Filed 4/27/15 Reposted to correct superior court docket number; no change to opinion text.




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                                             S112442
           v.                        )
                                     )                                       Shasta County
PAUL GORDON SMITH, JR.,              )                                   Super. Ct. No. 98F2652
                                     )
           Defendant and Appellant.  )
____________________________________)


        A jury convicted defendant Paul Gordon Smith, Jr., of the first degree
murder of Lora Sinner, with the special circumstance of torture.1 The jury also
found defendant guilty of false imprisonment by violence and conspiracy to
commit murder. It determined that he used a deadly weapon and inflicted great
bodily injury.2 The jury decided death was the appropriate penalty, and the court
imposed that sentence. This appeal is automatic.
        We affirm as to guilt, but reverse the penalty judgment. Defendant‟s
violent attempt to escape from jail just before his trial began created difficult

1      Penal Code sections 187, 190.2, subdivision (a)(18). Further statutory
references are to the Penal Code, unless otherwise indicated.
2      Sections 182, 187, 236, 1203.075, and 12022, subdivision (b)(1).
       Defendant was originally charged along with codefendants Lori Smith and
Eric Rubio. Smith and Rubio entered pleas before trial and were witnesses for the
prosecution. Another participant in the crimes, Amy S., was prosecuted as a
juvenile, and also testified below.



                                                    1
problems for the court at various phases of the proceedings. We conclude that
during the penalty phase, the court improperly excluded expert testimony about
prison security measures for those sentenced to life without possibility of parole.
The evidence was admissible to rebut the prosecution‟s evidence and argument
suggesting that defendant would pose a danger in custody. Because we cannot say,
beyond a reasonable doubt, that the penalty determination would have been the
same had the jury heard from defendant‟s expert, we must reverse the penalty
judgment.
                                     I. FACTS
       A. Guilt Phase
              1. Prosecution
       In December 1997, defendant was 21 years old and living with his father in
Redding. During that month he met his younger half sister, Lori Smith, for the
first time. Lori had been living in Washington State. Defendant‟s older brother,
Timothy Smith, also arrived from Washington with his fiancée, Lora Sinner.3
       Defendant married Jessica Smith in January 1998. Shortly thereafter, he
began a relationship with Amy S., a 14-year-old runaway. Defendant‟s friend Eric
Rubio became romantically involved with defendant‟s sister Lori. Sinner ended
her engagement with Timothy and began to associate with defendant, Amy, Eric,
and Lori. Toward the end of February this group, led by defendant, began an
extended camping trip on private land in Shasta County.
       Of the five, Sinner was the only person without a partner. She flirted with
defendant, which angered Amy. Defendant returned Sinner‟s attention in order to
maintain access to her car, which they used to drive into town from camp. About a

3     For the sake of clarity, hereafter we refer to Lori Smith as “Lori,” and to
Lora Sinner as “Sinner.”



                                          2
week before Sinner‟s murder, Lori and Amy discussed beating her up, and
defendant told Eric he wanted to “off this bitch,” referring to Sinner. Lori testified
that during a conversation with everyone except Sinner, defendant said Sinner
should be killed. Eric remembered the conversation, but not who made the
comment.
       On the afternoon of the murder, Lori and Amy again spoke about beating
Sinner. According to Lori, defendant encouraged them because he wanted Amy
and Sinner to fight over him. Eric testified that defendant told him “the girls”
wanted to fight Sinner, and he didn‟t know what to do about it. Eric said
defendant displayed no signs of intoxication that afternoon. Toward the end of the
day, Amy punched Sinner in the face. Sinner punched back, and Lori joined the
fight. Defendant and Eric were in a tent about 15 feet away.
       Amy testified that Lori knocked Sinner‟s head against a tree several times.
Amy struck her in the head five or six times with a large can of chili, which she
tossed aside after it was dented. Lori slammed Sinner‟s head into a large rock.
Meanwhile, Amy retrieved two pieces of an automotive dent puller. One piece
was a metal bar about an inch and a half thick and a foot long. The other was a
weighted metal piece shaped like a barbell. As Sinner sat on the ground, Amy and
Lori repeatedly hit her with these implements. Sinner was crying and asking them
to stop. Amy admitted taunting Sinner during the assault.
       Lori‟s account differed somewhat. She did not remember hitting Sinner‟s
head on a tree or a rock, nor did she remember any taunting. She testified that
after punching Sinner with her fists, she retrieved the dent puller bar from the tent.
Defendant and Eric were watching the assault. Lori hit Sinner with the bar as hard
as she could two or three times. She also hit her with the chili can after Amy
dropped it.



                                          3
       Eric testified that he and defendant were in the tent when the fight started.
They could hear but not see the beating. Defendant showed no interest, saying,
“just let them fight.” Amy had taken one piece of the dent puller from the tent, and
Lori the other. Eventually, defendant intervened.
       Amy confirmed that defendant stopped the fight. He told them to take
Sinner down to the creek and clean her up. Lori maintained it was her idea to take
Sinner to the creek. There, she and Amy scooped water onto Sinner‟s head to
wash the blood from her hair. Eric and defendant also came to the creek.
According to Lori, defendant took her aside, held out an ax, and said, “Just finish
her off.” Lori refused. Defendant had no apparent difficulty walking or talking;
Lori did not know if he had taken any drugs that day. They all returned to the tent.
Lori did not see what defendant did with the ax. The couples sat in the tent; Sinner
sat on a mat outside the door.
       Defendant produced a bottle of whiskey, which the couples shared.
Defendant then gave the bottle to Sinner, telling her it would help with the pain.
Sinner took a small drink. Defendant became angry, and asked Eric to help tie her
up. After initially refusing, Eric put a noose around Sinner‟s neck. Defendant tied
her hands and feet. Sinner was crying. Defendant, still angry, told her she was
going to kill herself. He said she was in enough pain already and might as well
join her mother, who had died recently. Declaring that Sinner‟s death was going to
look like a suicide, defendant untied her hands, handed her a razor blade, and told
her to cut her wrists. Sinner cried and refused at first, then cut her wrist once.
Saying the cut wasn‟t deep enough, defendant took the blade, slashed her wrist,
and handed the blade back to her. Sinner tried to inflict another wound.
Defendant, unsatisfied, took the blade back and cut her wrist repeatedly.
       Defendant told Sinner to hold her wrists over a fire pit. Lori testified that
defendant struck Sinner‟s hands several times with the bar when she moved them.

                                           4
He also kicked her in the forehead and poured whiskey over the bleeding cuts,
causing Sinner to scream. He forced her to drink more liquor. Then he wrapped a
plastic garbage bag around her head, cinching it tightly. Sinner continued crying
and pleaded for help. Defendant struck her on the neck and back several times
with the bar, then asked if anyone else wanted to hit her, looking at Lori. Lori was
scared but wanted to prove she wasn‟t afraid to hurt someone. She hit Sinner with
the bar twice in the head and neck, and said she was “hard to kill.” Defendant
snatched the bar, told Lori she wasn‟t doing it right, and hit Sinner several more
times. When a blow produced a snapping sound, he stopped.
       Eric and defendant buried Sinner. Lori testified that Eric was frightened
and shaking. When the men returned, defendant said “she knew too much,” and he
feared she would say something. Lori understood him to mean that Sinner would
tell the police he had been stealing purses from cars. Defendant warned the others
that anyone who revealed what had happened would be the next to die. They
agreed to say they had put Sinner on a Greyhound bus. The next morning, they
burned her clothing and belongings at the burial site.
       Amy‟s testimony about the events following the fight was roughly
consistent with Lori‟s, though she was hazy on many details, particularly
defendant‟s statements. She said defendant did not appear to be drunk or under the
influence of drugs. She remembered Lori saying, “This bitch won‟t die” as she
struck Sinner with the bar. Amy did not mention defendant having an ax, or
asking Lori to “finish her off.” Amy could hear Sinner breathing against the
plastic wrapped around her head just before defendant and Eric carried her away to
bury her.
       Eric‟s account was similar. He said he did not join the others at the creek,
but stayed on the bank with a flashlight, watching. He did not see defendant with
an ax. Defendant said Sinner wouldn‟t survive because her skull was cracked and

                                          5
the back of her head was “mushy.” Eric admitted helping bind Sinner. He related
that defendant cut Sinner‟s wrist, poured alcohol on the wounds, and kicked her in
the head when she did not obey his directions. According to Eric, Sinner was still
breathing after the final blow. Defendant then cinched the bags around her head
and held them for 30 to 60 seconds, saying she would die more quickly that way.
       Eric initially refused to help dispose of the body. Defendant told him he
had better, “or I would end up just like her.” Frightened, Eric helped defendant
bury Sinner. They stripped the body first because, defendant said, it would
decompose faster. Afterward, defendant instructed the others to say Sinner had
gone back to Washington. He told them “we would all end up like her if we said
anything.” In the morning, they burned Sinner‟s clothes on top of the grave.
Defendant said this would keep animals from digging her up.
       The murder came to light some weeks later when Lori confessed to
acquaintances that she and defendant had “beat and tortured” Sinner to death.
While in jail, defendant participated in two videotaped interviews with detectives
and two audiotaped interviews with a newspaper reporter. The tapes were played
for the jury. In the first interview, defendant was given Miranda warnings and
said he understood them. (Miranda v. Arizona (1966) 384 U.S. 436.) He denied
committing the murder but said he would take the blame because he was the only
one of the group who could tolerate prison. Eventually, he began providing
details. He said Sinner could have died from either a head wound or asphyxiation,
but “would have died regardless.” He described her injuries, then recounted the
following events after she was washed in the creek:
       “Went back up to the top of the hill, resumed, she was tied up, laid down,
by the fire pit, laughed at. Comments were made towards her, she was kicked, her
hand was broken, she was hit in the back with a metal pipe, bar. She was hit in the
back of the head, repeatedly in the back of the neck and the back of the head, I

                                         6
remember the blood splattering. And she just didn‟t move no more. She wasn‟t
making no noise. Just kind of like laid there, then . . . a piece of plastic was put
around her face and then another piece of plastic, but she was already dead.”
Defendant admitted getting Eric to help him bury the body. He conceded he could
have stopped the attack, and had no reason why he did not.
        Defendant continued giving details, without identifying his role. He said
Sinner “was . . . given options, suicide. . . . She was given a razor blade and told to
cut her own wrists. . . . She uh couldn‟t cut her own wrists she was kind of too
drunk . . . wrists were cut for her, deeper. A lot of blood. But that wasn‟t
enough. . . . She was hit again with the pipe or the bar. . . . Either in the back of
the head or the back of the neck, twenty, thirty, forty, fifty times, I don‟t
know. . . . [S]he couldn‟t break her neck. Couldn‟t kill her.” Defendant said
Sinner had cried out in pain, but “it only brought more hits and more and more and
more she kept trying, after every hit it got quieter and quieter. Then you heard a
crunch. Something breaking, her neck breaking. . . . There was no more noise.
She didn‟t move. Just laid there. And then there was a plastic bag or something
on her head. We just held it there the whole time. She wasn‟t breathing . . . and
then after a few seconds, it was only a few seconds, long enough to choke her,
asphyxiate anybody.”
         Defendant said he had been “protecting her, but I couldn‟t protect her
when it really counted.” He admitted that Sinner had “suffered immense pain,”
and that “she was tortured.” He said the others would not have said anything to the
authorities because “they were too scared of me.” He denied fearing that Sinner
might have reported his crimes, explaining “she liked me way too much” to do
that.
        The next interview took place the following day. Defendant remembered
his Miranda rights, repeating them himself for the detectives. They told him that

