        IN THE SUPREME COURT OF
               CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                              v.
                    REX ALLAN KREBS,
                  Defendant and Appellant.

                           S099439

           San Luis Obispo County Superior Court
                        No. F283378



                      November 21, 2019

Chief Justice Cantil-Sakauye authored the opinion of the
Court, in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger,
and Groban concurred.
                      PEOPLE v. KREBS
                            S099439


         Opinion of the Court by Cantil-Sakauye, C. J.


      A jury convicted defendant Rex Allan Krebs of the first
degree murder of Rachel Newhouse and Aundria Crawford (Pen.
Code, § 187),1 one count of kidnapping Newhouse to commit rape
and one count of kidnapping Crawford to commit rape and
sodomy (§ 209, subd. (b)), one count of rape by force of Newhouse
and two counts of rape by force of Crawford (§ 261, subd. (a)(2)),
one count of sodomy by force of Crawford (§ 286, subd. (c)), and
one count of first degree burglary (§ 459). The jury found true
the special circumstance allegations that defendant committed
multiple murders, that the murder of Newhouse was committed
while engaged in kidnapping and rape, and that the murder of
Crawford was committed while engaged in kidnapping, rape,
and sodomy. (§ 190.2, subd. (a)(3), (17).) Defendant admitted
prior convictions for rape, sodomy, assault to commit rape,
residential burglary, and felony grand theft. The court found
the prior convictions to be true.
      Following the penalty phase of the trial, the jury returned
verdicts of death for each of the two murder convictions. The
trial court denied defendant’s motion to modify the death
penalty verdict and his motion for a new trial. (§ 190.4, subd.
(e).) The court sentenced defendant to death for each of the
murder convictions. It also sentenced him to a total of 166 years

1
     All further statutory references are to the Penal Code
unless otherwise indicated.


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to life with the possibility of parole for the other offenses and
enhancements, a sentence it stayed pursuant to section 654.
This appeal is automatic. (§ 1239, subd. (b).) We affirm the
judgment in its entirety.
                        I. BACKGROUND
     A. Evidence at the Guilt Phase
         1. Investigation prior to defendant’s confession
      Rachel Newhouse, a student at California Polytechnic
State University at San Luis Obispo, was last seen on November
12, 1998, at about 11:30 p.m., in Tortilla Flats, a restaurant and
bar in San Luis Obispo. Blood drops were found an hour or so
later on the Jennifer Street Bridge, a pedestrian bridge that
Newhouse would have crossed if she walked home from Tortilla
Flats. Samples taken from blood recovered from the bridge and
a nearby parking lot matched blood samples from Newhouse’s
parents.
      Aundria Crawford, a student at Cuesta College who lived
in San Luis Obispo, spoke with a friend by telephone until 2:46
a.m. on March 11, 1999.2 Crawford missed an appointment and
failed to respond to texts on March 11, and an investigation
begun the next day failed to locate her.
      Defendant’s parole officer, David Zaragoza, thought there
were similarities between the description in a newspaper article
of the abduction of Crawford and defendant’s prior crimes. In
mid-March, he visited defendant at his residence. When
defendant came out to meet Zaragoza, he was walking as if in
pain, and he was holding his rib area. Defendant stated that he

2
     All further date references are to the year 1999 unless
otherwise specified.


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had hurt his ribs when he fell off a wall into some firewood, but
Zaragoza was suspicious because he did not see any injuries to
defendant’s hands or arms. Zaragoza reported his suspicions to
the lead investigator of the Crawford abduction.
      Two days later, Zaragoza and other agents conducted a
parole search of defendant’s residence. Among the items seized
was an eight-ball keychain. Zaragoza also found BBs. One of
defendant’s parole conditions was that he was not allowed to
possess objects resembling a firearm. The next day, Zaragoza
seized a BB gun at defendant’s place of employment and caused
defendant to be arrested and transported to the San Luis Obispo
County jail.
      Larry Hobson, an investigator with the County of San Luis
Obispo District Attorney’s Office, interviewed defendant a day
after his arrest. At this point, defendant had been arrested for
violating his parole by possessing a simulated firearm and
drinking alcohol. When Hobson asked defendant if he had any
idea why he was being interviewed, defendant stated he
assumed it related to the disappearance of the two victims,
because defendant was on parole for rape and had a prior sex
offense. He did not recall where he was the day Newhouse
disappeared. However, defendant said he stayed home all night
on March 10, the night of Crawford’s disappearance. At about
8:00 a.m. the next day, he walked to a woodpile, and his
landlord’s daughter, Debra Wright, stopped and talked to him
briefly. He said he had slipped on some lattice work and fallen
into the woodpile, injuring his ribs.
      Defendant denied ever driving down Crawford’s street or
seeing the victims except on fliers posted around San Luis
Obispo. Hobson asked where defendant had acquired the eight-


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             Opinion of the Court by Cantil-Sakauye, C. J.


ball keychain found during the parole search, and he said he
found it on the yard while in Soledad prison in 1996. In response
to Hobson’s telling defendant that he might have to question
him again, defendant said he was willing to do anything to prove
that he was not responsible for the abductions, and he gave
Hobson permission to search his vehicle and his residence.
      A few days later, a search of defendant’s truck disclosed
duct tape, binoculars, and a bottle of stain remover. Also, some
of the carpet had been cut out, and one of the jump seats was
missing.
      In early April, Hobson interviewed defendant a second
time. Defendant gave an account of his whereabouts on March
11 that was partly inconsistent with his prior statements. When
asked why someone would identify him or his truck in the
vicinity of Crawford’s house, he stated he had driven down
Crawford’s street two or three times. With respect to the eight-
ball keychain that defendant claimed to have found in 1996,
Hobson asserted that it had not been manufactured until 1998.
Defendant responded, “ ‘that’s strange.’ ”
      Five days later, a search of defendant’s home led to the
discovery of the jump seat from his truck. The seat had blood
stains on it.
     On April 21, Hobson interviewed defendant a third time.3
Defendant again had difficulty recalling what he did on March
11. Hobson and defendant discussed defendant’s prior sex

3
      In this appeal, defendant challenges the trial court’s
admission of his various statements made after this interview
under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). We
discuss the circumstances of the interviews in more detail in
part II.B.1, post.


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crimes, and defendant admitted that he fantasized about
abducting women but claimed to have “worked through” that.
Hobson then showed defendant the eight-ball keychain and said
it belonged to Crawford. Defendant denied the keychain was
the one that had been found in his home. Hobson told defendant
that the police had found the missing jump seat, and that there
were traces of Newhouse’s blood on it. Defendant then stopped
talking for about 15 minutes while Hobson kept up a monologue.
Hobson asked defendant to take him to the victims, and
defendant stated he did not want to help Hobson at that time.
Hobson eventually returned defendant to the county jail.
         2. Defendant’s confession
       On April 22, Hobson returned to the jail, and correctional
officers brought defendant to an employee breakroom to meet
him. Some minutes into the conversation, defendant asked
what Hobson wanted him to say, and Hobson said he wanted the
truth. Defendant responded, “okay” and said that he wanted to
talk somewhere else. Before transporting defendant from the
jail and after giving him Miranda warnings, Hobson asked
defendant if he was responsible for the disappearance and death
of Newhouse and Crawford. Defendant responded, “yes.”
Hobson then took defendant to the police department, where the
ensuing interrogation was recorded. The jury was shown the
videotape, during which defendant described what he had done
to the victims.4


4
      Video recordings of interviews conducted on April 22 and
April 27 were played for the jury, and transcripts of these two
interviews were provided to assist the jury. The jury was also
shown a video recording made on April 22, which depicted



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             Opinion of the Court by Cantil-Sakauye, C. J.


      Defendant stated that starting at about 8:30 p.m. on
November 12, 1998, he drank six or seven shots of whiskey. At
about midnight, he saw Newhouse walking down a street in San
Luis Obispo. He told Hobson he had a premonition that
Newhouse would walk across a bridge, so he parked his truck
and walked onto the bridge. As Newhouse walked behind him
on the bridge, defendant turned around and hit her on the jaw
with his fist. When she screamed, defendant picked her up and
threw her down on her back. Then he hit her again, knocking
her unconscious, and dragged her by her hair down the stairs.
At this point, she was bleeding from the back of her head and
about her face. When he reached his truck, he put the still-
unconscious Newhouse behind the front passenger seat in the
area where the jump seats were located. He got rope from the
bed of his truck and tied her hands behind her back. He then
drove along railroad tracks for about 200 yards, where he
stopped and used the same rope to tie her legs. Finally, he
reached into her pants, ripped off her panties, stuffed them in
her mouth, and tied the rope through her mouth.
      Beside the road that led to defendant’s residence was an
abandoned cabin. Defendant drove to the cabin, carried
Newhouse inside, removed her pants, and raped her. She was
conscious by this time, and was cursing at him. After he raped
her, he re-tied her legs, hogtied her legs to her hands, and
stuffed her panties back into her mouth. Then he drove up to
his residence, leaving Newhouse in the cabin. He returned to
the cabin 15 or 20 minutes later and found Newhouse dead. He


defendant pointing out the victims’ burial sites and items at his
house. In addition, Hobson testified about his subsequent
interviews of defendant in late April and early May.


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told Hobson that when he left her, the rope he had tied around
her neck was not in a position that would have prevented her
from breathing. Hobson asked whether defendant was saying
that Newhouse’s struggling had caused her strangulation. He
responded, “That or her legs relaxed or something, I don’t know.”
Defendant told Hobson that he panicked, put her body behind
the cabin, and went home.
      The next morning, defendant drove his truck past a spot
where he had been cutting wood and dug a grave. He returned
home and, at some point, cleaned blood from his truck. When
he was unable to remove all of the blood, he cut out portions of
carpet, threw them in a dumpster, and put the stained jump seat
in his home. Sometime between 11:00 p.m. and midnight, he
put Newhouse’s body in the back of his truck, drove to where he
had dug a grave, and buried it.
       Turning to the Crawford case, defendant stated that the
first time he saw her he was driving by her house as she was
getting out of her car. He followed her back to the house, got out
of his truck, and looked at her through a small gap at the bottom
of the curtains on a window. He left after a few minutes.
      Over the following days, defendant twice more returned to
Crawford’s house to watch her. Each time he was intoxicated.
Finally, defendant returned for a third time, knowing that he
was going to abduct her. Again intoxicated, defendant was not
certain what time he went to her house, but it could have been
as late as 2:00 or 3:00 a.m.
      Defendant found a small bathroom window that was not
latched, removed the screen, and crawled feet first into a shower
stall. He hurt his ribs going through the window. Defendant
told Hobson that he was “getting ready to go out the bathroom


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             Opinion of the Court by Cantil-Sakauye, C. J.


door. The only thing I’m thinking of is leaving right then” when
Crawford opened the bathroom door, wearing a T-shirt and
underwear. He punched her, knocking her back against the
wall, and kept punching her, causing her to lose consciousness.
He hogtied her with a rope he had brought with him and put
duct tape across her mouth. He went upstairs and got two
pillowcases. Although he was wearing pantyhose over his head,
he put a pillowcase over Crawford’s head and tied it on so she
could not identify him. He put CDs and some of Crawford’s
clothes in the other pillowcase. He also took a VCR, videotapes
of movies, and her keys with the eight-ball keychain, which he
put in his truck.
       When defendant returned to the house, Crawford had
regained consciousness and was struggling. He put her in his
truck and went back to her house to clean up the blood. Then
he drove her to the abandoned cabin, left her on a couch, drove
home, and drank more whiskey. As it was starting to get light,
he drove to the woodpile to chop some wood so that his landlord’s
daughter, Debra Wright, would see him as she went to work.
After Wright left, defendant brought Crawford from the cabin to
his residence. He removed some of the rope, but he left her
hands tied together and kept the pillowcase and duct tape in
place. He raped and sodomized Crawford on the bed, tied her
feet back together, went to the kitchen for more liquor and
coffee, and fell asleep on the couch. When he woke up an hour
or so later, he replaced the pillowcase with a bandanna blindfold
and removed the duct tape. She asked him why he was doing
this, asked him to stop, pleaded with him to let her go, and cried.
He did not say anything to her, and raped her over a coffee table.
Leaving her hands tied and her legs untied, he clothed her in a



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             Opinion of the Court by Cantil-Sakauye, C. J.


sweatshirt and sweatpants he had brought from her home. He
put her back in his bed and went to sleep on the couch.
      Defendant was awakened by a noise and saw Crawford
coming out of the bedroom without the blindfold. He threw her
to the floor and strangled her to death with a rope. He moved
her body to the bedroom and drank more whiskey. Then he dug
a grave in his yard and buried her. Defendant disposed of
everything he had taken except the eight-ball keychain, a second
black sweatshirt, and the CDs. He threw the VCR and
videotapes, which were in a garbage bag, near a road and burned
everything else.
      After confessing, defendant accompanied Hobson and
others to his home and the locations of the graves and the
garbage bag that contained the VCR, videotapes, and CDs. The
jury was shown a videotape of the trip.
         3. Exhumations and autopsies
      The victims’ bodies were recovered the day after defendant
confessed. Newhouse’s body was found buried about 30 feet
above the road. Crawford’s body was found by defendant’s
residence, buried about two feet deep.
      Dr. George Sterbenz, a forensic pathologist, observed the
exhumations. He testified that Newhouse’s body was in an
advanced state of decomposition. She had on a shirt that had
been cut in half up the back, and a bra with shoulder straps
pulled down from her shoulders. She had on no other clothing.
Two areas of her scalp were more decomposed, indicating that
they had been injured, and dried fluid on top of her head was
consistent with blood. Dr. Sterbenz believed the cause of death
was asphyxiation, but decomposition prevented him from
determining the specific mechanism by which this occurred.


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             Opinion of the Court by Cantil-Sakauye, C. J.


Decomposition also prevented a determination of whether
Newhouse suffered any trauma to the vaginal area.
      Crawford’s body was not as decomposed as Newhouse’s
body, although the level of decomposition precluded a
determination of whether Crawford’s vaginal or anal area was
bruised. Crawford was wearing a black sweatshirt with a Hard
Rock Cafe logo and black sweatpants. A blindfold made from a
bandanna covered her eyes and nose. A rope circled her neck
two and one-half times and was also wrapped about her torso
and extremities. Two black flex ties were tied around her wrists,
and a third flex tie connected them and passed through the rope.
There were two lacerations inside her mouth that were
consistent with a blow by a fist to the face. There was also an
area of bruising on her scalp. Dr. Sterbenz concluded that her
cause of death was asphyxia by ligature strangulation.
         4. Other corroborating evidence
      On April 23, a search of the abandoned cabin close to
defendant’s residence disclosed a large blood stain on the pad
underneath the cushions of the couch. The next day, another
search of defendant’s home led to the discovery of black flex ties
that matched the flex ties on Crawford’s wrists. Searchers also
discovered some keys about 48 feet from his home. The keys
unlocked the doors to Crawford’s house.
      Analyses of blood stains and hair at the Jennifer Street
Bridge and surrounding areas corroborated defendant’s
description of his abduction of Newhouse. Rodney Andrus, the
assistant director at the Attorney General’s laboratory in
Fresno, also tested blood stains from the jump seat and the
couch in the cabin. He found that their markers were consistent
with Newhouse’s blood and the blood stains on the bridge.


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                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


     An inspection of Crawford’s home further corroborated
defendant’s confession. Items that defendant confessed to
taking were indeed missing. The state of the bed also suggested
that Crawford had gotten out of bed shortly before she was
abducted. Blood stains matching Crawford’s were found in the
bathroom.
      Evidence concerning Crawford’s clothes and belongings
was also consistent with defendant’s confession. Crawford’s
mother, Leslie Crawford, described some of her daughter’s
belongings, including an eight-ball keychain and a souvenir
sweatshirt with a Hard Rock Cafe logo which she wore only
infrequently. She recalled that her daughter normally wore a
T-shirt and panties to bed. A search of Crawford’s house failed
to find the dark sweatclothes that Crawford’s mother reported
missing.
         5. Additional interviews of defendant
      After the interview on April 22, during which defendant
confessed, Hobson interviewed defendant six more times. Two
days after the confession, Hobson interviewed defendant to
review some of the details of the crimes and his interactions with
the victims. Hobson next contacted defendant the following day
to discuss his childhood and upbringing. The day after that,
Hobson met with defendant to talk about defendant’s relatives.
      On April 27, after driving defendant to view the area
where he abducted Newhouse, Hobson conducted a videotaped
interview, which was shown to the jury. Defendant told Hobson
that Newhouse cursed at him and the more she cursed, the
angrier he became. Hobson asked, “When you get mad, what do
you want to do?” Defendant responded, “Rape her.” He stated
that after he raped her, he was no longer angry, and he denied


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             Opinion of the Court by Cantil-Sakauye, C. J.


intentionally tying her so tightly that she would strangle
herself. He confirmed, however, that he had tied her differently
when she was in the truck.
      In contrast to Newhouse, Crawford did not curse at
defendant; he had placed duct tape over her mouth. When
raping Crawford, defendant was acting out a fantasy that
involved sexual pleasure and dominance. Control was part of
the fantasy, and he had used plastic restraints on Crawford
because they were a better means of control. He agreed with
Hobson’s theory that once Crawford saw defendant, “it took
away the rest of the fantasy and you just knew you had to kill
her.” He also agreed that when he hogtied her, he was hoping
that she would die like Newhouse so he would not have to kill
her himself, but when she broke a thin rope he had put around
her feet, he pulled on both sides of the rope around her neck and
strangled her. When Hobson pointed out the inconsistency
between this description and an earlier account in which
defendant said he hogtied Crawford, left to drink more, and then
came back and took a small piece of rope and strangled her,
defendant said his current description was more accurate. He
said that if Crawford had not struggled, he would have released
her that night.
      With respect to defendant’s assertion that he had planned
to release both of the victims, Hobson asked how he planned to
avoid being identified as the perpetrator, given that he had not
used a condom. Defendant stated that he planned to wash them
in the bathtub at his home and use a bottle to wash out his
semen.
     Hobson asked whether defendant committed his first rape
when he was 21 years old, and defendant said he committed an


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             Opinion of the Court by Cantil-Sakauye, C. J.


attempted rape when he was 18, in Sandpoint, Idaho. The
victim was a young girl. By the time he abducted Crawford, his
fantasies always involved tying his victims up and cutting their
clothes off. Torture had never been part of his fantasy, which
involved only dominance and the ability to have sex repeatedly.
He was uncomfortable when he killed Crawford; it made him
feel sick and angry at himself. When he saw fliers about
Newhouse or Crawford, he felt sick and sorry for them. Finally,
he denied taking a camera from Crawford’s house, and said he
had not committed any other crimes while on parole. He also
denied shooting a person in the chest in Santa Barbara over a
drug deal before he went to prison. The transcript of the
interview included parenthetical statements, added to inform
the jury that defendant later admitted off-camera to stealing
Crawford’s camera and shooting a man in Santa Barbara.
      Hobson met again with defendant in the last days of April,
when they discussed Hobson’s intention to go to Idaho and
interview defendant’s relatives. Then in early May, after
interviewing defendant’s friends and relatives, Hobson met with
defendant to discuss what Hobson had learned.
         6. Defendant’s prior sexual assault of Shelley C.
      At trial, the prosecution introduced testimony regarding
defendant’s prior assault of Shelley C. Shelley testified that
early one morning in 1987 when she was living in San Luis
Obispo County, she woke to a man’s hand over her mouth. He
held a knife to her throat and tied her hands behind her back.
He cut off her clothes, started to gag and blindfold her, but
stopped when she said she would not say anything or look. He
raped and sodomized her and then hogtied her. When he heard
Shelley’s roommate’s car, he fled. There was a strong odor of



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alcohol on the assailant. When he was interrogated concerning
this assault, defendant stated that he wanted counseling, but
was afraid of the time he would spend in prison. Defendant
confessed to the crimes and pleaded guilty to residential
burglary, rape and sodomy.
         7. Defense case
      The defense offered no evidence at the guilt phase.
      B. Evidence at the Penalty Phase
         1. Defense case
       Defendant introduced extensive evidence at the penalty
phase. The evidence falls into two general categories. In the
first category is testimony that painted defendant as a
sympathetic character, a child who was abused by a violent
father and a person who, despite the abuse suffered, still had a
moral compass, good personality traits, and the ability to form
positive relationships. In the second category is testimony that
aimed to reduce defendant’s moral culpability. Defendant
introduced evidence to show that he suffered from a mental
illness, one that impaired his ability to control himself, and that
the various institutions under which he was placed — including
California’s Department of Corrections — failed to afford him
any treatment.
      Through the testimony of his mother, sisters,
grandmother, aunts, uncles, stepmother, stepsister, elementary
school classmates, teacher, principal, neighbor, and others,
defendant described the serious mental and physical abuse he
suffered as a child. Born in 1966 to Connie Ridley and Allan
Krebs, defendant was the second of four children. Allan Krebs
drank, abused drugs, and beat Ridley. When she left Allan,
Ridley, then an alcoholic, began living with a man who spanked


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             Opinion of the Court by Cantil-Sakauye, C. J.


defendant, forced him to wear soiled underwear on his head, and
once made defendant go to school in a diaper. Ridley eventually
sent defendant back to live with his father. Allan beat
defendant, once severely enough to leave “black and blue” marks
and cuts from the “waistline, all the way down to his ankles.”
       In 1981, when defendant was 15 years old, he broke into a
neighbor’s home and stole a gun and some other items. As a
result, defendant was sent to the North Idaho Children’s Home
(Children’s Home), a “private, nonprofit, residential treatment
facility.” Defendant introduced the testimony of several staff
members from the Children’s Home, who described his good
behavior while at the facility. Consistent with the defense
presentation of defendant as a person capable of empathy for his
victims and remorse for his actions, a childcare worker from the
Children’s Home, Scott Mosher, testified that defendant was
“very remorseful” if he “did something wrong during this period
of time.” Toward the end of this testimony, counsel asked
Mosher whether he felt defendant “should receive the death
penalty.” The prosecution objected, and the trial court sustained
the objection, explaining that Mosher’s opinion lacked relevance
because Mosher last saw defendant in 1983 and no longer had
any relationship with him.
      When he was at the Children’s Home, defendant dated an
11-year-old girl, Adonia Krug. Krug testified that defendant
“helped [her] through a lot.” The relationship ended amicably
when Diana Scheyt, Krug’s mother, told defendant how old Krug
was. Scheyt thought defendant had a positive influence on her
daughter and allowed the two to keep in contact as friends.
      In 1984, after defendant turned 18, he assaulted a 12-
year-old girl in Sandpoint, Idaho. Defendant pleaded guilty to


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a misdemeanor assault charge and spent three months in the
county jail for the attack. The victim, Jennifer E., testified for
the prosecution during the penalty phase, and the prosecution
used this incident to cross-examine several witnesses who
opined that defendant should not receive the death penalty.
      During the same year, defendant was convicted of grand
theft of an automobile. For this infraction, defendant served a
prison term at the North Idaho Correctional Institute at
Cottonwood (Cottonwood). Defendant presented the testimony
of a Cottonwood correctional officer who recounted his generally
positive attitude and good behavior while incarcerated.
       Shortly after he was released from prison in 1986,
defendant went to California to live with his mother and her
then-husband, John Hollister. Hollister testified that he and
defendant had a friendly relationship, and that defendant had a
girlfriend during this time, Liesel Turner. According to
Hollister, defendant and Turner had “[a] good relationship” and
defendant was “infatuated with her, wanted to impress her.” As
described post, the prosecution called Turner as a rebuttal
witness.
       In 1987, defendant was arrested and convicted of the
attempted rape and rape of two women, A.C. and Shelley C.
Defendant served his sentence at Soledad prison. He introduced
the testimony of three correctional officers who worked at the
facility. According to Officer Jeanne Pullano, defendant was “a
model prisoner.” Pullano further testified that there was no
counseling for “sexual predators” available at Soledad at that
time, and even if there had been, inmates “probably would not
attend because they would be identified as sex offenders if they
did” and “child molesters” and “rapists” were “low . . . on the


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totem pole” “within the prison population.”                  The other
correctional officers offered similar testimony.
       In September 1997, defendant was paroled to San Luis
Obispo County. Defendant found a job in the surrounding area,
made friends, and began a relationship with a woman named
Rosalynn Moore. Moore testified that defendant treated her
“fairly well.”      In particular, defendant was never
“inappropriately forceful with [her]” “in a sexual way,” and if she
“didn’t want to do something, he would say okay and . . . that
was the end of it.”
      Three of defendant’s friends testified that they were
present at a bar called Outlaws in August 1998 when defendant
got into a fight with a man. One of the friends, Melissa
Copeland, said that defendant had gotten into the fight because
the man had threatened her and defendant “was defending
[her],” “defending [her] honor.”
       Defendant pressed the theme of institutional failure as it
pertained to his parole. For example, his counsel drew from
Parole Officer Zaragoza the statements that (1) although San
Luis Obispo referred all sex offenders to a “parole outpatient
clinic,” the program was “more monitoring” than “confidential
psychotherapy,” and (2) other than the parole outpatient clinic,
there was no other program “available to parolees of rape
convictions for their treatment.” Defendant also introduced the
testimony of Dr. Randall True, who worked at the parole
outpatient clinic and saw defendant while he was on parole.
True testified to the “limited resources” that he had to do his
work. In response to the question, “if the resources were
available — for a person such as [defendant] at the time you saw
him — what programs would you put him in,” True named a


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number of treatment programs that defendant, in fact, was not
afforded. True admitted, however, that defendant never told
him that he had fantasies about raping women. Had defendant
done so, True would have undertaken additional work.
      In addition to the lay witnesses, defendant introduced the
testimony of two experts, Drs. Craig Haney and Fred Berlin.
Haney, a psychologist, examined defendant’s background with
an eye to forming an opinion concerning (1) the “opportunities
in which [defendant] might have been treated for the problems
from which he suffered and whether or not there was evidence
that, in fact, he had been treated,” and (2) the “kind of
adjustment [defendant] would make . . . under a sentence of life
in prison without the possibility of parole.” After interviewing
defendant and people who knew him, Haney came to the
following conclusions. First, defendant has lived “a traumatic
and traumatically damaging life.” His manifestations of certain
“long-lasting problems” were observed throughout his life by
various people. Yet, despite the fact that “[o]ftentimes the
observations      were     accompanied      with    very    clear
recommendations that [defendant] receive treatment,”
defendant “received no psychotherapy, really no psychotherapy
throughout his entire life, including the ten-year period of time
during which he was incarcerated in the California Department
of Corrections.” Second, defendant was “a person who [would]
make[] a remarkably good adjustment to institutional settings,”
including life in prison.
      The main defense expert was Dr. Berlin, a board-certified
psychiatrist who interviewed defendant and “made two
diagnoses with conviction.” Berlin first diagnosed defendant
with sexual sadism, a sexual disorder characterized by “intense,
recurrent, erotically arousing fantasies and urges [that] are

                                  18
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


about having sex in a coercive and sadistic fashion rather than
in a consenting fashion.” Crucially, Berlin opined that sexual
sadism impaired defendant’s “ability to be in full control of
himself.” In slightly more technical terms, Berlin said that
sexual sadism caused defendant to be volitionally impaired.
According to Berlin, sexual sadists, like alcoholics or heroin
addicts, “on their own, often can’t stop doing it [giving in to their
urges] because they have an impairment in their ability to be in
control.” Like a kleptomaniac who is “driven to repeatedly
steal,” defendant was driven to engage in his behavior.
      Anticipating the prosecution’s argument, Dr. Berlin
explained that a person suffering from volitional impairment is
nonetheless able to plan and premeditate his or her actions.
Berlin also explained that such a person is able to defer his or
her urges. A volitionally impaired person could desist from
acting out his or her urges given sufficient “external controls,”
for example, those controls that exist in a prison setting. This
does not mean that the person has the internal controls
necessary to control his or her behavior. Berlin opined that
sexual sadism is a treatable disorder.
      In addition to his diagnosis of sexual sadism, Dr. Berlin
diagnosed defendant with alcoholism. Berlin testified that the
impact of alcoholism “on sexual sadism is like pouring a fuel on
the fire.” The witness elaborated that “both because he was
intoxicated and because he had a disorder that does impair a
person’s ability to be in full control of himself,” defendant’s
capacity “to conform his conduct to the requirements of law” was
“impaired.” Finally, Berlin considered but did not diagnose
defendant with antisocial personality disorder.




