People v. Flinner ( 2020 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL WILLIAM FLINNER,
Defendant and Appellant.
S123813
San Diego County Superior Court
SCE211301
November 23, 2020
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Cuéllar, Groban, and Greenwood* concurred.
*
Administrative Presiding Justice of the Court of Appeal,
Sixth Appellate District, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
PEOPLE v. FLINNER
S123813
Opinion of the Court by Kruger, J.
A jury convicted defendant Michael William Flinner of the
first degree murder of Tamra Keck and found true financial-gain
and lying-in-wait special-circumstance allegations. (Pen. Code,
§ 187, subd. (a); id., § 190.2, subd. (a)(1), (15).) The jury also
convicted Flinner of conspiracy to commit murder and grand
theft (id., § 182, subd. (a)(1); id., § 187, subd. (a); id., § 487, subd.
(a)); mingling a harmful substance with food or drink (id., § 347,
subd. (a)); and solicitation to commit murder (id., § 653f, subd.
(b)). The jury could not reach a verdict on a second count of
solicitation to commit murder. Following a penalty phase trial,
the jury returned a death verdict and the trial court entered a
judgment of death. The court also sentenced Flinner to an
indeterminate term of 25 years to life for the conspiracy
conviction, a determinate term of four years for the mingling a
harmful substance with food or drink conviction, and a
determinate term of six years for the solicitation to commit
murder conviction. The court imposed but stayed the
indeterminate and determinate sentences pending the
resolution and execution of the death judgment.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd.
(a); Pen. Code, § 1239, subd. (b).) We affirm the judgment.
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PEOPLE v. FLINNER
Opinion of the Court by Kruger, J.
I. FACTUAL BACKGROUND
A. Guilt Phase
The trial evidence showed that on June 11, 2000, Flinner
called his fiancée, Tamra Keck, while she was out shopping. He
directed her to meet his former employee, Haron Ontiveros (also
known as Juan de la Torre), at a local gas station so that she
could help jump start Ontiveros’s car. Keck picked Ontiveros up
from the gas station and drove to a nearby cul-de-sac where
Ontiveros’s car was parked. As Keck was propping the hood of
her car open, Ontiveros approached her from behind and shot
her in the back of the head, killing her.
1. Prosecution Evidence
Flinner met Keck in 1999. At the time, Keck was 18 years
old and had just started her senior year of high school. Flinner
was 31 or 32 years old and was operating a landscaping business
after being paroled from prison earlier that year. Flinner and
Keck developed a romantic relationship. Keck moved into
Flinner’s apartment in Alpine, California, and the two made
plans to marry.
On December 29, 1999, Flinner and Keck met with an
Allstate Insurance agent and applied for a $500,000 term life
insurance policy for Keck, naming Flinner as the primary
beneficiary. At the meeting, Flinner introduced Keck as his
fiancée and represented that she was an employee of his
landscaping business with an annual income of $30,000 per
year. Flinner explained to the Allstate agent that they were
taking out the life insurance policy because Keck was an
important part of his landscaping business and that he would
suffer financially were something to happen to her. This
explanation was false. Keck was not, in fact, a regular employee
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Opinion of the Court by Kruger, J.
of Flinner’s business; Keck occasionally purchased office
supplies for Flinner, who then reimbursed her, but those
payments were irregular and relatively small. Although Flinner
did not provide verification of Keck’s employment or salary, the
agent issued the insurance policy. Flinner and Keck paid for the
first insurance premium payment that day, and Flinner paid for
the next two premium payments in March and April 2000.
The prosecution sought to show that Flinner’s business
was suffering financially in the months leading up to the murder
and that he accumulated an increasing amount of debt. After
Keck’s death, Flinner attempted to collect on the insurance
policy, attempted to make large purchases on credit with the
promise of payment out of his forthcoming insurance proceeds,
and continued even in custody to tell fellow inmates that he
expected to receive a substantial payout plus interest from the
life insurance policy.
The prosecution also presented evidence that Flinner’s
relationship with Keck was strained. Flinner took another
teenage girl, Tiffany Faye, out for meals several times and told
her that although Keck thought they were going to get married,
he could get rid of Keck and date Faye. In December 1999, while
Faye was visiting Flinner and Keck at their apartment, Flinner
proposed a “threesome,” which prompted Faye to break off her
relationship with Flinner. Various witnesses testified that
Flinner treated Keck poorly, said Keck was just after his money,
and referred to her by derogatory names. Two days before the
murder, Keck called her mother, crying, to report the wedding
was going to be postponed.
Around the time Flinner and Keck took out the life
insurance policy, Flinner began asking associates what it would
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Opinion of the Court by Kruger, J.
cost to have someone killed and whether they would kill
someone on his behalf. Robert Johnston, one of Flinner’s
employees, testified that sometime between December 1999 and
January 2000 Flinner asked whether Johnston would kill
somebody for him. Charles Cahoon, who worked briefly for
Flinner, testified that in January 2000, Flinner asked Cahoon
how much it would cost to have somebody killed and whether
$10,000 would be enough. When Cahoon asked Flinner what he
was talking about, Flinner said that he had gotten Keck insured
for $1,000,000. Juan Morales testified that in April 2000, while
paying Flinner for a car Morales had bought from him, Flinner
asked Morales if he knew where to get a gun.
A few days before the murder, Flinner obtained the car
that codefendant Haron Ontiveros, one of Flinner’s landscaping
employees, would use on the day of the murder.1 Flinner visited
an auto dealership that he had done business with before and
signed a borrower agreement for a small white Nissan NX car.
Amir Bahador, an employee at the auto dealership, testified that
when Flinner came to pick up the Nissan NX, he was
accompanied by a “Hispanic gentleman, kind of short, kind of
stocky,” though Bahador could not say for sure that it was
Ontiveros. Flinner told Bahador that he was getting the car for
his employee, the man who was with him at the dealership.
1
Ontiveros was tried jointly with Flinner before a separate
jury, which found Ontiveros guilty of first degree murder and
conspiracy to commit murder and found true the lying-in-wait
and financial-gain special circumstances. At the penalty phase,
Ontiveros’s jury returned a verdict of life in prison without the
possibility of parole, and the court sentenced Ontiveros to life in
prison without the possibility of parole for the murder conviction
and a concurrent term of 25 years to life for the conspiracy
conviction.
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Opinion of the Court by Kruger, J.
After the murder, Flinner also gave Ontiveros a forged check for
$7,000 in payment for his role.
On the morning of the murder, at about 10:45 a.m., video
surveillance showed Flinner driving his white Ford pickup to
the Ultramar gas station in Alpine. Flinner was also placed at
that location through his cell phone records and the testimony
of Phillip Finch, who drove by Flinner while he was pulled over
on the road near the gas station to make a call. The clerk at a
nearby Shell station testified that around 10:30 a.m. Flinner
purchased gas and milk and asked the clerk to hurry ringing up
the purchase because he “was late to meet his friend down the
street.”
At about the same time, video surveillance showed the
white Nissan NX driving into the Ultramar gas station. Shortly
thereafter, video showed both Flinner’s Ford pickup and
Ontiveros’s Nissan NX leaving the Ultramar station and
heading toward a cul-de-sac down the street. Flinner later
admitted to detectives that he entered the cul-de-sac sometime
between 10:00 a.m. and 11:00 a.m. on the morning of the
murder. Suzanne Scanlan, who volunteered at a veterans’
organization that had a view of the cul-de-sac, testified that in
this timeframe she saw two white cars parked next to each other
in the cul-de-sac. Video footage picked up the two white cars
exiting the cul-de-sac road about 15 minutes after they entered.
Flinner arrived at his parents’ house at about 11:30 a.m.
on the day of the murder. Shortly thereafter, at around
11:45 a.m., Keck and Flinner left Flinner’s parents’ house
separately — Flinner to go shopping and to a car wash with his
son and Keck to go to Walmart and Vons. Walmart’s video
surveillance showed Keck entering and shopping in the store.
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Opinion of the Court by Kruger, J.
While Keck was at Walmart, phone records show she received
two calls from Flinner, at 12:08 p.m. and 12:15 p.m., and Flinner
confirmed in a police interview that he called Keck while she
was at Walmart. Video then showed Keck leaving the Walmart
and, instead of driving to Vons, entering the Ultramar gas
station.
In the meantime, surveillance video showed the white
Nissan NX driving back into the cul-de-sac at 12:02 p.m. A man
left the cul-de-sac by foot at 12:08 p.m. and headed toward the
Ultramar gas station, where he arrived and waited in front of
the station. At 12:32 p.m., video showed Keck’s white Mustang
coming into the Ultramar station and pulling up to where the
man was waiting (although he was no longer visible in the
surveillance video), and it then showed the Mustang leaving the
station and heading toward the cul-de-sac. About three minutes
after the Mustang entered the cul-de-sac, video showed the
white Nissan NX speeding out of it.2
Shortly after the murder, a motorist discovered Keck’s
body and called the police. Keck’s body was found lying in front
of her car. The car’s engine was running, the hood was ajar and
the passenger side door open. Keck had been shot once in the
back of the head. This and other circumstantial evidence
indicated that, once she had parked in the cul-de-sac, Keck left
her car running and exited the vehicle. While she was opening
2
We consider the details of the evidence concerning the
events in the cul-de-sac during these three minutes in further
depth below, in connection with Flinner’s claim that insufficient
evidence supports the lying-in-wait special-circumstance
finding.
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PEOPLE v. FLINNER
Opinion of the Court by Kruger, J.
the hood of her car, she was shot in the head from behind. She
died within a minute of being shot.
Flinner attempted to cast the responsibility for Keck’s
murder on others. In the days before the murder, Flinner had
told two sheriff’s deputies that one of his landscaping customers
was “after him” and had tried to run him off the road, though he
dismissed the deputies’ suggestion that Flinner file a police
report. During an interview with lead detective Rick Scully on
the night of the murder, Flinner denied being near the cul-de-
sac that day and said he had never been to the cul-de-sac. He
again brought up the disgruntled customer and said that one of
the customer’s associates had recently threatened his life and
initiated a physical altercation with him.
Later that night, the police searched Flinner and Keck’s
apartment. During the search, Detective Scully told Flinner
that in his experience people who are found in isolated areas, as
Keck was, are usually there for a drug deal or to meet a love
interest. At the time, Flinner rejected this theory of Keck’s
death and police found no evidence suggesting Keck was using
drugs. But days later, Flinner contacted police to say he and his
mother had found drugs and syringes while going through
Keck’s possessions, and they turned them over to Detective
Scully. Within a week of the shooting, Flinner also reported he
had received threatening phone calls from a Hispanic man with
whom he had been in an altercation a decade before.
Later in the investigation, Flinner attempted to frame or
cast blame for Keck’s murder on various employees and business
associates. Flinner invited employee Martin Baker to dinner at
his house about a month after the murder and spiked Baker’s
chili with Xanax. While Baker was passed out on Flinner’s
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Opinion of the Court by Kruger, J.
couch, Flinner called his friend Gilberto Lopez and asked Lopez
to call Flinner’s home number from a pay phone. Flinner then
called the police and said that he had just received a call from a
woman who claimed Baker had confessed to Keck’s murder and
that Baker was currently asleep on his couch.
Next, Flinner apparently tried to frame employee Charles
Cahoon by planting a sock that contained bullets matching the
bullet that killed Keck in Cahoon’s car. DNA on the sock
matched Keck’s and Flinner’s, but not Cahoon’s. An anonymous
letter accusing Cahoon of murder was also placed on a police car.
Flinner also told detectives that his friend and business
associate Rick Host said on his deathbed that Keck was killed
due to her knowledge of a casino software scheme Host was
involved with that also involved the North Korean government
and mobsters in the United States.
Finally, while in custody, Flinner claimed that his
codefendant Ontiveros killed Keck after having an affair with
her and that Ontiveros had put out a contract on Flinner’s life.
Flinner also attempted to make it look like he was being
targeted, planting bullets with his and Keck’s names on them
on his parents’ property.
Flinner also made several attempts to derail his trial.
Flinner attempted to taint the witnesses in his case by mailing
them letters containing information deemed inadmissible by the
trial court so that the witnesses’ testimony would be rendered
suspect and impeachable. Flinner asked a fellow jail inmate,
Gregory Sherman, to use his library privileges to look up the
addresses of witnesses, detectives, the prosecutor, and the trial
judge in his case. Flinner told Sherman that he intended to
sabotage his trial by sending witnesses letters with confidential
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Opinion of the Court by Kruger, J.
information that would preclude them from testifying. He
indicated that he would make it look like his former attorney or
a detective in the case sent the letters and would then have an
associate “take out” the fall guy. Flinner then sent these names
and addresses to a former girlfriend, Catherine McLarnan,
along with a cover letter that he directed her to send to all of the
witnesses. He instructed her to use the address of his former
defense attorney as the return address for the letters.
McLarnan instead turned the information over to a defense
investigator.
Flinner had a backup plan to sabotage his trial: He told
Sherman that he planned to ensure that only property owners
with unique names were impaneled as jurors so that he could
easily look up their addresses through property records searches
and send them similar letters with inadmissible evidence.
Flinner said he would frame the prosecutor for sending this set
of letters by using the prosecutor’s address as the return
address.
Flinner also made various threats intended to obstruct the
prosecution of his case. He asked fellow inmate James
Theodorelos and another inmate to kill his codefendant
Ontiveros. When these inmates began cooperating with the
prosecution, Flinner tried to intimidate them or pay them off.
Finally, Flinner tried to intimidate the prosecutor by sending
letters conveying threats against the prosecutor to Flinner’s
family and other inmates, knowing the letters were being
photocopied and read by the authorities.
Flinner made a number of statements after Keck’s death
that suggested he was complicit in her murder. Robert Pittman,
a former employee of Flinner, testified that the morning after
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Opinion of the Court by Kruger, J.
the murder Flinner called him and said that Keck had been shot
in the back of the head, even though this information was not
public at the time and the pathologist had not yet determined
whether Keck was shot in the face or in the back of the head.
Flinner described other details about the crime at times when
they were not publicly known, such as that Keck’s car was
running when found.
A few days after the murder, Flinner went out to dinner
and drinks with his friend Gilberto Lopez and Lopez’s girlfriend
Marie Locke. According to Lopez, Flinner got “tipsy” at the meal
and became upset about Keck’s death, stating either “I shouldn’t
have killed her” or “I should not have had her killed.” On
another occasion after Keck’s murder, and after Flinner had
taken several sleeping pills, Flinner again said to Lopez, “I
shouldn’t have killed her.” In custody, Flinner told fellow
inmate Theodorelos that Keck’s murder stemmed from an ill-
fated business transaction with “some overseas Asians.” But
Flinner subsequently told Theodorelos that he was sure to make
credit card purchases at the time of Keck’s murder to create an
alibi for himself and that he had bullets planted on his parents’
property and an anonymous note accusing Cahoon of killing
Keck left on a police car.
2. Defense Evidence
The defense argument was that Flinner had nothing to do
with Keck’s murder. Flinner presented evidence that he was
loving and kind toward Keck. He also put on evidence intended
to bolster several exculpatory theories Flinner had raised during
the investigation and before trial. According to Donald Landon,
a business partner of Flinner’s friend Rick Host, Host was at the
same Walmart as Keck the morning she was killed. Landon also
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Opinion of the Court by Kruger, J.
testified about Host’s gambling ventures. Flinner’s father
testified that Flinner had received threatening phone calls after
the murder and that Flinner’s parents had received anonymous
calls as well. The defense also presented evidence that there
was a tunnel near the crime scene big enough for an adult to
pass through that people used to pass under the nearby
highway.
Flinner sought to discredit some of the People’s evidence.
A forensic accountant testified that while the prosecution had
calculated Flinner’s debt at the time of the murder to be
$194,000, the accountant calculated it to be about $94,000. A
custodian of records for a local news channel produced
recordings of news broadcasts about the murder and testified
that the channel publicized that Keck was shot in the head the
morning after the murder, which could have explained how
Flinner was able to report this information to Pittman on the
same day; on cross-examination, however, the witness clarified
that at no time did the broadcasts say that Keck was shot in the
back of the head, as Pittman had testified Flinner told him.
Prison inmate James Baggett testified that inmate Theodorelos
said he intended to fabricate the statements from Flinner about
the murder. Flinner’s DNA expert challenged the prosecution
expert’s conclusion that DNA found on the sock in Cahoon’s car
belonged to Flinner. A defense investigator testified that
Martin Baker, one of the employees Flinner had tried to frame
for Keck’s murder, had been prescribed Xanax after receiving
treatment at the county mental health hospital, and defense
counsel elicited Baker’s testimony on cross-examination that at
the time of trial Baker was living in an assisted care facility and
taking several antipsychotic medications. A defense
investigator testified that after reviewing of the gas station
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Opinion of the Court by Kruger, J.
surveillance tapes, he was unable to identify the driver of the
white Ford pickup truck.
B. Penalty Phase
The prosecution introduced the testimony of Keck’s family
members, who described her early life and the impact that losing
Keck had on them. The prosecution also introduced the
testimony of four women, including Flinner’s former wife, who
described being sexually assaulted by Flinner after he drugged
them, or other forms of physical and emotional abuse. Finally,
the prosecution introduced evidence of Flinner’s prior felony
convictions for forgery, possession of stolen property, rape by a
foreign object, three counts of grand theft, and failure to appear
while on bail.
The defense called Flinner’s mother and father, who
testified about Flinner’s troubled childhood, including
hyperactivity, various head injuries, behavioral problems, and
psychiatric hospital admissions. The defense introduced expert
psychiatric evidence that Flinner suffered brain dysfunction
from early childhood, possibly exacerbated by the use of illegal
drugs and head injuries, which contributed to his criminal and
antisocial behaviors. Prison officers testified that Flinner had
previously attempted suicide after he was returned to prison. A
correctional consultant testified about the security measures
that would be in place if Flinner was sentenced to life without
the possibility of parole. Flinner’s friend and a fellow inmate
testified about Flinner’s efforts to help them during previous
emergency situations. Flinner’s son testified that he loved his
father, who had kept in touch since he was arrested.
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II. DISCUSSION
A. Pretrial Issues
1. Pretrial Detention
Flinner raises four claims of error stemming from
Flinner’s pretrial relocation from a downtown San Diego jail
facility to a more remote jail facility in Vista, which is in the
northern part of San Diego County. We conclude these claims
lack merit.
a. Background
Flinner was detained in San Diego County facilities while
awaiting trial. In January 2002, defense counsel requested that
Flinner remain in the downtown jail and not be moved to the jail
in Vista. The court entered a “request[],” but not an order, to
that effect.
As explained in greater detail above, while in jail Flinner
sought to disrupt his upcoming trial. With the help of Gregory
Sherman, a fellow jail inmate with library privileges, Flinner
obtained personal information about the prosecutor and trial
judge, including their home addresses. Sherman later gave his
account of their activities to the San Diego County District
Attorney’s Office. The information was passed to the San Diego
County Sheriff’s Department, as well as the trial judge, Allan J.
Preckel.
At a January 17, 2003, ex parte hearing, the prosecutor
discussed this information with Judge Preckel. Immediately
afterward, Judge Preckel held a security meeting with sheriff’s
department personnel, the supervising judge of the courthouse,
and the prosecutor, but not defense counsel. The supervising
judge requested Flinner be moved to a more secure housing unit
to prevent him from gathering further information and
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Opinion of the Court by Kruger, J.
attempting to manipulate events outside the jail. The assistant
sheriff proposed the Vista facility as having the most secure cells
but noted that if Flinner were moved to Vista the court would be
“hearing from the defense attorney.” Judge Preckel agreed
Flinner’s attorneys would be displeased, but the supervising
judge indicated he approved of the move. No order was issued.
Later in January 2003, the sheriff transferred Flinner to
Vista and placed him in administrative segregation, restricting
his visitation and telephone privileges. At a conference with all
parties and counsel on February 28, 2003, the trial court
summarized Flinner’s custodial status as related by the sheriff’s
office: Flinner was housed in an isolation cell and allowed no
contact with other inmates; he was permitted three 20-minute
telephone calls per week to Sandra Resnick, one of his two
attorneys, and 45-minute personal visits with Resnick or John
Mitchell, his other attorney, if they gave a day’s notice. The
court added that Flinner was permitted visits with the defense
investigator. The court emphasized that it had not ordered
these restrictions and was generally not inclined to interfere
with the sheriff’s decisions on jail operations. Attorney Resnick
complained that the distance to Vista and the limits on
communications would slow down the defense team’s
preparation for trial; in particular, Resnick expressed
frustration at the inability of defense team members other than
herself to arrange telephone conversations with Flinner. In
response, the court stated it was willing to consider making
orders to allow increased contact “as they are presented to me.”