                                           7
Amy and Lori had given them a complete account of what had happened, and
asked defendant to explain his role. Defendant said the others were trying to
protect him, commenting, “The only reason they didn‟t say something sooner is
because they thought I‟d kill them.” Defendant continued to take the blame,
because “a brother never rats on his sister.” Told that Lori had given a written
statement, defendant asked if she reported anything Sinner said about trusting him.
He said that after the initial beating, he knew she would not survive. Defendant
then offered to tell the detectives “a little story,” if the recorder was turned off.
       Evidently believing he was not being recorded, defendant gave a lengthy
statement, including an excuse for not intervening to protect Sinner. When the
assault began, he was in the tent with Eric. After drinking and smoking marijuana,
defendant took four muscle relaxants. He heard screaming, and saw the attack.
Lori came to the tent and got the two pieces of the dent puller, which Amy and
Lori used to hit Sinner. Defendant claimed he was “mesmerized” and
incapacitated by the drugs. He did not usually use medication, because he did not
like to lose control. Sinner was calling him for help, but he was unable to move.
Amy and Lori kicked and taunted her for a long time. After about an hour
defendant was able to get up and make them take Sinner to the creek.
       The back of Sinner‟s head was “mushy,” the side of her neck was blue, and
her face was bloody. She said she couldn‟t see. Her hands were swollen.
Defendant brought her back to the tent and gave her whiskey. He pulled Eric aside
and asked what they should do. Sinner would not survive, and defendant did not
want to see her suffer. Eric tied her up, but defendant released her and started
talking “into her ear.” He asked about her mother, and Sinner said she loved her
and wished she hadn‟t died. Defendant told her she was “probably going to go see
[her] mom tonight, you‟re gonna die.” He felt sorry and responsible, and offered
to “kill her for her, and end the pain quickly, as fast as I could.” He gave her more

                                            8
whiskey, and obtained a razor. Sinner “didn‟t really want to die but she accepted
the fact.” After she tried to cut her wrist, defendant took the razor blade and
attempted to do it himself, but was hampered by his drug ingestion and the
flimsiness of the blade.
       Frustrated, defendant “kept making her drink more whiskey,” then sat
down. Lori began beating Sinner again. Sinner was screaming by the time
defendant was able to take the bar from Lori. He hit Sinner twice, and realized her
neck was broken. Because she was still gasping for air, he wrapped the plastic
bags around her face until she stopped breathing. Defendant told the detectives,
“If I would have had a gun I would have just killed her faster, but I had no way to
kill her faster. . . . First time in my life I haven‟t had a gun when I need one, when
it really counted. She didn‟t want to die. I had to convince her. It‟s not even
right, but I still feel I was in the right for, I mean, do I kill her or let her suffer
through the whole night.”
       Defendant‟s interviews with the newspaper reporter took place in jail
several days later. In the first, he said he had been under the influence of alcohol,
marijuana, and medication. He had killed Sinner “out of mercy and with her
permission.” He heard the attack as it occurred but was unable to move because of
the drugs. He planned to plead guilty if the district attorney dropped charges
against the others. In the second interview, defendant was upset about the details
that had appeared in the paper.
       The forensic testimony established blood-alcohol levels of 0.78 and 0.88
percent in blood extracted from Sinner‟s heart. There were at least nine incisions
on her left wrist, all superficial. While not life threatening, they would have been
painful. Pouring alcohol over them would have exacerbated the pain. The cause
of death was blunt force head injuries, with asphyxiation a possible contributing
cause. The exceptionally high blood-alcohol level could have been an additional

                                             9
fatal factor, but the level detected may have been influenced by postmortem
migration of alcohol from the stomach to the heart.
              2. Defense
       The defense presented numerous witnesses to impeach the truthfulness and
reliability of Lori Smith. An investigating detective recounted inconsistent
statements made by Lori and Eric Rubio. Forensic testimony challenged the
reliability of the blood-alcohol levels found in Sinner‟s blood samples. A
psychiatrist testified about the effects of the muscle relaxant and other drugs
defendant claimed to have ingested.
       B. Penalty Phase
              1. Prosecution
       The victim‟s father, aunt, and brother testified about her life and the impact
of her death. Similar testimony was given by her minister, her supervisor at a
program where she worked assisting developmentally disabled adults, and a high
school counselor.
       Prosecution witnesses related numerous acts of violence defendant
committed while housed in group homes or juvenile hall. In March 1990, at the
age of 12, defendant ran away from a work project and swung a broken glass bottle
at a supervisor. When restrained, he continued to resist. Defendant told the deputy
who took him to a mental health facility that he wanted to kill himself. Several
months later defendant was suspected of helping to force one boy to orally
copulate another resident at a group home. Later, defendant kicked that boy in the
head, and was expelled from the program.
       In 1991, defendant stabbed a group home staff member with a pen and bit
him. Five adults restrained defendant while he flailed violently. He was
subsequently admitted to a mental health facility. In 1992, defendant punched a
group home resident in the jaw without warning. The victim required surgery and

                                         10
his jaw was wired shut for weeks. Defendant was arrested. In 1995, he was
housed in a high-security unit at juvenile hall. He tapped on his cell door to get the
attention of a counselor, then slid a knife fashioned from a flattened Pepsi can
under the door. Shortly thereafter, he struck another resident in the mouth and
used a racial epithet.
        The prosecution also presented evidence about an assault defendant
committed shortly before Sinner‟s murder. Michael Murchinson testified that in
February 1998, he was with defendant and others as they drove back from Reno.
They were running out of money. Murchinson and defendant first considered
robbing a convenience store, then decided to target a prostitute. They picked up a
woman and drove to an industrial area. After having intercourse with her,
defendant confronted her with a gun. She screamed and ran away. Defendant
fired a shot. He and Murchinson drove away with the woman‟s purse. However,
defendant discovered he had dropped his wallet. They went back to look for it and
were arrested.
       The jury heard about a number of incidents in the county jail after
defendant‟s arrest for Sinner‟s murder. In April 1999, he wrote his wife about
escaping, and asked her to take photographs of the jail‟s exterior. He told her he
would not die in jail, but would “go out in a blaze of glory.” She contacted law
enforcement. The jury heard a recording of a phone call between defendant and an
agent who pretended to be his wife‟s friend. They discussed the photographs and
how to get them to defendant.
       In August 1999, a six-inch steel shank and a corner section of a metal tray
were found in defendant‟s cell. He admitted these items were his and said he was
going to use them on a fellow inmate.
       In February 2001, guards noticed water coming from defendant‟s cell. He
had blocked the window in the cell door. When the water supply to his cell was

                                         11
cut off, defendant began yelling and kicking, and threatened a guard. Attempting
to move defendant to a more secure cell, the guards opened the cell door and
sprayed him with pepper spray, but he had wrapped a T-shirt around his head and
covered his eyes with a plastic bag. A cell extraction response team was
summoned. A videotape of the extraction showed four guards, wearing protective
gear, removing defendant from his cell after rolling in a “flash bang” grenade that
scattered hard rubber pellets. Defendant was strapped into a restraint chair and
examined by a nurse.
       A 28-inch baton, made of tightly rolled newspaper secured with elastic, was
found in the cell. Hard and dense, the baton did not bend or break when struck
against a concrete table. A few days later, defendant told a guard that one of his
ears was still ringing, and that the grenade had surprised him. He had expected
them to use a beanbag shotgun, which he had planned to take away from them.
       In May 2002, defendant planned an escape with fellow inmate Ben
Williams. Defendant approached Aaron Cozart, a newly incarcerated inmate, and
asked him to create a distraction by taking a hostage and forcing a cell extraction.
Meanwhile, defendant and Williams would knock out a window and use a rope
made of bedsheets to retrieve weapons and tools brought by a recently released
inmate named Tim. Tim would place some money in defendant‟s jail account
when everything was ready. The target date was May 17th or 18th. Cozart made
some phone calls and spoke to Tim, who failed to appear on the appointed dates.
Defendant said they would go ahead the following week, but Cozart changed his
mind and reported the plot. A deputy confirmed that a Timothy Yakiatis had
deposited funds in defendant‟s account on May 15th. The conspirators were
moved to different cells.
       In June 2002, defendant became angry with guard Timothy Renault over a
scheduling issue. Renault overheard defendant tell another guard that if he ever

                                         12
got out “there would be a fight, and he would get me.” The next night inmate
Harold Seems saw defendant walking toward the shower next to Seems‟s cell. He
heard defendant ask, “Do you have it?” A voice that Seems recognized as Ben
Williams‟s answered, “Yes.” Defendant said, “We‟re going to have to kill him.”
Williams replied, “Real fast.” Seems assumed they were planning to assault a
guard, and wrote a note of warning. Some time later, Renault appeared on his
rounds. Seems held up the note and made a warning gesture. Renault ran toward a
nearby door. Williams and defendant emerged from the shower, grabbed Renault,
and dragged him toward the shower.
       Renault testified that he entered defendant‟s cell pod around 3:50 a.m. He
noticed Seems at the window of his cell door, with a scared look on his face.
Seems whispered, “Get out of here.” Renault headed for the door and radioed the
control room. As he reached for the door, he heard a shower curtain open. He
turned to see Williams crouching, and a second figure in the shower stall. The two
men attacked, forcing Renault into a corner and hitting him repeatedly. It felt like
he was being held and hit by more than one person. The first deputy to respond
heard screaming and saw defendant walking away from the shower. Williams was
striking Renault‟s face. Deputies tackled and handcuffed Williams. Renault,
covered with blood, told them that defendant and Williams had attacked him.
       Nearby, deputies found a metal drain grate backed by a bar of soap wrapped
in twine and strips of bedsheet, with a handle formed of tightly rolled paper. The
grate in Williams‟s cell was missing. Renault suffered numerous injuries,
including lacerations in his scalp and mouth, a skull fracture, a blood clot on the
brain, fractures of the cheekbone and eye socket, a broken jaw, and a broken tooth.
Plates and screws were installed in his skull and jaw to stabilize the fractures.
       As defendant walked away from Renault, he passed by Seems‟s cell. Seems
saw blood on defendant, and a bloody cloth hanging out of his pants. Deputies

                                          13
found blood on his hands, forearms, and shoulder. Concealed in his clothing were
a two-foot-long strip of bedsheet stained with blood and a razor wrapped with
twine. A piece of torn towel was tucked into the front of his underwear. Blood
was spattered on his clothes and shoes. In defendant‟s cell, deputies found another
newspaper baton and a length of string with padded loops on each end, which
would have protected the fingers if the string was used as a garrote. A paper bag
bearing defendant‟s name was found in the shower. It contained clothing,
toiletries, and two lengths of rope made from sheets, one 12 feet long and the other
nearly 50 feet long.
              2. Defense
       Defendant presented extensive evidence of an abusive childhood. He was
the third of six children. They lived in a filthy home where they were neglected
and beaten. Child Protective Services (CPS) was notified, but took no action until
defendant‟s father told a psychologist that he had been sodomizing defendant and
his brother Timothy for years. Defendant was victimized from the age of two and
a half until he was five. His father pleaded guilty to several counts of sodomy and
served time in prison.
       Defendant was five years old when the children were removed from the
household. While some of the children were eventually returned, defendant and
Timothy were not. Defendant was placed with 13 different caretakers from 1983
to 1990. The county‟s CPS unit was underfunded. Mental health services were
limited; social workers received no training on the effects of child sexual abuse. A
supervisor who reviewed defendant‟s file testified that his was the worst situation
the department had addressed. The damage done to defendant as a child was as
severe as any the supervisor had encountered.
       Numerous witnesses chronicled defendant‟s increasingly difficult
progression through foster homes, group homes, and eventually the California

                                         14
Youth Authority (CYA). In 1985, after two years with a foster parent who
considered herself only a temporary caretaker, defendant was placed with a foster
mother known for her work with boys from difficult backgrounds. He developed a
close relationship with her, but she decided to go to graduate school. In 1987 her
foster home was converted to a group home, which was run by her son Ken Sloan.
       Defendant also became close to Sloan, who referred to him as “son” and
assured defendant he would always be there. However, Sloan became distant as
time passed. When the principal of defendant‟s elementary school asked Sloan
about the relationship, he described defendant as “one of the kids at the home.”
Reminded of his earlier assurances to the child, Sloan replied, “things change.”
Defendant became angry, hostile, and aggressive. He reported that Sloan hit him
with a two-by-four. Another resident testified that Sloan regularly imposed harsh
physical punishments. Defendant ran away several times. Sloan was investigated
and ultimately barred from employment in any State Department of Social Services
facility. Defendant told an investigator that Sloan was as close as he had gotten to
a father figure, and that he repeatedly asked Sloan to adopt him.
       Defendant was transferred from Sloan‟s home in 1989. The new foster
mother described him as “a very angry little boy.” After two months the placement
was terminated because defendant threatened the foster mother and another child.
After one day in another foster home, defendant was moved to a new placement,
where his brother Timothy joined him. He was removed from that home after
three months because he was hitting his brother. In the next group home,
defendant threatened a staff member with a broken bottle and spoke of suicide,
leading to another transfer. In March 1990 he spent two weeks in a foster home,
but was removed when he threatened to burn the house down. His subsequent
placement was the one in which he was suspected of forcing one boy to orally
copulate another, and from which he was later expelled when he kicked the victim.

