        IN THE SUPREME COURT OF
               CALIFORNIA

                      THE PEOPLE,
                 Plaintiff and Respondent,
                             v.
                SCOTT THOMAS ERSKINE,
                 Defendant and Appellant.

                           S127621

              San Diego County Superior Court
                        SCD161640



                        May 23, 2019

Justice Liu authored the opinion of the court, in which Chief
Justice Cantil-Sakauye and Justices Chin, Corrigan, Cuéllar,
Kruger, and Groban concurred.
                     PEOPLE v. ERSKINE
                            S127621


                 Opinion of the Court by Liu, J.


      Defendant Scott Thomas Erskine was sentenced to death
in 2004 for the first degree murders of Charles Keever and
Jonathan Sellers. This appeal is automatic. (Pen. Code, § 1239,
subd. (b).) We affirm the judgment in its entirety.
                           I. FACTS
      Erskine was charged with two counts of first degree
murder and personal use of a deadly and dangerous weapon in
the March 27, 1993 deaths of Charles Keever and Jonathan
Sellers (referred to by the parties and herein as Charles and
Jonathan). (Pen. Code, §§ 187, subd. (a), former § 12022, subd.
(b).) With respect to Charles, Erskine was charged with the
special circumstances that the murder was committed while
engaged in the commission or attempted commission of the
crimes of performance of a lewd and lascivious act upon a child
under the age of 14 in violation of Penal Code section 288 and
oral copulation in violation of former section 288a. (Pen. Code,
§ 190.2, subd. (a)(17)(E), (F).) With respect to Jonathan,
Erskine was charged with the special circumstances that the
murder was committed while engaged in the commission and
attempted commission of the crime of the performance of a lewd
and lascivious act upon a child under the age of 14 in violation
of section 288. (Pen. Code, § 190.2, subd. (a)(17)(E), (18).) As to
both counts, Erskine was further charged with the special
circumstances that the murder was intentional and involved the


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infliction of torture, and that he has in this proceeding been
convicted of more than one offense of murder in the first or
second degree. (Id., § 190.2, subd. (a)(3), (18).)
       Erskine pleaded not guilty to all allegations, and a jury
trial commenced on August 29, 2003. Erskine did not present
any evidence in defense. The jury found Erskine guilty of both
counts of first degree murder and personal use of a deadly
weapon, and found true each of the charged special
circumstances. The jury deadlocked, however, at the penalty
phase, and the court declared a mistrial. On retrial of the
penalty phase, the second jury returned death verdicts on both
counts. The court imposed a sentence of death on both counts
and further imposed a determinate term of two years, comprised
of a one-year term of enhancement on each count pursuant to
former section 12022, subdivision (b) of the Penal Code, to be
stayed pending execution of the death penalty.
        A. Guilt Phase
      The morning of Saturday, March 27, 1993, nine-year-old
Jonathan and thirteen-year-old Charles set out on a bike ride
from which they never returned. Witnesses described seeing the
two boys that morning at an arcade and pet adoption center, and
at a Rally’s hamburger stand where they purchased lunch. Two
other witnesses spoke briefly with the boys while biking in the
Otay riverbed near a washed out bridge. One of those witnesses
also recalled seeing a man driving a car across the field and
blocking the bike path, which “seemed very unusual.” She
identified a photograph of a blue Volvo used by Erskine at the
time of the murders as similar in color and shape to the one she
saw that day.


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      When the boys failed to return home that evening, their
families began to search the neighborhood. Jonathan’s brother
told their mother about the riverbed trail where they liked to
bike; he did not think to tell her about the “fort” in the riverbed
that the boys would crawl into “like a little cave.” He and his
mother went to the trail but stopped short of the fort. It rained
that night and the following day while people continued to
search for Jonathan and Charles.
      Two days later, Peter Winslow was biking and running on
the path through the Otay riverbed when he stopped to look at
a “camp-like thing” in the bushes. As he looked inside, he saw
two boys, one hanging from a rope by his neck on a tree branch,
one lying on the ground, and both naked from the waist down
save for socks. Both boys appeared deceased.
      Homicide Detective David Ayers described the “fort”
where the bodies were found as an area approximately 10 feet
wide, 12 feet long, and between five and six feet high, comprised
of a trampled down floor covered with crushed tumbleweeds, a
perimeter of tumbleweeds, and a canopy of castor bean plants
that formed a partial roof over the structure. The entrance was
a two-foot opening located approximately 12 feet along a small
path leading from the main bike path.
      Detective Ayers testified that Jonathan was found
wearing a blue and white sweatshirt and socks but otherwise
nude from the waist down. His body was suspended by a branch
approximately three and a half feet above the ground via a rope
tied around the neck, and with his knees and knuckles on the
ground. A second rope was tied around his ankles, and there
was a gag comprised of a towel and tape around his chin. Ayers


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described adhesive marks on his cheeks where the gag had been
attached at some point over his mouth. Ayers also identified a
white cord found lying free at the scene that appeared to have
been previously attached to Jonathan’s wrist.
      Charles was found lying facedown, wearing a hooded
sweatshirt and socks but also otherwise nude from the waist
down. The body had a yellow rope and a white cord around the
neck, similar to those found on Jonathan. Ayers described what
appeared to be dried blood on Charles’s genital area. Unlike the
rope on Jonathan’s neck, which Ayers described as “somewhat
loose,” the rope and cord on Charles’s neck were drawn up tight
and the skin was swollen underneath. Ayers also described tape
residue and adhesive marks on Charles’s cheeks. Underneath
Charles’s head, officers found a pile of “neatly” folded clothing,
including the boys’ shirts, jeans, and shoes.
      Other evidence collected at the crime scene included two
cigarette butts on the path connecting the fort to the main bike
path. The two boys’ bicycles were found chained together and
covered with tumbleweeds approximately 30 feet north of the
fort.
       Dr. John Eisele, the pathologist who reported to the scene
and performed both autopsies, testified that the two boys had
been dead for at least one day and possibly up to two or three
days before the bodies were found. His autopsy of Charles
revealed evidence of premortem strangulation, injury to the
anus consistent with penetration by a foreign object, and
bruising and abrasions on the penis and scrotum. Dr. Eisele
testified that these injuries appeared to have occurred while
Charles was still alive and would have been painful. Dr. Eisele