After the February 28 conference, the trial court issued an
order providing information Sherman had supplied to Flinner’s
attorneys but prohibiting them from revealing the information
to Flinner or other members of the defense team. On March 11,
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defense counsel, in an ex parte hearing, complained about the
restrictions on their communication with and access to Flinner.3
Counsel’s primary concern was that their relationship with
Flinner would be disrupted by their inability to tell him about
Sherman’s disclosure. Attorney Mitchell stated that the
restriction “requires me to lie to my client, at least by omission
and possibly by commission.” Attorney Resnick explained that
Flinner had been asking why he had been moved to Vista and
had his telephone privileges restricted. By not telling him the
reasons these security measures had been taken, Resnick
“almost began to feel as though [she] was lying to [her] client by
omission.”
Attorney Mitchell also elaborated on the difficulties with
the Vista location and the telephone restrictions. Driving to and
from Vista meant each visit took half a day. In order to prepare
for trial and maintain their relationship with a sometimes
difficult client, Mitchell and Resnick each tried to visit Flinner
once a week, while their investigator did so twice a week. The
telephone restrictions prevented Mitchell or the investigator
from talking to Flinner by phone. When Mitchell visited
Flinner, jail officers searched his briefcase.
In response, the trial court repeated that it was not
inclined to second-guess the sheriff’s department as to the
appropriate housing for Flinner or, at least “here and now,” as
to telephone privileges. Attorney Mitchell suggested that, given
3
In the interim, the trial court had, at defense request,
issued three orders allowing increased contact between Flinner
and the defense team: Counsel and the investigator were given
access to Flinner in the holding area before and after court
appearances, and two defense trial consultants were permitted
contact visits with him.
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the security measures in place, the court could relax the
prohibition on counsel telling Flinner and their investigator
about the information Sherman had provided. The court found
Mitchell’s suggestion “well taken” and proposed discussing it
further at an upcoming conference with all counsel.
On March 14, 2003, after an additional brief ex parte with
Flinner’s attorneys, the trial court conferred with counsel for all
parties, with neither defendant present. The court explained
that with Flinner now securely housed at Vista and a mail cover
and telephone restrictions in place, the court tentatively
planned to lift its previous prohibition on defense counsel
discussing Sherman’s disclosure with Flinner and members of
the defense team, with the proviso that the written materials
would still not be provided to Flinner. The court noted that its
previous order would remain in place for a reasonable period so
that Sherman could be provided whatever additional security
was deemed necessary.
Asked for comment, Attorney Mitchell said that the court’s
proposal to lift the prohibition on talking to Flinner about
Sherman’s disclosure “makes good sense.” He expressed the
hope that this “resolution” would allow defense counsel to
“finesse” their previous concealments from their client and
“move on in terms of the attorney/client relationship. We’re
going to be together for a while in this matter.” As to Flinner’s
housing and telephone restrictions, Mitchell “assume[d]” that
the defense was “stuck with that,” that as the court had said
earlier, “You run the courtroom and they run the jail, and you’re
not going to get involved unless it fouls up your courtroom.”
Mitchell went on to observe that a time might come when the
defense needed greater access to Flinner, for example to have an
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expert consult by telephone, “but we may be able to do that on a
case by case basis, so I’ll kind of leave that aside.”
The prosecutor raised no objection to the court’s tentative
order but requested a few days to alert Sherman’s current
confinement facility and allow them to take necessary security
measures. The court set a further conference for March 19, five
days later. At that hearing, the prosecutor confirmed necessary
measures had been taken, and the court issued the order.
b. Discussion
i. Interference with Attorney-Client
Relationship
Flinner contends that the trial court, prosecutor, and
sheriff interfered with his attorney-client relationship by
moving him to the Vista detention facility and restricting his
telephone and visiting privileges, in violation of his
constitutional rights to due process and the assistance of
counsel. Flinner maintains the imposition of these restrictions
“greatly interfered with the preparation of [his] defense by
requiring a time-consuming 82 mile round trip for each visit,
barring visits from members of the defense team other than
appointed counsel, and sharply limiting the time counsel had to
confer with their client.” The trial judge, Flinner argues, also
violated his constitutional rights by permitting the sheriff to
impose these restrictions without a contested evidentiary
hearing to determine the credibility of Sherman’s disclosure,
and by ordering defense counsel to “lie” to their client by
concealing the disclosure from him.
At the threshold, we agree with the Attorney General that
these claims were forfeited by Flinner’s failure to raise them
below. Although defense counsel complained of the
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inconvenience of visiting Flinner at the Vista facility and of his
limited telephone privileges, counsel never asserted these
conditions infringed on Flinner’s right to counsel or, for that
matter, any other legal right. Nor did Flinner or his attorneys
demand an evidentiary hearing on whether he could be kept in
administrative segregation based on Sherman’s report.4 Having
made no objection or request on these grounds, Flinner failed to
preserve his due process and right to counsel claims.
Nor do the claims have merit. Visiting Flinner at the Vista
facility was undoubtedly inconvenient for the defense team, but
nothing in the record suggests Flinner’s housing or telephone
restrictions prevented counsel from effectively communicating
with Flinner in order to prepare for trial. The trial court, at
defense request, permitted increased communication with
members of the defense team (see fn. 3, ante) and the court said
nothing to preclude further accommodations as needed “on a
case by case basis,” as Attorney Mitchell put it. Trial counsel’s
4
Attorney Mitchell initially stated he was “concerned by the
acceptance of what this individual [Sherman] said as being the
truth.” But he never asked for an evidentiary hearing to
determine that point. After Judge Preckel explained that he
was inclined to substantially credit Sherman’s information —
because the informant had “provided a lot of detail,” much of
which rang true, and he “knows too much to simply be creating
this out of whole cloth” — Mitchell did not raise the point again.
At oral argument, defense counsel asserted that further
defense complaints or requests would have been futile because
the trial judge had disavowed any authority over jail
confinement conditions. The record does not support this
assertion: Though the judge indicated he would generally defer
to the sheriff’s department, he also agreed to make changes after
defense complaints, and did not close the door to additional
accommodations.
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Opinion of the Court by Kruger, J.
principal concern, the court’s order prohibiting them from
telling Flinner about Sherman’s report, was in place less than
three weeks before being resolved by the trial court’s revised
order on March 19, 2003. At the March 14 hearing, Mitchell
expressed the hope this would allow any damage to the attorney-
client relationship to be repaired over the long pretrial and trial
period to come, and Flinner points to nothing in the record
suggesting it did not.
Had Flinner requested a hearing on his placement in
administrative segregation, and done so in an appropriate
forum, he might have been entitled to one. (See In re
Davis (1979) 25 Cal. 3d 384, 390–391 [where state prison
regulations set out “specific circumstances under which
administrative segregation may be imposed,” “ ‘the inmate has
an interest, conferred by statewide regulation and protected by
due process, in not being confined in maximum security
segregation unless he is found, for clearly documented reasons,
to come within the standard set by the rules’ ”].) But without
any such request at the time, and with no indication in the
record that Flinner’s housing placement deprived him of any
trial right or prejudiced the result of his trial, he is not entitled
to a reversal on this ground.
ii. Violation of Right to be Present at All
Critical Stages of Proceedings
Flinner next asserts that the trial court violated his right
to be present all critical stages of proceedings, pointing to the ex
parte discussions with jail personnel and the in camera
discussions with the attorneys. Contrary to the Attorney
General’s argument, Flinner had no effective opportunity to
object to proceedings at which he was not present, and therefore
did not forfeit his due process claim. The claim fails on the
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Opinion of the Court by Kruger, J.
merits, however, because none of these pretrial proceedings,
which concerned only the circumstances of Flinner’s
confinement in jail, were critical to the determination of guilt or
penalty.
A defendant has the constitutional right to be personally
present in court “where necessary to protect the defendant’s
opportunity for effective cross-examination, or to allow him to
participate at a critical stage and enhance the fairness of the
proceeding.” (People v. Carasi (2008) 44 Cal. 4th 1263, 1299.) It
does not extend to “in camera discussions on matters bearing no
reasonable, substantial relation to the defense of the charge.”
(Ibid.) And while ex parte proceedings are generally disfavored,
“the trial court retains discretion to conduct in camera, ex parte
proceedings to protect an overriding interest that favors
confidentiality.” (Ibid.) The same standard for requiring the
defendant’s personal presence applies under California law, and
to prevail on such a claim under federal or state law the
defendant bears the burden of showing “that his absence
prejudiced his case or denied him a fair trial.” (People v.
Bradford (1997) 15 Cal. 4th 1229, 1357; accord, People v.
Blacksher (2011) 52 Cal. 4th 769, 799.)
The ex parte proceedings in this case were occasioned by
the revelations of a jailhouse informant, Sherman, that while in
jail Flinner had been engaging in investigative activities aimed
at disrupting his upcoming trial, including obtaining personal
information about the prosecutor and trial judge. The trial court
acted within its discretion in excluding Flinner, and initially his
attorneys, from these proceedings until Flinner had been placed
in a more secure housing unit where his communication with
other inmates could be controlled. Most important, Flinner fails
to demonstrate that his absence from the hearings on his
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Opinion of the Court by Kruger, J.
housing and telephone privileges resulted in any actual
prejudice to his defense. The ex parte hearings did not concern
the conduct of the trial, but only pretrial security measures.
And as observed above, despite the inconvenience caused by
Flinner’s housing in Vista and the discomfort defense counsel
felt about temporarily concealing Sherman’s disclosure from
Flinner, the record gives no indication the defense team was
ultimately prevented from effectively preparing for trial.
iii. Prosecutorial Bias
Flinner argues that the prosecutor was biased against him
after the prosecutor learned of Flinner’s death threats against
him. Flinner asserts that this bias is manifest in the decision to
have Flinner transferred to the Vista jail, a decision for which,
he asserts, the prosecutor was at least in part responsible.
During a February 28, 2003, status conference, Defense
Attorney Resnick told the court that a sheriff’s captain at the
Vista facility said the security of Flinner’s confinement was
being monitored by Deputy District Attorney Paul Morley, a
division chief within the district attorney’s office. Based on that
apparent involvement by the prosecutor’s office, Flinner asserts
the trial prosecutor, Deputy District Attorney Rick Clabby,
misrepresented his influence in assuring defense counsel, “I
have absolutely no control over what the jail does.”
Flinner forfeited this claim by failing to raise it below. Once
the information provided by Sherman became available to
defense counsel, any claim of prosecutorial bias could and
should have been raised by a motion under Penal Code section
1424 to disqualify Prosecutor Clabby for a claimed conflict of
interest. Counsel neither moved for disqualification nor
asserted by any other means that Clabby harbored a
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Opinion of the Court by Kruger, J.
disqualifying bias against their client. “Defendant’s failure to
move to disqualify the district attorney in the trial court bars
appellate review of the claim.” (People v. Maury (2003) 30
Cal. 4th 342, 438.)
In any event, nothing in the record indicates that Flinner’s
threats and insults aimed at Prosecutor Clabby created a bias
that threatened the fairness of the proceedings. If the existence
of threats were sufficient by itself to require disqualification, a
disruptive scheme like Flinner’s could easily succeed. “[W]ere it
possible for a defendant charged with serious crimes to
disqualify the prosecutors trying the case from proceeding with
the prosecution by threatening them, willful defendants would
be handed a powerful weapon to disrupt the course of justice.”
(Millsap v. Superior Court (1999) 70 Cal. App. 4th 196, 204.) The
fact that the district attorney’s office was monitoring Flinner’s
housing status and communications restrictions does not show
that Clabby or any other member of the office acted improperly.
Having learned from Sherman of Flinner’s plans to disrupt the
trial, prosecutors had a legitimate interest in seeing that
security measures were taken to prevent those plans from being
executed.
iv. Judicial Bias
Flinner also argues Judge Preckel was biased after he was
warned that Flinner had made a threat against him. Flinner
infers bias from Judge Preckel’s “refus[al] to become involved in
the unconstitutional restrictions the prosecutor and jailer had
arranged, which improperly limited appellant’s access to his
counsel.” Flinner argues it was therefore a due process violation
for Judge Preckel to preside over his trial.
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Opinion of the Court by Kruger, J.
The Attorney General argues this claim was forfeited by
Flinner’s failure to move for Judge Preckel’s recusal. Flinner
responds that his codefendant had already used a peremptory
challenge (Code Civ. Proc., § 170.6) against the judge previously
assigned. He concedes, however, that he could have requested
recusal on grounds of bias (id., § 170.3, subd. (c)(1)), though he
insists that would have “run the risk of further alienating”
Judge Preckel. We agree with the Attorney General that if
Flinner believed his threat had resulted in a bias against him
on Judge Preckel’s part, he should have requested the judge
recuse himself on that basis, either via the statutory procedure
cited above or by a nonstatutory motion invoking Flinner’s right
to due process. Instead, according to Attorney Mitchell, Flinner
said he “feels he’s very comfortable” having Judge Preckel
preside over his trial. Flinner cannot now ask for reversal on
the basis of a claimed error he accepted without complaint
below.5
We also reject Flinner’s due process claim on its merits. A
due process claim of this type requires a showing that “under
the ‘extreme facts’ of the case, ‘the probability of actual bias rises
to an unconstitutional level.’ ” (People v. Freeman (2010) 47
Cal. 4th 993, 1001.) Here there are no extreme facts and no
probability of actual bias. Although Sherman had reported that
Flinner raised the possibility of trying to kill his prosecutor and
trial judge, there was no indication of imminent or severe
5
Flinner cites Arizona v. Fulminate (1991) 499 U.S. 279,
310, for the proposition that a structural defect like trial by a
biased judge cannot be forfeited. The cited passage, however,
states only that such structural defects are not subject to
harmless error analysis; it says nothing about forfeiture.
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PEOPLE v. FLINNER
Opinion of the Court by Kruger, J.
danger to Judge Preckel or anyone else. When first discussing
Sherman’s information with the court, the prosecutor
summarized the general threat level from Flinner as justifying
“concern[]” and “aware[ness],” but did not “assess[] it much
higher than that.” The record provides nothing to support
Flinner’s assertion that the judge “likely feared” Flinner.
As for the court’s deference to the sheriff’s department on
details of Flinner’s housing and communications restrictions,
such deference creates no inference of fear or bias. It is as
consistent, or more so, with Judge Preckel’s repeated
explanation that he respected the lines between judicial and law
enforcement authority and expertise, and therefore would no
more tell the sheriff how to run the jail than he would expect
that officer to tell him how to run his courtroom.
Nor, finally, did Judge Preckel display indifference to
Flinner’s rights and interests. To the contrary, he showed a
willingness to make and change orders as defense counsel
convinced him was necessary for the attorney-client relationship
and the defense team’s trial preparation. No probability of
unconstitutional bias appears from the record.
2. Denial of Flinner’s Severance Motions
Flinner contends that he was denied the right to due
process and a fair trial when the trial court declined to fully
sever his case from that of his codefendant Ontiveros and
instead empaneled two separate juries for a joint trial.
“Penal Code section 1098 provides, in relevant part:
‘When two or more defendants are jointly charged with any
public offense, whether felony or misdemeanor, they must be
tried jointly, unless the court order[s] separate trials.’ ‘Joint
trials are favored because they “promote [economy and]
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PEOPLE v. FLINNER
Opinion of the Court by Kruger, J.
efficiency” and “ ‘serve the interests of justice by avoiding the
scandal and inequity of inconsistent verdicts.’ ” ’ [Citation.]
‘When defendants are charged with having committed “common
crimes involving common events and victims,” as here, the court
is presented with a “ ‘classic case’ ” for a joint trial.’ [Citation.]
We review a trial court’s denial of a severance motion for abuse
of discretion, based on the facts at the time of the trial court’s
ruling. [Citation.] ‘Even if a trial court abuses its discretion in
failing to grant severance, reversal is required only upon a
showing that, to a reasonable probability, the defendant would
have received a more favorable result in a separate trial.’ ”
(People v. Daveggio and Michaud (2018) 4 Cal. 5th 790, 819
(Daveggio).) “Conversely, even if a trial court acted within its
discretion in denying severance, ‘ “the reviewing court may
nevertheless reverse a conviction where, because of the
consolidation, a gross unfairness has occurred such as to deprive
the defendant of a fair trial or due process of law.” ’ ” (People v.
Thompson (2016) 1 Cal. 5th 1043, 1079 (Thompson).)
“Defendants bear the burden of establishing that the trial was
grossly unfair and denied them due process of law, and ‘a
judgment will be reversed on this ground only if it is “reasonably
probable that the jury was influenced [by the joinder] in its
verdict of guilt.” ’ ” (Daveggio, at p. 821.)
Before trial, the prosecution conceded that dual juries
were appropriate but contended that the cases should proceed
in a single trial. Flinner’s counsel moved to sever the cases
completely on the ground that Flinner and Ontiveros intended
to present antagonistic defenses. Flinner planned to argue that
he was not involved at all in Keck’s killing, while Ontiveros
intended to show that Flinner was the mastermind of the
murder and manipulated Ontiveros into participating. As we
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PEOPLE v. FLINNER
Opinion of the Court by Kruger, J.
have explained, “ ‘[m]utually antagonistic defenses are not
prejudicial per se.’ ” (Thompson, supra, 1 Cal.5th at p. 1081,
quoting Zafiro v. United States (1993) 506 U.S. 534, 538.) In
Daveggio, for example, we rejected an antagonistic-defense
argument similar to the one raised here, in which one
codefendant’s defense was that her codefendant “controlled her
and was the instigator of their joint crimes.” (Daveggio, supra,
4 Cal.5th at p. 819.)
Flinner posits that the conflict here rises beyond mere
antagonism; he claims that the two positions are “completely
irreconcilable” because “[i]f the jury believed Ontiveros, it would
have to convict [Flinner].” We have explained that “antagonistic
defenses require severance only when ‘ “ ‘the conflict is so
prejudicial that [the] defenses are irreconcilable, and the jury
will unjustifiably infer that this conflict alone demonstrates that
both are guilty.’ ” ’ [Citation.] ‘If the moving party’s guilt can be
established by sufficient independent evidence, “it is not the
conflict alone that demonstrates . . . guilt,” and severance is not
required.’ ” (Daveggio, supra, 4 Cal.5th at pp. 819–820.)
We made the statements above in the context of a joint
trial before a single jury. Whether antagonistic defenses ever
require severance in the context of separately empaneled juries
is unclear, but we need not decide that general question here.
Flinner cannot show, in any event, that in this case the conflict
between the two defenses alone established guilt, given the
overwhelming independent evidence against him, including the
video surveillance evidence showing Flinner and Ontiveros
meeting shortly before the murder near the scene of the crime
and the inculpatory statements Flinner made to Lopez. The
nature of Flinner’s and Ontiveros’s defenses would not have
compelled severance even in a single-jury trial. A fortiori, they
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PEOPLE v. FLINNER
Opinion of the Court by Kruger, J.
did not do so in a dual-jury trial, where evidence properly
admitted solely for or against one defendant could be excluded
as to the other.6
Nor did the existence of Ontiveros’s incriminating
confession require the trial court to grant Flinner’s severance
motion. The existence of an “ ‘ “incriminating confession” ’ ” is
one of many “[f]actors that may bear on a trial court’s decision
to order separate trials.” (People v. Gomez (2018) 6 Cal. 5th 243,
274.) But it is settled that a trial court may resolve admissibility
problems posed by a codefendant’s confession by empaneling
dual juries at a single trial, as the court did here, instead of
ordering separate trials. (See People v. Anderson (2018) 5
Cal. 5th 372, 387; Thompson, supra, 1 Cal.5th at p. 1085 [“ ‘[W]e
have upheld the use of separate juries for jointly tried
defendants, as an alternative to outright severance’ ”].)
