Filed 6/1/15




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                             S076337
           v.                        )
                                     )
EDWARD CHARLES III,                  )
                                     )                        Orange County
           Defendant and Appellant.  )                    Super. Ct. No. 94NF2611
____________________________________)




        Defendant Edward Charles III was convicted at trial of one count of first
degree murder and two counts of second degree murder (Pen. Code, § 187, subd.
(a).)1 The jury also found true multiple-murder special-circumstance allegations.
(§ 190.2, subd. (a)(3).) Following a fourth penalty trial, the jury returned a verdict
of death. The trial court denied the automatic application to modify the verdict
(§ 190.4, subd. (e)) and sentenced defendant to death. This appeal is automatic.
(§ 1239, subd. (b).) We affirm the judgment.




1       All further unspecified statutory references are to the Penal Code.



                                          1
                               STATEMENT OF FACTS

       1. Guilt Phase

           A. Summary
       Defendant was charged with killing his father, Edward Charles II, his
mother, Dolores Charles, and his 19-year-old younger brother, Daniel Charles.2
The prosecution showed that on the evening of November 6, 1994, defendant went
to his parents‘ home around dinner time when his parents and brother were all
present. Sometime later, defendant abducted Danny, stabbed him, and forced him
into the trunk of Danny‘s car. He either choked or hit Danny in the neck with
sufficient force to break his hyoid bone before killing him by striking him
repeatedly in the head with a 16-inch crescent wrench. Defendant returned to his
parents‘ house in the early morning hours of November 7, where he strangled his
mother and beat his father to death with a blunt object. After cleaning up, he
carried his parents‘ bodies to his mother‘s car, where he had placed Danny‘s body
in the trunk, and went to his job at a service station, where he worked a full day.
That night, he drove the car to a high school parking lot and set it on fire. He
confessed his crime to his martial arts instructor, but he also attempted to persuade
his 73-year-old grandfather to take the blame for the murders. In a conversation
with one of his jailers and in a letter to a fellow inmate, defendant, while denying
he had committed the murders, admitted he had cleaned up the murder scene at his
parents‘ house, placed the victims‘ bodies in a car, and attempted to burn them.
       The defense, in essence, was that defendant had neither the character nor
the motive to kill his parents and brother.


2    Because all the victims have the same last name we refer to them as
Edward, Dolores and Danny, as Daniel was universally known.



                                          2
           B. Prosecution Case-in-Chief
       Defendant is the elder son of Edward and Dolores. In November 1994,
defendant was 22 years old and his brother Danny was 19. Defendant worked as a
mechanic at the Sunny Hills Chevron station in Fullerton; Danny was a sophomore
at the University of Southern California (USC). Neither lived at his parents‘ home
on Terraza Place in Fullerton, but their maternal grandfather, Bernard Severino,
did. His room was at the opposite end of the house from the master bedroom
where Edward and Dolores slept. Danny lived at USC and defendant was living
with the family of his fiancée, Tiffany Bowen, who was away at school.
       On Sunday, November 6, all the members of the Charles family, except
defendant, had dinner together. At some point, defendant arrived. There were no
arguments among the family. Severino, the sole eyewitness to the events of that
evening, told police Danny left first, at about 8:00 p.m., followed shortly by
defendant. About 9:00 p.m., Dolores expressed concern to Severino that Danny
had not called to report he had arrived safely at USC, as was his habit. Severino
last spoke to his daughter at 11:30 that night. She was still awaiting Danny‘s call.
Severino went to bed.
       Gina Simms lived on Lakeside Drive in Fullerton around the corner from
the Charleses‘ house. About 9:30 p.m. on November 6, she was accompanying
her friend Susan Poladin and Poladin‘s daughter from her house to their car. As
they walked down the driveway the two women heard someone calling for help.
The call appeared to come from the trunk of a car parked across the street. They
returned to Simms‘s house to call the police but by the time the police arrived, the
car was gone. At trial, the women identified Danny‘s Honda as similar to the car
they saw that evening.
       About 9:50 p.m., Bryan Poor, defendant‘s coworker at the Chevron station,
saw defendant arrive in a small, light-colored sedan he had never seen defendant


                                          3
drive before. Defendant told him the car belonged to Tiffany Bowen‘s mother,
Jeanne, and he was testing the clutch or brakes. Defendant parked the car in a
poorly lit area of the station. Ordinarily, he parked in front.
       Jeanne Bowen testified that on November 6, she owned a gold Impala and a
red Mustang, neither of which had a clutch. She also testified that, although
defendant was living at her home in November 1994, he did not spend the night of
November 6 there.
       On Monday, November 7, 1994, Severino woke about 5:30 a.m. and went
out to walk the family dog. He noticed a three-foot-long trail of blood drops in
front of the steps to the house. He also observed that Dolores‘s car was not parked
in its usual spot. About 6:10 a.m., Jerry Kuhn, who lived across the street, went
out to pick up the newspaper and saw defendant using a towel or a rag to rub the
Charleses‘ driveway. Defendant stopped when he saw Kuhn watching him. He
resumed when Kuhn went back into his house, where Kuhn continued to watch
defendant from a window. Defendant threw the towel or rag into the back of a
truck parked in the driveway.
       Defendant reported for work at the Chevron station about 8 a.m. James
Burchit, the owner, said defendant was unshaven and looked like he had been up
all night.
       Defendant worked until 4:00 p.m. Sometime before 7:00 p.m., he returned
to his parents‘ residence. By now Severino was concerned because his daughter
and son-in-law had not been home all day. He asked defendant if he knew where
they were. Defendant told him Danny had had a clutch problem with his car and
his parents had gone to pick him up. Severino said he was going to call the police.
Defendant left.
       According to Jeanne Bowen, defendant arrived at the Bowen residence
about 7:00 p.m. At around 9:00 p.m., he asked Ty Bowen, Jeanne‘s son, to give

                                           4
him a ride to the Chevron station. Defendant had been driving Tiffany Bowen‘s
truck, and it was at the residence, but Ty Bowen drove him to the station. At
about 10:00 p.m., Jeanne Bowen received a phone call from someone named
―Rob‖ who asked for Ty. She gave the phone to her son. It was defendant, and he
asked Ty to pick him up at a softball field. Ty again complied.
       The softball field was about sixth-tenths of a mile from El Camino High
School in La Mirada where, about 10:00 p.m., Los Angeles County Sheriff‘s
Deputy James Rifilato was dispatched to investigate a car fire. Rifilato found a
gray Honda Civic smoldering in the school‘s parking lot. The vehicle was
registered to Edward and Dolores. Rifilato looked inside the car and saw the nude,
badly burned bodies of a man and a woman in the rear passenger seat. In the
trunk, Rifilato found a clothed male body, less burnt than the other two. The
bodies in the back seat were identified as Edward and Dolores. The body in the
trunk was Danny. An arson investigator who arrived at the scene shortly after
Rifilato determined the fire had been intentionally set in three locations, with
gasoline used as the accelerant. Police also recovered a knife, a blue T-shirt, and a
purple sweatshirt from the car.
       An autopsy revealed that Danny had been stabbed twice in the back and
was then either choked or struck in the neck with sufficient force to break his
hyoid bone, which is located under the jaw. He was then struck in the head four
times with sufficient force to fracture his skull. The cause of death was blunt force
injury to the head.
       Edward‘s autopsy revealed that his chest, back, neck, and head had been
repeatedly struck, fracturing his ribs, spinal column, neck, jaw, cheek, and skull.
The cause of his death was blunt force injuries to his head and neck.
       The autopsy on Dolores‘s body revealed the cause of death was asphyxia
due to neck compression. The medical examiner attributed this to strangulation or

                                          5
a blow to her neck. An examination of the victims‘ stomach contents indicated
Danny was killed first and then his parents, several hours later.
       Sometime between 3:00 a.m. and 4:00 a.m., Leann Pollaccia was
―dumpster diving‖ behind a business in an industrial area in Fullerton looking for
items to sell. She found a 30-gallon garbage pail that held clothes and a towel
soaked with blood. Pollaccia kept digging and found a wrench engraved with the
yin-yang symbol.3 There was hair and blood on the wrench but she took it
anyway, leaving the clothes except for a pair of jeans, which she washed. Later,
when she read newspaper accounts about the murders that identified defendant as
a mechanic, she concluded the wrench was probably the weapon police were
looking for, so she turned it over to the police. Kimberly Speare, defendant‘s
former girlfriend, testified she and defendant had engraved all of his tools with the
yin-yang symbol and identified the wrench as part of the set of tools they had
engraved. Steve Dowell, a criminalist with the Los Angeles coroner‘s office
whose specialties included tool mark analysis, compared the wrench to Danny‘s
and Edward‘s skull injuries. He concluded an injury to Danny‘s skull bore marks
consistent with the class of wrenches to which defendant‘s wrench belonged. He
could not exclude it as the object that produced the injuries to Edward‘s skull.
Heidi Robbins, the prosecution‘s serologist, testified that blood found on the
wrench was consistent only with Danny‘s blood.