                                   19
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


      At the point in his testimony in which Dr. Berlin discussed
the ability of a sexual sadist to defer his actions, defense counsel
attempted to ask the witness about a law in California known
as the Sexually Violent Predator Act. The prosecution objected,
and after an extensive discussion with counsel, the court
sustained the objection.
      On cross-examination, the prosecution attacked Dr.
Berlin’s opinion that defendant could not control his urges. For
instance, the prosecution inquired about a test known as the
“policeman at the elbow,” which asked whether an individual
would have acted on his or her impulses if there had been a
police officer present. Berlin conceded that “if the policeman
had come, [defendant] would have stopped and tried not to be
apprehended.” However, a police officer was an external control,
and once that external control was removed, Berlin did not
“believe for a minute that [defendant] wouldn’t have been driven
to then seek out somebody else.” Last, the prosecution asked
Berlin what defendant did to resist the urge to kidnap
Newhouse or break into Crawford’s house. Berlin replied that
defendant “didn’t say he tried to resist.” “In fact,” elaborated
the doctor, “he said that after these urges had come back, and
he dates it to the incident in which he was in the bar fight [at
Outlaws], that after fighting so hard for so many years to resist
it, he kind of became demoralized and gave up and kind of
stopped fighting as hard as he had previously.”
         2. Prosecution case
     The prosecution presented three types of aggravating
evidence: defendant’s prior criminal activities, surviving family
members’ victim impact statements, and testimony to rebut
defendant’s mitigating evidence.



                                   20
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


       To establish defendant’s prior criminal activities, the
prosecution introduced evidence of his assaults on Jennifer E.
and A.C. Jennifer E. testified that in 1984, when she was 12
years old, she met defendant. One night in February 1984,
Jennifer was downtown with a group of friends that included
defendant. At some point, defendant pulled Jennifer “off to one
side” and tried to kiss her. She said, “no, I’m only 12.” When
she tried to walk away, defendant grabbed her, and they both
fell to the ground. Defendant then attempted “to undo his pants
and [her] pants.” Jennifer fought to get defendant off, and
defendant struck her three or four times with a closed fist.
Eventually, the two rolled over an embarkment, and Jennifer
was able to get away.
      A.C. testified that in 1987, she lived in San Luis Obispo
County. On a night in mid-June, she was in bed with her
daughter when defendant broke into the house and climbed on
top of her. Defendant was carrying a knife and a screwdriver.
A.C.’s daughter cried and screamed. A.C. asked defendant to
take her to another room. When they were walking down the
hallway, defendant attempted to tie A.C. up and “got really
upset” when she did not cooperate. He “hit [her] head against
the wall.” When A.C. tried (unsuccessfully) to stab defendant
with his knife, defendant “got mad . . . and bit [her] finger.”
Defendant then left. A.C. later underwent surgery on her finger
but could not make full use of it again.
      To show the impact that defendant’s crimes had on the
victims’ families, the prosecution introduced the testimony of
Newhouse’s mother and aunt and Crawford’s mother and
grandmother. The family members testified about the victims’
lives and plans they had for the future. They also described the
devastation brought by the victims’ deaths.

                                  21
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


      Finally, the prosecution produced rebuttal testimony. It
called Liesel Turner, who was defendant’s girlfriend in 1987.
Turner testified that she ended the relationship with defendant
because she did not “feel safe” and gave reasons for her feelings.
        In addition, the prosecution rebutted Dr. Berlin’s
testimony with the testimony of Dr. Park Dietz. Unlike Berlin,
Dietz testified that individuals “whose only problem is sexual
sadism” did not suffer from volitional impairment. Dietz
nonetheless afforded a role to mental illness, opining “the reason
[defendant] behaves in this way toward victims is because he
has an antisocial personality disorder.” Finally, Dietz rested his
conclusion that defendant did not suffer volitional impairment
on the particular facts of the case. Specifically, Dietz testified
that defendant’s decisions to drink, lie to his doctor, “cruise” for
victims, carry a “rape kit,” and stop resisting his impulses
showed that his “volitional control was there.” When asked
“whether at the time of the offense the capacity of the defendant
. . . to conform his conduct to the requirements of the law was
impaired as a result of a mental disease or defect,” Dietz’s
answer was that defendant’s “decision to stop resisting, to stop
trying to conform his conduct, is a choice, a bad choice, he made,
rather than his not having the ability to control himself.”
                          II. DISCUSSION
      A. Jury Selection Issues
      Defendant claims that the prosecutor improperly used his
peremptory challenges to remove Catholic prospective jurors in
violation of People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and
People v. Batson (1986) 476 U.S. 79 (Batson). Although
defendant argued before the trial court that the prosecution
wrongfully removed six prospective jurors on the basis of their


                                   22
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


religious affiliation, Catholicism, defendant’s Batson/Wheeler
claim on appeal is restricted to the removal of a single
prospective juror, Juror No. 6.5 For the reasons explained below,
we reject his claim.
         1. Background
      Prospective Juror No. 6, along with more than 150 other
venire members, filled out a written questionnaire and was
individually questioned by the court and counsel. Jurors who
were not excused during the individual questioning were asked
to return some days later. Upon their return, the remaining
jurors were subject to peremptory challenges by the prosecution
and defense — each of which had 20 such challenges. In quick
succession, the parties struck 25 jurors, with the prosecution
striking Juror No. 6 as his eighth strike. After the prosecution
also struck Juror Nos. 122 and 126, the defense raised a
Batson/Wheeler challenge, arguing that the prosecution had
improperly removed these three jurors because they were
Catholic.6 Defense counsel acknowledged that defendant was


5
       Batson has been held to preclude the removal of a
potential juror based solely on the venire member’s religious
affiliation. (U.S. v. Brown (2d Cir. 2003) 352 F.3d 654, 667-669;
see People v. Gutierrez (2017) 2 Cal.5th 1150, 1158 (Gutierrez)
[“At issue in a Batson/Wheeler motion is whether any specific
prospective juror is challenged on account of bias against an
identifiable group distinguished on racial, religious, ethnic, or
similar grounds”].) The Attorney General does not contend
otherwise.
6
     Defense counsel also mentioned Prospective Juror No. 49
but admitted that “the record is a little more ambiguous” about
whether he was Catholic. The trial court did not inquire about
this juror much thereafter, and we infer that the court
determined Juror No. 49 was not Catholic.


                                  23
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


not Catholic but stressed that he “has received religious
counseling from a Catholic nun.”
      Before asking the prosecution to give its reasons for
striking the three jurors, the court made the following
statement. “[T]here’s some question as to whether — in the case
law the record assumes that the finding has been made of a
reasonable inference if you ask for justification from the other
party. And on this record I don’t think I can make a finding that
there’s a reasonable inference although there does seem to be at
least the beginnings of a trend. [¶] But with three jurors — I
know there are a lot of Catholics on this panel, just in my
memory. I don’t know which numbers they are, but I know there
are a lot.” The court then stated, “with that caveat, I’ll ask the
prosecutor to state what his reasons were for those three jurors.”
      The prosecutor offered his reasons for excusing the venire
members. With regard to Prospective Juror No. 6, the
prosecutor stated that he was concerned with the juror’s stance
on “psychiatric issues.” Citing questions from the written
questionnaire, the prosecutor described the juror’s answers as
revealing that she “puts faith in psychiatric testing, thinks
psychology and psychiatry is very useful, and believes it can
explain a lot about a person.”7 These responses concerned the


7
      The questions and answers from the written questionnaire
the prosecutor referred to are as follows:
     “Q111.        Are you familiar with psychological testing?
     “A.           [Juror circled “Yes.”]
     “Q.           Which tests?
     “A.           Not sure.



                                   24
                           PEOPLE v. KREBS
               Opinion of the Court by Cantil-Sakauye, C. J.


prosecution because “the defense has hired one of the top
psychologists in the country, Dr. Fred Berlin.”
      The prosecutor also cited Prospective Juror No. 6’s
response to Question No. 129 on the questionnaire. This
question asks, “Is there any type of information regarding a
defendant’s background or character that would be important to
you when choosing between life without parole and death (e.g.
work record, childhood abuse, brutal parents, alcoholism,
former good deeds, illnesses, etc.)?” In response, the juror wrote,
“childhood abuse, brutal parents, alcoholism, illnesses.” The


      “Q.           How do you feel about these tests?
      “A.           It determines what is the true feelings of that
                    person.”

      “Q113.        What is your opinion about the use of
                    psychology or psychiatry to explain human
                    behavior?
      “A.           I think it[’]s very useful.”

      “Q114.        Have you ever studied psychiatry, psychology,
                    or any related subjects?
      “A.           [Juror circled “No.”]
      “Q.           Do you have an interest in the psychology of
                    the mind?
      “A.           I’m curious to know.
      “Q.           Have you read articles or watched information
                    and/or entertainment programs relating to
                    this subject?
      “A.           Yes.
      “Q.           What are your general opinions about this
                    subject?
      “A.           I think it can explain a lot about a person.”


                                    25
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


prosecution noted that childhood abuse, brutal parents, and
alcoholism were things “we know will be offered in this case” as
mitigating factors at the penalty phase.
      The court made its ruling after hearing the prosecution’s
reasons and the defense’s response. Directing its comments at
the prosecutor, the court stated, “Actually went a lot further
than you needed to, but on the basis of this record, I can’t find a
reasonable inference, as I indicated earlier, based on just three
jurors. My feeling was there were probably about 20 [Catholic
prospective jurors] in the field of 83. Ms. Ashbaugh’s [one of
defendant’s attorneys] indicating that there are 18. [¶] But in
any event, it appears that there certainly are secular reasons for
excusing each of the jurors, and it clearly — in the process that
we’ve gone through, the record obviously reflects that the
questionnaire is replete with questions that would give you
information for preempts on both sides. . . . [¶] But, as I say, in
this case I don’t at this point even find a reasonable inference.
I only asked for the response just for the record.” The court
denied defendant’s Batson/Wheeler motion.
       The defense renewed its motion upon dismissals of more
prospective jurors, and the court deferred discussion until jury
selection had finished. Once both parties had exhausted their
peremptory challenges, the defense contested the prosecution’s
excusal of Prospective Juror Nos. 127, 201, and 141. Juror No.
141 was the prosecution’s last challenge; the prosecution had
previously accepted a panel with Juror No. 141 on the panel, but
after the defense struck another juror, the prosecution exercised
its two remaining peremptory challenges to strike more jurors,
including Juror No. 141. The court heard the parties’ arguments
regarding the strikes and once again denied the Batson/Wheeler
motion. In so ruling, the court stated, “I don’t find a reasonable

                                  26
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


inference of a group bias, but I did get reasons on the record from
the prosecutor as to why the excusals were made. . . . [¶] And
the fact that there are . . . two jurors still on the panel who are
Catholics is of some weight, except that all the challenges have
been exhausted.”
      Despite the objections raised to the excusals of multiple
panelists during jury selection, defendant, as noted earlier, now
challenges the trial court’s ruling only with respect to
Prospective Juror No. 6. Because “reviewing courts must
consider all evidence bearing on the trial court’s factual finding
regarding discriminatory intent,” we bear the above record in
mind as we examine defendant’s Batson/Wheeler arguments
with regard to this single juror. (People v. Lenix (2008) 44
Cal.4th 602, 607 (Lenix).)
         2. Analysis
      The framework for analyzing a Batson/Wheeler challenge
is well established. The analysis proceeds in three stages.
“First, the trial court must determine whether the defendant
has made a prima facie showing that the prosecutor exercised a
peremptory challenge based on [religious affiliation]. Second, if
the showing is made, the burden shifts to the prosecutor to
demonstrate that the challenges were exercised for a [group]-
neutral reason. Third, the court determines whether the
defendant has proven purposeful discrimination.” (Lenix, supra,
44 Cal.4th at p. 612.)
      A preliminary question is whether defendant’s
Batson/Wheeler challenge here should be reviewed at the first or
third stage. Defendant presses that we should conduct a third-
stage inquiry. The Attorney General concedes the point, but her
brief was filed before we decided People v. Scott (2015) 61


                                  27
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


Cal.4th 363, 391 (Scott). In Scott, we acknowledged that our
jurisprudence in distinguishing between a first- and a third-
stage review “has not always been entirely consistent.” (Id. at
p. 386.) We sought to rectify the inconsistency by clarifying that
“where (1) the trial court has determined that no prima facie
case of discrimination exists, (2) the trial court allows or invites
the prosecutor to state his or her reasons for excusing the juror
for the record, (3) the prosecutor provides nondiscriminatory
reasons, and (4) the trial court determines that the prosecutor’s
nondiscriminatory reasons are genuine, an appellate court
should begin its analysis of the trial court’s denial of the
Batson/Wheeler motion with a review of the first-stage ruling.”
(Id. at p. 391.) Accordingly, if the trial court makes a first-stage
ruling before the prosecutor states his or her reasons for
excusing the prospective jurors, an appellate court reviews that
first-stage ruling. In contrast, when the trial court listens to the
prosecutor’s reasons before purporting to rule on the first stage
inquiry, “we infer an ‘implied prima facie finding’ of
discrimination and proceed directly to review of the ultimate
question of purposeful discrimination.” (Id. at p. 387, fn. 1.)
      The trial court here found that defendant did not make out
a prima facie case of discrimination. This was what the court
meant when it said it did not find a “reasonable inference.” But
of course, the court said it could not make “a reasonable
inference” twice, once before inviting the prosecutor to offer his
reasons and once after hearing those reasons. If the court’s first
statement — “on this record I don’t think I can make a finding
that there’s a reasonable inference” — constitutes a ruling, then
we should review that first-stage ruling. On the other hand, if
the court did not make a ruling until after it heard the
prosecutor’s reasons — when it stated more definitively that “on


                                   28
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


the basis of this record, I can’t find a reasonable inference” —
then we should treat the prima facie case as moot and “instead
skip to Batson’s third stage.” (People v. Mills (2010) 48 Cal.4th
158, 174.) The record is susceptible of both readings, but the
ambiguity proves immaterial in this case. Even were we to
assume — as defendant urges — that his challenge has arrived
at the third stage, still we would find against him.
      “At the third stage of the Wheeler/Batson inquiry, ‘the
issue comes down to whether the trial court finds the
prosecutor’s [group]-neutral explanations to be credible.’ ”
(Lenix, supra, 44 Cal.4th at p. 613.) “Review of a trial court’s
denial of a Wheeler/Batson motion is deferential, examining only
whether substantial evidence supports its conclusions. . . . ‘So
long as the trial court makes a sincere and reasoned effort to
evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal.’ ” (Id. at pp. 613-
614.) Defendant urges us not to accord deference to the trial
court’s decision because, in his view, the court did not make a
“sincere and reasoned effort” to evaluate the prosecutor’s
reasons. In particular, defendant faults the court for not
evaluating “any of the actual reasons given by the prosecutor”
and instead speaking only in the hypothetical, stating that “the
questionnaire is replete with questions that would give you
information for preempts.”
      Contrary to defendant’s assertion, the trial court’s
statements indicate it did generally evaluate the prosecutor’s
proffered reasons — responses on the written questionnaire —
for excusing the prospective jurors. As the trial court observed,
“it appears that there certainly are secular reasons for excusing
each of the jurors, and it clearly — in the process that we’ve gone
through, the record obviously reflects that the questionnaire is

                                   29
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


replete with questions that would give you information for
preempts on both sides.” Defendant makes much of the fact that
the court used the conditional tense, i.e., that it stated the
questionnaire “would give you information for preempts on both
sides” and not that the questionnaire did supply information to
strike the jurors. But the court’s phrasing is understandable in
light of the fact that it ruled against defendant at the first stage
and made a third-stage finding only were it, counterfactually, to
reach the matter.
       In any event, we find substantial evidence to support the
trial court’s denial of defendant’s Batson/Wheeler challenge. The
prosecutor’s reasons for striking Prospective Juror No. 6 are
plausible and supported. The prosecution expected defendant
to argue — partly through the use of psychiatric testimony —
that he did not deserve the death penalty because he suffered
childhood abuse, alcoholism, and mental illnesses. Juror No. 6
indicated that she was receptive to such arguments. It was
therefore sound trial strategy for the prosecution to have struck
her. (See, e.g., Gutierrez, supra, 2 Cal.5th at p. 1168; see also
People v. Cunningham (2015) 61 Cal.4th 609, 665 [crediting a
prospective juror’s receptivity to psychological testimony as a
race-neutral reason for the prosecutor to have struck her when
the defense was expected to rely heavily on such testimony];
People v. Watson (2008) 43 Cal.4th 652, 676-678 [finding no
Batson/Wheeler error when a juror was struck because she may
have been “overly sympathetic” to the defendant’s evidence “of
abuse and neglect during his childhood”].)
     Defendant argues that the prosecution had no genuine
reason to want to strike a prospective juror who was receptive
to psychiatry. Defendant contends that a juror’s attitude to
psychiatry was a neutral factor, as a psychiatrist was also

                                   30
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


expected to testify for the prosecution. But the prosecution
could have judged that a juror not so inclined to believe in
psychiatric testimony altogether might be better for its case.
However correct was its judgment, we see little to suggest that
it exercised its peremptory challenge improperly. (See, e.g.,
Gutierrez, supra, 2 Cal.5th at p. 1171.)
      Defendant also argues that the prosecution should not
have relied on Prospective Juror No. 6’s response to Question
No. 129 because the question was asked in a leading manner.
Yet, simply because the juror may not have focused on
“childhood abuse, brutal parents, alcoholism, [and] illnesses”
until prompted by the question does not mean her response was
unreliable. There is nothing to indicate that the prosecution
behaved disingenuously in reading the juror’s answer as
indicating that she was sympathetic to defendant’s case in
mitigation.
      Other evidence supports the conclusion that the
prosecutor’s reasons for striking Prospective Juror No. 6 were
genuinely held. (See, e.g., People v. Hardy (2018) 5 Cal.5th 56,
76.) First, we have the prosecution’s oral examination of the
juror. Far from being desultory, the prosecutor during voir dire
explored the same topics from the questionnaire that ultimately
motivated him to excuse the juror. For example, the prosecutor
asked Juror No. 6 about her “curios[ity] about the criminal
mind,” and she responded that she wanted an explanation for
why criminals do what they do and that “childhood abuse or
brutal parents or alcoholism” could be an explanation for why




                                  31
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


people commit crimes.8 The juror also confirmed that she
wanted to know about “abuse or alcoholism, or illness” before
deciding on the penalty. The fact that the prosecutor took the
time to ask Juror No. 6 about areas that concerned him suggests
that he was not using her written answers as a pretext for
excluding her.
      Second, we note that two Catholic jurors sat on the jury.
Of course, the presence of Catholic jurors on the jury is “not
conclusive” to our inquiry, because the “[e]xclusion of even one
prospective juror for reasons impermissible under Batson and
Wheeler constitutes structural error” regardless of how many
other venire members were not so erroneously excluded. (People
v. Turner (1994) 8 Cal.4th 137, 168; Gutierrez, supra, 2 Cal.5th
at p. 1158; see also People v. Motton (1985) 39 Cal.3d 596, 607-
608; People v. Snow (1987) 44 Cal.3d 216, 225.) Nonetheless, a
prosecutor’s acceptance of a jury with members of a group that
the prosecutor allegedly discriminated against “strongly
suggests that [bias] was not a motive in his challenge” and, as
such, is “an appropriate factor . . . to consider” in the
Batson/Wheeler analysis. (Lenix, supra, 44 Cal.4th at p. 629;
Turner, supra, 8 Cal.4th at p. 168; see also People v. Blacksher
(2011) 52 Cal.4th 769, 802; People v. Jones (2011) 51 Cal.4th
346, 362-363 (Jones); People v. Kelly (2007) 42 Cal.4th 763, 780.)
The trial court did not give this circumstance much weight
because it thought that the prosecution had run out of

8
      The prospective juror went so far as to state that none of
the people she knew who had been abused as children grew up
“normal,” as they either “abused their kids or . . . follow[]
through with how they were raised.” “In a way,” she said, “it
seems like they can’t help it because that’s the way they were
raised, but it’s not an excuse.”


