Filed 5/7/13 P. v Colver CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                      (El Dorado)
                                                            ----



THE PEOPLE,                                                                                  C068989

                   Plaintiff and Respondent,                                   (Super. Ct. No. P09CRF0273)

         v.

STEVEN PAUL COLVER,

                   Defendant and Appellant.




         Police found Joanne Witt (Joanne) dead in her El Dorado Hills home with 20 knife
wounds to her body. Joanne‟s 14-year-old daughter, Tylar Witt (Tylar), and Tylar‟s 19-
year-old boyfriend, defendant Steven Paul Colver, were charged with Joanne‟s murder.
Tylar pled guilty to second degree murder in exchange for her subsequent testimony at
defendant‟s trial for first degree murder (premeditation and lying in wait) with two
special circumstances (lying in wait and killing a witness to a crime, i.e, sex with a
minor). Following the murder trial, a jury found defendant guilty as charged.
         On appeal from defendant‟s resulting sentence of life in prison without the
possibility of parole, defendant raises seven contentions dealing with the evidence and
instructions. Finding no merit in these contentions, we affirm.


                                                             1
                   FACTUAL AND PROCEDURAL BACKGROUND
                                             A
                                 The Prosecution’s Case
       Defendant and Tylar were introduced by friends in December 2008 and started
dating two months later. Thereafter, they began having sex regularly. Tylar lied to
Joanne about their relationship, claiming it was like brother and sister. At Tylar‟s
prodding, Joanne agreed to take defendant in as a boarder in spring 2009.
       On May 14, 2009, upon seeing Tylar‟s bedroom door open, Joanne knocked on
defendant‟s bedroom door. After a while, defendant appeared “half clothed.” Tylar was
in the closet, naked. Joanne told defendant to move out, and she told Tylar she would not
press charges against defendant if he stayed away from Tylar. Defendant and Tylar
thought that defendant could move out and Tylar could run away, and the two could
eventually reunite. The next day, defendant moved out, telling Joanne, “„I‟m lucky I‟m
not in jail right now.‟”
       On May 17, 2009, Joanne called the El Dorado Sheriff‟s Department to report
Tylar missing. At the house, Joanne told a sheriff‟s deputy that her 14-year-old daughter
was possibly having sex with her 19-year-old boyfriend. Tylar ended up calling the
house when the deputy sheriff was there, and Tylar said she was at a friend‟s house.
Sheriff‟s deputies picked up Tylar, who denied the sexual relationship, and they brought
her home. The El Dorado Sheriff‟s Department opened an investigation into defendant‟s
alleged unlawful sex with a minor.
       On June 10, 2009, a deputy sheriff returned to the house and told Joanne that Tylar
was still denying the sexual relationship. Joanne turned over Tylar‟s journal that detailed
Tylar‟s sexual relationship with defendant. It was booked into evidence under a
“statutory rape” investigation that had been opened.
       On Thursday, June 11, 2009, Joanne told Tylar she had turned over the journal and
a towel that was on defendant‟s bed. When Joanne left the house, a panicked Tylar called

                                             2
defendant at Rubio‟s restaurant where he worked and told him what Joanne had done.
They were certain he was going to be arrested. Defendant came to the house a short time
later. They talked about what to do, recalling an earlier conversation they had had about
committing suicide together, although defendant said that was a last resort. According to
Tylar, they finally decided they would run away before Saturday (which is when they
thought defendant would be arrested) and commit suicide together the following Monday
in San Francisco. There was one “hitch,” though. They would have to kill Joanne on
Friday night because she would notice them missing. Tylar said they could not take a
knife from the house, so defendant said he would get the knife. He had his own knives
and blades and had access to knives at work as well.
       When Joanne came home, she apologized to Tylar for invading her privacy. Tylar
played video games until 10 p.m. or 10:30 p.m. when she went upstairs to go to bed. She
noticed Joanne was asleep (for the time being), but the television was still on, meaning
Joanne had been drinking. Tylar called defendant to vent about her mother being drunk
again and suggested they kill her that night because it would be easier. They decided
defendant would kill Joanne when Tylar was sure she was sound asleep. When defendant
got off work, he parked his car in an elementary school parking lot next to the house.
Defendant was at the parking lot from 10:59 p.m. to 11:56 p.m., which is when defendant
received the last cell phone call from Tylar at that location. Tylar told him, “ „She‟s
finally asleep. You can come over now.‟ ”
       Defendant walked to the house, so the gated community in which Joanne lived
would not register his car‟s entry. Tylar met defendant outside the house, where he
showed her a knife he had gotten from his work that was wrapped in a Rubio‟s plastic
bag. They went inside, and Tylar grabbed a knife from the knife block in the kitchen.
Tylar led defendant upstairs to Joanne‟s bedroom. Defendant went inside the room, and
Tylar saw him “practicing” with the knife. She heard rustling, indicating Joanne had
awakened. Tylar, with her knife in hand, turned to go into the room, but she “couldn‟t do

