        IN THE SUPREME COURT OF
               CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                              v.
                     THOMAS POTTS,
                  Defendant and Appellant.

                           S072161

                Kings County Superior Court
                        97CM2167



                       March 28, 2019

Chief Justice Cantil-Sakauye authored the opinion of the court,
in which Justices Chin, Corrigan, Liu, Cuéllar, Kruger, and
Simons* concurred.
Justice Liu filed a concurring opinion in which Justice Cuéllar
concurred.




*
   Associate Justice of the Court of Appeal, First Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                      PEOPLE v. POTTS
                           S072161


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


      This case arises from the robbery and murder of an elderly
couple found dead in their home. A jury convicted defendant
Thomas Potts of two counts of first degree murder, one count of
first degree robbery, and one count of grand theft (from a
different victim). (Pen. Code, §§ 187, subd. (a) [murder], 211
[robbery], 487, subd. (a) [grand theft].)1 The jury found that
defendant knew or reasonably should have known that each
murder victim was at least 65 years old. (§ 667.9, subd. (a)
[elderly victim enhancement].) The jury also found true two
different special circumstance allegations — multiple murder
and robbery murder — and returned verdicts of death at the
close of the penalty phase. (§ 190.2, subds. (a)(3) [multiple
murder], (a)(17) [robbery murder].) As relevant here, the trial
court found true two prior felony offense allegations; imposed a
four-year determinate term based on the age of the victims;
imposed a $10,000 restitution fine; denied the automatic motion
to modify the verdict; and sentenced defendant to death.
(§§ 190.4, subd. (e) [automatic motion], 1202.4 [restitution].)
This appeal is automatic. (§ 1239, subd. (b).) We modify the
judgment by striking the four-year determinate term and
otherwise affirm.




1
     All unspecified statutory references are to the Penal Code.
                         PEOPLE v. POTTS
             Opinion of the Court by Cantil-Sakauye, C. J.


                         I. BACKGROUND

     A. Guilt Phase

         1. Prosecution case

             a. Crime scene
      Fred and Shirley Jenks made their home in Hanford,
California. A florist attempted to deliver them flowers on the
morning of August 5, 1997. When the Jenkses’ doorbell went
unanswered, the florist entrusted the flowers to a neighbor
rather than leaving them to wilt outside in the summer heat.
      That evening, the neighbor went to see whether the
Jenkses were home.         When their doorbell again went
unanswered, the neighbor peered through a glass portion of the
front door. Inside, she saw Fred’s body — with blood on the floor
and splattered on the wall. Police later discovered Shirley’s
body in the master bedroom. The evidence adduced at trial
suggested that Fred and Shirley had each been attacked with a
hatchet-type weapon and at least one knife. There was no
dispute that the attacks likely occurred the previous day, after
1:00 p.m.
      Detective Darrell Walker led the homicide investigation.
He observed that drops of blood near Fred’s body reached as high
as a roughly ten-foot-tall ceiling. Near the body, Walker saw a
small metallic pin of the sort used to connect a watch band to a
watch face. The watch on Fred’s wrist had pins intact.
Underneath him, however, was a watch with a missing pin and
a partially detached band.
     Bloody shoeprints were found at the scene. The prints had
a wavy pattern and at least some bore the word “Nike.” A print


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similar to those seen in several portions of the house also
appeared on Fred’s back.
      Investigators found an open cutlery drawer in the Jenkses’
kitchen. One knife was discovered in the Jenkses’ pantry,
sticking out of a package of cookies. The kitchen sink contained
a short-bladed paring knife and a knife sharpener, both of which
tested positive for blood. The blood on the sharpener could have
come from Fred, but could not have come from Shirley. A longer-
bladed boning or filet-type knife was found in the Jenkses’
master bedroom, with blood on the knife’s handle. Neither Fred
nor Shirley was excluded as a potential blood contributor.
      The knife in the master bedroom was found underneath
various boxes. Although some valuables remained in the room,
portions of it had been “ransacked” — with empty jewelry trays
and more than 30 empty jewelry boxes left behind. All told, it
appeared that at least 200 pieces of jewelry had been taken. By
contrast, a different bedroom was found “basically immaculate.”
      No direct evidence indicated how the perpetrator entered
the Jenkses’ home. The only window or exterior door that was
unlocked, however, was the front door, and glass panes made it
possible to see who was outside that door before opening it.
There were no signs of forced entry.

            b. Causes of deaths
       Armand Dollinger, M.D., performed both autopsies. He
testified that Fred suffered “numerous contusions, bruises,
abrasions, lacerations, and . . . stab wounds.” Twenty-eight
separate wounds were visible on the top and back of Fred’s head.
Several of his fingers were nearly amputated. His chest had
been stabbed nine times, causing six wounds to his lungs. His



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ribs were fractured in a manner consistent with “[s]omebody
forcibly jumping or stomping on . . . either the front or the back
of the chest.”
      Dr. Dollinger opined that the instruments used to attack
Fred likely included a knife and “a narrow-bladed hatchet” with
a round hammer on the back. It was possible that Fred was
stabbed with both the shorter knife in the kitchen sink and the
longer knife in the master bedroom. The shorter knife alone
may not have been long enough to cause some of Fred’s injuries.
      Dr. Dollinger identified Fred’s cause of death as “open
cranial injuries due to multiple blunt trauma and stab wounds
of the head. Other contributing conditions, multiple stab
wounds of posterior chest with penetrating wounds of the
lungs.” Blood found in Fred’s pleural cavity indicated to Dr.
Dollinger that Fred was “probably alive when he sustained stab
wounds to the chest,” though Dr. Dollinger acknowledged that
prior head wounds “might have” killed Fred instantly and
collectively left him, “if not already dead, [then] almost dead and
dying.”
      Shirley suffered three main types of injuries. She was
struck four times in the head with a hatchet-type weapon,
fracturing her skull and causing brain tissue to extrude from a
wound. She was stabbed at least six times in the chest,
puncturing her heart. And she was twice slashed across the
throat.
      Dr. Dollinger described for the jury what he believed to be
the sequence of wounds that caused Shirley’s death: “It’s my
opinion that she was down on her back, unconscious, dying, as
a result of the wounds to her head when the stab wounds were
incurred. She was near — certainly near death at that time


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because there was very little bleeding into the chest. I feel that
she was actually probably dead at the time the slashing wounds
were made. I can’t be absolutely certain on that, they could all
have been postmortem . . . , but she was near death or dead at
the time the chest wounds were incurred and the slashing
wounds of the throat.” The longer knife found in the bedroom
could have caused Shirley’s stab and slash wounds.

             c. Thomas Potts
     Defendant Thomas Potts worked as a part-time
handyman and house cleaner.         Fred Jenks was one of
defendant’s clients. Because defendant did not own a car, Fred
would usually pick him up for work. Otherwise, defendant
would ride his bicycle.
      Roughly six months before the murders, Sergeant Darrel
Smith “contact[ed]” defendant while defendant was cycling
down an alleyway. Smith testified that defendant was carrying
a dark duffel bag containing a small axe or hatchet, which had
a blunt edge opposite the blade. Defendant claimed to use the
hatchet for construction work and left with the tool. The
following month, a different officer stopped defendant.
Defendant was carrying a gym bag containing pawn receipts,
plus “a small hatchet” with a roughly 5-inch blade opposite
something “like a hammer.” Defendant again left with the tool.
      Diana Williams, defendant’s friend and former roommate,
saw him nearly every day. She confirmed that defendant owned
a hatchet with a blade and “a hammer part.” Sometime during
the month before the murders, defendant moved into a new
apartment. Williams saw him use the hatchet in his new home
to hammer speaker wire into place.



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      Diana also described some of defendant’s other belongings.
When her son Quentin outgrew a pair of Nike shoes, he gave
them to defendant. Diana also had been with defendant when
he purchased the watch that he wore “every day.” She was
familiar with it because “the watch pin that would keep the band
on” would detach, and she at least twice helped him reinsert the
pin.

             d. Events preceding the killings
      Defendant received a Social Security payment on the first
of every month. Diana Williams was his payee. On August 1,
three days before the killings, she received the payment (around
$600) and gave it to defendant.
      Defendant was a customer at a Hanford liquor store. The
store permitted him to maintain a charge account, with payment
due every 30 days. Defendant would ordinarily pay the prior
month’s bill on the first of each month; he paid his May ’97 bill
on June 1 and his June ’97 bill on July 1. On Friday, August 1,
however, defendant did not pay his $140 bill for July. According
to the store’s owner/operator, defendant instead called that day
to say that he would be in to pay his tab the following Monday
or Tuesday.
     Williams returned from an out-of-town trip on Sunday,
August 3rd at around 4:00 p.m. Later that evening, at
defendant’s apartment, she and he watched a movie that he had
rented. Williams estimated that they met around 5:00 p.m. and
were together for two to three hours.
      The next day, August 4th, defendant and Williams went
grocery shopping together around 11:00 a.m. Defendant told
Williams that “he didn’t have any money” because he had gone



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to a casino in Lemoore. She did not see him after around 2:00
p.m. As noted, the People and the defense agreed that the
Jenkses were likely killed that day after 1:00 p.m.

             e. Events after the killings
      The day after the killings, on August 5th, defendant and
Williams saw each other for coffee before 9:00 a.m. She returned
home from work before noon. Williams believed she saw
defendant again that day, though she was not sure when or for
how long.
      Oscar Galloway testified that he occasionally gave people
rides in his car for a few dollars. He took defendant to a casino
in Lemoore “a couple of times.” Because his memory of the
events of early August 1997 had faded, an investigator read
from a report he made of an interview with Galloway a few days
after the killings. According to the report, Galloway said that
on August 5, the day after the killings, he took defendant to a
casino and to a destination in downtown Hanford near “the
Cottage Bar on Seventh Street.”
      The evidence adduced at trial suggested that defendant
visited a Hanford pawnshop “[o]n Seventh” that day. A
pawnshop employee explained that transactions required photo
identification and a thumbprint from the person seeking to
pawn property. She identified two pawn slips concerning
transactions by Thomas Potts at 1:50 p.m. on August 5. A
fingerprint analyst testified that the prints on the relevant
pawn slips matched defendant’s prints. Defendant pawned a
ring for $15 and a pendant for $35 — an amount less than his
liquor store tab, which he did not pay. At trial, Shirley Jenks’s
sister testified that the pawned items belonged to Shirley. The



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Jenkses’ bodies were not discovered until after 7:00 p.m. on
August 5th.
       Two officers went to defendant’s apartment at around 3:00
a.m. on August 6th, the morning after the bodies were
discovered, although the record suggests that the officers were
not yet aware of the aforementioned pawn transactions.
Defendant voluntarily accompanied the officers to a police
station, where he was questioned for about 20 or 30 minutes.
When asked about his hatchet, defendant said he thought he
lost it in his recent move. The officers returned defendant to his
apartment and obtained defendant’s consent to search. The
search revealed a blue duffel bag, but no hatchet, no Nike shoes,
and no bloody items.
       Diana Williams testified that she and defendant likely
met for coffee later that morning, sometime between 8:00 and
9:00 a.m. She went to work and returned home before noon.
Defendant came to her apartment. Defendant, Williams, and
her son Quentin watched the noon news together; defendant and
Quentin in the living room, Williams possibly in the kitchen,
about 10 or 12 feet away. News of the Jenkses’ deaths came on
the television. Although the evidence at trial suggested that the
newscast made no mention of a hatchet, Quentin asked
defendant two or three times where his hatchet was. Williams
testified that she “th[ought] [defendant] avoided . . . the
question,” though she did not recall precisely how he did so.
Quentin testified at trial, however, that defendant said “he [did
not] want to discuss that around here because somebody might
have bugged the inside of [the] wall.” At the preliminary
hearing, Quentin claimed that defendant said, “I don’t want to
talk about it anymore” — despite having not yet discussed it.



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      That evening, defendant and Williams ran an errand
together. On the way back, she asked him what time it was.
“[H]e said that he didn’t have his watch on, and he never goes
anywhere without his watch . . . .”
      That same day, according to the report of the interview
with driver Oscar Galloway, defendant returned to Galloway’s
residence to retrieve a duffel bag he had left in the back of
Galloway’s car. The time of day is not clear from the record.
According to the report, “Galloway noted that the bag did not
look as packed as the day before when Potts got out of his car
and left for a while.”
      Williams believed she saw defendant the following day
(Thursday), although she was not sure at what time or for how
long. That day, an officer went to the aforementioned pawn shop
“to pick up the police department copies of all pawn slips since
the first part of August.” He gave the slips with the name
Thomas Jerry Potts on them to an investigator, who then
retrieved the pawned jewelry.
      Police arrested defendant the day after obtaining the
jewelry. He was wearing eyeglasses at the time. Detective
Walker removed the glasses from defendant’s face and
examined them for possible trace evidence. Walker saw “what
appeared to be either a rust spot or a droplet of blood.” Later
DNA testing revealed that a combination of Fred Jenks’s and
defendant’s genetic material accounted for the DNA on the
glasses. An expert explained that it would be “[n]ot at all”
surprising to find defendant’s DNA on his own glasses.
Assuming that defendant’s DNA was on his glasses, the expert
continued, the odds of another person completing the DNA
profile on the glasses and contributing nothing more were 1 in


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1.78 million Caucasians; 1 in 2.26 million African Americans; or
1 in 1.82 million Hispanics. Fred Jenks’s death certificate
described him as Caucasian.
     The day of defendant’s arrest, Detective Walker          spoke
with Diana Williams. She described defendant’s watch          before
Walker showed her the watch found at the crime scene.         When
Walker then showed her the watch, she identified               it as
defendant’s.
      Near the end of that month, Williams cleaned out
defendant’s apartment, essentially moving him out. She did not
find Nike shoes, the hatchet, a “fairly new” “pair of jeans . . . he
used to wear all the time,” a “fairly new” Wilson shirt, or his
watch.

             f. Grand theft (count 4)
      Before the Jenkses were killed, defendant cleaned the
home of Viola Bettencourt and her companion Frank.
Bettencourt wore a ring one day and placed it in a container on
her dresser when she returned home. Defendant came to clean
the next day. The day after he cleaned, Bettencourt noticed that
the ring was missing. When defendant returned to clean the
following week, she accused him of taking the ring. Defendant
denied the allegation, saying, “[n]o, I don’t do things like that.”
He did not hit, threaten, or do anything that frightened her.
Defendant cleaned for another hour or two, but Bettencourt did
not hire him after that.
      A pawn slip suggested that on June 26, 1997 — the same
day of the week that Bettencourt believed defendant took her
ring — defendant pawned a ring at about 3:00 pm. The
description of the property pawned was consistent with a ring



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that Bettencourt identified as her own. Defendant apparently
received $100 for the ring; paid $114.50 on July 1, 1997, to get
the ring back; and pawned it again at a different shop that same
day for $125. Police retrieved the ring, which Bettencourt
identified as her own. Bettencourt’s ring appraised for $1,250
in 1967 and reappraised for $3,500 in August 1997.

         2. Defense case
       The thrust of the defense was that defendant did not kill
the Jenkses. Cross-examination focused on alleged gaps or
inconsistencies in the prosecution’s evidence, including
testimony regarding the characteristics of defendant’s hatchet;
whether the blood on defendant’s glasses was analyzed
correctly; and the lack of evidence that defendant tracked home
blood or had otherwise been at the crime scene. For example,
defense counsel elicited testimony that a fingerprint analyst had
lifted an estimated 15 to 20 usable prints from the crime scene
and was able to eliminate defendant as having left any of those
prints.
       The only witnesses called by the defense had already
testified during the prosecution’s case-in-chief. Two witnesses
discussed how an intensive search of defendant’s apartment
after his arrest failed to yield evidence that he was involved in
the Jenkses’ killings. Another conceded that no blood was found
on defendant’s bicycle. Diana Williams clarified when and
where she saw defendant during the relevant period. And
Quentin admitted that the comment he claimed to hear
defendant make while watching the news should have been
heard by his mother, who had denied hearing it. No evidence
was presented regarding defendant’s whereabouts after he left
Williams’s company on the day of the killings.