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concluded that the cause of death for Charles was asphyxia
consistent with ligature strangulations, which he testified could
have taken as long as five minutes.
      The autopsy of Jonathan also revealed evidence of
strangulation. Dr. Eisele described two different ligature marks
on the neck: The first was accompanied by small vertical
scratches consistent with a person trying to pull the ligature off
his neck. The second was much darker and deeper because it
resulted from the force of the top half of the body being
suspended from the ligature from the time of death until the
body was found. Dr. Eisele concluded that the cause of death for
Jonathan was asphyxia consistent with ligature strangulation.
      The police collected sexual assault swabs from both bodies.
An initial analysis in April 1993 revealed a single sperm cell
from a swab of the skin on Jonathan’s scrotum but did not yield
any other material inconsistent with the victims. A subsequent
analysis in 2001 using more advanced differential extraction
revealed sperm samples on the scrotum and anal exterior swab
from Jonathan, and the oral swab from Charles. Profiles of the
sperm samples were transmitted to California’s Department of
Justice for a search against Combined DNA Information
System, which returned a match to a known sample from
Erskine. Further analysis by the San Diego crime lab, and
confirmed by an outside analyst, concluded that Erskine was
very likely the source of the predominant DNA from the sperm
fraction of the oral swab sample from Charles and the epithelial
sample from one of the cigarette butts found at the scene.
    In March of 1993, Erskine was living in San Diego. His
roommate, Lori Behrens, confirmed that Erskine carried a four-


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to five-inch buck knife at that time, smoked, and drove two
different cars, one of which was an older model blue Volvo
consistent with the description of the car observed at the crime
scene the day the boys disappeared. She testified that she and
Erskine had at times visited his mother’s home in Imperial
Beach and a nearby bar — locations that were approximately
two and a half and two miles from the crime scene, respectively.
       Evidence of two other crimes was introduced: the October
1993 sexual assault of Jennifer M. in San Diego and the June
1989 sexual assault and murder of Renee Baker. This evidence
is discussed below.
     Erskine did not offer any evidence in defense at the guilt
phase.
        B. Penalty Phase
            1. Prosecution Evidence
      After the first jury hung at the penalty phase, the
prosecutor presented a second penalty phase jury with the same
evidence regarding the circumstances of the crime as was
presented at the guilt phase. In addition, the prosecutor
presented the following evidence of other criminal activity
involving force or violence and evidence of victim impact.
                a. Criminal Activity Involving Force or
                   Violence
      Erskine’s younger sister, Judy C., testified that on more
than one occasion when she was seven years old and Erskine
was ten, Erskine and two of his friends took Judy C. and her
friends of a similar age to the loft of the barn behind their home
and forced the girls through threats or blackmail to perform oral
copulation. Approximately four years later, when she was 11

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years old, she woke up during the night to find Erskine touching
her breasts and vagina.
      Barbara G. met Erskine when she became friends with his
sister, Judy C., in the fifth grade. In March or April of that year,
Erskine invited her to see a fort he made, which Barbara
described as “like an igloo” built out of foliage, with an entrance
that you had to crawl through. Once inside the fort, Erskine
threatened her with a knife, pulled off her shorts and
underpants, penetrated her vagina and anus with his finger and
then with sticks or twigs, and then forced her to orally copulate
him.
     Randi C. testified that Erskine was her boyfriend when
she was 11 or 12 years old. One day, Erskine asked Randi to
“prove [her] love to him” by having sex. When she said no,
Erskine hit her on the side of her head with a closed hand, hard
enough to make her stagger back.
      Colleen L. testified that in 1978, when she was 12 years
old and Erskine was 15, Erskine was walking her home when
put a knife to her throat and forced her into a drainage ditch.
He forced her to take off their clothes and to orally copulate him;
he sodomized her, again made her orally copulate him, and then
vaginally raped her. Afterward, he walked her home, still
holding his knife to her neck.
      V.M. testified that on the day after Colleen L. was
attacked, she went for a morning jog in the same area. A man
whom she later identified as Erskine tapped her on the back,
pointed a knife at her abdomen, and then pulled her toward the
drainage ditch. She escaped, and Erskine was arrested.



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      Robert M. was 14 years old in June 1980 when Erskine
approached him outside of his school, asking where the restroom
was. As they walked behind the main school building on the
way to the restroom, Erskine became “very angry” and pushed
Robert against the wall. Erskine violently threatened Robert
with sexual assault, slapped his penis, and punched him in the
face “over 20” times. He then sat on top of Robert and choked
him until he passed out. Robert woke up to see Erskine shaking
him and asking if he was all right, “as though he had just found”
Robert. Erskine was arrested at the scene.
      Michael A. was arrested in January 1981 and placed in a
holding cell where he encountered Erskine, whom he described
as “running the cell” and as “the shot caller.” Following a
dispute about purchasing items from the commissary, Erskine
hit Michael in the face, knocking him down. Erskine then
ordered Michael to orally copulate him and two other men, or he
would have all of the men in the cell assault Michael. When
Michael refused, Erskine “went into a frenzy,” slamming
Michael’s head into the concrete. Michael complied with
Erskine’s demand. A guard saw what was happening and
brought Michael out of the cell. Michael identified the
perpetrator as Erskine.
     Deborah Erskine met Erskine in 1988 when he was
working at her brother’s flower and fireworks stand in Palm
Beach, Florida. They began dating and soon married. Their
arguments occasionally became physical, and Erskine hit her.
When Deborah was six months pregnant, Erskine choked her
and kicked her in the stomach. Erskine then chased Deborah
down the street, yelling that he had a gun.



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       Erskine’s younger brother, Douglas, testified about
multiple physical altercations with Erskine as adults. In April
1992, Erskine threatened Douglas with a broken pool cue during
an argument at their mother’s home; Douglas grabbed the pool
cue and beat Erskine “pretty bad.” During the next incident,
Erskine choked Douglas to the point that he passed out and lost
control of his bladder and bowels. Then, in December of 1992,
the two men got into a fight; after Douglas hit Erskine, Erskine
ran outside to his car and took out a rifle, loaded it, and pointed
it at Douglas, saying, “ ‘This is for you, Doug.’ ”
      Phillis Serrano worked with Erskine at a car moving
company in the early 1990s. She and Erskine began dating
during this time, and he moved into her home in January or
February of 1993. On March 11, 1993, she and Erskine had
their first and only physical altercation during which Erskine
pulled the phone out of the wall and then put his hands around
Serrano’s neck, making it difficult for her to breathe. He was
arrested but never charged. Serrano later married Erskine.
                b. Victim Impact Evidence
       Jonathan’s mother, Milene Sellers, described giving
Jonathan a kiss and telling him “bye” when he left with Charles
for their bike ride on March 27, 1993. She described her struggle
to continue taking care of herself and her children after
Jonathan’s death. Jonathan’s twin sister, Jennifer Sellers,
recalled her mother screaming and falling on the floor when the
police came to the house to say they found the bodies. She
testified that she felt alone going through life without her twin
and that every birthday was “like a memorial day for my
brother.”