                                  32
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


peremptory challenges and thus had to accept the jury. This
was incorrect. Prior to exhausting its peremptory challenges,
the prosecution had accepted the jury with three Catholics on
the panel. It was only after the defense struck one more juror
that the prosecution exercised its two remaining challenges and
excused another Catholic prospective juror (Prospective Juror
No. 141). The fact that the prosecution accepted a panel with
three Catholic jurors on it when it could have winnowed the
number to one is another piece of evidence suggesting that the
prosecutor did not harbor group bias against Catholics.
      Against the substantial evidence supporting the trial
court’s decision, defendant urges us to undertake a comparative
juror analysis. According to defendant, a comparison of
Prospective Juror No. 6’s answers against those of seated jurors
shows that the prosecutor’s reasons for excusing Juror No. 6
were pretextual, as many jurors gave answers similar to those
of Juror No. 6 but the prosecution did not strike them. Having
examined the record ourselves, we do not agree that the seated
jurors were comparable to Juror No. 6.
      “Comparative juror analysis is evidence that, while
subject to inherent limitations, must be considered when
reviewing claims of error at Wheeler/Batson’s third stage when
the defendant relies on such evidence and the record is adequate
to permit the comparisons. In those circumstances, comparative
juror analysis must be performed on appeal even when such an
analysis was not conducted below.” (Lenix, supra, 44 Cal.4th at
p. 607.) Because defendant did not attempt such a comparison
during trial, “the prosecutor was not given the opportunity to
explain his reasons for dismissing [the challenged jurors] while
later retaining [the seated jurors].” (People v. O’Malley (2016)
62 Cal.4th 944, 977.) Under such circumstances, we “ ‘must not

                                  33
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


turn a blind eye to reasons the record discloses for not
challenging other jurors even if those other jurors are similar in
some respects to excused jurors.’ ” (Ibid.; see Jones, supra, 51
Cal.4th at pp. 365-366.) Hence, to determine whether the seated
jurors were truly comparable to the challenged juror, we may
look at more than just the specific questions from the
questionnaire that the prosecutor cited in explaining his
decision to strike Prospective Juror No. 6. (O’Malley, supra, 62
Cal.4th at p. 977; Jones, supra, 51 Cal.4th at p. 365 [rejecting
the defendant’s argument that the court “may not consider
reasons not stated on the record for accepting other jurors”].)
Defendant is wrong to suggest otherwise and did not respond to
the Attorney General’s extensive showing that the unexcused
jurors were, in many respects, more favorable to the prosecution
than Juror No. 6.
      Furthermore, the sworn jurors did not give substantially
the same answers as Prospective Juror No. 6 on the specific
questions mentioned by the prosecutor. Defendant strings
together a number of jurors whose answers were somewhat
similar to Juror No. 6’s on either the questions about psychiatric
attitude (Question Nos. 112 and 113 in particular) or the
question about the important factors in deciding on penalty
(Question No. 129). However, just three of those jurors gave
purportedly similar answers to Juror No. 6 on both sets of
questions. Other jurors gave answers similar to those of Juror
No. 6 on only one of the two areas. These jurors are thus not
comparable to Juror No. 6 at the outset. (See Lenix, supra, 44
Cal.4th at p. 624 [“Two panelists might give a similar answer on
a given point. Yet the risk posed by one panelist might be offset
by other answers, behavior, attitudes or experiences that make
one juror, on balance, more or less desirable.”]; id. at p. 631


                                  34
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


[“Advocates do not evaluate panelists based on a single answer.
Likewise, reviewing courts should not do so.”].)
      The answers of the remaining three jurors do little to
strengthen defendant’s case. Of these jurors, none said — as
Prospective Juror No. 6 did — that psychological testing
“determines what is the true feelings of [a] person.” Unlike
Juror No. 6, they also did not say that psychology or psychiatry
is “very helpful” “to explain human behavior.” Instead, when
asked for an opinion on “the use of psychology or psychiatry to
explain [such] behavior,” Juror No. 253 simply said, “I do not
know what other field deals with human behavior”; Juror No.
334 gave the circumspect answer of, “It could be reasonable
depending on how it is presented”; and Juror No. 338 answered
somewhat ambivalently, “Perhaps to explain the motivational
factors behind the crime. Also, to permit introduction of
mitigating/extenuating circumstances.” Moreover, these seated
jurors did not identify specific factors that were important to
them at the penalty phase. Juror Nos. 253 and 338 simply said,
“yes” when asked if there is “any type of information regarding
a defendant’s background or character that would be important
to you when choosing between life without parole and death.”
Juror No. 334 gave the even weaker answer of, “Depend on the
evidence.” None of the three jurors singled out “childhood abuse,
brutal parents, alcoholism, illnesses” as did Juror No. 6.
       The comparative juror analysis, in short, does not
persuade us that it is more likely than not that the prosecution’s
reasons for excusing Prospective Juror No. 6 were pretextual.
Defendant’s other arguments fare no better, and we affirm the
trial court’s denial of defendant’s Batson/Wheeler challenge.




                                  35
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


     B. Guilt Phase Issues
         1. Admission of defendant’s confession
      Defendant contends his confession on April 22, 1999 and
all subsequent statements should have been excluded because
his invocation of the right against self-incrimination on April 21
was not honored and his waiver under Miranda, supra, 384 U.S.
436 was involuntary. As explained below, we agree that the
investigator should have stopped the interrogation on April 21
sooner than he did but disagree that the failure compels the
exclusion of the confession obtained on April 22 or thereafter.
We therefore reject defendant’s claim that the court erred in
admitting his statements.
             a. Background
      Before trial began, defendant filed a motion to suppress
his April 22 confession and all following statements. At the
hearing on the motion to suppress, Hobson testified. Hobson
stated that he met with defendant for the first time in March
1999, after defendant had been arrested for violating his parole.
At that time, defendant was one of 13 to 16 individuals who,
because of their prior commission of sexual offenses, were being
questioned regarding the disappearance of the two victims.
Without giving defendant the warnings required by Miranda,
Hobson interviewed him for an hour or so. Defendant told
Hobson that he knew he would be questioned about the
disappearance of the two women, and he was willing to
cooperate in the investigation because he was confident the
investigation would establish his innocence. He also told
Hobson the police could search his vehicles and his house at any
time, and that he was willing to answer questions that arose in
the future.



                                  36
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


      In early April 1999, Hobson met again with defendant at
the San Luis Obispo Police Department. Hobson asked
defendant to submit to a polygraph examination, and defendant
eventually agreed. The polygraph examiner advised defendant,
both orally and in writing, of his Miranda rights, and defendant
signed a statement waiving those rights. Defendant began the
polygraph examination, but terminated it before the
examination was completed.
      After the polygraph examination ended, Hobson again
talked to defendant. Hobson asked defendant if he remembered
the Miranda rights that the polygraph examiner had read him.
Defendant indicated that he remembered them and stated that
he was willing to talk to Hobson. During the 30- to 40-minute
interview that followed, Hobson asked him again where he was
on various dates. Defendant readily answered questions and
reiterated that he was confident that the investigation would
clear him of any involvement in the two cases.
      On April 21, 1999, Hobson met defendant at the jail and
asked if he was still willing to talk and cooperate with the
investigation. Defendant said he was. Hobson transported
defendant to the police department, where the subsequent
questioning was recorded. At the beginning of the interview,
Hobson asked defendant if he still knew the rights the polygraph
examiner had read him. Defendant confirmed that he knew
those rights, and Hobson stated, “those are the rights that still
apply here.”
     Defendant was initially cooperative. However, once
Hobson began confronting him with physical evidence
connecting him to the crimes — the eight-ball keychain found in
defendant’s possession that resembled Crawford’s and the blood


                                  37
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


found on defendant’s jump seat that matched Newhouse’s —
defendant lapsed into silence. During the next 15 or 16 minutes,
defendant remained silent while Hobson urged him to give an
account of what happened. Defendant eventually stated, “Put
me down in a holding cell and let me think, all right?” When
Hobson did not honor the request, defendant said that if Hobson
“sit[s] there and tr[ies] [to] keep beating on [him],” he was “not
gonna say nothing.” After some more back-and-forth, Hobson
agreed to give defendant a 10-minute break and left.
       Hobson returned approximately five minutes later, telling
defendant, “we know you did it . . . . What matters is why you
did it.” In response, defendant whispered, “Take me back to
jail.” Hobson asked if defendant did not want to help him, and
defendant confirmed, “Not right now.” Hobson continued
talking, and defendant said, “Nothing to say Larry.”
      Hobson then spoke some more. Defendant indicated for
the second time that he had “[n]othing to say.” At this point,
Hobson agreed to take defendant back to jail, saying that
defendant should call him when he was ready to talk. Hobson
then stated, “I’ll take you back out just like I brought you in.
You’re on a parole hold,”9 and defendant responded, “I’m on
parole hold forever.”
       As Hobson and defendant were leaving to return to the
jail, defendant asked Hobson for a cigarette and for him to drive
around a while so defendant could smoke. During the ride,
Hobson asked defendant more questions. For instance, when he

9
      The transcript included the parenthetical “(Meaning he
was not being arrested for the murders of Rachel and Aundria)”
following Hobson’s statement that defendant was “on a parole
hold.”


                                  38
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


heard defendant in the back seat crying and mumbling to
himself, Hobson asked what defendant was thinking. When
they arrived at the entrance to the jail facility, Hobson asked
defendant whether he was willing to take him to the victims.
Defendant told Hobson to turn into the facility instead, and
Hobson complied. As they were walking to the jail, Hobson also
asked if, in the event Hobson did not hear back from defendant,
he would be willing to let Hobson return the next day.
Defendant responded, “ “Maybe I’ll deal with it tomorrow.’ ”
Their conversation ended at approximately 2:00 or 2:30 p.m.
      At approximately 9:45 a.m. on April 22, Hobson arrived
uninvited back at the jail facility. He met with defendant in an
employee break room, and had defendant brought to him
without handcuffs or other restraints. Hobson testified at the
suppression hearing that he chose the break room instead of the
police department because he “wanted it to be a noncustodial-
type situation,” where defendant would not “feel any type of
coercion.” Once defendant arrived, Hobson began talking,
observing that the situation with the disappearance of the two
victims was not going to go away. Hobson stated that the
investigation painted a terrible picture, and he wanted to hear
defendant’s side of the story, which might be different.
Defendant told Hobson that Hobson was wrong, that “I’m
nothing but an animal, and I don’t deserve to live.” Defendant
also mumbled, “Nothing can justify what I did.” The first
statement (“I’m nothing but an animal, and I don’t deserve to
live”) came within five minutes of Hobson initiating
conversation with defendant, and the second (“Nothing can
justify what I did”) followed shortly thereafter.
      When Hobson returned to topics he had broached
previously, defendant asked Hobson what he wanted defendant

                                  39
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


to tell him. Hobson said he wanted the truth. Defendant
responded, “Okay. But I don’t want to talk here.” Hobson
agreed to take him to the police department.
       Before transporting defendant from the jail, Hobson
informed defendant that he “wanted to make sure [defendant]
understood exactly what we were going to be doing and the
questions I was going to be asking . . . so we didn’t spend another
two hours of wasted time.” Hobson then read defendant his
Miranda rights, and defendant acknowledged that he
understood them. Hobson asked defendant if he was responsible
for the disappearance and deaths of the two victims, and
defendant said he was. Hobson subsequently arranged for
defendant to be transported to the San Luis Obispo Police
Department. The interaction at the jail took “a total of 30
minutes from the time [Hobson] walked in until the time [he]
left.”
      Upon arriving at the police department, Hobson advised
defendant of his Miranda rights for the second time that day
and asked if he understood them. Defendant answered in the
affirmative. He then provided a detailed confession to the
crimes as described ante, part I.A.2.
      Hobson followed the same advisement procedure when he
interviewed defendant on April 27. During this interrogation,
Hobson asked defendant if he had “always talked to [Hobson]
voluntarily.” Defendant agreed that he had. Although the
interview was primarily devoted to obtaining more details about
the kidnappings and killings of Newhouse and Crawford,
Hobson also asked defendant toward the end of the
interrogation what prompted him to confess. Defendant
responded, “[c]ause what I did was wrong.” When asked if


                                  40
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


anything Hobson told him “convinced [him] that [he] should
talk,” defendant responded, “[b]lood on my car seat.” Defendant
distinguished between the two pieces of physical evidence the
police had at that time, the eight-ball keychain and the blood.
With regard to the blood, defendant said he “knew what was
there” and so knew that the police were not “bluffing.” He
confirmed that if all Hobson had was the keychain, he would not
have confessed.
      After listening to Hobson’s testimony and reviewing the
taped confessions, the trial court denied defendant’s motion to
suppress. In its order, the trial court noted that defendant had
first been advised of his Miranda rights on April 1 and had
agreed to discuss the case with Hobson. It further noted that on
April 21, defendant said he recalled his rights. The court found
that on April 21 “defendant had invoked his right to remain
silent” but did not resolve when exactly he did so. The court
further reasoned that Hobson “stumbled in his attempt to
honor” defendant’s invocation when Hobson asked defendant at
the end of the drive to take Hobson to the victims. However, the
court concluded that Hobson’s inappropriate “contact was
terminated at the jail in late afternoon at approximately 4:00
p.m” when Hobson dropped defendant off. Furthermore,
“[d]efendant at that time indicated that he might be willing to
speak with Hobson the next day: ‘Maybe. I’ll deal with it
tomorrow.’ ”10 Based on these facts, the court concluded that

10
       The trial court’s order includes a period after “Maybe.”
The court reporter transcribed Hobson’s testimony as stating,
“Maybe I’ll deal with that tomorrow.” Moreover, Hobson
testified that their conversation on April 21 ended at
approximately 2:00 or 2:30 p.m., rather than at 4:00 p.m. as the



                                  41
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


defendant’s “request to cease questioning then was honored
within the meaning of federal law.”
      Turning to the events of April 22, the trial court rejected
the Attorney General’s argument that defendant was not in
custody when Hobson approached him that morning. Although
defendant’s jailed status “was due to parole violations,” the court
found that a reasonable person would believe he was in custody
“on the case in question.” As such, defendant was in custody for
Miranda purposes and “should have been advised of his
Miranda rights or at least reminded of them by Investigator
Hobson.” Because Hobson failed to do so, the court excluded
defendant’s inculpatory statements that were made before
Hobson read defendant his Miranda rights, i.e., the statements
“I’m nothing but an animal. I don’t deserve to live” and “Nothing
can justify what I did.” The court nonetheless concluded that
these admissions were voluntary.
     Finally, the trial court found all statements taken after
Hobson gave defendant his Miranda warnings on April 22 were
admissible. It reasoned that Hobson had “obtained implied
waivers,” and “[t]here is no evidence that defendant’s will was
overcome.” We review these findings below.
             b. Analysis
      We begin with the uncontroverted premise that
statements made by a defendant subject to custodial
interrogation are inadmissible (for certain purposes) unless the
defendant was “warned that he has a right to remain silent, that


trial court’s order stated. The Attorney General’s brief quotes
the reporter’s transcript, with no period after “maybe,” and
recites that Hobson dropped defendant off at the jail at about
2:00 or 2:30 p.m.


                                  42
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney,
either retained or appointed.” (Miranda, supra, 384 U.S. at
p. 444; see Harris v. New York (1971) 401 U.S. 222, 224.) “The
defendant may waive effectuation of these rights, provided the
waiver is made voluntarily, knowingly and intelligently.”
(Miranda, supra, 384 U.S. at p. 444.)
      “On appeal, we review independently the trial court’s legal
determinations of whether a defendant’s . . . Miranda waivers
were knowingly, intelligently, and voluntarily made [citation],
and whether his later actions constituted an invocation of his
right to silence [citation]. We evaluate the trial court’s factual
findings regarding the circumstances surrounding the
defendant’s statements and waivers, and “ ‘ “accept the trial
court’s resolution of disputed facts and inferences, and its
evaluations of credibility, if supported by substantial
evidence.” ’ ” (People v. Rundle (2008) 43 Cal.4th 76, 115
(Rundle).)
      Independent of whether a defendant’s rights under
Miranda were observed, his or her statements may not be
admitted unless they were voluntary. “The court in making a
voluntariness determination ‘examines “whether a defendant’s
will was overborne” by the circumstances surrounding the
giving of a confession.’ ” (Rundle, supra, 43 Cal.4th at p. 114.)
The prosecution bears the burden of proof and must show “by a
preponderance of the evidence the statements were, in fact,
voluntary.” (Ibid.)
                i. Custody status
     As a threshold matter, the Attorney General argues that
defendant was not in custody when he confessed and so Miranda


                                  43
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


has no application. (People v. Stansbury (1995) 9 Cal.4th 824,
833 [“ ‘Miranda warnings are required only where there has
been such a restriction on a person’s freedom as to render him
“in custody” ’ ”].) The Attorney General acknowledges that
defendant was under arrest and held in county jail when Hobson
questioned him, but maintains that such restriction on
defendant’s freedom related only to his parole violations. As
such, he was not in custody “for Miranda purposes as to the
Newhouse/Crawford cases at the time he confessed to the
crimes.” The trial court rejected this argument, and so do we.
      We recognize that a formal arrest does not always
constitute custody for Miranda purposes. (See Maryland v.
Shatzer (2010) 559 U.S. 98, 112 (Shatzer); Howes v. Fields (2012)
565 U.S. 499, 509 (Howes).) In Shatzer, supra, 559 U.S. at page
112, the high court explained that such an arrest or the
equivalent restraint in freedom of movement is “only a
necessary and not a sufficient condition for Miranda custody.”
In particular, an incarcerated person who is interrogated by the
police is not necessarily in Miranda custody. This is because
such a person is not always exposed to “the coercive pressures
identified in Miranda.” (Id. at p. 113; see also Howes, supra, 565
U.S. at pp. 508-509 [“ ‘custody’ is a term of art that specifies
circumstances that are thought generally to present a serious
danger of coercion”].)
      The high court returned to the same theme in Howes. The
court began by identifying “three strong grounds” why an
incarcerated person may not experience the coercive pressure of
Miranda custody. (Howes, supra, 565 U.S. at p. 511.) “First,
questioning a person who is already serving a prison term does
not generally involve the shock that very often accompanies
arrest.” (Ibid.) “Second, a prisoner, unlike a person who has not

                                  44
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


been sentenced to a term of incarceration, is unlikely to be lured
into speaking by a longing for prompt release.” (Ibid.) “Third,
a prisoner, unlike a person who has not been convicted and
sentenced, knows that the law enforcement officers who
question him probably lack the authority to affect the duration
of his sentence.” (Id. at p. 512.) Reviewing the facts of the case
before it, the court concluded that the prisoner “was not in
custody within the meaning of Miranda.” (Id. at p. 517.) In
coming to this conclusion, the court took “into account all of the
circumstances of the questioning” but thought the “[m]ost
important” factor was that the prisoner had been “told at the
outset of the interrogation, and reminded thereafter, that he
could leave and go back to his cell whenever he wanted.” (Id. at
pp. 517, 515.)
      This case is different from Shatzer or Howes. In those
cases, a person serving a prison sentence was brought in for
questioning on an unrelated crime. By contrast, here defendant
was not serving a term of incarceration when he was questioned,
and it is difficult to separate his jailed status from the
investigation into the Newhouse and Crawford murders.
Although the legal justification for defendant’s detention was a
parole violation, the impetus for the arrest was the perceived
similarity between defendant’s prior crimes and Crawford’s
disappearance. Moreover, defendant’s interactions with law
enforcement after his arrest all concerned the Newhouse and
Crawford investigation. At the time of his confession on April
22, defendant had been repeatedly questioned about the
disappearance of these two women. With good reason then,
defendant appeared to have understood that his custodial
status, although technically a parole hold, was connected to the
Newhouse and Crawford matters. This explains defendant’s


                                  45
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


uncontradicted statement that he was going to be on parole hold
“forever,” something that seems unlikely were defendant held
only for drinking alcohol and possessing something that looked
like a firearm.
      All this matters because, in such circumstances, the
rationales given in Howes concerning why a person would not
necessarily feel the coercive pressure of interrogation fall away.
Unlike the defendant in Howes, defendant was recently arrested
and presumably still experiencing “the shock that very often
accompanies arrest.” (Howes, supra, 565 U.S. at p. 511.) He
likely hoped for “prompt release” and so might have been lured
into speaking. (Ibid.) Finally, he might well have thought that
Hobson had “the authority to affect the duration” of his parole
hold. (Id. at p. 512.) Because law enforcement interest in
defendant appeared to have been motivated by the
disappearance of the two women, defendant might reasonably
have thought that if he could convince Hobson he was not
responsible for what happened to Newhouse and Crawford, he
might be released. This explains defendant’s willingness to
cooperate with the police — including by voluntarily answering
questions, giving law enforcement permission to search his
property, and undergoing a polygraph examination.
      Moreover, we find that defendant was, in fact, subject to
the coercive pressure associated with interrogation. At no point
was defendant told that he “could leave and go back to his cell
[at the county jail] whenever he wanted.” (Howes, supra, 565
U.S. at p. 515.) Indeed, when defendant asked to be taken back
to jail on April 21, Hobson took some time to accede to the
request. Hobson also used the time in the interim to try to elicit
incriminating responses from defendant — that is, to subject
him to interrogation. (See Rhode Island v. Innis (1980) 446 U.S.

                                  46
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


291, 300-301; Shatzer, supra, 559 U.S. at p. 112 [reasoning that
“the coercive pressure that Miranda was designed to guard
against” was the “ ‘danger of coercion [that] results from the
interaction of custody and official interrogation’ ”, italics
omitted].)    Considering the circumstances surrounding
defendant’s interrogation, we cannot say that a reasonable
person in his position “ ‘would have felt free to terminate the
interview and leave.’ ” (Howes, supra, 565 U.S. at p. 515.) We
therefore find that defendant was in custody for Miranda
purposes when he confessed.
                ii. Waiver and confession
      We now address the merits of defendant’s claim that his
confession should have been suppressed. Because defendant
seeks to suppress the statements that he gave on April 22 and
thereafter, we begin with the circumstances most immediately
surrounding these statements. The statements — detailed,
recorded admissions of how defendant kidnapped, raped, and
murdered Newhouse and Crawford — were taken after Hobson
advised defendant of his Miranda rights and confirmed that he
understood them. As long as defendant validly waived the
Miranda protection and voluntarily confessed, the statements
are admissible. (See Missouri v. Seibert (2004) 542 U.S. 600,
608-609 (Seibert) [“giving the warnings and getting a waiver has
generally produced a virtual ticket of admissibility; maintaining
that a statement is involuntary even though given after
warnings and voluntary waiver of rights requires unusual
stamina, and litigation over voluntariness tends to end with the
finding of a valid waiver”].)
     A valid waiver need not be express, but “may be implied
from the defendant’s words and actions.” (People v. Parker



                                  47
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


(2017) 2 Cal.5th 1184, 1216 (Parker).) When a suspect “ ‘having
heard and understood a full explanation of his or her Miranda
rights, then makes an uncompelled and uncoerced decision to
talk, he or she has thereby knowingly, voluntarily, and
intelligently waived them.’ ” (Id. at p. 1216.)
      There is no question that defendant “heard and
understood a full explanation” of his rights. (Parker, supra, 2
Cal.5th at p. 1216.) On April 22, Hobson twice read defendant
his rights, and defendant expressly stated that he understood
them. Moreover, defendant “had extensive prior experience
with the criminal justice system,” having been convicted of
numerous felonies before being interrogated in this case. (Ibid.)
Such familiarity bolsters the conclusion that defendant had “full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.” (Moran v.
Burbine (1986) 475 U.S. 412, 421; see also Parker, supra, 2
Cal.5th at p. 1216 [crediting such prior experience with the
criminal justice system].)
       Likewise, there is no dispute that defendant spoke to
Hobson — and so “act[ed] in a manner inconsistent” with the
exercise of his Miranda rights. (Berghuis v. Thompkins (2010)
560 U.S. 370, 385 (Berghuis).) After being apprised of his rights,
defendant “proceeded to actively participate in the conversation
with the detective[] — answering questions, asking for
clarification, and generally contributing to a discussion he knew
was being tape-recorded.” (Parker, supra, 2 Cal.5th at p. 1216.)
He did not once mention an attorney. Such conduct suggests
that defendant “has made a deliberate choice to relinquish the
protection those rights afford.” (Berghuis, supra, 560 U.S. at
p. 385.)



