        IN THE SUPREME COURT OF
               CALIFORNIA

                       THE PEOPLE,
                  Plaintiff and Respondent,
                              v.
                 JEFFREY SCOTT YOUNG,
                  Defendant and Appellant.

                          S148462

              San Diego County Superior Court
                        SCD173300



                        July 25, 2019

Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,
Cuéllar, and Groban concurred.
                     PEOPLE v. YOUNG
                            S148462


              Opinion of the Court by Kruger, J.


       Defendant Jeffrey Scott Young was convicted of the first
degree murders of Teresa Perez and Jack Reynolds (Pen. Code,
§ 187, subd. (a)), the attempted murder of Daniel Maman (id.,
§§ 187, subd. (a), 664), and the carjacking of Jim Gagarin (id.,
§ 215, subd. (a)).      The jury found true allegations that
defendant had personally used a firearm (all counts; id.,
§§ 12022.5, subd. (a)(1), (a)(2), 12022.53, subd. (b)); that
defendant had personally and intentionally discharged a
firearm (the first degree murders and attempted murder; id.,
§ 12022.53, subd. (c)); and that the firearm discharge caused
death (the first degree murders; id., § 12022.53, subd. (d)). The
jury also found true the special circumstance allegations that
the murders were committed during a robbery (id., §§ 190.2,
subd. (a)(17), 211), and that defendant had been convicted of
multiple murders in the same proceeding (id., § 190.2, subd.
(a)(3)). The jury was unable to reach a verdict as to penalty,
and the trial court declared a mistrial. After a penalty retrial,
the jury fixed the penalty at death, and the trial court entered
a judgment of death. This appeal is automatic. (Cal. Const.,
art. VI, § 11, subd. (a); Pen. Code, § 1239, subd. (b).)
      We affirm the judgment as to guilt. But we find the trial
court erred at the penalty retrial by permitting the prosecution
to make improper use of inflammatory character evidence for
purposes unrelated to any legitimate issue in the proceeding.
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


Having carefully reviewed the record, we conclude the error
was prejudicial. We therefore reverse the judgment as to the
sentence of death and remand the matter for a new penalty
determination.
                     I. BACKGROUND
     A. Guilt Phase
      On July 18, 1999, defendant and two other men robbed a
Five Star Park, Shuttle & Fly (“Five Star”) parking lot near
the San Diego International Airport. The three robbers were
aided by a former Five Star employee, James Torkelson, who
planned the robbery and assisted in it by pretending to be on
duty. During the robbery, the robbers shot and killed Five
Star employees Teresa Perez and Jack Reynolds. Then, while
fleeing the scene, the robbers shot at bystander Daniel Maman
and stole the car of a second bystander, Jim Gagarin, at
gunpoint.
      Although the case initially went cold, subsequent
investigation revealed the identities of the perpetrators. In
2003, defendant was jointly charged with one of the other
robbers, David Raynoha, but defendant was tried alone.
Defendant did not contest his participation in the robbery or
the carjacking, but argued that he did not fire the shots that
killed Perez and Reynolds.
         1. Prosecution Case
      Around 12:30 a.m. on July 18, 1999, Kendrick Bowman
began a shift in the toll booth at the Five Star parking lot,
which was located at the intersection of Sassafras Street and
Pacific Highway. Bowman relieved fellow employee Perez,
whom he saw empty the cash drawer and head to the Five Star
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temporary office in a nearby trailer. Shortly after he began his
shift, Bowman encountered Torkelson. Bowman was surprised
by Torkelson’s presence; he thought Torkelson, who had
worked as a security guard at the parking lot, had been fired,
and Torkelson was atypically early for his shift. Bowman also
noticed Torkelson heading for a remote side of the parking lot,
which differed from the usual starting point for Torkelson’s
rounds.
      Immediately after Torkelson disappeared from Bowman’s
line of sight, someone approached Bowman from behind and
said, “Hey, you.” Bowman turned around and found a man
pointing a gun at him. Although the gunman wore nylon
stockings over his head, Bowman observed that the gunman
was a White man in his twenties with a fair complexion and
short, reddish-blonde hair. The gunman ordered Bowman to
lay facedown on the floor of the toll booth. Bowman used his
hand-held radio to send a covert distress signal to the security
guard, but received no response. Unbeknownst to Bowman, all
of the security guards had left after Torkelson told each guard
that he was there to relieve him or her. Bowman then
complied with the gunman’s demand. The gunman stepped
down on Bowman’s back, emptied the cash drawer, and
expressed disappointment at its contents.         The gunman
remained in the toll booth and Bowman asked him why he did
not leave. The gunman responded, “I can’t leave. I’m waiting
for my ride.”
      Bowman heard the door to the bathroom near the trailer
open, and the gunman yelled at someone to go into the trailer.
Bowman assumed the gunman was yelling at Perez, since she
had been heading to the trailer. Bowman then heard one
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gunshot, followed by a series of shots after a brief pause. The
gunman standing over him then fled toward Pacific Highway.
Bowman stood up and saw the gunman clearly; he also saw
two other men running in the same direction. Bowman then
called 911.
      Maman, who had plans to spend the night with Perez,
arrived at the Five Star parking lot a few minutes after 12:30
a.m. to pick her up. Maman was driving a green van. As
Maman was parking the van near the trailer, he saw two men
come out of the trailer. One of the men aimed a revolver at
him and started firing. Maman immediately drove away.
Maman described the gunman as being approximately five feet
seven inches tall, and wearing a stocking over his head.
      Around the same time, Gagarin was retrieving his car
from Park & Ride, a parking lot across Pacific Highway from
the Five Star parking lot. He stopped at the Park & Ride exit
booth, which was manned by Michael Mackey. Gagarin and
Mackey first heard noises coming from the Five Star parking
lot that Mackey dismissed as firecrackers, followed by noises
that sounded more like gunshots. Gagarin and Mackey then
saw a dark van leave the Five Star parking lot, followed by
three men running towards the Park & Ride parking lot from
the Five Star parking lot. The first man to arrive at the Park
& Ride parking lot was armed and ran past the exit booth. The
second and third men fired shots behind them before running
up to the exit booth. Gagarin and Mackey both testified that
the men were White and wore dark clothing, dark caps and
nylon stockings over their faces. The shorter of the two men
pointed a gun at Mackey and demanded the car, while the
taller man pointed a silver-colored gun at Gagarin. Both
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Gagarin and Mackey raised their hands in surrender, and
Gagarin told the assailants to take his car. The assailants
then exited the lot, heading east on Sassafras Street. Just as
they left, the dark van that Gagarin and Mackey had seen
driving away from the Five Star parking lot pulled into the
Park & Ride parking lot. The driver asked if they were all
right and told them that there had been shots fired at the Five
Star parking lot and he believed that the shots were aimed at
him. Mackey then called 911. At the preliminary hearing,
Mackey “felt 75 percent sure” that defendant was the shorter
gunman.1
      San Diego Police Department officers arrived within
minutes of Bowman’s call. Before they arrived, Bowman had
entered the trailer and discovered the bodies of Perez and
Reynolds facedown on the ground with multiple gunshot
wounds to the back of their heads. Bowman did not touch
anything, having recognized that Perez and Reynolds were
dead. When the officers arrived, they checked both victims for
signs of life but found none.
      A homicide investigation team from the San Diego Police
Department also responded to the scene. Members of the team
discovered that the telephone lines and computer power cord in

1
      At trial, the prosecution presented the evidence of the
following physical characteristics of defendant and the other
robbers: (1) defendant is five feet six inches or five feet seven
inches, weighs 160 pounds, and has brown hair; (2) Max
Anderson is six feet two inches, weighs 175 pounds, and has
brown hair; and (3) David Raynoha is six feet, weighs 175
pounds, and has red hair.


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                  Opinion of the Court by Kruger, J.


the trailer had been cut. They found two bullet casings fired
by a Glock nine-millimeter semiautomatic firearm: one near
Perez’s arms and another by Reynolds’s head. They also
recovered four fired bullets: (1) a .38-caliber revolver round
fired from inside the trailer, leaving a bullet hole in the trailer
wall; (2) a .38-caliber revolver round near Perez’s body, and
(3) two Glock rounds near Reynolds’s body. They also found
bullet holes in the carpet under the victims’ heads, which
indicated that the victims had been shot while lying facedown.
There were no signs of a struggle, and the safe was open.
Perez’s car was found inside the Five Star parking lot. A nine-
millimeter Glock cartridge was found on the ground outside
the car, and a Glock bullet, which was used to shatter the
passenger window, was found lodged in the driver’s seat. A
bank deposit bag containing $1,512 in cash and a deposit slip
for a $2,457 deposit were recovered in the front seat. A roll of
duct tape was also found. A strand of hair found on the tape
was later tested; testing revealed the DNA belonged to Max
Anderson, who would later be identified as one of the robbers.
      Gagarin’s car was discovered less than a mile from the
Five Star parking lot. A nine-millimeter bullet casing was
found on the ground outside the car, and a Glock containing 12
live nine-millimeter cartridges was found on the front
passenger seat. Ballistics testing confirmed that all of the
nine-millimeter casings from the trailer matched the magazine
in Gagarin’s car. Dr. Christopher Swalwell examined the
bodies at the scene on the night of the robbery and performed
autopsies the next morning. Dr. Swalwell concluded that both
victims died from gunshot wounds to the back of the head.
Perez had two gunshot wounds, one on each side of her head,
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caused by a .357 magnum or a .38-caliber revolver. Reynolds
had three gunshot wounds, one in his right arm and two to his
head, caused by a nine-millimeter Glock handgun. Based on
the nature of the wounds and position of the bodies,
Dr. Swalwell concluded that both Perez and Reynolds had been
shot in the back of the head while lying facedown with their
arms over their heads. And based on a distinct star-shaped
tearing around the entry point of each gunshot wound and the
presence of soot within each wound, Dr. Swalwell also
concluded that the gunshot wounds were contact wounds,
meaning that the barrel of the gun was pressed against the
victims’ skin at the time of discharge. Steve Simmonds, the
operations manager of the Five Star parking lot, testified that
he initially believed that approximately $3,400 was taken in
the robbery. But with the bank deposit bag recovered from
Perez’s car, Simmonds estimated that the total monetary loss
was approximately $2,000. Simmonds also testified that it was
company policy that all employees were to comply and not
resist in the event of a robbery.
       Detective Stephen McDonald testified that the case went
cold for three years until he contacted Paula Daleo, Torkelson’s
girlfriend at the time of the robbery. Daleo disclosed two
incidents that connected defendant to the robbery. First, the
night before the robbery, Torkelson brought four men back to
their home: a man known to her as “Li’l Jeff,” Raynoha, and
two others. Daleo did not know Li’l Jeff’s last name, but
recognized him from frequent hangouts with Torkelson. Li’l
Jeff also had two distinct tattoos: one on his arm that said
“Nigger Thrasher” and another on his neck that depicted the
hammer of the Norse god Thor. After the robbery, Torkelson
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                  Opinion of the Court by Kruger, J.


and Li’l Jeff went to Tempe, Arizona to stay with a man named
Jason Getscher. At trial, Daleo identified defendant as Li’l
Jeff.
      The second incident occurred about a year after the
robbery, when Daleo attended a party in Li’l Jeff’s home in
June 2000. Daleo recalled a general discussion of the robbery,
in which Torkelson was described as the organizer of the
robbery, and Li’l Jeff and Raynoha were described as
participants. Someone said the killings during the robbery
took place because “Jeff got trigger happy.” Li’l Jeff responded,
“No, I did not,” but did not deny involvement with the robbery.
      Based on the information obtained from Daleo, Detective
McDonald contacted Getscher. At the time, Getscher was
serving a term in Arizona state prison for forgery. Getscher
explained that he met defendant during an earlier prison term
in 1996. Because he was 10 years defendant’s senior, Getscher
sought to protect defendant inside prison and keep him out of
trouble after they were released. Defendant, Anderson, and
Torkelson stayed in Getscher’s house immediately before the
robbery.    During their stay, defendant, Anderson, and
Torkelson discussed robbing a business where Torkelson
worked as a security guard. Getscher was present when the
three men discussed their plans and left to commit the robbery
and when they all returned to Getscher’s home. Torkelson
repeatedly warned defendant not to say anything.
     On a subsequent occasion, defendant told Getscher that
the robbery had not gone well and that defendant had shot
someone. Getscher also saw defendant attempting to lace his
boots with red laces.    Getscher explained that he and

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defendant were skinheads in prison, and that in skinhead
culture “red laces would indicate that you have drawn the
blood of an enemy.” Defendant insisted that he had earned the
laces, but Getscher disagreed because defendant had “killed an
innocent victim and that he didn’t kill an enemy that was
trying to get him.” Getscher also noticed a cut on defendant’s
hand, which defendant explained was a burn from putting his
hand over the barrel of the gun to silence the gunshots.
       Getscher agreed to call defendant from prison and get
him to talk about the robbery while Detective McDonald
recorded the conversation. This arrangement resulted in two
recorded conversations. In the first conversation, which took
place on October 28, 2002, Getscher referred to the “stupid
little stunt” and “escapade” that defendant, “James,” and
“Max” had participated in two to three years earlier.
Defendant did not deny his involvement. In the second
conversation, which took place on November 26, 2002,
Getscher told defendant that he was building a small team for
a bank heist and would allow defendant to join so long as
defendant told him “what happened before,” so he could be
sure “it ain’t happenin’ again.” Getscher also indicated that
whoever “did it” on the last job would not be participating in
the bank heist. Defendant identified the participants in the
Five Star parking lot robbery as himself, Torkelson, and
Anderson. Defendant described the robbery as poorly planned
by Torkelson, but defendant also admitted that he had been
affected by nerves and adrenaline. Defendant explained that
the three men had “covered up” to hide their identities, but
forgot to bring materials to tie up the victims. As the robbery
got out of hand, “it happened.” Getscher asked who started the
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                  Opinion of the Court by Kruger, J.