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      Charles’s mother, Maria Keever, described going down to
the crime scene “for years and years.” She testified that she had
been “consumed” with finding her son’s killer; at some point, she
bought a gun and went down to the crime scene because she
“wanted to die at the same place [her] son died.” She called the
police “every day[,] sometimes twice a day,” for eight years.
Charles’s sister talked about the billboards the family
purchased, her mother’s visits to psychics, and other efforts to
find the perpetrator — efforts that she said “just took over” her
mother’s life. Charles’s older brother was in the military,
stationed in New York, when Charles died. He went home to be
with his family and to bury his brother, but said he would never
come back to live in San Diego, where there are “too many bad
memories.”
             2. Defense Evidence
      Erskine’s mother, Rita Erskine, described his father, Don,
as “sex crazy,” adding, “I hated it, but . . . he said it was my duty
as his wife.” According to Rita, Don would spank her in front of
the children but did not otherwise hit her when the children
were young. Later, Don began punching Rita and throwing her
around in the home, usually after the two of them had been
drinking. Judy C. testified that she saw her father touch her
mother “in a sexual manner” in front of the children “once or
twice” when he had been drinking; he would also make sexual
comments to their mother when drinking. When Judy asked her
mother about it, her mother said, “That’s what you get for
drinking.”
     Douglas denied that Don was ever physically abusive to
him or Erskine as children or that Don ever “beat” their mother.


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But Douglas recounted an incident when he was 15 years old,
during which Don choked Erskine after Erskine intervened in
an argument between Douglas and Don. He further testified
that on three or four occasions, his father punished the three
younger children by linking them up and then “spanking” them
with a belt 12 times each, and that there were times when his
father would hit his mother while she was on the floor.
       When Erskine was five years old, he was hit by a car while
attempting to cross the four-lane Pacific Coast Highway with his
older sister. Hospital records showed that Erskine’s left femur,
pelvis, and several ribs were fractured in the accident; he had
lacerations on his face and elbow; and he had bruising in his
lung and brain tissue. He spent six weeks in the hospital. Rita
testified that Erskine began experiencing “violent headaches”
after the accident, during which he would scream and bang his
head on the wall. He began having sudden temper tantrums,
hitting and pushing his brother with no warning. He started
kindergarten the next fall but had trouble with muscle control
and fine motor skills.
      Dr. James Grisolia, an expert in head trauma, reviewed
Erskine’s hospital records and offered his opinion that Erskine
had suffered a mild to moderate head injury and that any
bleeding in the brain was mild to moderate only. It was
significant to Dr. Grisolia, however, that Erskine sustained this
injury as a child because many of the brain’s areas, including
those relating to emotional reactions and understanding of
others, had not yet developed and connected into the rest of the
brain. He testified that such an injury could result in lasting
dysfunction or ongoing signs of brain damage and could even



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cause someone to become a sociopath, but the effects of head
injuries would express themselves on a “continuum” and could
be present either all of the time or situationally.
      By the time Erskine was 10, psychiatrists had prescribed
Erskine both Haldol and Ritalin because he was “out of control,”
according to Rita. But the medications were causing him to fall
asleep at school, so Rita took him off them after two months.
Around this time, Rita got a phone call reporting that Erskine
and his friends had been taking Judy and other girls into the
barn at the residence and “initiating them, taking off their
clothes.”
      In 1975, at age 12, Erskine was placed in the Green Valley
Ranch youth facility, where he was treated by Dr. Roy Resnikoff,
who observed indications of organic brain dysfunction. Dr.
Resnikoff noted that the family dynamic emphasized hostility
and violence, and that Erskine would provoke the severe
antagonism between his hostile father and “somewhat passive”
mother to play the parents off against each other. Erskine’s
therapy ended abruptly some months later after his father
removed him from the ranch. At that point, Dr. Resnikoff
believed Erskine’s prognosis was poor.
      In May 1976, at age 13, Erskine was referred by the county
mental health division to Southwood Hospital in Chula Vista,
where he was hospitalized for approximately two weeks in a
locked ward. He was treated by Dr. Allan Rabin, who diagnosed
Erskine with dissociative neurosis, organic brain syndrome with
a history of trauma, and borderline psychosis. Erskine was
referred for psychological testing, which showed that Erskine
had low-average intellectual functioning and significant


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impairments in memory. Erskine was diagnosed at that time as
having an impulsive personality and hyperkinesis secondary to
organic brain damage, and was prescribed medication for
hyperactivity, agitation, rage episodes, and mood stabilization.
      Erskine was released from Southwood in June 1976 to his
parents’ custody but then readmitted by court order in July
following another sexual assault. Dr. Rabin resumed his
treatment of Erskine through September 1977 and shared with
Erskine’s defense lawyers at the time his diagnosis of neurotic
tension discharge disorder, with no evidence of psychopathic
personality; he did not indicate any evidence of brain damage or
otherwise attribute Erskine’s behavior to organic impairment.
At the conclusion of his treatment, Dr. Rabin noted that Erskine
was seriously disturbed with impaired judgment, reasoning, and
empathy, and that he required long-term treatment.
      In December 1977, Erskine went to live in New
Hampshire with his aunt, Janet Erskine. Janet told Erskine
that he would be sent back to California for bringing a girl to the
home. Erskine responded by overdosing on Valium and was
hospitalized for a few days before returning to California.
      In April 1978, at age 15 and back in California, Erskine
was arrested and later convicted for sexually assaulting Colleen
L. and V.M., and sent to the California Youth Authority. An
expert on the California Youth Authority described the
conditions at that time to include a high level of violence, an
absence of treatment for sexual predators, and a high overall
level of recidivism for individuals following release. Erskine’s
records showed that he was found eligible for placement in a
unit for the mentally ill, but was never admitted to that unit.


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Upon his release, Erskine was placed on parole and sent to live
in a foster home. After six weeks, he left for a job at a residential
camp; on the way to that job, Erskine was arrested for sexually
assaulting Robert M.
      Following that arrest, Erskine was evaluated for what at
the time was referred to as a mentally disordered sex offender
(MDSO) in relation to his criminal charges for the assault of
Robert M. (The MDSO statutes have since been repealed.) An
expert for the defense concluded that Erskine suffered from very
severe conduct disorder, aggressive type, with evidence of sexual
sadism — a condition which contributed to his predisposition to
eruptive, explosive, aggressive, and violent sexual assaults —
and on that basis offered his opinion that Erskine qualified as
an MDSO who might benefit from a state hospital treatment
program. Two court-appointed psychiatrists from the county
forensic department disagreed, and the trial court in 1981
ultimately concluded Erskine was not an MDSO. At his
sentencing, Rita told the judge, “ ‘Please give my boy some help.
Otherwise, he’s going to kill somebody.’ ” She hoped Erskine
would be sent to a psychiatric hospital. Instead, he was
sentenced to four years in state prison.
      While in custody in the San Diego County Jail and the
Department of Corrections, Erskine was at various times
diagnosed with personality disorder not otherwise specified,
antisocial personality disorder, anxiety, and bipolar affective
disorder and major depression, the latter two with paranoid and
psychotic features, including hearing voices saying that people
were out to get him. While in custody, Erskine was prescribed
medications to reduce his psychotic symptoms, alleviate his