                                  48
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


       We now turn to the question whether the waiver and
confession were voluntary. The waiver in this case is inferred
from defendant’s confession, and defendant maintains that both
were involuntarily given because he was coerced. Defendant
lists a host of “tactics” that he said were “designed to overcome
[his] decision not to incriminate himself,” including “repeated
questioning after invocation, lies and misrepresentations
concerning the evidence, implied promises of leniency and
benefits, verbal commands to talk, physical touching, and an
approach of ‘softening-up’ [defendant].”
      Before addressing each of these interrogation techniques,
we note the following. First, when asked at the April 27
interview, defendant agreed that he had “always talked to
[Hobson] voluntarily,” and that Hobson had “never coerced
[him], threatened [him], [or] promised [him] anything.” (See,
e.g., People v. Spencer (2018) 5 Cal.5th 642, 673 (Spencer)
[taking account of the fact the defendant “acknowledged at the
end of the interview that his confession was ‘free and voluntarily
given’ ” and that “the officers made him no promises and that
they did not threaten him”]; People v. Dykes (2009) 46 Cal.4th
731, 753 (Dykes) [similar].)
      Second, and more important, defendant himself identified
why he confessed. The reasons did not involve any interrogation
tactic that he now claims was coercive. Instead, defendant said
he confessed because he felt “what [he] did was wrong” and
because the police had recovered blood from his vehicle’s seat.
Of all the things Hobson told him, defendant said it was
Hobson’s disclosure that the police had found blood on his
truck’s jump seat that “convinced [him] that [he] should talk.”
Hobson’s statement that the police had found Newhouse’s blood
on defendant’s jump seat was true and cannot be said to have

                                  49
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


been coercive. (People v. Holloway (2004) 33 Cal.4th 96, 115
(Holloway) [stating that proper questioning “ ‘may include
exchanges of information, [and] summaries of evidence . . .’ ”].)
Defendant’s own words thus undermine his claim that he
involuntarily confessed because of coercion.
       We nonetheless examine seriatim the complained-of
interrogation techniques. We do not find that, individually or
collectively, these techniques served to overbear defendant’s will
or to render his confessions involuntary. Defendant first claims
that Hobson improperly “continu[ed] to attempt to convince
[defendant] to talk on April 21st after repeated invocations of
[his] right to remain silent.” We will return below to the claim
that defendant “repeated[ly]” invoked his right to remain silent
on April 21. For the purpose of determining whether the
confessions were voluntary, however, it is enough to observe
that — even assuming Hobson failed to heed defendant’s
invocations of the right to remain silent on April 21 — that
failure did not produce the confession on April 22 or the
statements thereafter. (See People v. Williams (2010) 49 Cal.
4th 405, 437 (Williams) [“A confession is not involuntary unless
the coercive police conduct and the defendant’s statement are
causally related”].)
      There is no evidence that what Hobson said to defendant
after he lapsed into silence — the earliest time defendant claims
he invoked his right against self-incrimination — caused
defendant to confess. Hobson had already told defendant about
the blood found in his truck before defendant stopped
responding to questions. Thereafter, Hobson repeated the same
exhortations to tell the truth that he employed before defendant
stopped talking. Defendant was not swayed by what Hobson
said, telling Hobson that if he “keep[s] beating on me,” “[t]hen

                                  50
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


I’m not gonna say nothing. I know me.” And indeed, defendant
made no inculpatory statement on April 21. It was not until the
following day, after a night away from any importuning by
Hobson, that defendant made the inculpatory statements.
      In light of these facts, we find that Hobson’s “continuing
to attempt to convince [defendant] to talk on April 21” did not
cause defendant to confess and so did not render his confession
on April 22 or thereafter involuntary. (See People v. Carrington
(2009) 47 Cal.4th 145, 172 (Carrington) [“we conclude that
Sergeant Sherman’s comments did not affect defendant’s
decision to confess to the murder of Esparza, because she
maintained her innocence during the remainder of the second
interview and, during the third interview, revealed that she
already was aware that [what the sergeant said was false]”];
Rundle, supra, 43 Cal.4th at p. 114 [“Coercive police tactics by
themselves do not render a defendant’s statements involuntary
if the defendant’s free will was not in fact overborne by the
coercion and his decision to speak instead was based upon some
other consideration”].)
      We come to the same conclusion with regard to defendant’s
assertions that Hobson engaged in “lies and misrepresentations
concerning the evidence, implied promises of leniency and
benefits, verbal commands to talk, physical touching, and an
approach of ‘softening-up’ [defendant].” Defendant complains
that Hobson lied to him when he told him that the eight-ball
keychain had been “ ‘tested’ and found to have been
manufactured” later than when defendant said he found the
item. Defendant, however, expressly disclaimed that the eight-
ball keychain in itself caused him to confess, answering “[n]o”
when Hobson asked, “What if all I had was the 8 ball? . . . Would
you have confessed?”       Moreover, “[t]he use of deceptive

                                  51
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


statements during an interrogation . . . does not invalidate a
confession unless the deception is ‘ “ ‘of a type reasonably likely
to procure an untrue statement.’ ” ’ ” (Carrington, supra, 47
Cal.4th at p. 172.) We do not think that Hobson’s representation
about the keychain is of such a type. (See People v. Smith (2007)
40 Cal.4th 483, 505-506 (Smith) [listing cases in which courts
have found similar deceptive interrogation tactics permissible].)
       Defendant also claims that Hobson misrepresented that
“three witnesses will testify” to seeing defendant’s vehicle in
Crawford’s neighborhood. Defendant characterizes this as a
“lie,” because “[n]o such witnesses were ever called.” Yet, weeks
before he confessed, defendant himself admitted that he had
driven down Crawford’s street several times.            Hobson’s
statement about the three witnesses, whether or not true, thus
was not likely to procure an unreliable admission. (Carrington,
supra, 47 Cal.4th at p. 172.)
      Defendant attempts to bolster his argument about the
supposed misrepresentations by claiming that Hobson
“maximize[d] the psychological effect of his lies by repeatedly
insisting that he could be trusted.” We do not find that such
statements are either inherently coercive or here served to
undermine defendant’s will. Certainly, however many times
Hobson told defendant that he could trust him, defendant was
not inclined to believe Hobson or confess because of the “lies.”
We should not forget that defendant was a grown man,
experienced with the criminal justice system, physically
healthy, and displaying no indication that he was especially
susceptible to Hobson’s representations. As such, defendant
was rather well placed to resist interrogation. (See, e.g., Dykes,
supra, 46 Cal.4th at p. 752.)



                                  52
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


       We are likewise unpersuaded that Hobson “falsely told
[defendant] that the authorities would give him favorable
consideration if [he] confessed.” Hobson told defendant no such
thing. The message Hobson conveyed was that both he and the
district attorney wanted to know defendant’s “story” and why
defendant did what he did. Such sentiment cannot fairly be
taken to imply that the district attorney would give defendant
favorable treatment. (See Carrington, supra, 47 Cal.4th at
p. 174 [finding that the interrogators’ statements “did not
constitute a promise of leniency” when “[t]he interviewing
officers did not suggest they could influence the decisions of the
district attorney, but simply informed defendant that full
cooperation might be beneficial in an unspecified way”].) And
even if what Hobson said might be construed as suggesting that
defendant’s version of events could make a difference in how he
was prosecuted, this was not false. (Holloway, supra, 33 Cal.4th
at p. 116 [observing that some circumstances “can reduce the
degree of a homicide or, at the least, serve as arguments for
mitigation in the penalty phase”].) In any event, Hobson “did no
more than tell defendant of the benefit that might ‘ “flow[]
naturally from a truthful and honest course of conduct.” ’ ”
(Ibid.) Such statements did not render defendant’s subsequent
statements involuntary. (Id. at p. 115.)
      Defendant also complains that Hobson “physically
touched [him] and told him that talking to Hobson was
required.” We do not see how the physical touching that
occurred here was improper. Defendant makes “no claim of
physical intimidation or deprivation.” (Holloway, supra, 33
Cal.4th at p. 114.) Instead, he objects to the occasional touches
on his person because they were purportedly “psychologically
powerful.” Yet, even if the touches constituted “psychological


                                  53
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


ploys” and here “establish[ed] a false sense of rapport, intimacy,
and caring,” we still do not think that they were so coercive as
to “ ‘tend to produce a statement that is both involuntary and
unreliable.’ ” (Smith, supra, 40 Cal.4th at p. 501.)
      In addition, although Hobson said things like, “you got to
talk to me man,” “[i]t’s not going away,” and, “[w]e have to deal
with it,” it is clear that that Hobson was not requiring defendant
talk to him but exhorting him to do so. Moreover, defendant’s
conduct indicates that he knew he did not have to talk to
Hobson. Even if his refusal to continue answering questions
was not immediately honored on April 21, still defendant
managed to stop the interrogation. He did not begin talking
again until the next morning, and he did not give a full
confession until Hobson transported him to a place (from the jail
to the police station) more to his liking.
         Finally, defendant relies on People v. Honeycutt (1977) 20
Cal.3d 150 to argue that, because the waiver came on the heels
of Hobson’s “ ‘clever softening-up’ of [defendant] without
advising him of his rights,” the waiver was not valid. In
Honeycutt, we said that “[w]hen the waiver results from a clever
softening-up of a defendant through disparagement of the victim
and ingratiating conversation, the subsequent decision to waive
without a Miranda warning must be deemed to be involuntary
. . . .” (20 Cal.3d at p. 160.) That holding finds no application in
this case: Hobson did not disparage the victims, engage in
conversations that could be fairly characterized as
“ingratiating,” or fail to give defendant Miranda warnings
before he confessed. Moreover, Honeycutt has been limited to its
facts. In People v. Scott (2011) 52 Cal.4th 452, 478, we identified
“the two salient features of Honeycutt” as involving (1) an
interrogating officer who had a prior relationship with the

                                   54
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


defendant and who sought to “ingratiate” himself “by discussing
‘unrelated past events and former acquaintances’ ” and (2) the
officer disparaging the victim. (Id. at pp. 477-478.) When these
two features are not present, we found reliance on Honeycutt to
be “misplaced.” (Id. at p. 478; see also People v. Michaels (2002)
28 Cal.4th 486, 511 (Michaels) [rejecting the defendant’s
reliance on Honeycutt when the facts presented “are not at all
like Honeycutt, which . . . involved ‘an unrecorded 30-minute,
pre-Miranda conversation, discussing mutual acquaintances,
past events and finally the victim’ ”]; People v. Kelly (1990) 51
Cal.3d 931, 954 [finding Honeycutt “clearly distinguishable”
when “[n]o misconduct of [the type described in Honeycutt]
occurred here”].) It is likewise misplaced in this case.
                iii. Failure to advise on April 22
      Defendant alternatively argues that we should not focus
on the confessions obtained after the Miranda advisement on
April 22 but rather on the events preceding that advisement.
Specifically, defendant calls our attention to the fact Hobson did
not initially provide him with Miranda warnings when he
approached him on April 22.11 Only after defendant made two
inculpatory statements — “I’m nothing but an animal, and I
don’t deserve to live” and “Nothing can justify what I did” — did
Hobson read him his rights. Defendant claims that this shows
that Hobson engaged in an impermissible “question first, warn
later” technique that renders the warnings ineffective. As such,

11
      Defendant seems to assume that the Miranda advisement
was necessary on the morning of April 22. It is not entirely clear
that this is so, as defendant was reminded of his rights on April
21 and readvisement the next day may not have been necessary.
(See, e.g., Williams, supra, 49 Cal.4th at p. 434.) Nonetheless,
we engage with defendant’s arguments as he has laid them out.


                                  55
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


statements made after the warnings must be excluded. We
cannot agree.
      Under the high court’s precedent, the mere fact that a
defendant has made unwarned admissions does not render
subsequent warned confessions inadmissible. (See generally,
Oregon v. Elstad (1985) 470 U.S. 298 (Elstad); Seibert, supra,
542 U.S. 600.) In Elstad, supra, 470 U.S. at page 318, the court
held that “a suspect who has once responded to unwarned yet
uncoercive questioning is not thereby disabled from waiving his
rights and confessing after he has been given the requisite
Miranda warnings.” Instead, as long as both the initial
unwarned statement and the subsequent warned statement are
voluntary, the warned statement may be deemed the product of
a defendant’s “rational and intelligent choice” to confess and so
is admissible. (Id. at pp. 314, 318; see also Williams, supra, 49
Cal.4th at p. 448 [“Even when a first statement is taken in the
absence of proper advisements and is incriminating, so long as
the first statement was voluntary a subsequent voluntary
confession ordinarily is not tainted simply because it was
procured after a Miranda violation”].)
      Given that we already found the warned confession in this
case to be voluntary, we need only examine whether defendant’s
unwarned statements were also voluntary. The trial court here
found “no evidence that defendant’s will was overcome” when he
made the unwarned statements. We agree. The unwarned
portion of the interview on April 22 was short. Hobson testified
that his entire conversation with defendant at the jail lasted no
more than 15 minutes and defendant made the two inculpatory
statements within the first five minutes. During this time,
defendant was unrestrained and sitting in an employee break
room. Prior to defendant’s utterance of the two inculpatory

                                  56
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


admissions, Hobson’s statements to defendant that most
directly related to the crimes were “the situation . . . wasn’t
going to go away” and Hobson “needed him to tell . . . his side of
the story.” Consistent with our previous explanation, we do not
find such statements to be coercive.
       For his part, defendant appeared to have readily
cooperated. When Hobson told defendant that he wanted him
to tell the truth, defendant answered, “Okay,” but requested to
be taken “someplace else” first. Hobson then said to defendant
that before he “transported him back to the police department,”
he “wanted to make sure he understood exactly what we were
going to be doing and the questions that I was going to be asking
him.” Hobson thereafter advised defendant of his Miranda
rights, and defendant admitted to being responsible for the
disappearance and death of Newhouse and Crawford. Nothing
about this exchange suggests that defendant’s statements prior
to receiving the advisement were involuntary. As such,
although the unwarned statements must be suppressed (and
they were), the warned confession on April 22 and subsequent
statements were properly admitted.
       Defendant, however, argues that Elstad does not apply
because “Hobson deliberately used a ‘question first,’ warn later
technique in violation of Missouri v. Seibert.” In Seibert, the
high court confronted a situation where the interrogating officer
“made a ‘conscious decision’ to withhold Miranda warnings.”
(Seibert, supra, 542 U.S. at pp. 605-606.) The police officer
testified that he did so in accordance with “an interrogation
technique he had been taught: question first, then give the
warnings, and then repeat the question ‘until I get the answer
that [the suspect] already provided once.’ ” (Id. at p. 606.)
Another police officer testified that his department “promoted”

                                  57
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


“the strategy of withholding Miranda warnings until after
interrogating and drawing out a confession.” (Id. at p. 609.)
      Under such circumstances, a majority of the high court
found the warned confession inadmissible. (Seibert, supra, 542
U.S. at p. 604 (plur. opn.); id. at p. 618 (conc. opn. of Kennedy,
J.).)   The court fractured, however, on why that is so. A
plurality of four justices explained that “when interrogators
question first and warn later” (id. at p. 611 (plur. opn.)), the
later, warned confession is admissible only if             “in the
circumstances the Miranda warnings given could reasonably be
found effective.” (Id. at p. 612, fn. 4 (plur. opn.).) Under the
facts of the case, the four justices concluded that the
circumstances “do not reasonably support a conclusion that the
warnings given could have served their purpose,” and the
postwarning statements therefore were inadmissible. (Id. at
pp. 616-617 (plur. opn.).)
       Justice Kennedy concurred in the judgment but proposed
a different rule. In Justice Kennedy’s view, the plurality’s test
“cuts too broadly.” (Seibert, supra, 542 U.S. at pp. 621-622 (conc.
opn. of Kennedy, J.).) Justice Kennedy instead “would apply a
narrower test applicable only in the infrequent case, such as we
have here, in which the two-step interrogation technique was
used in a calculated way to undermine the Miranda warning.”
(Id. at p. 622 (conc. opn. of Kennedy, J.).) Under that approach,
where the “deliberate two-step strategy” was not employed,
“[t]he admissibility of postwarning statements should continue
to be governed by the principles of Elstad.” (Ibid.)
     The fractured nature of Seibert has given rise to a debate
over whether it is the plurality’s opinion or Justice Kennedy’s
concurrence that provides the controlling standard. (Compare


                                  58
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


U.S. v. Ray (6th Cir. 2015) 803 F.3d 244, 272 [“we adopt Seibert
plurality’s multi-factor test for this Circuit and direct the
district court to apply this test”] with U.S. v. Capers (2d Cir.
2010) 627 F.3d 470, 476 [“this Court joined the Eleventh, Fifth,
Ninth, Third, and Eighth Circuits in applying Justice Kennedy’s
approach in Seibert”]; U.S. v. Kiam (3d Cir. 2006) 432 F.3d 524,
532; U.S. v. Mashburn (4th Cir. 2005) 406 F.3d 303, 309
[“Justice Kennedy’s opinion therefore represents the holding of
the Seibert Court”]; U.S. v. Courtney (5th Cir. 2006) 463 F.3d
333, 338; U.S. v. Ollie (8th Cir. 2006) 442 F.3d 1135, 1142; U.S.
v. Williams (9th Cir. 2006) 435 F.3d 1148, 1157-1158; U.S. v.
Street (11th Cir. 2006) 472 F.3d 1298, 1313.) We need not decide
the matter here, as the result in this case would be the same
under either approach. (See U.S. v. Faust (1st Cir. 2017) 853
F.3d 39, 48, fn. 6 [“Because we find that Faust’s argument fails
under either [the plurality or the concurrence’s] approach, there
is no need to address this question here]; U.S. v. Heron (7th Cir.
2009) 564 F.3d 879, 885 [similar]; U.S. v. Carrizales-Toledo
(10th Cir. 2006) 454 F.3d 1142, 1151 [similar]; U.S. v. Straker
(D.C. Cir. 2015) 800 F.3d 570, 617 [similar].)
       Under the plurality’s approach, the relevant inquiry in a
“question first” scenario is “whether it would be reasonable to
find that in these circumstances the warnings could function
‘effectively’ as Miranda requires.” (Seibert, supra, 542 U.S. at
pp. 611-612 (plur. opn.).) In other words, “could the warnings
effectively advise the suspect that he had a real choice about
giving an admissible statement at that juncture? Could they
reasonably convey that he could choose to stop talking even if he
had talked earlier?” (Id. at p. 612 (plur. opn.).) In making this
determination, the trial court is to consider a number of factors,
including “the completeness and detail of the questions and


                                  59
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


answers in the first round of interrogation, the overlapping
content of the two statements, the timing and setting of the first
and the second, the continuity of police personnel, and the
degree to which the interrogator’s questions treated the second
round as continuous with the first.” (Id. at p. 615 (plur. opn.).)
      A consideration of these factors cuts in favor of admitting
defendant’s confessions.        Although all of the relevant
questioning here was conducted by a single person (Hobson)
over the course of a single day (thus satisfying the “continuity of
police personnel” factor), there was no extended questioning
before Miranda warnings were given; defendant’s prewarning
responses, though undoubtedly incriminating, were nonspecific
and lacking in detail; and, at defendant’s request, there was a
change of setting before he gave the detailed confession that was
ultimately used against him at trial. (Seibert, supra, 542 U.S.
at pp. 615-616 (plur. opn.).) Moreover, the conversation that
preceded the second round of interrogation alerted defendant
that he had a “real choice” whether to follow up on his earlier
incriminating statements or “stop talking.” (Id. at p. 612 (plur.
opn.).) Before reading defendant his rights, Hobson informed
defendant that he “wanted to make sure [defendant] understood
exactly what we were going to be doing and the questions I was
going to be asking . . . so we didn’t spend another two hours of
wasted time.” Hobson’s statements reasonably signaled to
defendant that it was up to him whether he wanted to answer
Hobson’s questions or, alternatively, to “waste” Hobson’s time.
Under these circumstances, we conclude that the warnings
“function[ed] ‘effectively’ as Miranda requires.” (Seibert, supra,
542 U.S. at pp. 612-613 (plur. opn.).)
      Defendant’s statement was likewise admissible under
Justice Kennedy’s approach. According to Justice Kennedy,

                                  60
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


Seibert does not control unless Hobson employed “the two-step
interrogation technique . . . in a calculated way to undermine
the Miranda warning.” (Seibert, supra, 542 U.S. at pp. 622
(conc. opn. of Kennedy, J.).) We find no such deliberateness
here.
       Although Justice Kennedy “did not articulate how a court
should determine whether an interrogator used a deliberate
two-step strategy,” the facts of Seibert and Elstad afford us some
guidance. (U.S. v. Williams, supra, 435 F.3d at p. 1158.) On the
one hand, we have nothing here like the circumstances of
Seibert. There is no evidence that the San Luis Obispo Police
Department or District Attorney’s Office had a policy of
“withholding Miranda warnings until after interrogating and
drawing out a confession,” or that Hobson was following such a
policy when he interrogated defendant. (Seibert, supra, 542 U.S.
at p. 609 (plur. opn.).)
        On the other hand, like the officers in Elstad, Hobson did
not provide warnings because he failed to “realize that a suspect
is in custody and warnings are required.” (Seibert, supra, 542
U.S. at p. 620 (conc. opn. of Kennedy, J.); Elstad, supra, 470 U.S.
at pp. 315-316.) Hobson testified that he did not advise
defendant of his Miranda rights on April 21 and did not
immediately provide him with those rights when he approached
him on April 22 because defendant “was not in custody on the
. . . disappearance of Rachel Newhouse and Aundria Crawford.
He was in custody on a parole violation.” In line with Justice
Kennedy’s identification of a failure to “realize that a suspect is
in custody and warnings are required” as a scenario properly
analyzed under Elstad principles, we find that Siebert does not




                                  61
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


control here. (Seibert, supra, 542 U.S. at p. 620 (conc. opn. of
Kennedy, J.).)12
      Other aspects of Hobson’s conduct persuade us that he did
not engage in “a two-step questioning technique based on a
deliberate violation of Miranda.” (Seibert, supra, 542 U.S. at
p. 620 (conc. opn. of Kennedy, J.).) Significantly, Hobson
advised defendant of his Miranda rights before defendant
confessed. (See Bobby v. Dixon (2011) 565 U.S. 23, 31 [“unlike
in Seibert, there is no concern here that police gave Dixon
Miranda warnings and then led him to repeat an earlier murder
confession, because there was no earlier confession to repeat”].)
Hobson also did not attempt to use defendant’s prewarning


12
      Of course, Hobson did provide defendant with Miranda
warnings on the morning of April 22 after defendant made
vaguely incriminating statements. This raises the question of
whether Hobson thought that defendant’s custody status had
changed at that point. On this issue, we note that Hobson did
not tie his recitation of the Miranda warnings to defendant’s
custody status. Instead, he described the sequence of events in
this way: After defendant asked to be taken “someplace else,”
he (Hobson) “told [defendant] before I transported him back to
the police department I wanted to make sure he understood
exactly what we were going to be doing and the questions that I
was going to be asking him so we didn’t spend another two hours
of wasted time. [¶] So at that point I advised Rex Krebs of his
Miranda rights, as read from the DOJ form, and then I asked
him the two questions.”        Thus, although Hobson never
pinpointed the precise moment he believed defendant’s custody
status changed, the timing of his advisement is consistent with
the (mistaken) belief that (1) defendant became “in custody”
after incriminating himself in response to Hobson’s “two
questions,” or (2) defendant acquired “in custody” status after
being transported to the police station, when Hobson got to
“doing” what he was going to do and asking “the questions [he]
was going to be asking.”


                                  62
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


statements to induce him to talk after advising him of his rights
under Miranda. (Bobby v. Dixon, supra, 565 U.S. at p. 31 [“[n]or
is there any evidence that police used Dixon’s earlier
[unwarned] admission to forgery to induce him to waive his right
to silence later”]; contra, Seibert, supra, 542 U.S. at p. 605 (plur.
opn.) [interrogating officer “confronted [the suspect] with her
prewarning statements”].)
       To be sure, Hobson could have read defendant his
Miranda rights before defendant made inculpatory statements
or agreed to tell the truth. Yet simply because an officer could
have given an advisement earlier is not enough to show that he
delayed “in a calculated way to undermine the Miranda
warning.” (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of
Kennedy, J.); see People v. San Nicolas (2004) 34 Cal.4th 614,
637, 639 [no finding of deliberateness despite the officer stating
“[i]f you want to talk to me, I’ll advise you of your rights” but
then forgoing the advisement when the suspect indicated that
he wanted to talk to an attorney first].) Likewise, that
advisement did issue after acquiescence to tell the truth does
not mean that the officer sought to undermine Miranda. (See
Williams, supra, 49 Cal.4th at p. 448 [reasoning that the
principles of Elstad apply even when advisement came only
after “the defendant’s letting ‘the cat out of the bag’ ”].) Last,
even if Hobson had no good reason for failing to give Miranda
warnings when he first approached defendant on April 22, there
is no ground to believe Hobson acted deliberately “to obscure
both the practical and legal significance of the admonition when
finally given” or that his conduct had such an effect. (Seibert,
supra, 542 U.S. at p. 620 (conc. opn. of Kennedy, J.).)




                                   63
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


      In light of the preceding, we find that defendant’s warned
confessions were properly admitted despite his prior unwarned
statements.
                iv. Failure to heed invocation on April 21
      Defendant further argues that the trial court erred in
admitting the statements he made on April 22 and thereafter
because Hobson failed to honor defendant’s invocation of his
right to remain silent on April 21. We agree that Hobson should
have stopped his interrogation on April 21 sooner than he did.
However, in light of the facts that defendant made no
inculpatory statements on April 21, that Hobson did not
overcome defendant’s will that day or any time thereafter, that
Hobson’s failure to honor defendant’s invocation was not
causally related to defendant’s subsequent decision to confess,
and that, at the time of his confession on the next day,
defendant’s right to cut off questioning was honored, we find no
error in the admission of the confession.
      As the trial court found and the prosecution conceded,
defendant invoked his right to remain silent on April 21.13 Like
the trial court, we need not decide the precise moment when
defendant made his invocation, except to observe that it was
later than when defendant claims he first asserted his right but
earlier than when Hobson said he understood defendant to have
done so.



