        IN THE SUPREME COURT OF
               CALIFORNIA

                   THE PEOPLE,
              Plaintiff and Respondent,
                          v.
 DANIEL TODD SILVERIA and JOHN RAYMOND TRAVIS,
             Defendants and Appellants.

                          S062417

             Santa Clara County Superior Court
                          155731



                       August 13, 2020

Justice Groban authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Kruger concurred.
               PEOPLE v. SILVERIA and TRAVIS
                             S062417


                Opinion of the Court by Groban, J.


      Defendants Daniel Todd Silveria and John Raymond
Travis were convicted by separate juries1 of the first degree
murder and second degree robbery of James Madden, and the
second degree burglary of a LeeWards crafts store. (Pen. Code,2
§ 187, subd. (a), former §§ 189, 211, 212.5, subd. (b), 459, 460.2.)
The juries also found true robbery-murder and burglary-murder
special-circumstance allegations and an allegation that
defendants personally used a knife in committing the murder.3
(Former §§ 190.2, subd. (a)(17), 12022, subd. (b).) Silveria was
also convicted of the second degree robberies of Ben Graber at
Gavilan Bottle Shop and Ramsis Youssef at Quik Stop Market,
and stipulated that on May 2, 1995, he had pled guilty to the



1
        Defendants were tried jointly before separate juries.
2
        All further undesignated statutory references are to this
code.
3
      Also as to Silveria, a lying-in-wait special-circumstance
allegation was found not true, and the jury deadlocked on the
allegation Silveria had used a stun gun and a torture-murder
special-circumstance allegation. As to Travis, a torture-murder
special-circumstance allegation was found not true, and the jury
deadlocked on the lying-in-wait special-circumstance allegation.
After the first penalty trial, the court granted the prosecutor’s
motion to strike the torture-murder special-circumstance
allegation as to Silveria and the lying-in-wait special-
circumstance allegation as to Travis.

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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


second degree burglary of Sportsmen’s Supply. (§§ 211, former
§§ 212.5, subd. (b), 459, 460, subd. 2.)
      Silveria and Travis also had separate penalty juries. Each
jury deadlocked, and the court declared mistrials. Defendants
were retried before a single penalty jury, the jury returned
death verdicts, and the trial court entered judgments of death.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a);
§ 1239, subd. (b).) For the reasons that follow, we affirm the
judgments.
                             I. FACTS
      On the night of January 28, 1991, Silveria, Travis,
Christopher Spencer, Matthew Jennings, and Troy Rackley, a
juvenile, robbed and killed James Madden while he was working
as the manager of a LeeWards crafts store in Santa Clara
County. The indictment charged all four adult perpetrators, but
the cases of Spencer and Jennings were severed.
     A. Guilt Phase
      During interviews with different law enforcement officers,
Silveria and Travis waived their Miranda rights, and ultimately
confessed their involvement in Madden’s murder, including the
circumstances that both men had stabbed Madden and Silveria
had used a stun gun on him. (Miranda v. Arizona (1966)
384 U.S. 436, 444–445.) Silveria also confessed his involvement
in several other crimes, including the burglary of a gun store in
which coperpetrator Jennings had obtained a stun gun, the Quik
Stop robbery, and the robbery of a liquor store on Blossom Hill
Road in which Silveria had used the stun gun. Each defendant’s
statement was played for his jury.




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                  Opinion of the Court by Groban, J.


         1. Prosecution Evidence
            a. Theft of stun gun and stun gun robberies
      On January 24, 1991, about 1:00 a.m., a PARALI/AZER
stun gun was taken during a burglary of a Sportsmen’s Supply
tackle and gun store located in an unincorporated area of Santa
Clara County. About an hour later, at 2:20 a.m., Silveria,
Rackley, and Jennings robbed Ramsis Youssef, a cashier at a
Quik Stop Market located in San Jose. Rackley used a stun gun
on Youssef during the robbery. A videotape of the crime was
played for the jury. About 10:00 p.m. that night, Silveria,
Rackley, and Jennings robbed Ben Graber, a temporary
assistant at the Gavilan Bottle Shop, which was located on
Blossom Hill Road in San Jose. A stun gun was used on Graber.
            b. Madden’s murder
      Silveria and Travis were hired to work for Madden at the
LeeWards crafts store on September 3, 1990. They failed to
appear for three consecutive scheduled shifts, and were
permitted to resign rather than be terminated on November 15,
1990.
      On the night of January 28, 1991, Silveria, Travis,
Spencer, Jennings, and Rackley drove to LeeWards to rob the
store. Madden’s truck was parked in the back lot and Spencer
slashed the tire in order to prevent Madden from leaving.
Silveria and Travis watched the front of the store until the last
customer and the cleaning crew had left and Madden had locked
the front doors. Silveria and Spencer then surprised Madden as
he left the store by the back door. Madden was led back inside
and ordered to turn off the store alarm. He was unsuccessful in
doing so, and the alarm was triggered at 10:53 p.m.



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                  Opinion of the Court by Groban, J.


       Silveria instructed Madden to open the safe and remove
the money. The money was placed into a duffel bag. Silveria
and Travis bound Madden’s hands and feet respectively
together with silver duct tape. At 11:02 p.m., a Honeywell
Protection Services operator dispatcher called Madden, and he
gave her the pass card number to clear the alarm. Madden’s
mouth was then taped. Silveria held the duffel bag and
repeatedly said, “Let’s go.” Travis said, “[N]o,” and told Spencer
to kill Madden. Spencer slit Madden’s throat with a knife, and
he and Travis repeatedly stabbed Madden. Silveria then
stabbed Madden once, and used the stun gun on him. The five
perpetrators fled to a Redwood City motel where they divided
the money from the robbery.
       About 8:00 a.m. the next morning, Madden’s body was
discovered in the store. Travis later told law enforcement
officers that all of the perpetrators knew when they went to
LeeWards they would have to kill Madden. The perpetrators
chose LeeWards because it excited everyone to kill Madden. If
one of the female supervisors had been present instead, Travis
would have simply tied her up because he “got along with all the
women over there.”
       Later that day Silveria purchased a Honda Civic and he
and Travis purchased a Datsun 280Z; both vehicle down
payments were in cash. On a Tuesday in January 1991, Silveria
showed his friend Gregg Orlando a wad of cash, and said, “We
killed somebody last night.” On the night of January 29, 1991,
Silveria and Travis were arrested in the Oakridge Mall parking
lot. A PARALI/AZER stun gun, silver duct tape, and $694 were
found in Silveria’s vehicle.
       The cause of Madden’s death was 32 stab wounds to his
neck, chest, and abdomen. Forensic pathologist Dr. Parviz

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                  Opinion of the Court by Groban, J.


Pakdaman, who performed Madden’s autopsy, opined Madden
was alive when some of the wounds to his neck and chest were
inflicted.   Dr. Robert Stratbucker, a medical doctor and
biomedical engineer, testified that a stun gun generally causes
“a very intense kind of . . . sharp pain.”
         2. Defense Evidence
      In Silveria’s statement to police, he told officers that he
had placed jeans, L.A. Gear shoes, and a T-shirt that he had
worn during Madden’s murder in an Oakridge Mall garbage can.
At trial, Silveria called only one witness, Elizabeth Skinner, a
Santa Clara County crime lab criminalist, apparently to
attempt to demonstrate that Silveria had a minimal role in the
murder. Skinner testified that she had received from the Santa
Clara Police Department a T-shirt, Levi’s, and a pair of L.A.
Gear shoes, that she was told were found in an Oakridge Mall
dumpster, to test for the presence of blood. No blood was
detected on the T-shirt or the shoes. A small spot on the Levi’s
tested presumptively positive for the presence of blood, but
Skinner could not ascertain whether the stain was human blood.
Skinner also tested shoes and jeans that she had been told had
been collected at some point from Travis. She found human
blood on the shoes and inside a front pocket of the jeans.
      Travis presented no defense evidence.
     B. Penalty Retrial
      Many of the individuals discussed in the testimony shared
the same surname, so for clarity, we use first names to identify
certain witnesses.
         1. Prosecution Evidence
    Much of the guilt phase evidence regarding Madden’s
murder, the Sportsmen’s Supply burglary, and the Graber and

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                 PEOPLE v. SILVERIA and TRAVIS
                 Opinion of the Court by Groban, J.


Youssef stun gun robberies was introduced at the 1997 penalty
retrial.   Evidence of Travis’s 1990 first degree burglary
conviction was also admitted. (Former §§ 459, 460, subd. 1.)
            a. Silveria’s former testimony
      Silveria’s statement to law enforcement was not admitted,
but portions of Silveria’s first penalty phase testimony were
read to the jury.
     Silveria had worked at LeeWards from early September
1990 to Thanksgiving of 1990, and was instrumental in Travis
being hired there. At times during this period, Silveria was
homeless and used marijuana and methamphetamine.
      Silveria described Madden as “just a really nice guy.”
Madden’s wife and young daughter occasionally visited him at
the store. Silveria was terminated by Madden because of his
work absences, but Madden allowed him to resign so that his
future employment would not be adversely affected. Silveria
then went to work at Toys “R” Us apparently for the Christmas
holiday season.
      On January 26, 1991, the Saturday before the capital
crime was committed, Travis was adamant that “Madden
[would] need[] to be killed because he could identify us.”
Silveria saw no need for anyone in the store to be harmed, and
was “taken aback,” and immediately protested. Silveria and
Travis debated the point. Silveria was feeling “horribly sick”
that night, and left the discussion to lie down. His illness was
not related to the discussion of killing Madden.
       On Sunday, January 27, while Silveria was still “very
sick,” the topic of killing Madden arose again. Spencer held a
knife and said he would be willing to stab Madden. Silveria did
not intend to kill Madden and did not believe his coperpetrators
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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


would actually do so because they were not generally violent.
Although Silveria initially suggested wearing disguises, the
perpetrators did not do so. Silveria was ultimately not
concerned if he was identified during the robbery because he
planned to immediately flee the area. On Sunday night,
Silveria, Travis, and the others drove to LeeWards to commit
the robbery, but the store had already closed.
      Silveria’s description of the murder was similar to his
statement to law enforcement introduced at the guilt phase. In
addition, Silveria testified that on the night of Monday, January
28, 1991, Silveria was armed with a stun gun, Travis a hammer,
Spencer a fillet knife, Rackley a hand device with leather spikes,
and Jennings a crowbar. At one point Silveria entered the store
to see who was working that night.
      When Madden left the store, and Silveria and the others
confronted him, Madden recognized Silveria, and appeared to
calm down, saying, “Oh Danny, oh, it’s you, Danny.” Silveria
told him to turn off the store alarm. Madden pleaded with
Silveria that he not be hurt, and Silveria said: “We are not here
to hurt you. We just want the money.” Silveria described
Madden turning off the alarm, obtaining the money from the
safe, being restrained in a chair by the perpetrators, speaking
with the alarm company, and the perpetrators taping Madden’s
mouth.
      Silveria fired the stun gun at Madden’s leg twice, once for
a long period of time in an effort to render him unconscious.
Madden made sounds like “somebody . . . trying to scream
through tape,” and his legs jerked. Silveria then picked up the
duffel bag and said several times, “Let’s go.” Travis told
Spencer, “Kill him.” Madden said, “No, no” through the tape.

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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


Spencer looked uncertain, and Travis repeated, “Kill him.”
Spencer repeatedly stabbed Madden in the chest, and then at
Travis’s direction, cut Madden’s throat. Silveria was numb with
disbelief and did nothing to stop the attack except perhaps to
once more say, “Let’s go.” Travis then stabbed Madden about
five times, and handed the knife to Silveria, saying, “[I]t’s your
turn.” At that point Madden was slumped over in the chair and
appeared to be unconscious. Silveria initially protested, but
then took the knife and stabbed Madden once, plunging the
knife in all the way up to its hilt. Travis then resumed stabbing
Madden. Silveria agreed with the prosecutor that Madden had
been “tortured,” but did not believe he had “tortured
Mr. Madden by legal definition.”
      After the attack ended, Madden fell over in the chair.
Silveria felt a slight pulse in Madden’s neck, and they left. As
they drove away, Silveria and others described the robbery as a
success. Silveria said saying this made him feel “like crap”
because he had just participated in killing someone. After
Silveria’s arrest, he assisted law enforcement in apprehending
Spencer and Jennings.
      Silveria did not believe causing Madden pain with the
stun gun was “right,” and felt “horrible” for doing it. He felt
“sick” about participating in Madden’s murder, and “horrible”
about the effect of the murder on Madden’s family. Silveria did
not feel that anything that had happened to him in his life was
an excuse for what he did on the night of Madden’s murder, but
rather that he “should be held accountable for what [he] did,”
and “deserve[d] whatever punishment [was] given to” him.




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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


             b. Other prosecution evidence
      Dr. Pakdaman testified that Madden had suffered
32 “slash-like superficial cuts” that were skin-deep and “stab-
like wounds” in his neck, chest, and abdomen. Six stab wounds
penetrated Madden’s heart. Other stab wounds penetrated his
lungs, fracturing two ribs, and his liver and trachea. He was
alive after his trachea was cut, although his breathing was
impaired. Dr. Stratbucker testified that marks made by the
stun gun on Madden’s thigh were inflicted while he was alive.
      California Men’s Colony Correctional Lieutenant Jackie
Graham testified that in September 1991, Charles “Tex”
Watson, a member of the “Charles Manson Family,” was a
prisoner at the colony. On about September 20, 1991, a letter
from Travis to Watson was intercepted.4
      The prosecution also introduced victim impact testimony.
Shirley “Sissy” Madden testified that she and Madden were
married in 1979. Madden was a kind and loving husband, and
made Sissy feel cherished and safe. Their daughter Julie was
born in 1984, and Madden was a wonderful father.
      Sissy testified regarding seeing Madden for the last time
several hours before his murder. On January 28, 1991, about
6:30 p.m., Sissy and Julie, then seven years old, made an
unplanned visit to Madden at LeeWards, but declined his dinner
invitation because Julie had school the next day.
      Susan Thuringer, Sissy’s coworker at the University of
California at Santa Cruz, testified Sissy arrived late to work the
following morning, distraught because Madden had not come
home and she did not know where he was. Later that morning

4
     The letter was further described by Travis in his penalty
phase retrial defense testimony. (See post, at pp. 29–30.)

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                  PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


Thuringer learned from police about Madden’s murder.
Thuringer told Sissy, and she and her coworkers restrained
Sissy as she screamed and cried. Police arrived, and Thuringer
and her supervisor, Kay House, and an officer accompanied
Sissy home. James Douglas Sykes II, Madden’s brother-in-law,
testified that later that day he and Sissy picked up Julie at
school. When they arrived home, Sissy took Julie upstairs to tell
her about Madden’s death. Sykes heard an “excruciating[ly]
painful waning scream” from Julie.
       Testimony regarding the effect of Madden’s death on Sissy
and Julie was also introduced. Sissy testified, “I loved my
husband so much and I feel so lonely and empty without
him. . . . I miss him terribly.” Sissy’s brother, Eric Lindstrand,
testified that Sissy was “devastated,” and “a good part of her life”
at the time of his testimony was “just a big, sad open wound.”
Julie was “a blessing” who kept Sissy “going.” Madden’s mother,
Joan Madden, said that since Madden’s death, Sissy had gained
at least 30 pounds, and suffered from depression and psoriasis
induced by stress.
       Sissy testified that Julie had slept with her every night for
the first year after Madden’s death, and had been in therapy for
nearly six years.        She suffered from panic attacks and
stomachaches so severe “she feels like she is going to die.” Eric
testified that Julie was so frightened by her father’s murder that
for a long time she would not let Sissy out of her sight even to
use a restroom, and her development regressed five or six years.
She had also struggled academically. Joan testified she once
took Julie shopping for a Mother’s Day gift, and Julie asked,
“You know, Grandma, what I really, really want?” Joan said,
“No,” and Julie said, “I wish[] you only died for one day.”



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                  PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


      Family members also described their own loss. Judith
Sykes, Madden’s older sister, testified that Madden had been
her only sibling. They were close, and she described Madden as
a strong, but kind and gentle person who had cared for his
family. When asked if the passage of time had lessened the
impact of Madden’s death, she said that because Madden had
been “murdered senselessly and brutally. . . . the closure is not
the same . . . [a]nd there’s something about it you . . . just can’t
get past. . . . [I]t’s not like losing someone from a heart attack.”
Their mother Joan often said that “the joy in her life [was] gone,”
and she was now overly protective of Judith.
      Eric described Madden as a close friend and “good man”
who had generously shared his time to help Eric and who had
enjoyed life. Eric said living without Madden has “been hell for
me,” and described it as “learning to live without a heart . . . .
[or] without your legs. You learn how to survive. If you’re lucky,
you learn how to try and not let your life be ruined.”
         2. Defense Evidence
             a. Silveria
                 (1) Background and character witnesses
      Silveria, who was born on December 22, 1969, was
21 years old at the time of the January 1991 crime. He
presented numerous witnesses who testified regarding his
childhood and his behavior in jail after commission of the capital
crime.
      Silveria had an older sister Lenae, an older brother S.S.,
and a younger brother Michael. Silveria’s father, Daniel
Silveria (Daniel), a long-haul trucker, was often away from
home. He brought gifts to Lenae when he returned and was
affectionate to her. By contrast, he showed no affection to

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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


Silveria, S.S., or their mother B.S., and was frequently
physically abusive to them. In April 1974, when Silveria was
four years old, Daniel left the family, and Silveria had little
contact with him until Silveria was about 19 years old.
      In February 1976, when Silveira was six years old, at
B.S.’s request he and S.S. were declared dependents of the court.
B.S. retained custody of Lenae and Michael. Lenae recalled that
after Silveria and S.S. were declared court dependents, B.S., an
alcoholic, began to drink excessively, staying out all night and
coming home drunk.
      Silveria lived in foster homes for nearly all of his
remaining childhood. Two foster families, the Garcias and the
Gambles, were nurturing and emotionally and financially
supportive. In two other families, the Heberts and the Georges,
however, Silveria was sexually abused and emotionally
neglected.
      Linda Cortez, a Santa Clara County Department of Social
Services social worker, supervised the Silveria family, including
Silveria, S.S., Lenae, and Michael from March 1976 until the
end of 1981.5 During this time Silveria was a sweet and likeable
child, who was eager to please.
      Silveria was first placed for about a year in the home of
Marcus and Lorain Garcia, where he was well-treated and
thrived. When Silveria was about seven years old, the Garcias
moved out of Santa Clara County, and he joined S.S. in the
Hebert foster family.




5
     Many of Cortez’s department of social services reports
could not be located at the time of her testimony and had
presumably been destroyed.

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                  Opinion of the Court by Groban, J.


      Mark Hebert, worked as a civilian for the Navy, and his
wife Evelyn Hebert was a nurse. Dean Hebert, who was about
three years older than Silveria, testified that his father
Mr. Hebert was an alcoholic, who when drunk became verbally
abusive. Mr. Hebert would not engage with Dean, his older
brother Mark, Silveria, or S.S., and would only speak to “put
somebody down or just to yell at somebody.” His mother, Mrs.
Hebert, inflicted physical punishment on Silveria.
      Dean frequently beat Silveria, once burned him with
matches, and once placed a pillow over Silveria’s face until he
could no longer breathe or scream. When Silveria was 11 years
old, Dean forced him to perform oral and anal sex.
      Robert Ector, Silveria’s fourth grade teacher at the time
Silveria lived with the Heberts, testified that Silveria was an
average or below average student who worked hard and wanted
to please Ector. Silveria was intelligent, but had “suffered . . .
academically” apparently because of a lack of parental support
with his schoolwork. That was unusual in the “solidly middle-
class community.” Silveria frequently volunteered to stay after
school to perform small tasks for Ector, and on field trips he
“always wanted to be near my side.”
      Between 1976 and 1981, Silveria’s father visited him once.
B.S. visited Silveria about three times a year, and once cared for
him for several days after he had wandering eye surgery.
      In late 1980 or early 1981, Cortez told B.S. that if she did
not become actively involved in returning Silveria home by
establishing a visitation plan, Cortez would locate a long-term
placement for him. The ensuing visits were successful, and
Silveria was scheduled to return to live with his mother in June
1981.



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       During a visit home in April 1981, Silveria told his mother,
and then Cortez, that Dean had molested him. Cortez
determined that Silveria should not return to the Heberts, but
should stay in his mother’s care. Silveria did not receive therapy
as a result of the molestation report. His dependency case was
later dismissed.
       In the fall of 1981, when Lenae was about 14 years old, she
moved in with the nearby family of her friend Tasha Guimmond,
whose father Richard Guimmond was the assistant and resident
manager of the apartment complex in which the Silverias lived.
Richard Guimmond described their neighborhood as a “ghetto.”
When Lenae visited her family, she observed B.S. continued to
go out drinking, and failed to exercise control over Silveria. The
Guimmonds and Lenae moved out of the complex in about 1983,
and Lenae did not speak to Silveria until late 1990.
       In April 1982 then San Jose Police Officer Michael George
(George) brought 12-year-old Silveria home to live with him, his
wife Deborah, and their children. Silveria lived with the
Georges for about eight months. Deborah displayed no affection
for Silveria. George was attentive to Silveria, even more so than
to his biological family.
       Defense investigator Daniel DeSantis testified that in
about April 1996 he learned that George, who had also served
as a Clearlake police officer, had in May 1996 been convicted in
Lake County of 11 counts of child molestation for crimes
committed against a different child. (§ 288, subd. (a).) On
October 3, 1996, DeSantis and Silveria’s defense counsel
interviewed George in prison. George expressed concern for his
life because he was a former police officer and a convicted child
molester, and said he did not expect to leave prison alive.
George admitted that when Silveria lived with him, George had

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on different occasions given Silveria rum and coke and then
molested him by engaging in “mutual masturbation and oral
copulation.” George expressed remorse for what he had done to
Silveria, and agreed to testify at the penalty retrial.
       On February 13, 1997, DeSantis again met with George.
George was no longer willing to testify, but did not retract his
earlier statements made during the first interview.
       In May 1983, when Silveria was 13 years old, he left the
Georges’ home and went to live with the Gambles. John Gamble
testified that he and Silveria, whom Gamble identified as his
brother, were the same age and had met in the sixth grade while
Silveria was living with the Georges. Silveria had been a
peaceful child and John’s best friend. John’s mother, Patricia
Gamble, who worked in the family support division of the Santa
Clara County District Attorney’s Office, testified that Silveria
moved into their home with only a bird book, a picture of Jesus,
and clothing so worn much of it had to be discarded.
       The Gambles were loving and supportive of Silveria, and
treated him like a member of the family. Silveria was protective
of John and his younger sister Lisa, and performed additional
household chores on his own initiative. Silveria was respectful
to Patricia and her husband, and called Patricia “Mom.” He was
also was good at sports, especially football.
       To assist with Silveria’s separation from his parents,
Patricia placed him in therapy. Silveria asked to be removed
from therapy after six to eight sessions.
       Patricia and Silveria visited B.S. soon after Silveria moved
in, and Patricia invited her to call and visit Silveria. B.S. often
seemed indifferent to Patricia’s and Silveria’s attempts to
contact her, and showed Silveria little affection when she saw
him, once not even getting up to greet him when he visited her.

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      Julie Morrella testified she was Silveria’s girlfriend from
1984 to 1985 when they were 14 to 15 years old. Silveria was
loving and attentive, and demonstrated a need for affection. He
never mistreated Morrella, and she never saw him be violent.
      In March 1985, when Silveria and John Gamble were
15 years old, John’s father moved out of the house. About this
time, John and Silveria began to smoke marijuana and drink
alcohol. Silveria became angry and violent when drunk, and
once lay on the kitchen floor kicking and screaming, “I hate this
shit.” On a different occasion he cut up the kitchen cabinets
with a knife.
      When Silveria was 15 and a half years old, Patricia took
Silveria without protest to juvenile hall for several days because
of his alcohol abuse.       She again provided Silveria with
counseling for about a month until Silveria was sent to the boys
ranch in Morgan Hill for about five months for violating his
probation by drinking. Patricia visited him every weekend until
he was allowed to come home on weekends. Patricia invited
B.S., Silveria’s mother, on several occasions to join her on these
visits to the boys ranch, but B.S. declined. After Silveria
returned home from the ranch, and before July 1987, he was
placed into a group home in Soquel until he was about 18 years
old because of his alcohol use.
      In February 1988, when Silveria and John were about
18 years old, Patricia moved to Sacramento. Silveria lived with
Patricia intermittently from 1988 to 1989. John visited Silveria
numerous times in Sacramento and observed his mother
continued to love and support Silveria. In the fall of 1989, while
living in Sacramento, Silveria slit his wrists, received medical
attention, and Patricia sent him back to San Jose to live. She
did not see him again until after his arrest.

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      Also at some point in 1988 to 1989, Silveria lived in Gilroy
for several months with his cousin Geraldine Macias and her
husband, both postal service workers, and their two young
children. During this period, Daniel, Silveria’s biological father
and Geraldine’s uncle, also lived in Gilroy. Geraldine trusted
Silveria — but not Daniel — to babysit her children.
      After Silveria left Geraldine’s home, he lived for at least
six months with Daniel in Gilroy.             They used “crank”
(methamphetamine) and marijuana. Daniel was physically
abusive to Silveria, and Silveria eventually moved out after
Daniel broke Silveria’s nose.
      In August 1990, Patricia Gamble was contacted by an
Army recruiter for Silveria’s diploma because Silveria was
trying to enlist. Later that year, Lenae happened to work with
Silveria at Toys “R” Us for the holiday season. During that time,
Lenae observed Silveria lost weight, developed acne and poor
hygiene, and appeared to be using drugs.
      Patricia visited Silveria frequently after his January 1991
arrest. Silveria told her he had stabbed Madden. On several
occasions Silveria said that he was sorry, was praying for the
Madden family, and “knows how it feels to grow up without a
father and that it hurt him to know that Julie [Madden’s
daughter] now would not have a father to grow up with.”
      In 1991, Silveria and Patricia both studied the Bible and
shared with each other what they had learned. Silveria’s
biblical knowledge and insight appeared to increase over time.
He exhibited “an excitement and a real joy about what he was
learning.” In late 1993 she stopped visiting Silveria, but
eventually resumed communicating with him by letter. Patricia
loved Silveria because “there was something very good in him,
something very sad . . . . I see that value.”

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                  PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


       Morrella also visited Silveria in jail frequently for about a
year from 1991 to 1992, and later resumed visits. Silveria was
initially cold to her and his physical appearance was poor. Over
time, his demeanor and physical appearance improved.
Morrella was now a Christian, and at one point during her visits
she and Silveria began to discuss religion. Silveria was very
excited during these discussions, would quote scriptures, and
would often bring a Bible or Christian book to their meetings.
       Silveria told Morrella he felt “very bad about the fact that
Julie,” Madden’s young daughter, “was going to grow up without
a father.” Silveria said “he had been praying for the family and
that he . . . felt terrible and that he was just continuously
praying for them. He was very remorseful.” Silveria did not
tell Morrella he had stabbed and used a stun gun on Madden.
Morrella believed Silveria was a loving and valuable person who
had “done a lot of good[] things.”
       John Gamble had visited Silveria about five times in the
six years since Silveria had been incarcerated, and had never
spoken to him on the telephone. John loved Silveria and enjoyed
his visits with him. Lenae testified that she loved Silveria, and
believed that “[f]rom [d]ay one he never had a fair shot. He’s
pretty much struggled ever since he came into this world.”
       Several officers testified regarding Silveria’s behavior in
jail. Santa Clara County Correctional Officer Victor Bergado
testified that when Silveria was first incarcerated, he appeared
to be “emotionless,” a “hard person” who “didn’t really . . . say
much to anybody.” Three to four months later, during a random
check, Officer Bergado observed Silveria kneeling with his arms
over his bunk. Officer Bergado asked if Silveria was “Okay.”
Silveria turned his head toward the officer and appeared
distraught. He explained he had been praying, and said, “I’m

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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


just really . . . sad . . . for the family of the victim.” He was
“asking for forgiveness and he’s sorry for what he did and he
feels sorry for the family of his victim and his family.” Officer
Bergado and Silveria discussed their shared Christian beliefs.
Periodically thereafter for several years, they had discussed
Christianity and lessons Silveria had learned from the Bible.
Silveria was well-behaved and shared commissary items with
other inmates.
       Former Santa Clara County Sheriff’s Deputy Patrick
Doyle testified that several months after Silveria had been
incarcerated, he began to ask Deputy Doyle, a former
missionary who was referred to by inmates and deputies as
“Father Doyle,” questions about the Bible and started a Bible
study group. Deputy Doyle believed Silveria’s Christian faith
was sincere because of his conduct, joyfulness, and the
frequency with which Deputy Doyle observed him kneeling by
his bunk. Silveria did not engage in physical altercations with
other inmates, commit assaults on correctional staff, or display
behavioral problems. He had not been caught possessing
weapons, drugs, or alcohol.
       Department of Corrections Officer Lauren Dennehy
testified that Silveria was intelligent, cooperative, and
volunteered for additional jobs. Silveria appeared to go out of
his way to welcome new inmates, and at Officer Dennehy’s
request, had provided orientation for inmates new to the
module. Santa Clara County Correctional Officer Edwin
Lausten observed that Silveria was empathetic to other
inmates, and had appeared to twice successfully intervene with
inmates who were struggling emotionally.




                                 19
                  PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


                 (2) Expert witnesses
       Reverend Leo Charon testified he had worked in the Santa
Clara jail for 15 years. He had not previously testified on behalf
of any inmates other than Silveria and Travis. (See post,
pt. I.B.2.b.2.)
       Reverend Charon had known Silveria, whom he met when
Silveria started attending his jail Bible study, for about five
years. Silveria asked thoughtful questions in Bible study, had
requested different Bible versions to compare text, and had
studied Greek to read parts of the Bible in its original tongue.
Silveria’s spiritual gift was teaching, and he wanted to use that
gift to help other inmates. Reverend Charon believed it “would
be very difficult” to feign the level of study and depth of interest
Silveria had shown over the years in Christianity.
       About a year after starting Bible study, Silveria began to
meet individually with Reverend Charon.               Silveria had
displayed “brokenness,” a process whereby one honestly
confesses sins and feels true sorrow for them. Silveria had told
Reverend Charon he had stabbed Madden, and had used a stun
gun on him. They periodically discussed Silveria’s remorse
about Madden’s murder, and Silveria’s concern for Madden’s
wife and family.
       Dr. Harry Kormos, a psychiatrist at the University of
California Hospital in San Francisco and Alta Bates Hospital in
Berkeley, conducted a psychiatric evaluation of Silveria, and
testified as an expert on the effects of childhood neglect and
abuse on the development of adult personality. Dr. Kormos had
interviewed Silveria 12 to 15 times in 1993 and 1995, and had
reviewed Silveria’s former testimony concerning his life until he
was 21 years old, summaries of other testimony, case
statements of fact, investigative reports, witness interviews,

                                 20
                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


Silveria’s birth medical records, and a report regarding
Silveria’s psychological tests. Silveria told Dr. Kormos he did
not want “anything about his past to be used in a way to excuse
what he had done because he didn’t feel that there was an
excuse.”
       Dr. Kormos opined that Silveria did not suffer from manic-
depressive illness, an antisocial personality disorder,
posttraumatic stress disorder, conduct disorder, organic brain
damage, fetal alcohol syndrome, or subnormal intelligence. He
did suffer from child neglect, and alcohol and methamphetamine
addiction.
       Dr. Kormos described child neglect as a long-term
situation in which the child did not receive the support
necessary for normal development, and in addition was
mistreated by “those charged with [the child’s] well-being.” Low
self-esteem and decreased ability to delay gratification were
general issues often seen in those neglected during childhood.
Depression, drug addiction, and delinquency were negative
outcomes that “can be traced back to a situation of child neglect.”
       In Dr. Kormos’s view, Silveria had never bonded with his
parents. Silveria had only two memories of his father while the
family was intact. In one, his father responded to Silveria
spilling food by violently throwing him down a flight of stairs.
In the other, Silveria brought home a stray dog, and his father
killed it by repeatedly hitting it with a shovel. Dr. Kormos
concluded Silveria was likely traumatized by his father’s
violence. Silveria acknowledged problems with his parents, but
nevertheless retained “a positive image of both his mother and
his father.”
       Silveria told Dr. Kormos that he had also been sexually
abused by Dean Hebert’s older brother Mark. Dr. Kormos

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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


compared the constant and severe punishments, sexual abuse,
and shaming or tormenting inflicted on Silveria at the Hebert
home to a concentration camp. He explained, “[T]he person
subjected to this feels terrorized, feels threatened every day, has
nowhere to turn and is completely in the power of the persons in
charge who are not concerned about [his] well-being in any way.”
Silveria told Dr. Kormos he had no way of knowing his
experience at the Heberts was abnormal, and also assumed that
if he complained, worse punishment would occur.                  In
Dr. Kormos’s view, psychological therapy was indicated for
Silveria when he reported Dean Hebert’s sexual abuse and was
removed from the Hebert home.
      Dr. Kormos opined that Silveria’s molestation by Police
Officer George would have made it difficult for him to “correctly
interpret the nature of authority and of legal behavior.” Silveria
told Dr. Kormos that “it had always been useless for him to
dwell on problems that had occurred in his life . . . because there
was . . . nothing that he could possibly do about it. So . . . the
best thing to do would be to try and push it out of his mind which
is really a very primitive, a very impaired way of dealing with
reality.”
      Dr. Kormos was of the view that Silveria, Travis, Spencer,
and Jennings “were quite close due to the fact that they were all
very much . . . in need of emotional support.” They helped each
other by being together and it was “almost like they were trying
to make up an artificial, a pseudo-family.”
      Dr. Kormos further opined that the older a child gets, the
less likely it is that positive intervention will reverse earlier
damage. Dr. Kormos was of the view that “there was an unusual
accumulation of negative factors in this particular case, more
than you would ordinarily see on the average.” He agreed with

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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


defense counsel that a person with Silveria’s background of
failure to bond with either biological parent, and his experiences
of neglect, abandonment, physical abuse, sexual abuse, and
emotional abuse, would be impaired in his ability to make
rational choices later in life, because “there would likely be such
distortions in his views of the world that his decisions are likely
to be skewed.” He subsequently added, “I think their entire
world view would be impaired, and that would certainly have an
effect on all decisions they make.” He also testified that a “solid
majority” of persons who had suffered abuse similar to that
suffered by Mr. Silveria “would indeed suffer from severe
psychiatric and psychological problems,” including criminality,
later in life.
       James Park, a former San Quentin associate warden,
testified as an expert on prison classification and on the security
for prisoners serving sentences of life imprisonment without the
possibility of parole. Park described the four security “levels” of
prisons, with level four being the most secure prisons.
       Park stated that a person serving a sentence of life
imprisonment without the possibility of parole “will never be
paroled,” but could earn credits that would allow him or her to
be considered for incarceration in a level three prison. Park
observed that life imprisonment prisoners were required to
work, and could receive an education, play sports, have a
television, and purchase books and magazines, but were denied
conjugal visits.
       In 1995, Park interviewed Silveria, and reviewed capital
crime fact summaries and Silveria’s jail records up to the
summer of 1995. Silveria displayed a “positive and productive”
outlook, and had spent his jail time constructively by studying.
Park had seen no evidence that Silveria had been involved with

                                 23
                  PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


drugs or weapons while incarcerated, and his infractions while
incarcerated had created no danger to jail personnel or other
inmates. Park opined that if Silveria were serving a sentence of
life imprisonment without the possibility of parole, he would
“make a good adjustment,” and would not be “a threat or a
danger to other staff or other inmates.” “[I]n short I think he
will be a substantially better than average prisoner.”
             b. Travis
                 (1) Travis’s background
      Travis, his mother Pamela M., and his younger sister D.S.,
described Travis’s childhood. Pamela married Travis’s father,
John Travis, Sr., in about November 1967. Travis was born in
December 1969. Pamela did not drink alcohol or take any
nonprescription drugs while she was pregnant with Travis. D.S.
was born in 1973.
      John, Sr. abused alcohol and was unfaithful to Pamela.
Once when Pamela was seven months pregnant with D.S., he
was physically violent with Pamela, punching her in the
stomach and face, leaving extensive bruising, and causing her
to bleed. He never physically abused Travis.
      During the first five years of Travis’s life, John, Sr., was a
good financial provider, but never told Travis he loved him, or
hugged or kissed Travis. In late 1974 or early 1975, when Travis
was about five years old, Pamela separated from John, Sr. For
about two years she, Travis, and D.S. lived with relatives, other
than a few months in 1975 when they lived with Larry Holly. In
1976, Pamela — who was pregnant with Holly’s son Joseph —
Travis, and D.S. moved to an apartment on Bendorf Drive in
San Jose that was filled with roaches and had leaks that caused
the ceiling to disintegrate. John, Sr., had no relationship with


                                 24
                 PEOPLE v. SILVERIA and TRAVIS
                 Opinion of the Court by Groban, J.


his children and provided financial support only when “ordered
to.”
      Travis and D.S. recalled that Pamela was loving,
supportive, and a “very good mom” who worked hard to support
the family. Pamela testified that she did not use drugs or abuse
alcohol. The family was religious and held “family devotions” or
Bible study. Travis had been baptized and attended church and
Sunday school. He attended religious youth classes at the Los
Gatos Christian Church until he was about 15 years old.
      During elementary school, Travis was responsible for
getting himself and D.S. to school because his mother worked at
night and was asleep in the morning. When Travis came home
from school, his mother was at work, so he would make dinner,
and would occasionally put D.S. and Joseph to bed when their
mother worked late.
      When Travis was seven years old he began smoking
marijuana. He began drinking alcohol before the age of 14, and
perhaps at 10 or 11.
      In 1979, when Travis was about 10 years old, Pamela
married Joseph Carvalho, and the family’s financial situation
improved. Carvalho often took Travis fishing and treated him
as his own son, but was physically violent when inflicting
discipline. Carvalho disciplined Travis for minor infractions by
spanking his bare bottom with a belt or cutting board, once
breaking a one-inch thick cutting board on Travis’s backside.
Pamela never intervened.
      Carvalho and Pamela frequently fought over finances, and
their verbal arguments generally escalated into physical fights.
Travis once saw Carvalho pick up Pamela and slam her body
onto a table. Travis felt intimidated and helpless. When Travis
was 14, he came home to see Carvalho and Pamela wrestling,

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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


and Carvalho pin Pamela down and hit her. Travis intervened,
and Carvalho and Travis fought until Carvalho pushed Travis’s
head through a sheetrock wall.
       In about 1981, when D.S. and Carvalho’s daughter S. were
both about eight years old, and Travis was at least 12 years old,
Carvalho was arrested for molesting D.S. and S. Travis was
devastated when he learned of the molestations. He and D.S.
had previously been close, but Travis felt ashamed because he
had failed her. When Travis was about 15 years old, Pamela
divorced Carvalho and obtained a restraining order against him.
       Travis was a poor student in high school, and from the
ages of 14 to 16, he periodically was truant from school. He
started using methamphetamine when he was about 15 years
old, and continued to use marijuana and alcohol.
       When Travis was about 16 years old, he and his mother,
who was concerned about his misbehavior, agreed Travis should
live with his biological father, John, Sr., in North Carolina.
Travis had not seen John, Sr., since he was five years old, and
was looking for support and to establish a relationship with his
father. Once in North Carolina, Travis and John, Sr., performed
construction work and drank alcohol and used drugs together,
but did not develop a closer bond.
       After about a year, Travis returned to California. He did
not attend school, and dropped out of high school in his junior
year when he was about 17 years old.
       Travis committed several burglaries, and went to North
Carolina to again live with John, Sr., when he was about 18
years old to avoid an arrest warrant. Travis ultimately returned
to California to turn himself in. He suffered a felony conviction
for first degree burglary and served about 10 months in county
jail. During this time, Travis was a jail “trustee,” performing

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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


such assignments as delivering the canteen to the women’s
lockdown. Travis was released from jail when he was 19 years
old.
      Pamela was largely unaware of Travis’s activities as an
adult, and saw him little in 1990. She did not know what he
was like or what he doing in January 1991, the month Madden
was murdered. Pamela believed she had “disappointed [her]
children a great deal” and “abandoned them” from their late
teenage to their adult years.
      Travis obtained the job at LeeWards in 1990, and worked
there for about two months. He once saw Madden’s wife and
daughter in the store. Travis used drugs while on the job and at
times did not show up for work.
      At some point after leaving LeeWards, Travis became
homeless and could not provide himself food or regular hygiene.
He felt empty inside, and spent his 21st birthday in the back of
Spencer’s car. Travis considered committing crimes to get
“money for [his] drug habit.” Travis had long stolen items, but
he had never hurt anyone.
      On about January 24, 1991, Jennings told Travis someone
had taken his pager. Travis confronted the man holding the
pager, and the two fought. Travis was hit in the face with brass
knuckles, and received a cut lip and a broken nose.
      D.S. saw Travis on about January 27, 1991. His “eyes
looked dead and he looked like he [had] lost his soul.” He
appeared to be cold, distant and “mad at the world.” His nose
was broken, his lip cut, and his clothes were bloody. Travis told
D.S. she did not have to worry about money anymore, or live like
she was living.