                                             3
it.” She heard Joanne telling defendant “to stop.” Tylar put her knife on some cabinets
right outside Joanne‟s door, sat against the door, covered her ears with her hands, closed
her eyes, and hummed.
       Defendant came out of the room holding a knife. He had blood on his pant leg and
a teardrop of blood by his eye. Tylar went in Joanne‟s room, closed the windows and
blinds, and turned on the air conditioner. Defendant and Tylar walked to his car and
drove to his father‟s house, where defendant burned his clothes in the fireplace.
       The next day, June 12, 2009, defendant and Tylar went to the house of their best
friend, Matthew Widman. They told him they were running away to San Francisco to
commit suicide. Later that evening, defendant told Widman he had stabbed Joanne in the
stomach and slit her throat. When Widman said he wanted proof, defendant got out a
bloody butcher knife from his car. After defendant and Tylar said goodbye to Widman,
defendant threw the knife down an outdoor sewer drain. The knife was never found.
       On the morning of June 13, 2009, Widman met up with a mutual friend of all of
theirs, Matthew Bogert. Widman told Bogert defendant confessed to killing Joanne.
Bogert called defendant on the phone, and defendant confessed again. Bogert recalled
that defendant had sent him a text the afternoon before Joanne was murdered, blaming
Joanne for “driving [him] into the ground.” Defendant and Joanne had “made an
agreement that if [he] would leave right then and there and remove [him]self from their
lives, then she would not press charges or anything and let the encounter die.” But then
“[s]he started all of this hell because she got too fucking drunk one night and called the
cops . . . [¶] Joanne was the one continuing to try to destroy [his] life, whether [he]
w[as] to stay with Tylar or not.”
       The night of June 13, 2009, defendant and Tylar drove to San Francisco. Tylar
wrote a story called, “„The Killer and [H]is Raven,‟” and they both wrote goodbye letters
to their friends, which they mailed. The raven story documented the love affair between
a 14-year-old girl and a 19-year-old man, the latter who killed the girl‟s mother when the

                                             4
mother turned over the girl‟s diary to police and shattered their dreams. In a letter
defendant wrote to “whom it may concern,” defendant stated the test of being “ „truly in
love‟ ” was “taking the life of another to be with the one you love.”
       On Sunday, June 14, 2009, around midnight, defendant and Tylar ate rat poison
mixed with cake and milk, but the concoction did not kill them.
       On June 15, 2009, Joanne was reported missing by her supervisor. Police went to
Joanne‟s house and found her dead. There were defensive wounds on her hands and
fingers. The fatal wound was a “very large gaping” sharp force injury to the neck. She
also had stab wounds on the middle of her chest. From the stab wounds, the most the
forensic pathologist could say was that the weapon was “likely a sharp-force object, a
knife, and that . . . it [wa]s probably not a serrated knife.” According to the crime scene
investigator, some of the bloody impressions on the bed were consistent with a large
kitchen knife, butcher‟s knife, or chef‟s knife. Fingernail scrapings from Joanne‟s right
and left hands contained male DNA as did samples taken from Joanne‟s left knee. There
was no female DNA foreign to Joanne found on samples taken from her body.
       On Wednesday, June 17, 2009, defendant and Tylar were spotted by a South San
Francisco police officer and were arrested.
                                              B
                                        The Defense
       Defendant testified. On the afternoon before Joanne was murdered, defendant
visited Tylar at her house. She suggested they commit suicide because police had her
diary and could arrest and imprison him. They did not talk about killing Joanne. He
returned to work at 3 p.m. and left at 10:15 p.m. All the work knives were accounted for.
At 10:30 p.m., Tylar called him to come over to her house, upset that Joanne had broken
her promise not to get drunk again. He decided not to rush over because the police had
her diary that exposed the nature of their relationship. Instead, he drove to the school and
waited for Tylar to call him telling him Joanne was really asleep. Around midnight,

                                              5
Tylar called defendant in a frantic state and eventually told him to come over. Tylar met
him outside with a kitchen knife in her hand and a red stain on her leg. She told
defendant, “ „I did it. I finally did it. My mom is gone forever.‟ ” Defendant went
upstairs and nudged Joanne‟s leg to confirm she was dead. At Tylar‟s direction, they
burned their clothes. Defendant confessed to killing Joanne because he made a promise
to protect Tylar. Although they planned on killing themselves on a Monday, the day after
the killing was Friday, and “[a] lot can happen in three days.”
       In addition to his own testimony, defendant provided the testimony of seven
character witnesses who attested that he was not violent or aggressive. Included among
those witnesses were Terrance Litton, who was the manager at Rubio‟s, and Dylan
Heimbruch, an employee at Rubio‟s, both of whom did not notice any missing Rubio‟s
knives around the time of the murder.
                                      DISCUSSION
                                             I
         Any Error In Excluding Testimony From The Defense’s Expert Witness
           Regarding Defendant’s Nonviolent Character Was Not Prejudicial
       The trial court granted the People‟s in limine motion to exclude the testimony of
Dr. Bruce Ebert, who interviewed defendant and conducted a number of personality tests
on him. Dr. Ebert concluded he “d[id] not believe [defendant] has the typical
characteristics of an individual who would commit a homicide.” The court ruled the
testimony was inadmissible because it was propensity evidence.
       On appeal, defendant relies on People v. Guerra (2006) 37 Cal.4th 1067, 1118-
1119, to argue that propensity evidence such as Dr. Ebert‟s was admissible and its




                                             6
exclusion here was prejudicial. Following the analysis in Guerra, we conclude that any
error in excluding Dr. Ebert‟s proposed testimony was nonprejudicial.1
       In Guerra, the defendant sought to present expert testimony from one Dr. Jose La
Calle “that [the] defendant was incapable of committing a violent act under normal
circumstances. Counsel offered to prove that Dr. La Calle would testify that based on an
interview of defendant and results from a series of tests given to him, he formed the
opinion that [the] defendant has a passive personality, is nonviolent, and is incapable
„under normal circumstances‟ of committing a violent act resulting in a homicide.”
(People v. Guerra, supra, 37 Cal.4th at p. 1118.) “The trial court refused to hear Dr. La
Calle‟s testimony and stated the evidence would be admissible only if he was „100
percent certain‟ that [the] defendant would not commit a violent act under any
circumstances.” (Ibid.) The California Supreme Court disagreed. It reasoned as follows:
“[a] defendant may introduce opinion evidence of his or her character to show a
nondisposition to commit an offense” and “conclude[d] that the trial court applied an
incorrect standard by requiring Dr. La Calle to be „100 percent certain‟ that [the]
defendant would not commit a violent act under any circumstances before the proffered
testimony could be admitted. Given an opportunity, the expert might have testified (or
counsel might have expanded the offer of proof to state) that the facts of this case fell
within his definition of normal circumstances. Any error in excluding Dr. La Calle‟s
proposed testimony, however, was nonprejudicial. The evidence of guilt was strong, and
the proposed testimony would have opened the door for rebuttal with the evidence of
[the] defendant‟s prior assault . . . , which the prosecution introduced at the penalty
phase.” (Id. at pp. 1118-1119.)