                                         15
       After the kicking incident, defendant‟s social worker recommended that he
be transferred to the jurisdiction of the juvenile probation department. A
misdemeanor battery charge was sustained in juvenile court. A supervising
probation officer testified that he had gotten to know defendant over the course of
several periods of custody from 1990 through 1994. He liked defendant, and had
no problems with him. He and his wife had discussed adopting him. The wife,
who was a counselor at juvenile hall, testified that it was a difficult decision. She
thought defendant would benefit from a family situation, but they decided against
adoption. They had two teenage daughters, and adoption would have required
them to leave their current employment.
       In early 1991, defendant was living in a group home where he became
acquainted with the bookkeeper, who let him do homework in her office. She
liked him, found him very bright, and sometimes took him home with her on
weekends. He got along well with her children. She considered bringing him into
her home permanently. However, her fiancé objected, she became pregnant, and
ultimately decided she could not take defendant in. She explained the situation to
him in a long conversation, and told him they would stay in touch. After she left
the group home, defendant wrote letters and telephoned, begging her to let him
live with her. It took him a year to accept her decision. Ultimately she cut off
contact, feeling it was not good for him to hold on to a dream that would not be
fulfilled.
       Defendant spent the latter part of 1991 at a residential treatment center. His
therapist testified that he was disruptive and angry, distrusting any adult. She
considered him to be severely damaged emotionally. The placement ended when
defendant assaulted staff members.
       Some months later, defendant was placed in another residential facility.
The program director testified that he “acted out” from the beginning. He was

                                          16
prone to fits of rage, would bang his head on the wall, and was resistant to both
group and individual counseling. He trusted no one, feared adults, and had no
serious emotional attachments. One counselor, however, testified that he got along
well with defendant, and thought they were making progress until defendant
injured himself playing baseball, which “interfered with his program.” Shortly
after the injury, defendant was expelled. He and another resident had violated the
program‟s rules by leaving the facility, taking a staff member‟s rifle from the cab
of a pickup truck, and using it to shoot at squirrels and other objects in a field.
       In 1994, defendant lived in a group home where, the operator testified, he
did well. However, on a home visit defendant was involved in an incident that
resulted in a CYA commitment. A juvenile justice expert testified about
defendant‟s years under CYA jurisdiction, based on a review of the agency‟s
records. From February 1995 until his discharge in November 1997, defendant
was consistently unable to maintain relationships with peers or staff. He was
rebellious and a constant management problem, receiving increasingly restrictive
placements. By the time he was paroled, he was in the highest security CYA
facility. However, he did well in school, earning his high school degree.
       Defendant testified at the penalty phase. He remembered only one incident
of sodomy by his father. His father said it was punishment for being bad. He and
his brother had cried beforehand, because they knew what was going to happen.
He had little memory of his mother. Defendant gave accounts of his various foster
care placements. He remembered Ken Sloan promising to adopt him, and being
impatient for that to happen. However, Sloan changed, becoming prone to fits of
anger and imposing harsh punishments. Defendant‟s social worker did not believe
him when he reported the abuse. Eventually, defendant began running away.
       At his next placement, defendant said he was unable to handle the freedom
allowed by the foster mother. He acknowledged that his behavior was

                                          17
noncompliant, but did not understand why. Defendant attributed the group home
kicking incident to a therapy session where the victim was instructed to
intentionally anger defendant, which he did by bringing up the history of
defendant‟s abuse by his father. Defendant denied that the forced oral copulation
occurred. After the age of 12 or 13, he had many problems with lack of self-
control. Sometimes he would regret his actions, and sometimes he felt they were
justified.
       Defendant said he was placed with his father in 1994 at his own request.
The placement was revoked when his father complained to the probation officer
about defendant‟s disobedience. The incident that led to his CYA commitment
occurred when he and his cousin were involved in a high-speed car chase. His
cousin had been driving. Defendant did not like being with gang members in the
CYA. He preferred school and being kept in isolation, where he would read.
       Defendant tried unsuccessfully to find work when he was paroled in
November 1997. He did not have much of a relationship with his wife. They had
married at her insistence, to legitimize their daughter. Regarding the incident with
the prostitute, he claimed he had procured the gun for his companion, Murchinson,
and it discharged accidentally during the attempted robbery.
       Defendant denied that he planned or discussed killing Lora Sinner. He only
decided to kill her after the assault, because he thought she was dying. He said
Sinner was not tortured. He admitted cutting her wrist, but not pouring alcohol on
the wounds. Though he felt he deserved to be imprisoned for his role in the
murder, he conceded that he continuously made plans to escape. However,
defendant maintained that he never meant to injure a guard. The plan for the final
escape attempt had been to tackle Renault, restrain him in a cell, and use his key to
get to an exterior window. He did not know Williams would attack Renault with
the grate, which was supposed to be used to break the window. Defendant had

                                         18
grabbed Renault, but walked away when he realized what Williams was doing. He
regretted choosing the “unstable” Williams as a coconspirator.
       Several mental health experts testified for the defense. Dr. Steven
Blankman was the psychologist who reported the molestation by defendant‟s
father. He assessed defendant in 1983 after his removal from the family home, and
provided therapy for about a year. Defendant was uncooperative and oppositional.
He displayed mild developmental problems with symptoms of insecurity, isolation,
and impulsivity. He had experienced extreme psychosocial stress. By the time
Blankman moved his practice, there had been little improvement. Defendant‟s
behavior in temporary foster placement was disobedient, destructive, and
aggressive. Blankman recommended continuing therapy and a permanent foster
placement.
       Dr. Myla Young, a clinical neuropsychologist specializing in inmate mental
health, gave defendant a series of tests and reviewed his placement history. Young
found defendant‟s intelligence to be “high average,” but his performance on all
measures of attention and concentration was significantly impaired. These results
were consistent with his test scores in childhood. Defendant‟s performance on
memory and learning tests was also poor. It would be reasonable to conclude that
he suffered from brain damage. He exhibited a serious depressive disorder,
grossly distorted perceptions of reality, and illogical thinking. He was emotionally
dependent on others but his anger interfered with his ability to satisfy his
emotional needs. Young found that defendant suffered from psychosis and
posttraumatic stress.
       Psychiatrist George Woods interviewed defendant three times for a total of
six hours, and reviewed defendant‟s records. Woods also concluded that
defendant suffered from posttraumatic stress disorder. His early childhood history
had impaired his ability to self-regulate. Without appropriate behavioral control

                                          19
and psychological treatment, his aggressive behavior had continued. He was
traumatized again when his foster placements failed to provide stable family
connections. His emotional responses tended to fluctuate between numbness and
explosiveness. The symptoms of defendant‟s mental disorder were present at the
time of the murder, but Woods said this did not mean defendant was not legally
responsible for his actions.
               3. Rebuttal
       A social worker testified about the services defendant‟s family received in
1980. Based on her own observations at the time, she had concluded there was
only general neglect in the household. More was required to merit court
involvement.
       A probation officer testified about numerous attempts to provide defendant
with an appropriate setting. Defendant‟s juvenile placement officer in 1994 also
spoke to the difficulties of securing a proper placement. Ken Sloan testified,
admitting he had called defendant “son” and considered adopting him, but denying
he promised to do so. Defendant had lived with Sloan from about the age of seven
until he was twelve. His behavior deteriorated as he became older. Several CYA
employees testified about defendant‟s conduct.
       The prosecution called CYA psychologist Dr. Derek Washington, who had
interviewed defendant in 1996 for an annual review. He had been surprised at
defendant‟s hardened attitudes toward authority figures and rules, which were
more typical of wards from metropolitan areas. Defendant was angry and
embittered, but thought clearly. Washington saw no symptoms of organic brain
disease, and concluded that defendant had an antisocial personality disorder.
Psychiatrist John Shale reviewed defendant‟s records and the reports of the
defense experts. He did not believe defendant suffered from depression or organic



                                         20
brain disorder. In his opinion, defendant had a severely antisocial personality
rather than posttraumatic stress disorder.
              4. Surrebuttal
       Julie Kriegler, a psychologist who treated children with posttraumatic stress
disorder, reviewed defendant‟s records and the other experts‟ reports. She
disputed Shale‟s findings, and agreed with the diagnoses of posttraumatic stress
disorder.
                                 II. DISCUSSION
       A. Pretrial Issues
              1. Motion for Change of Venue
                       a. Background
       In October 2001, defendant moved to change venue from Shasta County.
Defense expert Stephen Schoenthaler was a professor of criminal justice and a
consultant on venue issues. Schoenthaler reviewed local newspaper articles that
appeared after defendant‟s arrest in April 1998. He was particularly concerned
about the report of defendant‟s confession. Confessions are strongly linked with
prejudgment of both guilt and penalty. Schoenthaler also highlighted defendant‟s
admission that he was using drugs and alcohol at the time of the murder, the
newspaper‟s discussion of his criminal history, and stories portraying the victim in
a sympathetic light.
       Subsequent articles had addressed a variety of topics, including the
prosecutor‟s decision to seek the death penalty, defendant‟s housing in
administrative lockdown, Amy S.‟s juvenile proceedings, and the following
details. A psychologist in the juvenile case described defendant as a “cult leader.”
Though married, he had seduced the fourteen year old shortly after her release
from a psychiatric hospital and recruited her into his “Charles Manson-like
lifestyle.” The juvenile court judge described defendant‟s manipulation and

                                         21
seduction of Amy, and called him the most brutal participant in the killing. Amy‟s
statement to the police referred to Sinner‟s “torture.” Defendant threatened to kill
Amy if she did not keep quiet. Defendant lied to police when he was arrested in a
stolen car. The prosecutor in Amy‟s case said the murder had been planned for
weeks, and was motivated by fear that Sinner would tell the authorities about the
group‟s crimes. Amy was found guilty in the “torture death.” The prosecutor in
her case agreed with Sinner‟s father that the other participants should receive the
death penalty. Lori Smith pleaded guilty to the “sadistic killing.” Eric Rubio also
pleaded guilty. Defendant threatened Lori because she agreed to testify against
him.
       The court authorized a community survey. Schoenthaler conducted
telephone interviews with 131 Shasta County residents who qualified for jury
service. Forty-nine percent of the respondents had concluded defendant was
guilty. Fifty-two percent thought he deserved the death penalty if convicted.
Fifty-six percent had prejudged either guilt or penalty. Schoenthaler believed there
was “far more” than a reasonable likelihood that defendant would not receive a fair
trial in Shasta County. The court was not persuaded, but acknowledged that a fair
trial might prove to be impossible. It deferred ruling on the venue motion until
after prospective jurors were questioned.
       Voir dire began in May 2002. The court asked if prospective jurors had
heard about certain aspects of the case.4 If they remembered anything, the court