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     B. Penalty Phase

         1. Prosecution case
      At the penalty phase, the People presented evidence that
defendant had sexually assaulted three women, including
Shirley Jenks. The People also elicited victim impact testimony
and introduced documents revealing that defendant had
suffered several prior convictions.

             a. Sexual assaults
       Carol T. testified that in 1979, when she was 16 years old,
she moved to California with her boyfriend and began searching
for a job. When she was waiting at a bus stop, defendant offered
her a ride in the car he was driving. He took her to pick up job
applications. By late afternoon, Carol had asked him several
times to take her home. Defendant did not do so; eventually, he
instead took her to his apartment, which she did not wish to
enter. When they arrived inside, defendant shut the door and
put a straight razor to Carol’s throat. He then raped her and
attempted forcible anal penetration. Carol eventually escaped
from the apartment by jumping out a second-story bathroom
window. Cross-examination focused on the fact that defendant
had been drinking, and possibly smoking marijuana, before the
assault.
     Diane H. was acquainted with defendant through his
then-wife Lori, who sometimes babysat on Diane’s behalf. One
evening in February 1980, at around 9:00 or 10:00 p.m.,
defendant came to Diane’s house alone, intoxicated, and
uninvited. Diane was home with her two young children, but
her husband was incarcerated at the time. She let defendant in
and offered him coffee to help sober him up, “so he could go


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home” without “get[ting] a drunk driving.” After he was let in,
defendant brought Diane to the ground and choked her. He then
forced her to have intercourse with him, stopping only when her
two-year-old child woke up and came into the living room. After
the child returned to bed, defendant raped Diane approximately
twice more. Cross-examination focused solely on the fact that
defendant was drunk at the time.
      Sexual Assault Response Team (SART) nurse Georgeanne
Green examined Shirley’s corpse for evidence of sexual assault.
Green observed suspicious injuries that were consistent with
forced penetration. Additionally, Forensic Pathologist Thomas
Bennett reviewed Dr. Dollinger’s autopsy report, a SART case
summary, and photographs Green took during her examination.
He concluded that although no semen was recovered from
Shirley’s body, there was “clearly . . . evidence of forced sexual
penetration of Shirley Jenks.” Her injuries, he testified, could
have been inflicted as early as two hours prior to her death, or
as late as a few minutes after her death. If she were conscious
during the assault, she would have felt pain.
      Bennett was not sure what “instrument” caused Shirley’s
injuries. “Could it be a finger? Yes. Could it be a broom handle?
Yes. Could it be a penis? Yes. It’s not specific.” Cross-
examination elicited that Bennett did not find evidence of any
nontissue blunt object (such as a broom, as opposed to a body
part). Bennett further acknowledged that it was possible to
examine a man to determine whether he had engaged in forcible
sexual activity, and that such examination was done in this
case. The People presented no evidence suggesting that the
examination yielded inculpatory information. During closing
argument, however, the prosecutor observed that a videotape of
the crime scene showed Shirley’s body at the edge of the bed,

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legs spread, without underwear, “and her nightgown is pulled
up, over up across her waist, exposing her private area.”

             b. Victim impact
     Clarence Washington was the Jenkses’ son-in-law,
through marriage to their daughter Debra. He had introduced
defendant (his cousin) to the Jenkses, who had high praise for
defendant’s work and “really liked him a lot.”
      Clarence and the Jenkses were close. He had previously
lived with them for about a year, vacationed with them every
year for the eight years preceding their deaths, spoke with them
approximately every other day, and sometimes referred to them
as Mom and Dad. Fred Jenks was a father figure to Clarence,
whose own father had succumbed to cancer around 1992. At the
time of trial, Clarence was taking antidepressant medication
and had “been in intensive outpatient therapy.”
       Clarence also testified that Debra was quite close to her
parents. She and Shirley Jenks, Clarence explained, were “more
of sisters, best friends, than mother and daughter”; they were
“extremely close” and spoke perhaps two or three times per day.
Debra and Clarence learned of the Jenkses’ deaths as the result
of a TV report. A friend of Debra saw a news story about a
couple who had been killed, which showed parts of the Jenkses’
home and a car belonging to Fred. The friend called Debra, who
was (and, earlier that day, had been) unable to reach her parents
by phone. According to Clarence, Debra went “ballistic.” He
took her to a psychiatric care facility the next morning. She
stayed in that facility for 22 days, was “released for a short
period,” entered another psychiatric facility, was again released,
entered another psychiatric facility, “and then right now she’s
heavily medicated.” Debra, Clarence testified, is now “almost

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an invalid. I have to care for her just about 24 hours a day.”
“She has no will to live, and at times she has urinated and
defecated on herself.” “She’s said she’s not suicidal, but some of
her actions warn me to think that she is.”
      Billie Lou Hazelum, Shirley Jenks’s sister, also testified.
Hazelum explained that Fred and Shirley had a “[v]ery good”
relationship; they were “[l]ike love birds.” She and Shirley, too,
had a “[w]onderful,” close friendship. When they were together,
they would “go shopping, talk about old times[,] [d]ance in the
morning when we’d get up to music.” She thought about Shirley
and Fred constantly. She even had to replace her cutlery, which
reminded her of one of the knives used in the murders.
     Hazelum had also had a close relationship with the
Jenkses’ daughter Debra. She thought of Debra as one of her
own daughters and as a good friend. Since the murders,
however, Debra had been unwilling to see Hazelum, because
Hazelum resembled Shirley.

             c. Prior convictions
      The People introduced certified documents indicating that
defendant had been convicted of perjury, auto theft, statutory
rape (regarding Carol T.), and twice convicted of robbery.
      Aside from the statutory rape conviction, defendant had
not been convicted of sexually assaulting either Carol T. or
Diane H. Carol T. left California before she was due to appear
in court. Diane H. did not report her assault to the police.
Among other things, she was afraid that if her husband became
aware of the assault, he would kill defendant, “[a]nd then [her]
babies would have been without a dad.”




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         2. Defense case
      Defense counsel called only two witnesses during the
penalty phase. Psychiatrist Norberto Tuason, M.D., assessed
defendant about four months before the killings. Defendant
complained of paranoia, and that he was hearing voices “again.”
Dr. Tuason concluded that defendant “suffered from chronic
paranoid schizophrenia,” with which defendant had been
previously diagnosed. Dr. Tuason was also concerned that
defendant abused alcohol. Concluding that defendant was
treatable and did not require hospitalization, Dr. Tuason
prescribed medication and recommended that defendant follow
up with him in two months. At the follow-up meeting about two
months before the killings, defendant told Dr. Tuason, “ ‘The
voices went away.’ ” Dr. Tuason further explained, however,
that it is often difficult to ensure that paranoid schizophrenics
stay on their medication, and he made clear that “symptoms can
recur within a day or two once the medication has been missed.”
      Among other things, cross-examination explored whether
alcohol use might explain defendant’s symptoms. Dr. Tuason
admitted that, although his diagnosis was unchanged, excessive
alcohol use alone could explain defendant’s symptoms even if
defendant did not suffer from schizophrenia. When asked on
recross-examination, “[H]ow do you know it’s not alcohol abuse
instead of schizophrenia?,” Tuason responded, “I don’t know.
You would not know.” Cross-examination also revealed that
defendant was aware and logical during his interview with Dr.
Tuason and that defendant was capable of knowing right from
wrong.    Moreover, although Dr. Tuason concluded that
defendant had “subnormal intelligence,” his conclusion was
based solely on defendant’s description of his academic



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performance, rather than an IQ test or a review of academic
records.
      Dr. Tuason told the jury that defendant had been
examined by a social worker on August 10, 1997, several days
after the murders. The social worker indicated that defendant
was “ ‘currently medically noncompliant,’ ” which, Tuason
explained, means in the field that defendant was not taking
medication as recommended. That notwithstanding, defendant
reportedly “ ‘denie[d] any hallucinations, suicidal ideations or
homicidal thoughts’ ”; was “ ‘[n]ot exhibiting any psychotic
behaviors’ ”; and did not “ ‘present an immediate danger to self
or others.’ ”
     Defendant’s mother Lula also testified.    Lula and
defendant’s father separated when defendant was about two
years old. Defendant “loved his father and he couldn’t
understand why his father wasn’t there.”
      Lula moved the family to Los Angeles when defendant was
about two-and-a-half years old. She raised him as a single
mother until he was about 14 years old, after which she
remarried. Defendant was a “good boy” until he was about 16,
when he began getting in trouble, “joyriding in cars and things
like that.” She and defendant’s stepfather then brought him
back to Hanford (where he had been born), apparently at
defendant’s request. According to Lula, defendant believed he
would be able to stay out of trouble in a small town. He also
“loved his cousins” in the Hanford area and “wanted to be
around them.”
     Lula asked the jury to spare her son’s life. Even after he
found trouble, she testified, she knew him to be “a quiet,
easygoing person” who “loved his family a lot.” He loved and


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tried to protect his mother and sister. He came to know and love
his stepfather. He was kind, loving, and compassionate with his
own son. “My son didn’t kill those people,” she testified, “[h]e’s
not that kind of a person.” Defendant, she added, was “brought
up God fearing,” and during his incarceration, “[h]e’s reading
the bible, he’s praying.”
                         II. DISCUSSION

     A. Sufficiency of the Evidence
      Defendant concedes that the evidence adduced at trial
provides “an arguably satisfactory” answer to the question of
who killed the Jenkses. Indeed. The evidence inculpating
defendant as the killer included the blood on his glasses; the
jewelry he pawned before the Jenkses’ bodies were discovered;
the lack of indicia of forced entry; his missing watch, found
under Fred Jenks’s corpse; the hatchet supposedly lost in his
move, yet seen in his new apartment; and his refusal to answer
Quentin’s questions about where the hatchet could be found.
That said, a conclusion that defendant killed the Jenkses does
not itself imply that he is guilty of murder in the first degree.
Instead, defendant is guilty of two counts of first degree murder
only if each killing (1) was premeditated and deliberate or
(2) occurred during the commission or attempted commission of
robbery. (See § 189 [first degree murder]; People v. Daveggio
and Michaud (2018) 4 Cal.5th 790, 847-849 (Daveggio).)
      Defendant contends that the evidence was insufficient to
support either theory. We disagree. Viewing the evidence in the
light most favorable to the prosecution, we conclude that a
rational trier of fact could have found, beyond a reasonable
doubt, that the killings were deliberate and premeditated, and
that they occurred during the commission of a robbery. (Jackson

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


v. Virginia (1979) 443 U.S. 307, 319; see also People v. Rangel
(2016) 62 Cal.4th 1192, 1212 [discussing standard of review];
People v. Rodriguez (1999) 20 Cal.4th 1, 11 [same].)

         1. Premeditation and deliberation
        “A murder that is premediated and deliberate is murder
of the first degree.” (People v. Jurado (2006) 38 Cal.4th 72, 118
(Jurado).) “ ‘In this context, “premeditated” means “considered
beforehand,” and “deliberate” means “formed or arrived at or
determined upon as a result of careful thought and weighing of
considerations for and against the proposed course of action.” ’ ”
(Ibid.) “ ‘An intentional killing is premeditated and deliberate
if it occurred as the result of preexisting thought and reflection
rather than unconsidered or rash impulse.’ ” (Ibid.; see also
People v. Anderson (1968) 70 Cal.2d 15, 24-34 (Anderson).) “The
true test is not the duration of time as much as it is the extent
of the reflection. Thoughts may follow each other with great
rapidity and cold, calculated judgment may be arrived at quickly
. . . .” (People v. Thomas (1945) 25 Cal.2d 880, 900.) Such
reflection may be revealed by planning activity, motive, and the
manner of the killings, among other things. (See Anderson, at
pp. 26-27; People v. Perez (1992) 2 Cal.4th 1117, 1125 (Perez);
People v. Brooks (2017) 3 Cal.5th 1, 59; People v. Koontz (2002)
27 Cal.4th 1041, 1081 (Koontz); People v. Thomas (1992) 2
Cal.4th 489, 517.)
      The evidence that defendant arrived at the Jenkses’ home
carrying a weapon suggests that the murders were planned.
(See People v. Salazar (2016) 63 Cal.4th 214, 245; People v.
Wharton (1991) 53 Cal.3d 522, 547; Perez, supra, 2 Cal.4th at p.
1128.) Although police had stopped defendant at least twice



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


while he had his hatchet, Diana Williams’s testimony suggested
that defendant did not carry it routinely.
       Defendant also had a motive to kill the Jenkses: to
facilitate the taking of Shirley Jenks’s jewelry. (Cf. Perez, supra,
2 Cal.4th, at p. 1128 [“the conduct of defendant after the
stabbing, such as the search of dresser drawers [and] jewelry
boxes . . . would appear to be inconsistent with a state of mind
that would have produced a rash, impulsive killing”].)
Defendant had previously taken jewelry from Bettencourt, who
accused him of doing so. He had opportunity to know, from
cleaning for the Jenkses, that Shirley owned significant
amounts of jewelry — and apparently knew enough to
“ransack[]” a room containing significant amounts of jewelry
while leaving another room “basically immaculate.” A rational
trier of fact could conclude that defendant killed the Jenkses so
that he could take their jewelry without risk that they would
identify him as the culprit. (Cf. Perez, at p. 1126 [“it is
reasonable to infer that defendant determined it was necessary
to kill Victoria to prevent her from identifying him”].)2
      The manner of the killings also supports a finding of
premeditation and deliberation. The attack — involving
multiple weapons, numerous stabs and slashes, and,
apparently, a knife-sharpening interlude — was undoubtedly
“prolonged.” (People v. Sandoval (2015) 62 Cal.4th 394, 425; cf.
People v. Streeter (2012) 54 Cal.4th 205, 244 [manner of killing
suggested premeditation and deliberation where “defendant’s


2
      Evidence bearing on whether the intent to steal was
formed before the killings is addressed post, in part II.A.2. The
evidence of premeditation and deliberation would be sufficient
even if this motive were ignored.