1      Curiously, the People do not address Guerra in their brief.

                                              7
       Here, similar to Guerra, any error in excluding Dr. Ebert‟s proposed testimony
was not prejudicial. Dr. Ebert‟s testimony would have added little, given that defendant
had presented seven witnesses who had known defendant for years through work and/or
school and had never seen him be violent or aggressive. These witnesses included the
following four work colleagues: Terrance Litton, who was the manager at Rubio‟s, who
had known defendant for two years; Dylan Heimbruch, who had known defendant for
almost five years, both through school and work at Rubio‟s; Scott Spikes, who worked
with defendant at Rubio‟s and had known him for two years; and Matthew Bogert, who
had known defendant since their freshman year in high school and had worked with him.
They also included the following three school classmates: Brent Harmon, who had
known defendant for three years while taking college classes together and hanging out;
Matthew Widman, who had been classmates with defendant since their sophomore year
of high school and had also dated him; and Courtney Epperson, who had known
defendant for six years through school.
       Given this evidence, we also reject defendant‟s constitutional claims. (See People
v. Guerra, 37 Cal.4th at p. 1119 [for the same reasons the court rejected the state law
claims as being prejudicial, it rejected the federal claims as being prejudicial].)
                                              II
     The Court Did Not Err In Admitting Evidence That Defendant Collected Knives
       Defendant contends the evidence that he collected knives was irrelevant because
it: (1) violated California Supreme Court precedent (People v. Riser (1956) 47 Cal.2d
566); (2) violated the court‟s in limine ruling; and (3) constituted prosecutorial
misconduct in the matter in which it was admitted and argued to the jury. As we explain
the evidence was relevant to show that one of those knives could have been the murder
weapon and to show defendant had access to a knife as the murder weapon. Its
admission did not violate the in limine ruling, which excluded only the fact that the knife
collection was found in the trunk of defendant‟s car. And as to the evidence that was

                                              8
admitted as to the knives found in defendant‟s car and the prosecutor‟s closing arguments
about the knives, defendant‟s contentions about those two things were forfeited by his
failure to object.
                                             A
                           Background On The Knife Evidence
       Defense counsel moved in limine to exclude evidence that swords and knives were
found in the trunk of defendant‟s car, arguing the evidence was irrelevant because Tylar‟s
testimony was that defendant used a Rubio‟s knife to kill Joanne. The prosecutor argued
the knife collection was relevant to show that a knife was defendant‟s weapon of choice,
in this case where the identity of the killer was at issue. She noted that when Tylar was
interviewed by police, Tylar stated she assumed the weapon would be a knife because
“he always had knives on him.” The court granted the defendant‟s motion to exclude
evidence that defendant had swords and knives in his car‟s trunk without prejudice to
have the issue reconsidered “[i]n the event that during the trial it becomes appropriate or
apparent.”
       During trial, the prosecutor reraised the issue, noting defendant‟s motion went to
only the knives found in defendant‟s car. The prosecutor argued, “we do not know the
exact murder weapon, period.” The court ruled that the prosecutor “absolutely” could
ask Tylar about what she and defendant discussed about the murder, she could elicit
evidence that he liked knives and had knives, but the evidence that they were found in the
trunk was still inadmissible.
       During the testimony of defendant‟s friend Matthew Bogert, the issue of
defendant‟s knives arose again. The prosecutor asked Bogert to tell her about
defendant‟s knife collection, but defense counsel objected. At a sidebar, the prosecutor
argued the evidence of the knife collection (not what was found in defendant‟s trunk) was
relevant because defense counsel “is making a big deal that it is not the Rubio‟s knife,”
and because defendant “had many other knives available to him,” which was relevant to

                                             9
show “motive and opportunity.” The prosecutor further argued that “the fact somebody
has a fetish with knives . . . shows that that would be the type of murder weapon that they
would choose.” The court ruled the evidence that defendant had a knife collection was
admissible.
       On cross-examination, defense counsel asked if Bogert was familiar with those
knives, the prosecutor objected, and defense counsel admitted he himself had “opened the
door.” Bogert went on to testify there were no chef knives in defendant‟s collection. On
redirect examination, Bogert testified the knives consisted of a “combination of long
swords, short swords, small knives, pocket knives [sic], straight blades.” He and
defendant “actively went to the Renaissance Fair every year,” they both had knife
collections that they spent “a little bit of [their] paychecks” on, and “that” was something
defendant enjoyed doing.
       Thereafter, during Tylar‟s testimony, she testified on direct examination that
defendant always had a switchblade on him and that he had a katana (a “Japanese short
blade”) that he usually kept in his room or in the truck of his car.
       During defendant‟s testimony, the prosecutor asked defendant if he “liked knives”
and he said, “I find them to be a hobby, yes.” When asked how many he “carr[ied] at a
time,” defendant replied, “On my person or in my car?” When the prosecutor said, “Let‟s
start with person,” defendant replied a pocketknife. When the prosecutor asked “[h]ow
many do you carry in your car,” defendant replied he had a short-blade sword, a three-
foot one in his trunk, and another pocketknife.
       In closing, the prosecutor argued that the Rubio‟s knife “very well” could have
been the knife that defendant used, but “[i]t doesn‟t have to be a Rubio‟s knife that he
used.” She continued that defendant had “a fetish with knives . . . he has a fascination
with them. He always has different knives on him.”