4      The court inquired about the following subjects: Statements made by
defendant to the police or the newspaper; one of the participants being a juvenile;
charges found true in juvenile court; defendant‟s relationship with a 14 year old;
statements by public officials about his culpability or the appropriate punishment;
defendant‟s past behavior; the circumstances of the victim‟s life; any details
involving a chili can, a dent puller, razor blades, washing in a creek, or pouring
                                                          (footnote continued on next page)


                                         22
asked whether they had formed any feelings or opinions about defendant‟s guilt or
the appropriate penalty. It probed whether they could set aside the impact of
media reports and decide the case based solely on the evidence presented at trial.
On June 22, 2002, defendant and Williams made the escape attempt in which
Deputy Renault was assaulted and severely wounded. The next court day was June
25, 2002. Defense counsel were particularly concerned with two aspects of the
latest publicity: Renault‟s status as a correctional officer, and defendant‟s
association with Williams, who was notorious for having set fire to a synagogue in
Sacramento and allegedly murdering a local gay couple.
        The court agreed it was necessary to reopen the voir dire of the assembled
juror pool to explore the effect of media accounts of the escape attempt. However,
it refused to “ask them specifically how would you feel about this kind of evidence
or that kind of evidence.” It invited counsel to submit questions. Going forward
with the voir dire of new candidates, it asked if they had seen or heard any media
reports about defendant since filling out the questionnaire. If they knew about the
escape attempt, it asked whether they would be able to set aside the information
during deliberations. In some instances, the court inquired whether news reports
had caused any feelings about defendant‟s guilt, and whether the prospective jurors
would be able to set aside those feelings. The court barred counsel from asking
about the weight they would give to evidence of the escape attempt.
        On June 26, 2002, defense counsel submitted a list of questions for the
reopened voir dire. The court said its questioning would depend on the



(footnote continued from previous page)

alcohol; the names Eric Rubio, Amy S., and Lori Smith; and admissions of guilt by
two other charged persons.



                                          23
prospective jurors‟ exposure to media reports. It rejected a proposed question
asking how they would be affected by the fact that a correctional officer was the
victim, because “that would be asking them to prejudge evidence.” Defense
counsel objected to this limitation, arguing that Deputy Renault‟s status as a
correctional officer was “relevant to bias and prejudice.” Counsel compared the
circumstance to a case in which a child was a murder victim. The court recognized
that evidence of the assault would be admissible in the penalty phase, but
maintained that questions on the subject would lead to prejudgment. It requested
further briefing on how the pending motion for a change of venue was affected by
the incident.
       Over the following two days, the court recalled the 73 prospective jurors
who had been questioned before the escape attempt. It advised them collectively
about media reports in general, warning that they were incomplete and often
inaccurate. It noted that if evidence of reported events is introduced at trial the
evidence, but not the reports, can be considered for the purposes allowed by law.
The court then questioned the prospective jurors individually about their media
exposure. If they were aware of the escape attempt, it sought their assurance that
they would be able to set the reports aside in determining both guilt and penalty.
The court continued to resist the defense‟s attempts to ask questions about the
impact of the victim‟s status as a correctional officer. It did ask one prospective
juror whether her father‟s employment as a jail deputy would have any effect on
her evaluation of the case.
       After completing the reopened voir dire, the court resumed questioning new
prospective jurors, again asking specifically about their awareness of murder
details and generally about the recent escape attempt. After ruling on challenges
for cause, the court heard argument on the venue motion. The next day it denied
the motion in a written ruling. Defendant sought a writ of mandate from the Court

                                          24
of Appeal, arguing in part that even if prospective jurors were able to set aside the
media reports of the escape attempt, there had been no voir dire exploring “the
biases that unquestionably arise when there is an assault on a correctional officer,
an escape attempt, or an attempted murder of a correctional officer.” The writ was
denied.
       Defense counsel then moved unsuccessfully to disqualify the entire jury
panel or to reopen voir dire, arguing that the court‟s questioning had been
inadequate.
                      b. Analysis
       Defendant argues first that the court erred by failing to grant a change of
venue at the outset based on the Schoenthaler survey. However, “[t]his court has
long held „that it is no error for the trial court to postpone the consideration of an
application for a change of venue until an attempt is made to impanel the
jury . . . .‟ ” (People v. Bolin (1998) 18 Cal.4th 297, 312, quoting People v. Staples
(1906) 149 Cal. 405, 412; see People v. Wallace (1936) 6 Cal.2d 759, 763.) Here,
the court performed a preliminary review but deferred a final ruling until after it
heard challenges for cause. We review the court‟s final ruling.5
       A motion for change of venue must be granted when “there is a reasonable
likelihood that a fair and impartial trial cannot be had in the county.” (§ 1033,


5      Defendant relies on People v. Beames (2007) 40 Cal.4th 907. There, we
said, “we do not suggest that trial courts may deny motions to change venue solely
on the theory that jury voir dire is a better method of assessing the need to change
venue.” (Id. at p. 922.) However, here the court did not deny defendant‟s motion.
It merely followed the established practice of deferring its ruling. Moreover, the
comments in Beames on which defendant relies were dicta. In that case, Beames
did not seek a change of venue, but only a continuance. (Ibid.) We did not discuss
the long line of authority noted above, which approves the practice of postponing a
ruling on a motion to change venue until an attempt is made to impanel a jury.



                                          25
subd. (a); see People v. Famalaro (2011) 52 Cal.4th 1, 21.) “The phrase
„reasonable likelihood‟ in this context „means something less than “more probable
than not,” ‟ and „something more than merely “possible. ” ‟ [Citation.]” (People
v. Proctor (1992) 4 Cal.4th 499, 523 (Proctor).) The relevant factors are settled:
the nature and gravity of the offense, the nature and extent of the media coverage,
the size of the community, and the community status of the defendant and the
victim. On appeal, the defense bears the burden of showing both error and
prejudice. It must establish a reasonable likelihood both that a fair trial could not
be had at the time of the motion, and that the defendant did not actually receive a
fair trial. We accept the trial court‟s factual findings if supported by substantial
evidence, but independently review the court‟s determination as to the likelihood
of a fair trial. (Famalaro, at p. 21.)
       Here, defendant does not dispute the court‟s finding that his community
status and that of the victim did not tend to support a change of venue. He argues,
however, that the gravity of the offense, the size of the community, and the
extensive media coverage weighed heavily in favor of moving the trial.
       As we have noted on other occasions, “every capital case presents a serious
charge. This factor adds weight to a motion for change of venue, but is not
dispositive. [Citations.]” (Proctor, supra, 4 Cal.4th at p. 524; see, e.g., People v.
Zambrano (2007) 41 Cal.4th 1082, 1125.) The court in this case reasonably
concluded that the gravity of the offense slightly favored granting defendant‟s
motion, but that the crime was not particularly aggravated in comparison with
other capital murders. There were certainly gruesome details, but nothing
approaching the sensational overtones of other cases in which we have upheld the
denial of venue motions. (E.g., Zambrano, at pp. 1094-1097, 1125; People v.
Fauber (1992) 2 Cal.4th 792, 818.) Nor were the circumstances of the crime apt to



                                          26
be particularly prejudicial in Shasta County, as opposed to an alternate venue. (Cf.
People v. Davis (2009) 46 Cal.4th 539, 578.)
       The population of Shasta County, which the court placed at about 168,000,
was another factor weighing slightly in favor of defendant‟s motion.6 In Proctor,
we said that Shasta County‟s small population, approximately 122,100 at the time,
tended to favor a venue change, but was not determinative. (Proctor, supra, 4
Cal.4th at pp. 525-526.) So too here. A change of venue is not required for every
capital case arising in a sparsely populated county. (Id. at p. 526.)
       The primary factor relied on by the defense below was the nature and extent
of media coverage, both of the murder and of the escape attempt. However, as to
the murder reports, the voir dire record supports the court‟s findings that “the
prospective jurors, in general, had very little knowledge of specific facts of the
crimes charged, very few opinions that the defendant is guilty, and very good
compliance with the [court‟s] orders not to read, listen to, view, or talk about the
charges in this case or anything connected with this case.” The court noted that
media coverage had been heavy when the crime was discovered in April 1998,
subsided until September 1998 when Amy S.‟s jurisdictional hearing was held, and
heightened again from April through July of the following year, with Amy‟s
dispositional proceeding and the guilty pleas of Lori Smith and Eric Rubio.
Reports then “all but ceased in June of 2000,” with little media attention as
defendant‟s trial approached.7



6       Defense expert Schoenthaler derived a population of 163,000 from the
United States census in 2000.
7      The venue motion was filed in October 2001; jury selection began in May
2002; the escape attempt was on June 22, 2002; the venue motion was denied on
July 12, 2002; and trial began on July 16, 2002.



                                          27
       Defendant does not dispute the court‟s summary of the media coverage. He
argues, however, that five of the sitting jurors had been exposed to the facts of the
murder. The exposure was minor. None of these jurors had any clearly formed
memories, and several mentioned how long it had been since the news reports.
Prompted by the court for specific details, they remembered very few, and all said
they had formed no preconceptions as to defendant‟s guilt or the appropriate
punishment.8 Nothing in the voir dire suggests a reasonable likelihood that



8       Juror No. 1 “just barely” remembered the reports, “no details or no anything
else.” Asked about specific aspects, he recalled none and said he had no
preconceptions as to guilt or penalty.
        Juror No. 2 only “vaguely remember[ed]” reading something about the case,
“because it was so long ago.” She said “the name rang a bell,” but remembered
none of the details mentioned by the court. The information she did recall
produced no opinion on guilt or punishment.
        Juror No. 5 wrote on her questionnaire that she remembered hearing four
people were accused of killing a young girl; the victim was tortured; something
about her father; two other females were involved; and, with a question mark, the
victim had begged for mercy. On voir dire, she said she remembered these things
“vaguely,” noting “it was a long time ago.” Of the details mentioned by the court,
she remembered only something about the victim‟s father talking about his
daughter and their family situation, and the chili can. She said this information did
not create any feelings about defendant‟s guilt or punishment.
        Juror No. 9 remembered having “heard something,” but no details,
commenting, “My memory ain‟t very good that long back.” Questioned by the
court, she recalled generally that a juvenile was involved and that defendant may
have had a relationship with her. She remembered the chili can when the court
mentioned it, and that it was somehow involved in the killing. She had formed no
impression regarding guilt or penalty.
        Juror No. 10 remembered hearing about where the murder happened, how
the girl was beaten, and that “the kids were on drugs.” Prompted by the court, she
remembered “maybe” that a juvenile was involved, that the victim was about ready
to go back home, that a chili can and dent puller were used, and “maybe” that
alcohol was poured. She recognized the names of Eric Rubio, Amy S., and Lori
Smith, but would not have been able to name them herself. She had formed no
                                                           (footnote continued on next page)


                                         28
defendant would not, or did not, receive a fair trial due to media reports of the
facts of the crime.9
        Defendant raises different arguments as to the publicity arising from his
escape attempt. He makes no specific claim that reports of the escape prejudiced
him on the question of guilt, though he generally maintains that the publicity
denied him a fair trial. His primary argument is that he was deprived of a fair
penalty trial because of the jurors‟ recent exposure to the news of his attempted
escape from jail and the violent attack on Deputy Renault. Although defendant
notes that seven of the sitting jurors had some knowledge of these incidents, he
does not contend their voir dire responses demonstrate bias. Instead, he claims the
court‟s limited questioning and its restrictions on counsel‟s voir dire made it
impossible to determine whether these jurors were able to put aside their
impressions or opinions and render a verdict based solely on the evidence. (Irvin
v. Dowd (1961) 366 U.S. 717, 723; People v. Davis, supra, 46 Cal.4th at p. 575.)
In particular, he contends his counsel were prevented from exploring whether the




(footnote continued from previous page)

opinion about guilt or punishment, and said she would be able to base her decision
solely on the evidence presented in court.
9       Defendant faults the court for deeming it a “moderating factor” that the
local paper providing most of the coverage had a circulation of approximately
35,000, in a county with a population of around 168,000 and a jury pool of about
70,000. Schoenthaler testified that each newspaper is typically read by an average
of 2.2 adults. However, we are satisfied by the court‟s careful and thorough voir
dire that the jury pool was not tainted in any significant way by newspaper
accounts of the charged offenses. Schoenthaler testified that he gave no weight to
the six television broadcasts concerning the murder, because “I didn‟t think there
was a lot there, frankly.”