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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


                 (2) Travis’s testimony regarding the murder
                     and jail
        On the night of Sunday January 27, Travis told Silveria,
Jennings, Spencer, and Rackley that whoever was working as
the LeeWards manager would have to be killed because Travis
did not want to be identified and go to prison. Silveria said, “No,
no way,” and left the discussion. Travis recalled no discussion
of masks or other methods of hiding the perpetrators’ identity.
They drove to LeeWards that night but the store was already
closed.
        On Monday, January 28, Travis, Silveria, Spencer,
Jennings, and Rackley again drove to LeeWards. Travis
described confronting Madden, obtaining the store funds, and
restraining Madden, and the telephone call with the alarm
company. Travis turned to Spencer and quietly told him to kill
Madden so that Madden would not overhear the command.
Spencer was hesitant, so Travis repeated, “Kill him.” Madden
began to fidget.
        Silveria said, “Let’s go.” Spencer cut Madden’s throat, and
then began stabbing him. Travis was excited, but not because
he “enjoy[ed] it.” Silveria used the stun gun on Madden while
Spencer was stabbing Madden. Spencer then handed the knife
to Travis and ran out. Travis repeatedly stabbed Madden.
When Travis was done stabbing, he felt “empty.”
        Travis was able to kill Madden because “I didn’t care about
myself or anybody else,” “I just gave up.” Travis was “mad” and
“wanted somebody to pay” for “[e]verything that happened in my
life. . . . I was blaming others for the position I found myself in
due to my own actions.” Travis thought the money from
LeeWards would give him a “new life, a new identity.” Travis
was not blaming Madden’s murder on Travis’s rage, poor

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relationship with his father, or drugs and alcohol, but he
believed “these are major factors that built up to something like
this.”
       On cross-examination, a recording of Travis’s statement to
law enforcement was played for the jury. Travis said he wanted
Spencer to stab Madden first to prove himself. When Travis told
Spencer, “Kill him,” Travis felt powerful.
       During Travis’s first nights in jail after he was arrested,
he met an inmate who spoke to him about Jesus. Travis had put
God “to the side” when he was 14 years old, because he had
“wanted to live [his] own life, do what [he] wanted to do.” Travis
was tremendously affected by the inmate’s words, explaining
they “showed me just what type of person I had become.”
       Travis began to listen to a radio prison ministry by
Chaplain Ray from Texas. He also read a book entitled “Will
You Die For Me, Tex Watson as told to Chaplain Ray.” In the
book, Watson, a convicted murderer, follower of Charles
Manson, and a drug addict, described his crime, his arrest, and
his conversion to Christianity. Travis was impressed that a man
of Watson’s notoriety had “receiv[ed] Christ Jesus.”
       In September 1991, Travis wrote to Watson. Travis said
he was also incarcerated for murder, and that “[t]hey used to
call me ‘Baby Manson’ because of the power of mind control I
had on my friends.” Travis wrote that he had stabbed Madden
“repeat[e]dly” and “enjoyed every moment of it.” Travis also
said, “As we fled, I felt this empt[i]ness inside me,” and that he
had “re-received Jesus Christ as [his] Lord and Savior” and
repented of his sins. Travis felt a peace within, and knew he
was forgiven for his sins, “even murder.”
       At the penalty retrial, Travis explained he wrote the letter
because he and Watson were in the same situation, and Christ

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had changed both of their lives. He said he had told Watson he
enjoyed stabbing Madden because in Travis’s confession to
police he had minimized his participation in the murder by
saying he had only stabbed Madden twice. Madden had been
stabbed 32 times, not twice, and Travis was “judging myself,
condemning myself and putting myself down and thinking I
must have enjoyed this to do something so heinous like this.”
Rather, when Travis stabbed Madden, “I was releasing my
anger . . . . my adrenaline[,] my paranoia, everything.”
      In 1992, about a year after writing Watson, Travis,
Jennings, and several others planned an escape from jail.
Travis was angry at God at this time because Travis’s young
nephew had died. Travis was shown a cell bar that had been cut
half-way through, and he tried to cut the bar more using a wire
from a chair. Travis also collected sheets to use as a rope. He
did not plan to hurt anyone.
      Before the escape plan was executed, one of the inmates
reported the plan, and Travis was relocated. He was not
charged with a crime as a result of his participation, and was
subsequently made a trustee in his new jail location by Santa
Clara County Department of Corrections Officer David
Damewood. Travis had also been chosen by to be a trustee when
housed in a different part of the jail, and had worked as a
“trustee helper” for Officer Limbocker. He had not had any
serious rule infractions in the four or five years preceding his
testimony.
      After the failed escape plan, Travis realized he had been
“making the wrong decisions,” and “started thinking real hard
about what I want[ed] to do with my life.” He began recovery
and started learning about Alcoholics Anonymous (AA) and
Narcotics Anonymous. He also began to work with Reverend

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Charon. No AA meetings were available where Travis was
housed.
      Travis had also participated in the jail’s Tutor Program,
which helped inmates learn to read and do math. He often
shared his message of recovery with these individuals. It was
his “heart’s desire . . . to help those who have been in the same
situation I have.”
      Travis testified that he accepted the jury’s guilt verdict
and had admitted his responsibility for Madden’s murder at the
time of his arrest. His purpose in testifying was to tell the truth
and to let the jury know “that I am remorseful for what I have
done.” He described what he had done as “heinous,” and was
“ashamed and humiliated” he had caused others pain. He had
unsuccessfully asked his attorney if he could write to the
Madden family or seek their forgiveness in court. He asked the
jury to spare his life, and said the decision whether he went to
death row was in God’s hands.
                 (3) Character witnesses
       Pamela M. testified she did not visit Travis in jail for the
first two years after his arrest for Madden’s murder because she
could not face the reality of the charges against Travis. She was
now closer than ever to Travis. D.S. had visited Travis in jail,
and “he’s got . . . this glow,” and there was hope in his eyes. She
loved Travis “[w]ith all [her] heart.”
       Two correctional officers testified regarding Travis’s
behavior and activities in jail after his arrest for Madden’s
murder. Santa Clara County Department of Corrections Officer
Keith Forster had known Travis about two years and had
supervised him in jail. Travis treated staff respectfully and
followed the rules. Officer Forster was of the view that although
“there are individuals [who] absolutely deserve the death
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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


penalty,” here it would be “improper” because “there is definitely
an opportunity to be used . . . to change lives,” and to “maybe
just have one individual change through his testimony and
experience . . . would be well worth it.”
      Correctional Officer Damewood testified that in late 1992,
after Travis’s failed escape plan, Travis had been housed in the
maximum security jail area where Officer Damewood worked.
Travis was in this area for about three years. Officer Damewood
selected Travis as a trustee, a position he held for about two
years. His duties included cleaning and delivering paperwork
and meals to inmates. Travis was responsible, easy to get along
with, and did not misbehave or treat Officer Damewood
disrespectfully. In his cell Travis was studious and quiet.
                (4) Expert witness testimony
       Reverend Charon, a certified alcohol and drug counselor,
testified as an expert on the “identification of alcohol and drug-
related problems and the recovery process.” Reverend Charon
met Travis in jail in late 1992 or 1993 when Travis attended his
Bible study. Travis was diligent in attending, and Reverend
Charon and Travis eventually began to meet one on one.
Although Travis initially did not consider himself an addict, he
eventually began working with Reverend Charon on the “The
Twelve Steps” AA program. It was difficult to advance in a
recovery program in jail because of the limited resources, and
Reverend Charon had seen few people reach Travis’s level of
recovery.
       Reverend Charon described Travis as a quiet individual
who benefitted others by sharing what he had learned in
recovery. Reverend Charon believed that Travis was sincere
when he said he was following in the footsteps of the Lord. He
was of the view that Travis had “made peace with God, is trying
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to do it with everyone else, and that he is in genuine recovery.”
Travis appeared “very remorseful, and was earnestly seeking a
way, under the circumstances, that he could express . . . his
regret, and also, if there was anything that was possible [for
him] to make amends, recognizing that you can never really
make full amends.”
       Sharon Lutman, a registered nurse and licensed marriage
and family counselor, testified as an expert regarding the
assessment of chemically dependent people. On March 26,
1997, Lutman interviewed Travis for one and a half hours at the
Santa Clara County main jail to assess him for the long-term
effects of drug and alcohol use, and to evaluate whether he was
in a state of recovery. The two did not discuss Madden’s murder.
       Travis said he had taken no mood-altering drugs since the
fall of 1992. Travis was open and responsive, and did not
hesitate to share his past use of drugs and alcohol, but had
difficulty expressing his feelings.
       Lutman concluded Travis was a “Type Two” alcoholic, or a
man who has an alcoholic father and who begins to use drugs
and alcohol early in life. This type of alcoholism was passed
from father to child, and so her opinion would not change if she
were aware Travis’s mother did not drink or consume
nonprescription drugs during her pregnancy with Travis.
Failure to develop stress management coping skills and impulse
control are indicative of Type Two alcoholism.
       As to Travis’s recovery from drugs and alcohol, Lutman
observed that Travis was meeting with Reverend Charon,
reading 12-step literature, and listening to “recovery oriented
tapes.” Travis understood his alcoholism and addiction would
require treatment for the rest of his life. He had attempted to
learn new techniques for resolving conflict and anger with

                                 33
                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


others, such as assessing his own responsibility for conflict and
sharing his concerns with God and Reverend Charon, instead of
“just act[ing] out” or suppressing his anger with alcohol and
drugs. He had appeared sincere and the most emotional when
discussing his desire to make amends to Madden’s family.
      Travis was interested in counseling other inmates with
substance abuse problems, and in Lutman’s opinion, had
learned enough about addiction and recovery to assist others.
Travis was also interested in studying pharmacology to learn
more about addiction.
      Dr. Timmen Cermak, a psychiatrist, testified as an expert
in the field of addiction. Dr. Cermak had interviewed Travis five
times between October 30, 1992, and March 15, 1997, including
one telephone interview. Dr. Cermak had also interviewed
Travis’s sister D.S., his mother Pamela, and Reverend Charon.
He had reviewed various documents including Travis’s
statement to police, the indictment, investigator reports
regarding family members, several police reports, and letters to
and from Travis.
      Dr. Cermak diagnosed Travis as chemically dependent in
forced remission. When Travis’s chemical dependence had been
active, it had “distorted his judgment pervasively.” Travis was
also suffering from posttraumatic stress disorder as a result of
his childhood neglect and abuse. He was not schizophrenic or
manic-depressive, and did not have an antisocial personality
disorder.
      Dr. Cermak had hired Dr. James Kurkjian, a clinical
psychologist, to perform neuropsychological tests on Travis.
Dr. Kurkjian also administered to Travis the Minnesota
Multiphasic Personality Index, and intelligence quotient,
Rorschach, and picture and sentence completion tests. Based on

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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


the test results, Dr. Cermak concluded there was no organic
brain damage, “nothing that would limit [Travis’s] capacity.”
Travis had average to below average intelligence, and was in the
normal range. Nothing in these test results indicated to
Dr. Cermak that additional psychological testing was necessary.
        Travis initially struck Dr. Cermak as “being immature,
someone who had been very out of control, [a] chronically
intoxicated adolescent who really had lost his moral compass . . .
with very tragic results.” Travis spoke incessantly about
religion, and it appeared “religion was playing a very rigid and
containing role in his life.” Over the past four and a half years,
Dr. Cermak had observed Travis begin to recover from his
chemical dependence, be less rigid in his religious beliefs, and
become more emotionally available. There had been “a slow
increase in his maturity, his ability to contain impulses, his
ability to talk about his emotional life.” He had also received his
General Education Diploma.
        In Dr. Cermak’s view, Travis had held a “highly distorted
view of the injustices in his life.” Travis felt shame as a result
of his January 24, 1991 fight because he lost face before his
friends, and was left with a facial injury that he believed would
prevent him from ever again being “attractive to a woman.”
Travis believed that “someone had to pay.” The murder was “a
fatal act of attacking someone else in order to save himself and
to . . . get away from the sense of inadequacy, failure[,] . . .
shame, humiliation, . . . that sense of abject embarrassment
that he . . . harbored within himself.” By murdering Madden,
Travis was “defending his honor, defending his sense of
vulnerability . . . [and] reestablishing the sense of self that is
less shamed, humiliated, vulnerable and inadequate.”



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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


      Dr. Cermak was of the view that Travis’s personality was
largely formed in an atmosphere of sufficient parental neglect
and family member abuse that it affected his development.
Travis’s chemical dependency allowed him to avoid feelings of
shame and tension he experienced in his family. Individuals
who ignore feelings of shame develop an increased sensitivity to
that emotion and become less capable of “tolerating even small
slights.”
      Methamphetamine was “commonly associated with
violent behavior.” “Paranoid delusions are almost a routine
aspect of chronic” methamphetamine use. Although in general
paranoia from methamphetamine use could contribute to the
explosiveness of an event for a person who already felt shame
and rage, here Dr. Cermak understood Travis and the other
perpetrators had largely exhausted their methamphetamine
supply four days before the murder.
      Travis told Dr. Cermak that during the murder, “there
was a buildup of fear and excitement and a sense of panic.”
When the murder took longer than expected, and Travis began
to stab Madden, he felt a “sense of relief from the fear and the
panic and the excitement.” Travis said this “wasn’t really
pleasurable and yet it was a sense of relief.” Dr. Cermak asked,
“[I]s that . . . a positive feeling, maybe even a pleasurable
feeling?” Travis replied, “Yes, that was a pleasurable feeling.”
Shortly thereafter, while still at the murder scene, Travis began
to feel a sense of emptiness. Dr. Cermak acknowledged that
Travis may have made these statements to try to lessen the
damage of Travis’s statement to Tex Watson that he had
“enjoyed every moment” of the stabbing. In Dr. Cermak’s view,
when Travis spoke of enjoyment in the letter, “he was trying to



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explain, make sense of the sense of relief that he felt following
that murder.”
         3. Prosecution rebuttal
       Santa Clara County Sheriff’s Sergeant David Tomlinson
testified that before February 1994, Silveria had claimed on a
jail grievance form that he feared retaliation by an inmate and
had successfully asked to be moved. Silveria and Travis were
both housed in the “Third East Max” tier of the jail between
September 21, 1993, and August 5, 1994. In February 1994,
Silveria stated on a different grievance form that he had lied in
his previous request to be rehoused and wanted to return to his
former (less restrictive) housing assignment. Silveria said he
had been “dishonest . . . in order [to] get next to my
codefendant.”
       Sergeant Tomlinson also testified that simply because an
inmate was a trustee did not mean he was trustworthy because
the position varied widely in terms of the scope of
responsibilities and freedom.
       Cynthia Tipton testified that on the morning of January
28, 1991 (the day of Madden’s murder), Silveria came to her
home and asked to shower because he had contracted poison
oak. He appeared uncomfortable because of the poison oak, but
not otherwise ill or recovering from a recent illness. Nor did he
tell Tipton he had recently been ill. After his shower, Tipton
told Silveria she knew “you guys are doing the stun gun
robberies.” Silveria replied, “[T]hey don’t know who we are and
they don’t know what we look like,” and said that Tipton should
not worry. He also told Tipton “they had something big that
they were going to be doing that night.” Silveria showed no
reluctance to participate in this event, but appeared to be “in a


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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


really good mood,” and “looking forward to what was . . . going
on for the rest of his day.”
                         II. DISCUSSION
     A. Guilt Phase Issues6
         1. Motion to Suppress
      Travis contends the trial court erred in denying his motion
to suppress. In particular he contends the police lacked
reasonable suspicion to detain him, his arrest lacked probable
cause, and the warrantless search of his vehicle was improper.
We disagree.
      “In reviewing a trial court’s ruling on a motion to suppress
evidence, we defer to that court’s factual findings, express or
implied, if they are supported by substantial evidence.
[Citation.]    We exercise our independent judgment in
determining whether, on the facts presented, the search or
seizure was reasonable under the Fourth Amendment.” (People
v. Lenart (2004) 32 Cal.4th 1107, 1119.)
             a. Factual background
      On January 25, 1991, San Jose Police Detective John
Boyles caused the Quik Stop Market robbery video to be
screened at a police briefing. A fellow officer told Detective

6
      “[A]s to many claims defendants allege for the first time
that the error complained of violated their federal constitutional
rights. To the extent that in doing so defendants have raised
only a new constitutional ‘gloss’ on claims preserved below, that
new aspect of the claims is not forfeited. However, ‘[n]o separate
constitutional discussion is required, or provided, when
rejection of a claim on the merits necessarily leads to rejection
of [the] constitutional theory . . . .’ ” (People v. Bryant, Smith
and Wheeler (2014) 60 Cal.4th 335, 364 (Bryant, Smith and
Wheeler).

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Boyles that he recognized one of the perpetrators on the video
as Troy Chapple and gave him Chapple’s date of birth. Santa
Clara County juvenile probation department records indicated
that Troy Chapple was also known as Troy Rackley. Detective
Boyles located a photograph of Rackley in the San Jose Police
photo base, and observed Rackley appeared to be one of the
perpetrators on the video.
      On January 28, Detective Boyles contacted a juvenile
probation officer, who identified Matthew Jennings as a second
perpetrator on the videotape, and gave Jennings’s home address
to Detective Boyles. About 5:00 p.m. that day an unidentified
female informant spoke to Detective Boyles on the telephone
and said that “Danny, John, Matt, and Chris” were perpetrators
of the stun gun robberies, and that “Troy” also associated with
that group.       Officer Boyles requested San Jose police
communications dispatch a “Be on the Lookout” notice to all
police units for Troy Rackley, Matthew Jennings, and “anybody
associated with them with the names John, Chris, and . . .
Daniel.” He also shared the information on the stun gun
robberies — including photographs of Jennings and Rackley,
and a still shot photograph from the robbery videotape of a
person later identified as Silveria — with San Jose Police Officer
Brian Hyland.
      That evening after Detective Boyles had gone home, San
Jose Police Sergeant George McCall spoke with a female
informant who said that the person involved in the stun gun
robberies known as “Danny” had a last name of “Silveras” or
“Silveria.” The informant also said the robbery suspects were
going to “pull another robbery that night” and would then be
“leaving town,” and might be driving a red and black Charger.



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                 PEOPLE v. SILVERIA and TRAVIS
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Sergeant McCall passed this information on that evening to
Officer Hyland and at some point to Detective Boyles.
       About 9:00 p.m. that night, Detective Boyles spoke with a
woman who sounded like the informant to whom he had
previously spoken. Detective Boyles also recalled that he asked
the woman if she was the same person to whom he had
previously spoken and she said yes. She identified herself as
“Cynthia.” Cynthia said she now had the last name of “Silveria”
for “Danny,” and “Jennings” for Matthew, and also gave him a
home address for Jennings that matched the street and
apartment number of the address Detective Boyles had received
for Jennings from the juvenile probation officer. Detective
Boyles requested that this additional information also be
broadcast to the police patrol units.
       On the evening of January 28, after speaking to Sergeant
McCall, Officer Hyland visited the homes of Jennings, Spencer,
and Silveria. Jennings’s older brother told Officer Hyland that
Jennings had packed a suitcase and left in a black and white
Dodge Charger with two men named Christopher Spencer and
John Travis, as well as Silveria and Rackley. A computer check
revealed Travis had an outstanding misdemeanor warrant.
Spencer’s father told Officer Hyland that Silveria, Travis, and
Rackley were friends of Spencer, and allowed him to search
Spencer’s room. There Officer Hyland found a citation with a
Charger’s license plate number. Silveria’s brother likewise told
the officer that Silveria had packed a suitcase, said he was going
to live in the mountains, and left with Travis, Spencer, Rackley,
and Jennings. Officer Hyland spoke with about seven total
individuals, each of whom said Silveria, Travis, Jennings, and
Rackley had been together for at least one day and were all
planning to flee the San Jose area. Officer Hyland told everyone

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                 PEOPLE v. SILVERIA and TRAVIS
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to whom he spoke to call him or 911 if they saw Silveria, Travis,
Rackley, Jennings, or Spencer.
       On January 29 at 6:46 p.m., San Jose Police Department
call intaker Joanne Schlachter received a 911 call from a man
who asked to speak to Officer Hyland. Schlachter said the
officer was not available, and asked if she could help. The caller
said that the “guys . . . doing the robberies of the mini-marts
with the taser guns” were at the San Jose Oakridge Mall arcade.
He also said that one of the men, “Troy,” was 18 or 19 years old,
and a second man “Matt” was wearing a white shirt and black
pants. The informant gave his name and appears to have given
his phone number and a description of what he, the informant,
was wearing. Schlachter sent the information to a police
channel that routed it to the appropriate officers. Officer
Hyland received the dispatch and recognized the informant as
someone to whom he had spoken the day before. Oakridge Mall
security was also alerted, and a security guard began to follow
the suspects through the mall. The informant called again at
6:58 p.m., and told a different intake person that Troy was
wearing green pants and black tennis shoes, and one of the two
suspects was now “in Shirtique’s” and was carrying a large sum
of money. The other suspect was somewhere in the mall and
“they [were] getting ready to go to Sacramento.”
       Dana Withers testified that on January 29 he was working
as an Oakridge Mall security guard. He received information
that caused him to follow two White men — who were joined by
a third White man — through the mall to two silver vehicles, a
Datsun 280ZX and a Honda Civic. The men entered the vehicles
and a second security guard, Michael Graber, who was driving
outside the mall, continued the surveillance and communicated



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with the San Jose police dispatch. The suspects drove from the
west to the north side of the mall where they were stopped.
      On January 29, 1991, about 6:46 p.m., San Jose Police
Sergeant Jean Edward Sellman received a radio dispatch to go
to the Oakridge Mall arcade and look for two suspects in the
stun gun robberies who were described in the dispatch.
Sergeant Sellman did not see anyone matching the suspects’
description in the arcade, but learned that a mall security guard
was following the suspects through the mall. He subsequently
received a dispatch that the suspects were entering a silver
Honda and a silver either 240 or 280ZX Datsun in the north
parking lot. Sergeant Sellman returned to his police car, which
was also in the north lot, saw two cars matching the dispatched
description, and noticed that the Honda Civic was closely
following the Datsun. A second officer, Sergeant Kurt Brandt,
blocked the row in front of the suspects’ vehicles with his vehicle,
and Sergeant Sellman blocked them with his vehicle from
behind. Silveria was driving the Honda Civic. Travis was
driving the Datsun, and Rackley was his passenger.
      San Jose Police Officer James Werkema arrived at the
scene, and was told by another officer that Travis was the driver
of the Datsun. Officer Werkema had previously been told by
Officer Hyland that Travis had an outstanding misdemeanor
warrant and that Rackley had been positively identified as a
perpetrator by one of the robbery victims. Officer Hyland
arrived and observed that while Travis was detained in the
parking lot, a warrant check was run and his misdemeanor
warrant was confirmed. Rackley and Silveria were arrested for
robbery and Travis was arrested for robbery and on an
outstanding misdemeanor warrant.



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                  PEOPLE v. SILVERIA and TRAVIS
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      Officer Werkema searched the Datsun 280ZX incident to
the arrests of both Travis and Rackley. In the Datsun’s backseat
area he found two fanny packs, one that contained rolled coins
and another that contained $1,313 and a motor vehicle purchase
order made out to John Travis and Danny Silveria. In the rear
of the vehicle he found a duffle bag containing two battery
packets bearing a LeeWards price sticker. Sergeant Sellman
searched Silveria’s car and found a PARALI/AZER stun gun and
a fanny pack containing $587. Both cars were impounded.
             b. Analysis
                 (1) Reasonable suspicion to detain
      Travis contends that the police lacked reasonable
suspicion to stop his vehicle and detain him. We reject the
claim.
      Travis asserts that the record fails to demonstrate how the
security guard correctly identified robbery suspects “Troy” and
“Matt” in the mall and followed them to their vehicles. Travis
did not challenge the stop of his vehicle in the trial court, and
the claim is therefore forfeited.
      “[W]hen defendants move to suppress evidence under
section 1538.5, they must inform the prosecution and the court
of the specific basis for their motion.” (People v. Williams (1999)
20 Cal.4th 119, 129.) Here, Travis’s suppression motion and his
argument on that motion challenged the legitimacy of the search
incident to his arrest on a traffic warrant, his lack of opportunity
to post bail after his arrest on the warrant, and the sufficiency




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of his Miranda advisement.7 None of these claims informed the
prosecution of the need to adduce greater detail as to how the
robbery suspects were identified in the mall and followed to
their vehicles.8 The suppression hearing, which concerned the
suppression motions of four then codefendants, spanned nine
days and consumes much of the first nine volumes of the
reporter’s transcript. Had Travis asserted below that his
detention lacked reasonable suspicion because of the absence of
evidence of how the security guard initially identified the
suspects in the mall, the prosecutor would have been on notice
to adduce additional testimony more fully describing this event.
(See Williams, at p. 130 [“if defendants detect a critical gap in
the prosecution’s proof or a flaw in its legal analysis, they must
object on that basis to admission of the evidence or risk forfeiting
the issue on appeal”].)
       The claim is also meritless. “[T]he Fourth Amendment
permits an officer to initiate a brief investigative traffic stop
when he has ‘a particularized and objective basis for suspecting
the particular person stopped of criminal activity.’ [Citations.]
‘Although a mere “hunch” does not create reasonable suspicion,
the level of suspicion the standard requires is considerably less
than proof of wrongdoing by a preponderance of the evidence,
and obviously less than is necessary for probable cause.’


7
      Travis also contended that the search of his car was
“beyond the scope of [his] consent, and/or said consent was
unlawful and/or withdrawn.” His supporting memorandum
does not discuss this claim, which appears to arise from events
after his vehicle was impounded.
8
      Although Silveria challenged his arrest, his counsel
expressly stated that he had “no quarrel with anything Officer
Sellman did” before the arrest including his stop of the vehicles.

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[Citations.] [¶] Because it is a ‘less demanding’ standard,
‘reasonable suspicion can be established with information that
is different in quantity or content than that required to establish
probable cause.’ [Citation.] The standard ‘depends on the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.’
[Citation.]     Courts ‘cannot reasonably demand scientific
certainty . . . where none exists.’ [Citation.] Rather, they must
permit officers to make ‘commonsense judgments and inferences
about human behavior.’ ” (Kansas v. Glover (2020) __ U.S. __,
__ [140 S.Ct. 1183, 1187–1188].)
        Here, a person to whom Officer Hyland had spoken in
person the day before called 911, identified himself, and said
that the stun gun robbery suspects, including “Matt” and “Troy,”
were at a specific location within the Oakridge Mall. Critically,
at the time Officer Hyland received the dispatch about this call,
he already had probable cause to arrest Jennings and Rackley
for the Quik Stop Market stun gun robbery because both of these
men had been positively identified as perpetrators. Thus, unlike
cases such as Navarette v. California (2014) 572 U.S. 393
(Navarette), in which the reliability of the informant’s 911 report
that a crime had occurred was in question, here Officer Hyland
knew the stun gun robberies had occurred and also knew the
names of at least two persons who had been identified as
perpetrators in one of the crimes and implicated in the other.
He also had the names of three other men who were alleged to
be involved in the robberies. (Compare Navarette, at p. 404
[“Under the totality of the circumstances, we find the indicia of
reliability in this case sufficient to provide the officer with
reasonable suspicion that the driver of the reported vehicle had
run another vehicle off the road,” making it reasonable “for the

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                 PEOPLE v. SILVERIA and TRAVIS
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officer to execute a traffic stop”].) The only question here was
whether the informant was correctly reporting the location of
these individuals.
       Moreover, “a caller’s personal knowledge,” shown here by
the informant’s knowledge of the suspects’ names, current
location, and apparel, “ ‘lends significant support to the tip’s
reliability.’ ” (People v. Brown (2015) 61 Cal.4th 968, 981,
quoting Navarette, supra, 572 U.S. at p. 399.) “[T]he caller’s
report was contemporaneous, a factor that ‘has long been
treated as especially reliable.’ ” (Ibid.) In addition, the caller
identified himself and appears to have given his phone number
and described what he was wearing, circumstances that
enhanced his credibility. (Id., at p. 982 [“private citizens who
report criminal activity generally have no bias or motive other
than good citizenship, and therefore tend to be reliable”].) His
“use of the 911 emergency system” is a further “indicator of
veracity” because the recording and tracing features of that
system “provide some safeguards against making false reports
with immunity.” (Navarette, at p. 400; see Brown, at p. 982.)
Based on the informant’s report, a security guard was able to
locate the suspects and follow them to their vehicles, which were
then described to police and broadcast to responding officers.
Sergeant Sellman observed two vehicles matching this
description, and further observed that one vehicle was closely
following the other, and assisted Officer Brandt in stopping the
vehicles. “An officer may arrest or detain a suspect ‘based on
information received through “official channels.” ’ ” (Brown, at
p. 983.) The totality of these circumstances was sufficient to
create a reasonable suspicion that the persons in the vehicles
were stun gun robbery suspects and to detain them.



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                  PEOPLE v. SILVERIA and TRAVIS
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                 (2) Probable cause to arrest
      Travis contends that there was no probable cause to arrest
him other than on a misdemeanor warrant. However, the
outstanding misdemeanor warrant was a sufficient basis for
Travis’s arrest. (§ 836, subd. (a) [“A peace officer may arrest a
person in obedience to a warrant . . . .”]; Utah v. Strieff (2016) __
U.S. __, __ [136 S.Ct. 2056, 2062] [once the officer discovered the
arrest warrant, he had an obligation to arrest the defendant].)
      Moreover, probable cause existed to arrest Travis for the
stun gun robberies. (Maryland v. Pringle (2003) 540 U.S. 366,
370 [“A warrantless arrest of an individual in a public place for
a felony . . . is consistent with the Fourth Amendment if the
arrest is supported by probable cause”].) “To determine whether
an officer had probable cause to arrest an individual, we
examine the events leading up to the arrest, and then decide
‘whether these historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to’ probable cause.”
(Id. at p. 371.) An arrest remains lawful under the Fourth
Amendment even when the “criminal offense for which there is
probable cause to arrest” is different from the “offense stated by
the arresting officer at the time of arrest.” (Davenpeck v. Alford
(2004) 543 U.S. 146, 148, 153; see id. at p. 155 [“Those are
lawfully arrested whom the facts known to the arresting officers
give probable cause to arrest”].)
      Here, as noted, Officer Hyland had probable cause to
arrest Troy Rackley for the Quik Stop Market stun gun robbery
because he had been positively identified as a perpetrator by the
victim. Moreover, we have previously concluded based on the
same evidentiary hearing on which we rely here that informant
Cynthia’s January 28 report to Detective Boyles — which
included information that “Danny” Silveria, “John,” “Matt”

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Jennings, and “Chris” were perpetrators of the stun gun
robberies, and that “Troy” also associated with that group —
was reasonably corroborated.          (People v. Spencer (2018)
5 Cal.5th 642, 664–666 (Spencer).) This information about the
four alleged perpetrators was broadcast to all police units on
January 28. In addition, on January 29, a different informant,
whose identity was known to Officer Hyland, told 911 that stun
gun robbery suspects, including “Troy,” were at the Oakridge
Mall. This information, along with (1) the presence of Travis
driving a car at the Oakridge Mall in which Troy Rackley was a
passenger, and in which a large amount of cash in one fanny
pack and rolled coins in a different fanny pack was found, and
(2) the circumstance that Travis’s car was closely followed by a
car driven by Silveria that was found to contain a stun gun, the
weapon used in the January 24, 1991 robberies, would likely
persuade an objectively reasonable police officer that Travis had
committed the felony of robbery. (See Maryland v. Pringle,
supra, 540 U.S. at pp. 371–372 [given that the defendant was
one of three men riding in a car in the early morning, $763 of
rolled-up cash was in the glove compartment directly in front of
the defendant, and baggies of cocaine were behind the backseat
armrest and accessible to all three men, and none of the three
men offered any ownership information with respect to the
cocaine or money, it was “an entirely reasonable inference from
these facts that any or all three of the occupants had knowledge
of, and exercised dominion and control over, the cocaine,” and
thus “a reasonable officer could conclude that there was




                                 48
                  PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


probable cause to believe [the defendant] committed the crime
of possession of cocaine, either solely or jointly”].)9
                 (3) Search of Travis’s vehicle
       Travis asserts that the warrantless search of his vehicle was
controlled by Arizona v. Gant (2009) 556 U.S. 332, and was not
justified under that standard. We disagree.
       At the time of Travis’s 1991 arrest, prevailing United
States Supreme Court law held that “when a policeman has
made a lawful custodial arrest of the occupant of an automobile,
he may, as a contemporaneous incident of that arrest, search the
passenger compartment of that automobile” and any closed
containers found within that space. (New York v. Belton (1981)
453 U.S. 454, 455, 460–461.) Travis does not argue that the
search of his vehicle was invalid under Belton. Rather, he
asserts this case is controlled by Arizona v. Gant, supra,
556 U.S. at pages 343, 351, in which the high court revisited
Belton, and held that a warrantless search incident to the lawful
arrest of a recent occupant is justified only (1) “when the
arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search,” or (2) “when
it is ‘reasonable to believe evidence relevant to the crime of
arrest might be found in the vehicle.’ ” The 1991 search here
was after Belton and before Gant. “[S]earches conducted in


      9
         Because we conclude there was probable cause to arrest
Travis for robbery, we need not address Travis’s argument that
because there was no probable cause to arrest him for robbery,
and he was not provided an opportunity to post bail on his arrest
for the misdemeanor traffic warrant, his subsequent statements
to police should have been suppressed.