Flinner argues that the single trial raised issues under
Bruton v. United States (1968) 391 U.S. 123 (Bruton) and
6
In Zafiro v. United States, supra, 506 U.S. at page 539, the
high court explained that when defendants have been properly
joined, antagonistic defenses call for severance “only if there is
a serious risk that a joint trial would compromise a specific trial
right of one of the defendants, or prevent the jury from making
a reliable judgment about guilt or innocence.” As examples, the
court pointed to the possibility that “evidence that the jury
should not consider against a defendant and that would not be
admissible if a defendant were tried alone is admitted against a
codefendant” or that “[c]onversely, a defendant might suffer
prejudice if essential exculpatory evidence that would be
available to a defendant tried alone were unavailable in a joint
trial.” (Ibid.) The dual-jury procedure appears to solve most or
all such evidentiary problems, suggesting that antagonistic
defenses do not require severance where the defendants have
separately empaneled juries.
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Opinion of the Court by Kruger, J.
Crawford v. Washington (2004) 541 U.S. 36 (Crawford) because
the prosecution was permitted to introduce parts of Ontiveros’s
postarrest confession through Detective Scully before Flinner’s
jury. As we explain in detail below, no Bruton issue arose
because Flinner and Ontiveros were tried by separate juries.
Flinner does, however, establish that the trial court committed
Crawford error in admitting parts of Ontiveros’s confession
against Flinner. But it was not the nature of the single trial
that produced this error: Before the high court decided
Crawford, the trial court ruled portions of Ontiveros’s confession
admissible against Flinner as statements against penal
interest. The trial court’s error was in admitting Ontiveros’s
statements in violation of the confrontation clause, not in
denying Flinner’s severance motion. The basis for the trial
court’s ruling — that Ontiveros’s statements were admissible
against Flinner as statements against interest — would have
permitted their introduction even at a separate trial. (See
pt. II.B.7., post.)
Flinner moved to sever his case again midtrial after
Ontiveros’s cross-examination of the state’s witness Charles
Cahoon. Defense counsel argued that Cahoon’s testimony as
elicited by Ontiveros’s counsel was “not quite character
assassination, but . . . awful close to it.” The trial court denied
the motion. Cahoon testified that he was afraid of Flinner, that
Flinner was manipulative, and that Cahoon was not involved in
the murder, contrary to the allegations in an anonymous letter
left on a police sergeant’s windshield. Defense counsel appeared
most concerned with the trial court’s admission, over Flinner’s
objection, of Cahoon’s statement that Flinner “is a very bad man
and he should be stopped” and that “he doesn’t deserve to even
be with us here on Earth,” given in response to a question by
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PEOPLE v. FLINNER
Opinion of the Court by Kruger, J.
Ontiveros’s counsel about why Cahoon belatedly came forward
to Detective Scully with information implicating Flinner.
Flinner does not now argue that the trial court abused its
discretion in denying this second severance motion; instead, he
lists Cahoon’s testimony as one illustration of how the
antagonistic defenses unfairly prejudiced him. We disagree. As
we explain later, the trial court did not err in admitting
Cahoon’s statements, which could with equal propriety have
been elicited by the prosecution. (See pt. II.B.1.c., post.)
We also reject Flinner’s claim that reversal is required
because the trial court’s failure to sever allowed Ontiveros to act
as a “second prosecutor.” As we have previously explained in
rejecting a similar argument, just “because the prosecution’s
case will be stronger if defendants are tried together, or that one
defense undermines another, does not render a joint trial
unfair.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal. 4th
335, 379.)
Flinner argues that Ontiveros was permitted to introduce
evidence damaging to his defense that the prosecution did not
offer, but he does not establish that the prosecution would have
been unable to offer the same evidence against him. Flinner’s
argument focuses in particular on the admission of hearsay
statements that he made to Gilberto Lopez that Flinner
“shouldn’t have killed her” or “should not have had her killed,”
referring to Keck. Although Flinner complains that Ontiveros
and not the prosecution called Lopez and that Ontiveros’s
counsel did not ask Lopez any question about Ontiveros, the fact
remains that the prosecution could have offered the very same
evidence against Flinner, regardless of whether the two
defendants were jointly tried.
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Opinion of the Court by Kruger, J.
Flinner complains that Ontiveros was responsible for the
admission of other pieces of damaging evidence as well, but the
evidence in question was in fact introduced by the prosecution,
not Ontiveros. For example, Flinner notes that “[i]t was
Ontiveros’[s] counsel who had a police sergeant read a portion of
an anonymous letter found on the windshield of his patrol car,”
but it was actually the prosecution that called the sergeant as a
witness and projected the relevant portion of the letter for the
jury to read. Similarly, Flinner complains that Ontiveros’s
counsel attempted to impeach a mental health expert called by
Flinner to challenge Martin Baker’s competency and that
Ontiveros’s counsel elicited testimony from the state’s forensic
computer examiner that Flinner used his computer to print
fraudulent checks. But in each case, Ontiveros’s questioning
largely replicated the prosecution’s earlier work. Flinner does
not argue that any of this evidence was inadmissible, and the
fact that it was first introduced by the prosecution rebuts the
argument that its damaging effects stemmed from the joint
nature of the trial. In any event, “no denial of a fair trial results
from the mere fact that two defendants who are jointly tried
have antagonistic defenses” and one offers evidence “that is
damaging to the other and thus helpful to the prosecution.”
(People v. Turner (1984) 37 Cal. 3d 302, 313.)
Flinner also points to a number of instances in the record
where he claims that Ontiveros was permitted to ask
inappropriate questions. In some of these instances, Flinner
simply misreads the record. He suggests that Ontiveros’s
counsel was permitted to present damaging “innuendo” evidence
against Flinner when Ontiveros’s counsel asked prosecution
witness Robert Pittman whether he had ever heard that
Flinner’s first wife “had died mysteriously.” In fact, it was
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PEOPLE v. FLINNER
Opinion of the Court by Kruger, J.
Flinner’s counsel, not Ontiveros’s, who posed this question to
Pittman. In other instances, Flinner objects to questioning by
Ontiveros that was substantially the same as a line of
questioning first posed by Flinner or the prosecution. Flinner
objects to questions that Ontiveros’s counsel posed to witness
Sterling Thomas about whether Flinner had asked Thomas to
steal his Chevy SUV so that Flinner could file an insurance
claim, whether Flinner had “hit on” Thomas’s fiancée, or
whether Flinner said he wanted to “get rid of” his girlfriend
(even though Thomas denied some of these conversations ever
took place and said that others were in jest). But it was Flinner
who called Thomas as a witness, and Flinner who first brought
up the alleged conversation in which Flinner asked Thomas to
steal his truck. As for Thomas’s testimony that Flinner said he
wanted to “get rid of” his girlfriend, it was the prosecution that
first elicited the testimony on cross-examination. In any event,
regardless of whether Ontiveros was the first to ask the
questions or merely followed up on the questions already asked
by others, the jury was properly instructed that questions are
not evidence, and we presume it followed the court’s
instructions. (People v. Sanchez (2001) 26 Cal. 4th 834, 852.)
Flinner argues that Ontiveros’s defense strategy reduced
the People’s burden to prove Flinner’s guilt beyond a reasonable
doubt, but we are not persuaded. “[T]his was not a case in which
only one defendant could be guilty. The prosecution did not
charge both and leave it to the defendants to convince the jury
that the other was that person. Here the prosecution theory was
that both defendants participated in, and were guilty of, the
murder.” (People v. Cummings (1993) 4 Cal. 4th 1233, 1287.)
The prosecution put on substantial evidence of Flinner’s guilt,
including evidence that Flinner met with Ontiveros the day of
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Opinion of the Court by Kruger, J.
the murder to run through the plan, that Flinner made
incriminating statements before and after he was charged with
Keck’s murder, and that he attempted to pay Ontiveros for his
role in the crime.
Finally, Flinner argues that the trial court’s failure to
sever his case produced gross unfairness because Ontiveros used
the codefendants’ single peremptory challenge to dismiss the
original judge, ostensibly preventing Flinner from dismissing
Judge Preckel for alleged bias. As we have explained
(pt. II.A.1.b.iv., ante), Ontiveros’s use of the single statutory
peremptory challenge did not prevent the defense from raising
a nonstatutory motion for recusal. Thus, any prejudice flowed
from Flinner’s failure to object and not from the trial court’s
failure to order severance. And, in any event, as we have
explained, Flinner’s judicial bias claim fails on the merits; Judge
Preckel’s presiding did not render Flinner’s trial unfair.
B. Guilt Phase Issues
1. Admissibility of Consciousness of Guilt and
Witness Fear Evidence
Flinner asserts that the trial court erred in admitting
evidence that he obtained or planned to obtain the home
addresses of persons connected to the trial, that he threatened
the prosecutor, and that certain witnesses were afraid of or
intimidated by him.
Under the Evidence Code, “[e]vidence must be relevant to
be admissible. (Evid. Code, § 350.) Moreover, even if relevant,
it may be excluded if the court determines that its prejudicial
impact substantially outweighs any probative value. (Id.,
§ 352.) We afford trial courts wide discretion in assessing
whether in a given case a particular piece of evidence is . . . more
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Opinion of the Court by Kruger, J.
prejudicial than probative.” (People v. Duff (2014) 58 Cal. 4th
527, 558.)
Flinner argues that the challenged evidence was
irrelevant and unduly prejudicial in violation of Evidence Code
sections 350 and 352. He also argues that admission of the
evidence violated his rights to due process and a reliable penalty
determination under the Eighth and Fourteenth Amendments.
We address each category of challenged evidence in turn.
a. Flinner’s Attempt To Obtain Addresses of
Witnesses, Judge, Prosecutor, and Potential
Jurors
Flinner first asserts that the trial court erred in admitting
evidence that he obtained or planned to obtain the home
addresses of various persons connected to his trial. Inmate
Gregory Sherman, who was housed in the same area as Flinner
at the county jail, was called as a prosecution witness. As noted
above, Sherman had special privileges at the jail’s law library —
including access to unmonitored phone calls and the internet —
because he represented himself pro se. He also had past
experience tracking down people’s addresses through public
record searches. Sherman testified that after Flinner learned
about his library privileges and skills, Flinner asked him for
help in obtaining the addresses of prosecution witnesses, as well
as the prosecutor, the judge, and the bailiff in his case.
Flinner explained that he intended to sabotage the trial by
flooding the witness pool with letters containing confidential
information about the case; he expected this tactic would
preclude the witnesses from testifying. He planned to make it
look like the letters came from one of the lead detectives in his
case or his prior defense attorney, and he told Sherman that he
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Opinion of the Court by Kruger, J.
knew some people who he would then direct to “take . . . out” the
person he framed. If that plan failed, Flinner had a “plan B”
that he shared with Sherman: Flinner would try to ensure that
the jurors selected to serve in his case were homeowners with
uncommon names, so that he could easily track down their home
addresses. As with the witness pool plan, Flinner would then
send the jurors packets of information about the case intended
to disqualify the jurors from serving. For this scheme, Flinner
suggested to Sherman that he would make it look like the
prosecutor sent the packets.
The prosecution also called Catherine McLarnan, who
previously dated Flinner. She testified that after she visited
Flinner in jail, he sent her a package containing a list of names
and addresses of witnesses, a letter to send to those witnesses,
and instructions on how to prepare the letters. Flinner asked
her to type up the letter, wear latex gloves while preparing the
letters and envelopes, and use the address of his former defense
attorney as the return address. He explained that the letter
included evidence deemed inadmissible by his trial judge and
that, by sending it to all the witnesses, he would be able to “ ‘ruin
the People’s case.’ ” McLarnan testified that she did not follow
Flinner’s directions and instead turned the materials from
Flinner over to his defense investigator.
Flinner argues that this evidence about his efforts to
tamper with the witnesses and the jury was irrelevant and
unduly prejudicial, but he does not point to a specific trial
objection to this evidence. We thus agree with the Attorney
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Opinion of the Court by Kruger, J.
General that the issue has been forfeited by lack of objection.7
We reject the claim for lack of merit in any event. As the jury
was instructed (with a version of CALJIC No. 2.06), a
defendant’s efforts to suppress harmful evidence can be
probative of the defendant’s consciousness of guilt. Sherman’s
and McLarnan’s testimony concerning Flinner’s plans to tamper
with the witnesses and jury pool was relevant to show his
consciousness of guilt. Nor was this evidence was unduly
prejudicial: None of this testimony suggested that Flinner
intended to threaten or harm the jurors, as opposed to a
detective or defense attorney, and we conclude that any
prejudice that may have arisen from jurors’ awareness that
7
In response to the Attorney General’s forfeiture argument,
Flinner points to an asserted trial court order that all defense
objections are made on all relevant state and federal grounds.
As we explain later in this opinion (see pt. II.B.3., post), the
order in question did not operate to generally excuse Flinner
from objection requirements. He also attempts to demonstrate
that the trial court did, in fact, consider an objection to the
evidence and overruled it. But there is nothing in the record to
support the contention. Flinner invokes a “discussion regarding
appellant’s alleged efforts to suppress or fabricate evidence,” but
cites a transcript page that does not exist. Next, Flinner points
to the trial court’s consideration of a pretrial motion which the
court characterized as concerning “purported efforts by and on
behalf of Mr. Flinner to fabricate and/or suppress evidence” but
none of the documents (letters authored by Flinner) that the
court went on to consider concern Sherman or McLarnan.
Finally, Flinner points to a hearing in which, he says, the “court
overrules defense objections to evidence regarding McLarnan.”
But the record contains no indication that such a thing occurred
at the hearing; instead, it appears from the record that the
materials that McLarnan handed over to the defense
investigator were first brought to the court’s attention at this
hearing, and the court agreed to defense counsel’s request to
consider the materials in camera at a later time.
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Flinner sought out and may have discovered the jurors’
addresses was outweighed by the probative value of this
testimony.
b. Flinner’s Threats to the Prosecutor
Flinner also claims that the trial court erred in admitting
portions of three letters he wrote expressing hatred toward the
prosecutor and threats against the prosecutor or his family. The
first is a letter that Flinner wrote to his mother, where he
characterized the prosecutor as a “little maggot.” The letter goes
on to state: “You’d think a guy who achieved as he is could afford
more than a $263,000 mortgage. [¶] . . . [¶] . . . His wife must
be unquestionably ill-bred, empty, and misguided being with
him, either that or one hideous, sordid shrew with a back harrier
[sic] than his own. . . . I hope he dies young. The Freedom of
Information Act is a great thing. . . . Looking forward to getting
out of here and moving to Chula Vista so I can hang out with all
of my great friends.”
The second letter is one that Flinner wrote to an inmate
at another prison with whom Flinner corresponded frequently.
It reads, in part: “Have you ever heard of the Freedom of
Information Act? Why is it okay for him to know all about me,
and yet I’m not supposed to know anything about him? . . . One
cannot be a true adversary without knowledge of his opponent
and his critical position in life. . . . [¶] . . . [¶] . . . He has me
locked away in solitary confinement so as not to be able to talk
to the other convicts, et cetera. But I ride four busses [sic] when
I go to court and can speak to whomever I wish. Many people
know the things that I want them to know. One thing is for sure,
this shit is a long way from over. [¶] Anyway, just thought I’d
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Opinion of the Court by Kruger, J.
put that out there in case this sorry piece of shit happens to read
this, miserable mother fucker.”
The third letter Flinner points to is one he sent to another
inmate. The court admitted only part of this letter, which
included the following statement: “By the way, the dicks [on top
of each page of the letter] are for the D.A.’s memory. He’s [sic]
trying to send him a subliminal message, actually a series of
them. First, I will fuck him in front of his wife and kids when
I’m free.”
Before trial, the prosecution had sought to admit these
and several other letters written by Flinner disparaging the
prosecutor, illustrating Flinner’s knowledge of personal details
about the prosecutor like his home address and wife’s name,
disclosing such information to other inmates, and threatening
harm to the prosecutor and his family. The prosecution argued
that this evidence was relevant to showing Flinner’s efforts to
intimidate the prosecutor and thereby hinder the prosecution of
the case. Although these letters were sent to third parties and
not directly to the prosecutor, the prosecution asserted that
Flinner knew his letters were being photocopied and monitored
by the authorities. Defense counsel objected to the admission of
the letters, arguing that Flinner was merely “venting his
frustrations regarding his situation rather than attempting to
hinder the prosecution of this case” and was just trying to “get[]
a rise out of” the prosecutor. To the extent the letters were
relevant, Flinner urged, they should be excluded as unduly
prejudicial. The court agreed with the prosecution that these
letters supported the inference that Flinner was trying to alter
the course of the prosecution by intimidating the prosecutor, but
it carefully walked through the letters and excluded many
entirely and others in part under Evidence Code section 352.
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We conclude the trial court did not err in admitting the
portions of the three letters of which Flinner now complains. We
agree with the trial court that these letters contained not-so-
veiled threats against the prosecutor and his family, which were
relevant to whether Flinner attempted to suppress evidence by
obstructing the prosecution of his case and thus tend to
demonstrate consciousness of guilt. (See People v. Hamilton
(1985) 41 Cal. 3d 408, 429 [where the defendant knew his
jailhouse letter would be copied and read by authorities, his
reference to threats against the prosecutorial team made by an
acquaintance, which were to be carried out if the defendant was
convicted, constituted a form of “subtle attempt at
intimidation”].) We also conclude that the court acted within its
discretion in admitting under an Evidence Code section 352
analysis the portions of the letters that Flinner points to here.
We do not think the jury would be biased by the derogatory
characterizations of the prosecutor as a “little maggot” or a
“miserable mother fucker,” especially in light of the evidence of
the actual crimes at issue in this case. The probative value of
Flinner’s pointed references to details about the prosecutor’s
personal life outweighs any prejudice that might have arisen
from the jurors’ knowledge that Flinner was targeting the
prosecutor. We cannot say the trial court abused its wide
discretion in admitting these threats.
Finally, Flinner suggests that it was unduly prejudicial to
expose the jurors to both the violent threats Flinner made
against the prosecutor and his attempts to collect the jurors’ own
addresses. He reasons that the jurors might have inferred that
he would retaliate against them or their families, too, and they
would be prejudiced against him as a result. We conclude the
trial court did not abuse its discretion by admitting either
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Opinion of the Court by Kruger, J.
category of evidence. As we have already explained, the
probative value of Flinner’s attempts to obtain jurors’ addresses
and his threats against the prosecutor was significant, and we
are not convinced that any additional prejudice arising from the
synergy of these two strains of evidence substantially
outweighed that probative value.
c. Witnesses’ Fears of Flinner
Flinner argues that the trial court erred in admitting the
testimony of three witnesses in which each expressed fear of
Flinner. The Attorney General argues that, in each instance,
the witness’s fear of Flinner was relevant to the witness’s
credibility and therefore admissible. We consider each witness’s
testimony in turn.
Witness Charles Cahoon testified about Flinner’s attempt
to frame him for Keck’s murder. The prosecution sought to show
that Flinner was responsible for planting a sock with bullets
inside it in Cahoon’s car. Cahoon testified that he saw Flinner
break into his apartment shortly before Cahoon found the sock
in his car, and that Cahoon realized his car keys were missing
shortly after the apartment break-in. On cross-examination,
Flinner’s attorney elicited testimony that, when Cahoon first
reported the incident to the police, Cahoon said the intruder
looked like a Mexican person and resembled Flinner’s friend,
Gilberto Lopez. During later cross-examination by Ontiveros’s
counsel and redirect examination by the prosecution, Cahoon
explained that he had always thought the intruder was Flinner
but had been reluctant to name him because Cahoon was afraid
of Flinner. Over Flinner’s objection, the trial court permitted
Cahoon to explain why he ultimately chose to come forward and
name Flinner: “Because I think he is a very bad man and he
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Opinion of the Court by Kruger, J.
should be stopped. And I think he doesn’t deserve to even be
with us here on Earth.”
On recross-examination, Flinner’s counsel attempted to
impeach Cahoon by portraying Cahoon as a biased witness who
was trying to ensure Flinner’s conviction. Defense counsel
elicited Cahoon’s testimony that Cahoon had been trying to find
out what he “could do to go ahead and help to get [Flinner] off
the street and away from the public eye and so he couldn’t hurt
or kill anybody else.” And Cahoon confirmed, upon defense
counsel’s followup, that this was his “angle” — that he did not
like Flinner and did not think he “should be with us here.” At
defense counsel’s request, the trial court struck other portions
of Cahoon’s testimony as nonresponsive, including Cahoon’s
statement that he was still scared of Flinner and thought “what
he’s doing to [codefendant Ontiveros] is ridiculous.”
