California Supreme Court Reports

PEOPLE v. WILLIAMS, S056391 (Cal. 12-28-2006) THE PEOPLE,
Plaintiff and Respondent, v. BOB RUSSELL WILLIAMS, JR.,
Defendant and Appellant. S056391. Supreme Court of
California. Filed December 28, 2006.

Appeal from the Superior Court of Kern County, No.
SCA060642A, Roger D. Randall, Judge.

Charles M. Bonneau, Jr., under appointment by the Supreme
Court, for Defendant and Appellant.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State
Solicitor General, Robert R. Anderson, Chief Assistant
Attorney General, Mary Jo Graves, Assistant Attorney
General, Eric L. Christoffersen, Stephen G. Herndon and
Craig S. Meyers, Deputy Attorneys General, for Plaintiff
and Respondent.


Defendant Bob Russell Williams, Jr., pleaded guilty to one
count of murder (Pen. Code, § 187.)[fn1] He admitted
the special circumstances of committing the murder in the
course of a rape (§ 190.2, subd. (a)(17)(C)) and of
a burglary (id., subd. (a)(17)(G)) but did not admit to the
charged sodomy special circumstance. He also pleaded guilty
to five counts of burglary and one count of attempted
escape. At the penalty phase, the jury fixed the penalty
for the murder at death. The trial court denied defendant’s
motion to modify the death verdict (§ 190.4, subd.
(e)) and sentenced defendant to death.

Defendant’s appeal is automatic. (§ 1239, subd.
(b).) We affirm this judgment in its entirety.


A. Prosecution Evidence

After defendant entered the above mentioned plea on June 4,
1996, the penalty phase trial commenced. The circumstances
of defendant’s rape and murder of Mary Breck was the
centerpiece of the prosecution’s case. That evidence, based
largely on statements made by defendant after his arrest,
discloses the following circumstances. On October 27, 1994,
defendant noticed the Breck residence during a morning walk
along a canal bank that ran behind the residence. He
entered through the unlocked front door, heard a hairdryer
blowing in another room, and stole a wallet from a purse
lying on the kitchen counter. He emptied the wallet and
threw it in the trash in a park, keeping the credit cards.

He then committed a burglary of the Elliott household
nearby. Brandie Barnden, the daughter of the owners of the
house, who was staying there with her husband, returned to
the house around 10:30 a.m., while defendant was still in
the house, noticed various books of matches on the floor,
and heard someone else pick up the telephone when she was
about to call her mother. She promptly left the house and
called the police. The police arrived on the scene and Joe
Elliott, the homeowner, eventually confirmed that a handgun
was missing from the bedroom. Other guns and a black duffel
bag containing a fishing tackle and a knife were also
missing but were found a short distance from the Elliott

Defendant lived at the time with his girlfriend, Tina
Meagher, with her mother, Deanna Meagher, and with Tina’s
brother. Deanna Meagher received a phone call at work about
some burglaries in the area and returned home to talk to
defendant. She made clear to him that she “would call the
authorities because she wasn’t going to put up with
anything.” She pretended to call a police detective whose
card she had and to leave a message for him. This upset
defendant. According to defendant’s testimony and his
statements to Detective Legg, who interviewed him shortly
after his arrest, he took her to mean that she suspected
him of being involved in the burglaries and believed the
police were “going to get him.” After this brief discussion,
defendant left, stating that he was going to check on a

According to his statement to Detective Legg, defendant
left the Meagher house around 9:30 a.m. and returned to the
Breck house with the credit cards he had stolen from the
house the previous day. He noted the absence of a white
pickup truck that the cards he had stolen informed him was
owned by the residents of that address. Defendant knocked,
and Mary Breck came to the door wearing a green nightgown.
She returned wearing a sweater. He gave her the missing
credit cards and she gave him $5. Breck said that her
driver’s license was missing and she would like to see that
returned as well. Defendant walked back to the park and
retrieved the license from the trash can where he had
disposed of it the day before.

When defendant returned, Breck again answered the door. He
pushed her down as hard as he could, made her crawl into
the living room, and tied her hands with a telephone cord.
She pleaded with him not to be hurt and said she would do
anything, whereupon defendant tied a bandana around her
mouth to keep her quiet. He pulled her into the bedroom, and
cut her clothes off with a knife he had been carrying, in
order to embarrass her. Defendant testified that he did not
cut Breck with a knife and had no explanation for
photographs showing that Breck’s hands were cut.

According to his statement to Detective Legg, once Breck
lay naked on the floor he “noticed her pussy,” which
excited him, and he proceeded to pull down his pants and
forcibly rape her. When asked why he did so, he said that
he “just wanted to hurt her.” Defendant related to
Detective Legg that he did not think the rape had hurt
Breck, so he sodomized her “two or three times.” Defendant
fondled and licked her breasts, and rubbed his penis on
them. When he ejaculated, his penis was not inserted.

Defendant then blindfolded Breck by tying strips of
pillowcase around her eyes. He took a belt that was lying
on a chair in the bedroom and put it around her neck,
pulling on it for five minutes until his muscles could not
pull anymore. He believed he had killed her but then heard
gurgling sounds in the bedroom. He returned to the bedroom,
and strangled her with the belt as hard as he could for
“what seemed like another 15 minutes” until he was certain
she was dead. He then dragged her body outside because he
wanted “to look around the residence for things to steal
[and] did not want to hear the gurgling noise again.”
Defendant took a portable television, a camcorder, and the
keys to a Lexus parked in the garage.

Breck’s body was discovered around 2:00 p.m. by Susan
Reese, Breck’s sister-in-law. Blood samples taken on the
scene were consistent with the victim and not with
defendant. Tests of Breck’s body for semen were
inconclusive. Detective Legg arranged to have a “sex kit”
done on defendant, and a penile swab test tested negative
for glycogenetic epithelial cells, an indicator of vaginal
contact, as well as negative for fecal material.