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


acts occurred in stages”].) In particular, the attacks with the
knives suggest deliberation, not only because they came later,
but also because “plunging a lethal weapon into the chest
evidences a deliberate intention to kill.” (Anderson, supra, 70
Cal.2d at p. 27.) Further, a jury could quite reasonably infer
that a person who followed a horrific double homicide by opening
a package of cookies was not surprised and dismayed by what
he had done, as one who acted impulsively might be. The
evidence of premeditation and deliberation was particularly
strong with respect to Shirley’s murder, because defendant had
to travel through the house to reach her after attacking Fred
near the front door. (Cf. People v. Cage (2015) 62 Cal.4th 256,
277 [manner of killing suggested premeditation and
deliberation when, “instead of then leaving the home, defendant
stepped over or around Bruni’s bloody body and proceeded up
the stairs to David’s room”].)
      On appeal, defendant encourages us to speculate about
what might have happened inside the Jenkses’ home, in service
of an argument that the jury could not have ruled out his
speculative hypotheticals beyond a reasonable doubt. We are
not persuaded. Defendant’s appellate briefing suggests, for
example, that he may have gone to the Jenkses’ house to work
and killed in a spontaneous fit of rage. But the Jenkses were
found dressed in night clothes, not as though they were
expecting company. Further, Diana Williams testified that
defendant ordinarily told her when he would be working, which
he did not do in the week or so before the killings: “Q. In the
week or so before [the day the bodies were discovered], did
[defendant] mention anything about going to work for the
Jenks? [¶] A. No. [¶] Q. Did he normally tell you when he
was going to be working? [¶] A. Yes. [¶] Q. And he didn’t tell


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


you? [¶] A. No.” In this context, the fact that officers found a
few bloody dollars on Fred Jenks’s body would not have required
rational jurors to conclude that the murders were the
spontaneous result of a job gone bad, rather than premeditated.
       Moreover, this theory calls for further speculation that
(i) defendant had a legitimate reason for arriving with a hatchet
(which would seem unnecessary for mere housekeeping work);
that (ii) defendant was somehow and for some reason enraged;
and that (iii) the Jenkses died before defendant formed a
deliberate and premeditated intent to kill them. As to this last
premise, even if the Jenkses were dead by the time of the knife
attacks, postmortem conduct can still be probative of a
defendant’s state of mind before the fatal wounds were inflicted.
(See, e.g., People v. Manibusan (2013) 58 Cal.4th 40, 89; cf.
Perez, supra, 2 Cal.4th at p. 1127 [“[D]efendant would not have
known the precise moment of death or which wound would cause
it.    Moreover, the jury could reasonably infer that the
postmortem wounds were inflicted to make certain the victim
was dead.”].) A theory that a person killed in a fit of rage is
undermined by proof that, after ample opportunity for
reflection, the person decided that continuing a violent attack
was appropriate.
      Defendant’s appellate briefing also suggests that perhaps
he went to the Jenkses’ home to solicit a cash advance. But the
evidence indicated that he and Fred Jenks had communicated
via telephone in the past, making an unannounced drop-in seem
unnecessary. Nor is it clear why defendant would need to bring
his hatchet to request an advance innocently. And here, too,
there is a wide gulf between (1) a theory that defendant showed
up for an innocuous reason and (2) the violent killings revealed
by the evidence. (Cf. People v. Zamudio (2008) 43 Cal.4th 327,

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


361, fn. 18 (Zamudio) [“It seems extremely unlikely that a truly
peaceful person who has no history of violence and is on very
friendly terms with his victims would fly into a homicidal rage
simply because his victims decline his request for a second loan
and criticize his spending choices”].) We of course agree with
defendant that the prosecution bore the burden of proof beyond
a reasonable doubt. But a reasonable jury could find that
burden satisfied notwithstanding his string of suppositions.
The evidence, in short, was sufficient to support findings of
premeditated and deliberate murders.

          2. Robbery
      Defendant further contends that the evidence was
insufficient to support a conclusion that the killings occurred
during the commission of a robbery. (See § 189 [“All murder
that is . . . committed in the perpetration of . . . robbery . . . is
murder of the first degree”].) “Robbery is the felonious taking of
personal property in the possession of another, from his person
or immediate presence, and against his will, accomplished by
means of force or fear.” (§ 211.) “[A] conviction of robbery cannot
be sustained in the absence of evidence that the defendant
conceived his intent to steal either before committing the act of
force against the victim, or during the commission of that act; if
the intent arose only after the use of force against the victim,
the taking will at most constitute a theft.” (People v. Morris
(1988) 46 Cal.3d 1, 19; see also People v. Lindberg (2008)
45 Cal.4th 1, 28 [discussing robbery-murder special
circumstance].) Defendant argues that no rational jury could
rule out the possibility, beyond a reasonable doubt, that
defendant formed his intent to take the Jenkses’ property only
after the acts of force had concluded. We again disagree.


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


      “ ‘ “[W]hen one kills another and takes substantial
property from the victim, it is ordinarily reasonable to presume
the killing was for purposes of robbery.” ’ ” (People v. Jackson
(2016) 1 Cal.5th 269, 346 (Jackson); see also People v. Johnson
(2015) 60 Cal.4th 966, 988 [“The jury could readily conclude
defendant intended to steal when he entered the victim’s house
with a weapon and beat her to death. It did not have to conclude
he killed the victim for no apparent reason and only then
decided to steal.”].) Here, the evidence indicated that defendant
took a substantial amount of jewelry from the Jenkses’ home,
some of which he pawned even before the bodies were
discovered. Moreover, although the Bettencourt theft did not
involve force, the incident lends support to a determination that
defendant intended to take jewelry from the Jenkses’ home
before he inflicted the fatal blows. (See Jackson, at p. 346 [“The
jury can also infer a defendant’s intent to steal from his
commission of other similar crimes”].)
      Notably, even defense counsel’s hypothetical reasons why
defendant may have been at the Jenkses’ home center on an
attempt to acquire funds, whether through work or by
requesting an advance. Even if defendant had been provoked
into a rage — because no paying work was available, or because
no cash advance would be made — the evidence would support
a conclusion that the killings occurred during the commission of
a robbery if defendant formed the intent to take the jewelry
while killing the Jenkses. A rational jury applying the beyond-
a-reasonable-doubt standard could rule out a hypothetical
scenario in which defendant dropped in for an unannounced
social visit (with a hatchet, at a time when the Jenkses were in
their night clothes); became sufficiently enraged to brutally



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


murder the people he was visiting; and then decided, as an
afterthought, to take the jewelry.
       To conclude that the evidence of a preexisting intent to
steal was sufficient to prove the crime of robbery, it is not
necessary to rely on the evidence that defendant lacked money
to go grocery shopping and had recently pledged to pay his
liquor-store debt. But these circumstances further confirm that
the evidence of robbery was sufficient. Recall that three days
before the killings, defendant called a liquor store to say that he
would pay his debt on Monday, August 4 (the day the Jenkses
were killed) or Tuesday, August 5 (the day he pawned some of
Shirley Jenks’s jewelry). As noted, Diana Williams’s testimony
indicated that as of August 4, defendant “didn’t have any money
to go grocery shopping.” These facts support an inference that
defendant (whose schedule appeared to be flexible) did not
merely lack time to pay the liquor store on or right after August
1, but instead, that he lacked the resources. More importantly,
these facts suggest that defendant expected to acquire resources
sufficient to cover his $140 tab — by the day of, or after, the
Jenkses were killed. A rational trier of fact could understand
this evidence to point toward a preconceived plan to rob.
      Defendant urges us to ignore these details in our analysis
of the sufficiency of the evidence, asserting that “poverty is such
poor evidence of a motive for theft, much less robbery and
murder, that it is not even admissible on that issue.” This
argument misses the mark twice over. First, it is true that “a
defendant’s poverty generally may not be admitted to prove a
motive to commit a robbery or theft; reliance on such evidence
is deemed unfair to the defendant, and its probative value is
outweighed by the risk of prejudice.” (Koontz, supra, 27 Cal.4th
at p. 1076; see also, e.g., People v. Clark (2011) 52 Cal.4th 856,

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


928-930.) But the evidence here was admitted, and its probative
value bears on the sufficiency of the evidence at trial, regardless
of the risk of prejudice that came with it. (Cf. Lockhart v. Nelson
(1988) 488 U.S. 33, 40 [reversing a conviction because evidence
was improperly admitted at trial is not equivalent to reversing
for insufficient evidence, even if, without that evidence, the
proof adduced at trial would have been insufficient].) Our case
law has taken similar evidence of a defendant’s particularized
need or desire for resources into account. (See, e.g., Jackson,
supra, 1 Cal.5th at p. 346 [“the jury could infer . . . that
Jackson’s need for cash motivated him to break into Myers’s
house”]; Zamudio, supra, 43 Cal.4th at p. 360 [“there was ample
evidence here that defendant killed the Bensons and took their
property because he needed or wanted money”]; People v.
Sakarias (2000) 22 Cal.4th 596, 619.)3
       Second, this evidence did not merely show that defendant
was impoverished. Instead, it revealed a baseline of his finances
— whatever their state — and showed that he expected to
acquire enough money to cover a debt that exceeded his current
ability to pay. It is the expected acquisition of funds in the near
future that makes these circumstances probative, not the mere
fact of poverty. (Cf. People v. Kelly (1901) 132 Cal. 430, 431-432
[“Generally, evidence of the wealth or poverty of a defendant is
not admissible; but the sudden possession of money,
immediately after the commission of a larceny, by one who



3
      Although defendant’s opening brief raises 18 separately
numbered issues on appeal, a challenge to the court’s
discretionary admission of this evidence is not among them —
perhaps because defendant appears to acknowledge that no
objection was made below.


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


before that had been impecunious, is clearly admissible as a
circumstance in the case”].)
      To be sure, defendant’s call to the liquor store did not
necessarily imply that he planned to take the Jenkses’ property.
The call was made before he told Diana Williams that he had
lost his money at the casino, and it is possible that he lost his
money after the call but before speaking with Williams. It also
appears that defendant did not pay the debt, perhaps because
the jewelry he pawned yielded less than the amount he owed.
Regardless, details surrounding the call — defendant’s
deviation from the norm of paying on the first of the month, yet
apparent expectation of having money a few days later —
provide additional circumstantial evidence in support of the
jury’s verdict.

     B. Reasonable Doubt Instruction
       Defendant raises several arguments concerning the
definition of “reasonable doubt” provided to the jury. He claims
that a pattern instruction inadequately defined that concept.
He further contends that the instruction was undermined both
by asserted prosecutorial misconduct and by the trial court’s
comments during jury selection. Even assuming defendant’s
claims are preserved for our review, we perceive no reversible
error.

         1. CALJIC No. 2.90
      “The federal Constitution’s due process guarantee
‘protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute
the crime with which he is charged.’           [Citation.]  The
Constitution ‘does not require that any particular form of words


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


be used in advising the jury of the government’s burden of proof,’
but it does require that, ‘ “taken as a whole, the instructions . . .
correctly conve[y] the concept of reasonable doubt to the jury.” ’
[Citation.] What matters, for federal constitutional purposes, is
‘whether there is a reasonable likelihood that the jury
understood the instructions to allow conviction based on’
insufficient proof.” (Daveggio, supra, 4 Cal.5th at pp. 839-840.)
      The jury was instructed with CALJIC No. 2.90. The court
advised: “A defendant in a criminal action is presumed to be
innocent until the contrary is proved, and in case of a reasonable
doubt whether his guilt is satisfactorily shown, he is entitled to
a verdict of not guilty. This presumption places upon the People
the burden of proving him guilty beyond a reasonable doubt.
[¶] Reasonable doubt is defined as follows: It is not a mere
possible doubt; because everything relating to human affairs is
open to some possible or imaginary doubt. It is that state of the
case which, after the entire comparison and consideration of all
the evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction of the truth
of the charge.” We have “repeatedly upheld” this instruction
“against constitutional challenge.” (Daveggio, supra, 4 Cal.5th
at p. 840; see also, e.g., People v. Lucas (2014) 60 Cal.4th 153,
294-299 (Lucas).)
       Defendant complains that the instruction “merely tells
the jurors that they need to expect to remain convinced of the
truth of the charge for a prolonged period (‘abiding conviction’),
without telling them how convinced they must be.” We perceive
no error. “An instruction cast in terms of an abiding conviction
as to guilt . . . correctly states the government’s burden of proof.”
(Victor v. Nebraska (1994) 511 U.S. 1, 14-15 (Victor); see also
People v. Romero (2015) 62 Cal.4th 1, 42; People v. Brown (2004)

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


33 Cal.4th 382, 392; Lisenbee v. Henry (9th Cir. 1999) 166 F.3d
997, 999-1000.) Defendant advances no persuasive reason to
depart from this well-settled rule, notwithstanding his
complaint regarding a prosecutor’s discussion of the instruction.
(See ante, at part II.B.2.)
       Defendant also complains of the instruction’s statement
that a defendant “is presumed to be innocent until the contrary
is proved, and in the case of a reasonable doubt whether his guilt
is satisfactorily shown, he is entitled to a verdict of not guilty.”
(Italics added.) Defendant argues that the term “until” implies
that the People will inevitably satisfy their burden. We
disagree. The word “until” can refer to a condition that may
never be satisfied. No reasonable juror would have understood
the instruction to suggest that the People would inevitably
satisfy their burden of proof, because “the instruction . . .
expressly dictates what should occur in the event the jury finds
a reasonable doubt.” (Lucas, supra, 60 Cal.4th at p. 296.)

         2. Asserted prosecutorial misconduct
      The case against defendant was tried by two prosecutors,
Michael Reinhart and Gayle Helart. Defendant contends that
Helart committed misconduct during the rebuttal portion of
closing argument, lowering the People’s burden of proof. There
was no error.
            a. Background
     Because defendant’s challenge to Helart’s rebuttal
argument draws on the context in which that argument was
made, we begin by describing the arguments that preceded hers.
      Deputy District Attorney Reinhart delivered the initial
portion of the People’s closing argument. In pertinent part, he


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


argued: “Lastly, on the idea of these instructions and the law, I
know they may have sounded like the instructions on how to do
— how to program your VCR or stereo. They get rather
complicated and convoluted. But at the core of them, they’re
really based on common sense. And if you’re back there and you
find yourself going against your common sense, you say
something like, well, we know he’s guilty, but the instructions
say this, so does that mean that we have to find him not guilty?
If you find yourself going against your common sense, going off
on places where you really don’t think common sense tells you
you should be going, stop. Come back, ask the judge to clarify
them. Don’t go down too far a road because you may be
misreading or reading too much into the instructions. They
really are based on common sense, and, again, if you’re violating
your common sense, you’re going against something you just
think, hey, this don’t sound right, ask the Judge. That’s very
common to do. Be sure you understand the instructions.”
      After Reinhart concluded, defendant’s trial counsel
delivered closing argument.        In pertinent part, counsel
contrasted proof by a preponderance of the evidence, proof by
clear and convincing evidence, and proof beyond a reasonable
doubt. He continued, “If you go back into that jury room and
you tell yourself and your colleagues agree, you know, I’m pretty
sure he did it, you have to enter verdicts of not guilty because
the law says you’ve got to be more than pretty sure.”
      Deputy District Attorney Helart responded as follows:
“Defense tried to do this, I don’t know, hierarchy of reasonable
doubt, and boy, when the defense does the hierarchy it just
sounds like preponderance is way down here, and clear and
convincing is kind of here, and beyond a reasonable doubt is
clear up here, high as Mt. Everest. That’s sort of what the

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


inference is, kind of like a bar chart or something. Well, you
know, we could do a bar chart the other way, and let’s start with
beyond a reasonable doubt right down here, and then you could
go beyond a shadow of a doubt right there, and beyond any doubt
right here, and absolutely certain up here, and then way up here
is one hundred percent certain. So you see that’s not really very
helpful. You can kind of manipulate bar charts any way you
want to and that’s not helpful. [¶] But in your consideration of
reasonable doubt don’t ever come back and tell a prosecutor,
‘Gosh, you know, we believed he was guilty, but —.’ Don’t do that.
If you believe he’s guilty today and you’ll believe he’s guilty next
week then that’s that abiding conviction that’s going to stay with
you. And ‘beyond a reasonable doubt’ is defined in the jury
instructions it’s not a mere possible doubt; anything open to
being human has some possible or imaginary doubts. It’s what’s
reasonable.” (Italics added to the language challenged on
appeal.)
            b. Analysis
      Defendant argues that the portion of Helart’s rebuttal
emphasized above diminished the reasonable doubt standard.
The claim is not preserved for our review. “A claim of
prosecutorial misconduct is ordinarily preserved for appeal only
if the defendant made ‘a timely and specific objection at trial’
and requested an admonition.” (Daveggio, 4 Cal.5th at p. 853;
see also, e.g., People v. Centeno (2014) 60 Cal.4th 659, 674
(Centeno); People v. Green (1980) 27 Cal.3d 1, 27-35.) Defendant
neither objected nor requested an admonition. These failures
could be excused if an objection would have been futile or a
request for admonition ineffectual. (See, e.g., Daveggio, at
p. 853.) But we have no reason to doubt that the trial court
would have sustained any meritorious objection, nor to doubt