3      Philip Axelson, defendant‘s martial arts teacher, explained this symbol
―depicts two fish, one usually dark and one usually white,‖ that are ―juxtaposed
like two shoes in a [shoe] box‖ ―like they are chasing each other,‖ and ―suggests
positive/negative, light and dark, and basically a balance.‖ He testified further that
it was a significant symbol in martial arts and one with which defendant could
have been familiar.



                                          6
      Los Angeles County Sheriff‘s Sergeant Curt Royer, the lead investigator,
first spoke to defendant at the Bowens‘ residence at 6:15 a.m. on Tuesday,
November 8. Defendant told Royer he had last seen his brother and parents on
Sunday night around 8:00 p.m., when Danny left to return to USC. Defendant said
he left shortly afterwards and spent the night at the Bowen residence. As to his
whereabouts on Monday night, he told Royer he had arrived at the Bowen
residence at 8:00 p.m. and remained there until Royer had awakened him.
      Royer asked defendant why, if his brother had left his parents‘ residence
while his parents remained there, they had been found in the same vehicle.
Defendant said his brother‘s car had had clutch problems, so he had probably
returned home and had his parents drive him to college. When Royer observed
that defendant had not asked him why he was inquiring about his parents,
defendant asked, ―Well, why? What happened?‖ Royer told him his parents and
brother had been found dead in a car. Defendant said he warned them not to go to
the college at night. He dropped to the ground and appeared to sob but, when
Royer told defendant he knew he was faking, defendant stopped.
      Later that day, Royer spoke to defendant again. He told defendant that
Jeanne Bowen had informed him defendant had not spent Sunday night at the
Bowen residence. Defendant then remembered he had gone back to his parents‘
house and slept there without anyone having seen him arrive or leave.
      Around 5:50 p.m. on the same day, Tuesday, defendant called Philip
Axelson. Axelson had been defendant‘s martial arts teacher for three years, until
March 1994. Defendant referred to Axelson as ―sensei,‖ the Japanese word for
teacher. Under Axelson‘s tutelage defendant had risen to the green belt level. To
achieve that level, defendant had had to be able to break two one-inch-thick boards
with his feet and three with his hands. Axelson had seen defendant break as many
as five boards, although he did not say whether this was with his hands or feet. At

                                         7
that level, defendant would have been capable of inflicting a severe blow to
another person‘s body.
       Axelson was at the health club where he worked when he was told he had
an emergency call. The employee who answered it told Axelson the caller had
identified himself as ―Eddie,‖ and ―sound[ed] really upset.‖ When Axelson took
the phone, defendant was crying. Axelson asked him ―What‘s going on?‖ He told
Axelson he had ―done a terrible thing.‖ Axelson asked what it was and defendant
said, ―I killed my family.‖ Axelson said, ―What?‖ and defendant said, ―I think I
killed my family.‖ Axelson said, ―What are you telling me? What are you saying
to me?‖ Defendant replied, ―I think I killed my family. I need to come down and
talk to you right away.‖ Axelson, concerned about the safety of other club
members and employees should defendant be armed, asked for defendant‘s
number and told him he would call him back. After getting off the phone with
defendant, Axelson called the police and reported the conversation.
       Axelson testified further that he and defendant had had a close relationship
while defendant trained with him. Defendant conveyed the impression he hated
his brother Danny, who he thought might become a homosexual because of
Danny‘s interest in opera and theater. Defendant‘s feelings toward his mother
were also negative; he thought that her smoking showed a lack of regard for his
health. As to his father, Axelson testified there was ―no love there.‖ Defendant
complained his father was distant and did not listen to him. Axelson testified that
defendant demonstrated no regard for any member of his family.
       Defendant was arrested for the murders on November 9, 1994.
       On November 10, 1994, Heidi Robbins, a serologist with the Los Angeles
County Sheriff‘s Department crime lab, went to the Charleses‘ residence. Robbins
took samples of blood she found at the entrance and in the foyer, and in the master
bedroom on a nightstand, a computer, the headboard, the wall above the

                                         8
headboard, the mattress and the box spring. A pair of sparring gloves found in the
dining room also had blood on them. Robbins analyzed some, but not all, of the
samples she collected in the house. She concluded that blood on the nightstand
was consistent with Edward‘s. The blood on the sparring gloves was consistent
with defendant‘s. Robbins was also given the knife recovered from the trunk of
the car where Danny‘s body was found. Blood on the knife was consistent with
his blood.
       Sometime in late November, defendant called his grandfather from jail and
told him he should take the blame for the murders because he was 74 years old and
had already lived his life. (Severino was actually 73.) Severino hung up on him.
Defendant called back and told him that his fiancée Tiffany Bowen was pregnant
and defendant had his life to lead.
       On November 23, 1994, an agitated defendant asked to speak to one of his
jailers at Orange County Jail, Deputy Sheriff Gene Hyatt. Defendant told Hyatt
his grandfather had committed the murders. He told Hyatt that on the night of the
murders his grandfather was upset because defendant‘s parents were bickering
with Danny. Defendant said he left his parents‘ house before Danny did but
returned around 11:30 p.m. Upon his return, he found a bloody ballpeen hammer
in the kitchen, the bodies of the three victims in his parents‘ bedroom, and his 73-
year-old grandfather in his bedroom covered with blood. Defendant decided to
cover up for his grandfather. He showered the blood off his grandfather, put him
into bed, and cleaned blood from the house. He put the bodies in a car parked in
the driveway and then went to bed. The next evening, after working a full day, he
drove the bodies to the high school parking lot, doused them with gasoline, set the
car on fire and walked home.
       On December 7, 1994, an inmate named Cezar Pincock approached
Sergeant Royer with a letter Pincock claimed defendant had written to him. He

                                          9
offered the letter to Royer in exchange for Royer‘s help in two cases, one in which
Pincock had been sentenced and the other of which was pending. Royer rejected
Pincock‘s request for help and seized the letter as evidence. Although the letter
does not contain a date or defendant‘s name, his former girlfriend, Kimberly
Speare, with whom he had lived for a year and a half, testified the writing in the
letter was his.
       Tony Saavedra, a reporter with the Orange County Register newspaper,
obtained a copy of the letter and published an article in the newspaper on January
3, 1995, that quoted extensively from it. Before writing and publishing the piece
he interviewed defendant about the letter. Saavedra held the first page of the letter
up to the glass partition that separated him from defendant, and either read or held
up other pages of the letter, while asking him questions about specific passages.
Saavedra prefaced his questions with remarks like ―You wrote here,‖ or ―You said
here.‖ At no point did defendant deny authorship of the letter. In fact, defendant
clarified some of the passages that Saavedra did not understand. For example, he
explained what was meant in the letter by the term ―monkey boots.‖ Saavedra
also asked defendant about passages in the letter discussing the burning of the
bodies. Defendant explained that he couldn‘t bury them, but if he burned them ―it
could be like cremating them.‖ Defendant also told Saavedra that, as the bodies
burned, defendant ran to a nearby baseball field and called his fiancée‘s brother for
a ride home. Appended to the letter was a diagram of the layout of the Charles
residence in which furniture was accurately positioned. It also contained
information that was not in any of the police reports.
       Defendant in the letter did not admit killing his family. Defendant wrote he
arrived at his parents‘ house about 11:30 p.m. and found his parents dead. He
wrote he ―know[s] who did this and they left a typed note in an envelope with
threats and telling me to clean up or I would go to jail for murder. They said if I

                                         10
went to cops [sic], they would kill Tiffany [Bowen] and her family.‖ He described
removing the bodies, cleaning up the house, including the blood on the driveway,
consistent with what his neighbor Jerry Kuhn observed. He also wrote that on the
Monday night after the killings, he drove the car with the bodies to the high
school, poured gasoline in the trunk and inside the car and set it on fire.
Elsewhere, he suggested it would ―look[] better‖ and deflect suspicion from him if
someone—―X‖—went back to his parents‘ residence and got ―caught in the act of
something. Weather [sic] it be M. [murder?] or steal[ing]. . . . Someone could call
pigs [sic] and tell them X is there and is going to finish the job. X could say he
missed gramps.‖
       Defendant also proposed a possible alibi for himself for the night the
murders occurred. ―How about this. Sunday night I was with a girl from 7:30 pm
on til 7:30 am Monday when she dropped me off at my house. She picked me up
the night before at my house in a blue four door car. The only thing is who was
this girl, where did you meet her, why didn‘t you say anything about it before . . . .
[¶] [1] Who—I don‘t know, find someone who will say they were the girl? [¶]
[2] Where—I met her at the station getting gas. [¶] [3] Why—Because I didn‘t
want my old lady to find out. [¶] What—Well like I said I couldn‘t let my old
lady find out.‖
       Jill Roberson testified she had known defendant before he was arrested and
had corresponded with him in jail. She testified she was going to claim defendant
was with her the night of the murders. She said the false alibi was her idea. After
some equivocation, she testified that, although she had discussed the idea with
defendant, he told her not to do it.