Defendant testified that he took fishing poles from the
victim’s garage, as well as the car. According to his
testimony, he took these items because he “realized
something wrong [had] happened, and [he] just needed to get
away from people . . . and figure out what to do.”
Defendant testified that he drove back to the Meagher house,
where he picked up his clothes, a gear bag and the
.38-caliber special handgun he had stolen from the Elliott

Defendant left Bakersfield for the Kern River canyon, where
he fished for several hours. After defendant resumed the
drive, the stolen Lexus was spotted by the California
Highway Patrol, and, after a high-speed chase, defendant
was apprehended.

Also part of the prosecution’s case was the victim impact
evidence concerning the effects of Mary Breck’s murder on
her husband and two children. The entire family went
through bouts of depression. Breck’s son, a high school
senior and an exceptional student, stopped attending
classes and failed to graduate from high school. Her
daughter was sleeping 15 to 18 hours a day and was having
nightmares. Steven Breck testified to his difficulty coping
with the death of his wife, with whom he had had a 26-year
relationship, whom he described as his “one and only love.”
Breck’s brother and niece also testified about the pain of
losing her.

B. Defense Evidence

The defense case in mitigation consisted principally of
evidence of the abuse defendant suffered as a child,
primarily from his stepmother, and of his own mother’s
neglect. Six months after defendant was born, his parents
separated. According to the testimony of his mother,
Jennifer McNees, defendant’s father Bob Williams, Sr., was
abusive to her in the presence of the children. He retained
custody of defendant in Louisiana, and defendant was cared
for by his paternal grandparents and great-grandmother.
When defendant was five years old, he went to live with his
father and stepmother after his father remarried. His
stepmother had a son one and one-half years older than

Soon thereafter, they moved to Virginia. Joan Nelson, who
was a social worker in Roanoke County, Virginia, helped to
document the abuse of defendant, which led to his placement
in foster care in 1983 when he was seven. The investigation
uncovered a pattern of abuse at the hands of defendant’s
stepmother. This included locking defendant out of the
house, denying him water, forcing him to eat hot peppers if
he lied, cutting his clothes off of him, and rubbing his
face in urine when he urinated on the floor. Defendant had
reported to school authorities in Louisiana that his
stepmother had hit him with her fist, a report confirmed by
an interview with the stepmother. Nelson observed
semicircular bruises on defendant’s buttocks consistent with
beatings with a folded belt. Defendant testified and had
stated in a 1983 interview that he had been confined to the
basement, was often fed only peanut butter sandwiches or
not given food, and that he had to sometimes eat food
placed on the floor “like a dog.” According to the
defendant’s testimony at trial, if he told his parents a
lie, he would have to eat a teaspoon of Tabasco sauce, and
his stepmother changed the rule to eating the whole bottle.
He was made to take cold baths.

Defendant also testified that his stepmother had sexually
abused him, that she touched his penis and had him touch
her private parts. Dr. Eugene Couture, a clinical
psychologist who examined defendant, testified defendant
had told him that his stepmother made him suckle at her
breast as punishment and was made to conduct oral sex on
her. Defendant’s mother also testified that he had admitted
to her sometime prior to the murder that his stepmother had
sexually abused him, although he did not go into details.

Defendant’s stepmother was charged with felony child abuse
and pled guilty to a misdemeanor offense of child neglect
in 1983. Defendant was placed in a foster home, and his
foster parents reported that during visits his stepmother
was “hateful” to him, and that his father kept him waiting
all day for a visit.

Dr. Carol Logan, testified that she conducted psychological
testing on defendant while he was in foster care, which
showed that he had an above-average IQ of 119. But she
concluded that defendant had suffered from serious
emotional abuse to which he responded with “aggressive
acting out.”

When his foster parents moved out of state later in 1983,
defendant returned to his father and stepmother’s house.
According to defendant, the abuse began again. On one
occasion defendant’s stepmother ordered him to strip naked
and tied him to the bed because he could not spell the word
“trespass,” then went to a ballgame with her son. Social
worker Ellen Groff, who had worked for the Roanoke
Department of Social Services, testified that defendant was
found around this time at a shopping center five miles from
his home with a black eye that had been inflicted a week
earlier. He had reported to her that after discovering
blood on his shirt, the result of having been nipped in the
ear by a puppy, his stepmother ordered him to take his
clothes off, tied him in bed by his feet with a rope, and
threatened to kill him if he left. He had nonetheless

Defendant was again removed from his home and, after
briefly being placed again in foster care, was sent to
California to live with his mother. Chali Houghteling,
defendant’s half sister, testified that her mother did not
try to help defendant with his problems and had tried to
give defendant to a neighbor. Defendant got into fights and
did not pay attention in school. Defendant’s mother called
the police when it was found defendant had “jammed” his
half sister Stacey Lorraine with a pair of scissors,
leaving a slight mark on her hand. His mother expected to
pick him up at juvenile hall later that night, but instead
he spent over a year in the Children’s Home of Stockton.

When he returned to his mother’s home, she had remarried.
In November of 1988 when defendant was 12, he took a
bicycle, a fishing pole, some military medals and a camera
belonging to his mother’s husband and ran away from home.
He eventually returned home and ran away again. This time
his mother refused to allow him to return to the house and
told the police to take him into custody. He spent the next
five years in group homes and juvenile hall. His mother
seldom visited him. In 1993-1994, while attending his
senior year in high school, he lived with his younger half
brother Timmy in the house his mother had formerly occupied
in Bakersfield. Timmy testified that defendant and he were
best friends and that defendant looked after him. They
lived there without adult supervision except for visits by
defendant’s older sister.

Various mental health professionals testified on
defendant’s behalf. Dr. Eugene Couture testified that
defendant was competent to stand trial, legally sane, and
that there was no evidence of brain damage. He opined that
the most appropriate diagnosis for defendant was antisocial
personality disorder, a disorder characterized by a
“pervasive pattern of disregard and violation of the rights
of others.” People diagnosed with this disorder typically
were abused as children.