13
      Hobson testified that he thought defendant asserted his
right to remain silent when he stated near the end of the
interview on April 21, “Nothing to say.” The prosecution’s
opposition to the motion to suppress acknowledged that
defendant had invoked his right at “the end of the interview.”


                                  64
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


        Defendant did not invoke his right to silence by merely
saying nothing for 15 minutes while Hobson talked. Prior to the
conversation arriving at this point, defendant had waived his
Miranda rights — first by signing a waiver on April 1 and again
by talking to Hobson after being reminded of his rights on April
21. (See, e.g., North Carolina v. Butler (1979) 441 U.S. 369, 373.)
Because defendant had previously waived his rights, a
subsequent invocation must be unambiguous to be effective.
(E.g., Berghuis, supra, 560 U.S. at pp. 381-382; People v.
Martinez (2010) 47 Cal.4th 911, 948 (Martinez).) In essence, he
needed to say “that he wanted to remain silent or that he did not
want to talk with the police.” (Berghuis, supra, 560 U.S. at
p. 382 [holding that a suspect who did neither of these things
following an earlier waiver “did not invoke his right to remain
silent”].) In the absence of such unambiguous statements,
Hobson was free to continue questioning defendant. (Martinez,
supra, 47 Cal.4th at p. 948 [“ ‘Faced with an ambiguous or
equivocal statement, law enforcement officers are not required
. . . either to ask clarifying questions or to cease questioning
altogether’ ”].)
      Likewise, when defendant requested that Hobson “[p]ut
me down in a holding cell and let me think,” he did not
unambiguously invoke his right to remain silent. Rather, he
likely “merely asked for a break from questioning.” (Rundle,
supra, 43 Cal.4th at p. 116.) Because defendant was then
housed at the county jail and so presumably could not be left in
the police station’s holding cell for long, the request to be put
back in a holding cell (so he could “think”) is reasonably
interpreted as a request to be left alone for a moment.
Interpreted this way, the statement stands in contrast to what
defendant said when Hobson returned from giving him a five-


                                  65
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


minute break: “Take me back to jail.” At that point, defendant
has arguably indicated that, beyond wanting a temporary break
from questioning, “he did not want to talk with the police.”
(Berghuis, supra, 560 U.S. at p. 382.) And even if this later
statement was ambiguous in the context of defendant’s previous
request for a short break (see Williams, supra, 49 Cal.4th at
p. 429), any ambiguity was resolved when defendant said, for
the first of two times, “Nothing to say.” By this point at the
latest, defendant had unambiguously invoked his right to
remain silent and Hobson should have stopped the
interrogation.
      Hobson did not stop. Instead, he continued questioning
defendant until defendant once again asserted that he had
“nothing to say.” Hobson testified that he understood defendant
to have invoked only at this point, when defendant repeated
himself. Even with this understanding, however, Hobson asked
defendant still more questions while transporting him back to
jail.
      Yet, despite the failure to honor defendant’s right to
remain silent on April 21, Hobson made no contact with
defendant for the next 18 hours. Moreover, as the trial court
found, defendant did not foreclose the possibility of Hobson
returning the next day. Indeed, when Hobson returned the
following morning, defendant showed no reluctance to talk,
readily answering questions and voluntarily confessing.
     The question is whether Hobson’s failure to honor
defendant’s invocation to remain silent on April 21 renders
inadmissible the statements obtained on April 22 and
thereafter. In Michigan v. Mosley (1975) 423 U.S. 96, 104
(Mosley), the high court held “the admissibility of statements


                                  66
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


obtained after the person in custody has decided to remain silent
depends under Miranda on whether his ‘right to cut off
questioning’ was ‘scrupulously honored.’ ”14 The court did not
address a situation in which the right to cut off questioning was
eventually, but not immediately, honored.
      In the years since Mosley was decided, we have never
found that an initial failure to honor a defendant’s invocation —
whether of the to remain silent or the right to have counsel
present — poses a categorical bar to the admission of any
subsequent statement regardless of the circumstances. Instead,
in case after case, we have held that despite the initial failure to


14
       California courts initially did not follow Mosley, rejecting
it in favor of the rule that “after a defendant has once
demonstrated he does not wish to waive his privilege against
self-incrimination, the police cannot lawfully subject him to a
new round of interrogation even if they repeat the Miranda
warnings.” (People v. Pettingill (1978) 21 Cal.3d 231, 238, 251.)
In 1982, however, California voters approved Proposition 8 and
amended the state Constitution to add a “Right to Truth-in-
Evidence.” Under this provision, “relevant evidence shall not be
excluded in any criminal proceeding.” (Cal. Const., Art. I § 28,
subd. (f)(2).)
       Although we have never expressly held that Proposition 8
abrogated Pettingill, our cases have clearly nodded in this
direction. (See People v. May (1988) 44 Cal.3d 309, 318 [“Given
the probable aim of the voters in adopting section 28[(f)(2)], . . .
it is not reasonably likely that the California voters intended to
preserve, in the form of a ‘statutory’ privilege, a judicially
created exclusionary rule expressly rejected by the United
States Supreme Court under the federal Constitution”]; In re
Lance W. (1985) 37 Cal.3d 873, 889 [similar]; Martinez, supra,
47 Cal.4th at p. 950 [applying Mosley without mentioning
Pettingill].) Perhaps for this reason, defendant does not seek to
rely on Pettingill, and we accept that the analysis should
proceed without reference to the Pettingill rule.


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                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


honor a Miranda invocation, a voluntary confession obtained
during a subsequent interrogation is admissible. Thus, in People
v. Bradford (1997) 14 Cal.4th 1005, 1040-1043 (Bradford), we
held that a warned confession was admissible despite the fact
that (1) a day earlier, detectives had persisted in interrogating
the defendant after he answered, “ ‘No. I want my lawyer,’ ” in
response to the questions, “ ‘Do you wish to give up the right to
remain silent? Do you want to talk to me about what happened
last night?’ ” (id. at p. 1025), and (2) the continued questioning
produced an admission that the defendant killed the victim. We
reasoned that suppression was not necessary because the first
confession was “ ‘unaccompanied by any actual coercion or other
circumstances calculated to undermine the suspect’s ability to
exercise his free will’ ” and the second (warned) confession was
“ ‘knowingly and voluntarily made.’ ” (Id. at p. 1040.) We
likewise did not suppress warned statements in People v. Storm
(2002) 28 Cal.4th 1007, 1039, despite the police having ignored
the defendant’s invocation of the right of counsel during an
interrogation two days earlier. We reached the same result in
People v. Sims (1993) 5 Cal.4th 405, 444, even though the police
there interrogated the suspect despite his clear statement from
the day before that he “would not waive his [Miranda] rights.”
(Id. at p. 437.) In contrast, we suppressed the defendant’s
confession in a case where we found the police not only
“intentionally continued interrogation . . . in spite of defendant’s
invocation,” but also induced an involuntary confession. (People
v. Neal (2003) 31 Cal.4th 63, 68, 74.)
      In light of our precedent, we conclude that Hobson’s
failure to honor defendant’s invocation of the right to remain
silent on April 21 does not compel the suppression of the
voluntary, warned statements taken on April 22 and thereafter.


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                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


Apart from his failure to immediately cease questioning,
Hobson’s interrogation techniques were not coercive.               In
addition, no “ ‘other circumstances’ ” existed to “ ‘to undermine
the suspect’s ability to exercise his free will.’ ” (Bradford, supra,
14 Cal.4th at p. 1040.) Indeed, defendant’s will was not
overcome on April 21 or at any time thereafter. Although
defendant was subdued during the April 21 interrogation and
cried during the drive back to the county jail, he showed a clear
ability to exercise his free will, including by stopping the
interrogation, refusing to incriminate himself, controlling when
he would be dropped off at the jail (by requesting that Hobson
drive around so that he could smoke), and directing Hobson to
turn into the jail despite Hobson’s last request for defendant to
take him to the bodies. Likewise, as explained ante, in part
II.B.1.ii, he exercised his free will when he voluntarily confessed
on April 22 after receiving his Miranda advisement.
       Nor should we forget that there was a period of about 18
hours in which defendant was subjected to no questioning after
invoking his right to remain silent. (Contra, People v. Peracchi
(2001) 86 Cal.App.4th 353, 362 [finding that a confession should
have been suppressed because “[d]espite Peracchi’s invocation of
his right to remain silent, the officer persisted in asking him
questions regarding why he did not wish to speak with the
officers at that time without even a momentary cessation in
questioning”]; Anderson v. Terhune (9th Cir. 2008) 516 F.3d 781,
791 [suppressing a confession when the court was “not faced
with a situation where there was a break in questioning after
the Miranda invocation”].) This was substantially longer than
the two-hour period in Mosley in which the suspect was left
alone and the court found questioning could be reinitiated.
(Mosley, supra, 423 U.S. at p. 104.)


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                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


      Finally, even though he did not do so immediately, Hobson
did honor defendant’s right to cut off questioning. On April 21,
Hobson asked if he could return to talk to defendant the next
day if he did not hear back from him, and defendant replied
“Maybe I’ll deal with it tomorrow,” or “Maybe. I’ll deal with it
tomorrow.” Whatever defendant’s exact response was, it seems
that Hobson could reasonably have understood it as conveying
that he could return the next day — if only to find out whether
defendant was willing to talk. When Hobson came to the jail on
April 22, defendant expressed no desire to remain silent, thus
indicating that he had decided that he would talk.
      We reject defendant’s reliance on People v. Montano (1991)
226 Cal.App.3d 914. In Montano, the court found that
Montano’s confession was actually coerced. In that case, not
only did police officers ignore Montano’s double-digit number of
invocations, they “aggravated the situation by using their
common religion to conjure up in defendant’s mind the picture
of confessing to avoid going to hell.” (Id. at p. 935.) Moreover,
the tactics “succeeded because the officers were not employing
them on a person who had a history of experience with police
interrogation or on someone who in the circumstances would
have unlimited powers of resistance. At the time of the
interrogation defendant was 18 years old, having entered the
country illegally 8 months before.” (Id. at pp. 935-936.) In these
circumstances, Montano’s will was overcome and he “tacitly
admitted that he alone was responsible for the victim’s murder.”
(Id. at p. 937.) In contrast, defendant here was not merely 18
years old; he did have “a history of experience with police
interrogation” (id. at p. 935); and he made no admission during
the interrogation in which he invoked his right to silence. (Ibid.)



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                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


Defendant simply was not coerced, and Montano supplies no
basis to suppress the confessions at issue here.
      To summarize, defendant was at no time coerced. He was
given an 18-hour break from interrogation after invoking his
right to remain silent; he left open the possibility for the officer
to reinitiate contact, and upon being contacted, cooperated with
the interrogation. When he confessed, his confessions were
preceded by Miranda warnings that effectively apprised him of
his rights. Without suggesting that all of the above must be
present or that any of those factors is sufficient, we conclude
that under these circumstances, the trial court did not err in
admitting the postadvisement confession obtained on April 22
and thereafter.
         2. Independent evidence of rape and sodomy of
             Crawford
      Defendant next argues his convictions for the rape and
sodomy of Crawford must be reversed because “insufficient
evidence aside from [his] confession exists to support” the
convictions. Defendant’s argument relies on the corpus delicti
rule, which “requires corroboration of the defendant’s
extrajudicial utterances insofar as they indicate a crime was
committed, and forces the People to supply, as part of their
burden of proof in every criminal prosecution, some evidence of
the corpus delicti aside from, or in addition to, such statements.”
(People v. Alvarez (2002) 27 Cal.4th 1161, 1178, italics omitted
(Alvarez).) We find that defendant’s confession was adequately
corroborated in this case.
      “The amount of independent proof of a crime required [to
satisfy the corpus delicti rule] is quite small.” (People v. Jones
(1998) 17 Cal.4th 279, 301.) The prosecution need not adduce


                                   71
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


“independent evidence of every physical act constituting an
element of an offense.” (Id. at p. 303.) Instead, it need only
make “some indication that the charged crime actually
happened,” so as to ensure “that the accused is not admitting to
a crime that never occurred.” (People v. Jennings (1991) 53
Cal.3d 334, 368 (Jennings).)
       In challenging his convictions for the rape and sodomy of
Crawford, defendant’s sole contention is that there was no
independent evidence “corroborating that she was in fact
sexually assaulted.” He concedes that there was “sufficient
independent evidence of rape against Newhouse since her body
was naked from the waist down when found.” In contrast, he
asserts there was insufficient evidence as to Crawford because
“Crawford’s body was fully clothed in sweat pants and a
sweatshirt.” The Attorney General disputes that Crawford was
fully clothed when she was found. Dr. Sterbenz, the pathologist
who observed the exhumation of the victims’ bodies, testified
that Crawford was found “partially clothed,” wearing “black
sweat pants” and “a black sweatshirt” with “a logo on it for the
Hard Rock cafe.” Crawford’s mother testified that her daughter
normally wore to bed “T-shirt and panties,” items that were
missing when her body was found. She also testified that the
Hard Rock Cafe sweatshirt was a “souvenir-type sweatshirt”
that her daughter would “just wear . . . for special occasions.”
      The testimony reasonably gives rise to the inference that
Crawford’s body was found “dressed differently” from when she
was taken from her house. Crawford was taken from her house
early in the morning after having gotten out of bed, as
independently corroborated by the state of her bed and the fact
that she was talking to a friend by phone until 2:46 a.m. on
March 11, 1999. Based on the timing and her mother’s

                                  72
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


testimony, the jury could have concluded that Crawford was
wearing underwear and a T-shirt when defendant abducted her.
Yet, her body was found with no underwear, no T-shirt, and
clothed in a “special occasion[]” sweatshirt that she did not
normally wear to bed. Thus, there was circumstantial evidence
that Crawford was “ ‘disrobed’ ” and “ ‘covered . . . again’ ” after
she was kidnapped. (People v. Ochoa (1998) 19 Cal.4th 353,
404.) This evidence suffices to satisfy the corpus delicti of
rape.15 (Id. at pp. 404-406 [finding the requisite corpus delicti
for rape when the victim was found with her pants on backwards
and her sweatshirt inside out, allowing for the inference that
she was disrobed and reclothed]; see also Alvarez, supra, 27
Cal.4th at p. 1171 [“[t]he independent proof may be
circumstantial and need not be beyond a reasonable doubt”].)
      Because the People have established the corpus delicti for
rape, they have also established the corpus delicti for sodomy.
(See People v. Jones, supra, 17 Cal.4th at p. 302-304 [finding the
corpus delicti for oral copulation satisfied although there was no
physical evidence on victim’s mouth because there was semen in
the victim’s other orifices and “we have never interpreted the
corpus delicti rule so strictly that independent evidence of every
physical act constituting an element of an offense is necessary”];
accord, Robbins, supra, 45 Cal.3d at p. 886.) Accordingly, we
affirm the convictions for the rape and sodomy of Crawford.


15
      Because we find “the physical evidence, and reasonable
inferences drawn therefore, satisfy the corpus delicti rule,” we
need not decide whether other-crimes evidence, including the
rape and sodomy of Shelley C. and the rape of Newhouse, also
establish the corpus delicti with regard to Crawford. (Jennings,
supra, 53 Cal.3d at p. 367; cf. People v. Robbins (1988) 45 Cal.3d
867, 886 (Robbins).)


                                   73
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


     C. Penalty Phase Issues
         1. Arguments involving testimony of defendant’s
            volitional impairment
       Defendant makes a series of arguments relating to Dr.
Dietz’s testimony that sexual sadism does not impair an
individual’s ability to control his or her behavior. The gist of
defendant’s arguments is that the testimony is inconsistent with
the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,
§ 6600 et seq.) or is demonstrably false as shown by the
existence of the act. Defendant also argues that the trial court
erred by excluding references to the SVPA and by failing to “give
proper instruction in light of the State’s expert testimony.” On
these bases, defendant urges us to reverse the death sentence.
            a. Background
      Despite being an expert for the prosecution, Dr. Dietz
agreed with Dr. Berlin, the defense expert, on many substantive
points. In particular, Dietz agreed with Berlin’s diagnosis of
defendant as a sexual sadist and an alcoholic. Dietz also
“agree[d] entirely” with Berlin that “people do not choose their
sexual deviations. They do not choose to become a sexual
sadist.”
      Dr. Dietz, however, disagreed with Dr. Berlin regarding
his diagnosis of antisocial personality disorder. In Dietz’s
opinion, defendant did have antisocial personality disorder.
Dietz explained the criteria for diagnosing the disorder, and
cited examples from defendant’s history to show that he met the
diagnostic criteria.
     In addition, although Dr. Dietz agreed with Dr. Berlin’s
diagnosis of sexual sadism, he offered a different understanding
of the disorder. According to Dietz, the sexual disorder


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                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


“amounts to saying what is it that turns the person on.” For a
person who is a sexual sadist, the things that he or she finds
sexually arousing include “bondage,” “captivity,” dominance,
“humiliation,” “spanking and whipping,” and “choking and
strangulation.” Dietz did not deny that it was “a problem to
have in life to want to do that to another person.” He explained,
however, that “[t]he way that people cope with that problem is
quite variable.” Although there were sexual sadists who
“commit violent crimes in order to fulfill their fantasies,” Dietz
stressed that “just a tiny group of the sexual sadists . . . ever get
to that point.”
      Crucially, Dr. Dietz disagreed with Dr. Berlin regarding
whether sexual sadism compromised an individual’s ability to
control his or her actions. As Dietz categorically stated,
“[s]omeone whose only problem is sexual sadism has only one
fundamental difference from normal people and that is a
difference in what excites them sexually. It doesn’t affect how
they think. It doesn’t affect their emotions. It doesn’t affect
their capacity to control themselves. It only affects what it is
that turns them on sexually.”
       The prosecution then asked Dr. Dietz about the
“policeman at the elbow” test. Dietz responded that “[t]hat’s a
test . . . long . . . used in the field of forensic psychiatry as a way
of looking at whether someone has volitional control, do they
have the free will to conform to the law.” Dietz, like Berlin,
stated that “had there been a policeman at [defendant’s] elbow,
he certainly would not have committed these crimes.” As such,
Dietz concluded that defendant “was fully aware that this was
wrong behavior and capable of stopping it with those kinds of
external controls.”



                                   75
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


        The prosecution then asked Dr. Dietz to evaluate Dr.
Berlin’s opinion. In particular, the prosecution asked, “Dr.
Berlin talked about the sexual sadism and the fantasies almost
becoming a compulsion. Is that — is that an opinion that’s
widely held in your field?” Dietz answered, “No, it isn’t. But
there is a group of people who are not in my field who come at it
from a Christian counseling point of view who have become very
fond of the idea of this being an addiction that begins with
masturbation, exposure to pornography, obscene phone calls.
And if one doesn’t find some spiritual relief or additional aid, it
can degenerate into horrible kinds of behavior such as this. [¶]
That’s not an accepted medical or psychological view. It’s the
fad that’s been around the last ten or fifteen years. [¶] And
that’s like the theory of this being a compulsion.” When cross-
examined, Dietz nonetheless agreed that “the jury, as part of the
process of making a decision in this case, should consider and
listen to Dr. Berlin,” specifically his opinion that “sexual sadism
. . . opens the door to irresistible impulse.” “[T]he jury’s got a
difficult job here,” Dietz explained, and “we’re in an area where
there are competing points of view.” Later in his testimony,
Dietz reiterated that “it’s arguable — that this [sexual sadism]
affects impulse control. It’s arguable that you could look at it
the way Dr. Berlin does. I respect his opinion, but I disagree
with him.”
       Despite his testimony that sexual sadism does not cause
volitional impairment, Dr. Dietz acknowledged that a mental
disorder contributed to defendant’s behavior. In his opinion,
however, that mental disorder was antisocial personality
disorder, not sexual sadism. As Dietz opined, “I think that the
reason [defendant] behaves in this way toward victims is
because he has an antisocial personality disorder. I think if he


                                  76
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


were a sexual sadist who didn’t have the — this disorder, he
wouldn’t be doing these bad acts.” In response to further
questioning, Dietz confirmed, “If he were only sexually sadistic
and did not have any other impairment, he wouldn’t have done
that [assaulted Jennifer E. or raped Shelley C.].”
        Dr. Dietz, like Dr. Berlin, was ultimately asked to opine
“whether at the time of the offense the capacity of the defendant
. . . to conform his conduct to the requirements of the law was
impaired as a result of a mental disease or defect.” Dietz gave a
two-part answer. First, he said that defendant did not suffer
from a mental disease or defect, as he defined those terms:
“mental diseases . . . are those conditions that cause a person to
have a profoundly entirely different view of reality than a
normal human being” and mental defects referred to “mental
retardation.” Second, Dietz said, “even if he did [suffer from a
mental disease or defect], we have evidence that his volitional
control was there.” Dietz then detailed the various decisions
defendant made that demonstrated he made a choice to rape
Newhouse and Crawford. These included “his decision to drink,”
as “he’s never even attempted rape when he’s sober”; “his
decision to lie to Dr. True,” telling “Dr. True he wasn’t having
sexual temptations, that he wasn’t drinking”; the decision to
“cruise,” or look for victims; the decision to “carry a rape kit,
which eventually came to include a mask, precut lengths of rope,
duct tape for gagging the victim . . .”; and finally, the decision,
“after the fight at Outlaws Bar,” to “stop[] trying to control his
fantasies and urges and . . . not make the effort anymore to
resist the urges that he had.” This last decision, “rather than
his not having the ability to control himself,” led to the deaths
of Newhouse and Crawford.



                                  77
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


             b. Analysis
                i. Asserted inconsistent theories
       Defendant argues that the prosecution “committed
prejudicial error by presenting evidence and theories regarding
volitional impairment [that are] inconsistent with those
presented by the People in civil commitment cases.” According
to defendant, the People’s experts in civil commitment
proceedings routinely testify that sexual disorders impair a
person’s ability to control him- or herself. Yet, the prosecution
in this case called an expert who said that sexual sadism has no
such effect.      Defendant contends that this amounts to
inconsistent prosecutorial theories and the use of such theories
violated his right to due process under both the United States
and California Constitutions.16
      Defendant is correct that “[a]t least where the punishment
involved is death, due process is as offended by the People’s
inconsistent and irreconcilable attribution of culpability-
increasing acts as by the inconsistent and irreconcilable
attribution of crimes.” (In re Sakarias (2005) 35 Cal.4th 140,
160.) But he ignores the principle that where “the asserted
inconsistencies in prosecutorial theory were not the subject of


16
      In a cursory manner, defendant also argues that the same
asserted inconsistencies violated the Eighth Amendment.
Neither of the cases he cites supports the idea that “the Eighth
Amendment . . . could be violated when the State takes
inconsistent positions for tactical advantages in a capital
sentencing proceeding.” (See Bradshaw v. Stumpf (2005) 545
U.S. 175, 187 [stating only that the court “express[ed] no opinion
on whether the prosecutor’s actions [in arguing inconsistent
theories about who shot the victim] amounted to a due process
violation”]; Caldwell v. Mississippi (1985) 472 U.S. 320 [no
mention of inconsistent theories].)


                                  78
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


any proceeding in the trial court and, hence, neither the
inconsistencies nor any explanations the prosecutor may have
been able to offer appear in the appellate record, any due process
claim defendant can state should be ‘presented by petition for
writ of habeas corpus rather than by appeal.’ ” (People v.
Sakarias (2000) 22 Cal.4th 596, 635 (Sakarias); see Spencer,
supra, 5 Cal. 5th at p. 694 [citing cases supporting the
proposition that “an inconsistent theories claim should be
brought — not on appeal — but in a habeas corpus petition”].)
       Defendant’s claim thus must be rejected because “the
asserted inconsistencies . . . were not the subject of any
proceeding in the trial court.” (Sakarias, supra, 22 Cal.4th at
p. 635.) Defendant concedes he did not argue before the trial
court that Dr. Dietz’s testimony was inconsistent with the
SVPA, and our review of the record confirms that to be the case.
Although defendant alerted the court that he wanted to ask Dr.
Berlin about the SVPA, the bases on which he sought to
introduce the testimony were not to show any inconsistencies
between the SVPA and Dietz’s opinion. Instead, defendant
argued that the SVPA was relevant because the program
showed that (1) a “mental disorder that lead to this lack of
volitional control was treatable” and (2) defendant’s lack of
treatment was due to institutional failure.
      To be sure, defense counsel mentioned in passing that the
SVPA “is impeachment of what I believe is Dr. Dietz’s position
that there is not volitional impairment.” However, counsel
never developed this position. Instead, he pressed the argument
concerning the treatability of sexual disorders and the issue of
institutional failure. Unsurprisingly, the court ruled only with
respect to these bases for admissibility.