                                          11
           C. Defense Guilt Phase Case
       Defendant called a number of witnesses who testified to his good character
and his nonviolent nature. These witnesses also testified to the absence of any
animosity by defendant toward his family that would have provided him with a
motive to kill his parents and brother. William Hatch, a handwriting comparison
expert, compared the jailhouse letter to exemplars of defendant‘s handwriting and
opined that defendant had not written the letter. (The defense would argue
Pincock had forged the letter based on media stories and police reports he obtained
from defendant.) Three witnesses, including Jill Roberson‘s father, testified she
was untruthful. Two witnesses testified they saw defendant driving out of the
parking lot of the Chevron station at 9:00 p.m. on the night of the murders.
Benjamin Romero, a Fullerton police officer, testified that when Severino was
being interviewed he had trouble remembering and answering questions.

           D. Prosecution Rebuttal
       In rebuttal, Sergeant Royer testified Officer Romero did not participate in
Severino‘s interview but was simply standing nearby during the interview.

       2. Penalty Phase

           A. Summary
       For reasons set forth below, there were four penalty trials in this case. (See
pt. 2.A, p. 31.) The fourth penalty trial jury returned the death verdict under
review here.

           B. Prosecution Case
       The prosecution‘s case in aggravation was based on the circumstances of
the crimes and defendant‘s use or attempted use of force or violence. (§ 190.3,
factors (a), (b)) as well as victim impact evidence.




                                         12
       Because the fourth penalty jury had not heard the guilt phase evidence, the
prosecution presented the same evidence it had presented at that phase as evidence
going to the circumstances of the crime. We do not repeat that evidence here.
       Bernard Severino provided brief victim impact testimony. He testified to
the character of his daughter, son-in-law, and grandson Danny, and that he missed
them and suffered from loneliness as a result of their deaths.
       Deputy Sheriff Frank Tomeo, who worked in the Orange County Jail,
testified that, on May 5, 1995, he saw defendant come up behind another inmate,
put him in a chokehold, drag him into the shower area, and then drop him,
unconscious, onto the shower floor. The inmate sustained injuries that required
five stitches. A second deputy sheriff, James Gagen, testified that he searched
defendant‘s cell and found two grinding disks, two hacksaw blades, and a nine-
inch piece of metal.

           C. Defense Case
       Defendant called a number of witnesses who testified to his good character,
his status as a role model to the boys he coached in soccer, his nonviolent nature,
and the absence of anything in defendant‘s past or character that had prepared the
witnesses for his commission of the murders. Roberta Prindiville, defendant‘s
maternal aunt, and Joanne Irene, his second cousin, both testified that they and
other members of defendant‘s extended family still loved him and wanted to
maintain a relationship with him, notwithstanding the crimes of which he had been
convicted. Norman Morein, a sentencing consultant, testified that defendant‘s
skills as a mechanic would make him a valuable asset if he were sentenced to life
in prison without possibility of parole. William Hatch, the handwriting
comparison expert, again testified that, in his opinion, defendant had not authored
the jailhouse letter to Cezar Pincock. Ron Klar, defendant‘s former attorney,



                                         13
testified that he had gained permission for defendant to keep legal documents
related to his case in jail and that all of defendant‘s non-legal mail was inspected
before it reached defendant.
                                     DISCUSSION

       1. Guilt Phase Claims

           A. Admission of Defendant’s Jailhouse Letter
       Defendant contends the trial court abused its discretion when it admitted
his jailhouse letter under the adoptive admission exception to the hearsay rule
(Evid. Code, § 1221) and because the prosecution failed to establish the chain of
custody. Additionally, he asserts application of the newsperson‘s shield law (Cal.
Const., art. I, § 2, subd. (b); Evid. Code, § 1070) limited his ability to effectively
challenge the testimony of Tony Saavedra, the Orange County Register reporter,
which was the basis of the court‘s admission of the letter into evidence.
Defendant contends the improper admission of the letter violated his Fifth, Sixth,
Eighth and Fourteenth Amendment rights.4 We reject his claims.

4  ―As to this and virtually all other appellate claims, defendant contends that an
issue raised and decided in the trial court resulted in constitutional violations, but
he did not present those constitutional theories below. In such instances, it
appears that (1) the appellate claim is the kind that required no trial court action to
preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court was asked to apply, but merely assert that the
trial court‘s act or omission, in addition to being wrong for reasons actually
presented to that court, had the legal consequence of violating the United States
and California Constitutions. To that extent, defendant‘s new constitutional
arguments are not forfeited on appeal. [Citations.] In the latter case, no separate
constitutional discussion is required or provided where rejection of a claim that the
trial court erred on the issue presented to that court necessarily leads to rejection of
any constitutional theory or ‗gloss‘ raised for the first time here.‖ (People v.
Contreras (2013) 58 Cal.4th 123, 139, fn. 17.) We apply this principle here and
elsewhere where defendant asserts on appeal constitutional claims not advanced
below.



                                          14
                1. Evidence Code Section 402 Hearing
       Before trial, the court conducted a hearing on defendant‘s motion to
exclude from evidence the jailhouse letter defendant allegedly wrote to his fellow
inmate, Cezar Pincock, about which Tony Saavedra, the reporter for the Orange
County Register, later questioned defendant. The prosecutor explained that at his
request, Saavedra, who had become aware of the letter and some of its contents,
had held off writing a story about it until after the police had investigated whether,
as the letter suggested, a ―hit‖ had been planned against defendant‘s grandfather.
In gratitude for his cooperation, the prosecutor gave Saavedra a copy of the letter.
The prosecutor represented that Saavedra questioned defendant about the letter on
his own and not at the prosecutor‘s instigation.
       Although, as noted, the author of the letter denied having killed Edward,
Dolores and Danny Charles, he described his discovery of the bodies, the cleanup
efforts and the attempted disposal of the bodies by burning them. These
descriptions largely tallied with what defendant told Deputy Sheriff Hyatt.5
       The issue at the pretrial hearing was not the content of the letter but, as
defense counsel put it, ―whether [defendant] confessed to writing‖ the letter. At
the outset of the hearing, the parties stipulated that the letter was received by
Sergeant Royer from inmate Pincock as well as to the circumstances under which
Saavedra obtained it. They stipulated further that the defense‘s handwriting


5      Hyatt did not testify at the hearing regarding admissibility of the letter. He
had, however, testified at an earlier Evidence Code section 402 hearing on the
defense motion to exclude defendant‘s statements to him. The court denied that
motion in part, permitting admission of some statements that defendant had
voluntarily made to Hyatt, but not later statements Hyatt solicited from defendant.
In arguing the letter corroborated defendant‘s statements to Hyatt, the prosecutor
referred to Hyatt‘s testimony at this earlier hearing. Defendant did not object to
the consideration of Hyatt‘s testimony by the trial court.