Defendant also presented various character evidence.
Defendant met Tina Meagher at a dance and shortly
thereafter Tina became pregnant by him. Their son was born
March 15, 1995, after defendant was jailed for the Breck
murder. Tina testified that defendant before the murder had
expressed the desire that they raise the baby together and
would attend obstetrician’s appointments with her.
Defendant did not physically or sexually abuse Tina. She
described him as “very polite, kind, nice.” Defendant also
got involved in country western dancing and bull riding,
and witnesses who participated with him in those activities
testified to having a good opinion of him. Michael
Chambers, a cellmate of defendant in early 1995, while
defendant was awaiting trial, testified that defendant
showed remorse for his crimes.

Defendant himself testified that when committing murder, he
had thoughts of what his stepmother had done to him, and
was reacting to those thoughts. Defendant testified that he
was “real angry” with himself and “sorry.”


Because defendant pleaded guilty and does not contest the
validity of that plea, all of his claims pertain to the
penalty phase of the trial.

1. Failure to Appoint Keenan Counsel

Defendant claims that the trial court’s revocation of the
appointment of co-counsel, also known as Keenan counsel,
constituted error. (Keenan v. Superior Court (1982) 31
Cal.3d 424 (Keenan).)

Factual Background

Defendant’s previous counsel, Kyle Humphrey, moved on
December 15, 1994, to have Larry Fields appointed as Keenan
counsel. Humphrey, in his declaration, emphasized that this
was a capital case and there would be an “enormous amount
of legal services involved” in the preparation of motions
for the guilt and penalty phases. The motion was granted
and Fields was appointed cocounsel.

On July 12, 1995, Humphrey and Fields filed a motion to be
relieved as counsel on the grounds of conflict of interest
due to prior representation of a potential witness. The
motion was granted on July 14, 1995 by Judge Jerold Turner.
At the same time Judge Turner appointed in their places
Dominic Eyherabide as lead counsel and Michael Dellastritto
as cocounsel.

During a hearing on a motion to continue the trial date,
Judge Oberholzer noted the lack of any request for
cocounsel on Eyherabide’s part or any affidavit in support
of such request pursuant to section 987, subdivision (d),
and asked for such documentation.

Judge Oberholzer ultimately denied the request for Keenan
counsel. He stated that he did not “find anything
sufficiently complex” that would warrant appointment of
cocounsel. The court noted that the guilt phase would “not
be particularly involved” because of defendant’s
confession, and that counsel’s efforts “have to be directed
to the penalty phase.” Counsel responded that the guilt
phase might become more involved due to potential mental
state defenses, and that in any case the penalty phase
would be extensive, in part due to the prosecution’s
litigation of defendant’s past criminal activity. The trial
court expressed the view that much of the required
preparation could be done by an investigator rather than by
second counsel and denied the motion.

Applicable Law

In Keenan, supra, 31 Cal.3d 424, 432, we explicitly
recognized that a trial court may under some circumstances
abuse its discretion by failing to appoint second counsel
in a capital case. Keenan was in part codified in section
987, subdivision (d), which states: “In a capital case, the
court may appoint an additional attorney as a cocounsel upon
a written request of the first attorney appointed. The
request shall be supported by an affidavit of the first
attorney setting forth in detail the reasons why a second
attorney should be appointed. Any affidavit filed with the
court shall be confidential and privileged. The court shall
appoint a second attorney when it is convinced by the
reasons stated in the affidavit that the appointment is
necessary to provide the defendant with effective
representation. If the request is denied, the court shall
state on the record its reasons for denial of the request.”

Defendant contends the trial court erred in revisiting and
overturning the decision of a previous judge to authorize
Keenan counsel. (See People v. Riva (2003) 112 Cal.App.4th
981, 991 [generally one trial judge may not overrule
another one].) But even if Judge Oberholzer exceeded his
jurisdiction in revoking the appointment of Keenan counsel,
such error is not a basis for reversing the judgment.

“The appointment of a second counsel in a capital case is
not an absolute right protected by either the state or the
federal Constitution. (People v. Jackson (1980) 28 Cal.3d
264, 286-288; Keenan v. Superior Court (1982) 31 Cal.3d
424, 428-430.) Thus, the error, if any, . . . must be
judged under the standard enunciated in People v. Watson
(1956) 46 Cal.2d 818, 836, i.e., whether it is `reasonably
probable’ a result more favorable to the defendant would
have been reached had the error not occurred.” (People v.
Clark (1993) 5 Cal.4th 950, 997, fn. 22.)

Defendant claims that the trial court’s action in revoking
appointment of Keenan counsel was in excess of its
jurisdiction and was structural error, whereas if the trial
court had merely abused its discretion — for
example, if the first judge to consider the request had
incorrectly determined that Keenan counsel was not warranted
— harmless error analysis would apply. But the fact
that the trial court allegedly exceeded its jurisdiction,
rather than abused its discretion does not change the fact
that it is subject to harmless error analysis under the
Watson standard. Arizona v. Fulminante (1991) 499 U.S. 279,
310, cited by defendant, does not support his position.
That case recognizes certain structural errors not subject
to harmless error analysis, such as the total deprivation
of the right to counsel, the exclusion of members of a race
from the grand jury, denial of the right to
self-representation at trial, or denial of a public trial.
“Each of these constitutional deprivations is a similar
structural defect affecting the framework within which the
trial proceeds, rather than simply an error in the trial
process itself. `Without these basic protections, a
criminal trial cannot reliably serve its function as a
vehicle for determination of guilt or innocence, and no
criminal punishment may be regarded as fundamentally
fair.'” (Ibid.) But defendant fails to explain why the
erroneous deprivation of Keenan counsel that results from
excess of jurisdiction as opposed to abuse of discretion
should be considered structural error requiring reversal.
We will therefore review the revocation of Keenan counsel
for prejudice under Watson’s “reasonably probable”

Defendant claims two different types of prejudice. First,
he contends that defense counsel pressured him to plead
guilty because the lack of resources would have made it
virtually impossible for counsel to conduct both the guilt
and penalty phases. Although the evidence that defendant
committed the murder is overwhelming, defendant contends
that there were meritorious mental state defenses that
might have lessened his culpability at the guilt phase.