gunfire, and defendant responded, “I, I was the first one that
fired.” Defendant explained that panic and adrenaline led him
to open fire and he was “thinkin’ they’re gonna get away, fuck,
I don’t want to go down.” Getscher asked if Anderson had shot
the woman during the robbery. Defendant responded, “Nah,
that was me.” Defendant explained that “everything was just
going wrong [and] the next thing I know I just did it. I don’t
know. It just kind of happened.” Anderson fired his weapon
after defendant fired his. As defendant and Anderson left the
trailer, defendant also fired at someone in a car and at some
man in a “box thing” in the parking lot because he thought one
of them had seen him. Defendant explained that the escape
plan fell apart when the key broke in the ignition of the
getaway vehicle, and everyone scattered. The robbery yielded
very little because “most of the stuff got left behind.” Getscher
and defendant also discussed the red laces: Defendant told
Getscher that he understood why he did not earn the laces
during the robbery and assured Getscher that he would not
overreact in a subsequent heist.
       After these recorded calls, defendant was arrested.
While in custody, Detective McDonald played a portion of the
second recorded call for defendant. When asked if he wanted
to tell his side of the story, defendant responded, “You heard it
all,” and “I ain’t gonna talk about it no more.”
         2. Defense Case
      Defendant did not call any witnesses and rested on the
record. In closing argument, defense counsel conceded that
defendant was in the trailer during the robbery and
participated in carjacking Gagarin. Defense counsel argued
that defendant did not shoot Perez and that Anderson instead
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                 Opinion of the Court by Kruger, J.


shot both Perez and Reynolds. Defense counsel acknowledged
that defendant had claimed responsibility for shooting Perez in
his second recorded conversation with Getscher, but argued
that defendant was merely posturing to impress Getscher.
Further, counsel argued, this conversation revealed that
defendant acted out of panic, nerves, and adrenaline, and that
he lacked the intent to kill.
     B. Penalty Phase
      At the first penalty phase trial, the jury had been unable
to reach a verdict and the trial court declared a mistrial on
November 10, 2005. The penalty phase retrial began several
months later, on June 19, 2006.
         1. Prosecution’s Case in Aggravation
      The prosecution called witnesses from the guilt phase to
describe the robbery, defendant’s role in the robbery murders,
and the forensic evidence. The prosecution also presented
evidence of defendant’s attitude following the robbery murders.
Getscher testified about defendant’s attempt to put red laces in
his boots as a mark of having “dr[awn] the blood of an enemy.”
Getscher took the laces away, telling defendant that he had not
earned them because the laces were only for killing non-White
“enem[ies].” Defendant responded, “Oh, I earned them. . . . It
was a Mexican.”
      The prosecution presented victim impact evidence from
family, friends, and coworkers of Perez and Reynolds, who
described how the victims’ deaths affected them.          The
prosecution presented evidence of defendant’s participation in
three prior crimes: (1) an attempted theft at an Arizona bank
in July 1999; (2) an attack on inmate Robert Harger while

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defendant was incarcerated during trial; and (3) an assault on
Lee Alvin committed during a robbery of an Arizona
convenience store in 1992.
         2. Defense’s Case in Mitigation
      Members of defendant’s family, including his
grandmother, aunts, uncle, and parents, testified about
hardships defendant had encountered growing up. Defendant’s
parents separated when he was one year old, and defendant
had no contact with his father until he was around 12 years
old. Defendant struggled with learning and was placed in
special education classes. When defendant was nine years old,
he was sexually abused by his older cousin. Defendant’s father
began giving him alcohol as an infant and later introduced him
to drugs as an adolescent. Defendant spent some time in an
adolescent psychiatric hospital and a drug rehabilitation
center. Defendant was a nonviolent person and a loving and
attentive father to his son and stepdaughter. Defendant
accepted responsibility for the crimes he committed in Arizona.
After the trial court ruled that this evidence of defendant’s
good character opened the door for the prosecution to introduce
evidence of defendant’s racist tattoos and affiliations in
rebuttal, some family members testified they were “confused”
by his racist tattoos because, to their knowledge, he was “never
really racist.” Defendant obtained a GED while in prison in
Arizona and subsequently learned welding to support his
family. Defendant called two acquaintances who knew him in
a professional capacity; they testified that defendant was a
hard worker who had no problems with coworkers of other
races. The founding director of the Center for Children of
Incarcerated Parents testified about the ability of parents who
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are incarcerated to have a meaningful role in their children’s
lives.
      Aaron Beek, an inmate who participated in the attack on
inmate Harger when defendant was awaiting trial, attested to
being the only one who physically attacked Harger; defendant,
Beek testified, was not present during the assault. But Beek
acknowledged authoring a letter in which he said he pleaded
guilty to the assault to “take the charges off . . . [his] comrade
Jeff.” At trial Beek explained, “I don’t feel comfortable letting
[defendant] get charged with something I did.” On cross-
examination, the prosecution presented Beek with another
letter confiscated by jail officials and signed in defendant’s
name that bragged about being a member of the “American
Front” and the “shot-caller” for the Caucasian prisoners in jail.
Beek claimed to have authored this letter as well.
      An officer who investigated the attack on Harger testified
that although Harger identified defendant as being present
during his assault, Harger misidentified defendant’s hair color
and name. A family therapist characterized defendant as a
“follower” who is “highly susceptible to the influence of others.”
The therapist noted that the sexual molestation that defendant
suffered, as well as his early exposure to alcohol, may have
affected his development and led to later alcohol and drug
abuse problems. The therapist testified that defendant became
a skinhead for two reasons: (1) to achieve a sense of belonging
as he felt like an outsider in his family, and (2) as a means of
self-preservation in prison. In response to questioning about
what values might have attracted defendant to “the skinhead
philosophy,” the therapist testified that the values
“incorporat[e] not only the negative ones that we associate with
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it, but also ones that have to do with honor, respect, loyalty,
fidelity to one’s group, a sort of misguided protection of the
common man . . . and a lot of pride.”
         3. The Prosecution’s Rebuttal
       On rebuttal, the prosecution presented evidence in
accordance with the trial court’s ruling that testimony by
defendant’s grandmother supporting his good character could
be rebutted with evidence of defendant’s racist tattoos and
affiliations. Deputies investigating the assault on Harger
testified that the day after the assault they found a Celtic rune
above defendant’s cell door and a swastika outside his cell,
both apparently drawn in blood. Police officers who had
interacted with defendant in 1999 testified about defendant’s
tattoos, which included the phrase “Nigger Thrasher,” a
swastika, and the number “88.” Joanna Mendelson, the
director of investigative research at the Southern California
branch of the Anti-Defamation League, testified about the
origins and ideology of skinheads generally and the American
Front and Aryan Nations groups specifically. Mendelson
explained that skinheads adhere to a religion known as
Odinism, which provides skinheads in prison the “opportunity
to congregate” in order to “conduct criminal activity and
violence.”     Mendelson reviewed defendant’s tattoos and
symbols on letters he had written and explained their meaning
within skinhead culture, identifying several as “inherently
racist symbol[s].”
         4. The Defense’s Surrebuttal
     Two Hispanic inmates housed in the same jail as
defendant testified that defendant never expressed any

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support for racial violence and got along with inmates of other
races. A sheriff’s department sergeant who investigated the
assault on Harger testified that an informant identified Beek
and an inmate named Britain as the “shot-caller[s]” for the
Caucasian inmates.        The informant witnessed Britain
sharpening the shanks later recovered from the attack on
Harger, Beek looking nervous outside his own jail cell when
the attack occurred, and Beek washing his hands after the
attack.
                      II. DISCUSSION
     A. Guilt Phase Claims
         1. Admission of Statement Given in Response to
            Police Questioning
      After defendant was arrested, he was interviewed by
Detective McDonald. Deferring defendant’s repeated requests
for “his rights,” Detective McDonald instead began the
interrogation by playing the tape of defendant’s conversation
with Getscher, in which defendant described the circumstances
of the robbery and admitted to fatally shooting Perez. Then,
after reading defendant his rights under Miranda v. Arizona
(1966) 384 U.S. 436 (Miranda), Detective McDonald asked if
defendant wished to tell his side of the story. Defendant
responded, “You heard it all,” before asking for an attorney and
terminating the interrogation.         Defendant argues this
statement should have been excluded under the Fifth and
Fourteenth Amendments to the federal Constitution, as well as
under state evidence law, and that the failure to exclude the
statement calls for reversal. We find no reversible error.



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            a. Background
      Detective McDonald interviewed defendant on March 20,
2003.    After confirming defendant’s name and address,
Detective McDonald explained that defendant was in custody
“regarding a 1999 murder case we revisited” and asked if
defendant knew “James Torkelson.” Defendant expressed
uncertainty, and Detective McDonald responded that
“[Torkelson]’s up in prison right now. He’s looking at thirty
years and he’s looking for deals and he gave us some
information regarding a murder case in 1999. It happened at
[a] Park and Ride, Airport Park and Ride.” Defendant
confirmed he knew Torkelson as “Woody.”
      Detective McDonald explained that Torkelson and
another individual had given law enforcement “some
information,” and so “things are starting to fall apart on this
whole operation you guys were . . . involved in.” Detective
McDonald further explained that Torkelson was “doing thirty
years” and “wants a deal,” but that “[w]e’re not sure we want to
deal with him.” The conversation then continued as follows:
      “MCDONALD: . . . But we want to hear, this would
be your opportunity to tell us your side of the story. We
do have other evidence too. We have a tape here that I
could play for you if you want to hear that. But I just
want to know would you like to tell us your side of the
story what happened at this lot?
     “YOUNG: After I get my rights.
      “MCDONALD: But only if this, yeah, I’m just
letting you know if you, I can read your rights.


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        “YOUNG:    (Unintelligible), that’s, one step at a
time.
        “MCDONALD: Okay. Like to go that route?
     “YOUNG: It’s getting kind of weird. Cause, yeah, I
know about that. Woody told me about it, you know,
cause he’s working security there.
        “MCDONALD: Okay.
        “YOUNG: Yeah, I’d like my rights.
        “MCDONALD: Okay. Let me uh
    “YOUNG: If you don’t mind. I don’t want to be,
make like a dick or anything or make anything
        “MCDONALD: No, but would you like to listen to a
        tape first?
        “YOUNG: Uh
     “MCDONALD: I won’t say nothing. I won’t ask
you any questions. Would you like to listen after?
        “YOUNG: Yeah.
     “MCDONALD: Okay. And then after we’re done,
I’m not gonna ask you any questions, I’ll play a tape and
then uh, after the tape, I’ll advise you of your rights and
we can go on.
        “YOUNG: Okay.”
      Detective McDonald then attempted to play the
tape but encountered technical difficulties. After twice
leaving to retrieve new batteries, Detective McDonald
successfully played defendant a portion of the second
recorded call between defendant and Getscher, which
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took place on November 26, 2002. In the recording,
defendant admitted to participating in the robbery and to
shooting Perez. Detective McDonald asked defendant if
he wanted to hear the remainder of the recorded call, but
defendant stated, “Nah, I heard about enough.”
     Detective McDonald then spoke about the
importance of teaching one’s children to take
responsibility for mistakes. Defendant agreed that he
wanted his son to be raised that way.        Detective
McDonald reiterated that “sometimes we have to face up
to our responsibilities of things that happen.” The
conversation then continued as follows:
      “MCDONALD: . . . A lot of people like want favors.
But, uhm, so, let me, you know.
    “YOUNG:       So you’re sure those guys don’t like
Woody. So you
      “MCDONALD: No, there’s, there’s people that
don’t like Woody at all.
     “YOUNG: Yeah.
      “MCDONALD: No, he doesn’t, there’s not too many
friends. I don’t know why, uh . . . no one likes, I can’t
find anyone that really likes him. But uh, now you can
hear the tape in front of you.
      “YOUNG:       Nah-hu.      He’s basically my, he’s
basically my bitch boy.
     “MCDONALD: Yeah.
      “YOUNG: Fucken be driving to go see girls. Cause
I don’t have a car.
                                18
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


      “MCDONALD: Yeah. Let me advise you of your
rights and see if you’d like to continue on. Cause
basically we got everything on, on tape but we’d just like
some details from you. Okay. And I appreciate your
honestly [sic] and it’d be something at least you can tell
your son, that hey, I made a mistake and I faced up to it
and you should too. If you do something wrong, you
should tell your mother or something or just face up to
your responsibilities. I mean, that’s something you got to
think of as an adult, as a parent. Uhm, all right?
     “YOUNG: What am I looking at? Death?
      “MCDONALD: Let me, let me advise you of your
rights okay. My job, my job is
     “YOUNG: (Unintelligible).
     “MCDONALD: Get evidence
     “YOUNG: (Unintelligible).”
       Detective McDonald then read defendant his Miranda
rights, and defendant indicated that he understood each one.
Immediately after, Detective McDonald asked defendant, “Do
you want to tell us your side of the story on this?” Defendant
responded, “You heard it all.” Detective McDonald explained
that “there’s a lot of holes” because “it wasn’t me asking you
these questions” in the recording. Defendant then responded,
“I ain’t gonna talk about it no more.”
      Detective McDonald expressed “respect” for defendant’s
decision not to speak further about the incident, but noted that
“there’s other people that are spilling names out left and
right.” Detective McDonald encouraged defendant to “[j]ust