                                          29
escape attempt and the assault on the deputy would cause the jurors invariably to
vote for death. (See People v. Cash (2002) 28 Cal.4th 703, 720-721.)
       Because we reverse the penalty judgment on other grounds, we need not
consider the question of penalty phase prejudice.10 As for the effect of these
reports at the guilt phase, we are satisfied it was insignificant. Evidence of the
escape attempt was not admitted. No jurors were exposed to extensive reports of
the assault on Deputy Renault.11 Moreover, the court carefully ascertained

10      Nor do we consider defendant‟s claim that the court erroneously excused a
prospective juror based on death penalty views expressed in her questionnaire,
without any voir dire. (See People v. Russell (2010) 50 Cal.4th 1228, 1261;
People v. Stewart (2004) 33 Cal.4th 425, 445.)
11      Juror No. 1 saw a television broadcast and learned that an inmate had
tricked a sheriff‟s officer and beaten him up. He remembered the sheriff‟s office
saying it was working on improving security to prevent another such episode.
However, he did not know the extent of the injuries inflicted, or who was involved.
He said the incident would not affect him as a juror because he did not know if it
was related to the trial. Asked if it would make any difference if it were, he said
“no.”
        Juror No. 2 heard a radio report about two people in the jail, a sheriff‟s
officer, and an incident involving a shower. She did not remember any other
details, except for Williams‟s name. She was willing to set this information aside
for purposes of trial, and disregard it if it were not in evidence.
        Juror No. 4 heard a television broadcast about a deputy who had been
beaten up, and saw defendant‟s picture. He remembered hearing about a broken
jaw, and was aware that Williams was involved. He said he could set aside this
information for purposes of trial.
        Juror No. 5 saw a headline in the newspaper about a jail incident in which a
deputy was injured, and photos of defendant and Williams. She did not read the
story, mindful of the court‟s admonitions to avoid news coverage. She could set
aside the information for purposes of the trial.
        Juror No. 9 had heard a report on the morning news but “shut it off real
quick.” She heard defendant‟s name and that someone was beaten up, maybe a
correctional officer, and something about picking a jury. She assured the court she
could set aside this information and not consider it, and said it had not changed her
feelings about the case.
                                                           (footnote continued on next page)


                                          30
whether prospective jurors would be able to set aside whatever they had learned
about the escape attempt and base their deliberations solely on the evidence at trial.
“Although the jurors‟ assurances of impartiality are not dispositive [citations],
neither are we free to ignore them [citations]. We have in the past relied on jurors‟
assurances that they could be impartial. [Citations.] Absent a showing that the
pretrial publicity was so pervasive and damaging that we must presume prejudice
[citations], we do the same here.” (People v. Lewis (2008) 43 Cal.4th 415, 450.)
Defendant has not shown that pretrial publicity of the escape attempt was “so
pervasive and damaging” as to cast doubt on the jurors‟ assurances of impartiality.
(Ibid.; see Patton v. Yount (1984) 467 U.S. 1025, 1031.)
        Accordingly, defendant has failed to demonstrate a reasonable likelihood
that the denial of a change of venue resulted in an unfair guilt trial. Although the
gravity and nature of the murder, the relatively small size of Shasta County, and
the publicity surrounding the crime are all factors tending to support a change of



(footnote continued from previous page)

        Juror No. 10 saw headlines and defendant‟s picture, but closed the paper
and had not listened to the news since. She knew that a guard had been attacked at
the jail, and that Williams was involved. She was familiar with Williams. She
said the fact that defendant and Williams were connected in the attack did not
cause her any concern. She would be able to set aside what she saw in the
newspaper.
        Juror No. 12 heard a radio report about an incident at the jail. Her mother-
in-law mentioned that defendant had hurt a guard, but the juror told her she did not
want to hear anything else. She would be able to set aside this information.
        The other jurors had not heard any news of the escape attempt. Defendant‟s
claim that three sitting jurors received no admonition about the inaccuracy of
media reports during voir dire following the escape attempt is baseless. At the
record page he cites, the court told the assembled pool, “As you know, anything
reported in the media is only reported in part and often not accurately.”



                                          31
venue, the record reflects a jury pool not predisposed against defendant on the
question of guilt. Memories of media coverage of the murder had faded
considerably by the time of trial. Nothing indicates that the renewed publicity
occasioned by defendant‟s escape attempt resulted in any bias that might have
affected the verdict of guilt.
              2. Imposition of Restraints
       On May 8, 2002, during pretrial proceedings, defense counsel objected to
the placement of a stun device on defendant‟s arm, in addition to the leg brace the
court had approved for security purposes. The brace locked the leg in an extended
position, making it impossible to run. The court observed that the device on
defendant‟s arm was visible, and that any stun device or visible restraint would
require a showing of manifest need. The prosecutor referred to defendant‟s
lengthy record of violence and recalcitrance in jail, and his plans to escape. A
sergeant with the Shasta County Marshal‟s Office testified briefly about the
security risk posed by defendant. The court continued the hearing to resume jury
selection, and ordered the interim removal of the stun device.
       On May 10, the court held a lengthy hearing on the issue of restraints. The
sergeant returned to the stand. He recounted the incident in which defendant asked
his wife to take pictures of the jail‟s exterior and told her he was planning to
escape just before his trial began. The sergeant noted defendant‟s lengthy history
of misconduct in custody, which resulted in the court‟s ordering him to be held in
state prison for a period before trial. On the day he returned to county jail,
defendant had tried to fight with a deputy and was subdued with pepper spray.
Weapons had been discovered in his possession many times. In the courtroom he
had access to pens, which could be used as a weapon. The sergeant asked that
defendant be restrained with belly chains, leg irons, and handcuffs while in court.



                                          32
       A private investigator testified for the defense regarding his observations
and understanding of defendant‟s conduct in custody. The court ruled that, in light
of defendant‟s long history of nonconforming conduct in custody and his
demonstrated interest in escaping, he would be restrained with the leg brace and a
stun device on his leg. The court declined to impose any visible restraints.
       A month later, defendant launched the escape attempt in which Deputy
Renault was assaulted. Three days after that, the court held a hearing on the use of
additional restraints. The marshal‟s office again asked for belly chains and leg
irons. The court took testimony about the escape attempt and how the stun device
worked. Defense counsel argued that the stun device was sufficient, making
shackles unnecessary. In view of defendant‟s persistent misconduct in custody,
and especially his recent escape attempt, the court approved the use of belly chains
and leg irons. It ordered that paper be placed around the defense table so the jurors
could not see beneath it.
       On September 11, 2002, during the penalty phase, counsel reported that
defendant was developing painful scabs on his ankles. A medical examination
conducted the same day revealed minor lacerations over the Achilles tendon on
both ankles. They were healing without sign of infection, and calluses were
forming below them. The court reviewed the medical report the next day.
Defense counsel asked that the leg irons be removed during the lunch break. The
bailiff objected, noting that security in the court‟s holding facility was less
comprehensive than in the jail, and emphasizing defendant‟s history of
manufacturing weapons and attempting to escape. The request was denied.
       Defendant concedes that the showing of manifest need for shackling was
sufficient. (See People v. Howard (2010) 51 Cal.4th 15, 28.) Nevertheless, he
claims shackling that causes pain and scarring is excessive and violates due
process. Defendant cites no authority for the proposition that, even when the need

                                          33
for shackling is manifest, the restraints must be removed if they cause discomfort
or abrade the skin. In any event, the record here shows only minor injuries,
healing without complication. No due process violation can be conjured from this
scenario. Defendant claims the shackles were visible to the jury, but the record
does not support his assertion.12
       Defendant argues briefly that the use of a stun device was unwarranted,
citing People v. Mar (2002) 28 Cal.4th 1201. There we held that stun belts, like
shackles, may be justified by a showing of manifest need. (Id. at pp. 1219-1220;
see People v. Duran (1976) 16 Cal.3d 282, 290-293.) Here, defense counsel
conceded the stun device was appropriate, forfeiting the claim of error under Mar.
In any event, defendant does not challenge the court‟s finding of manifest need.
He fails to show any error in connection with the court‟s authorization of restraints
in the courtroom.




12     The only record reference defendant provides is to an advisement given by
the court during jury selection. The prosecutor requested the admonition, after
notifying the court that defense counsel had defendant stand up when the panel of
potential jurors came in, at which point his leg and waist chains were visible.
Defense counsel said he was “deliberately not requesting” an advisement. He
thought it unnecessary until a jury was actually impaneled, but did not object to the
prosecutor‟s request.
       The court told the panel that security measures in the courtroom had
nothing to do with the issues, and “so to the extent that you see certain security
measures taken, which can include the number of bailiffs in the courtroom, the
kinds of restraints that may or may not be placed on the defendant, those are issues
not for your consideration, and you may not consider them in any way in reaching
the determination that you‟re asked to make.” This general admonition, given by
the court before leg irons were employed and before the jury was selected, reflects
nothing about whether shackles were visible during trial.



                                         34
       B. Guilt Phase Issues
              1. Admission of Detective’s “Opinion” Testimony
       During the prosecution‟s case-in-chief, Detective Ronald Clemens testified
that defendant initially maintained his innocence but insisted he would take the
blame for the murder. The jury watched a videotape of the interview. Afterward,
the prosecutor noted that defendant seemed to be “breaking down and crying” at
several points, and asked Clemens what he had observed. Defense counsel
objected on grounds of irrelevance and undue prejudice. The court barred
Clemens from giving an opinion based on the videotape, but allowed him to report
his own observations during the interview. Clemens testified that when defendant
appeared to be showing emotion, he “would always cover his eyes with his hand.
And I didn‟t see any tears.” Clemens said defendant‟s eyes and face were not red
at these times.
       Defendant claims the admission of this testimony violated his federal rights
to due process and a fair trial. He first contends Clemens‟s observations were
irrelevant to any issue relating to guilt. To the contrary, defendant‟s demeanor
when discussing the crimes was relevant to help the jury determine his intent at the
time of the events, his state of mind thereafter, and the credibility of his account.
Defendant also argues that the testimony amounted to improper opinion evidence.
Not so.13 Clemens offered no opinion, but merely recounted his observations of
defendant‟s actions and appearance. “[A] witness may testify about objective
behavior and describe behavior as being consistent with a state of mind.” (People
v. Chatman, supra, 38 Cal.4th at p. 397.) Nor was this brief testimony prejudicial;

13     Defendant‟s claims about Clemens‟s “opinion testimony” are not only
meritless, but also forfeited by the failure to object on that ground below. (People
v. Chatman (2006) 38 Cal.4th 344, 397.)



