Filed 11/13/17




      IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S044693
           v.                        )
                                     )
RANDALL CLARK WALL,                  )
                                     )                       San Diego County
           Defendant and Appellant.  )                    Super. Ct. No. CR133745
____________________________________)


        Defendant Randall Clark Wall pleaded guilty to the first degree murders of
Katherine and John Oren. (Pen. Code, § 187; all undesignated statutory references
are to this code.) Wall also pleaded guilty to four special circumstances: that he
committed multiple murders, and that the murders were committed while lying in
wait, in the commission of a robbery, and in the commission of a first degree
burglary. (§ 190.2, subds. (a)(3), (a)(15), (a)(17)(A), (a)(17)(G).) In addition, he
pleaded guilty to robbery (§§ 211; 212.5, subd. (a)), conspiracy to commit robbery
(§ 182, subd. (a)(1)), burglary (§§ 459, 460), and conspiracy to commit burglary
(§ 182, subd. (a)(1)). A jury found true dangerous and deadly weapon allegations
with respect to the robbery, burglary, and one of the murders. (§ 12022,
subd. (b).) At the penalty phase, the jury returned a verdict of death. This appeal
is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We affirm the
judgment.
                                     I. FACTS

       A.     Evidence of Guilt
       Wall was tried jointly with his codefendant John Richard Rosenquist before
dual juries. Before the guilt phase began, Wall pleaded guilty to first degree
murder, burglary, robbery, and conspiracy to commit burglary and robbery, but
denied use of a dangerous and deadly weapon. The prosecution presented the
following evidence during the guilt phase of Wall and Rosenquist’s joint trial.
The defense did not present guilt phase evidence.
              1.     Wall meets the Orens
       Wall met Katherine Oren, John Oren, and the Orens’ great-grandson J.D. in
1990. Wall was introduced to the family through the Orens’ granddaughter
Tammy, whom he had met that spring. After staying at Wall’s parents’ home,
Tammy and Wall spent at least two weeks in a tent in the Orens’ backyard in San
Diego. During this time, Wall and Katherine argued frequently, and according to
Tammy, Katherine accused Wall of stealing from her. Tammy described the
situation as “a bad mixture,” and Katherine eventually insisted that Wall and
Tammy leave the Orens’ property and had John drop them off at a nearby freeway
entrance.
              2.     J.D. is sexually assaulted and the Orens are murdered
       On the night of March 1, 1992, Wall and Rosenquist entered the Oren
residence. Ten-year-old J.D. heard noises coming from John’s bedroom after he
had gone to bed. The parties stipulated that Rosenquist later entered J.D.’s room.
Rosenquist took off his clothes, forcibly removed J.D.’s clothes, and covered
J.D.’s face with a pillow. According to the stipulation, Rosenquist then inserted
his finger into J.D.’s anus, used his own hands and J.D.’s legs to masturbate, and




                                         2
ejaculated on J.D. Some time thereafter, Rosenquist and Wall left the house and
J.D. went back to sleep.
       The following morning, J.D. found John lying motionless on the floor and
was unable to open the door to Katherine’s room. J.D. ran across the street to ask
his neighbors for help. The neighbors called the police, and an officer, Troy
Owens, arrived at the Orens’ house. He found John lying on the floor and
determined that he had no vital signs. With the help of two firefighters, Owens
pushed Katherine’s door open and found her body.
       The detective investigating the crime scene found several metal bars,
including one near John’s body. There were blood stains splattered on the walls,
headboard, and ceiling of John’s bedroom, as well as bloody footprints throughout
the house. The district attorney presented evidence at trial that the footprints
matched the types of shoes worn by Rosenquist and Wall. John’s room appeared
to have been ransacked: his dresser drawers had been emptied and stacked on his
bed, and a can in which he kept change was found emptied in the hallway. An
autopsy revealed seven serious blows to John’s head, stab wounds on his neck, rib
fractures, and lacerations on his liver and one of his kidneys. At trial, forensic
pathologist Dr. Christopher Swalwell testified that blunt force trauma to John’s
head, with the contributing cut and stab wounds, caused his death. Katherine’s
autopsy revealed stab wounds on her neck and lower arm, bruising on her arms,
face, and back, and several rib fractures. Swalwell testified that Katherine’s death
was caused by a “large cut wound of the neck.”
              3.     Wall and codefendant Rosenquist travel to San Francisco
       Early on the morning of March 2, 1992, a witness saw a car that looked like
the Orens’ yellow and green Mercury traveling quickly on the highway in San
Diego. A few hours later, John’s credit card was used at a gas station north of Los


                                          3
Angeles. The district attorney presented evidence that the signature on the credit
card receipt matched Wall’s handwriting.
       An employee with the federal Bureau of Land Management, David Kessler,
found Wall and Rosenquist in a remote part of San Luis Obispo County later that
day. When asked, Wall and Rosenquist gave fake names and said their car had
broken down and had been towed, but that they decided not to ride along with the
tow truck. Kessler gave them a ride to a motel, where the owners gave Wall and
Rosenquist dinner and a room. Kessler then reported this encounter to the San
Luis Obispo Sheriff’s Office because “it just didn’t feel right.”
       Wall and Rosenquist left the motel the next morning and walked in the
direction of San Luis Obispo. They were stopped by a San Luis Obispo County
deputy sheriff who asked them for identification, patted them down for weapons
and found that they each were carrying pocket knives, searched their duffel bag
and found a lot of change, and then let them go. On March 4, 1992, the Orens’
car, along with John’s wallet, was found burned in a ditch in the same remote area
where Kessler had picked up Wall and Rosenquist.
              4.     Wall is interviewed and arrested
       On March 17, 1992, San Francisco homicide detectives approached Wall as
he exited a social services office in San Francisco. They brought him to the San
Francisco Hall of Justice, where he waited in an open interview room for about
five hours for two San Diego police officers to interview him.
       During the guilt phase, the district attorney played a portion of this
interview. In the interview, Wall at first denied knowing Rosenquist and denied
traveling to San Francisco from Mexico. But after some back and forth with the
detectives, Wall explained that he met Rosenquist in Salt Lake City and traveled
with him to San Francisco, then Mexico, and back to San Francisco in the
beginning of March. Wall said they took a trolley from the Mexican border to San
                                          4
Diego and walked along the freeway around March 1, 1992. Several hours into
the walk, according to Wall, Rosenquist left to find a car and returned with one,
although Wall said he did not know where Rosenquist had acquired it. From
there, Wall said they stopped for gas off the highway once and then later, at
Rosenquist’s request, drove off the main roads; eventually, the car got stuck on a
side road. He said that he and Rosenquist headed north toward San Francisco with
help from the Bureau of Land Management employee and the motel owners in San
Luis Obispo County, and that he had not seen Rosenquist in over a week.
       After the interview, a search warrant was executed for the apartment where
Wall was staying on Third Street in San Francisco. The officers found Rosenquist
there, along with a knife, a black bag, and a signed written agreement between
Rosenquist and Wall concerning a share of their “partnership” if “Wall has done
what he is supposed to do.”
              5.     Wall discusses the crime while detained
       The district attorney also introduced evidence from three jailhouse
informants. Raynard Davis testified he was housed in the San Francisco County
jail on charges of selling crack cocaine. While in custody, Davis overheard Wall
say he was “fighting some murders” that included “chopping up peoples [sic].”
According to Davis, Wall told him over chess that the district attorney “can’t
prove shit” because Wall wore socks over his hands as he committed the offenses.
Wall also told him he had “chopped” his victims with a “stick” or “metal pipe.”
       A second informant, John Fitzgerald, testified he saw Wall get into several
confrontations while in jail in San Diego. During one of them, Fitzgerald stated
that Wall said “he had already killed a couple of the people, he didn’t mind killing
him as well.” Later, after Wall’s preliminary hearing, Fitzgerald testified that
Wall told him that a witness in his case who had sold crack cocaine and was


                                          5
housed in San Francisco County jail “was not going to last long anyway,” which
Fitzgerald understood to mean that Wall “was going to have him taken care of.”
       The third informant, Shawn Taylor, was also in custody with Wall in San
Diego. He testified that he became friends with Wall and that Wall told him that
“him [sic] and his partner, Rosenquist, killed an old couple and ransacked their
house.” Wall specified that Rosenquist had killed the man and that Wall had
beaten the man’s wife to death.