We conclude the trial court properly admitted this
testimony. Cahoon’s description of his initial fear in response to
questioning by the prosecution and by Ontiveros’s counsel were
relevant to Cahoon’s credibility: His fear of Flinner provided an
explanation for why he did not immediately name Flinner as the
home intruder. Cahoon did express strong negative feelings
about Flinner alongside his fear; some of his statements held a
potential for prejudice within the meaning of Evidence Code
section 352. But the trial court did not abuse its broad discretion
to balance that potential against the statements’ probative
value in showing how Cahoon overcame his fear of testifying.
We note as well that Cahoon’s later statements against Flinner
— that Cahoon was testifying in order to get Flinner “off the
street and away from the public eye and so he couldn’t hurt or
kill anybody else” and that he did not think Flinner “should be
with us here” — were elicited by Flinner’s own attorney,
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Opinion of the Court by Kruger, J.
presumably believing these statements useful to show Cahoon’s
bias. Flinner cannot claim error in admission of evidence he
elicited. (See People v. Gutierrez (2002) 28 Cal. 4th 1083, 1139
[if there was error, it was invited]; People v. Escobar (1996) 48
Cal. App. 4th 999, 1022, fn. 4 [rejecting defendant’s claim of
inadmissibility of evidence where defendant “not only failed to
object to the admission of the evidence, but . . . sought its
admission”].)
Next, Flinner argues that the trial court erred in
admitting prosecution witness Ronald Millard’s statement that,
although Flinner had never threatened or harmed him, Millard
felt intimidated by Flinner. Millard, who had worked for
Flinner, testified to aspects of the relationship between Flinner
and Ontiveros. On cross-examination, Flinner’s attorney asked
the following questions:
“Q: Did Mr. Flinner ever threaten you personally?
“A: No.
“Q: Did Mr. Flinner ever touch you physically?
“A: No.
“Q: Did Mr. Flinner ever do anything to make you
personally afraid of him where he said something to you
concerning anything.
“A: He’s a very intimidating man.”
As with Cahoon’s later statements of fear, defense counsel
initiated this line of questioning and did not ask the trial court
to strike Millard’s answer that Flinner is “a very intimidating
man,” the only portion of Millard’s testimony to which he now
objects. Under these circumstances, his claim of error is not
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cognizable on appeal. (People v. Gutierrez, supra, 28 Cal.4th at
p. 1139.)
Finally, Flinner returns to McLarnan’s testimony. The
prosecutor asked McLarnan what she did upon receiving the
letter from Flinner asking her to send letters to witnesses in his
case. When she said that, at first, she “didn’t do anything with
it” and ultimately turned it over to the defense investigator, the
prosecutor asked whether she ever contacted police or the
district attorney’s office to tell them about Flinner’s letter. She
said she had not. The prosecutor proceeded to ask her whether
she had been concerned about her family’s safety should Flinner
find out about her decision not to help him. Over Flinner’s
objection on grounds of relevance and undue prejudice, the trial
court allowed McLarnan to answer that she “was concerned
about Michael’s reaction” and she “was concerned for [her] son.”
The prosecutor also introduced portions of a letter she sent to
the defense investigator in which she wrote, “I’m seriously
concerned for my family’s safety should Michael find out about
this,” and queried, “Do you think we’ll need protection?”
We conclude that this evidence was relevant. “Evidence
that a witness is afraid to testify or fears retaliation for
testifying is relevant to the credibility of that witness and is
therefore admissible.” (People v. Burgener (2003) 29 Cal. 4th
833, 869.) McLarnan’s explanation of why she was afraid was
“likewise relevant to her credibility” and its admission “well
within the discretion of the trial court.” (Ibid.) McLarnan did
not initially tell anyone about the letter that she received from
Flinner and never handed the information over to the
authorities; her fears of what Flinner would do if he found out
about her actions were relevant to why she held this information
so closely and did not come forward immediately with it, despite
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Opinion of the Court by Kruger, J.
her understanding that the letter could be seen as tampering
with witnesses and hampering Flinner’s trial. (People v.
Mendoza (2011) 52 Cal. 4th 1056, 1085 [“a trial court has
discretion, within the limits of Evidence Code section 352, to
permit the prosecution to introduce evidence supporting a
witness’s credibility on direct examination, particularly when
the prosecution reasonably anticipates a defense attack on the
credibility of that witness”].) And this evidence was not unduly
prejudicial: Though McLarnan’s statements suggest she feared
some kind of retaliation from Flinner, she did not testify that
Flinner had ever threatened or harmed her, including during
their prior relationship or when she visited him in prison. The
trial court did not abuse its discretion under Evidence Code
section 352 in admitting evidence of her concern.
2. Flinner’s Derogatory Statements About Keck
Flinner argues that the trial court improperly admitted
derogatory and callous comments he made about Keck before
and after her death. Tiffany Faye testified about a visit that
Flinner made to the flower shop where she worked to purchase
flowers for Keck’s funeral. During the visit, Flinner yelled at a
woman driving by in a car, “Hey baby, I’m single now,” and
laughed. In declining to add a message to accompany the
flowers he purchased, Flinner told Faye, “Tammy is dead. It’s
not like she can read it anyway,” and laughed again. David
Pemberton, a contractor who met Flinner at their local Chamber
of Commerce meetings, testified that Flinner referred to Keck
as a “bitch,” “cunt,” and “slut” in front of her and others. Flinner
contends that these statements should have been excluded as
irrelevant or, even if relevant, as substantially more prejudicial
than probative.
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Before trial, the prosecution filed a motion in limine to
introduce this and other evidence concerning Flinner’s strained
relationship with Keck. The prosecution argued that this
evidence was admissible in part because it “clearly rebuts
[Flinner’s] claim that he ‘loved’ Tamra and therefore could not
have killed her.” Flinner opposed the admission of much of this
evidence, arguing that it was highly prejudicial and irrelevant,
but acknowledged that some evidence of Flinner’s lack of grief
after Keck’s death might properly come in. The trial court
concluded that evidence of the strained nature of Flinner’s and
Keck’s relationship was relevant and admissible to establish
motive, identity, and state of mind, reasoning in part that
“defendant is not entitled to have the jury determine his guilt or
innocence on a false presentation of their relationship.” But the
court restricted the evidence that the prosecutor could present
to the jury based on an analysis under Evidence Code section
352.
We conclude the trial court properly admitted the
contested testimony of Faye and Pemberton. Flinner’s
derogatory characterizations of Keck, made both in Keck’s
presence and as well as in front of others, are relevant to proving
his strained relationship with Keck and thus his relative
willingness to have her killed in furtherance of his own material
gain. His callous remarks in Faye’s presence shortly after
Keck’s death are relevant to establishing his lack of sorrow, thus
refuting the defense’s theory that Flinner was in love with Keck
and therefore would not have been involved in her murder. And
the probative value of these statements was not substantially
outweighed by any prejudicial impact. These disparaging
remarks were not particularly inflammatory considering the
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Opinion of the Court by Kruger, J.
other evidence that Flinner arranged and facilitated a cold-
blooded murder for financial gain.8
3. Admissibility of Series of Writings Allegedly
Authored by Flinner or at His Direction
Flinner argues that the trial court erred in admitting a
series of letters, a telephone call recording, and two bullet
casings with “Tammy” and “Mike” written on them, all allegedly
authored by Flinner or made at his direction. He asserts that
none of these writings was properly authenticated, in violation
of Evidence Code section 1401, as well as his right to confront
the witness against him under the Sixth and Fourteenth
Amendments. Flinner also contends that this evidence was
irrelevant and substantially more prejudicial than probative,
and that its admission thus violated Evidence Code sections 350
and 352, as well as his rights to a fair trial and a reliable penalty
determination under the Eighth and Fourteenth Amendments.
With respect to a majority of these pieces of evidence,
Flinner has forfeited his objection based on lack of
authentication. Flinner argues that he preserved all his
authentication claims for our review. Without fully explaining
his argument on this point, he points to a pretrial ruling in
which he claims the court granted his request that all objections
by the defense be regarded as having been made on all relevant
state and federal grounds. But this ruling was not a sweeping
8
Flinner briefly suggests that his comments about Keck
were inadmissible hearsay. But he fails to explain how these
comments were offered for the “truth of the matter stated” (Evid.
Code, § 1200), as opposed to showing Flinner’s state of mind.
Nor does he explain why, if considered hearsay, they would not
fall within the exception for statements of a party opponent.
(Id., § 1220.)
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Opinion of the Court by Kruger, J.
authorization to remain silent at trial and raise objections for
the first time on appeal. Instead, the trial court granted,
without objection from the prosecution, what the court described
as “a rather standard motion in a capital case” filed on behalf of
codefendant Ontiveros and joined by Flinner: that defense
objections as raised on the record may be deemed, without
otherwise being expressly stated, to be objections based on
California state constitutional as well as United States
constitutional grounds. We have held that “[w]hen ‘new
arguments do not invoke facts or legal standards different from
those the trial court itself was asked to apply, but merely assert
that the trial court’s act or omission, insofar as wrong for the
reasons actually presented to that court, had the additional
legal consequence of violating the Constitution . . . [a]
defendant’s new constitutional arguments are not forfeited on
appeal.’ ” (People v. Redd (2010) 48 Cal. 4th 691, 730, fn. 19; see
also People v. Yeoman (2003) 31 Cal. 4th 93, 117 [explaining that,
“[a]s a general matter, no useful purpose is served” by declining
to consider such constitutional claims on appeal].) The trial
court’s order did nothing more than confirm that a defendant
does not forfeit an argument on appeal that is “merely a
constitutional ‘gloss’ ” upon an objection properly raised below.
(Redd, at p. 730, fn. 19.) But it is still generally the case that a
defendant forfeits an argument on appeal where he fails to
object at all to the evidence in the trial court or when he objects
on substantively distinct grounds. (See, e.g., People v. Partida
(2005) 37 Cal. 4th 428, 433–434 [“ ‘[W]e have consistently held
that the “defendant’s failure to make a timely and specific
objection” on the ground asserted on appeal makes that ground
not cognizable’ ”].) The trial court did not rule otherwise. And
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Opinion of the Court by Kruger, J.
here, Flinner failed to adequately object to most of the writings
he now complains about.
Under the Evidence Code, authentication of a writing —
including documents, audio recordings, and “every other means
of recording upon any tangible thing” (Evid. Code, § 250) — is
required before the writing may be admitted in evidence (id.,
§ 1401). “Authentication is to be determined by the trial court
as a preliminary fact ([id.,] § 403, subd. (a)(3)) and is statutorily
defined as ‘the introduction of evidence sufficient to sustain a
finding that it is the writing that the proponent of the evidence
claims it is’ or ‘the establishment of such facts by any other
means provided by law’ ([id.,] § 1400). The statutory definition
ties authentication to relevance. As explained by the California
Law Revision Commission’s comment to section 1400, ‘[b]efore
any tangible object may be admitted into evidence, the party
seeking to introduce the object must make a preliminary
showing that the object is in some way relevant to the issues to
be decided in the action. When the object sought to be
introduced is a writing, this preliminary showing of relevancy
usually entails some proof that the writing is authentic.’ ”
(People v. Goldsmith (2014) 59 Cal. 4th 258, 266 (Goldsmith).)
“The proponent’s assertion as to why the writing is relevant
determines what the proponent claims the writing is, typically
that it has some specific connection to a person or organization,
whether through authorship or some other relation. It is this
connection that must be proved to authenticate the writing.” (2
McCormick, Evidence (7th ed. 2013) § 221, pp. 82–83, fns.
omitted; Goldsmith, at p. 267 [“The first step is to determine the
purpose for which the evidence is being offered. The purpose of
the evidence will determine what must be shown for
authentication, which may vary from case to case”].)
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“The foundation requires that there be sufficient evidence
for a trier of fact to find that the writing is what it purports to
be, i.e., that it is genuine for the purpose offered. [Citation.]
Essentially, what is necessary is a prima facie case. ‘As long as
the evidence would support a finding of authenticity, the writing
is admissible. The fact conflicting inferences can be drawn
regarding authenticity goes to the document’s weight as
evidence, not its admissibility.’ ” (Goldsmith, supra, 59 Cal.4th
at p. 267.) We review a trial court’s finding that sufficient
foundational facts have been presented to support a writing’s
admissibility for abuse of discretion. (People v. Lucas (1995) 12
Cal. 4th 415, 466.)
Here, the prosecution introduced the challenged writings
for the purpose of showing that Flinner attempted to derail the
investigation of Keck’s death by framing others for her murder
while making himself appear innocent or, indeed, another target
of her killer(s). Flinner argues that the prosecution failed to
properly authenticate these writings because the prosecution
did not make a sufficient preliminary showing that Flinner was
the author of these writings or that he directed others to create
them. The Attorney General responds that a preliminary
showing that Flinner authored these writings was unnecessary
because these writings were not offered for the truth of their
contents but rather “for the jury to specifically consider whether
Flinner authored or caused their production.” The Attorney
General asserts that “when the content of the writing or the
truthfulness of the assertions in the writing are not at issue,
authentication as to authorship is largely unnecessary,” citing
People v. Adamson (1953) 118 Cal. App. 2d 714, 720 (Adamson).
As an initial matter, the Attorney General’s interpretation
of Adamson is flawed and his reliance on the case is misplaced.
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Adamson stands for a narrower proposition: namely, that
preliminarily establishing the author of a writing is not
necessary if the authorship of the writing is irrelevant. In
Adamson, the prosecution had introduced a letter a witness
received in order to establish that the witness had acted
pursuant to the letter. (Adamson, supra, 118 Cal.App.2d at
p. 720.) The court concluded the prosecution was not required
to make a preliminary showing that the letter was genuinely
written by the alleged author, because “[w]hether it be genuine
or a forgery, it was merely offered to show that [the witness] was
motivated by it in his actions.” (Ibid.) In such instances, where
authorship is irrelevant and the sole issues are whether a
witness “receive[d] th[e] material, and if so what effect, if any,
did it have on [his] mind[],” we have confirmed that establishing
authorship is not necessary to properly authenticate a writing.9
(People v. Marsh (1962) 58 Cal. 2d 732, 740 [discussing
Adamson].) Here, unlike in Adamson, the prosecution
introduced the series of writings at issue precisely for the
purpose of establishing that Flinner wrote them or directed
their production. Authorship was not irrelevant; it was, rather,
the central purpose for which the writings were introduced. For
9
The Adamson court’s conclusion that authentication is
“not necessary” under these circumstances, however, is
inaccurate as stated. (See Assem. Com. on Judiciary com., 29B
pt. 5 West’s Ann. Evid. Code (2015 ed.) foll. § 1401, p. 203.)
Although proof of genuineness was unnecessary in Adamson,
“[u]nder the Evidence Code, the requirement of authentication
would require a showing that the letter offered in evidence was
in fact the one received and acted upon; and this is the
preliminary showing that was found sufficient in the Adamson
case.” (Assem. Com. on Judiciary com., 29B pt. 5 West’s Ann.
Evid. Code, supra, foll. § 1401, p. 203.)
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Opinion of the Court by Kruger, J.
that reason, and contrary to the Attorney General’s contention,
the prosecution was required to make a preliminary showing
that these writings were what the prosecution claimed them to
be: writings created by Flinner or at his direction.
That said, we conclude that the writings at issue here were
properly authenticated or could have been authenticated had an
objection been timely raised. “ ‘[A] writing can be authenticated
by circumstantial evidence and by its contents’ ” (People v.
Landry (2016) 2 Cal. 5th 52, 87 (Landry)), and we agree with the
Attorney General that “the prosecutor presented circumstantial
evidence sufficient to enable the jury to ascertain that [Flinner]
was responsible for the writings.” We address each of the
challenged writings in turn.
a. Anonymous Letter Implicating Cahoon
A few weeks after Keck was killed, a police officer found
an anonymous letter left on the windshield of his police car. The
letter claimed that Charles Cahoon had killed Keck. Flinner did
not object to the introduction of this evidence on authentication
grounds, and his claim is thus forfeited.
Even if Flinner had objected, we conclude it was not an
abuse of discretion to admit the letter. The prosecution
introduced circumstantial evidence that provided a sufficient
preliminary showing for the prosecution to put the letter before
the jury, which then had to make the ultimate factual
determination of whether Flinner did indeed author it. During
the trial, the prosecution introduced other evidence tending to
prove that Flinner attempted to frame Cahoon for Keck’s
murder. Cahoon testified that Flinner broke into his apartment
and that shortly after the break-in, Cahoon realized that his car
keys were missing. Around the time the police officer found the
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Opinion of the Court by Kruger, J.
anonymous letter framing Cahoon, Cahoon found a sock with
bullets inside it hidden in his car, which he turned over to
Detective Scully. A criminalist specializing in DNA typing
testified that he analyzed DNA found on the sock and concluded
that it contained a mixture of DNA from Keck and a man. The
male DNA matched Flinner’s profile in many respects and the
criminalist concluded that it was quite likely that the DNA was
in fact from Flinner. He also concluded that the male DNA could
not have come from Cahoon. Although this circumstantial
evidence of Flinner’s other attempts to frame Cahoon is not
conclusive of the letter’s authorship, it was sufficient to admit
the letter. “ ‘The fact conflicting inferences can be drawn
regarding’ ” the letter’s authorship “ ‘goes to the document’s
weight as evidence, not its admissibility.’ ” (Goldsmith, supra,
59 Cal.4th at p. 267.)
b. Anonymous Letter Implicating Software
Developer
In February 2001, Flinner’s mother received an
anonymous letter posted from New York and made up of letters
cut out of a magazine. The letter’s contents made little sense
but included the following passage: “My continuing professional
work is on improving the reliability of software. . . . We have got
a head start of 100 years. Forced to kill the fiancé[e]. She knew
too much.” The letter also said, “Keep him quiet.” Flinner failed
to object to the admission of the letter; he therefore has forfeited
his appellate claim that the letter should not have been
admitted. The claim also fails on the merits. In the months
leading up to the letter’s delivery, Flinner shared a theory that
Keck was killed due to her knowledge of a scheme in which the
North Korean government was seeking to have special gambling
software delivered to mobsters in the United States. Flinner
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Opinion of the Court by Kruger, J.
said that a friend and business partner, Rick Host, was involved
in the scheme. Host passed away after Keck’s death, but Flinner
claimed that just before Host’s death, Host told Flinner that
Keck was killed because she had too much information about the
gambling software. In light of this circumstantial evidence, one
plausible inference is that Flinner had someone send the
anonymous letter to Flinner’s mother to buttress Flinner’s story
that Keck was killed due to her connection with the North
Korean gambling software scheme, and not by Flinner.
c. First Letter Implicating Host and Ontiveros
Shortly after a press release announced that the police had
taken Ontiveros into custody, police intercepted a letter
addressed to Ontiveros. The letter was signed “Eli” and blamed
Ontiveros for ruining a hit on “the target” and “Mike.” It reads,
in part, “What were you doing? ICSC with Rick [Host] were
acting on behalf of Kwan and they selected the target for a
reason. . . . [Y]ou need to keep your mouth shut. If things go
bad, blame everything on Mike.” The letter also expressed
concern “that Rick may have told Mike all that was going on
before his death,” and purported to remind Ontiveros that he
was “instructed not to call or see Rick after . . . giving him back
his car.” Flinner failed to object to this letter in the trial court
and has thus forfeited the claim that it should not have been
admitted. And, as with the letter to Flinner’s mother, it was not
an abuse of discretion to admit this letter. The other
circumstantial evidence that Flinner was trying to pin blame on
Ontiveros, Host, and the North Korean government supports
the inference that Flinner forged this letter.
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d. Second Letter Implicating Host and Ontiveros
Before trial, Judge Preckel received a letter written in
broken English from a person claiming to know Ontiveros. The
letter asserted that “a man named Rick” paid Ontiveros “to kill
the girl.” It explained that Keck’s boyfriend — who “never know
about this” — lent a car to Rick, who then lent it to Ontiveros.
