Filed 1/26/15 P. v. Goodwin CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B197574

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA052683)
         v.

MICHAEL FRANK GOODWIN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court for the County of Los Angeles.
Teri Schwartz, Judge. Affirmed.


         Gail Harper, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Michael R. Johnsen and
Louis W. Karlin, Deputy Attorneys General, for Plaintiff and Respondent.


                                   _______________________________
                                       SUMMARY
       In the early morning of March 16, 1988, Mickey and Trudy Thompson were shot
and killed in the driveway of their Bradbury Estates home, as they were leaving for work,
by two gunmen who left the scene on bicycles and were never apprehended. More than
13 years later, defendant Michael Frank Goodwin was arrested in Orange County for the
murders. After the Orange County prosecution was dismissed for improper venue,
defendant was prosecuted in Los Angeles County, and in January 2007, a jury convicted
him of the first degree murder of both victims, and found true special allegations of
multiple murders and that the murders were committed by means of lying in wait.
       The prosecution adduced evidence of bitter lawsuits between defendant and
Mr. Thompson over business matters in the three years preceding the murders, lawsuits
that ended badly for defendant. Many witnesses testified to defendant’s expressed hatred
of Mr. Thompson and defendant’s numerous threats, repeated to many witnesses over a
lengthy period of time, that he intended to kill Mr. Thompson and hurt his family. There
was eyewitness testimony placing defendant, with binoculars, in a car (with another
unidentified man) parked in the Thompson neighborhood a few days before the murders.
And there was evidence defendant and his wife liquidated assets and left the country on a
newly purchased yacht five months after the murders.
       The defense case challenged the eyewitness identification of the man in the parked
car and tried to prove the murders were the result of a robbery gone wrong rather than a
contract “hit,” and that investigators made numerous errors and improperly focused their
efforts on defendant rather than undertaking an unbiased search for the truth.
       Defendant challenges his convictions on many grounds. He contends the case
should have been dismissed, or the Los Angeles District Attorney’s office should have
been recused, or the two prosecutors should have been removed, because of the seizure,
retention and review of attorney-client privileged documents.
       He contends the evidence was insufficient for conviction, claiming the eyewitness
identification of defendant as the man in the parked car was not credible evidence of a



                                             2
connection between defendant and the killers or of any agreement to murder the
Thompsons.
       He contends the long delay in prosecuting him was unjustified and prejudicial,
violating his state and federal constitutional rights to due process of law.
       He asserts a possible Pitchess1 violation.
       He asserts error in the admission of expert testimony on financial transactions that
occurred after Mickey Thompson won a large judgment against defendant.
       He asserts the trial court improperly admitted evidence that Mr. Thompson
expressed fear of defendant, evidence of defendant’s bad character, and evidence of
Mr. Thompson’s good character.
       He contends the trial court erred in excluding evidence, including evidence of
potential third party culpability; evidence that Mickey Thompson had purchased a large
quantity of gold just before the murders; and evidence that another individual had failed
three polygraph examinations but nevertheless investigators failed to pursue him as a
suspect.
       He asserts error in giving a conspiracy instruction; error in instructing the jury it
could consider a witness’s level of certainty when evaluating eyewitness identification;
and error in instructing the jury it could consider defendant’s departure from the country
on a yacht five months after the murders as evidence of flight and consciousness of guilt.
       He asserts multiple forms of prosecutorial misconduct.
       He contends dismissal is required because of outrageous government conduct
“from the beginning of the investigation to verdict,” claiming among other things that
Mickey Thompson’s sister, Collene Campbell, improperly influenced the investigation
through her personal connections with the Orange County District Attorney.
       And he asserts reversal is required based on the cumulative effect of multiple
errors in the case.



1      Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).

                                              3
      Our review of the record discloses no prejudicial error, and we affirm the
judgment.
                                        FACTS
1. Background
      Mickey Thompson was a well-known race car driver who set a land speed record
in his youth. By the 1980’s, Mr. Thompson was running a successful sports promotion
company that sponsored indoor stadium races, principally with off-road, four-wheeled
vehicles. Defendant ran a similar business, Stadium Motor Sports Corporation,
promoting stadium motorcycle racing. In 1984, the two men entered into a business
venture together to promote stadium motor sports events. The deal involved a stock
transfer agreement with the parties combining their businesses and sharing profits and
losses, 70 percent to defendant and 30 percent to Mr. Thompson.
      Within months, the business relationship deteriorated. Defendant refused to
advance monies for an event according to the 70/30 formula, and then claimed
Mr. Thompson had defaulted, entitling him (defendant) to take over Mr. Thompson’s
company.2 Mr. Thompson sued defendant and his company in October 1984. In
February 1986, the trial court entered judgment for Mr. Thompson totaling over $790,000
in damages, prejudgment interest and attorney fees.
      In the years after the litigation began, Mr. Thompson continued to successfully
promote motor sports events in various arenas, while defendant’s business suffered.
Defendant had originated the idea of staging motorcycle events at the stadium in
Anaheim, and had done so successfully for years. But after 1987, Gregory Smith, the

2       Charles Stewart Linkletter, who worked for defendant in 1984 while the business
venture with Mr. Thompson was being negotiated, overheard a conversation between
defendant and another executive of defendant’s company while driving them to
defendant’s Laguna office. Mr. Linkletter described the conversation as a 45-minute
diatribe by defendant to the effect that “he was going to screw Mickey out of his
business” and “rip him off.” Then defendant told Mr. Linkletter, “Stew, if you ever say a
word about this conversation to anybody, I will fucking kill you.” A few days or weeks
later, Mr. Linkletter drove from Laguna to the Thompson residence to get
Mr. Thompson’s signature on a contract.

                                            4
Anaheim Stadium executive director, stopped doing business with defendant and hired
Mr. Thompson and another company to produce all of Anaheim’s motor sports events,
including the event defendant previously produced. (One of several reasons for the
change was that defendant’s company was in bankruptcy.) Defendant was very upset
when he received the news that his proposal for those events had been rejected in favor of
Mr. Thompson. Anaheim Stadium executives announced the change at a press
conference in August 1987, and the events held in January 1988 were very successful.
       Defendant had held an exclusive contract for motor sports events at the Rose Bowl
in 1985 and 1986, but the Pasadena City Council selected Mr. Thompson’s company to
hold an event in May 1987, which also made defendant very angry. Mr. Thompson was
also selected to run an event in the summer of 1988, but the murders prevented that.
       Meanwhile, Mr. Thompson’s vigorous attempts to collect on his judgment against
defendant were largely unsuccessful. Mr. Thompson’s lawyers prevented defendant from
using private sureties to satisfy the appellate bond requirement, but were not able to find
any assets, which appeared to have been transferred. In September 1986, defendant
changed the name of his company and filed for bankruptcy protection. In November
1986, defendant filed for personal bankruptcy.
       Mr. Thompson’s lawyer, Philip Bartinetti, described the litigation as one of “the
most vigorously contested I’ve ever been involved in.” Another of Mr. Thompson’s
lawyers, who was responsible for attempting to collect the judgment, described the
litigation as “absolutely beyond a doubt the most bitter and contentiously fought lawsuit
I’ve ever been involved in.”
       The judgment for Mr. Thompson was affirmed on appeal and the Supreme Court
denied review on January 29, 1988, a few months before the murders. In another lawsuit
defendant filed in Orange County against Mr. Thompson and his company, the court
ordered summary judgment in favor Mr. Thompson on March 2, 1988, about two weeks
before the murders.
       After the bankruptcy filings in September and November 1986, Mr. Thompson
had wanted to settle the matter, and there were extensive settlement negotiations.

                                             5
Apparent deals were reached a dozen times, but then defendant “would change something
at the last minute and it would fall apart.” Mr. Thompson’s lawyer concluded defendant
was not negotiating in good faith.
       After the bankruptcy filing of defendant’s company, now named Entertainment
Specialties, Inc. (ESI), the bankruptcy examiner recommended appointment of a trustee
for ESI. Jeffrey Coyne was appointed trustee in late June 1987. He discovered “there
was no operating company to run,” as “the operating part of the company had been sold
by E.S.I.” to a company named Supercross, Inc. (SXI), a company owned and operated
by defendant’s wife and a man named Charles Clayton. When he examined the books
and the transfer to SXI, Mr. Coyne found “lots of gaping holes” and determined that
much of what he saw in ESI and the transfer to SXI “was all done for the purpose of
moving the business without paying the creditors,” the most vocal and the most interested
of whom was Mr. Thompson. Mr. Coyne discovered that SXI was in default on
payments to ESI for assets transferred to SXI, and believed the activity of defendant, his
wife, ESI and SXI to be fraud affecting Mr. Thompson’s rights as a creditor, as ESI’s
primary assets had been shifted away.
       Mr. Coyne took steps to recover the assets, and SXI eventually paid $385,000 of
the outstanding $500,000 owed. Mr. Coyne pursued recovery of the remaining amount
and refused to acquiesce in defendant’s efforts to have various bankruptcy estate assets
paid to his wife and parents. At a meeting a few weeks before the murders, defendant,
trembling and in a “black rage,” approached within inches of Mr. Coyne’s face and said,
“You better lighten up or things will get bad,” and “If you fuck up my life, I’ll fuck up
yours.” Describing his experience with the ESI bankruptcy, Mr. Coyne said it was “the
highest level I had ever seen of acrimony, anger, intensity, resentment and rage.”
2. Defendant’s Threats Against Mr. Thompson
       We summarize now the evidence of the multiple occasions on which defendant
expressed his hatred of Mr. Thompson and his intent to kill him during the years
preceding the murders.



                                             6
       a. William and Nina Wilson
       In January or February 1988, William and Nina Wilson hosted dinner at their
home for defendant and his wife. (Mr. Wilson was general manager of Jack Murphy
Stadium in San Diego, and had also managed the Rose Bowl; he had worked with both
Mr. Thompson and defendant on various motor sports promotions.) When Mr. Wilson
asked defendant how he was doing, defendant replied, “Terrible.” Defendant was angry
and said: “Fucking Thompson is killing me. He’s taking everything I’ve got. He’s
destroying me. I’m going to take him out.” When Mr. Wilson responded, “Nobody wins
that one. Mickey’s dead and you’re in prison,” defendant replied, “Oh, no,” and “I’m too
smart for that. They’ll never catch me.” Nina Wilson heard the conversation and
corroborated her husband’s account, saying that defendant said, “I just hate him,” and
repeated, “I’m going to take him out.” Both the Wilsons believed defendant was serious.
Mr. Wilson was “very upset” and Ms. Wilson was “shock[ed].” When he saw how
shocked the Wilsons were, defendant said, “Well, you know I’m just kidding. I could
never do anything like that.”
       b. Gregory Smith
       Mr. Smith, the Anaheim Stadium executive, was subpoenaed to testify at a
bankruptcy court hearing in 1987. This was at a time when decisions were being made or
had recently been made about the award of the Anaheim motorcycle event to
Mr. Thompson. Mr. Smith was sitting at the back of the courtroom before the hearing
when defendant sat down behind him and said, “You don’t know what you’re doing to
me. You’ll be sorry for this. I’ll be back.” Mr. Smith considered defendant’s statement
threatening. He had had several conversations with defendant before, and in every one,
defendant was “unhappy” and “mad that we would consider not having him come back
and put on the supercross event.” Defendant was “confrontational and very, very upset,”
but the courtroom conversation “was the first where I considered it threatening when I
was being told that I would regret this decision.”




                                             7
       c. Scott Hernandez
       Scott Hernandez worked for defendant’s company from the spring of 1985 to late
1987, when defendant closed the office. The office walls were thin, and the offices of
defendant and Mr. Hernandez shared a wall, so Mr. Hernandez could overhear
discussions in defendant’s adjoining office. In late 1987, Mickey Thompson’s name
came up frequently and was a source of tension in the office. “When Mickey Thompson
was brought up by [defendant], it was usually in a rageful manner. Not geared towards
the office personnel, but him expressing his anger and frustration . . . .”
       On one occasion, Mr. Hernandez heard defendant on the telephone with his
attorneys in the Thompson case, and then heard a ruckus that “sounded like books flying,
hitting the wall, and [defendant] going into a rage.” Mr. Hernandez heard defendant say,
“I’ll kill that mother fucker. I’ll kill that mother fucker.” Mr. Hernandez described
defendant’s voice level as “in anger, just livid anger.” (In 2002, Mr. Hernandez told a
detective that this incident occurred in February or March 1987, rather than late 1987.)
       d. Cheryl Sarantis
       Cheryl Sarantis was an employee of defendant’s company in 1986 and 1987, until
the office closed, working on advertising and marketing. She heard defendant “ranting
and raving” about Mr. Thompson on a regular basis, every day that defendant was in the
office. On one occasion, she heard lamps crashing against the wall of the conference
room, followed by defendant’s ranting and raving about Mr. Thompson. She also
recalled defendant saying that he “was going to destroy Mickey Thompson.” (When
police interviewed Ms. Sarantis, she said the word “destroy” was her characterization of
what defendant said, and not a direct quote from defendant.)
       e. Kathy Weese
       Kathy Weese, who was then known as Kathy Johnson, worked for defendant for
six to eight months as a secretary in 1986. She often answered the telephone when
Mickey Thompson called. Defendant and Mr. Thompson “were always talking about the
money situation.” On one occasion, Mr. Thompson phoned defendant, and Ms. Weese
overheard defendant say, twice, “I’m going to take you out.” The two continued to

                                              8
argue, and Ms. Weese heard defendant say, “It would cost me $500 and a motor vehicle
to have you taken out and I will take you out.” (Ms. Weese did not tell police about that
statement when she was interviewed in 1997, but the detective who interviewed her heard
Ms. Weese testify to the same effect at a preliminary hearing in Orange County in
2002.)3
       f. Barron Wehinger
       Barron Wehinger, 16 years old in the fall of 1984, lived with his stepfather, Tom
Villelli, in Durango, Colorado. Defendant visited the Durango residence, and discussed
with Mr. Villelli his “court battle” with Mr. Thompson. Mr. Wehinger heard defendant
tell his stepfather, “I’ll kill him.” According to Mr. Wehinger, defendant said he was
going to kill Mr. Thompson “[i]f he [defendant] lost his power to run the superbowl of
motorcross, his million-dollar-a-year income.” Mr. Wehinger heard defendant say, “I can
get it done for 50 grand.” Mr. Villelli replied, “I could get it done for 20 grand,” and
defendant said, “I don’t want to get you involved, Tom.” Mr. Wehinger explained all this
was vivid in his memory because, around the same time, defendant had visited and
offered to help Mr. Wehinger and his brother with their motocross careers, and “[w]hen
somebody offers you a chance to ride superbowl of motorcross, you listen to every word
they say, and when I heard that, I’ll never forget it.”
       Mr. Wehinger did not mention anything about the $50,000 when he testified at the
preliminary hearing in this case, and he never mentioned anything about a hit man to the
police or to the prosecutor. In his previous testimony, Mr. Wehinger said that the only
thing he heard defendant say was “he [(defendant)] would have him [(Mr. Thompson)]




3      Ms. Weese had a criminal history. She used aliases and had several theft-related
convictions. She had walked away from a Colorado halfway house (because she was
beaten and her daughter was attacked) to come to Los Angeles. Defendant had
Ms. Weese arrested, claiming she embezzled money. She was acquitted of that charge,
but spent eight months in custody awaiting trial and later was sent back to Colorado to
complete her sentence there. She told police, “If I can help you get this guy, I’ll do
anything,” and referred to defendant as a “son of a bitch.”

                                              9
taken care of if he lost.” In 2003, Mr. Wehinger told police he heard defendant talking in
late 1987, or perhaps 60 or 90 days before the murders, rather than in 1984.
        g. Penn Weldon
        In November or December 1987, Penn Weldon, a private investigator, met
defendant to discuss possible investigative work for defendant. Defendant was “very
upset and angry” during the hour-long meeting, and said he had been “fucked royally” by
Mickey Thompson; that he was so angry he had recently thrown a chair through the
window of his house; and “that Mickey had ruined his life and he wanted to get even with
him.” Defendant wanted Mr. Weldon to investigate Mr. Thompson’s attorney, Philip
Bartinetti, and place listening devices in Mr. Bartinetti’s home and cars. Mr. Weldon
refused to do that, but agreed to and did perform other investigative actions relating to
Mr. Bartinetti.
        h. Karen Dragutin
        In the months preceding the murders, Karen Dragutin was at a Laguna Beach
restaurant with a man who knew defendant very well, and they were joined by defendant
and his wife. Defendant’s jovial attitude changed when the conversation turned to
lawyers and lawsuits and Mickey Thompson. Defendant became angry, said he “was
getting screwed by the lawyers”; “[t]he only way to get out of the mess was to take care
of Mickey Thompson”; and “the only way he was going to get out of it is if Mickey
Thompson died.” Ms. Dragutin also testified defendant “was talking about a boat and
going to Bermuda. And it was still in the context of that conversation. So my conclusion
was he was going away.” Defendant’s statement about the boat and going to Bermuda
“was in the same part of the conversation as the taking care of this mess and Mickey had
to die . . . .”
        i. Gregory Keay
        Gregory Keay was defendant’s cousin. At a family gathering two or three months
before the murders, defendant said that “Mickey was out to get all of his money and
before that would happen, he would have him wasted.” (When police interviewed
Mr. Keay in 1997, Mr. Keay did not use the term “wasted”; he told the detective that

                                             10
defendant said, “That partner of mine is rubbing me the wrong way, he won’t be rubbing
me much longer.”)
       j. Dale Newman
       In the fall of 1987, Dale Newman and a friend flew to Mexico to go diving, and
met defendant, who sent a 60-foot boat to the beach to pick them up. That evening, they
were on the bridge deck with defendant and his wife. Mr. Newman overheard defendant
and his wife commiserating over a legal matter. Mr. Newman did not recall his exact
words, but defendant told his wife, in a threatening tone, in effect “that nothing bad was
going to happen because he was going to take care of the party involved.”
       k. John Williams
       John Williams was a deputy marshal in Orange County from 1986 through 1988.
He was assigned to levy on defendant’s Mercedes automobile in connection with
litigation involving Mickey Thompson. He went to defendant’s residence and, in the
course of the removal of the Mercedes, defendant said, “Mickey Thompson is fucking
dead. He doesn’t know who he’s fucking with.” Both defendant and his wife used an
extraordinary amount of “vicious language” about Mr. Thompson, and both repeated that
Mr. Thompson “was going to have something happen to him.” Mr. Williams reported the
incident to his supervisor, and telephoned Mr. Thompson’s attorney to report the
successful levy and the threatening comments.
       Mr. Williams testified that the incident occurred about three months before the
Thompson murders, but documentation showed a writ to levy was issued on June 4,
1986; a levy worksheet was dated June 11, 1986; and a receipt for the towing service
used for the defendant’s car was dated August 14, 1986. Mr. Williams, when shown
these documents, continued to insist the incident did not occur in August 1986. (After
the bankruptcies were filed in September and November 1986, Mr. Thompson would
have been unable to levy on the Mercedes, and in January 1988, defendant surrendered
his Mercedes to a representative of the bankruptcy trustee without incident.)




                                            11
       l. Nancy Lucia
       Nancy Lucia (formerly Wilkinson) worked for the Thompsons on weekends for
several years and was a personal friend of Trudy Thompson’s. Ms. Lucia came to the
Thompsons’ home in the fall of 1987 to show Trudy Thompson her wedding
photographs. While they were in an upstairs room looking at the photographs, Mickey
Thompson came upstairs, out of breath and frantic. He was “almost kind of yelling,
saying ‘[c]lose the window. Close the drapes. [Defendant] could have a sniper out there
right now.” The drapes were open at the time.
       m. Joel Weissler
       Joel Weissler was the Thompsons’ nephew. He met defendant in 1984 or 1985, at
a race promoted by his uncle, where the Thompsons introduced defendant as their “new
partner.” Mr. Weissler talked with defendant for about five minutes, and remained in his
company for the four-hour racing event. Mr. Weissler also spoke briefly to defendant at
a later event.
       In late 1987 or early 1988, Mr. Weissler overheard defendant on the telephone.
Mr. Weissler was talking on the telephone with Trudy Thompson, and could hear Mickey
Thompson in the background, speaking with defendant on another phone line.
Mr. Weissler heard defendant say, in a loud, threatening tone, “You will never see a cent
of it. I’m going to hurt you and your family.” Mr. Thompson responded, “Leave my
family out of it.”
       About a month later, Mr. Weissler was visiting the Thompsons’ home. He saw
Mickey Thompson and heard defendant’s voice on the speakerphone, saying: “You and
your family won’t see a penny of this. I’ll get you. I’m going to hurt you,” and “I’m
going to hurt your family.” Mr. Thompson was very agitated and repeatedly said, “You
stay away from me. You stay away from my family.”
       At the time of the Thompsons’ funeral, Mr. Weissler told a detective he had heard
defendant make threats, but he was not asked for any details about the threats. In August
1991, he and an uncle went to a police station in Los Angeles and met with the police to
find out what was going on with the investigation, as they were “impatient for something

                                           12
to happen.” When Mr. Weissler was asked whether he mentioned the phone
conversations he had heard to the police at the August 1991 meeting, he said he did not
recall and he thought what he had to say was very redundant.
       n. Lance Johnson
       Lance Johnson was a friend and neighbor of the Thompsons. Years after the
murders, he was at the Santa Ana federal courthouse with Mickey Thompson’s sister,
Collene Campbell. Defendant walked by, and Mr. Johnson heard him whisper to
Ms. Campbell, “You’re going to get yours, bitch.”4
3. The Setting for the Murders and Other Pre-murder Facts
       The Thompsons lived on Woodlyn Lane in a hilly neighborhood in “horse
country,” with an irregular network of streets and private lanes or roads where “people
get lost all the time.” Several driveways led out of the Thompson property, one of them
to Woodlyn Lane, which was electronically gated. There was a locked gate between
Woodlyn Lane and Royal Oaks, and a bike path below Royal Oaks. The home was also
accessible via Mt. Olive Drive.
       Ronald and Tonyia Stevens lived on Mt. Olive Drive. Several days before the
murders, near midday, as Mr. Stevens drove past the horse corral next to his home, he
noticed a car parked on the wrong side of the street. The person in the driver’s seat was
looking through binoculars in the direction of the nearby grammar school. Mr. Stevens
pulled into his driveway at the far end of the corral. His wife and daughter were there,
and they told him the people in the car had been there for five or ten minutes.
Mr. Stevens asked his wife to call the police and walked through the corral to investigate.
He approached from behind the car, a blue-green, rusted and dirty 1970’s Chevy station
wagon with Arizona plates.



4       At defendant’s trial, the prosecutor asked Mr. Johnson if he recalled telling the
police that the words he heard defendant say were, “I’m going to get you, too.”
Mr. Johnson said it was “a very threatening remark to Collene Campbell,” but he did not
recall stating those words to the police.


                                            13
       From a distance of eight feet, Mr. Stevens saw two men in the car. The one in the
driver’s seat, a large man with “light-ish reddish hair,” wearing a cap on the back portion
of his head, was holding binoculars. Mr. Stevens looked at the driver’s face for about a
minute, mostly from his left profile; he “wanted to see who it was,” because “the person
didn’t belong there looking towards the school.” As Mr. Stevens approached, the driver
turned around and looked directly at him, and then drove away. Mr. Stevens made a
mental note of the driver’s face and tried to remember it. He also wrote down the license
plate of the car on a business card. (Mr. Stevens told police that he was only able to view
the driver from the side; at trial he was asked if he remembered telling the detective that
he had only gotten within 15 or 20 feet of the driver, but he did not recall saying that. He
also did not remember telling the detective he was not sure which man had the
binoculars.)
       Tonyia Stevens also saw the men in the car, “an old clunker station wagon with
Arizona plates,” two or three days before the murder, between noon and 3:00 p.m. She
was driving her daughter home from school, and turned left into her driveway. As she
passed the car, she looked directly at the men and got a face-on view of the driver, who
was just putting down binoculars. She and her daughter went into the house and talked
about whether to call the police, because that type of car was out of place in the area, and
she was concerned about child abduction. Then her husband arrived, told Ms. Stevens to
call the police, and went back outside. Ms. Stevens followed him through the corral
toward the car. She came within 10 or 15 feet of the car, and saw the driver’s face when
he looked in her direction. After the driver sped away, Ms. Stevens called the sheriff’s
department from a telephone in the garage to report the suspicious-looking car; she
wanted the police to know “in case anything happens that we have information.”
       Mr. Stevens said that, even with binoculars, the Thompson residence and Woodlyn
Lane would not have been visible from the car’s location.
       Kathy Weese later testified that while she was working for defendant’s company,
on one occasion she saw a station wagon in the parking lot, an older station wagon with



                                             14
out-of-state plates, that had never been in the parking lot before and that she never saw
again.
4. The Murders
         The prosecution sought to show that Mickey Thompson was executed after
watching in horror as the same gunman first put a bullet through his wife’s head, and that
this was exactly how defendant wanted it to happen. The evidence was as follows.
         a. Allison Triarsi – the witness to the murders
         Fourteen-year-old Allison Triarsi witnessed the murders. The Thompson home
was across the street from and down the hill below the Triarsi residence. At 6:00 a.m. on
the day of the murders, Miss Triarsi was taking a shower and heard “horrible shrieks and
a lot of screaming” from a high-pitched voice. She also heard multiple gunshots. Her
mother came in, grabbed her, and pushed her to the floor of the dining room. It had floor
to ceiling windows, so she could see everything that happened in front of the Thompson
home.
         Miss Triarsi saw Mickey Thompson toward the top of the Thompson driveway, by
the garage door. The Thompson minivan was in the driveway with the doors open.
Trudy Thompson was towards the bottom of the downward sloping driveway. There was
a man with Mr. Thompson who “had a gun and was directing him and making him go in
certain directions.” Miss Triarsi heard Mr. Thompson say, over and over, “Please don’t
kill my wife,” a statement that was directed to another man “at the bottom of the
driveway who had a gun and coming towards Trudy.” Mr. Thompson “was extremely
agitated in his actions. He was moving in an agitated way. He was pleading for Trudy’s
life. He was very upset. The man was holding the gun directing the gun at him.”
Mr. Thompson was limping and “holding his body in different locations at different
times,” “trying to stand, but he was struggling to do that.” It appeared Mr. Thompson
was trying to go to his wife, and the gunman was “hold[ing] him at bay with an
outstretched hand with the gun in his hand.”
         While Mickey Thompson was pleading with the gunman, Trudy Thompson was
on her knees at the bottom of the driveway with her hands “up and out to try to protect

                                            15
herself.” She said, “Please, please don’t kill me.” The gunman closest to Trudy
Thompson walked up close to her and was standing over her. Up to this point,
Miss Triarsi had not seen anyone shoot a gun. The gunman near Trudy then shot her in
the head. She fell to the ground and did not move. Miss Triarsi did not remember what
the gunman who shot Trudy did next, “because the next thing I remember Mickey is
getting shot.”
       Miss Triarsi saw Mr. Thompson trying to move toward his wife, “extremely upset;
screaming; crying,” and “[h]e ended up getting shot several times next.” “He was shot in
the direction of his torso/chest. I remember him grabbing his leg.” Miss Triarsi ran
outside down the driveway, because she thought Trudy might still be alive. Miss Triarsi
ran to her, but Trudy Thompson never moved and had blood all over her head. Miss
Triarsi wanted to go to Mickey Thompson, but then she “started to hear more gunshots.”
She was “very scared,” and hopped over a stone wall, ducked and waited there. Her
mother realized where she had gone and was halfway down the driveway, running
towards her, when the gunshots rang out. When the police arrived, “we were still
hiding.” Miss Triarsi never went up to the top of the driveway where Mr. Thompson was
lying. She did not see either of the gunmen escaping, but she heard a clicking noise, like
a 10-speed bike with thin wheels. The sound came from the direction of the back way
out of the Thompson property, and grew fainter and fainter.
       b. Lance Johnson – the witness to the escape
       A neighbor of the Thompsons, Lance Johnson, was wakened by five or
six gunshots. He ran to the window, and after 15 to 20 seconds of silence, he heard
Mickey Thompson loudly screaming, several times, “Please do not hurt my wife.” Then,
he heard another series of gunshots, followed by silence. He got out his gun, went to one
of his front windows, and saw two African-American males riding bicycles (English
racer bikes) down one of several driveways leading out of the Thompson property, this
one leading to the Thompsons’ barn and Woodlyn Lane. As they started down Woodlyn
Lane in front of his home, he yelled for them to stop, but they did not look in his
direction. He then fired a shot at them, but they just pedaled faster. One of them had a

                                             16
small bag (about 12 inches long and 4 inches wide) that “went up to a drawstring, . . .
more or less pear-shaped,” slung over his shoulder.
       c. Other witnesses to the escape
       Wilma Johnson was driving eastbound along Royal Oaks Drive North, at about
6:00 a.m., and saw two men with bicycles run in front of her van near the intersection
with Woodlyn Lane, causing her to brake suddenly. She saw one of them very clearly, a
“tallish” black man wearing a hooded sweatshirt. They were on foot, pushing 10-speed
bikes that looked new and shiny, and running diagonally across the street. They
disappeared through a break in the fence toward the bicycle path that ran parallel to
Royal Oaks on the other side of the fence.
       Claudette Freidinger was driving through Bradbury, “around 6:00-ish” in the
morning, on her way home from taking her son to work. She stopped at an intersection
on Royal Oaks. She saw two black men on good bicycles headed toward her, one with a
hood and one without, “really, really barreling through the intersection” without stopping
at the four-way stop. One of them looked in her direction. They were headed
southbound, toward the freeway. (When police interviewed her, Ms. Freidinger said her
son began work at 7:00 a.m., and expressed doubt about the involvement of the person
she saw based on the timing.)
       d. The escape route
       The escape route down the back side of the Thompson property to Woodlyn Lane
was “a very narrow declining paved road” that “curved and kind of wound” downhill,
leading to an electronically controlled gate at Woodlyn Lane, and then to Royal Oaks.
A bicycle would be the perfect vehicle for that road, because “two cars passing each other
would have great difficulty.” The gate was electronic, but could be easily opened
manually by applying pressure to one of the supporting arms. From there, at Woodlyn
and Royal Oaks, a bicyclist would be able to pass through a break in the wooden fence
bordering Royal Oaks, to the running and bike path below. The bike path intersected
Mt. Olive, a few blocks from access to the freeway.



                                             17
       e. The murder scene and initial investigation
       When the police arrived at the crime scene, they found Trudy Thompson’s body at
the base of the steep, downward sloping driveway, and Mickey Thompson’s body toward
the top of the driveway, close to the garage door. Both had fatal gunshot wounds to the
head, as well as gunshot wounds to their bodies. Trudy Thompson would have been
visible to and within speaking distance of Mickey Thompson. A van appeared to have
reversed into a retaining wall; its door was open, shattered glass from the driver’s door
was on the ground, and there was a bullet hole in the windshield.
       When criminalist Elizabeth Devine arrived a few hours later, she saw money and
jewelry in plain view on the van’s seat. She found shoe prints in several locations, some
of them from an area where miniature orange trees were planted; she also found freshly
cut orange peels in the same area. Deputy Sheriff Linda Arthur photographed a stun gun
that was in the driveway.5
       There was a wallet in Mickey Thompson’s pocket with hundreds of dollars in
cash. Trudy Thompson was wearing high-value gold and diamond jewelry, and there
was $3,700 in cash inside her purse in the van. There was no indication of any attempt to
remove property from either of the Thompsons, no sign of forced entry to the house, and
the house alarm was armed and had not been set off. The garage door was closed. There
was a safe inside the garage, but no indication it had been tampered with.
       Detective Reynold Verdugo found expended bullet projectiles and casings at
various locations at the scene, as well as two live rounds. Criminalist Manuel Munoz
determined that all of the expended cartridge casings from the scene were 9-millimeter
Luger caliber, and two firearms were used. Four expended casings and two live rounds
were from the same weapon; the other four expended casings were from a second
weapon. Two expended bullets removed from Trudy Thompson’s body, one removed
from the van’s passenger door, and one found under Mickey Thompson’s head, were

5     Kathy Weese later testified that she saw a stun gun in a box in a storage area of
defendant’s Laguna Beach residence while she was house-sitting there in 1986.


                                            18
fired from the same weapon. The others, found inside the garage, near the garage, to the
left of Mickey Thompson’s body and inside the van on the driver’s side, were from the
second weapon.
        Mickey Thompson suffered seven gunshot wounds, three to his stomach, one to
his hip, two to the back of his hand, and one to his head, behind his right ear. Trudy
Thompson suffered two gunshot wounds, one to her lower stomach, likely inflicted first,
which could have occurred while she was sitting in the van, and one to the back of her
head.
5. Defendant’s Actions Before and After the Murders: the Yacht and the Gold
        In December 1987, Diane Goodwin, defendant’s wife, indicated to a bank
representative that she was in the process of deciding on the purchase of a yacht. In
January 1988, Ms. Goodwin entered into a purchase agreement with Fraser Yachts for a
$400,000 yacht, and wrote a check serving as an earnest money deposit for the purchase.
A boat loan for Ms. Goodwin was approved on March 9, 1988. A seller’s closing
statement for the yacht was dated April 28, 1988, and a certificate of ownership dated
May 3, 1988, showed Ms. Goodwin as the owner of the yacht, named “Believe,” with a
mortgage of $200,000 encumbering the yacht.
        In May 1988, a coin dealer engaged in two transactions he said were with
defendant. He believed his initial contact with defendant was by telephone. He sold, in
the two transactions, almost $350,000 in gold coins, paid for by cashier’s checks signed
by defendant’s wife.
        On June 27, 1988, defendant brought the 57-foot yacht named Believe to a marina
in South Carolina, managed by Victor Utsey, for installation of bilge pumps and radio
equipment. The yacht was in the marina for about six weeks. After that outfitting, the
yacht would have been capable of sailing offshore, such as to the Turks and Caicos
Islands, or to the Bahamas and South America. The yacht was large enough for
transatlantic sail or anywhere in the world, if defendant had the capacity to produce
potable water, and it was small enough to sail into small waterways and inlets.
Two people could live on the boat for an extended period of time. On the second or third

                                            19
day of August, defendant unexpectedly asked Mr. Utsey to expedite the work. Mr. Utsey
did so, and defendant sailed away from the marina.
       In May 1991, a boat surveyor named Frank Magee was retained by Maryland
National Bank to repossess defendant’s yacht. He spent three to four weeks in
Guatemala searching for it. During that time, he had a phone conversation with
defendant, who told him “he would never find his boat.” Mr. Magee located the yacht
and defendant on the Dulce River in Guatemala, and repossessed the yacht for the bank.
6. The Investigation and Arrest
       Detective Michael Griggs of the Los Angeles County Sheriff’s Department was
initially in charge of the murder investigation. He retired in January 1992. (One of
defendant’s claims is that Detective Griggs’s investigation was “derailed” by interference
from Mickey Thompson’s sister.) Sergeant John Yarborough of the “unsolved” unit led
the investigation after Detective Griggs retired, and in 1995, Detective Mark Lillienfeld
was assigned to take over the investigation.
       In 1997, Detective Lillienfeld participated in the production of an “America’s
Most Wanted” show, hoping to identify the two actual perpetrators of the murders. (The
detective was also aware that an “Unsolved Mysteries” episode about the murders had
aired in 1988 and several times since then.) At various times in his investigation of
defendant, Detective Lillienfeld sought assistance from the DEA, the FBI, Customs, and
other law enforcement agencies; sought and received authorization for a wiretap of
defendant’s telephones; and put defendant under physical surveillance.
       In 1998, Detective Lillienfeld attended a meeting with the sheriff and the then-
district attorney, Gil Garcetti. Mr. Garcetti rejected the case against defendant as having
insufficient evidence for a successful prosecution. (Goodwin v. Superior Court (Apr. 23,
2004, G031285) [nonpub. opn.].)
       In 1999, defendant had a conversation with Randy Garell, the owner of a store
specializing in firearms and outdoor apparel and equipment. The two men knew each
other from an earlier business relationship. Defendant came to Mr. Garell’s shop, and
wanted to know how guns were traced; Mr. Garell told him. (Defendant told Mr. Garell

                                               20
he was trying to investigate the Thompson case because he was a suspect, and defendant
“may have” also said that the detective (presumably Detective Lillienfeld) “was saying
some things that were not true about weapons [defendant] may have owned.”) Then, in
early 2000, defendant came to the store again and asked if stun guns were traceable.
Mr. Garell said stun guns were not traceable, and did not fall under the same restrictions
as guns.
       Detective Lillienfeld also interviewed Gail Moreau-Hunter in March 1999.
Ms. Moreau-Hunter lived with defendant in Colorado in 1991 and 1992. Ms. Moreau-
Hunter told Detective Lillienfeld “she was privy to a conversation in which [defendant]
took responsibility for the murders,” but subsequently told the detective that defendant
“never actually took credit for the crime but merely left that impression with her.”
(Goodwin v. Superior Court, supra, G031285, at p. 9.) (Ms. Moreau-Hunter testified at
the preliminary hearing in Los Angeles – but not at trial – that sometime in 1992,
defendant showed her a tape of an “Unsolved Mysteries” episode reenacting the
Thompson murders and said, “Look what I’ve done and I got away with it,” and “I hired
two black teenagers to carry out the assassinations.”)
       In early 2001, Detective Lillienfeld interviewed Ronald and Tonyia Stevens for
the first time. They gave the detective the information about the man with binoculars
parked in front of their house a few days before the murders, as described in part 3, ante.
(Mr. Stevens had called the police several times, not long after the murders, saying he
thought he had some information about the Thompson murders; he was told a detective
would call him back, but no one ever did.)
       In March 2001, Mr. Stevens viewed a photographic lineup, or “six-pack.” He had
described the man with binoculars as “a big man with reddish colored hair and a ruddy
complexion.” He later testified that he saw the person who had been in the car in front of
his house in the six-pack. He and his wife were asked to view a live lineup, separately,
and both of them identified the defendant.
       In December 2001, Detective Lillienfeld obtained a search warrant for defendant’s
home, seizing thousands of documents. Defendant was arrested and charged by the

                                             21
Orange County District Attorney with the 1988 murders and with conspiracy to commit
murder.
       On April 23, 2004, the Court of Appeal issued a writ ordering the trial court to
dismiss the case for lack of venue.6 The court “emphasize[d] that any new evidence, not
previously considered by the Los Angeles District Attorney prior to its rejection of the
case, can – and should be – given to the Los Angeles District Attorney for
reconsideration of that decision, or to the Office of the Attorney General for its review
and consideration.” (Goodwin v. Superior Court, supra, G031285, at p. 34.)
       The Los Angeles District Attorney charged defendant with the murders, and after
a six-day preliminary hearing in October 2004, defendant was held to answer and
arraigned on October 28, 2004.
7. The Trial
       The trial court denied successive motions to dismiss the case, to recuse the Los
Angeles District Attorney’s office, and to remove the two prosecutors handling the case –
as delineated in detail post in connection with defendant’s contention these rulings were
erroneous. Trial began in October 2006.
       In addition to the facts already described, other evidence was adduced as follows.
       a. Karen Stephens-Kingdon’s testimony on financial records
       Karen Stephens-Kingdon was a certified public accountant, an investigative
auditor for the Orange County District Attorney’s office, and a certified fraud examiner
and internal auditor. She had previously testified as an expert forensic accountant or
investigative auditor. In early 1992, she was asked to look at the financial records of
defendant and his wife to determine “the source of assets and funds and the ultimate


6      Defendant had previously sought a writ, after denial of his motion to recuse the
Orange County District Attorney, alleging a conflict of interest due to that official’s
personal relationship with Mickey Thompson’s sister. The Court of Appeal denied that
petition, allowing defendant “to pursue his assertion that Orange County lacked any
disinterested purpose in prosecution.” (Goodwin v. Superior Court, supra, G031285, at
pp. 2-3.)