                                19
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


say, I did this, I did that. That’s that all you have to do
through it, okay.” Defendant acknowledged that others were
disclosing information, but responded, “I’m gonna have to ask
for an attorney.” Defendant explained his decision to request
an attorney, and Detective McDonald responded, “We’re, we’re
done.” Detective McDonald asked no further questions, and
the conversation ended shortly thereafter. Before trial, the
parties disputed whether the prosecution was entitled to use
defendant’s statement “You heard it all.”            In a written
suppression motion, defendant argued that he “had asserted
his rights and this statement comes in violation of his Miranda
rights and 5th Amendment rights.” He also argued the
statement was irrelevant, unduly confusing, and cumulative
under Evidence Code section 352. At a hearing on the motion,
defense counsel further contended that Detective McDonald:
(1) deliberately pressured defendant into listening to the tape
of the second recorded conversation despite defendant’s
invocation of his rights, and (2) improperly held out the
possibility of a deal for defendant. The prosecutor responded
that defendant had expressed a willingness to speak with
detectives when Detective McDonald asked, “[W]ould you like
to tell us your side of the story, what happened?” and
defendant responded, “After I get my rights.” The prosecutor
acknowledged that “there’s some concern with using pre-
Miranda statements,” but explained that “[i]t’s not the People’s
intention to use any of [those] statements . . . .” The prosecutor
argued that the single statement at issue “came after a full
advisal of the Miranda advisements,” and that there was no
“heavy-handedness” in defendant’s interrogation.


                                 20
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


      The trial court denied the motion. The trial court
explained that “[t]here are a series of statements in [the
interrogation] that would have made this a far more
interesting and esoteric hearing, but the People’s decision not
to use those obviates the need for that.” The court “d[id] not
see a Miranda problem” with using the statement “You’ve
heard it all.”
            b. Discussion
      “To safeguard a suspect’s Fifth Amendment privilege
against self-incrimination from the ‘inherently compelling
pressures’ of custodial interrogation (Miranda, supra, 384 U.S.
at p. 467), the high court adopted a set of prophylactic
measures requiring law enforcement officers to advise an
accused of his right to remain silent and to have counsel
present prior to any custodial interrogation.” (People v.
Jackson (2016) 1 Cal.5th 269, 338–339.) “Failure to administer
Miranda warnings creates a presumption of compulsion.
Consequently, unwarned statements that are otherwise
voluntary within the meaning of the Fifth Amendment must
nevertheless be excluded from evidence under Miranda.”
(Oregon v. Elstad (1985) 470 U.S. 298, 307 (Elstad).) “Miranda
safeguards come into play whenever a person in custody is
subjected to either express questioning or its functional
equivalent. That is to say, the term ‘interrogation’ under
Miranda refers not only to express questioning, but also to any
words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating
response . . . .” (Rhode Island v. Innis (1980) 446 U.S. 291,
300–301.)
                                21
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


       After Miranda warnings are administered, “ ‘if the
suspect indicates that he wishes to remain silent, the
interrogation must cease. [Citation.] Similarly, if the suspect
states that he wants an attorney, the interrogation must cease
until an attorney is present. [Citation.] Critically, however, a
suspect can waive these rights. [Citation.] To establish a valid
waiver, the State must show that the waiver was knowing,
intelligent, and voluntary under the “high standar[d] of proof
for the waiver of constitutional rights [set forth in] Johnson v.
Zerbst [1938] 304 U.S. 458 . . . .” ’ ” (People v. Williams (2010)
49 Cal.4th 405, 425.) “On review of the trial court’s ruling, ‘we
accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if supported by
substantial evidence. We independently determine from the
undisputed facts and the facts properly found by the trial court
whether the challenged statement was illegally obtained.’ ”
(People v. Case (2018) 5 Cal.5th 1, 20.)
       Defendant argues, and the Attorney General concedes,
that Detective McDonald violated Miranda by failing to advise
defendant of his rights at the outset of the interrogation. But
none of defendant’s unwarned statements was admitted at
trial. Our inquiry here instead focuses on the prosecution’s use
of a statement elicited after defendant received the required
advisements. Case law makes clear that an initial Miranda
violation does not necessarily require the exclusion of
statements following proper advisements. Indeed, we have
explained, “[e]ven when a first statement is taken in the
absence of proper advisements and is incriminating,” a
subsequent voluntary confession made after proper
advisements “is not tainted simply because it was procured
                                 22
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


after a Miranda violation.” (People v. Williams, supra, 49
Cal.4th at p. 448.) “ ‘The relevant inquiry’ ” is whether the
statement was “ ‘voluntarily made’ ” following proper
warnings. (Ibid., quoting Elstad, supra, 470 U.S. at p. 318.)
      Defendant makes essentially two arguments for
excluding his postwarning statement. As an initial matter, he
argues that the statement was involuntary because Detective
McDonald employed improper psychological tactics to induce
him to waive his right to remain silent. In particular,
defendant argues that after deferring defendant’s request for
“his rights,” Detective McDonald impermissibly attempted to
soften him up by suggesting that he might be able to make a
deal and by playing on his responsibility as a father.
      Defendant relies on People v. Honeycutt (1977) 20 Cal.3d
150, 160 for this “softening-up” argument, but Honeycutt does
not help him. In Honeycutt, we held that a Miranda waiver
obtained “from a clever softening-up of a defendant through
disparagement of the victim and ingratiating conversation”
was involuntary, and the subsequent confession was therefore
inadmissible. (Ibid.) But this case lacks what we have
described as “the two salient features of Honeycutt.” (People v.
Scott (2011) 52 Cal.4th 452, 478.)          In Honeycutt, the
interrogating officer had a long-standing acquaintance with
the suspect and sought to ingratiate himself by engaging in a
“half-hour unrecorded discussion” of “unrelated past events
and former acquaintances” before turning to the topic at hand.
(Honeycutt, at p. 158.) The record in this case, which does not
reveal any past relationship between Detective McDonald and
defendant, also does not reveal any similarly improper efforts
at “ingratiating conversation” concerning unrelated topics or
                                23
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


“disparagement of the victim[s].” (Id. at p. 160; accord, People
v. Gurule (2002) 28 Cal.4th 557, 602; People v. Kelly (1990) 51
Cal.3d 931, 954.)
      Nor do we otherwise perceive any impropriety in
Detective McDonald’s supposed suggestion that defendant
might obtain a deal or the exhortation that defendant set a
good example for his son. Detective McDonald informed
defendant that Torkelson and another individual were seeking
deals in exchange for their cooperation, but Detective
McDonald neither expressly nor impliedly promised defendant
a deal should he confess before Torkelson or the other
individual. (See People v. Holloway (2004) 33 Cal.4th 96, 115
[“ ‘mere advice or exhortation by the police that it would be
better for the accused to tell the truth when unaccompanied by
either a threat or a promise does not render a subsequent
confession involuntary’ ”].) Nor can we say that Detective
McDonald’s reference to setting a good example for his son was
designed to overbear defendant’s free will by exploiting a
particular psychological vulnerability; certainly the reference
appeared to have no such effect. (See People v. Kelly, supra, 51
Cal.3d at p. 952 [asking the suspect whether he was aware
that he had violated his “ ‘Christian upbringing’ ” and asking
how his mother was going to feel were not impermissibly
coercive].)
     Defendant’s second and more substantial argument
concerns Detective McDonald’s delay in giving the required
Miranda advisements. Defendant focuses on the fact that
Detective McDonald put off defendant’s request for “his rights.”
Defendant argues the delay requires suppression of his
statement because it constituted part of an impermissible “two-
                                24
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


step” or “question-first” tactic of the sort disapproved in
Missouri v. Seibert (2004) 542 U.S. 600. In Seibert, the
defendant was arrested and “questioned . . . without Miranda
warnings for 30 to 40 minutes,” which resulted in the
defendant’s confession. (Id. at pp. 604–605 (plur. opn.).) The
defendant was then given a 20-minute break, after which the
interrogating officer “turned on a tape recorder, gave
[defendant] the Miranda warnings, and obtained a signed
waiver of rights from her.” (Id. at p. 605.) The interrogating
officer then confronted the defendant with her prewarning
statements, and the defendant reaffirmed the substance of
those statements. (Id. at p. 606.) At a later suppression
hearing, the interrogating officer “testified that he made a
‘conscious decision’ to withhold Miranda warnings, thus
resorting to an interrogation technique he had been taught:
question first, then give the warnings, and then repeat the
question ‘until I get the answer that she’s already provided
once.’ ” (Id. at pp. 605–606.) The high court concluded in
Seibert that the statements so procured were inadmissible,
though no single rationale commanded a majority of the court.
“A plurality of the Court reasoned that ‘[u]pon hearing
warnings only in the aftermath of interrogation and just after
making a confession, a suspect would hardly think he had a
genuine right to remain silent, let alone persist in so believing
once the police began to lead him over the same ground again.’
[Citation.] JUSTICE KENNEDY concurred in the judgment,
noting he ‘would apply a narrower test applicable only in the
infrequent case . . . in which the two-step interrogation
technique was used in a calculated way to undermine the


                                 25
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


Miranda warning.’ ” (Bobby v. Dixon (2011) 565 U.S. 23, 30–31
(per curiam).)
      The Attorney General argues that the interrogation
technique at issue here differs in relevant ways from the one
condemned in Seibert: Rather than engage in sustained
prewarning interrogation, Detective McDonald advised
defendant he would read him his rights after he played the
tape of his conversation with Getscher.         Whether this
distinction makes a difference—and more to the point, whether
this or any other part of the exchange preceding the giving of
Miranda warnings affected the voluntariness of defendant’s
later, postwarning statement—is an issue we need not decide
because any error in introducing the challenged statement
would be harmless in any event.
      The prosecution argued the statement in question—“You
heard it all”—was an adoptive admission of the contents of the
second recorded conversation between defendant and Getscher.
Its probative value was thus to bolster the veracity of
defendant’s confessions made therein, including his confession
that he shot Perez in the course of the robbery. But the
veracity of the tape itself, which was properly admitted at trial,
was never contested.          The substance of this recorded
conversation provided decisive evidence of defendant’s guilt:
Defendant identified himself as one of the participants in the
robbery, admitted that he shot Perez and fired at two other
witnesses in the parking lot, and discussed the red laces he
had donned to take credit for the murder.
      Defense counsel did argue that defendant was merely
“posturing” in this conversation. But no reasonable juror

                                 26
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


would have believed this explanation. Getscher had initiated
the conversation under the guise of recruiting defendant for a
bank heist and demanded that defendant explain how the Five
Star parking lot robbery had gone so poorly. Defendant
admitted to Getscher that the robbery had been botched and
described the many mistakes that he and his accomplices
made. These mistakes included forgetting materials to tie up
the victims, shooting Perez and Reynolds out of panic, and
leaving behind most of the money. No reasonable juror could
conclude from defendant’s candid description of his own errors
that defendant was “trying to put himself in the best light” in
this conversation. Thus, if there was any constitutional error
in admitting the statement “You heard it all,” the error was
harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18, 24.)
      There is no merit in defendant’s alternative argument
that the statement should have been excluded under state
evidence law. (Evid. Code, §§ 210, 350, 352.) Defendant
contends that the challenged statement was inadmissible
because it was “ambiguous and equivocal” and “only an
acknowledgment of the prosecution’s evidence.” Defendant is
correct that the statement is ambiguous, but the ambiguity
does not render it inadmissible; it is enough that a reasonable
juror could understand it, as the prosecution argued, to suggest
that the contents of the second recorded conversation between
defendant and Getscher were accurate. Defendant’s contention
that the challenged statement was ambiguous and equivocal
“concerns only the weight of this evidence, not its admissibility,
which does not require complete unambiguity.” (People v.
Ochoa (2001) 26 Cal.4th 398, 438.)
                                 27
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


       Defendant asserts that the challenged statement was
also unduly prejudicial, and therefore should have been
excluded under Evidence Code section 352, because the
statement “severely compromised” his argument that
defendant was posturing in the conversation with Getscher
and that Getscher was lying or confabulating.               But
“ ‘prejudice’ ” for purposes of Evidence Code section 352 “does
not mean damage to a party’s case that flows from relevant,
probative evidence.” (People v. Cortez (2016) 63 Cal.4th 101,
128.) “Rather, it means the tendency of evidence to evoke an
emotional bias against a party because of extraneous factors
unrelated to the issues.”        (Ibid.)  The introduction of
defendant’s statement created no risk of evoking such a bias.
The trial court therefore did not abuse its discretion in
declining to exclude the challenged statement as unduly
prejudicial. Of course, even if the trial court had erred, the
admission of the statement was harmless for the reasons
already explained.
         2. Admission of Evidence of Racist Tattoos and
            Association with White Supremacist Groups
      Defendant argues that the trial court committed
prejudicial error by admitting evidence during the guilt phase
that defendant had tattoos suggesting racist beliefs and that
he was affiliated with White supremacist groups. We find no
reversible error.
            a. Background
      Before trial, defendant filed a motion in limine to exclude
all references to defendant’s “affiliation/membership with any
White supremacy organization” as well as his “distinctive,
racially identified/offensive tattoos.” Defendant argued that
                                 28
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


this evidence was both irrelevant and improper character
evidence with “highly inflammatory impact.” The prosecution
responded that two of defendant’s tattoos—one featuring the
phrase “Nigger Thrasher” and another depicting Thor’s
hammer—were relevant to identification, because Daleo, who
had observed defendant making admissions about the Five
Star parking lot robbery and killings at a party in June 2000,
identified defendant by those tattoos.2 The prosecution also
argued that defendant’s use of red laces, and its meaning
within skinhead culture, was relevant to demonstrate
defendant’s consciousness of guilt. The prosecution contended
that the prejudice from both categories of evidence did not
outweigh their probative value.
       At a hearing on the motion, the trial court tentatively
granted defendant’s motion as to evidence of defendant’s
membership in White supremacist groups. The prosecution
reiterated that the red laces were relevant as an admission of
guilt, and pointed out that some evidence of defendant’s White
supremacist beliefs would be necessary to explain the “very
significant meaning” that red laces had to him. The trial court
opined that the red laces “create[] a tremendous [Evidence
Code section] 352 argument for the defense.” Because the
prosecution had “a lot of evidence that [defendant] is the
shooter,” the trial court found there was “not much” probative


2
     The prosecution’s opposition to defendant’s motion in
limine identified a second witness who observed defendant’s
admissions and identified defendant by his tattoos, but that
witness ultimately did not testify at trial.