Rick told Keck to pick up Ontiveros, who then shot her in the
head. The letter was signed “A.” Flinner did not object to the
admission of the letter and has forfeited his challenge on
authentication grounds. The challenge is also meritless. As
discussed above, the prosecution introduced other evidence
tending to prove that Flinner tried to implicate Rick Host in
Keck’s death. And the prosecution also introduced other
evidence that Flinner attempted to pin the blame for Keck’s
death on Ontiveros: Flinner sent a series of letters to religious
organizations claiming that Ontiveros killed Keck. He also sent
a letter to United States Representative Duncan Hunter
(discussed below) claiming that Ontiveros killed Keck and that
her death was related to the gambling software scheme. In light
of this other evidence making it possible to infer that Flinner
caused this letter to be sent as part of his plan to shift blame
from himself to Host and Ontiveros, it was not an abuse of
discretion to admit the letter.
e. Anonymous Phone Call Implicating “Ernesto”
A few days after Keck’s murder, the sheriff’s department
received a phone call from a Spanish-speaking woman who
declined to identify herself. She claimed that a man named
Ernesto told her that he killed Keck because he wanted to take
revenge on Flinner. The woman explained that Ernesto “had
had some problems with Mike like . . . like 10 years ago.” And
she said that Ernesto told her that Keck had been driving a
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white Mustang the day of the murder, that Ernesto went to Vons
or a gas station to pick her up, and that they went to a dead-end
street where Ernesto “killed her with a 45.” The Attorney
General concedes that Flinner objected to the introduction of
this phone call on authenticity grounds.
We conclude the trial court acted within its discretion in
overruling the defense objection and admitting the phone call.
Days after the sheriff’s department received the anonymous call,
Flinner passed along to Detective Scully a voicemail message
that Flinner received from a man with a “strong, Hispanic
accent.” The caller said, “Mike, I see your wife Sunday [the day
of the murder]. I see you next. Bye.” Flinner explained to
Detective Scully that “[t]he only time [he] ever had a problem
with anybody that was Hispanic” was 10 years earlier, when he
got into an argument with a group of “Mexican folks.” The police
had not told Flinner about the anonymous call claiming that
Ernesto had killed Keck in revenge for a decade-old problem.
One possible inference in light of this evidence is that the
anonymous caller was telling the truth about Ernesto. But
another inference, in light of the other, substantial evidence that
Flinner attempted to frame others for Keck’s death, is that
Flinner arranged for the initial anonymous phone call to be
placed to the sheriff’s department to deflect attention from
himself. The factual determination of whether Flinner was
responsible for the call was properly put to the jury. Again,
“ ‘[t]he fact conflicting inferences can be drawn regarding’ ” the
call’s origin goes to the call’s weight and not its admissibility.
(Goldsmith, supra, 59 Cal.4th at p. 267.)
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Opinion of the Court by Kruger, J.
f. Bullets with “Mike” and “Tammy” Written on
Them
During the investigation, Flinner’s father found a
container on his property with two bullets in it, which he turned
over to the police. One was a spent casing with “Tammy”
written on it, and the other was a live bullet with “Mike” written
on it. The bullets were of the same caliber and make as the
bullet that killed Keck. James Theodorelos, a cooperating
informant who met Flinner in prison, testified that Flinner told
him that Flinner had “put a few bullets on his parents’ property,
one had been spent, with the initial of [Keck’s] name and the
other one was the initial of [Flinner’s] name.” Flinner did not
object to the introduction of the bullets and has forfeited the
claim that they were improperly admitted. In any event, in light
of Theodorelos’s testimony linking Flinner to the bullet writings,
the trial court acted within the bounds of its discretion in
admitting evidence of the two bullets.
g. Letters to John Martin
One of Flinner’s fellow inmates, John Martin, turned over
to Detective Scully two letters that Flinner had allegedly
written. In the first letter, the author claimed that Theodorelos
turned on the author: “You see, [Theodorelos] has taken all of
what I’ve shared about matters and twisted them up into his
favor, saying that I told him that I sent the letter from the east
to my parents, that I put . . . the casings on my dad’s property et
cetera.” The letter also asks Martin to “remember the times . . .
I had mentioned things like how my folks had received threats
from the east coast and how my father found shell casings on his
property and things about my business partner telling you that
Asians were involved in that deal with my wife and things like
that.” The second letter, which appears to respond to an
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Opinion of the Court by Kruger, J.
intermediate letter from Martin, laments that Martin has
“decided to flip the script” and says that “the district attorney’s
office will invariably find their way to you now because of this
letter I just got from you.” The trial court overruled defense
counsel’s objection to these letters on foundation and hearsay
grounds, and the Attorney General does not argue that Flinner
forfeited his authentication objection to them.
We conclude the trial court did not err in admitting these
letters because their contents and other circumstantial evidence
presented by the prosecution sufficiently authenticated the
letters. The content of the first letter connects it to Flinner: The
letter discusses the bullet casings that Flinner’s father found,
the letter that his mother received from New York (a threat from
“the east coast”), and the theory that Keck was tied up in a “deal”
with some “Asians” (similar to the North Korean gambling
software scheme theory). It also faults Theodorelos, the same
man who testified against Flinner at trial, for cooperating with
the prosecution. (See Landry, supra, 2 Cal.5th at p. 87 [relying
on the contents of a letter to support the letter’s authenticity,
even where the information relayed in the letter may have been
known by individuals other than the alleged author]; see also
Evid. Code, § 1421 [“A writing may be authenticated by evidence
that the writing refers to or states matters that are unlikely to
be known to anyone other than the person who is claimed by the
proponent of the evidence to be the author of the writing”]; id.,
§ 1410 [“Nothing in this article shall be construed to limit the
means by which a writing may be authenticated or proved”].)
Though the second letter does not contain similar references to
personal information about Flinner and his case, the jury could
reasonably infer from its contents that it was part of the same
conversational chain; the letter reads as if it is a reply from
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Flinner to a letter sent by Martin addressing Flinner’s first
letter. (Cf. Evid. Code, § 1420 [“A writing may be authenticated
by evidence that the writing was received in response to a
communication sent to the person who is claimed by the
proponent of the evidence to be the author of the writing”].)
h. Letter to Member of Congress
While in jail before trial, Flinner wrote a letter to United
States Representative Duncan Hunter. In the letter, Flinner
explained that his former employee was responsible for Keck’s
murder, that “the Korean gaming industry” arranged the
murder because Keck “was in possession of crucial software
desired to promote and advance political payoffs,” and that
Flinner had learned all of this from “a now deceased business
associate . . . on his death bed.” Flinner did not raise an
authentication objection in the trial court and has forfeited that
claim. In any event, the letter was properly authenticated.
Before the letter was introduced, the prosecution had Detective
Scully explain how he had requested a mail cover for Flinner’s
jail mail and that he had accordingly received photocopies of all
Flinner’s incoming and outgoing mail, including the letter to
Representative Hunter. (See, e.g., Landry, supra, 2 Cal.5th at
p. 87.)
Although Flinner lumps this letter in with the other
writings to which he objects on authentication grounds,
Flinner’s complaint about this letter is primarily based on other
concerns. Specifically, Flinner claims that jail employees
violated Penal Code sections 2600 and 2601 in reading his letter
to Representative Hunter and asserts that the letter should
have been suppressed on that basis. Penal Code section 2601,
subdivision (b) lists a series of civil rights that a person
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Opinion of the Court by Kruger, J.
sentenced to prison retains, including the right “[t]o correspond,
confidentially, with any member of the State Bar or holder of
public office, provided that the prison authorities may open and
inspect incoming mail to search for contraband.” (Italics added.)
Penal Code section 2600, subdivision (a) provides that an inmate
may be deprived of those rights only “as is reasonably related to
legitimate penological interests.” Flinner did not object to the
introduction of his letter to Representative Hunter on this or
any other ground in the trial court and has thus forfeited this
claim. Any error would also be harmless under any standard,
given the wealth of similar evidence that Flinner attempted to
place blame for Keck’s murder on the North Korean gambling
industry and various employees and associates.
In sum, Flinner’s objections to these eight writings are all
either forfeited or meritless. We also reject Flinner’s claim that
these writings were irrelevant or substantially more prejudicial
than probative (Evid. Code, §§ 350, 352): These writings
supported the prosecution’s theory that Flinner attempted to
obstruct the investigation and prosecution of the case, from
which the jury could properly infer a consciousness of guilt. And
none of the letters created a substantial risk of undue prejudice.
4. Admissibility of Flinner’s Statements Suggesting
He Killed Keck
Flinner contends that the trial court erred in admitting
statements he made to his friend Gilberto Lopez, suggesting
that Flinner killed Keck or had Keck killed. Flinner argues that
these statements were hearsay and that they are insufficiently
reliable to admit as statements against interest. Even if these
statements were not inadmissible hearsay, he asserts, they
should have been excluded as substantially more prejudicial
than probative. He maintains that the admission of these
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statements violated his rights to confrontation, a reliable
penalty determination, and due process under the Sixth, Eighth,
and Fourteenth Amendments.
Lopez testified that a few days after Keck’s murder he
went out to dinner with his girlfriend Marie Locke and
Flinner.10 He recalled Flinner having two large drinks and
described him as becoming “tipsy” and seeming “really sad,
really down.” During the meal, Flinner stated, “I shouldn’t have
killed her.” On cross-examination, Lopez acknowledged Flinner
may have just been “talking trash” that night, and that Lopez
had thought at the time that Flinner was blaming himself but
did not think Flinner was, in fact, responsible for Keck’s death.
Lopez also testified about another occasion after the murder, in
which Flinner had taken sleeping pills and was “acting all
groggy, mumbling.” While Lopez was helping Flinner up to his
bed, Flinner said, “I shouldn’t have killed her.”
Flinner’s hearsay objection to the admission of this
testimony lacks merit. Hearsay is an out-of-court statement
offered for the truth of the matter asserted and is generally
10
Flinner made no objection to Lopez’s testimony. The
hearing to which Flinner points as containing an objection
instead concerned a defense request for a mistrial arising from
a related, but significantly different, event: The subsequently
stricken double-hearsay testimony (discussed further below) of
Lopez’s girlfriend, Marie Locke, about Lopez’s relation to her of
Flinner’s statement in the restaurant. In arguing for a mistrial,
defense counsel at no point suggested that Lopez’s testimony
about the statement would be inadmissible. The court denied
the mistrial motion and a related motion to strike the testimony
of an investigator but did not rule on any question regarding
testimony by Lopez himself. Despite the lack of an objection,
the Attorney General does not assert the claim is forfeited.
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inadmissible. (Evid. Code, § 1200.) But there are a number of
exceptions to this rule. One, the party-admission exception
codified in Evidence Code section 1220, covers “[e]vidence of a
statement . . . when offered against the declarant in an action to
which he is a party . . . .” Flinner was of course a party to this
action. The parties focus on another, related exception to the
hearsay rule, the exception for statements against interest:
“Evidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the
hearsay rule if the declarant is unavailable as a witness and the
statement, when made . . . so far subjected him to the risk of
civil or criminal liability . . . that a reasonable man in his
position would not have made the statement unless he believed
it to be true.” (Id., § 1230.) “The proponent of such evidence
must show that the declarant is unavailable, that the
declaration was against the declarant’s penal interest when
made and that the declaration was sufficiently reliable to
warrant admission despite its hearsay character.” (People v.
Duarte (2000) 24 Cal. 4th 603, 610–611 (Duarte).) “In
determining whether a statement is truly against interest
within the meaning of Evidence Code section 1230, and hence is
sufficiently trustworthy to be admissible, the court may take
into account not just the words but the circumstances under
which they were uttered, the possible motivation of the
declarant, and the declarant’s relationship to the defendant.”
(People v. Frierson (1991) 53 Cal. 3d 730, 745.) We review the
application of the statement against interest exception to the
particular facts of a case for abuse of discretion, but whether a
trial court has correctly construed Evidence Code section 1230
is a question of law that we review de novo. (People v. Grimes
(2016) 1 Cal. 5th 698, 712.)
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The trial court did not abuse its discretion in admitting
Flinner’s statements to Lopez, regardless of whether we focus
on the statement of party opponent exception in Evidence Code
section 1220 or the statement against interest exception in
Evidence Code section 1230. Although Lopez’s testimony was
offered by codefendant Ontiveros rather than by the People, it
was nonetheless “offered against” Flinner within the meaning of
Evidence Code section 1220. As discussed earlier, Ontiveros’s
defense was antagonistic to Flinner’s: Ontiveros sought to show
Flinner manipulated him into participating in Keck’s killing,
while Flinner denied all involvement. Lopez’s testimony that
Flinner took responsibility for killing Keck clearly harmed
Flinner’s case, as well as helping Ontiveros’s. (Cf. People v.
Allen (1976) 65 Cal. App. 3d 426, 433 [to be relevant under Evid.
Code, § 1220, “the statement must assert facts which would
have a tendency in reason either (1) to prove some portion of the
proponent’s cause of action, or (2) to rebut some portion of the
party declarant’s defense”].)
As for section 1230, Flinner does not dispute that he was
“unavailable as a witness” within the meaning of Evidence Code
section 1230, since he had asserted his Fifth Amendment right
not to testify. And his statements that he should not have killed
Keck are, on their face, clearly contrary to his penal interests as
they admit culpability for her murder.
Flinner nevertheless argues that the circumstances
surrounding the two statements establish that they are not
sufficiently disserving of his interests nor sufficiently reliable to
justify admission. Flinner notes that he was under the influence
of alcohol or sleeping pills when he allegedly made these
statements and that Lopez may not have taken them literally.
He relies on Duarte, supra, 24 Cal. 4th 603, in which the
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declarant admitted shooting at a house, but did so by
minimizing his own culpability, suggesting that the defendant
bore a greater culpability for the crime than the declarant. The
declarant’s statement was made to police shortly after he had
been arrested and after he had learned that the police had
evidence linking him to the crime. We held that not only were
portions of the declarant’s statement improperly admitted
because they were not “ ‘specifically disserving’ ” of his penal
interest (id. at p. 613), but also that under these circumstances
— “ ‘where a declarant in police custody seeks to exculpate
himself by implicating another suspect’ ” — the statement
“lacked sufficient indicia of trustworthiness” and was
inadmissible as a whole (id. at p. 618).11 But here, by contrast,
no portion of Flinner’s statements sought to shift blame for
Keck’s death away from himself, and he made the statements to
a close friend, first at an intimate dinner and then in the privacy
of his home. While the statements were made under the
influence of alcohol or sleeping pills, no testimony suggests that
Flinner was unable to understand what he was saying. (Cf. U.S.
v. Two Shields (8th Cir. 2007) 497 F.3d 789, 792–793 [where
declarant made nonverbal statement at hospital with blood
alcohol level of .389 and was described as “unintelligible” by
doctor, he could not appreciate that the statement was against
11
Flinner erroneously reads the Duarte court as including
the declarant’s intoxication at the time of the statement as one
of the circumstances undermining the reliability of the
statement. But the declarant in Duarte had emphasized he was
very drunk at the time of the shooting, as part of his effort to
reduce his own culpability. (Duarte, supra, 24 Cal.4th at p. 615.)
The Duarte declarant was not intoxicated at the time he made
the disputed statement against interest to the police, and the
case thus does not serve Flinner’s purposes.
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his interests and thus it lacked sufficient indicia of reliability
and was inadmissible].) And finally, while the jury was
certainly entitled to consider Lopez’s relatively innocuous
interpretation of Flinner’s comments, Lopez’s interpretation
could not have precluded the jury from drawing a more
incriminating inference. Under these circumstances, the trial
court did not abuse its discretion in admitting Flinner’s hearsay
statements as statements against his penal interest.
Nor were these statements inadmissible under Evidence
Code section 352 as substantially more prejudicial than
probative. The prejudice contemplated by section 352 typically
involves a potential for evoking an emotional bias against the
defendant on legally irrelevant or improper grounds; it is not the
“ ‘ “damage to a defense that naturally flows from relevant,
highly probative evidence.” ’ ” (People v. Scott (2011) 52 Cal. 4th
452, 491.) Nothing in Flinner’s statements that he should not
have killed Keck would inflame the emotions of the jury in this
way.
In sum, we conclude the trial court properly admitted
Flinner’s statements to Lopez. We thus reject Flinner’s
argument that the admission of these statements violated his
Sixth, Eighth, and Fourteenth Amendment rights.12
12
Having concluded that Lopez’s testimony was properly
admitted, we reject Flinner’s argument that the improper
admission of the testimony “aggravated” the harm caused by the
stricken testimony of Lopez’s girlfriend, Marie Locke. Locke,
who was at the dinner with Flinner and Lopez, testified about
the dinner before Lopez did. She stated that Lopez told her that
Flinner said, “I shouldn’t have killed her” that night, but that
she had not personally heard the statement. The trial court
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5. Admissibility of Evidence of Keck’s Pregnancy
Flinner argues that the trial court erred in admitting
evidence that Keck may have been pregnant when she was
killed. He asserts that evidence of Keck’s pregnancy was not
relevant to any issue in dispute and that, even if relevant, its
probative value was substantially outweighed by its prejudicial
impact on the jury. Flinner also claims the admission of this
evidence violated his rights to a reliable penalty determination
and due process under the Eighth and Fourteenth Amendments.
Before trial, the prosecution moved to admit evidence
about Flinner’s strained relationship with Keck — including
evidence of Flinner’s displeasure with her possible pregnancy —
as relevant to establishing his motive for her murder and
because it tended to refute Flinner’s claim that he was deeply in
love with Keck, wanted to marry her, and wanted to father her
child. Included in this motion was the prosecutor’s plan to
introduce the testimony of Melissa Henderson and Nathalie
Reed, who would each testify that Flinner discussed Keck’s
pregnancy with her soon after Keck’s murder and expressed
displeasure with the pregnancy. Flinner objected generally to
evidence of his strained relationship with Keck, arguing it was
irrelevant because the prosecution’s theory of the case was that
Flinner had Keck killed in order to collect insurance money, not
because of any relationship problems. Although the trial court
excluded some of the evidence of the state of Keck’s and Flinner’s
properly struck this portion of Locke’s testimony as inadmissible
double hearsay and admonished the jury to disregard it. We
presume the jury followed the court’s instructions as to Locke’s
testimony (People v. Sanchez, supra, 26 Cal.4th at p. 852), and
Lopez’s testimony clearly did not suffer from the same defect.
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relationship as substantially more prejudicial than probative
under Evidence Code section 352, it admitted much of it,
including the planned testimony of Henderson and Reed.
Defense counsel preserved the objection that this evidence was
irrelevant and, even if relevant, should have been excluded
under Evidence Code section 352. Also before trial, Flinner
objected to the planned expert testimony of the pathologist who
conducted Keck’s autopsy that Keck’s ovaries and uterus
suggested that she may have been in the early stages of
pregnancy at the time of her death.
At trial, the prosecutor introduced photos of a pregnancy
test found in Keck’s truck at the scene of the crime, as well as a
Walmart receipt showing that she had purchased the test just
before she was killed. Henderson testified that she met Flinner
on a phone chat line in June 2000, shortly after Keck’s death,
and that Flinner told her his fiancée had been pregnant and he
was “dreading her being pregnant.” Reed testified that she
worked at a casino that Flinner frequented and that after Keck’s
death, Flinner said Keck was “lying” about the pregnancy “and
she was trying to get him to marry her and he wasn’t going to
do that.” Defense counsel renewed his objection on Evidence
Code section 352 grounds, and the trial court again overruled
the motion. Kim Milan then testified that she met Flinner
through Lopez and during one conversation asked Flinner if he
had killed Keck. He replied, “I know they think I did it, but why
would they want to believe that? She was pregnant with my
baby and we were about to be married.” Gregory Sherman, who
met Flinner in jail, testified that Flinner discussed his “wife”
and said that she was pregnant when she was killed. Over
Flinner’s objection, the prosecutor introduced letters that
Flinner wrote to religious organizations from jail, blaming a
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former employee for killing Keck after an affair. In these letters,
Flinner references Keck’s pregnancy, speculating that she was
having an affair with the former employee that led to the
pregnancy. Finally, the pathologist testified that the state of
Keck’s ovaries and uterus were suggestive of pregnancy but
conceded on cross-examination that he could not say for sure
that she was pregnant.