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objectively reasonable reliance on binding appellate precedent
are not subject to the exclusionary rule.” (Davis v. United States
(2011) 564 U.S. 229, 232; see id. at pp. 239–240 [searches
conducted after Belton and before Gant, and in compliance with
Belton, are not subject to the exclusionary rule].)
      In sum, the trial court properly denied the motion to
suppress.
         2. Asserted Denial of Hardship Request
      Travis contends that the trial court erroneously denied
Alternate Juror No. 1’s hardship request. We reject the claim.
      After Travis’s jury and alternate jurors were sworn, and
before opening statements, two jurors, including Juror No. 6,
were discharged, and Travis and the prosecutor stipulated to
reopen jury selection to choose two additional alternates.10
Travis’s remaining jury was called to the courtroom, and the
court explained these developments. The court then asked:
“Everybody’s employer knows that you’re here eight months?
Nobody is going to have a problem with that?” Juror No. 12
asked what would happen if she were laid off during trial and
described her work situation. At sidebar, the court gave counsel
the opportunity to stipulate to her removal, which they declined.




10
      We have held that the trial court lacks discretion to reopen
 jury selection after the jury has been sworn. (People v. Cottle
 (2006) 39 Cal.4th 246, 249.) No challenge is raised on appeal
 to this procedure. Rather Travis simply challenges the seating
 of Alternate Juror No. 1 for a discharged juror, a procedure
 that was consistent with that described by Penal Code
 section 1089 and Code of Civil Procedure sections 233 and 234.


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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


The court told Juror No. 12 her situation was too speculative to
warrant her removal.
       Alternate Juror No. 1, an engineer, informed the court
that his employer had determined the project on which he was
working was “expected to take additional time and will require
that I keep working on it” because there was insufficient time to
train someone else. He observed “[e]ngineers usually work
between 80 to 100 hours a week,” and that “during this time of
the project . . . that means I will be working 50 hours outside of
the courtroom, if there’s a concern for attentiveness on the time
off in the courtroom based on that information.” In response to
the court’s inquiry, he identified his company, and explained he
would be working on Monday through Sunday from 6:00 p.m. to
1:00 a.m. until the project was done. He was not asked how long
the project was expected to last before completion.
       Travis did not request that the court ask Alternate Juror
No. 1 further questions, or seek his removal. Shortly thereafter,
Alternate Juror No. 1 was selected, without objection, to replace
Juror No. 6.
       This claim is therefore forfeited on appeal. (People v.
Rangel (2016) 62 Cal.4th 1192, 1212 (Rangel) [the defendant did
not move for the juror’s discharge and the claim is therefore
forfeited on appeal].) Although in response to the court’s inquiry
Alternate Juror No. 1 described a development in his schedule,
he did not request that he be discharged. Nor, although counsel
had just met at sidebar regarding a different juror and had been
offered the opportunity to stipulate to her removal, did Travis
seek to have Alternate Juror No. 1 discharged after his new
schedule was revealed, or object to the trial court later seating
him in the place of Juror No. 6.



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                 PEOPLE v. SILVERIA and TRAVIS
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         3. Instructional Error
      Silveria contends the trial court erred in instructing the
jury on first degree murder because the indictment, which
charged him with murder in violation of section 187, only
charged him with second degree murder. We have repeatedly
rejected substantially similar claims, and Silveria cites no
persuasive reason to revisit our conclusions. (People v. Ghobrial
(2018) 5 Cal.5th 250, 284–285; People v. Contreras (2013) 58
Cal.4th 123, 147–148.) Nor, as Silveria further contends, was
greater specificity in pleading required under Apprendi v. New
Jersey (2000) 530 U.S. 466. (Ghobrial, at p. 285; Contreras, at
pp. 148–149.)
      B. Penalty Retrial Issues
         1. Joint Penalty Retrial
      As noted, both penalty juries deadlocked, and defendants
were retried before a single penalty jury. Defendants contend
the trial court erroneously denied their severance motions
seeking separate penalty retrials.11 We conclude there was no
abuse of discretion in denying defendants’ severance motions,
nor did any gross unfairness occur as a result of the joint penalty
retrial.
             a. Factual background
     In support of their penalty retrial severance motions,
defendants called two expert witnesses. Justice Charles
Campbell, who sat as a visiting judge on the Texas trial and



11
      Defendants also sought separate juries, and to the extent
they raise that claim on appeal, we reject it for the same reasons
we conclude that the trial court did not abuse its discretion in
denying defendants’ motions for separate penalty retrials.

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intermediate appellate courts, and who had previously served
as a justice on the Texas Court of Criminal Appeals and as a
Texas prosecutor, testified as an expert on capital cases. Justice
Campbell stated it was common Texas practice to try each
defendant in a capital case separately. In his view severance
was necessary for each defendant to receive the jury’s individual
consideration, and either severance or separate juries “avoid[ed]
the pitfalls” he had “noticed in the Supreme Court
jurisprudence,” and were preferable to a limiting instruction to
separately consider the defendants. Justice Campbell opined
that if two defendants were equally culpable for a heinous crime,
but one had heinous post-arrest “activity,” it would be more
difficult for the jury to draw a distinction between the two
defendants because the potential “spillover effect . . . is pretty
great.”
       Charles Gessler, who had worked as a Los Angeles County
deputy public defender for 31 years, testified as an expert on
severance and on capital case defense tactics. He opined it was
“more difficult for two defendants . . . joined together to get a
fair and individualized determination by the jury than it is for
an individual single defendant.” He was also of the view that “if
the culpability is about equal in the crime,” and if the jury is
“going to give death to one [defendant], it is very likely that they
would then give death to the other [defendant] even if the
aggravation and mitigation is different because the crime is the
thing that they are most interested in.” When the mitigating
evidence is similar, it “loses all individuality” and is viewed by
the jury as a “standard defense ploy.” In his view, if two
defendants remain friends in jail although one defendant
misbehaves, jurors will view the continuing friendship as
evidence that this misbehavior is condoned. Moreover, if both

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defendants have a religious conversion, and there is evidence of
hypocrisy by one defendant, “it would take the other person
down with him.” Gessler also believed it was difficult for some
jurors to distinguish which mitigating and aggravating evidence
applied to which defendant. In his view, no two capital
defendants should be tried jointly before the same penalty jury,
and the facts in this case “enhance the likelihood” of unfair jury
verdicts.
      The trial court denied the severance motions, and noted in
so doing that it had found unpersuasive the expert testimony.
It stated: “The Court believes that it is capable of properly
instructing the jury and is capable of ensuring a fair jury, who
will follow the Court’s instructions, will be chosen. . . . [T]he
Court believes that properly instructed jurors will give each
defendant their individualized attention.”
             b. Analysis
      Section 1098 states in relevant part: “When two or more
defendants are jointly charged with any public offense, whether
felony or misdemeanor, they must be tried jointly, unless the
court order separate trials.” This section illustrates the
Legislature’s “strong preference for joint trials,” including joint
penalty phase trials. (People v. Wimbush (2017) 2 Cal.5th 402,
455; see id.at pp. 457–458; People v. Ervin (2000) 22 Cal.4th 48,
96 [penalty phase severance motion].) “Joint proceedings are
not only permissible but are often preferable” when, as here, the
“defendants’ criminal conduct arises out of a single chain of
events. Joint trial may enable a jury ‘to arrive more reliably at
its conclusions regarding the guilt or innocence of a particular
defendant and to assign fairly the respective responsibilities of
each defendant in the sentencing,’ ” and conserves judicial
resources. (Kansas v. Carr (2016) 577 U.S. __, __ [136 S.Ct. 633,
                                 54
                  PEOPLE v. SILVERIA and TRAVIS
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645].) “We review a trial court’s denial of a severance motion for
abuse of discretion based on the facts as they appeared at the
time the court ruled on the motion.” (People v. Avila (2006)
38 Cal.4th 491, 575.) “[E]ven if a trial court acted within its
discretion in denying severance, ‘ “the reviewing court may
nevertheless reverse a conviction where, because of the
consolidation, a gross unfairness has occurred such as to deprive
the defendant of a fair trial or due process of law.” ’ ” (People v.
Thompson (2016) 1 Cal.5th 1043, 1079 (Thompson).)
      Silveria contends that section 1098 does not apply here
because defendants were not “jointly charged” within the
meaning of that section, but rather separate juries adjudicated
their guilt and then deadlocked on penalty. There was one
indictment jointly charging both defendants. The fact that
separate juries adjudicated their guilt and deadlocked on
penalty does not alter the fact that they remained jointly
charged. “The use of dual juries is a permissible means to avoid
the necessity for complete severance. The procedure facilitates
the Legislature’s statutorily established preference for joint trial
of defendants and offers an alternative to severance when
evidence to be offered is not admissible against all defendants.
(§ 1098; People v. Harris (1989) 47 Cal.3d 1047, 1075.)” (People
v. Cummings (1993) 4 Cal.4th 1233, 1287; see § 190.4,
subds. (b), (c), (e).) As the court stated in its pretrial ruling
severing the trial of defendants from that of Spencer and
Jennings: “By this ruling, the Court is not ordering four
separate trials. The Court is hereby ordering two trials — two
defendants in each trial. Each trial will have two separate juries
and therefore, each defendant will have a separate jury.”
      Travis contends, based on the expert testimony at the
severance motion hearing, that the trial court abused its

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                  PEOPLE v. SILVERIA and TRAVIS
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discretion in denying his motion because the jury was unable to
make an individualized sentencing determination regarding
Travis and Silveria. We have recently rejected “similar
empirical evidence,” concluding it does not “rebut the
presumption that jurors are presumed to understand and accept
the court’s instructions.” (People v. Erskine (2019) 7 Cal.5th
279, 301 (Erskine).) Moreover, Travis’s argument has been
largely foreclosed by the high court’s 2016 conclusion that joint
penalty trials do not violate the Eighth Amendment right to an
individualized sentencing determination, and that limiting
instructions such as those given here “ ‘often will suffice to cure
any risk of prejudice.’ ” (Kansas v. Carr, supra, 577 U.S. at p. __
[136 S.Ct. at p. 645].) Nor, in particular, did the circumstance
that Travis and Silveria both relied on Reverend Charon to
testify regarding their religious conversion preclude an
individualized sentencing determination.           The fact that
defendants were housed in the same county jail, and that jails
may not employ numerous ministers, is one that would be easily
understood by the jurors.
       Travis asserts that the trial court acknowledged the jury
would not be capable of following its admonitions regarding
severance because it had previously denied his motion to allow
a former juror and former alternate juror from the first penalty
phase to testify at the penalty retrial. He asserts that if the jury
could not follow instructions regarding the testimony of a former
juror and alternate juror, then it could not follow instructions to
individually assess each defendant’s appropriate sentence. But
Travis’s comparison of the severance issue to the issue regarding
testimony by former jurors is inapt: As we observe below, the
trial court was reasonably concerned testimony by the former
juror and alternate risked confusing the penalty retrial jury as

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                 PEOPLE v. SILVERIA and TRAVIS
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to its task, and opened the possibility that “the [prosecutor]
could then call death voting jurors in rebuttal.” (Post, at
pt. II.B.5.a.2.) Travis does not explain what admonition would
alleviate these concerns.
      Nor did events at the joint penalty retrial cause such gross
unfairness to defendants as to deprive them of a fair trial or due
process of law. (Thompson, supra, 1 Cal.5th at p. 1079.)
Silveria contends “there was a substantial risk that the single
jury’s penalty determination against Travis could improperly
influence its penalty decision regarding” Silveria. Silveria
contends that such prejudice was demonstrated by evidence that
Travis, unlike Silveria, stabbed Madden repeatedly, and by
evidence introduced only against Travis, such as Travis’s plan
to escape from jail, and his letter to a Manson family member
describing how Travis “enjoyed every moment” of stabbing
Madden.12
      “In Kansas v. Carr, supra, 577 U.S. at p. __ [136 S.Ct. at
p. 644], the high court rejected a similar claim.[13] Carr involved
two defendants who were brothers. (Id. at p. __ [136 S.Ct. at
p. 637].) The older brother claimed he was prejudiced at their


12
       Silveria also contends that the joint penalty retrial
allowed the jury to consider evidence of Travis’s willingness to
kill a jail guard during the planned escape, but we see no such
testimony in the cited portion of the record. Rather, Travis
replied, “No” when asked if there was “ever any plan to harm”
the correctional guard for the area where the escape had been
planned to occur, and that Travis only learned long after the
escape plan had been thwarted that there had been a plan to
harm the officer.
13
       This discussion of Kansas v. Carr is drawn from our recent
discussion of a similar claim in People v. Beck and Cruz (2019)
8 Cal.5th 548, 600 (Beck and Cruz).

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joint penalty trial ‘by his brother’s portrayal of him as the
corrupting older brother,’ and by his brother’s cross-
examination of their sister, who equivocated about whether the
older brother had admitted to her he was the shooter. (Id. at
p. __ [136 S.Ct. at p. 644].) The younger brother claimed that
‘he was prejudiced by evidence associating him with his
dangerous older brother, which caused the jury to perceive him
as an incurable sociopath,’ and by the jury’s observation of his
older brother in handcuffs. (Id. at p. __ [136 S.Ct. at p. 644; see
id. at p. __ [136 S.Ct. at p. 644, fn. 4].)
       “The high court held that joint capital sentencing
proceedings do not violate the Eighth Amendment right to an
individualized sentencing determination. (Kansas v. Carr,
supra, 577 U.S. at p. __ [136 S.Ct. at p. 644].) Although the due
process clause protects defendants against unduly prejudicial
evidence that would render a trial fundamentally unfair, that
standard was not met by the ‘mere admission of evidence that
might not otherwise have been admitted in a severed
proceeding.’ (Id. at p. __ [136 S.Ct. at pp. 644–645].) The high
court observed that the trial court had instructed the jury that
it must give ‘ “separate consideration to each defendant” ’ and
that evidence admitted as to one defendant should not be
considered as to the other defendant. (Id. at p. __ [136 S.Ct. at
p. 645].) The high court presumed that the jury followed these
instructions, while observing such limiting instructions ‘ “often
will suffice to cure any risk of prejudice.” ’ (Ibid.) Moreover, the
high court concluded that the penalty verdicts were not a result
of the challenged penalty evidence against one brother or the
other, but of the guilt phase evidence of ‘acts of almost
inconceivable cruelty and depravity.’ (Id. at p. __ [136 S.Ct. at
p. 646].)” (Beck and Cruz, supra, 8 Cal.5th at p. 600.)

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       Likewise here, the trial court instructed the jury during
the prosecutor’s case-in-chief that evidence regarding Travis’s
letter to Watson “is limited to Mr. Travis only.” At the end of
the penalty phase, the court instructed the jury: “In this penalty
trial of defendants Travis and Silveria, you must consider the
penalty verdicts entirely separately for each of the two
defendants. While you may consider the parts played by each of
the two defendants in the murder and compare it to the part
played by the other defendant, you absolutely may not
determine a verdict for either of the defendants in terms of the
verdict rendered to the other defendant. In other words, you
may not allow your verdict as to one defendant to [a]ffect your
verdict as to the other defendant. You must endeavor to reach
separate verdicts as to each defendant in accordance with the
aggravating and mitigating circumstances applicable to that
defendant only, and in accordance with the rest of these
instructions.” It further instructed the jury as to evidence of
Travis’s escape preparations that “[u]nder no circumstances
may you discuss or consider this evidence in any way as to Mr.
Silveria.” We presume it understood and followed these
instructions.14 (People v. Hajek and Vo (2014) 58 Cal.4th 1144,
1178 (Hajek and Vo).)
      In sum, defendants fail to demonstrate that the trial court
abused its discretion in denying defendants’ severance motions,
or that gross unfairness occurred as a result of the joint penalty
retrial.


     14
          Silveria further contends that the denial of his
severance motion precluded him from introducing mitigating
evidence in his statement to police. We address and reject that
claim in part II.B.5.c.

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         2. Excusals for Cause
       Silveria contends that the trial court wrongfully excused
for cause Prospective Juror No. J-56 based on his death penalty
views. Silveria and Travis contend that the trial court
wrongfully excused for cause Prospective Juror Nos. E-45 and
F-77 on this same basis. We reject the claim.
       A trial court should only dismiss a prospective juror for
cause if the prospective juror’s views on the death penalty would
“ ‘prevent or substantially impair’ ” that person from performing
the duties of a juror. (People v. Caro (2019) 7 Cal.5th 463, 481.)
We review the trial court’s sustaining of a challenge to a
prospective juror based on views about the death penalty for
substantial evidence. (Beck and Cruz, supra, 8 Cal.5th at
p. 607; Caro, at p. 481.)
       We consider each of the challenged excusals under these
standards.
             a. Prospective Juror No. J-56
      On his questionnaire, when asked if he had any “beliefs
that would affect in some way [his] ability or willingness to serve
as a juror in this case,” Prospective Juror No. J-56 answered,
“Yes,” explaining, “I would have a difficult time saying that
another human being should be put to death.” When asked if
there was “anything about the nature of this case that would
make it difficult or impossible for [him] to be a fair and impartial
juror,” he answered, “Yes,” explaining, “I do not think that I
could assign the death penalty to someone.” When asked his
general feelings about the death penalty, he again answered: “I
do not think that I could award the death penalty to someone.
A person should not take another person’s life.” When asked
under what circumstances he believed the death penalty was
appropriate, he answered, “I cannot think of any circumstance
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that the death penalty is appropriate.” When asked if he felt
“the death penalty should never be imposed for murder,” he
answered, “No,” explaining, “There might be some combination
that might lead me to believe that the death penalty is
warranted. At the moment, I cannot think of one, and hope that
I never do.” J-56 answered “Yes” when asked if he could follow
instructions to consider “all of the circumstances surrounding
the crime” and “concerning the defendant and his background”
before deciding on the penalty, but when asked what he would
“want to know about a defendant before deciding” on penalty, he
answered, “This is hard to explain since I cannot see myself ever
awarding the death penalty,” before giving examples of desired
information. He answered “No” when asked if he could set aside
his own personal feelings and follow the law, explaining: “[I]t
would be hard to keep my feelings about sentencing another
person to death from my final analysis (and yet follow[] the law
as it was explained).” He answered “Yes” when asked if he had
any home or work problems “that might interfere with [his]
ability to concentrate during this trial,” noting in part “the
expected stress of knowing that I am part of the decision process
for awarding [the] death penalty.”
      Before voir dire, the trial court explained to the
prospective jurors, including Prospective Juror No. J-56, that
the defendants had been found guilty of a murder that was not
necessarily premeditated and that two special circumstances
had been found true. It also identified the two possible penalties
and the factors that the jury could consider in determining
which penalty to choose, defined mitigating and aggravating
evidence, described the weighing process, and explained that “to
return a judgment of death, each of you must be persuaded that
the aggravating circumstances are so substantial in comparison

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with the mitigating circumstances that it warrants death
instead of life without the possibility of parole.”15
      On voir dire, Prospective Juror No. J-56 stated he would
keep an open mind, listen to all of the evidence, and would not
automatically vote for either penalty. When discussing his
questionnaire, J-56 reiterated that he did not believe “somebody
should be able to take somebody else’s life.” He added, “I think
I also mentioned in there that there might be a situation where
I think a death penalty would be — or somebody’s life could be
taken, but I can’t think of any offhand.” The court explained
that under California law there was no presumption as to which
penalty was appropriate and described the circumstances under
which a juror could vote for the death penalty. It then asked, “If
your personal beliefs or feelings were to be in conflict with the
California law, do you think you’d be able to set aside your
personal beliefs and feelings for this particular trial for this
purpose, or do you think that’s something you couldn’t do?” J-
56 replied, “I think it would be very hard for me to do.”
       In response to questioning by defense counsel, Prospective
Juror No. J-56 explained that he could follow “the guidelines
that the judge sets up for aggravated and mitigated . . . and
come to a conclusion based on those. But even once I come to
that conclusion, if it happens to be death, I would still have a
hard time.” In response to further questioning he said he would
be capable of voting for the death penalty, adding, “But, like I
said, it would be very hard for me to then go through with it and
to cause another person to die because of the result.” In
response to questioning by the prosecutor, J-56 described

15
      Similar opening instructions were given before the voir
dire of Prospective Juror Nos. E-45 and F-77.

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himself as a “person who’s reluctant to award the death penalty
even though he . . . might decide that the facts and the
guidelines are met.”
      The prosecutor challenged Prospective Juror No. J-56 for
cause and trial court sustained the challenge, stating that “the
juror could not tell us that . . . he was willing to temporarily set
aside his own personal views. It would be difficult, but he didn’t
say he could do that and that is consistent with his answers in
the questionnaire. . . [T]he Court finds that he is substantially
impaired.”
       No error appears in excusing Prospective Juror No. J-56
for cause. Although he expressed a willingness to consider all of
the evidence, keep an open mind, and follow the instructions, he
also expressed concern he would not be a fair and impartial juror
because of his views on the death penalty, and observed that he
would find it difficult to vote for the death penalty even if he
determined it was the appropriate verdict.                  On his
questionnaire, J-56 answered “No” when asked if he could set
aside his own personal feelings and follow the law, explaining:
“[I]t would be hard to keep my feelings about sentencing another
person to death from my final analysis (and yet follow[] the law
as it was explained).” On voir dire he was asked, “If your
personal beliefs or feelings were to be in conflict with the
California law, do you think you’d be able to set aside your
personal beliefs and feelings for this particular trial for this
purpose, or do you think that’s something you couldn’t do?” He
replied, “I think it would be very hard for me to do.” He
described himself as a “person who’s reluctant to award the
death penalty even though he . . . might decide that the facts
and the guidelines are met.” Substantial evidence supports the
trial court’s finding that J-56’s ability to follow the law would be
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substantially impaired. (See People v. Wall (2017) 3 Cal.5th
1048, 1063 [upholding excusal of a prospective juror who
“repeatedly expressed uncertainty not as to her own views on
the death penalty or the appropriateness of the death penalty in
any particular case, but as to her ability to impose a death
sentence”]; People v. Duenas (2012) 55 Cal.4th 1, 12 [“Comments
that a prospective juror would have a ‘hard time’ or find it ‘very
difficult’ to vote for death reflect ‘a degree of equivocation’ that,
considered ‘with the juror’s . . . demeanor, can justify a trial
court’s conclusion . . . that the juror’s views would “ ‘prevent or
substantially impair the performance of his duties as a
juror . . . .’ ” ’ ”].)
     Moreover, the trial court was in a position, which we are
not, to observe Prospective Juror No. J-56 as he gave his
responses. (Uttecht v. Brown (2007) 551 U.S. 1, 9 [“Deference to
the trial court is appropriate because it is in a position to assess
the demeanor of the venire, and of the individuals who compose
it, a factor of critical importance in assessing the attitude and
qualifications of potential jurors”].) Although Silveria asserts
no deference should be accorded because the court did not
expressly state that it had granted the challenge for cause
because of J-56’s observed demeanor, the court unquestionably
weighed the prospective juror’s credibility and qualification to
serve in its thorough voir dire questioning and in relying on that
voir dire to sustain the challenge. (See People v. Flores (2020)
9 Cal.5th 371, 388 (Flores) [“The trial court was in the best
position to observe [prospective juror] S.M.’s demeanor, vocal
inflection, and other cues not readily apparent on the record,
and we reasonably infer that the trial court based its decision
not only on what S.M. said, but also on how he said it”]; People v.
Stewart (2004) 33 Cal.4th 425, 451 (Stewart) [“a trial judge who

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observes and speaks with a prospective juror and hears that
person’s responses (noting, among other things, the person’s
tone of voice, apparent level of confidence, and demeanor),
gleans valuable information that simply does not appear on the
record”]; see also People v. Wilson (2008) 44 Cal.4th 758, 835
(Wilson) [“In evaluating the testimony of the 12 jurors, the trial
court necessarily had to assess their credibility”].)
      Substantial evidence supports the court’s ruling.
             b. Prospective Juror No. E-45
       On his questionnaire, in response to the question, “Is there
anything about the nature of this case that would make it
difficult or impossible for you to be a fair and impartial juror
here,” Prospective Juror No. E-45 answered “Yes,” and wrote,
“[M]y views on the death penalty.” When responding to a
question about his “general feelings regarding the death
penalty,” E-45 wrote, “I do not believe that the death penalty is
a deterr[e]nt to murder. I am not sure if we have the right to
take a life for a life.” He was “strongly against” the death
penalty because he did not believe it “does anything to stop a
crime and that being incarcerated for life is penalty enough.”
When asked whether his views about the death penalty had
changed substantially in the last few years, he answered, “Yes,”
explaining, “I find myself thinking there ‘may’ be special cases
where it should be considered.” He answered, “Yes” when asked
if he adhered to “any religious or philosophical principle that
would affect [his] ability to vote for the death penalty as a
judgment in this case,” explaining, “I don’t believe ‘we’ should
play God.” E-45 also answered, “Yes” when asked if he would
always vote for life imprisonment without the possibility of
parole and reject death, “regardless of the evidence presented”
at the penalty retrial, explaining, “I don’t believe that the death
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                 PEOPLE v. SILVERIA and TRAVIS
                  Opinion of the Court by Groban, J.


penalty is the appropriate punishment.” When asked “[u]nder
what circumstances, if any,” he believed “that the death penalty
is appropriate,” he answered, “It would have to be for someone
who is the epitome of evil.” When asked if he could see himself,
“in the appropriate case . . . choosing the death penalty,” he
answered, “No,” explaining, “I cannot at this time but if give[n]
clear cases where it should be applied, I might be able to
consider it.”
       On voir dire, the trial court asked Prospective Juror No. E-
45, “[W]hen you initially went back there to deliberate, do you
think you would be able to go back there with both penalties as
possibilities?” E-45 replied, “Yes — well, I guess on the death
penalty I have some issues with that, but I think I could look at
what the law requires and — ” The court asked, “Would you
automatically be closed off as to one penalty when you initially
went back there?” E-45 replied, “It’s hard to say. Right now,
yes, but I haven’t seen . . . the evidence, the circumstances.” The
court said, “From reading your questionnaire, I gather that you
do not favor the death penalty, necessarily?” E-45 answered,
“Right.” The court asked: “You would have more favor toward
life without parole. What we want to make sure of is that jurors
are not closed off to either penalty, that they actually could
conscientiously consider both penalties as possibilities, again,
without knowing anything about the facts of the case.” E-
45 said: “[P]robably the death penalty would be harder. I guess
I would need to see more evidence than for the life in prison. So
they’re not equally balanced.” The court subsequently asked:
“Assume that the evidence in this case showed that the
defendants had deliberately participated in the multiple
stabbing of the victim in this case during the course of a robbery
and the victim died. . . . [B]ased on that assumption: Do you

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think that you would always vote for life without parole and
reject the death penalty despite any aggravating evidence that
may be presented during the course of the trial?” E-45 replied,
“Yes, I think I would vote for life without parole, right.” The
court asked, “Do you think you would ever vote for death based
on that assumption?” E-45 said, “Probably not at this point, no.”
      The prosecutor challenged Prospective Juror No. E-45 for
cause. The court continued voir dire, asking E-45, “Going back
to that assumption, the multiple stabbing during a robbery, the
victim died and so on. In a situation like that, could you even
consider the death penalty?” E-45 replied: “Personally, no. But
I guess if I were instructed as far as what the law should be,
then I might have to look at . . . changing my beliefs a little bit.
I guess I could consider the death penalty.” The court
subsequently explained that California law “expresses no
preference for either penalty. There is no presumption as to
which penalty is appropriate in this case.” After further
colloquy it asked, “[D]o you think that the death penalty could
be appropriate in a case such as this, without knowing anything
about the case, other than that one assumption?” E-45 replied,
“I guess, just with that one assumption, probably not
appropriate.” The court dismissed E-45, finding that he “is in
fact substantially impaired because of his views on the death
penalty and it would prevent him from fulfilling his role as a
juror according to his oath and the instructions.”
       No error appears in excusing Prospective Juror No. E-45
for cause. On his juror questionnaire he stated he was “strongly
against” the death penalty, and that he would always vote for
life imprisonment without the possibility of parole and reject
death, “regardless of the evidence presented” at the penalty
retrial. Although he believed the death penalty was appropriate
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for “someone who is the epitome of evil,” he said on voir dire it
was “probably not appropriate” for a stabbing death during a
robbery. Moreover, “the mere theoretical possibility that a
prospective juror might be able to reach a verdict of death in
some case does not necessarily render the dismissal of the juror”
erroneous. (People v. Martinez (2009) 47 Cal.4th 399, 432
(Martinez.)
      Travis asserts that Prospective Juror No. E-45 did not
“indicate he could never vote for” the death penalty.
Nonetheless, E-45’s “answers provided substantial evidence
that [he] could not fairly consider both sides.” (Thompson,
supra, 1 Cal.5th at p. 1075.) On his juror questionnaire, when
asked, “Is there anything about the nature of this case that
would make it difficult or impossible for you to be a fair and
impartial juror here,” E-45 answered “Yes,” and wrote, “[M]y
views on the death penalty.” He answered “Yes” when asked if
he adhered to “any religious or philosophical principle that
would affect [his] ability to vote for the death penalty as a
judgment in this case,” explaining, “I don’t believe ‘we’ should
play God.” E-45 also answered “Yes” when asked if he would
always vote for life imprisonment without the possibility of
parole and reject death, “regardless of the evidence presented”
at the penalty retrial, explaining, “I don’t believe that the death
penalty is the appropriate punishment.”
      On voir dire, the court asked Prospective Juror No. E-45:
“Assume that the evidence in this case showed that the
defendants had deliberately participated in the multiple
stabbing of the victim in this case during the course of a robbery
and the victim died. . . . [B]ased on that assumption: Do you
think that you would always vote for life without parole and
reject the death penalty despite any aggravating evidence that
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may be presented during the course of the trial?” (Italics added.)
E-45 replied, “Yes, I think I would vote for life without parole,
right.” The court asked, “Do you think you would ever vote for
death based on that assumption?” E-45 said, “Probably not at
this point, no.” The court subsequently asked, “[D]o you think
that the death penalty could be appropriate in a case such as
this, without knowing anything about the case, other than that
one assumption?” E-45 replied, “I guess, just with that one
assumption, probably not appropriate.”            This colloquy,
particularly Juror E-45’s response that he would always vote for
life without parole “despite any aggravating evidence that may
be presented,” provides substantial evidence to support the trial
court’s ruling.
      Moreover, “ ‘ “[t]here is no requirement that a prospective
juror’s bias against the death penalty be proven with
unmistakable clarity.” ’ ” (People v. Abilez (2007) 41 Cal.4th
472, 497.) As the high court has observed, many prospective
jurors “simply cannot be asked enough questions to reach the
point where their bias has been made ‘unmistakably clear’;
these [prospective jurors] may not know how they will react
when faced with imposing the death sentence, or may be unable
to articulate, or may wish to hide their true feelings. Despite
this lack of clarity in the printed record, however, there will be
situations where the trial judge is left with the definite
impression that a prospective juror would be unable to faithfully
and impartially apply the law.” (Wainwright v. Witt (1985)
469 U.S. 412, 424–426, fn. omitted (Witt).)
     Substantial evidence supports the trial court’s ruling.