       B.     Penalty Phase
        Before the penalty phase, Rosenquist agreed to a sentence of life without
parole and waived his right to appeal. The district attorney proceeded to the
penalty phase with Wall, and the following evidence was presented to Wall’s jury.
              1.     Prosecution evidence
                     a.       Circumstances of the crime
       The prosecution presented testimony concerning a blood smear pattern in
John’s bedroom from a San Diego detective who had investigated the Orens’
home after the murder, as well as a San Diego criminalist who had evaluated
blood patterns in the home.
                     b.       Wall’s confession
       The district attorney played the entirety of the tape of Wall’s interview in
San Francisco. About an hour into the tape, beginning at the portion not played
during the guilt phase, the interviewing detectives questioned the truth of Wall’s
story and asked him to “start out clean again.” They asked if something had
happened with Rosenquist, and Wall responded, “Yeah, he kind of pressured me
into it . . . .” One of the detectives encouraged Wall to provide more detail:
“you’re at a crossroad in your life. . . . If you go this way, tell us what happened
. . . then you can go on with your life. You can be with your wife and your child


                                          6
and start fresh.” Shortly thereafter, Wall said, “I didn’t want to do it, but him [sic]
and I both killed the grandma and grandpa of that household.”
       Wall explained he had met Tammy several years earlier and had stayed in
the Orens’ backyard for a few months. He said he had told Rosenquist that he had
spent some time in San Diego on their way down to Mexico, and when they came
back to San Diego, Rosenquist planned to break into the Orens’ home and steal
their money and car. When Wall told Rosenquist he did not want to, Rosenquist
threatened to kill him.
       Rosenquist and Wall walked to the Orens’ house the night of March 1,
1992 and waited in the backyard until the Orens fell asleep. Wall said he broke
into the house through the back door, which was not locked but had a chain on it.
At that point, Wall and Rosenquist both carried metal bars they found in the
backyard; according to Wall, only Rosenquist had a knife. Wall said Rosenquist
then beat John with the metal bar. When Katherine awoke, Rosenquist also hit her
with the metal bar. When J.D. came out of his room crying, Wall said he took him
back to his room and “kept him quiet.” After a few minutes, Rosenquist came into
J.D.’s room and said he wanted to have sex with the boy. Wall thought that was
“really sick,” but Rosenquist again threatened to kill him, so he left the room.
       Wall said that afterward Rosenquist handed him a set of car keys and told
him to start the Orens’ car. He said that at the time he did not know that
Rosenquist had stolen John’s wallet or money or that Rosenquist had stabbed
either of the Orens. When Rosenquist got in the car, they drove away. Wall
described their trip north and then said he and Rosenquist were staying at the same
apartment in San Francisco.
       The district attorney also played a tape from another interview of Wall,
conducted in San Francisco by the same detectives the next morning. In this tape,
Wall made statements that contradicted ones he made the night before. Wall said
                                           7
he, not Rosenquist, had “clobbered the old lady” with a metal bar. He also said
that Rosenquist gave Wall his knife back before they left the house and that Wall
used it to cut the cord to the house’s telephone.
              c.     Victim impact evidence
        J.D. testified that he heard Wall laughing in the hallway when Rosenquist
was assaulting him. He testified that his great-grandmother Katherine had a vision
impairment. He also said he was hospitalized for about a month after the assault;
he received psychiatric care and continued to receive therapy after leaving the
hospital.
              d.     Prior conviction and unadjudicated criminal acts
        The parties stipulated that Wall had been convicted of felony possession of
a “very, very small amount” of cocaine in 1991. The district attorney introduced
testimony from Dagmar Marie Donner, a former roommate of Wall’s. Donner
described a physical fight that took place between Wall and her husband after she
told Wall to move out of the house.
        2.    Defense evidence
        The defense called one witness, Terry Lange, who was one of the two San
Diego detectives who had interviewed Wall, and later Rosenquist, in San
Francisco. According to Lange, Rosenquist said that after he had assaulted J.D.,
he covered up the victims’ bodies because he was sickened by the blood near
them.
        The defense then read two stipulations. The first concerned a statement by
Rosenquist to a doctor in which he described the victims’ bodies: “It was
unbelievable. I’ve never seen anything like that before. He [John] was blowing
bubbles.” The parties also stipulated that the Orens’ neighbor found John’s body
covered with a blanket the morning after the murder.


                                          8
                            II. JURY SELECTION ISSUES

       A.     Absence From Jury Selection Proceedings
       Due to injuries suffered in custody, Wall was absent from portions of jury
selection, including the voir dire of six potential jurors, the exercise of peremptory
challenges, and the swearing-in of the jury. Wall contends that his absence
violated his federal and state constitutional due process right to be personally
present during the proceedings against him, as well as his statutory right to be
present under sections 977 and 1043. We conclude that Wall validly waived his
constitutional right to be present at the relevant proceedings and that although the
proceedings violated his statutory right to be present, the error was harmless.
              1.     Background
       On August 5, 1994, in the midst of jury selection, Wall was attacked and
severely beaten by another inmate in a holding cell during the noon recess. Wall
was visibly injured and in need of immediate medical attention. Wall’s attorney
told the court that he was willing to waive Wall’s presence for voir dire that
afternoon. In the presence of the court, counsel asked Wall: “Randy, do you
agree to waive your presence for the balance of this afternoon’s proceedings,
understanding that you have a right to be here to be an active participant?” Wall
replied, “Yes, I do, your Honor. I’m sorry about this.” After Wall left, the
prospective jurors were brought in for individual voir dire. The court did not
remark on Wall’s absence in the presence of the prospective jurors. Of the six
jurors brought in that afternoon, one was excused for hardship, two were excused
for medical concerns, and three were asked to return.
       The court reconvened on August 9, 1994, and confirmed that Wall
“understood — understand at this time and understood Friday afternoon that you
had an absolute right to be present, but because of the nature of your injuries, we