Although Flinner now claims error in the admission of all
evidence concerning Keck’s pregnancy, he did not raise all of
these objections at trial. In particular, he did not object to the
relevant portions of the testimony of Milan and Sherman, nor to
the photos of the pregnancy test and Walmart receipt. Flinner’s
objection as it applies to these pieces of evidence is thus
forfeited.
His objection to all evidence concerning Keck’s pregnancy
as irrelevant or unduly prejudicial also fails on the merits. As
at trial, Flinner argues that evidence of Keck’s pregnancy was
irrelevant because the prosecution’s theory of the case was that
Flinner arranged Keck’s death in order to collect on her life
insurance policy, and there was no evidence suggesting that she
was pregnant, or that Flinner believed she was, when he insured
her life. As support for his argument, Flinner points to People
v. Cash (2002) 28 Cal. 4th 703, 729, where we held that an
attempted murder victim’s pregnancy was “clearly irrelevant” to
any issue in the case. There, the defendant shot the victim in
the course of committing a robbery and had no personal
relationship with the victim apart from renting a room in her
boyfriend’s house. Neither the defendant’s relationship to the
victim nor the victim’s pregnancy had any bearing on the case.
Here, by contrast, Flinner’s displeasure with Keck’s pregnancy
provides an additional motive for her murder and is probative of
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why he decided to have her killed at the time he did. Flinner’s
belief that Keck was pregnant is also relevant to the financial
motivations for Keck’s murder, insofar as Flinner had expressed
irritation with the financial strain that Keck placed on him,
which might be expected to increase with the arrival of a new
baby. Keck’s own belief that she may have been pregnant, as
evidenced by the pregnancy test found in her car, and the
pathologist’s testimony that Keck may have been pregnant, are
relevant because they tend to corroborate Flinner’s belief that
Keck was pregnant.
We also reject Flinner’s claim that this evidence is
substantially more prejudicial than probative. The kind of
evidence that Evidence Code section 352 excludes is that which
“ ‘ “uniquely tends to evoke an emotional bias against the
defendant as an individual and which has very little effect on
the issues.” ’ ” (People v. Scott, supra, 52 Cal.4th at p. 491.) We
recognize that in some instances, as in Cash, a victim’s
pregnancy may have little or no relevance to the guilt phase of
a trial and may serve only to inflame the emotions of the jury.
But here, Keck’s possible pregnancy was probative of Flinner’s
motive for her murder, and — against the backdrop of evidence
that he hired a hitman to kill his teenage fiancée for insurance
money — we do not think this evidence was so uniquely
damaging as to require its exclusion. Flinner also argues that
the pathologist’s testimony, even if relevant, was too speculative
to present to the jury in light of its prejudicial impact. The
pathologist properly presented his expert opinion based on the
autopsy; that he could not say for sure that Keck was pregnant
goes to the weight a reasonable juror would assign it, not its
admissibility.
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We conclude the trial court did not abuse its discretion in
admitting evidence of Keck’s possible pregnancy and reject
Flinner’s statutory and constitutional claims to the contrary.
6. Martin Baker’s Competence to Testify
Through the testimony of Martin Baker and other
witnesses, the prosecution sought to show Flinner had
attempted to frame Baker for Keck’s murder. Flinner contends
that Baker was incompetent to testify under Evidence Code
section 701, subdivision (a) and lacked the requisite capacity to
perceive and recollect in order to testify under Evidence Code
section 702, subdivision (a). He argues that the trial court’s
failure to disqualify Baker as a witness and refusal to strike
Baker’s incoherent testimony violated his Sixth, Eighth, and
Fourteenth Amendment rights to cross-examination, due
process, and a reliable penalty determination.
When a witness’s competency to testify at all, or to testify
as to a particular matter, is questioned, we start from the
general rule that “[e]xcept as otherwise provided by statute,
every person, irrespective of age, is qualified to be a witness and
no person is disqualified to testify to any matter.” (Evid. Code,
§ 700.) A person is completely disqualified from testifying under
Evidence Code section 701, subdivision (a) if he or she is
“(1) [i]ncapable of expressing himself or herself concerning the
matter so as to be understood . . . or [¶] (2) [i]ncapable of
understanding the duty of a witness to tell the truth.” “Capacity
to communicate, or to understand the duty of truthful
testimony, is a preliminary fact to be determined exclusively by
the court, the burden of proof is on the party who objects to the
proffered witness, and a trial court’s determination will be
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upheld in the absence of a clear abuse of discretion.” (People v.
Anderson (2001) 25 Cal. 4th 543, 573 (Anderson).)
Here, the record does not support the claim that Baker
lacked the capacity to communicate so as to be understood or
that he was unable to understand the duty of truthful testimony.
Baker worked for Flinner’s landscaping business. The
prosecution called Baker as a witness to testify that Flinner
tried to frame Baker for Keck’s death and to establish the
independent poisoning charge. When the prosecution first
called Baker, the court held a preliminary Evidence Code
section 402 hearing in front of the jury to “assess Mr. Baker’s
apparent condition and circumstances,” asking the prosecution
to first “inquire of Mr. Baker as to who he is and what he’s been
doing presently and in the recent past,” without “get[ting] into
any substantive matters.” Baker demonstrated his ability to
communicate when he testified as to his early life, his education,
and his family. Flinner points out that Baker initially refused
to answer questions concerning his siblings’ ages, saying, “I
plead the 5th,” but this does not establish that Baker did not
understand his duty to testify truthfully. His reluctance to
respond stemmed from his sense that the question was “pretty
personal” and that the case “has nothing to do with [his] family,”
but he acquiesced as soon as the court admonished him that as
a witness, he must answer questions honestly and to the best of
his ability. We are satisfied that the trial court did not abuse its
discretion in concluding that, although Baker may be “a bit
different,” he was nevertheless qualified to testify. (See People
v. Lewis (2001) 26 Cal. 4th 334, 361 [witness diagnosed as having
intellect of a seven year old was not disqualified from testifying
even though he “often responded in incomplete, sometimes
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nonsensical, sentences,” and testified that he “ ‘heard’ ” blood
and knew how money “ ‘sounds’ ”].)
Even if a witness is not disqualified as incompetent under
Evidence Code section 701, subdivision (a), his or her testimony
on a particular matter (other than expert opinion testimony) is
inadmissible “unless [the witness] has personal knowledge of
the matter.” (Id., § 702, subd. (a).) “In order to have personal
knowledge, a witness must have the capacity to perceive and
recollect.” (People v. Lewis, supra, 26 Cal.4th at p. 356.) “A
witness challenged for lack of personal knowledge must
nonetheless be allowed to testify if there is evidence from which
a rational trier of fact could find that the witness accurately
perceived and recollected the testimonial events. Once that
threshold is passed, it is for the jury to decide whether the
witness’s perceptions and recollections are credible.” (Anderson,
supra, 25 Cal.4th at p. 574.)
Our review of the record confirms that, although Baker
departed on odd and incoherent digressions during his
testimony, there was substantial evidence from which a rational
trier of fact could conclude that Baker perceived and recollected
the events of the night that Flinner poisoned him and attempted
to frame him for Keck’s murder. Flinner points to isolated
portions of Baker’s testimony that Flinner claims show that
Baker’s mental illness or drug use rendered him unable to
perceive and recollect the events of that night. For instance,
when asked at what time he began to feel less groggy after
eating the chili provided by Flinner, Baker responded: “A few
days after that. It was like a reoccurring of a myth is what I felt
like. [¶] . . . [¶] . . . Something like in a previous livelihood
specting [sic] him reincarnated, someone getting reincarnated
in a certain fashion. It would never work, say for instance,
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Adol[f] Hitler, he would never want to come back to life. But
people would want him to come back to life, so people would have
to use certain individuals.” In another instance, when asked
about what kinds of problems he reported having to the County
Mental Health Hospital (CMH) a few months after the chili
incident, Baker replied: “It put me in a state of mind like they
wanted my backbone for this. It started off like as a quote of a
price, like it started off at $35,000. And as my ride went into
CMH, after sedation you could hear they were going for like a
bid. But it was like a music box going off. You know, it was
premeditated. So I just went along with it. The highest price
was like 87 million dollars. I just went with it.”
As Flinner points out, the jury also heard Baker’s testimony
that he had used methamphetamine a few days before the
evening at Flinner’s house, as well as Baker’s testimony about
his broader past drug usage and mental health issues, including
“delusions” that caused him to check into CMH a few months
after the evening in question. The jury was presented with
evidence that Baker tested positive for methamphetamine,
THC, and Xanax after being taken from Flinner’s apartment to
the sheriff’s substation. And the jury heard the expert
testimony of a psychiatrist, who reviewed Baker’s medical
records from his time at CMH and testified that Baker was
“having a very severe problem with psychosis, with
hallucinations and psychotic delusions” and who conveyed his
expert opinion that such a person’s “ability to accurately
perceive what’s going on in the real word [sic] is severely
impaired.”
But “ ‘[t]he fact that a witness has made inconsistent and
exaggerated statements does not indicate an inability to
perceive [or] recollect . . . .’ [Citation.] Nor does a witness’s
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mental defect or insane delusions necessarily reflect that the
witness lacks the capacity to perceive or recollect.” (People v.
Lewis, supra, 26 Cal.4th at p. 356.) Despite these isolated
digressions, Baker was consistently brought back to the relevant
events by the prosecutor’s and defense counsel’s questioning.
He was able to testify coherently about his work for Flinner’s
landscaping business, about how Flinner invited him to dinner
and offered him a bowl of chili, that Flinner also ordered a pizza
for himself and did not have any of the chili, and about how he
became drowsy five to 10 minutes after he ate the bowl of chili.
He recalled being awoken in the early hours of the morning by
sheriff’s deputies who were responding to a complaint that he
had been running around the pool and yelling and related how
he was taken to the sheriff’s substation to have his blood drawn
and urine sample taken. Thus, “[a]lthough [Baker’s] testimony
may have consisted of inconsistencies, incoherent responses,
and possible hallucinations, delusions and confabulations,” he
“ ‘presented a plausible account’ ” of his relationship with
Flinner and the evening’s events. (Lewis, at p. 357; see
Anderson, supra, 25 Cal.4th at pp. 574–575 [trial court properly
allowed witness’s testimony about murder despite her delusion
that her imaginary son was present at the murder].) Nor were
the deficiencies in Baker’s capabilities as a witness hidden from
the jury, which was given an “ample basis upon which to judge
the reliability of [Baker’s] observations.” (Anderson, at p. 575.)
In sum, the trial court did not err in permitting Baker to
testify or in failing to strike his testimony on these matters. We
reject Flinner’s argument to the contrary and his related
constitutional claims.
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7. Admissibility of Portions of Codefendant’s
Confession to Police
Flinner contends that the trial court erred in admitting
portions of his codefendant Ontiveros’s confession to police and
that the admission of these statements violated his
confrontation clause rights under the Sixth and Fourteenth
Amendments to the United States Constitution. We agree there
was error but conclude that it was harmless beyond a reasonable
doubt.
Before trial, the prosecution conceded that two juries were
appropriate in this case but sought to establish that certain
parts of Ontiveros’s confession to police would be admissible
before Flinner’s jury. Flinner moved in limine to exclude all of
Ontiveros’s statements to police as inadmissible hearsay whose
admission would violate Flinner’s confrontation clause rights.
The trial court determined that certain portions of Ontiveros’s
confession that inculpated Ontiveros alone and did not explicitly
or implicitly refer to Flinner were sufficiently trustworthy to be
admitted against Flinner as statements against the declarant’s
interest.
At trial, Ontiveros did not testify. With only Flinner’s jury
present, the prosecution offered the approved statements
against interest through Detective Scully, who interviewed
Ontiveros after his arrest. To ensure that the jury heard only
the narrow, approved statements from Ontiveros’s confession,
the prosecutor read verbatim portions of the interview
transcript and asked Detective Scully whether the answers in
the transcript were the ones that Ontiveros gave him. By this
means, the prosecutor introduced Ontiveros’s admissions that
on the day of Keck’s killing he was driving the white Nissan NX
car by himself, and that Keck picked him up, drove him to the
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cul-de-sac, and parked her car facing the Nissan in the cul-de-
sac.
After the jury returned the guilt verdicts but before
sentencing, the high court issued its decision in Crawford,
supra, 541 U.S. 36, where it held that the admission of
testimonial hearsay statements against a criminal defendant
violates the confrontation clause unless the witness is
unavailable and the defendant had a prior opportunity for cross-
examination. Flinner moved for a new trial, arguing that
Ontiveros’s statements were inadmissible against Flinner under
Crawford. The trial court agreed that the admission of
Ontiveros’s statements fell afoul of Crawford but ruled that
their admission was subject to harmless error review under
Chapman v. California (1967) 386 U.S. 18, and was harmless
beyond a reasonable doubt. It accordingly denied Flinner’s
motion for a new trial.
Flinner renews his trial arguments that the introduction
of Ontiveros’s statements through Detective Scully’s testimony
violated the confrontation clause under Crawford and that the
error necessitates a new trial. The Attorney General responds
that Ontiveros’s statements are admissible under pre-Crawford
case law concerning the introduction of a codefendant’s
confession in a joint trial — namely, Bruton, supra, 391 U.S.
123, and Richardson v. Marsh (1987) 481 U.S. 200 (Richardson).
And he argues that Crawford does not bar the admission of
Ontiveros’s statements because Ontiveros’s statements neither
accused Flinner of anything nor mentioned the involvement of
anyone other than Ontiveros in Keck’s murder.
The Attorney General’s reliance on Bruton and
Richardson is misplaced. “In Bruton, the United States
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Supreme Court held that the admission into evidence at a joint
trial of a nontestifying codefendant’s confession implicating the
defendant violates the defendant’s right to cross-examination
guaranteed by the confrontation clause, even if the jury is
instructed to disregard the confession in determining the guilt
or innocence of the defendant. [Citation.] The high court
reasoned that although juries ordinarily can and will follow a
judge’s instructions to disregard inadmissible evidence, ‘there
are some contexts in which the risk that the jury will not, or
cannot, follow instructions is so great, and the consequences of
failure so vital to the defendant, that the practical and human
limitations of the jury system cannot be ignored.’ [Citation.]
Such a context is presented when ‘the powerfully incriminating
extrajudicial statements of a codefendant, who stands accused
side-by-side with the defendant, are deliberately spread before
the jury in a joint trial.’ ” (People v. Lewis (2008) 43 Cal. 4th 415,
453 (Lewis).) As we explained in Lewis, “[t]he high court limited
the scope of the Bruton rule in Richardson . . . . The court
explained that Bruton recognized a narrow exception to the
general rule that juries are presumed to follow limiting
instructions, and this narrow exception should not apply to
confessions that are not incriminating on their face, but become
so only when linked with other evidence introduced at trial.
[Citation.] That is because, ‘[w]here the necessity of such
linkage is involved, it is a less valid generalization that the jury
will not likely obey the instruction to disregard the evidence.’
[Citation.] Accordingly, the high court held, ‘the Confrontation
Clause is not violated by the admission of a nontestifying
codefendant’s confession with a proper limiting instruction
when . . . the confession is redacted to eliminate not only the
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defendant’s name, but any reference to his or her existence.’ ”
(Lewis, at p. 454, italics omitted.)
The Attorney General argues that under Richardson,
Ontiveros’s statements were admissible because nothing in
Ontiveros’s statements expressly inculpates Flinner. But the
codefendants in Bruton and Richardson, unlike those here, were
jointly tried in a case before a single jury, and both cases rested
on the premise that the nontestifying defendant’s confession
was inadmissible against the codefendant. In each case, the
trial court imposed a limiting instruction to the jury that it could
only consider the confession as evidence against the declarant
and not against the codefendant. (See Bruton, supra, 391 U.S.
at p. 125; Richardson, supra, 481 U.S. at pp. 204–205.) The high
court had to decide whether the limiting instruction sufficed to
protect the codefendant’s confrontation rights. In other words,
the question in these cases was not whether a nontestifying
defendant’s confession is admissible against his codefendant;
the opinions assumed that it was not. The question, instead,
was whether — given that the defendant’s confession was only
admissible against him and not his codefendant — a limiting
instruction by the court is sufficient to protect the codefendant’s
confrontation rights. Here, Flinner and Ontiveros were jointly
tried but before two separate juries. No limiting instruction was
given — indeed, the relevant testimony by Detective Scully was
offered only to Flinner’s jury — because the trial court expressly
determined that Ontiveros’s statements were admissible
against Flinner as statements against interest. For these
reasons, Bruton and Richardson are simply irrelevant here.
(See also People v. Brown (2003) 31 Cal. 4th 518, 537 [Bruton
rule inapplicable where defendants are not jointly tried].)
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The Attorney General’s Crawford argument fares no
better. Crawford held that the admission of testimonial hearsay
statements violates a criminal defendant’s confrontation rights
unless the declarant is unavailable, and the defendant had a
prior opportunity to cross-examine the declarant. (Crawford,
supra, 541 U.S. at p. 68.) Because Ontiveros invoked his right
not to testify and Flinner had no prior opportunity to cross-
examine him, the introduction of Ontiveros’s statements to
Detective Scully violated the confrontation clause if those
statements are “testimonial.” In Crawford, the high court held
that “[w]hatever else th[at] term covers, it applies at a minimum
to prior testimony at a preliminary hearing, before a grand jury,
or at a former trial; and to police interrogations,” for these are
“the modern practices with closest kinship to the abuses at
which the Confrontation Clause was directed.” (Crawford, at
p. 68, italics added.) Here, the statements the trial court
admitted are ones that Ontiveros made after his arrest, while in
custody, in response to questioning by Detective Scully, and as
part of his confession to playing a role in Keck’s murder. There
can be no doubt that these statements are testimonial, and the
Attorney General does not seriously contend otherwise.
The Attorney General argues instead that the “chief evil”
that Crawford sought to prevent is the introduction of
“accusatory testimonial statements.” Because Ontiveros’s
statements did not explicitly or implicitly accuse Flinner of
anything, the Attorney General reasons that Flinner’s
confrontation rights were not implicated by their admission.
But the high court has already rejected a similar argument. In
Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, the high
court concluded that the affidavits of crime lab analysts
certifying that a substance found in the defendant’s possession
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was cocaine “were testimonial statements” and that “the
analysts were ‘witnesses’ for purposes of the Sixth Amendment.”
(Melendez-Diaz, at p. 311.) In so doing, the high court rejected
Massachusetts’ argument that “the analysts are not subject to
confrontation because they are not ‘accusatory’ witnesses, in
that they do not directly accuse petitioner of wrongdoing; rather,
their testimony is inculpatory only when taken together with
other evidence linking petitioner to the contraband.” (Id. at
p. 313.) The court rejected this distinction between accusatory
and nonaccusatory witnesses: “The text of the [Sixth]
Amendment contemplates two classes of witnesses — those
against the defendant and those in his favor. . . . Contrary to
respondent’s assertion, there is not a third category of
witnesses, helpful to the prosecution, but somehow immune
from confrontation.” (Melendez-Diaz, at pp. 313–314.)
Similarly, in Williams v. Illinois (2012) 567 U.S. 50, 135, a
majority of the court rejected the plurality’s reasoning that a
statement must be “ ‘prepared for the primary purpose of
accusing a targeted individual’ ” in order to be testimonial,
pointing to the high court’s reasoning in Melendez-Diaz.
(Williams, at p. 135 (dis. opn. of Kagan, J.), quoting id. at p. 84
(plur. opn. of Alito, J.); accord, U.S. v. Duron-Caldera (5th Cir.
2013) 737 F.3d 988, 994–996.)
We conclude the Attorney General’s argument fails for the
same reason. The prosecution offered the approved portions of
Ontiveros’s confession before Flinner’s jury out of the presence
of Ontiveros’s jury, presumably because these statements
corroborated the prosecution’s theory that Flinner had hired
Ontiveros to kill Keck. The fact that the selected statements do
not explicitly mention Flinner does not render Ontiveros any
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less a “witness[] against” Flinner within the meaning of the
Sixth Amendment.