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             c. Prospective Juror No. F-77
       On his questionnaire, when asked his general feelings
about the death penalty, Prospective Juror No. F-77 answered,
“Against it.” He answered “Yes” when asked if he held any
“religious or philosophical principle that would affect [his]
ability to vote for the death penalty as a judgment in this case,”
explaining, “The involuntary taking of another’s life is wrong.”
He answered “Yes” when asked if he had any beliefs that would
affect his ability or willingness to be a juror, explaining: “I
believe our [s]ociety might be better off without the Death
Penalty. As a moral matter I do not see that the State has a
right to take a life any more than an individual does. Some
States have made mistakes. I doubt if the Death Penalty deters
murder. I believe the existence of the Death Penalty gives a
sanction to murder in [s]ociety.” He answered “No” when asked
if he would always vote for life imprisonment “regardless of the
evidence presented,” explaining, “I am open to the evidence.”
When asked under what circumstances he believed the death
penalty was appropriate, he answered: “Hard to come up with
any. Death Penalty appears to be state-sanctioned murder.” He
answered “Yes” when asked if he believed “the death penalty
should never be imposed for murder.” He answered “No” when
asked if he could see himself rejecting life imprisonment and
choosing the death penalty, explaining, “Sitting here now I
cannot see it but I would always listen to other people’s points-
of-view.” He answered “Yes” when asked if he could set aside
any preconceived notions about each penalty and his personal
feelings and follow the law.
      On voir dire, in response to the court’s inquiry, Prospective
Juror No. F-77 said he would try to keep an open mind regarding
penalty until after he had heard all of the evidence, counsel’s

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arguments, and the instructions. After noting that F-77 had
said he was against the death penalty, the court asked if he
would be able to vote for that penalty if after hearing the
evidence and engaging in deliberation he thought it was
appropriate. F-77 replied: “I would want to keep an open mind
and I would listen to arguments. If my opinion on the matter is
wrong and I’m persuaded that it’s wrong, then I would change
my opinion.” When asked if he were “closed off” to the death
penalty, F-77 observed, “If somebody were to present me with
an argument that I found overwhelming and persuasive, then
my opinion would change.” He explained, “If I were persuaded
by another person’s argument that my position was wrong, then
I would change my position.” He identified Charles Manson,
whom he described as “a monstrous person with no feelings of
remorse,” as a person for whom the death penalty might be
appropriate “if one was going to make an exception and say one
should have the death penalty.” In response to the prosecutor’s
inquiry, F-77 affirmed that he considered the death penalty to
be state sanctioned murder. The prosecutor subsequently asked
F-77, “[I]t sounds like you already have a position that you
would have to be talked out of; is that fair?” He replied, “I would
want to listen to all the evidence and I would want to listen to
how that evidence had impacted other people and I would see
whether my position was wrong.”
      The prosecutor challenged Prospective Juror No. F-77 for
cause, and the trial court sustained the challenge, stating:
“[T]he Court finds that the juror is substantially impaired. He
has a position and his position is that he would have to be
convinced otherwise. He is not here with an open mind. And
the Court finds that his attitudes and answers and feelings
would make it impossible or at least substantially impair him

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from being a juror in this case and properly acting as a juror in
accordance with the law and his oath.”
      Travis contends that “the trial court erroneously believed
that an acknowledged aversion to the death penalty
automatically disqualified” Prospective Juror No. F-77. As can
be seen, the record is otherwise and supports the trial court’s
finding that F-77 would not fairly consider both penalties.
Although he answered “Yes” when asked on his questionnaire if
he could set aside any preconceived notions about each penalty
and his personal feelings and follow the law, and said on voir
dire he would try to keep an open mind regarding penalty until
after he had heard all of the evidence, counsels’ arguments, and
the instructions, F-77 made other statements that provided
substantial evidence to support the trial court’s ruling. On F-
77’s questionnaire he answered “Yes” when asked if he believed
“the death penalty should never be imposed for murder.” He
also answered “Yes” when asked if he held any “religious or
philosophical principle that would affect [his] ability to vote for
the death penalty as a judgment in this case,” explaining, “The
involuntary taking of another’s life is wrong.” He answered “No”
when asked if he could see himself rejecting life imprisonment
and choosing the death penalty, explaining, “Sitting here now I
cannot see it but I would always listen to other people’s points-
of-view.” On voir dire, F-77 described the death penalty as
“state-sanctioned murder.” Although he said he would “keep an
open mind,” he also indicated he already had an opinion on the
issue of penalty. He would require an “overwhelming and
persuasive” argument during jury deliberations to change his
view, an attitude that belies the concept of keeping an open
mind while listening to the evidence and entering deliberations.
Although he identified Charles Manson as one person for whom

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the death penalty might be appropriate, again “the mere
theoretical possibility that a prospective juror might be able to
reach a verdict of death in some case does not necessarily render
the dismissal of the juror” erroneous. (Martinez, supra,
47 Cal.4th at p. 432.)
       Nor, as Travis further contends, does the circumstance
that in cases such as People v. Ramirez (2006) 39 Cal.4th 398,
448–449, in which we upheld the trial court’s ruling retaining a
prospective juror who favored the death penalty, but who “would
not ‘necessarily be committed from the outset to the imposition
of the death penalty’ ” (id. at p. 449), and who “assured the court
multiple times that he would not automatically vote for the
death penalty and would, instead, reach a decision based upon
all of the evidence” (id. at p. 448), demonstrate that F-77 was a
“suitable juror[].” Although the prospective juror in Ramirez
initially said that “if the defendant were convicted of first degree
murder and found to be eligible for the death penalty, he would
vote to impose the death penalty unless he were convinced
otherwise” (id. at p. 447), upon further examination the
prospective juror “acknowledged that he would weigh and
consider the evidence presented and base his decision on that
evidence and would not vote ‘automatically’ for anything,”
“denied that he would always vote to impose the death penalty
for first degree murder ‘no matter what the circumstances that
led to that conviction,’ ” and “stated that he would not
‘necessarily be committed from the outset to the imposition of
the death penalty.’ ” (Ibid.) When asked by the trial court if the
prospective juror found beyond a reasonable doubt a defendant
guilty of first degree murder and found true a special
circumstance allegation, “ ‘would that put you in a position
where in every case would you always vote for the death

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penalty,’ ” the prospective juror responded: “ ‘I don't think I
could say in every case. I will have to judge each case by its own
merits.’ ” (Ibid.) While there are some similarities between the
statements in Ramirez and the statements at issue here, there
are several crucial differences as well: Notably, unlike in
Ramirez, Prospective Juror No. F-77, described the death
penalty as “state-sanctioned murder,” and stated that he would
require an “overwhelming and persuasive” argument during
jury deliberations to change his view.
             d. Standard for assessing substantial impairment
      Silveria contends that the trial court erroneously used a
different standard to assess whether Prospective Juror Nos. A-
69, B-17, C-47, C-67, and G-68, who supported the death
penalty, were substantially impaired, than for Prospective Juror
Nos. J-56, E-45, and F-77, who opposed the death penalty. He
claims for that reason the trial court’s rulings are entitled to no
deference. We reject the claim.
      As a preliminary matter, we note that Silveria does not
challenge the trial court’s rulings denying his challenges for
cause against Prospective Juror Nos. A-69, B-17, C-47, C-67,
and G-68. Hence these rulings are not before us. Although he
attempts to do so in a footnote in his reply, “ ‘[i]t is axiomatic
that arguments made for the first time in a reply brief will not
be entertained because of the unfairness to the other party.’ ”
(Rangel, supra, 62 Cal.4th at pp. 1218–1219.) Even assuming
for the sake of argument that the claim was preserved, none of
the challenged jurors served on the penalty retrial jury, hence
Silveria fails to demonstrate prejudice from any erroneous
denial of his challenges for cause. (People v. Bell (2019)
7 Cal.5th 70, 94 (Bell) [“Where no challenged panelist actually


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served on defendant’s jury, ‘ “there is no basis for us to conclude
that the jury empaneled was anything but impartial” ’ ”].)
      Silveria does, however, more broadly assert that the trial
court used a different standard to assess whether five
prospective jurors who supported the death penalty were
substantially impaired than it did for three prospective jurors
who opposed the death penalty. In making this claim, Silveria
essentially contends that the trial court was biased in its death-
qualification rulings. He does not point to any place in the
record where he objected below on the ground of judicial bias to
the manner in which the trial court conducted voir dire for these
prospective jurors. Indeed, following the voir dire of Prospective
Juror No. B-17, Silveria’s counsel expressly asserted that the
trial court had been evenhanded in its application of the
substantially impaired standard. Counsel also observed that
earlier that day the court had excused on its own motion several
prospective jurors who it had determined would automatically
vote for the death penalty.
      Assuming the claim is preserved on appeal, it is meritless.
“Witt has long been the law and it is clear the court was aware
of the appropriate standard to apply.” (People v. Thomas (2011)
52 Cal.4th 336, 361.) We have concluded, after careful review of
the respective questionnaires and voir dire of Prospective Juror
Nos. J-56, E-45, and F-77, that the trial court’s rulings
sustaining the prosecutor’s challenges are supported by
substantial evidence. (See ante, pt. II.B.2.a–c.) We have also
reviewed the court’s voir dire of Prospective Juror Nos. A-69, B-
17, C-47, C-67, and G-68, none of whom served on the penalty
retrial jury, and see no indication that the court showed bias in
evaluating whether these prospective jurors or Prospective
Juror Nos. J-56, E-45, and F-77 were substantially impaired.
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Rather, as to each of these prospective jurors, the court
conducted thorough voir dire examination to determine whether
the prospective juror was qualified to serve and permitted
counsel to ask further questions regarding possible
disqualifying bias.
       Silveria asserts that Prospective Juror No. A-69 was more
adamant in his view favoring the death penalty than “some”
prospective jurors (presumably referring to Prospective Juror
Nos. J-56, E-45, and F-77) were in their view opposing the death
penalty, but the court denied the challenge for cause as to A-69
because he said he could consider a life imprisonment penalty.
Silveria asserts that the circumstance that the court sustained
the challenge as to prospective jurors who opposed the death
penalty, “even though they said they could consider the death
penalty,” demonstrates the court’s bias against the defense.
Silveria similarly claims that if Prospective Juror No. B-17 was
not substantially impaired because he would not automatically
vote for the death penalty, then Prospective Juror Nos. J-56, E-
45, and F-77 who opposed the death penalty were not
substantially impaired because they were not “automatically
pro-life,” and that if Prospective Juror No. “C-47’s responses
were sufficient to save him from exclusion . . . , then certainly
the responses of the pro-life” Prospective Juror Nos. J-56, E-45,
and F-77 “should have saved them as well.” As to Prospective
Juror No. G-68, Silveria simply asserts that the trial court
denied the defense challenge “because, although G-68 was
biased in favor of the death penalty, he was not so biased in this
case.”
      These summary assertions fail to consider the prospective
jurors’ statements in the context of the entire voir dire.
Prospective Juror No. A-69 said that although his mind was
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leaning toward being closed off to the possibility of a verdict of
life imprisonment “knowing that the defendants have been
convicted of murder in the first degree and two special
circumstances,” he would want to hear the mitigating evidence
before reaching a penalty decision, and he could conscientiously
consider and weigh that evidence. He also explained that his
questionnaire opposition to the penalty of life imprisonment
without the possibility of parole had been based on a
misunderstanding that parole was available for such a sentence.
Having learned otherwise during voir dire, A-69 said a verdict
of life imprisonment was now “definitely” more possible.
Prospective Juror No. B-17 said that he would “have to listen
to . . . the testimony” and “make a judgment based on that,”
agreed with the prosecutor he was “someone who would want to
hear all the evidence in a case before rendering” a decision, could
think of no reason why he could not be fair to both sides in the
case, and said he had not provided an answer on the
questionnaire regarding his reasons for supporting or opposing
the death penalty because he had “no preference one way or the
other.” Although he had answered “Yes” when asked on his
questionnaire whether the death penalty should be mandatory
for murder, he said on voir dire there could be extenuating
circumstances that would make the death penalty inappropriate
and that he would want to hear and could conscientiously
consider the mitigating evidence before reaching a verdict.
Prospective Juror No. C-47, who supported the death penalty,
agreed with the court that he would be able to “keep an open
mind” and “not make up [his] mind until [he had] heard all the
evidence in court and the arguments from the attorneys and the
instructions on the law and had a chance to go back and
deliberate with [his] fellow jurors.” He also agreed with the

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court that he would be able to “listen with an open mind to all
the evidence that was presented” and “conscientiously consider
both penalties as possibilities in this case at this point right now
without knowing anything else.”
      By contrast, as delineated above, although Prospective
Juror No. J-56 expressed a willingness to consider all of the
evidence, keep an open mind, and follow the instructions, he also
expressed concern he would not be a fair and impartial juror
because of his views on the death penalty, and observed that he
would find it difficult to vote for the death penalty even if he
determined it was the appropriate verdict. Likewise, although
he acknowledged there could be circumstances in which the
death penalty would be appropriate, he was unable to articulate
on his questionnaire or on voir dire what those might be. He
also observed that the “stress” from knowing he would be
participating in the decision whether to impose the death
penalty would affect his ability to concentrate during the trial.
Prospective Juror No. E-45 stated on his juror questionnaire
that he was “strongly against” the death penalty, and that he
would always vote for life imprisonment without the possibility
of parole and reject death, “regardless of the evidence presented”
at the penalty retrial. Although he believed the death penalty
was appropriate for “someone who is the epitome of evil,” he said
on voir dire it was “probably not appropriate” for a stabbing
death during a robbery. Prospective Juror No. F-77 described
the death penalty as “state-sanctioned murder,” and said he did
not believe it should be imposed for murder. He would require
an “overwhelming and persuasive” argument during jury
deliberations to change his view, an attitude that is the
antithesis of having an open mind while listening to the
evidence and entering deliberations. Although he identified

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Charles Manson as one person for whom the death penalty
might be appropriate, again “the mere theoretical possibility
that a prospective juror might be able to reach a verdict of death
in some case does not necessarily render the dismissal of the
juror” erroneous. (Martinez, supra, 47 Cal.4th at p. 432.) And
once again, many prospective jurors “simply cannot be asked
enough questions to reach the point where their bias has been
made ‘unmistakably clear,’ ” but “[d]espite this lack of clarity in
the printed record . . . there will be situations where the trial
judge is left with the definite impression that a prospective juror
would be unable to faithfully and impartially apply the law.”
(Witt, supra, 469 U.S. at pp. 424–426.)
       Silveria asserts that the trial court should have recognized
that Prospective Juror No. A-69’s credibility was suspect “when
he claimed to have acquired a new understanding of the
meaning of life without parole during voir dire” because the jury
questionnaire described the sentence as “Life Without the
Possibility of Parole.” “Making such credibility determinations
fell squarely within the trial court’s province.” (Bryant, Smith
and Wheeler, supra, 60 Cal.4th at p. 403; see ibid. [“The trial
court’s view that Number 80 would not automatically vote in a
particular way does not establish that the court applied an
improper or even a different standard than with other
prospective jurors”].)
      Silveria asserts that Prospective Juror No. C-67 never
said “he could set aside his preconceived notions about the death
penalty and follow the law,” yet the defense challenge for cause
was denied. By contrast “the judge granted the prosecutor’s
challenges for cause of three pro-life potential jurors even
though they said they could put aside their preconceived notions
about the death penalty.”
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       The United States Constitution “does not dictate a
catechism for voir dire, but only that the defendant be afforded
an impartial jury.” (Morgan v. Illinois (1992) 504 U.S. 719, 729,
italics omitted.) Considering Prospective Juror No. C-67’s voir
dire in its entirety, although he may not have said the precise
statement that he could “set aside his preconceived notions
about the death penalty and follow the law,” he said “Yes” when
asked by the court if he would “be able to keep an open mind,”
“not make up your mind until you’ve heard all the evidence from
all the attorneys here in court, the arguments from the
attorneys and the instructions on the law from the Court,” and
go to the jury room for deliberations “with both penalties as
possibilities.” Although he “lean[ed] in favor of the death
penalty,” C-67 answered “Yes” when asked by the court if he
would be able to listen to the mitigating “evidence with an open
mind and be able to conscientiously consider and weigh that
evidence in reaching a penalty phase determination.” C-67 also
replied, “Yes,” when asked by the prosecutor, “Would you be
willing, if you are selected as a member of this jury, to consider
all of the evidence that comes into this courtroom, listen to it
with an open mind, listen to the law the Court instructs on,
listen to the arguments of counsel and then go back into the jury
room, evaluate that evidence during the process of deliberation
and arrive at a verdict as to the appropriate penalty even if
that’s a difficult thing to do; could you do that?” When asked by
the prosecutor, “Is there anything that would prevent you from
being fair and impartial in this case?” C-67 replied, “I can’t
think of anything.” Thus, contrary to Silveria’s assertion, the
circumstance that C-67 did not expressly state that he could “set
aside his preconceived notions about the death penalty and
follow the law” fails to demonstrate that the trial court used a

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different standard to evaluate substantial impairment for C-67
than it did for Prospective Juror Nos. J-56, E-45, and F-77.
       By contrast, as delineated above, Prospective Juror No. J-
56 said, “[I]t would be very hard for me” when asked if he would
be able to set aside “personal beliefs or feelings” that were “in
conflict with the California law.” He also observed that he could
follow “the guidelines that the judge sets up for aggravated and
mitigated . . . and come to a conclusion based on those. But even
once I come to that conclusion, if it happens to be death, I would
still have a hard time.” Prospective Juror No. E-45 answered,
“Probably not at this point, no,” when asked if he would ever
vote for the death penalty in a case where “the defendants had
deliberately participated in the multiple stabbing of the
victim . . . during the course of a robbery and the victim died.”
When asked if he could “even consider the death penalty” in that
situation, E-45 replied: “Personally, no. But I guess if I were
instructed as far as what the law should be, then I might have
to look at . . . changing my beliefs a little bit. I guess I could
consider the death penalty.”         Prospective Juror No. F-77
described the death penalty as “state-sanctioned murder,” said
he would require an “overwhelming and persuasive” argument
during jury deliberations to change his view, and identified
Charles Manson as one person for whom the death penalty
might be appropriate.
    Silveria asserts the trial court’s rulings sustaining the
prosecutor’s challenges for cause are not entitled to deference
because the court did not expressly state that it had granted the
challenges for cause to Prospective Juror Nos. J-56, E-45, and F-
77 because of their observed demeanor. As discussed above, the
court unquestionably weighed the prospective jurors’ credibility
and qualification to serve in its thorough voir dire questioning
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and reliance on that voir dire to both sustain the challenges to
Prospective Juror Nos. J-56, E-45, and F-77 and to reject
Silveria’s challenges for cause to Prospective Juror Nos. A-69, B-
17, C-47, C-67, and G-68. (See Flores, supra, 9 Cal.5th at p. 388
[“The trial court was in the best position to observe [prospective
juror] S.M.’s demeanor, vocal inflection, and other cues not
readily apparent on the record, and we reasonably infer that the
trial court based its decision not only on what S.M. said, but also
on how he said it.”]; Stewart, supra, 33 Cal.4th at p. 451 [“a
trial judge who       observes      and     speaks      with      a
prospective juror and hears that person’s responses (noting,
among other things, the person’s tone of voice, apparent level of
confidence, and demeanor), gleans valuable information that
simply does not appear on the record”]; see also Wilson, supra,
44 Cal.4th at p. 835 [“In evaluating the testimony of the
12 jurors, the trial court necessarily had to assess their
credibility”]; see ante, at pp. 64–65.)
       In sum, no judicial bias in evaluating whether Prospective
Juror Nos. J-56, E-45, F-77, A-69, B-17, C-47, C-67, and G-68
were substantially impaired is demonstrated.
         3. Removal of Juror No. 4
      Silveria and Travis contend the trial court erroneously
removed Juror No. 4. We reject the claim.
      On her juror questionnaire, Juror No. 4 was asked if she
knew or had heard of any anticipated witnesses appearing on a
10−page list, including “Leo Charon.” She did not circle
Reverend Charon’s name. On February 13, 1997, Juror No. 4
told courtroom personnel during a recess that she now realized
she knew Reverend Charon. After the rest of the jury had left
for the day, and in a hearing with the court and counsel, Juror
No. 4 explained that her husband had worked at CityTeam
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Ministries in the recovery program with Reverend Charon. She
had known Reverend Charon for about 10 years and had
socialized with him. She said, “I don’t know him intimately, but
I just know he’s a good man,” adding “I didn’t know if that would
have any effect on me.” Travis’s counsel mentioned that
Reverend Charon had been gone from CityTeam for about four
to five years, and Juror No. 4 said, “So has my husband.” The
court asked, “Is there anything about your friendship or
knowledge, your conversations or whatever with [Reverend]
Charon that would affect your ability to be fair and impartial
both to the prosecution and the defense in this case?” Juror
No. 4 replied, “I don’t think so.” The court asked, “Would you be
able to listen to Reverend Charon . . . with an open mind and if
something he said seemed to ring true with you, fine, and if it
didn’t, fine the other way?” Juror No. 4 replied, “Yes.” After
consulting with counsel at sidebar, the court asked Juror No. 4,
“Leo Charon was your husband’s boss you think?” She replied,
“I know he works side-by-side. . . . My husband could have been
his boss.” The court asked, “Is there anything about . . . your
husband’s relationship with Leo Charon that would affect you
in this case; do you think?” Juror No. 4 replied, “No.” The court
thanked the juror and excused her until the next week.
       On February 20, in a hearing held outside the presence of
the jury, the prosecutor noted that Reverend Charon had stated
to separate juries at the first penalty phase that each of the
defendants was the most sincere convert he had encountered.
Recounting Juror No. 4’s statement that Reverend Charon was
a good man, the prosecutor expressed concern that the juror had
already formed an opinion as to his credibility. The prosecutor
observed he was in the position of impugning the Reverend’s
credibility in front of a juror who had known him for 10 years

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and believed him to be a good person. “The People . . . find
themselves with a juror who has a close connection to a critical
witness [who] the People will have to attack.” The prosecutor
also expressed concern that Juror No. 4 would be free to express
her views regarding Reverend Charon during deliberations.
      On March 12, 1997, a second hearing was held with Juror
No. 4 after the rest of the jury had left for the day. In response
to the court’s question, she said she had seen Reverend Charon
at a wedding a few months earlier. When asked if she was
familiar with his personal life, she said she “thought he was a
recovering alcoholic.” When asked what she meant by him being
a “good man,” she explained the men at CityTeam seemed to be
able to “talk to him and trust him.” The court asked Juror No. 4,
“[A]ssume Mr. Charon testifies . . . favorably for the defense.
Based on what you know of Mr. Charon, if you were the
prosecution, would you feel comfortable with a juror such as
yourself based on what you know?” Juror No. 4 replied, “Well,
I would definitely have some concerns.” She explained:
“Because I know him. What I know of him I just wouldn’t believe
that he would ever lie about any dealings with somebody. So as
far as that would go, I would believe that what he was saying he
would believe to be true.” She answered, “Right,” when the
court asked, “[I]f Mr. Charon testified under oath you would not
believe that he would be capable of telling a lie or misleading
anybody?” She later added, “I would tend to believe that what
he’s saying he believes to be the truth. That doesn’t mean you
can’t be wrong about something.” Juror No. 4 also said she could
follow the court’s instruction not to disclose what she knew
about Reverend Charon during deliberations. The court excused
her for the day.



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      The court granted the prosecutor’s motion to discharge
Juror No. 4 for cause, stating: “The Court is convinced that
there is absolutely no juror misconduct and Juror No. 4 did not
realize she knew the witness, Mr. Charon, until February 13 of
1997 during the opening statements and then she notified the
Court immediately. It’s important to note that Mr. Charon’s
testimony is unlike most witnesses in that it consists not only of
his observations and conversations but more importantly his
opinion and the credibility of that opinion. . . . . Juror No. 4 . . .
would . . . be judging his credibility on facts or factors that are
not in evidence and that would be improper in and of itself. Also,
just as important she would not be able to get involved in the
deliberative process on the issue of Mr. Charon’s credibility if
and when that issue came up in deliberations. Juror No. 4 has
stated . . . she does not believe that Mr. Charon would lie or even
mislead anyone . . . . This shows that she has prejudged his
testimony or opinion and could not look at it with an open mind.”
      “Section 1089 authorizes the trial court to discharge a
juror at any time before or after the final submission of the case
to the jury if, upon good cause, the juror is ‘found to be unable to
perform his or her duty.’ ” (People v. Bennett (2009) 45 Cal.4th
577, 621.) A trial court’s decision to remove a juror is reviewed
by “asking whether the grounds for such removal appear in the
record as a demonstrable reality.” (People v. Thompson (2010)
49 Cal.4th 79, 137.)
      Here Juror No. 4 stated that she had already formed a
positive opinion of Reverend Charon’s credibility based on
matters outside of the courtroom. The court asked Juror No. 4
to assume Reverend Charon testified favorably for the defense,
and inquired, “[I]f you were the prosecution, would you feel
comfortable with a juror such as yourself based on what you

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know?” She replied, “Well, I would definitely have some
concerns,” explaining: “Because I know him. What I know of
him I just wouldn’t believe that he would ever lie about any
dealings with somebody. So as far as that would go, I would
believe that what he was saying he would believe to be true.”
She answered, “Right,” when the court asked, “[I]f Mr. Charon
testified under oath you would not believe that he would be
capable of telling a lie or misleading anybody.” Moreover, as the
court recognized, she would not be permitted to engage in
deliberations regarding his credibility or fully function as a juror
if this issue arose during deliberations. For these reasons, the
trial court had good cause to discharge Juror No. 4.
         4. Challenged Admitted Evidence
             a. Silveria’s former testimony
      Travis contends that the trial court erroneously admitted
Silveria’s first penalty phase testimony regarding the
circumstances of Madden’s murder at the joint penalty retrial.
We conclude there was no error.
       As noted, at the first penalty phase, Travis and Silveria
had separate juries. As pertinent here, the trial court ruled that
if Silveria or Travis testified, they would testify before both
juries when discussing the circumstances of the crime. Silveria
testified before both penalty juries regarding the circumstances
of the capital crime, and was subject to cross-examination by
Travis. Neither jury reached a penalty verdict. At the joint
penalty phase retrial, Silveria chose not to testify, and the
prosecutor introduced the portion of Silveria’s prior testimony
recounting the circumstances of the crime.
      Travis contends that when there are penalty
codefendants, “testimony given by a defendant at a [penalty]

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trial that ends in a hung jury should not be available for use by
the prosecution in its case-in-chief” against the codefendant at
the penalty retrial. Evidence Code section 240, subdivision (a)
provides that a person is “ ‘unavailable as a witness’ ” when he
or she is “(1) Exempted . . . on the ground of privilege from
testifying concerning the matter to which his or her statement
is relevant.”     Evidence Code section 1291, subdivision (a)
provides in relevant part: “(a) Evidence of former testimony is
not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and: [¶] . . . [¶] (2) The party against
whom the former testimony is offered was a party to the action
or proceeding in which the testimony was given and had the
right and opportunity to cross-examine the declarant with an
interest and motive similar to that which he has at the
hearing.”16
      These requirements for admission of the former testimony
were satisfied here.      Silveria, having invoked his Fifth
Amendment privilege against self-incrimination, was
unavailable as a witness at the joint penalty retrial within the
meaning of Evidence Code sections 240 and 1291. (People v.
Butler (2009) 46 Cal.4th 847, 866, fn. 9 [the declarant’s
“invocation     of     his Fifth Amendment privilege       made
him unavailable as a witness”].) Moreover, Travis had the
opportunity to cross-examine Silveria at the first penalty phase




16
      Evidence Code section 1291 further provides in relevant
part:
“(b) The admissibility of former testimony under this section . . .
is not subject to: [¶] . . . [¶] (2) Objections based on . . . privilege
which did not exist at the time the former testimony was given.”

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with a “motive and interest similar” to that which he had at the
penalty retrial. (Evid. Code, § 1291, subd. (a)(2).)
      Travis further asserts that Silveria’s former testimony
should not have been admitted at the penalty retrial because
when there has been a hung jury, “ ‘the status is the same as if
there had been no trial.’ ” “Assuming without deciding this rule
applies to the grant of a penalty phase retrial rather than to an
unqualified reversal of the entire underlying judgment in a
capital case” (People v. Ramos (1997) 15 Cal.4th 1133, 1162), it
does not override specific statutory provisions such as Evidence
Code section 1291, which allows the admission of former
testimony when the requirements of section 1291 have, as here,
been satisfied. (See Ramos, at pp. 1147, 1164 [prior testimony
properly admitted at penalty phase retrial under Evid. Code,
§ 1291].) Although Travis asserts he had “no control” over
Silveria’s decision to testify at the first penalty phase, there is
no such requirement in section 1291 for former testimony to be
admissible.
       Travis further asserts that even if the first penalty phase
testimony of a defendant such as Silveria would generally be
admissible against a codefendant such as Travis at their penalty
retrial, it was not admissible here because Silveria objected to
testifying before both first penalty phase juries, rather than to
only his individual jury, regarding the circumstances of the
crime, and the trial court erroneously overruled this objection.
Travis notes that if defendants had been tried separately, each
defendant could have asserted a Fifth Amendment privilege not
to testify in each other’s separate penalty trial. Travis contends
that under these circumstances, Silveria’s testimony against
Travis was “obtained in an invalid manner” at the first penalty
phase, and was therefore improperly introduced against Travis

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at the penalty retrial. Travis acknowledges that because
defendants were granted a penalty retrial when the first penalty
phase ended with hung juries, Travis could not have been
prejudiced by any error, and he asserts he does not make this
claim “as a direct claim of error.”
       Even assuming a claim from the first penalty phase is
properly before us, it is meritless. Silveria waived his privilege
against self-incrimination by testifying at the first penalty
phase, and Travis is not in a position to challenge the validity of
Silveria’s waiver. (See People v. Badgett (1995) 10 Cal.4th 330,
343 (Badgett) [it is settled that a defendant cannot “object to a
violation of another’s Fifth Amendment privilege against self-
incrimination”].)
       The People note that we have recognized a defendant may
seek to exclude a third party’s testimony on the ground “that the
trial testimony is coerced [citation], and that its admission will
deprive [the defendant] of a fair trial.” (Badgett, supra,
10 Cal.4th at p. 344.) “[T]he primary purpose of excluding
coerced testimony of third parties is to assure the reliability of
the trial proceedings . . . .” (Id. at p. 347.) The “exclusion is
based on the idea that coerced testimony is inherently
unreliable, and that its admission therefore violates a
defendant’s right to a fair trial.” (Ibid., italics omitted; see
People v. Clark (2016) 63 Cal.4th 522, 559–560; People v.
Jenkins (2000) 22 Cal.4th 900, 966–967.) We need not decide
whether these principles apply when a codefendant testifies
because Travis does not rely on this line of authority or claim
that Silveria’s former testimony was coerced and therefore
unreliable. (See Badgett, at pp. 346–348 [noting that different
exclusionary principles and burdens of proof apply when courts


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address a violation of a defendant’s 5th Amendment right than
when addressing that of a third party witness].)
       Rather, Travis asserts that Silveria was offered an
“invalid choice” at the first penalty phase by the trial court
between not testifying at all or testifying before both juries, and
that absent that erroneous ruling Travis would not have had the
opportunity to cross-examine Silveria at the first penalty phase,
and hence none of Silveria’s former testimony would have been
introduced against Travis at the penalty retrial when Silveria
chose not to testify because it would not have been admissible
under Evidence Code section 1291. We have already rejected
above defendants’ claim that they were entitled to separate
penalty retrials, noting that the high court has held joint capital
sentencing proceedings do not violate the Eighth Amendment
right to an individualized sentencing determination. (Kansas v.
Carr, supra, 577 U.S. at p. __ [136 S.Ct. at p. 644]; see ante,
pt. II.B.1.) Given this precedent, it is difficult to discern any
basis for deeming erroneous a ruling at the first penalty phase
requiring either defendant who chose to testify regarding the
circumstances of the capital crime to do so before both
defendants’ penalty phase juries.
       Travis contends that if defendants had been tried
separately each defendant could have asserted a Fifth
Amendment privilege not to testify in each other’s separate
penalty trial. But the “mere admission of evidence that might
not otherwise have been admitted in a severed proceeding” does
not render a trial fundamentally unfair. (Kansas v. Carr, supra,
577 U.S. at p. __ [136 S.Ct. at p. 645; see id. at p. 644].) “While
‘an important element of a fair trial is that a jury consider only
relevant and competent evidence bearing’ ” on the issue of
penalty, “a fair trial does not include the right to exclude

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relevant and competent evidence.” (Zafiro v. United States
(1993) 506 U.S. 534, 540 [addressing evidence bearing on guilt
or innocence].)
       Nor, as Travis contends, did the admission of Silveria’s
former testimony in the prosecutor’s case-in-chief at the penalty
retrial unduly prejudice Travis by “allow[ing] the prosecutor to
repeat the most damaging evidence about the circumstances of
the . . . crime over and over again.” Although Travis later
testified in his penalty retrial defense case and described
Madden’s murder in detail similar to that provided in Silveria’s
former testimony, that event could not render Silveria’s earlier
admitted former testimony “cumulative.”
       In sum, the trial court properly admitted Silveria’s former
testimony regarding Madden’s murder at the joint penalty
retrial.
             b. Pathologist’s testimony
      Silveria and Travis contend that the trial court
erroneously permitted Dr. Pakdaman, the pathologist who had
performed Madden’s autopsy, to opine that Madden’s murder
was “one of the most atrocious cases” he had ever seen. We
reject the claim.
      Dr. Pakdaman testified he had performed about 7,000
autopsies during his career, and did not recall each one. The
prosecutor asked, “Is this case one that you will ever be able to
forget?”        Over   defendants’     unsuccessful      objection,
Dr. Pakdaman replied, “I’ve been to court nine times on this case
and every time you ask this question I get upset.” He explained,
“This is one of the most atrocious cases that I’ve ever seen.”
     Even assuming the pathologist’s opinion that the murder
was “one of the most atrocious cases” he had ever seen was


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inadmissible, there is no reasonable possibility different penalty
verdicts would have resulted absent admission of this
statement. (People v. Lancaster (2007) 41 Cal.4th 50, 94 [the
standard that an “error is reversible if there is a reasonable
possibility it affected the verdict . . . is essentially the same as
the harmless beyond a reasonable doubt standard of
Chapman v. California (1967) 386 U.S. 18, 24”]; see People v.
Brown (1988) 46 Cal.3d 432, 448 [the reasonable possibility
standard applies “when assessing the effect of state-law error at
the penalty phase of a capital trial”].) His statement was brief
and isolated. More compelling was his detailed description of
Madden’s 32 “slash-like superficial cuts” and “stab-like wounds”
in his neck, chest, and abdomen, including stab wounds that
penetrated his heart and fractured his ribs, and
Dr. Stratbucker’s testimony that marks made by the stun gun
on Madden’s thigh were inflicted while he was alive, and that
Madden remained conscious “to the bitter end.” Given this
graphic evidence of defendants’ attack on Madden, any error in
admitting Dr. Pakdaman’s opinion regarding atrociousness was
harmless beyond a reasonable doubt.
             c. Evidence of lying in wait and torture
      Silveria and Travis contend that the trial court erred in
allowing the prosecutor to present evidence of and argument on
torture and lying in wait at the penalty retrial because Silveria’s
guilt phase jury had found not true the lying-in-wait special
circumstance allegation and had deadlocked on the torture-
murder special-circumstance allegation, and Travis’s guilt
phase jury had found not true the torture-murder special-
circumstance allegation, and had deadlocked on the lying-in-
wait special-circumstance allegation. We reject the claim.


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       Evidence of lying in wait and torture was part of the
circumstances of the crime and hence admissible under
section 190.3, factor (a). Indeed, the high court has held that
when a special circumstance the jury has found true is set aside
on appeal, no constitutional violation occurs if “one of the other
sentencing factors enables the sentencer to give aggravating
weight to the same facts and circumstances.” (Brown v. Sanders
(2006) 546 U.S. 212, 220; see id. at pp. 214–215.)
       In Brown v. Sanders, the high court considered whether
the circumstance that a California jury had found true four
special circumstance allegations, including two that were later
set aside on appeal, rendered the death judgment
“unconstitutional by reason of its adding an improper element
to the aggravation scale in the jury’s weighing process.” (Brown
v. Sanders, supra, 546 U.S. at p. 214; see id. at p. 215.) It
observed that under section 190.3, factor (a), the trial court
instructed the jury to consider and weigh “ ‘[t]he circumstances
of the crime of which the defendant was convicted in the present
proceeding and the existence of any special circumstances found
to be true.’ ” (Brown v. Sanders, at p. 214; see id. at p. 215.) The
high court reasoned that “because all of the facts and
circumstances admissible to establish” the two later invalidated
special circumstance allegations “were also properly adduced as
aggravating facts bearing upon the ‘circumstances of the crime’
sentencing factor, . . . [t]hey were properly considered whether
or not they bore upon the invalidated eligibility factors.” (Id. at
p. 224.)
       Likewise here, all of the aggravating facts and
circumstances underlying the special circumstance allegations
on which the jury hung or found not true were also properly
admitted and considered by the jury as evidence of the

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circumstances of the crime under section 190.3, factor (a).
Moreover, because this evidence was properly admitted, the
prosecutor was free to rely on it in his closing argument.
(People v. Rhoades (2019) 8 Cal.5th 393, 448 (Rhoades) [“The
fact that the guilt jury did not unanimously find kidnapping
proved beyond a reasonable doubt did not preclude the
prosecution from arguing, as a circumstance of the capital crime
(Pen. Code, § 190.3, factor (a)), that defendant had in fact
abducted the victim . . . .”].)
      Travis asserts evidence of torture was precluded by
section 190.3, which provides in pertinent part: “In the
proceedings on the question of penalty, evidence may be
presented by both the people and the defendant as to any matter
relevant to aggravation, mitigation, and sentence including, but
not limited to, the nature and circumstances of the present
offense, . . . the presence or absence of other criminal activity by
the defendant which involved the use or attempted use of force
or violence or which involved the express or implied threat to
use force or violence . . . . [¶] . . . [¶] However, in no event shall
evidence of prior criminal activity be admitted for an offense for
which the defendant was prosecuted and acquitted.” (Italics
added.) The italicized language on which Travis relies concerns
alleged prior criminal activity, not evidence of the circumstances
of the capital crime. Here Travis was found guilty — not
acquitted — of the first degree murder of Madden.
      Travis asserts there is no rational basis for treating
evidence of a special circumstance allegation found not true
differently than evidence of a prior crime for which the
defendant has been acquitted. The electorate could rationally
conclude that the sentencing jury should consider all of the
circumstances of the capital offense even if it or a prior jury had

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previously found these circumstances did not satisfy the
elements of a special circumstance allegation, but that a prior
crime for which the defendant had been acquitted lacked similar
relevance.
      Silveria asserts that the admission of evidence of torture
and lying in wait “retr[ied]” the torture-murder and lying-in-
wait special-circumstance allegations and placed him in double
jeopardy with respect to those allegations. Not so. The penalty
retrial jury was not asked to make findings on whether the
elements of these special circumstance allegations had been
satisfied. Nor, for this same reason, and contrary to Silveria’s
further claim, did the admission of torture evidence at the
penalty retrial, without first successfully retrying the torture-
murder special-circumstance allegation on which Silveria’s guilt
jury hung, and which was later struck, violate Silveria’s right to
a speedy trial on that allegation. Once again, evidence of torture
and lying in wait was properly admitted at the penalty retrial
as a circumstance of the capital crime despite the fact that the
guilt phase jury was unable to reach a verdict on or found not
true these allegations.
      Travis contends that the court erred in not instructing the
penalty retrial jury, or allowing him to inform the jury during
closing argument, that Travis’s guilt phase jury had found not
true the torture-murder special-circumstance allegation. There
was no error. We have previously held that the “fact that a first
jury deadlocked . . . is irrelevant to the issues before the jury on
a penalty retrial” (People v. Thompson (1990) 50 Cal.3d 134,
178) because such evidence has no bearing on a defendant’s
character or record, or on the circumstances of the offense
(People v. Hawkins (1995) 10 Cal.4th 920, 968). For these same
reasons, and given evidence of torture was properly admitted at

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the penalty retrial, evidence that Travis’s guilt phase jury found
that the elements of the torture-murder special-circumstance
allegation had not been satisfied was irrelevant.
       Travis notes that the first penalty jury had also decided
Travis’s guilt, and so was aware when hearing evidence of
torture at the first penalty phase that it had previously found
the torture-murder special-circumstance allegation not true. He
argues that not informing the penalty retrial jury that the guilt
phase jury made this finding unfairly placed the prosecutor in a
stronger position and was inconsistent with the general
principle that after a jury deadlocks the parties are placed in the
same position at retrial as if there had been no original trial.
We disagree. In Brown v. Sanders, the trial court instructed the
jury to consider as one of the sentencing factors “ ‘the existence
of any special circumstances . . . found to be true,’ ” thus giving
the facts underlying the special circumstances “special
prominence.” (Brown v. Sanders, supra, 546 U.S. at p. 224,
quoting § 190.3, factor (a).) The high court concluded that even
assuming this instruction caused the jury to give somewhat
greater weight to those facts underlying a later invalidated
special      circumstance,       any     such      impact      was
“ ‘ “inconsequential” ’ ” and could not “ ‘fairly be regarded as a
constitutional defect in the sentencing process.’ ” (Brown v.
Sanders, at p. 225; see id. at p. 224.) By analogy, the same lack
of consequence would result when the first penalty jury knew as
it considered evidence of torture at the first penalty phase that
it had previously found the torture-murder special-circumstance
allegation not true, but the penalty retrial jury did not have this
knowledge when it considered that same evidence.
       In sum, the trial court properly admitted evidence of lying
in wait and torture.