                                29
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


value to this evidence. The trial court clarified, however, that
it was not ruling on the admissibility of the red laces and
would do so closer to trial.
      With respect to the tattoos, the trial court found that
their offensive nature was “not enough” to outweigh their
relevance “to bolster the credibility of the witnesses” who
identified defendant by those tattoos. The trial court offered
defense counsel two options: stipulating that defendant had
the tattoos, or allowing the prosecution witnesses to use
photographs of the tattoos to identify defendant. Defense
counsel asked the trial court if it would entertain a stipulation
that defendant “has certain tattoos which the witnesses have
recognized, . . . without specification of the tattoos and without
showing them to the jury.” The trial court indicated that it
would entertain any stipulation agreed upon by the parties as
well as any proposed curative instructions from the defense.
      Before trial, defense counsel reiterated its objection to
photographs of defendant’s “Nigger Thrasher” and Thor’s
hammer tattoos prepared by the prosecution as a trial exhibit.
Defense counsel offered to stipulate that defendant had
distinctive tattoos through which Daleo identified him, but the
prosecution did not respond to this offer. The trial court ruled
that the photographs were admissible.
     On direct examination, Daleo testified that the man she
knew as “Li’l Jeff” had a tattoo reading “Nigger Thrasher” on
his upper arm and a tattoo depicting Thor’s hammer on his
Adam’s apple. Daleo identified defendant as “Li’l Jeff,” and
also identified the photographs as accurate depictions of


                                 30
                         PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


defendant’s tattoos. The photographs were admitted and
published to the jury over defendant’s continued objection.
      During a break in Daleo’s testimony, the prosecution
asked for “clarification” of the trial court’s ruling on evidence of
defendant’s membership in White supremacist groups. The
trial court expressed the view that this evidence was still
irrelevant. Defense counsel responded that the relevance of
this evidence would depend on Daleo’s testimony, particularly
if Daleo mentioned the red laces. The prosecution indicated
that it did not plan to elicit any testimony about the red laces
from Daleo, although that evidence “may become relevant
later.” The trial court responded that the red laces were “likely
going to become relevant in a number of ways,” and stated, “I
believe we have already resolved [t]hat was going to come in.”
The trial court also noted (without further elaboration) that
defendant’s “alleged status as a skinhead . . . may become
pertinent” if defendant suggested that his statements in the
second recorded conversation with Getscher had been mere
posturing. Defense counsel then requested permission to
question Daleo about defendant’s use of red laces, even if the
prosecution did not, to “find out exactly what her particular
biases are, how she knew this particular group.” The trial
court granted this request.
      When direct examination resumed, Daleo testified that
both Torkelson and defendant were skinheads. Torkelson was
involved with “several groups that would talk about activism
for the White power movement; rallying things together,
sometimes political; getting involved to make a difference for
the movement.” Daleo, defendant, and Raynoha would often

                                 31
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


attend meetings for these groups with Torkelson.            The
prosecution did not ask Daleo about the red laces.
      On cross-examination, defense counsel asked Daleo if she
wore red laces to the party in June 2000 where defendant
admitted his involvement in the Five Star parking lot robbery
and killings. Daleo denied doing so, but admitted that she and
other skinheads occasionally wore red laces for fashion
reasons. On redirect examination, the prosecution asked Daleo
if red laces had a specific meaning for defendant’s skinhead
group. Daleo responded that it could mean “hav[ing] shed
blood for the cause.” Daleo also confirmed that “earning your
laces” was a type of “initiation” for skinhead groups that
“might mean you have spilled the blood of somebody.”
      Getscher testified that he and defendant were “both
skinheads, good buddies, [who] kind of looked after each other”
while in prison together in 1996. Getscher explained that
“[r]ed laces would indicate that you have drawn the blood of an
enemy. I guess a proud standing in the skinhead culture.”
Getscher testified that after the Five Star parking lot robbery,
defendant told him that “things went really bad” and that
defendant had shot someone. Defendant purchased red laces
on his way back to Getscher’s house from the Five Star parking
lot robbery and tried to lace his boots with them. Getscher
took the red laces from defendant and “explained to him that
he did not earn his red laces” because “he killed an innocent
victim and . . . he didn’t kill an enemy that was trying to get
him.”




                                32
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


             b. Discussion
      On appeal, defendant renews his argument that evidence
of his racist tattoos and his use of red laces should have been
excluded because they were irrelevant and because their
prejudicial impact substantially outweighed their probative
value. Defendant argues that introduction of evidence of his
“Nigger Thrasher” tattoo, in particular, was unnecessary for
Daleo’s identification because Daleo was acquainted with
defendant and could have identified him by his face alone.
Defendant also contends that the red laces had little probative
value in light of the prosecution’s other evidence establishing
that defendant shot Perez. Given that neither the robbery nor
the killings were motivated by racial animus, defendant
argues, the primary effect of admitting this evidence was
simply to call the jury’s attention to his inflammatory White
supremacist views in violation of Evidence Code section 352.
       Under the Evidence Code, all relevant evidence is
admissible unless prohibited by statute. (Evid. Code, § 351.)
“ ‘Relevant evidence is defined in Evidence Code section 210 as
evidence “having any tendency in reason to prove or disprove
any disputed fact that is of consequence to the determination of
the action.” The test of relevance is whether the evidence
tends “logically, naturally, and by reasonable inference” to
establish material facts such as identity, intent, or motive.’ ”
(People v. Bivert (2011) 52 Cal.4th 96, 116–117.) But under
Evidence Code section 352, the trial court retains the
discretion to exclude relevant evidence if “its probative value is
substantially outweighed by the probability that its admission
will” either “necessitate undue consumption of time” or “create
substantial danger of undue prejudice, of confusing the issues,
                                 33
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


or of misleading the jury.” “We review a trial court’s decision
to admit or exclude evidence ‘for abuse of discretion, and [the
ruling] will not be disturbed unless there is a showing that the
trial court acted in an arbitrary, capricious, or absurd manner
resulting in a miscarriage of justice.’ [Citation.] When
evidence is erroneously admitted, we do not reverse a
conviction unless it is reasonably probable that a result more
favorable to the defendant would have occurred absent the
error.” (People v. Powell (2018) 5 Cal.5th 921, 951.)
      Although defendant contends otherwise, his tattoos were
clearly relevant because the tattoos had a tendency in reason
to prove defendant’s identity as “Li’l Jeff,” the man Daleo
heard discussing his involvement in the robbery murders at a
party in June 2000. (See People v. Medina (1995) 11 Cal.4th
694, 749.) The red laces were likewise relevant because
defendant’s efforts to claim what he understood to be a badge
of honor for the killing tended to demonstrate consciousness of
guilt. (See People v. Ochoa, supra, 26 Cal.4th at pp. 437–438.)
But as the trial court recognized, the evidence did carry with it
the potential to evoke an emotional response against the
defendant unrelated to the issues before the jury. We need not
address the propriety of the trial court’s ultimate decision to
admit the evidence under Evidence Code section 352, however,
because any error in its admission at the guilt phase was
harmless in any event. The evidence of defendant’s guilt was
overwhelming. The jury at trial heard recordings in which
defendant himself confessed to planning and committing the
robbery with Torkelson and Anderson, shooting the female
victim so that she would not be able to identify him, and
shooting at a male victim in the parking lot. There is no
                                 34
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


reasonable probability that the jurors’ negative reaction to
defendant’s racist tattoos, associations, and beliefs would have
affected their evaluation of this evidence. (People v. Watson
(1956) 46 Cal.2d 818, 836–837.) Here, as in Powell, “[c]oncerns
about the possible ‘inflammatory impact’ of this type of
evidence [citation] were . . . alleviated by the nature of the
evidence of defendant’s guilt.” (People v. Powell, supra, 5
Cal.5th at p. 952.)
      Defendant also claims for the first time on appeal that
the admission of evidence of his racist tattoos, affiliations, and
beliefs at the guilt phase violated the First Amendment to the
federal Constitution. Defendant did not object on this ground
before the trial court, and the claim is therefore forfeited.
(People v. Fuiava (2012) 53 Cal.4th 622, 689.) But even if the
claim had been preserved, “the relevance of the challenged
evidence defeats his constitutional objection.”         (People v.
Monterroso (2004) 34 Cal.4th 743, 773; accord, People v.
Quartermain (1997) 16 Cal.4th 600, 629; see Dawson v.
Delaware (1992) 503 U.S. 159, 164 (Dawson) [“evidence of
racial intolerance” has been held admissible “where such
evidence [i]s relevant to the issues involved”].) And even if we
were to assume constitutional error, the overwhelming
evidence of defendant’s guilt would render the error harmless
beyond a reasonable doubt. (Chapman v. California, supra,
386 U.S. at p. 24.)
         3. Prosecutor’s Closing Argument
      Defendant contends that the prosecutor committed
misconduct in closing argument by vouching for the victims’
feelings and urging the jury to view the crime through the eyes
of the victims. We find no grounds for reversal in the
                                 35
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


prosecutor’s closing argument.          Defendant’s claim of
misconduct concerns the following portion of the prosecutor’s
closing argument to the jury: “We know that Teresa Perez and
Jack Reynolds were completely compliant with the robbers’
demands [and that] they laid down with their faces to the
carpet, ultimately, I’m certain, very fearful . . . .” Defense
counsel objected to the phrase “I’m certain” as “a form of
vouching.” In response, the trial court opined that counsel
“should at no time ever use the word ‘I’ in a closing argument,”
but explained that this was “more of a personal preference of
the Court than it is some rule of law which says that you can’t
do that.” The trial court concluded that the prosecutor’s use of
the first person “wasn’t in terms of vouching” and was instead
conveying “what [the prosecutor] believed the inferences would
have shown.” The trial court found no misconduct.
       “A prosecutor’s conduct violates a defendant’s
constitutional rights when the behavior comprises a pattern of
conduct so egregious that it infects ‘ “the trial with unfairness
as to make the resulting conviction a denial of due process.”
[Citation.]’ [Citation.] The focus of the inquiry is on the effect
of the prosecutor’s action on the defendant, not on the intent or
bad faith of the prosecutor. [Citation.] Conduct that does not
render a trial fundamentally unfair is error under state law
only when it involves ‘ “ ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the
jury.’ ” ’ ” (People v. Mendoza (2007) 42 Cal.4th 686, 700.) “ ‘A
defendant’s conviction will not be reversed for prosecutorial
misconduct, however, unless it is reasonably probable that a
result more favorable to the defendant would have been
reached without the misconduct. [Citation.] Also, a claim of
                                 36
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


prosecutorial misconduct is not preserved for appeal if
defendant fails to object and seek an admonition if an objection
and jury admonition would have cured the injury.’ ” (People v.
Tully (2012) 54 Cal.4th 952, 1010.)
       It is misconduct for a prosecutor to refer to facts not in
evidence. (People v. Hill (1998) 17 Cal.4th 800, 828.) It is also
misconduct for the prosecutor at the guilt phase of a criminal
trial to “appeal to the jury to view the crime through the eyes
of the victim.” (People v. Mendoza, supra, 42 Cal.4th at p. 704.)
Here, we agree with the trial court that the prosecutor did not
improperly refer to facts not in evidence by arguing the victims
were, “I’m certain, very fearful” before they were fatally shot.
The prosecution presented uncontroverted evidence that Perez
and Reynolds were shot while lying facedown on the ground
with their hands behind their heads, that the barrel of the gun
was pressed against their heads when the shots were fired and
that there were no signs of a struggle. Despite the prosecutor’s
use of the first person, the prosecutor cited this evidence to ask
the jury to draw the logical inference that Perez and Reynolds
felt fear. (People v. Lewis (1990) 50 Cal.3d 262, 283 [explaining
that a prosecutor “has the right to fully state his views as to
what the evidence shows and to urge whatever conclusions he
deems proper”].) Nor do we discern prejudicial misconduct in
the prosecutor’s invitation to draw this limited inference. The
prosecutor did not ask the jury to reach this conclusion by
putting themselves in the victims’ shoes, nor did the prosecutor
otherwise make an improper appeal to the jurors’ sympathy for
the victims. (See People v. Seumanu (2015) 61 Cal.4th 1293,
1344 [“ ‘an appeal for sympathy for the victim is out of place
during an objective determination of guilt’ ”].) There is, in any
                                 37
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