                                          9
allowed you to withdraw and receive medical attention.” Defense counsel said
that although he was “concerned as to what kind of shape [Wall] was in,” he
“believed [Wall] was able to make a knowing, intelligent waiver at the time” and
that he had recommended that Wall do so. Defense counsel went on to explain
that Wall’s jaw had been severely broken, requiring surgery to install a metal
plate, and that counsel was “concerned about [Wall’s] mental condition” as well
and wanted further testing to determine whether Wall had suffered a concussion.
Defense counsel also requested a postponement to give Wall time to recover out of
concern that Wall’s visible injuries would be prejudicial if the jury saw him. After
considering the significance of Wall’s presence for the jury and the difficulty of
reassembling the more than 60 prospective jurors at a later date, the court
proposed waiving Wall’s presence, advising the jury of a medical emergency, and
conducting the remainder of jury selection in his absence. The court sought
assurance that Wall was mentally capable of such a waiver, and then ordered
postponement of opening arguments until August 24, 1994.
       When the court reconvened on August 11, 1994, defense counsel explained
that although Wall was still “mildly disoriented” with “some dullness,” counsel
had discussed the right to be present and the nature of the peremptory challenge
proceedings with him on at least three occasions. Counsel said Wall was willing
to waive his personal presence and observe the exercise of peremptory challenges
from the jury room via a live audio feed. In the presence of the trial court, defense
counsel asked Wall if he was “willing to waive [his] presence and sit in the jury
room listening to proceedings in that fashion instead” and if he understood he had
“a right to be here.” Wall said yes. The trial court then directly addressed Wall
and asked, “Do you understand what I have just said, Mr. Wall?” Wall responded,
“Yeah.” Wall was moved to the jury room during the exercise of peremptory
challenges and remained there throughout. Before the procedure began, the court
                                         10
advised the jury as follows: “As you might note, Mr. Wall is not here this
morning. There has been a medical emergency. He wants to be here. He has
agreed that his lawyers may proceed selecting a jury without him. It is not his
fault that he is not here. As I indicated, he wanted to be here, wishes to be here,
under the circumstances, he is absent this morning.”
       After the jury and alternates had been selected, defense counsel again raised
the issue of Wall’s presence before the court, suggesting they “take waiver of Mr.
Wall’s presence” for the swearing-in of the jury the next day. Defense counsel
said he “explained to Mr. Wall in the last couple of moments that he, of course,
has the right, as he has had, to be present tomorrow morning when the jury is
sworn” and that he could waive this right and listen from the jury room as he had
that day. Addressing Wall directly, defense counsel asked, “Randy, have you
understood everything that I have explained to you and are you willing to waive
your presence so that we can proceed . . . ?” Wall answered yes. Wall was not in
the courtroom when the jurors were sworn in the next day.
              2.     Analysis
       Voir dire of prospective jurors is “a critical stage of the criminal
proceeding, during which the defendant has a constitutional right to be present.”
(Gomez v. United States (1989) 490 U.S. 858, 873.) A capital defendant may
validly waive this right to be present under federal and state constitutional law.
(People v. Jackson (1996) 13 Cal.4th 1164, 1210 (Jackson).) The waiver must be
made personally; it cannot be made through counsel. (Taylor v. Illinois (1988)
484 U.S. 400, 418, fn. 24.)
       Wall contends that the record is insufficient to support the conclusion that
the waivers on August 5 and 11 were voluntary, knowing, and intelligent, and that
the waivers were improperly administered by counsel rather than the court. Wall
argues that his medical condition undermined his ability to intelligently waive his
                                          11
right to be present, as did the alleged absence of advisement as to the existence
and importance of the right to be present.
       The record shows that Wall was advised once on August 5 and twice on
August 11 of his right to be present at voir dire, during the exercise of peremptory
challenges, and at the swearing-in of the jury. Wall’s counsel also discussed at
some length the pros and cons of waiver while Wall was present in court on
August 9. Although the August 5 and August 11 waivers were administered by
defense counsel, counsel’s allocution was conducted under the supervision of the
trial court, who observed Wall personally and expressly waive his right to be
present. It is true that on August 9 Wall’s attorney and the trial court expressed
some concern as to his mental capacity following the attack. In addition, on
August 10, defense counsel presented the results of neurological testing on Wall to
the court and thought Wall was “at least mildly disoriented” and “very slow on the
uptake.” But on August 11, though counsel noted that Wall remained “mildly
disoriented” and was “moving very slowly,” counsel told the court that he had
repeatedly discussed the right to be present and the significance of the waiver with
Wall and that “Wall remains of the position that he is willing to waive his
presence.” Defense counsel and the court were well situated to determine whether
Wall had the requisite capacity to waive his rights and understand the nature of the
rights he was waiving. We have not required any higher standard for a waiver
under similar circumstances. (See People v. Weaver (2001) 26 Cal.4th 876, 966–
967 (Weaver).)
       Although Wall validly waived his constitutional right to be present, his
absence during the selection and empaneling of the jury violated his statutory right
to be present under sections 977 and 1043. “[W]hen read together, sections 977
and 1043 permit a capital defendant to be absent from the courtroom only on two
occasions: (1) when he has been removed by the court for disruptive behavior
                                         12
under section 1043, subdivision (b)(1), and (2) when he voluntarily waives his
rights pursuant to section 977, subdivision (b)(1).” (Jackson, supra, 13 Cal.4th at
p. 1210.) “ ‘Section 977 requires . . . that the defendant personally execute, in
open court, a written waiver of the right to be present.’ ” (People v. Romero
(2008) 44 Cal.4th 386, 418.)
       The Attorney General concedes that “[b]ecause Wall did not personally
execute a written waiver, his statutory right to be present . . . was violated” during
“the questioning of six jurors on August 5th, the exercise of peremptory
challenges on August 11th, and the swearing of the jury on August 12th.”
Nevertheless, the Attorney General argues, Wall is “estopped” from arguing he is
entitled to relief because he “orally waived his right to be present” and “his
counsel acquiesced in that procedure.” But we have not recognized such an
exception to the statute’s requirement of a written waiver. (§ 977, subd. (b)(2).)
The Attorney General relies on People v. Howze (2001) 85 Cal.App.4th 1380, but
the Court of Appeal there concluded that although the defendant’s refusal to leave
his cell constituted a waiver of his constitutional right to be present at the start of
trial, the failure to obtain a written waiver violated section 977. (Howze, at
pp. 1395–1396.)
       Although the trial court committed statutory error by failing to obtain a
written waiver from Wall before allowing selection and empaneling of the jury to
proceed in his absence, it is not reasonably probable that a result more favorable to
Wall would have been reached in the absence of the error. (People v. Watson
(1956) 46 Cal.2d 818, 836; cf. Jackson, supra, 13 Cal.4th at p. 1211 [applying
Watson where defendant did not execute a written waiver of right to be present at
taking of evidence during prosecution’s presentation of its case]; Weaver, supra,
26 Cal.4th at p. 968 [applying Watson where defendant did not execute a written
waiver of right to be present at the taking of evidence during sanity phase].)
                                           13
       Wall argues that the “reshuffling” of prospective jurors between voir dire
and the exercise of peremptory challenges “undermined whatever input appellant
previously had contributed,” so Wall was unable to effectively contribute to his
attorney’s exercise of peremptory challenges. But Wall offers no specific
argument as to why or how counsel might have exercised these challenges
differently. Further, Wall was able to hear the proceedings and could have
interrupted to confer with his attorney, but he did not do so.
       Wall also argues that he was prejudiced by his absence during jury
selection and the swearing-in of the jury because his presence “was essential . . .
so that appellant, his counsel and the court could observe and take into account the
demeanor of the prospective jurors, as they in turn observed appellant.” Although
a defendant’s presence may have a psychological impact on the jury at certain
stages of trial, separate and apart from any assistance the defendant might offer his
counsel (see, e.g., Larson v. Tansy (10th Cir. 1990) 911 F.2d 392, 395–396), we
find no reasonable probability in this case that a different jury would have been
chosen or that the jury chosen would have reached a different verdict had Wall
been present during the selection and empaneling of the jury. On August 11,
before the exercise of peremptory challenges, the trial court advised the jurors that
Wall wished to be present but was unable to due to a medical emergency. We can
reasonably conclude that the jurors attributed his absence from the short swearing-
in session the next day to the same medical emergency. It is true that the court
gave no similar advisement to the jury on the afternoon of August 5. But absent
specific allegations of prejudice — and Wall has stated none — any harm arising
from the voir dire of six prospective jurors outside of Wall’s presence that
afternoon is merely speculative. Moreover, Wall had been present for most of voir
dire and was present for the remainder of trial. We hold that the trial court’s


                                         14
failure to obtain a written waiver of Wall’s right to be present does not warrant
reversal.