                                          35
it merely supplemented what the jury had seen on the videotape. (See People v.
Doolin (2009) 45 Cal.4th 390, 438-439.) Defendant offers a cursory argument that
the prosecutor was also improperly permitted to ask Clemens, in connection with
the interviews of Eric Rubio and Lori Smith, “Haven‟t we asked all of our
witnesses to tell the truth?” However, Clemens expressed no opinion as to
whether Eric and Lori were truthful in their statements. Defendant‟s arguments
about opinion testimony are baseless.
              2. Admission of Statements by Defendant and Coperpetrators
       Defendant contends his federal due process rights were violated by the
admission of various statements made by himself and his coperpetrators.
                     a. Defendant’s Statements
       Defendant sought to have a number of his statements to Detective Clemens
redacted. The court agreed to some excisions, but defendant argues that certain
remaining statements were prejudicial evidence of his bad character. We disagree.
       In the first interview with Clemens, the following exchange occurred:
“[Defendant]: I can‟t kill somebody like that. [Clemens]: Like what?
[Defendant]: It‟s unmerciful. [Clemens]: You mean someone who can‟t protect
themselves? [Defendant]: A lot of people that deserve to die, people who hurt
other people.” Defense counsel objected that the first and third of these statements
were of little probative value, and were prejudicial because they indicated
defendant could kill under other circumstances and was passing judgment on who
should and should not die. The prosecutor contended the statements were
probative with respect to defendant‟s knowledge of right from wrong, and were
part of Clemens‟s efforts to catch him in a lie. The court overruled the objection.
       Later in the same interview, Clemens suggested defendant had killed Sinner
to keep her from reporting his criminal activity. Defendant said: “No I wouldn‟t
kill nobody over that. I have specific set down reasons why I would kill

                                         36
somebody, and I don‟t know why I killed her.” Counsel claimed this statement
was inflammatory, prejudicial, and not probative. The prosecutor argued that it
went to defendant‟s state of mind and motive. The court admitted the statement,
finding it probative in connection with defendant‟s comment that he did not know
why he killed Sinner.
       The next statement was made in defendant‟s second interview, before he
admitted his role in the killing. Counsel objected to the italicized portion of the
following comments: “I wouldn‟t never abuse her, I wouldn‟t hit her, I give her
whatever she asks for or wanted. Same as I do any of my friends. So she
obviously trusted me, now she said something that one night, you know that you
have to live with your whole life, it’s not killing somebody, I don’t have a problem
with that. That’s not what bothers me. The killing of her bothers me, killing
somebody else doesn‟t bother me. I don‟t glorify it, but I don‟t think it would
bother me as much as this thing did.” The court rejected counsel‟s claim that these
remarks were irrelevant and inflammatory, observing that defendant was
explaining his mental state, intent, or feelings about the killing.
       Later in the same interview, after he admitted killing Sinner, defendant said
he knew she was going to die after he examined her wounds. He added, “If I
would have had a gun I would have just killed her faster, but I had no way to kill
her faster. . . . more than willing to do my time, it‟s a damn shame.” Clemens
said, “Yes, it is.” Defendant commented, “First time in my life I haven‟t had a gun
when I needed one, when it really counted.” Counsel argued that the latter
statement was inflammatory, because it indicated the defendant had guns on other
occasions. The court disagreed, noting, “Sounds like a statement of intent.”
       Defendant contends all these statements were akin to evidence of prior bad
conduct, which is inadmissible to prove criminal disposition under Evidence Code
section 1101, subdivision (a). He acknowledges that such evidence may be

                                          37
admitted under subdivision (b) of section 1101 for certain purposes, such as to
prove intent, motive, or identity. However, he claims that here his statements were
admitted simply to prove his criminal disposition, and were so prejudicial they
should have been excluded under Evidence Code section 352.
         Defendant offers no authority supporting his analogy between his own
admissions and evidence of other misconduct under Evidence Code section 1101.
The prohibition on the use of “other crimes” evidence to prove character is not
implicated here. Defendant‟s statements reflected his after-the-fact feelings about
the charged killing itself. They were properly before the jury as statements of a
party under Evidence Code section 1220, and probative on the issues of motive,
intent, and consciousness of guilt. Nor were they unduly prejudicial. Any
inflammatory impact they might have had was dwarfed by the horrific nature of the
acts defendant admittedly performed. (Cf. People v. Valdez (2012) 55 Cal.4th 82,
134.) The statements were properly admitted.
                       b. Coperpetrators’ Statements
         Defendant challenges the admission of statements regarding “torture” made
by coperpetrators Eric Rubio and Lori Smith. His briefing on this issue lacks
sufficient record citations for a thorough review of his argument. “It is the duty of
counsel to refer us to the portion of the record supporting [defendant‟s]
contentions on appeal. [Citations.] . . . „It is neither practical nor appropriate for
us to comb the record on [defendant‟s] behalf.‟ ” (Schmidlin v. City of Palo Alto
(2007) 157 Cal.App.4th 728, 738.) We consider the record to which counsel does
refer.
         In his opening brief, defendant cites two pages of the transcript where the
court and counsel discuss defendant’s statements, only one of which includes a
reference to torture. These citations do not support his claim with respect to
statements by others. Defendant then cites a passage in the reporter‟s transcript

                                           38
where the court resolved counsel‟s objection to a number of references to “torture”
in a transcribed statement by Lori Smith. However, defendant fails to direct us to
the clerk‟s transcript where those references appear in Lori‟s statement, nor does
he discuss their context. Defendant also cites a reporter‟s transcript page on which
the court refused to redact references to torture by Eric Rubio and, apparently,
Amy S., again without citing to the transcribed statements themselves. Finally, the
opening brief refers to pages where the court agreed to strike a torture reference by
Eric.
        In his reply brief, defendant cites two pages of a statement by Lori Smith,
where the court struck two questions by the detective employing the word “torture”
but not Lori‟s answer, “That was before . . . my brother started torturing her.” The
reply brief also refers to a comment by Lori that defendant “started torturing her,
pretty much.” However, no reference is made to an objection to the latter
comment, and it appears none was made. Finally, the reply brief refers to a
statement by Eric that defendant was “basically torturing” Sinner, but the court
redacted this statement.
        Thus, the only relevant statement properly presented for the trial court‟s
consideration and documented in this court with record references is Lori‟s
comment, “That was before . . . my brother started torturing her.” In any event,
defendant‟s arguments lack merit. He claims the coperpetrators‟ use of the term
“torture,” or their answers to questions using that term, amounted to improper lay
opinion on the ultimate issue of whether defendant tortured Sinner, as alleged in
the torture special circumstance. This argument was raised below and rejected.
The court reasoned that while some questions about “torture” might seek to elicit
an opinion, witnesses may also use the word in a purely descriptive sense to
explain what they saw. In the latter situation, no improper opinion testimony is
offered.

                                          39
       The court‟s reasoning was sound. Lori‟s statement about events before “my
brother started torturing her” did not include an opinion about defendant‟s
commission of a special circumstance. It was simply part of her narrative. A
witness who uses the word “torture” in describing a sequence of events is no more
testifying “in the form of an opinion” (Evid. Code, § 800) than a witness
describing a “robbery.” (See People v. Coffman and Marlow (2004) 34 Cal.4th 1,
76-77.) It is conceivable that an investigator might solicit a witness‟s opinion on
whether a particular act amounted to “torture” for purposes of the special
circumstance. But here defendant identifies no questions or statements reflecting
any such improper lay opinion. The jury was instructed that the torture special
circumstance required a finding that defendant intended to and did “inflict extreme
cruel physical pain and suffering upon a living human being for the purpose of
revenge, extortion, persuasion or for any sadistic purpose.” Defendant fails to
show that any witness was invited to opine on whether this standard was met.
              3. Display of Enlarged Photographs
       On June 28, 2002, in advance of trial, the court and counsel reviewed a
series of diagrams and photographs the prosecutor proposed to project onto a
screen. The photographs were of the crime scene and the corpse. The projected
images were approximately 6 feet wide and 4 feet high. Defense counsel objected
that the prosecutor would have control over the size of the photographs when
showing them at trial. The court said, “If I authorize something it‟s only going to
be for whatever I see, and the size I say. And if there is a violation of that, then
obviously that could be grounds for a mistrial.” The court expressed concern
about the emotional impact very large pictures might have on the jury.
       The photographs were reviewed in sequence, but for unexplained reasons
those designated People‟s exhibits 17 and 26 had not been loaded onto the
prosecutor‟s compact disc. The prosecutor said he would give defense counsel a

                                          40
copy of the disc he would use at trial. The defense did not object to photographs
of the grave site before the corpse was fully unearthed, including two in which the
upper part of the corpse was exposed. It did object to enlarged images of the
corpse itself. The court sustained the objection, ruling that the magnified pictures
of the corpse were “unduly prejudicial in terms of their emotional impact on the
jurors.”
       At trial, on August 1, 2002, the prosecutor used the projector while
questioning a lieutenant about the crime scene investigation. Before showing any
images, the prosecutor noted, “My recollection is that the body in the grave was
not objected to.” The court remembered that the objection was to autopsy photos.
Defense counsel had no specific recollection but said, “I think it was not objected
to.” As the prosecutor went through the photographs with the lieutenant on the
stand, he showed exhibits 17 and 26, which portrayed the corpse exposed in the
grave from different angles, with a plastic bag wrapped around the head. No
objection was made, but after displaying these pictures the prosecutor suggested
taking a break. The court replied that it was 25 minutes until the next scheduled
break. The prosecutor requested a bench conference and explained, “There are
several jurors that are in a highly emotional state at this point, and I thought maybe
a moment so that they could gather themselves.” The court demurred, saying, “I
don‟t think so.”
       The prosecutor then moved for admission of the exhibits used with this
witness. The court asked if there were objections, and defense counsel objected to
“the last” exhibits. The court deferred ruling until the next break. At that time,
counsel objected to People‟s exhibits 10, 17, 26, and 27.14 Counsel did not

14     Exhibit 10 showed the grave partially excavated, with some upper portions
of the corpse exposed. During the pretrial review, defense counsel said he did not
                                                           (footnote continued on next page)


                                         41
complain about the size of the projected photographs, or their omission from
pretrial review. He argued that using this many photographs of the corpse was
cumulative and prejudicial, and claimed it was obvious from the jury‟s reaction
that the photographs were “having an impact.” The court overruled the objection.
Cocounsel then advised the court that defendant had told him some of the
photographs shown by the prosecutor had not been shown in the pretrial review.
Counsel asked only for an order that no further photographs be displayed unless
defense counsel were given an opportunity to review them and make sure they
were previously approved by the court. The prosecutor had no objection, and the
court so directed.
        The guilt phase concluded on August 28, 2002. On September 17, during
the penalty phase, the defense moved for a mistrial on that ground that it was
prosecutorial misconduct to display exhibits 17 and 26 without prior authorization.
The prosecutor pointed out that before showing the photographs, he had notified
the court and counsel of his recollection that no objection had been raised to
photographs of the body in the grave. Defense counsel responded that the
prosecutor had violated the court‟s directive regarding photographs that were not
preapproved. The court denied the motion. It found no indication that any
violation of its order was intentional, and no prosecutorial misconduct. The court
also determined that defendant had not been prejudiced. If the photographs had
been shown in advance, the court “certainly would have approved the use of at
least one. The other was simply cumulative.”



(footnote continued from previous page)

have a problem with this photograph. The other three photographs were not
included in the pretrial review.