                                             22
disposition of those assets and funds.” She examined thousands of documents from
1986, 1987 and 1988, and found evidence that funds that had been in defendant’s name
“ended up in Diane Goodwin’s name.”
       Ms. Stephens-Kingdon testified that while the yacht Diane Goodwin purchased
was in her name, it was “purchased with funds that had been commingled for so many
years that this boat purchase was for both Mr. and Mrs. Goodwin.” The Goodwins’
residence in Laguna Beach, which they purchased and lived in together, appeared to have
been purchased with commingled assets, and was liquidated (converted into cash or other
liquid assets) in 1988.
       Ms. Stephens-Kingdon testified in particular about two investments – JGA
Whitehawk and Desert Investors – that were in the name of Diane Goodwin in 1988.
Ms. Goodwin put what Ms. Stephens-Kingdon considered to be “commingled funds” of
both the Goodwins into those investments in her own name. Then, there was a
distribution from JGA Whitehawk to Diane Goodwin for $365,000 on May 6, 1988, and
a few days later, a portion of those funds was used to purchase $275,000 in gold coins,
and $10,000 was wired offshore. Similarly, $215,000 was distributed from Desert
Investors to Diane Goodwin in May 1988; she transferred $140,000 to an account
offshore and purchased $75,000 in gold coins.
       In short, “funds that were originally commingled and invested end[ed] up going
offshore or to purchase gold coins, cash or traveler’s checks.” Ms. Stephens-Kingdon’s
opinion was based on early tax returns, the home in both the Goodwins’ names that was
liquidated in 1988, and financial and banking records “that were in both of their names
and then the records show that it all funnels into Diane Goodwin’s name and then . . . the
funds go offshore.” She also based her opinion in part on correspondence purporting to
be from defendant. One of the letters stated defendant “was handling the entire [Desert
Investors] transaction and not to discuss it with Diane because he was handling it” (even
though the entirety of the Desert Investors account was in Diane Goodwin’s name);
another said certain items should be put in Diane Goodwin’s name because of the



                                            23
Thompson issue. (This testimony was admitted only to show the basis for Ms. Stephens-
Kingdon’s opinion.)
       Ms. Stephens-Kingdon also reviewed bank statements showing that on or about
March 16, 1988 (the date of the murders), there was a $20,000 withdrawal from Diane
Goodwin’s account, likely as a cashier’s check or cash as there was no personal check.
Ms. Stephens-Kingdon was unable to trace that money; the bank “had no supporting
documents for their record.”
       b. Evidence of a robbery motive for the murders
       The defense adduced evidence intended to suggest a robbery motive for the
murders. Eric Miller, a friend of Mickey Thompson’s, was with Mr. Thompson the night
before the murders. Mr. Thompson was talking to Lee Haslam about investments.
Sheriff’s Detective Rene Laporte interviewed Mr. Miller about a month after the murders,
and took notes of the interview. According to those notes (Detective Laporte had no
independent recollection of the interview), Mr. Miller told the deputy that “he heard
Mickey Thompson say he had taken possession of a valuable item and named . . . a
specific dollar amount.” Counsel asked if Mr. Miller “actually use[d] the words ‘taken
possession,’ ” and Detective Laporte said, “Yes.” (On cross-examination, he testified his
notes were a paraphrasing of the conversation with Mr. Miller.) The notes became part
of a report that was given to Detective Griggs, who was then managing the investigation.
Detective Laporte did not, and was not directed to, look into Mr. Thompson’s financial
records to see if he could match up the dollar amount specified with any sort of deposit or
outgoing notation in those records.
       Sandra Johnson (Lance Johnson’s wife) saw the two “very dark” men riding
racing bikes down Woodlyn Lane, and told police that one of them “was carrying a white
canvas bag, shopping bag size.” At trial, Ms. Johnson described the bag as “[a] small like
drawstring bag,” “10, 12 inches,” “not a great big backpack, but something smaller.”
Robert Wiborg, a coin dealer, testified that coins shipped via Brinks come in sealed
canvas bags, generally white, that look like a regular bank bag and usually have a metal
seal on the top.

                                            24
       A few weeks after the murders, Detective Gerald Jansen met Mickey Thompson’s
sister, Collene Campbell, and a locksmith at the Thompson home. Ms. Campbell had
asked Detective Jansen to accompany her while she had a locksmith break into the safes
in the Thompson home, so that the deputy could note what was in the safes. The
detective’s notes referred to damage to the safe in the garage; he wrote: “ ‘bolt bar bent.
Fresh marks on the locking wheel. Safe empty.’ ” His notes did not indicate whether the
locksmith created the damage or pointed it out to Detective Jansen, but he testified that
“to the best of my recollection, it was after he had opened the safe, that’s the way the safe
looked.” He said that if the damage he noted had been there when he arrived, he would
not have had the safe opened, and “would have called somebody out to look at it.”
Detective Jansen would make such notes “[s]o that if somebody says we damaged it more
than we actually did to open it, I could say how much we damaged it.” The safe in the
bedroom closet contained jewelry and two envelopes of money.
       c. The expert on eyewitness identifications
       The defense presented testimony from an expert on eyewitness identification,
Dr. Kathy Pezdek. She described the factors that influence the accuracy of eyewitness
identifications. Dr. Pezdek opined that a 13-year delay between seeing an individual and
identifying him “alone would render such an identification extremely dubious,” and
indeed that the probability of correctly identifying a person, seen one time very briefly,
after 11 months (much less 13 years) is zero. Dr. Pezdek also testified about suggestive
lineup and identification procedures, as well as the relationship between the accuracy of
an identification and the confidence of the witness in making it.
       d. The defense’s firearms expert
       The firearms expert for the defense, Jacobus Swanepoel, examined the ballistics
evidence and visited the crime scene. He determined the expended casings came from
two different firearms, but could not make that determination with respect to the fired
bullets. Based on the placement of expended cartridge cases in relation to expended
bullets, Mr. Swanepoel opined that both guns were fired at both victims, and Mickey
Thompson likely received his fatal head wound while he was lying down.

                                             25
       e. Investigation deficiencies and inconsistencies
       The defense produced evidence purporting to show deficiencies in the
investigation of the murders, as well as evidence of inconsistencies between the
testimony witnesses gave in court and their previous statements to police investigators.
              i. Investigative deficiencies
       Detective Griggs, the lead investigator until January 1992, obtained defendant’s
telephone records and set up a database, but did not do the same thing for Mickey
Thompson’s telephones (and neither did Detective Lillienfeld). Detective Griggs did no
financial investigation into defendant or Mickey Thompson or any Thompson family
member or employee. Detective Lillienfeld did not attempt to get financial or telephone
records of individuals employed in the Thompson home.
       There were notes in the original investigation about Arizona license plates on a car
related to a suspect other than defendant. Even after Ronald and Tonyia Stevens told him
about the Arizona license plate on the car in front of their house, Detective Lillienfeld did
not run the Arizona license plate noted in the investigative file through the computer
system, to find out if that license plate number was associated with a station wagon.
       Over the years, Detective Lillienfeld was privy to clues involving black men as
suspected shooters, but he never showed any photographs of African-American men to
any witnesses in the case. A hair was removed from the stun gun found at the crime
scene, but Detective Lillienfeld did not ask for DNA testing on it, nor did he submit the
fingernail clippings and scrapings taken from the Thompsons for testing. (The defense
eventually tested these items.)
              ii. Witness inconsistencies
       In addition to inconsistencies already noted, there were others.
       When Detective Lillienfeld first interviewed Allison Triarsi in 1997, she told him
that she thought the shooter could have been a white man; that she believed her
recollection was influenced by her mother; that it was possible Trudy Thompson was shot
while she (Allison) was running down her driveway; and that she had talked to a school
psychologist about the incident.

                                              26
       When Detective Lillienfeld first interviewed Tonyia Stevens in 2001, she said she
could not recall whether or not the car she saw parked in front of her home a few days
before the murders was occupied. She did not tell him that the person she saw in the car
reminded her of a childhood friend (as she did when she testified in court), and his report
of her interview took up “maybe two paragraphs.”
       Deputy Sheriff John Rodriguez, the first officer to arrive on the scene, interviewed
Lance Johnson (who saw the two black men leaving the scene) an hour or so after the
murders. Mr. Johnson told him he was awakened by gunshots and “about the same time”
heard Mickey Thompson screaming to the effect of “ ‘[d]on’t hurt his wife,’ or ‘help,’
screaming for help.” Mr. Johnson told Deputy Rodriguez that the shooting stopped and
then a few moments later there were several more shots, after which he went outside and
saw the bicyclists escaping. Detective Laporte interviewed Mr. Johnson that day, and
stated in his notes that Mr. Johnson “said he wasn’t sure whether he heard the gunshots
first or the yelling first.”
8. The Verdicts
       The jury convicted defendant of both counts of first degree murder on January 7,
2007, also finding the lying in wait and multiple murder allegations true. The trial court
imposed consecutive terms of life without the possibility of parole, and made other orders
not at issue on this appeal.
                                      DISCUSSION
       We address the issues in the order presented in defendant’s opening brief.7


7       After filing his opening brief, defendant requested judicial notice be taken of
(1) the transcript of the preliminary hearing held in Orange County in 2002; (2) the
docket and unpublished decision in Goodwin v. Superior Court, supra, G031285; (3) the
docket in People v. Dimascio (case No. G005903) (a case in which Mickey Thompson
testified (see pt. 9, post)); and (4) the grand jury testimony of Detective Lillienfeld. We
take judicial notice of item (2), the docket and unpublished opinion in Goodwin v.
Superior Court, as the trial court expressly referred to it in denying defendant’s request
for dismissal based on the delay in prosecuting defendant. We otherwise deny
defendant’s request. As to item (3), there is no dispute over the fact that Mickey
Thompson testified in the case, so judicial notice accomplishes nothing. As for the grand

                                            27
1. The Dismissal and Recusal Claims
       Defendant first contends the trial court erred in refusing to dismiss the case, to
recuse the district attorney’s office, and to remove the individual prosecutors. These
contentions are grounded on the seizure, retention and review of hundreds of attorney-
client privileged documents. We find no error in the trial court’s rulings.
       a. The factual and procedural background
       On December 13, 2001, police executed a search warrant for defendant’s home in
Orange County, seizing thousands of documents filling more than 120 bankers boxes.
On December 26, 2001, defendant’s then-attorney, Jeffrey Benice, wrote to the Orange
County prosecutor telling him the boxes of documents and computers seized contained
attorney-client privileged documents, and demanding appointment of a special master to
protect defendant’s privilege. The prosecutor declined, observing a special master was
required only when a search warrant sought documents in the possession or control of an


jury and preliminary hearing transcripts, defendant contends they “are relevant to the
issues of prosecutorial and police misconduct, . . . presentation of false evidence
manufactured by Detective Lillienfeld, and violation of [defendant’s] Sixth Amendment
right to counsel and attorney-client privilege by both the [Orange County District
Attorney] and the [Los Angeles District Attorney],” and “contain admissions by
Detective Lillienfeld, testimony contradicting his trial testimony and testimony
contradicting the positions taken by the [Los Angeles District Attorney] at trial.” (See
pts. 1 & 16, post.) If indeed they are relevant, they should have been presented to the
trial court in the first instance, and they were not. Defendant’s contention that the trial
court “examined and considered” the grand jury and preliminary hearing transcripts “and
made rulings, thus taking judicial notice of them” is not supported by the record. There is
nothing in the record to show the trial court “examined” these transcripts; there are
merely occasional arguments by counsel or testimony referring to the preliminary
hearing, or to testimony given at that hearing. “Reviewing courts generally do not take
judicial notice of evidence not presented to the trial court. Rather, normally ‘when
reviewing the correctness of a trial court’s judgment, an appellate court will consider only
matters which were part of the record at the time the judgment was entered.’ [Citation.]”
(Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; People v.
Preslie (1977) 70 Cal.App.3d 486, 492 [“as a general rule the court should not take such
notice if, upon examination of the entire record, it appears that the matter has not been
presented to and considered by the trial court in the first instance”].) That is the case
here.

                                             28
attorney. According to defendant, the documents were held by the Orange County
prosecutors for several months, copied and then most of them were returned to defendant.
       More than two years later, after the Court of Appeal found venue was improper in
Orange County, the copies of the seized documents were forwarded to the Los Angeles
District Attorney’s office. Defendant’s former counsel did not inform his trial counsel of
the attorney-client privilege issue, and his trial counsel did not discover it until she
reviewed the seized documents provided to her in discovery.
       The documents seized (copies of which were later reviewed by a special master
appointed by the trial court, as described post) included some 475 pages (by the
prosecution’s count) that were ultimately found to be attorney-client privileged
documents. The trial court agreed the material was privileged: “It is information
communicated to and from [defendant’s] lawyers; it’s information [defendant] has
communicated to his lawyers in letters back. It does involve his strategies and his
potential defenses to the charges.”
       Defendant made a series of motions seeking a remedy for the invasion of
defendant’s attorney-client privilege.
              i. The first motion to dismiss
       On December 9, 2004, defendant moved to dismiss the case, claiming intentional
violation of defendant’s attorney client privilege and citing the power of the court arising
from the due process clause to dismiss a case for outrageous conduct. Defendant claimed
that “[f]ew, if any” of the thousands of documents seized were named in the search
warrant, and submitted a sampling under seal of 35 documents that were obviously
privileged.
       The motion asserted the authorities were aware when they executed the search
warrant that many of the documents in defendant’s home office were privileged
documents. (Defendant told Detective Lillienfeld so when the detective served him with
a grand jury subpoena in March 2001, and defendant posted signs on his office door.)
The motion also asserted that Detective Lillienfeld procured the services of Thurston
Michael (Butch) Jones, who was working as an office assistant for defendant and later for

                                              29
attorney Benice, to provide daily updates “on activities relating to [defendant’s]
preparation of his defense,” including “reporting on issues he had learned during
attorney/client conferences.”
       At the hearing on March 17, 2005, the court stated, as to the 35 samples submitted,
“I can’t find any evidentiary value to those documents,” and noted that no evidence
presented at the preliminary hearing came from those documents. The court posed the
pertinent question as whether the Los Angeles District Attorney had evidence that came
from potentially privileged information. The prosecutor made no objection to a court
order precluding the prosecutor from presenting any evidence derived from potentially
privileged communications.
       Defendant orally requested recusal of the prosecutor as an alternative to dismissal,
arguing that the first time the Los Angeles prosecutors saw an obviously privileged
document, they were obliged to “close the book and to give it to the court, all
40,000 pages,” and seek appointment of a special master. The court rejected this notion,
observing that “the Orange County D.A.’s office probably should have [done something]
and they didn’t,” but the Los Angeles prosecutor was not made aware of the objections
that had been made in Orange County after the seizure, and had no obligation “three or
four years after the fact to then bring to the court’s attention the fact that there might be
some privileged material.”
       The court thus denied the motion to dismiss and the recusal request. But, since
there were hundreds of other privileged documents, the court ruled the defense could
present those to the court under seal, for review by the court or a special master. This
would ultimately provide the court with a means of enforcing its tentative remedy: that
no evidence derived from potentially privileged documents could be used. The court also
concluded a hearing would be necessary on the claim that Detective Lillienfeld had
interfered with attorney-client privilege by using Butch Jones to report on information
obtained in attorney-client conferences.




                                              30
              ii. The second set of motions
       On April 7, 2005, defendant filed motions under seal, including a motion to
dismiss for egregious governmental misconduct; a motion to recuse the district attorney’s
office based on due process, “the inherent conflict of interest created by the review of”
attorney-client privileged documents, and violation of defendant’s Fourth, Fourteenth,
Fifth and Sixth Amendment rights; and a motion for the return of illegally seized
documents under Penal Code section 1538.5. The court held numerous hearings, with the
following results.
       On April 27 and May 16, 2005, the court took testimony from Detective
Lillienfeld, Michael (Butch) Jones, and Attorney Jeffrey Benice with respect to
defendant’s claim that the case should be dismissed because Detective Lillienfeld used
Mr. Jones to obtain attorney-client privileged information. The trial court denied that
basis for defendant’s motion to dismiss, finding based on the testimony “no intentional
interference with the attorney/client privilege . . . .” Mr. Jones “did some running for
Mr. Benice; he did some copying for Mr. Benice and [defendant]. He may have looked
at some files and obtained some information.” But the court declined to categorize the
relationship “as one that is covered by the attorney/client relationship,” and saw no
“intentional act on the part of law enforcement to interfere with the attorney/client
privilege or to obtain privileged material.” “I agree that perhaps there was a question that
could have been asked or should have been asked. But that in no way causes me concern
such that I should find the sanction an appropriate remedy, particularly a dismissal.”
       On May 26, 2005, the Attorney General filed its opposition to defendant’s motion
to recuse the district attorney’s office, including a declaration from prosecutor Alan
Jackson. Mr. Jackson stated he was the only current employee of the district attorney’s
office who had reviewed the material obtained through the search warrant. He stated
that, to the extent any document he reviewed was protected by attorney-client privilege,
he had not disclosed it to anyone else, nor would he do so in the future. He further stated
no decisions were made, influenced, affected or impacted by the office’s possession of
any privileged document; the office had not and would not use any privileged

                                             31
information; all evidence introduced at trial would be derived from independent sources;
all pretrial and trial strategy had been and would be based on independent sources; “and
nothing obtained has had or will have any effect whatsoever on the decisions about the
scope and nature of the investigation and prosecution, about what witnesses to call (and
in what order), about what questions to ask (and in what order), about what lines of
defense to anticipate in presenting the case-in-chief, and about what to save for possible
rebuttal.”
       On June 2, 2005, the court denied defendant’s motion for recusal of the district
attorney’s office and prosecutors Alan Jackson and Pat Dixon. (The recusal motion was
based on the district attorney having seen both privileged documents and documents
asserted to be beyond the scope of the search warrant.) The court denied the motion
without prejudice, finding no showing of a conflict that would deprive defendant of a fair
trial. “The only thing I can say is that the People are in possession of privileged material,
that they have agreed . . . not to use . . . in any way and not to use any evidence obtained
as a result of that material in the trial.” The court said that “if circumstances change, or if
other facts are developed . . . I’m sure [the defense will] renew that motion and possibly
even [the] motion to dismiss, but at this point I’m going to deny the [Penal Code section
1424 (section 1424)] recusal motion.” (Under section 1424, a motion to disqualify a
district attorney “may not be granted unless the evidence shows that a conflict of interest
exists that would render it unlikely that the defendant would receive a fair trial.”) The
court also observed, as to the section 1538.5 motion for return of property, that the
defense had shown there were some materials that were “technically outside the scope of
the warrant,” shifting the burden to the prosecution. The court decided to appoint a
special master to determine which documents were privileged and which were beyond the
scope of the warrant.
       On January 25, 2006, the defense again moved, under seal, to dismiss the charges
based on egregious governmental misconduct, or in the alternative to recuse the entire
district attorney’s office, or to remove the individual prosecutors. The defense provided a



                                              32
detailed analysis of the privileged materials and why the case should be dismissed based
on the prosecutor’s access to the privileged documents.
       On February 6, 2006, the trial court again refused to recuse the entire district
attorney’s office, finding “that it wasn’t this D.A.’s office that committed this egregious
misconduct,” and the defense had not presented enough “to show that the entire D.A.’s
office needs to be recused in this matter . . . .” The court observed it had reviewed the
privileged material the special master had segregated. The court reiterated that “I don’t
believe under any scenario we are going to get to a recusal of the entire D.A.’s office,”
but that a hearing should be held on the possible recusal of the two prosecutors. (The
prosecutor had had no access to the sealed pleadings, and no opportunity to respond to
the defense claim that the prosecution’s theory of the case was altered in light of the
privileged information.) The court also reiterated its finding that “I don’t think that we
have egregious misconduct on the part of this prosecutorial agency such that the court
would have to dismiss the case as a sanction,” and indicated that “in a perfect world,
perhaps [prosecutor Jackson] should step aside.”
       At a hearing on February 15, 2006, on the recusal issue, prosecutor Jackson
reported that his office declined the court’s suggestion he step aside. The court found no
disabling conflict of interest under section 1424, but believed it had “the inherent
authority to disqualify a prosecutor who has been tainted by attorney/client privilege
material.” The court decided prosecutor Jackson should review the privileged documents
cited and analyzed in the defendant’s recusal request, so that he would have the
opportunity to demonstrate that the privileged material had already been disclosed to
others such that the court could find a waiver of the privilege.
       The prosecutor then filed, for a hearing on March 6, 2006, a detailed analysis of
the documents the special master concluded were privileged, arguing that “defendant has
not, and cannot, establish that he has suffered any prejudice as a result of [Deputy District
Attorney] Alan Jackson’s review of the claimed privileged documents.” The prosecutor
described the documents and categorized them as either (1) documents with no facial
indication that they were protected communications; (2) nonprejudicial as not pertaining

                                             33
to the Thompson murders; or (3) documents to which waiver applied because the subject
matter had been published in alternate, unprivileged sources. The prosecutor attached
various publications, including a transcribed interview from “America’s Most Wanted,”
as well as defendant’s memorandum to the producers of that television show, and
concluded defendant “has systematically published in almost every media forum
available his thoughts, theories, defenses, excuses, accusations, analyses and beliefs
surrounding the Thompson murders.”
       At the March 6 hearing, the court expressed doubt that it had inherent authority to
recuse the district attorney (as opposed to authority under section 1424), and ruled:
“[G]iven what the People have presented to the court by way of, No. 1, that there was a
waiver; No. 2, the issue of the documents being irrelevant and third argument that there
was no prejudice, . . . I think the People’s response addresses the court’s concerns and I
don’t know at this point that I’m prepared to go any further assuming I have inherent
authority to recuse the DA to enforce the order that I made earlier. I am not prepared to
go that way.” And, “even assuming I do [have inherent authority], . . . there has been no
substantial showing of prejudice which would warrant the court taking that next step
[removing prosecutor Jackson]. I think the remedy that I imposed earlier in these
proceedings is adequate.” And, “I think I can guarantee that the attorney-client
privileged material is not used.” “I am basically saying that based on what I have now,
all of the available information to me including now all of the information that I have
seen that is in the public domain — let me put it that way. Not that it is not privileged,
but it is information in the public domain and so based upon all of the available
information that I have as of this moment, I am not prepared to take a step that I think is a
drastic step that does implicate separation of powers arguments and is a remedy that I
would have been prepared to utilize in the appropriate case. This is not the appropriate
case given all of the available information I have before me and so that is where I am at.”
              iii. The motion to exclude witnesses’ testimony
       In May 2006, defendant filed a motion to exclude the trial testimony of
12 witnesses, including Phillip Bartinetti, Dolores Cordell, Jeffrey Coyne, and Karen

                                             34
Stephens-Kingdon – and in the alternative, again renewed its recusal and removal
motions. The named witnesses were the “financial witnesses,” and defendant argued that
“by calling the financial witnesses, the prosecutors would be changing theories of the
case based upon the content of [defendant’s] privileged documents [(the ones that
pertained to the ‘federal fraud litigation’)].” (In 1993, defendant was charged in federal
court with bankruptcy and loan fraud, and was ultimately convicted of making false
statements to a financial institution. According to defendant, some of the named
witnesses “were part of the driving force behind [defendant’s] prosecution for federal
crimes relating to his bankruptcy,” and they “will be the prosecutor’s main witnesses to
try to establish ‘motive’ for these murders.”) “The blueprint of his defense to the
financial allegations has been exposed. His thought processes and conduct relating to his
handling of the civil judgment and bankruptcy have been exposed. His right to testify on
his own behalf has been compromised as he is now going to have to face a prosecutor
who is armed with information that he received outside the bounds of the rules governing
fair trials.”
        The prosecutor challenged the defense to point to “anything that establishes that
the defendant has suffered a prejudice so bad that he cannot receive a fair trial if I call
any of those witnesses who deal with his financial status.”
        The court heard and denied defendant’s motion on June 20, 2006. The court
pointed out its earlier order on the prosecutor’s obligation not to use any privileged
material or any material derived from it. “So I assume that that order has been taken
seriously by the People. I assume that the People are calling witnesses that they were
planning on calling all along. And that they did not obtain any new information from
their accidental review of the privileged material. So correct me if I’m wrong on that.”
        The court concluded: “I think that the People’s position has actually a great deal
of merit based on what I have reviewed and what I ruled on in the previous litigation in
terms of whether or not they are able to comply with my order. I think they are. And the
remedy was that they were not permitted to use evidence obtained from the privileged
material. And they say they are not. [¶] And I guess until we get to a point during trial

                                              35
where the defense wants to renew their motion based on testimony, I don’t know what
else I can do pretrial in that regard. I mean it’s an unfortunate situation I think we all
agree. But we really kind of resolved this issue before. And I don’t think there is any
need for any additional sanction. Because that’s what is being requested here is that the
court exclude testimony. [¶] The court will not exclude testimony that’s otherwise
relevant at this trial. And it does appear that the financial motive is the motive in this
case. And the court doesn’t believe that there has been a sufficient showing to warrant
the recusal of these prosecutors from this case. But, again, the court has the ability to
monitor and enforce the court’s previous order. And that will be done.”
       b. The law
       We begin our discussion of the legal basis for rejecting defendant’s dismissal and
recusal claims with a few prefatory comments. We share the trial court’s recognition that
certain of the conduct that occurred in Orange County in connection with defendant’s
attorney-client privileged documents appeared to have been, in the trial court’s words,
“egregious misconduct.” We do not condone or countenance those actions. But
established principles of law govern our review of claims that a criminal proceeding
should be dismissed or prosecutors recused on that account.
       As our narration of the proceedings in the trial court shows, the court took great
care in its assessment of the circumstances surrounding the seizure, retention and review
of the privileged documents, entertaining renewed motions, engaging a special master,
and holding multiple hearings as the defense developed its evidence and theories. The
trial court gave meticulous attention to the evidence and arguments presented. In so
doing, it plainly appreciated the gravity of the underlying invasion of defendant’s
attorney-client privilege, and showed skepticism about claims of prosecutorial ignorance
of privileged matters. We have done so as well in our independent review of the record.
But in the end, we cannot gainsay the trial court’s conclusions that “it wasn’t this D.A.’s
office that committed this egregious misconduct,” and that the necessary showing of
prejudice to defendant’s right to a fair trial was absent.
       We turn to our discussion of defendant’s several different but related claims.

                                              36
              i. Dismissal for outrageous governmental misconduct
       Defendant contends the case should have been dismissed based on outrageous
governmental misconduct that violated his due process rights. He asserts the district
attorney was accountable for “the outrageous misconduct of the investigators and the
prosecutors, both in Orange County and in Los Angeles,” and the trial court erred in
considering only the Los Angeles prosecutor’s conduct. Specifically, defendant asserts
the district attorney was responsible for the conduct of Detective Lillienfeld of the Los
Angeles Sheriff’s Department, who headed the search team that seized the documents in
Orange County and who “could not have missed the sign on [defendant’s] home office
door asserting attorney-client privilege and directing police to his attorney . . . .”
Defendant argues that, just as the prosecutor is responsible for any nondisclosure of
favorable evidence under Brady v. Maryland (1963) 373 U.S. 83 (Brady), including
evidence known to anyone acting on the government’s behalf, the prosecutor here is
presumed to be responsible for the violation of defendant’s attorney-client privilege,
whether committed by government agents from Orange County or Los Angeles. And,
defendant says, dismissal is required whether or not he can demonstrate prejudice.
       Defendant is mistaken on all counts.
       First, we note the standard of review. “The determination of whether the
government engaged in outrageous conduct in violation of defendant’s due process rights
is a mixed question.” (People v. Uribe (2011) 199 Cal.App.4th 836, 857 (Uribe).) A
deferential standard of review applies to the factual determination of whether and to what
extent misconduct occurred. (Id. at pp. 857-858.) Whether the governmental conduct
“constitutes outrageous conduct in the constitutional sense of violating defendant’s due
process rights” is primarily a legal question. (Id. at p. 858 [“the trial court’s finding that
the governmental conduct was outrageous in violation of defendant’s due process rights
thereby warranting dismissal is subject to independent review”].)
       Second, where a defendant seeks dismissal for outrageous governmental acts,
“a showing of prejudice to defendant’s right to a fair trial [is] required and . . . the
absence of such a showing preclude[s] dismissal as a sanction for prosecutorial

                                               37
misconduct.” (Uribe, supra, 199 Cal.App.4th at p. 861; id. at p. 865 [prosecutor’s
misconduct “was certainly conscience-shocking in the sense that it involved false
testimony by a prosecutor in a formal criminal proceeding,” but “it did not involve ‘brutal
and . . . offensive’ conduct employed to obtain a conviction”; the defendant “was not
entitled to dismissal for outrageous governmental conduct shocking the conscience in
violation of substantive due process”]; see also United States v. Morrison (1981)
449 U.S. 361, 367, 362, 365-366 (Morrison) [the high court, while “not condon[ing] the
egregious behavior of the Government agents” – who met with the defendant without the
permission or knowledge of her counsel, disparaged her counsel and told her she would
face a stiff jail term if she did not cooperate – concluded that dismissal of the indictment
was “inappropriate where the violation . . . has had no adverse impact upon the criminal
proceedings”; “absent demonstrable prejudice, or substantial threat thereof, dismissal of
the indictment is plainly inappropriate, even though the violation may have been
deliberate”].)
       In this case, the trial court found there was no “egregious misconduct” by the Los
Angeles prosecutors in the first place. Specifically, the court found that “it wasn’t this
D.A.’s office that committed this egregious misconduct,” and that the Los Angeles
prosecutor was not made aware of the objections that had been made in Orange County
after the seizure, and so had no obligation “three or four years after the fact to then bring
to the court’s attention the fact that there might be some privileged material.”
Substantial evidence supported the trial court’s findings.
       It was undisputed that the Los Angeles District Attorney had nothing to do with
the search of defendant’s home. There was no evidence that prosecutors Jackson or
Dixon relied on any privileged materials to make any decision in the trial of the case (and
there was evidence otherwise, in the form of Mr. Jackson’s declaration). Mr. Jackson
also told the court at a hearing: “I looked at tons of stuff, and I don’t remember looking
at any attorney/client privilege stuff until [defense counsel] gave it to me. And it’s only
the items she’s given to me. I have not gone back and filtered through 60-odd boxes or
40-odd boxes of stuff to look for other things.”

                                             38
       The trial court later reviewed the privileged material the special master had
segregated, and reiterated its earlier finding of no egregious misconduct by the
prosecutors. Still later, the court repeated that once the case came to Los Angeles, there
had been no misconduct on the part of the Los Angeles District Attorney’s office.
Defendant identified no privileged document relied on by the prosecutors to his prejudice
(or at all), either at trial or on appeal.
       Defendant is left to argue that the prosecutor may be taxed, for purposes of a claim
of outrageous governmental misconduct, with actions taken or not taken by the Orange
County prosecutor’s office. There is no pertinent authority for that notion, and we reject
it. Defendant cites Brady and its progeny for the principle that the prosecutor is
responsible for disclosing evidence favorable to the defense, and that duty includes the
“duty to learn of any favorable evidence known to the others acting on the government’s
behalf in the case.” (Kyles v. Whitley (1995) 514 U.S. 419, 437; In re Brown (1998)
17 Cal.4th 873, 879 (Brown) [courts have focused on the “ ‘ “ ‘prosecution team,’ ” ’ ”
and “any favorable evidence known to the others acting on the government’s behalf is
imputed to the prosecution”].)
       But the legal authorities on outrageous government misconduct do not employ the
“prosecution team” principle, nor is there reason to do so. A Brady violation can be
remedied only by providing the defense with the exculpatory material. Without the
“prosecution team” principle, the prosecutor could “ ‘ “avoid disclosure of evidence by
the simple expedient of leaving relevant evidence to repose in the hands of another
agency while utilizing his access to it in preparing his case for trial,” [citation].’
[Citations.]” (Brown, supra, 17 Cal.4th at p. 879.)
       That principle has no logical application in the context of an outrageous
misconduct claim. Case authority likewise supports the conclusion that a prosecutor is
not chargeable with the outrageous misconduct of another agency. (See People v. Shrier
(2010) 190 Cal.App.4th 400, 405, 417 (Shrier) [dismissal was too drastic a remedy where
law enforcement agents intentionally eavesdropped on attorney-client privileged
communications; “[e]xclusion of overheard communications and any derivative evidence

                                               39
flowing therefrom” was the appropriate remedy; the prosecutor “was unaware of the
eavesdropping plan”]; Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 432
(Boulas) [“There is no suggestion in [Morrison, supra, 449 U.S. 361] that the
prosecutor’s office participated in the decision of the police officers to speak with the
defendant outside of the presence of her attorney. In contrast, the record before this court
contains substantial evidence of such participation on the part of a deputy district
attorney.”].)
       Defendant points out that the detective who headed the search team in Orange
County was a member of the Los Angeles Sheriff’s Department, and he “led the charge
that resulted in the wholesale seizure” of attorney-client privileged documents. But the
trial court expressly found the search warrant was properly executed. And while
defendant broadly claims the prosecutor’s “seizure, retention and review of the privileged
material” requires dismissal, he presents no argument supported by legal authorities for
the proposition that the warrant was improperly executed in the first instance.
       Even if we were to hold the Los Angeles prosecutors responsible for all that went
before, it would avail defendant nothing. “[A] showing of prejudice to defendant’s right
to a fair trial [is] required” to sustain a due process claim of outrageous government
conduct requiring dismissal. (Uribe, supra, 199 Cal.App.4th at p. 861.) Defendant cites
several California cases where dismissal of charges was upheld or required based on
flagrant interference in defendant’s attorney-client relationship. But in all of them, not
only was the prosecutor complicit in an intentional interference between attorney and
client, but prejudice appeared on the face of the matter.
       Neither factor applies here. In Boulas, for example, law enforcement officers,
with the tacit approval of the prosecutor, undermined the defendant’s relationship with
his attorney by telling the defendant that he had to fire his attorney and retain another
attorney in order to secure a plea bargain. (Boulas, supra, 188 Cal.App.3d at p. 427.)
“We find it to be beyond [peradventure] that the . . . course of conduct undertaken by law
enforcement officials actively caused irremediable harm to Boulas’s relationship with his
attorney and was, therefore, improper.” (Id. at p. 433.) Boulas points out that the high

                                             40
court in Morrison, which found dismissal an improper remedy in that case, “did not rule
out the possibility of ordering the dismissal of a case upon a proper showing of
prejudice.”8 (Boulas, at p. 431.) But there was no such showing here.
       Defendant argues that prejudice may be presumed where the privileged documents
to which the prosecutor has access “contain details of the defendant’s trial strategy,”
citing federal cases where government informants participated in attorney-client
conferences and provided the prosecution with confidential information about the
defense’s strategy or position. (E.g., United States v. Levy (3d Cir. 1978) 577 F.2d 200,
208 (Levy) [actual disclosure of defense strategy occurred; “[w]here there is a knowing
invasion of the attorney-client relationship and where confidential information is
disclosed to the government, we think that there are overwhelming considerations
militating against a standard which tests the sixth amendment violation by weighing how
prejudicial to the defense the disclosure is”].)
       The federal cases do not assist defendant. First, we need not follow federal
authorities other than the high court.9 Second, in this case the trial court did not find any


8       See also Barber v. Municipal Court (1979) 24 Cal.3d 742. There, an undercover
police officer posing as a codefendant attended confidential attorney-client conferences
with the other defendants (the district attorney knew he was a police officer and did not
inform defense counsel). This was a violation of the right to counsel, and there was
prejudice: “there was evidence that since the disclosure of [the officer’s] undercover
role, [the other defendants] had become reluctant to cooperate fully with their attorney.”
(Id. at p. 755.) Dismissal was the appropriate remedy: “Whether or not the prosecution
has directly gained any confidential information which may be subject to suppression, the
prosecution in this case has been aided by its agent’s conduct. [Codefendants] have been
prejudiced in their ability to prepare their defense. They no longer feel they can freely,
candidly, and with complete confidence discuss their case with their attorney.” (Id. at
p. 756.)

9      In any event, those authorities are split on the question whether a deliberate
attempt by the government to obtain defense strategy information or to otherwise
interfere with the attorney-defendant relationship through the use of an undercover agent
constitutes a per se violation of the Sixth Amendment. (See United States v. Danielson
(9th Cir. 2003) 325 F.3d 1054, 1070-1071, discussing cases; see also United States v.
Glover (9th Cir. 1979) 596 F.2d 857, 863-864 & fn. 10 [government agent’s “attempt to

                                              41
deliberate intrusion or “knowing invasion” by the Los Angeles prosecutor in the attorney-
client relationship, instead finding “they did not obtain any new information from their
accidental review of the privileged material.” Third, defendant fails to identify in his
opening brief any defense “strategy or position” that was revealed in the privileged
documents. By contrast, in Levy the court specifically identified the defense strategy
learned by the prosecutor.10
       Here, instead of pointing to any defense trial strategy or tactics that were revealed
in the privileged materials, defendant argues the trial court’s remedy – the order not to
use privileged information at trial – was “impossible to enforce,” and it was “unrealistic
to believe” the prosecutors did not use privileged information to their advantage.
Defendant points to “between 150 and 200 pages” of privileged documents relating to
defendant’s federal criminal case (not to the murders). That case involved alleged
bankruptcy fraud, and at the murder trial, the prosecutors called witnesses who testified,
as mentioned previously, about transactions undertaken to move defendant’s business
assets without paying the creditors, the transfer of assets to defendant’s wife, and so on.
Defendant cites the testimony of these witnesses as showing “at least one critical instance
of actual prejudice,” claiming the prosecutors used the privileged communications that

interfere with the attorney-client relationship, as reprehensible as it was,” did not amount
to a constitutional violation of the right to counsel; “the existence or nonexistence of
prejudicial evidence derived from an alleged interference with the attorney-client
relationship is relevant in determining if the defendant has been denied the right to
counsel”].)

10      In Levy, the government learned that the defense intended to dispute the credibility
of the government’s key witnesses, and “thereby necessarily became privy to the fact that
this was the only likely defense strategy that the prosecution had to anticipate.” (Levy,
supra, 577 F.2d at p. 208.) The government witnesses were two black men who claimed
to be present at a private club where drug transactions took place, and “[t]he defense
strategy obviously would be to discredit the black witnesses by attempting to establish
that blacks were never admitted to that private club. The government’s knowledge of this
planned strategy would permit it not only to anticipate and counter such an attack on its
witnesses’ credibility, but also to select jurors who would be more receptive to the
testimony of black witnesses against white ethnic defendants.” (Ibid.)