The Attorney General suggests we have held otherwise in
People v. Stevens (2007) 41 Cal. 4th 182 and Lewis, supra, 43
Cal. 4th 415, where we reasoned that “[t]he same redaction that
‘prevents Bruton error also serves to prevent Crawford error.’ ”
(Stevens, at p. 199; accord, Lewis, at p. 506.) But as with Bruton
and Richardson, Stevens and Lewis have no application here:
Both concerned the admission of a codefendant’s statement at a
joint trial before a single jury. The codefendant in Stevens also
testified at the joint trial and was thus available for cross-
examination, obviating any confrontation clause problem.
(Stevens, at p. 199.)
In Lewis, redacted portions of the codefendant’s confession
to police were read to the jury and the “jury was instructed to
consider these statements against the speaker only and not
against any other defendant.” (Lewis, supra, 43 Cal.4th at
p. 452.) Although we agreed with the defendant that the
admitted statements from his codefendant’s confession were “no
doubt testimonial,” we reasoned that the statements were not
admitted “against” the defendant within the meaning of the
confrontation clause because they did not facially implicate the
defendant. (Id. at p. 506.) We noted: “As the high court has
explained, ‘[o]rdinarily, a witness whose testimony is introduced
at a joint trial is not considered to be a witness “against” a
defendant if the jury is instructed to consider that testimony
only against a codefendant.’ [Citation.] The only exception to
this rule is the narrow class of statements . . . that powerfully
incriminate the defendant on their face because they directly
implicate the defendant by name or do so in a manner the jury
could not reasonably be expected to ignore. [Citations.]
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Accordingly, redacted codefendant statements that satisfy
Bruton’s requirements are not admitted ‘against’ the defendant
for Crawford purposes.” (Lewis, at p. 506.) By contrast, as we
have already explained, Ontiveros’s statements were expressly
admitted against Flinner.
For these reasons, we agree with the trial court that the
admission of Ontiveros’s statements against Flinner violated
Flinner’s confrontation clause rights. The question remains,
however, whether the error was harmless beyond a reasonable
doubt. (See Lilly v. Virginia (1999) 527 U.S. 116, 139–140.) On
this question, too, we agree with the trial court. Nothing elicited
from Ontiveros directly implicated Flinner, whose involvement
in the scheme to kill Keck was proven by independent evidence.
And even as to the manner in which Ontiveros implemented the
final phase of that scheme, the killing itself, other evidence
illuminated most of the details: Photos and videos from nearby
surveillance cameras showed Keck’s and Ontiveros’s
movements into and (in Ontiveros’s case) out of the cul-de-sac,
and the crime scene and forensic evidence showed Keck was shot
in the back of her head while opening the hood of her car, which
was still running. As we conclude in the next discussion section,
there was ample evidence, independent of Ontiveros’s
statement, that he accompanied Keck to the cul-de-sac and
waited until she was occupied opening her hood before shooting
her in the back of the head. As to both first degree murder and
the lying-in-wait special circumstance, therefore, Ontiveros’s
statement that Keck drove him to the cul-de-sac and parked her
car facing his was cumulative of other prosecution evidence
regarding the manner of Keck’s killing. For that reason, and
because the portion of Ontiveros’s statement admitted in
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Flinner’s trial did not directly inculpate Flinner, its admission
was harmless beyond a reasonable doubt.
8. Sufficiency of the Evidence for the Lying-in-Wait
Special-Circumstance Finding and the Lying-in-
Wait First Degree Murder Conviction
Flinner contends there was insufficient evidence to
support his conviction for lying-in-wait first degree murder, as
well as insufficient evidence to support the lying-in-wait special-
circumstance finding.
“We often address claims of insufficient evidence, and the
standard of review is settled. ‘A reviewing court faced with such
a claim determines “whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” [Citations.] We examine the record to
determine “whether it shows evidence that is reasonable,
credible and of solid value from which a rational trier of fact
could find the defendant guilty beyond a reasonable doubt.”
[Citation.] Further, “the appellate court presumes in support of
the judgment the existence of every fact the trier could
reasonably deduce from the evidence.” ’ ” (People v. Moon (2005)
37 Cal. 4th 1, 22.)
The capital murder in this case occurred in June 2000,
shortly after Proposition 18 amended the lying-in-wait special-
circumstance statute. (Stats. 1998, ch. 629, § 2, pp. 4163–4166,
enacted as Prop. 18, approved by voters, Primary Elec. (Mar. 7,
2000) eff. Mar. 8, 2000.) We consider the effect of that
amendment below (pt. II.B.9., post), in addressing Flinner’s
argument that the amendment rendered the special
circumstance unconstitutional. As relevant here, however,
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“[l]ike the former version, the amended lying-in-wait special
circumstance requires ‘ “ ‘an intentional murder, committed
under circumstances which include (1) a concealment of
purpose, (2) a substantial period of watching and waiting for an
opportune time to act, and (3) . . . a surprise attack on an
unsuspecting victim from a position of advantage . . . .’ ” ’ ”
(People v. Johnson (2016) 62 Cal. 4th 600, 629 (Johnson).) The
lying-in-wait special circumstance (Pen. Code, § 190.2, subd.
(a)(15)) includes the elements of first degree lying-in-wait
murder (id., § 189, subd. (a)), but requires the additional
element that the killing was intentional, not merely committed
with implied malice. (See, e.g., People v. Moon, supra, 37 Cal.4th
at p. 24, fn. 1.) Thus, we focus here on whether substantial
evidence supports the special circumstance, for if it does, it
necessarily supports the theory of first degree lying-in-wait
murder. (See, e.g., People v. Carpenter (1997) 15 Cal. 4th 312,
388.)
Flinner concedes that the concealment element of the
statute is satisfied here, where Flinner and Ontiveros concealed
their purpose from Keck when they summoned her to the cul-
de-sac on the pretense of jumpstarting Ontiveros’s car. And
Flinner does not argue that he or Ontiveros lacked the intent to
kill. But Flinner maintains that the evidence was insufficient
to establish a “substantial period of watching and waiting” and
a “surprise attack from a position of advantage.”
First, Flinner contends that the mere three minutes that
elapsed between the time Keck’s Mustang entered the cul-de-sac
to the time Ontiveros drove away from the scene of the murder
could not constitute a substantial period of watching and
waiting. But as we have repeatedly explained, the purpose of
the watching and waiting element “ ‘ “is to distinguish those
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cases in which a defendant acts insidiously from those in which
he acts out of rash impulse. [Citation.] This period need not
continue for any particular length ‘ “of time provided that its
duration is such as to show a state of mind equivalent to
premeditation or deliberation.” ’ ” ’ ” (People v. Cage (2015) 62
Cal. 4th 256, 278.)
Here, viewing the evidence in the light most favorable to
the verdicts, we conclude that the prosecution presented
sufficient admissible evidence from which a trier of fact could
find beyond a reasonable doubt that Ontiveros watched and
waited for an opportune moment to launch a surprise attack on
Keck. The prosecution’s theory of the murder was that Flinner
called Keck and asked her to pick up Ontiveros from a nearby
gas station and drive to a cul-de-sac where Ontiveros’s car had
broken down in order to give him a jumpstart. While Keck was
facing her Mustang and opening its hood, Ontiveros shot her in
the back of the head. The prosecution’s evidence of how the
actual killing occurred consisted largely of surveillance videos
and stills from gas stations, stores, and businesses in the area,
as well as forensic evidence of Keck’s injuries and the state in
which her car was found at the crime scene.13 Video shows
13
As we have explained, the trial court erred in admitting
portions of codefendant Ontiveros’s custodial confession. (See
pt. II.B.7., ante.) Due to that error, the jury heard Ontiveros’s
statements that he drove the white Nissan NX car on the day of
the murder and was alone in the car that day, that Keck picked
him up and drove him to the cul-de-sac, and that Keck parked
her car nose-to-nose with the Nissan in the cul-de-sac. Our past
case law suggests that it would not be improper to consider these
statements in assessing Flinner’s sufficiency-of-the-evidence
claim. (See People v. Shirley (1982) 31 Cal. 3d 18, 70–71.) But
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Keck’s Mustang leaving the Ultramar station where she met
Ontiveros and then heading towards the cul-de-sac road.
Approximately three minutes and 15 seconds after her white
Mustang enters the cul-de-sac, video shows the Nissan NX
speeding out of it.
Deputy Sheriff Troy Doran testified that Keck’s Mustang
was found with the keys still in the car, the engine running, and
the passenger door open. Photos of the crime scene showed that
the hood of Keck’s Mustang was ajar, though not propped open
with the hood rod. And photos showed blood stains on the front
bumper of the car, the underside of the hood, and on the hood
rod, which was out of place. Robert Whitmore, who performed
the autopsy, testified that he found a “textbook entrance wound”
on the back of Keck’s head, and that the lack of soot on the
wound indicated that the gun was some distance away from her
head when it was fired. He also testified that Keck sustained
facial abrasions before she died, which he opined were
consistent with her face hitting the engine compartment of the
Mustang after she was shot. And he testified that he found no
evidence of evasion by Keck, suggesting that she never saw the
gunshot coming. The bullet thus passed through Keck’s brain,
exited through her right cheek, and finally lodged in the firewall
of her car in the engine compartment. David Cornacchia, a blood
spatter expert, testified that blood on Keck’s leg and on the
engine of the car were consistent with Keck being shot while
holding open the hood and leaning over the engine. And even
before the autopsy was performed, at a point when the
even without Ontiveros’s confession, sufficient evidence
supports the lying-in-wait special circumstance, and we do not
rely on that confession here.
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pathologist at the scene of the crime could not determine
whether Keck had been shot in the back of the head or in the
face, Flinner told witness Robert Pittman that Keck had been
shot in the back of the head. In light of this substantial
evidence, a reasonable jury could conclude that Ontiveros
watched and waited at the cul-de-sac for the opportune moment
to shoot Keck from behind: when Keck was facing her Mustang
in order to lift the hood of the car to provide a jump start.
Flinner also argues that there is insufficient evidence that
Ontiveros shot Keck from a position of advantage. He reasons
that the fact that Keck was shot in the back of the head “does
nothing to distinguish this case from any other such ‘ordinary
premeditated murder,’ ” quoting our decision in People v.
Morales (1989) 48 Cal. 3d 527, 557. As we explained in Morales,
“a mere concealment of purpose” is not sufficient to establish
lying in wait, since “many ‘routine’ murders are accomplished
by such means, and . . . constitutional considerations . . . might
well prevent treating the commission of such murders as a
special circumstance.” (Ibid.) Were there only evidence
suggesting, for example, that Ontiveros drove up behind Keck
while she had the hood of her car open and shot her from behind,
we might agree with Flinner that the evidence could not
distinguish the killing from an ordinary premediated murder
not subject to a lying-in-wait special-circumstance finding. (Cf.
People v. Nelson (2016) 1 Cal. 5th 513, 551 [insufficient evidence
for lying-in-wait special circumstance where evidence only
showed the defendant “came up behind his victims on foot to
take them by surprise” and no evidence showed that he “arrived
before the victims or waited in ambush for their arrival”].) But
here, as discussed above, the evidence tends to show that
Ontiveros left the Nissan NX in the cul-de-sac in advance of
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Keck’s arrival, waited for Keck at the gas station, and drove with
her back to the cul-de-sac. The evidence further shows that
Keck was shot while facing her car and opening the hood. In
light of this evidence, a jury could reasonably conclude that
Ontiveros “ ‘ “ ‘watch[ed] and wait[ed] for an opportune time to
act’ ” ’ ” on the drive from the gas station to the cul-de-sac, while
Keck parked and got out of the car, and while she proceeded to
open the hood of the car, before launching “ ‘ “ ‘a surprise
attack’ ” ’ ” on Keck from an advantageous position: from behind
her as she was otherwise preoccupied with opening the hood.
(Johnson, supra, 62 Cal.4th at p. 629.)
9. Constitutionality of Lying-in-Wait Special
Circumstance
Flinner argues that Proposition 18 rendered the lying-in-
wait special circumstance indistinguishable from lying-in-wait
first degree murder, and that the special circumstance is
therefore unconstitutionally vague and fails to adequately
narrow the class of death-eligible defendants, creating an
arbitrary and capricious application of the death penalty in
violation of the Eighth and Fourteenth Amendments. We
recently rejected this argument in Johnson, supra, 62 Cal.4th at
pages 634 to 637, and Flinner offers no reason to reconsider that
decision here.
“In assessing defendant’s challenge to the amended lying-
in-wait special circumstance, we are guided by the following
constitutional principles. The Eighth and Fourteenth
Amendments prohibit a sentence of death ‘imposed under
sentencing procedures that create a substantial risk that the
punishment will be inflicted in an arbitrary and capricious
manner.’ [Citation.] To satisfy this constitutional command,
‘the trier of fact must convict the defendant of murder and find
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one “aggravating circumstance” (or its equivalent) at either the
guilt or penalty phase. [Citations.] . . . [T]he aggravating
circumstance must meet two requirements. First, the
circumstance may not apply to every defendant convicted of a
murder; it must apply only to a subclass of defendants convicted
of murder. [Citation.] Second, the aggravating circumstance
may not be unconstitutionally vague.’ [Citation.] The lying-in-
wait special circumstance is an ‘aggravating circumstance[]’
subject to these constitutional requirements.” (Johnson, supra,
62 Cal.4th at pp. 634–635.)
As we explained in Johnson, “in March 2000, the voters
passed Proposition 18, which changed the definition of the lying-
in-wait special circumstance from a killing while lying in wait to
a killing by means of lying in wait, mirroring the language of the
first degree murder statute.” (Johnson, supra, 62 Cal.4th at
p. 634.) “[T]he voters’ purpose in amending the lying-in-wait
special circumstance was to eliminate the temporal distinction
between the special circumstance and lying-in-wait first degree
murder . . . thereby expand[ing] the class of cases in which the
special circumstance could be found true . . . .” (Id. at p. 636.)
Nevertheless, we concluded that the amended lying-in-wait
special circumstance comports with the Eighth Amendment
because it “adequately distinguishes itself from other murders
and does so in terms that are not so vague as to permit arbitrary
determinations regarding the truth of the special circumstance
allegation.” (Johnson, at p. 636.) As we have long held, the
“factual matrix” presented by the lying-in-wait special
circumstance — an intentional murder coupled with the
elements of concealment, watching and waiting, and a surprise
attack from a position of advantage — sufficiently distinguish it
from “ ‘ordinary’ premeditated murder” (People v. Morales,
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supra, 48 Cal.3d at p. 557), such that it is “neither applicable to
all murderers nor impermissibly vague” (Johnson, at p. 636).
And, in Johnson, we reasoned that even if Proposition 18 had
rendered the special circumstance identical to lying-in-wait first
degree murder, the special circumstance would pass
constitutional scrutiny because lying-in-wait murder
“historically has been viewed as ‘ “a particularly heinous and
repugnant crime,” ’ ” which “provides ‘a rational basis for
distinguishing those murderers who deserve to be considered for
the death penalty from those who do not.’ ” (Johnson, at p. 637.)
Johnson likewise forecloses Flinner’s as-applied
constitutional challenge to the special circumstance. Like the
defendant in Johnson, Flinner here contends that “because his
liability for lying-in-wait first degree murder as an aider and
abettor required a showing of intent to kill, there was no
meaningful distinction between that theory of first degree
murder and the lying-in-wait special circumstance in his case.”
(Johnson, supra, 62 Cal.4th at p. 637.) This “is simply another
way to state his facial attack on the statute” (Lewis, supra, 43
Cal.4th at p. 517), which we have rejected in part because —
even were the special circumstance identical to the lying-in-wait
first degree murder statute, as Flinner claims it is as applied to
him in this case — it would not offend the Constitution.
10. Juror Misconduct
Based on information received from jurors after the penalty
verdict was returned, Flinner moved for a new trial, alleging
several instances of juror misconduct. The trial court held a
multiday evidentiary hearing, at which numerous jurors
testified, and denied the motion on the ground that no
misconduct had occurred. On appeal, Flinner contends the
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evidence showed reversible misconduct on the parts of Jurors
No. 1 and No. 10. We review the factual background and
hearing evidence before considering both these aspects of the
misconduct claim.
During trial, defendant Flinner’s jury was sometimes
referred to as the “Red” jury and codefendant Ontiveros’s as the
“Green” jury. In December 2003, after both juries had returned
their penalty verdicts and had been excused, the trial court
received an e-mail message from two members of the Green jury
relaying assertions by Red Juror No. 1 about misconduct by Red
Jurors No. 10 and No. 12.14 The messages also revealed that
Juror No. 1 was interested in writing a book about the trial or
her experiences as a juror and had been enlisting others in a
possible group writing effort. The court provided the parties
printouts of the e-mails in early January 2004. After
investigation, Flinner filed a memorandum in support of his new
trial motion alleging several instances of misconduct by Juror
No. 1, Juror No. 10 and unspecified other jurors. The court set
the matter for an evidentiary hearing in March 2004.
At the hearing, Juror No. 1 testified to the personal conflicts
between her and Jurors No. 10 and No. 12 arising from what she
saw as those jurors’ misconduct. Throughout the trial, Juror
No. 1 asserted, Jurors No. 10 and No. 12 acted in a
“manipulative” manner, “attempt[ing] on a daily basis to swing
the other[,] older women over to their way of thinking.” During
breaks in the courthouse hallway and cafeteria, they gave their
opinion about the evidence the jury had just heard and, when
anyone voiced a different view, “we were told how wrong we
14
Red jurors will hereafter be identified by their numbers
alone; Green jurors will be identified as such.
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were.” By the time of deliberations, “[t]hose two girls had [the
older women] wrapped up. They knew that they were going to
get a guilty verdict out of them.”
Jurors No. 10 and No. 12 also put together a weekly
invitational lunch group that eventually grew to include most of
the jury. Juror No. 1 testified she was never invited but did not
feel slighted because she knew that the group discussed the case
over lunch and she did not want to violate the court’s admonition
against such discussions. After a while during the trial, the
group around Jurors No. 10 and No. 12 would stop talking
whenever Juror No. 1 approached them; Juror No. 1 understood
that to be because they knew that she was taking notes on what
they said and “they were talking about things they shouldn’t be.”
Juror No. 1 testified she twice overheard Juror No. 10 say
she had driven past the home of Flinner’s parents on Harbison
Canyon Road. The second time occurred after the wildfires in
San Diego County in the fall of 2003; Juror No. 10 said she had
to travel that road in order to visit relatives in the area.
Juror No. 1 also testified to remarks by Juror No. 10
suggesting a prosecution bias on her part. Juror No. 10
sometimes wore tight blouses and short skirts. Once, when
Juror No. 1 and others told her the buttons on her blouse had
popped open, she said she did not care, that she wanted her
blouse open so that Flinner would look at her and she could tell
him that she wanted him dead. Later in her testimony, Juror
No. 1 said she actually observed Juror No. 10 mouthing “I want
to kill you,” or “I want you dead,” at Flinner. “Many times
during side bars, many times I would turn around,” Juror No. 1
testified, “and [Juror No. 10] would be doing it and . . . [h]er and
12 would be giggling about it.” Still later, Juror No. 1 testified
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she only saw Juror No. 10 do this once, though she also saw her
making throat cutting gestures at times, usually during a side
bar. Juror No. 1 also testified to hearing Juror No. 10 refer to
the lead police investigator, Detective Scully, as “our detective”
and comment to other jurors on his “cute . . . rear end.”
The tensions between Jurors No. 1 and No. 10 came to a
head during guilt phase deliberations, when Juror No. 1 saw
Juror No. 10 conferring privately with the foreperson. In what
Juror No. 1 described as a “blowup,” she confronted them, and
they said they had been strategizing about how to sway a
holdout juror.
At the evidentiary hearing, Juror No. 1 acknowledged she
had planned to write a book about her experience as a juror in a
capital case. She kept extensive notes during the trial, in part
with the book prospect in mind. She testified that she did not
attempt to find a means of publication until after the trial, when
she explored “tools on the internet that will allow you to do self-
publishing with their assistance.” She also testified, however,
that in September 2003, during the trial, she e-mailed a self-
publishing service about the possibility of a loan, giving them an
estimate of January 2004 as the date she would be ready to
discuss further steps. She received a positive response from the
company (her testimony was unclear as to the date), but she
never actually received any money.