       B.      Alleged Witt Error
       Wall contends that the trial court violated his right to an impartial jury
under the federal and state Constitutions by erroneously excusing Prospective
Juror E.J. for cause because of her views on the death penalty. (See Wainwright v.
Witt (1985) 469 U.S. 412, 424.) “A prospective juror may be challenged for cause
based upon his or her views regarding capital punishment only if those views
would ‘ “prevent or substantially impair” ’ the performance of the juror’s duties as
defined by the court’s instructions and the juror’s oath.” (People v. Cunningham
(2001) 25 Cal.4th 926, 975, quoting Witt, at p. 424.) “When the prospective
juror’s answers on voir dire are conflicting or equivocal, the trial court’s findings
as to the prospective juror’s state of mind are binding on appellate courts if
supported by substantial evidence.” (People v. Duenas (2012) 55 Cal.4th 1, 10.)
               1.     Background
       On her juror questionnaire, Prospective Juror E.J. said she would not
automatically vote against death “no matter what evidence might be presented or
argument made.” She indicated that persons convicted of “mass murder for
political or financial gain” should automatically receive the death penalty. E.J.
said she “adhere[d] to Methodist teachings,” but when asked if she had any
spiritual or religious beliefs that “pertain to the issue of the death penalty vs. life in
prison without the possibility of parole,” or if her religious beliefs “would prevent
[her] from passing judgment in a criminal matter,” she answered no. When asked,
“do you feel you are able and willing to colmpletely [sic] put aside any thought or
concern relating to penalty issues while you deliberate guilt or innocence at the




                                           15
guilt phase trial on these charges?” E.J. responded, “I can only say I hope so.
After hearing evidence I am not sure how I will react.”
       During voir dire, in response to questions by defense counsel, E.J.
reiterated that she would not automatically vote for life without parole. However,
she also expressed hesitation about her ability to impose a death verdict: “I’m not
sure about how I would feel having to make a determination about whether a man
or woman receives the death penalty.” In response to questions from the court
concerning whether she could vote for the death penalty in the appropriate case,
she said, “I feel that I’m not the one to make a judgment on something like that”
and said she had “a problem with dealing with that particular part of being a
juror.” In response to repeated questions by the trial court and the prosecutor as to
whether she had the ability to impose the death penalty, E.J. said she did not know
if she did.
       The prosecutor challenged E.J. for cause, citing her uncertainty as to
whether “she has the capacity to uphold the death penalty.” The trial court took
the challenge under submission, noting it was a “close question.” Eight days later,
after the close of voir dire, the trial court dismissed E.J. for cause, stating: “And in
going through these transcripts, I noticed a lot of people said statements like, I
think that I can but I don’t, this that. That, in and of itself, is not grounds for
cause. It is where somebody says, ‘I don’t know’ or ‘I can’t make a decision one
way or the other,’ and . . . I think that [E.J.] is a cause challenge on the behalf of
the People.”
               2.     Analysis
       Wall argues that Prospective Juror E.J. is analogous to Prospective Juror
C.O. in People v. Pearson (2012) 53 Cal.4th 306, 328–330. Both prospective
jurors, Wall contends, were merely uncertain about what they would do in a
particular case and maintained they would be able to keep an open mind until
                                           16
confronted with all of the relevant evidence. But E.J. repeatedly expressed
uncertainty not as to her own views on the death penalty or the appropriateness of
the death penalty in any particular case, but as to her ability to impose a death
sentence. C.O., by contrast, although expressing uncertainty as to whether she
approved of the death penalty as a policy, was consistent in asserting “her ability
to vote for a death penalty in a factually appropriate case.” (Pearson, at p. 330.)
As the trial court noted, E.J. said she did not know whether she had the ability to
impose the death penalty. E.J.’s answers provide substantial evidence that she
“harbored very serious doubts concerning whether, if seated on a capital jury, she
could ever personally vote to impose the death penalty.” (People v. Jones (2012)
54 Cal.4th 1, 43.) We therefore decline to find constitutional error in the trial
court’s decision to excuse juror E.J. for cause.
                            III. PENALTY PHASE ISSUES

       A.     Admission of Allegedly Coerced Confession
       Wall argues that the trial court committed constitutional error in admitting
into evidence during the penalty phase the tape-recording and transcript of Wall’s
confession to San Diego police officers while in custody in San Francisco.
According to Wall, the confession was obtained through psychological coercion
and improper inducement as a result of the detectives’ exploitation of Wall’s
“expressed fear of codefendant Rosenquist” and their promise that Wall could “be
with [his] wife and [his] child and start fresh” if he told them “what happened.”
Because the confession was the “centerpiece of the prosecution’s case for death,”
Wall contends the jury likely would not have found the aggravating evidence
substantial enough to warrant a death sentence if the confession had been
excluded.




                                          17
               1.     Background
         On March 17, 1992, San Francisco homicide detectives approached Wall in
San Francisco. He was transported to the San Francisco Hall of Justice, where he
waited in an open interview room for about five hours until two San Diego police
detectives, Carl Smith and Terry Lange, arrived. During this time, Wall was told
he was permitted to leave, and he used the restroom unescorted, attempted to make
two phone calls, and was provided with food and drink by San Francisco officers.
Upon arriving, the San Diego detectives told Wall he was not under arrest but
suggested he may be a “witness” in a “fairly serious crime” and read Wall a
Miranda warning. The interview began at 10:00 p.m. and lasted for almost two
hours.
         Wall initially said he came straight into San Francisco from Salt Lake City,
but the detectives quickly informed him that they knew police had stopped him
and Rosenquist near a car belonging to a murder victim from San Diego and that
they were seeking information about where he and Rosenquist had obtained the
car. After being told to “start over,” Wall then said that he had met Rosenquist in
Salt Lake City and that they had traveled together to San Francisco, then Mexico,
and then to San Diego via trolley. In San Diego, Rosenquist said he would “get
some transportation or whatever and some money,” at which point he left Wall on
the Interstate 5 freeway and came back with a car and a black bag of change. The
detectives asked a series of detailed follow-up questions, primarily about Wall’s
statement that Rosenquist had made a separate trip to obtain a car and about the
two men’s journey back up to San Francisco. In his responses, Wall said he was
divorced and had a three-year-old daughter, he last saw his ex-wife about a month
earlier, and he came to California in the hope of getting a good job so he could
“send back for” his ex-wife, whom he hoped to remarry.