                                             42
pertained to the federal criminal proceedings “in formulating the prosecution’s case for
motive,” and “chang[ed] theories of the case based upon the content of [defendant’s]
privileged documents.” (The Orange County prosecutors charged defendant with
conspiracy and murder for financial gain, and defendant claims, without citing to any
particular documents, that his communications with his lawyer exposed the fallacy in the
notion that defendant stood to gain financially from Mr. Thompson’s death.)
       But this is pure speculation. Defense counsel admitted below that “I can’t say
whether [the prosecutors] read these documents and therefore changed their mind. I can’t
say if they just are a little bit more on the ball than the district attorneys in Orange
County. I can say that the appearance of impropriety is large.” Speculation, without
reference to any supporting evidence, does not suffice, and it seems obvious the question
of financial gain or its absence could be investigated and determined without regard to
privileged communications. Defendant points to nothing to show the prosecutors used
any privileged document, or evidence derived from a privileged document, and the
prosecutor avers none of the documents were used to make any prosecutorial decision.
As for the financial witnesses, they were intimately involved in the bankruptcy litigation,
thus accounting for their trial testimony. There was no showing they were privy to any
privileged documents, and defendant does not attempt to trace any testimony to a
privileged source. Dismissal cannot be based on unsupported speculation.11



11     Defendant also cites a Connecticut opinion, State v. Lenarz (2011) 301 Conn. 417,
where the court “conclude[d] generally that prejudice may be presumed when the
prosecutor has invaded the attorney-client privilege by reading privileged materials
containing trial strategy, regardless of whether the invasion of the attorney-client
privilege was intentional,” and the state may rebut that presumption by clear and
convincing evidence. (Id. at p. 425.) California cases do not so hold, and in any event, in
Lenarz, the court found both that the privileged materials “contained a detailed, explicit
road map of the defendant’s trial strategy” (id. at p. 451); “the defendant was prejudiced
by the prosecutor’s intrusion into the privileged communications” (id. at p. 442); and the
state had the burden to prove that any prejudice could be cured by a less drastic remedy
than dismissal (id. at pp. 443-444), which it could not do in that case (id. at p. 445). No
similar findings were made, or could have been made, here.

                                              43
       Defendant also cites Morrow v. Superior Court (1994) 30 Cal.App.4th 1252
(Morrow). There, the court held: “Where a prosecutor orchestrates courtroom
eavesdropping on a privileged attorney-client communication and the witnesses thereto
invoke the privilege against self-incrimination, the prosecution may not successfully
oppose a motion to dismiss on the ground that no prejudice has been shown.” (Id. at
p. 1258.) In those circumstances, “the court’s conscience is shocked and dismissal is the
appropriate remedy. Even when the issue is narrowed to a Sixth Amendment violation,
dismissal is still appropriate because here there is a ‘substantial threat of demonstrable
prejudice’ as a matter of law.” (Id. at p. 1251, citing Morrison, supra, 449 U.S. at
p. 365.) This case bears no comparison to Morrow; here, the prosecutor engaged in no
misconduct, and indeed demonstrated to the satisfaction of the trial court that nothing in
the privileged materials was or would be used to the prejudice of defendant. (See Shrier,
supra, 190 Cal.App.4th at pp. 405, 417 [exclusion of overheard communications and any
derivative evidence was the appropriate remedy for eavesdropping on attorney-client
communications where prosecutor was unaware of the eavesdropping plan].)
       In sum, substantial evidence supported the trial court’s conclusion that the
prosecutors here engaged in no misconduct, and that in any event their review of
attorney-client privileged material did not result in the prejudice to defendant that is
necessary to justify the sanction of dismissal. Our independent review of the record
confirms the absence of any “outrageous conduct in the constitutional sense of violating
defendant’s due process rights . . . .” (Uribe, supra, 199 Cal.App.4th at p. 858.) And
there was no showing of any use of privileged documents or information derived from
them by the prosecutors in trying the case. In short, the required showing of prejudice to
defendant’s right to a fair trial was absent and precluded dismissal. (Id. at p. 861.) As
the high court said in Morrison, “[c]ases involving Sixth Amendment deprivations are
subject to the general rule that remedies should be tailored to the injury suffered from the
constitutional violation and should not unnecessarily infringe on competing interests,”
and “[o]ur approach has thus been to identify and then neutralize the taint by tailoring
relief appropriate in the circumstances to assure the defendant the effective assistance of

                                             44
counsel and a fair trial.” (Morrison, supra, 449 U.S. at pp. 364, 365.) That is exactly
what the trial court did here.
               ii. Recusal issues
         Defendant argues the trial court erred in denying his motions to recuse the Los
Angeles District Attorney’s office, or to remove prosecutors Jackson and Dixon from
defendant’s prosecution. We review this claim “only for an abuse of discretion.”
(Hariguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted (Hariguchi)
[“The trial court’s findings of fact are reviewed for substantial evidence, its conclusions
of law are reviewed de novo, and its application of the law to the facts is reversible only
if arbitrary and capricious.”].) We find no abuse of discretion.
         Under section 1424, a motion to disqualify a district attorney “may not be granted
unless the evidence shows that a conflict of interest exists that would render it unlikely
that the defendant would receive a fair trial.” (Id., subd. (a)(1).) Section 1424 establishes
“a two-part test: (i) is there a conflict of interest?; and (ii) is the conflict so severe as to
disqualify the district attorney from acting? Thus, while a ‘conflict’ exists whenever
there is a ‘reasonable possibility that the DA’s office may not exercise its discretionary
function in an evenhanded manner,’ the conflict is disabling only if it is ‘so grave as to
render it unlikely that defendant will receive fair treatment.’ [Citation.]” (People v.
Eubanks (1996) 14 Cal.4th 580, 594, 583-584 (Eubanks) [substantial financial assistance
victim provided to district attorney’s office resulted in a disqualifying conflict of
interest].) “The statute demands a showing of a real, not merely apparent, potential for
unfair treatment, and further requires that that potential ‘rise to the level of a likelihood of
unfairness.’ [Citation.]” (People v. Vasquez (2006) 39 Cal.4th 47, 56 (Vasquez).) The
defendant “bear[s] the burden of demonstrating a genuine conflict; in the absence of any
such conflict, a trial court should not interfere with the People’s prerogative to select who
is to represent them.” (Hariguchi, supra, 43 Cal.4th at p. 709.)
         We have already recited at length, in connection with defendant’s dismissal
arguments, the relevant facts. Those facts lead to the same result: no error by the trial
court.

                                                45
       Here, the trial court repeatedly found that no conflict existed. In June 2005: “The
only thing I can say is that the People are in possession of privileged material, that . . .
they agreed not to use that material in any way and not to use any evidence obtained as a
result of that material in the trial,” and “there is no showing that the defendant would
receive anything other than a fair trial based on the possession of this information.” In
February 2006: “But I am convinced of what I said a month ago. I don’t believe this is a
[section] 1424 situation.” In March 2006: “This is not a [section] 1424 situation in my
opinion and I think I have been consistent in saying that.”
       Defendant fails entirely to identify any conflict of interest, merely repeating his
claim that the “prosecution team intentionally and illegally invaded the defense team” by
seizing and reviewing privileged communications and “us[ing] them to form their
theories of the case.” First, as we have seen, that is not a proper characterization of the
prosecutor’s conduct; the prosecutor saw privileged communications, but his conduct was
not intentional, and he did not “use them to form [the prosecution’s] theories of the case.”
As the Supreme Court has said, “[t]he trial court was entitled to credit [the prosecutor],
and his statements constitute substantial evidence.” (Hollywood v. Superior Court (2008)
43 Cal.4th 721, 730 (Hollywood).) Second, defendant showed no conflict of interest – no
“ ‘reasonable possibility that the DA’s office may not exercise its discretionary function
in an evenhanded manner.’ [Citation.]” (Eubanks, supra, 14 Cal.4th at p. 594.)
       Vasquez explains the point: public prosecutors “are required to exercise their
discretionary functions “ ‘ “with the highest degree of integrity and impartiality.” ’
[Citation.] Impartiality, in this context, means . . . that the prosecutor is ‘expected to
exercise his or her discretionary functions in the interests of the People at large, and not
under the influence or control of an interested individual.’ [Citation.]” (Vasquez, supra,
39 Cal.4th at p. 55 [because of a close family relationship between longtime employees
of the prosecutor’s office and the defendant, there was a “ ‘reasonable possibility that the
DA’s office may not exercise its discretionary function in an evenhanded manner’ ”]; see
also Hollywood, supra, 43 Cal.4th at p. 731 [trial court did not abuse its discretion in
finding no cognizable conflict of interest under section 1424, where prosecutor disclosed

                                              46
case files to filmmaker and acted as a consultant on a movie about the defendant’s life
and alleged crimes; “[w]hile in the abstract it is conceivable a fear of criminal sanctions
might alter how [the prosecutor] handled this case, the trial court found [the prosecutor]
credible and concluded the possibility that confidential documents might have been
disclosed inadvertently would not prevent [the prosecutor] from acting fairly toward [the
defendant]”; that conclusion “does not appear arbitrary or capricious and is supported by
substantial evidence”].)
       Defendant cannot explain how the prosecutor’s exposure to privileged materials
created a conflict of interest such that the prosecutor might not exercise his discretionary
functions in an evenhanded manner. As Hollywood tells us, “section 1424 does not exist
as a free-form vehicle through which to express judicial condemnation of distasteful, or
even improper, prosecutorial actions. [S]ection 1424 offers no relief for actions simply
because they appear, or are, improper. [Citations.] The Legislature has closely defined
the limits of judicial authority to recuse prosecutors, and we must observe them. . . .
A defendant must identify, and a court must find some conflict of interest that renders it
unlikely the defendant will receive a fair trial.” (Hollywood, supra, 43 Cal.4th at p. 735,
fn. omitted.) The trial court found none here, and we can find no abuse of its discretion
in that finding.
       Defendant next argues that, apart from Penal Code section 1424, the court had
inherent power under Code of Civil Procedure section 128, subdivision (a)(4) to remove
prosecutors Jackson and Dixon. Under that statute, every court has the power to “compel
obedience to its judgments, orders, and process,” and to “control in furtherance of justice,
the conduct of its ministerial officers, and of all other persons in any manner connected
with a judicial proceeding before it, in every matter pertaining thereto.” (Code Civ.
Proc., § 128, subd. (a)(4)&(5).) But section 1424 now specifies the requirements for
disqualification, and it was enacted in response to the case which established that
section 128 gives the court power to remove a prosecutor. (People v. Superior Court
(Greer) (1977) 19 Cal.3d 255, 269 [concluding, before the enactment of section 1424,
that “a trial judge may exercise his power to disqualify a district attorney from

                                             47
participating in the prosecution of a criminal charge when the judge determines that the
attorney suffers from a conflict of interest which might prejudice him against the accused
and thereby affect, or appear to affect, his ability to impartially perform the discretionary
functions of his office”]; see Eubanks, supra, 14 Cal.4th at pp. 590-591 [section 1424
allows disqualification “only when a conflict ‘render[s] it unlikely that the defendant
would receive a fair trial,’ [citation] whereas Greer allowed disqualification even when
the conflict might merely ‘appear to affect’ the prosecutor’s fairness”].) But the point is
that “a conflict of interest which might prejudice [the prosecutor] against the accused”
(Eubanks, at p. 591) is required for recusal, and there was no such conflict in this case.
       Even in a case where the circumstances present a conflict of interest, the conflict
would be disabling only if it makes it unlikely that defendant will receive fair treatment.
(Eubanks, supra, 14 Cal.4th at p. 594.) That returns us to the point we have already
decided in connection with defendant’s claim the trial court should have dismissed the
case for outrageous government misconduct: There was no showing of prejudice to
defendant’s right to a fair trial, so any conflict of interest that might be identified under
section 1424 would not render it “ ‘unlikely that defendant will receive fair treatment.’
[Citation.]” (Eubanks, at p. 594; see also People v. Griffin (2004) 33 Cal.4th 536, 570,
fn. 15 [“Because we conclude that the trial court did not err in denying defendant's
motion for an order recusing the district attorney’s office for a conflict of interest, we
reject as well defendant’s claim that the trial court’s asserted error violated his rights
under the United States Constitution, specifically . . . the due process clause of the
Fourteenth Amendment.”].) In short, there was no error in the court’s refusal to recuse
the prosecutors.
       Finally, defendant makes one other point. He contends the right to counsel is
violated when a state agent is present at attorney-client conferences, and that Detective
Lillienfeld obtained privileged information by “using someone from the defense camp as
a spy for several weeks,” and “knew Butch Jones was providing him information
Mr. Jones had gleaned from his presence at attorney-client conferences.” In this
argument, defendant fails to acknowledge that the court took testimony from defendant’s

                                              48
then-lawyer (Jeffrey Benice), from Detective Lillienfeld, and from Mr. Jones, and found
otherwise.
       Specifically, the court found there was no “intentional act on the part of law
enforcement to interfere with the attorney/client privilege or to obtain privileged
material.” “There may have been some relationship that existed between Mr. Jones and
Mr. Benice, but I can’t say that Detective Lillienfeld attempted to intentionally obtain
privileged information from that relationship by virtue of his contact with Mr. Jones.”
Detective Lillienfeld testified that Mr. Jones told him on one occasion that defendant was
going to meet with Mr. Benice on defense strategy, but he never indicated that he
(Mr. Jones) attended any such meeting, and “the contents of that meeting” were never
supplied to Detective Lillienfeld. Mr. Jones also told the detective, who confirmed the
information, that defendant, not Mr. Benice, paid Mr. Jones, whose job was as a runner, a
messenger, and a researcher for defendant. Mr. Benice testified that, at defendant’s
suggestion, he paid Mr. Jones once or twice to review and obtain documents from case
files concerning Mickey Thompson’s estate, but Mr. Jones did no substantive legal work
for him, and he did not invite Mr. Jones into strategy meetings. And Mr. Jones testified
that he never supplied Detective Lillienfeld with information he gleaned from meetings
with defendant and Mr. Benice.
       In short, substantial evidence supported the trial court’s finding that there was no
intentional interference with the attorney-client relationship through the use of Mr. Jones
as an informer – in contrast to both cases defendant cites. (See Barber, supra, 24 Cal.3d
at p. 755 [finding a violation of the right to counsel and prejudice from the violation; see
fn. 8, ante] and Morrow, supra, 30 Cal.App.4th at p. 1258 [prosecutor orchestrated
courtroom eavesdropping on attorney-client communication]; see also Weatherford v.
Bursey (1977) 429 U.S. 545, 558 [“unless [undercover agent] communicated the
substance of the [attorney-client] conversations and thereby created at least a realistic
possibility of injury to [the defendant] or benefit to the State, there can be no Sixth
Amendment violation”; “[t]here being no tainted evidence . . . , no communication of



                                              49
defense strategy to the prosecution, and no purposeful intrusion by [undercover agent],
there was no violation of the Sixth Amendment”].)
       In the end, defendant’s argument is that “the record cannot fully disclose the
extent to which [prosecutorial] decisions were affected – whether consciously or
subconsciously – by the privileged information they reviewed,” and so there was
structural error requiring reversal of the judgment. Defendant made the same argument
to the trial court: “Every decision that they’re [(the prosecutors)] going to make cannot
be said to now not be derived from the reading of those documents,” and “[t]here is
simply no way for anyone to know what parts of the case that form Mr. Jackson’s
thoughts on prosecution were derived from these letters.” That is simply not the law.
       There was no error in the trial court’s denial of defendant’s motions to dismiss or
to recuse the prosecutors.
2. The Insufficient Evidence Claim
       Defendant claims the evidence was insufficient to sustain the convictions. This
argument includes two principle components: first, that there was no evidence of any
association or agreement between defendant and the killers (and hence “no corpus
[delicti] to prove a conspiracy”) and second, the eyewitness identification testimony of
Ronald and Tonyia Stevens was not “substantial, credible evidence [defendant] engaged
in a conspiracy to murder the Thompsons.” Defendant is mistaken.
       “When the sufficiency of the evidence to support a conviction is challenged on
appeal, we review the entire record in the light most favorable to the judgment to
determine whether it contains evidence that is reasonable, credible, and of solid value
from which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. [Citation.] ‘Conflicts and even testimony which is subject to justifiable suspicion
do not justify the reversal of a judgment, for it is the exclusive province of the trial judge
or jury to determine the credibility of a witness and the truth or falsity of the facts upon
which a determination depends.’ [Citation.] Unless it describes facts or events that are
physically impossible or inherently improbable, the testimony of a single witness is
sufficient to support a conviction.” (People v. Elliott (2012) 53 Cal.4th 535, 585

                                              50
(Elliott).) So, “ ‘if the verdict is supported by substantial evidence, we must accord due
deference to the trier of fact and not substitute our evaluation of a witness’s credibility for
that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199,
1206 (Ochoa).)
       As a preliminary matter, we note defendant’s claim there was “no corpus [delicti]
to prove a conspiracy” is simply inapt. Defendant was not charged with conspiracy. He
was charged with murder. To convict a defendant of a crime, the prosecutor must prove
that a crime – “the corpus delicti or body of the crime” – actually occurred, and the
prosecutor may not rely exclusively on the defendant’s extrajudicial statements to do so.
(People v. Alvarez (2002) 27 Cal.4th 1161, 1164-1165 (Alvarez).) As the facts we have
recited show, the occurrence of the crimes with which defendant was charged – multiple
murders committed by means of lying in wait – is not open to question.
       Conspiracy was merely one of the theories of liability by which the prosecution
sought to establish that defendant was responsible for those crimes. There is no support
in the authorities or in logic for the proposition that the corpus delicti rule may be applied
to a theory of liability. The rule “is intended to ensure that one will not be falsely
convicted, by his or her untested words alone, of a crime that never happened.” (Alvarez,
supra, 27 Cal.4th at p. 1169.) The two charged murders happened – and once there is
independent evidence of a crime, “the defendant’s extrajudicial statements may then be
considered for their full value to strengthen the case on all issues.” (Id. at p. 1171.) That
is so here.
       And so we turn to the substance of defendant’s claim: whether there was
insufficient evidence to prove beyond a reasonable doubt that defendant conspired to kill
the Thompsons. A conspiracy is an agreement to commit the crime, and the essence of
defendant’s claim is that there was no evidence of any association with, or agreement
with, the unknown killers to commit the murders – the sine qua non of conspiracy. He
points out that a legal inference cannot flow from the nonexistence of a fact, and may not
be based on suspicion or conjecture or guesswork. (People v. Stein (1979) 94 Cal.App.3d
235, 239.)

                                              51
       We do not agree there was no evidence of an agreement to murder the Thompsons.
Certainly there was no direct evidence of defendant’s association or agreement with the
actual killers. But a conspiracy “ ‘may be proved by indirect evidence and inferences
justified by the circumstances. [Citations.]’ [Citations.]” (People v. Hardeman (1966)
244 Cal.App.2d 1, 41; People v. Rodrigues (1994) 8 Cal.4th 1060, 1135 [“Evidence is
sufficient to prove a conspiracy to commit a crime ‘if it supports an inference that the
parties positively or tacitly came to a mutual understanding to commit a crime.
[Citation.] The existence of a conspiracy may be inferred from the conduct, relationship,
interests, and activities of the alleged conspirators before and during the alleged
conspiracy.”].)
       Here, the circumstances fully justified the inference that defendant conspired with
the shooters. While defendant tells us what evidence was absent (such as evidence of
payments to the shooters, telephone records, witnesses to defendant’s solicitation of the
murders, meetings or talks with the shooters), he ignores the evidence that was adduced.
The Thompsons were killed in a carefully planned operation for which there was no
robbery or other motive (ante, pp. 15-19). Defendant was present in the neighborhood
with binoculars and another person a few days before the murders (ante, pp. 13-14). The
shooters knew where and when to find the Thompsons, how to get to their house, and
how best to escape the scene (ante, pp. 16-18). Defendant repeatedly threatened to kill
Mickey Thompson and hurt his family (ante, pp. 6-13) and indeed made statements to
two witnesses about the cost involved in having Mr. Thompson killed (ante, pp. 8-9), and
told others he was too smart to get caught (ante, p. 7). These facts were placed in
evidence, and the jury could properly infer from them that defendant agreed with the
shooters to commit the murders.
       To this, defendant’s answer is to characterize defendant’s presence near the
Thompson home as a “highly speculative ‘fact’ ” that was “not sufficient,” even if the
Stevenses’ eyewitness identifications were credible, which he claims they were not.
Neither of these arguments assists defendant. He says his presence in the neighborhood
shortly before the murders “is simply too tenuous and speculative” to support a finding of

                                             52
an agreement to commit murder. In the abstract and without any other evidence,
defendant might be right – but there was other evidence (delineated in the preceding
paragraph), and defendant ignores it. As the jury was instructed, properly, the “formation
and existence of a conspiracy may be inferred from all circumstances tending to show the
common intent . . . .”12
       At its core, defendant’s argument is that the eyewitness testimony of Ronald and
Tonyia Stevens is not substantial, credible evidence, and without it he cannot be
connected to the murders. We disagree with defendant’s premise.
       Defendant recites at length various inconsistencies between the Stevenses’
testimony at trial and their testimony at the preliminary hearing and interviews with the
police. (These inconsistencies include statements about the race of the passenger in the
car with defendant, how far away Mr. Stevens was when he saw defendant, for how long
and at what angle he saw defendant, and so on.) Defendant challenges the photographic
and live lineup procedures as “suggestive and unreliable.” He points out that in the
photos, there was only one man “that had any sort of pock marks.” He says Mr. Stevens
admitted on cross-examination that he had pointed to three different photos, saying “this
type of nose” and “that type of hair” and “this type of complexion,” and that
Detective Lillienfeld posed the question, “Yeah, but the guy you saw in the wagon that




12       Defendant relies on United States v. Todd (8th Cir. 1981) 657 F.2d 212, where the
defendant’s conviction for murder was affirmed but his conviction for conspiracy to
murder was reversed. The only evidence of conspiracy to murder was that all the
principals (defendant, his alleged coconspirators, and the victim) were members of the
same basic training company at Ft. Leonard Wood, and defendant said he and his alleged
coconspirators intended to rob the victim. The court held it was improper to convict
defendant of conspiracy to murder based on an assumption that they also intended to
murder the victim so he would not identify them after the robbery. (Id. at p. 217
[“Although the government is allowed to prove an agreement by circumstantial evidence,
. . . here there is only speculation and inference.”].) We fail to see any favorable
comparison between the evidence in this case, where defendant stated his intent to kill
Mr. Thompson and discussed hiring someone to do so, and the speculation in Todd.


                                            53
day that most resembles who in this photo array now?” rather than admonishing
Mr. Stevens that the suspect might or might not be in the photo array.
       Mr. Stevens viewed a live lineup five months later, where defendant was the only
person whose photo was also in the photographic lineup, and the only person with pock-
marked skin. (Tonyia Stevens also viewed that lineup, separately, and identified
defendant. She had seen defendant on a newscast (footage of four to six men walking out
of a courtroom, with no mention of defendant’s name) and recognized him as the person
she saw in the car before the murders; at the time, she told her husband she was sure he
would remember him too.) Defendant also cites numerous cases and studies discussing
the unreliability of eyewitness identifications and suggested reforms in identification
procedures. And he cites the many other factors that reduce the reliability of
identifications: lapse of time (13 years), limited opportunity to observe, intervening
influences affecting memory (such as reenactments of the crime on television), and so on.
       Nonetheless, Mr. and Ms. Stevens did in fact testify that it was defendant they saw
with binoculars in an old station wagon with Arizona license plates parked near their
home a few days before the murders. And Kathy Weese offered some corroboration
when she testified that while she was working for defendant’s company, on one occasion
she saw an older station wagon with out-of-state plates in the parking lot; it had never
been there before and she never saw it again. The jury heard all this evidence, including
all the inconsistencies defendant cites, and also heard testimony from defendant’s expert
witness on eyewitness identifications, explaining all the factors supporting the
unreliability of identifications made under the circumstances existing in this case. The
jury also heard defendant’s arguments about the unreliability of the Stevenses’
identifications. It was for them to decide whether or not they believed the Stevenses’
testimony.
       In his reply brief, defendant contends the issue is “not about reassessing witness
credibility,” but about the “inherent unreliability of eyewitness identifications obtained
under circumstances that corrupt human memory,” as shown in the studies he cites
(studies not presented to the trial court). But we are bound by the law as stated by the

                                             54
Supreme Court, and that court has expressly rejected claims that eyewitness testimony
was unreliable “because the witnesses’ initial descriptions of the perpetrator were
inconsistent and because the identification testimony was tainted by suggestive lineups
and photo arrays, and by the passage of time.” (Elliott, supra, 53 Cal.4th at p. 585
[“Inconsistencies in [the witnesses’] initial descriptions of the perpetrator and any
suggestiveness in the lineups or photo arrays they were shown are matters affecting the
witnesses’ credibility, which is for the jury to resolve.”]; see also In re Gustavo M. (1989)
214 Cal.App.3d 1485, 1497 [“when the circumstances surrounding the identification and
its weight are explored at length at trial, where eyewitness identification is believed by
the trier of fact, that determination is binding on the reviewing court”].) In short, we
necessarily decline defendant’s invitation to hold as a matter of law that the Stevenses’
identifications were unreliable.
       In sum, though the jury could have disbelieved the Stevenses’ testimony, for all
the reasons defendant presented to it, the jury chose to believe them. Their testimony
constitutes substantial evidence, and it was not the only evidence connecting defendant to
the crime, as we have already pointed out; there was evidence of a carefully planned and
coordinated execution and escape that required research and reconnaissance, defendant’s
repeated statements of intent to kill Mickey Thompson and hurt his family, and
statements about the cost of having Mr. Thompson killed. From all this evidence, the
jury could reasonably infer an agreement by defendant with the shooters to commit the
murders.
       Finally, we note that, in his motion for a new trial, defendant presented an
affidavit from the jury foreperson, saying, among other things, that he was initially
reluctant to vote for conviction because of no evidence “connecting [defendant] to the
actual killers, even though most of the other evidence pointed towards guilt”; that the
conspiracy instruction allowed the jury to infer from “all of the other incriminating
evidence” that defendant wanted Mickey Thompson dead “and could have hired the
killers to commit the crime even though no evidence of a connection between the
conspirators was presented”; and, since the jury concluded it was reasonable to believe

                                             55
defendant “could have been responsible,” “we felt we reconciled that lack of connection
to the killers by applying the instruction on conspiracy, which allowed us to infer that
connection.”
       We may not consider these statements (which in any event appear merely to
reflect defendant’s mistaken notion that a direct – rather than circumstantial – link
between defendant and the actual killers must be shown). Under Evidence Code
section 1150, “[n]o evidence is admissible . . . concerning the mental processes by which
[the verdict] was determined.” (Id., subd. (a); see People v. Gonzales (2012) 54 Cal.4th
1234, 1281 [“The jurors’ statements about the mental processes by which that verdict was
reached were expressly barred by . . . section 1150.”].) The trial court, we note,
nevertheless considered the foreperson’s declaration, saying it “tend[ed] to agree that . . .
probably a portion of it got into what is prohibited by [section] 1150,” but “I’m
considering that declaration and accepting it at face value.” Nonetheless, the trial court
concluded that, while “this was a circumstantial evidence case with nothing – no direct
evidence to connect [defendant], . . . the circumstantial evidence was overwhelming.”
We agree.
3. The Delay in Prosecution
       Defendant was arrested on December 13, 2001, for murders that occurred in
March 1988, and his preliminary hearing in Los Angeles occurred in October 2004. In
January 2006, defendant filed a motion to dismiss because of the lengthy delay, and
asked the court to defer ruling on the motion until completion of the trial. The trial court
did so, and ultimately denied the motion.
       Defendant contends on appeal the delay in prosecuting him was unjustified and
prejudicial: that the evidence offered at the trial in 2006 was “essentially identical to
what the [Los Angeles District Attorney] could have mustered for trial soon after the
killings in 1988,” and in the interim, “the defense evidence faded away almost
completely.” We conclude the trial court did not abuse its discretion in denying
defendant’s motion.



                                             56
          a. The governing principles
          The pertinent legal principles are these. The due process clauses of the federal and
California Constitutions “protect a defendant from the prejudicial effects of lengthy,
unjustified delay between the commission of a crime and the defendant’s arrest and
charging.” (People v. Cowan (2010) 50 Cal.4th 401, 430 (Cowan).) “ ‘ “[T]he right of
due process protects a criminal defendant’s interest in fair adjudication by preventing
unjustified delays that weaken the defense through the dimming of memories, the death
or disappearance of witnesses, and the loss or destruction of material physical evidence.”
[Citation.]’ [Citation.]” (Ibid.) “ ‘ “A defendant seeking to dismiss a charge on this
ground must demonstrate prejudice arising from the delay. The prosecution may offer
justification for the delay, and the court considering a motion to dismiss balances the
harm to the defendant against the justification for the delay.” [Citation.]’ [Citation.]”
(Ibid.)
          “Prejudice may be shown by ‘ “loss of material witnesses due to lapse of time
[citation] or loss of evidence because of fading memory attributable to the delay.” ’ ”
(Cowan, supra, 50 Cal.4th at p. 430.) While “the federal constitutional standard for what
constitutes sufficient justification for delay is unclear [citation], we have noted that ‘the
law under the California Constitution is at least as favorable for defendant in this regard’
as federal law [citation].”13 (Id. at pp. 430-431.)
          “Under the California standard, ‘negligent, as well as purposeful, delay in bringing
charges may, when accompanied by a showing of prejudice, violate due process. This
does not mean, however, that whether the delay was purposeful or negligent is
irrelevant.’ [Citation.] Rather, ‘whether the delay was negligent or purposeful is relevant

13      In People v. Nelson (2008) 43 Cal.4th 1242 (Nelson), the court discussed the
federal standard at some length. Nelson observed that the high court has said that “ ‘the
Fifth Amendment requires the dismissal of an indictment, even if it is brought within the
statute of limitations, if the defendant can prove that the Government’s delay in bringing
the indictment was a deliberate device to gain an advantage over him and that it caused
him actual prejudice in presenting his defense,’ ” but that some of the high court’s earlier
cases “suggest the test might be somewhat less onerous.” (Id. at pp. 1253-1254.)


                                               57
to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and
a relatively weak showing of prejudice would suffice to tip the scales towards finding a
due process violation. If the delay was merely negligent, a greater showing of prejudice
would be required to establish a due process violation.’ [Citation.] The justification for
the delay is strong when there is ‘investigative delay, nothing else.’ [Citation.]” (Cowan,
supra, 50 Cal.4th at p. 431.)
       “We review for abuse of discretion a trial court’s ruling on a motion to dismiss for
prejudicial prearrest delay [citation], and defer to any underlying factual findings if
substantial evidence supports them [citation].”14 (Cowan, supra, 50 Cal.4th at p. 431.)
       b. The trial court’s ruling
       Defendant’s position is that the trial court erred in finding justification for the
delay, and in addition that the court “skipped the third step – balancing prejudice against
the prosecutor’s justification – altogether.” Thus, defendant contends, because the
prosecutor’s showing of justification was “insubstantial,” if defendant showed “even
minimal prejudice, the trial judge’s error in not undertaking the required weighing
requires reversal.”
       We do not agree with either point in defendant’s analysis. To begin, we describe
the court’s ruling in some detail. We then review defendant’s claims of prejudice (pt. c.,
post) and the prosecutor’s justification (pt. d., post), and conclude there was no abuse of
discretion in the court’s refusal to dismiss the case for prearrest delay.15

14     Defendant compares this case to People v. Cromer (2001) 24 Cal.4th 889 and
concludes we must employ de novo review. Cromer was not a case of prearrest delay. In
Cromer, the court held that appellate courts “should independently review a trial court’s
determination that the prosecution’s failed efforts to locate an absent witness are
sufficient to justify an exception to the defendant’s constitutionally guaranteed right of
confrontation at trial.” (Id. at p. 901.) Cowan was decided years after Cromer, and its
statement of the standard of review on a motion to dismiss for prearrest delay could not
be clearer.

15     Defendant says he was “substantially handicapped” in preparing and arguing the
prearrest delay issue in the trial court, because the court refused to order daily transcripts.
He does not, however, identify any evidence in the record that he did not bring to the trial

                                              58
          Some of the trial court’s comments suggest its belief that a legitimate reason for
the delay in prosecution would be dispositive, without regard to defendant’s showing of
prejudice. But the court did in fact find prejudice to defendant (and to the prosecution, as
well) from the delay, and a fair reading of its analysis shows an implicit, if not explicit,
balancing of the prejudice against the justification.
          After first correctly rejecting the prosecutor’s contention that a defendant must
show intentional delay by the government, this is what the trial court said: “[T]o prevail
on due process grounds . . . the defense has to show some actual prejudice by the delay.
[¶] Once the defendant shows some actual prejudice, . . . the burden shifts and the court
has to find that there was no legitimate reason for the delay.” The court then said that the
second question was the easiest to answer, and it would answer that first: “There appears
to me to be ample reason why this case took so long to result in an arrest of
[defendant]. . . . [¶] . . . [¶] . . . [S]imply based on the evidence that I heard at this trial,
there were new witnesses that came forward in 2001. It appears that . . . Ron and
Tonyia Stevens made an identification in 2001 and although they attempted to contact
law enforcement before, the fact of the matter is that the identification was not made until
2001.” The judge also mentioned Gail Moreau-Hunter’s information, presented at the
preliminary hearing but not at trial, that defendant made a statement to her “where he at
the very least suggested that he was responsible for the murders.” The court observed
that when the new information – the identifications and Ms. Moreau-Hunter’s statements
– was obtained in 2001, the sheriff’s department did not delay in presenting the case for
filing.
          The court then said: “There were ample reasons for the delay. And I think that, in
and of itself, is dispositive, I will be honest with you. I think that the court doesn’t have
to even address the first question [prejudice]. [¶] But for purposes of this record, let me
go ahead and attempt to at least clarify what I think the standard is. I don’t know that


court’s attention, or that he was unable to bring to the court's attention because he did not
have daily transcripts.


                                               59
there is any authority for the proposition that the court has to assume that every witness
that was unavailable for the trial would have presented testimony favorable to the
accused. [¶] . . . [¶] . . . I don’t know that any of the evidence that was not presented
because of the delay would have been beneficial to the defendant. But what I can say is
that the evidence that was presented at the trial by the prosecution was certainly hindered
by the delay.” (Boldface & italics added.)
       The court noted the case was aggressively defended, with the defense doing an
“excellent job in presenting to the jury . . . the problems inherent in a lot of the testimony
presented by the People. [¶] And those problems were in large part due to a lack of
recollection; a lack of physical evidence that may have existed in this case. So the
bottom line I think it’s fair to say the delay did not just prejudice – potentially prejudice
the defense. The delay prejudiced I think both sides in this case. And that’s unfortunate.
But I’m not going to assume that every witness that wasn’t called would have testified
favorably . . . for [defendant]. [¶] However, even . . . if I make that assumption, I then
get to that second question: was there a legitimate reason for the delay? Whereby the
answer is yes. [¶] So no matter how I look at it, given the legal standard that I believe
applies on this case, I have made inquiry into whether or not there was prejudice. I agree
there was prejudice, but there was a legitimate reason for the delay.”
       The court pointed out that the Court of Appeal in Orange County, when it ruled
venue was not proper there, “did point out this new evidence that was presented or
discovered,” and “practically begged Los Angeles to take another look at this case.” The
court continued: “I think there was ongoing investigation. I know that Detective
Lillienfeld took over the case and pursued the case. And I can’t fault anyone for the fact
that it took so long to actually get enough evidence to file the case. And at the behest of
the Court of Appeal that’s what the L.A. County District Attorney did. [¶] So given all
of that, I do not believe that there has been anything that rises to the level of due process
violation here. . . . [F]rom what I can glean from the cases that have been cited, the due
process violation has not been established.”



                                               60
       It thus appears that the court, while not expressly balancing the prejudice to
defendant against the justification for the delay, implicitly did just that: The court plainly
concluded it could not fault anyone for the length of time that elapsed in the investigation
before the authorities charged defendant. And the court further concluded, correctly, that
it would be wrong to assume that every unavailable witness would have provided
testimony favorable to defendant. Indeed, the court went so far as to observe that “I don’t
know that any of the evidence that was not presented because of the delay would have
been beneficial to the defendant.” (Italics added.) Based on these findings by the court,
the balancing of prejudice against justification could have only one result.
       And so, the question for us is whether the trial court abused its discretion in
making those findings and concluding there was no due process violation. We think not,
and turn first to defendant’s showing of prejudice.
       c. Defendant’s claims of prejudice
       Defendant asserts prejudice from the loss of material witnesses, loss of
documentary evidence, and witnesses’ failing memories. We address his claims of
prejudice in the order he has raised them. Our conclusion is that, as the trial court found,
defendant demonstrated some prejudice, sufficient to require justification by the
prosecution for the delay, but the demonstrated prejudice was, on the whole, minimal.
              i. The Arizona license plate number
       Defendant first claims prejudice from the loss of the Arizona license plate number
of the car in which Mr. Stevens saw defendant a few days before the murders.
Mr. Stevens made a note of the license plate number, but by the time defendant was
arrested, he could no longer find it. Defendant asserts the license plate number would
have “exonerated” him, or “at the very least would have confirmed he had no connection
with the station wagon the Stevenses described.” That is pure speculation. (See People
v. Morris (1988) 46 Cal.3d 1, 38 [finding no abuse of discretion where, among other
things, the defendant’s “claim that his own memory had faded was speculative at best”],
disapproved on another point in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5; People



                                             61
v. Hartman (1985) 170 Cal.App.3d 572, 579 (Hartman) [“A defendant must show actual
prejudice based on the facts of the case.”].)16
              ii. Defendant’s alibi evidence and the Stevenses’ memories
       Defendant contends if the investigators had interviewed the Stevenses in 1988,
“there would have been fewer influences distorting the Stevenses’ memories, and
[defendant] would have been in a position to present an alibi.” He says that by the time
of the trial, the Stevenses could not pinpoint the date they saw him parked in front of their
house, and defendant’s “1988 day-timers and personal notes were lost, depriving him of
his opportunity to prove alibi.” Similarly, defendant could have established his alibi by
producing credit card and financial receipts, but by the time he was charged, these
documents had already been destroyed in the normal course of business. Defendant says
these records would also have demonstrated a consistent spending pattern during the
weeks prior to and after the murders.
       This lost evidence too is speculative. As for the Stevenses’ memories, defendant
had a full opportunity to cross-examine both witnesses on this point and did so; their
“distort[ed]” memories were fully explored at trial and any prejudice could at most be

16      The Hartman case illustrates a showing of “actual prejudice based on the facts of
the case.” (Hartman, supra, 170 Cal.App.3d at p. 579.) There, the medical examiner at
the original autopsy found death by natural causes. A year later, an independent
pathologist concluded the death stemmed from a homicide, although the actual cause of
death could not be determined, and the several experts hired by the victim’s widow
expressed new but conflicting interpretations of the cause of death. Finally, “six years
after the second autopsy . . . and without the discovery of any new or additional evidence
since then,” the defendant was charged with murder. By then, both the medical examiner
and the supervisor who supported his finding had died, and were thus unable to explain
the medical examiner’s findings at trial, or to rebut the implication by other witnesses
that he had been negligent. In addition, the victim’s brain had been misplaced after the
initial autopsy, and the heart had disappeared after the second autopsy, making it
impossible to resolve the medical inconsistencies among the experts at trial. The court
found actual, substantial prejudice to the defendant, and the five-and a-half-year delay in
prosecution after the new expert evidence became available “was without any
justification whatever.” (Id. at p. 583.) As will become apparent, this is not a
comparable case, in terms of either prejudice or justification.