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


that any prejudice could have been cured by an admonition
emphasizing that the jury should follow the court’s instructions
and disregard the statements at issue.
      Defendant contends that he “is not precluded from raising
for the first time on appeal a claim asserting the deprivation of
certain fundamental, constitutional rights.” (People v. Vera
(1997) 15 Cal.4th 269, 276.) But he identifies no authority
indicating that such a right is at issue here, and we have
repeatedly applied our ordinary forfeiture rule to claims that a
prosecutor misstated the reasonable doubt standard. (See, e.g.,
People v. Barnett (1998) 17 Cal.4th 1044, 1156; People v.
Anderson (1990) 52 Cal.3d 453, 472; People v. Gonzalez (1990)
51 Cal.3d 1179, 1214-1215.)
       Defendant likewise fails to identify any authority
indicating that forfeiture concerns are irrelevant because his
claims concern “ ‘a pure question of law which is presented by
undisputed facts.’ ” (People v. Hines (1997) 15 Cal.4th 997,
1061.) Defendant’s interpretation of that exception to the
forfeiture rule would seem to imply that any issue reviewable de
novo may be raised for the first time on appeal, even when, as
here, information about the prosecutor’s intonation would be
relevant, but is not revealed by the trial transcripts. Such an
exception would allow a defendant to invalidate an entire trial
based on a claim of prosecutorial misconduct that could have
been easily remedied by a timely objection and an admonition.
We decline to extend the exception to the circumstances
presented here, or to excuse the forfeiture as a matter of
discretion.
     Even assuming that there was no forfeiture (or that we
should reach the merits regardless, as a matter of discretion),


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


there was no error. A claim of prosecutorial misconduct may
have merit even absent proof that a prosecutor had “a culpable
state of mind.” (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
For this reason, “[a] more apt description of the transgression is
prosecutorial error.”    (Ibid.)   Such error occurs when a
prosecutor misstates the law by, for example, making remarks
that would “absolve the prosecution from its prima facie
obligation to overcome reasonable doubt on all elements.”
(People v. Marshall (1996) 13 Cal.4th 799, 831; accord People v.
Cortez (2016) 63 Cal.4th 101, 130 (Cortez).) For such remarks to
constitute error, however, it is not enough that the remarks
could be construed as improper. (People v. Winbush (2017) 2
Cal.5th 402, 480.)         Instead, “[a] defendant asserting
prosecutorial misconduct must . . . establish a reasonable
likelihood the jury construed the remarks in an objectionable
fashion.” (People v. Duff (2014) 58 Cal.4th 527, 568; see Cortez,
at pp. 130-134; see, e.g., Centeno, supra, 60 Cal.4th at p. 665
[finding such a likelihood when “the prosecutor used a visual
display” — an outline of California — “to illustrate the standard
of proof”].)
      In context, it is not reasonably likely that jurors
understood Helart’s remarks in an objectionable fashion. A
reasonable juror would interpret the argument as a whole as
carrying the general import that an abiding conviction is one so
strongly held that it lasts, rather than one that is fleeting and
might weaken in the near future. As context reveals, the
argument was framed in response to the defense’s “hierarchy of
reasonable doubt”; jurors, Helart argued, should not be misled
into acquitting based on that hierarchy (“ ‘Gosh, you know, we
believed he was guilty, but — ’ ”), but should instead rely on the



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


actual meaning of “ ‘beyond a reasonable doubt,’ ” a phrase
“defined in the jury instructions.”
       Our recent decision in Cortez supports this conclusion.
The prosecutor in that case stated: “ ‘The court told you that
beyond a reasonable doubt is not proof beyond all doubt or
imaginary doubt. Basically, I submit to you what it means is
you look at the evidence and you say, “I believe I know what
happened, and my belief is not imaginary. It’s based in the
evidence in front of me.” ’ ” (Cortez, supra, 63 Cal.4th, at p. 130,
italics added.) After an objection, the prosecutor added,
“ ‘[t]hat’s proof beyond a reasonable doubt.’ ” (Ibid.)
       Faced with a claim of misconduct, we “observe[d] that the
challenged remarks, viewed in isolation, were incomplete at
best. They informed jurors that their ‘belief’ about what had
happened had to be ‘based in the evidence’ rather than
‘imaginary.’ ” (Cortez, supra, 63 Cal.4th at p. 131.) “Although
this is a correct statement of the law,” we continued, “it does not
alone suffice as a definition of the beyond-a-reasonable-doubt
standard.” (Ibid.) Viewing the argument and instructions as a
whole, however, we found no misconduct. (Id., at pp. 133-134.)
We explained, “given that the challenged comments were brief
and constituted a tiny, isolated part of the prosecution’s
argument, that the prosecution was responding to defense
counsel comments, that the prosecution expressly referred the
jurors to the instruction they had on reasonable doubt, that both
the court and defense counsel properly defined ‘reasonable
doubt’ numerous times, and that the jury had written
instructions during deliberations that properly defined the
standard, we find no reasonable likelihood the jury construed or
applied the prosecution’s challenged remarks in an
objectionable fashion.” (Ibid.)

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


      There was likewise no error here. True, this case is not
precisely the same as Cortez; for example, defense counsel did
not object to Helart’s remarks. But those remarks were brief,
they were made in response to defense counsel’s comments, and
they referred jurors to the court’s instructions. Moreover, the
court instructed jurors, both immediately after they were sworn
and before the start of closing arguments, that “[i]f anything
concerning the law said by the attorneys in their arguments or
at any other time during the trial conflicts with my instructions
on the law, you must follow my instructions.” (Cf. Cortez, supra,
63 Cal.4th at p. 131.) To guide their deliberations, jurors were
also provided with a copy of this instruction and with CALJIC
No. 2.90. (Cf. ibid.) We presume not only that jurors follow
instructions in general (Daveggio, supra, 4 Cal.5th at p. 821),
but also “that jurors treat the court’s instructions as a statement
of the law by a judge, and the prosecutor’s comments as words
spoken by an advocate in an attempt to persuade” (People v.
Clair (1992) 2 Cal.4th 629, 663, fn. 8; accord Cortez, at p. 131).
We have no reason to deviate from those presumptions here, and
note that, despite Prosecutor Reinhart’s invitation, the jury did
not request clarification of the reasonable doubt instruction.
Under these circumstances, it is not reasonably likely the jury
construed the remarks in an objectionable fashion, nor that “the
jury understood the instructions to allow conviction based on”
inadequate proof. (Victor, supra, 511 U.S. at p. 6.)4

4
      Defendant further claims that the “don’t ever come back
and tell a prosecutor” statement suggested “that jurors would be
accountable to the prosecution after they reached their verdict.”
This claim is also not preserved for our review. In any event, it
is not reasonably likely that jurors understood the comment in



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


         3. Trial court’s comments during jury selection
      During jury selection, the trial court gave prospective
jurors an example of when someone might draw a conclusion
based on circumstantial evidence. Defendant contends that, in
doing so, the trial court diluted the reasonable doubt standard.
           a. Background
       Before prospective jurors received questionnaires, the
trial court used CALJIC No. 2.90 to instruct them about the
presumption of innocence and the burden of proof beyond a
reasonable doubt. After the questionnaires were completed, a
prosecutor asked whether the attorneys would be permitted to
question prospective jurors “during general voir dire.” When the
trial court indicated that it “had not intended to permit that,”
the prosecutor asked the court to add “two questions . . . to its
list.” The first question concerned whether jurors would be
biased in favor of the defense because more people would be
sitting at the prosecution’s table at trial. Defense counsel
objected, and the court refused to ask the question.
      The prosecutor’s second request concerned the burden of
proof. The prosecutor explained to the court: “[I]t appears that
a number of these jurors, notwithstanding the Court having
already instructed that the burden of proof is beyond a



the way defendant claims. Helart clearly did not want the jury
to acquit based on a less-than-reasonable doubt, and
communicated her view that doing so would be a mistake. But
her brief, isolated comment could not reasonably be understood
to threaten adverse consequences for jurors.
      Finally, because the prosecutor’s remarks were not
erroneous, trial counsel was not ineffective for declining to
object to them.


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


reasonable doubt for the guilt phase, have expressed opinions
that because it’s a death penalty case it would require guilt
beyond a shadow of a doubt, at least expressed by one, one said
like a hundred percent. There is at least enough of them to raise
a concern by us that they would not follow the law.” The court
responded, in pertinent part, “I do intend to include a discussion
of circumstantial evidence and I intend to remind the jurors or
to inform the jurors that a consideration of circumstantial
evidence is no different in a death penalty case than it is in any
other trial. . . . [I]f a juror either indicates here or has indicated
in their written declarations that they’re going to have a
problem utilizing those conventional criteria for evaluating
circumstantial evidence and following the Court’s instructions
on burden of proof, then I’ll — we’ll individually examine them.”
Defense counsel did not object, nor probe the connection between
the prosecutor’s requested question (regarding the burden of
proof) and the court’s anticipated question (regarding
circumstantial evidence).
      Four panels of prospective jurors were called to the
courtroom. The court illustrated for each panel the concept of
circumstantial evidence. Before doing so, the court explained
the purpose of the illustration, with statements like, “One of the
types of evidence that people sometimes are a little confused
about is the evidence that we call circumstantial evidence. . . .
There’s nothing mystical about circumstantial evidence, and the
best way to approach this would be just to give you a simple
example.”
     The example that most strongly supports defendant’s
claim of error went as follows: “Let’s assume that you or your
spouse prepared . . . a raspberry pie and you set that on the
counter to cool. There’s nobody home except you and your nine-

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


year-old child, and you tell the child to stay away from that pie,
that you have company coming that evening and you don’t want
the pie to be messed up, keep their fingers out of it. And then
you leave and you go about your tasks. Nobody else comes or
goes from the house. An[] hour or two later you come back into
the kitchen and somebody has stuck their finger in that pie, and
you go look for the child, and sure enough, there’s your nine-
year-old in the bedroom and he or she has raspberry pie filling
on their lower lip. I don’t think you’d have any trouble figuring
out what happened to that pie. Now, that’s circumstantial
evidence, sure, but I think most moms or dads would arrive at a
conclusion beyond any reasonable doubt under those
circumstances that that child was the one who got into that pie.”
(Italics added.) It appears two seated jurors heard this version
of the illustration.     Other versions did not include the
“reasonable doubt” language, instead stating, for example, “I
don’t think any of you would have a problem figuring out what
happened to that pie.”
           b. Discussion
      In assessing defendant’s argument that the trial court’s
raspberry pie example diminished the reasonable doubt
standard, the relevant question is whether “ ‘there is a
reasonable likelihood that the jury understood the instructions
[as a whole] to allow conviction based on’ insufficient proof.”
(Daveggio, supra, 4 Cal.5th at p. 840.) There is not.
       Defendant claims there is a reasonable likelihood that the
raspberry pie example caused prospective jurors to believe their
“task was to determine what had actually happened in the case
before them, as opposed to whether the prosecution had made a
sufficient case for [defendant’s] guilt.” We disagree. The trial


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


court explained to each of the four panels of prospective jurors
that its example illustrated the concept of circumstantial
evidence. We have no reason to doubt that jurors understood
this point. The example was merely a portion of the guidance
provided to prospective jurors — let alone seated jurors — and
the balance of the court’s instructions made clear that the
People bore the burden of proof beyond a reasonable doubt. (See,
e.g., CALJIC No. 2.90; see also Daveggio, supra, 4 Cal.5th at p.
842 [comments made during jury selection are less significant
than instructions at the close of evidence].)5
      Defendant is on somewhat firmer ground when he
complains that the court’s example “compared the jurors’ duty
to decision-making in ordinary life,” though only to the extent
that he challenges the court’s statement that “most moms or
dads would arrive at a conclusion beyond any reasonable doubt
under those circumstances that that child was the one who got
into that pie.” We perceive no error.
      We have explained that “jurors should not be instructed to
convict based on the level of certainty needed to make decisions
‘in the ordinary affairs of life.’ ” (Daveggio, supra, 4 Cal.5th at
p. 841, quoting People v. Brannon (1873) 47 Cal. 96, 97; but cf.
Victor, supra, 511 U.S. at p. 19; Holland v. United States (1954)
348 U.S. 121, 140; Hopt v. Utah (1887) 120 U.S. 430, 439.)
“Because people often act in important matters notwithstanding
substantial uncertainty, the fear is that defining proof beyond a
reasonable doubt in relation to a person’s willingness to act,”
even “in the weightier affairs of life,” “might understate the

5
       Contrary to defendant’s suggestion, there is no reasonable
likelihood that these or other comments led the jury to believe
that it should ignore the court’s other instructions.


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


government’s burden of proof.” (Ramirez v. Hatcher (9th Cir.
1998) 136 F.3d 1209, 1214.)
       The trial court’s raspberry pie example avoids the core of
this concern. The court did not communicate that if jurors had
sufficient confidence to make an ordinary or even important life
decision, then they had been convinced beyond a reasonable
doubt. The court instead provided a commonly used court
example of a fictional scenario and indicated that most parents
would be able to reach a beyond-a-reasonable-doubt conclusion
— having already told prospective jurors what “beyond a
reasonable doubt” means. To be clear, we do not condone the
court’s reference to the reasonable doubt standard in its
illustration of circumstantial evidence. (See Daveggio, 4 Cal.5th
at p. 844 [“We . . . reiterate that ‘modifying the standard
instruction [on reasonable doubt] is perilous, and generally
should not be done . . . .’ ”].) Nevertheless, we cannot conclude
that this brief, inartful pretrial reference to the reasonable
doubt standard — a standard the court had already defined
properly and would again define after the close of evidence —
created any “ ‘reasonable likelihood that the jury understood the
instructions to allow conviction based on’ insufficient proof.”
(Daveggio, supra, 4 Cal.5th at p. 840.) Accordingly, there was
no error.
      Shifting away from his arguments regarding the burden
of proof beyond a reasonable doubt, defendant further complains
that the trial court’s comments “violated the evenhandedness
which due process demands.” This contention is meritless. To
the extent defendant claims that the court was not, in fact,
evenhanded, the comments he identifies fall far short of
establishing that claim. Here, the court had reason to be
concerned that at least some jurors were unaware of the rules

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


governing capital trials. The court’s effort to “disabuse” jurors
of a possible misconception — in a manner the defense did not
find objectionable — in no way hints at partiality. The claim
also overlooks examples of the trial court’s conduct that were
favorable to defendant, including the court’s efforts to limit any
unduly prejudicial effect of the crime scene video and
photographs, and, close in time to the comments at issue here,
the court’s refusal to ask one of the questions requested by the
prosecution.
       To the extent defendant claims the court conveyed to
jurors an appearance of partiality, the claim also lacks merit.
The court’s hypothetical, though lengthy and colloquial, did not
concern a fact pattern like the case before the prospective jurors,
and nothing the court said could reasonably be viewed as a
comment on the evidence. Moreover, this claim plucks the
court’s comment from context.            Before jurors filled out
questionnaires, for example, the court explained that “we have
no idea if we will ever get to the penalty phase of this trial.” It
further emphasized that “[t]he fact that the defendant is in court
for trial or that charges have been made against him is no
evidence whatsoever of his guilt. You are to consider only
evidence properly received in this courtroom in determining the
guilt or innocence of the defendant.” The court also instructed
seated jurors with CALJIC No. 2.01, which explains when
circumstantial evidence is insufficient to support a conviction.
And, immediately before the seated jurors began their
deliberations, the court instructed them with CALJIC No. 17.30:
“I have not intended by anything I have said or done, or by any
questions that I may have asked, or by any ruling I may have
made, to intimate or suggest what you should find to be the
facts, or that I believe or disbelieve any witness. [¶] If anything


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


I have done or said has seemed to so indicate, you will disregard
it and form your own conclusion.” We have no persuasive reason
to doubt that the jurors followed this instruction.
      It may be preferable, as defendant asserts, to use more
neutral examples to illustrate the concept of circumstantial
evidence, rather than inculpatory fact patterns. (See, e.g.,
CALCRIM No. 223 [“[I]f a witness testifies that he saw someone
come inside wearing a raincoat covered with drops of water, that
testimony is circumstantial evidence because it may support a
conclusion that it was raining outside”].) Even if the court’s
framing was error, however, it was plainly harmless under any
potentially applicable standard.