                                             10
                                               B
        Riser Actually Supports The Admissibility Of Defendant’s Knife Collection
       In Riser, our Supreme Court held, “When the specific type of weapon used to
commit a homicide is not known, it may be permissible to admit into evidence weapons
found in the defendant‟s possession some time after the crime that could have been the
weapons employed. There need be no conclusive demonstration that the weapon in
defendant‟s possession was the murder weapon.” (People v. Riser, supra, 47 Cal.2d at p.
577.) The court went on to admonish, “[w]hen the prosecution relies, however, on a
specific type of weapon, it is error to admit evidence that other weapons were found in
his possession, for such evidence tends to show, not that he committed the crime, but
only that he is the sort of person who carries deadly weapons.” (Ibid.)
       Defendant‟s reliance on Riser as a basis for excluding the knife collection
evidence is misplaced. Riser actually supports admission of the knife collection evidence
here for at least two reasons.
       One, a knife in defendant‟s collection could have been the weapon used to kill
Joanne. The forensic pathologist testified the weapon used to kill Joanne was “likely a
sharp-force object, a knife, and that . . . it [wa]s probably not a serrated knife.”
Defendant‟s knife collection contained “small knives” and “straight blades.” As Riser
notes, “[t]here need be no conclusive demonstration that the weapon in defendant‟s
possession was the murder weapon.”        (People v. Riser, supra, 47 Cal.2d at p. 577.)
Thus, because there was at least some basis in fact for an argument to be made that the
murder weapon could have come from defendant‟s collection, Riser did not prohibit
evidence of the knife collection.
       Two, defendant‟s knife collection was relevant to show he had access to knives
and opportunity to kill using a knife, where the identity of the killer was the major issue
disputed at trial. The defense spent a considerable time disputing evidence that a Rubio‟s
knife was the weapon used to kill Joanne. This was significant because the implication

                                              11
was that if it was not a Rubio‟s knife, it must not have been defendant who killed Joanne.
The evidence that defendant collected knives was relevant to show he had access to and
the opportunity to arm himself with a knife, apart from his work at Rubio‟s.2
                                             C
    Defendant’s Arguments That The Prosecutor Violated The In Limine Ruling And
               Committed Misconduct In Closing Argument Are Forfeited
       Defendant‟s other arguments are aimed at the prosecutor‟s alleged violation of the
in limine ruling precluding evidence the knife collection was in defendant‟s car, which he
claims was prosecutorial misconduct.3 A review of the evidence regarding the weapons
in defendant‟s car demonstrates the prosecutor did not violate the in limine ruling.
Regarding the evidence that there were knives in defendant‟s car, the introduction of that
evidence did not originate with the prosecutor. For example, during Tylar‟s testimony,
the prosecutor asked, “did you ever see a katana on him?” Tylar responded, “He usually
kept it in his room or in the trunk of his car.” Thus, it was Tylar whose response
implicated a knife in the trunk, not the prosecutor‟s question, which asked about weapons
“on” defendant. Similarly, during defendant‟s testimony, the prosecutor asked defendant,
“How many [knives] do you carry at a time?” Defendant responded, “On my person or




2       To the extent defendant also argues the court abused its discretion in admitting the
knife evidence because its probative value was substantially outweighed by its prejudicial
effect, this argument has no merit. The knife evidence did not portray defendant as
someone who was “weird and abnormal,” as defendant claims in his opening brief.
Rather, the evidence showed he collected swords and knives because of his involvement
in the renaissance faire, a hobby also shared by one of his friends. This evidence was not
the type that would have evoked an emotional bias against defendant, outweighing its
probative value.
3      Defendant claims that his motion was to exclude all knife and sword evidence.
However, the motion he filed was to exclude the “swords and knives [that] were found in
the trunk of [d]efendant‟s car.”

                                            12
in my car?”4 Thus, it was defendant whose response implicated knives in the trunk, not
the prosecutor‟s question. When Tylar‟s and defendant‟s responses insinuated that
defendant had weapons in the trunk of his car, it was defendant‟s burden to object to
introduction of that evidence and ask that it be stricken from the record. These responses
changed the context in which the weapons evidence was being introduced, so as to
constitute a basis for the court‟s reconsideration of exclusion of the evidence. (See
People v. Morris (1991) 53 Cal.3d 152, 189.) Since he did not object, defendant forfeited
any argument that this evidence violated the in limine ruling and prejudiced him.
       Defendant also forfeited his claim that the manner in which the prosecutor argued
the weapons evidence in closing argument was prosecutorial misconduct. Defense
counsel did not object to the prosecutor‟s closing argument regarding the knife evidence.
As such, defendant‟s claim of prosecutorial misconduct is forfeited. (People v. Brown
(2003) 31 Cal.4th 518, 553.)
                                             III
                          The Court Did Not Abuse Its Discretion
                      In Handling The People’s Discovery Violation
       Defendant contends the court erred in refusing to exclude as a sanction for a
discovery violation the evidence that male DNA had been found in Joanne‟s fingernail
scrapings and then in refusing to instruct the jury on this discovery violation. As we
explain, the court did not abuse its discretion in handling the discovery violation.