                                          18
       After almost an hour of questioning, the detectives returned to Wall’s initial
statement about coming straight from Salt Lake City and asked why Wall “started
to lay out a bullshit story about Salt Lake.” Wall said he was “scared” and did not
“want any problems . . . [and] would like to get back to Salt Lake and take care of
my wife and kid.” Detective Smith responded that he and Detective Lange “get
this feeling that you’re really not telling us the whole truth,” that “[i]f you don’t
tell everything that happened or everything you know, then what you’ve told us
really isn’t real significant.” The detectives suggested Wall may have been faced
with a situation that got out of control. The following colloquy then occurred:
       “Wall: Yeah, he kind of pressured me into it and . . .
       “Detective: Why don’t you tell me about the part . . .
       “Wall: Ah . . .
       “Detective: Tell me about what you left out, okay? I know it’s tough
‘cause I can see that it’s really bothering you a lot. But why don’t you just tell me
how it happened, what happened, and, and let’s get this, let’s put this behind us
okay? Because we know what happened. We wouldn’t, we didn’t, just didn’t
pick your name out of a hat, you know what I’m saying? . . . We’re here for a
reason Randy. And, and that’s what we want you to tell us. Because you’re at a
crossroad in your life and you’ve got two directions to go; you could go this way
or you could go this way. And if you go this way, you’re gonna stay stuck all your
life. If you go this way, tell us what happened, let’s get it out in the open, let’s put
it behind you, then you can go on with your life. You can be with your wife and
your child and start fresh. And that’s what we want to do is let’s start fresh, okay?
       “Wall: Okay. Can you promise me one thing?
       “Detective: What’s that?




                                          19
          “Wall: He’s told me that, ah, something like this might happen and I’d get
pressured into it, and the pressure would come down and he’d find out then, and
ah, that he had connections all over the place, and he will have me killed.”
          The detective turned over the photograph of Rosenquist on the interrogation
table. Reiterating that he and Lange had “just came 600 miles to talk to you so
that you would tell us the truth,” Smith told Wall that “he [Rosenquist] sounds like
a bullshitter to me” and that Wall should not worry about Rosenquist. After one of
the detectives suggested they “start from the beginning” again, Wall said they did
not “have to go that far back” and then said: “Um, probably when we was
walking up the freeway, ah, or stopped beside the freeway, going up towards this
place. He sort of ah, pressured me into this. Um, I didn’t want to do it, but him
and I both killed the grandma and grandpa of that household.” The detectives
began questioning Wall about the killings, and he went on to describe them in
detail.
          During the guilt phase of Wall’s trial, the district attorney played only a
portion of the March 17, 1992 interview, stopping before the detectives’
challenged statement and Wall’s confession. At the penalty phase, the district
attorney played the entire tape of the interview as well as a tape from a short
interview conducted the following morning. Wall’s challenge relates only to the
effect of the admission of his allegedly coerced confession on the jury’s sentence
of death.
                 2.     Analysis
          “Both the state and federal Constitutions bar the prosecution from
introducing a defendant’s involuntary confession into evidence at trial.” (People
v. Linton (2013) 56 Cal.4th 1146, 1176 (Linton).) A confession is involuntary if
the “ ‘ “influences brought to bear upon the accused were ‘such as to overbear
petitioner’s will to resist and bring about confessions not freely self-
                                            20
determined.’ ” ’ ” (People v. Maury (2003) 30 Cal.4th 342, 404 (Maury).) “A
confession may be found involuntary if extracted by threats or violence, obtained
by direct or implied promises, or secured by the exertion of improper influence.”
(People v. McWhorter (2009) 47 Cal.4th 318, 347.) However, “no single factor is
dispositive in determining voluntariness . . . rather[,] courts consider the totality of
circumstances.” (People v. Williams (1997) 16 Cal.4th 635, 661.)
       “[W]here a person in authority makes an express or clearly implied promise
of leniency or advantage for the accused which is a motivating cause of the
decision to confess, the confession is involuntary and inadmissible as a matter of
law.” (People v. Boyde (1988) 46 Cal.3d 212, 238.) An improper promise “must
be causally linked” to the defendant’s confession to warrant exclusion under the
Fifth Amendment. (Maury, supra, 30 Cal.4th at p. 405; see id at p. 404.)
       “The prosecution has the burden of establishing by a preponderance of the
evidence that a defendant’s confession was voluntarily made.” (People v.
Carrington (2009) 47 Cal.4th 145, 169.) “On appeal, we conduct an independent
review of the trial court’s legal determination” as to the voluntariness of a
confession. (People v. Williams (2010) 49 Cal.4th 405, 425.) Although we rely
on the trial court’s factual findings to the extent they are supported by substantial
evidence, where, as here, “[t]he facts surrounding an admission or confession are
undisputed to the extent the interview is tape-recorded,” those facts as well as the
ultimate legal question are “subject to our independent review.” (Linton, supra,
56 Cal.4th at p. 1177.)
       At trial and on appeal, Wall argued that the detectives provided an improper
promise of leniency when they told Wall he was at a crossroads and if he took one
path — i.e., if he told the truth — he could “go on with [his] life” and “be with
[his] wife and child and start fresh.” According to Wall, these statements were
more than “proper exhortations to tell the truth” (People v. Holloway (2004) 33
                                          21
Cal.4th 96, 115) and did not “simply indicate[] a willingness to listen to defendant
and encourage[] him to tell what happened” (People v. Hensley (2014) 59 Cal.4th
788, 812). Instead, Wall contends the detectives’ statements constituted an
implied promise that if he told the truth, he would be granted leniency — he would
“go on” and “start fresh.” (See Linton, supra, 56 Cal.4th at p. 1174 [detective’s
promise that defendant “would not ‘get in trouble for what happened’ ” if he told
the truth “ ‘because . . . that’s water under the bridge’ ” constituted an improper
promise of leniency].)
       The Attorney General argues, however, that any promise of leniency was
not the cause of Wall’s confession. Under the totality of circumstances, and based
on our review of the interview, we agree. Before the detective began his statement
about the “two directions” Wall could go, Wall had already begun to tell the
detectives about the events in the Orens’ home. Wall used almost exactly the
same opening sentence when he began describing the events at the Orens’ house
after the alleged promise of leniency as before: “He kind of pressured me into it”
and “he sort of ah, pressured me into this.”
       Nor did the circumstances of the interrogation or Wall’s personal
characteristics unduly heighten the pressure on Wall to confess. Before the
detectives arrived, Wall was allowed to eat, smoke, make phone calls, and leave
the room. The interrogation was delayed until 10:00 p.m. so the detectives could
travel from San Diego to San Francisco on short notice. (Cf. People v. Dykes
(2009) 46 Cal.4th 731, 753 [confession not involuntary where defendant made to
wait so officers could travel from elsewhere in the state and defendant allowed to
use restroom, eat, and smoke during wait].) Wall was not under arrest at any point
before the interrogation and told the San Diego detectives he had come to the
station voluntarily. The interrogation itself lasted less than two hours, not an
inordinately long period. Although detectives described 23-year-old Wall as
                                          22
“stressed” and “scared,” his answers in the interrogation transcript appear coherent
and deliberate.
       Wall also alleges that the detectives “exploited [Wall’s] expressed fear of
codefendant Rosenquist.” But Wall does not articulate which of the detectives’
statements constituted this exploitation. Nor does our review of the interview
suggest any exploitation of Wall’s fear. Before Wall confessed, the officers told
Wall not to think about Rosenquist, said Rosenquist sounded like a “bullshitter,”
and turned over his picture. At the conclusion of the interview, the detectives told
Wall they would do everything they could to protect Wall and house him
separately from Rosenquist. These statements came after Wall had confessed and
thus were not conditioned on Wall’s cooperation. The attempts to assuage Wall’s
fear did not rely on deception, nor were they attempts to leverage that fear to
extract information. No exploitation is apparent.
       Because the detectives’ promise of leniency was not a cause of Wall’s
confession, Wall’s confession was not involuntary. Therefore, the trial court did
not commit constitutional error in admitting it as aggravating evidence pursuant to
section 190.3, subdivision (a) during the penalty phase of Wall’s trial.