                                  79
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


      In addition, when the court rejected defendant’s
arguments and so excluded references to the SVPA, it made
clear that its ruling was tentative. The court expressly stated
that it would be willing to reconsider its position. Despite the
court’s invitation, however, defendant never brought a motion
or thereafter called the court’s attention to any purported
inconsistencies between the SVPA and Dr. Dietz’s opinion.
Probably for this reason, the record contains no explanation
from the prosecutor about the asserted inconsistencies.17
       Under such circumstances, we find that “the asserted
inconsistencies in prosecutorial theory were not the subject of
any proceeding in the trial court.” (Sakarias, supra, 22 Cal.4th
at p. 635.) We therefore reject defendant’s inconsistent theories
claim, leaving it to be raised on habeas corpus.
                ii. Asserted false or misleading testimony
      Similar to his claim that Dr. Dietz’s testimony was
inconsistent with the SVPA, defendant contends that Dietz’s
testimony was false, as demonstrated by the existence of the
SVPA. Defendant argues the prosecution violated his due
process rights by relying on and failing to correct such false or
misleading testimony. (See, e.g., People v. Morrison (2004) 34

17
      Because defendant never raised the argument at trial, he
never had to explain why the fact that other prosecutors, in
unrelated civil cases, may call experts to opine that individuals
suffering from certain mental disorders are predisposed to
committing criminal sexual acts here amounts to the use of
inconsistent prosecutorial theories. (See Welf. & Inst. Code,
§ 6600 et seq.) At a minimum, defendant’s theory of a due
process violation is quite different from the situation we
confronted in In re Sakarias, supra, 35 Cal.4th 140, and nothing
we say here should be taken as suggesting that we find them
similar or endorsing an expansion of In re Sakarias.


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                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


Cal.4th 698, 716-717.) Unlike the inconsistent-theories claim,
we can decide this false-evidence claim on appeal.
        First, we note that the claim is forfeited. Defendant
complains that four different statements offered by Dr. Dietz
were false or misleading. These include: (1) “a paraphilia does
not impair volition”; (2) “Dr. Berlin’s view that it does is
unaccepted”; (3) “the ‘police man at elbow’ test is the appropriate
test for volitional impairment”; and (4) “sexual sadism [is] not
. . . a ‘mental disease or defect.’ ” Yet, defendant did not object
to any of this testimony at the time it was offered. Accordingly,
the claim that the evidence should not have been introduced or
that the prosecution violated due process by introducing such
evidence is forfeited. (Evid. Code, § 353, subd. (a); People v.
Hajek and Vo (2014), 58 Cal.4th 1144, 1214 (Hajek and Vo);
People v. Partida (2005) 37 Cal.4th 428, 436 [“To the extent, if
any, that defendant may be understood to argue that due
process required exclusion of the evidence for a reason different
from his trial objection, that claim is forfeited”].)
      Second, even if we were to overlook defendant’s forfeiture,
we still would not be convinced that the SVPA shows Dr. Dietz’s
testimony to be false. The SVPA is a civil commitment scheme
that permits the state to involuntarily confine individuals
proved to be “sexually violent predators.”18 (In re Howard N.
(2005) 35 Cal.4th 117, 127.) A “sexually violent predator” is “a
person who has been convicted of a sexually violent offense
against one or more victims and who has a diagnosed mental
disorder that makes the person a danger to the health and safety
of others in that it is likely that he or she will engage in sexually

18
      Defendant was never found to be a sexually violent
predator.


                                   81
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


violent criminal behavior.” (Welf. & Inst. Code, § 6600, subd.
(a)(1).)) “Diagnosed mental disorder,” in turn, is defined as “a
congenital or acquired condition affecting the emotional or
volitional capacity that predisposes the person to the
commission of criminal sexual acts in a degree constituting the
person a menace to the health and safety of others.” (Welf. &
Inst. Code, § 6600, subd. (c).) The SVPA does not specify that
any particular condition meets this definition. It makes no
mention of any sexual disorder, let alone the specific disorder of
sexual sadism. The language of the SVPA thus furnishes no
evidence to suggest that Dr. Dietz’s testimony regarding the
volitional effect of sexual sadism was false.
       Perhaps for this reason, defendant cites a number of
“published cases regarding SVP trials.” We question the value
of such cases to show that Dr. Dietz’s testimony was false. First,
we are aware of no authorities establishing that an expert’s
testimony is false as a matter of law, just because it purportedly
conflicts with other expert opinions given in other trials. Thus,
the fact that various experts may have offered opinions contrary
to Dietz’s does not mean these opinions have established that
any particular disorder precludes a defendant from controlling
his or her behavior. Instead, that remained an issue to be
resolved by the jury upon hearing the opposing experts’
testimony. (Accord, Ake v. Oklahoma (1985) 470 U.S. 68, 81
[“Psychiatry is not . . . an exact science, and psychiatrists
disagree widely and frequently on what constitutes mental
illness, on the appropriate diagnosis to be attached to given
behavior and symptoms, on cure and treatment, and on
likelihood of future dangerousness. Perhaps because there often
is no single, accurate psychiatric conclusion . . ., juries remain
the primary factfinders [and] . . . must resolve differences in


                                  82
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


opinion within the psychiatric profession on the basis of the
evidence offered by each party.”].)
      Second, the opinions in the cases cited do not conflict with
Dr. Dietz’s testimony. Dietz opined that for a person “whose
only problem is sexual sadism,” the disorder did not impair his
or her volition. (Italics added.) In other words, sexual sadism,
by itself, does not affect the individual’s capacity to control him
or herself. Dietz did not testify that no sexual disorder affected
an individual’s volition, or that individuals diagnosed with
sexual sadism and other mental disorders still categorically
have full control of themselves.
      Yet, defendant would have us read Dr. Dietz’s opinion this
way. Defendant complains that the prosecution’s theory at trial,
as established by Dietz’s testimony, is that “paraphilia does not
impair volition.” Paraphilia, or more accurately “paraphilic
disorders,” is the term psychiatrists use to refer to sexual
disorders. The fourth edition of the Diagnostic and Statistical
Manual of Mental Disorders, the version in use at the time of
defendant’s trial, discusses nine different paraphilic disorders.
(Diagnostic and Statistical Manual of the American Psychiatric
Association (4th ed. 2000) pp. 569-576 [referencing
exhibitionism, fetishism, frotteurism, pedophilia, sexual
masochism, sexual sadism, transvestic fetishism, voyeurism,
and paraphilia not otherwise specified (paraphilia NOS)]; People
v. Roberge (2003) 29 Cal.4th 979, 983, fn. 1 (Roberge).) Sexual
sadism is one of the nine paraphilic disorders; it is one specific
paraphilia. Hence, the prosecution’s theory was never that
“paraphilia,” meaning any and all paraphilic disorders, left a
person in full control of him- or herself. Instead, it was that one
particular paraphilic disorder — sexual sadism — did not
compromise a person’s ability to control him- or herself.

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                Opinion of the Court by Cantil-Sakauye, C. J.


      Thus, to the extent that cases applying the SVPA can have
a bearing on whether Dr. Dietz’s testimony about volitional
control was false, they must address sexual sadism. Yet many
of the cases defendant cited did not involve an individual
diagnosed with sexual sadism.19 (E.g., Kansas v. Crane (2002)
534 U.S. 407, 411 (Crane) [defendant diagnosed with
exhibitionism and antisocial personality disorder]; Kan. v.
Hendricks (1997) 521 U.S. 346, 354-356 (Hendricks) [defendant
diagnosed with pedophilia]; People v. Shazier (2014) 60 Cal.4th
109, 118-121 [defendant variously diagnosed with paraphilia
NOS, personality disorder NOS, narcissistic traits, or simply
personality disorder]; People v. Williams (2003) 31 Cal.4th 757,
761-762 [diagnoses of paraphilia NOS and psychosis NOS];
People v. Hurtado (2002) 28 Cal.4th 1179, 1184 [pedophilia and
antisocial personality disorder]; Albertson v. Superior Court
(2001) 25 Cal.4th 796, 799 [paraphilia NOS and antisocial
personality disorder]; Hubbart v. Superior Court (1999) 19
Cal.4th 1138, 1150 (Hubbart) [paraphilia NOS, with features of
bondage, “ ‘rape, sodomy and klismaphilia’ ”].) These cases do
not help us evaluate the truth or falsity of Dietz’s testimony that
sexual sadism does not impair volition.
      Nor do cases that feature a combination of diagnoses, of
which sexual sadism is only one, assist us. (E.g., People v. Allen
(2008) 44 Cal.4th 843, 852-854 [“defendant’s mental disorders
include paraphilia (specifically, an urge for sex with
nonconsenting adults), antisocial personality disorder,
psychosis, and cocaine dependency”]; Roberge, supra, 29 Cal.4th
at p. 983 [after changing her mind, one of the People’s experts

19
         A majority of the cases cited also postdate defendant’s
trial.


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                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


diagnosed the defendant with sexual sadism while the other
expert diagnosed him with paraphilia NOS and antisocial
personality disorder]; People v. Leonard (2000) 78 Cal.App.4th
776, 781 [defendant was diagnosed with “two mental disorders:
(1) paraphilia, rape, or sexual sadism; and (2) antisocial
personality disorder”].) Dr. Dietz testified that individuals
“whose only problem is sexual sadism” do not suffer from
volitional impairment.      He offered no categorial opinion
regarding persons suffering from sexual sadism and other
mental impediments. Accordingly, SVPA cases containing
testimony that a defendant was volitionally impaired and that
he or she was diagnosed with multiple mental disorders do not
contradict Dietz’s opinion.20
       We likewise find no evidence to suggest that Dr. Dietz
testified falsely when he stated that Dr. Berlin’s view was not
“widely held” within his field. We simply do not know what were
the views of psychiatrists on sexual sadism and the ability to
control oneself. Dietz himself testified that “ ‘we’re in an area
where there are competing points of view’ ” and said that
although he disagreed with it, the jury should consider Berlin’s
opinion. Insofar as defendant suggests Dietz’s views must have
been false, his suggestion relies on the premise that we can treat
all paraphilic disorders as interchangeable. Nothing in the
record or the cases cited allows us to do so.


20
      To the extent Dr. Dietz testified that defendant, who he
diagnosed as suffering from both sexual sadism and antisocial
personality disorder, was not volitionally impaired, his
testimony rested on the specific circumstances of defendant’s
case. The fact that somebody else suffering from the same
conditions may be impaired does not demonstrate that Dietz’s
testimony was false.


                                  85
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


       Similarly, we cannot conclude that Dr. Dietz provided
false or misleading testimony in stating that the “policeman at
the elbow” test was a test “used in the field of forensic psychiatry
as a way of looking at whether someone has volitional control.”
True: We have interpreted the SVPA’s requirement of a
“condition affecting the emotional or volitional capacity” (Welf.
& Inst. Code, § 6600, subd. (c)) to mean a condition that “causes
serious difficulty in controlling violent sexual impulses,” and not
one as to which “such control is impossible.” (People v. Superior
Court (Ghilotti) (2002) 27 Cal.4th 888, 921, fn. 12; see People v.
Williams, supra, 31 Cal.4th at p. 776; Crane, supra, 534 U.S. at
pp. 411-412.) Yet, Dietz was never asked to apply this particular
standard of volitional impairment. He also did not say that the
“policeman at the elbow” test showed that defendant had little
difficulty in controlling his behavior. Instead, Dietz testified
that the test indicated defendant “was fully aware that this was
wrong behavior and capable of stopping it with those kinds of
external controls.” This was entirely consistent with Dr.
Berlin’s testimony.
      Finally, we reject defendant’s argument that Dr. Dietz
“falsely and misleadingly suggested that only severely psychotic
or severely retarded persons could have the requisite ‘mental
disease or defect’ to establish volitional impairment under the
statutory mitigating factor (h)” of section 190.3. Dietz never
mentioned section 190.3, factor (h), or urged the jury to accept
the idea that “only severely psychotic or severely retarded
persons could have the requisite ‘mental disease or defect’ to
establish volitional impairment.” Indeed, given the extensive
testimony of Berlin and Dietz, no rational jury could have drawn
this conclusion. Berlin and Dietz argued at length about
whether sexual sadists suffered from volitional impairment, but


                                   86
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


the argument never pivoted on whether sexual sadism was or
was not a severe psychosis or a form of intellectual disability.
Dietz did not opine that defendant could control himself because
he suffered from neither severe psychosis nor serious
intellectual disability. Rather, he testified that defendant did
not suffer from a mental disease or defect but even if he did, his
behavior showed that his volitional capability was intact. The
testimony did not mislead the jury in the way defendant
suggests.
      In sum, we find that Dr. Dietz did not testify falsely and,
as such, the prosecution did not violate due process by failing to
“correct” his testimony.
                 iii. Exclusion of testimony concerning the
                      SVPA
      Defendant next contends the trial court’s exclusion of
testimony regarding the SVPA violated his Sixth Amendment
right to fully and fairly cross-examine Dr. Dietz and his Eighth
Amendment right to produce mitigating evidence.
       We begin with the Eighth Amendment claim. The
“ ‘Eighth Amendment requires that the jury be able to consider
and give effect to’ a capital defendant’s mitigating evidence.”
(Tennard v. Dretke (2004) 542 U.S. 274, 285.) “Thus, a State
cannot bar ‘the consideration of . . . evidence if the sentencer
could reasonably find that it warrants a sentence less than
death.’ ” (Ibid.) Despite this constitutional proscription, “the
trial court still ‘ “determines relevancy in the first instance and
retains discretion to exclude evidence whose probative value is
substantially outweighed by the probability that its admission
will create substantial danger of confusing the issues or
misleading the jury.” ’ ” (People v. Williams (2006) 40 Cal.4th


                                  87
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


287, 320; see also Romano v. Oklahoma (1994) 512 U.S. 1, 12;
People v. McDowell (2012) 54 Cal.4th 395, 431; People v. Loker
(2008) 44 Cal.4th 691, 731.) A trial court’s decision to exclude
asserted mitigating evidence is reviewed for an abuse of
discretion. (E.g., People v. McDowell, supra, 54 Cal.4th at
pp. 433-434; People v. Salcido (2008) 44 Cal.4th 93, 162; People
v. Williams, supra, 40 Cal.4th at p. 320.)
      Here, the trial court excluded references to the SVPA
when it rejected both of defendant’s bases for admissibility. The
court found that the SVPA was irrelevant to the issue of
institutional failure because defendant was, correctly, found
ineligible for confinement as a sexually violent predator (SVP).
Because defendant was not an SVP, he could not rely on the
SVPA to argue that the penal system should have afforded him
treatment available to those confined under the terms of the
statute. The court distinguished defendant’s case from People
v. Mickle (1991) 54 Cal.3d 140, 193 (Mickle), in which we held
that evidence that a defendant “had sought and/or been denied
treatment which might have controlled the same dangerous
personality disorder that purportedly contributed to the instant
crimes” was “relevant and admissible.”
     We agree that Mickle does not control the case before us.
In Mickle, the excluded evidence concerned “the state’s
‘improper’ diagnosis and treatment” of the defendant. (Mickle,
supra, 54 Cal.3d at p. 193.) In this case, the SVPA has no
bearing on whether the state improperly diagnosed and treated
defendant, given that defendant was not entitled to any care
under the statute.
      Moreover, even if the trial court erred by excluding
testimony about the SVPA for the purpose of establishing


                                  88
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


institutional failure, the error was harmless under any
applicable standard. (People v. Williams, supra, 40 Cal.4th at
p. 320.) Multiple witnesses testified regarding the failure to
provide appropriate care. Two correctional officers from Soledad
prison told the jury that there was no counseling for “sexual
predators” available at the prison and, even if there were,
inmates probably would not attend out of a concern for their
safety. Officer Zaragoza likewise said that San Luis Obispo
County afforded paroled sex offenders no “confidential
psychotherapy.” The only treatment parolees like defendant got
was from the outpatient clinic, and Dr. True, the doctor in
charge of that clinic, testified that he had very limited resources.
True further testified had resources been available, he would
have placed defendant in a number of additional treatment
programs. A different expert, Dr. Haney, opined that defendant
“received no psychotherapy, really no psychotherapy throughout
his entire life” despite clear signs that he needed treatment.
Defense counsel also emphasized institutional failure as a
mitigating factor in closing argument.                Under such
circumstances, “[n]o prejudice occurred.” (Mickle, supra, 54
Cal.3d at p. 194.)
      The trial court also disallowed testimony about the SVPA
for the purpose of bolstering Dr. Berlin’s testimony that sexual
sadism was a treatable condition. In so doing, the court
exercised its broad discretion under Evidence Code section 352,
finding the SVPA’s probative value to be “very limited” and
“substantially outweighed by . . . consumption of time.” The
court explained that the probative value of the statute was low
because the SVPA “wasn’t passed to treat [offenders].” Although
treatment is mandated under the SVPA (Welf. & Inst. Code,
§ 6606, subd. (a)), an individual may be involuntarily committed


                                   89
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


even when treatment is neither expected to be “successful” nor
“potentially successful.”     (Id. subd. (b) [“Amenability to
treatment is not required for a finding that any person is a
person described in Section 6600, nor is it required for treatment
of that person. Treatment does not mean that the treatment be
successful or potentially successful . . . .”]; Hubbart, supra, 19
Cal.4th at p. 1167; accord, Hendricks, supra, 521 U.S. at p. 366;
People v. McKee (2010) 47 Cal.4th 1172, 1195.) Accordingly,
when treatment is understood to mean effective treatment or
treatment that is at least “potentially successful,” the probative
value of the statute to show treatability is indeed limited. (Welf.
& Inst. Code, § 6606, subd. (b).) Moreover, the court correctly
noted that testimony about the SVPA would have resulted in
“consumption of time, which would be required to basically
educate the jury as to how the SVP[A] came about, what the
requirements are, what the purpose of the statute is,” etc. We
therefore cannot say that the trial court abused its discretion in
excluding the evidence.
      In addition to treatability and institutional failure,
defendant claims that he “clearly” advanced another theory of
admissibility at trial: “to support Dr. Berlin’s testimony and
prove that a paraphilia, and more specifically sexual sadism,
was generally accepted by state experts, jurists and prosecuting
attorneys nationwide to be the type of disorder that is capable
of impairing volitional control.” Defendant overstates how
“clearly” he argued this basis for admitting evidence of the
SVPA. But even assuming that he preserved the claim and the
trial court erred in excluding the evidence, any error was
harmless. Dr. Dietz himself stated that “we’re in an area where
there are competing points of view.” He told the jury “it’s
arguable — that this [sexual sadism] affects impulse control.


                                  90
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


It’s arguable that you could look at it the way Dr. Berlin does.”
Dietz informed the jury that he respected Berlin’s opinion and
said it should consider Berlin’s testimony that “sexual sadism
. . . opens the door to irresistible impulse.” Given Dietz’s on-
point testimony about the credibility of his opponent’s view
regarding volitional impairment and sexual sadism, exclusion of
testimony about the SVPA — a statute that does not even
mention sexual sadism — did not result in prejudice.
      We next examine defendant’s Sixth Amendment
argument that the exclusion of testimony concerning the SVPA
violated his right to fully and fairly cross-examine Dr. Dietz. To
prevail on his claim (assuming he has preserved it for review),
defendant must show that had Dietz been confronted with the
evidence, “the ‘cross-examination would have produced “a
significantly different impression of [the witness’s]
credibility.” ’ ”  (People v. Dement (2011) 53 Cal.4th 1,
52 (Dement); People v. Linton (2013) 56 Cal.4th 1146, 1188
(Linton); People v. Quartermain (1997) 16 Cal.4th 600, 623-624.)
      We do not think that introduction of testimony about the
SVPA would have significantly affected the jury’s impression of
Dr. Dietz’s credibility. The witness was thoroughly cross-
examined, including by being confronted with his own affidavit
from a prior case. In the affidavit, Dietz attested that sexual
sadism (1) “open[ed] the door to irresistible impulse testimony
from some experts”; (2) was “arguably the basis for a finding of
extreme emotional distress where the offender feels impelled by
strong sexual urges to commit the offense”; and (3) was a
disorder “ ‘for which specific treatments are available . . . that
can reduce or eliminate dangerousness.’ ” When so confronted,
Dietz not only acknowledged that he held those opinions, but
also said that he had changed his mind only on “one point,” no

                                  91
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


longer taking “the position that treatment can eliminate
dangerousness.” Accordingly, Dietz was impeached by his own
testimony on precisely those points on which defendant claims
the SVPA was relevant. Further impeachment with testimony
concerning the SVPA would not have “produced ‘ “a significantly
different impression of [his] credibility.” ’ ” (Dement, supra, 53
Cal.4th at p. 52; accord, People v. Smith (2015) 61 Cal.4th 18,
59-60 [explaining that there was no error when the court
excluded certain expert testimony after it “issue[d] a narrow
ruling” that still permitted testimony “in some areas”].)
       Defendant also complains that the restriction on his
ability to confront Dr. Dietz damaged his own expert’s
credibility. For the same reason given in our discussion of
defendant’s Eighth Amendment claim, we do not find that had
testimony regarding the SVPA been admitted, the jury would
have received a “ ‘ “significantly different impression” ’ ” of Dr.
Berlin’s credibility. (Dement, supra, 53 Cal.4th at p. 52.)
     In sum, we find no error in the exclusion of testimony
about the SVPA. When we have assumed error, the error was
harmless.
                 iv. Imposition of the death penalty upon
                     persons with a mental disorder that reduces
                     their volitional control
      Defendant contends imposition of the death penalty on
persons with a mental disorder that reduces their volitional
control to such a degree that they can be subject to civil
detention is excessive under the Eighth Amendment.
Defendant’s argument relies on Atkins v. Virginia (2002) 536
U.S. 304, 321 in which the high court held that “death is not a
suitable punishment for a mentally retarded criminal.”