4       The prosecutor responded by asking, “Let‟s start with the person” and defendant
testified he carried one pocketknife. Then the prosecutor asked him “How many do you
carry in your car” and defendant said he had a katana in his trunk at the time Joanne was
murdered.

                                             13
                                             A
                         Background On The Discovery Violation
       On March 18, 2010, Department of Justice criminalist Deanna Kacer stated in a
report that was turned over to the defense that, “ „No DNA types foreign to Joanne Witt
were detected on her fingernail clippings or her fingernail scrapings.‟ ” On May 17,
2011, over one year later, trial began with opening statements. On May 25, 2011, Kacer
informed the prosecutor that when reviewing her (Kacer‟s) notes in anticipation of her
trial testimony, she noticed that the testing on Joanne‟s fingernail scrapings in 2010
showed the presence of male DNA. In 2010, Kacer did not conduct further testing on
that DNA because she erroneously believed the case involved a female suspect, i.e.,
Tylar. On May 25, 2011, the prosecutor informed defense counsel that the 2010 test had
revealed male DNA on Joanne‟s fingernail scrapings. On May 27, 2011, defense counsel
filed a continuance motion to give him time to retain a DNA expert and to allow that
expert time to prepare. On May 31, 2011, the trial court granted the defense a two-day
continuance.
       Thereafter, defense counsel filed a motion to exclude the testimony of any
prosecution witness on the topic of the DNA found on Joanne‟s fingernail scrapings
based on the discovery violation. At the hearing on defendant‟s motion, the court found a
discovery violation, noting the following: the error lay with the prosecutor‟s “team,”
notably with Kacer, and although Kacer did not do it on purpose, there was “no
justification” for the evidence being provided “three weeks-plus into this trial.” The
court asked defendant‟s DNA counsel whether he needed more time to evaluate the DNA
evidence to present a proper defense.5 DNA counsel said he would need six more
months if there were going to be statistical evidence about the likelihood that the male



5     The record is unclear whether defendant‟s DNA counsel was the same person as
defendant‟s DNA expert.

                                             14
DNA belonged to defendant. However, DNA counsel continued to request that the
evidence of the male DNA in the fingernail scrapings be excluded. When the court
pressed DNA counsel as to whether the exclusion was due to needing more time to
evaluate the evidence, DNA counsel replied, “No.” The court noted that the “way you
cure matters that are late discovery is you get a continuance so that the [d]efense can do
all of its proper investigation that it needs to, but you‟ve told me that you‟ve done that
and you‟re ready to proceed on that issue . . . .” Thereafter, the court excluded any
statistical evidence about the DNA belonging to defendant, but allowed in evidence that
the fingernail scrapings contained male DNA.
       At trial, Kacer testified that the fingernail scrapings from Joanne‟s right and left
hands contained male DNA. The court refused DNA counsel‟s request to admit evidence
as to the date that evidence was turned over to the defense. DNA counsel unsuccessfully
argued he wanted that evidence in front of the jury because he wanted to ask for an
instruction about late discovery. During the jury instruction conference, defense counsel
requested CALCRIM No. 306 about untimely disclosure of evidence. The court refused
the instruction, explaining the instruction was discretionary and the problem was “cured”
by DNA counsel “saying he was prepared to go” and the court limiting the nature of that
DNA testimony.
                                              B
                          The Court Did Not Abuse Its Discretion
                           In Handling The Discovery Violation
       Defendant contends the court erred in refusing to exclude as a sanction for the
discovery violation the evidence that male DNA had been found in scrapings taken from
Joanne‟s fingernails and in refusing to instruct the jury on this discovery violation.
       Curiously, the People spend a considerable time arguing no discovery violation
occurred, refusing to acknowledge the court‟s ruling that one did occur and ignoring
defendant‟s citation to cases establishing that Kacer‟s failure to timely turn over evidence

                                             15
about the male DNA was imputed to the prosecutor because Kacer was part of the
prosecution team. (See, e.g., People v. Little (1997) 59 Cal.App.4th 426, 432; People v.
Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1313.)
       As we explain, the trial court acted within its discretion in fashioning an
appropriate remedy for the discovery violation that addressed any prejudice that
defendant faced as a result of the violation.
       The prosecution must disclose certain categories of evidence in its possession or
known to be in the possession of the investigating agencies. (Pen. Code,6 § 1054.1.)
Among the types of evidence that must be disclosed is “[a]ll relevant real evidence seized
or obtained as a part of the investigation of the offenses charged.” (§ 1054.1, subd. (c).)
“Absent good cause, such evidence must be disclosed at least 30 days before trial, or
immediately if discovered or obtained within 30 days of trial.” (People v. Zambrano
(2007) 41 Cal.4th 1082, 1133.)
       A trial court has wide discretion to address the People‟s failure to comply with
their disclosure obligations. (People v. Ayala (2000) 23 Cal.4th 225, 299.) “Upon a
showing that a party has not complied with Section 1054.1 . . . and upon a showing that
the moving party complied with the informal discovery procedure . . . , a court may make
any order necessary to enforce the provisions of this chapter, including, but not limited
to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of
a witness or the presentation of real evidence, continuance of the matter, or any other
lawful order. Further, the court may advise the jury of any failure or refusal to disclose
and of any untimely disclosure.” (§ 1054.5, subd. (b).)
       In considering whether the trial court abused its discretion in selecting a sanction
to address the People‟s discovery violation, we examine whether the trial court‟s