The record does not support defendant’s claim. Prior to
accepting defendant’s guilty plea, the prosecutor, District
Attorney Edward Jagels, had a colloquy with Defense Counsel
Eyherabide. The prosecutor asked whether “you believe that
in entering this plea you may be gaining a tactical
advantage with regard to the penalty phase of the trial?”
Counsel responded: Yes, . . . it’s for tactical reasons,
yes. . . . We’re doing it because we think it’s the best
interest [from a] tactical standpoint and because he’s
guilty.” The prosecutor then asked if counsel was of the
opinion “as an experienced attorney that based on the
strength of the trial . . . your client will be convicted of
the offense of [sic] which he’s pleading guilty?” Counsel
responded, “Yes I do.” Moreover, counsel’s confidence that
his client would have been convicted at the guilt and
special circumstance phases is well supported by the
evidentiary record. Counsel apparently believed that
defendant had little to gain from making the prosecutor
prove his guilt, and that there was some tactical advantage
in gaining sympathy for his client and taking the focus to
some extent away from defendant’s crime by proceeding
directly to the penalty phase. Although the strategy
ultimately was unsuccessful, we cannot say that it was an
unreasonable decision. More importantly, nothing in the
present record suggests that this strategic decision would
have been altered had defendant been permitted a second

Defendant also claims that the lack of Keenan counsel
hampered his ability to mount a penalty phase defense.
Again, the record does not support his contention. Rather
it shows that counsel presented an impressive defense at
the penalty phase, one that included extensive evidence of
defendant’s physical and emotional abuse at the hands of
his stepmother, testimony of a number of mental health
professionals who had treated defendant, as well as the
testimony of friends and family regarding defendant’s
redeeming qualities and remorse for the crime. Defendant
does not allege otherwise except in conclusory terms.[fn2]

We therefore conclude that even if denial of Keenan counsel
was error, it was not prejudicial.

2. Inadequate Investigative Funds

Defendant contends there was inadequate provision of
investigative funds. The facts are these. On January 17,
1996, counsel requested funds to hire Pat McGregor, an
investigator specializing in penalty phase preparation. He
represented that she was willing to work for $35 per hour,
which was higher than the $20 per hour standard rate for
investigators in Kern County at the time. The trial court,
again Judge Oberholzer, reluctantly agreed to compensation
at the higher rate because the case was coming to trial
shortly and because there would be only one attorney on the
case. The trial court ordered a total of $7,000 in
investigative funds, some of which had already been
allocated to an investigator hired by the previous counsel,
leaving a balance of approximately $4,375.

On April 3, 1996, when counsel submitted a bill for
McGregor of $507, Judge Oberholzer apparently changed his
mind, determining that there was no evidence of special
expertise that would justify the higher $35 per hour rate,
and that McGregor would henceforth be compensated at $20 an
hour. Counsel offered to speak with McGregor about her
willingness to work at the lower rate but apparently she
stopped work on the case. The next day the trial court
authorized expenses for Counsel Eyherabide himself to
travel to Oregon to interview witnesses. Later, Joe Serrano
did some investigative work, primarily the service of
subpoenas and interviews with jurors for the new trial
motion discussed below, for $20 per hour for a total of
approximately $1,610. The balance of the authorized
investigative funds went unspent.

Defendant contends that the trial court’s payment rate of
$20 an hour made it impossible to hire a competent death
penalty specialist. He claims that this low rate, combined
with the lack of Keenan counsel, prejudicially hampered his
counsel’s ability to uncover and present mitigating
evidence at the penalty phase, and that this violated his
right to counsel, due process, equal protection and a
reliable penalty determination.[fn3]

The right to competent counsel under the federal and state
Constitutions includes the right to “reasonably necessary
ancillary defense services.” (Corenevsky v. Superior Court
(1984) 36 Cal.3d 307, 319.) Section 987.9, subdivision (a)
provides among other things that upon the proper showing,
funds will be provided to indigent capital defendants for
“payment of investigators, experts, and others for the
preparation or presentation of the defense.” The trial court
is to rule on the reasonableness of the request and “shall
be guided by the need to provide a complete and full
defense for the defendant.” (Ibid.) We have held that
failure to seek pretrial investigative funds pursuant to
section 987.9 was one indication that counsel had failed to
adequately investigate possible defenses, requiring
reversal in its entirety of a capital judgment. (In re
Jones (1996) 13 Cal.4th 552, 565.)

Even if it were true that the unreasonable denial of
section 987.9 funds leading to an inadequate investigation
and preparation could constitute reversible error under
some circumstances, a question we do not decide, no such
error is evident from the present record. There is no
showing that $7,000 for conducting the investigation, paid
at a $20 per hour rate, was inadequate, or that it was
impossible to hire a competent specialist at that rate. In
other words, defendant fails to show that the trial court
acted unreasonably pursuant to section 987.9.

Moreover, inasmuch as defendant’s claim can be understood
as one for ineffective assistance of counsel, based on
counsel’s failure to adequately investigate available
defenses because he was unable to do so, it is without
merit. “To find ineffective assistance of counsel a court
must determine that counsel’s performance was deficient,
falling `”below an objective standard of reasonableness . .
. under prevailing professional norms”‘ [citations], and
that there is a reasonable probability that `”but for
counsel’s unprofessional errors, the result of the
proceeding would have been different.”‘” (People v. Kaurish
(1990) 52 Cal.3d 648, 677.) Here, counsel himself conducted
extensive witness interviews and, as discussed above,
mounted a substantial penalty phase defense. Defendant
contends that additional witnesses could have been produced
to testify to the abuse defendant suffered as a child. But
given the quality and quantity of witnesses testifying for
the defense, there is no showing on this record that the
penalty phase defense mounted on defendant’s behalf fell
below professional norms, or that, had more witnesses been
produced, it is reasonably probable a more favorable
verdict would have resulted. We therefore deny this claim.