                                          15
expert, William Hatch, had he been called at the hearing, would have testified
none of the writing was in defendant‘s hand.
       As he would at trial, Saavedra testified that he held up pages of the letter to
the glass partition that separated him from defendant in the jail‘s visiting room and
asked him questions about certain passages. In doing so, he used language like ―I
have a letter that you wrote,‖ and ―You said here,‖ or ―well, you wrote here.‖ In
questioning defendant he ―hopscotched‖ around the letter. Saavedra testified that
at no point did defendant admit or deny he wrote the letter, but he responded to
Saavedra‘s questions about specific passages. Saavedra testified he was ―waiting‖
for defendant ―to disagree with what was in the letter,‖ to say, for example, ―I
didn‘t burn my parents,‖ but ―it was quite the opposite.‖
       The prosecutor argued that, in addition to Saavedra‘s testimony, the
similarities between what was in the letter and what defendant told Deputy Hyatt,
which the deputy had testified to at an earlier Evidence Code section 402 hearing,
provided further evidence defendant had written the letter. The defense argued
that the dissimilarities outweighed the similarities and that the letter was
disjointed, ―as though someone is getting police reports and getting more
information and then writing more letters.‖ The trial court observed the entire
letter appeared to have been written by a single person, a point defense counsel did
not dispute. In admitting the document into evidence the court said, ―[T]here has
been no suggestion of tampering, other than speculation. Certainly, you would
expect that if it is in the same handwriting, if [defendant] is shown the first page
and he doesn‘t deny it is his handwriting, that that would include the whole
document.‖
       The court questioned whether, as the defense contended, there was a
―problem with the chain of custody.‖ Defense counsel replied there was no
evidence defendant had given the letter to Pincock or anyone else. Defense

                                          16
counsel conceded, however, that the letter the prosecution gave Saavedra was the
same letter Royer said Pincock had given him. The trial court rejected the chain of
custody argument, concluding, ―If the handwriting is the same person for all the
18 pages and . . . the defendant is shown one page of it by the reporter, and doesn‘t
deny it under circumstances where a person ordinarily would say that, ‗That not‘s
true, I didn‘t write that,‘ or ‗that‘s not my handwriting,‘ it seems that it is an
implied admission as to the other 18 pages. [¶] Unless, you know, there is some
evidence that there has been some tampering with those 18 pages.‖ The court
denied the motion to exclude the letter without prejudice to a further showing ―that
would justify excluding it.‖

                2. Analysis
       At the Evidence Code section 402 hearing, the admissibility of the jailhouse
letter to Pincock hinged upon the preliminary factual question whether defendant
authored the letter.6 In finding that defendant did, the trial court relied on the
letter itself, which it concluded had been written by a single individual, similarities
between defendant‘s statements to Deputy Hyatt and accounts in the letter
regarding defendant‘s efforts to clean up the murder scene and dispose of the
bodies, and the testimony of Tony Saavedra about defendant‘s conduct when
Saavedra questioned him about the letter. In the court‘s opinion, defendant‘s
conduct constituted an adoptive admission of authorship.7


6        As relevant here, Evidence Code section 402 provides for a hearing out of
the presence of the jury ―[w]hen the existence of a preliminary fact is disputed
. . . .‖ (Id., § 402, subd. (a).) Evidence Code section 403 places upon the
proponent of the evidence the burden of proving ―the existence of the preliminary
fact.‖ (Id., § 403, subd. (a).)
7        The court‘s finding of authorship was preliminary; the jury was the final
arbiter of this issue. ― ‗[T]he judge‘s function on questions of this sort is merely to
                                                             (footnote continued on next page)


                                           17
        Defendant challenges the trial court‘s conclusion that his conduct when
questioned about the letter by Saavedra constituted an adoptive admission. ―We
review the trial court‘s conclusions regarding foundational facts for substantial
evidence. [Citation.] We review the trial court‘s ultimate ruling for an abuse of
discretion [citations], reversing only if ‗ ―the trial court exercised its discretion in
an arbitrary, capricious, or patently absurd manner that resulted in a manifest
miscarriage of justice.‖ ‘ ‖ (People v. DeHoyos (2013) 57 Cal.4th 79, 132.)
        Because the adoptive admission issue involved only the authorship of the
letter, not its contents, we are concerned only with whether the trial court ruled
correctly that defendant‘s conduct in response to Saavedra‘s questioning
constituted an adoptive admission that he wrote the letter. If so, then any
incriminating statements in the body of the letter would become defendant‘s own
statements and, as such, party admissions. (Evid. Code, § 1220.)
        ―In determining whether a statement is admissible as an adoptive
admission, a trial court must first decide whether there is evidence sufficient to
sustain a finding that: (a) the defendant heard and understood the statement under
circumstances that normally would call for a response; and (b) by words or
conduct, the defendant adopted the statement as true.‖ (People v. Davis (2005) 36
Cal.4th 510, 535.) ―For the adoptive admission exception to the hearsay rule to
apply, no ‗direct accusation in so many words‘ is necessary. [Citation.] Rather, it
is enough that the evidence showed that the defendant participated in a private
conversation in which the crime was discussed and the circumstances offered him



(footnote continued from previous page)

determine whether there is evidence sufficient to permit a jury to decide the
question.‘ ‖ (People v. Lucas (1995) 12 Cal.4th 415, 467.)



                                           18
the opportunity to deny responsibility or otherwise dissociate himself from the
crime, but that he did not do so.‖ (Id. at p. 539.)
       In this case, Saavedra confronted defendant with the letter that, in part,
described the author‘s efforts to clean up the murder scene and dispose of the
bodies. While Saavedra did not directly ask defendant if he had written the letter,
he showed him pages of the letter and queried him about it with language that
plainly attributed the letter to defendant, e.g., ―You said here,‖ ―Well, you wrote
here.‖ That defendant responded to Saavedra‘s queries is evidence defendant
heard and understood Saavedra‘s remarks, thus fulfilling the first prerequisite for
an adoptive admission. As to the second, that the defendant by words or conduct
adopt the statement as true, defendant did not deny having written the letter or in
any way dissociate himself from it and its incriminating contents. To the contrary,
in response to Saavedra‘s questions, defendant explained or illuminated passages
in the letter. Accordingly, substantial evidence showed defendant heard and
understood Saavedra was implicitly asserting defendant had authored the letter
and, by responding to Saavedra‘s substantive questions regarding the contents of
the letter, implicitly admitted authorship.
       Moreover, in concluding defendant wrote the letter, the trial court did not
rely solely on its conclusion defendant‘s conduct constituted an adoptive
admission. The trial court also found the entire document had been written by a
single person and implicitly found, as the prosecutor argued, that statements in the
letter regarding the aftermath of the murders largely corroborated defendant‘s
statements to Deputy Hyatt to which Hyatt had testified at an earlier evidentiary
hearing.
       We note further that at trial Kimberley Speare testified that the handwriting
in the letter was defendant‘s. Thus authenticated as having been written by
defendant, any inculpatory statements in the letter were admissible as party

                                          19
admissions. (Evid. Code, § 1220 [―Evidence of a statement is not made
inadmissible by the hearsay rule when offered against the declarant in an action to
which he is a party . . . ‖].) Accordingly, even if the trial court had erred in
admitting the letter as an adoptive admission—which it did not—it would have
been admissible on this alternative ground. (People v. Geier (2007) 41 Cal.4th
555, 582 [a trial court‘s ruling, if correct on any ground, will be affirmed].)
       Defendant challenges the trial court‘s ruling on four grounds. First, he
claims ―the chain of custody was inadequate to show that the letter was genuine or
authored by [defendant].‖ The trial court appropriately rejected this claim. The
parties stipulated that the letter was the same letter Pincock had given Sergeant
Royer and that the copy Saavedra showed defendant was a copy of that letter.
There was no suggestion the letter was tampered with at any point in its passage
from Pincock‘s hands to Royer to the hearing. Thus, as the trial court correctly
observed, there is no chain of custody issue. (See People v. Catlin (2001) 26
Cal.4th 81, 134.) Defendant‘s claim that Pincock forged the letter after obtaining
access to police reports in defendant‘s possession goes to the question of
authorship, not to chain of custody. As already explained, the evidence supports
the conclusion that defendant wrote the letter.
       Second, defendant argues that the trial court erred in admitting the letter
because Saavedra admitted he showed only parts, and not the entire document, to
defendant. But as earlier noted, the trial court found the entire document was
written by a single person and in a single hand. The trial court concluded that
person was defendant.
       Third, defendant argues the letter did not constitute an adoptive admission
because he did not admit he committed the crimes, but blamed them on a nameless
third party. The argument is both forfeited and meritless. Defendant did not seek
to exclude the letter because it did not constitute a confession; his sole argument