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depression, and help him to cope with anxiety, panic, and
insomnia. He was never hospitalized for these conditions.
     In 2003, an expert on educational and disability issues
reviewed Erskine’s records and met with him at the jail to
measure his learning skills, attention, and memory. She
measured his IQ as 88 and observed that he performed poorly
on an attention test and tests with memory components.
       Dr. Thomas Wegman, a psychologist with a board
certification in neuropsychology, reviewed Erskine’s records and
interviewed him in March 2004 over the course of about eight
hours on two days to perform a neurological assessment. Dr.
Wegman found that Erskine had mildly impaired executive
function with otherwise average intelligence, though he
acknowledged that the facts of the charged crimes required
some level of planning. He also noted that Erskine had total
anosmia (loss of the sense of smell), which is associated with
frontal lobe damage. Dr. Wegman agreed with the diagnosis of
antisocial personality disorder with features of sexual sadism,
which in his view was the result of brain injury as well as a “sick
family environment,” and that these factors combined to
predispose Erskine to sexual predation but did not preclude him
from knowing right from wrong. He noted that Erskine’s
tendency to minimize or make excuses for his behavior was
“characteristic” for someone with antisocial personality
disorder.
      Dr. Judith Becker, a professor of psychology and
psychiatry, met with Erskine in December 2002 and July 2003
to ascertain why he engaged in sexually violent behavior. Dr.
Becker noted that Erskine exhibited several “risk factors,”


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including the head injury he sustained as a child, a
dysfunctional family environment that included his father’s
violence toward Erskine’s mother and Erskine himself, prior
diagnosis of and medication for attention deficit disorder, a
history of running away, and early sexual behavior. Dr. Becker
concluded that Erskine exhibited several mental disorders:
intermittent explosive disorder, paraphilia of sexual sadism,
paraphilia not otherwise specified, and antisocial personality
disorder. She opined that Erskine acted out sexually in part
because his sexual pathology started at an early age and went
untreated, consistent with a lack of real treatment options for
sex offenders in the 1970s. Dr. Becker identified a theme
running through Erskine’s crimes of selecting vulnerable
victims, luring them away from the public, and gaining control
of them using drugs, alcohol, or weapons. She testified that
Erskine would have been sexually aroused by the pain and fear
that he caused to Jonathan and Charles, but would nevertheless
have known that what he was doing was wrong.
      The parties stipulated that Erskine was arrested for the
crimes against Jennifer M. on November 3, 1993, sentenced to
70 years for that crime, and has remained in custody
continuously from that date. The parties further stipulated that
no charges were filed and Erskine was never prosecuted for the
1981 sexual assault of Michael A., the 1992 arrest for possession
of firearms by a felon, the 1992 assault with a firearm on
Douglas, or the 1993 domestic violence incident against Serrano.
The Department of Corrections had no records indicating that
Erskine was written up, prosecuted, or disciplined for any act of
violence, crime, assault, gang affiliation, weapon or drug



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possession or transportation, or any act of aggression or
intimidation.
            3. Rebuttal
       On rebuttal, Erskine’s roommate at the time of the
murders described him as “very smart” and confirmed that she
never saw him act out in frustration or lose his temper with
teachers or fellow students. She confirmed that Erskine
understood general social norms, including right from wrong,
and was able to conform his behavior to those standards even in
stressful situations. A coworker at the time described Erskine
as “controlling” and agreed with the prosecutor that he “liked to
be in charge” and had “a quick wit.” She never observed him to
read social cues incorrectly, act inappropriately with coworkers,
or “lose control.”
      Dr. David Griesemer, a professor of neurology with a
specialty in pediatric neurology, met with Erskine to conduct a
mental status examination, which revealed some difficulty with
memory but no physical impairment on his cranial nerve exam,
asymmetry between his right and left side, visual impairment,
or evidence of spasticity or seizure activity. He found Erskine
to be normal in terms of executive function and concluded that
Erskine did not have any neurologic impairment that would
force certain behavior or make him irresponsible for directing
his behavior.
       Sergeant Holmes returned to the stand on rebuttal to
testify about his March 13, 2001, interview with Erskine. He
described Erskine during that interview as “calm, fairly friendly
and conversant.” The prosecutor then played the tape of the
interview.


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      Dr. Park Dietz reviewed Erskine’s records and testified
that he found four diagnoses proffered by Erskine’s experts to
be supported by evidence: attention deficit hyperactivity
disorder, polysubstance abuse, sexual sadism, and antisocial
personality disorder. He agreed that Erskine had experienced a
number of factors associated with criminality, including
evidence that Erskine had moved often as a child, suffered a
significant head injury, experienced alcohol abuse by his
parents, witnessed his father beat his mother, and experienced
emotional and physical abuse as a child. Dr. Dietz disagreed
with the diagnosis that Erskine suffered from intermittent
explosive disorder and found no evidence that Erskine showed
any symptom of mental disease at the time of his crimes.
Neither sexual sadism nor antisocial personality disorder,
according to Dr. Dietz, would impair an individual’s volitional
control over his or her actions.
                  II. GUILT PHASE ISSUE
           Evidence of Other Crimes
            1. Background
       Before trial, the prosecutor filed a motion in limine to
admit evidence of 14 incidents of criminal activity involving
force or violence, including those described above in the
prosecution evidence on penalty. Over Erskine’s objection, the
trial court admitted evidence of two of these prior incidents —
the sexual assault of Jennifer M. and the rape and murder of
Renee Baker — under Evidence Code sections 1101, subdivision
(b), and 1108 (all undesignated statutory references are to this
code). During the presentation of this evidence, the trial court
admonished the jury:        “Evidence concerning the crimes


                                 18
                       PEOPLE v. ERSKINE
                   Opinion of the Court by Liu, J.



involving Jennifer M[.] and Renee Baker has been admitted.
This evidence, if believed, may not be considered by you to prove
that defendant is a person of bad character.” At the close of the
case, the jurors were instructed with a modified version of
CALJIC No. 2.50 regarding the proper consideration of “other-
crimes” evidence in general and with CALJIC No. 2.50.01
regarding the proper consideration of evidence of other sexual
offenses, as well as a pinpoint instruction regarding the
evidence concerning Jennifer M. and Renee Baker. The court
also instructed the jurors that the prosecution had the burden
to prove prior crimes by a preponderance of the evidence and
defined that standard.
               a. Sexual Assault of Jennifer M.
      In accordance with the parties’ stipulation, the February
1994 sworn testimony of Jennifer M. was read to the jury.
Jennifer testified that, on October 22, 1993, a man she later
identified as Erskine waved her over while she was waiting for
the bus and invited her into his home for a beer. While in the
home, Jennifer observed Erskine snort methamphetamine; she
did as well. Erskine then choked her to the point of passing out
and defecating herself. When she came to, Erskine told her to
remove her clothes, tied her hands behind her back with a yellow
rope, placed duct tape over her mouth, cleaned her off, and
shaved her genitals. He then threatened her with a shotgun and
forced her to engage in repeated oral copulation and vaginal
penetration using both his penis and a vibrator. After the
assault, Erskine gave Jennifer clothes to wear and cooked her a
steak, and then drove her to a meeting with a classmate at the