                                             62
minimal. And with respect to the lost alibi evidence – daytimers, personal notes, credit
card receipts and so on – defendant had every incentive to preserve that information. As
he told the trial court below, he “was a named suspect within hours of the murder.” (See
Cowan, supra, 50 Cal.4th at p. 432 [rejecting the defendant’s argument that, 10 years
later, he could not identify alibi witnesses or recall what he was doing during the first few
weeks of September 1984; “defendant was aware by at least February 1985 . . . that he
was a suspect in the . . . murders”; he “therefore had an incentive to record any
exculpatory information he had regarding his whereabouts, . . . or the identity of alibi
witnesses”].)
                iii. Information about improper influences on Detective Griggs’s
                     investigation

       Defendant contends that Mr. Thompson’s sister, Collene Campbell, improperly
influenced and interfered with Detective Griggs’s investigation of other viable suspects,
from the time of the murders until the detective retired in 1992. By the time defendant
learned of this alleged interference, most of the information in Detective Griggs’s
personnel file had been destroyed (further to the internal policy of the Los Angeles
County Employees Retirement Association (LACERA)), and Detective Griggs was
uncooperative. Once again, defendant only speculates that the file contained relevant
documents, the destruction of which was “extremely prejudicial” to him. In any event,
defendant did not make this claim in his motion to the trial court, and cannot do so for the
first time on appeal. (People v. Accredited Surety & Casualty Co. (2004) 132
Cal.App.4th 1134, 1146 [appellant is precluded from raising a new theory for the first
time in its appeal].)
                iv. Telephone records
       Kathy Weese and Joel Weissler testified about threats defendant made over the
telephone, including when Mr. Thompson called defendant’s office. By the time
defendant was charged, the telephone companies had purged records, so that the defense
could not obtain telephone records for the homes and offices of defendant,
Mr. Thompson and Mr. Weissler. Again, we have only speculation; there is no reason to

                                             63
assume these telephone records would have contradicted, rather than substantiated, the
witnesses’ testimony. “To avoid murder charges due to delay, the defendant must
affirmatively show prejudice.” (Nelson, supra, 43 Cal.4th at p. 1250.)
               v. John Williams’s testimony about towing defendant’s Mercedes
       Mr. Williams testified to defendant’s threats on Mr. Thompson’s life that occurred
when Mr. Williams seized defendant’s Mercedes to collect on Mr. Thompson’s
judgment. The documentation, including Mr. Williams’s notes of the altercation, were
purged, so defendant could not impeach Mr. Williams with his own notes (to establish
that the incident occurred in 1986, rather than shortly before the murders in 1988, and to
establish that no altercation was noted). But defendant was able to produce other,
undisputed evidence that the towing occurred in 1986 (a receipt from the towing
company and other documentation). Mr. Williams was thoroughly cross-examined and
impeached with the documents on the issue of when the levy occurred, so the purged
notes would have been cumulative – and defendant’s claim that those notes did not
mention an altercation is complete speculation. So any prejudice from loss of the notes
was minimal.
               vi. Lawyers’ records
       Fee details and records kept by Mr. Thompson’s lawyers and lawyers for the
bankruptcy estate were no longer available by the time defendant was charged. These
records allegedly would have shown whether or not the meeting Mr. Coyne testified to,
during which defendant threatened Mr. Coyne, actually took place and whether defendant
was present. The fee details about phone calls “could have been used to impeach the
witnesses who testified about outbursts heard after calls they assumed to be between
Goodwin and his own or Thompson’s attorneys.” Once again, defendant offers no reason
to assume these records would contradict, rather than substantiate, the witnesses’
testimony.
               vii. Locksmith records
       Detective Jansen testified that to the best of his recollection, the damages to the
safe in the Thompsons’ garage, mentioned in his notes, was created by the locksmith

                                             64
when he opened the safe, rather than pointed out by the locksmith before he opened the
safe. By the time of trial, defendant was unable to impeach Detective Jansen with the
locksmith’s records – which “presumably . . . would have noted the date of service and
any damage the company had caused to a private individual’s safe.” This, too, is only
speculation – both as to whether and how long any such records are kept and as to what
they would have shown – not an affirmative showing of prejudice.
                    viii. Allison Triarsi’s diary
       At the preliminary hearing in 2004, Miss Triarsi, the only eyewitness to the
killings, testified that she kept a journal when she was very young “and wrote down the
specific events which I ended up showing to a psychiatrist where I documented what I
had seen.” She said she had not located her journal when she first talked to Detective
Lillienfeld in 1997, but had located it later, “I don’t know, five years ago.” She said her
journal “gave me the evidence in my mind that these are the things that I saw.” She
testified the journal was at her parents’ home, and the defense subpoenaed the diary after
the preliminary hearing, but her mother told the defense she did not have it and had not
seen it in years.
       Defendant contends the loss of the diary was “extremely prejudicial,” as the diary
“likely effectively superseded her memory of the events themselves”; because of the
prosecutor’s delay, defendant was deprived of the opportunity to cross-examine Miss
Triarsi using the diary, which “was crucial to his defense.”17 Defendant fails to identify
any respect in which the diary might have been “crucial to his defense.” At trial,
defendant’s counsel elicited that Miss Triarsi told Detective Lillienfeld in 1997 that “one
or the other of the killers could have been white,” whereas at trial she testified she did not
know the race of the gunmen.
       Again, any prejudice from loss of the diary appears quite speculative. The race of
the killers was established with the testimony of other witnesses. Defendant relies on

17     Defendant also claims that records from Miss Triarsi’s school counselor were
unavailable, and “might have shown Allison to be fantasizing,” but his citations to the
record do not show any attempt in the trial court to obtain these records.

                                                    65
Ross v. United States (D.C. Cir. 1965) 349 F.2d 210, 213-214 (Ross), where the court
found a delay in prosecution prejudicial. There, the sole witness to a drug transaction
was the undercover drug purchaser, who had no personal recollection of the transaction
and testified based entirely on his notebook recording his drug transactions. The court
found a purposeful seven-month delay between offense and arrest, a plausible claim by
the defendant of inability to recall or reconstruct the events on the day of the offense, and
a trial in which the entire case consisted of one witness’s recollection refreshed by his
notebook. (Id. at pp. 212, 215.) That is nothing like this case, where Miss Triarsi had an
independent memory of the shooting, and others testified to hearing the same screams
from the victims and to seeing the shooters as they escaped. (Cf. Harrison v. United
States (D.C. 1987) 528 A.2d 1238, 1240-1241 [observing that precedential value of Ross
was questionable in view of more recent authority].) In short, again there is only
speculation that the diary might have contained something with which to impeach Miss
Triarsi’s eyewitness account of the murders.
              ix. Evidence of Mickey Thompson’s gold purchase
       According to the investigative notes of Detective Rene Laporte, Eric Miller, a
friend of Mickey Thompson’s, told police that the night before the murders, he heard
Mickey Thompson say he had taken possession of $250,000 in gold. (The jury was told
“a valuable item” in “a specific dollar amount,” rather than $250,000 in gold.) According
to counsel, federal law at the time required registration of such an acquisition with the
Internal Revenue Service, but those records were purged in 1995 and unavailable to the
defense. Defendant argues that if he had been prosecuted in a timely fashion, he would
have had an opportunity to prove, in connection with his theory the murders occurred
during a robbery, that Mr. Thompson purchased gold and it was unaccounted for after the
murders.
       This lost evidence might conceivably have been relevant. But there was no basis
to believe that any gold Mr. Thompson might have purchased had been delivered to his
residence, no suggestion how the shooters would have found out about Mr. Thompson’s
gold purchase, and no evidence of forced entry into the Thompson residence. So, while

                                             66
the possible evidence of a gold purchase may have been relevant, the prejudice arising
from its absence appears minimal.
              x. Unavailability of witnesses
       Defendant identifies several witnesses, dead or otherwise unavailable by the time
of trial, who might have provided relevant evidence, as follows.
                     A. Unidentified people involved in the Joey Hunter investigation
       A man named Joey Hunter was seen by several witnesses “hitchhiking frantically
with a bicycle at a bus stop,” about two and a half miles from the crime scene and less
than an hour after the murders. The original investigators followed up and arrested
Mr. Hunter, who failed polygraph tests regarding his involvement in the Thompson
murders. Defendant says Joey Hunter “suddenly and inexplicably ceased to be a
suspect,” and by the time of defendant’s prosecution, “people who were involved in the
Joey Hunter investigation had died.” (The Joey Hunter evidence was proffered by the
defense (and excluded by the trial court) to establish that someone other than defendant
arranged the murders (see pt. 9, post).)
       This contention was not raised in the trial court, and therefore cannot be raised on
appeal. In any event, defendant does not specify the nature of the testimony these
unidentified individuals would have given if they had been available as witnesses, instead
merely asking us to assume that an investigative decision not to pursue Mr. Hunter as a
suspect was based on something other than lack of evidence. This is unvarnished
speculation, and does not show prejudice.
                     B. Yacht broker William Redfield
       Mr. Redfield assisted defendant’s wife in her search for a yacht and, according to
defendant, would have testified she began searching months before the murders, and was
expecting a distribution of JGA/Whitehawk funds that would cover all her expenses.
Mr. Redfield would also have testified to the structure of the payments for the deposit on
the boat, thereby explaining the prosecution’s attempt to allege that $20,000 was not
accounted for. (Defendant provides no citation to the record for this last point, but
apparently is referring to testimony from Karen Stephens-Kingdon, who testified about

                                             67
Ms. Goodwin’s withdrawal of $20,000 from her account on March 16, 1988;
Ms. Kingdon-Stephens could not trace this money, and testified it was likely a cashier’s
check or cash. Defendant pointed out that the yacht deposit consisted of checks for
$11,000 and $20,000.)
       This testimony is again hypothetical, but assuming its substance, it would have
been relevant to the defense. Its absence, however, appears only marginally prejudicial.
The parties stipulated to testimony from a bank employee that a letter from Diane
Goodwin dated December 24, 1987, months before the murders, stated she was in the
process of deciding which yacht she was interested in purchasing. And the point about
expected distribution of JGA/Whitehawk funds to cover the yacht purchase has little
significance, as the point of Ms. Stephens-Kingdon’s testimony was that the
JGA/Whitehawk investment was funded by assets belonging to defendant and
Ms. Goodwin, not Ms. Goodwin alone. So overall, any prejudice was not substantial.
                     C. Sable Reeves, the Thompsons’ housekeeper
       According to defendant, witnesses testified the Thompsons left for work together
every morning. (Defendant does not cite this testimony, and we have not found it,
either.) Ms. Reeves, however, told police the Thompsons rarely drove in the same car to
work together, Trudy Thompson was often at home alone when she arrived, and
Mr. Thompson usually had already gone to work by 6:00 a.m. Ms. Reeves would also
have been able to testify about whether valuables were missing.
       We consider this testimony inconsequential. Even if Mr. Thompson typically left
for work earlier than he did on the day of the murders, there is nothing to show the killers
were not lying in wait at that earlier time. Nor is there anything to contradict the
prosecution argument that the timing of the shooting was inconsistent with a typical
residential burglary, where the perpetrators tend to choose times when the residents are
likely to be absent. And hypothetical testimony about “whether valuables were missing”
is completely speculative.




                                             68
                     D. Tom Villelli
       Mr. Villelli was Baron Wehinger’s stepfather. Mr. Wehinger testified, for the first
time at trial, that Mr. Villelli and defendant discussed the price of hit men in 1984. In his
preliminary hearing testimony, Mr. Wehinger did not mention the discussion of the price
of hit men; he simply testified that he overheard defendant saying that “he would have
Mickey Thompson taken care of if he lost his court battles with him.” He also said this
occurred two or three months before the murders, but then on cross-examination, when
asked if the conversation occurred in 1987, said “I believe so,” and then when asked, “Or
’86?” Mr. Wehinger answered, “’86, it had to be earlier, yeah.”
       Defendant says that “Wehinger never indicated before trial the conversation had
occurred in 1984 and [defendant] and Villelli discussed the price of hit men.” Defendant
says he was prepared to impeach Mr. Wehinger on his preliminary hearing testimony,
because defendant was in the Bahamas during Christmas of 1987, but “by the time the
defense became aware Wehinger was claiming Villelli had discussed hit men with
[defendant], Villelli was very near death and unable to testify to rebut this claim.”
       Again, this is hypothetical testimony; we do not know whether Mr. Villelli would
have rebutted or substantiated Mr. Wehinger’s testimony. If we assume Mr. Villelli
would have contradicted Mr. Wehinger, the loss of this testimony would prejudice
defendant. But, after Mr. Wehinger’s uncertainty at the preliminary hearing as to when
the conversation occurred, defendant certainly could not count on impeaching
Mr. Wehinger at trial with his Bahamas alibi for Christmas of 1987. So after the
preliminary hearing in 2004, defendant had every incentive to interview Mr. Villelli, both
about the date and the nature of the conversation, and apparently failed to do so. Given
the speculative nature of Mr. Villelli’s lost testimony, and the other extensive evidence of
defendant’s threats (such as Gregory Keay’s testimony that defendant said “he would
have [Mr. Thompson] wasted”), defendant was not unduly prejudiced by Mr. Villelli’s
unavailability.




                                             69
                     E. Gregory Keay’s mother (defendant’s aunt)
       As just noted, Gregory Keay testified to a threat defendant made at a family
gathering two or three months before the murders, to have Mickey Thompson “wasted.”
Dorothy Keay “could have testified to the date the gathering occurred, her son’s lack of
credibility and his bias against [defendant].” Again, this is nothing more than
speculation, not an affirmative showing of prejudice
                     F. Charles Clayton
       Mr. Clayton was defendant’s friend and financial advisor and, defendant says,
“would have testified [defendant] always intended to pay the Thompson judgment . . . .”
Mr. Clayton also structured the yacht purchase and could have testified to the
circumstances surrounding the purchase and the couple’s plans to live on the
JGA/Whitehawk distributions.
       Defendant does not tell us when Mr. Clayton died or why the information he had
about the yacht purchase would not be available from other sources. Moreover, his
testimony about defendant’s intent to pay off the Thompson judgment based on any
financial planning the two may have done together would be inconsequential, in light of
the evidence from Dolores Cordell that defendant did indeed repeatedly express his
willingness to accept settlement terms, only to renege at the last minute. Accordingly,
any prejudice defendant suffered from the unavailability of Mr. Clayton’s testimony was
minimal.
                     G. Anne Clark
       Ms. Clark was a close friend of the Thompsons. After the murders, on
February 15, 1989, she called into a television show that solicited tips about the murder.
The “clue sheet” stated she “want[ed] to know why they didn’t mention the drug deal.
Mickey’s sister [Collene] knew about a drug deal. [Mickey Thompson] had asked
[Ms. Clark] to give him one million dollars. She does not know what for. Sheriff took
over call.” (The clue sheet also says, “cleared” and “no new info.”) Detective Lillienfeld
interviewed Ms. Clark in May 2002, and the report of the interview did not mention the



                                            70
call to the tip line. When defendant sought to interview Ms. Clark, “her dementia was so
advanced she no longer recognized anyone.”
       We fail to see any basis to conclude Ms. Clark had any information helpful to the
defense; no prejudice was shown.
                     H. Frank Gullett
       According to defendant, Joey Hunter confessed his involvement in the murders to
Frank Gullet, while they were both in jail after Mr. Hunter’s arrest in late April 1988,
when Mr. Hunter was a suspect in the murders. (Defendant does not cite to it, but we
found in the record a search warrant affidavit that recounts a police interview with Frank
Gullet, in which Mr. Gullet said that he asked Mr. Hunter if he was actually involved in
the murders and Mr. Hunter stated, “ ‘Yes, but they can’t prove it . . . .’ ”) If he had been
alive at the time of trial, defendant says, Mr. Gullet “could have provided valuable
testimony about Hunter’s confession that would have supported [defendant’s] attempt to
present third party culpability evidence to the jury and impeached the investigation.”
       Defendant does not say what this “valuable testimony about Hunter’s confession”
was, or how it would support his attempt to present third party culpability evidence. (The
trial court properly excluded defendant’s third party culpability evidence (as we discuss
in pt. 9, post), and indicated that “there is no evidence that Joey Hunter has any
connection with this case.”) Defendant has not shown prejudice from the loss of
Mr. Gullet’s testimony.
              xi. Memory loss of trial witnesses
       Defendant cites the trial testimony of 12 witnesses who he contends “suffered
memory distortion and loss prejudicial to defendant,” forgetting details, including
specific words defendant spoke and dates threats were allegedly made. These were as
follows:
       Dale Newman could not recall the exact words of the threat he overheard, and a
police report was used to refresh his recollection. (Defendant tried to impeach his
testimony that the threat occurred in the fall of 1987 by showing him a police report
stating he said it happened in July 1986, but Mr. Newman insisted that he “certainly did

                                             71
not” say that, and “[t]hat would have to be a typo on [the detective’s] part or whatever,”
and “[r]egardless it was not correct.”)
       Bill Wilson could not remember to whom he spoke when he first called the police
with information about the murders, and could not remember when defendant and
Mr. Thompson became business partners. Nina Wilson could not remember the precise
date of the dinner party at which defendant threatened Mickey Thompson, or why they
had invited the Goodwins, or whether Detective Lillienfeld was the first detective she
spoke to about the case.
       Karen Dragutin could not remember which detective she spoke to in 1989, or
details concerning television broadcasts about the murder and rewards offered, or the date
or other details of the dinner at which she heard defendant threaten Mickey Thompson.
       Baron Wehinger and Gregory Keay could not recall the dates of the threats they
heard, so defendant could not investigate or impeach them and could not establish his
whereabouts or find witnesses to testify the conversations never occurred.
       Dolores Cordell, Jeffrey Coyne, and Karen Stephens-Kingdon all said “I don’t
recall” to various questions, the materiality of which defendant does not explain; he
merely claims their failure to recall “would not have withstood scrutiny had the case been
brought in 1989 or 1990.” (Defendant’s assertion that the prosecutors presented expert
opinion on his financial wrongdoing “without regard to the facts” and “knew the original
documents supplying the basis for these opinions were lost or destroyed years ago” is
entirely unsupported by the record.)
       Penn Weldon could not remember precisely when his conversation with defendant
occurred, and he no longer had his appointment book.
       Defendant also asserts that the passage of time and outside influences “no doubt”
affected Allison Triarsi’s memory of the incident, and that Detective Griggs could not
recall the details of interviews that would have contradicted prosecution witnesses,
“including [Detectives] Verdugo and Jansen,” and was unable to authenticate his notes.
As to Detective Griggs, defendant provides no information about or citations to the
record explaining these asserted contradictions, and merely complains that Detective

                                            72
Griggs did not recall entering the Thompson home to determine whether personal
property was missing, and that Detective Verdugo was permitted to testify no property
was missing despite the absence of his original notes on that issue.
       Many of the memory lapses just described were inconsequential. All of them are
speculative, in the sense that we are asked to assume that had memories been sharper, the
testimony would have been more favorable – rather than more damning – to defendant.
This falls far short of the affirmative showing of prejudice necessary to avoid murder
charges. (Nelson, supra, 43 Cal.4th at p. 1250.)
       In sum, for the reasons we have given, we cannot characterize the loss of
witnesses, and the loss of evidence due to fading memory, in this case as more than
minimally prejudicial to the defense. Almost all of the lost evidence or testimony
defendant cites demonstrates only the potential for prejudice, rather than actual prejudice,
and the trial court correctly concluded that it would be improper simply to assume the
cited evidence would have been favorable to defendant.
       d. The justification for the delay
       The prosecutor’s justification for the delay, certainly in the abstract, is strong. The
state did not amass the necessary evidence for a successful prosecution until 2001, when
the police learned that Ronald and Tonyia Stevens had seen defendant in the
neighborhood with binoculars a few days before the murders. In the end, the question
whether the 13-year delay in prosecution violated defendant’s due process rights turns on
whether there was malfeasance or negligence in the state’s failure to obtain that evidence
sooner. As Cowan tells us, a weak showing of prejudice would tip the scales toward a
due process violation if the delay was purposeful, but “[i]f the delay was merely
negligent,” a greater showing of prejudice would be required to establish a violation.
(Cowan, supra, 50 Cal.4th at p. 431.)
       Here, the trial court concluded that it could not “fault anyone for the fact that it
took so long to actually get enough evidence to file the case.” Defendant contends
otherwise, saying that the prosecution had “constructive knowledge” of the Stevenses’



                                              73
information in 1988. This is because the Stevenses called the police several times, telling
them they had possible information about the murders. Specifically:
       On the day the Stevenses saw the car parked outside their home, Tonyia Stevens
called the Temple City Sheriff’s Department and reported a suspicious looking car,
telling the police “ ‘I just want you to know in case anything happens that we have
information.’ ” A couple of weeks after the murders, a uniformed policeman at a
roadblock stopped Tonyia Stevens and asked her if she had any information. She
testified: “And I said, ‘yes, I do’ and I told him. He says, ‘Have you told the police?’
and I said, ‘Yes.’ He says ‘Okay, go on then.’ ” Ronald Stevens said he tried to report
the incident to the police, “either three or four times, not long after the murder.” After
talking to a friend, he called the Duarte Sheriff’s Department, at about 9:00 p.m., and told
the person who answered the phone that he thought he had some information on the
Thompson murder. Mr. Stevens was told a detective would call him, but no one did. A
couple of weeks later, Mr. Stevens called the Temple City Sheriff’s Department “and left
another message. Same thing.” In addition, Mr. Stevens said: “I think there was one or
two other times that I called because I just, you know, tried to call someone. But I don’t
remember the dates or times.”
       Despite these efforts by the Stevenses in 1988 to report their information, no
investigator contacted Mr. Stevens about the incident until 2001. Defendant contends the
information was not “new” in 2001; “investigators had it in 1988 and ignored it”; and the
information “is imputed to the prosecution,” citing Kyles, supra, 514 U.S. at page 438.
Kyles is inapposite. There, the court was discussing exculpatory evidence withheld by
the government, and stated the well-established proposition that, under Brady, “the
individual prosecutor has a duty to learn of any favorable evidence known to the others
acting on the government’s behalf in the case, including the police.” (Kyles, at p. 437.)
Here, we do not have a Brady question of disclosure of exculpatory evidence. Moreover,
the police did not in fact obtain the Stevenses’ information until 2001, so it can hardly be
“imputed to the prosecution” as of 1988.



                                             74
       We do not know how or why the Stevenses messages to the police went astray, but
they did. This is certainly not “malfeasance.” It was an error, but we cannot necessarily
characterize it as negligence. This was not a situation where the investigators received
information that the Stevenses saw defendant at the scene, or had the license plate
number of a suspicious vehicle, and then failed to follow up. Instead, unidentified police
personnel apparently did not pass on telephone messages about information possibly
relating to the murders. In a more perfect world, the investigators would have had the
information sooner, but in fact they did not. So in the absence of a showing of prejudice
considerably more significant than we have seen, the justification for the delay in
prosecution – that the police did not have sufficient evidence to prosecute defendant until
2001 – plainly outweighs the prejudice. (See Cowan, supra, 50 Cal.4th at p. 436 [finding
no evidence of negligence; “[r]ather, at worst the . . . Sheriff’s Department simply erred
when it failed to determine before 1994 that defendant’s fingerprints matched the [crime]
scene latent prints”].)
       Defendant’s other attacks on the investigation fare no better. He asserts that
“discovery and testimony at trial indicate investigators did nothing during the periods
1990 through 1992, 1992 through 1995, and 1996 through 1997.” But he cites nothing in
the record to support this assertion, other than defense counsel’s own argument to the
trial court. And Detective Lillienfeld testified that Sergeant Yarborough of the cold case
unit had the lead on the investigation after Detective Griggs retired. (See Cowan, supra,
50 Cal.4th at pp. 428, 436 [no active investigation from 1987 to 1994; court rejected
defendant’s claim the investigation was dormant during that period, as there was
testimony that the supervisor of the unit was responsible for the case after the assigned
detective left in 1987; “we will not second-guess the department’s decision to allocate its
resources in this manner”].)
       Defendant also claims – citing only counsel’s affidavit “on information and belief”
seeking discovery of Detective Griggs’s personnel file – that Detective Griggs did not
focus on leads he should have followed. But counsel’s declaration is not evidence of
malfeasance or negligence. Nor is defendant’s assertion that in 1988, four detectives

                                            75
were re-assigned to other matters due to staffing requirements. (See Nelson, supra, 43
Cal.4th at p. 1256 [“[a] court may not find negligence by second-guessing how the state
allocates its resources”].)18
       Finally, defendant also argues that Gail Moreau-Hunter’s information – that
defendant had in effect confessed his responsibility for the murders – was not “new” in
1999, when Detective Lillienfeld located and interviewed her; that Ms. Moreau-Hunter
“confirmed an interview” in January 1993 (the nature of which is not specified in
defendant’s brief or in the record); and that in any event Ms. Moreau-Hunter was
“delusional.” We need not linger long on these points, since Ms. Moreau-Hunter did not
testify at trial, and it was the Stevenses’ evidence that enabled the prosecutors to file the
case. In any event, there is no evidence of police negligence in respect of Ms. Moreau-
Hunter’s testimony and, in the absence of any evidence of negligence or malfeasance, we
will not second-guess the conduct of the investigation (Nelson, supra, 43 Cal.4th at
p. 1256) based on speculation that somehow the police could have elicited the
information from Ms. Moreau-Hunter earlier. The fact is, as the Court of Appeal in
Orange County pointed out, these were new developments in the case.




18     Defendant also characterizes Detective Lillienfeld’s investigation as “grossly
negligent.” The investigative files he reviewed from 1988 contained an Arizona license
plate number for a car which, defense counsel told the trial court, was parked in the
driveway of a drug dealer (seven miles from the Thompson home) associated with Joey
Hunter (who was then being investigated in connection with the murders). Defendant
complains that, after the Stevenses told him the car in front of their house had an Arizona
license plate, Detective Lillienfeld did not try to determine the make and model of the car
that had been parked in the drug dealer’s driveway. We fail to see the significance of this
claim, as Joey Hunter had long since been abandoned as a suspect. To the extent
defendant’s claim is that Joey Hunter should have continued to be a suspect, there is no
basis to suggest that is so. (See Nelson, supra, 43 Cal.4th at p. 1256 [“A court may not
find negligence by second-guessing . . . how law enforcement agencies could have
investigated a given case.”].) And Detective Lillienfeld did attempt to trace the vehicle
parked outside the Stevenses home, but could not find a vehicle that matched the best
description he had (a 1973 Chevrolet Malibu nine-passenger station wagon).


                                              76
       e. Summary
       While most of defendant’s claimed losses of evidence are speculative, we cannot
definitively say that the passage of time resulted in no prejudice to defendant. But “[t]o
avoid murder charges due to delay, the defendant must affirmatively show prejudice.”
(Nelson, supra, 43 Cal.4th at p. 1250.) Defendant’s affirmative showing of prejudice was
minimal. And we can definitively say – despite defendant’s claims the delay in
prosecution was “intentional” and “the real purpose . . . was to weaken [defendant’s]
ability to defend himself” – that there is not the slightest evidence of a deliberate delay to
gain a tactical advantage. (See id. at p. 1256 [“ ‘Investigative delay is fundamentally
unlike delay undertaken by the government solely to gain tactical advantage over an
accused because investigative delay is not so one-sided. A prosecutor abides by
elementary standards of fair play and decency by refusing to seek indictments until he or
she is completely satisfied the defendant should be prosecuted and the office of the
prosecutor will be able to promptly establish guilt beyond a reasonable doubt.’ ”].)
       There is no doubt that 13 years is a long prearrest delay, but it was not a
purposeful one. The bottom line is that the prosecutors concluded they did not have
enough evidence to convict defendant until 2001. This is a strong justification for the
prearrest delay. Errors in an investigation do not always amount to negligence, and they
did not here. “It is not enough for a defendant to argue that if the prosecutorial agencies
had made his or her case a higher priority or had done things a bit differently they would
have solved the case sooner.” (Nelson, supra, 43 Cal.4th at pp. 1256-1257.)
       The court’s summary in Cowan is apt in this case: “[T]he investigation of the . . .
murders was not perfect; no investigation is. Like the trial court, however, we find no
evidence that law enforcement or the prosecution deliberately delayed the investigation in
order to gain a tactical advantage over defendant. Nor do we find evidence of
negligence. Rather, at worst the . . . Sheriff’s Department simply erred . . . . That being
the case, balancing defendant’s weak showing of prejudice against the strong justification
for the delay [citation], we find no due process violation. Accordingly, the trial court did



                                              77
not abuse its discretion when it denied defendant’s . . . motion[] to dismiss due to
prearrest delay.” (Cowan, supra, 50 Cal.4th at p. 436.)
4. The Pitchess/Brady issue
       Before the trial, defendant filed several motions seeking information from
Detective Griggs’s personnel file, under Pitchess, supra, 11 Cal.3d 531 and Brady, supra,
373 U.S. 83.
       Under Pitchess procedures, on a showing of good cause, a criminal defendant is
entitled to material information contained in confidential personnel records of a police
officer. If good cause is shown, the trial court must review the requested records in
camera to determine what information, if any, should be disclosed. (People v. Mooc
(2001) 26 Cal.4th 1216, 1226 (Mooc).) Under Brady, the prosecution is required to
disclose favorable evidence to the defense.
       Here, the defense sought material from Detective Griggs’s personnel files,
particularly information relating to his disability retirement, psychiatric evaluations and
the like, as well as any other exculpatory or impeaching material within the meaning of
Brady. The defense theory was that Detective Griggs was incapable of conducting a fair,
competent and unbiased investigation; that his deficient investigation ignored other viable
leads and suspects, particularly Joey Hunter; that there were complaints from Collene
Campbell about his job performance; that all this led to a stress-related early retirement,
and the disability he claimed substantially affected his judgment and credibility. The
defense sought personnel files from both the sheriff’s department and LACERA for the
retired detective.
       We need not describe the multiple motions and arguments on the Pitchess and
Brady theories relating to discovery of Detective Griggs’s personnel file. In the end, on
May 23, 2006, the trial court ordered the sheriff’s department and LACERA to produce
any documents in the personnel files referring to the Mickey Thompson investigation for
in camera review. Counsel for LACERA had brought LACERA’s records, and left them
with the court for in camera review, with a hearing scheduled for June 7, 2006.



                                              78
(LACERA had destroyed all its files except for those relied on in granting Detective
Griggs’s disability retirement.)
       On June 7, 2006, the court announced it had reviewed the entire file from
LACERA, “and paper clipped and put post-its on the portions that I feel should be
disclosed.” That package was identified as “Court’s Exhibit 1, LACERA
Pitchess/Brady,” and preserved for appellate review.
       Also on June 7, 2006, the court briefly reviewed the personnel file materials
provided by the sheriff’s department, and observed it appeared there was nothing to be
disclosed. But, to be certain, the court directed the custodian and her counsel to cull the
file to eliminate material pertaining to the period before the murders, and to return with
the remaining material for the court’s in camera review. On June 16, 2006, the sheriff’s
department brought the personnel records for the period March 16, 1988, to March 23,
1993, and the court ordered certain of the documents disclosed to the defense, staying its
order until June 29, 2006, to permit the sheriff’s department to decide whether to seek
writ review. Apparently no writ was sought.
       The parties agree that this court should independently review the sealed transcripts
of the hearings and related sealed personnel files, to ascertain whether the trial court
properly exercised its discretion in identifying discoverable information. We have
reviewed the sealed transcript of the in camera hearing at which the trial court described,
on the record, the items in Detective Griggs’s personnel file produced by the sheriff’s
department, and find no abuse of discretion. (See People v. Prince (2007) 40 Cal.4th
1179, 1285-1286 [trial court directed that personnel file not be copied and inserted into
the record, “but the court adequately stated for the record the contents of that file,” citing
Mooc, supra, 26 Cal.4th at p. 1229, for the principle that “in some circumstances it
suffices for the court to ‘state for the record what documents it examined’ ”].) We have
likewise reviewed the in camera transcript and the confidential documents produced by
LACERA and preserved for appellate review, and again find no abuse of discretion.




                                              79
5. Karen Stephens-Kingdon’s Expert Testimony
       We have described Karen Stephens-Kingdon’s testimony in part 7.a., ante, of the
facts. In a nutshell, Ms. Stephens-Kingdon looked at thousands of financial records to
determine the source and ultimate disposition of certain assets and funds, and opined, for
example, that the yacht Diane Goodwin purchased in her own name was bought with
funds that had been commingled for years, and that “funds that were originally
commingled and invested end[ed] up going offshore or to purchase gold coins, cash or
traveler’s checks.”
       On appeal, defendant contends Ms. Stephens-Kingdon’s testimony was
inadmissible, principally because the testimony could not assist the jury in its fact finding
and on relevance grounds. Defendant made the same arguments, unsuccessfully, at the
preliminary hearing and when he moved under Penal Code section 995 to set aside the
information after the preliminary hearing.19 None of them has merit.
       An expert may offer an opinion on “a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact.” (Evid. Code,
§ 801, subd. (a); People v. Mayfield (1997) 14 Cal.4th 668, 766.) An expert is qualified
if he or she “ ‘has sufficient skill or experience in the field so that his [or her] testimony


19     Respondent contends defendant did not object at trial to the expert’s testimony on
the ground she was not qualified as an expert, and therefore forfeited those objections on
appeal. It is true that, in his brief reciting his objections at trial, defendant implies he
objected that Ms. Stephens-Kingdon “was not a qualified expert on the financial issues,”
and defendant does not identify any such objection in the record. But his argument on
appeal does not address Ms. Stephens-Kingdon’s qualifications as an expert on financial
issues; it is directed to the content or nature of her testimony. To the extent respondent is
contending that points raised in defendant’s unsuccessful motion to set aside the
information must be explicitly raised again at trial but were not, the record is not so clear.
(Defense counsel told the trial court, “I don’t think that necessarily means it required an
expert,” and “if they could prove it, then the jury could make up its own mind about what
those assets transfers mean.”) And the case on which respondent relies, People v.
Hawkins (2012) 211 Cal.App.4th 194, 203-204, is not directly on point, holding only that
an issue not raised in a Penal Code section 995 dismissal motion was not preserved for
appeal. We will therefore address defendant’s claims on their merits.


                                              80
would be likely to assist the jury in the search for the truth.’ [Citation.]” (People v.
Mayfield, at p. 766.) We review a trial court’s ruling permitting expert testimony for
abuse of discretion. (Ibid.)
        Defendant asserts the expert testimony was inadmissible because it “could not
assist the jury in understanding the evidence and brought incompetent hearsay before the
jury.” According to defendant, Ms. Stephens-Kingdon “overstepped her ‘expert’ status,”
because the Evidence Code does not “authorize[] a witness to review documents not
brought before the court and give an opinion regarding the defendant’s purpose for his or
his family member’s financial dealings,” or “to testify to the state of mind and intent of a
defendant based on his wife’s financial dealings.” The expert “did not assist the jury in
its fact-finding,” because “she was in no better position than they were to evaluate the
evidence concerning [defendant’s] ‘consciousness of guilt.’ ”
        As we have seen, Ms. Stephens-Kingdon examined thousands of financial records
and testified to the source and disposition of certain assets and funds. She did not testify
to the defendant’s purpose or state of mind or intent as to those transactions. She opined
that assets originally purchased with commingled funds of both spouses were transferred
to investments or purchases in the name of one spouse. This subject matter is sufficiently
beyond common experience that the opinion of a qualified accountant and auditor would
assist the trier of fact.
        Defendant insists the expert testified to defendant’s “state of mind and intent”
based on his wife’s financial dealings. To support his claim, defendant cites only the
expert’s testimony about the purchase of the yacht with commingled funds and contends
that this testimony “draw[s] conclusions regarding motive.” When asked if, as she had
testified, funds were commingled as of January 1988, “what does that tell you, if
anything, about [defendant’s] interest in the boat transaction,” the witness replied, “What
I saw was that even though this boat was in Diane Goodwin’s name, that it had been
purchased with funds that had been commingled for so many years that this boat purchase
was for both Mr. and Mrs. Goodwin.” We reject the notion that the quoted testimony
was tantamount to an opinion on defendant’s motive, purpose, state of mind or intent. It

                                             81
was simply a statement, consistent with the rest of the expert’s testimony, on the source
and disposition of assets – not on why the transaction was undertaken.20
       Defendant also argues the expert testimony “brought incompetent hearsay before
the jury,” and the expert “did not bring to court any of the documents she reviewed . . . or
about which she testified.” Because defendant does not elaborate on these claims, we
need not consider them. We do note, however, that the prosecutor questioned the witness
with specific reference to a limited number of documents (as defendant admits) that were
identified in court. And when the expert expressed opinions in reliance on specific
documents, the trial court instructed the jury, during the testimony, that the “information
referred to now by the witness is being offered not for the truth of what it says but just to
show what the witness based her opinion on,” and “she’s explaining what her opinion is
based on, but you are not to assume that the letters state what she says they state for the
truth of the matter.” Further, it is well established that an expert may base an opinion on
reliable hearsay. (People v. Harris (2013) 57 Cal.4th 804, 847 [“Expert testimony in the
form of an opinion may be based on hearsay or facts outside the personal knowledge of
the expert.”]; see Evid. Code, § 801, subd. (b) [expert opinion may be “[b]ased on matter
. . . made known to [the witness], whether or not admissible, that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which his testimony relates”].)
       Next, defendant argues the admission of Ms. Stephens-Kingdon’s testimony
violated Evidence Code section 1523, subdivision (d). Section 1523, subdivision (a)

20      Defendant asserts, erroneously, that Kotla v. Regents of the University of
California (2004) 115 Cal.App.4th 283 is analogous to this case. In that employment
termination case, the trial court erred in permitting a management expert to offer opinion
testimony about whether certain facts were “indicators” of a retaliatory motive. (Id. at p.
286.) The appellate court found the opinions “about the significance of the evidence did
not assist the jury in its factfinding process,” and that the expert “was in no better
position than they were to evaluate the evidence concerning retaliation. Absent unusual
facts, it must be presumed that jurors are capable of deciding a party’s motive for
themselves without being told by an expert which finding on that issue the evidence
supports.” (Id. at p. 293.) As we have observed, Ms. Stephens-Kingdon did not testify
about the motive for the financial transactions on which she opined.

                                             82
makes oral testimony “to prove the content of a writing” inadmissible except as otherwise
provided by statute. Section 1523, subdivision (d) provides an exception “if the writing
consists of numerous accounts or other writings that cannot be examined in court without
great loss of time, and the evidence sought from them is only the general result of the
whole.” Defendant cites no authority for his claim, and it has no merit. Section 1523 has
nothing to do with expert testimony, and Ms. Stephens-Kingdon did not purport to testify
“to prove the content of a writing.” She testified about the documents she relied on in
forming her opinions, and there was nothing improper in that testimony.
       Finally, defendant contends Ms. Stephens-Kingdon’s testimony was irrelevant,
because “Diane[] [Goodwin’s] financial transactions did not show a consciousness of
guilt on [defendant’s] part.” Defendant fails to identify in the record any objection made
at trial on grounds of relevance. (Defendant did object on this ground to Ms. Stephens-
Kingdon’s testimony at the preliminary hearing. The prosecutor explained that the
testimony was relevant to the theory of “consciousness of guilt in the defendant
attempting to flee the country,” and the court found that “potentially the People have a
relevant theory here.”) In any event, the testimony was relevant. As the prosecutor put it
at trial, the ultimate opinion he sought to elicit was “what [defendant] and Diane
Goodwin were doing financially from the period of 1986 to the spring of 1988.” And as
the trial court stated, the prosecutor sought to show defendant “was engaged in . . .
transferring of assets to avoid, I think the argument is, to avoid having to pay a
substantial judgment, and this witness is competent to testify to whether or not she
believes based on her review of these documents, whether or not that is what occurred.”
The claim of irrelevance is meritless.
       Because there was no error in the admission of Ms. Stephens-Kingdon’s
testimony, we need not consider defendant’s further contention that the error was
prejudicial.
6. The Admission of Nancy Lucia’s Testimony
       Nancy Lucia (formerly Wilkinson) was permitted to testify to a statement Mickey
Thompson made in September or October 1987 while Ms. Lucia was visiting the

                                             83
Thompson home (pt. 2.l. of the recitation of facts, ante). Mr. Thompson came upstairs,
out of breath and frantic, “almost kind of yelling, saying ‘[c]lose the window. Close the
drapes. [Defendant] could have a sniper out there right now.”
       We review the trial court’s ruling for abuse of discretion (People v. Guerra (2006)
37 Cal.4th 1067, 1140 [“we apply an abuse of discretion standard of review to any ruling
by a trial court on the admissibility of evidence”]), and find none.
       a. The trial court’s ruling
       The trial court concluded Mr. Thompson’s statement was not hearsay, because it
was not being offered for its truth, and it was relevant “on the issue of the level of
hostility that existed in this litigation. [¶] It’s circumstantial evidence which would tend
to corroborate the People’s argument and the People’s witnesses that this litigation was
so vitriolic; this litigation was so intense and caused such animosity and hatred between
the parties, that Mr. Thompson truly believed that because of the litigation he was
involved in with [defendant], that his life was in danger. That’s a non-hearsay purpose in
my mind.”21
       The court elaborated: “[I]t is circumstantial evidence tending to corroborate the
People’s description of what they believe the motive was in this case. It’s circumstantial
evidence that the litigation got so out of hand and was so intense that there was a realistic
belief on the part of Mr. Thompson that his life was in danger. [¶] Now, the reason I say
that it’s circumstantial evidence to show all of that is because it’s not so important as to

21      The court said that, if the statement were being offered for its truth, “it would
clearly be hearsay. And then the court would have to find it is [an Evidence Code
section 1240 spontaneous] statement and that its probative value outweighs its prejudicial
effect, all of which I can easily find. [¶] However, it’s not being offered for the truth.”
Then, after elaborating on the admissibility of the statement as circumstantial evidence
“tending to show that because of the animosity generated and the vitriolic nature of this
lawsuit that [defendant] had a motive to murder these two people,” the court said: “So
my analysis is, assuming it’s hearsay, it comes in under [section] 1240. Its probative
value outweighs any prejudicial effect. However, I think the proper analysis would be
that this is a non-hearsay statement not offered for the truth of the matter asserted. And
the People can’t argue that it’s offered for the truth of the matter asserted.”