event, no reasonable probability that the prosecutor’s fleeting
remark had any effect on the jury, particularly given the
overwhelming evidence of defendant’s guilt. (See, e.g., ibid.;
People v. Young (2005) 34 Cal.4th 1149, 1189–1190.)
         4. Use of Courtroom Restraints During Trial
       Defendant argues that the trial court violated his rights
under the federal Constitution’s Sixth, Eighth, and Fourteenth
Amendments by ordering him restrained with a leg chain at
trial. The claim lacks merit.
            a. Background
      Before trial, defendant filed a motion requesting
permission to appear in court without any physical restraints
attached to his person. The prosecution filed a response
agreeing with defendant that there was currently no manifest
need for physical restraints. At a hearing, however, the trial
court stated it was “vehemently opposed” to defendant’s
motion.    The trial court explained that defendant and
Raynoha, who at the time was still a codefendant, “had
numerous problems while in custody involving other inmates
and threats and weapons in other cases. To me, they are—
they pose a security threat. They have a problem with
authority.” Defense counsel argued that defendant “ha[d] not
been involved in any real altercations” and downplayed the
allegations as “not that serious.” Defense counsel conceded
that a shiv was found in defendant’s possession, but argued
that defendant used it to run a piercing and tattoo business in
jail. The trial court conceded that “there’s nothing to indicate
that [defendant] ha[s] acted in any way except respectfully to
the court proceedings.” But the trial court reiterated that its

                                38
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


“ruling is based upon what I perceive to be conduct that’s
taken place, allegations of conduct, some I think that can
easily be proven, that would lead me to the conclusion that
they are a potential danger with regard to authority.” The
trial court thus ordered that defendant be restrained with a leg
chain attached to the floor that would leave defendant’s hands
free and permit him to stand and sit. The trial court also had
the defense table draped so the jury would not see the leg
chain.
             b. Discussion
        “Under California law, ‘a defendant cannot be subjected
to physical restraints of any kind in the courtroom while in the
jury’s presence, unless there is a showing of a manifest need
for such restraints.’      [Citation.]    Similarly, the federal
‘Constitution forbids the use of visible shackles . . . unless that
use is “justified by an essential state interest”—such as the
interest in courtroom security—specific to the defendant on
trial.’ ” (People v. Virgil (2011) 51 Cal.4th 1210, 1270.) We
have held that a showing of manifest need can be made with
“ ‘evidence that the defendant has threatened jail deputies,
possessed weapons in custody, threatened or assaulted other
inmates, and/or engaged in violent outbursts in court.
[Citations.] [¶] The trial court’s decision to physically restrain
a defendant cannot be based on rumor or innuendo. [Citation.]
However, a formal evidentiary hearing is not required.
[Citation.]’ [Citation.] The trial court’s determination is
reviewed for abuse of discretion.” (People v. Williams (2015) 61
Cal.4th 1244, 1259.)
      The record does not reveal the specific basis for the trial
court’s conclusion that defendant had “numerous problems
                                 39
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


while in custody involving other inmates and threats and
weapons in other cases.” The trial court did not provide any
identifying details about these incidents nor indicate the
source of this knowledge. But the Attorney General cites
evidence supporting the trial court’s assessment: (1) defendant
had been found with multiple weapons while in custody
awaiting trial; (2) defendant was required to wear green
clothing in custody, which denotes a “high risk” inmate who
requires more supervision; (3) defendant was placed in
administrative segregation multiple times for disruptive
behavior; and (4) defendant participated in an attack on fellow
inmate Robert Harger. As defendant correctly points out,
much of the evidence the Attorney General cites was presented
during the second penalty phase trial, and it is not clear how
much of this evidence was before the trial court at the time it
issued its ruling. But the trial court’s reference to defendant’s
“numerous problems” demonstrates the trial court was aware
of at least some of the incidents the Attorney General
describes, and defense counsel, too, acknowledged that
defendant was found in possession of a shiv while in custody
awaiting trial. Based on the record before us, we cannot say
the trial court abused its discretion in concluding there was a
manifest need for restraints.
      But even if the trial court had abused its discretion in
ordering that defendant be restrained by a hidden leg chain,
defendant cannot demonstrate prejudice. “ ‘[W]e have
consistently held that courtroom shackling, even if error, [is]
harmless if there is no evidence that the jury saw the
restraints, or that the shackles impaired or prejudiced the


                                 40
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


defendant’s right to testify or participate in his defense.’ ”
(People v. Williams, supra, 61 Cal.4th at p. 1259.)
      There is no evidence that the jury saw defendant’s leg
chain in the courtroom. Defendant argues that the jurors were
nevertheless aware that defendant was restrained in the
courtroom because they were instructed with CALJIC No. 1.04,
which states: “The fact that physical restraints have been
placed on defendant [] must not be considered by you for any
purpose. They are not evidence of guilt, and must not be
considered by you as any evidence that [he] is more likely to be
guilty than not guilty. You must not speculate as to why the
restraints have been used. In determining the issues in this
case, disregard that matter entirely.” The prosecution initially
requested CALJIC No. 1.04 as a precautionary measure in case
any juror had seen defendant’s restraints. The trial court then
expressed an “inclination [] not to give” CALJIC No. 1.04
because it didn’t “think there’s anything that indicated that
[defendant]’s been restrained to [the jury].” In response,
defense counsel informed the trial court that defendant “tells
me that some of the jurors did see him when he was brought
up one day” in restraints, apparently outside the courtroom.
The trial court then decided that “in an abundance of caution,”
the jury would be instructed with CALJIC No. 1.04. The trial
court explained that “it’s probably a good idea to give it” in
light of defense counsel’s disclosure, and the jurors “certainly
must conclude that Mr. Young is in custody considering the
type of charges he’s facing.” Defense counsel responded,
“Right.” Because he did not object, defendant has forfeited any
challenge to the instruction on appeal. And even if we assume
one or more jurors saw defendant in shackles outside the
                                41
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


courtroom, “ ‘[s]uch brief observations have generally been
recognized as not constituting prejudicial error.’ ” (People v.
Rich (1998) 45 Cal.3d 1036, 1084.
       Defendant also argues that the trial court’s decision to
impose a leg restraint prejudiced him by “coerc[ing]” him into
waiving his presence for jury selection, thereby impairing his
ability to participate in his defense. Defendant’s claim does
not accurately reflect the record. Defendant waived his
presence only for an initial stage of jury selection during which
the juror questionnaire was handed out and prospective jurors
were excused for hardship. Because of the large jury pool
needed for this case, this initial stage of jury selection was
scheduled to take place in the jury lounge. The trial court
explained that it would have limited means of concealing
defendant’s leg restraint in the jury lounge, and the sheriff’s
department was also likely to assign “an inordinate number” of
officers to the jury lounge. The trial court suggested that
defendant consider waiving his presence because these
circumstances “may leave an impression [with the prospective
jurors] that your clients don’t want to start out with in this
trial.” But the trial court expressly stated that it would
“adhere to [defendant’s] wishes” and presume defendant’s
attendance unless informed otherwise. Defendant chose not to
attend. The trial court indicated that defendant would be
present for the questioning of individual jurors, and there is
nothing in the record that suggests that defendant did not
attend this subsequent stage of jury selection. Defendant does
not explain how his absence at an initial, nonsubstantive stage
of jury selection impaired his ability to participate in his
defense.
                                 42
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


         5. Exclusion of Third Party Culpability Evidence
     Defendant argues that the trial court erred by barring
him from presenting evidence suggesting that victim Reynolds
himself had participated in the Five Star parking lot robbery.
Defendant contends the trial court’s ruling violated his rights
under the Sixth and Fourteenth Amendments to the federal
Constitution. The claim lacks merit.
            a. Background
      Before trial, the prosecution filed a motion in limine to
exclude evidence of Reynolds’s criminal history, including facts
and charges relating to three cases in the 1970’s and 1980, as
well as his alleged attendance at Aryan Nations (or similar)
meetings. The prosecution argued that evidence of the former
was irrelevant and improper character evidence, and that
evidence of the latter was irrelevant and speculative.
Defendant opposed the motion in limine on the ground that
this evidence was relevant to the possibility that the Five Star
parking lot robbery was “an inside job.” Without further
elaboration, the trial court granted the “motion to exclude the
victim’s criminal record.”
      Defendant later requested clarification as to whether the
trial court’s ruling excluded all evidence suggesting that
Reynolds was a participant in the Five Star parking lot
robbery. At a hearing on the motion, defendant made the
following offer of proof: (1) at the time of his death, Reynolds
had only $6 in his bank account and a number of pawn tickets;
(2) Reynolds promised his mother that he would send her to
the Cayman Islands; (3) Reynolds had racist beliefs and had a
skinhead tattoo; (4) Reynolds was seen talking to Torkelson
the evening of the robbery; (5) Reynolds instructed Five Star
                                43
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


employees not to resist in the event of a robbery; and
(6) sometime in the 1970’s or in 1980, Reynolds had been
convicted of a crime involving “a male and female being put on
the ground, bound, and held.” The trial court found this
proffer to be “not nearly enough to make [the] suggestion” that
Reynolds was a participant in the robbery, and ruled that,
“absent something more,” the evidence was inadmissible.
             b. Discussion
      “ ‘[T]o be admissible, evidence of the culpability of a third
party offered by a defendant to demonstrate that a reasonable
doubt exists concerning his or her guilt, must link the third
person either directly or circumstantially to the actual
perpetration of the crime. In assessing an offer of proof
relating to such evidence, the court must decide whether the
evidence could raise a reasonable doubt as to defendant’s guilt
and whether it is substantially more prejudicial than probative
under Evidence Code section 352.’ ” (People v. McWhorter
(2009) 47 Cal.4th 318, 367–368.) In other words, courts treat
third party culpability evidence “ ‘like any other evidence: if
relevant it is admissible,’ ” provided it is not otherwise
rendered inadmissible by statute, and “ ‘unless its probative
value is substantially outweighed by the risk of undue delay,
prejudice, or confusion.’ ” (People v. Lewis (2001) 26 Cal.4th
334, 372.) We review the trial court’s ruling for abuse of
discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1242.)
      We perceive no abuse of discretion in the trial court’s
decision to exclude evidence that one of the victims of the
robbery murders may have started out as a participant in the
crime. The parties dispute whether some of the proffered
evidence—specifically, Reynolds’s criminal history, alleged
                                 44
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


affiliation with racist organizations, and alleged racist
beliefs—was inadmissible character evidence under Evidence
Code section 1101, subdivision (a), which generally renders
such evidence inadmissible to prove a person’s conduct on a
particular occasion. But even assuming this evidence was not
barred by any other statutory provision, the trial court
reasonably concluded that any probative value was outweighed
by the prejudicial impact, the consumption of time, and
potential for confusing the issues. (See Evid. Code, § 352;
People v. Lewis, supra, 26 Cal.4th at p. 372.)
       Defendant’s proffered evidence could lead only to
speculative inferences concerning Reynolds’s participation in
the crime. Reynolds’s prior convictions were remote in time,
and defendant offered scant basis for concluding that the Five
Star robbery fit a “pattern” established by Reynolds’s past
misconduct. (See People v. Lewis, supra, 26 Cal.4th at p. 373.)
Defendant offered no evidence connecting Reynolds to the
perpetrators of the Five Star robbery, other than the conjecture
that they must have been acquainted by virtue of shared racist
affiliations and beliefs. Reynolds’s actions on the day of the
robbery had little, if any, probative value. Although Reynolds
had instructed Five Star employees not to resist in the event of
a robbery, the evidence established that it was, in fact, Five
Star company policy for employees to comply in the event of a
robbery. And although Reynolds was seen speaking with
Torkelson on the night of the crime, the evidence showed that
Torkelson interacted with many individuals that night while
pretending to be an on-duty security guard. Finally, evidence
that Reynolds had spoken of taking his mother on a vacation
does little to suggest that Reynolds intended to finance the
                                45
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


vacation by means of the armed robbery that resulted in his
death.
      What is more, the inferences defendant would draw from
this evidence are unsupported by any other evidence in the
record. Reynolds was a victim of the robbery murders; like
Perez, he was shot in the back of the head while lying
facedown with his arms over his head. The circumstances of
the shooting do not suggest willing participation in the crime.
Neither Daleo nor Getscher, who initially identified the
perpetrators during Detective McDonald’s investigation,
identified Reynolds as a participant in the robbery. Nor did
defendant identify Reynolds as a participant in the robbery in
either of the two recorded calls with Getscher, including the
one in which he admitted to personally shooting Perez. Having
concluded this speculative third party culpability evidence was
properly excluded, we also reject defendant’s claim that his
constitutional rights were violated by the exclusion. (See
People v. Lewis, supra, 26 Cal.4th at pp. 373–374.)
         6. Cumulative Error
      Defendant contends that the cumulative effect of the
guilt phase errors requires reversal of his convictions. (See
People v. Hill, supra, 17 Cal.4th at p. 844.) We have assumed
two unrelated errors—the admission of defendant’s statement
“You heard it all” and the admission of certain evidence of his
racist tattoos, affiliations, and beliefs—and concluded that
neither error was prejudicial, given the strength of the
evidence of defendant’s guilt. We reach the same conclusion
after considering the errors together. We accordingly reject
defendant’s claim of guilt phase cumulative error.