3. Prosecutorial Failure to Give Notice of Aggravating
Evidence Pursuant to Section 190.3

Defendant contends the prosecution failed to provide notice
pursuant to the fourth paragraph of section 190.3, which
provides: “Except for evidence in proof of the offense or
special circumstances which subject a defendant to the
death penalty, no evidence may be presented by the
prosecution in aggravation unless notice of the evidence to
be introduced has been given to the defendant within a
reasonable period of time as determined by the court, prior
to trial. Evidence may be introduced without such notice in
rebuttal to evidence introduced by the defendant in
mitigation.” Defendant contends that the prosecution in
fact affirmatively misled defendant regarding the evidence
to be presented, contrary not only to statute but to due
process under the United States Constitution, and that
therefore reversal is required. (See Sheppard v. Rees (9th
Cir. 1989) 909 F.2d 1234.)

Specifically, defendant contends that the prosecution
argued that defendant committed the murder with
premeditation and deliberation, notwithstanding the fact
that defense counsel made clear that defendant was pleading
guilty to the murder on a felony-murder theory, and that
the prosecution had acknowledged this felony-murder theory
in the plea colloquy. Defendant was asked to plead, in
count one, that he murdered Breck “willfully, unlawfully,
deliberately, with premeditation and malice aforethought.”
During the plea colloquy, defendant’s counsel stated: “I
want to make one other proviso here. . . . As to count one,
it does allege the language of a premeditated murder. My
client is pleading guilty based on the fact that we feel a
jury would convict him on the theory that he committed a
felony murder. In other words, there was killing during the
commission of a felony. In fact, all the special
circumstances allege that it was that.” The prosecutor
explained that the language of the plea was the “standard
language traditionally used. It does not preclude us from
utilizing a felony murder theory at trial.” Defense counsel
then made clear that he was not requesting that the plea
language be changed.

The People contend that defendant did not raise the
inadequate notice argument below and that it is forfeited.
Assuming without deciding that defendant’s claim is
properly preserved, we reject it on the merits. Contrary to
defendant’s argument, the prosecution’s premeditation
argument was properly introduced. Evidence about the manner
in which Breck’s murder occurred, which tended to show
premeditation, was “evidence in proof of the offense . . .
which subject[s] a defendant to the death penalty” and
therefore is not subject to the notice requirements of
section 190.3. Nothing in the above plea colloquy suggested
that the prosecutor was consenting to refrain during the
penalty phase from presenting evidence regarding the
circumstances of the crime that would support a theory of
premeditation or from arguing to the jury that the murder
was committed with premeditation. In fact section 190.3
specifically authorizes the prosecutor to present evidence
of the circumstances of the crime in aggravation. There is
therefore no violation of section 190.3’s notice
requirement, nor is there any due process or other
constitutional violation that would arise from unfair
surprise to defendant or his counsel.

Defendant also claims a violation of the section 190.3
notice requirement and of his rights under the Fifth,
Eighth or Fourteenth Amendments, when the prosecutor asked
defendant’s mother, Jennifer McNees, whether defendant
became “interested in Satanism” at some point in his life.
The trial court sustained counsel’s objection to that
question on Evidence Code section 352 grounds, i.e., that
the probative value of such evidence would be outweighed by
its prejudicial effect. The prosecutor did ask whether
defendant at one point listened to a lot of heavy metal
music, and whether defendant ever had a cross hanging
upside-down in his room. McNees answered affirmatively to
the first question and “I don’t recall” to the second.
Defendant contends that the prosecution should have given
notice that he intended to present evidence that defendant
was involved with Satanism. Even assuming that the
prosecutor’s questions could be viewed as a violation of the
notice requirement, and that the issue is preserved for
appeal notwithstanding defendant’s failure to request a
continuance to prepare a response (see People v. Williams
(1997) 16 Cal.4th 153, 241-242), no conceivable prejudice
could have resulted from the above interchange. Counsel’s
successful, timely objection and McNees’s nonresponse to the
question regarding the upside-down cross meant the
prosecutor was unable to present evidence of defendant’s
alleged interest in Satanism other than a penchant for
heavy metal music.[fn4]

4. Judicial Error for Indicating During Voir Dire That the
Murder Was Premeditated

The court during voir dire indicated to some prospective
jurors that defendant had committed premeditated murder.
One of those prospective jurors, K.Y., served on the jury.
The court told her to bear in mind “that the only time we
talk about a jury making a choice between [the] death
penalty and life in prison without the possibility of parole
is where we have a first degree premeditated murder and one
or more special circumstances have either been found true
or admitted as in this case.” Defendant claims judicial
error, because, as discussed above, defense counsel made
clear in the plea colloquy that he was pleading guilty to
first degree felony murder and not murder with premeditation
and deliberation. He contends this error violated his right
to due process, to counsel, to an impartial jury and a
reliable verdict.

Defendant’s point is well taken. The above quoted statement
is incorrect as a matter of law, because those committing
felony murder, without premeditation, may be eligible for
the death penalty. Because defendant did not plead guilty
to premeditated murder, premeditation and deliberation
could not be assumed by the jury, and if used by the
prosecution as an aggravating circumstance, would have to be
proved to the jury. Therefore, the trial court’s
characterization of the murder as “premeditated” had the
potential of relieving the prosecutor of the obligation to
prove what may have been one of the key pieces of its case
in aggravation, thereby potentially violating defendant’s
right to due process. (See Sandstrom v. Montana (1979) 442
U.S. 510, 520-521; see also People v. Sturm (2006) 37
Cal.4th 1218, 1230-1232 [trial court erred during capital
case in stating that premeditation was a “gimme,” when
special verdict form indicated the defendant had been
convicted of felony murder].)