      C. Other Claims of Guilt-phase Instructional Error
      Defendant complains of several other instructions given
during the guilt phase of his trial. Even assuming his claims of
error are preserved for our review, none has merit.         (Cf.
Daveggio, supra, 4 Cal.5th at p. 840 [explaining that whether
failure to object was excused under section 1259 turned on the
merits of the claim, and thus “proceed[ing] to consider the
merits”].)

         1. Burden of proof regarding robbery and grand theft
      The jury was instructed with CALJIC No. 2.15. The court
advised: “If you find that a defendant was in conscious
possession of recently stolen property, the fact of that possession
is not by itself sufficient to permit an inference that the
defendant is guilty of the crimes of robbery and grand theft.
Before guilt may be inferred there must be corroborating
evidence tending to prove defendant’s guilt. However, this
corroborating evidence need only be slight and need not by itself


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


be sufficient to warrant an inference of guilt.             [¶] As
corroboration you may consider the attributes of possession[ —
]time, place, and manner[,] that the defendant had . . . an
opportunity to commit the crime charged, the defendant’s
conduct, a false account of how he acquired possession of the
stolen property, and any other evidence which tends to connect
the defendant with the crime charged.” This pattern instruction
is “generally favorable to defendants; its purpose is to emphasize
that possession of stolen property, alone, is insufficient to
sustain a conviction for a theft-related crime.” (People v.
Gamache (2010) 48 Cal.4th 347, 375.)
      Defendant contends this instruction lowered the People’s
burden of proof. He similarly asserts the instruction permitted
the jury to draw an irrational inference, in violation of his right
to due process. “We have previously rejected the same
arguments, concluding that CALJIC No. 2.15 appropriately
permits — but does not require — jurors to infer guilt of
burglary, robbery, or theft from the possession of stolen property
plus some corroborating evidence, and that it does not violate
due process or reduce the burden of proof.” (People v. Grimes
(2016) 1 Cal.5th 698, 730; see also People v. Letner and Tobin
(2010) 50 Cal.4th 99, 189 [“the jury separately was instructed
regarding the elements of both robbery and theft, and there was
no suggestion in the challenged instruction that the jury need
not find that all of the elements of robbery (or theft) had been
proved beyond a reasonable doubt”].) We see no persuasive
reason to revisit or distinguish our precedent. Considering “the




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


entire charge to the jury,” there was no error. (People v. Holt
(1997) 15 Cal.4th 619, 677.)6

         2. After-acquired intent and robbery
      Defendant contends that by instructing the jury with
CALJIC No. 9.40.2, the court misled jurors into believing that
they could find defendant guilty of robbery even if his intent to
take the Jenkses’ property arose after his use of force was
complete. We disagree.
      CALJIC No. 9.40.2 provides: “To constitute the crime of
robbery, the perpetrator must have formed the specific intent to
permanently deprive an owner of [his] [her] property before or
at the time that the act of taking the property occurred. If this
intent was not formed until after the property was taken from
the person or immediate presence of the victim, the crime of
robbery has not been committed.” Defendant rightly observes
that it is possible for someone to form an intent to permanently
deprive another of property before “the act of taking the
property” is complete, but after the use of force has concluded.
      The problem with defendant’s argument is that CALJIC
No. 9.40.2 merely sets out one of several conditions necessary
for a robbery conviction, a felony murder conviction based on
robbery, or a robbery-murder special-circumstance true finding.
The jury was elsewhere “adequately informed concerning the


6
      Defendant could be understood to complain of a
prosecutor’s discussion of this instruction. Any claim of
misconduct was forfeited by defendant’s failure to object and to
request an admonition in the trial court. (Daveggio, supra, 4
Cal.5th at p. 853.) Defendant does not argue that any exception
to our forfeiture rule should apply with respect to this comment,
and none is apparent.


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


point in time the intent to steal must have been formed” (People
v. Hughes (2002) 27 Cal.4th 287, 360), because it was instructed
with CALJIC Nos. 3.31 (concurrence of act and intent), 8.21
(first degree felony murder in the commission of a robbery),
8.81.17 (murder in commission of robbery), and 9.40 (robbery).
(See Jackson, supra, 1 Cal.5th at pp. 343-344; Zamudio, supra,
43 Cal.4th at p. 361; People v. Valdez (2004) 32 Cal.4th 73, 111-
112 & fn. 11; Hughes, at pp. 358-360, 363.) Viewing the
instructions as a whole rather than evaluating CALJIC No.
9.40.2 in isolation, there was no error.

         3. Acquittal-first rule
      Although a jury is free to consider greater and lesser
included offenses in whatever order it chooses (see People v.
Kurtzman (1988) 46 Cal.3d 322, 324-325), a jury may not return
a guilty verdict on a lesser offense without also acquitting the
defendant of a greater offense (see People v. Fields (1996)
13 Cal.4th 289, 309; see also People v. Anderson (2009) 47
Cal.4th 92, 114). The jury in this case was correctly instructed
on these principles: “[Y]ou are to determine whether the
defendant is guilty or not guilty of the crimes charged in Counts
1, 2, 3, and 4 or of any lesser crimes. In doing so, you have
discretion to choose the order in which you evaluate each crime
and consider the evidence pertaining to it. You may find it
productive to consider and reach a tentative conclusion on all
charges and lesser crimes before reaching any final verdicts.
However, the court cannot accept a guilty verdict on a lesser
crime unless you have unanimously found the defendant not
guilty of the charged crime.” (See CALJIC No. 17.10.)
    Defendant’s trial counsel asked the court to instruct on
CALJIC No. 17.10, which describes this so-called acquittal first


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


rule. Defendant now complains, however, that the rule creates
an intolerable risk that a juror may acquiesce to a first degree
murder conviction. The hypothesized juror may believe that a
defendant is guilty of second degree murder.             But, the
hypothesis continues, a juror may perceive that fellow jurors
will be unwilling to acquit of first degree murder, and thus feel
pressured to convict of that offense rather than causing a
mistrial. (Cf. United States v. Tsanas (2d Cir. 1978) 572 F.2d
346 [“If the jury is heavily for conviction on the greater offense,
dissenters favoring the lesser may throw in the sponge rather
than cause a mistrial that would leave the defendant with no
conviction at all, although the jury might have reached sincere
and unanimous agreement with respect to the lesser charge”].)
A guilty verdict on second degree murder, with a mistrial on first
degree murder, is not an option; “the court cannot accept a guilty
verdict on a lesser crime” unless the jury has “unanimously
found the defendant not guilty of the [charged] [greater] crime.”
(CALJIC No. 17.10.)7
       We have repeatedly rejected challenges to this acquittal-
first rule, albeit sometimes in the context of a different pattern
instruction. (See People v. Brooks, supra, 3 Cal.5th at pp. 81-82;
People v. Covarrubias (2016) 1 Cal.5th 838, 906; People v.
Sattiewhite (2014) 59 Cal.4th 446, 479; People v. Whisenhunt
(2008) 44 Cal.4th 174, 222-223; Jurado, supra, 38 Cal.4th at p.
125; People v. Cox (2003) 30 Cal.4th 916, 967; People v.



7
      Defendant notes in passing that similar pressure may
apply when a jury is deciding whether to convict of robbery or a
lesser included offense.



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


Nakahara (2003) 30 Cal.4th 705, 715.) We decline to reconsider
our precedent.8
       In light of defendant’s thorough and thoughtful briefing on
the subject, however, we make one observation. The choice
defendant hypothesizes is far afield from requiring a jury to
choose between convicting a defendant of a capital crime or
convicting him of nothing at all. (Cf. Beck v. Alabama (1980)
447 U.S. 625, 627 [death sentence may not be imposed “ ‘after a
jury verdict of guilt of a capital offense, when the jury was not
permitted to consider a verdict of guilt of a lesser included non-
capital offense, and when the evidence would have supported
such a verdict’ ”].) We presume that jurors follow instructions.
There is far less reason to doubt that they will do so when the
alternative is a mistrial rather than an acquittal — let alone to
believe that they will violate their duty to follow the instructions
by convicting of first degree murder rather than by entering a
compromise acquittal on that greater charge and agreeing to
convict only of second degree murder. The risk of erroneous
conviction is particularly diminished because jurors remain free
to discuss second degree murder before reaching a verdict on
first degree murder; they can acquit of first degree murder with
confidence that the defendant will still be convicted of a serious
offense.
       In any event, it is difficult to imagine that the acquittal-
first rule had any effect in this case. There is no reason to
believe the rule would have caused jurors to unanimously find


8
      Because this claim fails on the merits, it is unnecessary
for us to analyze whether trial counsel’s request that the
instruction be given invited any error or forfeited the claim of
error. (See People v. Bramit (2009) 46 Cal.4th 1221, 1246.)


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


true the robbery-murder special-circumstance allegation. That
finding thus confirms that the jury unanimously believed
defendant was guilty of at least felony murder.

         4. Burden of proof regarding the degree of murder
     Defendant contends that another pattern instruction
“tended to,” among other things, “place the burden of raising a
doubt” as to the degree of murder on the defense. We are not
persuaded.
      The instruction at issue informed the jury: “If you are
convinced beyond a reasonable doubt and unanimously agree
that the crime of murder has been committed by a defendant,
but you unanimously agree that you have a reasonable doubt
whether the murder was of the first or of the second degree, you
must give defendant the benefit of that doubt and return a
verdict fixing the murder as of the second degree as well as a
verdict of not guilty of murder in the first degree.” (See CALJIC
No. 8.71 (6th ed. 1996).)
       Defendant complains that this “instruction stated, in
effect, that the jury had to find a doubt in order to make the
crime of the second degree,” and thus “implied that the default
finding was first-degree murder.” “And if the jury had to be
convinced of a doubt to reduce the charge,” he continues, “the
further implication was that the defendant was the party to do
the convincing, by raising one.”9




9
      The record suggests that defendant requested this
instruction, again raising the question whether any error was
invited. We again decline to resolve this question, because the
claim fails regardless.


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


       There is no reasonable likelihood that the jury understood
the instruction in this way. (Estelle v. McGuire (1991) 501 U.S.
62, 72 & fn. 4.) The instruction governed the jury’s conduct only
if the jury had been “convinced beyond a reasonable doubt” that
defendant was guilty of murder. In other words, the instruction
applied only if the prosecution had carried its burden of proving
murder (meaning, at minimum, second degree murder) beyond
a reasonable doubt. From that point, the instruction redounded
to the benefit of the defendant; uncertainty about the degree of
the offense would not make first degree murder the default, it
would require that the defendant receive the benefit of the doubt
— an acquittal on the first degree murder charge. (See People
v. Salazar, supra, 63 Cal.4th at p. 247 (Salazar).) Certainly, and
contrary to defendant’s contention on appeal, the instruction
was not stated solely from the viewpoint of the prosecution.
      Defendant also argues that the instruction was flawed
because it “stated a need for a collective finding” of doubt,
notwithstanding his “right to each juror’s individual judgment.”
We have acknowledged that, viewed in isolation, the
instruction’s focus on whether “you unanimously agree that you
have a reasonable doubt” (CALJIC No. 8.71 (6th ed. 1996))
“carr[ies] at least some potential for confusing jurors about the
role of their individual judgments” (People v. Moore (2011) 51
Cal.4th 386, 411; id., at pp 409-412). Viewing the instructions
as a whole, however, there was no error. In context, the jury
would have understood the challenged language to refer to the
concept, discussed above, that “the court cannot accept a guilty
verdict on a lesser crime unless you have unanimously found the




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


defendant not guilty of the charged crime.” (See CALJIC No.
17.10; Salazar, supra, 63 Cal.4th at pp. 247-248.)10
      The jury was also instructed with CALJIC No. 17.40,
which makes clear, in pertinent part: “The People and the
defendant are entitled to the individual opinion of each juror.
[¶] Each of you must consider the evidence for the purpose of
reaching a verdict if you can do so. Each of you must decide the
case for yourself, but should do so only after discussing the
evidence and instructions with the other jurors. [¶] Do not
hesitate to change an opinion if you are convinced it is wrong.
However, do not decide any question in a particular way because
a majority of the jurors, or any of them, favor that decision.” It
is thus not reasonably likely that the jury understood the
challenged instruction in the way defendant does on appeal.
(See Salazar, supra, 63 Cal.4th at p. 248 [“Defendant’s reading
assumes the jury would disregard . . . the explicit directions of
CALJIC No. 17.40 emphasizing each juror’s duty to decide the
case as an individual”].)

         5. Consciousness of guilt instruction
      The jury was instructed with CALJIC No. 2.03. The court
advised: “If you find that before this trial the defendant made a
willfully false or deliberately misleading statement concerning
the crimes for which he is now being tried, you may consider
that statement as a circumstance tending to prove a
consciousness of guilt. However, that conduct is not sufficient


10
      Defendant      complains      that      these    instructions
“exacerbated” each other’s effect. We agree that the instructions
jointly made clear the acquittal-first rule, but that was not error,
and we do not perceive any other.


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


by itself to prove guilt, and its weight and significance, if any,
are for you to decide.” “The cautionary nature of [this]
instruction[] benefits the defense, admonishing the jury to
circumspection regarding evidence that might otherwise be
considered decisively inculpatory.” (People v. Jackson (1996)
13 Cal.4th 1164, 1224; accord Covarrubias, supra, 1 Cal.5th at
p. 908 (Covarrubias); see also People v. Page (2008) 44 Cal.4th
1, 50 & fn. 24.) Defendant nevertheless claims that the trial
court erred by giving the instruction. We disagree.
       Defendant first argues that the instruction was not
applicable to the facts of his case. It was. The morning of
August 6, the day after defendant pawned Shirley Jenks’s
jewelry, defendant spoke with two officers regarding his
hatchet. As one officer testified: “[W]e then asked him . . . could
we see the hatchet? And then he said he didn’t have it, he
thought that he lost it. [¶] We then went on to ask him where
it could have been lost or how it could have been lost? He told
us that he recently had moved from one apartment in the
complex to another apartment in the complex and he must have
lost it in the move.” By contrast, Diana Williams testified that
she had seen defendant use the hatchet in his new apartment to
hammer speaker wire into place. Moreover, also on August 6,
defendant refused to answer Quentin’s repeated questions about
where the hatchet had gone — conduct undermining defendant’s
appellate theory that his statement to police about losing the
hatchet could have been “an honest mistake.” On these facts,
the instruction was amply justified. (See People v. Russell
(2010) 50 Cal.4th 1228, 1254-1255 (Russell) [instruction was
properly given when the evidence permitted the jury to make a
rational inference that the defendant made a false statement to



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


deflect suspicion away from himself].) Likewise, the instruction
did not invite the jury to draw an irrational inference.
      Defendant also claims that the instruction is
impermissibly argumentative.        We have repeatedly held
otherwise and see no persuasive reason to revisit or distinguish
our precedent. (See, e.g., People v. Henriquez (2017) 4 Cal.5th
1, 34; People v. Nelson (2016) 1 Cal.5th 513, 552; People v.
Williams (2015) 61 Cal.4th 1244, 1265; People v. Bryant (2014)
60 Cal.4th 335, 438; People v. Jones (2013) 57 Cal.4th 899, 971;
People v. Bacon (2010) 50 Cal.4th 1082, 1108; People v. Page,
supra, 44 Cal.4th at pp. 49-52.) True, the evidence showed that
defendant was otherwise cooperative with officers at around the
time he claimed to have lost his hatchet. But the jury could
consider that cooperation in determining whether “[the]
defendant made a willfully false or deliberately misleading
statement.” (CALJIC No. 2.03; cf. Russell, supra, 50 Cal.4th at
p. 1253 [instruction not argumentative in case in which
“[i]mmediately following his arrest, defendant agreed to be
interviewed”]; id., at p. 1256.)