       B.     Exclusion of Conditional Plea Offer as Mitigation
       Wall contends that the trial court prejudicially erred by excluding
mitigating evidence of his early offer to plead guilty in exchange for life
imprisonment without the possibility of parole. We conclude that the trial court
did not abuse its discretion under Evidence Code section 352 and did not commit
constitutional error in doing so.
              1.     Background
       On April 20, 1992, about a month after his arrest, Wall offered through
counsel to plead guilty to all counts, admit all special circumstances and other


                                         23
allegations, and waive his appeal rights in exchange for a sentence of life
imprisonment without the possibility of parole. The district attorney rejected the
offer.
         During the penalty phase, Wall’s counsel sought to introduce Wall’s early
plea offer as mitigating evidence under section 190.3, factor (k). Counsel
explained that Wall offered to plead guilty at an early stage of the proceedings in
order to spare J.D. from having to testify and relive trauma, and to assuage Wall’s
family’s fear that he would be sentenced to death; according to counsel, the offer
was evidence of remorse. Counsel further argued that in light of rule 4.423(b)(3)
of the California Rules of Court (formerly rule 423(b)(3)), which applied to
determinate sentencing pursuant to section 1170, subdivision (b) and explicitly
identified the “voluntar[y] acknowledg[ment of] wrongdoing . . . at an early stage
of the criminal process” as a mitigating factor, an early plea offer should be
considered mitigating in the death penalty context as well.
         The trial court excluded the early plea offer under Evidence Code section
352 on the ground that it would confuse the jury. While noting it could find no
authority on admissibility on this issue, the court expressed concern that if the
early plea offer were admitted, the district attorney’s reasons for rejecting the plea
offer would become relevant and, if offered, would need to be admitted as well.
The court expressed concern that the jury would “second guess” the discretionary
decision of the district attorney to seek the death penalty after learning that Wall
was willing to plead guilty and accept life imprisonment without parole: “The
problem I have, though . . . is that the decision, the charging decision whether or
not to seek the death penalty is left to the district attorney, and it’s not left to the
defense, it’s not left to the lawyers. It’s left strictly to the interest of the chief
prosecuting officer acting in his sound discretion whether or not to seek the death
penalty. [¶] Once they choose to seek the death penalty, I think it’s confusing to
                                            24
the jury because it allows the jury to second guess the working of the district
attorney in seeking the death penalty.” The trial court also worried that evidence
of the earlier offer might open the door to rebuttal by the district attorney of
questionable admissibility; the court explained that the district attorney “shouldn’t
be allowed to get up in front of this jury and say, ladies and gentlemen, the only
reason he [offered to plead guilty] is he wants to avoid the death penalty, he’s been
trying to avoid the death penalty.”
              2.      Analysis
       “A capital sentencing decision must be individualized, and the sentencing
authority must be permitted to consider the defendant’s character.” (People v.
Peoples (2016) 62 Cal.4th 718, 757, citing Lockett v. Ohio (1978) 438 U.S. 586,
604 (Lockett).) “Section 190.3 requires the jury to impose a sentence of life
imprisonment without the possibility of parole if the mitigating factors outweigh
the aggravating factors” (Peoples, at p. 757), and section 190.3, factor (k) makes
admissible “[a]ny other circumstance which extenuates the gravity of the crime”
as part of this penalty determination.
       A trial court’s decision to admit or exclude evidence is reviewed for abuse
of discretion, and it will not be disturbed unless there is a showing that the trial
court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage
of justice. (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.) Evidence Code
section 352 gives the trial court discretion to exclude evidence if “its probative
value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.”
       We cannot conclude that the trial court abused its discretion here. Of
course, a penalty phase jury must make its own independent evaluation as to the
appropriateness of the death penalty; that is what a fair weighing of aggravating
                                          25
and mitigating evidence requires. But that is different from the jury evaluating the
district attorney’s personal perception of the aggravating and mitigating evidence,
or the district attorney’s personal assessment of the jury’s likely verdict. The trial
court was concerned that introducing Wall’s plea offer would result in the latter,
i.e., that introducing the offer would invite the jury to evaluate the district
attorney’s plea bargaining tactics rather than evaluating the offer’s probative value
as mitigating evidence.
       We have acknowledged that evidence concerning a party’s offer or
rejection of a plea can require introduction of tangential rebuttal evidence that will
mislead or confuse the jury. (See People v. Fauber (1992) 2 Cal.4th 792, 857
[holding no abuse of discretion and no violation of constitutional guarantee in the
trial court’s exclusion of the prosecutor’s plea offer and the defendant’s
subsequent rejection because admission would require additional inquiry into the
underlying reasons of the defendant’s refusal, which potentially could confuse and
mislead the jury]; cf. People v. Manning (2008) 165 Cal.App.4th 870, 879–880
[upholding exclusion of defense expert testimony regarding plea deal because “if
defendant’s proffered evidence had been admitted, the prosecutor would surely
have been entitled to introduce rebuttal evidence to put that evidence in context,
including evidence as to the thought processes of the participants in the underlying
case”].) Although it may not invariably be the case that a danger of confusing or
misleading the jury substantially outweighs a plea offer’s probative value, in this
case the trial court did not abuse its discretion in refusing to admit testimony about
Wall’s plea offer.
       Wall claims that the trial court erred in concluding that no legal authority
supported the admission of an early offer to plead guilty as mitigation, citing
People v. (Michael) Williams (1988) 45 Cal.3d 1268 (abrogated on other grounds
by People v. Diaz (2015) 60 Cal.4th 1176) and People v. Ledesma (2006) 39
                                           26
Cal.4th 641. But neither case squarely addressed whether a trial court abuses its
discretion when it excludes an early offer to plead guilty under Evidence Code
section 352. In Williams, we rejected the defendant’s claim that the death penalty
law violates the Eighth Amendment by preventing introduction of his expressed
willingness to plead guilty, since nothing in the death penalty law bars the
admission of such evidence. (Williams, supra, 45 Cal.3d at p. 1332.) The trial
court in this case excluded evidence of a prior plea offer under Evidence Code
section 352, not under the death penalty law at issue in Williams. And in
Ledesma, the trial court permitted a capital defendant to introduce evidence at the
penalty phase that he had attempted to plead guilty and accept life imprisonment
without parole. (Ledesma, at p. 735.) We held that the trial court did not abuse its
discretion in excluding “evidence of the circumstances surrounding the plea
negotiations.” (Ibid.) We did not mention Evidence Code section 352 or address
its application to the admission of evidence of a prior plea offer.
        Wall also claims that admission of a defendant’s early offer to plead guilty
is “fully consistent with the language of the catch-all mitigation provision, section
190.3, factor (k),” and is consistent with California’s sentencing guidelines for
noncapital cases and analogous federal sentencing guidelines. But the trial court
did not exclude Wall’s early offer to plead guilty because it was inadmissible or
irrelevant; rather, the trial court excluded it on the ground that the offer’s probative
value was significantly outweighed by the probability that it would confuse the
jury.
        Finally, Wall argues that the trial court violated his constitutional right to
present mitigating evidence under Lockett, supra, 438 U.S. 586, 604, and its
progeny. Wall is correct that “a State cannot bar ‘the consideration of . . .
evidence if the sentencer could reasonably find that it warrants a sentence less than
death.” [Citation.] [¶] Once this low threshold for relevance is met, the ‘Eighth
                                           27
Amendment requires that the jury be able to consider and give effect to’ a capital
defendant’s mitigating evidence. [Citations.]” (Tennard v. Dretke (2004) 542
U.S. 274, 285.) But nothing in that constitutional rule “limits the traditional
authority of a court to exclude, as irrelevant, evidence not bearing on the
defendant’s character, prior record, or the circumstances of his offense.” (Lockett,
at p. 604, fn. 12.)
       Here, the trial court found that the plea evidence would confuse the jury by
drawing its attention to irrelevant information concerning the circumstances of the
plea offer and the district attorney’s decision to reject it. Such balancing under
Evidence Code section 352 is an essential component of a trial court’s “traditional
authority.” (Lockett, supra, 438 U.S. at p. 604, fn. 12; see People v. Fauber,
supra, 2 Cal.4th at p. 856 [finding no constitutional violation in trial court’s
exclusion of the defendant’s refusal of a plea offer under Evidence Code section
352]; U.S. v. Fell (2d Cir. 2008) 531 F.3d 197, 219–220 [finding no error in
district court’s exclusion of a plea offer as mitigating evidence in part because it
“would authorize a confusing and unproductive inquiry into incomplete plea
negotiations”]; U.S. v. Purkey (8th Cir. 2005) 428 F.3d 738, 756 [Federal Death
Penalty Act contains a “more lenient standard” for the admissibility of mitigating
evidence to comport with constitutional standards, but still “invests the judge with
the authority to exclude probative information during the penalty phase if ‘its
probative value is outweighed by the danger of creating unfair prejudice,
confusing the issues, or misleading the jury.’ [Citation.]”].) Under these
circumstances, we conclude that the exclusion of evidence of Wall’s plea offer did
not violate his constitutional right to present mitigating evidence.
       Moreover, even if the trial court had committed constitutional error, any
error would have been harmless because the jury was aware that Wall had entered
an unconditional guilty plea to all charges except the allegations of personal use of
                                          28
a deadly weapon and the molestation and rape of J.D. The jury was informed that
Wall had entered a plea of guilty on August 24, 1994, to two murders, robbery,
burglary, and four special circumstances; the guilt phase addressed only whether
Wall personally used a knife or metal stake in the commission of these offenses.
In light of the jury’s knowledge that Wall had unconditionally pleaded guilty prior
to trial, there is no reasonable possibility that the jury would have reached a
different penalty verdict had it known that Wall sought a conditional plea of guilty
earlier in the proceedings.