                                46
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


     B. Penalty Phase Claims
         1. Retrial of the Penalty Phase
       Penal Code section 190.4, subdivision (b) directs a trial
court to empanel a second jury to decide the penalty in a
capital case if the first jury deadlocks, as it had in defendant’s
case. (Pen. Code, § 190.4, subd. (b).) Defendant argues that
mandatory retrial of the penalty phase violates the Eighth
Amendment to the federal Constitution because such a retrial
violates evolving standards of decency, as demonstrated by the
differing practices of other states, and “sends a message to the
community that the individual moral judgment of each juror is
not trusted or valued.” Defendant also raises several more
specific challenges to the conduct of the penalty retrial.
      We have repeatedly rejected the Eighth Amendment
claim defendant now raises, holding that “a penalty retrial
following jury deadlock does not violate the constitutional
proscription against double jeopardy or cruel and unusual
punishment.” (People v. Jackson, supra, 1 Cal.5th at p. 356,
citing People v. Taylor (2010) 48 Cal.4th 574, 634; accord,
People v. Peoples (2016) 62 Cal.4th 718, 751; People v. Gonzales
and Soliz (2011) 52 Cal.4th 254, 311; see also People v. Trinh
(2014) 59 Cal.4th 216, 237–238 [reaching the same conclusion
as to a second penalty retrial held pursuant to Pen. Code,
§ 190, subd. (b), which provides trial courts with the discretion
to empanel additional juries in the event of additional
deadlocks].) In so holding, we have responded to arguments
that California is out of step with other jurisdictions that
mandate a sentence of life without parole if the penalty jury
deadlocks, reasoning that the fact that California stands
“among the ‘handful’ of states that allows a penalty retrial
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                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


following jury deadlock on penalty does not, in and of itself,
establish a violation of the Eighth Amendment or ‘evolving
standards of decency that mark the progress of a maturing
society.’ ” (Taylor, supra, at p. 634.)
      Defendant argues we should reconsider this precedent
because our prior cases have failed to acknowledge just how
unique California’s practices are; California, he notes, is one of
only two states that requires, rather than merely permitting,
an initial retrial of the penalty phase when the first jury
deadlocks. (Pen. Code, § 190.4, subd. (b); see also Ariz. Rev.
Stat. § 13–752(J).) Defendant does not, however, attempt to
explain why the difference between mandatory retrial and
permissive retrial is constitutionally significant, and identifies
no authority that has so held. Defendant’s argument does not
persuade us to revisit the holdings of our prior cases.
       We also find no merit to defendant’s argument that
permitting a second jury to impose the death penalty after the
first jury deadlocks devalues the decisionmaking autonomy of
the first jury. The cases cited by defendant require only that
“ ‘the individualized assessment of the appropriateness of the
death penalty [be] a moral inquiry into the culpability of the
defendant, and not an emotional response to the mitigating
evidence.’ ” (Saffle v. Parks (1990) 494 U.S. 484, 492–493.)
That different juries may disagree on the answer to that moral
inquiry does not disrespect the first jury’s opportunity to
undertake the moral inquiry in the first instance.
     Finally, defendant claims that the retrial of the penalty
phase unfairly conferred several advantages on the
prosecution. Specifically, defendant contends that: (1) many of

                                 48
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


the     prosecution    witnesses     added     “flourishes   and
amplifications” to their retrial testimony; (2) witnesses
impermissibly testified as to the emotional stress caused by a
second penalty phase; and (3) the prosecution referenced
evidence in her closing statement that was presented during
the first penalty phase but not the second phase. None of these
claims has merit. First, defendant does not identify any
misrepresentations in the retrial testimony, and both parties
had the opportunity to elicit additional testimony from
witnesses who testified at the initial trial. Second, the trial
court instructed the jury to disregard “[t]he impact of the
judicial process” on the witnesses, and we may “assume that
the jurors followed the trial court’s instructions” (People v.
Leonard (2007) 40 Cal.4th 1370, 1413). Finally, there is no
reasonable probability that the prosecutor’s brief erroneous
reference to evidence that was only presented during the first
penalty phase—specifically, that a detective had become
emotional when describing the crime scene—had any impact
on the jury’s penalty verdict. (See, e.g., People v. Brady (2010)
50 Cal.4th 547, 578.)
         2. Admission of White Supremacist Beliefs
      At the guilt phase of the trial, as discussed above, the
trial court admitted (over defense objection) limited evidence
relating to defendant’s association with White supremacist
groups and two tattoos, used for purposes of identification, that
reflected this association. At the penalty retrial, the jury
heard considerably greater detail about the nature and content
of defendant’s White supremacist beliefs, his multiple White
supremacist tattoos, and the beliefs of the groups to which he


                                 49
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


belonged. The central issue in this appeal concerns the
admission and use of this evidence.
      Defendant argues that the evidence of his racist beliefs
was both inflammatory and irrelevant to any legitimate issue
before the jury at the penalty phase and that the prosecution’s
improper use of the evidence undermined the fairness and
reliability of the proceedings. Although we conclude some of
the evidence of defendant’s racist beliefs was relevant to the
jury’s determination of the appropriate penalty for defendant’s
crime, we agree with defendant that much of this evidence was
admitted and used for an improper purpose. On close review of
the record, we conclude this error was prejudicial.
            a. Background
       At the first penalty trial, the trial court had admitted,
over defense objection, extensive evidence concerning
defendant’s skinhead beliefs and his tattoos, including expert
testimony expounding on each subject. Before the penalty
retrial, defendant again objected to the admission of this
evidence, filing a motion in limine to exclude all references to
“affiliation/membership     with     any     White    supremacy
organization, in whatever form as well as reference to
distinctive, racially identified/offensive tattoos” worn by
defendant. Opposing the motion, the prosecution argued that
the “Nigger Thrasher” and “Thor’s hammer” tattoos and
defendant’s use of red laces were admissible as circumstances
of the crime. (See Pen. Code, § 190.3, factor (a).) The
prosecution also argued that additional evidence of defendant’s
White supremacist beliefs might become relevant if defendant
introduced evidence of his good character. (Id., factor (k).)


                                50
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


       Ruling on the motion in limine, the trial court
determined that the prosecution could use the following
evidence in its case-in-chief: (1) defendant’s association with
White supremacist groups to explain the basis of his affiliation
with the other perpetrators of the Five Star parking lot
robbery, (2) defendant’s use of the red laces, and (3) the “Thor’s
hammer” tattoo. Although evidence of the “Nigger Thrasher”
tattoo had been admitted at the guilt phase, the trial court
excluded it for purposes of the penalty retrial; evidently
concerned about its inflammatory impact, the trial court ruled
it could be referred to only as a “unique tattoo.” But the trial
court also agreed with the prosecution that other evidence of
defendant’s White supremacist tattoos, beliefs, and
associations would become admissible as rebuttal evidence if
defendant chose to present evidence of his good character. The
court explained that once defendant “do[es] anything to
suggest that” he has a good character and sympathetic family
life, “that to me opens the door under the they-get-to-see-the-
whole-person theory.”
       During the prosecution’s case in aggravation, Daleo
testified that she had seen defendant at Aryan Nations
meetings. Daleo testified that the Aryan Nations group had a
religious component based on the belief that “God’s chosen
people were white people,” and that the meetings also served
as social gatherings.     Daleo also testified that she had
identified defendant to law enforcement as having two tattoos:
one of “Thor’s hammer,” which she described as a reference to
“the Aryan Nations Christianity thing,” and another “unique
tattoo.”


                                 51
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


      The jury also heard the testimony of Getscher, who
explained that he and defendant became friends in prison
because they “were both skinheads” who had a shared belief in
“[w]hite supremacy.” Shortly after the Five Star parking lot
robbery, Getscher saw defendant trying to put red laces in his
boots. Getscher explained that in skinhead culture, red laces
“means you drew the blood of an enemy.”
       Defendant began his case in mitigation by calling his
grandmother Fern Vinatieri as his first witness. Vinatieri
testified that defendant was devoted to his family, had
completed a GED and learned a trade to support his family,
and accepted full responsibility for the robbery and assault
committed in Arizona in 1999.
      After Vinatieri concluded her testimony and before the
next witness was called, the trial court notified the parties
that, consistent with its earlier ruling on defendant’s motion in
limine, the court would permit the prosecution to introduce
evidence of defendant’s racist beliefs, tattoos, and associations.
The trial court explained that Vinatieri’s testimony had “put
[defendant]’s overall character” at issue, thereby opening the
door for the prosecution to introduce this evidence.
       Following the trial court’s ruling, defendant called
additional witnesses who testified that he was a good father,
“kind,” and “not a violent person.” Defendant also called fellow
inmate Beek to rebut the prosecution’s evidence that defendant
participated in an assault on inmate Robert Harger; Beek
testified that defendant was not involved in the assault.
During cross-examination, Beek admitted that he was a
skinhead and described the American Front group, to which

                                 52
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


defendant purportedly belonged, as “a group of working-class
individuals” with White supremacy being a nonexclusive focus
of the group. Defendant also called a family therapist who
testified that defendant became a skinhead for two reasons:
(1) to achieve a sense of belonging as he felt like an outsider in
his family, and (2) as a means of self-preservation in prison.
The therapist acknowledged that skinhead philosophy had
negative values, but explained that it also had positive ones
such as “honor, respect, loyalty, fidelity to one’s group, [and] a
sort of misguided protection of the common man.”
      On rebuttal, the prosecution introduced substantial
additional evidence of defendant’s White supremacist beliefs,
tattoos, and associations. Prison deputies testified that shortly
after the assault of Harger, they discovered a rune above
defendant’s cell door and a swastika in a common area near
defendant’s cell, both painted with what appeared to be blood.
Police officers who interacted with defendant in 1999 testified
about the White supremacist tattoos they had seen on
defendant in 1999 and identified new tattoos that defendant
had acquired by the time of his arrest in 2003. One officer had
encountered defendant in September 1999 and observed that
defendant was wearing “typical gang attire for a skinhead,”
consisting of a shaved head, red suspenders, and red laces in
his boots. On the basis of this attire, the officer opined that
defendant was still involved with skinheads at the time.
       Finally, the prosecution called Joanna Mendelson, the
director of investigative research at the Southern California
branch of the Anti-Defamation League, as an expert witness to
testify about the origins and ideology of skinheads. Mendelson
explained that neo-Nazis believed that “what Hitler had
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                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


achieved . . . was a good start” and sought to “carry out Hitler’s
vision.” Skinheads are a subset of neo-Nazis, so “all skinheads
are neo-Nazis.” Mendelson described the Aryan Nations
organization as “a Christian identity organization that has
some elements of neo-Nazi beliefs.” Their beliefs included:
(1) “white Europeans, not the Jews, [] can draw their descent
from the lost tribes of Israel”; (2) “Abel and his offspring are
actually the white race” and “Cain and his offspring,” the Jews,
“are the spawns of the Devil”; and (3) “everyone else who is a
minority who is not” a descendant of either Cain or Abel are
“mud people.” Mendelson described the American Front group
as a “racist” and “neo-Nazi, white supremacist organization.”
Mendelson explained that skinheads adhere to a religion
known as Odinism, which provides skinheads in prison the
“opportunity to congregate” in order to “conduct criminal
activity and violence.”
      Mendelson identified and explained the meaning of the
following symbols that appeared on letters that defendant had
written:     (1) “14” refers to a 14-word mantra about
perpetuating the White race; (2) “88” signifies “Heil Hitler”;
and (3) a Celtic cross is the “most common white supremacist
and neo-nazi symbol[].” Mendelson similarly identified and
explained the meaning of the following symbols found on
defendant’s tattoos: (1) a swastika; (2) a variation of the Nazi
flag; (3) a Confederate flag; (4) the Celtic cross and runic
symbols; (5) Thor’s hammer, a symbol significant in Odinism;
(6) “Blood and Honor,” the name of a White supremacist
organization started by Ian Donaldson; (7) an eagle with a
stylized “S,” which refers to a White power band founded by
Donaldson called Skrewdriver; (8) “Farewell, Ian,” a tribute to
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                  Opinion of the Court by Kruger, J.