         6. Requiring unanimous agreement on a theory of first
            degree murder
       The jury was instructed that “[i]n arriving at a verdict for
first degree murder, it is not necessary that all jurors agree on
one or more of several theories proposed by the prosecution.”
Defendant contends that the jury should have been required to
unanimously agree on which of the prosecution’s theories had
been proved beyond a reasonable doubt: premeditated and
deliberate murder, or robbery felony murder. We have rejected
this argument in the past and see no persuasive reason to revisit
the issue. (See, e.g., People v. Sattiewhite, supra, 59 Cal.4th at


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


p. 479; People v. McKinzie (2012) 54 Cal.4th 1302, 1354; People
v. Valencia (2008) 43 Cal.4th 268, 289 (Valencia).) We also
observe that the jury not only convicted defendant of a
standalone robbery charge, but also found true the robbery-
murder special-circumstance allegation. At the very least, the
special circumstance finding “necessarily demonstrates the
jury’s determination that the defendant committed felony
murder” (People v. Gonzalez (2018) 5 Cal.5th 186, 200
(Gonzalez)), evincing unanimous agreement on at least that
theory of first-degree murder (Valencia, at p. 289).

     D. Admission of Report on Galloway’s Statement
      On rebuttal, an investigator read aloud from his report of
an interview with driver Oscar Galloway. Defendant contends
the report was hearsay, admitted in violation of state law and
the confrontation clause of the Sixth Amendment to the United
States Constitution. We conclude that any statutory error was
harmless at the guilt phase and that no constitutional violation
occurred.

         1. Background
      Detective Walker spoke with Oscar Galloway at
Galloway’s residence a few days after the killings. At trial in
June 1998, Galloway explained that he was then undergoing
cancer treatment and lacked a full and accurate recollection of
the events of early August 1997. He did, however, identify
defendant in the courtroom; testify that he had driven defendant
to a casino “a couple of times”; recall speaking with Walker; and
claim that he answered Walker’s questions honestly. Galloway
acknowledged on cross-examination that he could not recall
what he told Walker and was not able to recall when he drove


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


defendant to the casino. Galloway added that his medical
problem did not “really [come] down” on him until October 1997,
about two months after the Walker interview.
       Over defendant’s objection, the trial court allowed the
detective to read aloud from his report of the interview. The
detective then testified as follows: “Galloway said that on
Tuesday, 8-5-97, . . . Potts wanted to go to The Palace and . . .
play the slots. He also wanted to go downtown. Galloway said
that Potts entered the car with a large blue duffel bag. When
Galloway parked his car, Potts exited with the duffel bag and
said he would be back shortly. [¶] Galloway stood out in front
of the Cottage Bar on Seventh Street talking to a friend until
sometime later Potts came back. They then went to The Palace
and played the slot machines. Galloway said that they did not
stay there very long, however. [¶] Galloway did not think much
of it until the next day, 8-6-97, when Potts came to his house and
asked him if Potts had left his duffel bag in the back of
Galloway’s car. Galloway did not know for sure, and he knew
that his car was locked, so he and Potts walked together to the
car to look for the duffel bag. [¶] According to Galloway, the
duffel bag was found on the back seat in the car. Potts retrieved
the bag. Galloway noted that the bag did not look as packed as
the day before when Potts got out of his car and left for a while.”

         2. Analysis
      Defendant first argues that admission of the statement
violated the confrontation clause, because “the statement was
made out of court and without an opportunity for cross-
examination.” This argument lacks force, because Galloway
was available for cross-examination about the statement at



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


trial, his memory problems notwithstanding. (See People v.
Cowan (2010) 50 Cal.4th 401, 467-468.)
     Defendant next argues that the statement was
inadmissible hearsay, an objection he raised below. The
statement was certainly hearsay, but the trial court ruled it
admissible under the past recollection recorded exception to the
hearsay rule. (See Evid. Code, § 1237.) Defendant contends
that two of the exception’s requirements were not satisfied.
Most notably, he argues that the report was not created “at the
time” the statement “was made” (id., § 1237, subd. (a)(2)),
because Walker did not record Galloway’s statement the
morning it was uttered, but instead typed his report at some
unspecified time later that day.
       It is debatable whether defense counsel objected on this
precise ground in the trial court. But the People do not argue
that the claim has been forfeited, and the trial court was
sufficiently informed to ask Walker, “[d]o you recall when you
typed it” and “you believe you wrote up the interview or your
record of the interview on August 9th?” Indeed, the People’s
brief conspicuously fails to mention this objection at all, let alone
press forfeiture or engage with defendant’s interpretation of the
statutory phrase, “at the time it was made.”
      Because of the People’s failure to engage with defendant’s
argument, we decline to explore whether the argument was
preserved or had merit. Instead, we conclude that any error was
harmless at the guilt phase. (See Gonzalez, supra, 5 Cal.5th at
p. 195 [nonstructural state law error evaluated for reasonable
probability of a more favorable result]; People v. Watson (1956)
46 Cal.2d 818, 836-837.) Defendant contends that Galloway’s
statement was highly relevant to whether defendant committed


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


the killings; the statement helped “to explain the absence of
jewelry, bloody clothing or shoes, or a hatchet among
[defendant’s] belongings, because the duffel that was supposedly
in Galloway’s car at the time of the search contained them.” A
prosecutor made a similar argument during closing argument.
He expected the defense to argue that the lack of evidence found
during the 3:00 a.m. search of defendant’s apartment soon after
the killings indicated that defendant was not the perpetrator.
Part of the prosecutor’s response to the anticipated argument
was that Galloway’s statement was “a very significant piece of
information,” which showed that at least the bag (and, the
prosecutor seemed to suggest, “the [hatchet] and the other
items”) were in Galloway’s car that night.
      Notwithstanding the prosecutor’s rather strong assertion
that the evidence was “very significant,” it is hard to imagine
that the Galloway statement had any impact on the jury’s guilt-
phase verdict. The lack of hatchet or jewelry found during the
3:00 a.m. search tended to exculpate defendant to the extent
that one would expect those items to be found in his apartment.
To defeat that expectation, all the jury had to believe was that,
in the more than 24 hours between the murders and the search,
defendant had left the unpawned jewelry and the hatchet
literally anywhere in the world other than inside his apartment.
The prosecutor argued this point as well: “One, your common
sense tells you, well, not likely, because if you just killed
somebody and you had blood all over your clothes, you’re going
to throw them away, you’re not going to keep them around the
house. And, two, you might hide the jewelry where people can’t
find it.” Indeed, if the theory is that defendant retrieved the
items from Galloway’s car two days after the killings, then he
must have been capable of hiding the items elsewhere, before


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


the intensive postarrest search of his apartment also failed to
uncover those items.
     Finally, viewing the record as a whole (including the gaps
in the prosecution’s case), the evidence that defendant
committed the murders was quite strong. (See ante, part II.A.)

     E. Penalty-related Claims

         1. Admission of report on Galloway’s statement
     Defendant contends that the admission of Galloway’s
statement during the guilt phase prejudiced the jury’s penalty
determination. We disagree.
       When a defendant claims that evidence admitted in
violation of state law at the guilt phase prejudiced the jury’s
penalty determination, we assess prejudice using the standard
for state law penalty-phase error. (See People v. Romero, supra,
62 Cal.4th at p. 28.) Under that standard, “we will affirm the
judgment unless we conclude there is a reasonable (i.e.,
realistic) possibility that the jury would have rendered a
different verdict had the error . . . not occurred.” (People v.
Brown (1988) 46 Cal.3d 432, 448.) This inquiry is “ ‘the same in
substance and effect’ ” as the harmless-beyond-a-reasonable-
doubt inquiry triggered by federal constitutional error. (People
v. Ochoa (1998) 19 Cal.4th 353, 479; see also Chapman v.
California (1967) 386 U.S. 24.)
      Even if Galloway’s statement about his outing with
defendant had been excluded, there is no reasonable possibility
the jury would have reached a different penalty-phase verdict.
Defendant contends that the prosecutor used Galloway’s
statement to portray defendant as callous, pointing out that the
prosecutor said defendant was “off to the casino gambling” the


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


day after the murders. This reference to gambling was but a
tiny sliver of the closing argument, which instead focused on the
horrific details of the crime and the effect it had on others.
       Defendant similarly contends that although the other
evidence at trial would have given jurors “the impression that
[he] was so desperate for money that he could not buy food, the
testimony admitted in error replaced that image by one of a man
willing to kill two people to fund a brief visit . . . to the slot
machines.” This version of defendant’s argument has at least
two problems.        First, although Galloway’s out-of-court
statement was the only direct evidence that defendant gambled
after killing the Jenkses, it was hardly the only evidence
suggesting that the murders were connected to a gambling
problem. Galloway testified in court that he had driven
defendant to a casino “a couple of times,” and Diana Williams
testified that defendant had lost money at an out-of-town casino
in the days leading up to the Jenkses’ murders. Second, and
more fundamentally, the brutality of the murders — to say
nothing of the sexual assault — overwhelmingly indicated that
defendant was not a reluctant killer merely trying to obtain
money to buy food. Among other things, jurors had before them
a videotape showing Shirley Jenks’s body spread across her bed,
with one arm clutching her bloodied chest and a throat slit from
ear to ear. On these facts, and even considering the case in
mitigation and the possibility of lingering doubt, any error was
harmless.

         2. Excusing jurors based on their views about the
            death penalty
     A prospective juror may not be excused based on his or her
views on capital punishment unless those views would


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


substantially impair the person’s performance of his or her
duties as a juror. (Wainwright v. Witt (1985) 469 U.S. 412, 424;
see also Witherspoon v. Illinois (1968) 391 U.S. 510.) Defendant
claims the trial court improperly excused seven prospective
jurors from the venire based on their opposition to the death
penalty, denying him due process and an impartial jury. This
claim lacks force, because defendant’s trial counsel stipulated to
dismissal of those jurors. (See People v. Booker (2011) 51 Cal.4th
141, 161 (Booker).)
       Defendant contends that the stipulations are
inconsequential. He observes that at the time of his trial, an
objection was not necessary to preserve this sort of claim of
error. (See People v. McKinnon (2011) 52 Cal.4th 610, 637-643.)
In this case, he continues, the trial court itself identified jurors
about which it was concerned rather than leaving that task to
the parties. Thus, defendant argues, the stipulations here were
effectively mere failures to object to the court’s anticipated
rulings, and his claim is cognizable on appeal.
      This argument is not persuasive. To be sure, it appears
that the trial court’s doubts about whether certain jurors could
fairly consider imposing the death penalty prompted it to
inquire whether the parties would stipulate to those jurors being
excused. What matters, however, is not why defendant’s
counsel voluntarily stipulated to the dismissals nor how the
court might have ruled in the absence of stipulations; it is that
the dismissals were made by stipulation. (See People v.
Mitcham (1992) 1 Cal.4th 1027, 1061 [“Because of the
stipulation, the trial court was not called upon to decide whether
these prospective jurors could properly be excused for cause”];
cf. Booker, supra, 51 Cal.4th at p. 161 [stipulation effective even
when “the discussion between the trial court and the parties

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


focused on the prospective jurors’ opinions about the death
penalty, and those expressed opinions formed the basis for the
parties’ decisions regarding whether to stipulate to the
dismissal”].) Accordingly, we reject defendant’s challenge to the
dismissal of these prospective jurors.

         3. Lack of       instruction     regarding      victim-impact
            evidence
      The trial court instructed the jury with various standard
instructions explaining the principles governing the jury’s
penalty determination, including CALJIC Nos. 8.84.1, 8.85, and
8.88. Defendant argues that the trial court had an additional
duty to instruct the jury, on the court’s own motion, about the
proper use of victim impact testimony. “[W]e have repeatedly
held that the trial court’s use of jury instructions CALJIC Nos.
8.84.1 and 8.85 is sufficient to address a defendant’s concerns
about the proper use of victim impact evidence, and is consistent
with his or her federal and state constitutional rights to due
process, a fair trial, and a reliable penalty determination.”
(People v. Simon (2016) 1 Cal.5th 98, 143; see also, e.g., People
v. Johnson (2015) 61 Cal.4th 734, 780; People v. Enraca (2012)
53 Cal.4th 735, 763-764; People v. Tate (2010) 49 Cal.4th 635,
708; People v. Carrington (2009) 47 Cal.4th 145, 198; People v.
Bramit, supra, 46 Cal.4th at pp. 1244-1245; Valencia, supra, 43
Cal.4th at p. 310.) We see no persuasive reason to revisit or
distinguish our precedent.

         4. Lack of unanimity requirement for unadjudicated
            criminal activity
     The People presented evidence that defendant sexually
assaulted Carol T. and Diane H. prior to the Jenkses’ murders.
(See § 190.3, factor (b).) A pattern instruction properly


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


communicated that a juror could consider that unadjudicated
criminal activity as an aggravating factor only if the juror was
satisfied, beyond a reasonable doubt, that defendant committed
that activity. (See, e.g., People v. Robertson (1982) 33 Cal.3d 21,
53-55; see also CALJIC No. 8.87.) The pattern instruction also
communicated, however, that it was not necessary for the jury to
agree unanimously that defendant did so. Defendant contends
that this was error.
       We disagree. A penalty-phase jury need not unanimously
agree that a defendant engaged in unadjudicated criminal
activity; what is required is that the jury’s penalty
determination as a whole be unanimous. (People v. Ghent (1987)
43 Cal.3d 739, 773.) We acknowledge that unadjudicated
criminal activity may prove significant to a juror’s penalty
determination. But we cannot say that this factor is so
categorically different from other factors, such as “[w]hether or
not the defendant acted under extreme duress or under the
substantial domination of another person” (§ 190.3, factor (g)),
that unanimity is uniquely necessary in this context. We
instead adhere to our settled precedent on this issue. (See e.g.,
People v. Landry (2016) 2 Cal.5th 52, 121; People v. Bryant,
supra, 60 Cal.4th at pp. 451-452; People v. Burney (2009) 47
Cal.4th 203, 259-260; People v. Butler (2009) 46 Cal.4th 847,
876; People v. Yeoman (2003) 31 Cal.4th 93, 164; People v.
Anderson (2001) 25 Cal.4th 543, 590.) The high court’s decision
in Apprendi v. New Jersey (2000) 530 U.S. 466 does not require
a different result. (Burney, at pp. 259-260.)




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


     F. Noncapital Sentencing Claims

         1. Elderly victim enhancements
       In connection with each murder count, the jury found true
an allegation that “at the time of the commission of the above
offense the defendant committed the above crime against a
person 65 years of age or older and that this condition was
known or reasonably should have been known to the defendant
within the meaning of section 667.9(a) of the Penal Code.”
(Italics added.) Based on these findings and a prior strike under
the “Three Strikes” law, the court imposed a four-year
enhancement (two one-year determinate terms, doubled).
Defendant claims that murder is not one of the crimes eligible
for enhancement under section 667.9, subdivision (a). The
People confess error, but assert that since robbery is an eligible
crime, and the same information charged defendant with
robbery, “the enhancement should still be applied to the robbery
count.” The People cite no authority suggesting that we can, let
alone must, transfer the jury’s finding to the robbery count. We
decline to do so.

         2. Restitution fine
      The trial court ordered defendant to pay a $10,000
restitution fine. Defendant acknowledges that at the time he
was sentenced, the applicable version of section 1202.4
permitted the trial court to consider his inability to pay in
setting the amount of the fine. Subdivision (c) of that section
instructed that “[a] defendant’s inability to pay shall not be
considered a . . . reason not to impose a restitution fine.
Inability to pay may be considered only in increasing the
amount of the restitution fine in excess of the two-hundred-


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


dollar ($200) or one-hundred-dollar ($100) minimum.” (Stats.
1997, ch. 527, § 4, p. 3215.) Subdivision (d) added that “[i]n
setting the amount of the fine pursuant to subdivision (b) in
excess of the two-hundred-dollar ($200) or one-hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant’s inability to
pay . . . .” (Ibid.)
       Defendant contends that the trial court set the $10,000
amount based on erroneous information about whether
defendant would be permitted to work while incarcerated. In
particular, the probation officer reported: “The defendant will be
imprisoned for an extended period of time. Therefore, it is your
officer’s opinion, during the time he is imprisoned he is capable
of earnings, therefore, capable of paying for the fines as ordered
by the Court.” On appeal, the People do not dispute that
condemned inmates are not permitted to work, nor that the trial
court can be assumed to have relied on the probation officer’s
error. They also do not contend that defendant has forfeited any
claims based on that error. (Cf. People v. Gallardo (2017) 4
Cal.5th 120, 128 [“Forfeiture is not a jurisdictional doctrine”].)
We will thus assume, for argument’s sake, that the trial court
abused its discretion when it initially imposed a $10,000
restitution fine.
       In the unusual circumstances of this case, however, we
conclude that any error was harmless beyond a reasonable
doubt. Although we assume that the trial court imposed the
initial restitution fine with the belief that defendant could work
while incarcerated, as discussed below, we are confident that the
trial court would have imposed the same fine even in the
absence of that belief. We also conclude that such a fine would
have been lawful.