                                          20
was that he did not write the letter at all.8 Accordingly, the argument is forfeited.
His argument is meritless because it goes not to its admissibility, but to the
evidentiary weight of the letter, a matter for the jury.
       In sum, substantial evidence supports the trial court‘s foundational finding
of authorship, and it did not abuse its discretion in admitting the letter into
evidence.
       Finally, defendant complains that Saavedra‘s invocation of the
newsperson‘s shield law (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070)
prevented him from properly challenging the admission of the letter by thwarting
his ability to confront and cross-examine Saavedra in violation of his Sixth
Amendment rights. The claim is meritless.
       Article I, section 2 of the California Constitution provides, as relevant to
this case, that ―[a] . . . reporter . . . shall not be adjudged in contempt by a judicial,
legislative, or administrative body, . . . for refusing to disclose any unpublished
information obtained or prepared in gathering, receiving or processing of
information for communication to the public.‖ The constitutional provision is
incorporated in the language of section 1070 of the Evidence Code. Termed ―the
newsperson‘s shield law‖ (Delaney v. Superior Court (1990) 50 Cal.3d 785, 792),
these provisions protect ―a newsperson from being adjudged in contempt for
refusing to disclose either: (1) unpublished information, or (2) the source of

8        On a related note, defendant complains Saavedra‘s guilt phase trial
testimony that in his opinion defendant wrote the letter usurped the jury‘s
exclusive prerogative to determine that issue. Defendant did not advance this
argument either at the pretrial evidentiary hearing or when Saavedra testified.
Accordingly, the claim is forfeited. Even if it were not, the jury was instructed
that it alone was to determine whether an admission had been made. ―We
presume the jury understood and followed the instruction.‖ (People v. Homick
(2012) 55 Cal.4th 816, 873.)



                                            21
information, whether published or unpublished.‖ (Id. at p. 797.) The immunity is
not absolute, however, and may in some instances yield to a criminal defendant‘s
constitutional right to a fair trial. (Id. at p. 805.)
       The current case involves unpublished information. In Delaney, we defined
the term ― ‗unpublished information‘ ‖ as encompassing ―a newsperson‘s
nonconfidential, eyewitness observations of an occurrence in a public place.‖
(Delaney v. Superior Court, supra, 50 Cal.3d at p. 805.) We also set forth a
number of factors to guide the trial court in balancing the interests of a criminal
defendant seeking to overcome the immunity granted by the shield law with the
newsperson‘s interests. Those factors are: (a) ―whether the unpublished
information is confidential or sensitive‖; (b) whether ―the interests sought to be
protected‖ by the law would be thwarted by disclosure; (c) ―the importance of the
information to the criminal defendant‖; and (d) ―[w]hether there is an alternative
source for the unpublished information.‖ (Id. at p. 813; see id. at pp. 810–811.)
The relative weight of these factors in a particular case is for the trial court to
decide. (Id. at p. 813.)
       At the pretrial hearing and at trial, Saavedra was represented by counsel,
Mr. Grossberg. Grossberg sought to invoke the shield law to prevent defense
counsel from asking Saavedra about any information he obtained from defendant
about the murders that did not appear in Saavedra‘s published article. For
example, when defense counsel asked Saavedra at the hearing whether defendant
denied authorship of the letter, Grossberg objected on the grounds that ―the article
does not state anywhere, one way or the other, that [defendant] did or did not deny
anything.‖ The trial court overruled the objection. At another point, Grossberg
objected when defense counsel asked Saavedra at the hearing if he inquired of
defendant when and where the letter was written. Grossberg again argued the
answer called for information not published in the article. The trial court,

                                             22
specifically referencing the Delaney factors, overruled the objection. Accordingly,
the trial court was clearly attuned to its obligation to weigh the competing interests
in ruling on Grossberg‘s objections that defense counsel‘s questions called for
unpublished information in violation of the shield law.
       Defendant does not discuss the actual procedure used at the pretrial
evidentiary hearing or the trial court‘s rulings regarding the shield law. He also
fails to acknowledge that the trial court specifically referred to the Delaney factors
in weighing Grossberg‘s objections to defense counsel‘s questioning, thus belying
defendant‘s claim the court was unaware of its duty to balance the requirements of
the shield law against defendant‘s right to disclosure. Instead, he globally claims
Saavedra‘s invocation of the shield law prevented him from obtaining information
that would have impeached Saavedra‘s credibility. He fails to direct us to a single
question by defense counsel, as to which the trial court sustained an objection by
Grossberg, that impeded defendant‘s ability to challenge Saavedra‘s credibility at
the pretrial hearing. At oral argument, he directed us to two passages in the
transcript of the hearing that he claims support his argument that invocation of the
shield law thwarted his lawyer‘s cross-examination of Saavedra. Neither passage
does so. The first passage involves a conversation between the court and counsel
regarding the shield law in which the court said, ―I am trying to focus on what it is
that the defense might want to ask [Saavedra] which would cause [the newspaper
to invoke the shield law], if that‘s the case.‖ Defense counsel responded he was
interested in ―how they approached each other, what was said . . . you know we
are going to try to find out whether [defendant] confessed to writing or didn‘t, and
how that came about and what that means.‖ He concluded by saying, ―So I am
really not going outside the four corners of that document [e.g., the newspaper
article], from what I can gather in my own mind.‖ Thus, far from restricting
defense counsel‘s cross-examination, the trial court was simply soliciting defense

                                          23
counsel‘s view of whether anything in his cross-examination might cause
Grossberg to object under the shield law, to which defense counsel replied he did
not believe so.
       The second passage follows two objections by Grossberg when defense
counsel asked Saavedra whether defendant ―confirmed‖ writing the letter that the
trial court overruled. Defense counsel then asked, ―[W]hat did you do right before
he supposedly confirmed he wrote these things? Tell us what you did.‖
Grossberg objected ―that that question requests information what was not
published, the question of ‗what did you do.‘ ‖ The trial court sustained the
objection. Defense counsel made no argument or offer of proof. Defendant does
not explain, nor is it at all self-evident, how this exchange violated his right to
confront and cross-examine Saavedra or deprived him of evidence relevant to
Saavedra‘s credibility.
       Defendant also cites a fragment of testimony by Saavedra during the first
penalty trial as illustrative of the type of question that application of the shield law
prevented him from asking at the pretrial hearing: ―the defense was able to elicit
the fact that [defendant‘s] responses to Saavedra‘s questions did not show
authorship of the letter, but were in fact just general comments completely
independent of the letter.‖ But since defense counsel did not ask the same
question at the pretrial hearing, we have no way of knowing whether Grossberg
would have objected or how the court would have ruled. Tellingly, Grossberg did
not object when the question was asked at the first penalty trial.
       Finally, defendant directs us to a passage of Saavedra‘s testimony during
the third penalty trial when, he asserts, application of the shield law was relaxed.
He argues this passage demonstrates how restricted his cross-examination of
Saavedra was at the guilt phase. Defense counsel asked Saavedra, ―Can you
distinguish in your mind whether or not the conversation you had with [defendant]

                                          24
in January of 1995, can be split, if you will, into portions which related to this
[letter] you brought with you and portions which did not relate to the [letter], but
were just conversations about the case?‖ Grossberg, who was present, made no
objection. Saavedra answered, ―I think so.‖ Saavedra then testified, ―It was all
together. There wasn‘t a definitive talk about one and then talk about the other. It
was all together.‖ Again, we fail to see, and defendant fails to explain, what
bearing this exchange has on his claim that invocation of the shield law prevented
him from effective cross-examination of Saavedra. Accordingly, we reject his
claim.