                                              84
what was said, if anything, by [defendant]. And I don’t think Mr. Thompson attributes
the statement to [defendant], but he is attributing a belief. And that belief has to be based
on some fact or facts. [¶] And it appears to me that given the testimony I have heard so
far, it’s not unreasonable to conclude that Mr. Thompson, as a party to this litigation, was
aware of and a participant in the goings-on between the sides. Therefore, he was aware
of the fact that . . . the hatred generated by the litigation was rather intense. This
statement was allegedly made [in] early fall, late summer 1987. So it’s not that long
before the murders. [¶] So for those reasons, I view it as a non-hearsay statement
coming in for the value that it brings or demonstrates in terms of the level of hostility
believed to have existed by Mr. Thompson; not being offered for the truth.”
       The court further ruled that the probative value of the testimony far outweighed its
prejudicial effect: “It’s extremely probative. And the prejudicial effect, quite frankly, we
have heard nothing but statements from the People’s witnesses attributed to [defendant]
that he allegedly wants to kill Mr. Thompson. [¶] So the extent to which this is too
prejudicial is nonexistent. It’s simply the same kind of evidence that we have heard from
just about every witness that has testified so far. So I do believe under [Evidence Code
section] 352 the probative value is considerable. The prejudicial effect [is] minimal to
nonexistent when taken in context with the other evidence. So I will allow it.”
       Defense counsel asked about a limiting instruction, and the court replied, “I was
going to simply tell the jury what I’m supposed to tell them, which is this statement is not
being admitted for the truth of the matter asserted, that is that [defendant] has some sniper
standing outside the house. But it’s being admitted as circumstantial evidence tending to
show how the victim perceived the tenor of this lawsuit or this litigation.” There was no
further discussion until after Ms. Lucia testified two days later.
       The court did not admonish the jury when Ms. Lucia testified, and later in the day
inquired whether counsel wanted the court “to admonish them now or would you just
simply like to include the admonition in a jury instruction?” After argument about the
content of the admonition, defense counsel ultimately said: “Our request is that the
admonition be that it’s offered not for the truth of the statement, but for the state of mind

                                              85
of the declarant. Period. And if that’s not the admonition, then we are not requesting
one.” After more discussion, the court pointed out it would not admonish “that the
People were offering it solely on the issue of the state of mind, because that would have
been for the truth,” and reiterated that it had ruled that the statement was “circumstantial
evidence corroborating the level of animosity that existed between the parties in this
litigation.” The defense then stated, “we’re not requesting the admonition,” and the court
stated: “All right. I’m not going to say anything then. And I stand ready, willing and
able to do so when requested.”
       b. Defendant’s contentions
       Defendant contends the court committed reversible error by admitting the
testimony, claiming it was “irrelevant and prejudicial hearsay.” We disagree.
       Defendant argues at length that the trial court “erred by admitting evidence of
Thompson’s state of mind, offered under Evidence Code [section] 1250, because the
evidence was irrelevant to [defendant’s] motive.”22 This claim simply misstates the trial
court’s ruling, as well as the prosecutor’s theory of admissibility. The evidence was not
offered to prove Mr. Thompson’s state of mind; the prosecutor explicitly said that
“[w]e’re not offering it under [section] 1250. We are offering it to prove another factor,
which is that this litigation was not one of conciliatory settlement.” And the trial court
refused defense counsel’s request to admonish the jury that the statement was being
offered “on the issue of state of mind, because that would have been for the truth.” Thus
defendant’s extended discussion of whether and when a victim’s out-of-court statements
expressing fear of a defendant are admissible, under section 1250, to prove the
defendant’s motive is entirely inapposite.



22      Evidence Code section 1250 provides that “evidence of a statement of the
declarant’s then existing state of mind . . . is not made inadmissible by the hearsay rule
when: [¶] (1) The evidence is offered to prove the declarant’s state of mind . . . at that
time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence
is offered to prove or explain acts or conduct of the declarant.” (Id., subd. (a).)


                                             86
       Defendant points out that a hearsay objection to an out-of-court statement “may
not be overruled simply by identifying a nonhearsay purpose for admitting the statement.
The trial court must also find that the nonhearsay purpose is relevant to an issue in
dispute.” (People v. Armendariz (1984) 37 Cal.3d 573, 585.) The trial court did exactly
that here.
       When defense counsel suggested the defense was not arguing “that this litigation
was anything less than hostile nor do we intend to,” the trial court “[took] issue with the
statement that you are not disputing the level of hostility.” The trial court pointed out
that the cross-examination of Dolores Cordell the previous day sought to show a
settlement was in the offing, and “if the argument is that it’s the lawsuit that caused
[defendant] to form the intent to have the Thompsons or Mr. Thompson taken out,
certainly that intent would be somewhat vitiated were one to assume that they were on
the verge of a settlement just prior to the murders. Otherwise it would have no
relevance.”23 And in an earlier discussion on the admissibility of the statement, the court
observed that “the fact that the victim appreciated the level of hatred and contempt
communicated by [defendant] to others” was “pretty potent evidence” that “tends to show
that it existed,” contradicting the defense position that defendant’s statements to others
were merely “blowing off steam.” Similarly, the statement tends to corroborate Joel

23     In his reply brief, defendant disavows reliance on the argument that
Mr. Thompson’s statement did not qualify under Evidence Code section 1250’s state-of-
mind exception to the hearsay rule, contending his argument is that Ms. Lucia’s
testimony “was simply irrelevant.” He then cites People v. Jablonski (2006) 37 Cal.4th
774 for the rule that a victim’s out-of-court statements expressing fear of a defendant are
relevant only when the victim’s conduct in conformity with that fear is in dispute. But
Jablonski was construing section 1250: “ ‘As our cases have made clear, “a victim’s out-
of-court statements of fear of an accused are admissible under section 1250 only when
the victim’s conduct in conformity with that fear is in dispute. Absent such dispute, the
statements are irrelevant. [Citations.]” ’ [Citation.]” (Jablonski, at p. 819.) The
prosecutor was clear: “[W]e could probably have 15 witnesses walk into the court . . .
and say Mickey Thompson wasn’t afraid of anything. [¶] We’re not proposing this
evidence to prove fear. We’re proposing this evidence to prove the level of animosity;
the level of vitriol in the litigation in general.”


                                             87
Weissler’s testimony later in the trial that he heard defendant say, in late 1987 or early
1988, that he was “going to hurt [Mr. Thompson] and [his] family.”
       In short, Mr. Thompson’s statement was not offered for its truth. It was offered
for the relevant, nonhearsay purpose of showing Mr. Thompson believed the litigation
with defendant was so vitriolic that he might carry out his threats to kill both Thompsons,
which is circumstantial evidence of defendant’s motive. And there was no abuse of
discretion in the trial court’s conclusion that the evidence was more probative than
prejudicial. The record fully supports the trial court’s observation that the prejudicial
effect was “minimal to nonexistent,” as it was “the same kind of evidence that we have
heard from just about every witness that has testified so far.”24
       For the same reasons – the presentation of similar evidence from many other
witnesses – any error in admission of Ms. Lucia’s testimony would have been harmless
beyond a reasonable doubt. While defendant describes the admission of the testimony as
“extraordinarily damaging,” particularly because of the reference to a sniper and because
of the prosecution’s “hit man” theory, several other witnesses testified to defendant’s
statements about having Mr. Thompson killed. In addition, there was no argument to the
jury referring to the statement about a sniper. So, even if there were error in admitting
Ms. Lucia’s testimony – and we hold there was not – it was harmless.25

24      Defendant also argues the statement did not fall within the spontaneous utterance
exception to the hearsay rule. (Evid. Code, § 1240.) While the trial court briefly referred
to that theory of admissibility, it was not the basis for the trial court’s ultimate ruling (see
fn. 21, ante), so we need not consider the point.

25      Defendant points to the jury foreman’s declaration that the jury “discussed that
this statement was important in that it showed Thompson was in fear and that [defendant]
was the source of that fear,” and that Ms. Lucia “was one of fifteen witnesses who
testified about threats,” and “one of several witnesses regarding the threats that we
deemed credible.” As we observed earlier, statements such as these “concern[] the
mental processes by which [the verdict] was determined” and cannot be used to impeach
the verdict. (Evid. Code, § 1150, subd. (a); Ovando v. County of Los Angeles (2008) 159
Cal.App.4th 42, 58 [“Evidence of jurors’ internal thought processes ordinarily is not
admissible to impeach a verdict.”].)


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7. Evidence of Defendant’s Threats to Third Persons
        Under Evidence Code section 1101, evidence of a person’s character or a trait of
his or her character, including evidence of specific instances of his or her conduct, “is
inadmissible when offered to prove his or her conduct on a specified occasion.” (Id.,
subd. (a).) But section 1101 does not prohibit the admission of evidence “that a person
committed a crime, civil wrong, or other act when relevant to prove some fact (such as
motive [or] intent . . .) other than his or her disposition to commit such an act.” (Id.,
subd. (b); see People v. Catlin (2001) 26 Cal.4th 81, 145, 146 [section 1101
“recognizes . . . that there are facts other than criminal propensity to which other-crimes
evidence may be relevant”; “[t]he categories listed in section 1101, subdivision (b), are
examples of facts that legitimately may be proved by other-crimes evidence, but . . . the
list is not exclusive”].)
        “On appeal, the trial court’s determination of this issue, being essentially a
determination of relevance, is reviewed for abuse of discretion.” (People v. Kipp (1998)
18 Cal.4th 349, 369.)
        Defendant challenges the trial court’s admission of four instances of testimony
from four different witnesses, claiming that the testimony in each instance was forbidden
by Evidence Code section 1101. He also claims the testimony was inadmissible under
section 352, because its probative value was substantially outweighed by the probability
that its admission would “create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (§ 352.) The admission of this evidence, defendant
contends, violated his due process right to a fair trial “because it allowed the jury to find
him guilty of two murders because of the person he was, rather than what he actually
did.”
        We see no abuse of discretion in the trial court’s rulings. In each case, the
evidence consisted of statements by defendant that the trial court correctly viewed as




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admissions,26 and they were offered to prove defendant’s motive or state of mind, not to
prove his disposition to commit murder. Nor was there any error in concluding the
evidence was more probative than prejudicial. The disputed evidence was as follows:
       Charles Stewart Linkletter was permitted to testify to a “diatribe” he heard, while
defendant and Mr. Thompson were negotiating their business agreement, in which
defendant said “he was going to screw Mickey out of his business” and “rip him off.”
(See fn. 2, ante.) Then defendant told Mr. Linkletter, “Stew, if you ever say a word about
this conversation to anybody, I will fucking kill you.”
       Defense counsel argued this evidence “bears no relevance to the murder,” and
“[i]t’s simply to say that [defendant’s] a bad guy.” The trial court disagreed, observing
that “the People’s case rests primarily on the fact that they believe that there was a motive
on the part of [defendant] to do harm to the Thompsons, or Mr. Thompson, because of a
business dispute gone bad leading to a judgment.” And: “[t]his conversation, though, is
specifically with reference to the partnership agreement which formed the basis of a
lawsuit. So I think it’s – I don’t see it as character evidence. I see it as relevant and an
admission on the part of [defendant]. And it tends to show his state of mind with respect
to his business dealings with Mr. Thompson. [¶] In addition, the fact that he makes a
threat, allegedly, to Mr. Linkletter, I can’t imagine that that’s being offered by the People
as [section] 1101 evidence to prove since he made the threat to someone on that occasion,
therefore, he made a threat . . . with respect to this occasion, the 1987/’88 litigation.”
       The court summarized, repeating that the defendant’s statements Mr. Linkletter
overheard were “certainly relevant with respect to his state of mind, which if one were to
believe the statements that he fully intended to rip off Mr. Thompson, which is similar to
the claim, I guess, in the litigation that was pending at the time. [¶] So I do see its
relevance and I don’t see it as too prejudicial. I don’t think the People are offering it to


26     “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 . . . .” (Evid. Code,
§ 1220.)


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prove conduct in conformity with a character trait. I think they’re offering it for a
permissible purpose that does not violate [Evidence Code section] 1101, [subdivision]
(b).”
        In addition, defendant objected to certain of the testimony of Penn Weldon and
Jeffrey Coyne. Penn Weldon was a private investigator; in addition to testifying that
defendant said Mickey Thompson “had ruined his life and he wanted to get even with
him,” Mr. Weldon testified defendant wanted him to place listening devices in the home
and cars of Phillip Bartinetti (Mickey Thompson’s attorney). (See pt. 2.g., ante, of the
facts.) Jeffrey Coyne was the bankruptcy trustee who was marshalling the assets of the
bankruptcy estate; he testified about threats defendant made to him a few weeks before
the murders, after a meeting at which Mr. Coyne had refused several demands defendant
made relating to payments to and from the bankruptcy estate. (Defendant, trembling and
in a “black rage,” said, “You better lighten up or things will get bad,” and “If you fuck up
my life, I’ll fuck up yours.”)27
        The trial court said, as to Mr. Weldon’s testimony, that “there was an established
relationship between Bartinetti’s law firm; Bartinetti himself with the Thompsons.
I mean, I don’t know how you separate them. Being angry at Bartinetti is certainly
relevant on the issue of one’s anger about the lawsuit which is the stated motive for the
murders. So I don’t have a problem with it.” Defendant does not cite any specific
comments by the court as to Mr. Coyne’s testimony, but the prosecutor argued that the
same animosity defendant felt for Mickey Thompson was extended to both Mr. Coyne

27      In his brief, defendant states that Mr. Coyne “told the jurors he was so afraid of
[defendant] he got a bullet-proof vest and a concealed weapons permit.” There was no
such testimony before the jury; in a discussion of Mr. Coyne’s prospective testimony, the
prosecutor told the trial court that the bankruptcy court had approved an application by
Mr. Coyne for a bullet-proof vest and handgun. Mr. Coyne did testify that the threats
defendant made to him had an impact on his decision to resign as trustee: “Those
statements in conjunction with the deaths of Mickey Thompson and his wife Trudy, left
me in a place where I could not objectively work with this estate. I was so angry and so
upset as to have no ability to continue to be fair or even in my own framework be
justified in continuing to do things that required objectivity.”


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and Mr. Bartinetti. The court observed: “[t]he argument is that the defendant made
certain statements which circumstantially tend to indicate that he was going to cause
harm to Mr. Thompson and did, in fact, cause the death,” and “[w]e’re talking about
statements that were made to everyone, . . . including Penn Weldon,” and “these are all
statements of [defendant]. And as such, they would qualify as admissions. They tend to
indicate when taken with other evidence, that he was responsible – [¶] . . . [¶] . . . – for
the crime.”
       And finally, Lance Johnson, a friend of the Thompsons, testified to a threat he
heard defendant make, years after the murders, to Mickey Thompson’s sister: “You’re
going to get yours, bitch.” The court said the statement was “clearly an admission on the
part of the defendant. And it tends to show either he is, in fact, the one that is responsible
for the death of Mr. Thompson and his wife. Or because of being accused of that, he
finds Mrs. Campbell to be the responsible party and now wants to threaten her, which is
consciousness of guilt. [¶] . . . The fact of the matter is it is a statement. It’s probative.
The prejudicial effect is minimal because this whole case has been basically statements of
the defendant.”
       Defendant argues that “hostility toward people other than Thompson did not prove
anything related to the murders,” and in any event the relevance of the testimony was
outweighed by its prejudicial effect. We see no abuse of discretion in the trial court’s
contrary conclusions on both points. We have just described the court’s analysis in some
detail, and that analysis is sound. And even if the testimony were analyzed as evidence
of “prior offenses” that may not be introduced “solely to prove criminal disposition,”
such testimony “may properly be admitted whenever it tends logically, naturally, and by
reasonable inference to establish any fact material for the People . . . .” (People v.
Montalvo (1971) 4 Cal.3d 328, 331-332.) That is the case here.
       In each instance, the testimony described a statement by defendant that was highly
relevant to prove the extreme level of hostility defendant harbored toward
Mr. Thompson, supplying defendant’s motive for the murders. The testimony was not
cumulative because each witness testified to different circumstances in which defendant

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effectively expressed his extreme hatred of Mr. Thompson, sustained over time, either
directly or toward those who allied themselves with Mr. Thompson’s interests and
opposed defendant’s efforts to avoid paying the Thompson judgment. There was nothing
in the testimony to “confuse[] the jury”; nor was any of the cited testimony significantly
more inflammatory than the rest of the evidence. In short, there was no error and, as
necessarily follows, no due process violation.28 (See People v. Partida (2005) 37 Cal.4th
428, 439 [“the admission of evidence, even if erroneous under state law, results in a due
process violation only if it makes the trial fundamentally unfair”].)
8. Character Evidence – Mickey Thompson
       Defendant objected on relevance grounds, and in one instance on “character
evidence” grounds, to a number of questions posed by the prosecutor to several
witnesses. On appeal, he argues the trial court prejudicially erred by permitting
“irrelevant evidence of Thompson’s good character,” and the court “acted contrary to law
– specifically contrary to Evidence Code [section] 1103” when it admitted the evidence.
We find no merit in defendant’s contentions.
       Only relevant evidence is admissible (Evid. Code, §§ 210, 350), and the trial court
“lacks discretion to admit irrelevant evidence.” (People v. Benavides (2005) 35 Cal.4th
69, 90.) Evidence is relevant if it “ ‘tends “logically, naturally, and by reasonable
inference” to establish material facts such as identity, intent, or motive.’ ” (Ibid.) In a
criminal action, evidence of the character of the crime victim “is not made inadmissible
by Section 1101” – which prohibits character evidence to prove conduct on a specified
occasion – if it is offered by the defendant “to prove conduct of the victim in conformity

28      Again, defendant cites the jury foreman’s declaration stating the jury discussed
“the character evidence that had been offered against [defendant],” and that “certain
witnesses clearly painted [defendant] as a good and honorable fellow and [defendant] as
just the opposite.” The “bad character” of defendant was “very evident from the
testimony of these witnesses,” and “we could not escape the reality that, coupled with his
overtly stated hatred of Mickey Thompson, this guy was the kind of guy who was capable
of coordinating this event.” These statements cannot be used to impeach the verdict.
(See fn. 25, ante.)


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with the character or trait of character,” or if it is offered by the prosecutor to rebut such
evidence adduced by the defendant. (§ 1103, subd. (a).)
       We preface our discussion by noting that Evidence Code section 1103 has no
application here. No evidence was offered or admitted to prove any conduct by the
victim in conformity with his character. The only issue is the relevance of the testimony
to prove something other than the victim’s character (which is irrelevant). Defendant’s
claims of error are as follows.
       First, William Wilson, who had worked with both Mickey Thompson and
defendant on various sports promotions and who had both a professional and social
relationship with Mr. Thompson, was permitted to testify about Mr. Thompson’s deep
affection for his wife, over a defense objection that the question “calls for character
evidence” and relevance. Mr. Wilson recounted that at their first dinner together, “all
[Mr. Thompson] could do was talk about Trudy; about how much he loved her; the light
of my life. And he got her a ‘10’ necklace that she wore on her neck with diamonds.
And he just glowed. You could just tell the man was tremendously in love with Trudy.”
       Mr. Wilson’s testimony about Mr. Thompson’s love for his wife was not irrelevant
evidence of his character. It was relevant evidence supporting the inference that the
shootings were planned in such a way as to force Mr. Thompson to watch his wife being
murdered. In his opening statement, the prosecutor told the jury he would prove that
Mickey Thompson was “kept alive” until he could see his wife being executed. And
Allison Triarsi gave testimony lending support to that theory, stating that one of the
gunmen held Mr. Thompson at bay as he pleaded for his wife’s life and while the other
gunman shot Trudy Thompson. The nature of the Thompsons’ relationship was a
material point, as the evidence at the murder scene suggested both Thompsons were
targeted for killing, while defendant’s acrimony was directed at Mr. Thompson, not at
Trudy Thompson. Testimony showing that Mr. Thompson’s devotion to his wife was
apparent to his colleagues was thus relevant to show the motive for murdering Trudy
Thompson.



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       Second, Gregory Smith, the Anaheim Stadium executive who stopped doing
business with defendant and hired Mr. Thompson and another company to produce the
stadium’s motor sports events, testified that it was critical that the promoters they hired
be cooperative in promoting each other’s events. After the witness explained how
Mickey Thompson met that criterion, defendant objected, on relevance grounds, to the
question, “Was he [(Mr. Thompson)] easy or difficult to deal with on a business level?”
Mr. Smith was thus permitted to testify that “Mickey Thompson was a very easy, very
honorable man to deal with.”
       Mr. Smith’s testimony was not irrelevant evidence of Mickey Thompson’s
character. It was relevant evidence explaining why Anaheim Stadium chose to do
business with Mr. Thompson and not with defendant – a decision that angered defendant,
and was part and parcel of events explaining the development of defendant’s extreme
hostility toward Mr. Thompson.
       Third, Philip Bartinetti, Mr. Thompson’s lawyer, testified that he came to know
Mr. Thompson as more than a client. Over a defense objection on relevance grounds,
Mr. Bartinetti was allowed to testify that their relationship “became a very good
friendship.” After a discussion at sidebar where defense counsel objected that the
prosecutor was trying to elicit good character evidence, the prosecutor said he would end
his examination by asking Mr. Bartinetti where and when he found out about Mickey
Thompson’s death. A defense objection on relevance grounds was overruled after the
prosecutor pointed out that Mr. Bartinetti continued to represent the estate after the
murders. Mr. Bartinetti then answered that he was getting ready to go to work and heard
about the murders when he received a phone call between 8:00 and 9:00 on the morning
of the murders.29
       Defendant does not explain how Mr. Bartinetti’s testimony could be “irrelevant
evidence of Thompson’s good character,” since the testimony had nothing to do with
Mr. Thompson’s character. In any event, the testimony about the friendship was relevant

29   Defendant says Mr. Bartinetti testified that the phone call was from Collene
Campbell, but that testimony was stricken from the record.

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in the context of other evidence the prosecutor later elicited to show that defendant’s rage
against Mr. Thompson was so extreme that it extended to his friends and allies. (See
pt. 7, ante.)
       Of course, relevant evidence may be excluded if its probative value is substantially
outweighed by the probability that its admission will “create substantial danger of undue
prejudice . . . .” (Evid. Code, § 352.) Defendant says it is “hard to imagine more
prejudicial facts than that [defendant] – who was known for being loud, obnoxious and
abusive – was allegedly responsible for the brutal murders of two such beloved
individuals,” and that the prosecutor “unfairly set up a good guy / bad guy dichotomy.”
This is mere hyperbole. “Evidence is prejudicial within the meaning of . . . section 352 if
it ‘ “uniquely tends to evoke an emotional bias against a party as an individual” ’ . . . or if
it would cause the jury to ‘ “ ‘prejudg[e]’ a person or cause on the basis of extraneous
factors.” ’ ” (Cowan, supra, 50 Cal.4th at p. 475, citations omitted.) None of the
evidence cited falls into that category.
       The final claim defendant places in his list of “irrelevant evidence of
Mr. Thompson’s good character” involves a photograph of the victims that was
introduced, without objection, for identification purposes. On the first day of testimony,
during the afternoon session beginning at 1:30, defense counsel presented her opening
statement, after which the prosecution called its first witness, William Wilson. Just
before Mr. Wilson testified, a photograph of the victims was marked for identification,
and Mr. Wilson identified the victims and testified he knew them personally.
       Defendant complains that the prosecutors left the photograph on the projector for
the jury to see “during the entire first day’s proceedings” (a clear exaggeration), and that
it was “misconduct” to display a sympathetic photograph to the jury “long after the
purpose of the display had been satisfied.” But the trial court could not see the display
from the bench, and defense counsel did not object until the following day. The trial
court pointed out that the controls to the projector were “right there,” and one of
defendant’s attorneys indicated that he had eventually covered the projector.



                                              96
       But defense counsel told the court “it’s bad form to do it in the first place, and they
know it,” and asked the court “to admonish them that . . . we’re all aware that this was a
trick that happened yesterday and ask that it not be repeated.” The court said, “I can’t say
it was a trick,” and that the simplest thing for defense counsel to have done was to ask,
“Can we approach?” Defense counsel responded that, if she had done so, the photograph
would have been removed and “it would have been quite obvious that we objected to this
nice family photo being up in front of the jury.” When the court then asked what defense
counsel wanted the court to do, counsel said, “Nothing. We’ve had the discussion.
That’s all I was asking.” The court reiterated that it could not do anything unless
something is brought to its attention, “[a]nd I think either counsel can hit that kill switch
[to turn off the projector]. . . . So, I mean, that’s – it’s there. I don’t have access to it, but
you do.”
       The nature of defendant’s claim of error on this point is unclear, but it is clear
there was no error. The photograph was properly admitted for identification and thus was
not “irrelevant evidence of good character.” The trial court cannot correct a problem of
which it is not made aware, and there was no showing of deliberate prosecutorial
misconduct, prejudicial or otherwise. (See People v. Harrison (2005) 35 Cal.4th 208,
242 [“A prosecutor’s misconduct ‘that does not render a criminal trial fundamentally
unfair’ violates California law ‘only if it involves “ ‘the use of deceptive or reprehensible
methods to attempt to persuade either the court or the jury.’ ” ’ ”].) Nothing of the sort
occurred here.
9. The Exclusion of Evidence Claimed to be Exculpatory
       In People v. Hall (1986) 41 Cal.3d 826, 829 (Hall), the Supreme Court
“reaffirm[ed] the admissibility of any relevant evidence that raises a reasonable doubt as
to a defendant’s guilt, including evidence tending to show that a party other than the
defendant committed the offense charged. Such evidence may be excluded only when
the court properly exercises its discretion under Evidence Code section 352 to reject
evidence that creates a substantial danger of undue consumption of time or of
prejudicing, confusing, or misleading the jury.”

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       “To be admissible, the third-party evidence . . . need only be capable of raising a
reasonable doubt of defendant’s guilt. At the same time, we do not require that any
evidence, however remote, must be admitted to show a third party’s possible culpability.
[E]vidence of mere motive or opportunity to commit the crime in another person, without
more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be
direct or circumstantial evidence linking the third person to the actual perpetration of the
crime.” (Hall, supra, 41 Cal.3d at p. 833; accord, People v. Abilez (2007) 41 Cal.4th 472,
517 (Abilez) [“A criminal defendant may introduce evidence of third party culpability if
such evidence raises a reasonable doubt as to his guilt, but the evidence must consist of
direct or circumstantial evidence that links the third person to the crime. It is not enough
that another person has the motive or opportunity to commit it.”].)
       Defendant contends the court denied him due process by excluding evidence of
third party culpability found in Los Angeles Sheriff’s Department investigative files on
the Thompson murders. We disagree.
       a. Defendant’s third party culpability theory
       Defendant proposed to show that a man named Dean Kennedy ordered the
Thompson murders, and they were committed by John Young (a very tall, athletically
built black man) and Kit Paepule (a dark-skinned, very stocky man of Samoan descent).
The theory was that Kennedy ordered the Thompson murders at the instance of a man
named Larry Cowell, who had a motive for having the Thompsons murdered.
       Cowell’s motive for murdering the Thompsons stemmed from Cowell having
killed Scott Campbell (Collene Campbell’s son and Mickey Thompson’s nephew). Scott
Campbell was a drug dealer who in 1979 was convicted of manslaughter in the killing of
another drug dealer who had ties to the Vagos motorcycle gang. Cowell, who owned an
auto repair shop for Pantera sports cars (a type of expensive sports car that Scott
Campbell owned) had been a friend of the Thompson and Campbell families for years.
       In 1982, Scott Campbell, who was then the target of an investigation of interstate
transportation of cocaine, arranged for Cowell to fly him in a private plane to North
Dakota in connection with an anticipated cocaine sale. Before the trip, he left his Pantera

                                             98
at Cowell’s shop for repairs. During the flight, Cowell and Donny DiMascio killed Scott
Campbell and threw him out of the plane. The primary motive was robbery, but
DiMascio was a known Vagos motorcycle gang associate, and the Vagos gang had been
threatening Scott Campbell since the 1979 killing.
       Mickey Thompson testified at Larry Cowell’s first trial for the murder of Scott
Campbell. Cowell had tried to fabricate an alibi for the murder by leaving telephone
messages for Scott Campbell (while he was missing during the weeks after the murder);
the messages said Campbell’s car was ready to be picked up after extensive repairs.
Mr. Thompson testified that he and the police went to Cowell’s shop, and Mr. Thompson
saw that the car was in pieces and missing major parts (as defendant puts it, “the car had
not been repaired at all – ruining the alibi”). Cowell was convicted, but the conviction
was overturned based on a coerced confession, and Mickey Thompson was killed before
the second trial (at which Cowell was again convicted).30
       The theory continues: Cowell, who thus had motive, was a close friend of Ed
Losinski (who owned a Pantera and used Cowell’s repair shop). Losinski was an
engineer and mason who had also known Mickey Thompson for years, had worked on
the Thompson property and would know the neighborhood. Ed Losinski was also a good
friend of Dean Kennedy, whom he had met through the boat racing community; they both
had shops in the same area. Dean Kennedy, in December 1987, ordered two other
murders; he sent John Young and Kit Paepule to kill a drug dealer named Thomas Wilson
(and his girlfriend if she were present), and a week later hired Young to kill Jerome
Genoway (who was being investigated for drug dealing) and the woman who lived with
him (if she was present). Kennedy’s alleged motive for having Wilson killed was that he
had burglarized Kennedy’s home and was “disrespectful,” and his motive for having
Genoway killed was to avoid paying money he owed Genoway. In taped conversations


30      Respondent points out that Mr. Thompson’s testimony was not critical. He
testified that he saw the car at Cowell’s shop, missing major parts that were necessary for
operation of the car, but that occurred a year after Scott Campbell’s murder.


                                            99
between Kennedy and a drug-smuggling friend, Kennedy said he was not worried about
doing time for the Wilson and Genoway murders, because he had a friend who was
willing to take the fall for him in return for cash. (Kennedy was convicted of these
murders and was in custody at the time of the Thompson murders.)
       In addition: Richard Passmore, a neighbor of the Thompsons, saw a maroon
Volvo with two athletic-looking African-American men unloading bicycles within a
couple of blocks of the murder scene a day or two before the murders. Larry Shaleen, a
close friend of Dean Kennedy, saw John Young (one of Kennedy’s hit men) driving a
maroon Volvo in the past. Shaleen visited Kennedy just before Kennedy was arrested,
and noticed two brand new 10-speed bicycles in Kennedy’s garage, when Kennedy was
too overweight to ride a bicycle. (Two of Kennedy’s neighbors, Linda Osborne and
Kathy O’Neill, also saw the bikes, and they heard Kennedy brag about knowing Mickey
Thompson “and about knowing the killers of Mickey Thompson’s nephew Scott
Campbell.”) Hit man John Young “bears an uncanny resemblance” to the composite
drawings made of the men who killed the Thompsons, and his companion Kit Paepule
habitually wore a hooded sweatshirt, as in the composite drawing of the stockier shooter.
(Linda Osborne and Kathy O’Neill also thought the composite drawing of the Mickey
Thompson shooter was John Young.)
       Finally, the defense also sought to introduce evidence to show “that a local drug
user named Joey Hunter was their lookout for this crime.” (We have referred to some of
this evidence in pt. 3.c.x.A. & H., ante.) Five witnesses saw a white man “hitchhiking
frantically” with a bicycle at a bus stop, about two and a half miles from the crime scene
and shortly after the murders. Two of those witnesses identified Mr. Hunter from a
photographic lineup. (The others identified someone other than Hunter, or said the
person they saw was not in the photographs they were shown.) Mr. Hunter was arrested.
He failed polygraph tests regarding his involvement in the Thompson murders, and told a
fellow inmate that he was involved in the murders. He also confessed his involvement to
his cousin, Bonnie Dalton, telling her he was not worried about doing hard time, because
he worked for someone who promised him that if he took the fall he would only get two

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years and would get $50,000.31 (The defense points out that Dean Kennedy similarly
said, as noted above, that he had a friend who was willing to take the fall for the Wilson
and Genoway murders in return for cash.)
       In sum, the defense intended to show – “through the testimony of Larry Shaleen,
Richard Passmore, Linda Osborne, and Kathy O’Neill,” as well as through the testimony
of the two detectives who investigated the Wilson and Genoway murders – “that Dean
Kennedy and his hit men were responsible for the death of Mickey and Trudy
Thompson.” And the defense also intended to show that Joey Hunter was their lookout.
       b. The trial court’s ruling
       The court ruled that the connection “between Kennedy and Larry Cowell coupled
with presumably the two hit men . . . all of that I don’t see any connection. . . . It
certainly made for interesting reading . . . . But I don’t see even a remote theory here of
relevance.”
       As for the Joey Hunter evidence, the court observed that “if, in fact, there are two
witnesses who put Joey Hunter at the scene and there are statements by Joey Hunter
which can be construed as confessions or admissions at that point, perhaps there is
something relevant.” Defense counsel then confirmed its offer of proof as stated by the
court, and further that Joey Hunter’s statement to Ms. Dalton about being paid $50,000 to
take the fall was “a connection in and of itself to Dean Kennedy who indicated the exact
same plan.” The court responded, “it could be. But so it’s so tenuous, I don’t see this.”

31      The prosecutor argued the confession to Hunter’s cousin, Bonnie Dalton, was
unreliable. The prosecutor explained that, before Hunter was interviewed by the police
(but after he was aware of the police’s interest in him), Ms. Dalton asked him if he
murdered the Thompsons, “to which he replied that he did not. Hunter then sarcastically
said ‘I did it, Bonnie, I killed them.’ When she did not respond, he then started laughing
and said ‘Ha, ha, you believe me, don’t you?’ Dalton then told Hunter that he was ‘full
of shit,’ and the conversation ended.” And on the day before Hunter went to the police,
“he got drunk and began rambling. Hunter told Dalton that he was the man on the
bicycle and that the killers were not black but white men spray painted black. He also
said that the Mafia wanted him to turn himself in, and that he would only get two years in
prison. He said that the Mafia would pay him $50,000 for his time in jail.”