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             d. School loan money scam evidence
      Silveria contends the trial court erred in admitting
evidence of a loan money scam. We reject the claim.
      During the prosecutor’s case-in-chief at the penalty
retrial, he introduced Silveria’s testimony from the first penalty
phase recounting that Silveria had attended the Technical
Training Center computer school for several months as a full-
time student. Silveria explained he had been “attracted” to the
school because he would be “able to get some type of loan and
there was some type of . . . scam involved at least from the
person . . . who brought this up. . . . [Y]ou get this loan and . . .
you’re supposed to get the balance or something like that. So . . .
it sounded good to me.” On Travis’s cross-examination at the
penalty retrial, the prosecutor asked whether he and Silveria
had attended computer training school. Travis replied that he,
Silveria, and a friend named Pete Rosa had attended the
Technical Training Center. Travis explained Rosa, “had come
up with a scam to get some type of loan money through this
school and asked if we were willing to go with him.” The men
erroneously assumed they were going to be paid the full amount
of a school loan up front, and planned to “quit school” and use
the money to buy drugs. After defendants learned they would
not receive full loan checks in advance, they decided to “stay
anyway,” and attended about two months of classes before
leaving the school.
      On appeal, Silveria contends the trial court erred in
permitting Travis’s testimony that Silveria had participated in
a “scam” to obtain money from a computer school because it was
not relevant to any of the factors in section 190.3 or as rebuttal
to Silveria’s penalty defense case. As noted, Silveria appeared
to also describe the loan as a “scam” during his first penalty

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phase testimony that was admitted at the penalty retrial. Even
assuming for the sake of argument Travis’s additional detail
regarding the failed monetary scheme was improperly admitted,
there is no reasonable possibility the penalty verdict would have
been different in the absence of this evidence. The prosecutor
did not mention the loan scam in his closing argument, and the
evidence was of marginal probative value when compared with
the capital crime.
             e. Stun gun evidence
      Silveria contends the trial court erred in allowing the
prosecutor to attempt to elicit evidence of Silveria’s use of a stun
gun several days before Madden’s murder. He also presents this
claim as one of prosecutorial misconduct. We reject the claim.
      On direct examination, Travis testified that on about
January 24, 1991, several days before Madden’s January 28
murder, Travis engaged in a fist fight with a man whom he
believed had stolen a “beeper” from Jennings. On cross-
examination, the prosecutor asked Travis whether before the
fight Silveria, Jennings, or Spencer had “display[ed] the stun
gun.” Travis answered, “I don’t recall seeing the stun gun.” The
prosecutor subsequently asked whether before the fight Travis,
Silveria, Spencer, Jennings, or Rackley had displayed a stun
gun and repeatedly hit the “test button.” Travis replied, “I don’t
recall seeing the stun gun there, no.” Nor did Travis’s review of
a document shown to him by the prosecutor refresh his
recollection as to whether before the fight he or one of his friends
had “displayed a stun gun and kept hitting the test button.”
      Silveria contends the prosecutor committed misconduct by
intentionally seeking “to elicit false stun gun evidence” against
Silveria that was inadmissible under section 190.3, and that was
misleading because the prosecutor “knew that Rackley was the
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person who pulled the stun gun during this incident.” He
further contends that the trial court erred when it permitted the
prosecutor to attempt to elicit this testimony.
      There was no misconduct or trial court error. Contrary to
Silveria’s characterization, the prosecutor’s questions regarding
the display of a stun gun were not limited to Silveria, and did
not imply that Silveria “had committed untoward and possibly
criminal . . . acts.”   Nor, given that Travis had testified
regarding the fight on direct examination, did the trial court err
in allowing the prosecutor to explore on cross-examination the
circumstances surrounding the fight. Even if we were to assume
error for the sake of argument, it was harmless beyond a
reasonable doubt. Travis repeatedly testified that he saw no one
before the fight with a stun gun, and the court instructed the
jury at the end of the penalty retrial that “[s]tatements made by
the attorneys during the trial are not evidence.”
             f. Statutory rape evidence
      Silveria contends the trial court erred in allowing the
prosecutor to present evidence that Silveria had impregnated
Travis’s sister when she was 15-years old. We reject the claim.
      On cross-examination of D.S., Travis’s younger sister, in
Travis’s penalty defense case, the prosecutor asked D.S. about
different events that occurred during a time period when D.S.
was 14 or 15 years old. At one point, the prosecutor asked D.S.
whether she had “a relationship with [Silveria] at that time?”
She replied, “Yeah, I did.” The prosecutor asked, “[H]ow was it
that you and Danny [Silveria] started going together?” D.S.
replied, “Well, he was at my house and . . . I was attracted to
him.” The prosecutor then asked, “[H]ow old were you at that
time?” D.S. replied, “Fifteen is when I got pregnant.” The


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prosecutor asked, “By Danny?” D.S. replied, “Yes.” Silveria’s
foundation objection was overruled.
       Silveria contends statutory rape is not admissible as
aggravating evidence under section 190.3, factor (b) or on
rebuttal. Assuming Silveria’s claim is preserved on appeal by
his foundation objection below, it is meritless. Nothing in the
prosecutor’s question asking D.S. how old she was when she
dated Silveria reasonably elicited D.S.’s response that she had
been 15 years old when she became pregnant. The prosecutor’s
brief follow up question simply clarified D.S. meant Silveria was
the father, hence she was 15 years old when she dated Silveria.
Moreover, the trial court instructed the jury that other than
evidence of the robberies of Youssef at Quik Stop Market and
Graber at Gavilan Bottle Shop, a “juror may not consider any
evidence of any other criminal acts or activity as an aggravating
circumstance” under section 190.3, factor (b). We presume the
jury understood and followed this instruction. (Hajek and Vo,
supra, 58 Cal.4th at p. 1178.)
            g. Attempted murder evidence
      Silveria contends the trial court erred in admitting
evidence of a “highly inflammatory and prejudicial attempted
murder by” the Nuestra Familia, “a notorious prison gang.” We
reject the claim.
      At the end of Correctional Officer Lausten’s direct
examination in Silveria’s defense case, he opined that fellow
Correctional Officer Jeanine Powell at times lacked an ability to
get along with and be an effective correctional officer to the
inmates because she engaged in verbal confrontations with
inmates and then lost control in the module. She also
overreacted to the behavior of mental health patients.


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       On cross-examination, the prosecutor asked Correctional
Officer Lausten if he considered himself an effective correctional
officer. Officer Lausten replied, “Yes, sir, I certainly do.” The
prosecutor then asked whether Officer Lausten knew “who
Gabriel Coronado was,” and the officer replied, “Yes.” When the
prosecutor asked how Officer Lausten knew Coronado, Travis
objected.
       At sidebar Travis’s counsel recalled an attack on Coronado
had been carried out by four Nuestra Familia members. The
trial court ruled that Silveria had opened the door to the
evidence, and overruled the objection.
       In front of the jury, the prosecutor asked Officer Lausten,
“[D]id Gabriel Coronado have his throat cut in your module
when you were nearby?” Officer Lausten agreed, clarifying it
had been the side of Coronado’s neck and not his throat, and
that although Officer Lausten had been nearby, he had not seen
anything until after the incident because the attack happened
quickly and he had been on the telephone with another officer.
He further agreed with the prosecutor that events in a jail
setting can happen quickly and unpredictably, and said it was
“very possible” that sometimes correctional officers do not
observe “everything that happens.”
       On cross-examination by Travis, Officer Lausten agreed
with defense counsel that “there were four gang members who
hit” Coronado, and that the assault was “very unusual.” In
Officer Lausten’s nine years at the jail no similar assault had
occurred.
       As can be seen, no reference to the Nuestra Familia prison
gang was made before the jury. Rather the gang was only
mentioned by Travis’s counsel during the bench conference. The
import of the prosecutor’s line of inquiry on cross-examination

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was simply to demonstrate that Officer Lausten may have
similarly been unaware of events legitimately shaping Officer
Powell’s reaction to inmates. Although Officer Lausten agreed
with Travis’s counsel that four gang members had attacked
Coronado, the gang to which they belonged was never identified.
      In Silveria’s reply brief, he acknowledges that the record
does not demonstrate that the jury heard the reference to the
Nuestra Familia gang. He asserts that “evidence of an
unrelated attempted murder by means of a sharp instrument
which resulted in cuts to the victim’s throat are nevertheless
prejudicial since this attack is very similar to the manner in
which Mr. Madden was killed.” But nothing in Officer Lausten’s
testimony indicated Silveria was present at or in any way
connected to the attack on Coronado.
         5. Excluded Mitigating Evidence
      Defendants contend the trial court erred in excluding
certain mitigating evidence. We reject the claim.
      “ ‘The Eighth and Fourteenth Amendments require that
the sentencer in a capital case not be precluded from considering
any relevant mitigating evidence, that is, evidence regarding
“any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a
basis for a sentence less than death.” ’ [Citation.] ‘Nonetheless,
the trial court still “ ‘determines relevancy in the first instance
and retains discretion to exclude evidence whose probative
value is substantially outweighed by the probability that its
admission will create substantial danger of confusing the issues
or misleading the jury.’ ” ’ (People v. Williams (2006) 40 Cal.4th
287, 320 [52 Cal.Rptr.3d 268, 148 P.3d 47]; see Romano v.
Oklahoma (1994) 512 U.S. 1, 12 [129 L.Ed.2d 1, 114 S.Ct. 2004]


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[‘The Eighth Amendment does not establish a federal code of
evidence to supersede state evidentiary rules in capital
sentencing proceedings.’]; Lockett v. Ohio (1978) 438 U.S. 586,
604, fn. 12 [57 L.Ed.2d 973, 98 S.Ct. 2954] [‘Nothing in this
opinion limits the traditional authority of a court to exclude, as
irrelevant, evidence not bearing on the defendant’s character,
prior record, or the circumstances of his offense.’].) ‘The
meaning of relevance is no different in the context of mitigating
evidence introduced in a capital sentencing proceeding’ from
what it is in any other context. (McKoy v. North Carolina (1990)
494 U.S. 433, 440 [108 L.Ed.2d 369, 110 S.Ct. 1227].) Thus,
‘ “[r]elevant mitigating evidence is evidence which tends
logically to prove or disprove some fact or circumstance which a
fact-finder could reasonably deem to have mitigating value.” ’
(Ibid.; see Evid. Code, § 210.)” (People v. Farley (2009)
46 Cal.4th 1053, 1128.)
             a. Former juror and alternate juror
      Travis contends that the trial court erroneously excluded
testimony by former Travis Juror No. 8 and former Travis
Alternate Juror No. A-4 from the guilt and first penalty phase.
We conclude there was no abuse of discretion.
                (1) Factual background
      Travis’s first penalty phase ended on February 21, 1996.
On November 25, 1996, during a hearing held before the penalty
retrial, Travis’s counsel made an offer of proof regarding his
motion to admit the testimony of former Juror No. 8 and former
Alternate Juror No. A-4. He observed that since the mistrial,
No. A-4 had visited Travis in jail “probably a couple of times a
month.” In counsel’s view, A-4 knew “more about John Travis
than probably anybody else on the face of this earth.” A-4 was

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expected to testify on “the issue of rehabilitation,” and opine that
Travis should not be executed because he “can do some concrete,
constructive things in his life.” “[S]ome months” before the
hearing, former Juror No. 8, who had been the jury foreperson
and one of two jurors to vote against the death penalty, told
Travis’s counsel that she also wanted to visit Travis. She had
apparently done so, and had “discussed some of the things that
[were] important” to Travis. She was expected to testify that
Travis was “sincere in what he says,” and had “matured beyond”
his level at the time of Madden’s murder. Both potential
witnesses had observed that Travis had “transformed way
beyond” the person he was when he murdered Madden. Counsel
observed that although Travis had “recently reestablished his
relationship with his mother,” he “has had in almost six years of
custody virtually no visitation from outside people.” The trial
court precluded testimony by the former juror and former
alternate juror.
      The court stated: “[T]he Court has gone to great lengths,
both in reworking the questionnaire and will in its own voir dire,
to keep from the jury in this penalty phase trial the fact of a
prior penalty phase, its inability to reach a verdict, the
numerical split, and which way the voting went. For the sake of
convenience the Court will call this ‘prior jury results.’ The
Court has already ruled that these prior jury results are
inadmissible and that witnesses must be warned by counsel not
to let these facts come out. And counsel have agreed to this.
[The prosecutor] was correct when he stated that calling prior
jurors as witnesses is ‘fraught with peril.’ Calling these jurors
increases the possibility of the prior jury results leaking out at
least a hundredfold on direct examination alone. The fact and
rule of law that cross-examination could rightly go into the basis

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of any opinion that a juror would give as to character,
reputation, . . . and how they know the defendant, raises the
possibility of a leak even more. Add to that fact that the
[prosecutor] could then call death voting jurors in rebuttal
makes the . . . idea intolerable and completely improper. Once
this prior jury result is out the biggest danger of all can be seen.
The current jury would be tempted to and could actually
abdicate its own duty in favor of a prior jury’s findings, even
though there was a mistrial. No one could possibly say that this
would be proper. For these reasons alone neither the People nor
the defense will be allowed to call as witnesses any prior juror,
including alternates.”
                 (2) Analysis
       Travis contends that if former Travis Juror No. 8 and
former Travis Alternate Juror No. A-4 “had been permitted to
testify, the [penalty retrial] jury would have learned that these
two witnesses had received detailed information about John
Travis’ background and about his crimes, from various
witnesses who testified at the guilt and penalty phases of the
first trial [and] . . . then took it upon themselves, with no
expectation of compensation or other benefit, to visit John
Travis in the jail on a regular basis, and had continued to do so
over a long enough period to give them meaningful insight into
the sincerity of his religious conversion, his recovery from
addiction, and his desire to help other inmates.”
       As a preliminary matter, Travis’s counsel did not
represent at the hearing that the former juror and alternate
juror would testify to the “sincerity of [Travis’s] religious
conversion, his recovery from addiction, and his desire to help
other inmates.”        Rather, counsel broadly described the
anticipated testimony: A-4 was expected to testify regarding
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“the issue of rehabilitation,” and opine Travis should not be
executed because he “can do some concrete, constructive things
in his life.” In counsel’s view, A-4 knew “more about John Travis
than probably anybody else on the face of this earth.” Former
Juror No. 8 had “discussed some of the things that [were]
important” to Travis, and was expected to testify that Travis
was “sincere in what he says.” Both potential witnesses had
observed that Travis had “transformed way beyond” the person
he was when he murdered Madden.17
       Moreover, Evidence Code section 352 gives the trial court
wide latitude to “exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” When, as here, the potential
witnesses and penalty retrial jury share the unique role of jurors
(and alternate jurors), a trial court may be legitimately
concerned that the proffered character testimony could unduly
influence the penalty retrial jury or encroach on its own
deliberative process. (See People v. Peoples (2016) 62 Cal.4th
718, 758–759 (Peoples) [“The trial court could have reasonably
concluded that the admission of [the four former jurors’]
testimony would be more prejudicial than probative and would
confuse jurors for the penalty retrial about the ultimate task”].)
     Although Travis contends the trial court did not rely on
Evidence Code section 352, it implicitly did so by considering the


17
       Travis also cites to a letter dated May 30, 1997, from
former Travis Alternate Juror No. A-4 to Travis’s probation
officer. This information, of course, was not before the trial
court when it ruled in 1996.

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possibility that allowing Travis to present a former juror and
alternate juror could unduly influence the jury and impede the
performance of its duty, and lead to time-consuming rebuttal
testimony by former jurors who had voted in favor of the death
penalty. Nor is a trial court required to “ ‘expressly weigh
prejudice against probative value or even expressly state that it
has done so, if the record as a whole shows,’ ” as here, that “ ‘the
court was aware of and performed its balancing function under
Evidence Code section 352.’ ” (People v. Lewis (2009) 46 Cal.4th
1255, 1285.)
      For these same reasons we reject Travis’s oral argument
assertion that the trial court could not make a ruling under
Evidence Code section 352 without holding an evidentiary
hearing. The primary concern here was not what these
witnesses would say when testifying, but who they were. Travis
makes no effort to explain how testimony at such a hearing by
the former juror and alternate juror would have mitigated the
inherent concern that potential witnesses who had previously
shared the same unique role as the penalty retrial jury (and its
alternates) could unduly influence the penalty retrial jury or
encroach on its deliberative process.
      In addition, the possibility that allowing such testimony
would lead to time-consuming rebuttal testimony by former
jurors who had voted in favor of the death penalty or who had a
negative view of Travis’s character further demonstrates that
the trial court acted well within its discretion. (Peoples, supra,
62 Cal.4th at p. 759 [“The trial court also could have reasonably
concluded that their testimony would have opened the door for
the prosecution to call other individuals who attended the first
penalty trial, thus expending an undue amount of the court’s
time”].) Although Travis contends that the trial court could
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have avoided any prejudice by admonishing the penalty retrial
jury “to give no greater weight to the testimony of the proffered
witnesses just because they had formerly been a juror and an
alternate juror,” he did not suggest such an admonition below,
nor would its availability eliminate the trial court’s discretion to
weigh other factors and preclude the testimony.
       Nor, as Travis contends, was the preclusion of this
testimony Skipper error. (Skipper v. South Carolina (1986)
476 U.S. 1, 3–5.) In Skipper, the high court found prejudicial
error in the exclusion of two jailers and one “ ‘regular visitor’ ”
who would have testified that the defendant had “ ‘made a good
adjustment’ during his time spent in jail.” (Id. at p. 3.) It
rejected the argument that the testimony was merely
cumulative to similar testimony by Skipper and his former wife,
noting that the latter testimony was “the sort of evidence that a
jury naturally would tend to discount as self-serving. The
testimony of more disinterested witnesses — and, in particular,
of jailers who would have had no particular reason to be
favorably predisposed toward one of their charges — would
quite naturally be given much greater weight by the jury.” (Id.
at p. 8; see id. at p. 7.) Here, Travis presented the testimony of
two jailers, Correctional Officers Forster and Damewood,
regarding his respectful and studious jail behavior, his faithful
work as a trustee, and his potential to change the lives of other
inmates. (See ante, pp. 31–32.) Thus Travis was accorded the
most crucial testimony Skipper was denied. (Skipper, at p. 8.)
For the reasons noted, percipient witness testimony by former
jurors and alternate jurors is qualitatively different and
inherently more problematic than the jailer or visitor testimony
favorably discussed in Skipper.


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      Travis further contends that testimony by a juror is
contemplated by Evidence Code section 704.18 This section
provides that when one party calls a sitting juror as a witness,
and the other party objects, a mistrial is declared. (Evid. Code,
§ 704, subds. (b), (c).)    Section 704 does not address the
circumstances under which the now former juror may testify at
any retrial, or limit the trial court’s discretion to exclude such
testimony under Evidence Code section 352. Here we conclude
that when those circumstances involve calling a former guilt
and penalty phase juror and alternate juror to testify as
character witnesses at the penalty retrial, the trial court acts
well within its discretion in precluding such testimony.




18
       Evidence Code section 704 provides: “(a) Before a juror
sworn and impaneled in the trial of an action may be called to
testify before the jury in that trial as a witness, he shall, in
proceedings conducted by the court out of the presence and
hearing of the remaining jurors, inform the parties of the
information he has concerning any fact or matter about which
he will be called to testify.
       “(b) Against the objection of a party, a juror sworn and
impaneled in the trial of an action may not testify before the jury
in that trial as a witness. Upon such objection, the court shall
declare a mistrial and order the action assigned for trial before
another jury.
       “(c) The calling of a juror to testify before the jury as a
witness shall be deemed a consent to the granting of a motion
for mistrial, and an objection to such calling of a juror shall be
deemed a motion for mistrial.
       “(d) In the absence of objection by a party, a juror sworn
and impaneled in the trial of an action may be compelled to
testify in that trial as a witness.”

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     In sum, the trial court acted within its discretion in
excluding testimony by former Travis Juror No. 8 and former
Travis Alternate Juror No. A-4.
             b. Defense counsel’s proposed testimony
     Travis contends that the trial court erred in placing
unreasonable conditions on proffered testimony by his trial
counsel. We conclude any error was harmless beyond a
reasonable doubt.
                 (1) Factual background
       After the trial court precluded testimony by the first
penalty phase juror and alternate juror, and before the start of
the penalty retrial, Travis moved to have his trial counsel,
James Leininger, either testify on his behalf or withdraw.
Travis sought to have Leininger testify “to the issue of [Travis’s]
moral character[,] to wit: his recovery from alcohol and drug
addiction, his commitment to the maintenance of this recovery
through the twelve steps of Alcoholics Anonymous, and the
practice of these steps in his everyday life, thus reflecting a
marked departure from the moral and spiritual bankruptcy he
experienced at the time of the crime to [his] present day status
of being a child of God in good standing with his Creator.” He
asserted that “[i]f such testimony is not allowed, John Travis
will have no witnesses of his choosing to . . . show[] the change
in his moral character.” “The true character of the real John
Travis who has risen from the grasp of moral depravity to
become a remorseful, loving person who can and does every day
seek to implement the will of God will never be known to the
jury.”
       At the February 5, 1997 motion hearing, Leininger
asserted that Reverend Charon, not Leininger, would testify as

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to Travis’s “religious progress.” Leininger intended to testify
about “what [Leininger had] observed about Mr. Travis over a
period of years, what [Travis] was like the first couple of years
[Leininger] dealt with him, [and] what he was like after that.”
Leininger asserted that he, Leininger, was the only known
witness “who has had any consistent contact with Mr. Travis
over the last six years [and] who has any knowledge of recovery
or what Mr. Travis is going through.” The prosecutor objected
to testimony by defense counsel.
       The court stated no case precluded Leininger from
testifying, but the court believed “it’s a completely foolish idea.”
It observed that in a penalty phase, “the argument to the jury is
almost as important as the evidence itself, and if an attorney
cannot do that with credibility” because he had previously lost
credibility while testifying as a witness, “then that goes to the
defendant’s definite detriment.” The court took the matter
under submission, offering the parties guidelines or “pitfalls” to
consider before it ruled the following week. Travis would be
required to completely waive his attorney-client privilege; if
Leininger qualified as an expert, “he will only be able to testify
as an expert regarding recovery as a certified alcohol and drug
counselor,” not regarding religion or “as a character witness”;
the prosecutor could request to interview Leininger, and if
Leininger refused, the prosecutor could mention that refusal
during closing argument; if the prosecutor sought discovery,
Leininger’s files would “probably” have to be turned over to the
court for in camera review; it would be improper for Leininger
to argue his own credibility during closing argument; and no
continuance would be granted for opening statements scheduled
to begin about one week later.



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       At the next hearing on February 11, 1997, Leininger said
he had “sought the advice of others and conveyed this to Mr.
Travis and we have had a significant opportunity to talk about
the pros and cons. . . . Given the restriction of moral and
character evidence not being testified to,” Leininger would not
testify, but would get another person to assess Travis, and “do
the recovery work with [that] professionally-trained person.”
                (2) Analysis
      We have held that “a trial court may not deny the
defendant the right to present . . . evidence through the
testimony of his counsel, notwithstanding the provisions
relating to testimony by counsel in the Rules of Professional
Conduct.”19 (People v. Marquez (1992) 1 Cal.4th 553, 574.)
Here, the trial court recognized it could not prohibit Leininger’s
testimony, but Travis argues that the court placed conditions on
that testimony that were so onerous they deprived him of critical
mitigating evidence.
      Assuming for the sake of argument that the trial court
imposed these conditions should Leininger testify, and that this
imposition was improper, any error was harmless beyond a
reasonable doubt. (People v. Earp (1999) 20 Cal.4th 826, 879
[any error in barring defense counsel from testifying was
harmless in light of other evidence].) Travis asserts that he
“intended to offer character evidence in two very narrow areas
— [his] recovery efforts and his remorse for the homicide.”


19
      Rules of Professional Conduct, rule 3.7 provides as
relevant: “(a) A lawyer shall not act as an advocate in a trial in
which the lawyer is likely to be a witness unless: [¶] . . . [¶]
(3) the lawyer has obtained informed written consent from the
client.”

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Travis also notes that Leininger’s testimony regarding Travis’s
recovery process “would have added nothing to the similar
testimony from Dr. Cermak, [Reverend] Charon, and Sharon
Lutman.”
       We therefore consider whether Leininger would have
provided critical evidence on the issue of Travis’s remorse. We
conclude ample other evidence of remorse was presented. Travis
testified at the penalty retrial that he accepted the jury’s guilt
verdict and had admitted his responsibility for Madden’s
murder at the time of his arrest. His purpose in testifying was
to tell the truth and to let the jury know “that I am remorseful
for what I have done.” He described what he had done as
“heinous,” and was “ashamed and humiliated” he had caused
others pain. He had unsuccessfully asked his attorney if he
could write to the Madden family or seek their forgiveness in
court. In addition, Reverend Charon, who had known Travis for
about four years, testified that Travis appeared “very
remorseful, and was earnestly seeking a way, under the
circumstances, that he could express . . . his regret, and also, if
there was anything that was possible [for him] to make amends,
recognizing that you can never really make full amends.”
Defense expert Lutman testified Travis had appeared sincere
and the most emotional when discussing his desire to make
amends to Madden’s family. Although this testimony by Travis,
Reverend Charon, and Lutman could be viewed by the jury as
self-serving or biased, Leininger — who had represented Travis
for six years — would have also reasonably been viewed as
closely aligned with Travis and not as an objective and
disinterested witness.
       To the extent Travis asserts Leininger would have
testified regarding Travis’s transformation in jail, ample

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evidence in this area was also otherwise adduced. Two jailers,
Correctional Officers Forster and Damewood, testified
regarding Travis’s respectful and studious jail behavior, his
faithful work as a trustee, and his potential to change the lives
of other inmates. (See ante, pp. 31–32.) In addition, Travis
testified that after the failed escape plan, he realized he had
been “making the wrong decisions,” and “started thinking real
hard about what I want[ed] to do with my life.” He began
recovery and started learning about AA and Narcotics
Anonymous, although no AA meetings were available where
Travis was housed. Travis further testified that he also began
to work with Reverend Charon. He said he had participated in
the jail’s Tutor Program that helped inmates learn to read and
do math. He often shared his message of recovery with these
individuals. It was Travis’s “heart’s desire . . . to help those who
have been in the same situation I have.” Travis’s sister D.S.
testified she saw Travis shortly before Madden’s murder, and
said his “eyes looked dead and he looked like he [had] lost his
soul,” and he appeared to be cold, distant and “mad at the
world.” By contrast, D.S. had visited Travis in jail, and testified,
“[H]e’s got . . . this glow,” and there was hope in his eyes.
       In sum, we conclude any assumed error in any conditions
placed on defense counsel Leininger’s proposed testimony was
harmless beyond a reasonable doubt.
             c. Silveria’s statement to police
      Silveria contends that the trial court erroneously excluded
his statement to police, and thus mitigating evidence that on the
night of his arrest he had acknowledged his involvement in and
expressed remorse for Madden’s murder. He further claims that
the exclusion of this evidence is a consequence of the trial court’s


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erroneous denial of his penalty retrial severance motion. (See
ante, pt. II.B.1.b.) We reject the claim.
      At the guilt phase, each defendant’s statement was played
for his jury. When the trial court denied Silveria’s penalty
retrial severance motion, it ruled that the prosecutor could not
introduce Silveria’s (or Travis’s) statement to police in his case-
in-chief because of confrontation clause concerns,20 but could

20
       We have previously assumed without deciding that the
confrontation clause applies to penalty phase evidence. (Rangel,
supra, 62 Cal.4th at p. 1232; People v. Fuiava (2012) 53 Cal.4th
622, 720; see Hajek and Vo, supra, 58 Cal.4th at pp. 1165, 1176
[applying the Aranda/Bruton rule to cross-examination by the
prosecutor of Hajek’s penalty defense expert, a clinical
psychologist, who repeatedly testified on cross-examination that
Hajek had denied killing the victim]; id. at p. 1177 [holding
Hajek’s statement to his psychologist that he did not kill the
victim did not facially incriminate Vo because its “incriminatory
effect depended entirely on its linkage to other evidence”].) We
do so again here.
     In Bruton v. United States (1968) 391 U.S. 123, 127–128,
137, as later limited by Richardson v. Marsh (1987) 481 U.S.
200, 208–209, the United States Supreme Court held that the
admission into evidence at a joint trial of a nontestifying
codefendant’s confession incriminating the defendant on its face
violates the defendant’s right to cross-examination guaranteed
by the confrontation clause, even if the jury is instructed to
disregard the confession in determining the guilt or innocence
of the defendant. We reached a similar conclusion in California
three years before Bruton in People v. Aranda (1965) 63 Cal.2d
518. We have, however, held that “[t]o the extent that our
decision” in People v. Aranda, regarding redaction or exclusion
of the out-of-court confession of a defendant that implicates a
codefendant, “constitutes a rule governing the admissibility of
evidence, and to the extent this rule of evidence requires the
exclusion of relevant evidence that need not be excluded under
federal constitutional law, it was abrogated in 1982 by the


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introduce portions of Silveria’s first penalty phase testimony for
which Travis had been present and had the opportunity to cross-
examine Silveria. (Evid. Code, § 1291, subd. (a); see ante, p. 87;
People v. Stevens (2007) 41 Cal.4th 182, 199 [“The Sixth
Amendment confrontation clause does not bar hearsay
statements of a witness who testifies at trial and is subject to
cross-examination”]; see Crawford v. Washington (2004) 541
U.S. 36, 59, fn. 9 (Crawford).) The court subsequently raised the
issue that this former testimony might at times refer to
Silveria’s excluded statement to police. After hearing argument
by the parties, the court barred any reference to Silveria’s
statement to police during the reading of the transcript of
Silveria’s former testimony.
      In light of the court’s ruling barring any reference to
Silveria’s statement to police during the prosecutor’s
presentation of Silveria’s former testimony, and apparently to
avoid opening the door to other portions of Silveria’s statement
to police being admitted, Silveria withdrew his own pending
motion to introduce Silveria’s statement to police. Silveria’s
counsel asked that Silveria simply be permitted to ask Santa
Clara Sergeant Ted Keech, who had interviewed Silveria after
his arrest and would at that point need to be recalled as a
witness, whether Silveria had admitted his participation in the
LeeWards robbery and murder. The court ruled that Silveria
would be permitted to ask this question, and also ruled that the
prosecutor would be permitted to ask Sergeant Keech one
question regarding whether Silveria had minimized his


‘truth-in-evidence’ provision of Proposition 8 (Cal. Const., art. I,
§ 28, subd. (d) [now § 28, subd. (f)(2)]).” (People v. Fletcher
(1996) 13 Cal.4th 451, 465.)

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participation in the crime. Sergeant Keech was not recalled, and
hence was not asked whether Silveria had admitted his
participation in the LeeWards robbery and murder.
       There was no error. The record reveals that once the court
had barred all reference to Silveria’s statement to police during
the reading of Silveria’s former testimony, Silveria
understandably sought to avoid opening the door to evidence of
the damaging portions of his statement to police, such as
inconsistencies between his statement and his former penalty
phase testimony, and withdrew the motion to admit the
statement. Moreover, Silveria received the opportunity to
present the evidence he now claims was precluded. Thus, the
trial court ruled that Silveria could ask Sergeant Keech, who
had interviewed Silveria on the night of his arrest, whether
Silveria had admitted his participation in the LeeWards robbery
and murder. Silveria chose not to ask this question.
      For these same reasons we reject Silveria’s further
arguments that exclusion of his statement to police was
“fundamentally unfair under the Fourteenth Amendment,” and
that denial of his penalty retrial severance motion erroneously
precluded him from presenting mitigating evidence in his
statement to police of his “early acknowledgement of guilt” and
“expressions of remorse for the murder on the night of his
arrest.” In his reply, Silveria asserts that during deliberations
the jury asked to see his confession, demonstrating it “was
important to the jury’s determination of penalty.”21 As can be
seen, Silveria withdrew his motion to admit his statement to
police, and failed to recall Sergeant Keech as a witness to ask

21
      In the note, the jury requested “[a]ny police reports from
his initial arrest — confession?”

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him whether Silveria had admitted his participation in the
LeeWards robbery and murder.
      Moreover, even assuming for the sake of argument there
was error, there was no reasonable possibility Silveria was
prejudiced.        Silveria’s   introduction    of    his   early
acknowledgement of guilt in his statement to police would have
allowed the prosecutor to introduce the remainder of Silveria’s
statement, including his initial repeated denials of involvement
in Madden’s murder and inconsistencies between the statement
and Silveria’s former testimony regarding his description of the
murder. In addition, Silveria presented other evidence of his
early acknowledgement of guilt. On direct examination at the
penalty retrial, Sergeant Keech testified that after meeting
Silveria (and his coperpetrators), he had received certain
information that caused him to direct an officer to return to
LeeWards to seize a gas can. On cross-examination by Silveria,
Sergeant Keech testified that he had interviewed Silveria early
on the morning of January 30, and agreed with defense counsel
that it was during this interview that Sergeant Keech first
learned of the significance of the gas can and where it was
located.22 This indicates that Silveria had acknowledged
involvement with the murder during the interview.
      Silveria also presented ample evidence of his remorse. His
former testimony that was read to the jury at the penalty retrial
recounted that Silveria did not believe causing Madden pain
with the stun gun was “right,” and felt “horrible for doing it,”


22
      In his first penalty phase testimony that was introduced
at the penalty retrial, Silveria said the perpetrators brought a
gas can to burn the store down, but Silveria decided it was not
needed and the can was left outside near a trailer.

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that Silveria felt “sick” about participating in Madden’s murder,
and “horrible” about the effect of the murder on Madden’s
family. Silveria did not feel that anything that had happened
to him in his life was an excuse for what he did on the night of
Madden’s murder, but rather that he “should be held
accountable for what [he] did,” and “deserve[d] whatever
punishment [was] given to” him. In addition, Patricia Gamble
testified that on several occasions Silveria said that he was
sorry, was praying for the Madden family, and “knows how it
feels to grow up without a father and that it hurt him to know
that Julie [Madden’s daughter] now would not have a father to
grow up with.” Morrella, Silveria’s former girlfriend, testified
that Silveria said he felt “very bad about the fact that Julie,”
Madden’s young daughter, “was going to grow up without a
father,” that “he had been praying for the family and that he . . .
felt terrible and that he was just continuously praying for them.
He was very remorseful.” Correctional Officer Bergado recalled
Silveria appearing distraught and explaining to the officer, “I’m
just really . . . sad . . . for the family of the victim,” he was
“asking for forgiveness and he’s sorry for what he did and he
feels sorry for the family of his victim and his family.” Reverend
Charon testified that he and Silveria periodically discussed
Silveria’s remorse about Madden’s murder and Silveria’s
concern for Madden’s wife and family. Thus, Silveria fails to
demonstrate that denial of his severance motion or any assumed
denial of his motion to introduce his statement to police
precluded him from presenting “important mitigating evidence.”
             d. Spiritual evidence
     Silveria contends that the trial court erroneously excluded
mitigating evidence of his interest in Christianity and the Bible.
We reject the claim.
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       During the testimony of Julie Morrella, Silveria’s former
girlfriend who visited him in jail after his arrest, the trial court
sustained hearsay objections on several occasions when she
recounted Silveria’s statements to her. Even assuming for the
sake of argument that these rulings were erroneous or a
“mechanistic” application of the hearsay rule, as Silveria
asserts, he was not thereby precluded from introducing
mitigating evidence of his interest in Christianity and the Bible.
Rather, Morrella testified that at some point she and Silveria
began to discuss Christianity, and these conversations occurred
at least once a week over a period of time. Silveria was very
excited about Christianity and animated during their religious
discussions. He quoted scripture and began to bring the Bible
and other Christian literature to their meetings. In Morrella’s
view, Silveria responded “appropriate[ly]” when Morrella told
him she was a Christian and that she had a “real sense of peace
with the Lord by [her] side.” They discussed the relevance of the
Bible today and the “ways that it could actively work in [their]
lives,” including its relevance to Silveria’s life in jail.
      This testimony was similar to the excluded testimony that
Silveria told Morrella “he was really excited because he had
started reading the Bible, Silveria “mentioned that he was
starting with the Old Testament,” Silveria said, “ ‘Gosh, I just
read a really good book,’ ” and Morrella’s testimony, “[S]ince he
started reading the Bible, he would bring in something” and “He
would usually discuss with me what he had been reading, what
he had been learning.” Thus, even assuming exclusion of these
statements was erroneous, there is no reasonable possibility the
penalty verdict would have been different had this testimony
been admitted. (See People v. Brown, supra, 46 Cal.3d at p. 448.)