             B. Prosecutorial Misconduct
         Defendant contends three instances of prosecutorial misconduct require
reversal of his convictions and sentence. We disagree.
         ― ‗ ―A prosecutor‘s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves the use of deceptive or reprehensible methods to attempt to
persuade either the trial court or the jury.‖ . . . To preserve a claim of
prosecutorial misconduct for appeal, a defendant must make a timely and specific
objection and ask the trial court to admonish the jury to disregard the improper
argument.‘ ‖ (People v. Linton (2013) 56 Cal.4th 1146, 1205.)
         Defendant first contends the prosecutor committed misconduct by
presenting false evidence. Citing discrepancies between details in the jailhouse
letter and the facts of the case as they emerged at trial, defendant argues the
prosecutor committed misconduct by failing to investigate the possibility Pincock




                                          25
forged the letter. The argument is forfeited because defendant failed to make this
objection to the letter in the trial court. It is also meritless.
       ― ‗Under well-established principles of due process, the prosecution cannot
present evidence it knows is false and must correct any falsity of which it is aware
in the evidence it presents . . . .‘ ‖ (People v. Harrison (2005) 35 Cal.4th 208,
242.) Defendant has not established that the prosecution presented evidence it
knew was false. The premise of his argument—that Pincock forged the letter—
was rebutted by the prosecution‘s evidence, specifically Saavedra‘s testimony
regarding his interview with defendant in which defendant implicitly
acknowledged the letter was his and the testimony of defendant‘s former
girlfriend, Kimberly Speare, that the letter was written in defendant‘s hand. This
being the case, the prosecution was under no obligation to investigate whether the
letter was forged and committed no misconduct in failing to do so. Such
investigation was a matter for the defense. Even assuming the prosecutor should
have recognized the evidence was conflicting with respect to whether defendant
wrote the letter, ―[w]hen . . . the prosecution has doubts as to the truth of a
statement it intends to present at trial, it must disclose to the defense any material
evidence suggesting that the statement in question is false. But, notwithstanding
those doubts, the prosecutor may still present the statement to the jury . . . .‖
(Ibid.) Here, defendant fails to identify any material evidence the prosecutor
failed to disclose. Introducing the letter into evidence was not misconduct.
       Next, defendant claims the prosecutor engaged in misconduct when, during
closing argument, he suggested defendant‘s motive in committing the murders was
to make himself sole heir to his parents‘ estate. The defense objected to the
argument on the grounds it was unsupported by the evidence. The trial court
sustained the objection. The defense did not, however, ask the jury be admonished
to disregard the evidence, a failure that forfeits the claim on appeal. (People v.

                                            26
Linton, supra, 56 Cal.4th at p. 1205.) Even if not forfeited, the prosecutor‘s brief
remark does not rise to the level of misconduct that requires reversal under either
the federal or state standard. (See Chapman v. California (1967) 386 U.S. 18, 24;
People v. Watson (1956) 46 Cal.2d 818, 836.)
       Finally, defendant asserts the prosecutor improperly denigrated defense
counsel when, in closing argument, he said ―I tip my hat to the job the defense did
in this case when they had no evidence that went their way. [¶] Trying to make
chicken salad out of you know what, okay?‖ Defendant‘s failure to object forfeits
the claim. In any event, ―[i]t was clear the prosecutor‘s comment was aimed
solely at the persuasive force of defense counsel‘s closing argument, and not at
counsel personally. We have found no impropriety in similar prosecutorial
remarks.‖ (People v. Zambrano (2007) 41 Cal.4th 1082, 1155.) Nor do we find
any impropriety here.

           C. Instructions

               1. Motive Instruction
       The jury was instructed with CALJIC No. 2.51, regarding motive, as
follows: ―Motive is not an element of the crime charged and need not be shown.
However, you may consider motive or lack of motive as a circumstance in this
case. Presence of motive may tend to establish guilt. Absence of motive may tend
to establish innocence. You will therefore give its presence or absence, as the case
may be, the weight to which you find it to be entitled.‖
       Defendant contends the instruction is unconstitutional because it allows the
jury to determine guilt based wholly on evidence of motive and also shifts the
burden of proof to defendants to show absence of motive to establish innocence.
―Assuming that [the first] claim affects defendant‘s substantial rights and therefore
that we may address the claim on the merits despite defendant‘s failure to object at


                                         27
trial [citation], this court has consistently rejected the claim, and defendant
presents no reason for us to adopt a different course here. [Citations.] Defendant
also argues that the instruction reduced the prosecutor‘s burden of proof by
requiring defendant to prove the absence of a motive in order to establish his
innocence. Again, assuming that this claim, which was not raised below, affects
defendant‘s substantial rights and is therefore reviewable [citation], we reject the
claim on the same basis that we have rejected it in the past.‖ (People v.
Sattiewhite (2014) 59 Cal.4th 446, 474, fn. omitted.)

                2. Consciousness of Guilt Instruction
       Defendant asserts three instructions pertaining to consciousness of guilt
given at his trial were ―constitutionally infirm‖ because they allowed the jury to
―convict him based on improper inferences‖ and were also ―impermissibly
argumentative.‖9 We have consistently rejected identical challenges to these


9       The instructions as given were as follows:
        ―If you find that a defendant attempted to persuade a witness to testify
falsely, such conduct may be considered by you as a circumstance tending to show
a consciousness of guilt. However, such conduct is not sufficient by itself to prove
guilt, and its weight and significance, if any, are matters for your determination.‖
(CALJIC No. 2.04.)
        ―If you find that an effort to procure false or fabricated evidence was made
by another person for the defendant‘s benefit, you may not consider that effort as
tending to show the defendant‘s consciousness of guilt unless you also find that
the defendant authorized such effort. [¶] If you find defendant authorized that
effort, such conduct is not sufficient by itself to prove guilt, and its weight and
significance, if any, are matters for your consideration.‖ (CALJIC No. 2.05.)
        ―If you find that a defendant attempted to suppress evidence against himself
in any manner, such as by destroying the evidence, or by concealing evidence,
such attempt may be considered by you as a circumstance tending to show a
consciousness of guilt. However, such conduct is not sufficient by itself to prove
guilt, and its weight and significance, if any, are matters for your consideration.‖
(CALJIC No. 2.06.)



                                          28
instructions. (People v. Lopez (2013) 56 Cal.4th 1028, 1075, and cases cited.)
Defendant provides us with no persuasive reason to reconsider the issue.

               3. Adoptive Admission Instruction
       Defendant contends the trial court improperly instructed the jury on
adoptive admissions because the jailhouse letter to which the instruction pertained
was improperly admitted and also because, as a cautionary instruction for his
benefit, it should not have been given over his objection. He asserts the
instruction ―focused the jury‘s attention on . . . the prosecution‘s highly improper
yet highly influential letter from the informant.‖
       Over defendant‘s objection, the jury was instructed with CALJIC No.
2.71.5 as follows: ―If you should find from the evidence that there was an
occasion when the defendant[:] one, under conditions which reasonably afforded
him an opportunity to reply; two, failed to make a denial in the face of an
accusation, expressly directed to him or in his presence, charging him with the
crime for which such defendant now is on trial or tending to connect him with its
commission; and three, that he heard the accusation and understood its nature, then
the circumstance of his silence and conduct on that occasion may be considered
against him as indicating an admission that the accusation thus made was true. [¶]
Evidence of an accusatory statement is not received for the purpose of proving its
truth, but only as it supplies meaning to the silence and conduct of the accused in
the face of it. Unless you find that the defendant‘s silence and conduct at the time
indicated an admission that the accusatory statement was true, you must entirely
disregard the statement.‖
       Inasmuch as we have concluded the admission of the letter was proper, we
necessarily reject defendant‘s claim, premised on the asserted inadmissibility of
the letter, that it was error to give the instruction. Defendant‘s remaining



                                         29
argument—that a trial court cannot give CALJIC No. 2.71.5 should a defendant
object to it—misreads People v. Carter (2003) 30 Cal.4th 1166, on which he
relies. In Carter, we rejected defendant‘s argument that trial courts have a sua
sponte duty to give CALJIC No. 2.71.5 and held ―a trial court must give CALJIC
No. 2.71.5 only when the defendant requests it.‖ (Carter, at p. 1198, italics
added.) Carter did not say that the trial court cannot give the instruction if the
court determines it is warranted. To the contrary, we specifically observed: ―Trial
courts may certainly [give CALJIC No. 2.71.5] if they think it best to do so. But,
. . . courts are required to so instruct only at a defendant‘s request.‖ (Ibid.)
       Accordingly, a trial court may give the instruction, whether or not
defendant requests it, if it believes the instruction will be helpful to the jury. (See
People v. Pensinger (1991) 52 Cal.3d 1210, 1268 [noting that this instruction and
the instruction on admissions are ―intended to help the jury . . . determine‖
whether such admissions were made].) Moreover, as we held in People v.
Richardson (2008) 43 Cal.4th 959, 1021, the court may do so even over a
defendant‘s objection.
       Given the letter was admitted into evidence and the jury would have to
consider it, the trial court properly determined the instruction would guide the jury
in assessing its evidentiary value, if any. Had the court not given the instruction,
the jury might well have been left at sea regarding the relevance and significance
of the letter. By implication, the trial court rejected defendant‘s argument that the
instruction would be more prejudicial to him than beneficial to the jury. We
conclude the trial court acted within its discretion in giving the instruction.