                                  92
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


Defendant urges us to extend the rationale of Atkins to mentally
disordered criminals, making such offenders categorically
ineligible for the death penalty. We have considered such
invitations before and have consistently declined them. (E.g.,
People v. Powell (2018) 5 Cal.5th 921, 962-963 (Powell); People
v. Ghobrial (2018) 5 Cal.5th 250, 275-276; People v. Mendoza
(2016) 62 Cal.4th 856, 908-911 (Mendoza); People v. Boyce
(2014) 59 Cal.4th 672, 719-722; Hajek and Vo, supra, 58 Cal.4th
at pp. 1250-1252.) Defendant advances no persuasive reason for
us to reconsider our position, notwithstanding his assertion of
“a recent trend by state legislatures to view sexually violent
offenders’ crimes as the product of a non-psychotic mental
disorder which nevertheless impairs their volitional control.”
The same trend was in effect when we decided the line of cases
above, including cases from just a year ago.
      Consistent with our precedent, we reject defendant’s
claim. “We leave it to the Legislature, if it chooses, to determine
exactly the type and level of mental impairment that must be
shown to warrant a categorical exemption from the death
penalty.” (Hajek and Vo, supra, 58 Cal.4th at p. 1252.)
                 v. Jury instruction regarding lack of volitional
                    control
      Defendant contends the trial court erred in failing to give
an instruction defining the term “mental disease or defect.”
Following the language of section 190.3, factor (h), the court
instructed the jury that it should consider “whether or not at the
time of the offense the capacity of the defendant to appreciate
the criminality of his conduct or to conform his conduct to the
requirements of law was impaired as a result of mental disease
or defect or the effects of intoxication.” Defendant argues the
court had a duty to supplement this instruction on its own

                                  93
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


motion and instruct the jury as to the meaning of the term
“mental disease or defect.” Without such an instruction, “the
jury . . . may have accepted Dietz’s testimony and wrongly
ascribed a restrictive meaning to the statutory phrase ‘mental
disease or defect’ and therefore concluded that [defendant’s]
paraphilic disorder did not qualify under factor (h).”
      We are not convinced that the trial court was obliged to
define “mental disease or defect” in the absence of a party’s
request. A court’s duty to define statutory terms “arises where
the terms have a technical meaning that is peculiar to the law.”
(People v. Howard (1988) 44 Cal.3d 375, 408.) In contrast,
“[w]hen a word or phrase ‘ “is commonly understood by those
familiar with the English language and is not used in a technical
sense peculiar to the law, the court is not required to give an
instruction as to its meaning in the absence of a request.” ’ ”
(People v. Estrada (1995) 11 Cal.4th 568, 574 (Estrada).) We
have never held that as used in section 190.3, factor (h), the
phrase “mental disease or defect” carries a technical, legal
meaning requiring clarification on the court’s own motion. To
the contrary, “ ‘[t]he language of a statute . . . is generally an
appropriate and desirable basis for an instruction, and is
ordinarily sufficient when the defendant fails to request
amplification.’ ”   (Estrada, supra, 11 Cal.4th at p. 574.)
Defendant attempts to persuade us otherwise by citing cases
that deal with the term “mental disease or defect” in the context
of legal insanity. (In re Ramon M. (1978) 22 Cal.3d 419, 424-
428; People v. Weaver (2001) 26 Cal.4th 876, 968-969.) Those
cases are clearly inapposite because legal insanity is a technical,
legal concept.
     Moreover, defendant’s argument is not really that the
term “mental disease or defect” has some meaning other than

                                  94
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


that “ ‘ “commonly understood by those familiar with the
English language.” ’ ” (Estrada, supra, 11 Cal.4th at p. 574.)
Instead, it is that because a witness in this case has supplied a
definition for the term, the jury may be misled into adopting that
definition rather than using “the meaning that might be
ascribed to the same terms in common parlance.” (Id. at p. 575.)
Hence, defendant’s argument is really that the court should
have given an instruction to dissipate any potential confusion
caused by this particular witness’s testimony. At most, this
amounts to an argument for a pinpoint instruction to “relate
particular facts to a legal issue in the case.” (People v. Saille
(1991) 54 Cal.3d 1103, 1119.) Such instructions “are not
required to be given sua sponte.” (Ibid.)
        In any event, even assuming the court should have
instructed the jury on its own motion, the failure to do so was
harmless. As discussed earlier, no reasonable juror could have
drawn from the testimony of Drs. Berlin and Dietz the
conclusion that “only severely psychotic or severely retarded
persons could have the requisite ‘mental disease or defect’ to
establish volitional impairment.” The prosecution’s closing
argument bolsters the point. In discussing section 190.3, factor
(h), the prosecutor made no mention of whether defendant was
or was not psychotic or intellectually disabled. Instead, he
argued that defendant did not suffer “sexual compulsion.” The
prosecutor referred to Dr. Dietz’s testimony, stating “Dr. Dietz
. . . said that [defendant] makes his choices.” “But,” said the
prosecutor, “you know you don’t need an MD to know that. . . .
You should know that as well.” The prosecution thus exhorted
the jury to rely on its own experience, not any definition supplied
by Dietz (which was not even mentioned). Read as a whole, the
testimony and arguments are entirely inconsistent with the


                                  95
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


possibility that the jury may have been “misled about the nature
of the statutory mitigating factor.”
      Finally, even if the jury was somehow misled about section
190.3, factor (h), it could still consider defendant’s sexual
sadism, antisocial personality disorder, and any other diagnosis
of a mental condition under the section 190.3, factor (k), the
“catchall” factor. (Accord, People v. Smith (2005) 35 Cal.4th 334,
353 [“even though [section 190.3] factor (d) refers to ‘extreme’
emotional or mental disturbance, evidence of mental disorder of
less extreme character is admissible under factor (k)”].) No
reversible error occurred.
         2. Restriction on testimony that witnesses believed
            defendant should not be executed
       Defendant contends the trial court erred in limiting
testimony from some witnesses who would have testified that
they believed defendant should not be executed. The court
allowed defendant’s mother, sister, former girlfriend (Adonia
Krug), the mother to his son (Rosalynn Moore), and a spiritual
advisor to respond to the question whether each thought
defendant should receive life in prison instead of death. Each
gave the unsurprising answer that she thought defendant
should live. However, when defendant asked the same question
of Mosher, a staff member at the Children’s Home where
defendant was sent when he was 15, the prosecution objected
and the court sustained the objection. The court based its ruling
on the fact Mosher last saw defendant in 1983 and no longer had
a significant relationship with him. The defense then made an
offer of proof that Mosher, other staff members at the Children’s
Home, and Scheyt — the mother of the girl defendant dated in
1981 — would have testified that they thought defendant should
not receive the death penalty. The court affirmed its ruling as

                                  96
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


to all of these witnesses. Accordingly, although Mosher, other
members of the Children’s Home, and Scheyt testified to
defendant’s various positive characteristics and their high
opinions of him, they did not say whether they believed
defendant’s life should be spared.
      “[E]vidence that a family member or friend wants the
defendant to live is admissible to the extent it relates to the
defendant’s character . . . .” (People v. Smith, supra, 35 Cal.4th
at p. 367.) To be admissible, the witness must “have a
significant relationship with the defendant.” (Ibid.) We have
not, however, considered whether a person whose significant
relationship with the defendant ended more than a decade
before the event for which the defendant is on trial must be
allowed to give an opinion regarding whether he or she wants
the defendant to live. (Cf. People v. Smith, supra, 35 Cal.4th at
pp. 366-367 [finding that an educational therapist who had a
significant relationship with the defendant until three years
before his crime should have been allowed to testify that she did
not want him executed]; Mickle, supra, 54 Cal.3d at p. 194
[finding that the opinion of a close family friend that the
defendant’s life should be spared was relevant and admissible];
People v. Heishman (1988) 45 Cal.3d 147, 180, 194 (Heishman)
[holding that a former wife who had a daughter with the
defendant six years before the crimes in question should have
been allowed to say whether she thought the death penalty was
appropriate for him].) We need not reach the issue here because,
even assuming that the trial court should have permitted people
who knew defendant as a teenager to opine that his character
was such that he should live, the exclusion of the testimony was
harmless.



                                  97
                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


      Multiple people pleaded with the jury to spare defendant’s
life. His mother, sister, a childhood girlfriend (who kept in
contact with defendant), the mother of his child, and a spiritual
advisor all said that they wanted him to live. Moreover, the
witnesses who were not allowed to give their opinion regarding
the penalty nonetheless offered “direct evidence of defendant’s
character” and their testimony was “generally so supportive of
defendant that it is very unlikely that any juror would infer that
[they] would want to see him put to death.” (People v. Smith,
supra, 35 Cal.4th at p. 368; Heishman, supra, 45 Cal.3d at
p. 194.) Under such circumstances, “it is not reasonably possible
that the jury would have returned a different penalty verdict”
had it heard these witnesses say that defendant should not be
executed. (People v. Ervin (2000) 22 Cal.4th 48, 103; see People
v. Smith, supra, 35 Cal.4th at p. 368; Heishman, supra, 45
Cal.3d at p. 194.)
         3. Testimony of a former girlfriend concerning her
            relationship with defendant
      Defendant contends the trial court abused its discretion by
admitting testimony concerning why his relationship with
former girlfriend Liesel Turner ended. Over a defense objection,
the court allowed Turner to testify as follows. Although the
relationship was initially “very nice, very romantic,” Turner
eventually became frightened of defendant. Defendant told
Turner that his former girlfriend “had been raped and murdered
and that he had committed a crime so that he could get put in
jail so that he could go kill the person that had raped and
murdered her.” When Turner stated defendant told her he had
killed the person, the court interrupted. The court instructed
the jury that Turner’s statements that defendant murdered
someone “are admissible just to show why someone reacted to


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             Opinion of the Court by Cantil-Sakauye, C. J.


those statements. It’s not admitted to show that what’s in the
statement is true. . . . There’s not going to be any evidence that
what [defendant] said is, in fact, true, in fact, occurred. The
reason the statement is admissible is just to show why Ms.
Turner reacted to it.” Turner continued testifying, stating that
she eventually ended her relationship with defendant because
she “didn’t feel safe.”
      Before the trial court, defendant argued that Turner’s
entire testimony was improper because it exceeded the scope of
permissible rebuttal. The trial court rejected the argument,
finding that the testimony served two purposes: (1) to rebut
“character” testimony that defendant “does have the good
quality that he can have a good relationship with women,” as
defendant’s prior girlfriends (Krug and Moore) testified; and (2)
to rebut testimony from witnesses who said defendant’s
relationship with Turner was “good.”
      The court’s reasoning is sound and supported by the
record. Defendant had elicited statements from four women —
Krug, Moore, Krug’s mother, and a friend (Jaime Prisco) — to
establish that he had good intimate relationships with women.
In addition, he drew from two witnesses the testimony that
defendant and Turner had a “good” relationship. Hence, to the
extent that Turner’s testimony showed that she became afraid
of defendant and broke up with him because she “didn’t feel
safe,” the testimony tended to rebut the impression that
defendant’s relationship with women in general — and Turner
in particular — was as good as defendant’s witnesses had
suggested. “ ‘ “The admission of rebuttal evidence rests largely
within the sound discretion of the trial court and will not be
disturbed on appeal in the absence of ‘palpable abuse.’ ” ’ ”



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             Opinion of the Court by Cantil-Sakauye, C. J.


(People v. Smith, supra, 35 Cal.4th at p. 359.) We find no such
abuse here.
      Defendant further argues that even if Turner’s testimony
was relevant, it should have been excluded under Evidence Code
section 352. We agree Turner’s statement that defendant told
her he killed a person to avenge a girlfriend’s death had the
potential to create undue prejudice. However, the court
properly instructed the jury that the statement was not
admitted for its truth (to show that defendant did kill someone
for revenge) but only to explain Turner’s state of mind (to
explain why she became afraid of defendant). “Absent some
showing to the contrary, we presume the jury followed the
court’s instructions.” (People v. Merriman (2014) 60 Cal.4th 1,
48-49 (Merriman).) Defendant has not made such a showing,
despite arguing it was impossible for the jury to believe that
Turner was afraid of defendant without also believing that
defendant “did in fact plot and engage in murder.” A boast that
one has killed a person is disturbing in and of itself, even if it
was an empty boast intended to “impress” a girlfriend. The trial
court did not abuse its discretion by determining that, being
admitted for a limited purpose, the probative value of Turner’s
statement was not substantially outweighed by the danger of
undue prejudice.
         4. Admission of photograph of defendant
      Defendant contends the trial court abused its discretion by
admitting in the penalty phase a photograph of him, shirtless
and flexing. The prosecution authenticated the photograph as
having been taken in February 1999, after defendant killed
Newhouse but before he killed Crawford. The court allowed the
prosecution to admit the photograph as an exhibit and to display



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             Opinion of the Court by Cantil-Sakauye, C. J.


it to the jury during closing argument. Because defendant had
presented testimony and otherwise argued that he showed
remorse after his arrest, the court admitted the photograph as
evidence tending to suggest that the remorse was not genuine.
As the court stated, “here one of the main mitigating factors
that’s being argued is remorse. . . . I think it would be a
reasonable inference for the jury to look at this photograph and
decide that his remorse didn’t begin until he was arrested” and
so was “self-serving.”      The court acknowledged that the
photograph was “ambiguous,” or capable of giving rise to more
than one inference, but found that its admission would not be
“overly prejudicial,” because the adverse inference was not “an
unfair [one] to draw.”
      On appeal, defendant raises the same arguments that
were rejected at trial. He first asserts the photograph had no
relevance pertaining to remorse (or the lack thereof) because
“[r]emorse is a complex, changing state of mind, and is not
something that can be proved to be absent or present merely by
a picture.” Defendant’s argument misses the mark. Under
Evidence Code section 210, relevant evidence is evidence
“having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the
action.” (Italics added.) Accordingly, to be relevant and
admissible, the photograph did not need to “prove[]” “a complex,
changing state of mind”; it needed only to have a “tendency” to
do so. (Ibid.) In this case, the photograph tended to corroborate
evidence introduced at the guilt phase that defendant appeared
“in a good mood,” “joking around,” and “happy” in March 1999,
shortly after he killed Crawford and before he was arrested. As
such, it gave rise to a “reasonable inference . . . that
[defendant’s] remorse didn’t begin until he was arrested.” This,


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in turn, suggested that defendant’s “displays of remorse and acts
of contrition” were not genuine and therefore should be afforded
little value in mitigation. (See, e.g., Hajek and Vo, supra, 58
Cal.4th at p. 1239.) The trial court did not abuse its
“considerable discretion” in finding the photograph relevant.
(Merriman, supra, 60 Cal.4th at p. 74.)
      Second, defendant argues that the photograph should
have been excluded under Evidence Code section 352.
Specifically, he asserts that (1) “the court erred by failing to
weigh prejudice against probative value” because it mistakenly
treated the photograph as “ ‘circumstance of the crime’ ”
evidence under Penal Code section 190.3, factor (a); and (2)
properly weighted, the photograph should have been excluded
because it was unduly prejudicial.
      We do not think the trial court failed to weigh the value of
the evidence against the risk of undue prejudice. “[A] court need
not expressly weigh prejudice against probative value or even
expressly state that it has done so, if the record as a whole shows
the court was aware of and performed its balancing functions
under Evidence Code section 352.” (People v. Taylor (2001) 26
Cal.4th 1155, 1169 (Taylor); see People v. Riel (2000) 22 Cal.4th
1153, 1187-1188.)
      In this case, “the record as a whole” does so show. (Taylor,
supra, 26 Cal.4th at p. 1169.) Before admitting the photograph,
the trial court heard argument from both sides outside of the
presence of the jury. The court subsequently stated, “on the 352
issue, . . . I think 352 is different in the penalty phase than it is
in the guilt phase. And I think the penalty phase, you go to the
cases which deal with the victim impact evidence. And
obviously . . . some evidence presented in the penalty phase [is]


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emotional or . . . prejudicial and, in some cases overly so.”
“Ultimately,” concluded the court, “the court’s direction has been
that you need to discern whether [the evidence at issue] would
divert the jury’s attention from [its] duty in the penalty trial and
whether it would do so in a way that is unfair. [¶] . . . The real
test for rebuttal evidence simply is[,] is it proper rebuttal. And
. . . my judgment is the only way to — for 352 to exclude it at
that point would be if it would unfairly — be unfair in the sense
that it would divert the jury’s attention from [its] ultimate duty.”
The court thereafter admitted the photograph.
       Given this record, we cannot say that the court failed to
perform its duty under section 352 of the Evidence Code. The
trial court “held an extensive hearing outside the jury’s presence
to determine whether to admit the photograph[]” (Taylor, supra,
26 Cal.4th at p. 1169) and its statements during that hearing
showed that it understood that it could exclude the photograph
on section 352 grounds if the photograph “would divert the jury’s
attention from [its] ultimate duty.” Although the court also
mentioned “cases which deal with the victim impact evidence,”
it is clear that the court did not confuse the photograph with
victim impact evidence or apply some standard of prejudice that
was unique to such evidence. Considered as a whole, the record
does not support defendant’s claim that the trial court
mistakenly treated the photograph as Penal Code section 190.3,
factor (a)’s “circumstances of the crime” evidence.
      Regarding the issue of prejudice, defendant contends the
photograph was the prosecution’s “most potent weapon,” as
shown by the fact that the prosecutor displayed an enlarged
image of the photograph for about 18 minutes during its hour-
long closing argument. He also makes much of the trial court’s
remark that the prosecution “use[d] the photo effectively in

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              Opinion of the Court by Cantil-Sakauye, C. J.


argument.” Using a photograph to cast doubt on defendant’s
supposed remorse may have been effective, but there is nothing
improper about effective argument, or argument that
capitalized on the probative value of a piece of evidence. Put
differently, frequent use of a piece of evidence to undermine a
defendant’s attempt at mitigation does not equate to undue
prejudice. (See, e.g., People v. Daveggio and Michaud (2018) 4
Cal.5th 790, 824 [“ ‘ “ ‘ “Evidence is not prejudicial, as that term
is used in a section 352 context, merely because it undermines
the opponent’s position or shores up that of the
proponent” ’ ” ’ ”].) Having examined the photograph ourselves
and reviewed the record for the way in which it was used, we
find the court did not abuse its discretion in admitting the
image. (See, e.g., Michaels, supra, 28 Cal.4th at p. 532.)
         5. Admission of evidence that defendant lied about
            shooting a person
      To support his diagnosis of antisocial personality disorder,
Dr. Dietz recounted various instances in defendant’s history in
which he had displayed the diagnostic criterion of
“deceitfulness, as indicated by repeated lying.” Defendant now
complains about one such instance of deceitful conduct as
relayed by Dietz.
      The incident involved a shooting of a man in Santa
Barbara in 1987. During his April 27, 1999 interview, Hobson
asked defendant, “Just before you went to prison in ‘87,
somebody called Crime Stoppers, San Luis Obispo here, and
identified you as shooting somebody in the chest in Santa
Barbara three times over a drug deal. Wasn’t you?” Defendant
answered, “Shoot somebody in the chest three times, no. Wasn’t
me.” After the tape recorder was turned off, however, defendant
admitted that he had shot a man in the leg that year. Hobson

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             Opinion of the Court by Cantil-Sakauye, C. J.


documented the admission in a report, which was provided to
Dr. Dietz. The doctor, in turn, told the jury that defendant “was
asked about whether he had shot a man in Santa Barbara,” and
after having “said no, he hadn’t done it,” “he subsequently
admitted to Investigator Hobson that he had been the guy that
shot a man in the leg in Santa Barbara in 1987.” On cross-
examination, defense counsel suggested that Dietz did not know
whether defendant really shot a person in 1987. Dietz agreed
but countered that “[w]hether he lied when he said he didn’t
[shoot a person] or lied when he said he did, one of them’s a lie.”
      On appeal, defendant accuses Dr. Dietz of having
improperly “vouched” to the jury that defendant in fact shot a
man three times in the chest. We disagree. In his testimony,
Dietz said that after having first denied the incident, defendant
“subsequently admitted” that he “shot a man in the leg in Santa
Barbara in 1987.” Dietz never said that defendant shot
somebody in the chest three times. More to the point, the
incident was relevant to the doctor’s opinion insofar as the
inconsistency between the denial and the admission showed
that defendant was being deceitful in his interview with Hobson.
The actual details of how defendant shot the person — and
indeed whether defendant shot a person in Santa Barbara in
1987 at all — were immaterial.
     In short, Dr. Dietz’s testimony could not reasonably be
understood as vouching that defendant shot a person three
times in the chest, and the prosecution did not commit
misconduct in presenting his testimony.




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             Opinion of the Court by Cantil-Sakauye, C. J.


         6. Suggestion that defendant was convicted of sexual
            assault relating to the Jennifer E. incident
             a. Background
      Connie Ridley, defendant’s mother, testified that her son
should be spared the death penalty because “until the last few
years, [he] has hurt no one.” The prosecution sought to impeach
this assertion with pretrial statements Ridley made to its
investigators. According to an investigator’s report, Ridley had
said that defendant “got into a lot of serious trouble with the law
as he was growing up. He was convicted of a sexual assault
while in Sandpoint and was sent to the Cottonwood facility.”
The defense objected to Ridley being confronted with her
statements, pointing out that defendant did not “go to
Cottonwood for [the Sandpoint assault],” having instead “spent
a couple of months in county jail.”
       The assault the parties were referring to concerned 12-
year-old Jennifer E. The parties agreed that defendant pleaded
to a misdemeanor assault charge and was sentenced to the local
jail for the incident. The trial court nonetheless allowed Ridley
to be impeached with her pretrial statements, reasoning that if
she “had knowledge of — of a sexual assault that he had been
convicted of and, she believes, sent to prison,” then “even though
those aren’t the facts, . . . it directly impeaches her testimony”
that he “hasn’t hurt anyone up until the past few years.” In
accordance with the court’s ruling, the prosecutor asked Ridley,
“Did you tell Investigator Hanley and Investigator Hobson . . .
that your son, Rex, got into a lot of serious trouble with the law
as he was growing up?” Ridley answered yes, and the prosecutor
followed up with, “Okay. And that’s when you told them that he
was convicted of a sexual assault while in Sandpoint and was
sent to the Cottonwood facility?” Ridley again answered, “Yes.”


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                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


      The prosecution likewise cross-examined several
witnesses by referring to Ridley’s pretrial statement that
defendant “was convicted in Sandpoint Idaho of a sexual
assault.” Although these witnesses were examined before
Jennifer E. took the stand, Jennifer did testify. She told the jury
that one evening in February 1984, she found defendant on top
of her, trying to unzip her and his pants after she told him that
she did not want to have sex with him. As she continued to
struggle, defendant punched her “hard” “on the forehead, the
eye area, and . . . on the jaw.” The defense disputed few of the
details of the assault, simply drawing out that alcohol had been
involved.
             b. Analysis
      Defendant asserts the prosecutor committed misconduct
by “insinuat[ing]” to the jury during cross-examination that
defendant was convicted of yet another sexual assault in
addition to those relating to Shelley C., A.C., and the two
murder victims in this case. We reject the claim.
      It is well established that a prosecutor may not “ ‘ask
questions of a witness that suggest facts harmful to a defendant,
absent a good faith belief that such facts exist.’ ” (People v.
Bolden (2002) 29 Cal.4th 515, 562.) Under this standard, the
prosecution did not commit misconduct in questioning
defendant’s mother.       As the trial court explained, the
prosecution did not pose the complained-of question to Ridley to
suggest that defendant was convicted of a sexual assault and
sent to Cottonwood prison. Instead, he was asking her that
question to establish an inconsistency in her testimony: that
she believed her son, at 18, was sent to prison for sexual assault




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              Opinion of the Court by Cantil-Sakauye, C. J.


and yet still maintained that “until the last few years, [he] has
hurt no one.”
       A different analysis is called for when the prosecution
asked other witnesses about Ridley’s statement. With these
witnesses, the prosecution was not seeking to establish
inconsistencies, but rather implying the truth of its questions:
that defendant’s mother believed he was convicted of a sexual
assault because he was, in fact, convicted of such an assault. At
no point during trial, however, did the prosecution imply that
the sexual assault conviction was some conviction other than
that relating to Jennifer E. And Jennifer E.’s testimony —
largely uncontradicted by the defense — indicated that
defendant sexually assaulted her. Defendant struck Jennifer
while trying to undo her pants after she refused to have sex with
him. Under such circumstances, it is hardly misleading to call
defendant’s act a sexual assault. Indeed, all witnesses who
referred to the Jennifer E. incident described it as a sexual
assault of some sort. Defendant himself admitted in his
interview with Hobson that he attempted to rape a “young girl”
when he was 18. Dr. Berlin, the main defense expert, similarly
testified that “[a]t the age of 18, [defendant] . . . forced himself
sexually upon a young lady.”
      To the extent that defendant now claims that he was not
convicted of sexual assault, he seems to be drawing a hyper-
technical distinction: that his conviction for misdemeanor
assault, which stemmed from sexual assaultive conduct, was
different from “a conviction of sexual assault.” We are not
convinced that the distinction, if it exists, is meaningful.
Whether or not defendant was convicted of the specific crime of
sexual assault, he was convicted for conduct that any reasonable
jury would think of as sexual assault. As such, the prosecutor’s

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                         PEOPLE v. KREBS
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questions did not result in prejudice.               (E.g., People v.
Cunningham (2001) 25 Cal.4th 926, 1019.)
         7. Prosecutor’s remarks in opening and closing
            statements
       Defendant argues that the prosecutor committed multiple
instances of misconduct in his opening and closing remarks.
“ ‘ “As a general rule, a defendant may not complain on appeal
of prosecutorial misconduct unless in a timely fashion — and on
the same ground — the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety.” ’ ” (People v. Covarrubias (2016) 1
Cal.5th 838, 894 (Covarrubias).)
      Except as noted below, defendant failed to object to the
comments of which he now complains. Because an objection and
request for an admonishment would not have been futile,
defendant has forfeited his claims. (E.g., People v. Clark (2011)
52 Cal.4th 856, 960 (Clark); Spencer, supra, 5 Cal.5th at p. 683;
cf. People v. Bandhauer (1967) 66 Cal.2d 524, 530 [permitting
the defendant to raise the issue of prosecutorial misconduct for
the first time on appeal when the ground for objection was not
“apparent” until it was “too late to cure the error by
admonition”].) And, forfeiture aside, we find no merit to
defendant’s arguments.
            a. Use of the word “animal” and “argumentative
               attacks”
      Defendant begins by complaining that the prosecution
called him an “animal.”      In its opening statement, the
prosecution recounted the incident with A.C. After describing
how defendant broke into A.C.’s house, struggled with her down
the hallway, and banged her head on the wall, prosecutor said,


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                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


“finally this animal bites her on the finger so bad he cuts the
tendons in her finger.”
       “Argument may include opprobrious epithets warranted
by the evidence. [Citation.] Where they are so supported, we
have condoned a wide range of epithets to describe the egregious
nature of the defendant’s conduct,” including “ ‘monstrous,’ ”
“ ‘ “perverted murderous cancer,” ’ ” “ ‘ “human monster,” ’ ” and
“ ‘mutation.’ ” (People v. Zambrano (2007) 41 Cal.4th 1082, 1172
(Zambrano).)      No one disputes that defendant bit A.C..
Accordingly, an isolated reference to defendant as an “animal”
who bit his victim does not amount to misconduct.
      Defendant further objects to “argumentative attacks” on
his trial counsel. As part of his opening statement, the
prosecutor highlighted defendant’s criminal record and said, in
light of such record, it was “absolutely amazing” that defense
counsel would “want . . . you to give him a break.” The
prosecutor also emphasized the expected victim impact
statements. Referring to the defense attorney who argued that,
by confessing, defendant “was the one who helped bring closure”
to the victims’ families, the prosecutor said, “[s]he doesn’t
understand this. There has been no closure for these families.”
We fail to see any misconduct. “When the comments are
considered in context, there is no likelihood that the jury would
have understood the comments as anything beyond criticism of
defense counsel’s tactical approach in argument and the defense
view of the evidence in the case, as is allowed.” (Linton, supra,
56 Cal.4th at p. 1206.)