                                 19
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Hyatt Regency Hotel. She waited five days before calling the
police.
      The detective who interviewed Jennifer M. testified that
she was “emotionally extremely shaken” and appeared to have
been injured, noting hemorrhage in both eyes and bruising.
Erskine was arrested returning to his apartment later that day.
Police seized a shotgun and ammunition from the apartment,
along with yellow rope, duct tape, narcotics, and other items
consistent with Jennifer’s description of the assault. A search
of Erskine’s car, a blue Volvo, yielded black electrical tape, a roll
of adhesive tape, and more yellow rope.
                b. Renee Baker Homicide
      Robin Smith was a patrol officer for the Palm Beach Police
Department on June 23, 1989, when she responded to a
pedestrian who spotted a body — later identified that of Renee
Baker — lying on the ground atop an oyster bed on the
intercoastal waterway. Officer Smith observed a “neat” pile of
clothing with a purse and a necklace placed on top near the body,
which was naked. There were drag marks leading from an area
of bushes through the sand to the location of the body. A
cigarette butt was found approximately nine feet from the
clothing.
      Baker’s autopsy revealed signs of asphyxia, manual
strangulation, and snapped ligaments in the back of the neck
consistent with hyperflexion. Tissue analysis suggested that
the manual injuries to the neck occurred at least an hour before
death and would have required significant force. The cause of
death was determined to be drowning, with blunt neck trauma
as a contributory cause of death. The pathologist explained that


                                  20
                        PEOPLE v. ERSKINE
                    Opinion of the Court by Liu, J.



either Baker was repeatedly assaulted culminating in being
held underwater; or she was left injured at the scene to drown
face down in the tidal current. DNA analysis conducted in 2000
of epithelial cells from the cigarette butt and sperm cells from
an oral swab of Baker were found to match Erskine.
            2. Analysis
      Erskine argues as he did below that the evidence did not
satisfy the criteria for admissibility under either section 1101 or
section 1108 and, moreover, should have been excluded under
section 352 as more prejudicial than probative. Erskine further
argues that the evidence was cumulative and unnecessary, as
evidenced by the prosecutor’s closing arguments referring to
uncontested or inarguable evidence of guilt. Finally, he argues
the error here violated his right to due process and therefore
cannot be regarded as harmless.
       “Evidence Code section 1101, subdivision (a) sets forth the
‘ “strongly entrenched” ’ rule that propensity evidence is not
admissible to prove a defendant's conduct on a specific occasion.”
(People v. Jackson (2016) 1 Cal.5th 269, 299 (Jackson).) “At the
same time, ‘other crimes’ evidence is admissible under Evidence
Code section 1101, subdivision (b) ‘when offered as evidence of a
defendant’s motive, common scheme or plan, preparation,
intent, knowledge, identity, or absence of mistake or accident in
the charged crimes.’ ” (Id. at p. 300.) “In this inquiry, the degree
of similarity of criminal acts is often a key factor, and ‘there
exists a continuum concerning the degree of similarity required
for cross-admissibility, depending upon the purpose for which
introduction of the evidence is sought: “The least degree of
similarity . . . is required in order to prove intent . . . .” By


                                  21
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contrast, a higher degree of similarity is required to prove
common design or plan, and the highest degree of similarity is
required to prove identity.’ ” (Ibid.)
       Section 1108 “carves out an exception to section 1101.”
(People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 823
(Daveggio and Michaud).)          Section 1108, subdivision (a)
provides that “[i]n a criminal action in which the defendant is
accused of a sexual offense, evidence of the defendant’s
commission of another sexual offense or offenses is not made
inadmissible by Section 1101, if the evidence is not inadmissible
pursuant to Section 352.” (See People v. Story (2009) 45 Cal.4th
1282, 1294 [“section 1108 applies . . . when the prosecution
accuses the defendant of first degree felony murder with rape
(or another crime specified in section 1108, subdivision
(d)(1)).”].) Section 352 articulates the general rule that “[t]he
court in its discretion may 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.” (See Daveggio and Michaud, at
p. 823.) “It follows that if evidence satisfies the requirements of
section 1108, including that it is not inadmissible under section
352, then the admission of that evidence does not violate section
1101.” (Ibid.) The trial court’s ruling admitting evidence under
these provisions is reviewed for an abuse of discretion. (Id. at
p. 824; see also id. at p. 827 [admission of prior crimes evidence
pursuant to § 1108 does not violate due process].)
     In this case, Erskine was accused of a sexual offense;
under section 1108, evidence of the other two crimes was



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therefore not inadmissible under section 1101 to show Erskine’s
propensity to commit the sexual offenses upon which the murder
charge and the special circumstance allegations were based, so
long as the evidence was not inadmissible under section 352. It
is not necessary to assess the trial court’s separate finding that
common characteristics between the charged acts and the prior
incidents were probative as to identity, deliberation or
premeditation, and intent to commit the charged crimes and
therefore also admissible under section 1101, subdivision (b).
(See People v. Merriman (2014) 60 Cal.4th 1, 40 (Merriman).)
      As to admissibility under section 352, evidence of past
sexual offenses proffered under section 1108 requires the court
to “undertake[] a careful and specialized inquiry to determine
whether the danger of undue prejudice from the propensity
evidence substantially outweighs its probative value.”
(Merriman, supra, 60 Cal.4th at p. 41.) Among the factors to
consider are the “ ‘nature, relevance, and possible remoteness
[of the evidence], the degree of certainty of its commission and
the likelihood of confusing, misleading, or distracting the jurors
from their main inquiry, its similarity to the charged offense, its
likely prejudicial impact on the jurors, the burden on the
defendant in defending against the uncharged offense, and the
availability of less prejudicial alternatives to its outright
admission, such as admitting some but not all of the defendant’s
other sex offenses.’ ” (Ibid., quoting People v. Falsetta (1999) 21
Ca1.4th 903, 917; see People v. Ewoldt (1994) 7 Cal.4th
380, 404–407 [conducting similar analysis under § 1101,
subd. (b)].)