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Defense counsel replied that “when you combine all of them” – referring to John Young
driving a maroon Volvo and bicycles at Kennedy’s house when he could not ride them –
with Kennedy, who committed other horrific murders “very similar” to the Thompson
murders, “then the relevance comes. [W]hat we’re failing to do is put them all together.”
       The court said “[t]here is a reason I can’t put them all together because the
connection or the links that you refer to are really tenuous. I just don’t see any
connection whatsoever between [the other contract murders] with this case.” “[I]n terms
of relevance, I don’t see it. . . . What I am willing to say at this point is there may be
some relevant information with respect to the Joey Hunter connection.”
       The court then invited counsel to “[t]ell me how under [Evidence Code
section] 352, the weighing and balancing, would dictate that I allow that information to
come in. Because it does require the testimony of two witnesses who will say that was
him. It does require that the cousin will attribute the two statements to him which could
tend to incriminate him. But I can’t draw any other inferences from any of that. So I’m
left with a perhaps on Joey Hunter.”
       The prosecutor argued defendant could not show the hitchhiker was relevant to the
murder, that it was unlikely Joey Hunter was the hitchhiker, Joey Hunter had an alibi, his
statements to his cousin were “asinine remarks,” and his alleged confession to deceased
inmate Frank Gullet was inadmissible. The tenuous nature of the evidence surrounding
Mr. Hunter was “no better than the other 1300 clues that we’ve had saying I know the
white guy on the bicycle.”
       The court asked defense counsel if Joey Hunter could be connected to the crime
scene, since the defense theory was that he was a lookout, not one of the perpetrators.
Counsel said that two witnesses said the shooter at the bottom of the driveway “could
have been white.” Also, counsel had spoken to the person who gave Mr. Hunter an alibi,
and if that person were to testify, he would say he had no recollection whatsoever. One
of Trudy Thompson’s several broken-off acrylic fingernails was found east of the
driveway where her body lay, and counsel said this was circumstantial evidence she had



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run out of the driveway and then turned back because someone was standing on Woodlyn
Lane, and that person would have had to be white to avoid attracting attention.
       The court then said that “it just boils down to what I seem to think potentially
might have relevance is Joey Hunter. But, again, that depends on a connection between
Joey Hunter and the crime scene. And I’m not hearing it.” The court concluded that
“whatever relevance the information regarding Joey Hunter might have, at this time I
can’t say that that relevance outweighs the undue consumption of time; confusion of the
issues; and the potential for prejudice. But primarily the undue consumption of time and
the confusion of the issues. [¶] . . . I’m not finding that connection which I would like
to see. So I’m not foreclosing this forever. I’m just saying right now I agree there is
some evidence to suggest that at least according to Bonnie Dalton that this Joey Hunter
had admitted some responsibility for the murders. [¶] Other than that . . . there are then
two potential witnesses . . . who place Joey Hunter perhaps a few miles away hitchhiking
with a bicycle. At this point, I just don’t have that missing link. [¶] If . . . any of the
witnesses that I hear at the trial refer to an individual who appears to match the
description of Joey Hunter as a look-out, I’m certainly willing to change my mind. But at
this point, I think it has marginal relevance. And the other side of that, under [Evidence
Code section] 352, just overwhelms and outweighs the marginal relevance I think it has.”
       c. Conclusions
       We see no abuse of discretion in the exclusion of the proffered evidence of third
party culpability.
       Hall is quite clear, and we repeat: “[E]vidence of mere motive or opportunity to
commit the crime in another person, without more, will not suffice to raise a reasonable
doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking
the third person to the actual perpetration of the crime.” (Hall, supra, 41 Cal.3d at
p. 833.)
       As to the theory that Dean Kennedy ordered the murders, there was no link at all
between him and “the actual perpetration of the crime.” To recap: The only third person
identified with a conceivable motive was Larry Cowell, who may have wanted to prevent

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Mickey Thompson from testifying at his second trial. But there was no connection
between Cowell and Kennedy, except (1) they were both friends of Ed Losinski, who was
familiar with the Thompson neighborhood, and (2) two of Kennedy’s neighbors said that
Kennedy said that he knew Scott Campbell’s murderers (of whom Cowell was one). But
evidence – even if it were not inadmissible hearsay – that Kennedy knew Cowell does not
by any stretch of the imagination create a link to the Thompson murders. (According to
the prosecutor, in January 1998 Kennedy was specifically asked if he knew Cowell, and
confirmed he did not.) And except for the hearsay statement from Kennedy’s neighbors
(that he bragged that he knew Mickey Thompson), there was no evidence linking
Kennedy himself to the Thompsons, much less to their murders. In addition, both
Kennedy and Cowell were in custody, in separate facilities in different parts of
California, when the Thompsons were murdered. In short, under the Hall requirements,
the Dean Kennedy evidence was plainly not relevant. (Hall, supra, 41 Cal.3d at p. 833;
People v. Edelbacher (1989) 47 Cal.3d 983, 1018 [“Quite apart from the obvious hearsay
problems, defendant’s proposed evidence did not . . . link any third person to the
commission of the crime.”].)
       As to the theory that Joey Hunter was the lookout, there was likewise no abuse of
discretion in the court’s exclusion of defendant’s proffered evidence. Mr. Hunter himself
had no motive to murder the Thompsons; defendant showed no connection of any kind
between Joey Hunter and Larry Cowell or Dean Kennedy or Ed Losinski or Kennedy’s
two hit men for the other contract murders; and there is no evidence Joey Hunter was at
the crime scene. And, as respondent points out, the actual perpetrators of the Thompson
murders made their escape from the scene in minutes over a bike route leading to quick
freeway access – so even if Hunter was correctly identified as the man “frantically
hitchhiking” with a bicycle, two miles from the murder scene and an hour later, it is hard
to see how he could have been part of the conspirators’ plan for the Thompson murders.
So in the end, in light of the lack of any evidence linking Joey Hunter to the crime scene,
only his own statements to his cousin (see fn. 31, ante) and to deceased inmate Frank
Gullet (see pt. 3.c.x.H., ante) provide any kind of connection to the “actual perpetration

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of the crime.” Under these circumstances, the court did not err in finding that under
Evidence Code section 352, the undue consumption of time and confusion of the issues
“just overwhelms and outweighs the marginal relevance” of the Joey Hunter evidence.
       Having failed to show any link between the Dean Kennedy/Larry Cowell evidence
and “the actual perpetration of the crime,” or between Kennedy or Cowell or anyone else
and Joey Hunter, defendant asserts that it was error to evaluate the evidence “solely under
the third party culpability standard” required by Hall. This is because “the point of this
proposed evidence was not to show that a specific third party was guilty of the offense
charged,” as in Hall, “but rather to show the investigators were given information about
Joey Hunter and other likely suspects and did not even pursue it.” Because of this
“failure to pursue other leads,” defendant says, it is “unreasonable” to require him to
comply with Hall by presenting evidence that links those other suspects to the crime.
The exclusion of “the proposed evidence of what the police failed to do when
investigating the Thompson murders,” he says, violated his due process rights; that
evidence “would have helped prove what defense counsel identified as the central issue
of [defendant’s] defense: if evidence did not point to [defendant], then investigators
would not look at it.” The Los Angeles Sheriff’s Department investigators “could have
been questioned about the information in their investigative reports,” which were “[t]he
sources of most of the evidence that other people committed the Thompson
murders . . . .”
       We note first that the assertion, repeated many times in defendant’s briefs, that
investigators would not look at evidence if it did not point to defendant, is only that: an
assertion without support in the record. The police obviously did investigate Joey Hunter
(and indeed arrested him at an early stage).32 In 1998, police interviewed Kit Paepule

32     Apparently defendant’s complaint is that Detective Griggs did not interview Joey
Hunter, and that “investigators never contacted Hunter again after 1988.” (Defense
counsel below asserted, “every single time this case was reopened, not a single
investigator went to contact [Joey Hunter].” She claimed this was relevant to the defense,
“separate and apart whether we are blaming him for the murder. It’s not for the truth of
whatever he was or whatever he did, it’s for the fact that because somewhere along the

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and John Young about the Thompson murders, both of whom denied involvement.
(Young, serving life without parole, took full responsibility for the Wilson/Genoway
murders but adamantly denied any involvement in the Thompson murders.) Apparently,
police also interviewed Dean Kennedy, who denied knowing Larry Cowell. The
suggestion that police did not continue to pursue Joey Hunter after 1988, because
somehow they knew Hunter would not implicate defendant in the plot, is little short of
ludicrous. As the trial court noted at the hearing on defendant’s new trial motion, even if
defendant could show Joey Hunter was present as a look-out – and the defense presented
no such evidence – that “doesn’t mean that there is a reasonable doubt that [defendant]
was involved.”
       In short, it is complete speculation to suggest that the reason defendant could not
establish the requisite link between Dean Kennedy (or any of the other hypothetical
conspirators) and the crime was because the police “conducted a wholly inadequate,
botched investigation,” thus violating defendant’s due process rights. There is simply no
reason to believe that, if only the police had investigated other suspects further than they
did, they would have been able to connect Dean Kennedy or Joey Hunter or any of the
others to the murders.33 Defendant cites no legal authority for the notion that, because
counsel identified the claim of a “botched” or “biased” investigation as the “central issue
of [defendant’s] defense,” the court therefore “had to permit him to use any available
evidence casting doubt” on the investigation, without regard to the rules of evidence. We


line some investigator said this guy is never going to lead you to [defendant], no
investigator subsequently sat down with an interview with Joey Hunter; not since 1988.
And that is relevant. And to be precluded from that is to be precluded from having a
defense in general.”) The trial court pointed out that was not the motion before the court,
and “I can’t say without hearing what is going to be presented that you would not be able
to elicit testimony regarding what leads were followed and what leads were ignored. I’m
just not prepared to say that.”

33     Defendant’s example of the “botched investigation” – other than not re-
investigating Joey Hunter after 1988 – was that investigators never tested fingernail
scrapings taken from the Thompsons (the defense later did so, with no useful results).


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thus reject defendant’s attempt to avoid the application of the principles established in
Hall for the exclusion of third party exculpatory evidence – principles correctly applied
by the trial court when it excluded the proffered testimony.
       Defendant’s reliance on cases such as Chambers v. Mississippi (1973) 410 U.S.
284 (Chambers) for his due process claim does not persuade us otherwise. In Chambers,
the application of state evidentiary rules, “under the facts and circumstances of [that]
case,” deprived the defendant of a fair trial. (Id. at p. 303.) There, a third person named
McDonald had signed a sworn confession and later repudiated it. (Id. at pp. 288-289.)
At defendant Chambers’ trial, the state court excluded hearsay testimony critical to the
defense: testimony that McDonald had orally confessed the murder to three different
friends (confessions that were corroborated by other evidence in the case, and that bore
persuasive assurances of trustworthiness). This exclusion – coupled with the state’s
refusal to permit the defendant to cross-examine McDonald because of a state rule that a
party may not impeach his own witness – denied the defendant a trial “in accord with
traditional and fundamental standards of due process.” (Id. at p. 302.)
       This is not a case like Chambers. As the high court tells us, “Chambers
specifically confined its holding to the ‘facts and circumstances’ presented in that case;
we thus stressed that the ruling did not ‘signal any diminution in the respect traditionally
accorded to the States in the establishment and implementation of their own criminal trial
rules and procedures.’ [Citation.] Chambers therefore does not stand for the proposition
that the accused is denied a fair opportunity to defend himself whenever a state or federal
rule excludes favorable evidence.” (United States v. Scheffer (1998) 523 U.S. 303, 316
(Scheffer).)
       Scheffer states the applicable rule: “A defendant’s right to present relevant
evidence is not unlimited, but rather is subject to reasonable restrictions. . . . [S]tate and
federal rulemakers have broad latitude under the Constitution to establish rules excluding
evidence from criminal trials. Such rules do not abridge an accused’s right to present a
defense so long as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are
designed to serve.’ . . . [W]e have found the exclusion of evidence to be

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unconstitutionally arbitrary or disproportionate only where it has infringed upon a
weighty interest of the accused.”34 (Scheffer, supra, 523 U.S. at p. 308, citations and fn.
omitted; see Holmes v. South Carolina (2006) 547 U.S. 319, 325 (Holmes) [describing
“arbitrary” rules as “rules that excluded important defense evidence but that did not serve
any legitimate interests”].)
       As Holmes tells us: “While the Constitution thus prohibits the exclusion of
defense evidence under rules that serve no legitimate purpose or that are disproportionate
to the ends that they are asserted to promote, well-established rules of evidence permit
trial judges to exclude evidence if its probative value is outweighed by certain other
factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.”
(Holmes, supra, 547 U.S. at p. 326.) And as Holmes further tells us, “A specific
application of this principle is found in rules regulating the admission of evidence
proffered by criminal defendants to show that someone else committed the crime with
which they are charged,” and “[s]uch rules are widely accepted.” (Id. at p. 327.)
       That is the case here. Nothing in California’s principles governing the exclusion
of third party exculpatory evidence is arbitrary or disproportionate to the purposes they
are designed to serve. As our Supreme Court has expressly stated, “the ordinary rules of
evidence, including the application of Evidence Code section 352, do not infringe on the


34     Defendant relies at length on Tinsley v. Borg (9th Cir. 1990) 895 F.2d 520, saying
Tinsley “outline[s] the test to be applied in evaluating whether excluding defense
evidence amounts to a due process violation under Chambers . . . .” Tinsley does not
even cite Chambers, and did not involve third party exculpatory evidence. Tinsley
merely tells us that, “[t]o evaluate whether the exclusion of evidence reaches
constitutional proportions, we should consider five factors: (1) the probative value of the
excluded evidence on the central issue; (2) its reliability; (3) whether it is capable of
evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely
cumulative; and (5) whether it constitutes a major part of the attempted defense,” and
“[w]e must then balance the importance of the evidence against the state interest in
exclusion.” (Tinsley, at p. 530.) In the context of the exclusion of third party exculpatory
evidence, we analyze the issue consonant with precedents from the high court and our
own Supreme Court.


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accused’s due process right to present a defense.” (People v. Frye (1998) 18 Cal.4th 894,
948; accord, Hall, supra, 41 Cal.3d at pp. 834-835.) Consequently, there is no merit to
defendant’s claim that the exclusion of the proffered evidence violated his due process
right to present a defense.
10. The Exclusion of Hearsay Evidence of Mickey Thompson’s Purchase
    or Intent to Purchase Gold Just Before the Murders
       a. The factual background and rulings
       During the case-in-chief, defense counsel asked Detective Verdugo if he had any
reason to believe Mickey Thompson had recently made a large purchase of gold coins,
but the detective knew nothing about that. Later, during the defense case, defense
counsel offered to present testimony that, in the weeks and months before the murders,
Mr. Thompson talked about buying gold, and the night before the murder, Eric Miller
heard him say that he had just taken possession of $250,000 in gold. (See pt. 7.b. of the
facts, ante.)
       Defense counsel agreed with the trial court that the defense wanted “to show that
basically Mr. Thompson was announcing to others his plan to acquire a large amount of
gold.” The trial court observed that “[w]e’re not dealing with a hearsay exception, we’re
dealing with circumstantial evidence to show that others may have had a motive.” The
court said that if the defense could show the safe in the garage was empty and had pry
marks on it, the testimony “may have a great deal of relevance.” The court concluded it
“would like to hear the foundation that the safe was empty and there were pry marks,”
and if that testimony were presented, Mr. Miller’s testimony would be relevant as
circumstantial evidence of motive. “So I’m certainly happy to reconsider [the
admissibility of Mr. Miller’s testimony] based on what the defense has yet to present.”
       The next day, the prosecutor told the court that police reports showed the damage
to the garage safe occurred weeks after the murders. The court agreed that, if the defense
could not show that the safe had been tampered with on the day of the murders, then the
necessary foundation for relevance of the proffered testimony would be missing.



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       Defense counsel then stated that Lee Haslam and other witnesses would say that
Mr. Thompson said he intended to buy gold, “which is a different statement” and
admissible under Evidence Code section 1250. (Section 1250 is an exception to the rule
against hearsay, for “a statement of the declarant’s then existing state of mind, . . .
(including a statement of intent [or] plan . . . ),” when the evidence “is offered to prove
the declarant’s state of mind . . . at that time or at any other time when it is itself an issue
in the action,” or when it is “offered to prove or explain acts or conduct of the declarant.”
(§ 1250, subd. (a).)) The court said that Mr. Thompson’s “state of mind with respect to
purchase of gold” was not an issue in the case. If there were evidence there was gold in
the house and there was gold taken, the court said, that could be presented, but even if
Mr. Thompson’s statements could be admitted as a state of mind exception, “the
relevance of that is speculative at best.”
       Defense counsel then asked to present testimony from Detective Laporte about
Mr. Miller’s statement. This testimony “would not be offered for the truth,” but for the
“failure to investigate whether or not there were valuables in this garage.” The trial court
agreed that the defense could “present all you want about the failure to investigate,” but
“a statement made by Mr. Thompson prior to the murders that he was going to buy gold
doesn’t lead us anywhere.” The court said the defense could “ask the question as to what
[the police] did or what they didn’t do without assuming facts that aren’t in
evidence. . . .” When defense counsel sought to elicit testimony from Detective Laporte
that Mr. Miller told him Mr. Thompson had made a large purchase of gold recently,
saying it was “not offered for the truth,” but “to see what he did as a result of that
information,” the court sustained the prosecutor’s hearsay objection. Detective Laporte
then testified that his notes showed he interviewed Eric Miller and Lee Haslam; his
reports would have been given to the lead investigators; and he did not try to obtain any
financial records.
       Then, defense counsel sought to introduce Mr. Miller’s testimony about Mickey
Thompson’s statement, not for its truth, but “to explain why we’re asking these officers”
whether they sought Mr. Thompson’s financial records, that is, “for the purpose of

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showing that the police did not investigate that angle.” When the court asked defense
counsel why she could not elicit the information “in a way that would meet your needs,
which is: Did Mr. Miller provide information to the investigators which was not
followed up,” counsel said that would be out of context, “[w]ithout saying that it was
information about a recent purchase of a significant valuable item.” The court asked,
“Well, why not refer to it that way,” and counsel responded, “I would love to refer to it
that way. That’s why I’m asking the court’s guidance as to that. I would be happy to not
bring up the quote of the statement if I could say to Officer Laporte: Did you receive
information from Eric Miller that Mr. Thompson had just come into a very valuable
commodity in the last several days?” And “the only thing further I would go is: What
did you do as a result? What did you follow-up on?” The court ruled: “I think that’s
fair. Because we’re dealing with a statement that’s not being offered for the truth. But
I’m attempting to sanitize it so that there is no danger of this jury being misled.” Further,
“I don’t see a danger here in eliciting this type of testimony keeping it limited without
reference to gold. I mean I’m just afraid that the jury will misconstrue it or be misled.
So I think the way we just agreed to handle it is appropriate.”
       Defense counsel then elicited testimony from Eric Miller and Detective Laporte.
When Mr. Miller was asked if he told Detective Laporte that Mickey Thompson had
taken possession of a valuable item recently, Mr. Miller said he “[did not] recall anything
regarding taking possession, no.” When asked if Mr. Thompson indicated he had made a
recent purchase, Mr. Miller said, “No.” As previously described (pt. 7.b. of the facts,
ante), Detective Laporte then testified that Eric Miller had told him Mr. Thompson said
he had taken possession of a valuable item of a specific dollar amount, and that he
(Detective Laporte) did not, and was not directed to, match up the dollar amount
specified with any of Mr. Thompson’s financial records, or look at his financial records at
all. (The trial court admonished the jury that “this is being offered not for the truth of
what Mr. Thompson may have said to Mr. Miller, but to explain the conduct of Officer
Laporte.”)



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       b. Contentions and conclusions
       On appeal, defendant argues that Mr. Thompson’s statements “about buying or
having received gold were statements of intent . . . to perform an act and admissible to
prove Thompson bought and received gold.” Defendant contends the trial court erred in
“sanitizing” the testimony so that there was no reference to gold; this deprived him of key
evidence that the killers were there to rob, not execute, the Thompsons, “and
investigators ignored this lead in their zeal to see [defendant] prosecuted,” violating his
right to present a defense.
       We find no error by the trial court.
       First, Mr. Thompson’s statement that he had recently taken possession of a large
amount of gold is not a statement of his “existing state of mind” or “intent” or “plan.” It
is hearsay as to which there is no applicable exception.
       Second, the other statements defendant proffered – from Lee Haslam and others
that Mr. Thompson said he intended to purchase gold – are statements of intent or plan.
But to be admissible under Evidence Code section 1250, Mr. Thompson’s intent to
purchase gold must be “itself an issue in the action” (id., subd. (a)), and it was not. To
the extent defendant suggests Mr. Thompson’s statements of intent to purchase gold were
offered to prove that he did purchase gold – that is, if the statements were “offered to
prove . . . conduct of the declarant” (ibid.) – it is irrelevant. Mr. Thompson’s state of
mind (intent to buy gold) would have been relevant had there been any evidence of a
robbery, or evidence that he communicated his intent to someone involved in the
murders, or evidence there was gold on the premises, but there was no such evidence.
The only evidence defendant can cite is that, according to one witness, one of the
escaping bicyclists was carrying a white canvas bag, and a coin dealer testified that gold
coins are delivered in white canvas bags (usually with a metal seal on the top).35



35     Lance Johnson described a small bag, about 12 inches long and four inches wide,
“slung over the right shoulder” of the first bicyclist he could see; the bag “went up to a
drawstring, so it was more or less pear shaped,” and he could not remember the color.

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       Evidence of a gunman fleeing on a bicycle with a white canvas bag, however, is
not credible evidence of a robbery, and all the evidence was to the contrary. There was
no evidence valuables were taken; there was evidence of money and jewelry left at the
scene of the crime; there was no evidence of forced entry into the house; the garage door
was closed; and there was no evidence of pry marks on the garage safe on the day of the
murders. Under these circumstances, it was not an abuse of discretion to refuse to admit
hearsay evidence that Mr. Thompson intended to buy gold.
       Defendant insists the evidence was admissible under People v. Alcalde (1944) 24
Cal.2d 177, 187 (Alcalde), where the court stated the “[e]lements essential to
admissibility” of declarations of intent to do an act in the future. (The Legislature later
codified the Alcalde decision in Evidence Code section 1250.) (See People v. Majors
(1998) 18 Cal.4th 385, 404 (Majors).) These essential elements are “ ‘that the
declaration must tend to prove the declarant’s intention at the time it was made; it must
have been made under circumstances which naturally give verity to the utterance; it must
be relevant to an issue in the case.’ ” (Ibid., quoting Alcalde, at p. 187.) Defendant’s
claim again falters on the relevance element.
       As Majors tells us, Alcalde “considered the admissibility of a decedent’s statement
that she was planning to go out with a man named Frank, the defendant’s nickname, on
the night she was killed.” (Majors, supra, 18 Cal.4th at p. 404.) Applying the essential
elements test, Alcalde concluded that the murder victim’s statement was admissible
because “it was a natural utterance made under circumstances which could create no
suspicion of untruth in the statement of her intent,” and “[u]nquestionably the deceased’s
statement of her intent and the logical inference to be drawn therefrom, namely, that she
was with the defendant that night, were relevant to the issue of the guilt of the
defendant.” (Alcalde, supra, 24 Cal.2d at pp. 187-188, italics added.) In addition, in
Alcalde “the declaration was not the only fact from which an inference could be drawn


Sandra Johnson told police that one of the men was carrying a white canvas bag,
shopping bag size.


                                             113
that the deceased was with the defendant that night.” (Id. at p. 188; see also Majors, at p.
405 [“[a]s in Alcalde, there are ample ‘corroborating circumstances’ ”].)
       Defendant claims the three essential elements in Alcalde were met, but we do not
agree. There is no “logical inference” to be drawn from Mr. Thompson’s statements that
he intended to buy gold, and consequently there is no relevance to any issue in the case.
We cannot logically infer from Mr. Thompson’s statements that the gold was at the
Thompson residence, or that the Thompson murderers knew about it, or that there was a
robbery. Mr. Thompson’s intent to buy gold is only relevant if there were evidence of a
robbery, and there was not. Accordingly, there was no abuse of discretion in the trial
court’s rulings that testimony about Mr. Thompson’s statements was hearsay and
inadmissible for its truth.
       As described above, the trial court permitted the defense to inquire about Mickey
Thompson’s statement to Mr. Miller, not for its truth, but in order to prove an inadequate
police investigation of Mr. Thompson’s purchase of gold (which would have been
traceable). Defendant asserts the court had no authority to “sanitize” the statement so
that it referred to a valuable item, rather than gold, and that this “vitiated the meaning and
the impact of the evidence.”
       Defendant cites no authority for this claim, and we know of none. The evidence
was admitted for a limited purpose, and that purpose was served when defendant was
permitted to elicit testimony that police did not investigate the recent purchase of a
valuable item or look at Mr. Thompson’s financial records at all. The court’s ruling
allowed the defense to make its point about inadequate investigation, while avoiding
having the jury misled by the unsupportable implication there was gold on the premises.
There was no error in the trial court’s approach.
11. The Exclusion of Evidence that Joey Hunter Failed Three Polygraph
    Examinations
       Evidence Code section 351.1 prohibits the admission of polygraph evidence in any
criminal proceeding: “Notwithstanding any other provision of law, the results of a
polygraph examination, the opinion of a polygraph examiner, or any reference to an offer


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to take, failure to take, or taking of a polygraph examination, shall not be admitted into
evidence in any criminal proceeding, . . . unless all parties stipulate to the admission of
such results.” (Id., subd. (a).)
       Despite the clarity of the statutory prohibition, defendant contends the trial court
should have admitted evidence that Joey Hunter failed three polygraph examinations,
even though the prosecutor would not stipulate. The exclusion of the evidence that Joey
Hunter failed polygraph tests, he says, “prevented him from impeaching Griggs,
Lillienfeld and the other investigators on a crucial issue – whether the murders were fully
and fairly investigated.”
       When the trial court refused to admit the evidence, it pointed out that it had
excluded third-party culpability evidence, and consequently, “even assuming that you are
not violating [Evidence Code] section 351.1, how is this relevant? I just don’t see the
relevance . . . given the third-party culpability hearing that we had and the rulings that I
made. [¶] I think you can certainly present your witnesses to testify as to what was done
and what wasn’t done to some extent. But I don’t think you can go that far. I do believe
it’s an exclusionary rule that basically precludes any reference to a polygraph in this case.
And that is my ruling.”
       There was no error in the trial court’s ruling. The statute unambiguously states
that “the results of a polygraph examination . . . shall not be admitted into evidence in any
criminal proceeding . . . .” (Evid. Code, § 351.1, subd. (a).) “The statutory ban against
admission of polygraph evidence ‘ “is a ‘rational and proportional means of advancing
the legitimate interest in barring unreliable evidence.’ ” ’ [Citations.]” (People v.
McKinnon (2011) 52 Cal.4th 610, 663 (McKinnon).) The statute contains no exceptions
to the rule. (Ibid. [“The state’s exclusion of polygraph evidence is adorned with no
exceptions, and its stricture on admission of such evidence has been uniformly enforced
by this court and the Court of Appeal.”].)
       Further, the categorical rule against the admission of polygraph evidence does not
violate due process or the right to present a defense. (People v. Richardson (2008) 43
Cal.4th 959, 1032 [“in People v. Wilkinson (2004) 33 Cal.4th 821 . . . we . . . squarely

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held that the categorical exclusion of the results of such examinations did not violate the
federal Constitution”]; see also Scheffer, supra, 523 U.S. at pp. 305, 315 [a military rule
making polygraph evidence inadmissible in court-martial proceedings did not
unconstitutionally abridge the right of accused members of the military to present a
defense; per se rule excluding all polygraph evidence “offend[ed] no constitutional
principle”].)
       Defendant nevertheless argues that the evidence was not offered “to endorse or
attack the credibility of the answers Joey Hunter gave during his polygraph
examinations,” but “as an operative fact” to demonstrate that investigators “did not
follow their own protocols” and “did not follow facts pointing to other suspects” because
they “had already fixed on [defendant] as the perpetrator.”36 Evidence Code
section 351.1, however, does not distinguish among the purposes for which the results of
a polygraph test are offered. In McKinnon, the court expressly rejected a claim that
polygraph evidence was properly admitted, “not to endorse or attack the credibility of
answers given during a polygraph examination, but to explain why [a witness], in his
postpolygraph statement to police, changed his story about his involvement in the murder
and implicated defendant as the killer.” (McKinnon, supra, 52 Cal.4th at p. 663
[declining to recognize “a state-of-mind exception to . . . section 351.1 for this limited
purpose”].) Similarly, in People v. Samuels (2005) 36 Cal.4th 96, 128, evidence that the
defendant cooperated with police by offering to take, and passing, a polygraph

36      Defendant cites several Ninth Circuit cases saying that polygraph evidence is
inadmissible if offered to prove the truth or falsity of the polygraph results, but
“polygraph evidence which is an operative fact may be admissible.” (United States v.
Bowen (9th Cir. 1988) 857 F.2d 1337, 1341 [“If the polygraph evidence is being
introduced because it is relevant that a polygraph examination was given, regardless of
the result, then it may be admissible; or if the evidence is being introduced as a basis for a
cause of action, then it may be admissible as well.”].) Here, the polygraph evidence does
not fit in either of those categories, and in any event none of the cases defendant cites
involves Evidence Code section 351.1 (or any other statute) expressly stating that “the
results of a polygraph examination . . . shall not be admitted into evidence in any criminal
proceeding . . . .”


                                             116
examination was not admissible to refute the prosecution’s evidence that the defendant
was uncooperative during the investigation.
       In the face of these authorities, defendant’s contention that an exception to
Evidence Code section 351.1 should be made, where polygraph results are offered to
“impeach[] the investigation,” is without merit. The trial court did not err.
12. The Conspiracy Instructions
       Defendant contends the trial court’s instructions on uncharged conspiracy vitiated
the presumption of innocence and lowered the prosecutor’s burden of proof. We review
this claim of instructional error de novo, and conclude there was no error.
       Defendant first argues that no conspiracy instructions should have been given,
because the prosecutor made no prima facie showing of the existence of a conspiracy by
independent evidence. We have considered and rejected that claim in part 2, ante.
       Next, defendant argues the conspiracy instructions were incomplete and
misleading. We see no merit in this claim either.
       The court instructed the jury on uncharged conspiracy with CALJIC No. 6.10.5
(defining the terms “conspiracy” and “overt act” and describing the elements necessary to
find defendant to be a member of a conspiracy).37 In addition, the court gave CALJIC


37       The trial court instructed, based on CALJIC No. 6.10.5: “A conspiracy is an
agreement between two or more persons with the specific intent to agree to commit the
crime of murder, and with the further specific intent to commit that crime, followed by an
overt act committed in this state by one or more of the parties for the purpose of
accomplishing the object of the agreement. Conspiracy is a crime, but is not charged as
such in this case. [¶] In order to find a defendant to be a member of a conspiracy, in
addition to proof of the unlawful agreement and specific intent, there must be proof of the
commission of at least one overt act. It is not necessary to such a finding as to any
particular defendant that defendant personally committed the overt act, if he was one of
the conspirators when the alleged overt act was committed. [¶] The term ‘overt act’
means any step taken or act committed by one or more of the conspirators which goes
beyond mere planning or agreement to commit a crime and which step or act is done in
furtherance of the accomplishment of the object of the conspiracy. [¶] To be an ‘overt
act,’ the step taken or act committed need not, in and of itself, constitute the crime or
even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor
is it required that the step or act, in and of itself, be a criminal or unlawful act.”

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No. 6.12 (that proof of an express agreement is not necessary, and may be inferred from
all circumstances tending to show the common intent),38 as well as CALJIC No. 6.11 (on
joint responsibility of each member of a conspiracy for the acts of the other conspirators)
and CALJIC No. 6.14 (that acquaintance with all coconspirators is not necessary).39
       Defendant argues that the trial court also should have instructed with CALJIC
No. 6.22. That instruction says that each defendant in a conspiracy case is individually
entitled to a determination whether he or she was a member of the conspiracy, and that
the jury must find, beyond a reasonable doubt, that there was a conspiracy to commit the
crime, that a defendant “willfully, intentionally and knowingly” joined with others in the
conspiracy, and that one of them committed an overt act.40 Defendant argues that, by
including CALJIC No. 6.12 (that proof of an express agreement is not necessary), but


38     Under CALJIC No. 6.12, the court instructed: “The formation and existence of a
conspiracy may be inferred from all circumstances tending to show the common intent
and may be proved in the same way as any other fact may be proved, either by direct
testimony of the fact or by circumstantial evidence, or by both direct and circumstantial
evidence. It is not necessary to show a meeting of the alleged conspirators or the making
of an express or formal agreement.”
39     In the trial court, defendant argued that CALJIC No. 6.10.5 (defining conspiracy
and overt acts) was the only conspiracy instruction that should be given in an uncharged
conspiracy case.

40     CALJIC No. 6.22 – entitled “conspiracy – case must be considered as to each
defendant” – states: “Each defendant in this case is individually entitled to, and must
receive, your determination whether [he] [she] was a member of the alleged conspiracy.
As to each defendant you must determine whether [he] [she] was a conspirator by
deciding whether [he] [she] willfully, intentionally and knowingly joined with any other
or others in the alleged conspiracy. [¶] Before you may return a guilty verdict as to any
defendant of the crime of conspiracy, you must unanimously agree and find beyond a
reasonable doubt, that (1) there was a conspiracy to commit the crime[s] of , and (2) a
defendant willfully, intentionally and knowingly joined with any other or others in the
alleged conspiracy. You must also unanimously agree and find beyond a reasonable
doubt, that an overt act was committed by one of the conspirators. You are not required
to unanimously agree as to who committed an overt act, or which overt act was
committed, so long as each of you finds beyond a reasonable doubt, that one of the
conspirators committed one of the acts alleged in the [information] [indictment] to be
overt acts.”

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failing also to instruct with CALJIC No. 6.22, the court “did not make clear for the jury
that a conspiratorial agreement must be proved beyond a reasonable doubt,” and thus
“misled” the jurors.41 Defendant also asserts that CALJIC No. 17.00 – instructing the
jury to “decide separately whether each of the defendants is guilty or not guilty” (italics
added) – should have been given. Defendant is mistaken.First, defendant did not request
the court to instruct with CALJIC Nos. 6.22 and 17.00 (or CALJIC No. 6.18).42 “To the
extent defendant’s claim is that the court failed to give clarifying or amplifying
instructions, the claim is waived because defendant did not request such clarification
below.” (People v. Jenkins (2000) 22 Cal.4th 900, 1020.)
       Second, CALJIC No. 6.22 by its plain terms is intended for use in a case where
multiple defendants are charged with the crime of conspiracy (and CALJIC No. 17.00 is
likewise for use in a multiple-defendant case). This case involves neither multiple
defendants nor a conspiracy charge. A trial court has no sua sponte duty to give an
instruction that does not apply to the case.
       Third, there is in any event no merit to the claim that the instructions as given
somehow “lowered the prosecutor’s burden of proof.” “It is well established in
California that the correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.” (People v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other
grounds in People v. Reyes (1998) 19 Cal.4th 743, 753-754, 756; accord, People v.
Williams (2008) 161 Cal.App.4th 705, 711 [concluding the Judicial Council’s criminal

41     Defendant does not challenge the court’s other conspiracy instructions (CALJIC
Nos. 6.11 and 6.14), observing only that CALJIC No. 6.11 “does not satisfy the purpose
of CALJIC No. 6.22.”

42     Defendant states that the court did not instruct the jury “in the language of
CALJIC 6.22 or 6.18,” but he presents no explanation or argument about CALJIC
No. 6.18, except to say that the trial court’s failure to give it “compounded this
[instructional] error.” (CALJIC No. 6.18 states that “[e]vidence of the commission of an
act which furthered the purpose of an alleged conspiracy is not, in itself, sufficient to
prove that the person committing the act was a member of the alleged conspiracy.”)


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jury instruction on evidence of uncharged conspiracy (CALCRIM No. 416) did not
reduce the prosecutor’s burden of proof].)
       Here, the jury was instructed that a conspiracy was “an agreement between two or
more persons with the specific intent to agree to commit the crime of murder,” and the
instruction made it quite clear that the prosecutor had to prove the agreement, the intent
to agree to commit murder, and an overt act: “In order to find a defendant to be a
member of a conspiracy, in addition to proof of the unlawful agreement and specific
intent, there must be proof of the commission of at least one overt act.” (Italics added.)
The jury was also instructed that “each fact which is essential to complete a set of
circumstances necessary to establish the defendant’s guilt must be proved beyond a
reasonable doubt.” The jury was instructed that “before an inference essential to
establish guilt may be found to have been proved beyond a reasonable doubt, each fact or
circumstance on which the inference necessarily rests must be proved beyond a
reasonable doubt.” (CALJIC No. 2.01.) The jury was instructed that defendant was
presumed to be innocent and the People had “the burden of proving [defendant] guilty
beyond a reasonable doubt.” (CALJIC No. 2.90.) The jury was instructed that the
burden was “on the People to prove beyond a reasonable doubt that the defendant is the
person who committed the crime with which he is charged.” (CALJIC No. 2.91.)
       In short, it is quite clear that, “[c]onsidered as a whole, the instructions did not
reduce the prosecution’s burden of proof.” (People v. Williams, supra, 161 Cal.App.4th
at p. 711.) There was no error.
13. The Jury Instruction on Eyewitness Identification
       Defendant argues the trial court violated his state and federal due process rights
when it instructed the jury that it could consider a witness’s level of certainty when
evaluating an eyewitness’s identification. We disagree.
       The court instructed the jury, without objection, with a modified version of
CALJIC No. 2.92, as follows: “Eyewitness testimony has been received in this trial. In
determining the weight to be given eyewitness identification testimony, you should
consider the believability of the eyewitness as well as other factors which bear upon the

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accuracy of the witness’ identification of the defendant, including, but not limited to, any
of the following: [¶] . . . [¶] The extent to which the witness is either certain or
uncertain of the identification . . . .” The instruction also listed a dozen other factors the
jury should consider, including the length of time between the act and the identification,
whether the identification is in fact the product of the witness’s own recollection, and so
on.43
        The witness’s certainty or uncertainty has long been used as a factor in evaluating
eyewitness identifications, and its use does not violate due process. In Neil v. Biggers
(1972) 409 U.S. 188, the court found that, under the totality of the circumstances, the
show-up identification in that case was reliable “even though the confrontation procedure
was suggestive.” (Id. at p. 199.) The court continued: “As indicated by our cases, the
factors to be considered in evaluating the likelihood of misidentification include the
opportunity of the witness to view the criminal at the time of the crime, the witness’
degree of attention, the accuracy of the witness’ prior description of the criminal, the
level of certainty demonstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation.” (Id. at pp. 199-200; see also Manson v.
Brathwaite (1977) 432 U.S. 98, 117 (Manson) [“the criteria laid down in Biggers are to
be applied in determining the admissibility of evidence offered by the prosecution

43      The factors listed in the instruction were: “The opportunity of the witness to
observe the act and the perpetrator of the act; [¶] The stress, if any, to which the witness
was subjected at the time of the observation; [¶] The witness’ ability, following the
observation, to provide a description of the perpetrator of the act; [¶] The extent to
which the defendant either fits or does not fit the description of the perpetrator previously
given by the witness; [¶] The cross-racial or ethnic nature of the identification; [¶] The
witness’ capacity to make an identification; [¶] Evidence relating to the witness’ ability
to identify other perpetrators of the act; [¶] Whether the witness was able to identify the
alleged perpetrator in a photographic or physical lineup; [¶] The period of time between
the act and the witness’ identification; [¶] Whether the witness had prior contacts with
the perpetrator; [¶] The extent to which the witness is either certain or uncertain of the
identification; [¶] Whether the witness’ identification is in fact the product of his her
own recollection; and [¶] Any other evidence relating to the witness’ ability to make an
identification.”


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concerning a[n] . . . identification”]; see also Perry v. New Hampshire (2012)
___ U.S. ___ [132 S.Ct. 716, 725, fn. 5, 728] [footnoting the factors as listed in Biggers
and Manson, and holding that “[t]he fallibility of eyewitness evidence does not, without
the taint of improper state conduct, warrant a due process rule requiring a trial court to
screen such evidence for reliability before allowing the jury to assess its
creditworthiness.”].)
       Further, as defendant admits, the California Supreme Court has approved CALJIC
No. 2.92. (People v. Johnson (1992) 3 Cal.4th 1183, 1230-1231 (Johnson) [“CALJIC
No. 2.92 normally provides sufficient guidance on the subject of eyewitness
identification factors”].) Johnson rejected a claim of trial court error in instructing the
jury on the certainty factor. (Id. at pp. 1231-1232 [the defendant contended there was no
evidence to support the instruction because an expert testified, without contradiction, that
a witness’s confidence in an identification does not positively correlate with its accuracy;
the court concluded the trial court “did not err . . . in instructing the jury on the ‘certainty’
factor”].) Johnson also cited the certainty factor when it restated “the principles that
determine whether the admission of identification evidence violates a defendant’s right to
due process.” (Id. at p. 1216.) The court said that “[c]onstitutional reliability . . .
depends on (1) whether the identification procedure was unduly suggestive and
unnecessary [citing Manson]; and, if so, (2) whether the identification itself was
nevertheless reliable under the totality of the circumstances, taking into account such
factors as the opportunity of the witness to view the criminal at the time of the crime, the
witness’s degree of attention, the accuracy of his prior description of the criminal, the
level of certainty demonstrated at the confrontation, and the time between the crime and
the confrontation. [Citation.] ‘If, and only if, the answer to the first question is yes and
the answer to the second is no, is the identification constitutionally unreliable.’
[Citation.]” (Ibid.)
       In the face of this solid body of law, defendant nonetheless argues the instruction
violated his right to due process, because “[s]ubsequent research . . . has shown the



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certainty with which the witness makes the identification has little correlation with the
accuracy of that identification.” The argument fails.
       First, defendant did not object to the instruction; indeed, CALJIC NO. 2.92
appears on defendant’s list of requested instructions. When an instruction is a correct
statement of the law and the defendant claims it should have been modified, “his failure
to seek such modification forfeits the claim.” (People v. Richardson, supra, 43 Cal.4th at
pp. 1022-1023 [“while the court may review unobjected-to instruction that allegedly
implicates defendant’s substantial rights, claim that instruction, correct in law, should
have been modified ‘is not cognizable, however, because defendant was obligated to
request clarification and failed to do so,’ ” quoting People v. Guerra, supra, 37 Cal.4th at
p. 1134].)
       Second, we cannot in any event find a due process violation. Defendant relies
only on authorities from other jurisdictions, such as Brodes v. State (2005) 279 Ga. 435.
There, the court held (over a dissent) that, because of studies showing no correlation
between certainty and accuracy, “we can no longer endorse an instruction authorizing
jurors to consider the witness’s certainty in his/her identification as a factor to be used in
deciding the reliability of that identification.” (Id. at p. 440.) But cases from other
jurisdictions do not assist defendant, as we are bound by the decisions of our Supreme
Court and the high court and, as we have seen, their directions are clear.
       We cannot end without noting that “the jury, not the judge, traditionally
determines the reliability of evidence,” and there are “other safeguards built into our
adversary system that caution juries against placing undue weight on eyewitness
testimony of questionable reliability.” (Perry v. New Hampshire, supra, 132 S.Ct. at
p. 728.) These safeguards include counsel who “can expose the flaws in the eyewitness’
testimony during cross-examination and focus the jury’s attention on the fallibility of
such testimony during opening and closing arguments” (ibid.), as well as expert
testimony – both of which safeguards were well employed in this case.




