprived of counsel
during trial, requiring automatic reversal of the judgment.
(United States v. Cronic (1984) 466 U.S. 648, 658–659.)
Although defendant alleges Owen was absent for portions of
jury selection and guilt phase testimony because she was
meeting with a State Bar investigator, Owen was, in fact,
present during most of the trial (as was Keenan counsel, who
was present during those portions of trial when Owen was
absent). Owen made arguments and objections; she presented
witnesses. The question before us, at this juncture, is whether
the trial record alone establishes that her performance fell below
professional norms and that there is a reasonable probability
that her deficient performance affected the result. Defendant
has not made the necessary showing. The trial court therefore
did not err in concluding it could not determine counsel was
ineffective in the context of defendant’s new trial motion.
(People v. Fosselman, supra, 33 Cal.3d at pp. 582–583.)
Defendant contends that Owen did not adequately prepare
a defense. This lack of preparation was demonstrated by Owen’s
failure to interview witnesses and to develop a guilt phase case
because she felt the police investigation was adequate and
because defendant had confessed. But defendant’s primary
argument regarding Owen’s deficient performance concerns her
failure to develop and present evidence that defendant suffered
from brain damage or a similar impairment. In support of the
argument, defendant introduced the opinion of Dr. Albert
Globus, a psychiatrist. Based on a social and medical history
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including an infantile skull fracture and febrile seizures, as well
as postverdict neuropsychological testing, Dr. Globus opined
that defendant suffered from organic brain syndrome.
Defendant contends Owen was deficient for failing to develop
and present such evidence of defendant’s impairments because
such evidence was “the best defense” to charges that defendant
killed Nick with premeditation and deliberation, as is required
for first degree murder, as well as “the most compelling showing
of mitigation” at the penalty phase.
The trial court reasonably ruled that defendant’s
postverdict brain damage evidence was not a sufficient basis for
granting a new trial. As to defendant’s first point, after hearing
defendant’s evidence, the trial court concluded that competent
counsel would not have presented a brain damage defense at the
guilt phase “since it’s inconsistent with what the defense
actually presented, which seems to me, under the
circumstances, was a better shot,” given defendant’s confession
to police. “That defense was that this was a false confession and
somebody else was the killer.” The trial court noted that it had
been presented with no cogent argument that the choice of this
false confession strategy was itself the product of deficient
performance.
Defendant criticizes the trial court’s reasoning but fails to
grapple with the court’s central point: There are plausible
reasons why competent counsel would choose not to present a
brain damage defense in an attempt to negate the prosecution’s
showing of premeditation and deliberation. By defendant’s own
account to police, he accepted Hollywood’s assignment to kill
Nick; traveled from Los Angeles to Santa Barbara armed with a
handgun; picked up Nick from the Lemon Tree Inn and
transported him to a remote location where a grave had already
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been dug; then shot Nick several times and buried him. This
account strongly points to a conclusion that defendant acted
with premeditation and deliberation when he killed Nick. As
the trial court noted, competent counsel might reasonably
determine that defendant’s “better shot” was to convince the
jury that the entire confession was false, rather than attempting
to argue that defendant did in fact commit the crime but without
premeditating or deliberating. Further, as we have previously
noted, “presenting expert mental health testimony inherently
risks inviting damaging cross-examination.” (People v.
Rodriguez (2014) 58 Cal. 4th 587, 624, fn. 5.) At least on this
record, we cannot say the choice not to pursue a brain damage
defense was incompetent. Nor has defendant shown that the
presentation of such a defense would likely have changed the
outcome of the trial.
Insofar as defendant argues that competent counsel would
have presented the brain damage evidence to bolster his claim
that his confession was false, the trial court reasonably rejected
that argument as well. Defendant argued that brain damage
evidence would have neutralized the prosecution’s rebuttal
witness, who opined that an individual would not falsely confess
and claim amnesia without suffering serious mental illness or
brain damage. But, the trial court noted, defendant’s own
expert had not agreed that brain damage was an “essential
precondition to the person’s predilection to give a false
confession under certain circumstances,” and had not relied on
evidence of brain damage in offering his opinion in support of
the defense. Under the circumstances, we cannot say there is
no plausible reason why competent counsel would choose not to
develop a brain damage defense and instead to rely on the
opinion of the defense expert. And once again, defendant has
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not shown that the presentation of his brain damage evidence
would likely have altered the jury’s view of whether to believe
defendant’s confession or instead to believe that he gave the
confession while suffering from temporary amnesia, as he
testified at trial.