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       Erskine argues that this evidence was not relevant to any
contested issue before the jury in light of the uncontested
biological evidence establishing that Erskine killed Jonathan
and Charles. But it is the prosecutor’s burden to establish every
element of the crime, regardless of whether the defendant offers
a defense or not (see, e.g., People v. Roldan (2005) 35 Ca1.4th
646, 705–706; People v. Catlin (2001) 26 Ca1.4th 81, 146), and it
would not have been unlikely, in 2003, for one or more jurors to
be leery of convicting for capital crimes based principally on the
scientific DNA evidence in this case. Here, the other-crimes
evidence helped fill in the picture, especially considering the
common characteristics between the incidents, including
evidence of strangulation and oral copulation, the presence of
cigarette butts and neatly stacked clothing near Baker’s body,
and the use of ropes and tape to restrain Jennifer M. The case
for admission was especially strong with respect to the assault
of Jennifer M., for which Erskine had been convicted. (See
Daveggio & Michaud, supra, 4 Cal.5th at p. 825 [“the fact that
defendants had been convicted [of similar crimes] weighed
heavily in favor of admission”].) Moreover, we agree with the
trial court that although the prior incidents involved “egregious
conduct,” the charged crimes “involve[d] far more inflammatory
conduct.” Accordingly, we conclude the trial court did not abuse
its discretion by admitting this evidence.
               III. PENALTY PHASE ISSUES
        A. Alleged Witt Error
     Erskine contends that the trial court violated his right to
an impartial penalty phase jury under the federal and state
Constitutions by erroneously excusing Prospective Juror


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                        PEOPLE v. ERSKINE
                    Opinion of the Court by Liu, J.



No. 154 for cause because of her views on the death penalty.
(See Wainwright v. Witt (1985) 469 U.S. 412, 424 (Witt).) “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
(Cunningham), quoting Witt, at p. 424.)
            1. Background
      On her juror questionnaire, Prospective Juror No. 154
stated that she is “not in favor of the death penalty in general”
but is “fair and honest about following the judges [sic] direction.”
She added, “I believe the [United States] should outlaw the
death penalty as I do not believe ‘an eye for an eye,’ ” while life
imprisonment without the possibility of parole “is the
appropriate direction of punishment society should take.” When
asked for what kinds of crimes, if any, she believed the death
penalty should be imposed, she answered “none”; she stated that
the death penalty is imposed “too often,” explaining, “I do not
believe it should be done.” She answered that life without the
possibility of parole is a worse punishment than death,
explaining that “taking away a persons [sic] freedom” is
“sufficient[] punish[ment]” and that “[i]t is, I feel, important in
some cases to do this without possibility of them ever being
returned to society — But not to take their life.” She answered
“yes” to whether her opposition was so strong that it would
substantially affect her ability to impose the death penalty
regardless of the facts and “yes” to whether she had any moral,
religious, or philosophical opposition to the death penalty so



                                  25
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                    Opinion of the Court by Liu, J.



strong that it would substantially affect her ability to impose the
death penalty regardless of the facts. She explained, “I am not
positive that I will not feel responsible should the decision be
the death penalty. I would need to discuss further (after the
case) w[ith] my Rabbi.” She stated she did not know whether
she could be open-minded about the penalty in this case
explaining: “I thought myself to be open minded however going
through this questionnaire I’m not positive I can be a deciding
vote in taking a person’s life.” She concluded, “I feel as though
I have maybe contradicted myself about my attitude against the
death penalty and my ability to be open and nonjudgmental
about deciding the case. But it’s kind of like my being highly
pro-choice but I couldn’t imagine having an abortion when I
found I was pregnant. Attitudes change upon circumstance and
life experience. I do feel I can follow the laws laid out by the
judge.”
      During voir dire, Prospective Juror No. 154 agreed that
she was open to returning a death verdict if she “was convinced
that that was the appropriate sentence in accordance with the
laws of the state of California” and that she could follow the laws
that the judge would provide, but added, “I don’t know how I
would feel should the case be that this gentleman was, you
know, sentenced to death. I’m not positive that I could handle
that afterwards.” In response to questions from the prosecutor,
she clarified that her moral, religious, or philosophical
opposition to the death penalty would affect how she “would feel
personally after” the verdict, but that it would not substantially
affect how she would judge or view this case. But she confirmed
her response on the questionnaire that she felt so strongly
against the death penalty that it would substantially affect her

                                  26
                        PEOPLE v. ERSKINE
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ability to vote for the death penalty no matter what evidence
was presented, although she said this response reflected “the
emotional state, in consideration, that I was in at that time . . .
having not considered it in the past.” She also confirmed she
still felt “I’m not positive I can be a deciding vote in taking a
person’s life,” as stated on her questionnaire.
      The prosecutor challenged Prospective Juror No. 154 for
cause. The trial court offered a tentative view based on its
“observations and reading the questionnaire” that the juror was
not death qualified.        The prosecutor argued that her
questionnaire as well as her responses on voir dire indicated
that “her feelings on the death penalty would substantially
affect her ability to return a death verdict.” The prosecutor
explained, “The fact that she wants to intellectualize that she
would realistically consider both penalties is not the standard.
The standard is, would her opposition to the death penalty
substantially affect her decisionmaking process? She has
repeatedly said, yes, it would. Let’s take this juror at her word.”
      The trial court found that Prospective Juror No. 154 was
not qualified to be a juror, citing her questionnaire responses
“that she feels so strongly against the death penalty that it
would substantially affect her ability to vote for the death
penalty, no matter what evidence was presented.” The trial
court added, “As a matter of fact, this was one of my ones that I
had checked off after reading the questionnaires. So I believe
that she is unable to vote for death.”
            2. Analysis
     As an initial matter, we agree with Erskine that the
prosecutor was not correct in stating that “[t]he standard is,


                                  27
                       PEOPLE v. ERSKINE
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would her opposition to the death penalty substantially affect
her decision-making process?” A juror is permitted to consider
the aggravating and mitigating evidence in light of his or her
own views regarding punishment; the appropriate question for
the court is whether the juror’s 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.”
(Cunningham, supra, 25 Cal.4th at p. 975, quoting Witt, supra,
469 U.S. at p. 424.)
      “The proper standard for determining when a prospective
juror may be excluded for cause because of his or her views on
capital punishment” “does not require that a juror’s bias be
proved with ‘unmistakable clarity.’ ” (Witt, supra, 469 U.S. at
p. 424.) Many prospective jurors have never been called upon to
publicly articulate their views regarding the death penalty, and
Prospective Juror No. 154 acknowledged that whether she could
vote for the death penalty in a criminal trial was not a question
she had considered in the past. In this case, we find apt the
high court’s observation that “many veniremen simply cannot be
asked enough questions to reach the point where their bias has
been made ‘unmistakably clear’; these veniremen may not know
how they will react when faced with imposing the death
sentence, or may be unable to articulate, or may wish to hide
their true feelings.” (Id. at pp. 424–425.) Even when the record
contains equivocal or ambiguous responses, “there will be
situations where the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully
and impartially apply the law.” (Id. at p. 425–426; see People v.
Lynch (2010) 50 Cal.4th 693, 733 [trial court’s assessment of