                                          42
       On appeal, defendant renews his argument that the prosecutor violated the
court‟s order not to use unapproved photographs. Defendant forfeited this claim
by failing to promptly object at trial. To preserve a claim of prosecutorial
misconduct, a defendant must make a timely and specific objection and ask the
court for a curative instruction. (People v. Clark (2011) 52 Cal.4th 856, 960.)
Here, had a prompt objection been made, the photographs could have been
removed from view and the jurors admonished. Defendant insists that he did
object after all the photographs were shown, and that the court‟s overruling of the
objection showed it would have been futile to object immediately. (See Clark, at
p. 960.) However, when the court heard argument on the objection, counsel did
not specifically raise the preapproval point, merely noting belatedly that some
unspecified photographs had not been included in the pretrial review.
       It was only when seeking a mistrial, as the penalty phase was underway,
that the defense pointed out that exhibits 17 and 26 had not been approved by the
court. Defendant does not claim the court erred by failing to grant a mistrial. He
does, however, object to the court‟s finding that any violation of its order was
unintentional, noting that prosecutorial misconduct need not be intentional.
(People v. Hill (1998) 17 Cal.4th 800, 822-823.) The Attorney General responds
on the merits of the mistrial ruling, arguing there was no misconduct because the
exhibits in question were never ruled inadmissible, and there was no prejudice in
any event.
       Even if a claim associated with the projection of these photographs had
been preserved and properly presented here, there was no error. The prosecutor‟s
apparently inadvertent failure to secure pretrial review of these particular exhibits
did not infect the trial with such unfairness as to make defendant‟s conviction a
denial of due process. (People v. Clark, supra, 52 Cal.4th at p. 960 [federal
standard for prosecutorial misconduct].) It did not amount to a deceptive or

                                          43
reprehensible method of persuasion. (Ibid. [state law standard for prosecutorial
misconduct].) Nor were defendant‟s chances of receiving a fair trial irreparably
damaged. (People v. Ayala (2000) 23 Cal.4th 225, 282 [standard for grant of
mistrial].) Furthermore, given the overwhelming evidence of defendant‟s guilt,
including his confession and the detailed testimony of three coperpetrators, any
error would have been harmless under any standard of prejudice.
               4. Sufficiency of the Torture Evidence
        Defendant contends the evidence was insufficient to support the jury‟s
finding of torture. “The torture-murder special circumstance requires proof that a
defendant intentionally performed acts that were calculated to cause extreme
physical pain to the victim. [Citation.] Required is „an intent to cause cruel or
extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for
any other sadistic purpose.‟ [Citation.] We review the entire record, in the light
most favorable to the prosecution, to determine whether a rational trier of fact
could have found the essential elements of the torture-murder special-circumstance
allegation beyond a reasonable doubt. [Citations.]” (People v. Mungia (2008) 44
Cal.4th 1101, 1136 (Mungia).) “A premeditated intent to inflict prolonged pain is
not required.” (People v. Elliot (2005) 37 Cal.4th 453, 479.)
        The intent to torture “is a state of mind which, unless established by the
defendant‟s own statements (or by another witness‟s description of a defendant‟s
behavior in committing the offenses), must be proved by the circumstances
surrounding the commission of the offense [citations], which include the nature
and severity of the victim‟s wounds.” (People v. Crittenden (1994) 9 Cal.4th 83,
141.)
        Defendant claims the evidence showed no attempt on his part to increase
the victim‟s suffering or inflict pain in addition to the pain of death. He compares
this case to Mungia, where evidence of a savage beating did not suggest an attempt

                                          44
to torture the victim rather than simply to kill her. (Mungia, supra, 44 Cal.4th at p.
1137.) The comparison is inapt. Here, by his own admission, defendant told
Sinner she was going to kill herself, and forced her to cut her own wrist. He then
cut her wrist himself and poured whiskey over the wounds several times, despite
the obvious pain this caused. He also kicked Sinner and struck her with the metal
bar when she moved her hands away from the fire pit. His claim that he was only
trying to ease the way to an inevitable death is undermined by the sadism
demonstrated by his conduct. The evidence of torture was sufficient.
              5. Constitutionality of the Torture Special Circumstance
       Defendant claims the torture special circumstance fails to perform the
constitutionally required narrowing function meant to avoid arbitrary imposition of
the death penalty, and therefore violates the Eighth and Fourteenth Amendments.
We have rejected this argument on a number of occasions. (E.g., People v.
Whisenhunt (2008) 44 Cal.4th 174, 223; People v. Barnett (1998) 17 Cal.4th 1044,
1160-1163; People v. Raley (1992) 2 Cal.4th 870, 898-900 (Raley).) Defendant
argues that the phrase “for any sadistic purpose” in the instruction given to his jury
is vague and overbroad.15 He notes that in Raley, we quoted dictionary definitions
focusing on a sexual element in sadism. (Raley, at p. 900.) Defendant contends
there was no evidence of sexual motivation in this case, and therefore no sadism.
Insofar as defendant suggests the “sadistic purpose” element of the special
circumstance is too narrow to apply here, his claim of overbreadth is misplaced.
In any event, our discussion in Raley was not so limited.


15      The jury heard CALJIC No. 8.81.18, which included the following element:
“The defendant intended to inflict extreme cruel physical pain and suffering upon a
living human being for the purpose of revenge, extortion, persuasion or for any
sadistic purpose.”



                                         45
       Raley held there was no need to instruct the jury on the meaning of “sadistic
purpose” because the phrase is one “in common usage, having a relatively precise
meaning, that is, the infliction of pain on another person for the purpose of
experiencing pleasure.” (Raley, supra, 2 Cal.4th at p. 901.) Although sadism is
commonly associated with sexual pleasure, courts have recognized that it does not
necessarily have a sexual motivation. (People v. Aguilar (1997) 58 Cal.App.4th
1196, 1203; People v. Healy (1993) 14 Cal.App.4th 1137, 1142.) Defendant fails
to undermine our settled view on the constitutional sufficiency of the torture
special circumstance.
       C. Exclusion of Evidence About Prison Conditions at the Penalty Phase
              1. Background
       In his opening statement at the penalty phase, defense counsel told the jury
that James Park, a former associate warden at San Quentin State Prison, would
testify about the security conditions imposed on prisoners sentenced to life without
parole. Park would explain that such prisoners are watched at all times by an
armed guard from a secure location, and that no guard enters prisoner areas unless
accompanied by another guard. Prisoners who behave dangerously are placed in
solitary confinement and locked down for all but short periods of time. Counsel
also said Park would opine that defendant would adjust to prison life.
       The prosecutor filed a motion to exclude Park‟s testimony. He cited People
v. Quartermain (1997) 16 Cal.4th 600, 632, for the proposition that “evidence of
the conditions of confinement that a defendant will experience if sentenced to life
imprisonment without parole is irrelevant to the jury‟s penalty determination
because it does not relate to the defendant‟s character, culpability, or the
circumstances of the offense.”
       At the hearing on the motion, defense counsel argued that Park‟s evidence
was admissible for two separate purposes. First, counsel wanted to inform the jury

                                          46
about what he described as “for lack of a better term, the day in the life of a person
in prison.” The second and principal purpose for Park‟s testimony was to rebut the
prosecution‟s evidence of defendant‟s violent jail conduct and escape attempts,
which raised the issue of his future dangerousness in prison. Park would explain
that because state prison facilities were more secure than county jail, defendant
would not have the same opportunities for assault and escape. Counsel referred to
the holding of Skipper v. South Carolina (1986) 476 U.S. 1, 5 (Skipper):
“[E]vidence that the defendant would not pose a danger if spared (but
incarcerated) must be considered potentially mitigating” and thus “may not be
excluded from the sentencer‟s consideration.” Counsel also relied on People v.
Fudge (1994) 7 Cal.4th 1075, 1117 (Fudge), where this court found Skipper error
in the exclusion of expert testimony that the defendant was “a likely candidate to
lead a productive and nonviolent life in prison.”
       The prosecutor responded that he was precluded from arguing defendant‟s
future dangerousness unless defendant introduced evidence on the subject. The
court disagreed. It said, “You can certainly argue future dangerousness based
upon [defendant‟s] conduct,” and advised the prosecutor to “look at the cases.”
Defense counsel observed that even if the prosecutor did not explicitly argue future
dangerousness, the jury would draw the inference itself. He noted that in People v.
Lucero (1988) 44 Cal.3d 1006 (Lucero), this court held it was reversible error to
bar a defense expert from testifying that the defendant would be unlikely to
commit future crimes, and would adjust to the structured setting of prison life. (Id.
at pp. 1026-1028.)
       After reviewing the authorities submitted by counsel, the court prefaced its
ruling on the motion by quoting People v. Welch (1999) 20 Cal.4th 701, 761:
“ „[I]t is settled that argument concerning a defendant‟s future dangerousness as a
life prisoner is proper when it is based on evidence of past crimes admitted under

                                         47
one or more statutory factors in aggravation.‟ ” “Keeping that in mind,” the court
ruled that evidence of “what it‟s like to be in prison” was inadmissible, including
evidence of security measures in state prison. The court reasoned that this
evidence had no relevance to the issues of defendant‟s character, culpability, or the
circumstances of the offense, or to any statutory aggravating or mitigating
circumstance. Therefore, it “sustain[ed] the People‟s objection to the presentation
of that witness.”
       In his penalty phase closing argument, the prosecutor emphasized
defendant‟s persistent escape attempts and his threatening and violent behavior
toward correctional officers. He argued at length that the evidence showed
defendant had personally inflicted Deputy Renault‟s injuries. The prosecutor
mentioned the prospect of future dangerousness, asserting that “defendant has
shown himself to be violent and dangerous in every setting, and he will continue to
be so now, and into the future.” He claimed defendant‟s attacks on guards
reflected his antisocial personality disorder, and said, “He‟s going to get worse.
We‟ve seen that escalating. Escalating.”
       During deliberations, the jury sent out a note: “A question has arisen as to
what can be considered as an aggravating factor. We know that anything can be
considered as a mitigating factor, as specified by item K. Are we required,
however, to only consider items A & B & C as aggravating factors? In particular,
the possibility of future escapes and/or violent crimes is a factor weighing on
several jurors‟ minds. This is not a specified aggravating factor, but can we
consider it?”
       The court consulted with counsel. Defense counsel argued that the jury
should be told simply to confine its deliberations to factors (a), (b), and (c) of
section 190.3. He noted the defense had been barred from presenting Park‟s
testimony “on the issue of security and adjustment to prison.” Because defendant

                                          48
had not been allowed to show that prison would be a safe place from which he
could not escape, counsel said the jury should not consider “future escape
attempts.” The prosecutor disagreed, claiming the defense “could have [had]
testimony to that fact that they can‟t get out of jail.” He argued that the relevant
consideration was not escape, but “the threat of harm to jailers from escape
attempts.” The court agreed this threat was a proper inference to be drawn from
the aggravating evidence.
       Accordingly, the court told the jury that “yes,” its deliberations were limited
to factors (a), (b), and (c) of section 190.3. Answering the question about future
dangerousness, the court said: “The prediction of future dangerousness is not a
type of evidence jurors can consider in determining penalty. However, inferences
that a defendant will remain a danger to others in the future, or escape in the
future, which are drawn from evidence of defendant‟s past conduct may be
considered by a juror for whatever value the juror assigns to such inferences in
determining penalty.”
              2. Analysis
       Defendant contends the exclusion of Park‟s testimony violated his federal
constitutional rights to due process, a fair trial, and a reliable sentencing
determination. He claims he was entitled under Skipper and Fudge to present
testimony that he would adjust well as a life prisoner. Defendant further argues
that he was denied the right to rebut the prosecution‟s evidence of his conduct in
custody by presenting evidence of prison security measures. We agree that the
exclusion of Park‟s testimony was a violation of due process, because it deprived




                                           49
defendant of the opportunity to counter aggravating evidence and argument
suggesting that he would be a dangerous life prisoner.16
        As a general rule, evidence of prison conditions is not admissible at a
penalty trial. “[W]e have repeatedly held that evidence concerning conditions of
confinement for a person serving a sentence of life without possibility of parole is
not relevant to the penalty determination because it has no bearing on the
defendant‟s character, culpability, or the circumstances of the offense under either
the federal Constitution or section 190.3, factor (k). (People v. Jones (2003) 29
Cal.4th 1229, 1261, citing People v. Quartermain (1997) 16 Cal.4th 600, 632;


16      Defendant correctly contends he had the right to present Park‟s opinion that
he would adjust to life in prison. (Skipper, supra, 476 U.S. at p. 5; People v.
Ervine (2009) 47 Cal.4th 745, 795; Lucero, supra, 44 Cal.3d at pp. 1026-1029;
Fudge, supra, 7 Cal.4th at p. 1117.) However, counsel did not argue this ground at
the hearing on the motion to exclude Park‟s testimony. Although he briefly
mentioned in his opening statement that Park would give an opinion that defendant
“will adjust to prison life,” he made no mention of the subject at the hearing.
Counsel cited Skipper, Fudge, and Lucero, but did not say that Park should be
allowed to offer opinion testimony on defendant‟s ability to make a successful
transition to life in custody. Nor did the defense make an offer of proof to
establish the extent and basis of Park‟s testimony. (Compare Fudge, at pp. 1113-
1114.)
        Given our conclusion on the exclusion of Park‟s testimony about security
measures, we need not consider defendant‟s argument on the subject of adjustment
to prison life, even assuming that claim of error was preserved. (See Evid. Code,
§ 354, subd. (a) [error in exclusion of evidence is not reversible unless “[t]he
substance, purpose, and relevance of the excluded evidence was made known to
the court by the questions asked, an offer of proof, or by any other means”];
People v. Lightsey (2012) 54 Cal.4th 668, 727 [abuse of discretion in sustaining
objection could not be found when defendant made no offer of proof as to why
witness should have been permitted to answer]; People v. Ramos (1997) 15 Cal.4th
1133, 1178 [defendant bears burden of establishing foundation for mitigating
evidence]; People v. Whitt (1990) 51 Cal.3d 620, 647-649 [claim of Skipper error
was not preserved when defendant failed to establish pertinence of testimony].)