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             e. Limitation on time period of Morrella’s
                testimony
      Silveria summarily contends the trial court erred in
precluding Morrella from testifying regarding any jail visits to
him between the end of the first penalty phase in February 1996
and the time of her testimony at the penalty retrial in March
1997 under Evidence Code section 1252.23 He does not identify
when this ruling was made or note whether he objected to it. He
simply quotes a sidebar discussion during Morrella’s testimony
in which the trial court stated without objection: “I won’t
tolerate any evidence or accept any evidence of visits between
this witness and the defendant between February of ’96 and the
present under 1252.” No prejudicial error is demonstrated.
      “Although defendant had a constitutional right to have the
jury hear all mitigating evidence counseling against the death
penalty, ‘a capital defendant has no federal constitutional right
to the admission of evidence lacking trustworthiness,
particularly when the defendant seeks to put his own self-
serving statements before the jury without subjecting himself to
cross-examination.’ ” (Peoples, supra, 62 Cal.4th at p. 757.)
Thus, “statements by a defendant to a third party regarding the
defendant’s state of mind can be admissible, but not when made
under circumstances that indicate a lack of trustworthiness.
(Evid. Code §§ 1250, 1252.)” (Ibid.)
      In Peoples, we held that the trial court could reasonably
conclude the defendant’s hearsay statements of remorse made


23
     Evidence Code section 1252 provides: “Evidence of a
statement is inadmissible under this article if the statement was
made under circumstances such as to indicate its lack of
trustworthiness.”

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to two pastors after the defendant’s attorneys had begun
working on the case were unreliable. (Peoples, supra, 62 Cal.4th
at pp. 755, 758.) Similarly here, the trial court could reasonably
find that statements made by Silveria to Morrella while he
awaited his penalty retrial were made under untrustworthy
circumstances. Moreover, as can be seen, Morrella was
permitted to testify regarding Silveria’s expressions of remorse
and religious commitment made during a different period of his
incarceration, hence any assumed error was harmless beyond a
reasonable doubt.
             f. Letter to Morrella
     Silveria contends the trial court erroneously excluded
mitigating evidence of a letter he wrote to Morrella expressing
remorse about the capital crimes. We reject the claim.
      The letter does not meaningfully differ from Morrella’s
testimony about Silveria’s statements of remorse. In the letter
Silveria states: “I wrote the victim[’]s (Jim’s) family a letter
expressing how [I] feel about the tragedy I’ve caused them. It
was written from the heart and is how I feel. I just hope they
are receptive when the[y] get it. Julie it was very hard for me
to write it[.] But I wanted them to know that I’m not insensitive
to their feelings.” Morrella testified that during their jail visits,
Silveria told Morrella he felt “very bad about the fact that Julie,”
Madden’s young daughter, “was going to grow up without a
father.” Silveria told Morrella “he had been praying for the
family and that he . . . felt terrible and that he was just
continuously praying for them. He was very remorseful.” Given
Morrella’s testimony, any assumed error in precluding
admission of the letter from Silveria to Morrella was harmless
beyond a reasonable doubt.


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             g. Letters to Munoz and the Madden family
      Silveria contends that the trial court erroneously excluded
mitigating evidence contained in his letters to Elizabeth Munoz
(the Heberts’ neighbor) and to the Madden family. We reject the
claim.
      Silveria did not testify at the penalty retrial. Munoz
identified a letter dated April 10, 1995 as one she had received
from Silveria, but she was not asked to testify regarding its
content. There was no testimony regarding the letter to the
Madden family. Silveria attempted to show the Madden family
letter to Reverend Charon during Travis’s penalty retrial
defense case, but the trial court ruled he would need to recall
Reverend Charon as a witness. Reverend Charon was not
recalled. At the end of the penalty retrial, Silveria sought to
have both letters admitted, and the court excluded them because
they lacked foundation.
      Silveria contends that the trial court “knew full well” that
Silveria had written the letters and had laid the foundation for
their admission during the original penalty phase. Even if
correct, Silveria was still required to lay a foundation for the
letters at the penalty retrial. (See People v. Mattson (1990)
50 Cal.3d 826, 849–850 [At a new trial, “[a]bsent a statutory
provision precluding relitigation, a stipulation by the parties, or
an order by the court that prior rulings made in the prior trial
will be binding at the new trial, . . . the court must consider the
admissibility of . . . evidence at the time it is offered”].) Silveria
nonetheless asserts the trial court “relied upon a mechanistic
application of the rules of evidence to prevent the jury from
considering mitigating evidence of [Silveria’s] background, his



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shame, remorse, and request for forgiveness from the Madden
family.”
      As to the Madden family letter, there is no name to whom
the letter is written in the salutation, nor does Silveria use the
names of Madden’s wife or daughter in the letter. Nor was there
evidence that the letter was ever even mailed. In the letter,
Silveria states that “one act of violence does not portray or even
remotely describe how I’ve [b]een raised or the person I am
today”; he prays for the family frequently; he’s “not insensitive
to your family’s feelings and it’s very hard for me to think of a
certain little girl growing up without a Dad — I do know how
that feels”; he wants “you, your daughter, and loved ones to
know that I’m at a loss for words when trying to describe how
ashamed and saddened I feel now and every time I think of Jim
and your family”; he would “welcome a life in prison over the
misery I’ve caused you and both our families”; and he asks for
their forgiveness.
      In the five-page Munoz letter, Silveria discusses a variety
of topics. As to his spiritual life, he stated “the Father Jesus has
done [immensely] more than make up for any pain and suffering
that I may [have] gone through growing up”; that despite the
“pain and suffering” that Silveria had caused others, “the Lord
has given me the greatest gift of all, eternity with Him and a
peace and joy now that is [inexpressible]”; recounted a line from
a Christian song he liked; and noted two men whose sermons he
enjoyed.
      There was no error. The letters lacked foundation and
were inadmissible hearsay. Moreover, as noted, “[a]lthough
defendant had a constitutional right to have the jury hear all
mitigating evidence counseling against the death penalty, ‘a
capital defendant has no federal constitutional right to the

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admission of evidence lacking trustworthiness, particularly
when the defendant seeks to put his own self-serving statements
before the jury without subjecting himself to cross-
examination.’ ” (Peoples, supra, 62 Cal.4th at p. 757.)
      In addition, any assumed error in excluding these letters
was harmless beyond a reasonable doubt. As to the letter to
Madden’s family, significant evidence of Silveria’s remorse and
spirituality was presented at the penalty retrial. Evidence of
remorse included Silveria’s first penalty phase testimony that
after his arrest, he assisted Officer Hyland in apprehending
Spencer and Jennings; that Silveria did not believe causing
Madden pain with the stun gun was “right,” and felt “horrible
for doing it”; that Silveria felt “sick” about participating in
Madden’s murder, and “horrible” about the effect of the murder
on Madden’s family; and Silveria did not feel that anything that
had happened to him in his life was an excuse for what he did
on the night of Madden’s murder, but rather that he “should be
held accountable for what [he] did,” and “deserve[d] whatever
punishment [was] given to” him. In addition, Morrella,
Silveria’s former girlfriend, testified that Silveria said he felt
“very bad about the fact that Julie,” Madden’s young daughter,
“was going to grow up without a father,” that “he had been
praying for the family and that he . . . felt terrible and that he
was just continuously praying for them.              He was very
remorseful.”
      As for Silveria’s spirituality in jail, the evidence included
Reverend Charon’s testimony that it “would be very difficult” to
feign the level of study and depth of interest Silveria had shown
over the years in Christianity. Patricia Gamble testified that
she and Silveria both studied the Bible and shared with each
other what they had learned. Silveria exhibited “an excitement

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and a real joy about what he was learning.” Morrella testified
that Silveria was very excited about Christianity and animated
during their religious discussions. Correctional Officer Bergado
and Silveria had for several years discussed Christianity and
lessons Silveria had learned from the Bible.
             h. Psychiatric expert
      Silveria contends that the trial court erred in limiting the
testimony of Dr. Kormos, his psychiatric expert and thereby
precluding evidence that would have demonstrated “how the
neglect, deprivation and physical and sexual abuse [Silveria]
suffered throughout his childhood affected his conduct on the
day of the crimes,” how Silveria’s “relationship with co-appellant
Travis, and the other co-defendants, affected [Silveria’s] conduct
at the time of the crimes,” and how Silveria had positively
developed in the six years since the crimes. He also claims that
the trial court erred in allowing the prosecutor to ask
Dr. Kormos about Madden’s murder. We reject the claim.
                 (1) Factual background
      Dr. Kormos testified at the first penalty phase before only
Silveria’s jury. At the joint penalty retrial, Dr. Kormos testified
that he had relied in part on Silveria’s first penalty phase
testimony in forming his opinion that Silveria suffered from a
continuing condition of child neglect. Dr. Kormos’s testimony
for that day ended.
      In hearings outside the jury’s presence, the question arose
whether Dr. Kormos could rely on Silveria’s former testimony as
a basis for his opinion given portions of this former testimony
regarding Silveria’s childhood had not been admitted at the
penalty retrial. The parties also broadly discussed whether the
circumstance that Dr. Kormos had reviewed Silveria’s and

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Travis’s statements to police — which had also been excluded at
the penalty retrial — would give rise to Aranda/Bruton or
confrontation clause issues for Travis (see ante, p. 115, fn. 20)
and unduly limit his and the prosecutor’s cross-examination of
Dr. Kormos because they could not cross-examine Dr. Kormos
about the excluded statements to police. Silveria’s counsel,
Mr. Geoffrey Braun, asserted he did not intend to ask
Dr. Kormos about defendants’ statements to police and argued
that there were no confrontation clause issues with the
unadmitted portion of Silveria’s former testimony because none
of his statements concerning “what [had] happened in his life”
implicated Travis. The prosecutor disagreed, asserting that to
properly cross-examine Dr. Kormos as to whether Silveria had
an antisocial personality disorder rather than a condition of
child neglect, he would need to point out inconsistencies Silveria
had made in his former testimony and Silveria’s statement to
police.
      The court expressed concern to Silveria that the
prosecutor “cannot properly and fully cross-examine your
witness, because he cannot get into the areas and some of the
documents that your witness has considered” because of Travis’s
“constitutional rights.” The trial court stated Silveria had two
choices, i.e., to either have the court strike Dr. Kormos’s
testimony from the previous day or to pause Dr. Kormos’s
testimony until Silveria decided whether he would testify.24


24
      If Silveria testified, Aranda/Bruton would not bar the jury
from hearing evidence of Silveria’s statement to police that
inculpated Travis because Travis could cross-examine him
regarding it. (See Crawford, supra, 541 U.S. at p. 59, fn. 9


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      The prosecutor suggested as a compromise that
Dr. Kormos make no reference to having considered the
defendants’ statements to police, which again had not been
admitted at the penalty retrial, and not discuss what Silveria
had said about Travis, and that the prosecutor and Travis
inquire “into inconsistencies without specifying that they came
from a source the jury is not to know about.” The prosecutor
acknowledged that “the People’s right of full cross-examination
would be restricted, but so long as we are allowed the
opportunity to develop from the witness that . . . there have been
inconsistencies in what Silveria has related,” and Dr. Kormos
was subject to recall, he was prepared to proceed.
       Silveria rejected this option.      The trial court stated
Silveria had three options. He could (1) strike Dr. Kormos’s
testimony, (2) give Silveria time to consider whether he would
testify, or (3) agree to the prosecutor’s proposal.
      After the parties privately negotiated, they agreed to a
fourth option that included the following terms. Dr. Kormos
would not testify regarding Madden’s murder on either direct or
cross-examination. Silveria had turned 21 years old on
December 22, 1990, the month before Madden’s murder. To
avoid recounting any statements about the January 1991 crime,
Silveria’s counsel would limit any diagnosis by Dr. Kormos to
information up to December 22, 1990 or Silveria’s 21st birthday.
Silveria’s counsel stated: “I need not ask the doctor questions
about his diagnosis of Mr. Silveria subsequent to the time of the


[“[W]e reiterate that, when the declarant appears for cross-
examination at trial, the Confrontation Clause places no
constraints at all on the use of his prior testimonial
statements”].)

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crime, that is, during the time he was in jail.” The People would
“be allowed to cross-examine regarding any possible differential
diagnosis up to that same point in time based on the same
information.” Dr. Kormos would be subject to recall. The
parties agreed to this stipulation, and Dr. Kormos’s direct
testimony resumed.
      The prosecutor reserved his cross-examination.          On
redirect examination, Silveria asked Dr. Kormos whether he
believed persons who had suffered about the same “degree of
abuse that Mr. Silveria suffered according to what you know
about his life, . . . would indeed suffer from severe psychiatric
and psychological problems later in life.” Dr. Kormos replied:
“Yes. I would estimate a solid majority.” Silveria also asked,
“Would it include criminality?” Dr. Kormos replied, “It could
very well include criminal behavior.” Silveria also asked
Dr. Kormos whether “that kind of a background would impair
Mr. Silveria’s, or anyone who has grown up with a similar
background, ability to make rational choices later in life.”
Dr. Kormos replied: “Yes. I think that there would likely be
such distortions in his views of the world that his decisions are
likely to be skewed.” He subsequently added, “I think their
entire world view would be impaired, and that would certainly
have an effect on all decisions they make.” At sidebar, the court
indicated it did not “think anybody has gone beyond the
agreement.” Silveria rested.
     After Travis testified and rested his defense case, the trial
court allowed the prosecutor to recall and cross-examine
Dr. Kormos limited to “what was brought up on direct
examination” by Silveria and cross-examination by Travis. The
prosecutor asked whether Dr. Kormos had spoken with Silveria
“about the circumstances of the crime.” Silveria objected. At
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sidebar, Silveria’s counsel asserted that “what Mr. Silveria may
have said about the crime . . . creates insurmountable Sixth
Amendment problems.” The court ruled that because Silveria
had asked “later in life” questions, he had opened the door, and
the prosecutor could explore, after laying an appropriate
foundation, whether Silveria had been inconsistent in his
statements regarding the circumstances of the crime.
       The prosecutor asked, “In formulating the opinions that
you’ve testified about your assessment and diagnosis of Mr.
Silveria would it be important to you if he lied to you . . . about
aspects of how he committed this crime?” Dr. Kormos replied,
“[I]t would be important to me to know whether Danny Silveria
lied to me, but . . . I would also consider it important as to why
he lied and how he lied.” The prosecutor subsequently said to
Dr. Kormos that he would be asking him “in a moment about
what Mr. Silveria told you that he did in a particular aspect of
the commission of the crime,” and asked Dr. Kormos if he
understood. Dr. Kormos said “Yes.” The prosecutor said he was
not asking Dr. Kormos “about anything that [Silveria] said
anyone else did,” and Dr. Kormos again said he understood. The
prosecutor then asked, “What did Mr. Silveria tell you about his
use of the stun gun on Jim Madden during the commission of
this crime?” Dr. Kormos replied, “Danny told me that he had
used the stun gun . . . on the victim while the crime was being
committed,” and clarified that he had used the stun gun while
the stabbing was being carried out. Dr. Kormos also agreed with
the prosecutor he was aware of sworn testimony by Silveria in
which he said he had “used the stun gun in some type of an effort
to knock Mr. Madden out before any stabbing,” and replied,
“[Y]es,” when asked if these two statements appeared to be
inconsistent. The prosecutor then asked if that inconsistency,

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and the fact that deceit and manipulation are central features
of an antisocial personality disorder, caused Dr. Kormos to
change his opinion that the best diagnosis of Silveria was child
neglect rather than antisocial personality disorder. Dr. Kormos
replied: “No. It would not change my opinion.”
                (2) Analysis
      As described above, the trial court sought (in light of
confrontation clause concerns) to preclude statements by
Silveria to law enforcement or to Dr. Kormos, or made in the
unadmitted portion of Silveria’s first penalty phase testimony,
that implicated Travis, and to assure adequate cross-
examination by the prosecutor and Travis. Silveria asserts that
the trial court erred in limiting Dr. Kormos’s testimony to the
period before December 22, 1990, or Silveria’s 21st birthday.
Silveria contends that this limitation was improper because
there was no risk that Travis’s confrontation clause rights would
be violated by testimony (1) explaining how the neglect and
abuse Silveria suffered as a child, and his relationship with
Travis and the other perpetrators, affected his conduct on the
day of Madden’s murder, and (2) delineating Silveria’s positive
development in the six years since the crime. He asserts, relying
on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), that the
trial court erred in not specifically considering Dr. Kormos’s
proposed testimony and excluding “only those portions that
would have ‘presented, as facts, the contents of the testimonial
hearsay statements.’ ” 25


25
     “Although the court in Crawford ‘did not offer an
exhaustive definition of “testimonial” statements,’ the court has
since clarified that ‘a statement cannot fall within the


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      As described above, the record demonstrates that the
parties broadly focused on finding a solution that would keep
Dr. Kormos as a witness, allow Travis and the prosecutor
adequate cross-examination, and avoid infringing on Travis’s


Confrontation Clause unless its primary purpose was
testimonial’ (Ohio v. Clark (2015) 576 U.S. ___, ___–___ [135
S.Ct. 2173, 2179–2180 [192 L.Ed.2d 306, 135 S.Ct. 2173, 2179–
2180]]) — that is to say, unless the statements are given in the
course of an interrogation or other conversation whose
‘ “primary purpose . . . is to establish or prove past events
potentially relevant to later criminal prosecution.” ’ ” (Rangel,
supra, 62 Cal.4th at p. 1214.) “Under this test, ‘[s]tatements
made to someone who is not principally charged with uncovering
and prosecuting criminal behavior are significantly less likely to
be testimonial than statements given to law enforcement
officers.’ ” (Ibid, quoting Ohio v. Clark, supra, 576 U.S. 237,
249.)
       In Sanchez, supra, 63 Cal.4th at page 686, this court held
that an expert cannot “relate as true case-specific facts asserted
in hearsay statements, unless they are independently proven by
competent evidence or are covered by a hearsay exception.” (See
People v. Powell (2018) 6 Cal.5th 136, 175, 177 (Powell) [trial
court acted within its discretion in precluding the defendant’s
psychologist from testifying at the penalty phase about the
defendant’s self-serving statements to him that were offered for
their truth].) “If the case is one in which a prosecution expert
seeks to relate testimonial hearsay, there is a confrontation
clause violation unless (1) there is a showing of unavailability
and (2) the defendant had a prior opportunity for cross-
examination, or forfeited that right by wrongdoing.” (Sanchez,
at p. 686.) In Sanchez, we disapproved People v. Gardeley (1996)
14 Cal.4th 605, which had been recently decided at the time of
the March 1997 hearing below, “to the extent it suggested an
expert may properly testify regarding case-specific out-of-court
statements without satisfying hearsay rules.” (Sanchez, at
p. 686, fn. 13.)


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confrontational rights. Moreover, the trial in this case preceded
the high court’s 2004 decision in Crawford, supra, 541 U.S. 36,
hence the parties did not use the term “testimonial.” For these
reasons the trial court was not asked to rule on whether any
specific statement by Silveria was testimonial, and therefore
could not have erred in failing to do so.
       Silveria asserts that the prosecutor and Travis knew when
Dr. Kormos testified at the first penalty phase that he had
reviewed defendants’ statements to police, but at that time
expressed no concern for Travis’s “rights,” or presumably
Travis’s right not to be implicated by Silveria’s testimonial
hearsay statements and his right to adequate cross-
examination. (See ante, p. 131, fn. 25.) Dr. Kormos testified at
the first penalty phase only before Silveria’s jury; Travis was not
present. Given Travis’s absence, the prosecutor would not have
had any reason to raise this issue.
       Silveria also asserts that Travis fully cross-examined
Silveria at the first penalty phase, hence there could be no
confrontation clause issue for Travis at the penalty retrial.
Travis was present for and cross-examined Silveria regarding
his testimony on the circumstances of the crime.26 However,


26
       As noted, at the first penalty phase, Travis and Silveria
had separate juries. As pertinent here, the trial court ruled that
if Silveria or Travis testified, they would testify before both
juries when discussing the circumstances of the crime. The
court stated it was in “no position” to tell a defendant how to
testify, and that if the testimony regarding the circumstances of
the crime was not made a separate topic, “then both juries will
have to be present for the entire testimony of the defendant.”
Silveria structured his testimony so that his testimony about
the crime was distinct from his testimony about other areas of


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Travis was not present, and did not cross-examine Silveria
regarding Silveria’s testimony about his childhood. Moreover,
although Silveria asserts that Travis testified at the penalty
retrial, this testimony occurred after the parties entered into the
agreement regarding Dr. Kormos’s testimony.
        Silveria further asserts that the trial court’s “threats
to . . . strike all of Dr. Kormos’s testimony” resulted in the
exclusion of critical mitigating evidence. But Silveria’s counsel
asserted below that he would “use Dr. Kormos as I primarily did
last time . . . simply to establish the effects of the childhood
traumas that Mr. Silveria suffered and how it affected the
development of his personality up to a point short of the crime.”
He also said, “I need not ask the doctor questions about his
diagnosis of Mr. Silveria subsequent to the time of the crime,
that is, during the time he was in jail.” There was no mention
of counsel curtailing desired examination because of concern
that the trial court had identified striking the testimony as one
option. Although counsel later retreated on these statements
when the court ruled that Silveria had opened the door to the
prosecutor’s cross-examination, the parties and the court were
entitled to rely on counsel’s earlier representations in
formulating and approving the agreement.
        Nor, contrary to Silveria’s assertion here, were the
limitations on Dr. Kormos’s testimony proposed by Silveria a
result of the trial court’s reference to contempt. The court’s
reference to contempt occurred 50 transcript pages before the
parties reached the agreement regarding Dr. Kormos’s


his life such as his childhood. Neither Travis nor his jury was
present for this latter testimony, which was, of course, not
relevant to Travis’s penalty determination.

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testimony. The record indicates that when the trial court said
Silveria’s counsel Mr. Braun was “close to contempt,” it was
expressing frustration regarding counsel’s unwillingness to
simply address an issue, frustration that may well have been
compounded by a recently revealed discovery violation by
counsel that had just been addressed during the same hearing.
The record is not reasonably read as demonstrating that
“because Judge Mullin threatened to . . . hold Braun in
contempt . . . , Braun sought to salvage his defense case by
proposing to confine his direct examination of Dr. Kormos from
[Silveria’s] early childhood up to [Silveria’s] 21st birthday.”
      Moreover, any assumed error in accepting the parties’
agreement to limit Dr. Kormos’s testimony was harmless
beyond a reasonable doubt. Silveria asserts that the limitation
precluded evidence that would have demonstrated “how the
neglect, deprivation and physical and sexual abuse [Silveria]
suffered throughout his childhood, and his “relationship with co-
appellant Travis, and the other co-defendants,” affected
Silveria’s “conduct at the time of the crimes,” and how Silveria
had positively developed in the six years since the crimes. He
also asserts that prejudice is demonstrated because the first
penalty phase jury could not reach a verdict and deliberated for
a lengthier period of time than the penalty retrial jury.
      At the penalty retrial, Dr. Kormos testified he was of the
view that “there was an unusual accumulation of negative
factors in this particular case, more than you would ordinarily
see on the average.” He agreed with defense counsel that a
person with Silveria’s background of failure to bond with either
biological parent, and his experiences of neglect, abandonment,
physical abuse, sexual abuse, and emotional abuse, would be
impaired in his ability to make rational choices later in life,

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because “there would likely be such distortions in his views of
the world that his decisions are likely to be skewed.” He
subsequently added, “I think their entire world view would be
impaired, and that would certainly have an effect on all
decisions they make.” He also testified that a “solid majority” of
persons who had suffered abuse similar to that suffered by
Mr. Silveria “would indeed suffer from severe psychiatric and
psychological problems,” including criminality, later in life.
Dr. Kormos also opined that Silveria had “a very primitive, a
very impaired way of dealing with reality” by trying to push out
of his mind problems that occurred because he believed “there
was . . . nothing that he could possibly do about it.” As to
Silveria’s relationship with his coperpetrators, Dr. Kormos
testified that Silveria, Travis, Spencer, and Jennings “were
quite close,” and “important to each other,” “almost like they
were trying to make up an artificial, a pseudo-family.” Thus,
the jury could reasonably extrapolate from Dr. Kormos’s
testimony a view of how Silveria’s childhood abuse and
relationship with his coperpetrators affected his conduct on the
day of the crime.
       Moreover, Silveria’s counsel asserted below that “I need
not ask the doctor questions about his diagnosis of Mr. Silveria
subsequent to the time of the crime, that is, during the time he
was in jail.” Indeed, ample evidence was introduced regarding
Silveria’s positive behavior in jail following the crime. As noted,
several correctional officers, Silveria’s former girlfriend, one of
his foster mothers, and Reverend Charon testified regarding
Silveria’s spirituality and his remorse for the capital crime. One
officer also testified that Silveria did not engage in physical
altercations with other inmates, commit assaults on correctional
staff, or display behavioral problems. He had not been caught

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possessing weapons, drugs, or alcohol. Another officer testified
that Silveria was intelligent, cooperative, and volunteered for
additional jobs. He appeared to go out of his way to welcome
new inmates, and at the officer’s request, had provided
orientation for inmates new to the module. James Park, a
former San Quentin associate warden, testified Silveria
displayed a “positive and productive” outlook, had spent his jail
time constructively by studying, and if he were to serve a
sentence of life imprisonment without the possibility of parole,
he would “make a good adjustment,” and would not be “a threat
or a danger to other staff or other inmates.” (See ante, pp. 17–
20, 23–24.)
      Thus, Silveria fails to demonstrate what significant
mitigating evidence was excluded by the limitation on
Dr. Kormos’s testimony, and hence also fails to demonstrate
that there is a reasonable possibility that the penalty verdict
would have been different had Dr. Kormos’s testimony not been
limited. Nor, for this same reason, is prejudice demonstrated,
by itself, because the first penalty phase jury hung, or because
the penalty retrial jury deliberated for a shorter period of time
than did Silveria’s first penalty jury. (See People v. Johnson
(2015) 61 Cal.4th 734, 753 [“The length of jury deliberations in
this two-homicide case, by itself, supports no conclusion as to
the closeness of the case or as to any prejudicial effect of
joinder”].)
      Silveria asserts that the trial court’s ruling that Silveria
had opened the door to questions regarding a time after
Silveria’s 21st birthday lacks support in the record and was
contrary to the court’s earlier statement that it did not “think
anybody has gone beyond the agreement.” It is admittedly
unclear why the court changed its view of the record, but it had

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discretion to later find, apparently after reviewing the written
record, that asking “later in life” questions had in fact opened
the door. Nor were the parties misled by the court’s earlier
statement that it did not think the agreement had been violated
because there was no testimony by Dr. Kormos after the court’s
statement and before the prosecutor’s cross-examination.
      Silveria asserts that the trial court allowed the prosecutor
“to cross-examine Dr. Kormos about [Silveria’s] conduct at the
time of the crimes in a completely illegal and blatantly unfair
attempt to show [Silveria] committed a torture-murder, after
preventing [Silveria] from presenting evidence directly relating
to the same time period to show mitigation.” The focus of the
prosecutor’s line of inquiry was not whether Silveria had
committed a torture murder, but rather whether because of
Silveria’s inconsistent statements regarding when during the
murder he used the stun gun, antisocial personality disorder
was a more appropriate diagnosis than Dr. Kormos’s diagnosis
of child neglect. Moreover, although the prosecutor was
permitted to ask Dr. Kormos whether his opinion that child
neglect was the most appropriate diagnosis would change in
light of Silveria’s inconsistent statements as to when he used
the stun gun against Madden, Dr. Kormos replied that this
information would not change his opinion.
      Nor, contrary to Silveria’s assertion, did the prosecutor
assert during closing argument that there “had been no evidence
explaining how those risk factors could be expected to manifest
and affect a person as an adult” or “exploit[] the fact that the
defense had been precluded from presenting the very testimony
that would have explained such a connection.” The prosecutor’s
point in the challenged argument was that no one could know
for certain why individuals with the same background turned

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out differently, and that although Silveria had suffered a
difficult childhood, he had found a reprieve in the Gambles’
home, and then made his own choice to rob and kill.
             i. Fifth Amendment invocation
      Silveria contends the trial court erroneously denied his
right to compulsory process and diluted relevant mitigating
evidence when it ruled that his former foster parent Michael
George had validly invoked his privilege against self-
incrimination. We reject the claim.
      In December 1995, during the original penalty phase,
Silveria testified that in about 1982, when he was about
12 years old, he lived for nearly a year with then San Jose Police
Officer Michael George and his family. On several occasions,
George had sexually molested Silveria.
      During the 1997 penalty retrial, at a hearing outside the
presence of the jury, Silveria sought to call George as a witness
and asserted that the statute of limitations for the molestations
had expired. Stuart Kirchick, George’s counsel, stated he had
spoken with a San Jose police sergeant, “and he said all he could
tell me was there was an open investigation” as to George and
Silveria, and “[w]hether or not that matter is within the statute
of limitations is still a decision that needs to be made.” For that
reason, Kirchick had advised George to invoke his Fifth
Amendment privilege.
      The prosecutor gave the court and counsel copies of a letter
he had received that morning from a private attorney in a civil
action pending against George. The letter stated that George
had admitted molesting the attorney’s client when the client
was 13 years old, and had been “sentenced to a 12 year term at
San Quentin.” The attorney wanted to be present in court

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should George testify in Silveria’s case. In response to the
court’s inquiry, Kirchick said that George had suffered these
convictions in Lake County and had served about 10 months of
his sentence. George was called as a witness during the hearing,
but refused to answer any questions about allegedly sexually
molesting Silveria, and invoked his Fifth Amendment privilege
against self-incrimination. The court ruled that George “has a
legitimate right to claim the Fifth Amendment.”
      We review independently the trial court’s ruling that
George was entitled to invoke his Fifth Amendment privilege to
not incriminate himself. (People v. Seijas (2005) 36 Cal.4th 291,
304 (Seijas).) The Fifth Amendment privilege embraces not only
“answers that would in themselves support a conviction,” but
also those that “would furnish a link in the chain of evidence
needed to prosecute the claimant for a . . . crime.” (Hoffman v.
United States (1951) 341 U.S. 479, 486 (Hoffman); see People v.
Cudjo (1993) 6 Cal.4th 585, 617 (Cudjo).) The privilege “must
be accorded liberal construction in favor of the right it was
intended to secure.” (Hoffman, at p. 486.) This protection is
“confined to instances where the witness has reasonable cause
to apprehend danger from a direct answer.” (Ibid.) “However,
if the witness, upon interposing his claim, were required to
prove the hazard in the sense in which a claim is usually
required to be established in court, he would be compelled to
surrender the very protection which the privilege is designed to
guarantee. To sustain the privilege, it need only be evident from
the implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous
because injurious disclosure could result. The trial [court] in
appraising the claim ‘must be governed as much by

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[its] personal perception of the peculiarities of the case as by the
facts actually in evidence.’ ” (Id. at pp. 486–487.) It must be
“ ‘perfectly clear, from a careful consideration of all the
circumstances in the case, that the witness is mistaken, and
that the answer[s] cannot possibly have such tendency’ to
incriminate.” (Id. at p. 488.)
      Likewise, Evidence Code section 940 provides that “a
person has a privilege to refuse to disclose any matter that may
tend to incriminate him” to the extent that such a privilege
exists under the state or federal Constitution. Evidence Code
section 404, which we have stated is consistent with the federal
Hoffman standard, provides: “Whenever the proffered evidence
is claimed to be privileged under Section 940, the person
claiming the privilege has the burden of showing that the
proffered evidence might tend to incriminate him; and the
proffered evidence is inadmissible unless it clearly appears to
the court that the proffered evidence cannot possibly have a
tendency to incriminate the person claiming the privilege.”
(Evid. Code, § 404; see Cudjo, supra, 6 Cal.4th at p. 617.)
       At the time of the 1997 hearing in this case, section 803,
former subdivision (g) (section 803(g)) permitted prosecution of
child molestation “within one year of the time the victim
report[ed] an independently corroborated crime to law
enforcement officials. . . . [T]he new one-year limitations period
applie[d] whether the crime occurred before or after
section 803(g) became effective” and “without regard to whether
the fixed statute of limitations for the crime ha[d] already
expired, and had already expired, when section 803(g) took
effect.” (People v. Frazer (1999) 21 Cal.4th 737, 742, see id. at
pp. 744–747.) In Frazer, this court held former section 803(g)
was “not an ex post facto law.” (Frazer, at p. 765.) Frazer was
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abrogated in Stogner v. California (2003) 539 U.S. 607, 609–610
[§ 803(g) is an ex post facto law because it authorized criminal
prosecutions that the passage of time had previously barred,
and was enacted after prior limitations periods for the
defendant’s alleged offenses had expired].)
      Although section 803(g) was later found to be
unconstitutional, at the time of the hearing below, George had
“reasonable cause to apprehend danger from a direct answer.”
(Hoffman, supra, 341 U.S. at p. 486; see Seijas, supra,
36 Cal.4th at p. 307 [“The Court of Appeal’s after-the-fact
disagreement with the parties, even if ultimately correct as a
matter of law . . . does not mean [the witness] did not reasonably
apprehend danger at trial”].) Apparently based on Silveria’s
testimony at the first penalty phase, the San Jose Police
Department was investigating whether George had molested
Silveria, and no decision had been made as to whether the
statute of limitations had run. As the People assert, “George
could reasonably have feared that existing state law . . . could
expand the statute of limitations for his offenses or even revive
them if they had expired.” Under these circumstances, it does
not “clearly appear[]” that George’s testimony could not
“possibly have a tendency to incriminate” him. (Evid. Code,
§ 404; see Hoffman, at p. 488.)
      In sum, the trial court did not err in ruling George was
entitled to assert his Fifth Amendment privilege.
         6. Mistrial Motion
      Silveria contends the trial court erroneously denied his
mistrial motion. We disagree.
      During Travis’s questioning of his defense expert witness
Sharon Lutman, Travis’s counsel said: “I want to show you a

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picture here of something and see if we can talk about this for a
minute. Do I need these marked for identification? I’m not
going to attempt to enter these.” The trial court replied, “All
right.” Counsel continued, “I’m going to show you a picture,
Ms. Lutman, and maybe — is there a shelf on there?” The
prosecutor interjected, “Your Honor, if counsel is going to refer
to an item in the record and display it to the jury as per
testimony about it and then it’s not marked and introduced into
evidence, it does create a problem for the appellate court on
review. I think that it’s necessary if he intends to publish them
and to seek testimony about them to have them marked.” The
court replied, “All right. Let’s mark them then.”
      Silveria then asked to “approach the bench on a
procedural matter based on what [the prosecutor] just said.” At
sidebar, Silveria unsuccessfully moved for a mistrial. He then
requested the court admonish the jury ultimately requesting
that it be told: (1) “the reason the matter [was] being retried has
nothing to do with any appeal that occurred and, in fact, no
appeal has ever taken place in this case,” (2) the “reason why
the matter was tried once in 1995 and why the penalty phase is
being retried at this time,” (3) the jury was to “disregard” what
the prosecutor said, and that it was “not to consider whether or
not this matter will ever be appealed or what the result of any
such appeal might ever be,” and (4) that the jury is “indeed the
last word . . . on the subject, that [it was] not to assume that
there will be any appeal or any subsequent intervention by an
appellate court and that the decision [it makes] is in fact what
will happen to Mr. Silveria and Mr. Travis.”
      The court twice admonished the prosecutor at sidebar,
“You didn’t need to talk about the appellate court.” It declined
to admonish the jury, stating: “Based upon the Court’s view of

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the jury, the lack of any reaction by the jury and simple common
sense this Court will not admonish the jury regarding the use of
the term ‘appellate court’ ” because “[t]o do so would only
highlight the term.”
      “ ‘A mistrial should be granted if the court is apprised of
prejudice that it judges incurable by admonition or instruction.
[Citation.]    Whether a particular incident is incurably
prejudicial is by its nature a speculative matter, and the trial
court is vested with considerable discretion in ruling on mistrial
motions. [Citation.]’ [Citation.] A motion for a mistrial should
be granted when ‘ “ ‘a [defendant’s] chances of receiving a fair
trial have been irreparably damaged.’ ” ’ ” (People v. Collins
(2010) 49 Cal.4th 175, 198 (Collins).)
      Here, the prosecutor’s statement was not “so incurably
prejudicial that a new trial was required.” (People v. Ledesma
(2006) 39 Cal.4th 641, 683 (Ledesma).) His reference to the
appellate process was brief and isolated, did not refer to the
circumstance that Silveria and Travis were being retried, and
was directed not to the jury, but to the court in the midst of a
technical discussion about whether an exhibit should be
marked.
      Nor, contrary to Silveria’s assertion, did the prosecutor’s
reference constitute Caldwell error. (Caldwell v. Mississippi
(1985) 472 U.S. 320, 328–329 (Caldwell) [“it is constitutionally
impermissible to rest a death sentence on a determination made
by a sentencer who has been led to believe that the responsibility
for determining the appropriateness of the defendant’s death
rests elsewhere”].) There is no reasonable likelihood the jury
understood the brief comment — which again did not occur
during argument to the jury but during an evidentiary
discussion with the court as to whether an exhibit should be
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marked — as lessening its sentencing responsibility. (See
People v. Moon (2005) 37 Cal.4th 1, 18 [“Certainly the mere
mention of the appellate process, while ill-advised, does not —
standing alone — necessarily constitute reversible Caldwell
error”].) Moreover, the trial court instructed the jury at the end
of the penalty retrial: “Under the law of this state, you must
now determine which of these penalties shall be imposed on each
defendant. In determining what penalty is appropriate in this
case, you must assume that whichever of the two penalties you
impose will be carried out. That is: If you impose life without
the possibility of parole, you must assume that the defendant
will spend the rest of his life in prison and will never be released.
If you impose death, you must assume that the defendant will
be executed.” The brevity and context of the prosecutor’s
comment, together with the court’s instructions at the end of the
penalty retrial, “convince[] us the jury could not reasonably have
understood the [prosecutor] to mean the jury’s verdict was
advisory only.” (Moon, at p. 18.)
     The trial court also acted within its discretion in declining
to admonish the jury when the prosecutor’s comment was made.
The court was reasonably concerned that an admonition would
unnecessarily highlight the reference to the appellate process.
      Silveria also challenges the prosecutor’s closing argument
statement that if the jury decided it was appropriate to impose
the death penalty, “this is not something that you or we as a
system are doing to these men. This is something that each of
these two defendants has brought upon himself.” Silveria
claims this statement exploited both the prosecutor’s error in
earlier referring to the appellate process, and the trial court’s
“failure to remedy that error.” The prosecutor merely reminded
the jury that the defendants’ own actions had created a situation
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in which a jury was choosing between penalties of life
imprisonment without the possibility of parole and death.
Nothing in these statements misled the jury “ ‘as to its role in
the sentencing process in a way that allow[ed] the jury to feel
less responsible than it should for the sentencing decision.’ ”
(Romano v. Oklahoma, supra, 512 U.S. at p. 9.)
         7. Claims Regarding Sympathy and Mercy
             a. Mercy instruction and argument
      Silveria and Travis contend that the trial court
prejudicially erred in ordering counsel to tell their witnesses not
to use the word “mercy,” precluding either side from using the
word “mercy” during closing argument, and refusing to instruct
the jury “on mercy or a juror’s use of mercy.” We conclude there
was no error. Based on the trial court’s instructions and
counsels’ argument, “there is no reasonable likelihood the jury
was misled as to its ability to grant” defendants leniency based
on the mitigating evidence by the trial court’s preclusion of the
word “mercy.” (People v. Ervine (2009) 47 Cal.4th 745, 802
(Ervine).)
                 (1) Factual background
       Before the penalty retrial, Silveria, joined by Travis,
sought to “argue mercy.” In a lengthy ruling, the trial court
denied Silveria’s motion. It noted that “mercy,” as defined in the
dictionary, “implies compassion that forebears punishing even
when justice demands it.” The court stated: “The idea of mercy
falls, if at all, under Factor (k) of Penal Code Section 190.3,” but
“[m]ercy is not a circumstance which . . . extenuates the gravity
of the crime. It is forgiveness and forbearance of warranted
punishment. The jury’s job is not to forgive. The jury’s job is to
punish with either death or life without parole.”