After the trial, Juror No. 1 began drafting a book and
discussed the idea with former Green jurors. But in January, a
stranger in a mall parking lot approached her and threatened
unspecified harm if she kept “testifying.” This threat, together
with some unexplained events at her home (hang-up telephone
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calls and banging on her door at night) prompted her to abandon
the book project and destroy her notes and draft.
Some of Juror No. 1’s assertions were corroborated by other
jurors. Jurors No. 10 and No. 12 admitted that during the trial
breaks they joked about Detective Scully having a nice butt.
Juror No. 3 and members of the Green jury corroborated Juror
No. 1’s testimony that Juror No. 10 sometimes wore short skirts
and tight blouses. Green Juror No. 11 testified to seeing Juror
No. 10 use a water bottle to mime oral sex during a court
session, and Green Juror No. 10 testified that Juror No. 10
parted her legs so that Detective Scully could see up her skirt.
On cross-examination, though, Green Juror No. 10 admitted he
could not actually see up Juror No. 10’s skirt and did not know
whether Detective Scully could.
Generally, however, Juror No. 1’s assertions of misconduct
by her fellow jurors were not corroborated. Jurors No. 10 and
No. 12 denied discussing the evidence at breaks or lunch during
the trial; when they did talk about witnesses who had appeared,
it was only to comment on their dress or speculate on how long
they would testify. Other jurors agreed the hallway and lunch
conversations did not involve the evidence, though Juror No. 7
recalled one occasion, early in the trial, when she began to talk
about a witness in the hallway but stopped when Juror No. 1
reminded her of the admonition. Juror No. 10 denied having
ever attempted to communicate with Flinner across the
courtroom, and no other juror corroborated Juror No. 1’s
account. Juror No. 10 also denied having deliberately parted
her legs in the direction of Detective Scully or anyone else in the
courtroom or having made any sexual gesture with her water
bottle. Juror No. 10 also denied having deliberately visited the
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home of Flinner’s parents; she had to drive on their road to reach
her children during the fire emergency.
The trial court denied Flinner’s new trial motion on factual
grounds. Were Juror No. 1’s assertions of misconduct correct,
the court opined, Flinner would be entitled to a new trial. But
those misconduct claims were “[a]lmost in their entirety . . .
rejected, countered, rebutted and/or innocently explained by the
rest of the jurors.” The court concluded Juror No. 1’s antipathy
for Juror No. 10, and her desire for the spotlight, had led her to
engage in “grandiosity, puffery, hyperbole, gross exaggeration,
speculation, flights of fancy, unsupported assumptions” and,
where there was no more innocent explanation, “outright
fabrication to further her own personal agenda.” The court
based its credibility determination on the hearing evidence and
the court’s observations of the jury during trial. Had there been
juror misconduct as frequent and severe as Juror No. 1 had
asserted, “it would not and it could not have escaped notice by
the court, court personnel, counsel for the parties and the
spectators.” There had been “isolated violations” by the jurors
of the court’s admonitions, the court concluded, but none of a
nature that “singly or in combination” substantially prejudiced
the trial’s fairness.
a. Asserted Misconduct by Juror No. 1
Jury misconduct serious and extensive enough to impair the
fairness of the trial or deliberations may warrant granting a new
trial motion. (Pen. Code, § 1181, subd. 3; People v. Collins (2010)
49 Cal. 4th 175, 242.) Where the trial court has heard evidence
and made findings of historical fact regarding the alleged
misconduct, we accept those findings if they are supported by
substantial evidence. (People v. Weatherton (2014) 59 Cal. 4th
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589, 598; People v. Pride (1992) 3 Cal. 4th 195, 260.) Whether
those facts constitute misconduct is, however, a legal question
we review independently. (Collins, at p. 242.)
Flinner contends Juror No. 1’s exaggerations and
fabrications about her fellow jurors, viewed in the context of her
plan to write a book about her jury experience, demonstrate a
bias on her part. Her efforts to make her contemplated book
more “entertaining,” he argues, show that “her literary project
compromised her objectivity.” Moreover, Juror No. 1’s lack of
credibility, Flinner maintains, shows she misconducted herself
in deliberations: “She exaggerated various claims of juror
misconduct, and for the same reason would likely have
exaggerated the evidence.” Finally, in a later section of his brief,
Flinner argues alternatively that: (a) Juror No. 10 committed
misconduct, as Juror No. 1 asserted; but (b) “if this court accepts
the trial court’s factual finding that Juror No. 1 fabricated her
testimony, it must reverse because of Juror No. 1’s perjury.”
We accept the trial court’s findings regarding Juror No. 1’s
credibility. The contrary testimony of other jurors, as well as
the tenor of Juror No. 1’s own testimony, amply supports the
conclusion that her assertions of misconduct by other jurors
were the product of speculation, gross exaggeration, and
perhaps conscious fabrication. We note, however, that the trial
court did not specifically find any particular part of Juror No. 1’s
testimony to be deliberately false. No finding of perjury was
made, and Flinner does not demonstrate by argument from the
record that any such finding was compelled.
Although Juror No. 1 made unwarranted accusations of
misconduct against others after the trial’s conclusion, we
conclude the facts do not demonstrate she committed
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misconduct during the trial or deliberations. Flinner himself
engages in speculation by assuming that because Juror No. 1
gave exaggerated accounts of other jurors’ behavior, she must
similarly have distorted the trial evidence. There was no
evidence at the new trial hearing that Juror No. 1 said or did
anything in deliberations to distort the evidence bearing on guilt
or penalty. To the contrary, other jurors, including the
foreperson and Juror No. 10, found her contributions, many
based on detailed notes of the evidence, appropriate and helpful.
Flinner’s assertion that Juror No. 1’s book idea led her
make her unfounded and exaggerated claims of misconduct is
also unsupported by the hearing evidence. Rather, as the trial
court found, Juror No. 1’s claims appear to have been generated
by her “palpable” antipathy to Jurors No. 10 and No. 12 and by
her desire to be the center of attention.15 As far as the
evidentiary hearing record discloses, Juror No. 1’s plan to write
15
The confrontation during deliberations that resulted from
Juror No. 1’s dislike of Juror No. 10 was unfortunate and
disturbing to the participants — Juror No. 10 testified Juror
No. 1 called her a “bitch” and screamed at her, reducing her to
tears — but it did not derail the deliberations. Juror No. 10 also
testified that after the incident, which occurred “at the very,
very end of all of our decisions,” the jury completed its
deliberations and returned its verdicts; later, Juror No. 1
apologized for her “inappropriate” conduct, though Juror No. 10
did not feel the apology was sincere. Nor does the fact of an
emotional confrontation between jurors necessarily indicate
misconduct; it is not extraordinary for feelings among jurors to
run high, especially in the context of disagreements during
deliberations. (See People v. Keenan (1988) 46 Cal. 3d 478, 541–
542 [that one juror may have made an angry threat against
another does not show reversible jury misconduct].)
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a book about her jury experience did not cause her to misconduct
herself in any other manner.
Flinner cites no authority suggesting that by itself a juror’s
plan to write a book about the case or the jury experience
constitutes misconduct warranting reversal, and we have found
none. It has been hypothesized that a juror’s profit motive could
lead the juror into controversial behavior “for the sake of making
a story worth telling,” or into “strong-arming the other members
of the jury into an inequitable result that makes for good copy
or a profitable film deal.” (Note, Capote in the Jury Box:
Analyzing the Ethics of Jurors Writing Books (2006) 19 Geo. J.
Legal Ethics 643, 645; see Sims v. Brown (9th Cir. 2005) 425
F.3d 560, 577 [juror who discussed writing a book during trial
did not commit prejudicial misconduct where “there is no
suggestion that she had a financial interest in any particular
outcome”].) In response to such dangers, California law
prohibits offering or accepting a payment to a juror in exchange
for information about a criminal case during trial or for 90 days
after discharge (if the payment is greater than $50). (Pen. Code,
§ 116.5.) The hearing evidence, however, did not show any
agreement to write a book for profit: Juror No. 1 testified
without contradiction that while she had received a positive
response to her book proposal and was hoping to borrow money
to complete the project, she never obtained an agreement for
payment of any amount.
Flinner compares Juror No. 1 to the hypothetical juror
discussed in dictum in Dyer v. Calderon (9th Cir. 1998) 151 F.3d
970, 982, footnote 19, who “lies his way on [to the jury] because
he secretly plans to write a memoir of the experience” and who,
the court suggested, might then “vote differently to provide
drama, or . . . inject personal prejudice into the jury room in an
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attempt to jazz up the deliberative process.” But while Juror
No. 1 wrote on her questionnaire that she was “excited to be
summoned” for jury service and that she thought Flinner’s case
would be “very interesting,” there was no evidence she lied in
order to be selected.16
b. Asserted Misconduct by Juror No. 10
Flinner contends Juror No. 10 “exhibited a clear bias by
telling appellant she wanted him dead and by her personal
infatuation with the lead detective.” He acknowledges that the
trial court found untrue Juror No. 1’s allegations in this regard
but maintains that finding was unsupported by the record.
We disagree. The trial court’s finding was supported by
substantial evidence and was based on the court’s assessment of
the witnesses’ credibility. As such, it is entitled to deference.
(People v. Nessler (1997) 16 Cal. 4th 561, 582.) Juror No. 10
denied making hostile gestures or expressions to Flinner, and
no other juror corroborated Juror No. 1’s account. Juror No. 10
admitted making remarks about Detective Scully’s anatomy,
16
Flinner faults Juror No. 1 for failing to disclose on her
questionnaire that she had been among the persons protected
by a protective order her sister had obtained against an abusive
former boyfriend. But no question on the questionnaire
specifically called for such information. Juror No. 1 did disclose
her sister’s history of drug addiction and related crime, which
included an incident in which “[t]he group she hung with
actually burned down her home.” At the new trial hearing, she
acknowledged she also should have referenced that incident in
answer to the question whether she or members of her family
had ever been victims of crime. The trial court made no finding
that Juror No. 1 was deceptive regarding the protective order or
her sister’s former boyfriend, and we find nothing in the record
that compels such a finding.
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but denied any acts that would suggest an “infatuation,” much
less a “fixation.” As for Green Juror No. 10’s claim that he saw
Juror No. 10 expose herself to Scully, cross-examination showed
that to be mere speculation on his part.
Juror No. 10 may not have conducted herself with perfect
decorum throughout the trial. But the trial court found she did
not commit the misconduct Juror No. 1 attributed to her, and
we uphold that finding as supported by substantial evidence.
C. Penalty Phase Issues
1. Competence to Stand Trial
Flinner contends the court erred, after the guilt verdicts
were returned, in declining to suspend trial proceedings under
Penal Code section 1368 in order to determine his competence
to stand trial.
Defendant Flinner’s jury returned its guilt-phase verdicts
on October 16, 2003, but those verdicts were ordered sealed
while codefendant Ontiveros’s jury continued deliberating. In
the early morning of Sunday, October 19, jail personnel found
Flinner, in his cell, in what the trial court, paraphrasing the jail
records, described as “an apparent state of physical distress.”
Flinner was hospitalized and was discharged on the morning of
Tuesday, October 21. Declaring that he had been told Flinner
had attempted suicide, defense counsel moved to initiate
competency proceedings under Penal Code section 1368. In
opposition, the prosecutor asserted Flinner’s apparent conduct
on this occasion was consistent with his record of previous failed
“ ‘attempts’ ” at suicide, other instances of malingering, and
“manipulation and deceit,” and did not suggest an inability to
proceed with the penalty phase. The court heard and denied the
motion on Thursday, October 23.
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At the hearing, the court and counsel reviewed Flinner’s
recent medical records. The court asked Attorney Mitchell
whether, with the additional information in those records, he
wished to give his view as to Flinner’s present competency to
stand trial. Although Mitchell and cocounsel Resnick had met
with Flinner the day before the hearing, Mitchell did not
indicate Flinner acted or spoke in a manner suggesting
incompetence. Mitchell believed himself “on the horns of a
dilemma” as both Flinner’s attorney and an officer of the court;
although he made no representations as to Flinner’s mental
condition, he believed the examination and hearing
requirements of Penal Code section 1368 had been triggered.
The prosecutor observed that the medical records showed
Flinner’s blood pressure and pulse at the time of his
hospitalization, while elevated, were within the range that
might be seen for a man of his age doing an intense physical
activity and that when interviewed on October 21 by a sheriff’s
department employee, Flinner denied any suicidal thoughts and
stated, “ ‘I don’t really know what happened to me.’ ”
Summing up the record, the trial court added that when
interviewed, Flinner denied taking any drug, prescription or
nonprescription, to excess, and that the court’s own observations
at the October 23 hearing showed Flinner to be apparently alert,
not in physical distress, and conversing with counsel in an
apparently normal manner. The court found scant evidence
Flinner’s condition on Sunday was the result of a suicide
attempt, but even if it was, the evidence did not indicate
incompetence to stand trial.
“The constitutional guarantee of due process forbids a court
from trying or convicting a criminal defendant who is mentally
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incompetent to stand trial. [Citations.] Section 1367 of the
Penal Code, incorporating the applicable constitutional
standard, specifies that a person is incompetent to stand trial
‘if, as a result of mental disorder or developmental disability, the
defendant is unable to understand the nature of the criminal
proceedings or to assist counsel in the conduct of a defense in a
rational manner.’ (Id., subd. (a); see Dusky v. U.S. (1960) 362
U.S. 402 [4 L. Ed. 2d 824, 80 S. Ct. 788] [competence requires
‘ “sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding” ’ and ‘ “a rational
as well as factual understanding of the proceedings against
him” ’].)” (People v. Rodas (2018) 6 Cal. 5th 219, 230–231.)
“Penal Code section 1368 requires that criminal
proceedings be suspended and competency proceedings be
commenced if ‘a doubt arises in the mind of the judge’ regarding
the defendant’s competence (id., subd. (a)) and defense counsel
concurs (id., subd. (b)). This court has construed that provision,
in conformity with the requirements of federal constitutional
law, as meaning that an accused has the right ‘to a hearing on
present sanity if he comes forward with substantial evidence
that he is incapable, because of mental illness, of understanding
the nature of the proceedings against him or of assisting in his
defense.’ (People v. Pennington (1967) 66 Cal. 2d 508, 518 [58
Cal. Rptr. 374, 426 P.2d 942], discussing Pate v. Robinson (1966)
383 U.S. 375, 385–386 [15 L. Ed. 2d 815, 86 S. Ct. 836].) ‘Once
such substantial evidence appears, a doubt as to the sanity of
the accused exists, no matter how persuasive other evidence —
testimony of prosecution witnesses or the court’s own
observations of the accused — may be to the contrary.’
(Pennington, at p. 518.) As we have explained in more recent
cases, substantial evidence for this purpose is evidence ‘that
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raises a reasonable or bona fide doubt’ as to competence, and the
duty to conduct a competency hearing ‘may arise at any time
prior to judgment.’ ” (People v. Rodas, supra, 6 Cal.5th at
p. 231.)
We agree with the trial court that there was insufficient
evidence of incompetence to call for suspension of criminal
proceedings and a formal inquiry into competence to stand trial.
The exact nature and cause of the medical crisis Flinner suffered
on October 19 was unknown. After Flinner’s release from the
hospital, he denied having suicidal thoughts or overdosing on
any drug. Even assuming Flinner did try to kill himself in jail,
it is not clear that was the result of any mental disorder; defense
counsel pointed to nothing in the medical records so indicating.
(See People v. Ramos (2004) 34 Cal. 4th 494, 509 [preference for
receiving the death penalty and hoarding of medication for
possible suicide attempt do not indicate incompetence].)
Counsel said nothing to suggest Flinner was experiencing any
difficulty understanding the proceedings or communicating with
the defense team; nor did the court’s own observations give any
indication Flinner was having problems following the
proceedings or communicating with counsel. In the absence of
substantial evidence of incompetence, the court properly denied
Flinner’s Penal Code section 1368 motion.
2. Cumulative Impact of Errors
Flinner contends the errors and misconduct committed in
his trial, considered cumulatively, deprived him of due process
and a fair trial. We have found harmless the erroneous
admission against Flinner of Ontiveros’s statements detailing
Ontiveros’s killing of the victim (pt. II.B.7., ante) and the
possibly erroneous admission of Flinner’s letter to
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Opinion of the Court by Kruger, J.
Representative Hunter (pt. II.B.3.h., ante). Examining their
potential impact together, we find them cumulatively harmless
as well. Though both evidentiary issues, they went to different
factual aspects of the prosecution case; their potential prejudice
would not have a strong tendency to accumulate.
3. Constitutionality of California’s Death Penalty
Law
Flinner contends several aspects of California’s death
penalty scheme violate the United States Constitution. We have
considered and rejected these claims before, and we decline to
revisit the following holdings.
“[T]he California death penalty statute is not impermissibly
broad, whether considered on its face or as interpreted by this
court.” (People v. Dykes (2009) 46 Cal. 4th 731, 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 Amendments
to the United States Constitution. (People v. Simon (2016) 1
Cal. 5th 98, 149; see Tuilaepa v. California (1994) 512 U.S. 967,
975–976, 978.)
“The death penalty statute does not lack safeguards to avoid
arbitrary and capricious sentencing, deprive defendant of the
right to a jury trial, or constitute cruel and unusual punishment
on the ground that it does not require either unanimity as to the
truth of aggravating circumstances or findings beyond a
reasonable doubt that an aggravating circumstance (other than
Pen. Code, § 190.3, factor (b) or factor (c) evidence) has been
proved, that the aggravating factors outweighed the mitigating
factors, or that death is the appropriate sentence.” (People v.
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PEOPLE v. FLINNER
Opinion of the Court by Kruger, J.
Rangel (2016) 62 Cal. 4th 1192, 1235; accord, People v. McDowell
(2012) 54 Cal. 4th 395, 444; People v. Demetrulias (2006) 39
Cal. 4th 1, 40–41.) We have held that the Supreme Court’s
recent Sixth Amendment decisions (e.g., Hurst v. Florida (2016)
577 U.S. ___ [136 S. Ct. 616]; Cunningham v. California (2007)
549 U.S. 270; Blakely v. Washington (2004) 542 U.S. 296; Ring
v. Arizona (2002) 536 U.S. 584; Apprendi v. New Jersey (2000)
530 U.S. 466) do not affect our conclusions in this regard.
(Rangel, at p. 1235.)
“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 (2017) 2 Cal. 5th 402, 490.) Flinner also
refers in passing to the lack of “intra-case” proportionality
review, but he does not argue his death sentence was grossly
disproportionate to the offense committed or to the treatment of
other participants in the capital crime. (See People v. Clark
(2016) 63 Cal. 4th 522, 642.) Given the evidence that Flinner, a
mature man acting on his own initiative, organized and
participated in a callous and cold-blooded killing of his fiancée
purely for his financial gain, we would not, were the claim made,
conclude his sentence is grossly disproportionate to his
individual culpability.
Finally, “California’s use of the death penalty does not
violate international law either by punishing certain first degree
murders with death or by employing the procedures defendant
complains of above.” (People v. Rhoades (2019) 8 Cal. 5th 393,
456.) “Defendant’s argument that the use of capital punishment
‘as regular punishment for substantial numbers of crimes’
violates international norms of human decency and hence the
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Opinion of the Court by Kruger, J.
Eighth Amendment to the United States Constitution fails, at
the outset, because California does not employ capital
punishment in such a manner. The death penalty is available
only for the crime of first degree murder, and only when a special
circumstance is found true; furthermore, administration of the
penalty is governed by constitutional and statutory provisions
different from those applying to ‘regular punishment’ for
felonies.” (People v. Demetrulias, supra, 39 Cal.4th at pp. 43–
44.)
III. DISPOSITION
The judgment of the superior court is affirmed.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
GROBAN, J.
GREENWOOD, J.*
*
Administrative Presiding Justice of the Court of Appeal,
Sixth Appellate District, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
104
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Flinner
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S123813
Date Filed: November 23, 2020
__________________________________________________________________________________
Court: Superior
County: San Diego
Judge: Allan J. Preckel
__________________________________________________________________________________
Counsel:
Patrick M. Ford, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Theodore Cropley and
Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Patrick M. Ford
1901 First Ave., Suite 400
San Diego, CA 92101
(619) 236-0679
Christopher P. Beesley
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9161