                                 28
                        PEOPLE v. ERSKINE
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juror’s state of mind in the event of conflicting or equivocal
responses is binding on appeal].)
       Here, the trial court was attentive to Prospective Juror
No. 154’s questionnaire responses, and the inconsistencies in
those responses were not resolved through voir dire, despite
efforts by defense counsel and the prosecutor. For example, the
juror stated on voir dire that she was open to imposing the death
penalty if appropriate under the law as provided by the court.
But she also confirmed her questionnaire answer that she was
“not positive [she] can be a deciding vote in taking a person’s
life.” The trial court, based on its “observations and reading the
questionnaire,” was left with the definite impression that
Prospective Juror No. 154 was “unable to vote for death.”
Although it was not necessary for the court to find the juror
“unable” to vote for death in order to satisfy the Witt inquiry,
such a finding is nevertheless a sufficient basis to excuse the
juror for cause. We have no basis for second-guessing the trial
court’s conclusion in the face of Prospective Juror No. 154’s
equivocal answers.
         B. Constitutionality of Penalty Phase Retrial
            Following a Hung Jury
      Erskine argues, as general matter, that penalty retrial
following a hung jury violates his rights to a fair jury trial,
reliable penalty determinations, freedom from cruel and
unusual punishment, due process and equal protection, as
guaranteed under the federal and state Constitutions. We have
consistently rejected this claim. (See, e.g., People v. Reed (2018)
4 Cal.5th 989, 1016.) Erskine notes that the first set of jurors
deliberated for four days on the issue of penalty before declaring



                                  29
                       PEOPLE v. ERSKINE
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they were hopelessly deadlocked, while the second jury required
just three hours of deliberation to return a death verdict. But
he does not explain how this affects our analysis or offer any
other reason to revisit our precedent.
        C. Empirical Evidence Regarding Application of
           the Death Penalty and Alternative Remedies
            1. Background
      Erskine moved before trial to declare the death penalty
unconstitutional in practice, citing to several social science
studies purporting to show that capital jurors in various states
do not follow the constitutional guidelines established in
Furman v. Georgia (1972) 408 U.S. 238 and its progeny. In
response to the prosecution’s opposition to the motion, Erskine
proposed two alternative remedies if his motion were denied: (1)
sequestered voir dire per Hovey v. Superior Court (1980) 28
Cal.3d 1; or (2) asking prospective jurors whether they believed
death to be the only appropriate punishment for certain crimes.
The trial court denied the request for sequestered voir dire,
denied the specific written questions, and deferred ruling on the
motion itself until after the jury reached a verdict.
      After the penalty phase retrial and verdict, the trial court
held a multiday hearing regarding the motion, including three
days of testimony from Dr. William Bowers of the Capital Jury
Project. Following the hearing and argument, the trial court
denied Erskine’s motion to declare the death penalty
unconstitutional in general or as applied in his case. The trial
court explained: “A lot of the study doesn’t consider, if a juror
has feelings or thoughts on a subject, whether those thoughts or
feelings may be set aside and whether a juror may be able to


                                 30
                        PEOPLE v. ERSKINE
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follow jury instructions. [¶] Throughout our courts — both the
U.S. Supreme Court and the California Supreme Court, the
Ninth Circuit — there always is the crucial assumption
underlying our system that jurors understand and faithfully
follow court instructions. [¶] I don’t believe the evidence that
was produced in support of defendant’s motion rebuts that
presumption in this case. [¶] There was a time lag from the
time decisions were made by the jurors and the time they were
interviewed. . . . The questioning of the Capital Jury Project, of
course, doesn’t . . . allow the jurors to refer to . . . [their]
instructions, [which were there] in the jury room with them to
refer to during their deliberations. . . . [I]t seems to me that, in
many of these cases, before we can come to broad, sweeping
conclusions, I think we’ve got to go back and look at fact-specific
cases and fact-specific jurisdictions. And I think there is some
difficulty in lumping in the practices and procedures [in
different states] and different wording of statutes in coming to
broad, sweeping conclusions. . . .        And for those reasons,
including the fact that I think the court is bound by precedent,
the defendant’s motion is denied.”
            2. Analysis
      This court has rejected similar empirical evidence, albeit
in cases where the evidence was not placed in the trial record or
subject to cross-examination. (See, e.g., People v. Ervine (2009)
47 Cal.4th 745, 798 [pattern instruction regarding life without
the possibility of parole], citing People v. Lindberg (2008) 45
Cal.4th 1, 53; People v. Abilez (2007) 41 Cal.4th 472, 527–528;
People v. Boyer (2006) 38 Cal.4th 412, 487.) For many of the
reasons cited by the trial court, Erskine’s evidence does not



                                  31
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rebut the presumption that jurors are presumed to understand
and accept the court’s instructions. (People v. Mickey (1991) 54
Cal.3d 612, 689, fn.17.) And, with the exceptions discussed
below, Erskine does not challenge the sufficiency of the
instructions in this case. Nor does Erskine offer any evidence
that jurors in this instance failed to follow the law as set forth
in the court’s instructions.
      In the alternative, Erskine argues the trial court erred by
denying two proposed remedies: (1) individual, sequestered voir
dire; or (2) questioning prospective jurors about whether they
believed that death was the only appropriate punishment for
specific types of crimes. The first argument has been rejected
by this court. (See People v. Lewis (2008) 43 Cal.4th 415, 493–
494, disapproved on another ground in People v. Black (2014) 58
Cal.4th 912, 919.) As to the second, the questionnaire in this
case elicited similar information (for example, asking jurors,
“For what kinds of crimes, if any, do you believe the death
penalty should be imposed?” and “Do you feel so strongly in favor
of the death penalty that it would substantially affect your
ability to vote for life imprisonment without possibility of parole,
no matter what evidence was present?”). Erskine does not point
to any instances in which the court precluded him from asking
such a question directly on voir dire. We therefore reject this
claim.
         D. Error To Instruct Jury To Reach a Penalty
            Verdict “Regardless of the Consequences”
      The trial court’s preliminary instructions to the jury at the
second penalty phase trial included CALJIC No. 1.00, which
instructs the jurors on the respective roles of the judge and jury



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and concludes with the following admonition, to which Erskine
objects: “Both the People and a defendant have a right to expect
that you will conscientiously consider and weigh the evidence,
apply the law, and reach a just verdict regardless of the
consequences.” (Italics added.) We have repeatedly explained
that this instruction should not be given at the penalty phase
because the “ ‘consequences’ ” at the penalty phase — the choice
between death and life imprisonment without the possibility of
parole — “are precisely the issue that the jury must decide.”
(People v. Brown (1985) 40 Cal.3d 512, 537, fn. 7, revd. on other
grounds sub nom. California v. Brown (1987) 479 U.S. 538; see
also People v. Kipp (1998) 18 Cal.4th 349, 379 (Kipp) [same].)
The Attorney General concedes the instruction was given in
error and that the issue is cognizable on appeal even though
Erskine did not object at the time, but argues the error was
harmless as the instructions as a whole adequately conveyed the
appropriate scope of the jurors’ duties.
      “[W]e have generally declined to find prejudice when the
instruction is viewed as part of the entire charge, reasoning that
the jury is almost certain to understand ‘that it was entitled to
disregard only those “consequences” not constitutionally
relevant to its sentencing decision, and that it bore the ultimate
responsibility for choosing between death and life
imprisonment without parole based on the particular
circumstances of the case.’ ” (Kipp, supra, 18 Cal.4th at pp. 379–
380.) Erskine argues the error was not harmless in this instance
because the prosecutor “indoctrinated” the jurors repeatedly
from voir dire through closing argument “with the incorrect
notion that they were required by law to impose the death
penalty if they found that aggravating factors outweighed