We conclude the error was not prejudicial. The trial
court’s remark was followed by the prosecution’s
presentation of evidence of the circumstances of the crime.
That evidence supported a premeditation and deliberation
theory, which the prosecution argued to the jury,
particularly based on the fact that defendant returned to
strangle Breck a second time to make sure that she was
dead. Defense counsel argued to the contrary that the
evidence showed that “we weren’t dealing with a real
sophisticated, planned-out murder.” The task of K.Y and the
other jurors was ultimately not to decide whether or not
defendant acted with premeditation, but rather whether the
aggravating circumstances outweighed the mitigating ones
such that death was the appropriate penalty. It is highly
unlikely that the trial court’s brief voir dire remark
labeling the murder as “premeditated,” would have skewed a
juror’s ability to weigh the evidence presented and make an
unbiased penalty determination. We therefore conclude the
trial court’s error was harmless under any applicable

5. Trial Court’s Refusal to Allow Voir Dire on Question of
Religious Affiliation

The jury questionnaire contained a question about whether
the prospective juror attended religious services regularly
and about whether religious affiliation or beliefs would
cause “any problem sitting in judgment in a criminal case.”
Defense counsel requested a question about the prospective
juror’s “denominational preference,” which the trial court
refused, remarking that “I would be the first to say . . .
it is helpful to know that, but also think there are a
couple of cases out there that seem to indicate that’s not
appropriate inquiry.” Defendant contends the trial court
abused its discretion in not allowing inquiry into such
preference, thereby violating his rights to due process and
a jury trial. We disagree.

The trial court has considerable discretion in determining
the scope of voir dire. (Code Civ. Proc., § 223; see
People v. Carter (2005) 36 Cal.4th 1216, 1250-1251.) In the
present case, the trial court cannot be said to have
exercised its discretion, given its belief, as quoted
above, that it had no discretion to permit inquiry into
denominational preference. Although exclusion of a
prospective juror on grounds of religious affiliation is
improper (see In re Freeman (2006) 38 Cal.4th 630, 643), it
is not necessarily true that inquiry into such affiliation
is forbidden during voir dire. Membership in a particular
religious denomination or sect indicated on a jury
questionnaire may alert the trial court and counsel to a
potential bias in favor of or against the death penalty
that requires further exploration at voir dire. (See People
v. Catlin (2001) 26 Cal.4th 81, 118 [prospective juror
identified himself with a particular denomination that
believes that God is the only person with the right to take
someone’s life.].)

It does not follow, however, that a trial court’s refusal
to allow a denominational preference or affiliation
question was either erroneous or prejudicial. In the
present case, voir dire included extensive inquiry by the
trial court, the prosecution, and defense counsel into
prospective jurors’ attitudes toward the death penalty. For
example, in the case of K.Y., who was eventually seated on
the jury, the trial court asked her, as it did all
prospective jurors, whether she had any “conscientious
opinions about the death penalty” that would cause her to
vote either automatically for or against the death penalty.
When she stated that she was “spiritually against the death
penalty,” the trial court, the prosecutor and defense
counsel asked a number of follow-up questions to clarify
her position. Given this extensive inquiry into prospective
jurors’ views on the death penalty, the trial court was not
required to place a question on denominational preference on
the jury questionnaire to be used as a preliminary
indication of pro-or anti-death-penalty bias.

Defendant contends that the refusal to ask such a question
was particularly damaging in the present case because, as
explained more extensively below, one of the jurors, T.F.,
committed misconduct by reading biblical verses aloud
during deliberations. Of course, the reasonableness of the
trial court’s decision must be considered at the time the
decision was made and not with the benefit of hindsight.
Moreover, defendant points to no concrete evidence
indicating that such an inquiry would have led to T.F.’s
exclusion from the jury. Nor does he contend that voir dire
regarding T.F.’s death penalty views was inadequate. We
therefore conclude that the trial court did not err in
refusing a question on denominational preference.

6. Wheeler/Batson Challenges

Defense counsel objected to the peremptory challenges of
three jurors, two Hispanic and one Black, on the grounds
that they were based on race or ethnicity, and that the
jury was the product of invidious discrimination and was
not representative of the community. (Batson v. Kentucky
(1986) 476 U.S. 79, 86; People v. Wheeler (1978) 22 Cal.3d
258, 271-272.) The trial court denied these objections.
Defendant now claims error.

A. Factual Background

After exercising two uncontested peremptory challenges, the
prosecutor challenged R.R., a Hispanic male. Counsel made a
Wheeler motion, citing R.R.’s questionnaire, in which he
stated he thought the death penalty was imposed too seldom.
The questionnaire also revealed that R.R. was employed as a
machine operator for a beer distributor, had a wife
employed as a substitute teacher and two young children and
was “basically . . .a real mainstream down the middle fair
juror.” Counsel also noted that R.R. had “a couple of
DUI’s” but indicated that he learned his lesson. The trial
court noted that R.R. on his questionnaire stated “he
sometimes feels cops have attitudes because he feels they
have too much power.” The court then ruled that the defense
had not made a prima facie showing of discrimination. The
court noted that this was the “first Hispanic excused” and
that the court had “observed at least one item that might
be of significance to an attorney.” While finding no prima
facie case, the trial court invited the prosecutor to “make
an observation or observations” as to why he excused R.R.
The prosecution declined to do so, stating that it would be
“counterproductive” in light of his understanding of the

After the defense exercised its sole peremptory challenge
and the prosecution exercised another unanswered challenge,
the defense made a Wheeler motion to the challenge against
C.K., who was a Black male. Counsel stated that C.K. was a
man who appeared to be in his 60’s, an Air Force veteran
who did not have any problem with the death penalty, and
had been on a prior jury which had rendered a guilty
verdict. He appeared to be “an extremely neutral fair
citizen.” The trial court again did not find a prima facie
showing. The court first observed that K.Y., a Black woman,
had been seated as a juror. He further noted that the large
number of C.K.’s stepchildren and relatives who had been in
trouble with the law and had been in prison, was “a factor
that was unique” to C.K.[fn5]

After exercising another uncontested peremptory challenge,
the prosecution challenged F.D., an Hispanic male. Defense
counsel moved for a mistrial based on the prosecution’s
discriminatory challenges and the “systematic exclusion of
Hispanics from the jury.” He stated that F.D. appeared to
be in his late 50’s and was a postal carrier with children
and grandchildren and a great respect for law enforcement,
who expressed the belief that the death penalty was imposed
too seldom. The trial court this time ruled that a prima
facie case had been made and directed the prosecutor to
explain the reasons for the challenge. The prosecutor
explained that the prospective juror’s “demeanor and the
manner in which he answers questions struck me as an
individual who was indecisive, perhaps did not understand
what he was being asked.” He further stressed that on his
questionnaire it stated that he did not “know if he could
impose the death penalty much.” The trial court denied the
motion, noting that his own observations were in accord
with the prosecutor’s, that F.D. appeared to have trouble
focusing on what was being said and coming to grips with
the issues, and that there were “long pauses as he
attempted to determine whether or not he could impose the
death penalty.”