Donaldson after his death; (9) a Totenkopf, a symbol worn by a
division of the SS in Nazi Germany; (10) a skinhead crucified
on a cross; (11) a Nazi eagle clutching a schutzstaffel, which
was worn by Nazi leader Heinrich Himmler and the SS;
(12) “California Skinhead,” in red and black ink, the colors of
the flag of Nazi Germany; (13) Dr. Martens boots, a popular
type of boot among skinheads; (14) a caricature of Nazi general
Joseph Dietrich; (15) “SWP,” an acronym for supreme White
power; (16) a Viking warrior; (17) “14 Words”; (18) “Nigger
Thrasher”; (19) faceless skinheads wielding bats and machetes;
(20) a triskele, “a takeoff of the swastika”; (21) a tree with a
noose hanging from it; (22) “Waffen SS,” the weapons division
of the SS; (23) a wolfsangel, a Celtic image worn on SS
uniforms in Nazi Germany; and (24) “Weiss Macht,” which
means “White power” in German.            In response to the
prosecution’s questions about the racist content of these
tattoos, Mendelson identified most of the tattoos as “inherently
racist.”   Photographs of these symbols and tattoos were
published to the jury.
      Before deliberations, the trial court instructed the jury as
follows: “Certain evidence was admitted during the course of
the trial with regard to the defendant’s beliefs, allegiance, and
tattoos. This was done in rebuttal to the presentation by the
defense of evidence of the defendant’s good character. Such
beliefs, allegiance, and tattoos are constitutionally protected by
the First Amendment of the United States Constitution. Such
evidence may be considered by you only for the limited purpose
of evaluating the credibility or strength of witnesses who were
asked about the defendant’s character. Such evidence cannot
be considered by you as an aggravating circumstance.”
                                 55
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                  Opinion of the Court by Kruger, J.


      In her closing argument, the prosecutor argued that
defendant’s racist beliefs, tattoos, and associations rebutted
defendant’s mitigating character evidence. The prosecutor
argued that instead of making good choices, defendant chose to
become a skinhead who “very, very strongly embraced this
White supremacy ideology”; that he chose to get racist tattoos
in prison rather than “renounc[ing] his views”; and that
defendant’s evidence of being a good family member was
refuted by evidence that his letters to his grandmother
contained “offensive racial symbols” and that he was conveying
his racist beliefs to his children.
             b. Discussion
      Defendant argues the trial court erred in permitting the
prosecution to use what he describes as a “mountain” of
irrelevant evidence of his racist beliefs, tattoos, and
associations at the penalty retrial.          The Constitution,
defendant emphasizes, protects even deeply offensive and
hateful beliefs. (See, e.g., National Socialist Party v. Skokie
(1977) 432 U.S. 43 (per curiam); see also, e.g., Snyder v. Phelps
(2011) 562 U.S. 443, 458 [“ ‘If there is a bedrock principle
underlying the First Amendment, it is that the government
may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable.’
[Citation.] Indeed, ‘the point of all speech protection . . . is to
shield just those choices of content that in someone’s eyes are
misguided, or even hurtful.’ ”].) Defendant argues the trial
court erred in permitting the jury to weigh the offensiveness of
his beliefs in deciding whether to impose the death penalty.
      Defendant likens his case to Dawson, supra, 503 U.S.
159, in which the United States Supreme Court confronted
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                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


questions concerning the use of evidence of racist beliefs and
associations in capital sentencing. Dawson was a prison
escapee who, during his flight, invaded a stranger’s home and
brutally murdered her before stealing her money and car. At
the penalty phase of the capital murder trial, the prosecution
introduced evidence that Dawson had tattooed the words
“Aryan Brotherhood” on his hand. The prosecution also read
into the record a stipulation explaining that the reference was
to “ ‘a White racist prison gang that began in the 1960’s in
California in response to other gangs of racial minorities.’ ”
(Id. at p. 162; see id. at pp. 160–161.) The court held this was
error. (Id. at p. 167.)
      The high court explained that while “the Constitution
does not erect a per se barrier to the admission of evidence
concerning one’s beliefs and associations at sentencing simply
because those beliefs and associations are protected by the
First Amendment” (Dawson, supra, 503 U.S. at p. 165), it also
does not permit the prosecution to ask the jury to return a
particular penalty judgment because the defendant holds
offensive beliefs or associates with others who hold the same
beliefs (id. at p. 167). Rather, the beliefs and associations must
have some “bearing on the issue being tried.” (Id. at p. 168.)
For example, evidence of the defendant’s racist beliefs and
associations may be admitted to show the defendant’s racial
motives for committing the crime. (Id. at pp. 164, 166,
discussing Barclay v. Florida (1983) 463 U.S. 939.) Similarly,
evidence that a prison gang is associated with drugs and
violent escape attempts at prisons, or advocates the murder of
fellow inmates, might be relevant to show the defendant’s
future dangerousness. (Dawson, at p. 165; see id. at p. 166 [“A
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                  Opinion of the Court by Kruger, J.


defendant’s membership in an organization that endorses the
killing of any identifiable group, for example, might be
relevant to a jury’s inquiry into whether the defendant will be
dangerous in the future.”].)
      In Dawson’s case, however, there was no argument that
the crime was motivated by racial hatred, and the narrowness
of the Aryan Brotherhood stipulation meant that the only
possible relevance of the evidence was simply to demonstrate
that Dawson associated with persons holding racist beliefs.
(Dawson, supra, 503 U.S. at pp. 165–166.) The state argued
that the very fact Dawson held racist beliefs was admissible at
the penalty phase because it was relevant to show Dawson’s
“character”—a legitimate sentencing consideration under state
law—as well as to rebut Dawson’s own mitigating character
evidence. (Id. at pp. 167–168.) The high court rejected the
argument, explaining that evidence that goes to show “nothing
more than [a defendant’s] abstract beliefs” is irrelevant even if
labeled “character” evidence (id. at p. 167): Evidence of
abstract beliefs “cannot be viewed as relevant ‘bad’ character
evidence in its own right” (id. at p. 168).
      As relevant here, Dawson stands for two central
propositions. First, “[e]vidence of a defendant’s racist beliefs is
inadmissible in the penalty phase of a capital trial if it is not
relevant to an issue in the case.” (People v. Powell, supra, 5
Cal.5th at p. 960.) This is because “a defendant’s abstract
beliefs, however obnoxious to most people, may not be taken
into consideration by a sentencing judge” or jury. (Wisconsin v.
Mitchell (1993) 508 U.S. 476, 485.) Second, evidence of a
defendant’s racist beliefs is not relevant if offered merely to
show the moral reprehensibility of the beliefs themselves—
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                  Opinion of the Court by Kruger, J.


which is to say, evidence of the defendant’s abstract beliefs is
not competent general character evidence. (Dawson, supra,
503 U.S. at pp. 167–168; accord, e.g., Flanagan v. State (Nev.
1993) 846 P.2d 1053, 1056 [evidence of a defendant’s racist or
antisocial beliefs “is admissible only if it is used for something
more than general character evidence”].)
      This case, unlike Dawson, does not involve a bare
stipulation that the defendant has been associated with White
supremacist groups. Far from it. But defendant argues that
the same result should obtain because the evidence of his
White supremacist beliefs and associations was nonetheless
irrelevant to any legitimate issue in the case. As in Dawson,
no one argues that defendant’s racist beliefs were relevant to
explain his motive for the robbery murders. (Cf., e.g., People v.
Powell, supra, 5 Cal.5th at pp. 960–961 [trial court reasonably
ruled that the defendant’s tattoos and gang membership were
relevant to explain the racial motivation for his attack on
victim].) Defendant argues that the evidence of his beliefs and
associations therefore should have been excluded.
      This argument is too broad. It is true that the challenged
evidence shed no light on defendant’s motivation for his crime
(and the People have not argued otherwise), but some of the
evidence was clearly relevant to other legitimate
considerations for the jury at the penalty phase. For example,
as the trial court ruled at the outset of the penalty retrial,
defendant’s use of the red laces and the meaning of the red
laces in skinhead culture were relevant to establish the
circumstances of the crime under Penal Code section 190.3,
factor (a), inasmuch as they tended to demonstrate defendant’s
consciousness of guilt. (See People v. Jackson (2014) 58
                                 59
                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


Cal.4th 724, 753–754 [postcrime evidence of a defendant’s
consciousness of guilt is admissible as a circumstance of the
crime].) As such, there was no bar to admission of the
evidence.
      Evidence of a rune and swastika appearing somewhere
near defendant’s cell shortly after the attack on Harger was
also relevant, and therefore admissible, to connect defendant to
the assault. This evidence tended to corroborate Harger’s
testimony that the assault was committed by a White inmate
group and that defendant was in some way involved in this act
of violence. This evidence concerning the circumstances of
defendant’s unadjudicated violent conduct was relevant
evidence under Penal Code section 190.3, factor (b), and it was
therefore admissible. (Accord, People v. Merriman (2014) 60
Cal.4th 1, 104 [evidence of White prison gang participation
relevant to show circumstances of prior violent criminal
activity]; People v. Gurule, supra, 28 Cal.4th at pp. 653–654
[evidence of prison gang activity]; see also Dawson, supra, 503
U.S. at p. 166.)
      But the central difficulty here is that the trial court also
permitted the prosecution on rebuttal to introduce a large
quantity of additional evidence concerning defendant’s racist
beliefs—not for purposes of illuminating the circumstances of
his crime or past acts of violence, but simply for the light the
offensiveness of those beliefs shed on his character. The trial
court ruled that because defendant chose to present evidence of
his good character—that he was a good family man, kind, and
so on—the prosecution was entitled to rebut that evidence with
testimony regarding defendant’s racial ideology. The court
explained: “Can’t [a] general member of society make a
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                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


determination that, you know what, if someone is a White
supremacist, has been engaged in these type of activities, has
those types of tattoos, those are not things of good character[?]
I’m not going to walk away saying that’s a good person.”
Defense counsel argued against the constitutionality of this
approach, stating, “The People are trying to demonize
[defendant’s] beliefs that are protected under our constitution
in such a way that the jury will be inflamed to the point of
giving him the death penalty.” The court responded: “Without
using the pejorative sounding rhetoric you used in your last
statement, I think it’s absolutely and wholly accurate,” and “I
think [the prosecutor is] entitled to do that. [¶] Motion is
denied.”
      In this the trial court was mistaken. When a defendant
chooses to present mitigating evidence of his good character
during the penalty phase, the prosecution is certainly entitled
to present rebuttal evidence and argument of the defendant’s
bad character. (People v. Loker (2008) 44 Cal.4th 691, 709.)
But we have “firmly rejected the notion that ‘any evidence
introduced by defendant of his “good character” will open the
door to any and all “bad character” evidence the prosecution
can dredge up. As in other cases, the scope of rebuttal must be
specific, and evidence presented or argued as rebuttal must
relate directly to a particular incident or character trait
defendant offers in his own behalf.’ ” (Ibid.) Even when the
defendant’s good character evidence is not limited to “ ‘any
singular incident, personality trait, or aspect of [his]
background,’ ” the scope of proper rebuttal is limited by the
scope of good character evidence offered. (Ibid.)


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                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


      Here, the mitigating evidence that prompted the trial
court’s ruling was the testimony of defendant’s grandmother,
who spoke to his commitment to his family and children, his
academic achievement in earning his GED, and his personal
accountability for previous crimes. As Dawson makes clear,
evidence of a defendant’s abstract beliefs is not relevant to
rebut this variety of good character mitigation. (Dawson,
supra, 503 U.S. at pp. 167–168.) In the face of similar
mitigating character evidence, including testimony about the
defendant’s “kindness to family members,” the high court held
that evidence of racist beliefs, without more, is not admissible
to show the defendant’s bad character for purposes of
sentencing. (Id. at p. 167; see id. at p. 168.) “Whatever label is
given to the evidence presented,” the court explained, the state
may not ask the jury to render a penalty judgment based on
the expression of an abstract belief—even one that is deeply
offensive or morally repugnant. (Id. at p. 167.)
      We do not suggest that evidence of a defendant’s racist
beliefs is never relevant to rebut a defendant’s evidence of his
own good character. A defendant who seeks to portray an
image of racial tolerance during his case in mitigation, for
example, might well open the door to contrary evidence of his
racist beliefs and associations. In such a case, such evidence
would tend to show more than the reprehensibility of the
defendant’s abstract beliefs; it would tend to show that the
defendant lacks a specific positive character trait that he
claims to have. (Cf. People v. Siripongs (1988) 45 Cal.3d 548,
576–578 [the defendant was not entitled to elicit testimony
suggesting that he was honest and simultaneously preclude
the prosecution from introducing contrary evidence].) But that
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                  Opinion of the Court by Kruger, J.


case is quite different from the one before us, in which the
reprehensibility of defendant’s beliefs was treated as probative
in its own right.3
      The Attorney General asks us to uphold the trial court’s
evidentiary ruling on other grounds, arguing the challenged
evidence could instead have been admitted to show defendant’s
violent tendencies. As already noted, the jury in this case was
not merely presented with a bare stipulation that the
defendant was a member of a racist group, as in Dawson. The
jury also heard evidence that defendant had claimed credit for
the killing of Perez, claiming a badge of honor with particular
significance in skinhead culture. It heard evidence that
defendant was a member of a White prison gang that had, at
least on one occasion, orchestrated violence against a fellow
White inmate.4 And it heard a reference from a prosecution
expert to the propensity of White supremacist groups to



3
       After the trial court had already ruled (over his objection)
that his grandmother’s testimony opened the door to the
challenged evidence, defendant did present testimony seeking
to show his racially tolerant nature and to downplay his White
supremacist beliefs. But this testimony, which appears to have
been presented in an attempt to blunt the force of the
prosecution’s anticipated rebuttal evidence, could not have
justified the trial court’s initial ruling, nor did it render
otherwise inadmissible evidence admissible.
4
       The Attorney General also argues in its briefing that the
jury heard evidence that defendant tattooed his body with the
phrase “Nigger Thrasher” after beating an African-American
man.      The record contains no evidence to support the
argument.