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14. The Flight Instruction
       The defense objected to the prosecution’s request for an instruction on flight after
crime (CALJIC No. 2.52), and requested that, if the instruction were given over the
objection, it should be modified. The trial court agreed with the requested modification,
and instructed the jury as follows: “The flight of a person after the commission of a
crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but
is a fact which, if proved, may be considered by you in light of all other proved facts in
deciding whether a defendant is guilty or not guilty. Whether or not evidence of flight
shows a consciousness of guilt and the significance to be attached to such a circumstance,
are matters for your determination.”
       Defendant contends it was error to give the flight instruction. We disagree.
       a. The evidence
       Karen Dragutin testified (see pt. 2.h. of the facts, ante) to threatening statements
defendant made about Mickey Thompson during a dinner conversation in the months
preceding the murders. These included that “the only way he [defendant] was going to
get out of it [(the litigation mess)] is if Mickey Thompson died.” Ms. Dragutin said
defendant “was talking about a boat and going to Bermuda, and it was still in the context
of that conversation. So my conclusion was he was going away.”
       The facts relating to the yacht are recounted in part 5, ante, of the factual
summary. In short, defendant’s wife made a deposit for the purchase of a yacht in
January 1988, received approval of a bank loan for the yacht on March 9, 1988, and
consummated the sale in late April or early May. On June 27, 1988, defendant took the
57-foot yacht, which was outfitted such that two people could live on it for an extended
period of time, to a South Carolina marina for installation of equipment, and the yacht
was there for six weeks. In early August, defendant unexpectedly asked the marina
manager to expedite the work; the manager did so, and defendant sailed away. In
May 1991, the bank holding the mortgage on the yacht hired a boat surveyor to repossess
the yacht, and during his efforts to do so, defendant told him by telephone that “he would



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never find his boat.” The surveyor ultimately located the yacht and defendant in
Guatemala.
       Detective Griggs testified that he never caused a case to be filed against defendant,
never arrested him, and at no time sought to arrest him and could not find him.
       b. The law
       “[Penal Code] [s]ection 1127c requires a trial court in any criminal proceeding to
instruct as to flight where evidence of flight is relied upon as tending to show guilt.”44
(People v. Carter (2005) 36 Cal.4th 1114, 1182 (Carter).) CALJIC No. 2.52 is derived
from section 1127c. (Carter, at p. 1182.) “In general, a flight instruction ‘is proper
where the evidence shows that the defendant departed the crime scene under
circumstances suggesting that his movement was motivated by a consciousness of guilt.’
[Citations.] Flight requires ‘ “a purpose to avoid being observed or arrested.” ’
[Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 710 (Avila) [police searched
unsuccessfully for defendant in 1991 and 1992, and he was ultimately arrested more than
four years after the crimes at the Los Angeles International Airport; that was “ ‘sufficient
evidence to warrant instructing the jury to determine whether flight occurred, and, if so,
what weight to accord such flight’ ”; the instruction “ ‘adequately conveyed the concept
that if flight was found, the jury was permitted to consider alternative explanations for
that flight other than defendant’s consciousness of guilt’ ”].)
       CALJIC No. 2.52 does not require “a defined temporal period within which the
flight must be commenced . . . .” (Carter, supra, 36 Cal.4th at p. 1182 [where defendant
“left California in the days immediately following the charged offenses” and was in

44      Penal Code section 1127c provides: “In any criminal trial or proceeding where
evidence of flight of a defendant is relied upon as tending to show guilt, the court shall
instruct the jury substantially as follows: [¶] The flight of a person immediately after the
commission of a crime, or after he is accused of a crime that has been committed, is not
sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may
consider in deciding his guilt or innocence. The weight to which such circumstance is
entitled is a matter for the jury to determine. [¶] No further instruction on the subject of
flight need be given.”


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possession of a vehicle belonging to the murder victim when he was arrested in Arizona,
the flight instruction “plainly was warranted”].) “[A] flight instruction does not create an
unconstitutional permissive inference or lessen the prosecutor’s burden of proof, and is
proper even when identity is at issue.” (Avila, supra, 46 Cal.4th at p. 710.)
       c. Contentions and conclusions
       Defendant first contends the flight instruction “improperly focused the jury’s
attention on ‘flight’ evidence where little evidence connected [defendant] to the killings.”
Defendant’s premise – that little evidence connected him to the crimes – is unsound, and
the only authority he cites is not California authority. In California, the flight instruction
is proper if “ ‘the evidence shows that the defendant departed the crime scene under
circumstances suggesting that his movement was motivated by a consciousness of guilt’ ”
(Avila, supra, 46 Cal.4th at p. 710), and that is the only pertinent question. The evidence
we have described above – relating to the purchase of the yacht, its outfitting, and
defendant’s subsequent sailing to parts unknown, along with his statements before the
murders “about a boat and going to Bermuda,” in the context of other statements that “the
only way he was going to get out of it [(the litigation mess)] is if Mickey Thompson
died” – permits the inference that defendant left Los Angeles “ ‘under circumstances
suggesting that his movement was motivated by a consciousness of guilt.’ ” (Ibid.)
       Next, defendant says the instruction was defective because it omitted the word
“immediate,” which appears in Penal Code section 1127c, and because defendant had not
been accused of the murders when he “went sailing.” There was no defect. The statutory
language includes the flight of a person both “immediately after the commission of a
crime” and “after he is accused of a crime that has been committed . . . .” (§ 1127c.) As
defense counsel told the trial court in seeking dismissal of the case, defendant “was a
named suspect within hours of the murder.” And, in any event, CALJIC No. 2.52
“neither requires knowledge on a defendant’s part that criminal charges have been filed,
nor a defined temporal period within which the flight must be commenced . . . .” (Carter,
supra, 36 Cal.4th at p. 1182.)



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       Finally, defendant contends the instruction was erroneous because the court
excluded evidence that defendant had, through counsel, “offered to make himself
available in Los Angeles should his presence be required by investigators – a fact
vitiating an inference [defendant] ‘fled’ to avoid arrest.” This contention has no merit
either. First, defendant offers no argument or legal authority to suggest the court’s
evidentiary ruling was erroneous, and so we need not consider the point. (People v.
Stanley (1995) 10 Cal.4th 764, 793.) Second, there was in any event no error in the
evidentiary ruling. Defendant is referring to a letter from then-defense counsel Al Stokke
to Detective Griggs in October 1988, apparently offering to make defendant available in
Los Angeles if needed. But Mr. Stokke had told police, just a few hours after the
murders, and again at a later meeting among Detective Griggs, defendant and Mr. Stokke,
that defendant would not make any statement. The trial court ruled that if the defense
adduced the statement from Mr. Stokke’s letter, the prosecutor could bring out
Mr. Stokke’s previous statement that defendant would not talk to the police; otherwise
the jury would be misled into inferring that defendant was cooperating with the police.
Defense counsel then apparently chose not to adduce the letter or any testimony about it.
There was no error in the trial court’s ruling.45
       Defendant repeatedly contends the flight instruction provided the jury with an
improper basis from which to infer defendant “had a culpable mental state at the time of
the offense.” But the Supreme Court has repeatedly held otherwise. (People v. Welch
(1999) 20 Cal.4th 701, 757 [“ ‘[T]he flight instruction “[does] not address the defendant’s
mental state at the time of the offense and [does] not direct or compel the drawing of
impermissible inferences in regard thereto” ’ ”]; see also People v. Smithey (1999) 20
Cal.4th 936, 983, citing cases.)



45      “Doyle [v. Ohio (1976) 426 U.S. 610] forbids impeachment of a defendant’s
exculpatory trial testimony with cross-examination about his or her postarrest silence
after receiving Miranda warnings.” (People v. Tate (2010) 49 Cal.4th 635, 691-692.)
Defendant here had not been arrested when he declined to cooperate with the police.


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         In sum, it is error to instruct on flight when there is no evidence of flight. (People
v. Kessler (1968) 257 Cal.App.2d 812, 815.) Here, there was evidence of flight. Flight
requires “ ‘ “a purpose to avoid being observed or arrested” ’ ” (Avila, supra, 46 Cal.4th
at p. 710), and the evidence we have described easily permits that factual determination.
(See Abilez, supra, 41 Cal.4th at p. 522 [“ ‘the instruction did not assume that flight was
established, leaving that factual determination and its significance to the jury’ ”];
cf. Carter, supra, 36 Cal.4th at pp. 1182-1183 [“even if we were to conclude the
instruction should not have been given, any error would have been harmless. The
instruction did not assume that flight was established, but instead permitted the jury to
make that factual determination and to decide what weight to accord it”].) There was no
error.
15. The Prosecutorial Misconduct Claims
         Defendant contends the prosecutor committed numerous acts of prosecutorial
misconduct. We do not agree.
         The Supreme Court has summarized the standards under which we evaluate a
claim of prosecutorial misconduct. “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.” (People v. Morales (2001) 25 Cal.4th 34, 44
(Morales).)
         “ ‘ “ ‘[A] prosecutor is given wide latitude during argument. The argument may
be vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom. [Citations.]’ . . .
‘A prosecutor may “vigorously argue his case and is not limited to ‘Chesterfieldian
politeness’ ” [citation], and he may “use appropriate epithets . . . .” ’ ” [Citation.] ’
[Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 819.) When a prosecutorial
misconduct claim focuses on comments the prosecutor made before the jury, “the

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question is whether there is a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.” (Morales, supra, 25 Cal.4th
at p. 44.)
       The defendant may not complain on appeal of the prosecutor’s misconduct unless
he timely objected at trial “and also requested that the jury be admonished to disregard
the perceived impropriety.” (People v. Thornton (2007) 41 Cal.4th 391, 454.) If the
defendant objected, or if an objection would not have cured the harm, we ask whether the
improper conduct was prejudicial, that is, whether it is reasonably probable a result more
favorable to the defendant would have occurred if the prosecutor had refrained from the
misconduct. (People v. Haskett (1982) 30 Cal.3d 841, 866.) Prosecutorial misconduct
requires reversal under federal law unless the misconduct was harmless beyond a
reasonable doubt. (People v. Cook (2006) 39 Cal.4th 566, 608.)
       a. Claims of misconduct in the prosecutor’s opening statement
       Defendant contends the prosecutor made “numerous bad faith and prejudicial
statements” during his opening statement, “promising evidence he failed to produce.” As
we address defendant’s often hyperbolic (and sometimes misleading) claims, it is well to
bear in mind the applicable principles.
       It is, of course, improper “to make assertions of fact in an opening statement that
the prosecutor cannot prove and does not intend to prove . . . .” (5 Witkin, Cal. Criminal
Law (4th ed. 2012) Criminal Trial, § 621, p. 963.) “But mere failure to prove every point
asserted does not amount to prejudicial misconduct,” and “[m]ere discrepancy between
statement and proof is not reversible error.” (Ibid.) “[R]emarks made in an opening
statement cannot be charged as misconduct unless the evidence referred to by the
prosecutor ‘was “so patently inadmissible as to charge the prosecutor with knowledge
that it could never be admitted.” ’ [Citation.]” (People v. Wrest (1992) 3 Cal.4th 1088,
1108 (Wrest).) And misconduct in an opening statement “is not grounds for reversal of
the judgment on appeal unless the misconduct was prejudicial or the conduct of the
prosecutor so egregious as to deny the defendant a fair trial.” (People v. Harris (1989)
47 Cal.3d 1047, 1080.)

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        In this case, we see no misconduct. As was true in Wrest, “in each case, the
variance between prosecutorial statement and actual proof is minor or nonexistent. In no
case can an inference of misconduct be drawn.” (Wrest, supra, 3 Cal.4th at p. 1108.)
        Defendant cites nine instances of alleged misconduct in the prosecutor’s opening
statement.
               i. The first three claims of misconduct
        Defendant’s first three claims of misconduct are based on the following portion of
the prosecutor’s opening statement. The prosecutor referred to Allison Triarsi and her
parents, Phyllis and Anthony Triarsi, neighbors who could look down on the crime scene
area, and said:
        “And what they will tell you is that after a volley of several gunshots had been
levied, presumably against Mickey Thompson – because of the autopsy findings, it’s
presumable that Mickey Thompson was shot multiple times before the coup d’ gras [sic]
shot.
        “As a matter of fact, the evidence will show that’s exactly what happened based
on the witness’s observations. As he stood at the top of the driveway, the other gunman
shot at the van. The van had several bullet holes in it. Trudy Thompson was either
pulled from or fell out of the van. She then got down to her knees.
        “The injuries that she sustained indicate the following: she was crawling down the
driveway. It is a very, very steep driveway. She was crawling down that driveway for
her life. All of her acrylic fingernails began breaking off. She was skinning and scraping
her knees. She was in a dress that day.
        “The second gunman followed Trudy Thompson all the way down the driveway;
gun in hand covering her; but he didn’t kill her yet. That will become incredibly
important in this trial. He didn’t kill her yet. Mickey Thompson, though shot several
times – Mickey Thompson ultimately suffered seven separate gunshot wounds.
Seven. . . .
        “And he was shot several times in the abdomen; in the hips; in the buttocks;
through the arm. But he was kept alive. And the evidence will show that at any point at

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any time either of the gunmen could have put Mickey Thompson down like that, one shot
to the head would do it. But they didn’t. He was disabled, but he was kept alive.
        “Meanwhile Trudy Thompson was being covered by the other gunman. And once
they were in a position that they could see each other and Mickey Thompson could
clearly watch, the second gunman put the gun to the back of Trudy’s head and fired a
bullet through her brain. The evidence will show that Mickey Thompson’s last vision on
this planet was that of his wife being executed.
        “[T]he second gunman then screwed that .9 millimeter pistol into the left ear of
Mickey Thompson, literally his left ear and fired a bullet that passed completely through
his brain and he was killed. Witnesses saw this, then watched as the gunman jumped on
bicycles and began to pedal off. . . . ”
        Based on that opening statement, defendant complains (1) that Phyllis and
Anthony Triarsi did not testify at trial, and that no witness testified to “[the prosecutor’s]
‘dance of death.’ ” He also asserts (2) the prosecutor “failed to present any evidence that
‘Trudy died first’ or the shooter held her head up by her hair before shooting her.” And
he contends (3) there was no evidence a gun was “screwed into [Mickey Thompson’s]
left ear,” or that he “was shot to incapacitate him but kept alive so he could watch Trudy
die.”
        First, we do not see misconduct in the prosecutor’s mention of Allison Triarsi’s
parents as anticipated eyewitnesses, along with Miss Triarsi. Nor can we see what
possible prejudice could flow from a prosecutorial decision to produce only one witness
instead of three. And, contrary to defendant’s assertions, the prosecutor said nothing
about a “dance of death” in his opening statement.
        Second, the prosecutor at no point suggested in his argument that “the shooter held
[Trudy’s] head up by her hair before shooting her.” Defendant’s insinuation that the
prosecutor said this is incorrect.46

46     Defense counsel, in cross-examination of Lance Johnson, elicited his testimony
about this scenario in order to show the witness’s bias. Mr. Johnson admitted that he had
participated in various television shows recreating the crime, and even though he did not

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       Third, Allison Triarsi’s testimony was substantially consistent with the
prosecutor’s argument that Mickey Thompson was kept alive to watch his wife die. As
more fully described in part 4.a. of the facts, ante, Miss Triarsi testified there was a man
with Mickey Thompson who “had a gun and was directing him and making him go in
certain directions”; she heard Mickey Thompson saying, over and over, “Please don’t kill
my wife,” a statement directed to another man “at the bottom of the driveway who had a
gun and coming towards Trudy”; it appeared Mickey Thompson was trying to go to his
wife, and the gunman was “hold[ing] him at bay with an outstretched hand with the gun
in his hand”; and then the gunman near Trudy shot her in the head. Miss Triarsi testified
that she did not remember what the gunman who shot Trudy did next, “because the next
thing I remember Mickey is getting shot.” This is plainly evidence that “Trudy died
first.” (And, the medical examiner, Dr. Lisa Scheinin, indicated the gunshot wound to
Mr. Thompson’s head was most likely the last of the wounds inflicted on him.)
       Fourth, as for the prosecutor’s statements that the gunman “screwed that
.9 millimeter pistol into his left ear and fired a shot through Mickey’s brain,” respondent
acknowledges this was an overstatement. As Dr. Scheinin testified, there was
“absolutely” no evidence that anyone “screwed a gun in to [Mickey Thompson’s] ear and
fired a bullet.” But Dr. Scheinin also testified that the gunshot wound was “consistent
with someone putting a weapon close within inches behind Mr. Thompson’s ear and
firing it.” We consider this inconsistency between the prosecutor’s opening statement
and the evidence actually adduced to be inconsequential. (See People v. Dykes (2009)
46 Cal.4th 731, 761-762 [“the evidence may not have established that the victim died
looking at his grandmother, but there was evidence that could support the view that the
child was leaning toward his grandmother when he was shot”; any inconsistency was



witness the murders, he told the producers on camera that his understanding of how the
crime occurred was that Trudy Thompson’s head was held up by the hair, so that Mickey
Thompson could see the killers shoot her in the head, after which they shot
Mr. Thompson.


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inconsequential]; cf. Harris, supra, 47 Cal.3d at p. 1079 [“We reject what appears to be
an attempt to elevate hyperbole into misconduct.”].)
       Finally, in his reply brief, defendant claims respondent conceded misconduct by
failing to address a claim he made in his opening brief (in connection with his argument
that “nobody testified to [the prosecutor’s] ‘dance of death’ ”). Defendant asserted,
without elaboration, that “[n]o witness testified” to the following statement of the
prosecutor (made while showing photographs of the crime scene and arguing this was a
professional hit, not a robbery, and that the Thompsons could see each other): “All the
blood Mickey Thompson was losing at the top of the driveway will suggest that he was
crawling in circles in this area (indicating),” and “ultimately was shot to death right
where the white sheet is.” Defendant does not explain how this is in any way significant,
and again, any inconsistency with the evidence is inconsequential. There was no
misconduct.
              ii. The bankruptcy fraud claim
       In his opening statement, the prosecutor explained that, after defendant declared
bankruptcy, Mr. Thompson was the most aggressive of defendant’s creditors, and as a
creditor he had two options. The prosecutor continued:
              “And these are important options to understand . . . . [¶] . . .
       Option 1, pay me what you owe me. That’s all I ask for. You can do
       whatever you want to with the rest of the creditors. But pay me what you
       owe me and then go on about your business. . . . [¶] Option 2, pay me
       what you owe me. And I’m going to show the bankruptcy court that you
       have engaged in fraud, deceit, lying on the court, and the bankruptcy court
       won’t discharge any of your debt. [¶] Guess which one Mickey chose?
       Option 2. That was the objection that Mickey filed with the bankruptcy
       court. That case was supposed to go to trial on March 18th. Mickey
       Thompson was killed two days beforehand.”
       Defendant contends this argument was misconduct because “[t]he prosecutor
failed to prove [defendant] committed bankruptcy fraud.” The short answer to this claim
is that the prosecutor did not say he would prove defendant committed bankruptcy fraud;
he said that Mr. Thompson intended to offer proof to the bankruptcy court that defendant
had engaged in fraud. And the prosecution presented considerable evidence of

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defendant’s improper actions during the bankruptcy. For example, and as more fully
described in part 1 of the facts, ante, when Jeffrey Coyne was appointed bankruptcy
trustee, he discovered “there was no operating company to run,” as “the operating part”
had been sold to a company owned and operated by defendant’s wife and another person.
Mr. Coyne found “lots of gaping holes” and determined that the transfer “was all done for
the purpose of moving the business without paying the creditors,” the most vocal of
whom was Mr. Thompson. Mr. Coyne testified to his belief the activity of defendant, his
wife, and the entities in the transaction was fraud affecting Mr. Thompson’s rights as a
creditor.
       In short, while defendant was not convicted of bankruptcy fraud – he was
convicted of filing false loan documents, a fact never published to the jury – the
prosecutor did not say otherwise, and there is obviously no misconduct.
              iii. Deputy John Williams
       Defendant next cites as misconduct this part of the prosecutor’s opening
statement:
       “I told you about that prized Mercedes, that 1982 SL coupe. Mickey Thompson
went after that as a personal asset. It was ultimately seized by authorities. We will
introduce you to Deputy John Williams who is now a public official in Orange County;
no longer a serving officer. But he is a serving public official, an elected official.
       “He will tell you that when he walked up to notify [defendant] that he was going
to have to seize his car, he had legal documentation that entitled him, John Williams, to
seize the car, [defendant] flew into one of his famous violent rages. He flew into a rage.
He turned beet red. His neck got thick. Every vein on his face started sticking out. And
he screamed, ‘He doesn’t know who he’s fucking with. He’s fucking dead . . . if he
thinks he’s going to take my car. The car was, in fact, taken.”
       Defendant cites this as misconduct, saying the prosecutor “failed to prove
[defendant] made threats in the presence of Deputy John Williams.” He is wrong.
Mr. Williams testified just as the prosecutor said he would. But he also said his best
recollection was that the incident occurred in late 1987 or early 1988, while other

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witnesses and documentation showed a levy occurred in June or July 1986. Defendant
says Mr. Williams’s testimony was “false” because defendant was in bankruptcy since
the fall of 1986, so the car could not have been seized in 1987 or 1988 to satisfy
Mr. Thompson’s judgment. But mistaken testimony is not “false” testimony. (Indeed,
Mr. Williams was adamant, even when confronted with evidence that a levy occurred in
1986, that the incident he described “did not occur in August of 1986,” and that he was
“never told, even by the defendant, he was in bankruptcy or I wouldn’t have taken his
car.”) There is simply no support for defendant’s assertion that the prosecutor “failed to
prove [defendant] made threats in the presence of Deputy John Williams,” much less that
the prosecutor’s opening statement was “knowingly false and made in bad faith” and a
“deliberate misstatement.” There was no misconduct.
              iv. Allegedly false promises of testimony
       Next, defendant makes several claims that the prosecutor “falsely promised”
testimony or evidence that was not presented.
       First, defendant again returns to the prosecutor’s statement (see pt. i, ante) about
the bullet through Mickey Thompson’s brain, killing him. The prosecutor continued:
“Witnesses that saw this, then watched as the gunman [sic] jumped on bicycles and began
to pedal off.” Defendant complains that “[n]obody testified to seeing the gunmen jump
on bicycles and pedal off.” That is true, but inconsequential. Witnesses heard the
gunfire, and just after that Lance Johnson saw two men on bicycles riding down the
Thompson driveway towards Woodlyn Lane. And Allison Triarsi heard the clicking of
the bicycles, “[l]ike a ten speed bike,” moving the back way out of the Thompson
property. Plainly, “the variance between prosecutorial statement and actual proof is
minor” and an inference of misconduct cannot be drawn. (Wrest, supra, 3 Cal.4th at
p. 1108.)
       Next, defendant asserts the prosecutor “falsely promised” the evidence would
show defendant planned the murders, “but no such evidence was presented.” This is a
frivolous contention as to which defendant does not elaborate, and we do not consider it
further.

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       Defendant also asserts misconduct in the final lines of the prosecutor’s opening
statement, where the prosecutor said: “He [(defendant)] would see that Mickey
Thompson was killed before he ever got a dime of his [(defendant’s)] money. And how
do we know that? Because we got it from the absolute, most reliable source.
[Defendant] said so.” This is misconduct, defendant says, because “no confession was
presented to the jury.” This claim is nonsense. The prosecutor did not claim that
defendant confessed. The prosecutor presented testimony from Gregory Keay that
defendant said “Mickey was out to get all of his money and before that would happen, he
would have him wasted.” And Joel Weissler testified that he heard defendant tell
Mr. Thompson, “You will never see a cent of it. I’m going to hurt you and your family.”
That is just what the prosecutor said, and defendant’s claim to the contrary is
disingenuous at best.
       Finally, defendant asserts misconduct in the prosecutor’s statement that: “And
through this whole thing every single witness, every witness who heard anything, from
the Johnsons to the Hackmans to the Triarsis, every witness that heard anything heard the
same thing from Mickey Thompson. . . . Mickey Thompson repeated over and over,
‘Please, please don’t hurt my wife.’ ” Defendant points out that the Hackmans did not
testify, and neither did the Triarsi parents. Again, this is inconsequential. Three of the
witnesses mentioned did testify, and they all said what the prosecutor said they would
say. As noted above, we do not see misconduct in the mention of anticipated witnesses
who are not produced, when other witnesses provide the promised testimony. There was
no misconduct.
              v. Ronald Stevens’s photo identification
       In his opening statement, the prosecutor talked about Ronald and Tonyia Stevens
seeing defendant outside their home and their report of that incident to the police years
later. The prosecutor continued: “Ron Stevens was asked if he would look at a series of
photographs first. He said, sure, I’ll look at a series of photographs and see if I can
identify the person. He looked at the photographs and he pointed to a particular picture.”



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       Defendant contends this was misconduct, because the prosecutor “knew at the
time he made this statement it was false because he possessed a recording of that
identification procedure, during which Ron indicated he was unable to narrow his choice
down to fewer than three men . . . .”
       We cannot find misconduct on this record. Mr. Stevens testified that when he was
shown the photographs, he “was asked if [he] recognized anyone in the picture as being
the person in that car,” and he said, “Yes, I did.” He said he recognized “No. 3, the top
right corner,” and that was defendant. Mr. Stevens was then asked on cross-examination,
“Do you recall . . . that you actually weren’t really able to draw it to No. 3, you actually
narrowed it down to three out of the six?” and he replied, “No, I don’t.” The defense
then played audio recordings in court of portions of the photographic identification
procedure. A transcript of the audio recording (defense exhs. Z-1 & AA-1) shows
Mr. Stevens saying, “[I]t was this color of hair but it was this type of nose, but was that
type of complexion. I couldn’t be positive,” and, “Well, these three look similar,” and
“1, 5 and 3 . . . look similar.” Detective Lillienfeld then says, “Yeah, but the guy you saw
in the wagon that day most resembles who in this photo array now?” Mr. Stevens replies,
“Number 3 or . . . [¶] Oh, okay. [¶] 1, 5 or 3 would be – if I saw them in person.”
       The prosecutor’s opening statement was completely consistent with Mr. Stevens’s
testimony and, while the transcript shows uncertainty (which is why, as defendant points
out, Detective Lillienfeld suggested a live lineup), it apparently also shows defendant did
point to defendant’s photo. In any event, there could be “‘no conceivable prejudice’”
where defendant was able to confront Mr. Stevens and challenge his testimony as
defendant did here. (See Dykes, supra, 46 Cal.4th at p. 762.)
              vi. Assertions of false representations
       Defendant next makes three claims of allegedly false assertions or promises in the
opening statement.
       First, in describing defendant’s financial actions shortly before the murders, the
prosecutor said: “[Defendant] had been hiding a series of investments in his wife Diane’s
name. You’ll see the name Diane Goodwin. But we will also introduce evidence that

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shows beyond a reasonable doubt that [defendant] was doing that on purpose. Why? To
hide his assets from Mickey Thompson; to hide those assets from the Bankruptcy Court;
and to set in motion his escape plan when he killed Mickey. [¶] He sold Whitehawk
investments. And then another investment Desert Investors was also in Diane Goodwin’s
name. Within days of the first sale, he sold all of his interest in those, the second one. So
what did he do with all this money?”
       Defendant contends the prosecutor “falsely asserted ‘[defendant] sold Whitehawk
investments,” because the evidence showed “Whitehawk was never sold.” This is
another completely inconsequential point. It is true the Whitehawk investment itself was
not “sold.” (Dolores Cordell testified it was a real estate investment and she sought to
bring returns from that investment into the bankruptcy estate; she testified she was able to
bring the Whitehawk asset into the estate because she showed “the investment itself . . .
belonged in the estate.”) But in substance, the prosecutor showed what he said he would
show: the Whitehawk investment was purchased with commingled funds of the
Goodwins, but then distributions from the Whitehawk investment in 1988 were made in
the name of Diane Goodwin. The parties stipulated there was a check for $365,000
payable to Diane Goodwin from J.G.A. Group dated May 6, 1988, containing the
notation, “distribution from Whitehawk cashier’s check.” And Karen Stephens-Kingdon
testified that $300,000 of that $365,000 was transferred to Diane Goodwin’s account in
another bank; some $275,000 of that money was used to purchase gold coins, and another
$10,000 was wired offshore. That this money was from a distribution and not a sale is
unimportant. There was no misconduct.
       Second, defendant cites as misconduct the prosecutor’s use of the words
“skimming” and “stolen” in his description of defendant’s actions that precipitated
Mickey Thompson’s lawsuit. The prosecutor described the inception of the dispute:
Mr. Thompson had to “front more cash and more cash” for the venture’s first racing
event, despite defendant’s obligation to furnish 70 percent of the capital. The prosecutor
continued: “The evidence will show the reason Mickey Thompson was fronting all the
money is because [defendant] was cheating him. He was [siphoning] money off the top;

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skimming money off the top of the company; and skimming money out of the pocket of
Mickey Thompson.” So Mr. Thompson sued him, and obtained a judgment of almost
$800,000. The prosecutor said the judge found that in eight months of doing business
together, defendant “had stolen over $500,000 – $512,000 to be exact – from Mickey
Thompson.”
       Defendant cites testimony that the issues in the dispute were over defendant’s
refusal to advance cash to put on events and his plan that Mr. Thompson “would have no
say in, or revenue from, the operations,” and that there was an issue raised of contract
interpretation. These issues, defendant asserts, “do not amount to ‘skimming’ or
‘stealing.’ ” Perhaps not, in a technical legal sense. But when one business partner
refuses to contribute his agreed 70 percent share, jeopardizing the racing event and thus
forcing the other partner to put up the money (not to mention planning that
Mr. Thompson would have no revenues from the operation of their companies), it is hard
not to think of this conduct, in the colloquial sense, as stealing. The prosecutor’s
language was well within the “ ‘broad scope of permissible argument.’ ” (Dykes, supra,
46 Cal.4th at p. 762 [rejecting contention that language in opening statement describing
the defendant in an unflattering light was misconduct; the comments “were based upon
evidence to be presented at the trial . . . and were within the ‘broad scope of permissible
argument’ ”].) (Defendant’s assertion in his reply brief that “Dykes was wrongly
decided” requires no comment from us.)
       Third, defendant asserts misconduct in the prosecutor’s statement that “the
evidence in this case will show that [defendant] was never ever, ever going to pay
Mickey Thompson what he owed him.” Defendant says the evidence showed that in the
weeks before the murders, defendant’s and Mr. Thompson’s attorneys had worked out a
settlement, and defendant signed that settlement agreement after the Thompsons were
murdered. This, defendant says, makes the prosecutor’s statement “false[].” On the
contrary, the evidence presented reasonably could be viewed just as the prosecutor said.
Dolores Cordell testified that defendant repeatedly expressed his willingness to accept
settlement terms, only to renege at the last minute. The testimony defendant

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characterizes as showing that the settlement “would have paid Thompson the entire
judgment” actually was that the settlement said “basically that Mickey Thompson’s debt
would not be dischargeable in the bankruptcy.” Defendant signed the settlement after the
murders, and Phillip Bartinetti testified that “to this day” the judgment has never been
paid by defendant. No misconduct is shown.
              vii. The Insport agreement
       As the prosecutor described it, the so-called “Insport agreement” was a contract
that gave the signatory the unique ability to put on motor sports races with certain drivers
in certain venues. Defendant was a signatory to the Insport agreement, which was worth
“tens of thousands, potentially hundreds of thousands of dollars to the holder” of the
contract. In his opening statement, the prosecutor said: “In order to try to satisfy his
judgment, Mickey Thompson went after the Insport agreement. [Defendant] fought it.
[Defendant] lost.”
       Defendant contends the last quoted statement was one of “numerous falsehoods”
in the prosecutor’s opening statement. He tells us the evidence showed (1) the Insport
agreement became an asset of the bankruptcy estate and was put up for bid; (2) Diane
Goodwin and Charles Clayton were the highest bidders, not Mr. Thompson, (3) “so it
was not true that [defendant] ‘lost’ the Insport agreement to Thompson.” The first part of
defendant’s description of the evidence is correct, but his conclusion is incorrect.
       The Goodwin/Clayton enterprise (SXI, of which defendant was president) was the
highest bidder for the Insport agreement, and purchased it with Bankruptcy Court
permission. But SXI failed to make all the payments due to the Bankruptcy Court for the
Insport agreement, and the trustee began taking steps to repossess it. Dolores Cordell
testified that in December 1987, there was a hearing, and the court “essentially put the
Insport agreement up to bid again.” According to Ms. Cordell, several parties bid,
including the Goodwins, and Mickey Thompson won that bid. Ms. Cordell’s recollection
was that he paid $500,000, in December 1987. (The trustee also testified that at no point
during his tenure as the bankruptcy trustee did defendant ever own the Insport agreement
“free and clear.”) This evidence clearly supports the prosecutor’s statement that “Mickey

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Thompson went after the Insport agreement,” and “[Defendant] fought it. [Defendant]
lost.” Defendant’s claim that Ms. Cordell “had to admit she was wrong” is not borne out
by the record. There was clearly no misconduct.
      b. The claimed violation of a court order
      Defendant sought to prevent the prosecutor from eliciting any testimony about
bankruptcy fraud in connection with defendant’s conduct during the bankruptcy
proceedings. (In federal proceedings, defendant had been charged with many counts of
bankruptcy fraud and filing false loan documents, but was convicted only of filing false
loan documents.) Thus, defendant objected to bankruptcy trustee Jeffrey Coyne
expressing any opinion about whether the transfer of assets from defendant’s company
(ESI) to his wife’s enterprise (SXI) during the bankruptcy was fraudulent. The trial court
overruled that objection, but ordered the prosecutor to “stay away from fraudulent
activity as separate criminal conduct.” Before Karen Stephens-Kingdon testified about
the Goodwins’ financial transactions, defense counsel again asserted there should be no
reference to bankruptcy fraud, and the prosecutor agreed there would be no mention of
bankruptcy fraud.
      The prosecutor scrupulously complied with the court’s order. Nonetheless,
defendant asserts that the prosecutor “repeatedly used the words ‘fraud’ and ‘fraudulent’
when questioning witnesses about the bankruptcy proceedings,” and says “[t]his was
misconduct.” In fact, defendant’s record citations for this claim of misconduct are
completely devoid of any instance of the prosecutor’s use of the words “fraud” or
“fraudulent.” The prosecutor used the word “fraud” once –in an instance not cited by
defendant – when he asked Mr. Bartinetti whether Mr. Thompson, when he objected to
defendant’s discharge in bankruptcy, was “claiming fraud and/or deceit on the part of
[defendant].” (Defense counsel’s objection on grounds of hearsay and lack of foundation
was sustained.) Indeed, our review of the record shows the only reference by the
witnesses to “fraud” came from Mr. Coyne, when the prosecutor asked him how he
would describe “the activity between [defendant]; his wife Diane Goodwin; E.S.I.; S.X.I.;
Chuck Clayton; and the Insport agreement,” and Mr. Coyne answered, “I hate to use the

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‘F’ word, but fraud.”47 As noted above, this testimony (not cited by defendant) was
specifically permitted by the court. The witnesses properly testified to events that
occurred during the bankruptcy proceedings and to defendant’s financial dealings.
       In short, defendant’s claim that the prosecutor’s “obfuscation regarding ‘fraud’
was intended to confuse the jurors and convince them [defendant] had committed crimes
in connection with the bankruptcies” has no basis whatsoever in the record.
       c. The claim of prosecutorial misconduct by leading witnesses
       Defendant contends the prosecutors “constantly engaged in leading” their
witnesses and asserts this was prejudicial misconduct. He cites some 100 objections over
the course of 20 days of trial testimony, about three quarters of which were sustained.
Defendant also refers to several instances where the trial court cautioned the prosecutors
about leading questions, but refused to admonish the jury that this was prosecutorial
misconduct. Thus:
       After the court sustained an objection to a leading question during the prosecutor’s
examination of Mr. Bartinetti, defense counsel asked the court to cite the prosecutor for
misconduct. The court replied: “Well, I have continued to sustain defense objections,”
but the court would “not cite anyone for misconduct right now, but simply admonish that
the People try to pose the questions in a nonleading fashion. And if it continues, we may
get to that step, but we’re not anywhere close to that yet.” The court said, “the objections
have been I think well taken on the leading aspect of several witnesses already. And I, at
this point, just want the record to reflect that you are being asked to avoid leading
questions.” And later, still with Mr. Bartinetti, “Let’s stay away from leading questions,
please.”
       During questioning of Dolores Cordell, after the court sustained an objection, the
prosecutor asked for a sidebar. The court said to the prosecutor: “You know, there has


47    There was another reference by Mr. Coyne to issues in a pleading in the
bankruptcy court that included “avoidance of fraudulent transfers,” but this testimony
was specifically elicited by defense counsel, not the prosecutor.


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been a consistent problem with maybe your definition of leading and my definition of
leading. I think a lot of these questions have been leading and that’s why I have been
sustaining the objections. I denied the request for any kind of misconduct citation
because I don’t believe this is intentional on your part. I think we have an honest
disagreement as to the form of the question.”
       Later, at a sidebar on several subjects during Ronald Stevens’s testimony, the
court denied defense counsel’s request to admonish the jury about improper leading
questions, “[f]or right now . . . .” The court refused a similar defense request during
Allison Triarsi’s testimony. During Karen Stephens-Kingdon’s expert testimony, the
court observed that “I’ve been troubled by the leading questions. I’m not saying that the
leading questions are necessarily improper. But it’s difficult for me to understand exactly
what you’re asking for if you’re supplying the information. [¶] I mean I would rather
hear from the witness. The witness is clearly an expert. . . . [¶] I know I would feel
more comfortable and I think it would be more helpful if the questions were not so
suggestive and so leading.”
       Based on these objections and the court’s rulings, defendant gives two examples
of purportedly prejudicial leading questions on key issues in the case. One was a
question to Ronald Stevens (who identified defendant as the man with binoculars in the
car outside his house a few days before the murders). Pointing to defendant, the
prosecutor asked, “Would you describe [defendant’s] complexion as ruddy and pock
marked?” But before the prosecutor asked that leading question, he had already elicited
testimony from Mr. Stevens about defendant’s complexion. Mr. Stevens had testified
that he described the man to the police as “a big man with reddish colored hair and a
ruddy complexion.” In addition, the prosecutor had asked Mr. Stevens, “What did you
mean when you said he had a ruddy complex [sic]?” Mr. Stevens answered, “It’s
someone that has like pock marks or something when they were young and as they got
older it was just a ruddy type of complexion.” In short, the prosecutor’s subsequent
question was leading, but it was not misconduct.