B. Legal Contentions

Defendant contends the trial court erred in finding no
prima facie case had been made with respect to R.R. and
C.K. under the principles articulated in Wheeler and

A prima facie case of discrimination in jury selection
under federal law “can be made out by offering a wide
variety of evidence, so long as the sum of the proffered
facts gives `rise to an inference of discriminatory
purpose.'” (Johnson v. California (2005) 545 U.S. 162,
169.) As we have explained: “[O]ur Wheeler decision . . .
alluded to a `reasonable inference’ of group bias as a
basis for a prima facie showing and also called for the
defendant to establish a `strong likelihood’ that a juror
has been peremptorily challenged on the basis of group
bias. (Wheeler, supra, 22 Cal.3d at pp. 280, 281.) Our
subsequent decision holding that both of the quoted terms
were essentially the same as the Batson standard, and that
a prima facie showing called for a demonstration that it
was `more likely than not’ that group bias accounted for
the challenge, was disapproved in Johnson, supra, [545 U.S.
at pp. 165-167, 173] (reversing People v. Johnson (2003) 30
Cal.4th 1302).” (People v. Cornwell (2005) 37 Cal.4th 50,
73.) In cases in which the trial court found no prima facie
showing of discrimination in jury selection, and it is
unclear what standard the trial court employed in making
its determination, we have reviewed the record
independently to discern whether a prima facie showing has
been made under the proper “inference of discriminatory
purpose” standard. (See id. at pp. 71-74; People v. Avila
(2006) 38 Cal.4th 491, 553-554.)

As to Prospective Juror R.R., we conclude the trial court
did not err in determining a prima facie case had not been
made. Although R.R was presumably a member of a cognizable
racial or ethnic group, there was nothing else to indicate
group bias. At the time his removal was challenged, he was
the only Hispanic prospective juror to have been
considered. His expressed sentiment of skepticism toward the
police and his two DUI misdemeanor convictions prosecuted
by the same office that was trying this case, one of which
was approximately five years before the trial, serve as
neutral bases for the peremptory challenge.

It is true that defendant’s challenge may be somewhat
stronger when the challenge is viewed in light of the
subsequent challenge to another Hispanic juror, F.D..
However, as we have recently held, a trial court has no sua
sponte duty to reexamine rulings on previous Wheeler/Batson
motions once it determines that a prima facie case has been
made as to one juror. (People v. Avila, supra, 38 Cal.4th
at p. 549.) Defendant did not request that the trial court
revisit R.R’s challenge after the court had found a prima
facie case of discrimination in the F.D. challenge, and we
review whether the trial court’s decision was correct at
the time it was made and not in light of subsequent events.
Moreover, even if the trial court had been asked to revisit
the R.R. challenge, we find no basis for concluding that
its determination would have been different. The
prosecution’s reasons for excusing F.D. based on his
demeanor and his hesitation regarding his ability to impose
the death penalty were strongly confirmed by the trial
court’s own independent observations, as discussed above.
Therefore the challenge to F.D. would have added little to
defendant’s Wheeler motion with respect to the R.R.

We also conclude that the trial court did not err in
finding no prima facie case with respect to the challenge
of Prospective Juror C.K. As discussed, a significant
number of his stepchildren and blood relatives had been in
trouble with the law and had been to prison, and he stated
that “I have so many relatives that have been in and out of
court . . . I would have to have four or five pages to
write down . . . the different trials that they went
through.” At least some of them had been involved in the
Kern County criminal justice system. One of his
stepchildren had been prosecuted for rape by the Kern County
District Attorney’s Office approximately three or four
years before the present trial took place, a prosecution
that resulted in an acquittal. C.K. had personally been
involved in helping some of his relatives through the
criminal justice system. The above taken together
constitutes a substantial race-neutral basis for a
peremptory challenge. Moreover, he was the only prospective
Black juror peremptorily challenged, and at the time of the
challenge a Black woman had been seated on the jury. The
subsequent seating of another Black juror reinforces our
confidence that the trial court did not err in ruling that
defendant had not carried his burden of making a prima
facie case of discrimination.

Defendant also contends that comparative analysis of
prospective minority jurors subject to peremptory challenge
and seated White jurors demonstrates the prosecution’s
discriminatory intent. Assuming without deciding that
appellate courts are obliged to undertake comparative
analysis in the present case (see Miller-El v. Dretke
(2005) 545 U.S. 231, 241; People v. Avila, supra, 38
Cal.4th at p. 546), we disagree that the comparative
analysis that defendant presents in this court assists his
case. Defendant points to three jurors who had some
supposedly comparable experience with law enforcement or
involvement in the criminal justice system. Prospective
Juror L.J. had a son who had been convicted of a
marijuana-related misdemeanor. L.J. did not have nearly as
extensive a family involvement in the criminal justice
system as did C.K., and did not express a negative attitude
toward law enforcement officers as did R.R.. Another juror,
E.G., had had a daughter-in-law whose brother was convicted
of murder but, unlike C.K., the juror did not appear to
have any connection to the case or attend court

A closer question is presented by Juror S.M. S.M.’s husband
was a witness in the highly publicized murder trial of
Patrick Dunn, which was the subject of a book, Mean
Justice, by Edward Hulme that was highly critical of the
prosecutor in this case, District Attorney Ed Jagels, and
the criminal justice system in Kern County. S.M. stated she
felt that “there were some things that weren’t properly
brought out” by the prosecution, which would have led to
more a favorable result for Dunn. Therefore S.M., unlike
C.K., came away from her experience with the Kern County
criminal justice system with a belief that the prosecution,
and in all likelihood the prosecutor in the present case,
had been unfair to a defendant, and in particular a murder
defendant. S.M. did profess that this experience would not
affect her ability to be a fair juror on a murder trial,
but so did C.K. Unlike R.R., she had not been recently
prosecuted by the Kern County District Attorney, but neither
had C.K. On the other hand, S.M.’s husband was a witness in
a Kern County trial, whereas some members of C.K.’s family
had been defendants.