6      All further section references are the Penal Code.

                                                16
response “was inadequate to dispel any prejudice resulting from the prosecution‟s
conduct.” (People v. Robbins (1988) 45 Cal.3d 867, 884.)
       Here, the response was adequate and therefore within the court‟s discretion. In
response to the prosecutor‟s discovery violation, the court granted defense counsel a
continuance and then excluded evidence that the male DNA found in the fingernail
clippings possibly could have come from defendant. When the court asked DNA
counsel whether he needed more time to evaluate the DNA evidence to present a proper
defense, he responded he would need six more months if there were going to be statistical
evidence about the likelihood that the male DNA belonged to defendant. He did not need
more time to evaluate the evidence if the only thing that was going to come in was that it
was male DNA. In fact, when the court pressed counsel as to whether he was asking for
exclusion of evidence due to needing more time to evaluate the evidence, counsel replied,
“No.” On this record, the court was well within its discretion to allow in evidence the
DNA was male but exclude evidence of the statistical probability it was defendant‟s
DNA given the length of time defendant would need to prepare. For the same reasons, it
was not an abuse of discretion for the court to decline to instruct the jury with CALCRIM
No. 306.7 (People v. Lamb (2006) 136 Cal.App.4th 575, 581 [the trial court‟s refusal to
instruct the jury on late discovery is subject to review for abuse of discretion].) The
court cured the prejudice of the late discovery by prohibiting the People from presenting




7       CALCRIM No. 306 provides in part: “Both the People and the defense must
disclose their evidence to the other side before trial, within the time limits set by law.
Failure to follow this rule may deny the other side the chance to produce all relevant
evidence, to counter opposing evidence, or to receive a fair trial. [¶] An attorney for the
(People/defense) failed to disclose: __________ <describe evidence that was not
disclosed> [within the legal time period]. [¶] In evaluating the weight and significance
of that evidence, you may consider the effect, if any, of that late disclosure. [¶]
[However, the fact that the defendant‟s attorney failed to disclose evidence [within the
legal time period] is not evidence that the defendant committed a crime.]”

                                             17
evidence that the male DNA could have come from defendant, which was the evidence
defendant would have needed six more months to address.
                                            IV
                        There Was Substantial Evidence To Support
                      The Crime Witness-Killing Special Circumstance
       Defendant challenges the sufficiency of the evidence to support the jury‟s true
finding on the crime witness-killing special circumstance. As we explain, there was
sufficient evidence to support the jury‟s special circumstance finding.
       The three elements of the crime witness-killing special circumstance are: (1) the
victim witnessed a separate crime prior to being killed; (2) the defendant intended to kill
the victim; and (3) the purpose of the killing was to prevent the victim from testifying
about the crime witnessed. (People v. Stanley (1995) 10 Cal.4th 764, 801.) Defendant
challenges the evidence to support elements one and three.
       As to the first element, contrary to defendant‟s argument, the murder victim need
not have been an eyewitness to the crime. (People v. Clark (2011) 52 Cal.4th 856, 952.)
Here, Joanne was indeed a witness (albeit not an eyewitness) to a crime separate from her
murder. Defendant had sex with Tylar when he was 19 and she was 14. Defendant‟s
conduct constituted unlawful sex with a minor. (§ 261.5.) On May 14, 2009, Joanne
found Tylar naked in defendant‟s room. Joanne also found Tylar‟s journal that detailed
her sexual relationship with defendant. Joanne turned it over to police on June 11, 2009,
and the police booked it into evidence under an investigation into “statutory rape” that the
sheriff had opened.
       As to the third element, defendant argues the purpose of killing Joanne was not to
prevent her from testifying because he planned on killing himself, so there would be no
criminal proceeding for unlawful sex with a minor against him. He notes (at least in his
view) the prosecutor argued this in closing to the jury. Defendant‟s argument is
misguided for at least two reasons. One, a part of the record defendant cites as support

                                             18
for his position that the prosecutor argued defendant was serious about committing
suicide and therefore he was not “too worried about going to prison or jail for unlawful
sex with a minor” was actually part of defense counsel‟s closing argument. Two, if one
of the motivations for the killing is to prevent the witness from testifying, the special
circumstance may be found true even if there were additional reasons for the killing.
(People v. Stanley, supra, 10 Cal.4th at pp. 799-801; People v. San Nicolas (2004) 34
Cal.4th 614, 656). Here, there was sufficient evidence that preventing Joanne from
testifying was at least one reason defendant killed her. Defendant testified he knew it
was “[m]ore than likely” if his sex with Tylar was reported to police, he could go to jail
for what he believed could be up to 15 years. “Going to prison concerned [him] and
scared [him].” It would also ruin his goal of being a math teacher. In a text message to a
friend, defendant blamed Joanne for “driving [him] into the ground,” noting that although
he and Joanne had “made an agreement that if [he] would leave right then and there and
remove [him]self from their lives, then she would not press charges or anything and let
the encounter die,” “[s]he started all of this hell because she got too fucking drunk one
night and called the cops . . . . [¶] Joanne was the one continuing to try to destroy [his]
life, whether [he] w[as] to stay with Tylar or not.”
       There was sufficient evidence of the crime witness-killing special circumstance.
                                              V
 The Motive Instruction Did Not Eliminate An Element From the Crime Witness-Killing
        Special Circumstance And Did Not Lessen The People’s Burden Of Proof
       Defendant contends the instruction on motive in CALCRIM No. 370 (stating the
People were not required to prove defendant had a motive to commit the charged crime)
reduced the People‟s burden of proof because it conflicted with the instruction on the
crime witness-killing special circumstance (stating the jury had to find that defendant
“intended that Joanne Witt be killed to prevent her from testifying in a criminal
proceeding”.)