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


       Long after sentencing, in 2007, defendant filed a “Motion to
Modify Restitution Fine” in the trial court. He brought the
probation officer’s error to the court’s attention, arguing that he
was unable to pay the $10,000 fine and that a lower fine should
be imposed. The thrust of his argument was that his only source
of income was the small gifts he occasionally received, and that
the fine would result in up to 55 percent of those gifts being
withheld — interfering with his ability to satisfy his basic needs
by purchasing items at the commissary. The same judge that
initially sentenced defendant refused to modify the fine. The
court reasoned that seizing a portion of defendant’s income,
rather than all of it, “seems a minimal burden considering the
incredible loss that was inflicted, not only on the victims, but on
their daughter, who suffered catastrophic emotional
consequences.” The court continued, “We . . . don’t have any
evidence of her current status. The last time the Court had
information, it would appear she was still suffering and would
probably always be disabled because of the emotional trauma that
she experienced. [¶] I see no reason to revisit the Court’s earlier
order and modify that restitution fine. The defendant’s ability to
pay is taken into consideration by the Department of Corrections
when it makes its deductions and makes payments toward that
restitution liability. So I’m going to deny the motion.” Given
these comments, we are confident that the trial court would have
imposed the same fine even ignoring the probation officer’s
error.11



11
      We rely on the trial court’s comments solely as a guide to
whether the probation officer’s error had any prejudicial effect.
We express no opinion on whether the trial court had authority
to consider all or part of the motion.


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


      We further conclude that, had the court imposed the same
fine in the absence of the probation officer’s error (and in the
face of a similar objection), the fine would have been lawful.
Defendant first argues that the court’s rationale in ruling on the
2007 motion “strip[ped] the criterion of ability to pay of all
meaning” because the deduction at issue is taken from all
prisoners. We do not understand the trial court to have meant
that all prisoners are necessarily able to pay because they will
lose only a portion of their income in prison. Instead, we
understand the court to have indicated that the significance of
defendant’s difficulty paying was blunted by the fact that he
would retain at least some of the money sent to him. Indeed,
defendant — unlike prisoners whose release is anticipated —
would seem to be subject to deduction rules governing prisoners
for the rest of his life.12
      Defendant also appears to suggest that a fine is
automatically invalid if a defendant is unable to pay it. We
disagree. Inability to pay is a factor for the court to consider in
setting the amount of a restitution fine, alongside “any relevant
factors including, but not limited to, . . . the seriousness and
gravity of the offense and the circumstances of its commission,
any economic gain derived by the defendant as a result of the
crime, the extent to which any other person suffered any losses


12
      We do not suggest that a court satisfies its obligation to
“consider any relevant factors, including, but not limited to, the
defendant’s inability to pay” merely by noting that the
Department of Corrections and Rehabilitation considers ability
to pay. (§ 1202.4, subd. (d).) The point is that a trial court
considering the burden that a restitution fine will impose on a
capital inmate may properly consider evidence that the inmate
will retain a portion of his income, fine notwithstanding.


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


as a result of the crime, and the number of victims involved in
the crime.” (Former § 1202.4, subd. (d); see also ibid. [“Those
losses may include pecuniary losses to the victim or his or her
dependents as well as intangible losses, such as psychological
harm caused by the crime”].) The court was permitted to
conclude that the monetary burden the restitution fine imposed
on defendant was outweighed by other considerations.
      Our decision in People v. Lewis (2009) 46 Cal.4th 1255
(Lewis) is instructive. We explained: “Defendant’s argument in
the trial court — that the imposition of a large restitution fine,
which would be deducted from a portion of any funds given to
defendant by his family to purchase personal items such as
toothpaste, would be ‘an additional indignity’ — did not
establish that imposing the maximum fine of $10,000 would be
inappropriate under section 1202.4. On the contrary, his
argument contemplated that defendant would have funds in the
future from which restitution could be paid, and thus
contradicted the view that defendant would be unable to pay the
fine. Defendant’s theory on appeal — that the trial court
disregarded his inability to pay the fine — also fails. The court
clearly considered that possibility as a factor, but defendant’s
assertion that he was unable to pay the fine did not compel the
court to impose a lesser fine. In light of the offenses committed
by defendant and the harm he caused to the victim and her
children, we find no abuse of discretion in the trial court’s
determination that a fine in the amount of $10,000 was
appropriate.” (Id., at p. 1321.)13

13
      Given the force of this competing consideration, and that
this rationale accounts for defendant’s ability to pay, the fine



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


      People v. Viera (2005) 35 Cal.4th 264 is not to the contrary.
In Viera, we held that a defendant ordered to pay a restitution
fine at a time when a court could not consider inability to pay
was entitled to a remand, so that the court could consider the
restitution fine under current statutory criteria. (See Viera, at
pp. 305-306; Covarrubias, supra, 1 Cal.5th at p. 935.) We
further indicated that “[i]f the People choose not to contest the
matter on remand, defendant’s restitution fine shall be reduced
to the statutory minimum” (Viera, at p. 306) — the best result
Viera could have obtained at a contested hearing. Defendant
claims this statement implies that “if a defendant prevails in
showing inability to pay, the fine should be the minimum,
regardless of such factors as the seriousness of the offense.” He
is mistaken; we left the People free to contest the matter on
remand, and the trial court free to conclude that,
notwithstanding any difficulty Viera may have had in paying, a
fine higher than the statutory minimum would be appropriate.
The court in this case had that discretion as well.

      G. Cumulative       Effect       of   Errors    Identified   or
         Assumed
      Defendant contends that he is entitled to relief based on
the cumulative effect of the errors he claims to have identified.
We disagree.
      We have assumed error regarding defendant’s challenge
to the trial court’s illustration of circumstantial evidence and to
the admission of Galloway’s statement.                  Considered
cumulatively, these assumed errors provide no basis for



would not be excessive, deny defendant due process, or deny him
equal protection of the laws.


                                  67
                          PEOPLE v. POTTS
              Opinion of the Court by Cantil-Sakauye, C. J.


reversal. The Galloway statement had no bearing on the jury’s
understanding of circumstantial evidence. And although it
would have been preferable for the court’s illustration of
circumstantial evidence to be more neutral, we have already
concluded that the illustration was harmless in light of the
record as a whole — including the Galloway statement.
      We have also found or assumed error regarding the elderly
victim enhancements and the amount of the restitution fine.
Here, too, there is no cumulative prejudice. The fact that the
elderly victim enhancements were attached to the wrong counts
(murder, not robbery) would have no effect on any other aspect
of the jury’s deliberations. And the jury did not even set the
amount of the restitution fine, which had no effect on the rest of
the sentence.
      Defendant also argues that even if there were no
individual errors, he is still “entitled to reversal if his trial was
unfair or its result unreliable.” Viewing the record as a whole,
we cannot say that defendant was denied a fair trial or a reliable
judgment.

      H. Constitutionality of California’s Death Penalty
         Scheme
      Defendant argues that California’s death penalty scheme
is unconstitutional. He advances one argument he believes we
have yet to consider and several he concedes we have rejected in
the past. He also contends that the duration of his confinement
under his death sentence constitutes cruel and unusual
punishment, which should be relieved by vacating that
sentence. None of these arguments has merit.




                                   68
                          PEOPLE v. POTTS
              Opinion of the Court by Cantil-Sakauye, C. J.


         1. Burden of proof
      We have held that “ ‘[t]he death penalty is not
unconstitutional for failing to impose a specific burden of proof
as to the existence of aggravating circumstances, the greater
weight of aggravating circumstances over mitigating
circumstances, or the appropriateness of a death sentence.’ ”
(People v. Parker (2017) 2 Cal.5th 1184, 1232; see also People v.
Rangel, supra, 62 Cal.4th at p. 1235 [discussing burden of proof
regarding “Pen. Code, § 190.3, factor (b) or factor (c) evidence”].)
As we explained nearly 30 years ago, “[a]t the penalty phase,
each juror must determine, through the weighing process, which
of the two alternative penalties is the more appropriate.
Because the determination of penalty is essentially moral and
normative [citation], and therefore different in kind from the
determination of guilt, there is no burden of proof or burden of
persuasion. [Citation.]” (People v. Hayes (1990) 52 Cal.3d 577,
643 (Hayes).)
     Defendant contends that various provisions of the
Evidence Code entitled him to an instruction that the
prosecution had the burden of proof and persuasion at the
penalty phase, or alternatively, an instruction that there was no
such burden. (See Evid. Code, §§ 500, 502, 520, 550.)
       Evidence Code section 500 states, “Except as otherwise
provided by law, a party has the burden of proof as to each fact
the existence or nonexistence of which is essential to the claim
for relief or defense that he is asserting.” Defendant argues that
“[i]n a capital case, the prosecution’s demand for the death
sentence is a claim for relief.” Even assuming the truth of that
premise for the sake of argument, defendant fails to identify any
essential fact that the prosecution must prove at the penalty


                                   69
                         PEOPLE v. POTTS
             Opinion of the Court by Cantil-Sakauye, C. J.


phase, after the jury has already found the special circumstance
allegations true beyond a reasonable doubt.
      Evidence Code section 502 requires the court, “on all
proper occasions,” to “instruct the jury as to which party bears
the burden of proof on each issue . . . .” Our observation that the
penalty phase “is essentially moral and normative [citation],
and therefore different in kind from the determination of guilt”
(Hayes, supra, 52 Cal.3d at p. 643), implies the penalty phase is
not a “proper occasion[]” (§ 502) within the meaning of this
generally applicable rule of evidence. (See People v. Holt, supra,
15 Cal.4th at p. 684 [notwithstanding section 502, “because
capital sentencing is a moral and normative process, it is not
necessary to give instructions associated with the usual
factfinding process”].)
       Evidence Code section 520 provides that “[t]he party
claiming that a person is guilty of crime or wrongdoing has the
burden of proof on that issue.” We have repeatedly held that
this provision does not require an instruction placing the burden
of proof on the People at the penalty phase, and we see no
persuasive reason to reconsider our precedent. (See, e.g., People
v. Brooks, supra, 3 Cal.5th at p. 115; People v. Whalen (2013) 56
Cal.4th 1, 90; People v. Clark, supra, 52 Cal.4th at pp. 1007-
1008; People v. Cowan, supra, 50 Cal.4th at p. 509; People v.
Dykes (2009) 46 Cal.4th 731, 814; People v. Leonard (2007) 40
Cal.4th 1370, 1429; People v. Abilez (2007) 41 Cal.4th 472, 534;
People v. Dunkel (2005) 36 Cal.4th 861, 939; see also People v.
Lenart (2004) 32 Cal.4th 1107, 1136 [“Defendant advances no
meritorious reason for us to reconsider the rule that, apart from
other-crimes evidence, the jury need not be instructed on the
burden of proof at the penalty phase”].)



                                  70
                          PEOPLE v. POTTS
              Opinion of the Court by Cantil-Sakauye, C. J.


      Finally, Evidence Code section 550 instructs: “(a) The
burden of producing evidence as to a particular fact is on the
party against whom a finding on that fact would be required in
the absence of further evidence. [¶] (b) The burden of producing
evidence as to a particular fact is initially on the party with the
burden of proof as to that fact.” Again, given the “essentially
moral and normative” character of the penalty phase (Hayes,
supra, 52 Cal.3d at p. 643), and that the jury does not return a
collective “finding” of “fact” (§ 550, subd. (a)), this provision does
not require the instruction defendant requests.
       We have also held that “the trial court is not required to
explicitly tell the jury that neither party bears the burden of
proof.” (People v. Leonard, supra, 40 Cal.4th at p. 1429; see also,
e.g., People v. Parker, supra, 2 Cal.5th at p. 1232; People v.
Bunyard (2009) 45 Cal.4th 836, 861.) None of defendant’s
arguments provides any persuasive reason to reconsider that
conclusion. We note that CALJIC No. 8.88 advised the jury that
“[t]o return a judgment of death, each of you must be persuaded
that the aggravating circumstances are so substantial in
comparison with the mitigating circumstances that it warrants
death instead of life without parole.” Accordingly, we see no
merit to defendant’s contention that, absent a no-burden-of-
proof instruction, “there is the possibility that a juror would vote
for the death penalty because of a misallocation — to
[defendant] — of a nonexistent burden of proof.”

          2. Previously considered challenges
     We have previously considered and rejected the other
arguments defendant raises on appeal. We see no persuasive
reason to reexamine the following conclusions:



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


      The class of murderers eligible for the death penalty is not
impermissibly broad. (See People v. Lopez (2018) 5 Cal.5th 339,
370 (Lopez); § 190.2.)
      Directing the jury to consider “[t]he circumstances of the
crime” (§ 190.3, factor. (a)) does not result in arbitrary and
capricious punishment (People v. Ghobrial (2018) 5 Cal.5th 250,
291 (Ghobrial)). Adjectives such as “extreme” (§ 190.3, factors
(d), (g)) and “substantial” (§ 190.3, factor (g)) do not
unconstitutionally impede consideration of mitigating evidence.
(People v. Delgado (2017) 2 Cal.5th 544, 591-592.)
      “The death penalty statute ‘is not invalid for failing to
require (1) written findings or unanimity as to aggravating
factors, (2) proof of all aggravating factors beyond a reasonable
doubt, (3) findings that aggravation outweighs mitigation
beyond a reasonable doubt, or (4) findings that death is the
appropriate penalty beyond a reasonable doubt.’ ” (Lopez,
supra, 5 Cal.5th at p. 370.)
      CALJIC No. 8.88’s use of “the phrase ‘so substantial’ is not
impermissibly vague or ambiguous.” (Ghobrial, supra, 5 Cal.5th
at p. 292.) Directing the jury to determine whether the death
penalty is warranted, rather than appropriate, is not error.
(Ibid.) It is not necessary to instruct “that a life sentence is
mandatory if the jury finds that the factors in mitigation
outweigh the factors in aggravation.” (Ibid.) “The instruction is
not deficient for failing to specify that defendant had no burden
of proof with respect to the circumstances in mitigation.
[Citation.] Nor is it deficient for failing to inform the jury that
there was no need for unanimity as to those circumstances . . . .
[Additionally], ‘[t]he trial court’s failure to instruct the jury on
the presumption of life did not violate defendant’s constitutional


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


rights to due process, to be free from cruel and unusual
punishment, to a reliable determination of his sentence, and to
equal protections of the laws.’ ” (Id., at p. 292-293.)
      CALJIC No. 8.85 identifies several factors for the jury to
consider, “if applicable,” “[i]n determining which penalty is to be
imposed.” A trial court is not required to delete inapplicable
mitigating factors, nor to identify whether factors are mitigating
or aggravating. (Lopez, supra, 5 Cal.5th at p. 371.) “We have
consistently rejected state and federal law claims that a trial
court must specifically instruct on lingering doubt because the
concept is sufficiently covered in CALJIC No. 8.85.” (People v.
Enraca, supra, 53 Cal.4th at p. 767.)
       A trial court need not inform the jury to ignore “ ‘the
deterrent or nondeterrent effect of the death penalty or the
monetary cost to the state of execution or maintaining a prisoner
for life without the possibility of parole’ ” “where ‘neither party
raise[s] the issue of either the cost or the deterrent effect of the
death penalty . . . .’ ” (Zamudio, supra, 43 Cal.4th at p. 371.)
      “ ‘Comparative intercase proportionality review by the
trial or appellate courts is not constitutionally required.’ ”
(Lopez, supra, 5 Cal.5th at p. 371.) “ ‘The capital sentencing
scheme does not violate equal protection by denying to capital
defendants procedural safeguards that are available to
noncapital defendants.’ [Citation.] [¶] California’s death
penalty does not violate international law or international
norms of decency.” (Ibid.)
      We see no persuasive reason to conclude that these aspects
of our system, considered cumulatively, are constitutionally
infirm. (See People v. Anderson (2018) 5 Cal.5th 372.)