Although it is difficult to explain on the cold record and
without the benefit of having heard the prosecutor’s
reasons for the peremptory challenge of C.K., why S.M. was
seated and C.K. was not, we do not believe this difficulty
should be a basis for concluding there was prima facie case
that a Wheeler/Batson violation had been committed. Our
confidence in the results of appellate comparative analysis
is somewhat diminished when there is a “lone questionable
peremptory challenge” and the record reveals “a sound,
objectively plausible basis” for the challenge. (People v.
Jackson (1996) 13 Cal.4th 1164, 1254 (conc. opn of Mosk,
J.) (Jackson).) Moreover, C.K. was the only Black juror to
be peremptorily challenged: (Cf. Miller-El v. Dretke,
supra, 545 U.S.231, 241 [125 S.Ct. 2317, 2325] [10 Black
prospective jurors struck and one on panel].) Although, to
be sure, a Wheeler/Batson violation may occur with a single
discriminatory challenge, when as here there is a
legitimate basis for dismissing the prospective juror and no
pattern of discrimination appears as to Black jurors, a
court should be hesitant to infer a Wheeler/Batson
violation when comparative analysis raises questions as to
a single prospective juror, particularly “given the
legitimate role that subjective factors may have in a
prosecutor’s decision” to challenge or not challenge jurors
peremptorily. (Jackson, supra, at p. 1254 (conc. opn. of
Mosk, J.).) We therefore conclude that there was no prima
facie case that a Wheeler/Batson violation was committed in
excluding C.K.

7. Erroneous Admission of Aggravating Evidence

Defendant claims that several pieces of aggravating
evidence were erroneously introduced at the penalty phase,
in violation of his rights under the Eighth and Fourteenth
Amendments of the United States Constitution. We will
consider each of these in turn.[fn8]

A. Admission of the Anonymous Phone Calls

First, defendant claims there was insufficient foundation
to hold him responsible for several late-night phone calls
made the night before the murder to the Breck residence, in
which the caller hung up immediately after the phone was
answered. He claims that these phone calls tended to
buttress the prosecutor’s contention that defendant planned
and premeditated the murders.

Evidence Code section 403 states in pertinent part: “(a)
The proponent of the proffered evidence has the burden of
producing evidence as to the existence of the preliminary
fact, and the proffered evidence is inadmissible unless the
court finds that there is evidence sufficient to sustain a
finding of the existence of the preliminary fact, when:
[¶] . . . [¶] (4) The proffered evidence is of
a statement or other conduct of a particular person and the
preliminary fact is whether that person made the statement
or so conducted himself.” Here, the trial court did not err
in admitting the evidence. The day before the phone calls,
defendant had stolen Breck’s wallet, and although not clear
from the record, the wallet may have contained a card or
document with Breck’s unlisted number. Defendant
burglarized Breck’s home and raped and murdered her the
following day. The jury may reasonably have inferred that
defendant made those calls. Moreover, evidence of the calls
touched only tangentially on the question of defendant’s
mental state at the time of the crimes, and therefore their
admission, if error, would have been harmless by any
applicable standard.

B. Admission of Location of Johnson and Glass Burglaries

The prosecution sought to admit under section 190.3, factor
(b) evidence of three burglaries that had occurred shortly
before the murders, as showing “[t]he presence . . . of
criminal activity by the defendant which involved the use
or attempted use of force or violence or the express or
implied threat to use force or violence.” The trial court
initially excluded evidence of the circumstances of two of
these crimes, the burglaries at the Johnson and Glass
residences, although it allowed the fact of his conviction
for these burglaries to be admitted under section 190.3,
factor (c). At the close of the trial, just prior to
instructing the jury, however, the trial court ruled that
evidence of defendant’s convictions for these burglaries
was not admissible under factor (c), because convictions
are only admissible under this section if they predate the
murder or murders with which a defendant is charged.
(People v. Scott (1997) 15 Cal.4th 1188, 1223.) Because the
convictions for these burglaries were contemporaneous with
defendant’s murder conviction, they were therefore not
admissible as prior felony convictions. The trial court
also ruled, however, that evidence of the Johnson and Glass
burglaries was still properly admitted under section 190.3,
factor (a), the circumstances of the crime, because they
tended to show defendant’s state of mind as someone in
trouble with the law seeking to find the means to get away,
at the time the murder was committed.

Notwithstanding the initial limitations on the presentation
of the evidence regarding the Johnson and Glass burglaries,
the prosecutor, during the opening statement, showed the
jury a map of where the various burglaries occurred and
divulged the locations of the Johnson and Glass burglaries.
Counsel eventually objected and the trial court sustained
the objection, not allowing the prosecutor to complete this
part of his presentation. Defendant contends disclosure of
the location of these burglaries was prejudicial error,
resulting in violations of his right to due process, to
counsel, and to an impartial jury.

The trial court’s exclusion of the circumstances of the
Johnson and Glass burglaries was based on the erroneous
belief that such burglaries were only admissible to the
extent allowed under section 190.3, factor (c), rather than
factor (a). It is unclear what limitations if any would
have been placed on the admission of such evidence if it had
been admitted under factor (a). But even assuming error, no
prejudice resulted. Defendant contends that the fact these
burglaries, together with the Elliott burglary, which was
admitted into evidence, and the Breck burglary/murder, were
in the same location supported the prosecution’s
premeditation theory. In fact the evidence of the location
of the burglaries was at best only incidentally connected to
the prosecution’s theory of defendant’s mental state. We
conclude that divulging the location of these burglaries
was harmless under any applicable standard.