                                         50
People v. Daniels (1991) 52 Cal.3d 815, 876–878; People v. Thompson (1988) 45
Cal.3d 86, 138–139.)” (People v. Martinez (2010) 47 Cal.4th 911, 963; accord,
People v. Ervine, supra, 47 Cal.4th at pp. 794-795.) Thus, the court properly
rejected the defense‟s attempt to have Park provide a generic account of the daily
routines of life prisoners.
       However, the general rule does not dispose of defendant‟s claim that he was
entitled to present evidence of prison security measures to rebut the prosecution‟s
assertion that he would pose a danger in custody. Our cases holding that evidence
of prison conditions is inadmissible have not addressed this kind of rebuttal
evidence.17 The right to rebut aggravating evidence in capital cases is settled, and
of constitutional dimension. The United States Supreme Court has articulated the
governing principle in cases where the defendant‟s future dangerousness is a
factor. “[W]here the prosecution relies on a prediction of future dangerousness in
requesting the death penalty, elemental due process principles operate to require
admission of the defendant‟s relevant evidence in rebuttal.” (Simmons v. South
Carolina (1994) 512 U.S. 154, 164 (plur. opn. of Blackmun, J.) (Simmons).)
       Justice Blackmun‟s opinion in Simmons was signed by only three other
justices, but Justice O‟Connor‟s concurrence, joined by two others, established a

17     See People v. Martinez, supra, 47 Cal.4th at page 962 (prosecutor
disclaimed reliance on future dangerousness); People v. Ervine, supra, 47 Cal.4th
at pages 795-796 (prosecutor refrained from arguing inference of future
dangerousness); People v. Jones, supra, 29 Cal.4th at pages 1260-1261
(prosecutor‟s exploration of prison incidents occurred on cross-examination of
defense expert); People v. Quartermain, supra, 16 Cal.4th at page 634
(prosecutor‟s brief argument was confined to evidence in mitigation); People v.
Daniels, supra, 52 Cal.3d at page 877 (paraplegic defendant sought to show
conditions he would face in prison); People v. Thompson, supra, 45 Cal.3d at
pages 138-139 (evidence of prison conditions offered to dispel idea that life
sentence would be “lenient”).



                                         51
clear majority for the proposition that “ „[w]here the prosecution specifically relies
on a prediction of future dangerousness in asking for the death penalty, . . . the
elemental due process requirement that a defendant not be sentenced to death “on
the basis of information which he had no opportunity to deny or explain” [requires
that the defendant be afforded an opportunity to introduce evidence on this
point].‟ ” (Simmons, supra, 512 U.S. at p. 175 (conc. opn. of O‟Connor, J.),
original brackets, quoting Skipper, supra, 476 U.S. at p. 5, fn. 1; see Gardner v.
Florida (1977) 430 U.S. 349, 362. See also Kelly v. South Carolina (2002) 534
U.S. 246, 248 [Simmons rule]; O’Dell v. Netherland (1997) 521 U.S. 151, 159
[same].) We have recognized that under Skipper and Gardner, “[w]hen a
defendant is precluded from introducing evidence rebutting the prosecution‟s
argument in support of the death penalty, fundamental notions of due process are
implicated.” (People v. Frye (1998) 18 Cal.4th 894, 1017.)
       Here, defendant sought to counter the potent evidence of his persistently
dangerous conduct in custody by informing the jury about security measures
imposed on life prisoners. The prosecutor succeeded in keeping that information
from the jury. As a result, the impact of the aggravating evidence was
significantly enhanced. Such an unfair advantage on the critical question of
penalty offends the fundamental principles of due process set out in Simmons and
Skipper. This conclusion does not mean that evidence of prison security measures
is relevant in every capital case. It remains the rule that “day in the life” evidence
is inadmissible. (People v. Martinez, supra, 47 Cal.4th at p. 962.) When,
however, the prosecution raises an inference of future dangerous conduct in prison
as part of its case in aggravation, the defendant is entitled to respond with evidence
that his chances to inflict harm in prison will be limited. The prosecution is of
course free to explore the extent of that limitation on cross-examination, and to
counter with evidence that life prisoners have opportunities for violence.

                                          52
       Our reasons for excluding evidence of prison conditions in earlier cases do
not apply to defense attempts to rebut a showing that reflects future dangerousness.
The primary rationale, and the one followed by the court below, has been that
prison conditions are irrelevant to any aspect of the defendant‟s character,
culpability, or the circumstances of the offense. (E.g., People v. Martinez, supra,
47 Cal.4th at p. 963; People v. Quartermain, supra, 16 Cal.4th at p. 632; People v.
Thompson, supra, 45 Cal.3d at p. 139.) That is why the defense may not introduce
such evidence as a factor in mitigation. The defense may, however, respond to
aggravating evidence suggesting the defendant will be dangerous in prison.
Ineligibility for parole is also unrelated to a defendant‟s character, culpability, and
criminal offense, but it is nevertheless “indisputably relevant” when the
prosecution raises the issue of the defendant‟s future dangerousness in the
community. (Simmons, supra, 512 U.S. at p. 163 (plur. opn. of Blackmun, J.); see
id. at pp. 176-177 (conc. opn. of O‟Connor, J.).) Similarly, security measures
aimed at restraining a defendant from acting on the violent impulses demonstrated
by the aggravating evidence, or preventing him from inflicting harm, are relevant
when the prosecution suggests that the defendant‟s violent conduct will continue in
custody.
       We have also noted that testimony about future conditions of confinement
involves speculation as to what future officials in another branch of government
will or will not do. This observation was first made in People v. Thompson, supra,
45 Cal.3d at page 139, where the defendant sought to provide a general picture of
prison life in order to persuade the jury that a life sentence is not lenient
punishment. (Id. at p. 138; see People v. Rundle (2008) 43 Cal.4th 76, 186-187.)
We have repeated Thompson‟s criticism of “ „speculation,‟ ” however, in cases
where the defense offered more narrowly focused testimony on prison security



                                           53
measures. (People v. Martinez, supra, 47 Cal.4th at p. 963; People v. Jones,
supra, 29 Cal.4th at p. 1261.)
       When the defense seeks to rebut an inference of future dangerousness in
custody, Thompson‟s reasoning is inapposite. The purpose of informing the jury
about security conditions in such a case is to prevent speculation by the jury about
the defendant‟s opportunities to inflict harm in the prison setting. (Cf. Simmons,
supra, 512 U.S. at pp. 165-166 (plur. opn. of Blackmun, J.).) Expert testimony on
prison security need not involve undue speculation about specific measures that
might or might not be imposed by penal authorities in the future. Testimony
explaining security policies followed in California prisons with respect to prisoners
sentenced to life without parole, from an expert familiar with the penal system, is
sufficiently reliable to be considered in connection with inferences of future
dangerousness drawn from a defendant‟s past violent conduct in custody.
       The Attorney General contends this case is controlled by People v.
Martinez, supra, 47 Cal.4th 911. There, however, the prosecutor offered no
evidence of future dangerousness. (Id. at p. 962.) Furthermore, the court did not
bar the defense expert from testifying about prison conditions. Rather, it limited
his testimony, ruling that detailed evidence of prison operations and exhibits
depicting prison facilities and safety measures was inadmissible, but allowing the
expert to give “ „general descriptions of prison life‟ as well as his opinions on
defendant‟s future dangerousness and whether prison life was the kind of
structured environment that defendant needed. . . . The court also made clear that
it would allow [the expert] to describe the level 4 [maximum security]
classification and its subdividing classifications.” (Ibid.) We rejected Martinez‟s
claim that the limitations imposed by the court were improper. (Id. at p. 963.)
Here, the court did not issue a narrow ruling like that in Martinez, which permitted
the expert to offer his opinions in some areas. The prosecutor sought to exclude

                                          54
Park‟s testimony in its entirety, and the court granted the motion without
qualification.
       Accordingly, defendant was deprived of his due process right to rebut the
prosecutor‟s evidence and argument suggesting that he would be a dangerous life
prisoner. “[O]ne of the hallmarks of due process in our adversary system is the
defendant‟s ability to meet the State‟s case against him.” (Simmons, supra, 512
U.S. at p. 175 (conc. opn. of O‟Connor, J.).) The error is reversible unless it is
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18,
24; People v. Frye, supra, 18 Cal.4th at p. 1017; Fudge, supra, 7 Cal.4th at p.
1117.) We conclude there is reasonable doubt as to whether the jury would have
returned a verdict of death had the defense been allowed to present Park‟s
testimony.
       The evidence of defendant‟s violence in jail and his persistence in making
escape attempts was dramatic and compelling. The jury‟s concern about his future
dangerousness was reflected in its note to the court asking whether his jail conduct
could be considered. Furthermore, defendant‟s showing in mitigation was
substantial. Numerous witnesses detailed his difficult life as a child, including
prolonged molestation at a very young age by his father. In his subsequent journey
through multiple placements in the social services system, defendant encountered
further physical abuse and repeated disappointment in his hopes of finding a stable
family environment. Medical experts testified about the effects of these
experiences on his development. In weighing the mitigating and aggravating
factors, some jurors may have felt that defendant had been damaged through no
fault of his own, but had become so dangerous even in penal custody that death
was the appropriate verdict. We express no view on the appropriate penalty, but
we must consider how a jury that heard the excluded evidence might have
responded differently. We cannot say there is no reasonable doubt that the

                                          55
outcome of the penalty trial would have been the same had Park been allowed to
testify.
           Having reached this conclusion, we need not address defendant‟s claim that
his counsel were ineffective for promising to present Park‟s testimony in the
opening statement before securing a ruling from the court on its admissibility. Nor
is it necessary to address the other penalty phase issues defendant raises.


                                   III. DISPOSITION
           We affirm the judgment of guilt, and reverse the judgment of death.
                                                    CORRIGAN, J.


WE CONCUR:

CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.




                                            56
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Smith
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S112442
Date Filed: April 27, 2015
__________________________________________________________________________________

Court: Superior
County: Shasta
Judge: James Ruggiero

__________________________________________________________________________________

Counsel:

Kathy Moreno, under appointment by the Supreme Court, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Eric L.
Christoffersen and Angelo S. Edralin, Deputy Attorneys General, for Plaintiff and Respondent.




                                                    1
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathy Moreno
P.O. Box 9006
Berkeley, CA 94709
(510) 649-8602

Angelo S. Edralin
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 445-9909




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