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      The court stated it would instruct the jury in the language
of CALJIC No. 8.85, factor (k), but that “[m]ercy is not a
sympathetic or other aspect of the defendant’s character or
record. There is sympathetic evidence and the jury should
consider that evidence.            The defendant’s upbringing,
background and life experiences, good and bad, are to be
considered when . . . evidence of them is presented.”
      The court also noted that the United States Supreme
Court      had     held:     “ ‘[S]entencers     may      not    be
given unbridled discretion in determining the fates of those
charged with capital offenses.         The Constitution instead
requires that death penalty statutes be structured so as to
prevent the penalty from being administered in an arbitrary and
unpredictable fashion.’ ” (California v. Brown (1987) 479 U.S.
538, 541.) The trial court observed, “To permit the defense to
argue mercy would allow the jury to engage in the exact type of
decision-making that the United States Supreme Court
condemned.” “Granting mercy would seem to grant an unduly
lenient sentence — one not based on the evidence presented.”
      At the end of the penalty retrial, the trial court instructed
the jury in the language of CALJIC No. 8.85, factor (k), directing
the jury to consider “[a]ny other circumstance which extenuates
the gravity of the crime even though it is not a legal excuse for
the crime and any sympathetic or other aspect of the defendant’s
character or record that the defendant offers as a basis for a
sentence less than death, whether or not related to the offense
for which he is on trial.” The court also instructed the jury: “You
are free to assign whatever moral or sympathetic value you
deem appropriate to each and all of the various factors you are
permitted to consider. . . . [I]t is not necessary that all twelve
jurors unanimously agree upon the existence or truth of any . . .

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particular mitigating circumstance. Rather, each juror is
entitled to weigh and consider any . . . mitigating circumstance
which he or she finds to be true in arriving at a penalty verdict.”
The court defined a “mitigating circumstance” as “any fact,
condition or event which as such does not constitute a
justification or excuse for the crime in question, but may be
considered as an extenuating circumstance in determining the
appropriateness of the death penalty.”
                 (2) Analysis
      We have previously held that a trial court does not err in
directing the parties to refer to “sympathy, pity, or compassion
instead of mercy” in argument. (Ervine, supra, 47 Cal.4th at
p. 802.) When based on the trial evidence, counsel’s use of any
of these terms — mercy, sympathy pity, or compassion — during
argument properly requests leniency from the jury. (Ibid.
[“ ‘mercy’ and ‘compassion’ are synonymous” in the context of the
penalty phase jury instructions]; People v. Boyce (2014)
59 Cal.4th 672, 707 (Boyce) [“the court did not foreclose defense
counsel from urging the jury to show sympathy and mercy to
defendant”]; People v. Seaton (2001) 26 Cal.4th 598, 685
(Seaton) [defense counsel’s argument that the jury could
consider “ ‘mercy, sentiment, and sympathy for the defendant’ ”
informed the jury “it could consider sympathy”]; People v.
Andrews (1989) 49 Cal.3d 200, 228 (Andrews) [relying in part on
the prosecutor’s argument acknowledging that the jury could
consider “compassion” to conclude “the jury was not
misinformed regarding its power to exercise mercy”].) The trial
court’s direction in this case permitted the parties to use various
terms that conveyed the jury’s latitude in considering the
evidence and making the profoundly personal and normative
penalty decision. (See Kansas v. Carr, supra, 577 U.S. at p. __
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[136 S.Ct. at p. 642] [“In the last analysis, jurors will
accord mercy if they deem it appropriate, and withhold mercy if
they do not, which is what our case law is designed to achieve”].)
      We have also observed that the word “mercy,” when not
based on the trial evidence, may invite a purely subjective
rather than a reasoned moral response. (See People v. McPeters
(1992) 2 Cal.4th 1148, 1195 [the “unadorned use of the word
‘mercy’ implies an arbitrary or capricious exercise of power
rather than reasoned discretion based on particular facts and
circumstances” (italics added)]; Boyce, supra, 59 Cal.4th at
p. 707 [same]; People v. Lewis (2001) 26 Cal.4th 334, 393 [same];
see also Rhoades, supra, 8 Cal.5th at p. 452 [“We have held . . .
that an express reference to ‘mercy’ risks encouraging arbitrary
decisionmaking”].) We have also said, relying on McPeters, that
the word mercy “connote[s] an emotional response to the
mitigating evidence instead of a reasoned moral response.”
(Ervine, supra, 47 Cal.4th at p. 802; see People v. Henriquez
(2017) 4 Cal.5th 1, 43–44 [same].) Nonetheless leniency toward
the defendant is properly considered at the penalty phase.
(Kansas v. Carr, supra, 577 U.S. at p. __ [136 S.Ct. at p. 642];
People v. Robertson (1982) 33 Cal.3d 21, 57 [“in the penalty
phase of a capital trial the jury may properly consider sympathy
or pity for the defendant in determining whether to show mercy
and spare the defendant from execution”].) We clarify here that
so long as attorneys base their penalty arguments on the trial
evidence, it is not improper for them to use the word “mercy” or
its synonyms in argument.
      Here, although all counsel were precluded from using the
word “mercy,” “there was no suggestion in the arguments of
either party that the jury could not consider mercy in
determining penalty.” (Andrews, supra, 49 Cal.3d at p. 227.)

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The prosecutor argued: “Now when . . . [Silveria defense
counsel] Mr. Braun or Ms. Angel ask you for your sympathetic
consideration, for charity for Mr. Silveria given his life and his
childhood and his foster homes and the abuse that he suffered,
physical and sexual, as he will as no doubt will she, when [Travis
defense counsel] Mr. Leininger asks you to find room in your
heart to consider the sympathetic aspects under [CALJIC
No. 8.85,] [f]actor (k) of his client’s background and childhood,
his substance abuse, his chemical addiction,” look at Madden’s
bloody shirt and “remember the man who was wearing it.”
       Silveria’s counsel urged the jury that “[W]hat [f]actor (k)
takes into account is the entire life of a particular defendant,
and in this case the entire life of my client, Danny Silveria, [is]
to be measured against what he did on that one terrible night.”
“[T]he law requires you not to just look at the crime. It requires
you to weigh and consider who Danny Silveria was, how Danny
Silveria became as he is now and who Danny Silveria is now.”
Counsel asserted that based on the mitigating evidence, “Danny
is a worthwhile human being, . . . he is a person worth saving,”
he is “more than the worst thing he ever did.” Counsel argued,
“just as there has been sin so too there can be redemption,”
suggested “[w]e can have compassion enough for everybody in
this case,” and asked the jury “to spare Danny’s life.” Travis’s
counsel asserted: “What I’m asking you to do is look within
yourself to discover whether there are any feelings of sympathy
or compassion for the boy . . . who suffered, the boy whose anger
was kindled by shame, fanned by countless humiliations, by a
cruel masochistic sexual predator, the boy who experienced all
of these things without the protection of family, social agencies
or even one good friend . . . .” Counsel told the jury, “I’d like to
see you live with the peace that comes not from vengeance, not

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from anger, not from destruction of human life, but from the
forbearance of imposing death.” Hence defense counsel were
accorded broad latitude in marshalling the mitigating evidence
and attempting to persuade the jury that this evidence
warranted a sympathetic response, and were not meaningfully
limited in this effort by preclusion of the word “mercy.”
      In addition, “ ‘a jury told it may sympathetically consider
all mitigating evidence need not also be expressly instructed it
may exercise ‘mercy.’ ” (People v. Bolin (1998) 18 Cal.4th 297,
344; see People v. Brasure (2008) 42 Cal.4th 1037, 1069–1070
[“To the extent the proposed instructions told the jurors they
were free to consider ‘mercy, sympathy and/or sentiment’ . . . or
‘compassion or sympathy’ . . ., they were essentially duplicative
of CALJIC No. 8.85, which told jurors that under section 190.3,
factor (k) they could consider ‘any sympathetic or other aspect
of the defendant’s character or record that the defendant offers
as a basis for a sentence less than death’ ”]; People v. Brown
(2003) 31 Cal.4th 518, 570 [“Because defendant’s jury had been
instructed in the language of section 190.3, factor (k), we must
assume the jury already understood it could consider mercy and
compassion; accordingly, the trial court did not err in refusing
the proposed mercy instruction”].)
      Here, the trial court instructed the jury in the language of
CALJIC No. 8.85. “As we have previously explained, CALJIC
No. 8.85 adequately instructs the jury concerning the
circumstances that may be considered in mitigation, including
sympathy and mercy. [Citation.] We therefore ‘must assume
the jury already understood it could consider mercy and
compassion.’ ” (Ervine, supra, 47 Cal.4th at p. 801.) The court’s
additional instructions also informed the jury of its latitude to
consider sympathetic and extenuating evidence at trial in

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determining penalty. The mere exclusion of the word “mercy”
did not undercut these instructions.
       In sum, “there is no reasonable likelihood the jury was
misled as to its ability to grant” defendants leniency based on
the mitigating evidence by the trial court’s preclusion of the
word “mercy.” (Ervine, supra, 47 Cal.4th at p. 802.)
       Silveria and Travis note that the prosecutor violated the
trial court’s order during opening statements when he said
Madden had struggled against “the tightly-wrapped duct tape
that so mercilessly bound him.” There was no contemporaneous
objection, but during a recess later that day Travis, joined by
Silveria, sought a mistrial, or in the alternative, for all counsel
to be permitted to use the word “mercy.” The trial court accepted
defense counsels’ representation that the prosecutor had used
the word “mercilessly,” denied the motions, and said, “Any
further violation of the Court’s original order will be dealt with
severely.” The prosecutor asked to “speak in regards to that,”
and the trial court responded: “No. We’re done.”
       Defendants do not delineate how the trial court erred in
denying the motions. As noted, “ ‘[a] mistrial should be granted
if the court is apprised of prejudice that it judges incurable by
admonition or instruction. [Citation.] Whether a particular
incident is incurably prejudicial is by its nature a speculative
matter, and the trial court is vested with considerable discretion
in ruling on mistrial motions. [Citation.]’ [Citation.] A motion
for a mistrial should be granted when ‘ “ ‘a [defendant’s] chances
of receiving a fair trial have been irreparably damaged.’ ” ’ ”
(Collins, supra, 49 Cal.4th at p. 198; see ante, pt. II.B.6.)
       Here, the prosecutor’s single use of the word “merciless”
was not “so incurably prejudicial that a new trial was required.”
(Ledesma, supra, 39 Cal.4th at p. 683.) In his reply brief,

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Silveria cites the trial court’s ruling as “further demonstrat[ion]
to the jury the extent to which the judge leaned on the
prosecution’s side of the scale.” But neither the objection nor the
ruling were made before the jury, nor was the prosecutor even
permitted to defend his asserted violation. Rather, the trial
court accepted defense counsels’ representation of what had
occurred and reprimanded the prosecutor. These circumstances
fail to demonstrate judicial bias favoring the prosecution.
             b. CALJIC No. 1.00
      Silveria contends that the trial court prejudicially erred by
instructing some potential jurors before trial in the language of
CALJIC No. 1.00. We reject the claim.
      In December 1996, during jury selection for the penalty
retrial, the court instructed certain prospective jurors in the
language of CALJIC No. 1.00: “You must not be influenced by
pity for a defendant or by prejudice against him. . . . Both the
defendants and the People have the right to expect that you will
conscientiously consider and weigh the evidence, apply the law
and reach a just verdict regardless of the consequences.” The
instruction was not repeated in the court’s April 1997
instructions to the jury at the end of the penalty retrial.
       “We have repeatedly explained that this instruction
should not be given at the penalty phase because the
‘ “consequences” ’ at the penalty phase — the choice between
death and life imprisonment without the possibility of parole —
‘are precisely the issue that the jury must decide.’ ” (Erskine,
supra, 7 Cal.5th at p. 302; People v. Ray (1996) 13 Cal.4th 313,
354 (Ray) [“language instructing the jury to disregard the
consequences of its verdict is inappropriate and should not be
given at the penalty phase” (italics omitted)].) Moreover, it is

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erroneous to instruct a penalty phase jury not to be influenced
by pity or sympathy for the defendant. (Seaton, supra,
26 Cal.4th at pp. 684–685.)
      We conclude there is no reasonable likelihood that the
court’s error misled the jury. (See People v. Mitchell (2019)
7 Cal.5th 561, 579 [“In reviewing a claim of instructional error,
the court must consider whether there is a reasonable likelihood
that the trial court’s instructions caused the jury to misapply
the law in violation of the Constitution.”].) Here instruction in
the language of CALJIC No. 1.00 was given to only some
potential jurors before the penalty retrial, and was not repeated
four months later at its conclusion. Rather, at the end of the
penalty retrial, the court instructed the jury that it must
“determine which of these penalties” — death or life
imprisonment without the possibility of parole — “shall be
imposed on each defendant,” and that in making this
determination it “must assume that whichever of the two
penalties you impose will be carried out.” It further instructed
the jury: “Both the People and each defendant have a right to
expect that you will conscientiously consider all of the evidence,
follow the law and reach a just verdict.”
      Moreover, as noted, the trial court instructed the jury to
consider “[a]ny other circumstance which extenuates the gravity
of the crime even though it is not a legal excuse for the crime
and any sympathetic or other aspect of the defendant’s
character or record that the defendant offers as a basis for a
sentence less than death, whether or not related to the offense
for which he is on trial.” The court also instructed the jury: “You
are free to assign whatever moral or sympathetic value you
deem appropriate to each and all of the various factors you are
permitted to consider. . . . [I]t is not necessary that all twelve

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jurors unanimously agree upon the existence or truth of any . . .
particular mitigating circumstance. Rather, each juror is
entitled to weigh and consider any . . . mitigating circumstance
which he or she finds to be true in arriving at a penalty verdict.”
The court defined a “mitigating circumstance” as “any fact,
condition or event which as such does not constitute a
justification or excuse for the crime in question, but may be
considered as an extenuating circumstance in determining the
appropriateness of the death penalty.”
       Given these instructions at the end of the penalty retrial,
there is no reasonable likelihood that the jurors who may have
heard the challenged language at the outset of trial failed to
understand that they “bore the ultimate responsibility for
choosing between death and life imprisonment without parole”
(Ray, supra, 13 Cal.4th at p. 355), and that they could consider
pity and sympathy for the defendants.
         8. Asserted Prosecutorial Misconduct
       Silveria and Travis assert that the prosecutor committed
prejudicial misconduct. We reject the claim.
       “A prosecutor commits misconduct when his or her
conduct either infects the trial with such unfairness as to render
the subsequent conviction a denial of due process, or involves
deceptive or reprehensible methods employed to persuade the
trier of fact.” (People v. Avila (2009) 46 Cal.4th 680, 711.) “As a
general rule a defendant may not complain on appeal of
prosecutorial misconduct unless in a timely fashion — and on
the same ground — the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety.”          (People v. Samayoa (1997)
15 Cal.4th 795, 841 (Samayoa).)            “When attacking the


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prosecutor’s remarks to the jury, the defendant must show” that
in the context of the whole argument and the instructions there
was “ ‘a reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.’ ”
(People v. Centeno (2014) 60 Cal.4th 659, 667.)
       Travis, joined by Silveria, contends the prosecutor
committed misconduct during closing argument by referring to
CALJIC No. 8.85, factor (k) evidence as “a kitchen sink.” During
closing argument, the prosecutor asserted that Silveria’s
counsel “will urge you to consider and be swayed by [f]actor (k)
evidence, which you will see is sort of like a kitchen sink
category of — ” Both defendants unsuccessfully objected to the
term “kitchen sink.” The prosecutor read the language of the
instruction on factor (k), and explained that the factor was “an
all-encompassing category . . . of, in effect, sympathetic evidence
as to” the defendants. In the prosecutor’s rebuttal argument, he
stated: “Factor (k), that’s basically, I submit, all of the penalty
phase evidence that has been offered on behalf of both
Mr. Travis and Mr. Silveria by their respective attorneys.
Factor (k), which I refer[] to as a kitchen sink, meaning by that
an all-encompassing category.” He explained: “Basically it is a
catch-all category put in by statute for the defendant’s benefit in
a capital case. Factor (k) allows you to consider any sympathetic
aspect of” Mr. Travis’s and Mr. Silveria’s “character or record as
a basis for a sentence less than death.”
       We conclude any assumed misconduct in using the term
“kitchen sink” to describe the CALJIC No. 8.85, factor (k)
evidence was harmless beyond a reasonable doubt. The
language of factor (k), which informs the jury that it may
consider “[a]ny other circumstance which extenuates the gravity
of the crime even though it is not a legal excuse for the crime

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and any sympathetic or other aspect of the defendant’s
character or record that the defendant offers as a basis for a
sentence less than death, whether or not related to the offense
for which he is on trial,” describes a broad range of evidence.
The prosecutor also referred to factor (k) as an “all-
encompassing” or “catch-all” category of defendants’
sympathetic evidence. In light of this, and contrary to Travis’s
assertion, the prosecutor’s characterization of this evidence did
not send “a clear message that any factor (k) evidence was not
to be taken seriously” or constitute prejudicial misconduct.
       Silveria and Travis also contend that the prosecutor
committed misconduct by urging the jury to rely on
Dr. Pakdaman’s opinion that “[t]his is one of the most atrocious
cases that I have ever seen,” and thus shifted responsibility for
the penalty decision to Dr. Pakdaman in violation of Caldwell.27
(Caldwell, supra, 472 U.S. at pp. 328–329; see ante, pt. II.B.4.b.)
We have concluded above that even assuming the pathologist’s
statement was inadmissible, it was harmless beyond a
reasonable doubt because it was brief and isolated, and less
compelling than Dr. Pakdaman’s detailed description of
Madden’s 32 “slash-like superficial cuts” and “stab-like wounds”
in his neck, chest, and abdomen, including stab wounds that
penetrated his heart and fractured his ribs, and
Dr. Stratbucker’s testimony that marks made by the stun gun
on Madden’s thigh were inflicted while he was alive, and that
Madden remained conscious “to the bitter end.” (See ante,
pt. II.B.4.b.).


27
      Caldwell error claims are not forfeited on appeal for
failure to object below if the trial, as here, occurred before our
decision in People v. Cleveland (2004) 32 Cal.4th 704, 761–762.

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       Nor did the prosecutor’s recounting of Dr. Pakdaman’s
statement during closing argument mislead the jury “ ‘as to its
role in the sentencing process in a way that allow[ed] the jury to
feel less responsible than it should for the sentencing decision.’ ”
(Romano v. Oklahoma, supra, 512 U.S. at p. 9.) The prosecutor
recounted Dr. Pakdaman’s testimony regarding the number and
type of stab wounds Madden had suffered. He showed the jury
crime scene and autopsy photographs, asked the jury to consider
Madden’s bloody shirt, and noted Dr. Pakdaman’s testimony
that it took Madden between 10 and 30 minutes to die, and that
he was alive at the end of the attack. The prosecutor asked,
“What is morally compelling about this case?” He noted
Dr. Pakdaman had performed thousands of autopsies, could not
recall all of them, but remembered this case because, “This is
one of the most atrocious cases that I have ever seen.” The
prosecutor described Dr. Pakdaman as “visibly emotional”
during this exchange.          After discussing Dr. Pakdaman’s
testimony, the prosecutor argued that the “callousness and
horror of this case, of this murder is beyond all human
comprehension.” He then argued Travis had enjoyed the
murder, and discussed the Tex Watson letter and Travis’s
statements to police. After a recess, the prosecutor told the jury
he wanted to “be absolutely clear” that the jury’s moral
evaluation was not mechanical or a mere counting of factors, but
an “individual assessment[] as to what is morally compelling
and your assignment of whatever moral weight you feel you
should give to each of these various factors that the law allows
you to consider.” In this context nothing in the prosecutor’s
recounting of Dr. Pakdaman’s statement regarding the relative
atrocity of the case shifted responsibility for the penalty decision



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from the jury to Dr. Pakdaman in violation of Caldwell.
(Caldwell, supra, 472 U.S. at pp. 328–329.)
          9. Additional Claims Regarding the Prosecutor’s
             Conduct
      Silveria contends the trial court erred when it permitted
the prosecutor to elicit certain testimony and Silveria and
Travis contend the court erred in allowing the prosecutor to
make certain statements during closing argument. We reject
these claims.
              a. Sissy Madden’s testimony
       Silveria contends the trial court erred in allowing the
prosecutor to elicit testimony from Sissy Madden that delays in
the trial are torture to her, that she has no peace, and that all
she wants is justice for her husband’s death. He contends that
the effect of trial delays on Sissy were “too remote from any act
of [Silveria] to be relevant to his moral culpability,” that Sissy’s
testimony was so unduly prejudicial it rendered the penalty
retrial fundamentally unfair, and that Sissy’s “request for
justice for her husband’s murder violated the Eighth
Amendment because it essentially told the jury” she believed
“death was the appropriate sentence.” We reject the claim.
       During Sissy’s direct testimony, the prosecutor asked her
how she had been affected by her testimony being rescheduled
to that day from the day before. She replied: “[I]t was horrible.
This . . . is so hard for me to do, because I’m in a room full of
strangers, talking to you about something that’s very intimate
to me: My relationship with my husband. I feel like — every
time that this gets put off it feels like — I don’t know that you
can understand, but it feels like a little bit of torture to me. . . . I
don’t feel like I have any peace. I don’t feel like I have any


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closure. And all I want is just, you know, to have just a little bit
of justice for my husband, you know. That’s all I want. And this
has been six years now, and it doesn’t seem like a lot, one
afternoon or one day doesn’t seem like a lot, but I have been
going through this now for six years, just waiting and waiting
for a phone call, having to call . . . the attorney, ‘When is this
going to happen?’ It’s just . . . not pleasant.” Silveria did not
object and his mistrial motion based on this testimony, made
after the jury had left for the day, was denied. The court found
that nothing in the prosecutor’s question or Sissy’s response
“put blame on the defense for them having to come back to
court.”
       Even assuming Silveria’s claim is preserved, it is
meritless. The prosecutor did not reasonably elicit Sissy’s
testimony that she felt tortured simply by asking how she had
been affected by a scheduling change. Nor, contrary to Silveria’s
claim, was her testimony unduly prejudicial. The jury would
reasonably expect that the anticipation of testifying in a trial
regarding a loved one’s murder, and delays in the resolution of
that trial, would be stressful. Moreover, Sissy’s statement was
cumulative to other testimony Silveria does not challenge.
Coworker Thuringer testified that nearly six years after the
murder, and two days before Thuringer’s testimony, Sissy
“really went to pieces” because she received a court scheduling
call. Thuringer explained, “It just brings it back fresh all over
again.” Sissy’s supervisor House testified that Sissy had been
in tears and told House she had Thuringer speak to the
prosecutor on the telephone because “I can’t. I just feel like I’m
being tortured. This is just a constant torture to me.”
       To the extent Sissy’s challenged comments could
reasonably be interpreted to mean she believed the death

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penalty would be “justice” for Madden, as Silveria contends, the
trial court instructed the jury: “Any wishes of the various
members of the victim’s family concerning which penalty should
be imposed is not before you and such evidence is inadmissible
as irrelevant. You may not speculate about that matter,
consider it, or take it into account in any way.” We presume the
jury understood and followed this instruction. (Hajek and Vo,
supra, 58 Cal.4th at p. 1178.)
             b. Closing argument
                 (1) Victim impact
      Silveria and Travis contend that the trial court erred in
allowing the prosecutor to argue “future victim impact
evidence.” We reject the claim.
      At the penalty retrial, the trial court ruled that victim
impact witnesses would be permitted to testify as to the effect of
Madden’s murder upon them or a close family member up until
the time of their testimony, “but nothing in the future as that is
speculative.” During Silveria’s closing argument, defense
counsel Annrae Angel mentioned her 18-month old son Ian. She
later argued: “Life in prison without parole is enough for Danny
Silveria. It is a serious punishment. . . . If you sentence
Danny . . . to life in prison without parole, he will be in state
prison for the rest of his life. As Ian grows up and as time
passes, we can all — and all of the children that you know, we
can look back and we can say, ‘He’s still in prison for what he
did.’ And I submit to you that this case is not going to go away
all that quickly. We’re going to think about this case for a long
time. Maybe forever. This is not something that we will all
easily put behind us and easily put in a box, because it is so filled
with emotion and pain and heartache.”


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       In his rebuttal argument, the prosecutor said: “Well, it’s
true that Mr. Travis and Mr. Silveria would be in prison for the
rest of their lives, the rest of their natural lives, day after day,
year after year. So why should you regret [returning a life
imprisonment verdict]? Ms. Angel . . . says, ‘As Ian grows up
and gets older and older you would know that the defendants
are still in custody.’ Yes, you would. Holidays would come and
go each year and would continue to do so as Ian grows up, as all
of you get older, as your children grow up, as your children have
children. Holidays would come and go for you, for your families,
for Mr. Travis, for Mr. Silveria and for the Madden family. I
submit that with each holiday, Valentine’s Day or Mother’s
Day — ” Ms. Angel’s cocounsel, Mr. Braun, objected at sidebar
that the prosecutor’s argument violated the court’s ruling
precluding evidence of victim impact in the future. The trial
court overruled the objection, finding the argument was “proper
rebuttal based on what counsel has said in their opening
arguments.”
       The prosecutor subsequently made the comments Silveria
challenges here: “As the holidays come and go in the years to
come, I submit that with each holiday, Valentine’s Day or
Mother’s Day, Father’s Day, or Thanksgiving or Christmas, you
will think about this. And remember, Ms. Angel pointed out this
is a case that no doubt will stay with you forever, for a long
time. . . . [A]s the years pass, you will consider that Julie
Madden no longer has a father to give Valentine’s Day gifts to
or Father’s Day gifts to. You will be wondering who will be
taking Julie shopping for a Mother’s Day gift this year. As time
goes on and the holidays come and go you will remember this
case, ladies and gentlemen, for the rest of your lives. Every
Christmas what will you think of? Will you think of Julie

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Madden missing her father? Will you think of an empty space
around a holiday table? Or, on the other hand, will you think of
John Travis or Daniel Silveria somewhere in a prison facility
living out the rest of . . . his or their natural lives, receiving
visitors, sending holiday greetings, receiving cards or gifts?”
      Contrary to Silveria’s claim, the trial court did not permit
the prosecutor “to violate [its] earlier order restricting victim
impact to no later than the time of trial.” Silveria’s argument
urging the jury to return a verdict of life imprisonment without
the possibility of parole relied on the circumstance that as
defense counsel’s son and other children the jurors knew grew
older, the defendants would continue to be incarcerated. The
prosecutor was entitled to respond to this argument by
observing that as the victim’s daughter grew older, she would
continue to be affected by her father’s murder. Moreover, in
general it is not improper at the penalty phase of the trial for
the jury to consider the “residual and lasting impact” of the
murder (People v. Brown (2004) 33 Cal.4th 382, 398), so long as
the “evidence is not so inflammatory as to elicit from the jury an
irrational or emotional response untethered to the facts of the
case.” (People v. Pollock (2004) 32 Cal.4th 1153, 1180; see
People v. Garcia (2011) 52 Cal.4th 706, 762 [“Jurors were simply
asked to draw reasonable inferences from evidence of the
family’s close relationship and favorite activities about the long-
term effects of Joseph’s murder on his children”]; People v.
Verdugo (2010) 50 Cal.4th 263, 296–298 (Verdugo) [upholding
admission of victim impact evidence of the family’s observance
of the victim’s 19th birthday at the cemetery several months
after her murder, statements made by the victim’s young niece
that she had seen the victim after her death, and testimony that
the victim’s father died seven months after her murder]; Brown,

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at p. 398 [testimony that the victim’s brother saluted the
victim’s grave every time he drove by the cemetery and that the
victim’s father has not gone fishing since his son’s death was
evidence of “understandable human reactions” to the murder].)
       Nor, as Silveria further contends, did the prosecutor’s
argument “count[] the jurors among the victims of [the]
defendant’s crime” by implying that “in order to mitigate the
impact that the jurors would suffer on their future holidays,
they should impose the death penalty,” or divert the jury from
its proper sentencing role. Rather, Silveria argued that if the
jury returned a sentence of life imprisonment without the
possibility of parole, it could be reassured as time went by that
the defendants would remain incarcerated. The prosecutor
properly responded to this argument by suggesting the
continuing effect of the murder on the victim’s family each
holiday, and noting that the defendants, unlike the murder
victim, would have the opportunity to continue to celebrate
holidays should they serve a life imprisonment sentence.
       Travis contends that the trial court erred in allowing the
prosecutor to argue: “Travis and Silveria took something from
Jim Madden, something perhaps even more . . . valuable than
his very life itself. And that’s a lifetime . . . with his wife, Sissy,
and the opportunity of watching his little girl, being there for
her in the audience during those dance performances instead of
an empty chair, first father-daughter dance and the ones to
follow, perhaps walking his little girl down the aisle when that
time comes.” The trial court sustained defendants’ objections.
       Travis asserts that the prosecutor’s argument was an
“appeal to pure emotion,” and that although the trial court
sustained his objection, “the damage was already done.” The
trial court instructed the jury before closing arguments that “[i]f

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an objection was sustained to a question, do not guess what the
answer might have been. Do not speculate as to the reason for
the objection.” The jury would reasonably apply this principle
to sustained objections during closing argument.
                 (2) Retribution
       Silveria and Travis contend the trial court erred in
allowing the prosecutor to argue for retribution while precluding
defendants from arguing for mercy. There was no error.
       During Silveria’s closing argument, defense counsel
Mr. Braun said: “Now, what justification can the state offer you
for killing Mr. Silveria? I submit there is only one, and that is
pure retribution for what might colloquially be termed payback
or vengeance. Now, would any such punishment or vengeance
bring back Jim Madden or somehow make his family whole? It
will not.”
       On rebuttal, the prosecutor argued: “Mr. Braun argues
that since the victim can’t be brought back nothing can be
gained by killing a killer so why should society do that. I submit,
ladies and gentlemen, that everyone from a civilized society has
the right to make sure that the law, theoretically and ideally, is
carried out as it’s supposed to be, because each of us have given
up our personal right to do that ourselves. The instinct for just
retribution is part of the nature of every human being.
Channeling that instinct to the administration of criminal
justice serves an important purpose in promoting the stability
of a society that is . . . governed by law and order. Where certain
crimes are concerned, and this is definitely one of them,
retribution is not a forbidden consideration or one inconsistent
with society’s respect for the very dignity of man and humanity.
The decision that capital punishment may be the appropriate
action in an extreme case, which I submit this is, is the
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expression of the community’s belief that certain crimes are, and
those who commit them in and of themselves are, so grievous an
af[f]ront to humanity that the only appropriate response must
be the imposition of the penalty of death.”
       Travis did not object to the prosecutor’s reference to
retribution, but his objection to reference to the “community’s
feelings about this” was sustained, and the court also struck this
language. The prosecutor continued: “Like it or not, ladies and
gentlemen, retribution is still a part of being human and of being
a human being. I submit that in spite of the fact that both
defendants are asking you, or their lawyers are, to spare their
lives, that when they chose to take Jim Madden’s life that night
they forfeited their own.” Silveria unsuccessfully objected that
the argument implied “that the act itself automatically
warrants the death penalty.”
       Silveria asserts that allowing the prosecutor to argue for
retribution, but precluding an argument for mercy by defense
counsel, “blatantly displayed the depth of the unfairness and
uneven treatment . . . accorded” Silveria. Assuming this claim
is preserved, it is meritless. As discussed above, although
defense counsel were precluded from using the word “mercy”
during closing argument, they were accorded great latitude in
marshalling the mitigating evidence and attempting to
persuade the jury that this evidence warranted a sympathetic
response from the jury and the imposition of a lesser
punishment. (See ante, pt. II.B.7.a.) Hence no unfair treatment
is demonstrated. Moreover, the prosecutor’s reference to
retribution was a legitimate response to Silveria’s closing
argument that retribution would accomplish little because it
could not “bring back” Madden.