       C.     Alleged Cumulative Error
       We have determined that although the trial court erred under sections 977
and 1043, the error was not prejudicial. Because we have found only a single
error and we have determined it was harmless, there is no prejudice to cumulate.

       D.     California’s Death Penalty Statute
       Wall raises several challenges to California’s death penalty scheme that we
have repeatedly rejected. We decline to revisit our prior holdings, as follows:
       Section 190.2 is not impermissibly broad, and section 190.3, factor (a) does
not result in arbitrary and capricious death judgments. (People v. Jackson (2014)
58 Cal.4th 724, 773; People v. Valdez (2012) 55 Cal.4th 82, 179.)
       We have held that “once the defendant has been convicted of first degree
murder and one or more special circumstances has been found true beyond a
reasonable doubt, death is no more than the prescribed statutory maximum for the
offense,” and therefore Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi)
does not require the facts bearing on the penalty determination to be found by a
jury beyond a reasonable doubt. (People v. Anderson (2001) 25 Cal.4th 543, 589–
590, fn. 14.) We have held that “[t]he federal Constitution does not require the
jury to make written findings unanimously concluding beyond a reasonable doubt


                                          29
that the aggravating factors exist, that they outweigh the factors in mitigation, or
that death is the appropriate penalty.” (People v. Merriman (2014) 60 Cal.4th 1,
106.) We have previously rejected claims that cast the absence of such
requirements in contrast with the requirements for the finding of an enhancement
and determinate sentencing as a violation of the Equal Protection Clause. (People
v. Manriquez (2005) 37 Cal.4th 547, 590.)
        “Choosing between the death penalty and life imprisonment without
possibility of parole is not akin to ‘the usual fact-finding process,’ and therefore
‘instructions associated with the usual fact-finding process — such as burden of
proof — are not necessary.’ ” (People v. Lenart (2004) 32 Cal.4th 1107, 1136.)
Nor do we require “the prosecution to bear the burden of proof or burden of
persuasion at the penalty phase” (People v. Sapp (2003) 31 Cal.4th 240, 317) or
the trial court to instruct jurors that there is a presumption in favor of life (People
v. Arias (1996) 13 Cal.4th 92, 190). “We have consistently held that unanimity
with respect to aggravating factors is not required by statute or as a constitutional
procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749.) In
particular, the jury need not reach a unanimous finding on unadjudicated criminal
activity under factor (b) of section 190.3, so long as the court instructs “ ‘ “that no
juror may consider any alleged other violent crime in aggravation of penalty
unless satisfied beyond a reasonable doubt that the defendant committed it.” ’ ”
(People v. Ward (2005) 36 Cal.4th 186, 222.)
       CALJIC No. 8.88’s use of the phrase “so substantial” is not so vague that it
will lead to arbitrary and capricious sentencing decisions. (People v. Lomax
(2010) 49 Cal.4th 530, 595.) CALJIC No. 8.88 tells the jury that “the death
penalty could be imposed only if the jury found that the aggravating circumstances
outweighed mitigating. There was no need to additionally advise the jury of the
converse (i.e., that if mitigating circumstances outweighed aggravating, then life
                                           30
without parole was the appropriate penalty).” (People v. Duncan (1991) 53 Cal.3d
955, 978.)
       The use of the adjective “extreme” under section 190.3, factor (d), or as
read in CALJIC No. 8.85, in describing mitigating circumstances does not
impermissibly hinder the jury’s meaningful consideration of mitigating factors.
(People v. Rountree (2013) 56 Cal.4th 823, 863.) “The trial court has no
obligation to delete from CALJIC No. 8.85 inapplicable mitigating factors, nor
must it identify which factors are aggravating and which are mitigating.” (People
v. Cook (2006) 39 Cal.4th 566, 618.) The phrase “whether or not” in section
190.3, factors (d)–(h) and (j) does not unconstitutionally suggest that the absence
of a mitigating factor is to be considered as an aggravating circumstance. (People
v. Banks (2014) 59 Cal.4th 1113, 1207–1208, disapproved on another ground in
People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3; Cook, supra, 39 Cal.4th at p. 618
[“CALJIC No. 8.85’s use of the phrase ‘whether or not,’ is not an invitation to
jurors who find ‘a factor not proven’ to then ‘use that factor as a factor favoring
imposition of the death penalty’ ”].)
       We have previously held that “[i]ntercase proportionality review is not
constitutionally required.” (People v. Streeter (2012) 54 Cal.4th 205, 268.) We
have also previously rejected claims that California’s death penalty statute violates
international norms of decency. (People v. Adams (2014) 60 Cal.4th 541, 581–
582; People v. Banks, supra, 59 Cal.4th at p. 1208 [“ ‘[T]he death penalty as
applied in this state is not rendered unconstitutional through operation of
international laws and treaties.’ ”].)
                               IV. RESTITUTION FINE
       Wall argues that we ought to strike or stay the imposition of a $10,000
restitution fine. Wall alleges the fine was illegally imposed in two respects: First,
the trial court failed to consider Wall’s ability to pay, and second, the trial court
                                          31
imposed the fine in violation of Apprendi. We conclude that Wall is correct that
remand for reconsideration of the fine is required, but that Apprendi does not
require that a jury make this determination.
       Wall committed the relevant offenses on March 1, 1992. At that time,
section 1202.4, subdivision (a) mandated the imposition of a restitution fine
“regardless of the defendant’s present ability to pay” (Stats. 1990, ch. 45, § 4,
p. 261), subject to the range identified in Government Code section 13967,
subdivision (a) (Stats. 1991, ch. 657, § 1, p. 3020 [“[I]f the person is convicted of
one or more felony offenses, the court shall impose a separate and additional
restitution fine of not less than one hundred dollars ($100) and not more than ten
thousand dollars ($10,000).”]). In September 1992, the Legislature amended
Government Code section 13967, subdivision (a), noting that imposition of a fine
within the range identified by that statute should be “subject to the defendant’s
ability to pay.” (Stats. 1992, ch. 682, § 4, p. 2922.) This provision was later
repealed, but the restitution provisions in section 1202.4 in effect at the time of