Turning to the question of mitigation, the trial court
concluded that defendant’s newly presented evidence of mental
defect or brain damage, even if available, would not have made
a difference at the penalty phase. In making an independent
determination of the propriety of the penalty, the trial court
reweighed the mitigating circumstances that had been
presented, including defendant’s lack of criminal record, lack of
violent history, peacemaking role among his friend group,
excessive use of alcohol and marijuana, dependent personality,
and obedience to Hollywood. The court concluded that no
mitigating circumstance “appear[ed] to significantly extenuate
the crime.” The court concluded defendant’s newly presented
evidence of brain damage would not likely have altered the
relevant balance of factors. We see no error in the court’s
determination.
Defendant’s next claim of ineffective assistance centers on
a set of two agreements executed in February 2002, in which
defendant agreed to give Owen an “exclusive grant” to the media
and literary rights to his background and story and to waive
attorney-client privilege to permit Owen to speak and write
about his criminal case. Defendant contends that these
agreements created a conflict of interest that “tainted the
representation ab initio,” and that establish grounds for a new
trial. The trial court disagreed, and we do as well.
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As the trial court acknowledged, these agreements
“grant[ed] [Owen] exclusive rights to exploit her client’s story
for her benefit,” creating the potential for a conflict of interest.
But to establish a deprivation of his constitutional right to
counsel, defendant must show more than a “ ‘theoretical division
of loyalties’ ”; he must show that counsel “labored under an
actual conflict of interest ‘that affected counsel’s performance.’ ”
(People v. Doolin (2009) 45 Cal. 4th 390, 417.) Or as the trial
court put it, to succeed on the conflict claim, “there has to be
some showing of cause and effect, in other words, that the act or
omission of the lawyer in seeking the benefits of the agreement
has placed her client’s defense in jeopardy.” As the trial court
explained, no such showing had been made here. Indeed, the
agreements were made some two months after the jury rendered
its penalty verdict and just one day before Owen tendered her
resignation to the State Bar. And contrary to defendant’s
argument, nothing in the record shows that the parties had been
operating under any comparable agreement previously, while
Owen was still representing defendant at trial.
The case before us thus differs in critical respects from
People v. Corona (1978) 80 Cal. App. 3d 684, on which defendant
relies. In that case, the record showed that trial counsel agreed
to represent the defendant, who was facing 25 counts of first
degree murder, in exchange for exclusive literary rights to the
defendant’s life story, including the criminal proceedings
against him. (Id. at p. 703.) Trial counsel went on to make
decisions in the interests of “his own pocketbook” rather than
“the best interests of his client” (id. at p. 720), including the
abandonment of mental defenses central to the case (id. at
pp. 721, 727). No comparable circumstances are present here.
The record neither shows that Owen labored under a potential
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conflict of interest during the course of her representation of
defendant, nor shows that “the conflict of interest . . . resulted
in obvious prejudice” to defendant’s case, as it had in Corona.
(Id. at p. 720, fn. omitted.)
Finally, defendant asks us to compel the trial court to
reconsider its handling of various other claims in the motion for
new trial, including a claim that Owen was acting as an
informant for the Los Angeles District Attorney and a claim that
Owen instructed defense investigators not to investigate the
case and instead diverted investigation funds to satisfy other
obligations. The trial court rejected these arguments on the
grounds that the claims were unsupported by the record and,
even if true, would not have established that defendant was
prejudiced by Owen’s deficient performance. The trial court did
not abuse its discretion in concluding that none of these claims
constituted a basis for granting defendant’s new trial motion.
III. DISPOSITION
The judgment of the superior court is affirmed.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Hoyt
________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
________________________________________________________________________________
Opinion No. S113653
Date Filed: January 30, 2020
________________________________________________________________________________
Court: Superior
County: Santa Barbara
Judge: William L. Gordon
________________________________________________________________________________
Counsel:
Roger Teich, under appointment by the Supreme Court, for Defendant Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Jaime L. Fuster and David F. Glassman, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Roger Teich
290 Nevada Street
San Francisco, CA 94110
(415) 948-0045
David F. Glassman
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-2355