                                             19
       To support this argument, defendant cites People v. Maurer (1995) 32 Cal.App.4th
1121. There, the defendant was charged with misdemeanor child annoyance, which
required proof the defendant was “ „motivated by an unnatural or abnormal sexual
interest . . . .‟ ” (Maurer, at pp. 1125-1126.) The jury was also instructed that motive
was not an element of the crimes charged. (Id. at p. 1126.) The appellate court held that
the trial court erred by not excepting the misdemeanor child annoyance offenses from the
motive instruction. (Id. at p. 1127.) The distinction between the words “motivation” and
“motive” was of little practical significance and the two instructions presented the jury
with “conflicting terms.” (Ibid.)
       The same is not true here. The jury instruction on the crime witness-killing
special circumstance spoke in terms of “intent[].” However, “motive” and “intent” are
not the same. (People v. Hillhouse (2002) 27 Cal.4th 469, 504.) “Motive describes the
reason a person chooses to commit a crime. The reason, however, is different from a
required mental state such as intent or malice.” (Ibid.) The California Supreme Court
has explained that when the motive instruction is given, it does not relieve the People of
its burden of proving the defendant‟s requisite intent. (People v. Cash (2002) 28 Cal.4th
703, 738-739.) In Cash, which involved a robbery-murder special circumstance, the
defendant argued that the motive instruction relieved the People of their burden to prove
he possessed the required intent to rob when he killed the victim. (Cash, at p. 738.) The
California Supreme Court rejected the argument, explaining as follows: “The trial court
instructed the jury that to find the existence of the robbery-murder special circumstance,
it „must find the murder was committed in order to carry out or to advance the
commission of the crime of robbery,‟ and that „the special circumstance is not present if
the defendant‟s intent is to kill and the related felony of robbery is merely incidental to
the murder.‟ In sum, the instructions as a whole did not use the terms „motive‟ and
„intent‟ interchangeably, and therefore there is no reasonable likelihood the jury
understood those terms to be synonymous. [Citation.]” (Id. at p. 739.)

                                             20
       The same is true here. None of the instructions equated motive with intent, and
there is no basis for concluding the jury understood the terms “motive” and “intent” to be
the same. Given our Supreme Court‟s analysis in Cash and the distinction between this
case and Maurer, we reject defendant‟s argument.
                                             VI
                             There Was Sufficient Evidence Of
                         The Lying-In-Wait Special Circumstance
       The lying-in-wait special circumstance “requires „proof of “an intentional murder,
committed under circumstances which include (1) a concealment of purpose, (2) a
substantial period of watching and waiting for an opportune time to act, and
(3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of
advantage.” ‟ [Citations.]” (People v. Lewis (2008) 43 Cal.4th 415, 508.) Defendant
contends the evidence of the special circumstance was insufficient for two reasons. One,
the evidence was insufficient because it showed that Tylar (as opposed to defendant) lay
in wait. And two, there was insufficient evidence corroborating Tylar‟s testimony
concerning this special circumstance. As we explain, defendant‟s first argument rests on
a faulty premise -- there is nothing requiring the killer himself lie in wait. And as to
defendant‟s second argument, there was sufficient corroboration of accomplice Tylar‟s
testimony.




                                             21
                                              A
              Defendant Provides No Applicable Authority That He Cannot
                      Be Culpable For Tyler’s Watching And Waiting
       For the proposition that defendant could not be culpable for Tylar‟s lying in wait,
defendant relies on People v. Bonilla (2007) 41 Cal.4th 313.8 We recount the facts and
analysis in Bonilla and then explain why the case does not apply here.
       In Bonilla, the defendant Bonilla hired two acquaintances to kill his business
partner. (People v. Bonilla, supra, 41 Cal.4th at pp. 321-323.) Bonilla lured the victim to
a deserted office park, purportedly to meet with a real estate agent. (Id. at p. 322.) The
two killers were waiting there to ambush the victim. (Ibid.) One posed as a real estate
agent and the other posed as a security guard. (Ibid.) When the victim arrived, the killers
jumped him as planned. (Ibid.) Bonilla was convicted of first degree murder with a
lying-in-wait special circumstance. (Id. at p. 320.)   On appeal, Bonilla claimed the
lying-in-wait special circumstance had to be reversed because “he did not engage in a
substantial period of watchful waiting and that [the victim] was not killed during or
immediately after any period in which Bonilla was concealing his purpose and watchfully
waiting.” (Id. at p. 331.) The Supreme Court rejected this argument: “[T]he issue is not
whether Bonilla killed [the victim] while lying in wait; rather, the issue is whether
Bonilla aided and abetted [the actual killer‟s] killing, and whether the actual killers killed
[the victim] while (or immediately after) lying in wait.” (Ibid.)
       From this language in Bonilla, defendant argues the focus of inquiry is whether
“the actual killer engaged in waiting and watching.” Bonilla, however, is inapposite,
because it did not address the situation we have here. In Bonilla, the issue was whether
lying in wait by the killer accomplice could be imputed to the nonkiller defendant. Here,




8      Curiously, again, the People do not address Bonilla in their brief.

                                              22
the issue was whether the lying in wait by the nonkiller accomplice (Tylar) could be
imputed to the killer defendant. The jury instruction as to the special circumstance of
lying in wait addressed that issue. Specifically, as to the special circumstance of lying in
wait, the court instructed that “Tylar . . . was an accomplice to th[at] allegation[].” The
court further instructed as to the elements of this special circumstance allegation: “He or
she concealed his or her purpose from [Joanne]; [¶] Two, he or she waited and watched
for an opportunity to act; [¶] Three, then he made a surprise attack on the person killed
from a position of advantage; [¶] And, four, he intended to kill the person by taking the
person by surprise.”9
       Thus, the instruction on the lying-in-wait special circumstance allowed for the
possibility Tylar (as opposed to defendant) did the watching and waiting. Defendant
provides no legal authority that a defendant cannot be culpable for an accomplice‟s
watching and waiting. For this reason, we reject his argument that Tylar‟s watching and
waiting could not be imputed to him.