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                 Opinion of the Court by Kruger, J.


“conduct criminal activity and violence” in prison. According to
the Attorney General, this evidence laid the foundation
necessary to permit the jury to consider the challenged
rebuttal evidence for purposes of evaluating defendant’s
violent character and the danger he represents to society,
which is a relevant consideration in the penalty phase. (See
Dawson, supra, 503 U.S. at pp. 165–166.)
      We agree that at least some of the challenged evidence
might have been admitted for the purpose of showing the
connection between defendant’s prior violent acts and his
propensity for violence. Had the trial court admitted the
evidence for this purpose, it would be a different case. But the
great bulk of the challenged evidence was neither admitted nor
used for any such limited purpose. Had the trial court
admitted the evidence solely to show defendant’s propensity for
violence, it would then have considered whether to tailor the
evidence to address the nature of defendant’s participation in
prison gangs, for example, or the connection between the
gangs’ shared beliefs and the attack on Harger, a fellow White
inmate. No such consideration was given to that issue,
however, because the trial court had ruled defendant’s abstract
beliefs and associations admissible in their own right as
general character evidence.
      The consequence of this ruling was an evidentiary
presentation and set of arguments that focused on the nature
of defendant’s offensive racist beliefs for the very sake of
highlighting their offensiveness, rather than what they showed
about defendant’s propensity for violence or any other matter
relevant to the jury’s penalty judgment. With the trial court’s
permission, the prosecution detailed, at some length, the
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                 Opinion of the Court by Kruger, J.


controversial tenets of defendant’s religious views and racial
ideology. Mendelson, the prosecution’s expert, testified that
neo-Nazis believe that Jews “are the spawns of the Devil”; that
other minorities are “mud people”; and that one “must be of
pure descent in order to directly communicate with the Gods.”
Mendelson proceeded to meticulously catalog and decode the
symbols defendant had employed in his personal writings and
contained in each of defendant’s multiple tattoos. Although
some of the tattoos contained violent themes (e.g., the image of
a noose), the expert was not asked to testify about whether
defendant’s tattoos reflected a commitment to violent action.
She was, however, asked whether they reflected a belief in
White supremacy. She responded that they did. The central
theme of Mendelson’s extensive testimony was not that
defendant’s tattoos endorsed violence, but that they were
“inherently racist.”
      The prosecutor returned to this theme in her closing
argument, arguing at great length that defendant’s racist
beliefs and his decision to cover his body in racist tattoos, in
and of themselves, showed he was not the good person he
claimed to be in his case in mitigation and was therefore
undeserving of the jury’s mercy. She described defendant as “a
walking billboard of hate” who has “very, very strongly
embraced this White supremacy ideology.” She emphasized
that defendant “continued having all of these White supremacy
beliefs” after he committed the murders. And she told the jury
that defendant’s “very offensive” tattoos “go[] to who he is.”
“[W]hat you permanently put on your body,” she argued, “says
a whole lot about what you are thinking and about who you
are.” The prosecutor made no effort to connect defendant’s
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                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.


beliefs to his past acts of violence or even his propensity for
violence. Much as in Dawson, the record leaves little doubt
that the “evidence was employed simply because the jury
would find these beliefs morally reprehensible,” and not
because of the light the evidence shed on defendant’s moral
culpability for his crime or the dangers he poses to his fellow
inmates or other members of society. (Dawson, supra, 503 U.S.
at p. 167.)
      The Attorney General also argues on appeal that the
evidence of defendant’s beliefs could have been admitted to
refute defense witness Beek’s misleading answers on cross-
examination, in which he described the neo-Nazi group he and
defendant belonged to as a “White club” and a “group of
working-class individuals that band together [and] have
barbecues.” But Beek also testified that White supremacy was
a “focus” of the group, if not its “main” focus. The trial court
did not admit the evidence concerning defendant’s beliefs and
tattoos for the purpose of setting the record straight on this
particular point, and the detailed explication of skinhead
beliefs and the racist content of defendant’s writings and
tattoos certainly went far beyond whatever might have been
necessary to accomplish that goal. It is, moreover, unclear why
it would have been important to the prosecution to clarify as it
did, other than to invite the jury to infer defendant’s bad
character from a more precise understanding of the nature of
the group’s highly offensive racist beliefs.
      The Attorney General concedes that “[t]he simple fact
that Young believed Caucasians to be superior to all other
races” was “arguably inadmissible” for any purpose other than
to reveal his violent propensities or to refute Beek’s
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                        PEOPLE v. YOUNG
                  Opinion of the Court by Kruger, J.


characterizations, but contends that the trial court correctly so
instructed the jury. But the jury would not have gleaned this
message from the instruction it was given. Once again, it was
instructed: “Certain evidence was admitted during the course
of the trial with regard to the defendant’s beliefs, allegiance,
and tattoos. This was done in rebuttal to the presentation by
the defense of evidence of the defendant’s good character. Such
beliefs, allegiance, and tattoos are constitutionally protected by
the First Amendment of the United States Constitution. Such
evidence may be considered by you only for the limited purpose
of evaluating the credibility or strength of witnesses who were
asked about the defendant’s character. Such evidence cannot
be considered by you as an aggravating circumstance.” The
instruction did inform the jury that defendant’s beliefs,
allegiance, and tattoos are entitled to First Amendment
protection. But it did not inform the jury that it was permitted
to consider the evidence for certain purposes (for example, to
evaluate defendant’s violent propensities) and not others (to
conclude defendant has bad character because he holds
morally reprehensible beliefs). This omission is unsurprising,
given the trial court’s ruling that the prosecution was entitled
to argue that defendant’s White supremacist beliefs in
themselves undermined his claim to be “a good person”—which
is precisely what the prosecution argued to the jury in its
closing. There was nothing, in short, that would have alerted
the jury that it was forbidden from considering evidence of
defendant’s beliefs for this very purpose.5


5
     The Attorney General argues defendant failed to object to

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      Because the First Amendment prohibits the introduction
of this evidence for the purpose for which it was used at the
penalty retrial, we find error. And because we cannot say the
error was harmless beyond a reasonable doubt, we must
reverse the penalty judgment. (Chapman v. California, supra,
386 U.S. at p. 24.)
      It is true, as the Attorney General emphasizes, that the
People presented a substantial case in aggravation—both at
the original penalty phase trial, which had resulted in a hung
jury, and the penalty retrial. This case included the tragic
circumstances of the robbery murders, which involved the
needless close-range shooting of two defenseless employees
who appeared to be complying with the robbers’ demands;
evidence that defendant sought to claim credit for the murder
of his victim; evidence of prior felony convictions, including a
conviction for assault of an elderly man; and evidence that


the instruction at trial and therefore forfeited any claim the
instruction was inadequate. But defendant had fully aired his
First Amendment objection to the admission of the evidence
concerning his beliefs, and in response the trial court ruled the
evidence of his beliefs was admissible for the purpose of
rebutting his evidence of good character. Defendant was not
further required to seek a limiting instruction that would have
prohibited the jury from considering the evidence for the very
purpose for which the court had admitted it. (See, e.g., Warner
Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 298
[party does not forfeit objection by failing to seek limiting
instruction contrary to the basis on which trial court admitted
the evidence]; People v. Penunuri (2018) 5 Cal.5th 126, 166
[counsel is not required to proffer futile objections to preserve
claim of error].)


                                 68
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                  Opinion of the Court by Kruger, J.


defendant played a leadership role in a prison gang that was
responsible for an attack on a fellow inmate in prison.
      But for whatever reason, the prosecution chose not to
rely on this evidence alone. Instead, in response to defendant’s
general character evidence, the prosecution adduced testimony
from seven different witnesses concerning his racist beliefs,
tattoos, and associations, including an expert who testified at
length about the nature of the beliefs and decoded the racist
content of defendant’s writings to his family members and his
tattoos—including his “Nigger Thrasher” tattoo, which the
trial court had earlier ruled inadmissible during the
prosecution’s case in aggravation precisely because of its
potential to inflame the jury.
      In her closing argument, the prosecutor then repeatedly
raised defendant’s decision to “espous[e] [White supremacist]
views and this ideology,” and his “ch[oice] to put all these
[tattoos] on his body,” explaining, “It goes to who he is.” Other
representative excerpts from the prosecutor’s extensive
emphasis on defendant’s racist beliefs include:

  • “He chose to become a skinhead. He chose to become a
     skinhead before he ever went to Arizona prison. We saw
     from the Thunder Road records that he was even having
     some racist beliefs while he was fairly young. Those
     continued to grow until he very, very strongly embraced
     this White supremacy ideology.”
  • “When you look at what he did after he committed these
     murders, what did he do? He continued having all of these
     White supremacy beliefs.”
                                 69
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                 Opinion of the Court by Kruger, J.



• “We know [two months after the murders] he had a number
   of tattoos on him. But there were a number he got after
   this. During this period of time where he’s supposedly
   raising a family and being a good father, what’s he doing?
   He’s adding additional tattoos to his body, and very
   offensive ones at that. Adding a big German soldier on his
   side. Adding a tree with a noose on it on his side. That’s
   what he’s doing.”
• “How does he talk to his grandmother in these letters?
   Well, he signs off with the ‘love, Jeff, 14,’ celtic cross, ‘88.’
   We know what that is. He’s writing to his grandma, and
   he’s putting these offensive racial symbols in his letters to
   her. [¶] Is he a good family man? Good grandson? This is
   what he’s doing. He’s saying ‘heil Hitler’ to his grandma.”
• “You heard from his own mother that he is raising his son
   in a racist household, that he has not abandoned these
   beliefs. [¶] It was of some interest that he even named his
   child Odin. You heard from the mother that the kids are
   being raised in a home where a Nazi flag is being flown.”
• “But what kind of a role model does he serve? [¶] . . . [¶]
   He espouses all kinds of hateful views on his own body. He
   continues to add to those. Many of these tattoos came after
   September of 1999. He is a walking billboard of hate.”
• “They want you to believe somehow that he has renounced
   his views. We know some of these tattoos that he got in

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               Opinion of the Court by Kruger, J.



  prison. That’s clear. But we know that many of them he
  did not. Many of them he got after September of 1999.
  This is two months after he’s committed the homicide. He
  adds this crucified skinhead to his arm, this crucified
  skinhead with the red suspenders.”
• “What about the German soldier on his side? He got that—
  and this is a professional tattoo. As offensive as it is, this
  was an expensive and professional tattoo. This is
  something that he chose to add to his body well after.”
• “We know, too, that he adds this Nazi eagle with the
  Schutzstaffel on his chest again sometime after September
  of 1999. [¶] Is this somebody who has somehow renounced
  his views? [¶] There was a clear impression that was
  intended to be given to you by the defense that somehow
  the only reason he became a White supremacist was for
  protection in prison. That was absolutely not true. You
  know from the evidence that he is clearly espousing these
  views and this ideology after he gets out of prison. That’s
  how he meets James Torkelson, going to Aryan Nations
  meetings. This has nothing to do with protection in prison.
  Nothing at all. It goes to who he is.”
• “What you put on your body, what you permanently put on
  your body, says a whole lot about what you are thinking
  and about who you are. These were things—again, choices.



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                  Opinion of the Court by Kruger, J.



     He chose to put all these on his body. He chose to do many
     of these things well after he got out of prison.”
  • “Again, that German soldier, that cost a lot of money.
     Instead of spending the money on his kids, that’s how he’s
     spending it. That’s the kind of choices he makes.”


      In sum, the prosecutor openly and repeatedly invited the
jury to do precisely what the law does not allow: to weigh the
offensive and reprehensible nature of defendant’s abstract
beliefs in determining whether to impose the death penalty.
We cannot ignore the possibility that the jury accepted that
invitation in returning its verdict on the penalty retrial. (Cf.
Dawson v. State (Del. 1992) 608 A.2d 1201, 1205 [concluding,
on remand from the U.S. Supreme Court, that where state had
woven evidence of Dawson’s Aryan Brotherhood membership
into a “central theme that Dawson had an incorrigible
character with his entire life showing repeated decisions to
reject any redeeming paths,” it would be “impossible” to
conclude that the error in admitting the evidence did not
contribute to the death sentences].) The trial court’s error in
allowing the prosecution to use evidence of defendant’s
abstract beliefs in this fashion was prejudicial, and the
resulting penalty judgment must therefore be reversed.




                                 72
                       PEOPLE v. YOUNG
                 Opinion of the Court by Kruger, J.




                     III. DISPOSITION
      We affirm the judgment as to guilt, reverse the judgment
as to the sentence of death, and remand the matter for a new
penalty determination.


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




                                73
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Young
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S148462
Date Filed: July 25, 2019
__________________________________________________________________________________

Court: Superior
County: San Diego
Judge: John M. Thompson

__________________________________________________________________________________

Counsel:

Kathy R. Moreno, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris and Xavier Becerra, Attorneys General, Dane R. Gillette and Gerald A. Engler, Chief
Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, Holly D. Wilkens, Arlene
Aquintey Sevidal, Ronald A. Jakob, Stacy Tyler and Michael T. Murphy, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathy R. Moreno
Law Office of Kathy R. Moreno
P.O. Box 9006
Berkeley, CA 94709-0006
(510) 717-2097

Michael T. Murphy
Deputy Attorney General
600 West Broadway, Suite 1800
San Diego, CA 92186-5266
(619) 738-9211