                                          30
       2. Penalty Phase Claims

           A. Permitting a Fourth Penalty Trial
       Defendant contends the trial court abused its discretion when, pursuant to
section 190.4, subdivision (b), the trial court granted the prosecution‘s motion for
a fourth penalty trial. We see no abuse of discretion.
       Section 190.4, subdivision (b) provides in pertinent part: ―If the trier of
fact [at the penalty trial] is a jury and has been unable to reach a unanimous
verdict as to what the penalty shall be, the court shall dismiss the jury and shall
order a new jury impaneled to try the issue as to what the penalty shall be. If such
new jury is unable to reach a unanimous verdict as to what the penalty shall be, the
court in its discretion shall either order a new jury or impose a punishment of
confinement in state prison for a term of life without the possibility of parole.‖
       Preliminarily, we note that, although there were four penalty trials in this
case, only two of them were either required by or granted as a matter of discretion
under the provisions of section 190.4, subdivision (b). Defendant‘s first penalty
phase jury deadlocked, dividing 11 to one in favor of a death verdict. Under the
statute, the prosecution was entitled to a second penalty phase trial as a matter of
right. (Ibid. [providing that, if first penalty phase jury is unable to reach a verdict,
the court ―shall order a new jury impaneled to try the issue as to what the penalty
shall be‖].) Consequently, a mistrial was declared and a second penalty phase jury
impanelled. The second penalty phase jury did not result in a hung jury. Rather, it
returned a death verdict, but that verdict was reversed by the trial court and a new
trial granted based on defendant‘s allegation of juror misconduct. The third
penalty phase jury, required after the new trial motion was granted, deadlocked,
also dividing 11 to one in favor of a death verdict.
       The prosecution moved for a fourth penalty trial. Although it was the
fourth penalty trial sought, for purposes of section 190.4, subdivision (b), it would


                                           31
have been only the second retrial of the penalty phase.10 Defendant opposed the
motion, arguing that a fourth penalty trial was unprecedented; life in prison
without parole was sufficient punishment for defendant; the prosecution‘s case
was not ―going to get any better‖ if a new penalty trial were granted, while the
defense case would improve; and the court should consider the testimony of
defendant‘s relatives at the prior penalty trial, which defense counsel characterized
as a plea to ―End this. Let us go on with our lives.‖ The prosecutor responded
that the nature of defendant‘s crimes justified the death penalty and a new penalty
trial. He also pointed out that, of the 36 jurors who had sat in the three penalty
trials, 34 had voted for death.
       In ruling on the motion, the trial court acknowledged that section 190.4,
subdivision (b) called upon it to exercise its discretion. The court stated it was
guided by the concept of whether a new trial would be ―in furtherance of justice,‖
which required it to balance ―the constitutional rights of the defendant with the
interests of society as a whole as represented by the People. It also necessitates an
examination of the nature of the offense, a weighing of the evidence, consideration
of the possible harassment and burdens imposed upon the defendant, and the
likelihood that additional evidence will be presented at trial.‖
       The court rejected economic considerations as a factor in deciding whether
to grant a new penalty trial because ―[i]t is the decision of the District Attorney to
allocate public resources,‖ and if either side requested a trial by jury, ―it is the
constitutional duty of the court to provide a proper forum.‖ The court found that
consideration of the number of jurors that had voted for the death penalty—34 out

10     Thus, we do not reach, and express no opinion regarding, whether a fourth
penalty trial could be granted under the statute where the three earlier trials had
resulted in deadlocked juries.



                                           32
of 36—was proper. The court observed that the only significant evidence in
mitigation was that defendant had no prior criminal record. Regarding the
circumstances of the crime, the court ―determine[d] that there is substantial
evidence on which a jury could base a verdict of death.‖ The court acknowledged
neither side had represented it would present new or additional evidence in a new
penalty trial. It found defendant would not be prejudiced by a new penalty trial
because ―[h]e is not going anywhere. He will either receive the death penalty or
be in prison for the rest of his life.‖ On balance, the court concluded ―legally there
is no justification to deny the People‘s request to retry the penalty phase of the
case,‖ but cautioned, ―[i]n the words of Mick Jagger, ‗This could be the last
time.‘ ‖
       Under the standard applicable to the court‘s ruling on the motion under
section 190.4, subdivision (b), ― ‗a trial court does not abuse its discretion unless
its decision is so irrational or arbitrary that no reasonable person could agree with
it.‘ ‖ (People v. McDowell (2012) 54 Cal.4th 395, 430.)
       Here, the trial court‘s decision was neither irrational nor arbitrary. The
court carefully laid out the factors that guided its exercise of discretion, considered
each one and determined, on balance, a retrial was warranted. The factors it
considered were both weighty and relevant to the exercise of its discretion:
whether, for example, evidence of the circumstances of the crime supported
imposition of the death penalty, the numerical breakdown of jurors voting for and
against the death penalty, the absence of defense evidence of more than a single
factor in mitigation, and the absence of prejudice to defendant. In short, the trial
court found a jury would be warranted in returning a death verdict for this
horrendous crime as to which defendant offered little in the way of mitigation and
as to which the overwhelming number of prior jurors had voted for death. We find
no abuse of discretion in the court‘s ruling.

                                          33
       On appeal, defendant contends the trial court gave undue weight to the
numerical breakdown of jurors voting for the death penalty. This is not accurate.
As our recitation of the trial court‘s ruling shows, this was simply one of several
factors the court considered, and one to which it did not assign dispositive or even
particular weight. More broadly, defendant asserts the trial court failed to give
sufficient weight to his constitutional right ―to be free from undue harassment
resulting from repeated or vexatious litigation.‖ Defendant did not expressly make
this argument to the trial court. Ordinarily it would be forfeited, except that the
court specifically stated it had considered harassment of defendant as part of its
balancing of interests. We presume that in finding no prejudice to defendant in
granting the request for a fourth penalty trial, the trial court impliedly found it
would not constitute harassment.
       Defendant‘s argument to the contrary is without merit. Defendant seeks to
import into section 190.4‘s abuse of discretion standard limitations from section
1387. ―Section 1387 . . . establishes that two dismissals pursuant to section 1385,
859b, 861, 871 or 995, bar retrial on felony charges except in limited
circumstances.‖ (People v. Hatch (2000) 22 Cal.4th 260, 270 [noting the statute is
sometimes denominated the ― ‗two-dismissal rule‘ ‖].) Under that statute, retrial is
permitted when, for example, ―substantial new evidence has been discovered by
the prosecution which would not have been known through the exercise of due
diligence at, or prior to, the time of termination of the action.‖ (§ 1387,
subd. (a)(1).) Defendant argues the ―failure to offer new evidence is particularly
important in the weighing process,‖ as if to suggest the absence of new evidence
by the prosecution should have precluded a fourth penalty trial.
       We reject defendant‘s attempt to limit the trial court‘s discretion under
section 190.4 with standards imposed in an entirely different statute. In the
circumstances here, neither a charge nor a special circumstance finding had been

                                          34
or would have been dismissed. Moreover, section 1387 was first enacted in 1872
while section 190.4 was first enacted in 1978. Certainly, had the Legislature
wished to import standards from the former statute into the latter it could have
done so, but it did not. As the trial court noted, defendant was not going
anywhere, unlike a noncapital defendant who might well regain his or her liberty
under the dismissal provisions of section 1387. We fail to see, and defendant fails
to persuasively explain, in what manner a penalty phase retrial in the
circumstances of this case constituted harassment. We affirm the trial court‘s
ruling.

              B. Limitations on Testimony by Defendant’s Family Regarding Penalty
          Defendant contends the trial court erroneously excluded testimony from his
relatives that his family did not wish to have the death penalty imposed upon
him.11 He asserts the evidence was admissible under section 190.3 because it
related to his character. (§ 190.3 [at penalty phase evidence may be presented by
either side ―relevant to aggravation, mitigation, and sentence including, but not
limited to‖ evidence of ―the defendant‘s character, background, history, mental
condition and physical condition‖].) Additionally, he argues the evidence should
have been admitted as ―execution impact evidence‖ admissible to counter the
prosecution‘s victim impact evidence.
          Regarding defendant‘s second argument, we have consistently held that the
―impact of a defendant‘s execution on his or her family may not be considered by
the jury in mitigation.‖ (People v. Bennett (2009) 45 Cal.4th 577, 601, and cases
cited there.) In Bennett, we also rejected any construction of section 190.3 that

11      The testimony was excluded before his second penalty trial. When the
issue arose again before his fourth penalty trial, the trial court adopted the prior
ruling.