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


         3. Duration of confinement on death row
      Defendant was sentenced to death more than twenty years
ago. He contends that his prolonged time on death row
constitutes cruel and unusual punishment. To the extent
defendant argues “that delay inherent in the automatic appeal
process . . . is cruel and unusual punishment,” we disagree.
(People v. Anderson, supra, 25 Cal.4th at p. 606.) To the extent
he claims that the prison conditions imposed on capital inmates
are unconstitutional, at least after an extended period of time,
the record is insufficient to support the claim. The record is also
insufficient to support a claim that delays have made actual
executions unconstitutionally arbitrary.          (See People v.
Seumanu (2015) 61 Cal.4th 1293, 1372-1375.) Defendant offers
no persuasive reason to distinguish or reconsider these
precedents.
                        III. DISPOSITION
     We modify the judgment by striking the four-year
determinate term imposed for the elderly victim enhancements.
The trial court is directed to send to the Department of
Corrections and Rehabilitation a corrected abstract of judgment
with the enhancement stricken. We affirm the judgment as
modified, including the judgment of death.
                                       CANTIL-SAKAUYE, C. J.




                                  74
                         PEOPLE v. POTTS
             Opinion of the Court by Cantil-Sakauye, C. J.


We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
SIMONS, J.*




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


                                  75
                      PEOPLE v. POTTS
                            S072161


              Concurring Opinion by Justice Liu


       Today’s decision is our first to affirm a death judgment
since Governor Newsom signed Executive Order N-09-19
effecting a moratorium on capital punishment in California.
Neither defendant nor the Attorney General has suggested that
the Executive Order raises any new issues bearing on this
appeal. We thus decide this case on the claims and arguments
as submitted.
      And yet, as the Executive Order underscores, our decision
affirming the judgment does not alter a fundamental reality: A
death sentence in California has only a remote possibility of ever
being carried out. As leaders of the judiciary have long
observed, the death penalty presents serious challenges for the
fair and efficient administration of justice. For decades, those
challenges have not been meaningfully addressed. As a result,
California’s death penalty is an expensive and dysfunctional
system that does not deliver justice or closure in a timely
manner, if at all.
      This case is instructive: The death judgment was issued
in 1998. Now, 21 years later, we affirm the judgment on direct
appeal, but there is more litigation to come in the form of habeas
corpus petitions in state and federal courts. This timeline is
typical of our capital cases. (See, e.g., People v. Johnson (2018)
6 Cal.5th 541 [20 years between judgment and affirmance on
direct appeal]; People v. Powell (2018) 6 Cal.5th 136 [24 years];
                         PEOPLE v. POTTS
                         Liu, J., concurring


People v. Spencer (2018) 5 Cal.5th 642 [22 years]; People v. Wall
(2017) 3 Cal.5th 1048 [23 years]; People v. Jones (2017) 3 Cal.5th
583 [19 years]; People v. O’Malley (2016) 62 Cal.4th 944 [25
years]; People v. Cunningham (2015) 61 Cal.4th 609 [19 years];
People v. Brown (2014) 59 Cal.4th 86 [18 years].) In two recent
cases, we reversed the death judgment and remanded for a new
penalty trial; each defendant lived for over a decade under an
unconstitutional sentence. (See People v. Armstrong (2019) 6
Cal.5th 735 [15 years between judgment and reversal]; People v.
Buenrostro (2018) 6 Cal.5th 367 [20 years].) And in one recent
case, we vacated a capital conviction because of false evidence;
that defendant was released after serving 25 years on death row.
(In re Figueroa (2018) 4 Cal.5th 576.)
      The Executive Order describes California’s death penalty
system as “wasteful” and “protracted.” (Governor’s Exec. Order
No. N-09-19 (Mar. 13, 2019); see ibid. [“[S]ince 1978, California
has spent $5 billion on a death penalty system that has executed
13 people.”].) In this respect, the Executive Order echoes the
assessment of numerous leaders of the justice system over many
years.
      These leaders include two Chief Justices of our state,
whose collective tenure atop the judicial branch spans more
than two decades. In his memoir, former Chief Justice Ronald
George described California’s death penalty system as a
“protracted and dysfunctional process” that “places the
administration of justice and all of the courts, state and federal,
and government as a whole, in a very bad light.” (George, Chief:
The Quest for Justice in California (2013) p. 523 (George).) “My
ultimate concern,” he wrote, “is that we’re expending a
tremendous amount of effort and expense to impose death
sentences and send people to death row under circumstances

                                 2
                        PEOPLE v. POTTS
                         Liu, J., concurring


that almost totally undermine the deterrent effect of the death
penalty. A person sentenced to death knows that he or she in
effect is being given a life-without-parole sentence, because the
odds are that he or she is going to die of old age behind bars.”
(Id. at p. 541; see Cal. Dept. of Corrections and Rehabilitation,
Condemned Inmates Who Have Died Since 1978 (Mar. 8, 2019)
[120 inmates have died on death row for reasons other than
execution since 1978, the vast majority due to natural causes].)
          Our current Chief Justice has similarly observed that
California’s death penalty is “ ‘not effective’ ” and in need of
“ ‘structural change.’ ” (Dolan, California Chief Justice Urges
Reevaluating Death Penalty, L.A. Times (Dec. 24, 2011) (Dolan);
see ibid. [“ ‘I don’t know if the question is whether you believe
in it anymore. I think the greater question is its effectiveness
. . . .’ ”].) According to the Chief Justice, it is worth “asking
whether the criminal justice system can ‘make better use of our
resources.’ ” (Ibid.; see Shafer, California’s Chief Justice: Hard
to Say the Death Penalty Is Working, KQED: The California
Report (Jan. 23, 2015).)
       In 2014, U.S. District Judge Cormac Carney likewise
concluded in a lengthy opinion that the administration of the
death penalty in California is “dysfunctional.” (Jones v.
Chappell (C.D.Cal. 2014) 31 F.Supp.3d 1050, 1053, revd. sub
nom. Jones v. Davis (9th Cir. 2015) 806 F.3d 538 [finding
petitioner’s claim procedurally barred].) “California’s death
penalty system is so plagued by inordinate and unpredictable
delay that the death sentence is actually carried out against only
a trivial few of those sentenced to death.” (Jones v. Chappell, at
p. 1062.) Judge Carney cited Senior Judge Arthur Alarcón of
the United States Court of Appeals for the Ninth Circuit, who
exhaustively chronicled the “unconscionable delay” in the death

                                 3
                         PEOPLE v. POTTS
                         Liu, J., concurring


penalty system due to “dysfunctional procedures.” (Alarcón,
Remedies for California’s Death Row Deadlock (2007) 80 So.Cal.
L.Rev. 697, 697, 711.)
      In 2008, the Legislature created a blue-ribbon commission
of law enforcement officials, prosecutors, public defenders, and
scholars — chaired by former Attorney General and Los Angeles
County District Attorney John Van de Kamp — to study the
issue. (Cal. Com. on the Fair Admin. of Justice, Final Report
(2008) (Commission Report).) The Commission concluded that
“California’s death penalty system is dysfunctional” and
emphasized two major sources of dysfunction: “The system is
plagued with [1] excessive delay in the appointments of counsel
for direct appeals and habeas corpus petitions, and [2] a severe
backlog in the review of appeals and habeas petitions before the
California Supreme Court.” (Id. at pp. 111, 114–115.)
       As to the first issue, “[c]apital defendants are entitled to
counsel on direct appeal and in state habeas proceedings.
(See Douglas v. State of California (1963) 372 U.S. 353, 355 . . . ;
Gov. Code, § 68662.) [¶] On average in California, it takes three
to five years after a death judgment to appoint appellate
counsel. In April 2016, there were 49 capital defendants waiting
for attorneys to be appointed for direct appeals and 360 capital
defendants waiting for attorneys to be appointed for habeas
corpus petitions. About half of those waiting for appointment of
habeas counsel have been waiting for over 10 years.” (Briggs v.
Brown (2017) 3 Cal.5th 808, 864 (Briggs) (conc. opn. of Liu, J.),
citations omitted.) To address the difficulty of appointing
counsel, the 2008 Commission Report recommended increasing
the budget of the Office of the State Public Defender by one-
third, substantially increasing the compensation of private
attorneys who take capital cases, and dramatically expanding

                                 4
                          PEOPLE v. POTTS
                          Liu, J., concurring


the Habeas Corpus Resource Center. (Commission Report,
supra, at pp. 132–135.) These recommendations have never
been implemented or put to the voters. (See George, supra, at
p. 524 [discussing unsuccessful efforts to obtain increased
funding for death penalty reforms].)
      As to the second issue, the state Constitution assigns the
California Supreme Court exclusive jurisdiction over appeals
from judgments of death. (Cal. Const. art. VI, § 11, subd. (a).)
“[T]he fact that all appeals go to a single court . . . inevitably
result[s] in a bottleneck.” (Briggs, supra, 3 Cal.5th at p. 869
(conc. opn. of Liu, J.); see id. at p. 864 [“In April 2016, there were
337 direct appeals . . . pending in this court.”].) The 2008
Commission Report endorsed the recommendation of then Chief
Justice George to amend the state Constitution so that the
California Supreme Court would have discretion to transfer
death penalty appeals to our intermediate appellate courts.
(Commission Report at pp. 147–148.) This recommendation
also has never been implemented or put to the voters.
       In 2016, the electorate approved Proposition 66, the Death
Penalty Reform and Savings Act, an initiative “intended to
facilitate the enforcement of [death] judgments and achieve cost
savings in capital cases.” (Briggs, supra, 3 Cal.5th at p. 822.)
Among other things, Proposition 66 sets forth new procedures
governing habeas corpus petitions (Pen. Code, §§ 1509, 1509.1),
new rules for granting extensions of time for briefing (id.,
§ 1239.1, subd. (a)), new rules for appointing counsel (id.,
§ 1239.1, subd. (g)), and a reorganization of the Habeas Corpus
Resource Center (Gov. Code, §§ 68661, 68661.1, 68664).
Proposition 66 also directs the Judicial Council to adopt rules
and standards “designed to expedite the processing of capital



                                  5
                         PEOPLE v. POTTS
                         Liu, J., concurring


appeals and state habeas corpus review” within 18 months of
the initiative’s effective date. (Pen. Code, § 190.6, subd. (d).)
       Although the efficacy of Proposition 66 “remains to be
seen” (Briggs, supra, 3 Cal.5th at p. 860), two things are clear.
First, Proposition 66 cannot possibly achieve its objectives
unless California devotes considerable additional resources to
its judicial branch. (See Briggs, at p. 860 [“Much depends on the
funding made available by the Legislature.”].) While directing
this court to appoint counsel for indigent appellants “as soon as
possible” (Pen. Code, § 1239.1, subd. (a)) and directing trial
courts after entry of a death judgment to “offer counsel to the
prisoner” for a habeas corpus petition (id., § 1509, subd. (b)), the
initiative does not provide for additional resources to increase
the pool of attorneys who are qualified and willing to accept
these assignments. And while dispersing habeas corpus
petitions to the trial courts and Courts of Appeal and directing
those courts to proceed “expeditiously” (Pen. Code, §§ 1509,
subd. (f), 1509.1, subd. (c)), the initiative does not allocate
additional resources to those courts. (See Briggs, at p. 860
[“Proposition 66 presumes that the courts will have sufficient
resources to manage their caseloads.”].)
      Second, while stating that it is this court’s “duty” to
“expedite the review” of capital cases (Pen. Code, § 1239.1,
subd. (a)), Proposition 66 does not alter this court’s exclusive
jurisdiction over direct appeals. A proposed initiative in 2014
did contain a constitutional amendment to provide our
intermediate courts of appeal with direct appellate jurisdiction
in capital cases. But the proposed initiative was abandoned, and
Proposition 66 did not include any constitutional amendment.
(See Briggs, supra, 3 Cal.5th at pp. 865–866 (conc. opn. of Liu,
J.).)

                                 6
                         PEOPLE v. POTTS
                         Liu, J., concurring


      Proposition 66 thus did not enact or put to the voters the
key reforms that leading authorities consider fundamental to a
workable death penalty system. Proposition 66 did not reduce
the bottlenecking of direct appeals in this court. It did not
provide additional resources to enable this court, the courts of
appeal, or the trial courts to expedite capital cases. And it did
not provide additional resources for appointment of qualified
counsel.
       Nevertheless, Proposition 66 was presented to the voters
as a measure that “Requires Completion of Direct Appeal
and Habeas Corpus Petition Process Within Five Years”
and generally requires trial courts to resolve initial habeas
corpus petitions within one year. (Voter Information Guide,
Gen. Elec. (Nov. 8, 2016), analysis of Prop. 66 by Legis. Analyst,
p. 106 (italics and boldface in original); see Pen. Code, §§ 190.6,
subd. (d), 1509, subd. (f).) In these respects, Proposition 66
promised more than the system can deliver. As this court
unanimously held in Briggs, the time limits — “presented to the
voters by the proponents of Proposition 66 without the benefit of
hearings or research exploring their feasibility or their impact
on the rest of the courts’ work” — so plainly threaten to impair
the judicial function that they cannot be given any binding
effect. (Briggs, supra, 3 Cal.5th at pp. 860–861; see id. at
pp. 858–860; id. at p. 872 (conc. opn. of Liu, J.); id. at pp. 872–
873 (conc. & dis. opn. of Cuéllar, J.).) In enacting time limits “so
sweeping in [their] objective yet so vague on the means of
accomplishing the objective,” the voters were never asked to
“make difficult choices as to what should be sacrificed for the
sake of dramatically expediting the death penalty.” (Id. at
p. 871 (conc. opn. of Liu, J.).) Avoiding these hard choices serves
only to perpetuate the current dysfunction.


                                 7
                         PEOPLE v. POTTS
                         Liu, J., concurring


       I express no view here on the morality or constitutionality
of the death penalty. Since joining this court, I have voted to
affirm scores of death judgments, and I will continue to do so
when the law requires. It is impossible to review these cases
without feeling tremendous compassion for the victims and their
families, who have suffered unimaginable heartbreak and loss.
But the promise of justice in our death penalty system is a
promise that California has been unable to keep. We are
overdue for what our Chief Justice has called “a merit-based
discussion on [the death penalty’s] effectiveness and costs.”
(Dolan, supra.) In the meantime, the judiciary will continue to
do its duty under the law, leaving it to the voters and our elected
representatives to decide whether California should double
down on the current system or chart a new course.


                                               LIU, J.


I Concur:
CUÉLLAR, J.




                                 8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Potts
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S072161
Date Filed: March 28, 2019
__________________________________________________________________________________

Court: Superior
County: Kings
Judge: Louis F. Bissig

__________________________________________________________________________________

Counsel:

Michael P. Goldstein, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell, Maggy Krell, Ryan
B. McCarroll and Sally Espinoza, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael P. Goldstein
Law Office of Michael P. Goldstein
PMB 9122
5000 MacArthur Boulevard
Oakland, CA 94613
(510) 910-7220

Sally Espinoza
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-6282