                                 110
                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


             b. Comments on defense mitigation strategy,
                experts, and counsel
      Defendant complains that the prosecutor improperly
denigrated his mitigation strategy, expert witnesses, and trial
counsel. Defendant’s strategy at the penalty phase was to offer
evidence of his childhood abuse, mental illness, and the failure
of various institutions to treat him. The prosecution previewed
this strategy by telling the jury, “[t]he evidence you will be
presented with from these defense attorneys will try to blame
everybody but their client. They’ll call it an explanation, but it’s
really a blame game. They’re going to blame the State of Idaho.
They’re going to blame the State of California. . . . Mostly
they’re going to blame [defendant’s] father.” The prosecutor
returned to the same theme in closing argument, arguing that
defense was “trying to deflect . . . responsibility” and instead
“lay some kind of a guilt trip on you for what their client truly
deserves.” The prosecutor also characterized the defense as
offering an “ ‘abuse excuse.’ ”
       We find no misconduct. The thrust of the prosecutor’s
argument was that defendant alone was responsible for his
crimes and could not shift the blame onto others, even if he did
suffer abuse, mental disorder, and lack of treatment. There is
nothing “deceptive” or “reprehensible” about such an argument.
(E.g., People v. Gonzales (2011) 51 Cal.4th 894, 947 (Gonzales).)
“Prosecutors may attack the defense case and argument. ‘Doing
so is proper and is, indeed, the essence of advocacy.’ ” (People v.
Thornton (2007) 41 Cal.4th 391, 455 (Thornton).) Likewise, the
prosecutor’s use of pungent language, calling defense strategy a
“blame game,” “guilt trip,” or “abuse excuse,” does not rise to the
level of misconduct.       (E.g., ibid. [no misconduct in the
prosecutor’s suggestion that “defendant was relying on an


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                         PEOPLE v. KREBS
             Opinion of the Court by Cantil-Sakauye, C. J.


‘abuse excuse’ ”]; People v. Davis (1995) 10 Cal.4th 463, 539
(Davis) [no misconduct when the prosecutor said the defense
strategy was “ ‘to attack and smear everybody they could in the
hopes of somehow deflecting or diffusing blame’ ” and “ ‘to try
to lay a guilt trip on you’ ”].)
      As part of the same argument, defendant also objects to
the prosecutor’s attacks on the credibility of Drs. Berlin and
Haney. Defendant did not lodge specific objections against these
statements.21 And even if he did, “ ‘harsh and colorful attacks
on the credibility of opposing witnesses are permissible.’ ”
(Clark, supra, 52 Cal.4th at p. 962.) So, too, are remarks “to
expose bias in the witness[es] by showing [their] propensity to
advocate for criminal defendants even in extreme cases.”
(Zambrano, supra, 41 Cal.4th at p. 1165.) Accordingly, none of
the prosecutor’s remarks amounts to misconduct.
       Finally, defendant accuses the prosecutor of having
impugned the integrity of defense counsel. In his closing
argument, the prosecutor posed the rhetorical question, “You
think they just pick these witnesses out of a hat? You think a
lot of this defense was orchestrated?” Later, referring to the fact
that Dr. Haney sat in on an interview that Dr. Berlin conducted
with defendant, the prosecutor said, “What kind of
professionalism is that? . . . [¶] Why did they do that? Was it
to get all the ducks in a row?”

21
      Defendant did object when the prosecutor said “to show
you how absolutely ridiculous the defendant’s psychology team
is, we will present Dr. Park Dietz.” The objection, however, was
on the ground that the prosecution should not be able to
“reference . . . any rebuttal evidence . . . in opening statement,”
an objection entirely different from the argument now raised on
appeal.


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                          PEOPLE v. KREBS
              Opinion of the Court by Cantil-Sakauye, C. J.


         It is true that “[a] prosecutor is not permitted to make
false or unsubstantiated accusations that counsel is fabricating
a defense or deceiving the jury.” (Clark, supra, 52 Cal.4th at
p. 961.) In context, however, the prosecutor’s statement that the
“defense was orchestrated” does not appear to rise to an
insinuation of deceit. The prosecutor contrasted “orchestrated”
with “pick[ing] . . . witnesses out of a hat.” So by saying that the
defense was “orchestrated,” the prosecution seemed to mean
that it was carefully crafted, or presented with a deliberate
selection of witnesses. Of course, there is nothing untoward in
a careful selection of witnesses. But then it is not misconduct
either to tell the jury that as the opposing party was deliberate
and selective in its presentation, the jury should be aware of the
fact and judge the case accordingly. (Accord, Davis, supra, 10
Cal.4th at pp. 538-539 [rejecting the claim that the prosecution
accused the defense of “manipulating witnesses and suppressing
testimony of uncooperative witnesses” when it suggested that
the defendant’s brother, unlike his sisters, did not testify
because “ ‘he knew what they wanted and wasn’t willing to do
it’ ”].)
      Likewise, the statement that the defense witnesses
interviewed defendant together “to get all the ducks in a row”
was not misconduct. The prosecution implied that the defense
coordinated its experts but stopped short of insinuating that the
experts lied. In any event, the comment was brief and
interposed in the middle of a lengthy closing argument. It did
not result in prejudice.
             c. Asserted statement of personal belief
     Defendant asserts the prosecutor improperly injected his
personal belief by beginning his closing statement with the



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following: “While some of us have been working on this case for
over two years now . . . you, too, have now devoted a significant
portion of your lives to this case. . . . [¶] You realize now what
so many of us have realized for a long time. You realize now you
have been in the presence of one of the most cruel, calculating,
and brutal individuals on the planet, Rex Allan Krebs.”
      Prosecutors may not “base argument on facts not in
evidence” or otherwise seek to “ ‘ “bolster their case ‘by invoking
their . . . depth of experience, or the prestige or reputation of
their office.’ ” ’ ” (Mendoza, supra, 62 Cal.4th at p. 906; Linton,
supra, 56 Cal.4th at p. 1207.) Here, the prosecutor did not do
either of those things. At closing argument, after the jury has
heard all the evidence, the prosecutor urged it to “realize” that
defendant was a most “cruel, calculating, and brutal
individual[].” Although the prosecutor indicated that by coming
to such a realization, the jury would be agreeing with the
prosecution’s poor opinion of defendant, it nowhere suggested
that the prosecution formed that opinion based on “ ‘ “evidence
available to the government, but not before the jury.” ’ ” (Linton,
supra, 56 Cal.4th at p. 1207.) Nor did it imply that the jury
should adopt the prosecution’s view because of its “ ‘ “ prestige,
reputation, or depth of experience.” ’ ” (Ibid.) Accordingly, there
was neither impermissible vouching nor reliance on evidence
outside the record.
             d. Asserted mischaracterization of Drs. Berlin and
                Haney’s testimony
      Defendant raises additional issues relating to the
prosecutor’s characterization of Drs. Berlin’s and Haney’s
testimony. With regard to Berlin, defendant objects to the
portion in the prosecutor’s closing argument in which he said:
“the defense attorney[] seeks out Dr. Berlin from across the

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country. Can’t find somebody in California. Can’t even find
somebody west of the Rockies. Gets Dr. Berlin from across the
country to travel to California.”
       Generally, “prosecutors have wide latitude to discuss and
draw inferences from the evidence presented at trial.”
(Thornton, supra, 41 Cal.4th at p. 454.) In this case, no one
disputed that Dr. Berlin was affiliated with Johns Hopkins
University and so was “from across the country.”                The
implication of the prosecution’s statements goes further than
that, however. By remarking that “the defense . . . can’t . . . find
somebody west of the Rockies” and had to go “across the country”
to “seek[] out Dr. Berlin,” the prosecution implied that Berlin’s
views were idiosyncratic, not shared by anyone “west of the
Rockies.” Yet Dr. Dietz — the prosecution’s own witness —
testified that although he and Berlin disagreed, “we’re in an
area where there are competing points of view” and Dietz
respected his colleague’s opinion.        The prosecution also
represented during voir dire that Berlin was “one of the top
psychologists in the country.” As such, there is some tension
between the prosecutor’s closing argument and what he and his
expert had said elsewhere.
      Nonetheless, even assuming the prosecutor overstepped
his bounds, any error is not prejudicial. The jury was told of Dr.
Berlin’s credentials, that he was “an associate professor at the
John[]s Hopkins University,” “an attending physician at the
John[]s Hopkins’s Hospital,” “the founder of the John[]s Hopkins
Sexual Disorders Clinic,” and the director for a national
institute on sexual trauma. In addition, the jury knew that
Berlin had published in peer reviewed journals, spoken to
judges, appeared before senators, and been certified by
numerous professional boards. It also knew that Berlin did the

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same residency at Johns Hopkins and served on the same “DSM
publication committee” as Dr. Dietz. In addition, the jury heard
a direct rebuttal to the charge that the defense “couldn’t find a
doctor west of the Rockies.” As defendant’s attorney stated, “We
went to John[s] Hopkins. They went looking for the best guy
they could find. We went looking for the best guy we could find.
They’re both from John[s] Hopkins.”
      Finally, the court instructed the jury regarding expert
testimony. It twice told the jury to “consider the qualifications
and believability of the witness” as well as the underlying bases
for their opinions. The instructions for the jury to focus on the
relevant matters, combined with the rebuttal revealing the
tenuous ground on which the prosecution asserted that Dr.
Berlin’s opinion could not be found “west of the Rockies,”
eliminated any reasonable possibility that the jury would have
been persuaded to reach a different penalty verdict absent the
prosecutor’s challenged comments.
      With regard to Dr. Haney, defendant is correct that the
prosecution misstated the record when it said, “He called him
the ‘Hole Boy.’ ” The term “hole boy” or “hole kid” referred to the
period of time that defendant spent in isolation during his stay
at Cottonwood prison. Defendant had represented to Haney
that he did a significant amount of time in isolation, going so far
as call himself the “Hole Kid.” But it was defendant who gave
himself that name; Haney did not call defendant the “hole kid”
or “hole boy.”
      It is clear, however, that the misstatement does not
warrant reversal of the death judgment. The moniker “hole boy”
or “hole kid” was relevant to the prosecution’s argument insofar
as it tended to show that Dr. Haney was biased; after all, he


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knowingly depended on defendant — a witness with a motive to
lie — to supply his social history. To the extent that defendant
indeed lied about how much time he spent in isolation, the
prosecution’s point was valid. The fact that Haney did not call
defendant a “hole boy” had little significance.
            e. Exhortation for the jury to be “outraged”
      Finally, defendant urges us to find misconduct in a
comment the prosecutor made toward the end of his closing
statement. “Justice,” said the prosecutor, “is not served until
the citizens of our community, jurors and citizens alike, are as
outraged by what Rex Krebs did as the families of his victims.”
“[P]rosecutorial references to community vengeance, while
potentially inflammatory, are not misconduct if they are brief
and isolated, and do not form the principal basis for advocating
the death penalty.” (Zambrano, supra, 41 Cal.4th at p. 1178.)
The brief comment here does not amount to error.
         8. Order to submit to psychiatric examination by
            prosecution expert
      Over defense objection, the trial court ordered defendant
to be examined by Dr. Dietz. Defendant refused and was not
examined, a fact Dietz disclosed during his testimony. The
prosecution also mentioned defendant’s refusal to be examined
in closing argument, stating, “the defendant will spend days
talking to Dr. Berlin . . . but when the Court orders the
defendant to talk to Dr. Dietz . . . the defendant refused.
Where’s the fairness in that? Who’s looking for the truth?”
      On appeal, the Attorney General concedes that the court
erred in ordering defendant to be examined by Dr. Dietz. (See
Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1109 (Verdin)
[“any rule that existed before 1990 suggesting or holding a


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criminal defendant who places his or her mental state in issue
may thereby be required to grant the prosecution access for
purposes of a mental examination by a prosecution expert was
superseded by the enactment of the criminal discovery statutes
in 1990”]; Gonzales, supra, 51 Cal.4th at p. 927, fn. 15 [applying
Verdin retroactively].)22 The Attorney General argues, however,
that the error did not cause prejudice. We agree.
      This case is much like People v. Wallace (2008) 44 Cal.4th
1032, 1087-1088 (Wallace), where we found the Verdin error
harmless. As in Wallace, the prosecution expert here “did not
rely on defendant’s refusal to participate in the court-ordered
examination” to criticize his opponent’s conclusions. (Id. at
p. 1087.) Moreover, “the brutality of defendant’s crimes . . .
weighs heavily in aggravation.” (Ibid.) Such factors, along with
the fact that the defense provided the jury with an explanation
of why defendant refused to be examined by Dr. Dietz (because
he would have examined defendant with an opinion already
formed), lean against a finding of prejudice.
     Of course, there are differences between this case and
Wallace as well. In Wallace, the jury “heard [from yet another
expert for whom no Verdin error occurred] that the reliability of
the defense expert testimony was questionable.” (Wallace,
supra, 44 Cal.4th at p. 1087.) Furthermore, the prosecutor in
Wallace did not remark on the defendant’s refusal to be
examined. Nonetheless, these differences do not persuade us to

22
      “Shortly after Verdin, the Legislature amended section
1054.3 to expressly authorize courts to compel a mental
examination by a prosecution-retained expert. (See § 1054.3,
subd. (b), as amended by Stats. 2009, ch. 297, § 1.) But because
this case predates that amendment, Verdin applies.” (People v.
Banks (2014) 59 Cal.4th 1113, 1193 (Banks).)


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a different conclusion. The jury here did not hear from another
prosecution expert, but it did hear details supporting Dr. Dietz’s
testimony from both defendant and his expert. Dietz testified
that defendant’s choices showed that he did not suffer from
volitional impairment. Defendant’s confessions then supplied,
in vivid detail, the choices he made, and Dr. Berlin confirmed
that defendant consciously stopped resisting his impulses after
a bar fight. As for the prosecutor’s brief comments in closing
argument highlighting defendant’s refusal to submit to an
interview with Dietz, they do not provide a basis to reprise all of
defendant’s arguments about opposing party’s supposed
“venomous treatment of the defense experts.” With few
exceptions, we have found that the prosecution conducted itself
within the bounds allowed by law. Under the totality of the
circumstances, “it is not reasonably possible that [in the absence
of the Verdin error] the jury would have returned a penalty
verdict of life without parole . . . rather than death.” (Wallace,
supra, 44 Cal.4th at pp. 1087-1088.)
         9. Instructions relating to section 190.3
      Defendant raises two arguments regarding the pattern
instructions the jury received concerning the aggravating and
mitigating factors under section 190.3. We reject both claims.
             a. Mitigating circumstance
      Using CALJIC No. 8.85, the trial court told the jury: “In
determining which penalty is to be imposed on defendant . . .
[y]ou shall consider, take into account and be guided by the
following factors . . . .” The court then instructed the jury on the
various factors enumerated in section 190.3, including, as is
relevant here, factors (d) and (h). The court thus instructed the
jury that it should consider “[w]hether or not the offense was


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committed while the defendant was under the influence of
extreme mental or emotional disturbance” and “[w]hether or not
at the time of the offense the capacity of the defendant to
appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was impaired as a result of
mental disease or defect or the effects of intoxication.”
      Defendant first argues that the pattern instructions above
improperly informed the jury that “any listed factor could be
considered as aggravation.” Specifically, defendant contends
that if a jury finds that a defendant did not act “under the
influence of extreme mental or emotional disturbance” or was
not impaired in his “capacity . . . to appreciate the criminality of
his conduct or to conform his conduct to the requirements of
law,” then because of the “whether or not” language of the
instruction, the jury will interpret the absence of such
mitigating factors to be an aggravating circumstance. We have
repeatedly rejected such argument. (E.g., People v. Miracle
(2018) 6 Cal.5th 318, 354 (Miracle); People v. Wall (2017) 3
Cal.5th 1048, 1073; Banks, supra, 59 Cal.4th at pp. 1207-1208;
People v. Cook (2006) 39 Cal.4th 566, 618 [“CALJIC No. 8.85’s
use of the phrase ‘whether or not,’ is not an invitation to jurors
who find ‘a factor not proven’ to then ‘use that factor as a factor
favoring imposition of the death penalty’ ”]; People v. Sapp
(2003) 31 Cal.4th 240, 315.) We once again reject it here.
       To the extent defendant attempts to rely on other
instructions to bolster his argument, we find the effort
unpersuasive. For instance, defendant points to statements the
court made to certain jurors during voir dire. These earlier
statements do not help defendant, as the jury was instructed to
“[d]isregard all other instructions given . . . in other phases of
th[e] trial” before entering penalty deliberation.

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      Similarly, the fact that the court gave a jury instruction
patterned on CALJIC No. 8.88 adds little to defendant’s claim.
This instruction defined “[a]n aggravating factor [a]s any fact,
condition or event attending the commission of a crime which
increases its guilt or enormity.” Defendant asserts that under
this definition, the jury may have considered his mental illness
and intoxication — the same circumstances mentioned under
section 190.3, factor (h) — as aggravating because they were
“fact[s], condition[s], or event[s] attending the commission of the
crime.”
      We agree that the jury may indeed have drawn this
conclusion, but find no impropriety thereby. Both parties here
agreed that defendant’s alcohol use and mental disorder
(whether it be sexual sadism, as claimed by the defense, or
antisocial personality disorder, as argued by the prosecution)
were drivers behind his abductions, rapes, and ultimately,
murders of Newhouse and Crawford. As such, defendant’s
intoxication and mental disorders were relevant to
“circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any
special circumstances found to be true.” (§ 190.3, factor (a).)
Hence, the jury may properly have considered them
aggravating, even though they “also bear[] upon a mitigating
factor” listed in section 190.3. (People v. Smith, supra,
35 Cal.4th at p. 356.)
      Put differently, although impairment as a result of a
mental disorder or intoxication is always mitigating, the mere
presence of a mental disorder or intoxication is not. In cases
where a mental disorder and/or drunkenness relate to the
circumstances of the crime, they may be aggravating and it is
not error to allow the jury to consider them as such. (See People

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v. Smith, supra, 35 Cal.4th at p. 356 [“evidence of mental illness
. . . is admissible in the prosecution’s case-in-chief [as an
aggravating circumstance] if, as here, it relates to an
aggravating factor listed in section 190.3”].)
      In sum, we reject defendant’s claim that the pattern
instructions improperly allowed the jury to consider any strictly
mitigating circumstance as aggravating.
             b. Vagueness
      Defendant argues that section 190.3, factor (h) is
unconstitutionally vague.        Specifically, he contends the
instruction is infirm because (1) it fails to define the phrase
“mental disease or defect” and (2) it does not adequately explain
“the concept of volitional capacity impairment conveyed by the
phrase ‘capacity . . . to conform his conduct to the requirements
of the law was impaired.’ ” We disagree.
      Defendant’s argument about the term “mental disease or
defect” in section 190.3, factor (h) is, by and large, a reprisal of
his contention that the trial court needed to define the term on
its own motion. Defendant once again asserts that the phrase
is not “ ‘commonly understandable’ ” given Dr. Dietz’s
testimony. However, as we have earlier explained, although
Dietz espoused a narrow definition of “mental disease or defect,”
the testimony, arguments, and instructions considered in their
entirety did not preclude the jury from treating defendant’s
mental conditions as mitigating. Accordingly, even assuming
that the instruction was vague, no prejudicial error occurred.
        We further reject defendant’s argument concerning the
asserted vagueness of the phrase “the capacity of the defendant
. . . to conform his conduct to the requirements of law was
impaired as a result of mental disease or defect.” (§ 190.3, subd.


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(h).) Defendant claims that such language is vague because
“[w]hen a person ‘gives in’ to an impulse, urge, craving or desire
which is associated with a mental illness, and commits a crime,”
it is not clear whether “the act of ‘giving in’ or acting on the urge
properly [is] considered an act of free will, or . . . an act
evidencing an impaired capacity to control one’s behavior.” Yet,
if this is the difficulty, then defendant’s argument boils down to
nothing more than that the jury had a difficult job to do. It fell
upon the jury to sift between competing testimony, theories, and
arguments to draw its own conclusion about whether
defendant’s actions evidenced “an impaired capacity to control
one’s behavior” or the choice not to resist evil impulses. This is
a factual question on which no instruction of law could have
provided the answer. The factor is not vague just because its
application to specific facts is an irreducibly difficult task.
(Accord, Tuilaepa v. California (1994) 512 U.S. 967, 977
[“difficulty in application is not equivalent to vagueness”].)
          10. Constitutionality of California’s death penalty
             scheme
       Defendant argues California’s death penalty scheme is
unconstitutional, although he concedes that we have repeatedly
rejected such arguments. Because defendant advances no
persuasive reason for us to revisit the issues, we continue to hold
as follows.
      “California’s death penalty laws adequately narrow the
class of murderers subject to the death penalty.” (Powell, supra,
5 Cal.5th at p. 963.)
     The death penalty statute is not unconstitutional despite
not requiring “findings beyond a reasonable doubt that an
aggravating circumstance (other than Pen. Code, § 190.3, factor


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(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.)
      “Because capital defendants and noncapital defendants
are not similarly situated, California does not deny capital
defendants equal protection by providing certain procedural
protections to noncapital defendants but not to capital
defendants. [Citation.] In particular, written findings by a jury
recommending a death sentence are not required.” (Spencer,
supra, 5 Cal.5th at p. 695.)
     Section 190.3, factor (a) is not unconstitutionally
overbroad, arbitrary, capricious, or vague as applied. (Miracle,
supra, 6 Cal.5th at p. 353.)
     Intercase proportionality review             is   not   required.
(Mendoza, supra, 62 Cal.4th at p. 916.)
      The use of unadjudicated criminal activity as an
aggravating factor under section 190.3, factor (b) does not
violate constitutional mandates. (Merriman, supra, 60 Cal.4th
1, 106.)
       The trial court “was not required to instruct the jury that
the statutory mitigating factors were relevant solely to
mitigation, and the court’s instruction directing the jury to
consider ‘whether or not’ certain mitigating factors were present
did not invite the jury to use the absence of such factors as an
aggravating circumstance, in violation of state law and the
Eighth and Fourteenth Amendments.” (Powell, supra, 5 Cal.5th
at p. 964.)
      “Prosecutorial discretion and the absence of standards for
deciding whether or not to seek the death penalty in an eligible

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case” do not render California’s death penalty laws
unconstitutional. (Merriman, supra, 60 Cal.4th at p. 107.)
     The death qualification process of jurors does not violate
the United States Constitution or international law.
(Covarrubias, supra, 1 Cal.5th at p. 868.)
      Victim impact evidence “is admissible as a circumstance
of the crime under section 190.3, factor (a).” (Spencer, supra,
5 Cal.5th at p. 676.) The use of such evidence is neither
“nonstatutory” nor “unrestricted.”
     The imposition of the death penalty under California’s law
does not violate international law or prevailing norms of
decency. (Clark, supra, 52 Cal.4th at p. 1008.)
      The delay in executing a condemned inmate does not
violate the Eighth Amendment. (People v. Ochoa (2001)
26 Cal.4th 398, 462-464.) The rarity of executions does not
result in arbitrary results.         (People v. Seumanu (2015)
61 Cal.4th 1293, 1371-1375.) Contrary to the argument raised
in defendant’s supplemental brief, the Governor’s moratorium
on the death penalty does not compel the court to reexamine
these holdings. (Governor’s Exec. Order No. N-09-19 (Mar. 13,
2019) [stating that the order “does not . . . alter any current
conviction or sentence” and likewise “does not[] create any rights
or benefits . . . enforceable at law”].)




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                        III. DISPOSITION
    The judgment is affirmed in its entirety.


                                        CANTIL-SAKAUYE, C. J.


We Concur:

CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.




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

Name of Opinion People v. Krebs
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S099439
Date Filed: November 21, 2019
__________________________________________________________________________________

Court: Superior
County: San Luis Obispo
Judge: Barry T. LaBarbera

__________________________________________________________________________________

Counsel:

Neil B. Quinn, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon, Sharlene A. Honnaka, A.
Scott Hayward and Kenneth C. Byrne, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Neil B. Quinn
Attorney at Law
300 Douglas Street
Ojai, CA 93023
(805) 646-5832

Kenneth C. Byrne
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 269-6008