Wall’s sentencing on January 30, 1995 provided that in imposing a restitution fine,
“the court shall consider any relevant factors including, but not limited to, the
defendant’s ability to pay.” (Stats. 1994, ch. 1106, § 3, pp. 6548–6549; § 1202.4,
subd. (d).) Nevertheless, in imposing the maximum $10,000 restitution fine, the
trial court commented: “That will be the — it’s mandatory under Government
Code section 13967. For whatever it’s worth, he will be ordered to pay restitution
in the amount of ten thousand dollars forthwith or as provided in Penal Code
section 2085.5.” The trial court evidently assumed it had no discretion to consider
Wall’s ability to pay and thus failed to properly make a discretionary restitution
determination.
       The Attorney General contends that Wall forfeited his challenge to this
legal error, citing People v. Avila (2009) 46 Cal.4th 680, 729. In that case, we
                                          32
found the defendant’s restitution claim forfeited because when Avila was
sentenced in 1999, “former section 1202.4 contained language regarding a trial
court’s consideration of the defendant’s ability to pay.” (Ibid.; see People v.
Gamache (2010) 48 Cal.4th 347, 409 [finding restitution claim forfeited, since the
relevant statutes at the time of both the offense and sentencing allowed the court to
consider the defendant’s ability to pay, and court was silent as to ability to pay];
People v. Williams (2015) 61 Cal.4th 1244, 1291 [same].) It is true that Wall did
not object to imposition of his restitution fine and that under People v. Scott
(1994) 9 Cal.4th 331 (Scott), a defendant forfeits on appeal any “claims involving
the trial court’s failure to properly make or articulate its discretionary sentencing
choices” in the absence of objection below. (Id. at p. 353; see Avila, at p. 729
[applying Scott’s forfeiture rule]; People v. Smith (2001) 24 Cal.4th 849, 852–854
[reviewing the Scott rule in the context of restitution and parole revocation fines];
In re Sheena K. (2007) 40 Cal.4th 875, 880–889 [reviewing the Scott rule in the
context of a vagueness challenge to a probation condition].)
       But Scott “does not apply to cases in which the sentencing hearing was held
before [the] decision [became] final.” (Scott, supra, 9 Cal.4th at p. 358.) Before
Scott, “the clear weight of authority had broadly held or assumed that errors in the
court’s sentencing choices and statement of reasons could not be waived.” (Id. at
357.) Wall’s sentencing hearing was conducted on January 30, 1995, before Scott
became final on March 14, 1995. Therefore, notwithstanding the forfeiture rule
stated in Scott and applied in Avila, Wall’s claim that the trial court made a legal
error in its decision to impose the maximum restitution fine was not forfeited by
his failure to object at sentencing.
       Because the trial court applied the wrong statute in imposing Wall’s
restitution fine, Wall is entitled to remand for reconsideration of his restitution fine
under section 1202.4, the currently applicable statute. (See People v. Covarrubias
                                          33
(2016) 1 Cal.5th 838, 935; People v. Richardson (2008) 43 Cal.4th 959, 1038;
People v. Vieira (2005) 35 Cal.4th 264, 305–306.)
       Yet that reconsideration need not be undertaken by a jury. Wall argues that
because section 1202.4, subdivision (b) currently provides that the court “shall
impose a separate and additional restitution fine, unless it finds compelling and
extraordinary reasons for not doing so,” the absence or existence of “compelling
and extraordinary circumstances” is a question of fact that potentially increases the
penalty a defendant faces and therefore must be found by a jury under Apprendi,
supra, 530 U.S. 466. Apprendi defines a “sentencing factor” as a “circumstance,
which may be either aggravating or mitigating in character, that supports a specific
sentence within the range authorized by the jury’s finding that the defendant is
guilty of a particular offense,” and distinguishes it from a “sentence
enhancement,” which it defines as “the functional equivalent of an element of a
greater offense than the one covered by the jury’s guilty verdict” that is “an
increase beyond the maximum authorized statutory sentence.” (Apprendi, supra,
530 U.S. at p. 494, fn. 19.) Because the “compelling and extraordinary
circumstances” provision in section 1202.4 is phrased as a possible exemption
from the trial court’s otherwise mandatory duty to impose a restitution fine, the
fine is properly understood as part of the maximum penalty statutorily authorized
by a jury’s finding that the defendant is guilty of a felony.
       Finally, if the Attorney General chooses not to contest the question of
restitution on remand, he should so inform the trial court in writing with notice to
Wall. In that event, the court shall reduce Wall’s restitution fine to $100, the
statutory minimum at the time of his crime, and no hearing will be necessary.
(People v. Covarrubias, supra, 1 Cal.5th at pp. 935–936 [reducing defendant’s
restitution fine to statutory minimum if uncontested by the Attorney General];
People v. Souza (2012) 54 Cal.4th 90, 143 [increased restitution fine from the
                                          34
minimum at the time of the defendant’s crime “constitutes punishment, and
therefore is subject to the proscriptions of the ex post facto clause and other
constitutional provisions”].)




                                          35
                                   CONCLUSION
       We remand to the trial court for reconsideration of the defendant’s
restitution fine. In all other respects, we affirm the judgment.


                                                  LIU, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
LAVIN, J.*




*      Associate Justice of the Court of Appeal, Second Appellate District,
Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution


                                         36
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Wall
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S044693
Date Filed: November 13, 2017
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Bernard E. Revak*

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Andrea G. Asaro,
Deputy State Public Defender, 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, Robin Urbanski and Teresa Torreblanca, Deputy
Attorneys General, for Plaintiff and Respondent.




*Retired judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Andrea G. Asaro
Deputy State Public Defender
1111 Broadway, Suite 1000
Oakland, CA 94607
(510) 267-3300

Teresa Torreblanca
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 645-2279




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