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       Defendant’s second example was a question to Allison Triarsi, after she had
testified that she was very familiar with the Thompson driveway: “From your
[perspective] where you – from your view, I should say, was it your impression – being
familiar with that driveway – that Mickey Thompson was in a position to see Trudy
Thompson?” Defense counsel objected and asked for a sidebar; no answer was given to
the question (and the court did not rule on the objection). At the sidebar, the court
refused to cite the prosecutor’s leading questions as prosecutorial misconduct and refused
to admonish the jury, saying: “The jurors know that when I sustain the objection, that
I’m finding that the question is improper. And they were preinstructed as to not to view
the question as evidence and not to speculate as to what the answer might be. I think that
message has been made quite loud and clear because the objections have been continuing
throughout the trial. And they have all, just about, been sustained.” After the sidebar, the
prosecutor asked Miss Triarsi about the view of a person standing in the driveway where
Mickey Thompson was, and she testified that “he could easily look down unobstructedly
and see Trudy.” We do not see any misconduct – and certainly nothing prejudicial – in
the prosecutor’s original question.
       Further, the only cases defendant cites to support his misconduct claim are cases
that say it is misconduct deliberately to elicit inadmissible and prejudicial testimony.
That did not happen in this case. (See People v. Hayes (1971) 19 Cal.App.3d 459, 470
[“we do not perceive such method of questioning [leading questions] to constitute
prejudicial misconduct in the absence of any showing that such examination had the
effect of deliberately producing inadmissible evidence or called for inadmissible and
prejudicial answers”; the questions complained of “did not produce inadmissible
evidence or prejudicial answers, but evidence that could properly have been elicited by
questions not objectionable in form”]; cf. People v. Hinton (2006) 37 Cal.4th 839, 865
[the prosecutor’s argumentative and speculative questions during cross-examination of
the defendant “were not improper ‘over and above being in violation of the Evidence
Code’ ”].)



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       d. The claim of misconduct in closing argument
       Defendant asserts there were six instances of prosecutorial misconduct in closing
argument. Again we disagree.
              i. The claim the prosecutor misstated the burden of proof
       Defendant’s first claim of misconduct in closing argument is that the prosecutor
“repeatedly misstated the burden of proof” by arguing “a ‘totality of the circumstances’
burden of proof of a conspiracy, and as the standard for proving that [defendant]
murdered the Thompsons.” Defendant made no objection during the argument, but
afterward asked the court to reread the reasonable doubt instruction, contending that the
prosecutor implied that defendant “was responsible as if this were somehow a civil case.”
We find no misconduct, as the prosecutor’s argument, read as a whole, was both clear
and correct on the burden of proof. (See People v. Dennis (1998) 17 Cal.4th 468, 522
[“we must view the statements in the context of the argument as a whole”].)
       In the challenged statements, the prosecutor was explaining the theories of liability
(aiding and abetting and conspiracy). In discussing aiding and abetting, the prosecutor
observed that defendant “does not have to have been at the crime scene. As long as you
are convinced that [defendant] is responsible in any way shape, form or fashion for the
murders of Mickey Thompson and Trudy Thompson, he is liable for everything that the
actual killers did.” Then the prosecutor talked about conspiracy, telling the jury that
conspiracy, though uncharged, was important, because every member of a conspiracy is
liable for the conduct of the others. So “if you find that he was a conspirator, if you find
that he was responsible and there was some agreement to kill Mickey Thompson and
Trudy Thompson,” then “it’s just as if” defendant shot them. The prosecutor continued:
       “The formation in existence of a conspiracy can be proved through circumstantial
evidence and the circumstances surrounding the totality of the evidence.
       “In other words, you don’t have to dissect this case to figure out if there is a
conspiracy to commit murder. You can look at the totality of the circumstances. As a
matter of fact, the jury instruction tells you to do exactly that. These two men, the two
killers were acting in concert with one another.

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       “It was well timed, well coordinated and almost perfectly executed. The killers
got away. You can infer from that, you have to infer from that the only reasonable
explanation is they were working together. These aren’t two people who happened upon
the same house at the same time and just happened to kill Mickey and Trudy Thompson.
       “Everybody agrees these people were obviously working together. There was an
agreement there. And if the totality of the circumstances suggest that Michael Goodwin
is responsible for the killings of Mickey and Trudy Thompson, then Michael Goodwin is
a conspirator along with the two actual killers.”
       After explaining it was not necessary to prove that defendant knew or met with the
killers, the prosecutor said, “As long as the totality of the circumstances proves that
[defendant] was responsible for the murders of Mickey and Trudy Thompson, we don’t
have to show that he even knew the killers. As long as you agree and are convinced that
this was a concerted act on all parties.” Then the prosecutor explained that unanimity
was not necessary on the theory of liability, saying that some jurors could decide
defendant was an aider and abetter and others could say, “you know what, I’m absolutely
convinced there was a conspiracy and [defendant] was part of it.” And: “There does not
have to be unanimity among you with regard to the theory of liability as long as
everybody is convinced that [defendant] is responsible for the murders of Mickey and
Trudy Thompson . . . .”
       Immediately following those remarks, the prosecutor said: “I want to say just a
couple of words about beyond a reasonable doubt. That’s the instruction that puts upon
us the burden. And I will tell you right now, [defense counsel] and the defense team has
no burden in this case. . . . [¶] [T]he system of justice . . . says that the prosecution bears
the entire burden of proof. And that burden is to prove the criminal case beyond a
reasonable doubt. Every element of it. I accept that. I . . . embrace that. The defense
doesn’t have to prove anything.” The prosecutor then spoke about the meaning of
reasonable doubt, and concluded: “So ask yourselves based on the totality of the
circumstances, do you have an abiding conviction that [defendant] is responsible in any
way for the murders of Mickey Thompson and Trudy Thompson? If so, we’ve proved

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this case to you to an abiding conviction, beyond a reasonable doubt.” The prosecutor
also told the jury that the case could be proved by circumstantial evidence, and that “as
long as you’re convinced through both circumstantial and direct evidence or one or the
other that [defendant] is responsible for the deaths of Mickey and Trudy Thompson,
that’s all that’s required.”
       After the argument was completed, defense counsel asked the court to reread the
burden of proof instruction, and specifically to instruct the jury that “responsibility” is a
civil term, and “responsibility only plays a part in a civil hearing.” The court disagreed,
explaining that “the context of the argument was [defendant] wasn’t there. He was
responsible as an aider and abetter and a co-conspirator. And that’s how I think the jury
would interpret that comment.” The statement “was with reference to [vicarious] liability
here. And that is the essence of the prosecution’s case. I’m happy to reread the burden
of proof instruction.”
       It is apparent from the trial court’s comments and from a review of the entire
argument – rather than the snippets quoted by defendant – that there was no misstatement
of the burden of proof.
               ii. Claims of improper exploitation of excluded evidence
       Defendant asserts it was misconduct for the prosecutor to “exploit” the court’s
exclusion of evidence of third party culpability and Joey Hunter’s polygraphs (see pts. 9
& 11, ante) and the exclusion of evidence the killings were the result of a robbery gone
bad (Mr. Thompson’s purchase of gold a few days before the murders) (see pt. 10, ante).
Defendant asserts the two prosecutors devoted much of their closing arguments to the
lack of evidence that anyone other than defendant hated Mr. Thompson enough to kill
him, and to the lack of evidence of a robbery.
       Thus, for example, the prosecutor argued that “the only evidence you have heard
in this trial” was evidence that pointed to “only one person who hated Mickey Thompson
so much that he wanted to end his life. And make sure that Mickey Thompson saw the
person he loved the most die in front of him before he died. And that is [defendant].”
And: “[T]here is really an important concept here as we talk about this. And that is,

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what is reasonable and what is unreasonable? What is evidence and what is speculation?
When you hear someone say, well, you know, it could have been. It could have been a
robbery. There could have been a video camera there. They are asking you – [defense
counsel] is asking you to speculate as to what might have been. As to some evidence that
doesn’t exist. Could have been.” Defendant cites many other instances of similar
arguments in the prosecutor’s closing, and concludes that it was “nothing short of
outrageous” for the prosecutor to “unfairly [take] advantage of the judge’s rulings.”
       This claim of misconduct is without merit. First, the claim is forfeited because
defendant did not make any objection at trial. (Thornton, supra, 41 Cal.4th at p. 454.)
Second, the authorities defendant cites do not support his contention that, in effect, it is
misconduct for a prosecutor to argue his case based on the state of the evidence in the
record.
       Misconduct may occur if the court, at the prosecutor’s behest, erroneously
excludes evidence that should have been admitted, and the prosecutor knowingly lies to
or otherwise misleads the jury. People v. Varona (1983) 143 Cal.App.3d 566 (Varona)
demonstrates the point. In that case, the defendants, charged with rape and other crimes
and defending based on the alleged victim’s consent, tried to introduce evidence that the
complaining witness had earlier pled guilty to prostitution and was on probation at the
time of trial. The trial court excluded that evidence, and then the prosecutor argued to the
jury that there was no evidence the woman was a prostitute – even though he “knew he
was arguing a falsehood.” (Id. at pp. 569-570.) The Court of Appeal found it was error
to exclude the evidence, and also agreed with the defendant’s contention “that it was
misconduct for the prosecutor to argue that there was no proof that the woman was a
prostitute when he had, by his objections, prevented the defense from proving that fact.”
(Id. at p. 569.) The court explained: “[I]n a proper case, a prosecutor may argue to a jury
that a defendant has not brought forth evidence to corroborate an essential part of his
defensive story. But we know of no case where such argument is permissible except
where a defendant might reasonably be expected to produce such corroboration. Here the
prosecutor not only argued the ‘lack’ of evidence where the defense was ready and

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willing to produce it, but he compounded that tactic by actually arguing that the woman
was not a prostitute although he had seen the official records and knew that he was
arguing a falsehood. The whole argument went beyond the bounds of any acceptable
conduct.” (Id. at p. 570.)
       Similarly, in People v. Daggett (1990) 225 Cal.App.3d 751 (Daggett), the court
erroneously excluded evidence that the child molestation victim (who himself had been
charged with molesting younger children) had reported previously being molested by
persons other than defendant. The error “was compounded when the prosecutor argued
to the jurors that if they believed [the victim] molested other children, he must have
learned that behavior from being molested by [the defendant].” (Id. at p. 757.) The
erroneously excluded evidence was intended to refute that very argument, and the court
found the prosecutor misled the jury by making the argument and “unfairly took
advantage of the [court’s] ruling.” (Id. at p. 758.)
       This case bears no similarity to the cited cases. This is not a case where the court
excluded evidence that should have been admitted. Nor did the prosecutor “argu[e] a
falsehood” or mislead the jury or unfairly take advantage of an erroneous ruling. The
prosecutor properly argued his case, based on the state of the evidence in the record, that
this was a contract hit, not a robbery, and there was “only one person who hated Mickey
Thompson so much that he wanted to end his life.” There was no misconduct. (See
People v. Lawley (2002) 27 Cal.4th 102, 156 [finding Varona and Daggett inapposite
because they involved “erroneous evidentiary rulings on which the prosecutor improperly
capitalized”; “[b]ecause the prosecutor’s argument constituted fair comment on the
evidence, following evidentiary rulings we have upheld, there was no misconduct”].)
              iii. Claimed references to facts not in evidence
       It is misconduct to refer in argument to “matter outside the record.” (People v.
Pinholster (1992) 1 Cal.4th 865, 948.) Defendant claims the prosecutor argued facts not
in evidence when he said these things:
       “Mickey Thompson stood on the top of the driveway and watched in horror as the
love of his life, Trudy Thompson, had a bullet put through the back of her head.”

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       “Mickey Thompson was executed on March 16th, 1988, at 6:05 in the morning,
but not before he had to watch his wife, his family, suffer and die. Exactly how
[defendant] said he wanted it to happen. Exactly.”48
       “[Defendant] lost the Insport agreement. [Defense counsel] might stand up and
say, well, there is no proof that Mickey Thompson got it. Who cares who got it. All we
care about is who lost it. [Defendant] lost it.”
       “Within weeks [they] sold all of Diane Goodwin’s interest in Whitehawk. But
Diane Goodwin’s interest in Whitehawk was really [defendant’s] interest in Whitehawk.
He had been hiding assets in her name or attempting to hide assets in her name and he
dumped them all.”

       This claim of misconduct, too, is without merit. Defendant made no objection to
any of these statements at trial, so the claim is forfeited. (Thornton, supra, 41 Cal.4th at
p. 454.) In any event, these misconduct claims have no merit. They are essentially
duplicates of points we have found to be without merit in connection with similar claims
of misconduct in the prosecutor’s opening statement. (See our discussion in pt. 15.a.i.,
pt. 15.a.vi., and pt. 15.a.vii, ante.) The only different claim of misconduct is that, after
saying that Mr. Thompson had to watch his wife die, the prosecutor said: “Exactly how
[defendant] said he wanted it to happen. Exactly.” Defendant points out that no one
testified to defendant’s making such a statement. Defendant is literally correct, in that
there is no evidence defendant said he wanted Mickey Thompson to watch his wife die.
But there was evidence defendant specifically said, on two different occasions, that he
was “going to hurt you and your family,” “I’ll get you. I’m going to hurt you,” and “I’m
going to hurt your family.” In short, we consider the prosecutor’s remark fair comment
on the evidence, not misconduct. (People v. Ward (2005) 36 Cal.4th 186, 215 (Ward)
[“ ‘ “[A] prosecutor is given wide latitude during argument. The argument may be

48     Defendant also cites, but does not quote, other parts of the closing argument that
he describes as saying that “Trudy had to die first.” Presumably defendant refers to these
statements: “That first killer making sure that Trudy was dead and Mickey was still alive
to watch it,” and “[t]hey couldn’t kill Mickey first because Trudy had to die.”

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vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom.” ’ ”].)
              iv. Claimed misrepresentation of bankruptcy law
       Defendant next cites as misconduct the prosecutor’s argument at pages 8783-8784
of the trial transcript, saying that argument “misrepresented the law of bankruptcy” in
order to make his case that defendant’s motive and intention was to avoid paying his civil
judgment. In that part of the prosecutor’s argument – which defendant does not quote –
the prosecutor explained that, after the yacht loan was approved, and shortly after the
murders, the Goodwins’ house went into escrow; assets defendant had been trying to hide
in his wife’s name were turned into cash; and cash was turned into gold and moved
offshore.
       First, no objection was made at trial, and the claim is forfeited. Second, we fail to
see how that argument “misstat[ed] the law of bankruptcy.” Defendant presents no
comprehensible argument or citation of authority for this point, so we do not consider it
further. To the extent this is another version of defendant’s claim that the prosecutor
violated the court’s order to “stay away from fraudulent activity as separate criminal
conduct,” or that there should be no mention of bankruptcy fraud in connection with
Karen Stephens-Kingdon’s testimony, we have already found, in part 15.b., ante, that the
prosecutor fully complied with the order.
              v. Vouching for witnesses
       The prosecutor “is generally precluded from vouching for the credibility of her
witnesses, or referring to evidence outside the record to bolster their credibility or attack
that of the defendant.” (People v. Anderson (1990) 52 Cal.3d 453, 479.) Thus a
prosecutor is not permitted “ ‘to place the prestige of [his] office behind a witness by
offering the impression that [he] has taken steps to assure a witness’s truthfulness at trial.
[Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty
or reliability of prosecution witnesses are based on the “facts of [the] record and the
inferences reasonably drawn therefrom, rather than any purported personal knowledge or



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belief,” [his] comments cannot be characterized as improper vouching. [Citations.]’
[Citation.]” (Ward, supra, 36 Cal.4th at p. 215.)
         Defendant contends the prosecutor vouched for the credibility of John Williams
when he said the following, in rebuttal to defense counsel’s argument about
Mr. Williams’s testimony (including that the prosecutors “knew that John Williams was
lying” and that “John Williams is just simply delusional”): “[Defense counsel] went on
and on [about John Williams]. And I think she said that John Williams was delusional.
[¶] Please as we talk this morning I’m going to ask you a number of times to think back
and remember witnesses and how they testified on the stand. John Williams is an elected
official in Orange County. A long time public servant. At the time of the repossession of
the car, he was a deputy marshal in Orange County. . . . [¶] I don’t think anyone in this
courtroom would argue with it, his dates were probably off by a year or so.” After
describing his testimony, the prosecutor continued: “You saw this man on the stand.
You’ll have to make that judgment. But I would submit to you that what he told you and
how this went down and what [defendant] said about Mickey Thompson is absolutely
true.”
         Once again, defense counsel posed no objection to the prosecutor’s remarks at
trial, so the claim of misconduct is forfeited. In any event, the prosecutor’s statements
were not improper vouching. Defendant says the prosecutor was “vouching about
Williams’ status as an elected official and a marshal,” and “expressed his personal belief
in Williams’ credibility.” But Mr. Williams testified that he was elected as the Orange
County Public Administrator, and that he had been a deputy marshal, so the prosecutor’s
remarks about his status were “ ‘based on the “facts of [the] record . . . rather than any
purported personal knowledge or belief,” ’ ” so that comment “ ‘cannot be characterized
as improper vouching.’ ” (Ward, supra, 36 Cal.4th at p. 215.)
         As for the prosecutor’s statement that he “would submit to you that what
[Mr. Williams] told you . . . is absolutely true,” the prosecutor preceded that statement
with a description of his testimony and with the proviso that “[y]ou’ll have to make that
judgment.” Considered in context, this was not improper vouching. (See Ward, supra,

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36 Cal.4th at p. 216 [there was no improper vouching where the prosecutor, referring to a
witness’s testimony, said “ ‘The only thing I have ever told him is to tell the truth,
nothing but the truth, and that’s what he did for you’ ”; the prosecutor “was no more than
expressing his view of and reasonable inferences from the totality of the evidence”]; see
also United States v. Necoechea (9th Cir. 1993) 986 F.2d 1273, 1279 [prosecutor stated,
“ ‘I submit to you, ladies and gentlemen, that she’s not lying. I submit to you that she’s
telling the truth’ ”; the court concluded that “[t]hese ‘I submit’ statements do not
constitute vouching,” and “do not imply that the government is assuring [the witness’s]
veracity”].)
       There was no misconduct here.
               vi. The claim of Griffin error
       In Griffin v. California (1965) 380 U.S. 609, 615 (Griffin), the high court held that
the Fifth Amendment forbids comment by the prosecution on the accused’s silence.
“Under the rule in Griffin, error is committed whenever the prosecutor or the court
comments, either directly or indirectly, upon defendant’s failure to testify in his defense.
It is well established, however, that the rule prohibiting comment on defendant’s silence
does not extend to comments on the state of the evidence, or on the failure of the defense
to introduce material evidence or to call logical witnesses.” (People v. Medina (1995)
11 Cal.4th 694, 755; People v. Lewis (2001) 25 Cal.4th 610, 670 [“The prosecutor is
permitted, however, to comment on the state of the evidence, ‘including the failure of the
defense to introduce material evidence or to call witnesses.’ ”].) As People v. Murtishaw
(1981) 29 Cal.3d 733, 757, tells us, applying the Griffin principle, “federal courts have
‘held that for the government to say, in summation to the jury, that certain evidence was
“uncontradicted,” when contradiction would have required the defendant to take the
stand, drew attention to his failure to do so, and hence was unconstitutional.’
[Citations.]” And “California decisions reach the same result.” (Ibid.)
       Defendant challenges, as Griffin error, the following comments in the prosecutor’s
argument. After pointing out that defendant “was positively identified by two
independent witnesses three days before the murders doing surveillance right at the

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perfect spot for ingress and egress in and out of Bradbury,” the prosecutor said: “I expect
that [defense counsel]’s going to stand up here and say, wait a minute, you can’t believe
the Stevenses identification. [Defendant] was never out there. He was never at that
scene. [¶] Well, where is his alibi?” (At this point, defense counsel objected, the trial
court overruled the objection, defense counsel cited Griffin error, and the trial court said
that would be discussed later.) The prosecutor continued: “If someone -- let’s see it’s ten
minutes -- that’s seven minutes until 11:00 on December 18th, 2006. If someone said,
hey, Mr. Jackson, you committed a crime on that day; or you were at such and such spot
on that day. I would call every single person in this courtroom and subpoena them to
court to say, no, at six minutes until 11:00 on December 18, 2006, he was standing on a
swatch of carpet eight feet in front of me.”
       The prosecutor then described the subpoena power, and said: “The defense could
have called any witness they wanted to to provide an alibi for [defendant]. One of the
most important days of his life was March 16th, 1988. He found out that Mickey
Thompson and Trudy Thompson had been killed. If you believe the defense, he found
out for the first time. [¶] Of course the evidence suggests that he found out that his plan
had worked. But even assuming that the defense is right and he didn’t know anything,
then why didn’t they call an employee; a business partner; somebody to say, hey, that
week before the murders [defendant] was with me. [¶] But you heard nothing from that.
Why? Because [defendant] was in front of the Stevens’ house three days before the
murders.”
       After the argument, defense counsel asked the court to instruct the jury that the
prosecutor’s comment was misconduct, as it was “commenting on the defendant’s refusal
to testify by implication,” and “[i]f [defendant] were to present an alibi, that would
require him to testify.” The court denied the request, saying, “this is a murky area,” but
“I don’t view the statement commenting on the failure to call logical witnesses to testify
as to [defendant’s] whereabouts on the day . . . of the Stevenses’ observation” as Griffin
error. “[A] lot of cases . . . indicate that that is a fine line. I don’t think the People have
crossed that line.”

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          We agree with the trial court. People v. Bradford (1997) 15 Cal.4th 1229
(Bradford) is instructive. In that case, the court observed that a prosecutor “may commit
Griffin error if he or she argues to the jury that certain testimony or evidence is
uncontradicted, if such contradiction or denial could be provided only by the defendant,
who therefore would be required to take the witness stand.” (Id. at p. 1339.) In
Bradford, “there were brief comments by the prosecution during closing argument noting
the absence of evidence contradicting what was produced by the prosecution on several
points, and the failure of the defense to introduce material evidence or any alibi
witnesses. These comments, however, cannot fairly be interpreted as referring to
defendant’s failure to testify. Neither the general comment directed to the lack of defense
evidence or testimony, nor the more particularized comments regarding . . . the absence
of alibi for a particular time period, would have required defendant to take the stand.”
(Ibid.)
          People v. Vargas (1973) 9 Cal.3d 470 (Vargas) also demonstrates the point.
There, the court found Griffin error in the prosecutor’s statement that “ ‘there is no denial
at all that they were there [robbing Mr. Olness]’ ” (Vargas, at p. 476), and explained:
“[T]he word ‘denial’ connotes a personal response by the accused himself. Any witness
could ‘explain’ the facts, but only defendant himself could ‘deny’ his presence at the
crime scene. Accordingly, the jury could have interpreted the prosecutor’s remarks as
commenting upon defendant’s failure to take the stand and deny his guilt.” (Ibid.) On
the other hand, the court observed, in dicta, that another statement by the prosecutor was
not Griffin error. “[D]uring the prosecutor’s closing argument, the prosecutor agreed that
defendants did not have to take the stand, but he inquired, ‘Why didn’t they have some
witnesses to say where they were on the 29th, on the evening of the 29th. They had to be
somewhere . . . .’ ” (Vargas, at p. 474.) As to this statement, the court said, “under the
rule in [People v. Bethea (1971) 18 Cal.App.3d 930, 936], the prosecutor’s initial
comments . . . regarding the lack of alibi witnesses was not Griffin error.” (Id. at p. 476,
fn. 5.)



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       This case is no different from Bradford or Vargas. The prosecutor’s comment,
“Well, where is his alibi?” may not be plucked from its context and then construed as
referring to defendant’s failure to testify. As in Bradford, the prosecutor clearly referred
to the absence of any alibi witnesses, not to the defendant’s failure himself to testify that
he was elsewhere. And as in Bradford, none of the prosecutor’s “comments regarding
. . . the absence of alibi for a particular time period, would have required defendant to
take the stand.” (Bradford, supra, 15 Cal.4th at p. 1339.)
       Defendant insists the prosecutor’s argument was “an attempt to shift the burden of
proof to [defendant]” by inviting the jury to look to defendant for an explanation of
where he was at the time. This claim has no merit. As Bradford tells us, “[a] distinction
clearly exists between the permissible comment that a defendant has not produced any
evidence, and on the other hand an improper statement that a defendant has a duty or
burden to produce evidence, or a duty or burden to prove his or her innocence.”
(Bradford, supra, 15 Cal.4th at p. 1340.) There was no Griffin error.
16. The Claim of Outrageous Government Misconduct
       Defendant’s final contention, like his first, is a claim of outrageous governmental
misconduct. This time, the claim is not based on the prosecutor’s conduct relating to
attorney-client privileged documents. Instead, defendant asserts, among other things, that
the prosecutor “relied heavily upon false evidence created by [Los Angeles Sheriff’s
Department]’s investigators in order to arrest and convict [defendant].”
       The “false evidence” consists of defendant’s contention that Detective Lillienfeld
repeatedly lied in sworn statements: in affidavits supporting the Orange County search
and arrest warrants and the live lineup; in the grand jury proceedings; and at the Orange
County preliminary hearing. The alleged lie was “that [defendant] owned a gun that was
consistent with the weapons used in the Thompson murders.” According to defendant,
this “false evidence” was used to arrest and charge defendant in Orange County, “setting
in motion the juggernaut that resulted in [defendant’s] conviction.” In other words, but
for Detective Lillienfeld’s “perjury,” the prosecutors would have been unable to obtain



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search or arrest warrants (and, if the jury had been informed of these “falsehoods,”
defendant would have obtained a different result at trial).
       We reject defendant’s claim of misconduct, both because it was forfeited and
because it has no merit. We turn first to the facts of record relating to the claim of “false
evidence” used to arrest and charge defendant.
       a. The “false evidence” claim
       Defendant repeatedly accuses Detective Lillienfeld of “perjury,” “lies,”
“manufactur[ing] evidence,” and the like, based principally on the detective’s search
warrant affidavit of December 7, 2001, and other sworn testimony before the Orange
County grand jury and at the April 2002 Orange County preliminary hearing, to the effect
that a .9-millimeter Smith & Wesson firearm owned by defendant could have been the
murder weapon.49 These statements were, according to Detective Lillienfeld, mistaken,
and, according to defendant, lies. The facts as revealed at trial were these.
       In the December 2001 affidavit, Detective Lillienfeld averred that Dwight Van
Horn, firearms examiner at the sheriff’s crime lab, told him that the weapons used in the
Thompson murders had “rifling characteristics of six right lands and grooves,” and that
the possible manufacturers included Smith & Wesson, “with three character model
numbers.” Federal firearm sales records indicated defendant had purchased a Smith &
Wesson, model 469, in 1984, and the detective’s affidavit stated that “[t]his pistol falls
within the rifling characteristics of the murder weapon, according to Deputy Dwight Van
Horn . . . .” Similarly, the detective testified to the grand jury that defendant’s firearm
could have been a murder weapon. These statements were, as the detective later testified
in the trial court, incorrect.



49      We have denied defendant’s request for judicial notice of the Orange County
preliminary hearing transcript and Detective Lillienfeld’s grand jury testimony. (See
fn. 7, ante.) We refer to those documents only in the context of statements by counsel in
the trial court record and Detective Lillienfeld’s own references, during his trial
testimony, to his testimony in Orange County.


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       At the trial, defendant called Detective Lillienfeld as a defense witness, and sought
to impeach him with previous false statements. This was based on Dwight Van Horn’s
ballistics memorandum, prepared shortly after the murders. The memorandum indicated
that certain guns (which included defendant’s) were specifically not included in the
universe of possible guns that could have been used as the murder weapon, while
Detective Lillienfeld testified in Orange County (and averred in his affidavit) to the
“exact opposite.” The prosecutor objected, contending Detective Lillienfeld made a
mistake and misinterpreted Mr. Van Horn’s ballistics report.
       Defense counsel contended (and continues to do so on appeal) the claim of
mistake was “incredible” and that, “[b]ased largely on this falsehood, [defendant] was
arrested for the Thompson murders . . . .” (No evidence is cited to support the claim that
defendant’s arrest was “[b]ased largely” on the detective’s statements about the gun; the
search warrant affidavit extends to some 54 pages.)
       The trial court held an Evidence Code section 402 hearing to determine whether
there was evidence indicating Detective Lillienfeld “committed a prior act involving
moral turpitude,” as such evidence would be relevant to challenge the detective’s
credibility. At the hearing, Detective Lillienfeld testified that in July 2001, the sheriff’s
department tested a Smith & Wesson three-digit model firearm, and the report showed
“five lands and grooves with a right twist.” Mr. Van Horn did not tell him that the
murder weapon had six lands and grooves, and his impression from reading Mr. Van
Horn’s memorandum was “that a Smith & Wesson .9 millimeter pistol with a three-
character model number was a potential murder weapon in this case.” Detective
Lillienfeld did not look into any database to determine whether a Smith & Wesson three-
digit model number produced five or six lands and grooves.
       The subject line of Mr. Van Horn’s memorandum was: “.9 Millimeter Pistols to
be Eliminated as Suspect Guns.” The list included Smith & Wesson three-digit model
numbers, and it also included Glocks, as well as weapons that could have been eliminated
“just by virtue of sight, for instance, machine-type guns, machine-gun type Uzis, and
Mack Tens.” (A postscript to the memorandum indicated that “maybe we can eliminate

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these [Uzis, Mack Tens, etc.] with a photo line-up.”) Detective Lillienfeld was asked if
he was aware that “bullets fired from a Glock look completely distinguishable from other
firearms,” and responded, “No.” Detective Lillienfeld interpreted the subject line of the
memorandum “to mean that the below list of guns should be brought to me I can – ‘me,’
meaning Dwight Van Horn, the ballistics expert. I can conduct ballistics exam on them
and eliminate them as being potentially the murder weapon.” Detective Lillienfeld
agreed that “it sound[ed] like Mr. Van Horn was saying we can eliminate these guns [the
Uzis, etc.] based on a photo line-up; we can eliminate these guns [the Smith & Wessons,
etc.] based on ballistics,” and that was how he was testifying when he said that “it
appeared that these guns were in the possible universe of guns that needed to be
eliminated as suspect weapons.”
        Detective Lillienfeld also testified that, when he spoke to Mr. Van Horn, “I asked
him specifically about that memo you’re holding and asked him if those were all possible
guns. And the response I got was, yes, those are all possible guns that were used in this
crime.” Detective Lillienfeld said that no one advised him, before his testimony to the
Orange County grand jury, “that the murder weapon was not a five land and groove.”
Further, he was not aware that the July 2001 test of a Smith & Wesson three-digit model
“would apply to all three-digit Smith & Wesson models.”
        Detective Lillienfeld admitted testifying to the grand jury that the three-digit
model Smith & Wesson registered to defendant could have been a murder weapon; that
he put that information in subsequent affidavits; and that it was incorrect. He did not
attempt to verify the information with Mr. Van Horn before testifying, and he did not
attempt to check databases containing information on the general rifling characteristics of
the guns. Detective Lillienfeld became aware of his mistake “I believe some time in
2001,” when defendant’s appellate attorney identified the error “through a series of
litigation in court . . . .”
        Detective Lillienfeld also testified that the July 2001 test was on a weapon
registered to defendant. The detective testified at the Orange County preliminary hearing
in 2002, and he knew before he testified “that the one – at least the one gun that [he] took

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from [defendant] that was a three-digit model Smith & Wesson was not the murder
weapon.” He did not so state in his testimony at the Orange County preliminary hearing,
but he was not asked that specific question. His understanding was that other three-digit
models (other than the one tested) “could be in the universe of possible suspect guns.”
       After Detective Lillienfeld’s testimony, defense counsel argued that the jury
should decide “whether or not that was a lie or just negligence.” The court ruled
otherwise, observing that “I read [Mr. Van Horn’s memorandum] the same way that the
detective did,” and “I would interpret that the same way.” The court said, “I don’t have
the experience the detective does, but I certainly can read English,” and concluded, “just
so it’s clear, I mean there is really nothing in the record to indicate that this witness
committed an act of moral turpitude which would bear on his credibility based on what I
heard.”
       b. Other claims
       In addition to the claim of perjury related to defendant’s firearm, defendant recites,
at length, other grievances about the investigation.
       Defendant asserts Detective Lillienfeld and the prosecutors used Gail Moreau-
Hunter’s “demonstrably false” statement that defendant confessed to her in order to
prosecute defendant. He makes unsupported claims that Detective Lillienfeld “falsely
testified” at the Orange County preliminary hearing “that Gail Moreau-Hunter had not
attempted suicide.”
       Defendant asserts that Detective Griggs’s investigation was “derailed” by Collene
Campbell’s interference. (Ms. Campbell complained about Detective Griggs, and
defendant’s recitation is based on a memorandum Detective Griggs wrote about the
investigation and Ms. Campbell’s activities in connection with it. None of the facts
defendant recites suggests the investigation was “derailed” by Ms. Campbell’s activities.)
       Defendant asserts that Detective Lillienfeld “permitted Campbell to direct his
investigation.” (Nothing is cited that supports this claim.)




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       He asserts without record authority that the Los Angeles District Attorney
“attempted to inhibit all information that did not support the theory [defendant] was
responsible for the Thompson murders.”
       He asserts that Detective Lillienfeld “usurped power” by presenting his case to the
Orange County District Attorney after the Los Angeles District Attorney rejected it in
1998, and his actions were “ratified by the OCDA and later by the LADA,” all of which
“shock[s] the conscience and constitute[s] outrageous government misconduct.”
       c. Forfeiture of the claim of outrageous government misconduct
       Defendant forfeited his claim of investigatory misconduct by failing to make it
before the trial court.
       Defendant concedes the “lack of objection,” but says it would have been futile to
make an objection to Detective Lillienfeld’s pretrial misconduct, because (1) the trial
court denied his other motions to dismiss for misconduct (see pt. 1, ante), and (2) after
the Evidence Code section 402 hearing just described, the trial court refused to permit
defense counsel to impeach Detective Lillienfeld with his “false testimony.” We do not
agree the claim would have been futile.
       Defendant’s other motions were based on the seizure, retention and review of
attorney-client privileged documents, not on the investigatory misconduct defendant now
asserts. Moreover, defendant now makes claims of improper interference with the
investigation, usurpation of power, and the like, in addition to the claims of “perjury” and
“manufactured evidence.” There is no excuse for the failure to make these claims to the
trial court, which repeatedly showed its willingness to entertain defense objections and
motions on all manner of claims.
       The cases defendant cites to support his claim of futility show that futility is an
appropriate basis for a failure to object to prosecutorial misconduct in extreme cases,
where the misconduct is pervasive and the trial court does not act. (See, e.g., Dykes,
supra, 46 Cal.4th at p. 775 [rejecting futility argument; unlike the case in Hill, supra,
17 Cal.4th 800, “the present case did not involve counsel experiencing—as did counsel in
Hill—a ‘constant barrage’ of misstatements, demeaning sarcasm, and falsehoods, or

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ongoing hostility on the part of the trial court, to appropriate, well-founded objections”].)
This is obviously not such a case.
       Further, the claims defendant makes are precisely the sort of claims that require
fact finding and credibility determinations by the trial court. All the evidence defendant
asserts in support of his claims was available at the time of trial. In short, defendant does
not present a compelling case for excusing the forfeiture of his claims of investigatory
misconduct.
       d. The merits
       Defendant has forfeited his claim of outrageous government misconduct, but in
any event it has no merit. We briefly address each of defendant’s assertions (except for
those already described, in subpart b., ante, as having no support in the record).
       First, there is the claim of “perjury” in connection with defendant’s firearm. As
described above, the trial court heard Detective Lillienfeld’s testimony on those points,
and found “nothing in the record to indicate that this witness committed an act of moral
turpitude which would bear on his credibility . . . .” We are bound by that determination.
(See Ochoa, supra, 6 Cal.4th at p. 1206 [“we must . . . not substitute our evaluation of a
witness’s credibility for that of the fact finder”].) As our recitation above shows,
substantial evidence supported the trial court’s credibility determination.
       Defendant insists it is “inherently improbable” that Detective Lillienfeld did not
realize defendant’s weapon could not have been the murder weapon, citing People v.
Headlee (1941) 18 Cal.2d 266, 267 (appellate court may set aside a conviction where
“the evidence relied upon by the prosecution is so improbable as to be incredible”). But
“[t]o be improbable on its face the evidence must assert that something has occurred that
it does not seem possible could have occurred under the circumstances disclosed.” (Ibid.;
see People v. Mayberry (1975) 15 Cal.3d 143, 150 [“To warrant the rejection of the
statements given by a witness who has been believed by a trial court, there must exist
either a physical impossibility that they are true, or their falsity must be apparent without
resorting to inferences or deductions.”].) This is not such a case.



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       Next, defendant contends Detective Lillienfeld and the prosecutors used
“demonstrably false” statements from Gail Moreau-Hunter (that defendant confessed to
her), in order to prosecute defendant. (Ms. Hunter testified at the preliminary hearing –
but not at trial – to the effect that defendant told her he hired two black teenagers to carry
out the murders.) Defendant’s idea of “demonstrably false” is not ours. Defendant relies
on medical records not in evidence for the proposition that Ms. Moreau-Hunter was
“delusional” and therefore her preliminary hearing testimony was “inherently improbable
and demonstrably false.” We will not make the leap from allegations (without
evidentiary support) of severe mental illness to conclusions that testimony is
“demonstrably false.” Nor will we assume that the prosecutors knew Ms. Moreau-
Hunter’s statements were false when she testified at the preliminary hearing, as the record
is devoid of any such evidence. And, of course, defendant could not have been
prejudiced by the use of Ms. Moreau-Hunter’s testimony at the preliminary hearing, as
defendant was convicted at trial without it.
       Next, defendant makes a convoluted argument that Detective Lillienfeld “usurped
power,” “engaged in forum-shopping,” and acted as “a rogue officer proceeding under
the political influence of a private citizen, Campbell” when he “expand[ed] his
investigation into Orange County” and presented his case to the Orange County District
Attorney after the Los Angeles District Attorney rejected it in 1998. This claim suffers
from the same flaws as defendant’s other claims of misconduct.
       First, defendant cites no evidence whatever for the assertion that Detective
Lillienfeld acted at the behest of Collene Campbell. Second, defendant cites Penal Code
section 830.1, and other authorities that likewise have no pertinence, to support his claim
that the detective “lacked authority to expand his investigation into Orange County.”
Section 830.1 provides just the opposite: it states, among other things, that a deputy
sheriff is a peace officer and his authority extends “to any place in the state” as to any
public offense committed “within the political subdivision that employs the peace
officer . . . .” (Pen. Code, § 830.1, subd. (a)(1).) Third, defendant cites no authority on
“forum-shopping” by a peace officer, and his recitation of the law on venue is simply

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inapt; the venue issue was resolved long ago in defendant’s favor. (Indeed, the Court of
Appeal in that case mentioned defendant’s earlier claims of conflict of interest in the
Orange County district attorney’s personal relationship with Mickey Thompson’s sister,
Collene Campbell, noting that it had allowed defendant “to pursue his assertion below
that Orange County lacked any disinterested purpose in prosecution.” (Goodwin v.
Superior Court, supra, G031285, pp. 2-3.))
       In short, defendant has made no showing that Detective Lillienfeld’s conduct
consisted of anything other than disinterested activity aimed at bringing the person
responsible for the Thompson murders to account. The same is true of defendant’s claim
that prosecutors in both counties “ced[ed] essential prosecution functions to Campbell,
and prosecut[ed] [defendant] based on Campbell’s political power, influence and
connections rather than untainted facts obtained in an unbiased manner.” This is nothing
but hyperbole, without support in any evidence.
       Finally, we note again that “a showing of prejudice to defendant’s right to a fair
trial [is] required” to sustain a due process claim of outrageous government conduct, and
“the absence of such a showing preclude[s] dismissal as a sanction for prosecutorial
misconduct.” (Uribe, supra, 199 Cal.App.4th at p. 861.) None of defendant’s allegations
supports the notion that he received anything other than a fair trial.
17. Cumulative Error
       Defendant contends the cumulative effect of the various errors he asserts requires
reversal. Because we have found no error that, either alone or in conjunction with others,
prejudiced defendant, we necessarily conclude there was no cumulative error.
                                      DISPOSITION
       The judgment is affirmed.


                                                                 GRIMES, J.
       We concur:


              BIGELOW, P. J.                                     RUBIN, J.

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