                                 33
                        PEOPLE v. ERSKINE
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mitigating factors.” But the jurors were correctly instructed as
to the proper weighing of aggravating and mitigating factors
and that “[i]f anything concerning the law said by the attorneys
in their arguments or at any other time during the trial conflicts
with my instructions on the law, you must follow my
instructions.” Erskine does not independently argue that the
prosecutor’s comments rose to the level of misconduct; in any
event, “[W]e presume the jury understood and followed the
court’s instructions.” (Jackson, supra, 1 Cal.5th at p. 352.)
        E. Miscellaneous Challenges to the Death
           Penalty
      Erskine raises a number of challenges to the
constitutionality of California’s death penalty statute that we
have consistently rejected. Erskine provides no persuasive
reason to revisit the following precedent:
       We have previously held that Penal Code section 190.2
“ ‘ “adequately narrows the class of murderers subject to the
death penalty” ’ ” and thus does not violate the Eighth
Amendment to the federal Constitution. (People v. Masters
(2016) 62 Cal.4th 1019, 1077 (Masters); see also People v.
Cunningham (2015) 61 Cal.4th 609, 671; People v. Ramos (2004)
34 Cal.4th 494, 532–533.)
      We have held that neither the Eighth Amendment nor the
due process or equal protection guarantee of the federal or state
Constitution precludes imposition of a death sentence against
an individual with intellectual impairments short of intellectual
disability or insanity. (People v. Boyce (2014) 59 Cal.4th 672,
721–723.)




                                  34
                       PEOPLE v. ERSKINE
                   Opinion of the Court by Liu, J.



      “ ‘The alleged inconsistency between regular imposition of
the death penalty and international norms of human decency
does not render that penalty cruel and unusual punishment
under the Eighth Amendment [citation]; nor does “regular”
imposition of the death penalty violate the Eighth Amendment
on the ground that “ ‘[i]nternational law is a part of our law.’ ”
(Masters, supra, 62 Cal.4th at pp. 1077–1078, quoting People v.
Lee (2011) 51 Cal.4th 620, 654.)
      Both this court and the high court have held that the
current application of Penal Code section 190.3, factor (a), is
constitutional. (Tuilaepa v. California (1994) 512 U.S. 967, 976;
People v. Johnson (2016) 62 Cal.4th 600, 655; People v. Rountree
(2013) 56 Cal.4th 823, 860.)
      “ ‘Nothing in the federal Constitution requires the penalty
phase jury to make written findings of the factors it finds in
aggravation and mitigation [or to] agree unanimously that a
particular aggravating circumstance exists.’ ”         (People v.
Williams (2013) 58 Cal.4th 197, 295.) Nor is the death penalty
statute unconstitutional for not requiring “findings beyond a
reasonable doubt that an aggravating circumstance (other than
Pen. Code, § 190.3, factor (b) or (c) evidence) has been proved,
that the aggravating factors outweighed the mitigating factors,
or that death is the appropriate sentence.” (People v. Rangel
(2016) 62 Cal.4th 1192, 1235.)
      “Neither intercase proportionality nor disparate sentence
review is constitutionally compelled.” (Jackson, supra, 1 Cal.5th
at p. 373, citing People v. Banks (2014) 59 Cal.4th 1113, 1207;
People v. Eubanks (2011) 53 Cal.4th 110, 154.) “ ‘Moreover,
“capital and noncapital defendants are not similarly situated


                                 35
                        PEOPLE v. ERSKINE
                    Opinion of the Court by Liu, J.



and therefore may be treated differently without violating” a
defendant’s right to equal protection of the laws, due process of
law, or freedom from cruel and unusual punishment.’ ” (People
v. Gomez (2018) 6 Cal.5th 243, 316 [240 Cal.Rptr.3d 315, 381].)
      “ ‘The jury may properly consider evidence of
unadjudicated criminal activity under [Penal Code] section
190.3, factor (b) (People v. Whisenhunt [(2008)] 44 Cal.4th [174,]
228), [and] jury unanimity regarding such conduct is not
required [citation].’ (People v. Lee (2011) 51 Cal.4th 620, 653).”
(People v. Powell (2018) 6 Cal.5th 136, 193 (Powell).)
       “ ‘ “The use of the words ‘ “extreme” ’ in [Penal Code]
section 190.3, factors (d) and (g), and ‘ “substantial” ’ in factor
(g), does not act as a barrier to the consideration of mitigating
evidence in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments.” [Citation.]’ (People v. Cage (2015) 62 Cal.4th
256, 296 . . . .)” (Powell, supra, 6 Cal.5th at p. 194.)
      “ ‘ “ ‘ “ ‘[T]he statutory instruction to the jury to consider
“whether or not” certain mitigating factors were present did not
impermissibly invite the jury to aggravate the sentence upon the
basis of nonexistent or irrational aggravating factors.’ ” ’ ”
(People v. Edwards (2013) 57 Cal.4th 658, 766; accord, People v.
Linton [2013] 56 Cal.4th [1146,] 1216.)              “There is no
constitutional requirement that the jury be instructed regarding
which of the statutory factors in [Penal Code] section 190.3 are
aggravating, which are mitigating, and which could be either
aggravating or mitigating.” (People v. Merriman[, supra,] 60
Cal.4th [at pp.] 106–107.)’ ” (Powell, supra, 6 Cal.5th at p. 194.)
Nor was the trial court required to delete inapplicable factors




                                  36
                      PEOPLE v. ERSKINE
                  Opinion of the Court by Liu, J.



from CALJIC No. 8.85. (People v. Watson (2008) 43 Cal.4th 652,
701.)
                    IV. CONCLUSION
     We affirm the judgment in its entirety.


                                            LIU, J.


We Concur:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




                                37
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Erskine
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S127621
Date Filed: May 23, 2019
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: Kenneth K. So

__________________________________________________________________________________

Counsel:

Kimberly J. Grove, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens and Robin Urbanksi, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kimberly J. Grove
P.O. Box 425
Ligonier, PA 15658
(724) 238-3497

Robin Urbanksi
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92101
(619) 738-9115