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                 (3) Societal demand for the death penalty
       Travis asserts that the trial court erred in allowing the
prosecutor to present an argument that “effectively urged the
jury to return a death verdict” not based on the capital crime or
the defendants, but “because society demanded such a penalty
for anyone guilty of murder.” We reject the claim.
       Travis broadly contends that “the prosecutor was
permitted to argue that a jury that chose life without parole was
taking the easy way out, that a death verdict was merely the
fulfillment of a responsibility resulting from a law passed by the
jurors’ fellow citizens and affirmed by the courts, and that any
action beyond the least-aggravated murder possible was
automatically a factor in aggravation of the penalty.” As to the
assertion that the “prosecutor was permitted to argue that a jury
that chose life without parole was taking the easy way out,” the
prosecutor argued: “I come before you . . . to ask you to return a
verdict of death against these two defendants. . . . This request
is made on the basis of the evidence showing that these two
defendants . . . have committed the worst of crimes under the
law of this state and have under our social contract earned that
ultimate penalty. I don’t ask this of you lightly. I know full well
that this is a hard, hard thing for me to ask all of you to consider
and to do. . . . [A]s a direct result of the verdicts in the guilt
phase of this trial [defendants] . . . will be sentenced to no less
than life in prison without parole for what they have done. To
simply let that happen, to let them go off to prison to live out the
rest of their natural lives would be the easy way out,” but not
“what the evidence in this case warrants . . . . You, ladies and
gentlemen, the few, have been selected as representatives of the
community in this case to decide the question of which of the
only two possible penalties here, death or life without parole,

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should be meted out to these two defendants for what they have
done. Your verdict, ladies and gentlemen, will reflect the
conscience of the community on the ultimate question of penalty
for what Mr. Travis and Mr. Silveria did here. It’s a solemn
responsibility . . . . The responsibility of voting for the
appropriate penalty in this case, given the evidence, is not one
to be taken lightly, and that responsibility is not one to take the
easy way out of by voting for life without parole simply because
the other alternative is too difficult to contemplate. That
wouldn’t be right.”
       In arguing that the jury should not “take the easy way
out . . . by voting for life without parole,” the prosecutor simply
urged the jury to consider the death penalty even though that
consideration was “difficult to contemplate.” That is proper.
(Spencer, supra, 5 Cal.5th at p. 685 [the prosecutor did not
“denigrate the jury’s ‘solemn responsibility’ by insisting that
anything but a death sentence would be taking the easy way
out,” but rather “urged jurors not to forgo the punishment for
the wrong reasons — because it would absolve them of the need
to weigh the moral blameworthiness of [the defendant’s]
conduct”]; see People v. Adcox (1988) 47 Cal.3d 207, 259 [in
arguing that the jury not “ ‘take the easy way out and not make
a decision based on the evidence’ ” the prosecutor “simply urged
the jury not to decide defendant’s fate based on untethered
compassion for him or his mother alone, without following their
lawful obligation to consider the evidence”].)
       In his reply brief, Travis contends that “jurors in a capital
case are bound by no ‘social contract’ to return a death verdict.”
The prosecutor did not argue that the jurors were bound by
social contract to return a death penalty verdict and there is no
reasonable likelihood the jury understood the prosecutor’s brief

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comment in this way. Rather, the prosecutor repeatedly
reminded the jury its role was to determine whether defendants
should receive a penalty of death or life imprisonment without
the possibility of parole.         For example, the prosecutor
subsequently observed: “You’ve heard a lot of evidence. No
doubt you have paid great attention to the evidence that you
have heard. Never can it be said that the penalty which you
finally decide that Mr. Travis and Mr. Silveria should receive for
what they have done here will be something that wasn’t
considered and reflected on by a jury of twelve who are
considering all of the factors that the law says they are to
consider within the scope of the law. . . . Now, when you do
decide this case, do not decide it on prejudice or whim, but decide
it upon an extensive moral evaluation of the evidence.”
       Travis contends that the “prosecutor was permitted to
argue . . . that a death verdict was merely the fulfillment of a
responsibility resulting from a law passed by the jurors’ fellow
citizens and affirmed by the courts.” The prosecutor simply
urged the jury that if it found after a consideration of the
evidence that death was the appropriate punishment, it should
not hesitate to reach that verdict because of a feeling of guilt.
       Travis also contends that the prosecutor argued “that any
action beyond the least-aggravated murder possible was
automatically a factor in aggravation of the penalty.” The
prosecutor properly argued that certain circumstances of the
capital crime, such as defendants’ planning of the robbery and
murder of Madden by arming themselves and obtaining duct
tape and gasoline, and their waiting and watching for Madden
to close the store, made the crime more egregious than a simple
store robbery.



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       Nor, as Travis asserts, did the prosecutor “unmistakably
impl[y] criticism of any juror who did not vote for death —
implying that such jurors were lacking in strength and courage.”
The prosecutor argued: “The penalty must fit the crime for
justice to be satisfied and served. I’m asking you to find that
under the circumstances of this case justice requires that
ultimate penalty for the wrongs done here, the imposition of the
death penalty for Mr. John Travis and for Mr. Daniel
Silveria. . . . I submit to you that there’s no question that each
of these men deserve the death penalty for participating in this
indescribably brutal murder, this crime that we have here. And
I submit when you think about it that’s not really the issue if
you’re honest with yourselves. The issue is whether you have
the courage, the strength to do what the law requires, to weigh
and evaluate and to impose what is required here by the facts
and circumstances of . . . this horrible crime of what was done to
this man, Jim Madden, what was done to his family.
Remember, we as individual members of society have given up
our right to take the law into our own hands and have entrusted
the state and our system of justice to apply. A free society
requires of its citizens, of its jurors vigilance, courage and
strength and resolve in making the decision that you’re going to
have to make here. What I’m asking you to do is to follow the
law, consider the evidence and render a just verdict appropriate
for these men and their crime.”
       The prosecutor simply argued that in his view death was
the appropriate punishment based on the evidence, and urged
the jury to adopt this view. His reference to courage was in
regard to the difficulty of considering the evidence and making
a penalty decision. His comments were different from those we
criticized as “unfair and unkind” in People v. Williams (1988)

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45 Cal.3d 1268, 1326, on which Travis relies. In Williams, the
prosecutor compared prospective jurors who had been excused
because they could not decide the issue of penalty to “ ‘people
who do not take a position in life between good and evil, they are
bystanders in every type of war we have,’ ” and speculated they
would “ ‘stand by and watch an innocent person [be] struck down
because they don’t want to impose themselves in the battle
between good and evil.’ ” (Id. at pp. 1325–1326.) No such
aspersions were present here.
      The prosecutor stated: “Thankfully because of this process
of law, of which you have all now become a part, we’re no longer
a society that’s made up of vigilante justice or lynch mobs crying
out for vengeance in the streets.” Travis asserts that by this
statement “the prosecutor was able to imply that anything less
than a death verdict would invite a return to vigilante justice
and lynch mobs,” and that the prosecutor’s argument pertained
not to “the present crimes or to the backgrounds of the
perpetrators,” but “equally to every murder, urging the jurors to
react with a gut emotional revulsion.” Travis also erroneously
asserts that the objections by both counsel to the prosecutor’s
statement were overruled. They were, in fact, sustained, and
the court struck the comment and instructed the jury to
disregard it. We presume the jury understood and followed
these instructions. (Hajek and Vo, supra, 58 Cal.4th at p. 1178.)
      Travis further contends that “this strong appeal to
emotion was punctuated by twenty-seven photographs of the
bloody victim, prominently displayed throughout the argument,
generating continuing tears from the victim’s widow and
mother.” Travis does not identify the 27 exhibits or challenge
their admission. On the record page he cites, during a recess,
Silveria observed that 17 crime scene photographs and five

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autopsy photographs unveiled during the argument were still on
display. Silveria identified 17 of the exhibits. He asserted: “At
the point where those were unveiled Mr. Madden’s widow,
Shirley [Sissy] Madden, who has been present in the court
during all of these arguments and his mother, Joan Madden,
who has also been present for all of these arguments at that
point in time began to cry. And I notice that Mrs. Joan Madden
essentially was crying continuously thereafter right up until
the . . . beginning of this recess which I believe exacerbates the
prejudice that was created when the Court admitted some of
those photographs which I had objected to.” The court replied:
“[T]he Court has ruled that all those photographs are
admissible . . . . And the fact that they were exposed to the jury
is perfectly proper in that they are in evidence. It’s something
for the jury to consider.”
       Travis asserts no reason why the court’s ruling is
incorrect. Under Evidence Code section 352, “[t]he court in its
discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues,
or of misleading the jury.” The trial court’s discretion to
preclude evidence such as crime scene and autopsy photographs
under Evidence Code section 352 “ ‘is much narrower at the
penalty phase than at the guilt phase. This is so because the
prosecution has the right to establish the circumstances of the
crime, including its gruesome consequences ([Pen. Code,]
§ 190.3, factor (a)), and because the risk of an improper guilt
finding based on visceral reactions is no longer present.’
[Citations.] At the penalty phase, the jury ‘is expected to
subjectively weigh the evidence, and the prosecution is entitled

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to place the capital offense and the offender in a morally bad
light.’ ” (Bell, supra, 7 Cal.5th at pp. 105–106.)
       We have reviewed the murder and autopsy photographs
identified during the recess. Although they are graphic and
unpleasant, they illustrated for the jury the circumstances of the
crime. The trial court acted within its discretion in concluding
their probative value at the penalty retrial was not substantially
outweighed by the probability of undue prejudice.
       As to the asserted emotional display by Sissy and Joan
Madden, Travis does not inform us if the matter was addressed
by the court or claim to have objected below. Nor does he raise
a claim regarding spectator conduct on appeal. Nor does the
circumstance — standing alone — that these family members
may have cried demonstrate that allowing the display of the
photographs during closing argument was erroneous or unduly
inflammatory. Indeed, the jury would reasonably anticipate
that autopsy and crime scene photographs of the murder victim
might be emotionally upsetting to the victim’s family. (See
Verdugo, supra, 50 Cal.4th at p. 298 [“the circumstance that
[the victim’s] mother cried during her [own] testimony does not
render that testimony inflammatory. Her tears reflected a
normal human response to the loss of a child, a response that
the jury would reasonably expect a mother to experience”].)
       Travis asserts that “[t]his emotional appeal” was
exacerbated “by a large graphical depiction of the scales of
justice with a very long list of assertedly aggravating factors on
one side, arrayed against a mocking abbreviation of the many
legitimate mitigating factors on the other side.” We have
reviewed both this exhibit and the similar exhibit that was used
by the prosecutor when discussing the evidence regarding
Silveria. We conclude the charts’ recitation of the aggravating

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and mitigating evidence accurately listed the relevant factors
and was not misleading simply because it broke down in greater
detail the aggravating factors. Travis was free to elaborate on
the mitigating factors during his closing argument or present
his own chart.       Although he contends he had no “fair
opportunity” to create his own chart, he points to no place in the
record where he requested additional time to do so. Nor, to the
extent Travis raises this argument, did the “use of a chart
impl[y] that scales . . . should be used in determining penalty,
and that the process is one of numerical computation rather
than evaluation and judgment.”          (People v. Fauber (1992)
2 Cal.4th 792, 861.) Rather, “[t]aking the argument as a whole,
we find it readily apparent that the prosecutor took care to avoid
any such mechanistic approaches to the sentencing decision.”
(Ibid.)
      Travis further asserts that the prosecutor’s “emotional
appeal was punctuated by the dramatic and completely
unnecessary act of repeatedly firing the stun gun into the air,
producing a sound and an electrical spark that was far different
from what would occur when a stun gun was fired at a person.”
This assertion is not supported by Silveria’s counsel’s statement
during a recess, on which Travis relies, that the prosecutor had
“zapped” the stun gun “in the air for approximately one second.”
Nor, given there was no evidence Travis used the stun gun on
Madden, is it clear how Travis claims he was prejudiced by this
demonstration.




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         10. Additional Asserted Instructional Error
             a. Deliberate and premeditated murder
      Silveria contends that the trial court erred in instructing
the jury they were free to determine whether he committed a
deliberate and premeditated murder. We reject the claim.
      The court instructed the jury: “The juries that heard the
guilt portion of the trial determined that Mr. Travis and
Mr. Silveria were each guilty of murder in the first degree and
that the special circumstances of murder in the course of
burglary and in the course of robbery were true. Those juries
were not asked to and did not state in their verdicts upon which
theory they found the murder to be in the first degree. There is
no way to know whether the prior juries found the defendants
guilty of first degree murder on the same theory or on different
theories, nor is it possible to know if either or both juries found
the murder to be premeditated or intentional on the part of
either or both defendants. It is not necessary that any or all of
you make a determination as to which theory the defendants are
guilty of first degree murder. However, such a determination
can be made by any or all of you and considered as a
circumstance of the crime under [f]actor (a). You are free to
make that determination for yourselves.” The court then
instructed the jury on the theories of premeditated and felony
murder.
      Silveria contends that under this “erroneous instruction,
one or all of the second penalty phase jurors could have
improperly concluded that [Silveria] committed a deliberate and
premeditated murder by a lesser standard than” beyond a
reasonable doubt, “or no standard at all; then sentenced him to
death since such a murder increased his culpability.” As the
People note, Silveria requested this instruction because he was

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concerned the penalty retrial jury would assume he had been
found guilty of premeditated murder. He also agreed to the trial
court’s modification of his proposed instruction. Having done so,
he cannot now complain that the instruction was given. (Powell,
supra, 6 Cal.5th at p. 170 [the “asserted error was invited by his
counsel’s own request”]; People v. Penunuri (2018) 5 Cal.5th 126,
157 [“Because any error was invited by the defense, it cannot
now be asserted as a basis for relief”].)
      Moreover, the instruction did not affect Silveria’s
substantial rights. It is well settled that the guilt phase jury is
not required to agree on a theory of first degree murder.
(People v. Potts (2019) 6 Cal.5th 1012, 1048.) In addition, “[a]
defendant’s culpable mental state may be considered a
circumstance of the crime under section 190.3, factor (a).”
(People v. Dykes (2009) 46 Cal.4th 731, 802, fn. 18 (Dykes).)
Here, it was not known on what theory the guilt phase jury had
convicted Silveria of first degree murder. Yet, “[e]ven when the
verdict is based upon a felony-murder theory, it is appropriate
to consider any apparent premeditation on the part of the
defendant as an aggravating circumstance of the crime.” (Id. at
pp. 802–803, fn. 18, italics added; see id. at p. 802 [“a jury that
has convicted a defendant of first degree murder on the basis of
a felony-murder theory may consider, as part of its evaluation of
the defendant’s culpability and its moral and normative decision
concerning the appropriate penalty, the defendant’s state of
mind with respect to the murder — that is, whether the
defendant also intended to kill or acted with malice
aforethought”].)      Contrary to Silveria’s contention, in
considering evidence of Silveria’s state of mind, the penalty
retrial jury was not determining whether he committed murder,



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a fact already conclusively found beyond a reasonable doubt by
the guilt phase jury.
             b. CALJIC No. 8.84.1
       Silveria contends that the trial court erroneously failed to
instruct the jury in the language of CALJIC No. 8.84.1 to
“[d]isregard all other instructions given to you in other phases
of this trial.” Such an instruction would have been mystifying
to the jury given it had only served at the penalty retrial and
was not familiar with the instructions given at the other trial
phases.
         11. Asserted Judicial Misconduct
      Silveria contends that the trial court’s unjustified abuse
and unequal treatment of his defense counsel, Geoffrey Braun,
combined with erroneous legal rulings, violated his rights under
the Sixth, Eighth, and Fourteenth Amendments to the federal
Constitution. We reject the claim.
       Silveria cites to more than 65 different colloquies in the
314 volumes of the reporter’s transcript for this case to support
his claim that the trial court “engaged in a pattern of overt
judicial hostility toward” Braun, but treated the prosecutor with
courtesy. Nineteen of the challenged colloquies are from the
first penalty phase. As Silveria acknowledges, he suffered no
possible prejudice from any assumed misconduct at the first
penalty phase because the jury hung as to penalty.
       Most of the remaining challenged colloquies were not
made in the presence of either the guilt phase jury or the penalty
retrial jury, but at hearings held outside the presence of the
jury. Therefore they could not have prejudiced either jury’s view
of Braun or Silveria. In addition, for many of the challenged
colloquies, Silveria simply recites what was said during the

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exchange, and makes no effort to explain how the exchange
constitutes judicial misconduct. As Silveria acknowledges, “a
trial judge has the discretion to rebuke an attorney when that
attorney askes inappropriate questions, ignores the court’s
instructions, or otherwise engages in improper conduct.”
       For others, Silveria simply disputes the trial court’s ruling
on an objection or motion, but does not explain how any assumed
legal error constituted judicial misconduct. “[A] judge’s ‘rulings
against a party — even when erroneous — do not establish a
charge of judicial bias, especially when they are subject to
review.’ ”28 (People v. Armstrong (2019) 6 Cal.5th 735, 798.)
       For the vast majority of the challenged colloquies Silveria
did not object on the grounds of judicial misconduct, no
exception to the general requirement of an objection applies, and
the claim as to these instances is therefore forfeited. (People v.
Houston (2012) 54 Cal.4th 1186, 1220.) We discuss below two
colloquies in which he did object. Although “a failure to object
to judicial misconduct does not preclude appellate review when
an objection could not have cured the prejudice or would have
been futile” (ibid.), Silveria fails to demonstrate
circumstances — such as a trial court’s numerous “sua sponte
objections” to questions posed by defense counsel and


28
       Indeed, we have already addressed and rejected above
Silveria’s claim that the trial court erroneously allowed the
prosecutor to introduce “highly prejudicial evidence of an
attempted murder by a notorious prison gang,” noting no
reference to the Nuestra Familia prison gang was made before
the jury, but rather was only mentioned by Travis’s counsel
during a bench conference. (See ante, pt. II.B.4.g.) Given the
evidence was never introduced or even mentioned in front of the
jury, it also provides no factual predicate for a claim of judicial
misconduct or bias.

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“derogatory comments” to counsel and defense witnesses — that
would have made his objections futile (People v. Sturm (2006)
37 Cal.4th 1218, 1237 (Sturm); see id. at p. 1233).
      Moreover, we have reviewed the challenged portions of the
record and conclude Silveria’s claim as to each instance is
meritless. The record indicates the trial judge was engaged,
thoughtful, and occasionally abrupt with each party’s counsel
during this lengthy trial when it appeared counsel was
exceeding appropriate boundaries.            Silveria “fails to
demonstrate any judicial misconduct or bias, let alone
misconduct or bias that was ‘so prejudicial that it deprived
defendant of “ ‘a fair, as opposed to a perfect, trial.’ ” ’ ”
(People v. Maciel (2013) 57 Cal.4th 482, 533.)
             a. Madden’s shirt
       Before the penalty retrial, Silveria moved to exclude as an
exhibit the bloody shirt Madden had been wearing at the time
of the murder. The court ruled that the shirt was admissible
and not unduly prejudicial, noting “it can be displayed to the
jury, but as soon as the witness is through testifying about the
shirt . . . [it] should be taken down.”
      At the penalty retrial, the prosecutor asked
Dr. Pakdaman, the pathologist who had performed Madden’s
autopsy, about Madden’s shirt. Silveria asked for an offer of
proof “as to what relevant evidence . . . can be provided by the
shirt.” At sidebar, the prosecutor explained the shirt was
relevant to the pathologist’s stab wound testimony, and after
hearing argument, the court overruled Silveria’s objection. The
pathologist resumed testifying about the shirt, and when he was
asked by the prosecutor about a wound with a different track
than the others, Silveria again unsuccessfully objected that the


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shirt testimony was irrelevant and sought to have it struck and
the shirt covered.
       Soon after, the prosecutor stated he had no further
questions about the shirt, and said, “If Mr. Braun wishes to
cover it up, that would be fine.” Braun replied, “Well, I would
ask that the person who uncovered it cover it.” The court said,
“Cross-examination, Mr. Leininger?” The prosecutor said, “I
[still] had a couple of questions regarding the throat. I had
nothing about the shirt. I was just deferring to Mr. Braun if he
wishes to cover it.” Braun replied, “Is Mr. Rico suggesting, Your
Honor, that I go up there and —” The court said: “Oh, come on,
people. Why don’t we just cover the shirt. I don’t believe it. I
really don’t believe it.” Braun said, “I don’t either.” The court
replied, “Mr. Braun, why don’t you just be quiet. Thank you.”
The prosecutor continued his direct examination.
       Later that same day, during Travis’s cross-examination of
Dr. Pakdaman, Travis’s counsel Leininger responded to an
objection by the prosecutor by stating: “Well, the victim wasn’t
responding to me. I don’t mean the victim. The witness.” The
prosecutor said, “The victim won’t respond in this case.” The
court said, “Let’s get on with it.”
       At the next recess, outside the presence of the jury,
Silveria moved for a mistrial. Braun stated: “I object to the fact
that the shirt was shown to the jury and move for a mistrial on
that ground . . . . I also object to the way the Court treated me
when the subject of covering the shirt up again arose. . . . In the
course of that colloquy in which I think my behavior was entirely
appropriate the Court in the presence of the jury told me to be
quiet which I thought was demeaning to me and harmful to the
defense generally in how that whole thing appeared to the jury.
I object to that and join that to the exposure of the shirt itself in

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my motion for a mistrial.” Braun also moved for a mistrial on
the basis of the prosecutor’s comment that “ ‘the victim won’t
respond either[,]’ or words to that effect,” when
“Mr. Leininger . . . accidently referred to Dr. Pakdaman who
was the witness as ‘the victim.’ ”
       The court denied the mistrial motion, noting: “As far as
the Court telling you to sit down, Mr. Braun, it’s not the first
time the Court has had to do that because you’re a very slow
learner. As far as the shirt being re-covered up, it was your
motion to have it covered up or to cover it up and your
conversations directly with Mr. Rico w[ere] completely
improper, as you should know.”
       The court continued: “Now, apparently we’re dealing with
a kindergarten class here by the three of you and I’m not at all
happy with any of you. So therefore we have to treat you like
kindergartners. And if I have to do it in front of the jury, by
God, I will. I would expect this from some of the newer attorneys
in this county, but not from you three. You’ve been around long
enough. Thou shalt not continue to argue a point or objection
after the Court has ruled. Thou shalt not address each other
directly, only through the Court. Apparently you can’t do it
civilly. Thou shalt not interrupt an attorney during the
attorney’s argument. Thou shalt not make snide, catty or cheap
remarks whether under thy breath or not. Thou shalt not
interrupt a witness when the witness is answering thy
questions. And any violation of these orders will result[] in thou
paying the coffers of the general fund of this county. Does
everybody understand that?”
       Silveria claims the court’s comments demonstrate the
court’s “persistent[,] uneven treatment of Braun.” The record is
otherwise. It indicates that in front of the jury, the trial court

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reprimanded both parties about their inappropriate comments
regarding who would cover the shirt. The court only focused on
Braun after he said he shared the court’s disbelief at the
attorneys’ conduct and thus appeared to be minimizing his own
culpability.
      Likewise, in denying Silveria’s mistrial motion outside the
jury’s presence, the court largely directed its conduct
admonition to all counsel. Although the court observed it had
previously had to tell Braun to sit down, and that Braun was a
slow learner, these comments, albeit a bit intemperate, fall well
short of demonstrating judicial misconduct. (See Sturm, supra,
37 Cal.4th at p. 1233 [A “ ‘trial court commits misconduct if it
persistently makes discourteous and disparaging remarks to
defense counsel so as to discredit the defense or create the
impression that it is allying itself with the prosecution’ ”].)
Indeed, Braun seemed unwilling to accept the court’s ruling
with respect to the bloody shirt. Even though Silveria’s pretrial
in limine motion to exclude the shirt had been denied, during
the pathologist’s direct examination about the shirt at the
penalty retrial Braun unsuccessfully objected at sidebar to
admission of the shirt and then later moved to strike all
testimony about the shirt.
      Nor does the court’s denial of Silveria’s mistrial motion on
the ground that the prosecutor had made an inappropriate
comment to Travis’s counsel that the victim would not respond
demonstrate bias toward Braun or constitute judicial
misconduct. As noted, the court has broad discretion in ruling
on a mistrial motion, and though the prosecutor’s statement in
front of the jury was inappropriate, the court could reasonably
conclude its comment, “Let’s get on with it,” adequately


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addressed the prosecutor’s gratuitous aside. (See Collins, supra,
49 Cal.4th at p. 198; see ante, pt. II.B.6.)
             b. Indirect contempt
     During a recess in the prosecutor’s cross-examination of
Travis, Travis’s counsel requested leave to interrupt the cross-
examination so that defense expert Dr. Cermak could testify.
The prosecutor, Mr. Rico, unsuccessfully opposed the motion.
      After the recess, and before the jury was brought in, the
court stated: “Mr. Braun, regarding your indirect contempt that
you weren’t able to accomplish here after the Court took the
recess this morning in your behavior regarding Mr. Rico, your
laughing, your taunting him, as far as I’m concerned — you don’t
need to answer this, Mr. Braun. Just have a seat because I am
not going to hear — I am not —” Braun interjected, “I feel I do.”
The court replied, “I am not going to hear an answer from you,
Mr. Braun. If you don’t sit down[,] I will hold you in direct
contempt, do you understand that?” Braun began, “I feel — ”
The court said: “And the deputy will sit you down; do you
understand? Now do it now. As far as I’m concerned, you’re all
acting like children. Why don’t you all try being professional?
If there’s any further acting out like this the offending party will
be banned from the courtroom during any recess.” Braun
replied, “Your Honor, there was acting out, but it wasn’t by me.”
      The following day, during a recess that the court had told
the jury would last “about 15 minutes,” the court reminded
Braun he had earlier indicated he wanted to put something on
the record. Braun stated: “I’m still very upset over what
occurred . . . yesterday afternoon when the Court indicated that
I was in indirect contempt . . . . I think that the Court owes me
an apology for accusing me of the indirect contempt in the

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manner in which the Court did and I would ask permission now
to put the matter on the record as to what in fact did happen,
then there w[ere] other things that I needed to follow through
with.”
      The court replied: “Follow-up. Do the other things then.
We’re not going to hear this.” Braun then engaged in a lengthy
argument asserting that he was treated differently from other
counsel in the case because the court “almost invariably” did not
permit him to make a record or complete his arguments, and
had “demonstrated overt hostility toward” Braun “in open court
throughout this trial” and “at the bench . . . simply for making
arguments that ought to be made by any counsel who is
zealously representing his client. . . . I thought that the Court
treated me very badly in the manner of my calling Dr. Kormos
as a witness.”
      The court replied: “What are you talking about? Would
you explain that a little bit more.” Braun said that he was
referring to when, during Dr. Kormos’s testimony, the court had
“essentially castigat[ed] me and blam[ed] me in a very angry and
what I perceived as a hostile tone of voice for simply calling my
witness.”     Braun continued, asserting that “the whole
atmosphere in this court is very intimidating to me,” “the Court
has been very one-sided against the defense, and me in
particular,” and citing as the “worst example . . . when only I got
castigated for indirect contempt” the day before. He moved for
a mistrial.
      The court replied: “That motion is denied. Anything that
has come to you, Mr. Braun, you brought upon yourself. . . .
[T]he Court has a duty to control a proceeding. Now, the
problem arises when counsel continue to argue objections and

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argue with the Court after the Court has ruled. . . . Counsel
continues to argue, and Mr. Braun unfortunately is the biggest
offender of this in the Court’s eyes. I think the record will show
many times where the Court has had to tell Mr. Braun to please
be quiet, to shut up, or whatever, because the Court has ruled,
and Mr. Braun insists on going further and further and pushing
the envelope further and further.”
      No judicial misconduct or bias is demonstrated. Although
the court did not fully describe on the record Braun’s
objectionable recess behavior, it appears Braun had acted
inappropriately by appearing to visibly taunt the prosecutor
when the prosecutor unsuccessfully opposed Travis’s motion to
allow Dr. Cermak to testify out of order. The court therefore
reprimanded Braun, and told all counsel they were acting like
children, and that such visible taunting would not be tolerated.
The court could reasonably be of the view there was little Braun
could say to ameliorate his observed conduct, and decline to hear
argument on the matter. The court’s language may have been
intemperate, but it was outside the presence of the jury and an
effort by the court to control what it perceived to be
inappropriate conduct by counsel. The following day, when
during a recess scheduled to last 15 minutes Braun moved for a
mistrial based on not only this interaction but on broad
generalizations regarding the court’s treatment of him
throughout the trial, the court listened patiently and allowed
Braun to speak at length.
     Silveria asserts:    “Not every example amounts to
misconduct independently, nor does each necessarily involve an
erroneous legal ruling. But together they tend to illustrate the
demeaning and hostile attitude [the trial court] displayed
toward Braun.” We conclude that Silveria has failed to
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demonstrate any individual instance of judicial bias or
misconduct, nor are the challenged colloquies cumulatively
prejudicial.
         12. Constitutionality of the Death Penalty Statute
      Defendants contend California’s death penalty statute
and implementing instructions are constitutionally invalid in
numerous respects. We have repeatedly rejected similar claims,
and defendants provide no persuasive reason to revisit our
decisions.
      “[T]he California death penalty statute is not
impermissibly broad, whether considered on its face or as
interpreted by this court.” (Dykes, supra, 46 Cal.4th at p. 813.)
We further “reject the claim that section 190.3, factor (a), on its
face or as interpreted and applied, permits arbitrary and
capricious imposition of a sentence of death.” (Ibid.; see
Tuilaepa v. California (1994) 512 U.S. 967, 975–976, 978.)
      Defendants claim that the failure to require the jury
unanimously find true the aggravating factors relied on violates
the Fifth, Sixth, Eighth, and Fourteenth Amendments of the
federal Constitution. We have previously rejected this claim.
(Rangel, supra, 62 Cal.4th at p. 1235; People v. Casares (2016)
62 Cal.4th 808 853–854.) Nor does the death penalty statute
“lack safeguards to avoid arbitrary and capricious sentencing,
deprive defendant[s] of the right to a jury trial, or constitute
cruel and unusual punishment on the ground that it does not
require . . . findings beyond a reasonable doubt that an
aggravating circumstance (other than Pen. Code, § 190.3,
factor (b) or (c) evidence) has been proved, that the aggravating
factors outweighed the mitigating factors, or that death is the
appropriate sentence.” (Rangel, at p. 1235.) “Nothing in


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Hurst v. Florida (2016) 577 U.S. ___ [193 L.Ed.2d 504, 136 S.Ct.
616], Cunningham v. California (2007) 549 U.S. 270 [166
L.Ed.2d 856, 127 S.Ct. 856], Blakely v. Washington (2004)
542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531], Ring v. Arizona[
(2002)] 536 U.S. 584, or Apprendi v. New Jersey [, supra,]
530 U.S. 466 . . . , affects our conclusions in this regard.”
(Rangel, at p. 1235; see id. at p. 1235, fn. 16.)
       Silveria alternatively claims that the “jury should have
been instructed that there was no burden of proof.” In fact, the
trial court here instructed the jury that “there is no burden of
proof in a penalty phase” other than for evidence of
unadjudicated “criminal activity involving force or violence or
the threat thereof under Factor (b) or any prior felony conviction
under Factor (c)” which “must be proven beyond a reasonable
doubt.” Silveria also claims that the instructions erroneously
failed to inform the jury that a finding a mitigating
circumstance was true need not be unanimous. But again here
the court instructed the jury it need not be unanimous in finding
the “existence or truth” of a mitigating factor.
       The trial court need not instruct that there is a
presumption of life, or that if the mitigating factors outweigh
the aggravating factors the jury should return a verdict of life
imprisonment without the possibility of parole. (People v.
Williams (2016) 1 Cal.5th 1166, 1204; People v. Adams (2014)
60 Cal.4th 541, 581.) The trial court was not required to delete
inapplicable factors from CALJIC No. 8.85 (People v. Watson
(2008) 43 Cal.4th 652, 701), or “instruct that the jury can
consider certain statutory factors only in mitigation” (People v.
Valencia (2008) 43 Cal.4th 268, 311). “Written findings by the
jury during the penalty phase are not constitutionally required,
and their absence does not deprive [a] defendant of meaningful

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appellate review.” (People v. Mendoza (2011) 52 Cal.4th 1056,
1097.) “A prosecutor’s discretion to select those eligible cases in
which the death penalty is sought does not offend the federal or
state Constitution.” (People v. Wallace (2008) 44 Cal.4th 1032,
1098.) Nor does such discretion “create a constitutionally
impermissible risk of arbitrary outcomes that differ from county
to county.” (People v. Myles (2012) 53 Cal.4th 1181, 1224.)
       “The language ‘ “so substantial” ’ and ‘warrants’ ” in
CALJIC No. 8.88 “is not impermissibly vague.” (People v.
Romero and Self (2015) 62 Cal.4th 1, 56.) “Use of the adjectives
‘extreme’ and ‘substantial’ in section 190.3, factors (d) and (g) is
constitutional.” (People v. Dement (2011) 53 Cal.4th 1, 57.)
       “The federal constitutional guarantees of due process and
equal protection, and against cruel and unusual punishment
[citations], do not require intercase proportionality review on
appeal.” (People v. Mai (2013) 57 Cal.4th 986, 1057.) We do
perform intracase review, but Travis does not request such
review here. (See People v. Landry (2016) 2 Cal.5th 52, 125.)
“ ‘[C]apital and noncapital defendants are not similarly situated
and therefore may be treated differently without violating’ a
defendant’s right to equal protection of the laws, due process of
law, or freedom from cruel and unusual punishment.” (People v.
Carrasco (2014) 59 Cal.4th 924, 971.)
      Travis’s citation to statistics not based on the record, “even
if properly before us, do[es] not establish that our review of
defendant’s appeal specifically, or of all automatic appeals in
general, has been affected by ‘political considerations,’ resulting
in a denial of his right to due process. (SeePeople v. Kipp (2001)
26 Cal.4th 1100, 1140–1141 [113 Cal.Rptr.2d 27, 33 P.3d 450].)”
(People v. Lightsey (2012) 54 Cal.4th 668, 732.) “One under
judgment of death does not suffer cruel and unusual

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punishment by the inherent delays in resolving his appeal.”
(People v. San Nicolas (2004) 34 Cal.4th 614, 677.) “ ‘The death
penalty as applied in this state is not rendered unconstitutional
through operation of international law and treaties.’ ” (People v.
Jackson (2016) 1 Cal.5th 269, 373.)
         13. Cumulative Prejudice
      Defendants contend the cumulative effect of penalty phase
error requires us to reverse the death judgments. We have
found error, but no prejudice, in the trial court’s instruction to
certain penalty retrial prospective jurors in the language of
CALJIC No. 1.00. (See ante, pt. II.B.7.b.) Likewise, we have
assumed error but found no prejudice in other claims raised by
defendants. We further conclude that this error and the
assumed errors are not prejudicial when considered
cumulatively.
                        III. DISPOSITION
     For the reasons above, we affirm the judgments.


                                                       GROBAN, J.


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




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

Name of Opinion People v. Silveria and Travis
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S062417
Date Filed: August 13, 2020
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Hugh Mullin III

__________________________________________________________________________________

Counsel:

Michael Hersek and Mary K. McComb, State Public Defenders, under appointments by the Supreme Court,
John Fresquez, Timothy Foley, Jessica K. McGuire and Kristin Traicoff, Deputy State Public Defenders,
for Defendant and Appellant Daniel Todd Silveria.

Mark E. Cutler, under appointment by the Supreme Court, for Defendant and Appellant John Raymond
Travis.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Jeffrey M. Laurence, Assistant Attorney General, Alice B. Lustre and Arthur
P. Beever, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Timothy Foley
Deputy State Public Defender
770 L Street, Suite 1000
Sacramento, CA 95814
(916) 322-2676

Mark E. Cutler
P.O. Box 172
Cool, CA 95614-0172
(530) 885-7718

Arthur P. Beever
Deputy Attorney General
455 Golden Gate Ave., Suite 11000
San Francisco, CA 94102-3664
(415) 510-3761