                                          35
would permit admission of such execution impact testimony, an argument
defendant revives. (Bennett, at p. 602.) He fails to persuade us to reconsider our
conclusions.
       Regarding defendant‘s argument that the evidence related to his character,
we have held ―evidence that a family member or friend wants the defendant to live
is admissible to the extent it relates to the defendant‘s character, but not if it
merely relates to the impact of the execution on the witness.‖ (People v. Smith
(2005) 35 Cal.4th 334, 367.) Thus, in Smith we concluded the trial court erred
when it excluded testimony by the defendant‘s tutor that death was not appropriate
because, in her assessment, the defendant was essentially a child and the execution
of children was inappropriate. We explained: ―Because Foster had . . . a
significant relationship [with defendant], and her opinion was based on a feature
of defendant‘s character that she had personally observed (his emotional and
social immaturity), we conclude that her opinion was relevant and admissible.‖
(Ibid.) Unlike Smith, defendant fails to explain to what aspect of his character
testimony by family members regarding the death penalty would have applied.
Trial counsel merely argued that the fact members of defendant‘s family, who
were also members of the victims‘ family, were willing to testify why they did not
want defendant executed ―speaks volumes about who the defendant is,‖ and was
―reflective of the kind of person they saw [him] as.‖
       Nevertheless, even assuming the trial court erred in excluding the
testimony, any error was harmless beyond a reasonable doubt. (People v. Smith,
supra, 35 Cal.4th at p. 368 [applying the federal harmless error test, pursuant to
Chapman v. California, supra, 368 U.S. 18, to the erroneous exclusion of
testimony that the defendant should not receive the death penalty].) Both
defendant‘s aunt and cousin testified they, and the rest of his family, wanted to
maintain a relationship with him in the future. Obviously, a prerequisite to such a

                                           36
continuing relationship would be that defendant remain alive. As one of
defendant‘s attorneys observed about the scope of the trial court‘s ruling regarding
permissible testimony by family members, ―anybody with a relatively low I.Q.
would be able to figure out from the testimony that the ultimate conclusion is that
they don‘t want him to be executed.‖ Accordingly, any error in excluding
additional testimony was not prejudicial.

             C. CALJIC No. 8.88
       Defendant launches familiar challenges to CALJIC No. 8.88, which
addresses the jury‘s function in weighing the circumstances in mitigation and
aggravation and in deciding the appropriate penalty. As we have consistently held
with respect to these claims, the instruction is not impermissibly broad, vague or
misleading, and does not fail to properly advise the jury how to determine when
death is the appropriate penalty. (People v. McCurdy (2014) 59 Cal.4th 1063,
1111; People v. Dykes (2009) 46 Cal.4th 731, 816–817.)

             D. Lethal Injection
       Defendant contends execution by lethal injection violates the Eighth
Amendment‘s proscription against cruel and unusual punishment. As we have
previously explained, this claim, which does not implicate the validity of the death
judgment itself, but a process which may or may not exist when defendant‘s
sentence is carried out, is premature and therefore not cognizable on appeal.
(People v. Dykes, supra, 46 Cal.4th at p. 820; People v. Abilez (2007) 41 Cal.4th
472, 536.)

             E. Delay Between Death Sentence and Execution
       Defendant contends the delay between his sentence and its execution
attributable to the process of postconviction review violates the Eighth
Amendment‘s proscription against cruel and unusual punishment as well as


                                         37
international law. We have consistently rejected this claim and see no reason to
reconsider our earlier precedents. ― ‗One under judgment of death does not suffer
cruel and unusual punishment by the inherent delays in resolving his appeal. If the
appeal results in reversal of the death judgment, he has suffered no conceivable
prejudice, while, if the judgment is affirmed, the delay has prolonged his life.‘ ‖
(People v. Richardson, supra, 43 Cal.4th at p. 1037.)

           F. Constitutional Challenges to the Death Penalty Statute
       Defendant raises a number of challenges to the death penalty statute we
have consistently rejected. He fails to persuade us to reconsider our previous
precedents. Thus we again conclude:
       ―The death penalty statute does not unconstitutionally fail to adequately
narrow the class of murderers eligible for the death penalty.‖ (People v. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 468.)
       The death penalty statute is not unconstitutional because it allows the jury
to consider the circumstances of a defendant‘s crime under section 190.3, factor
(a). (People v. Bryant, Smith and Wheeler, supra, 60 Cal.4th at p. 469.)
       The death penalty statute is not unconstitutional ―for failing to require proof
beyond a reasonable doubt that aggravating factors exist, outweigh the mitigating
factors, and render death the appropriate penalty. [Citations.] ‗The federal
Constitution is not violated by the failure to require a penalty phase jury to reach
unanimity on the presence of aggravating factors . . . . [Citation.]‘ [Citation.] The
high court‘s decisions in Apprendi v. New Jersey (2000) 530 U.S. 466 and Ring v.
Arizona (2002) 536 U.S. 584 do not change this result.‖ (People v. Boyce (2014)
59 Cal.4th 672, 723–724.) Moreover, defendant‘s constitutional rights were not
violated by the absence of written findings by the jury regarding aggravating
factors. (Id. at pp. 724–725.)



                                         38
       ―The federal Constitution does not require intercase proportionality
review.‖ (People v. Boyce, supra, 59 Cal.4th at p. 725.)
       ― ‗At the penalty phase, the jury properly may consider a defendant‘s
unadjudicated criminal activity and need not agree unanimously or beyond a
reasonable doubt that the defendant committed those acts.‘ ‖ (People v. Banks
(2014) 59 Cal.4th 1113, 1207.)
       ― ‗The use of restrictive adjectives, such as ―extreme‖ and ―substantial,‖ in
the statute‘s list of potential mitigating factors does not render it
unconstitutional.‘ ‖ (People v. Banks, supra, 59 Cal.4th at p. 1207.)
       ―The court need not instruct the jury that mitigating factors can be
considered only in mitigation, or to omit mitigating factors that do not apply to
defendant‘s case.‖ (People v. Boyce, supra, 59 Cal.4th at p. 724.)
       ―Because capital defendants are not similarly situated to noncapital
defendants, California‘s death penalty law does not deny capital defendants equal
protection by providing certain procedural protections to noncapital defendants but
not to capital defendants.‖ (People v. Williams (2013) 58 Cal.4th 197, 295.)
Consequently, the law is not unconstitutional for failing to require jurors to agree
on what facts are true or important, or what aggravating circumstances apply, or to
articulate reasons for selecting a death sentence. (People v. McCurdy, supra, 59
Cal.4th at pp. 1110–1111.)
       ―The death penalty as applied in this state is not rendered unconstitutional
through operation of international law and treaties.‖ (People v. Williams, supra,
58 Cal.4th at p. 295.)

           G. Cumulative Error
       Defendant contends the cumulative weight of errors occurring at his trial—
particularly the admission of the jailhouse letter, the instruction concerning motive



                                           39
at the guilt phase, the granting of the fourth penalty trial, and imposition of
limitations on family member testimony at the penalty phase, combined with the
constitutional infirmities of the death penalty statute—require reversal of his
convictions and sentence. We have rejected all these claims of error with the sole
exception of his argument regarding limitations on family member testimony at
the penalty phase where, assuming error, we found no prejudice. Accordingly,
there is neither individual nor cumulative prejudice that requires reversal.
                                    CONCLUSION
       The judgment is affirmed.
                                                   WERDEGAR, J.


WE CONCUR:

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




                                          40
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Charles
__________________________________________________________________________________

Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S076337
Date Filed: June 1, 2015
__________________________________________________________________________________

Court: Superior
County: Orange
Judge: Everett W. Dickey and William R. Froeberg

__________________________________________________________________________________

Counsel:

R. Clayton Seaman, Jr., under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Adrianne S. Denault and Peter Quon, Jr.,
Deputy Attorneys General, for Plaintiff and Respondent.




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

R. Clayton Seaman, Jr.
P.O. Box 12008
Prescott, AZ 86304
(928) 776-9168

Peter Quon, Jr.
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92186-5266
(619) 645-2038




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