9      Defendant quotes the wrong instruction when he argues that the jury was asked
only to determine whether it was defendant himself who did the watching and waiting.
As we have noted, the lying-in-wait special circumstance instruction allowed for either
defendant or Tylar to have engaged in the watching and waiting.

       The instruction defendant quotes is the instruction about lying in wait as a
pathway to first degree murder (in addition to premeditation). The instruction on lying in
wait as a pathway to first degree murder was as follows: “[t]he defendant murdered by
lying in wait if: [¶] One, he concealed his purpose from [Joanne]; [¶] Two, he waited
and watched for an opportunity to act; [¶] And, three, from a position of advantage, he
intended to and did make a surprise attack on the person killed.”

       As defendant is challenging only the special circumstance of lying in wait (as
opposed to the first degree murder conviction based on lying in wait), we have no
occasion to address whether this instruction was correct in stating that defendant himself
had to do the waiting and watching.

                                             23
                                             B
                          There Was Sufficient Corroboration Of
                         The Lying-In-Wait Special Circumstance
       In his second argument why the lying-in-wait special circumstance cannot stand,
defendant argues there was insufficient evidence corroborating Tylar‟s testimony
concerning this special circumstance. He states, “[t]here was no corroboration, not even
slight supporting evidence, to show that Tylar waited and watched for her mother to go to
sleep before she was killed.”
       No so, because defendant‟s testimony and confessions furnished the slight
corroboration necessary for the lying-in-wait special circumstance. (See People v.
Williams (1951) 101 Cal.App.2d 624, 628 [sufficient corroboration may be furnished by
defendant‟s own testimony or by his admissions or confessions]; People v. Samaniego
(2009) 172 Cal.App.4th 1148, 1177-1178 [the corroboration “may be circumstantial,
slight and entitled to little consideration when standing alone” and “need not be sufficient
to establish the defendant‟s guilt or corroborate the accomplice to every fact to which the
accomplice testified”].) Here, defendant testified he drove to the school and waited for
Tylar to call him telling him Joanne was really asleep. After Joanne was stabbed to
death, defendant confessed to friends Widman and Bogert that he was the one who did it.
These confessions and defendant‟s testimony provided the slight corroboration needed to
support Tyler‟s testimony regarding the lying-in-wait special circumstance.
                                            VII
                             The Accomplice Instructions Did
                        Not Lessen The People’s Burden Of Proof
       CALCRIM No. 335 as given here instructed the jury that if murder was
committed, Tylar was an accomplice and that accomplice testimony required
“[s]upporting evidence” but that supporting evidence “may be slight.” CALCRIM No.
708 stated the same for the two special circumstances.

                                            24
       Defendant contends the “slight” evidence language in CALCRIM Nos. 335 and
708 reduced the People‟s burden of proving the charged crime and special circumstances
beyond a reasonable doubt by permitting the jury to find accomplice corroboration based
upon slight evidence. As we explain, we disagree.
       The statement that accomplice testimony need be corroborated by only slight
evidence is a correct statement of the law. (§ 1111; People v. Zapien (1993) 4 Cal.4th
929, 982.) The corroboration requirement of section 1111 is a collateral factual issue,
not an element of the charged offenses that must be proven beyond a reasonable doubt.
(People v. Frye (1998) 18 Cal.4th 894, 967.)
       The California Supreme Court in People v. Richardson (2008) 43 Cal.4th 959,
reaffirmed the slight evidence standard. (Id. at p. 1024.) Neither Richardson nor any
other California Supreme Court case holds that corroboration by slight evidence reduces
the prosecution‟s burden of proof.
       Defendant, however, contends that the United States Supreme Court decision in
Carmell v. Texas (2000) 529 U.S. 513 [146 L.Ed.2d 577] stands for the proposition that a
state‟s corroboration requirement of accomplice testimony is part of the quantum of
evidence needed to convict and therefore must be proven beyond a reasonable doubt.
Defendant misreads Carmell.
       The defendant in Carmell committed rape at a time when Texas law required the
testimony of a rape victim to be corroborated independently. (Carmell v. Texas, supra,
529 U.S. at p. 516 [146 L.Ed.2d at pp. 584-585].) At the time of trial, the law had
changed to eliminate the corroboration requirement and the trial court applied the new
law. (Carmell, at pp. 531-532 [146 L.Ed.2d at pp. 593-594].) The change in the Texas
law constituted a change in the evidence needed to convict. (Id. at p. 522 [146 L.Ed.2d at
p. 588].) Because the defendant would have been acquitted under the former law, the
United States Supreme Court held application of the new law to the defendant violated



                                            25
the ex post facto clause of the Constitution, but noted that nothing prohibited prospective
application of the change in law. (Id. at pp. 552-553 [146 L.Ed.2d at pp. 606-607].)
       Carmell did not hold that corroboration evidence tested by a standard lower than
beyond a reasonable doubt was constitutionally invalid. Thus, defendant‟s related
contention that Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] requires
proof beyond a reasonable doubt of corroboration evidence fails because it is based on his
erroneous interpretation of Carmell.
                                       DISPOSITION
       The judgment is affirmed.



                                          ROBIE         , Acting P. J.



We concur:



      MURRAY           , J.



      DUARTE          , J.




                                            26
